Dated: September 15, 1997
 
 
 
 

The Coalition for the Preservation of Fatherhood ("CPF") is a National non-profit membership organization devoted to the promotion and defense of the fundamental rights that fathers and children have in maintaining a meaningful parent-child relationship. In Massachusetts, there are approximately fifteen active chapters statewide. Members are united by one common purpose: To end State forced fatherlessness in divorce.

While it is explicit legal policy and law to maintain the children of divorce in the same financial lifestyle as in the marriage by making sure the mother and child benefit from the father's income, the father, himself, often is seen as of no value to his children, and insufficient provision or effort is made to maintain his rights, and his children's reciprocal rights, to a substantive parent-child relationship. That is why CPF stands for "Coalition for the Preservation of Fatherhood"...in divorce. The State forces fatherlessness of children with fit and willing fathers, and puts enormous barriers in their path when they seek to be fathers to their children.

William L. Bruce was Associate Dean and then Acting Dean of New York Law School, before retiring in 1988. Prior to that he was Assistant Dean and then Vice Dean of The Harvard Law School. He continues to be a member of the bars of Massachusetts and Rhode Island. As a career legal educator with a perspective of maintaining the health of the law which impinges upon our most fundamental Constitutional Liberties, he has a strong interest and stake in this case. It is his hope that this brief may be helpful to this Court in resolving the stark contradiction between the constitutional fundamentalness of child rearing liberties, and the almost total lack of due process protections for the liberty interests impinged by divorce.

Each of these concerns is implicated by the determination of this case. Divorce is almost universally a tragedy in the lives of children. But the answer to this tragedy, and the anguish it induces, is not to be found in the destruction of our basic guarantees of our Constitution. It is the position of the Amici that this is precisely what has happened in this case.

Perhaps the Supreme Court of Nebraska expressed the situation in divorce best. "'The proper rule in a divorce case, where custody of minor children is involved, is that the custody of the child is to be determined by the best interests of the child, with due regard for the superior rights of fit, proper and suitable parents' Schalk v. Schalk, 168 Neb. 229, 95 N.W.2d 547 ... The [divorce] statute does NOT make judges the guardians of all the children [of divorced parents] in the state, with power to take them from their parents, so long as the latter discharge their duties to the best of their ability..." Caporale v. Hale, 100 N.W.2d 847, 850 (1960).
 

STATEMENT OF THE CASE

This appeal is about the constitutional right of non-custodial parents and of the children to maintain a meaningful parent child relationship. The standard utilized in custody and visitation cases is the "best interests of the child." Great deference is always accorded the trial court judge in such determinations. Such a standard is entirely dependant upon the idiosyncratic values of the presiding judge. This means that each determination is unique and wholly dependant on which jurist decided the case, rather than any predictable rule of law. When dealing with such fundamental and primal concerns, such an ad hoc determination deprives all parties of what we have come to cherish, due process of law.

The Probate Court made its determination of custody and visitation, pursuant to a divorce. Jon, the sole child of the marriage, was born on November 14, 1985. The case was tried in November of 1993. The Judgment of Divorce Nisi and the Findings of fact and conclusions of law were entered in December of 1993. Sole legal and physical custody was granted to the mother and the father was granted visitation.

"Custody and visitation cases essentially involve salvaging operations. Judges are asked to preserve, as best as may be, the interests of any children involved, while at the same time disentangling their parents' spousal relationship. Under the best of circumstances it is a task requiring Solomonic judgment." Zummo v. Zummo, 394 Pa. Super. 30, 35, 574 A.2d 1130 (1990).⁽¹⁾
 

The father contends that the Probate Court's Order of custody and visitation deprives him of any meaningful parent-child relationship, and relegates him to the position equivalent to that of an uncle. He has retained no influence on the day to day life of his son. They get to visit together approximately one out of every six days.

The trial court findings depict two parents in conflict with each other and with radically different child rearing philosophies. Utilizing the best interest of the child standard, the Probate Court determined that the mother was more nurturing than the father, and that her philosophy of child rearing was more appropriate. Specifically, the trial court found that because of the inability of the parents to communicate with each other and their profound differences of opinion as to what is in the child's best interest, joint legal custody was impossible. The wife, as the primary custodial parent, was to make the decisions concerning education, religion, medical care, etc. which will best meet her child's best interest.

