But the argument isn't about "most" typical parents, happily in full agreement about what their plans for their child would be. The disputes arise when it isn't that simple.
This is primarily about parents who DISAGREE, and secondly, it is about when parents are just not doing their job as parents. There are also third, fourth, fifth and etcetera other scenarios, but we can't sort through all possible situations and form inflexible government policies without giving a parent the opportunity to present THEIR unique case to a court.
On the first case, parents wouldn't be in a courtroom if they AGREED on everything, now would they? Sometimes disagreements can't be settled by meeting in the middle. There are only two ways to settle an intractable disagreement, IF there is no clear middle ground:
1. The primary caretaker concept. Make one parent the winner and one the loser based on the CP doctrine, the concept that there is only one "real" parent for a child. This is the part of custody guidelines that SHOULD be under fire.
2. The best interests of the child. Since the parents can't agree, and the subject of the disagreement is the CHILD, then it makes perfect sense to break the tie by looking at what is best for the child.
SOMEBODY has got to decide this. If it isn't a judge, then who? A GAL? A coin toss? The only thing left if it isn't the court is for the CP to have all of the authority. If you oppose the children's best interests principle, as Jim does, then the court must defer to the CP. If you oppose the CP doctrine, as I do, then you have to settle intractible disputes with a judge. Those are your two choices: Child's interests principle or the CP doctrine.
But what may the judge use to make his decision? Since this is ABOUT the child, and FOR the child, it also makes perfect sense that the decisions be made with the CHILD in mind. If you try to take away the court's ability to consider the child's needs, then there is nothing left to consider but the parents themselves - yep - one parent "wins" and one is the loser.
The CP thing again.
So, without a judge deciding which parent's plan best supports the child's needs, we are back to the old CP rules again. Forget the kid. CP knows best. Some state guidelines say something like this: "The parents are to agree on all matters pertaining to the child in regards to blah blah blah, BUT if the parents do not agree, then the CP prevails."
In other words, the NCP has a vote, but it counts as zero and the CP's vote means everything.
Some vote.
Parents disagreeing is by far the most common reason why the judge has to step in, but there ARE other reasons that a child's interests may not be whatever the parents say it is. You seem to understand that with this statement you made:
"When there is proof that the childs parents are not protecting their childrens rights then and only then should the court step in."
Exactly. It isn't usually the case, but it DOES happen. The reality is that there are people out there that have such personal problems that social workers have to help them just to get through a normal day's routine. There are all kinds of freaks out there: crack addicts selling their bodies all day and night; mental ward escapees who call for the end of the earth at the top of their lungs on street corners and psycho-sociopaths who are bent on causing chaos.
Some of these people have borne children.
They are technically parents but they can't take care of themselves let alone take care of a child. You know it. I know it. A judge knows it. Most of them had an aunt and uncle, grandparent or foster parent taking care of their child, but what happens when they are between jail and rehab and want to take their children away from the happy home they have always known?
Parents rights prevail?
After all, they are parents, so they MUST know best, right? But wait, they are "unfit" parents, right? Sure, I would say so, but who is going to determine that? The court again, I presume?
Where do you draw the line between crack addict and occasional drug user who is a lousy parent? By using the vague term "fit parent", haven't the child haters just changed the arbitrary determination right back to where it was before best interests of the child - a determination of which parent is "superior" or "primary"?
What happened to Jim's "simple" answer?
Nobody disagrees that in most cases the court needs to let parents do their job and I believe we do need to limit the court's ability to micromanage minor differences in parenting style, but Jim carries this to the extreme when he says consideration of the child is "impermissible".
No matter how you cut it, you have two choices if parents don't agree on what to do concerning the child they share: a judge determines which of them has the best option for the child (child's interests principle) or the judge determines which one is the "primary" parent and then lets them decide everything, excluding the other parent (CP doctrine).
I know MY choice. The only wording in most state guidelines that is precious and dear to the needs of the NCP is the phrase "best interest of the child". This is the phrase that gets increased parenting time, prevents move-aways (See: LaMusga which was ENTIRELY predicated on BIC) and, ultimately, equal parenting itself.
All other significant portions of the state guidelines for custody determination work AGAINST the non-custodial parent: the statutes calling for determination of a "primary caretaker", the presumed "standard" schedule and all laws that refer to primacy of one parent. Additionally, the status quo (the idea that whoever HAS the child KEEPS the child) is a powerful force against NCP's. Change of circumstance requirements refer to CP's only, not children's changing needs.
Yet PEP chooses to undermine the ONLY part of the law that NCP's have been gaining success with.