In Other Words

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Posted by:

Jim Loose

on August 25, 2006 at 08:01:27:

Without an allegation of fault the state has no dog in the fight between two private citizens who are saying (actually, it's usually only one of them saying it) that they just don't get along anymore.

Suppose you and I and Lawmoe are friends. Suppose your and my friendship craters. It would be ludicrous for either of us to say that that says anything at all about our separate relationships with our friend, Lawmoe. But that's what happens 2-3000 times a day in America about a much more fundamental relationship than friendship.

In the absense of allegations of abuse or neglect -- or spousal fault sufficient to trip probable cause to believe one or both adults may be an unfit parent -- the state has no dog in the fight. The state's permissible role is entirely neutral, beginning with the position that it's not in the business of creating a class of second class parents and that the burden to make any parent into a member of such a class is a high one for a plaintiff. This is not only the correct legal position as a matter of self-evidence, of pretty straightforward deductions from existing conlaw, and of simple equity, there's now an overwhelming informational case that the massive exercise of parens patriae power that has grown up as a result of No Fault is a disaster for children and society as a whole. The state is an incompetent parent, and, ipso facto, is incompetent to adjudicate between fit parents. You and I, millions of our fellow citizens, and millions of children suffer because of this fundamental misconception of the underlying problem -- which is that an alleged breakdown between parents (based on evidence that can't be challenged since it exists in the mind of the petitioner) means diddly squat about their separate relationships with their children.

A form of No Fault can survive careful reform ... one that involves abstention of parens patriae without the proper predicate conditions being met. The state must become extremely disciplined about this.




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