Today's Family Law “Special Courts” Remind Us Of Yesterday's “Special Courts” of Salem
In 1692 the governor of the Massachusetts colony established a “special court” to hear certain cases. These courts allowed practically any evidence, including dreams, to be used to convict and even execute the accused based on a standard that is still in use today in civil courts, “a preponderance of evidence”. Accusations were made by people who stood to gain from the conviction of the accused, yet there was no due process, and no jury of your peers.
It took just a few months for the people to realize the error in using this “special court” with its own rules. It was quickly dismantled by the governor, but not before two hundred people were accused and twenty executed for “witchcraft”. This came to be known as the Salem Witch Trials.
The most dangerous thing about the Salem Witch Trials was not the accusations made by some colonists against others. It was the lack of clear definitions for what witchcraft was along with the lack of protections from false accusations. Without the ability to argue facts, the defendants were left at the mercy of whomever was “examining” them. If the judge in that case just had a feeling or bias one way or the other, it became fact. With these “facts,” innocent people were imprisoned and killed.
Today we have the constitution which demands people get a fair trial, the 5th Amendment guarantees due process before being deprived of “life, liberty or property”, the 6th Amendment demands a jury for “the accused”, and the 14th Amendment requires that states comply with the constitution (which is a document regulating the federal government) and demands equal protection under the law.
Unfortunately, even though we now have the constitution, the days of “special courts” are far from gone.
Today we have a “special court” called “family court.” It is considered a “civil” or court of “equity,” and uses the same standards as one would use in a money dispute, or a dispute with your neighbor which does not require the standards one would use before depriving one of “life, liberty, or property. But in the case of “family court,” you can be jailed, lose your property, and lose your children with NO constitutional protections. You have no right to a jury, and no right to an attorney for what are arguably “fundamental rights.”
If you are a law-abiding citizen, you do not get these protections before the state takes jurisdiction over your children in “family court.” All it takes is one parent to sue for custody, and the case goes to “family court.” In addition to this, all a judge uses in a custody case when deciding parenting time (physical care), or “contempt of court” charges which could lead to jail time is a “preponderance of the evidence,” the same standard as the witch trials. No real evidence is required. It is merely the opinion of the judge. Is this the correct standard to apply to a “fundamental right?”
The US Supreme court has repeatedly stated that a parent's rights are a “fundamental right protected by the 14th amendment.” In fact, in child abuse cases involving DHS, this is an often used standard, sometimes even requiring a child who is actually being abused, to stay in an abusive situation because of lack of evidence to remove them. Yet for some reason in child custody cases between two parents, this standard is completely ignored, and it is treated almost as if having contact with only one parent is good enough for the child. Do we as a society really believe that it is okay to remove a parent from a child’s life just because we need a “winner” and a “loser” in court?
Children are treated in family court the same way that the washer and dryer are.
One parent WINS, and the other parent LOSES on the basis of what a judge decides. A judge makes a judgment call on an entire lifetime of a person (the child, who stands to lose half of their identity), over a few hours of testimony. How well could I really know anyone reading this after a few hours of talking to you? Is deciding who is the “better parent” REALLY in the ” best interest” of any child?
Keep in mind that these are not cases of abuse. These are cases where two parents are pitted against each other to fight for custody of their child. Instead of protecting the rights of both parents AND children, the court most often (almost 80% of the time) chooses to pick a winner, forcing one parent out of the children's lives and forcing the children to lose half their family including grandparents, aunts, uncles, cousins.
A significant percentage of the caseload for both the court system and DHS are derived from contentious custody cases. What better way to gain the upper hand in a custody battle than to involve a government agency to investigate the opposing party. This causes additional expense for the parent being investigated, as well as even more anxiety.
A large percentage of “abuse reports” investigated by child protective services come from child custody battles where one parent is attempting to use abuse allegations to gain the upper hand. This is a huge waste of resources in a system that is already stretched thin. Real abuse cases are slipping through the cracks because there is not enough time to investigate them all properly. Yet false abuse reports are rarely prosecuted.
The reason often cited for this is, “We don’t want to discourage reporting of abuse.” The problem with this is that it assumes there is no victim of a false report when in fact there is. The parent who is accused of abuse has to overcome the damage to their reputation even if allegations are later proven untrue. They may have significant legal defense costs associated with this; and worst of all, they may lose time with their children while they are being investigated.
What gives the state (judge) such immense authority over families? A single statement within Iowa’s law known as “the best interest of the child.” Today those in opposition to shared parenting claim shared parenting is already in the law because judges have the “ability” to award this and no change is needed. This is, in fact, true, judges do have the “ability” to award equal time with both parents. They just seldom do.
Are we to believe 80% of parents are unfit to raise their kids equally with the other parent? Do we REALLY believe kids do better with just one parent? The problem remains the same way as at the time of the Salem witch trials. There is no clear definition of an essential term that is the cornerstone of child custody law…“ the best interest of the children.” This is a term that on the surface, makes a lot of sense, who could argue against looking out for “the best interest of the children?” However, the problem is there is no consensus on what exactly “the best interest of the child” is. It is the same as making a statement like “the best state to live in,” or “the best car manufacturer.” It is entirely subject to personal opinion and bias.
There is a reason we have Constitutional protections, and in almost every other case there are few exceptions to those protections. For example, your freedom of speech cannot be interfered with except in cases where it becomes a danger to others like yelling “fire” in a movie theater. You have a right to own firearms unless you are a proven danger to others.
But because children are such an emotional subject, and most would do anything to protect them, we overlook the fact that both the children and their parents have a Constitutional right to freely associate with each other without government interference. So, we get “special courts” like family courts, which ignore the constitution in their own “special cases” to find “the best interest of the children.” Is this not a “witch hunt” of modern times?
This article is a guest submission by Tom McDermott.
Tom McDermott is from Clinton, Iowa. He joined the Army right out of high school, and eventually retired from the National Guard after twenty years of service. During this time, he was also in law enforcement (fourteen years), resigning in 2016 for personal reasons.
Tom is now is a full-time advocate for equal parenting rights. He works diligently in that role except on days when he has his children. On those days, he devotes every minute to them being keenly aware of the limited time.
[DISCLAIMER: The opinions expressed in guest posts, are the personal opinions of the author. They may or may not reflect the views of Families United Action Network (FUAN) or its individual members. Note that submissions may have been edited for clarity.
Hoffer, Peter Charles. “Salem Witchcraft Trials.” Encyclopedia of American Studies, edited by Simon Bronner, Johns Hopkins University Press, 1st edition, 2016. Credo Reference, https://eicc.idm.oclc.org/login?url=https://search.credoreference.com/content/topic/salem_witch_trials?institutionId=4421. Accessed 24 Apr. 2018
www.iowacourts.gov “a guide to Iowa’s court system” Page 2
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