Is there a Right to Parenting Time?

Arizona favors both parents parenting. Whenever possible, courts award equal parenting time to both parents. But this is not always the case. In fact, many cases involve parents who receive little to no parenting time, or much less parenting time than the other party.

Certainly this is appropriate where one parent is abusive or neglectful, but it also happens when one parent has been severely alienated by the other parent, and teenaged children “don’t want to spend time with them.” Sometimes this is the result of one parent having a more structured house, more rules or different expectations of their children.

In these cases, where a Judge has ruled it is not in the children’s best interest to spend a substantial amount of time with one parent, has that parent been deprived of their “fundamental right to the custody and control” of their child? What about equal protection and due process? Can a parent be deprived of their right to parent their children when they are not provided representation?

New Jersey Fathers have filed a class action lawsuit against family court judges alleging that the best interest standard violates their constitutional right to parent. Here is the article:

A would-be class action lawsuit filed by six fathers claims New Jersey family court judges are unconstitutionally depriving plaintiffs of child custody by using a “best interest of the child” standard.

The amended lawsuit was filed last week after U.S. District Judge Freda Wolfson granted a motion to dismiss on Jan. 16 that allowed a revised suit on some of the counts, the New Jersey Law Journal (sub. req.) reports.

The revised suit (PDF), which names five judges as defendants, claims violations of equal protection, due process and the plaintiffs’ fundamental right to the care, custody and control of their children.

The fathers say New Jersey should require a showing of exceptional circumstances or unfitness before eliminating or reducing a parent’s right to custody. Instead, judges currently use a “best interest of the child” theory, violating the fathers’ fundamental constitutional rights to the care and custody of their children, the suit says.

The fathers contend that parents who are at risk of losing custody should have the same due process rights as those who face possible termination of parental rights due to abuse or neglect, where the extraordinary circumstances test is used.

“When New Jersey seeks to strip both parents of custody they only do so after notice, hearing, and proof of unfitness,” the amended suit says, “but in the context of an inter-parent dispute defendants treat the parent’s fundamental rights as nonexistent or irrelevant. This practice is unconstitutional.”

The suit also says judges appear to be using a preponderance of the evidence standard to strip parents of their rights, but they should be using a standard of clear and convincing evidence.

The plaintiffs say they lost custody after short notice of a claim of domestic violence or incompetence. One plaintiff, Surender Malhan, claims he got less than two hours’ notice before a hearing to rebut charges that he was an unfit parent.