Basically, courts rely heavily on a couple standards to guide them in their decisions. 1) Stare decisis (which literally means to "stay decided", as opposed to changging your mind) means that courts rely heavily on previous similar cases, when confronted with a new case. If in the past, unmarried fathers did not have custody rights, and an unmarried father comes now before the court seeking custody, well, even if the judge wants that unmarried father to have custody in this case, the answer must be no, based on the previous caselaw. 2) The court frequently defer to the legislature (which need not concern us here).
the problem is, there isn't much favorable caselaw for the NCP cause, which a judge might rely on. Therefore, a judge would have to go out on a legal limb, to rule in the NCP favor, and they generally won't take those chances (because judges don't like to risk getting reversed on appeal, it's about the worst thing that can happen to them professionally).
So judges rely on the existing stuff. And the more frivolous or poorly pleaded NCP lawsuits come before them, the more they just dismiss them for technical reasons, without ever getting to the merits of the case. Pretty soon, there is a mountain of NCP cases, none of which have been successful (I'm looking into Doc's hypothetical future now). At that point, judges (who are pressed for time like everyone else), aren't even reading NCP lawsuits anymore; they only know there is a mountain of them already, and not a single one has been successful, for whatever reason. So, the judges might just assume that any future NCP lawsuit is equally worthless.
So, right now, it is incumbent not to allow that mountain of failed efforts to materialize, otherwise that is the second mountain we will have to climb, and it will be of our own doing. the first mountain is big enough, without adding tthe second mountain through our own failed efforts.
That, I believe, is the point Doc was making, and I agree that it is a valid point. I do not believe it is the only possible outcome, or a necessary outcome (unless of course, the NCP cause is never able to get a well pleaded lawsuit before the judges).
It's like going into battle. If you send your front troops in such a way that they will be massacred, then your second set of troops not only have to reach the enemy, but also climb over their fallen comrades, which makes their task so much more difficult. The lesson is, don't fail at the outset, don't waste your precious resources.
Granted, it is virtually impossible to prevail on the first atttempt, and necessarily, some soldiers will be lost in the initial advance. But there is no need to sacrifice more than necessary.
How's that?
Good Luck.