Family integrity and the sanctity of parent-child relationships are fundamental rights possessed by both parents and children. The context of a divorce does not alter the principle that the state may not impinge on such a fundamental right, absent it being necessary to further a compelling state interest, and that the least restrictive means are used to further that compelling state interest. When a substantial impairment of parental rights occurs, as a result of a court determination, the court's finding must be specific and detailed so as to demonstrate that close attention has been given the evidence. The specific facts found by the trial court must support the finding that the nature and extent of the impingement of the parent's right to participate in the rearing of the child is necessary to protect the child from harm.

Such factual circumstances may or may not exist in this case. The findings of the trial court are wholly inadequate to support its order depriving father from exercising any parental authority in decisions concerning education, religion, medical care, and recreation which will best meet their child's best interest. Imbuing a child with a sense of self, learning, cultural and religious values is the most significant right and obligation of every parent.

The passage of time has made the facts adduced at trial substantially meaningless, in serving the current needs and rights of Jon, and his parents. But the legal issues implicated herein, are of critical importance, bound to arise again and again, and were entirely left out of the trial court's analysis. There is also meager case law in this jurisdiction to guide this or any other trial court in determining these critical constitutional and social issues. The resolution of this appeal is critical for the Probate Court to properly determine on remand, the degree of participation each parent may have in the rearing of Jon.

1. Whether parents' rights to nurture, educate and imbue their children with their religious and cultural values is a fundamental right entitled to substantive and procedural due process protections under the Constitutions of this Commonwealth, and of the United States?
2. Whether a custody and visitation order made by a Probate Court, pursuant to a divorce, is state action?
3. What standards must guide our courts in fashioning custody and visitation orders that materially impinge on the rights of a child and parent to maintain a meaningful parental relationship?

The mother filed a complaint for divorce on October 7, 1987. The father was given visitation three weekends each month in a temporary order. In addition, father had visitation for one week day dinner a month, certain holidays, and for a summer vacation.

The father and mother were married on July 28, 1984. This was the mother's second marriage. Jon was born on Nov. 14, 1985. Mother and father never lived with each other as a "traditional family." Jon, eight years old at the time of trial, resided with his mother. Jon was in the second grade. His academic progress in the first grade was excellent in reading skills, and highly satisfactory in most other areas. Recent to the time of trial, Jon had difficulty connecting with school work and with his classmates. He chose to engage in only passive activities, such as watching videos and film strips. These parents have not been able to work out a satisfactory parenting plan and have been in continuous conflict. Jon shows signs of this stress. The child was having difficulty sleeping and had a long history of chronic stomach aches.⁽³⁾ Jon was diagnosed by a Dr. Chase, on Sept. 15, 1992 as having an adjustment disorder, with anxious mood.⁽⁴⁾

A guardian ad litem was appointed by the court on April 28th 1993. He filed report which initially recommended a modified form of joint legal custody. Subsequently he filed an updated report recommending legal custody be granted the mother. An attorney for the child was appointed on August 10, 1993. Jon expressed a preference that he continue to reside with his mother, that his father cease from requiring him to pursue a program of academic work, and visit with his father on alternate weekends.

The mother and father possessed fundamental and irreconcilable differences in their philosophy of child rearing. It was unlikely that they could make joint decisions on important or even mundane issues. Both parents requested sole legal and physical custody of Jon.⁽⁵⁾ The trial court found that the marriage being dissolved was never more than a formality since its inception. The relationship between mother and father was dysfunctional, and virtually nonexistent.

The trial court further found that both parents had legitimate grievances against the other. The mother had been the primary care giver for Jon since his birth. The court found her to be nurturing and able to provide the warmth and attention which Jon needed. Father was a more cerebral person than the mother, having attended Harvard law school and graduated from the Harvard business school.

