Across US, Non-Custodial Parents Sue

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At least 28
federal class action suits
in 28 states have been filed in the
last two weeks on behalf of non-custodial parents (NCPs). The defendants
are the individual states.

The plaintiffs
claim to represent an estimated 25 million non-custodial
– primarily fathers – whose right to equal custody
of minor children in situations of dispute is allegedly being violated
by family courts across the nation.

Family law
is traditionally a state matter, but the federal government has
assumed greater control in the area over the last few decades. Thus,
the plaintiffs are appealing to the Constitution, U.S. Supreme Court
precedent and acts of Congress “to vindicate and restore their various
inalienable rights.”

In short, federal
law is being asked to trump state practice in custody matters.

According to
the suits,
state practices appear to be “willful, reckless, and/or negligent
fraud, deceit, collusion, and/or abuse of powers” with a “systematic
pattern of obstructing, hindering, and/or otherwise thwarting the
rightful and lawful conclusion of due process” of non-custodial
parents in child custody proceedings.

In particular,
fathers protest the widespread practice of almost automatically
granting sole custody to mothers in divorce disputes.

The 28-plus
class action suits are identical, as any future suits will be. The
ultimate goal is for every state and U.S. possession to be represented
in one large consolidated action. Indeed, Torm L. Howse – president
of the Indiana Civil Rights
and coordinator of the suits – says that paperwork
is under way for submission to the Judicial
Panel on Multidistrict Litigation
, a legal body which has the
authority to transfer such multiple civil cases to a single district

If this happens,
every single non-custodial parent in America will be represented
by the class
action suit
, which is nothing more than a lawsuit brought by
one person or a small group on behalf of an entire class who shares
a grievance.

What specific
relief is being sought?

The sweeping
legal goals are spelled out in a
press release
. The main relief sought from federal court is
the immediate “restoration/elevation to equal custodial status”
of all current non-custodial parents against whom no allegations
of abuse or neglect have been proven and who have an ongoing relationship
with the child.

The establishment
of equal custody embraces several other reliefs.

For example,
the “prohibition of custodial move-aways of minor children [more
than 60 miles] from their original physical residences with natural
parents.” Also, the “abolishment of forced/court-ordered child support
in most cases.” Support of the child would be borne by each parent
during their own parenting time.

The Plaintiffs
argue for restoration of equal custody not merely for the sake of
non-custodial parents but also for children’s welfare. The press
release cites a much-touted study entitled “Child
Adjustment in Joint-Custody Versus Sole-Custody Arrangements,”

which was published in the APA’s Journal of Family Psychology. The
study concluded, “Children in joint physical or legal custody were
better adjusted than children in sole-custody settings, but no different
from those in intact families.”

In this sense,
the suits also advocate children’s rights.

Other reliefs
being sought are financial in nature; some of them take the suits
into murky areas. For example, the suits ask for “reimbursement”
from custodial parents to non-custodial parents of any state-ordered
child support that exceeded the “maximum limits of federal law.”
This ceases to be an appeal to constitutional or parental rights
and instead pits one set of civil law against another, with retroactive
penalties being imposed.

In addition,
the suits ask for “various damages against the Defendant [the state
named] in the aggregate value of $1,000,000 payable per Plaintiff.”
The court awards would be “executable upon all monies, property,
chattels, assets, goods, pecuniary interest and anything whatsoever
of any value” owned or controlled by the State. The suits request
that “an appropriate portion” of the award be provided by the liquidation
or direct transfer of title of “unused, abandoned, or unnecessary
state property and assets.”

The number
of non-custodial parent plaintiffs who sign on to a federal class
action cannot be predicted but it could run into millions; the collective
damages could run into billions or even trillions of dollars. Unfortunately,
this gives the appearance of pursuing profit rather than justice.

When asked
to elaborate on the amount of damages, Howse clarified, “We are
preparing, later this week, to offer proposed settlements that will
waive the vast majority of damages, among other things, in exchange
for a quick restoral of equal custody rights, a few forms of tax
abatements/credits to balance what custodial parents have enjoyed
for years and some other basic and related issues, like the setting
up of neutral visitation exchange centers, and the like.”

He added, “It
has never been about winning large amounts of money from the states
… It’s about restoring the lives of our children, and restoring
our own lives.”

I genuinely
hope the settlements come to pass. Stripped of their financial demands,
the suits could go a long way toward removing what I believe to
be the worst laws governing child custody in disputed divorce.

At bare minimum,
they are raising the profile of an issue that will not go away:
the crying need of non-custodial parents, especially fathers, to
know their children.

And the equal
need of children to embrace both parents.

2, 2004

McElroy [send her mail] is
the editor of
and a research fellow for The Independent Institute in Oakland,
Calif. She is the author and editor of many books and articles,
including the new book, Liberty
for Women: Freedom and Feminism in the 21st Century

(Ivan R. Dee/Independent Institute, 2002).

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