Newdow redux

Michael Newdow must be wondering when his 15 minutes of fame will end. He successfully convinced the 9th Circuit Court of Appeals that reciting the Pledge of Allegiance in public schools was unconstitutional because of those two little words, “under God.” The court’s decision kicked off such a national debate that Newdow was quickly catapulted into the public eye as California’s celebrity atheist—and, in some cases, public enemy No. 1. But the enemy of some religious American parents, lawmakers and judges has weathered the criticism, and he’s ready for more.

As public debate died down under the imminence of upcoming appeals, Newdow continued to formulate new constitutional challenges. The one closest to his heart targets the Family Code, a California state law that regulates how judges should decide on custody and visitation for separating parents.

The code, finalized in 1994, formalized what is known as the “best interests of the child” standard. With this standard in place, family law judges are obligated to consider the opinions of both parents, the mediators and the family attorneys involved in the case and then come to a conclusion that ultimately serves the best interests of the children. The needs of the parents, by state law, must be a secondary consideration.

“Totally unconstitutional,” said Newdow, a physician who passed the Bar and now acts as his own lawyer. A quick-thinking man who loves a good debate, Newdow kept busy while he talked—running errands and keeping at least two trains of thought on track at all times. A varied collection of toys and small items of clothing were lying around his home in South Sacramento, as if recently abandoned on tabletops and couch cushions. He currently enjoys only one weekend visit every two weeks with his young daughter.

To prove his claim that the “best interests of the child” standard is unconstitutional, Newdow referred to the equal-protection clause of the 14th Amendment, which says that laws must be applied equally to citizens “similarly situated.” Though the state might argue that parents and children are not similarly situated, Newdow maintains that when judges are determining whose rights to protect, they can’t legally favor the children’s over the parents’. To make his point, Newdow quoted from a judge who said that he didn’t care about being fair to either Newdow or the child’s mother; he only cared about the child’s best interests.

“When two parents come to you in a court of law,” said Newdow, “and you say you don’t care … that’s unconstitutional.”

The fact that Newdow did not have legal custody of his daughter didn’t stop him from bringing the Pledge case on the girl’s behalf. The case has remained in the public eye partly because the girl’s mother made a public statement that, as sole legal guardian, she didn’t think her Christian daughter was at all harmed by reciting or hearing the Pledge in school. Regardless, it was decided that Newdow still had the right to pursue his case on constitutional grounds.

Though the “best interests of the child” standard worked against Newdow, the courts use it to successfully resolve a majority of custody cases. Many families go through mediation, hammer out a custody plan that serves the child, agree to it and never need to return to court again. But studies conducted by the Center for Families, Children and the Courts found that custody cases are becoming increasingly complex. In 1996, 26 percent of all cases in mediation were returning to court to argue about the visitation and custody details of their previous court order. And, in 51 percent of mediation sessions, “parents raised concerns about physical or sexual child abuse, child neglect or abduction, substance abuse or domestic violence.” The number of custody cases is also increasing. Between 1987 and 1996, the custody caseload in California had increased from 49,500 to 84,500.

Newdow, who seems one part furious and one part bewildered over the limited time he has with his daughter, believes the whole standard on which custody cases are decided needs fixing. By interpreting previous Supreme Court decisions, Newdow thinks he can prove that a 50-50 custody arrangement between the two parents is the only fair ruling. Though the Constitution doesn’t include an amendment that secures the right to parent, the Supreme Court has upheld parenthood as one of the fundamental rights, like abortion, or the right to work, that are supported by the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

In a written argument, Newdow quoted from the Supreme Court’s decision in Troxel v. Granville: “The interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this court.”

If one agrees that parenthood is a fundamental right, then 50-50 is the only fair way to uphold both parents’ constitutional rights, reasoned Newdow. Only if one parent has become a proven danger to the child’s health or safety should anything other than 50-50 custody occur. And where does Newdow get what he might call his own “health and safety” standard? From the rules that govern parents outside the courts.

All parents are legally obligated to protect the health and safety of their children, but that’s all they’re obligated to do. They are legally free to parent as they wish, to use varying levels of nonviolent discipline and to teach their children anything they want, which leads Newdow to another point.

It’s unconstitutional, Newdow said, to hold parents involved in a custody case to different standards than any other parent. For instance, parenting styles differ. One parent fighting for custody may be more of a disciplinarian than the other. If that works against him in court, and he loses a portion of custody, then that parent has been held to a different standard than the disciplinarian in the regular world, where such behavior is not illegal in any way. Equal protection under the law, Newdow said, should keep the Family Court judges from judging the parents on anything but the health and safety standards by which all parents are judged.

Beyond its questionable constitutionality, Newdow finds the “best interests of the child” standard so vague as to be almost unenforceable. There’s no formula or specific criteria for determining “best interest.” What elements of a parent’s behavior are to be judged? How can the courts tell if a parent’s behavior, as long as it doesn’t threaten health or safety, can be good or bad for a child in the long run?

Were the standard clearly defined, said Newdow, he might still have shared custody of his daughter. There were no allegations of abuse, said Newdow, and he doesn’t think the child’s mother proved he was a bad father. Newdow believes that if the court had used specific criteria to determine who was a good parent, he would have won on the details.

Because the courts traditionally have favored maternal custody, based on the assumption that mothers are the primary caregivers, fathers often receive limited custody, especially when a 50-50 split would mean a child would move from one household to the other constantly without a consistent place to call home.

Family Court judges, according to Kim Pederson, public information officer for the Sacramento Superior Court, are obligated to use the standard put forth by the Legislature; they did not make the law. They only work within its bounds, which means they must rule based on the best interests of the children. To help them, they listen to the opinions of the mediators and other mental-health professionals who spend time with the family and try to understand the family’s dynamic. Those are the tools that help judges make the difficult decisions they face in court every day.

Only a parent can know what’s in the best interests of his children, said Newdow. As the father, Newdow shouldn’t have to defend his right to parent; the court should have to prove that he’s unfit to parent. If the state can’t prove that he’s a danger to the health or safety of his daughter, he believes he should immediately receive 50 percent custody of her.

Though Newdow’s constitutional challenge may have some bearing on the future of Family Court law, it will have to wait until Newdow concludes his own custody case, which is still under way after three years, he said. But the physician-turned-lawyer is convinced that he has a greater chance of winning his case against the “best interest of the child” standard than he did the Pledge case.

Legal professionals might disagree. Parents give up some measure of their rights when they come to court, said Claire Buckey, who insisted that she was giving her own opinion and did not speak for the Family Law department of the Sacramento Bar Association, for which she is the chairwoman. Parents, she said, always have the right to forge some private agreement outside of the courts. But, by going into the courts, parents are saying that they can’t agree on a custody plan themselves and want the courts to decide for them.

As for whether or not the courts have the right to take custody away from one parent, that right and obligation is outlined in Family Code section 30.22: The court may “make an order for the custody of a child … that seems necessary or proper.”

But, if the courts began with the idea that each parent deserves 50 percent custody of a child, said Newdow, and only changed that standard if there were an issue such as child abuse, they could limit the acrimony between the two parents. Newdow said he’s pretty sure that everyone would agree, whether they were in the legal profession or not, that two parents acting as partners rather than enemies would ultimately serve the child’s best interests—as well as the parents’.