The trial court apparently was left with the strong conviction that the husband through his various activities with his son, such as completing the sentence exercises on a nightly basis, taking him for interviews at over a dozen private schools, and lecturing him on the relationship between work and play time, was putting stress on an 8 year old which was oppressive and was depriving the boy of his childhood.⁽⁶⁾ The trial court found that the mother was much more in touch with the boy's feelings. The father was permitted to provide his intellectual stimulus when Jon is visiting him.

Because of the inability of the parents to communicate with each other and their profound differences of opinion as to what is in Jon's best interest, joint legal custody was determined to be impossible. The wife, as the primary custodial parent, is able to make the decisions concerning education, religion, medical care, etc. which will best meet her child's interest.

In its judgment of divorce the trial court granted sole legal and physical care and custody of Jon to his mother. The father received visitation on alternate weekends and alternate Wednesday's for dinner and a two-week summer vacation, as well as certain other holidays.⁽⁷⁾

SUMMARY OF ARGUMENT

1. A parent's right to rear and nurture his own children is well-established as a fundamental individual constitutional liberty, entitled to constitutional substantive and procedural due process protections. Before the state deprives a parent of all that parenthood implies, the requirements of due process must be met. Children are entitled to substantive parenting from both parents. Frequent and continuing contact with both parents is highly beneficial to the child both before and after divorce.

The use of a wholly indeterminate standard such as "best interest" raises fundamental questions of fairness, and largely removes the special burden of justification that is characteristic of other adjudications where a fundamental liberty interest is at stake.

Thus, ironically, child rearing liberties which, by long established Supreme Court case law are constitutionally fundamental, and are thus required to be protected by the highest levels of substantive and procedural due process, are, in divorce proceedings, given the absolute lowest levels of due process. This is so, even though the rights of one of the parents may be at severe risk of substantial impairment, up to and including a de facto termination.

2.The parent's right to rear and nurture his own children is well-established as a fundamental individual constitutional liberty, entitled to constitutional substantive and procedural due process protections. These rights and protections are equally implicated in custodial, visitation and guardianship proceedings. The fact that the State is not a party is not of material significance.

When a court impairs fundamental liberties in a civil suit, when the state is not a litigant, that court in the exercise of its authority and power is subject to the constraints of due process. When a rule of law places invalid restrictions on an individual's constitutional freedoms, it matters not that the law has been applied in a civil action, the test is not the form in which state power has been applied, but, whatever the form, whether such power has been applied.

A court may not impinge on the parent-child relationship by the imposition of an official decree without following traditional standards of substantive and procedural protections of due process. There is no principled distinction between a termination of parental rights (between private litigants or by the state), a guardianship proceeding, or a divorce proceeding. In a custody proceeding, pursuant to a divorce, a court is by way of an official decree, denying one or both parents of their ability to exercise their full parental rights and obligations.⁽⁸⁾

3. When the state impinges on a fundamental liberty interest, the standard to be utilized by a court is well established. The standard to be applied in cases where a parent and child are having their fundamental right to a parent child relationship materially impaired is that such impairment be necessary to further a compelling state interest. Their fundamental rights to association may be impaired no more than is necessary to further that compelling state interest. The impingement must also be the least restrictive means of furthering that interest. Additionally, the court must be required to set out in its findings, specific and particularized findings of fact, when it impairs the right of a parent to maintain a meaningful parental role.

In the context of an acrimonious divorce, there would seem to be three potentially compelling state interests. The first interest is that of dispute resolution, which resolution, in the instant case, involves no substantial danger of injury to the child, and hence, no constitutionally sufficient basis for materially impairing the fundamental liberty interest in the parent-child relationship. As part of this interest would be the prevention of any breaches of the peace. No such interest appears to be implicated herein by the court's findings of fact.

The second compelling state interest is in the prevention of any substantial harm to the child as a result of the conflicts between the parents. This interest is clearly implicated herein, but is not analyzed or subjected to the level of scrutiny required.

The third compelling state interest involves the protection of the child from injury as the results of either parents unfitness. The trial court has made no findings of parental unfitness on the part of either parent. Consequently, such an interest is not implicated herein. Thus the second interest of preventing harm to the child is the only compelling state interest implicated herein.

