36 thoughts on “Should Judges Be Required To Pass Rigorous Tests? Poll #26”
Of course there should be an exam and standards for judges.We live in an era where you can test and measure almost anything. Here are my suggested standards:
1.Proficiency in Elementary school math. Some one with 3 years of education beyond college should be able to add up a column of numbers correctly and divide correctly in 1/2. My judge made a $600,000 error in her addition.
2. Basic research skills. The judge has access to the DOR (Department of Revenue). This includes your tax returns and 1099s from your bank accounts and investments. If the judge thinks you owe the “ex” money,such as for alimony, child support, or 1/2 the value of your business, the judge should check to make sure that you actually earn enough money to pay the obligation the judge wants to impose..
3. Honesty, diligence, sufficient coping skills to listen to both litigants and consider what each has to say. There are psychological/aptitude/attitudinal tests that measure this that have been around for decades and validated. Employers use these tests to hire employees, with the blessing the human resources department.
4. Mandatory annual financial disclosures and lifestyle analysis. It is the same forms the litigants have to fill out, so the judge should be able to understand what is needed and how to do this. Interval testing for substance abuse and alcohol and evaluation for continued mental competence to do the job would help inspire the public trust.
5. Judges who listen to divorce trials about business valuation should demonstrate competence in understanding how a business is valued, including how much debt the business can take on (as in paying the “ex” for 1/2 the “value” of the business) without scuttling the business and losing all those jobs so many other families depend on. If the judge is too math averse or stupid to understand business valuation, then a judge who has passed the test should hear the case.
No more politically well connected flunkees doing hack jobs.
Why is it so hard to get people to realized that they should not have to involuntary have to take care of another adult and sometimes a able body adult .Some of us have been conditioned to have a slave mentality and get angry when it is pointed out .No one is going to love you like you , every thing else is just business and until then we only have a choice to pick what kind of slavery we are going to part take in .The horse is out the barn and we continue to be trick in to not focusing on a real solution the argument need to be no a constitutional lever
Unfortunately, the law doesn’t support some of your premises. For example, Minnesota Statute § 518A.42 states that a child support order “should not exceed the obligor’s ability to pay.” However, Statute § 518A.32 allows the court to set your ability to pay based upon what the court think you are capable of earning, even if you’ve never actually earned that amount at any time in your life. All the judge needs to do is make a finding (whether accurate or not) that your reduced income is somehow the result of a willful act on your part.
I’ve tried to discuss this very problem with my elected representatives and they either don’t get it, or they are somehow benefiting from the status quo. In this matter the problem is not the judges, but the fact that the law gives judges a shortcut to use.
How do you figure it’s not the judges problem? If the judge can do ‘whatever the hell he wants with any law’ he can just as easily ‘do what’s right’ in the eyes of the law. Nobody (or law) forces theses corrupt judges to CONTINUE to break the law but the money and power is just too much for these bastards. Look at it this way, even if there were a ‘real’ law that made a judge take every child away from it’s father and place it into foster care, I mean EVERY ONE that comes into the court, the judge could STILL break the law in reverse and give them back to the parents, as he should. Nobody could stop him from breaking the law because they have total immunity, just like they do now when raping fathers and kidnapping their children simply because the mother wanted a younger ‘boy-toy’ to play with. So you see, a judge chooses to break the law each and every time he does not act morally. Unfortunately if you are a man, the judges will take you for everything you have for no other reason than your ownership of a penis. Vaginas make out with everything in a divorce.
Why do you people put up with this?
I agree with no name on this. There should also be annual reviews of all cases to ensure these fools do not have a skewed record of siding with one sex over the other. If it is found to be as such, additional training AT PERSONAL EXPENSE as well as loss of bonuses, “which should never be there in the first place” and mandatory removal if th problem persists. I would like to see so many judges feel the devastation of their own stupidity!
Judges should also be DRUG and ALCOHOL tested on a random, no-notice basis, too ! ! !
I would say no, because at this point they should have already been vetted to preform the duty they are required to do. If they at this point fail a test, why did they make it this far?
Because judging is a different profession than lawyering, no US
judges have been vetted or trained to perform their duties. Lawyering
tests speed, advocacy, marketing, and lobbying skills, while
judging (the judicial profession) principally requires math, science,
engineering, and social science skills (objectivity, problem-solving,
conflict analysis/resolution, quantitative, absence of advocacy,
independent thinking rather than cliquishness, etc.). The two
professions entail, to a large degree, opposing skill sets, and
need separation to additionally address conflicts of interest, etc.
We as a nation are more than 200 years overdue in separating these
two professions, like much of the modern world already does;
hence, the abortion we call family courts.
12th Circuit Judge
Imagine a right that for nearly a century U.S. courts (including the Supreme Court) have recognized as a constitutionally-protected “fundamental right” which “cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”1 Such a right “undeniably warrants deference, and, absent a powerful countervailing interest, protection”.2
Surely such a right would be zealously protected by the courts. And if it were not, we should be outraged.
There is such a right. It receives little protection by our courts. And we should, indeed, be outraged!
Reading the language our courts invoke when discussing parental rights, one would expect those rights to receive vigilant protection from the courts. But, in fact, family law courts across the nation routinely infringe on parental rights with not even a semblance of due process required when restricting fundamental constitutional rights.
