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Preponderance of evidence is a commonly used legal standard in family law courts in Western nations including the United States. But in the United States, it is a violation of the US Constitution Fourteenth Amendment due process protections to use such a low evidentiary standard for child custody decisions. Unfortunately, contrary to the US Supreme Count decision, many courts and government agencies routinely violate or bypass the law with impunity for their abuses.

Family Law Courts

Family law courts routinely operate by preponderance of evidence standards, as do many civil courts. The US Supreme Court decision in Santosky v. Kramer places in doubt the legal validity of such a low evidentiary standard in family law courts in regards to child custody decisions. As the US Supreme held in a 5-4 decision, child custody decisions should be made by clear and convincing evidence standards, particularly in cases in which permanent child custody decisions are being made. Failure to apply such evidentiary standards is a violation of the Constitution’s 14th Amendment by violating the due process of law protections afforded to citizens.

Yet despite clear and convincing evidence standards required by the US Constitution and the Supreme Court, it is typical for family law courts to deviate significantly from 50/50 custody division of children in divorces without evidence approaching this level. Due process is supposed to apply to all US citizens. A bias towards parents based upon gender appears to be a fundamental violation of due process requirements. While it may be very difficult to arrive at workable plans to achieve an exact 50/50 custody split, if both parents are interested in 50% or more time with their children then it appears it is a violation of law to assign custody significantly deviating from 50/50 without clear and convincing evidence to guide the decision.

Government Child Protective Services Agencies

In the case of actions by government CPS agencies to suspend, remove, or terminate child custody, these agencies can violate the 14th Amendment by multiple means. They may bring a case into court and fail to show clear and convincing evidence, but still “win” because the parent or parents don’t have the resources to fight the government.

When they know they can’t win in court because the parent or parents have the will and resources to fight, they can use alternative means to subvert the law. One tactic they use is to keep such cases out of court because they know they cannot show such evidence because it doesn’t exist. By doing so, they can enforce their will without a court order often for many months or years as parents are stymied by misinformation and manipulation from the social workers involved in these abuses of power.

Frequently the parent or parents who are deprived of access to their children by such illegal actions are caught up in the throes of a divorce or otherwise financially unable to mount a case against the government to get their children back. So they try to work through the system, only to hit roadblock after roadblock as the government agencies involved go to great lengths to be unaccountable and to block any questioning or investigation of their incompetent and/or biased actions and abuses of power.

Such abusive and illegal actions may persist for years, with no adverse impacts upon the CPS social workers and agencies that broke the law. When the parent or parents finally out of desperation start litigation, they are guaranteed to be severely financially harmed on top of the emotional and psychological damage already inflicted on their children and them. Usually there is little recourse. Even when they win a victory and get their children back, much damage has already been done and the consequences for the abusive social workers are nonexistent.

Need for Remedies to Abuse of Power

The government has far superior resources to anything an individual parent short of a billionaire can bring to bear on a case. Worsening matters, the government and its employees are wrongly shielded by immunity laws. This is yet another indication of how “justice” for Americans is whatever the government decides it is except for the tiny minority of wealthy families that have the means to fight government oppression. Sadly for Americans, “money buys justice” and “might makes right” are largely accurate assessments of the current state of affairs with regards to child custody decisions.

There is a strong need for mechanisms in the law and government oversight systems to assist parents in going after judges, courts, social workers, government agencies, and others who violate or conspire to violate 14th Amendment due process rights.

The situation is made worse by immunity applied to judges and government employees who break the law. It has been said that immunity fosters abuse of power. It is time that the citizenry put some teeth into 14th Amendment protections by pushing politicians to strip government employees of immunity and create the means for individual citizens to go after government employees who have broken the law with financial and investigative assistance from a separate part of the government that will be more objective because its workers were not involved in the abuses of power being contested. Until both of these measures are taken, there is no realistic hope for justice in most child custody decisions in which the government is entangled and engaged in abusive conduct.

Citizen government oversight groups such as grand juries have argued for changes in the law to eliminate absolute immunity. Unfortunately, little progress has been made in this area even though the need for it has been recognized for more than a decade, as this 1992 letter from the San Diego County Grand Jury to the California legislature indicates:

Absolute immunity fosters these wrongs and then when the system has wrought devastating financial and personal harm on individuals and families, leaves them no recourse. More significantly, however, absolute immunity promotes societal damage by removing any deterrent to repeating these same types of activities, thereby removing a primary incentive for change.

It is the view of the Jury that it is ultimately the children of California who have been most damaged. We have seen the results of the adoptions which must be undone, the relatives still seeking their children, the throw-away children on the streets, and the extraordinary costs of this system to the taxpayers.

This can not be totally rectified by this legislation but it will mean some accountability among the line social worker and every Department head. It will allow the system to purge itself of the the social worker who abuses power and leave in place those who are the willing to live within the standards of law. This highly sensitive and very vulnerable area of social service is not the place for the abuse of power.

Not much has changed since this 1992 letter. It is not in the interests of government social services agencies and their social workers to be accountable in any way. Every attempt to improve the system is countered with excuses about a lack of money or staff or that children “won’t be protected” if such changes are made. So the government continues to have too much power and the citizens too little. Meanwhile, children’s lives are destroyed and parents are persecuted by the abusive bureaucrats in agencies that operate outside of the law.

Further Reading

Tennessee Child Custody Case Invokes 14th Amendment

CPS Social Worker broke US Constitution 14th Amendment

San Diego County Grand Jury Letter Regarding CPS Abuses

SUPREME COURT OF THE UNITED STATES:
455 U.S. 745
Santosky v. Kramer
No. 80-5889 Argued: November 10, 1981 — Decided: March 24, 1982

Santosky v. Kramer

John Santosky v. Bernhardt S. Kramer, 455 U.S. 745 (1982)

Law Encyclopedia: Preponderance of Evidence

Law Encyclopedia: Clear and Convincing Proof

Wikipedia: Burden of proof