With respect to the states compelling interest in preventing substantial harm to Jon resulting from his parents inability to jointly work out a satisfactory parenting plan, the court made no specific and particularized findings as to what was necessary to prevent substantial harm to Jon. There was no analysis by the court of what would be the least restrictive means necessary to protect Jon from harm.

The courts have been left rudderless, and without any meaningful standards to follow, other that the vague and indeterminate dictates of the subjective interpretations of each trial judge's sense of what is best for the children. This runs counter to the philosophical and constitutional assumption that the parents, and not the state are to decide what is in the best interest of the children.

We submit that, within the context of custody and visitation disputes between parents, all parents come into court with the fundamental right to determine what is in the best interest of their children. The court is required to intervene, to protect children from the harm that may flow from the conflicts and stresses of a divorce. The court may, to the extant necessary to protect the children from harm, limit the full range of parental rights and obligations of parents. But, court imposed limitations may only be imposed to the extent necessary to protect the children from harm. The court must use the least restrictive means available to achieve those ends. It is only within this context that the courts can promote the best interests of children.

ARGUMENT

I. PARENTS RETAIN THEIR FUNDAMENTAL CONSTITUTIONAL RIGHTS TO MAINTAIN A MEANINGFUL PARENTAL ROLE IN THEIR CHILD'S LIFE IN THE CONTEXT OF CUSTODY PROCEEDINGS.
 

A parent's right to rear and nurture his own children is well-established as a fundamental individual constitutional liberty, entitled to constitutional substantive and procedural due process protections. See, Custody of a Minor, 375 Mass. 733, 379 N.E.2d 1053 (1978). It is well settled that parents are the "natural guardians of their children (, . . . with) the legal as well as moral obligation to support . . . educate" and care for their children's development and well-being. Richards v. Forrest, 278 Mass. 547, 553, 180 N.E. 508, 511 (1932). See, Purinton v. Jamrock, 195 Mass. 187, 199, 80 N.E. 802 (1907).

As such, it is they who have the primary right to raise their children according to the dictates of their own consciences. See, Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554-555, 54 L.Ed.2d 511 (1978), quoting from Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944). Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Indeed, these "natural rights" of parents have been recognized as encompassing an entire "private realm of family life which must be afforded protection from unwarranted State interference. Quilloin v. Walcott, supra 434 U.S. at 255 - 256, 98 S.Ct. at 555. Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 842, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977).

Before the state deprives a parent of all the parenthood implies, the requirements of due process must be met. Care and protection of Robert, 408 Mass. 52, 58, 556 N.E.2d 993 (1990). "The rights to conceive and to raise one's children' are 'essential ... basic civil rights of man ... far more precious ... than property rights." Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 3, 393 N.E.2d 406 (1979), quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972). "[The] loss of a child may be as onerous a penalty [to the parents] as the deprivation of the parents' freedom." Department of Pub. Welfare, supra, quoting Custody of a Minor (No. 1), 377 Mass. 876, 884, 389 N.E.2d 68 (1979). "The interest of parents in their relationship with their children has been deemed fundamental, and is constitutionally protected." Department of Pub. Welfare v. J.K.B., supra, 379 Mass. at 3. See Custody of Two Minors, 396 Mass. 610, 617, 487 N.E.2d 1358 (1986). However, notwithstanding the precious character of a parent's relationship with his or her children, the parent's interest is not immune from state intervention. "[T]he right of parents to be free from intrusion by the State in matters of child rearing is not absolute." Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, supra 383 Mass. 573, 421 N.E.2d 28 (1981). If a person is found to be an unfit parent, the State need not suffer custody of a neglected or abused child to remain with that person. "The State as parens patriae may act to protect minor children from serious physical or emotional harm. In some instances this may require a partial or complete severance of the parent child relationship." Id. at 587-588, 421 N.E.2d 28.

What is of striking contrast, in divorce proceedings, is the fundamentalness of the constitutional liberty interest at stake - the right to participate as a parent in the care, custody, and management of one's own children without state interference, as contrasted with the almost complete lack of substantive and procedural due process to protect these liberties with respect to often severe and unnecessary impairment by state power. Children are entitled to substantive parenting from both parents.⁽⁹⁾

Frequent and continuing contact with both parents is highly beneficial to the child after divorce. Felton v. Felton, 383 Mass. 232, 234, 418 N.E.2d 606 (1981) citing, In re Marriage of Murga, 103 Cal.App.3d 498, 503 (1980), quoting from Cal. Civ. Code Section 4600 (West 1981).