This is most clear in the case of the temporary orders courts impose during the pendency of divorce litigation. In nearly all such cases, two parents walk into the courtroom with full parental rights — with full custody of their children. On the basis of unchallenged affidavits or the most cursory of hearings — often lasting only a few minutes — one of those parents walks out of the courtroom without custody — with his or her parental rights severely restricted. That parent, over 85% of the time the father, has lost the legal authority to make decisions for the children — even to sign school permission forms — without due process. This deprivation of rights lasts through the divorce process and typically becomes part of the permanent court orders.
The Supreme Court has declared that parental rights are “fundamental.” What this means — or, rather, what it is supposed to mean — is that the state may not interfere with them unless there is a “compelling state interest” that cannot be achieved otherwise. And, if it is determined that there is such a compelling state interest that requires interference with a fundamental right, the state must choose the least constitutionally offensive way of achieving its purpose.
Now, of course, the state does have a compelling interest in protecting children from harm. This is the basis on which the state removes children from abusive parents. It is also true that some children of divorcing parents might be harmed as a result of both parents retaining custody. But the state is not allowed, on those grounds, to routinely restrict an individual’s fundamental rights. A legal presumption infringing on fundamental rights may not be made simply because it is administratively more efficient and less costly than making an individual determination3 and the state may not adopt a statutory scheme that deprives individuals of rights “without reference to the very factor that the State itself deem[s] fundamental to its statutory scheme.”4
Setting aside the legal jargon, what this means is that if our courts were to “walk the walk” instead of merely “talking the talk” about parental rights, when our two parents enter court to initiate a divorce proceeding, there would be a strong presumption that they would both leave that court with legal custody of the children. What the courts need to decide in most cases is a schedule of physical custody to enforce during the divorce proceedings and how to arrange finances during this period. Courts should deprive one parent of custody during the divorce process only in very exceptional cases, where there is clear and convincing evidence that it is necessary, in this particular case, to prevent harm to the children.
This constitutional argument for a presumption of joint legal custody is not new. When I was doing research for my 1999 paper “Parental Rights and Due Process,” I found several scholarly papers that develop this line of reasoning. Since the publication of my paper, others have taken up this argument, too. I list some of the scholarly articles that develop this argument below for those who want to read more, providing links to articles that are freely available online.
A note of caution, though: While I believe wholeheartedly in the constitutional argument for a presumption of joint legal custody, I do not recommend that divorcing parents rest their case on these legal arguments. For most family law judges and attorneys, constitutional law was just a course they had to take in law school. They are extremely reluctant to accept the fact that there are any significant constitutional restrictions on their discretion. That the constitutional argument is a sound legal argument doesn’t mean that reliance on it is a sound legal strategy in real-life cases.
By Don Hubin, Chair, Executive Committee, National Parents Organization
1 Doe v. Irwin, 441 F. Supp. 1247 1251 (D. Mich. 1977) at 1251.
2 Stanley v. Illinois, 405 U.S. 645 (1971).
3 See, for example, Stanley 405 U.S. 645 (1972), Carrington v. Rash, 380 U.S. 89 (1965), Bell v. Burson 402 U.S. 535 (1971), Reed v. Reed, 404 U.S. 71, 76 (1971).
4 Bell, 402 U.S. 535 (1971
Scholarly articles on the constitutional argument for a presumption of joint legal custody:
McNeely, Cynthia A. (1998). Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family Court, 25 Florida State University Law Review, 891-965.
Hubin, Donald C. (1999). Parental Rights and Due Process. 1 The Journal of Law and Family Studies, 123-150.
Bozzomo, James W. (2002). Joint Legal Custody: A Parent’s Constitutional Right in a Reorganized Family. 31 Hofstra Law Review, 547-585.
Meyer, David. (2006). The Constitutional Rights of Non-Custodial Parents. 34 Hofstra Law Review, 1461-1496.
Firing, Matthew. (2007). In Whose Best Interest? Courts Failure to Apply State Custodial Laws Equally Amongst Spouses and Its Constitutional Implications. 20 Quinnipiac Probate Law Journal, 224-259.
Lapsatis, Nicole. (2012). In the Best Interests of No One: How New York’s “Best Interests of the Child” Law Violates Parents’ Fundamental Right to the Care, Custody, and Control of Their Children. 86 St John’s Law Review, 673-714. http://www.avnetnews.net/whydadsmatter.php
I find this article excellent.
EXCEPT “joint legal custody” is not the same as 50/50 child sharing or equal parental decision rights (regarding medical care, school choice, domicile choice and so do not on) in most states and certainly not in Texas. I (the father in Texas) have joint custody, but I do not have the right to choose the place where my kids live, their doctors, their schools or any other important decisions in their lives. I do have the obligation to pay $25,000 (tax free) per year to their mother, which is enough to fully support her household, including a maid and gardener. She is employed as a school teacher and has no need to spend any of her money on the kids. I pay the Texas-required amount based upon my income. Her income is not considered, nor are her resources either. Even though she got a mortgage-free house in the divorce. I get to see the kids about 34% of the time over a year. If they choose to stay with mom, because she has a maid and waits on them hand and foot, rather than stay with me, the court does nothing except order an amicus attorney to assess the situation. I also pay the costs o the amicus attorney.
“joint legal custody” is not the issue. Inequity in decision-making, child time with the parents and child support are the issues.
Don, Excellent summary and great references. What are your thoughts on how to bring these principles into the Family Courts? Having met with several Legislators, I’m convinced these changes will be political suicide and they will not draft ‘real’ change. On the other hand, the Appellate courts have enforced decisive unpopular changes using the authority ‘we the people’ vested in them to enforce the constitution. So it seems, the most effective approach to fix the lower courts may be thru the Appellate process. Surviving the inhumane tyranny of the lower court and getting heard in the Appellate is of course no easy feat.
