Singular Values: August 2005

Wednesday, August 31, 200

This Michigan story has more on the soldier who lost his son while fighting in Iraq:

In a recommendation, court referee Louis Belzer expressed concern over e-mail correspondences between the McNeilly and his son during his time in Iraq.

Belzer said the e-mails display a much different relationship than a typical parent-child relationship, and more as a "counterpart to share his military adventure."

Belzer wrote, "I also question the nature of some of the correspondence relating to how to kill people in multiple ways and then indicating that 'next time someone touches you and leaves bruises on you, I'll be ready.' "

Belzer said McNeilly seemed more of the disposition to be a friend and buddy rather than a parent.

These are absurd reasons for taking a son away from his dad and denying the dad his fundamental rights. Louis Belzer should never be allowed to testify in family court again.

Iraq duty cost him custody of son

Michigan news:

Army National Guard Spc. Joe McNeilly hasn't been the same since he returned from Iraq in March.

But it's not flashbacks to explosions and injured soldiers that haunt him most. It's that he lost shared custody of his 10-year-old son while he was serving his country.

"You want to make a soldier cry, you take his son away," McNeilly, 33, of Grand Ledge, said last week as he blinked back tears. "It's devastating."

McNeilly believes he lost custody of Joey because he was in Iraq for 15 months.

... a report from the May hearing says the court favors Joey's mother, Holly Erb of Mason, because she was the "day to day caretaker and decision maker in the child's life" while McNeilly was deployed. ...

The report says that McNeilly treats his son more like a friend than a son, and "sees the child as a counterpart in his military adventures."

It also questions some of McNeilly's correspondence to his son while on active duty.

McNeilly said one postcard showed a soldier holding a gun. Another showed a soldier spearing a tire as if it was an enemy.

The court report says McNeilly also told his son how to kill people in multiple ways, and that he wrote his son "the next time someone touches you and leaves bruises on you - I'll be ready."

Yes, it does sound like the soldier is losing his son, and the son is losing his father, just because he is a soldier. It is entirely appropriate for a soldier at war to send his son a postcard showing a soldier holding a gun. The anti-male bias of the courts is frightening.

The core of the problem is that the mom took advantage of the soldier's absence to get a court-ordered $525 per month. If she allowed the son to be re-united with his father, then she would lose that $525 per month. The "best interests of the child" is just a smokescreen to allow the greedy mom to keep cheating her ex-husband, even if it also punishes her own son. A man should not be punished for serving his country.

Update: I just got a nice note from Spc. Joe McNeilly himself, along with some pictures of him with his son. He is trying to get a change to the Michigan law so other soldiers are not similarly punished for serving their country.

Monday, August 22, 2005

Best interests of the child

I've been looking into the so-called "best interests of the child" standard for making family court decisions. It is commonly used in statutes and court opinions. Sometimes the phrase uses "interests" in the singular and sometimes in the plural. Technically, these would mean different things, but no one distinguishes them, so I won't either. I'll just call it BIOTC.

John writes:

BIOTC did not come out of the blue. It was a legal "term of art" that dated back at least 200 years to Blackstone, who said parents are presumed to act in their child's best interest.

IOW, BIOTC is just another way of expressing the principle (which also dates to Blackstone) that parents have a fundamental right to the care, custody, and companionship of their children, and to direct their child's upbringing, education and religious training.

BIOTC is not a separate principle, it is part and parcel of parental rights (a natural right or substantive due process concept) recognized by the U.S. Supreme Court in a string of cases from Meyer (1923) and Pierce (1925) through Parham (1979), Santosky (1982) and Troxel (2000).

IOW, the BIOTC is whatever the parents say it is.

Of course, a presumption can be overcome with a proper showing. Even a fundamental right can be overcome in extreme cases where a parent is found to be unfit. But unless and until a parent is found (after due process) to be unfit, a parent has the right to determine the best interest of his or her child.

But family courts today seem to mean something different. They use BIOTC to mean the opinion of putative experts who may know nothing about the wishes of the parents. But the phrase is just a smokescreen. The interests of the child are never defined, and there is certainly no analysis of what would be best. I cannot find any example of where any court actually ruled based on some legitimate BIOTC analysis. Either it assumes that the parents will act in the BIOTC, or it relies on some putative expert who is not really an expert at all.

I have come to the conclusion that BIOTC is one of the worst ideas in the history of human civilization. Never have I seen an idea that was so uncritically accepted among the public, and yet so utterly bogus. It is just a license for some authority figure to do whatever he wants. No good has ever come from the concept.