It is universally agreed that about 90 percent of all contested custody result in awards to the mother. In addition, the mother assumes custody in at least 90 percent of the divorce cases that never reach the courts. Miller, Joint Custody, 13 Fam.L.Q. 345, note 8, at 353-54 (1979). As one commentator has noted, "[i]n the usual pattern, fathers lose wife, home and children, and ends up with only visitation rights and support obligations. Some men become so overwhelmed by these difficulties that sooner or later they just give up and stop seeing their children." J. Jennison, The Search for Equality in a Woman's World: Father's Rights to Child Custody, 43 Rutgers L. Rev 1141, 1176 (1991), quoting Folberg & Grahm, Joint Custody of Children Following Divorce, 12 U.C. Davis L.R. 523, 555 (1979). One study stated:[Fathers] could not endure the pain of seeing their children only intermittently and by two years after divorce had coped with this stress by seeing their children infrequently although they continued to experience a great sense of loss and depression. J. Jennison, supra, at 1176.

It becomes clear that a simple adjudication of custody has far ranging implications in the lives of the subject children and in our society. A substantial number of children are growing up without a meaningful relationship with their father (or mother, in those instances where she is the non-custodial parent).

Felton v. Felton,383 Mass. 232, 418 N.E.2d 606 (1981) held that the non-custodial parent had the fundamental right to instruct his children in religious beliefs and practices contrary to the custodial mother's beliefs and wishes, absent a clear affirmative showing that it would be harmful to the children. This right of the father stems not only from the freedom of religious expression, but from the father's liberty interest in managing familial relationships. Id. at 233. The freedom of religious expression would have no relevance if the father did not have the underlying fundamental right to rear and nurture his own children.

The decision in Lange v. Lange, 175 Wis.2d 373, 502 N.W.2d 143 (1993), in contrast with decisions here⁽¹⁰⁾ and in other jurisdictions, restrained the father from passing on his religious beliefs to his children because the mother, with legal custody of the children, had sole right to make major decisions for the children, including the right to choose their religion. The Lange Court held that the Wisconsin statute deprived the father of his fundamental right to have input into the children's upbringing and values. The father could not interfere with the mother's selection of religion. The court relied upon the fact that the children appeared more accepting of the father's religious ideas than the mother's.

In Zummo v. Zummo, 394 Pa.Super 30, 574 A.2d 1130 (1990) the court, in an exhaustively researched opinion, provides an excellent survey of the cases and delineation of the rights in issue. See, Weiss v. Weiss, 42 Cal.App.4th 106,113, 49 Cal.Rptr.2d 339, 334 (1996). See also, Neely v. Neely, 737 S.W.2d 539 (Tenn. Ct. App. 1987). Both parents have a constitutionally protected right to the companionship, care, custody and management of the children they have raised, which undeniably warrants deference and absent a powerful countervailing interest, protection. Zummo v. Zummo, supra, at 42.⁽¹¹⁾ Even when sole legal custody is awarded to one parent, the non-custodial parent retains the right to maintain a meaningful relationship with his or her child. This solicitousness of the non-custodial parents' parental rights is in full accord with the developing constitutional jurisprudence in this area. The custody, care, nurture, and instruction of children resides first in its parents as a fundamental right. The statist notion that the government may supercede parental authority in order to assure bureaucratically or judicially determined "best interests" of children has been rejected as repugnant to American traditions. Id at 45-46. It is clear that constitutionally recognized parental authority is not extinguished by divorce. Id. at N. 14. The suggestion that parental authority is diminished vis a vis the government as the result of dissolution of the parents' spousal relationship would seem inconsistent with the constitutional right of parental authority even where a spousal relationship between the parents never existed. Id. at 48. "As harm to the children is the basis of the governmental justification for intervention, we cannot see how the marital status of the parent should affect the degree of harm to the child required to justify governmental intervention." Id at 50.