This old case from Iowa (Helton v. Crawley, 41 NW 2d 60 – Iowa: Supreme Court 1950) gives a good history and lineage back to the British Court of Chancery. Given the upcoming celebration of independence it seems odd the (British King’s) “Common Law” are still stuck in state statutes but the key take-away is the lower courts have simply kept doing decade-after-decade, the same routine and kept the hideous principles alive. The many who sacrificed their lives in the long battle for independence would be horrified. It’s time for bold action.
This has less to do with competency than ethics. People who enjoy power are attracted to the profession. The current laws give them unchecked power. Absolute power corrupts absolutely.
Of course. I have heard several lawyers say “These judges are not very good at math”. That is very scarey and totall unacceptable. They should also be required to prove proficiency in the law too. The have license test for hairdressers, truck drivers, plumbers, electricians and they can’t generally destroy people lives and children by making mistakes. Most of these judges are either incompetent or corrupt or both – that is after years of court watching them that I say this.
My original judge, who recused himself after I sued him in federal court (after 36 violations of law) never practiced law for a single day in his life before being appointed a judge. No real private company in the world would allow that type of promotion without serious checks and balances. They have so many layers of protection they can be totally incompetent and you can’t even remove them or sue them for violations of law, civil rights, constitution etc. Under federal law US 42 1983 you are suppose to be able to sue judges (just one of the needed checks and balances, after jury, appeals court and vetting their experience). In fact the federal system is also corrupt (as show by reports now) and dismisses these cases when they should not. The Marshal v. Marshal case (Anna Nicole Smith) set a precident here, piercing the claim that the probate court cases could not be brought into federal court. It time we sued judges personally and destroyed the idea these people are “Gods” that cannot be touched. The level of immunity is way out of control and created by the judges themselves, not consitutioonal law. There MUST be penalties for bad and illegal behavior and mistakes, just like any other job.
I agree, these rules have taken away any checks and balances in the system.
All Judges and everyone in a court room should swear on the Bible as we do…
That’s right. Most people do not realize that the ONLY people to swear on the bible is you! Not the Judge, not your lawyer not anybody else!
Did you people ever realize that?
Not that it would make any real difference, if you chose to be such a vile criminal (as a lawyer or judge) being a liar is not going to bother you in the slightest. It does go to show just how corrupt the system is and always has been. When you are willing to engage in legal kidnapping other peoples kids for money, well there is a special place in hell for these heathens and swearing on a bible will mean absolutely nothing. Women lie in court. So does the lawyers (yes even your own) judges are born liars. How can a father ever get justice??? Perjury is NEVER prosecuted unless a father did it…
…….in addition to the testing being polled on above. They should be subjected to intense psychological testing and brain scans to rule out any sociopathic or psychotic distinctions that could interfere with there ability to make sound and fair judgements.
I agree with this statement, the judges should be screened for sociopathic tendencies. This is the problem with our police force. The psychologists have determined that a police officer should have an elevated lie score on the MMPI. Their reasoning is that a dishonest person can recognize another dishonest person. Yes they do and they work together to take advantage and cover up for each other.
Would there be any left???
Absolutely! It should not be merely on opinion of other lawyers, but a rigorous scenario based exam based upon REAL life circumstances, not just easy but somewhat litigious cases. The same thing should be required of Custody Evaluators and psychological testing should be done on both parents and the children. None of this subjective one or two hour interview nonsense at $500 an hour!
Each State receives millions of dollars in grant funding to protect victims of violence. The states are hoarding the funds. The judges are to be trained on the dynamics of Intimate Partner Violence. They are not being trained. Web based trainings need to be developed with a pre and post test to measure competency of dynamics of violence and the harmful effects on survivors when judges are not trained in this serious and complicated matter. When a judge demonstrates mastery of the material, the state and the judge need to be held liable for any decision that is made which will further injure victims of Intimate Partner Violence.
If a person goes to court and states they were unaware of a law the Judge will state it was that persons responsibility to know the law and the accused will be punished accordingly. Judges are the only people who can violate the law and receive no punishment.
A Judge should be required to take an exam focused on the specific area of law they are judging and be accountable for their actions and inactions, as is implemented in all other areas of practice (After all, your physician passed his medical board exam, didnt he?). If the Judge unlawfully violates a persons rights, breaks the law, improperly implements the law, or does not judge the case according to the law there should be punishments for the Judge. Essentially, they should not receive the special privileges they are currently taking advantage of. By the way, do physicians go unpunished if they make a mistake and it is heard in a medical malpractice case? NO! They are held accountable by Judges but the Judge is not accountable for his action or inaction. Does that seem hypocritical?
AwesomeFun1, there is far more scrutiny of physicians than just malpractice cases. Insurance companies routinely profile you against your peers to see if you have a deviant diagnostic test and medication ordering pattern. Fraud auditors read your records to make sure that you did not bill for a 25 minute visit and only document a 15 minute visit – if the fraud auditor thinks you did not sufficiently document the visit time you billed for, the insurance company just takes back the overpayment. (Just try and get a lawyer to pay you back for inflated billable hours that do not have precise and sufficient documentation of the work done). Hospitals and hospital employees all look at your behavior and if you do not adhere to the code of conduct you can be reprimanded and required to take additional “training” or lose your hospital privileges. Some infractions of the code of conduct are “zero tolerance”, which means you do not get a chance to correct yourself.
