Often times, the staples of law are overlooked in domestic court. As a former domestic judge, I know that sometimes, although unintentional, in an effort to reach a practical, amicable and uncomplicated result, United States Constitutional issues can be overlooked. Indeed, such issues are often so mired in the myriad of acromonious issues, vitriolic conduct of the parties and concerns for the interests of any involved children that they are difficult to spot. Many citizens do not fully appreciate the glorious constitutional rights bestowed upon each of us individually. Moreover, many lawyers do not fully understand, or do not bother to think about, them. Worse yet, even judges fail to recognize constitutional issues mired in the myriad of acrimonious positions asserted before them.
First, a little history is in order. The First Amendment is part of "The Bill of Rights" (the first Ten Amendments collectively constitute The Bill of Rights), which was passed in 1891. The First Amendment states, in its entirety:
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
While many legal issues have arisen under the First Amendment, this article is going to focus on the right to free association and will be discussed in the context of family law. So, you are asking: “I just read the First Amendment. Where does it say I have a right to freely associate with others?” (This is a real question, which was actually asked by a real lawyer!). The United States Supreme Court has held “The First Amendment … restricts the ability of the State to impose liability on an individual solely because of his association with another” (N.A.A.C.P. v. Claiborne Hardware Company, 458 US 886, 919, 102 S.Ct. 3409 (US 1982)). “Thus, the First Amendment protects freedom of association because it makes the right to express one’s views meaningful” (Minnesota State Board for Community Colleges v. Knight, 465 US 271, 308, 104 S.Ct. 1058, 1070 (US 1984).
There are, of course, limitations on one’s First Amendment right to freedom of association (see Roberts v. United States Jaycees, 468 US 609, 104 S.Ct. 3244, 3260 (US 1984)) that held infringements on freedom of association “may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms”). For instance, if one could show that the opposing parents' significant other was a danger to the children, i.e. a convicted sex offender, habitual drug user, physically abused the children etc., then "the best interest of the child(ren)" would override any First Amendment privilege the parent may have in hosting his/her significant other while the children are present.
So, given the law enumerated above, is it correct for a nisi prius domestic court to enter a "be good" order requiring that neither parent have an overnight visitor with whom he/she is involved spend the night while in posessions or custody of the children - without a showing that the 3rd party is a danger to the child(ren)? Does it make a difference if the nisi prius order is enterered on a temporary basis pending divorce or in a final decree/post decree modification? Please comment!
11 comments:
What issue? Tell us! I will be glad to comment, but I need to know what specific constitutional issue you are addressing. MANY constitutional issues are ignored, because the Judges don't want to hear such "academic" issues, they want to "dispose of cases" on their docket.
The judges in Oklahoma county don't want to hear "constitutional" arguments. They don't understand them and don't care to understand them. The quality of lawyering is so LOW there that they have become acustomed to doing things a certain way - right or wrong - and just don't get the law.
I don't want to know constitutional law. That is why I practice family law and that is why you aren't a judge any more. You did know constitutional law and made us feel stupid.
Wow - whoever wrote your last comment represents the bottom of the barrell as far as attorneys go. If a family law attorney does not understand that family law encompasses constitutional provisions and concerns, he or she is an idiot and obviously cannot competently represent the best interests of his or her client. Obviously, we more frequently deal with constitutional arguments when dealing with criminal law - but guess what - that's about it. Family law is civil law - and family law litigants are afforded a plethora of constitutional protections in spite of what this uneducated attorney evidently thinks. Let's see - last time I checked family law litigants - like all other civil litigants = are afforded due process - perhaps they have removed that recently from the Constitution and I just haven't been informed yet. Last time I checked, family law litigants were entitled to the protections afforded in legal proceedings to the admission of evidence against them pursuant to the evidence code - which excludes a plethora of types of evidence to be used against a party - such as hearsay - which - oh yeah - prevents someone from being crucified by statements they are not entitled to cross examine regarding - oh yeah - the evidence code still extends a privilege against statements a litigant makes to his or her attorney - it's called attorney client privilege. I could go on and on here with a hundred similar examples - but I'm pretty sure it would go right over the head of whoever wrote that remark - as he or she has obviously given NO THOUGHT to his or her comment. I cannot imagine an attorney exists that is so stupid he or she does not understand that the Constitution ultimately affects every issue of the law - the document under which all caselaw and statutes are reviewed under by the Courts, and to which the Courts and legislature always strive not to violate. Too bad the stupid idiot who posted the last comment didn't list his or her name - I'd like to be able to educate the good people of Oklahoma City of the number one family law attorney they should AVOID using at all costs - as he or she evidently slept through law school and has no intellectual interest - much less an understanding - of the law.
The person who posted on September 16, 2007 is clearly an idiot and a disgrace to the profession of law. How in the world someone can say constitutional law does not apply to family law is shocking! Did you get your law degree from a correspondence school?????
Like the Judge said, it should be left up to the individual parent, unless the 'significant other' is shown to be a danger. That seems to me that the burden would be on the moving party - not the parent with the significant other - to show such a danger. The quantum of proof would probably be clear and convincing - although i don't know that, I say so because of the right(s) involoved. This is a pretty tough standard to meet. Now here is a question, is simply being "the same sex" lover a "danger" to the child such that the first amendment would, as the judge said, 'cede to the rights of the child(ren?" No sex or acts of affection in front of the child, no pedophilia, no inappropriate conduct, just the mere status. Is that enough?
Is it true that the OBA declined to publish this article just because "you" were the author???
Well, it is true that the OBA declined to publish a similar article written by me ... only they know the reason for their choice.
As a divorcing mother, my childrens' moral wellfare is more important than my husband's 1st Amendment right to be in a hottub with three women.
I want to know WHO the lawyer was that asked that question? Seriously.
Unlike some who are more than willing to use the internet to impugn the integrity and reputation of others, I will *NOT* publicly disclose that lawyer's identity. I'm sorry, but it just doesn't seem fair to me that one statement made, probably in haste, can result in harsh and perhaps even inaccurate conclusions of that person as a lawyer. I only shared it because it was not only funny, but unfortunately indicative of the vast majority of those who concentrate their practice in family law.
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