It would appear that it is almost universally agreed that in the context of a divorce proceeding, and in hearings determinative of child custody and visitation, that parents and children maintain a continuing constitutional right to a meaningful and substantial parent child relationship. Divorces are frequently a time of emotional turmoil and stress on all the family members. The courts are empowered to intervene in the sanctity of the parent-child relationship in order to protect children from emotional and physical harm. What is the difficult part of the analysis is the standards used to protect and accommodate these competing interests.

II. IN A CUSTODY OR VISITATION DISPUTE, A COURT ORDER INTERFERING IN THE PARENT-CHILD RELATIONSHIP OF EITHER PARENT IS STATE ACTION.⁽¹²⁾
 

"State action as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms. And when the effect of that action is to deny rights subject to the protection of the Fourteenth Amendment, it is the obligation of this Court to enforce the constitutional commands." Shelly v Kraemer, 334 U.S. 1, 20,68 S.Ct. 836, 92 L.Ed. 1161 (1948). Judicial action is to be regarded as action of the state for the purposes of the Fourteenth Amendment. Id. at 15.

The fact that it is a private party (the other parent), rather than a state agency, who is asking for impairment of a parent's fundamental right of parental authority by the state in a divorce proceeding does not alter the nature of the court's actions in denying fundamental substantive and procedural due process protections. In New York Times v. Sullivan, 376 U.S. 254, 265, 84 S.Ct. 719 (1964), the Supreme Court explicitly stated: "Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which Petitioners claim to impose invalid restrictions on their constitutional freedoms ... It matters not that the law has been applied in a civil action ... The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been applied."⁽¹³⁾ In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338 (1995) the Supreme Court held that this Commonwealth's Judicial enforcement of the Public Accommodation Statute, G.L. c. 272, Section 92A, which was constitutional on it face, was unconstitutional as applied by the court, when the Court's order violated the parade sponsor's First Amendment rights.

A termination of parental rights proceeding solely between private parties, was held to be the same as one initiated by the state, because the challenged state action was essentially the same, the imposition of an official decree extinguishing, as no power other than the state can, the parent-child relationship. M.L.B. v. S.L.J., 117 S.Ct. 555, N. 8 (1996). There as here, it is the official decree of the court which interferes with the fundamental right to the parent-child relationship. The Probate Court's determination herein, substantially interfered with the constitutionally protected parent-child relationship. Consequently, it must be viewed as state action.

III. A PROBATE COURT MAY ONLY IMPINGE UPON THE PARENT-CHILD RELATIONSHIP TO THE EXTENT IT IS NECESSARY TO PROTECT A COMPELLING STATE INTEREST.

Once this Court accepts the notion that the parent-child relationship is a fundamental and protected constitutional right, and that any order of a court which materially impinges upon that right is state action, the standard to be applied becomes susceptible to the usual constitutional analysis. In the context of a less than cordial divorce, there would seem to be three potentially compelling state interests.

The first interest is that of dispute resolution, which resolution involves no substantial danger of injury to the child, and hence, no constitutionally sufficient basis for materially impairing the fundamental liberty interest in the parent child relationship. As part of this interest would be the prevention of any breaches of the peace.⁽¹⁴⁾ No such interest appears to be implicated herein by the courts findings of fact.

The second compelling state interest is in the prevention of any substantial harm to the child as a result of the conflicts between the parents. The trial court appears to have found that Jon was harmed by the conflict between the parents. However, the court fails to articulate with particularity the nature and details of this conflict, or its causation of any resulting harm. The court has merely articulated that the parties have not been able to work out a satisfactory parenting plan, had been in continuous conflict, and Jon had shown signs of distress, suffering from stomach aches and insomnia.

The third compelling state interest involves the protection of the child from injury as the results of either parents' unfitness. The trial court has made no findings of parental unfitness on the part of either parent. Consequently, such an interest is not implicated herein.