So what??????? This may happen what, once or twice a year? Judges REUTINELY kidnap children away from their fathers by the thousands every year, year in and year out! THOUSANDS UPON THOUSANDS UPON THOUSANDS!
You rather weak argument is truly pointless and lets not forget; although a doctor MIGHT make a mistake here and there, it is an honest MISTAKE! Judges break the law on purpose and for MONEY!!! EVERY DAY OF THE WEEK, IN EVERY COURT ACROSS THIS PLANET!
Can you see how your argument falls flat. I thought you might.
Now get out your checkbook, it’s time to write another ‘mommy-support’ check so she can take her new boy-toy on vacation at your expense! Yup that’s right; she is LEGALLY allowed to spend your money on anything she wants, openly admitting none of it went to the kid. It’s totally legal, no accounting required, and you people are just fine with this?
They should be tested for competence. Also, they should be tested for integrity.
I think the entire case while in court should be recorded video,audio and stenographer in front of the bench. the whisper meetings in front of the bench and back room coffee and donuts shady deals and conversations in judges chambers also should stop or be recorded video,audio and stenographer. After all what do they have to hide? Suffolk County NY
Don’t you get….They all are UNTOUCHABLES from a basic good for nothing person to Congresss pee rs on AL, who all come from the same brotherhood. Creating billions for so called faceless entities of the System under the protection of f ed sin & we all live under the illusion we have democracy while under the disguise of Fund raising, any law can be created to suck up the lives of fools who are sucked into it
Judges should be tested on Ethics. Law schools should be tested on how well they communicated ethics or shut down!
The test should include a visit to my tent where my judge left me homeless and pennyless to see how am doing. We will then drive, on my scooter, ( he gave my bike to my ex to sell for peanuts and my car to my lawyer) to my to my house I used to own before we were married and try to pick up my three boys on my visitation day! Then we will all go visit my brother’s grave who was bullied to death by a judge.
PLEASE ASK THIS QUESTION:
Should your judges ride along with you to pick up your children on your visitation day?
Eradicate/abolish judicial immunity. See my website, http://www.falseallegations.com, on which the history of unconstitutional immunity is set forth. For the sake of judicial independence, judges may be allowed to be, specifically, repeatedly malicious and corrupt. Such outrage uttered by our U.S. Supreme Court circa 1880.
What about taking divorce out of the hands of lawyers and judges? Opposing lawyers do their best to make an already tense situation even worse. The more anger between the parents they create, the more money they make. Judges don’t seem to have to obey any laws and obviously don’t care about doing the right thing. Children are the most seriously hurt by this. Why let the divorce system financial devastate families? Why not use a mediator to work out a compromise both parents can live with and is in the best interests of the children?
Great idea, BUT…only the breadwinner and the more capable parent/spouse would look for fairness and sharing. The less capable parent/spouse is offered and incentivized by the system with child support that is tax free and spendable on anything until the child is 18 or 23 (or maybe forever if the child is handicapped), lifetime alimony based on the payor’s income, not the receiver’s “need”, a house the less capable parent would never be able to afford otherwise, and access to the payor’s post-marital bank accounts and retirement funds if the payor becomes unable to earn the income at the time of the divorce or the income some judge cna invent out of thin air and think the payor can earn. (Child support and alimony can be taken from anything you have that can be liquidated, even if it was yours before the marriage, or acquired after the divorce). The less capable parent/spouse is offered a life free from any obligation to earn a living and permission to conduct intimate relationships without adult responsibilities on either the paramour or the recipient of the court-ordered generosity
The only test a Judge should be made to take is a lie detector test. Judicial discretion is the root of the problem in many cases and it would be interesting in asking the Judge several questions on how he/she came to the conclusion of their decision. For example. The Judge I dealt with made a decision based on something that was neither incorporated in state statute (Florida) nor was it incorporated in my marital settlement agreement (MSA). One must ask how is this possible. Believe me it is if you are a Judge.
Judges should be required to takea extensive battery of psychological tests that will weed out the worst who routinely violate other persons basic right of a fair and unbiased treatment. Most of them think they are God, but in reality they belong to the opposite side!!
There is no amount of tests or training that will deter a corrupt court system (judge) from being corrupt. This is not a gender issue. All genders -mothers, fathers and children alike duffer everyday at the hands of corrupt family court systems. The only way to ensure this is to 1) give judges term limits. 2) taking attorneys out of the court room and 3) take away custody mediators.
At the conclusion of reading an entire transcript and listening to an audio cd that a Circuit Court Trial Judge presided over, it is very concerning that any person in this jurisdiction would declare this Judge as fair & impartial. The court recorded and spoken words of this Judge, and his clear refusal to apply specific and required law before the court cannot be disputed. This Judge’s abhorrent and prejudice conduct was ever present and representative of clear Judicial Misconduct. Without full disclosure on the case here, the historical record this judge just cemented is now worthy of immediate investigation. Judges of this conduct must be recalled. They should not be provided an exam before hearing any case. Remember, you cannot control the morals or ethics of the Judiciary. Simply put, there are some who practice Honorably, and some who dishonor the law altogether.
The judge that heard my case was on the bench 9 days. She took a 6 hr course in Family Law prior to being appointed. She was a former prosecuter for the DA’s office. Its been 7 yrs and I am still living the nightmare. Mind you, I am a mother. The father is not a resident of this country. Pay off??