With respect to the state's compelling interest in preventing substantial harm to Jon resulting from his parents' inability to jointly work out a satisfactory parenting plan, the court made no specific and particularized findings as to what was necessary to prevent substantial harm to Jon. There was no analysis by the court of what would be the least restrictive means necessary to protect Jon from harm. Nor was there any legal standard applied, except what that particular judge felt was best for Jon.

It is essential for courts to maintain the respect and trust of litigants. This is particularly so in the intimate and primal realm of familial matters. If trial judges are left to their own subjective instincts as to what is and what is not in the children's best interest, there will be no consistency or predictability in custodial determinations. See, Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996), which summarizes the state of the law as follows:

When determining child custody awards in general, ... the guiding principle always has been the best interests of the children. Rolde v Rolde, 12 Mass. App. Ct. 398 404, 425 N.E.2d 388 (1981). "The decision of which parent will promote a child's best interests 'is a subject peculiarly within the discretion of the judge.'" Bak v Bak, 24 Mass.App. Ct. 608, 616, 511 N.E.2d 625 (1987) quoting from Jenkins v. Jenkins, 304 Mass. 248, 250, 23 N.E.2d 405 (1939).
 

Predictability and expectations play a large role in the pre-trial resolution of matters. Vague, subjective standards undermine the process, and encourage unnecessary litigation.

Each party to the process, the mother, the father, and the children have the right to know the precise factual and legal underpinnings of the court's decisions. This is why decisions must be specific and detailed so as to demonstrate that close attention has been given the evidence. Care & Protection of Laura, 414 Mass. 788, 790 (1993). This is required in part, because, although on appeal the trial court's factual findings must be left undisturbed, unless clearly erroneous, the factual findings articulated in the decision must support the court's ultimate determinations. Adoption of Stuart, 39 Mass.App.Ct. 380 (1995).

If arbitrary and discriminatory determinations are to be prevented, laws must provide explicit standards for those who apply them. A vague law delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis. Village of Hoffman Est. v. Flipside, Hoffman Est., 455 U.S. 499, 498, 102 S.Ct. 1186, 1193 (1982). In the context of a care and protection proceeding pursuant to G.L. c. 119 section 24, the court in Custody of a Minor, 378 Mass. 712, 393 N.E.2d 379 (1979)upheld the language of the statute against a void for vagueness challenge, stating:

Although there may have existed some uncertainty at one time as to what kinds of evidence would justify removing custody of a child from its natural parent, "it is now clear that the Commonwealth may not attempt to force the breakup of a natural family without an affirmative showing of parental unfitness." ... Accordingly, State intervention is justified only when parents are shown to be incapable of fulfilling their duties as parents. This does *719 not mean that the State is free to intrude upon families simply because their households fail to meet the ideals approved by the community.

Rather, it is incumbent upon the State to prove that the parents suffer from " 'grievous shortcomings or handicaps that would put the child's welfare in the family milieu much at hazard.
 

For a state court to destroy a parent's substantive parental role with his children in a divorce proceeding, is to use a proactive projection of state power, which is in no way inherently required by the divorce itself. Yet Probate court judges in divorce are allowed to severely impair these liberties without even the level of justification required before a driver's license were being taken from a parent, instead of his child. The use of a wholly indeterminate standard such as "best interest" raises fundamental questions of fairness, and largely removes the special burden of justification that is characteristic of other adjudications where a fundamental liberty interest is at stake.

Thus, ironically, child rearing liberties which, by long established case law are constitutionally fundamental, and are thus required to be protected by the highest levels of substantive and procedural due process, are, in divorce proceedings, given the absolute lowest levels of due process. This is so, even though the rights of one of the parents may be at severe risk of substantial impairment, up to and including a de facto termination.

The parents and children enter into a divorce proceeding with the fundamental right to family integrity. This right is in no way abrogated between parent and child, merely because the parents seek to dissolve the legal bonds between the parents.

Even fundamental rights are not absolute. Although the interest of parents in their relationship with their children has been deemed fundamental, and is constitutionally protected, Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 3, 393 N.E.2d 406 (1979), parents do not have unlimited rights to make decisions for their children. Parental rights "do not clothe parents with life and death authority over their children." Custody of a Minor, supra. See Prince v. Massachusetts, 321 U.S. 158, 166-167, 64 S.Ct. 438, 442-43, 88 L.Ed. 645 (1944). But when protecting a child, the state may not substitute its own judgment for the parents. Harm to the child from conflicting religious instructions or practices, which would justify such a limitation, should not be simply assumed or surmised; it must be demonstrated in detail. Felton v. Felton, 383 Mass. 232, 233-234, 418 N.E.2d 606 (1981). The standard set in Felton was that harm to the child from the parents conflicting parenting which would justify such a limitation, should not be simply assumed or surmised; it must be demonstrated in detail. Id. Felton is a case about religious freedom, only insofar as, both parents have the protected liberty interest in managing familial relationships. Absent the parental-child right to a meaningful parent-child relationship, the freedom of religious practice would have no relevancy in Felton. Therefore each parent's right to maintain a full and meaningful parent-child relationship should be impinged, only to the extent necessary to protect the child from harm.

This Court should remand this proceeding for a determination of custody pursuant to annunciated standards consistent with due process of law.

Respectfully submitted,
 

COALITION FOR THE PRESERVATION OF FATHERHOOD
ERIC S. MAXWELL
(BBO No. 557787)
112 Shawmut Avenue
Boston, MA 02118
(617) 357-5800

WILLIAM L BRUCE
(BBO No.061660)
C/O LAW OFFICES
 OF ERIC MAXWELL
112 Shawmut Avenue
Boston, MA 02118
(617) 357-5800

1. Although Solomon merely had to determine the infant's rightful mother, courts are compelled to deal with two rightful parents, both of which may be totally fit and loving. They are required to make their determinations with little more guidance than the notion of the best interest of the child. A vague and subjective standard, yielding results highly dependant upon the personal idiosyncratic values of the particular jurist hearing the case. The standard of review is highly deferential.

2. '

3. It is unclear, from the Probate Court's findings, whether these symptoms occurred when Jon was with the mother, the father, or at all times.

4. This finding appears from the decision to be based solely on notations made in Jon's medical file. There are no findings that link the adjustment disorder, or difficulty in school with an specific stressors.

5. The current structure of the system is designed in such a way as it encourages custodial parents to create as much parental strife as possible, to be rid of the non-custodial parent, and to encourage the non-custodial parent to seek sole custody in order to maintain any meaningful parent-child relationship.

6. Other jurists might consider the father's action in a more positive light.

7. His visitation with his son was sub-stantially reduced.

8. This is not to deny reality, and the obvious need of the courts to decide such issues, but merely to observe the reality of state action.

9. See, H. Robinson, Joint Custody: Constitutional Imperatives, 54 U. Cin. L. Rev 27, 40-41 (1984) "This fundamental right follows from each parent's fundamental right of parental autonomy, and it protects the emotional parent- child relationships that were developed during the marriage.

Read together, the cases clearly establish a zone of privacy around the parent-child relationship, which only can be invaded by the state when the state possesses a sufficiently compelling reason to do so. As a result, when marital breakdown occurs, both parents are entitled to constitutional protection of their right to continue to direct the upbringing of their children through the exercise of custody."

10. In this Commonwealth, our constitutional guarantee of due process extends further than those recognized by the United States Supreme Court. Moe v. Secretary of Administration And Finance et al.,382 Mass. 629,649, 417 N.E.2d 387 (1981).

11. There is also evidence that shared parenting options lead to increased child support compliance by fathers. Zummo v. Zummo, supra. at 44.

12. That any custodial or visitation order constitutes state action impinging the fundamental rights of family integrity seems implicit in the analysis of the foregoing section. This section will only deal with a few of the decisions treating court determinations in civil disputes as state action.

13. It is important to note that we do not in any way challenge the constitutionality of G.L. c. 208, Section 31 which provides that "the happiness and welfare of the children shall determine their custody." It is our contention the best interest standard as articulated by the statute, must be interpreted in conformance with priciples of due process, and in a manner that would avoid the pitfalls of unbridled judicial discretion. See, Custody of a Minor, 378 Mass 712 (1979). See also, Felton v. Felton, supra.

14. Such an interest could be intimately intertwined with the need to protect the child from harm. See,