Of course there should be an exam and standards for judges.We live in an era where you can test and measure almost anything. Here are my suggested standards:
1.Proficiency in Elementary school math. Some one with 3 years of education beyond college should be able to add up a column of numbers correctly and divide correctly in 1/2. My judge made a $600,000 error in her addition.
2. Basic research skills. The judge has access to the DOR (Department of Revenue). This includes your tax returns and 1099s from your bank accounts and investments. If the judge thinks you owe the “ex” money,such as for alimony, child support, or 1/2 the value of your business, the judge should check to make sure that you actually earn enough money to pay the obligation the judge wants to impose..
3. Honesty, diligence, sufficient coping skills to listen to both litigants and consider what each has to say. There are psychological/aptitude/attitudinal tests that measure this that have been around for decades and validated. Employers use these tests to hire employees, with the blessing the human resources department.
4. Mandatory annual financial disclosures and lifestyle analysis. It is the same forms the litigants have to fill out, so the judge should be able to understand what is needed and how to do this. Interval testing for substance abuse and alcohol and evaluation for continued mental competence to do the job would help inspire the public trust.
5. Judges who listen to divorce trials about business valuation should demonstrate competence in understanding how a business is valued, including how much debt the business can take on (as in paying the “ex” for 1/2 the “value” of the business) without scuttling the business and losing all those jobs so many other families depend on. If the judge is too math averse or stupid to understand business valuation, then a judge who has passed the test should hear the case.
No more politically well connected flunkees doing hack jobs.
Why is it so hard to get people to realized that they should not have to involuntary have to take care of another adult and sometimes a able body adult .Some of us have been conditioned to have a slave mentality and get angry when it is pointed out .No one is going to love you like you , every thing else is just business and until then we only have a choice to pick what kind of slavery we are going to part take in .The horse is out the barn and we continue to be trick in to not focusing on a real solution the argument need to be no a constitutional lever
Unfortunately, the law doesn’t support some of your premises. For example, Minnesota Statute § 518A.42 states that a child support order “should not exceed the obligor’s ability to pay.” However, Statute § 518A.32 allows the court to set your ability to pay based upon what the court think you are capable of earning, even if you’ve never actually earned that amount at any time in your life. All the judge needs to do is make a finding (whether accurate or not) that your reduced income is somehow the result of a willful act on your part.
I’ve tried to discuss this very problem with my elected representatives and they either don’t get it, or they are somehow benefiting from the status quo. In this matter the problem is not the judges, but the fact that the law gives judges a shortcut to use.
How do you figure it’s not the judges problem? If the judge can do ‘whatever the hell he wants with any law’ he can just as easily ‘do what’s right’ in the eyes of the law. Nobody (or law) forces theses corrupt judges to CONTINUE to break the law but the money and power is just too much for these bastards. Look at it this way, even if there were a ‘real’ law that made a judge take every child away from it’s father and place it into foster care, I mean EVERY ONE that comes into the court, the judge could STILL break the law in reverse and give them back to the parents, as he should. Nobody could stop him from breaking the law because they have total immunity, just like they do now when raping fathers and kidnapping their children simply because the mother wanted a younger ‘boy-toy’ to play with. So you see, a judge chooses to break the law each and every time he does not act morally. Unfortunately if you are a man, the judges will take you for everything you have for no other reason than your ownership of a penis. Vaginas make out with everything in a divorce.
Why do you people put up with this?
I agree with no name on this. There should also be annual reviews of all cases to ensure these fools do not have a skewed record of siding with one sex over the other. If it is found to be as such, additional training AT PERSONAL EXPENSE as well as loss of bonuses, “which should never be there in the first place” and mandatory removal if th problem persists. I would like to see so many judges feel the devastation of their own stupidity!
Judges should also be DRUG and ALCOHOL tested on a random, no-notice basis, too ! ! !
I would say no, because at this point they should have already been vetted to preform the duty they are required to do. If they at this point fail a test, why did they make it this far?
Because judging is a different profession than lawyering, no US
judges have been vetted or trained to perform their duties. Lawyering
tests speed, advocacy, marketing, and lobbying skills, while
judging (the judicial profession) principally requires math, science,
engineering, and social science skills (objectivity, problem-solving,
conflict analysis/resolution, quantitative, absence of advocacy,
independent thinking rather than cliquishness, etc.). The two
professions entail, to a large degree, opposing skill sets, and
need separation to additionally address conflicts of interest, etc.
We as a nation are more than 200 years overdue in separating these
two professions, like much of the modern world already does;
hence, the abortion we call family courts.
12th Circuit Judge
Imagine a right that for nearly a century U.S. courts (including the Supreme Court) have recognized as a constitutionally-protected “fundamental right” which “cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”1 Such a right “undeniably warrants deference, and, absent a powerful countervailing interest, protection”.2
Surely such a right would be zealously protected by the courts. And if it were not, we should be outraged.
There is such a right. It receives little protection by our courts. And we should, indeed, be outraged!
Reading the language our courts invoke when discussing parental rights, one would expect those rights to receive vigilant protection from the courts. But, in fact, family law courts across the nation routinely infringe on parental rights with not even a semblance of due process required when restricting fundamental constitutional rights.
This is most clear in the case of the temporary orders courts impose during the pendency of divorce litigation. In nearly all such cases, two parents walk into the courtroom with full parental rights — with full custody of their children. On the basis of unchallenged affidavits or the most cursory of hearings — often lasting only a few minutes — one of those parents walks out of the courtroom without custody — with his or her parental rights severely restricted. That parent, over 85% of the time the father, has lost the legal authority to make decisions for the children — even to sign school permission forms — without due process. This deprivation of rights lasts through the divorce process and typically becomes part of the permanent court orders.
The Supreme Court has declared that parental rights are “fundamental.” What this means — or, rather, what it is supposed to mean — is that the state may not interfere with them unless there is a “compelling state interest” that cannot be achieved otherwise. And, if it is determined that there is such a compelling state interest that requires interference with a fundamental right, the state must choose the least constitutionally offensive way of achieving its purpose.
Now, of course, the state does have a compelling interest in protecting children from harm. This is the basis on which the state removes children from abusive parents. It is also true that some children of divorcing parents might be harmed as a result of both parents retaining custody. But the state is not allowed, on those grounds, to routinely restrict an individual’s fundamental rights. A legal presumption infringing on fundamental rights may not be made simply because it is administratively more efficient and less costly than making an individual determination3 and the state may not adopt a statutory scheme that deprives individuals of rights “without reference to the very factor that the State itself deem[s] fundamental to its statutory scheme.”4
Setting aside the legal jargon, what this means is that if our courts were to “walk the walk” instead of merely “talking the talk” about parental rights, when our two parents enter court to initiate a divorce proceeding, there would be a strong presumption that they would both leave that court with legal custody of the children. What the courts need to decide in most cases is a schedule of physical custody to enforce during the divorce proceedings and how to arrange finances during this period. Courts should deprive one parent of custody during the divorce process only in very exceptional cases, where there is clear and convincing evidence that it is necessary, in this particular case, to prevent harm to the children.
This constitutional argument for a presumption of joint legal custody is not new. When I was doing research for my 1999 paper “Parental Rights and Due Process,” I found several scholarly papers that develop this line of reasoning. Since the publication of my paper, others have taken up this argument, too. I list some of the scholarly articles that develop this argument below for those who want to read more, providing links to articles that are freely available online.
A note of caution, though: While I believe wholeheartedly in the constitutional argument for a presumption of joint legal custody, I do not recommend that divorcing parents rest their case on these legal arguments. For most family law judges and attorneys, constitutional law was just a course they had to take in law school. They are extremely reluctant to accept the fact that there are any significant constitutional restrictions on their discretion. That the constitutional argument is a sound legal argument doesn’t mean that reliance on it is a sound legal strategy in real-life cases.
By Don Hubin, Chair, Executive Committee, National Parents Organization
1 Doe v. Irwin, 441 F. Supp. 1247 1251 (D. Mich. 1977) at 1251.
2 Stanley v. Illinois, 405 U.S. 645 (1971).
3 See, for example, Stanley 405 U.S. 645 (1972), Carrington v. Rash, 380 U.S. 89 (1965), Bell v. Burson 402 U.S. 535 (1971), Reed v. Reed, 404 U.S. 71, 76 (1971).
4 Bell, 402 U.S. 535 (1971
Scholarly articles on the constitutional argument for a presumption of joint legal custody:
McNeely, Cynthia A. (1998). Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family Court, 25 Florida State University Law Review, 891-965.
Hubin, Donald C. (1999). Parental Rights and Due Process. 1 The Journal of Law and Family Studies, 123-150.
Bozzomo, James W. (2002). Joint Legal Custody: A Parent’s Constitutional Right in a Reorganized Family. 31 Hofstra Law Review, 547-585.
Meyer, David. (2006). The Constitutional Rights of Non-Custodial Parents. 34 Hofstra Law Review, 1461-1496.
Firing, Matthew. (2007). In Whose Best Interest? Courts Failure to Apply State Custodial Laws Equally Amongst Spouses and Its Constitutional Implications. 20 Quinnipiac Probate Law Journal, 224-259.
Lapsatis, Nicole. (2012). In the Best Interests of No One: How New York’s “Best Interests of the Child” Law Violates Parents’ Fundamental Right to the Care, Custody, and Control of Their Children. 86 St John’s Law Review, 673-714.
http://www.avnetnews.net/whydadsmatter.php
I find this article excellent.
EXCEPT “joint legal custody” is not the same as 50/50 child sharing or equal parental decision rights (regarding medical care, school choice, domicile choice and so do not on) in most states and certainly not in Texas. I (the father in Texas) have joint custody, but I do not have the right to choose the place where my kids live, their doctors, their schools or any other important decisions in their lives. I do have the obligation to pay $25,000 (tax free) per year to their mother, which is enough to fully support her household, including a maid and gardener. She is employed as a school teacher and has no need to spend any of her money on the kids. I pay the Texas-required amount based upon my income. Her income is not considered, nor are her resources either. Even though she got a mortgage-free house in the divorce. I get to see the kids about 34% of the time over a year. If they choose to stay with mom, because she has a maid and waits on them hand and foot, rather than stay with me, the court does nothing except order an amicus attorney to assess the situation. I also pay the costs o the amicus attorney.
“joint legal custody” is not the issue. Inequity in decision-making, child time with the parents and child support are the issues.
Don, Excellent summary and great references. What are your thoughts on how to bring these principles into the Family Courts? Having met with several Legislators, I’m convinced these changes will be political suicide and they will not draft ‘real’ change. On the other hand, the Appellate courts have enforced decisive unpopular changes using the authority ‘we the people’ vested in them to enforce the constitution. So it seems, the most effective approach to fix the lower courts may be thru the Appellate process. Surviving the inhumane tyranny of the lower court and getting heard in the Appellate is of course no easy feat.
This old case from Iowa (Helton v. Crawley, 41 NW 2d 60 – Iowa: Supreme Court 1950) gives a good history and lineage back to the British Court of Chancery. Given the upcoming celebration of independence it seems odd the (British King’s) “Common Law” are still stuck in state statutes but the key take-away is the lower courts have simply kept doing decade-after-decade, the same routine and kept the hideous principles alive. The many who sacrificed their lives in the long battle for independence would be horrified. It’s time for bold action.
This has less to do with competency than ethics. People who enjoy power are attracted to the profession. The current laws give them unchecked power. Absolute power corrupts absolutely.
Of course. I have heard several lawyers say “These judges are not very good at math”. That is very scarey and totall unacceptable. They should also be required to prove proficiency in the law too. The have license test for hairdressers, truck drivers, plumbers, electricians and they can’t generally destroy people lives and children by making mistakes. Most of these judges are either incompetent or corrupt or both – that is after years of court watching them that I say this.
My original judge, who recused himself after I sued him in federal court (after 36 violations of law) never practiced law for a single day in his life before being appointed a judge. No real private company in the world would allow that type of promotion without serious checks and balances. They have so many layers of protection they can be totally incompetent and you can’t even remove them or sue them for violations of law, civil rights, constitution etc. Under federal law US 42 1983 you are suppose to be able to sue judges (just one of the needed checks and balances, after jury, appeals court and vetting their experience). In fact the federal system is also corrupt (as show by reports now) and dismisses these cases when they should not. The Marshal v. Marshal case (Anna Nicole Smith) set a precident here, piercing the claim that the probate court cases could not be brought into federal court. It time we sued judges personally and destroyed the idea these people are “Gods” that cannot be touched. The level of immunity is way out of control and created by the judges themselves, not consitutioonal law. There MUST be penalties for bad and illegal behavior and mistakes, just like any other job.
I agree, these rules have taken away any checks and balances in the system.
All Judges and everyone in a court room should swear on the Bible as we do…
That’s right. Most people do not realize that the ONLY people to swear on the bible is you! Not the Judge, not your lawyer not anybody else!
Did you people ever realize that?
Not that it would make any real difference, if you chose to be such a vile criminal (as a lawyer or judge) being a liar is not going to bother you in the slightest. It does go to show just how corrupt the system is and always has been. When you are willing to engage in legal kidnapping other peoples kids for money, well there is a special place in hell for these heathens and swearing on a bible will mean absolutely nothing. Women lie in court. So does the lawyers (yes even your own) judges are born liars. How can a father ever get justice??? Perjury is NEVER prosecuted unless a father did it…
…….in addition to the testing being polled on above. They should be subjected to intense psychological testing and brain scans to rule out any sociopathic or psychotic distinctions that could interfere with there ability to make sound and fair judgements.
I agree with this statement, the judges should be screened for sociopathic tendencies. This is the problem with our police force. The psychologists have determined that a police officer should have an elevated lie score on the MMPI. Their reasoning is that a dishonest person can recognize another dishonest person. Yes they do and they work together to take advantage and cover up for each other.
Would there be any left???
Absolutely! It should not be merely on opinion of other lawyers, but a rigorous scenario based exam based upon REAL life circumstances, not just easy but somewhat litigious cases. The same thing should be required of Custody Evaluators and psychological testing should be done on both parents and the children. None of this subjective one or two hour interview nonsense at $500 an hour!
Each State receives millions of dollars in grant funding to protect victims of violence. The states are hoarding the funds. The judges are to be trained on the dynamics of Intimate Partner Violence. They are not being trained. Web based trainings need to be developed with a pre and post test to measure competency of dynamics of violence and the harmful effects on survivors when judges are not trained in this serious and complicated matter. When a judge demonstrates mastery of the material, the state and the judge need to be held liable for any decision that is made which will further injure victims of Intimate Partner Violence.
If a person goes to court and states they were unaware of a law the Judge will state it was that persons responsibility to know the law and the accused will be punished accordingly. Judges are the only people who can violate the law and receive no punishment.
A Judge should be required to take an exam focused on the specific area of law they are judging and be accountable for their actions and inactions, as is implemented in all other areas of practice (After all, your physician passed his medical board exam, didnt he?). If the Judge unlawfully violates a persons rights, breaks the law, improperly implements the law, or does not judge the case according to the law there should be punishments for the Judge. Essentially, they should not receive the special privileges they are currently taking advantage of. By the way, do physicians go unpunished if they make a mistake and it is heard in a medical malpractice case? NO! They are held accountable by Judges but the Judge is not accountable for his action or inaction. Does that seem hypocritical?
AwesomeFun1, there is far more scrutiny of physicians than just malpractice cases. Insurance companies routinely profile you against your peers to see if you have a deviant diagnostic test and medication ordering pattern. Fraud auditors read your records to make sure that you did not bill for a 25 minute visit and only document a 15 minute visit – if the fraud auditor thinks you did not sufficiently document the visit time you billed for, the insurance company just takes back the overpayment. (Just try and get a lawyer to pay you back for inflated billable hours that do not have precise and sufficient documentation of the work done). Hospitals and hospital employees all look at your behavior and if you do not adhere to the code of conduct you can be reprimanded and required to take additional “training” or lose your hospital privileges. Some infractions of the code of conduct are “zero tolerance”, which means you do not get a chance to correct yourself.
So what??????? This may happen what, once or twice a year? Judges REUTINELY kidnap children away from their fathers by the thousands every year, year in and year out! THOUSANDS UPON THOUSANDS UPON THOUSANDS!
You rather weak argument is truly pointless and lets not forget; although a doctor MIGHT make a mistake here and there, it is an honest MISTAKE! Judges break the law on purpose and for MONEY!!! EVERY DAY OF THE WEEK, IN EVERY COURT ACROSS THIS PLANET!
Can you see how your argument falls flat. I thought you might.
Now get out your checkbook, it’s time to write another ‘mommy-support’ check so she can take her new boy-toy on vacation at your expense! Yup that’s right; she is LEGALLY allowed to spend your money on anything she wants, openly admitting none of it went to the kid. It’s totally legal, no accounting required, and you people are just fine with this?
They should be tested for competence. Also, they should be tested for integrity.
I think the entire case while in court should be recorded video,audio and stenographer in front of the bench. the whisper meetings in front of the bench and back room coffee and donuts shady deals and conversations in judges chambers also should stop or be recorded video,audio and stenographer. After all what do they have to hide? Suffolk County NY
Don’t you get….They all are UNTOUCHABLES from a basic good for nothing person to Congresss pee rs on AL, who all come from the same brotherhood. Creating billions for so called faceless entities of the System under the protection of f ed sin & we all live under the illusion we have democracy while under the disguise of Fund raising, any law can be created to suck up the lives of fools who are sucked into it
Judges should be tested on Ethics. Law schools should be tested on how well they communicated ethics or shut down!
The test should include a visit to my tent where my judge left me homeless and pennyless to see how am doing. We will then drive, on my scooter, ( he gave my bike to my ex to sell for peanuts and my car to my lawyer) to my to my house I used to own before we were married and try to pick up my three boys on my visitation day! Then we will all go visit my brother’s grave who was bullied to death by a judge.
PLEASE ASK THIS QUESTION:
Should your judges ride along with you to pick up your children on your visitation day?
Eradicate/abolish judicial immunity. See my website, http://www.falseallegations.com, on which the history of unconstitutional immunity is set forth. For the sake of judicial independence, judges may be allowed to be, specifically, repeatedly malicious and corrupt. Such outrage uttered by our U.S. Supreme Court circa 1880.
What about taking divorce out of the hands of lawyers and judges? Opposing lawyers do their best to make an already tense situation even worse. The more anger between the parents they create, the more money they make. Judges don’t seem to have to obey any laws and obviously don’t care about doing the right thing. Children are the most seriously hurt by this. Why let the divorce system financial devastate families? Why not use a mediator to work out a compromise both parents can live with and is in the best interests of the children?
Great idea, BUT…only the breadwinner and the more capable parent/spouse would look for fairness and sharing. The less capable parent/spouse is offered and incentivized by the system with child support that is tax free and spendable on anything until the child is 18 or 23 (or maybe forever if the child is handicapped), lifetime alimony based on the payor’s income, not the receiver’s “need”, a house the less capable parent would never be able to afford otherwise, and access to the payor’s post-marital bank accounts and retirement funds if the payor becomes unable to earn the income at the time of the divorce or the income some judge cna invent out of thin air and think the payor can earn. (Child support and alimony can be taken from anything you have that can be liquidated, even if it was yours before the marriage, or acquired after the divorce). The less capable parent/spouse is offered a life free from any obligation to earn a living and permission to conduct intimate relationships without adult responsibilities on either the paramour or the recipient of the court-ordered generosity
The only test a Judge should be made to take is a lie detector test. Judicial discretion is the root of the problem in many cases and it would be interesting in asking the Judge several questions on how he/she came to the conclusion of their decision. For example. The Judge I dealt with made a decision based on something that was neither incorporated in state statute (Florida) nor was it incorporated in my marital settlement agreement (MSA). One must ask how is this possible. Believe me it is if you are a Judge.
http://www.scribd.com/doc/228309373/Why-Family-Law-Needs-Reform-and-Why-The-Department-of-Homeland-Security-Was-Notified
Judges should be required to takea extensive battery of psychological tests that will weed out the worst who routinely violate other persons basic right of a fair and unbiased treatment. Most of them think they are God, but in reality they belong to the opposite side!!
There is no amount of tests or training that will deter a corrupt court system (judge) from being corrupt. This is not a gender issue. All genders -mothers, fathers and children alike duffer everyday at the hands of corrupt family court systems. The only way to ensure this is to 1) give judges term limits. 2) taking attorneys out of the court room and 3) take away custody mediators.
At the conclusion of reading an entire transcript and listening to an audio cd that a Circuit Court Trial Judge presided over, it is very concerning that any person in this jurisdiction would declare this Judge as fair & impartial. The court recorded and spoken words of this Judge, and his clear refusal to apply specific and required law before the court cannot be disputed. This Judge’s abhorrent and prejudice conduct was ever present and representative of clear Judicial Misconduct. Without full disclosure on the case here, the historical record this judge just cemented is now worthy of immediate investigation. Judges of this conduct must be recalled. They should not be provided an exam before hearing any case. Remember, you cannot control the morals or ethics of the Judiciary. Simply put, there are some who practice Honorably, and some who dishonor the law altogether.
The judge that heard my case was on the bench 9 days. She took a 6 hr course in Family Law prior to being appointed. She was a former prosecuter for the DA’s office. Its been 7 yrs and I am still living the nightmare. Mind you, I am a mother. The father is not a resident of this country. Pay off??