1857, the US Supreme Court declared in the Dred Scott
decision that Scott had no standing to bring the case, and
that "a black man has no rights a white man need
respect." Yesterday, in deciding Elk Grove Unified
School Dist. v. Newdow, the US Supreme Court ruled
that noncustodial parent Michael Newdow has no standing,
and that a noncustodial parent has no rights a court need
respect. Since most of America's 14 million noncustodial
parents are fathers, the court's decision represents an
exceptionally bitter Father's Day gift.
Perhaps most importantly, Elk Grove places children
in harm's way by limiting the ability of noncustodial
parents to use the legal system to protect their children
if the custodial parent is unable or unwilling to do so.
For example, in a pending Illinois case, an elementary
school girl suffers from a life-threatening medical
condition which requires a medical procedure. The
procedure, though standard, violates the custodial
mother's religious beliefs. The girl's noncustodial father
has gone to court to force the mother to accede to the
lifesaving operation. Now, in the wake of Elk Grove,
unless the father can win custody, the judge may be
compelled to rule in favor of the mother, to the serious
detriment of the child.
In another pending Illinois case, a noncustodial father
seeks to take legal action both against a baby-sitter who
allegedly molested his son, and against the agency that
placed his son in this baby-sitter's care. However, the
custodial mother, apparently because of her hostility
towards the father, has refused to consent to the filing
of the lawsuit. Under Elk Grove, unless the father
can win a substantial modification of custody, the father
has no standing to file the lawsuit without the mother's
consent. As a result, his traumatized son may be deprived
of a potential damages award which is needed to pay for
therapy, and neither the alleged molester nor the agency
will be held responsible.
Elk Grove will make it more difficult for
noncustodial parents to hold negligent schools, daycare
centers, doctors, hospitals, sports coaches, and others
accountable for harming their children.
The court's ruling also highlights the hypocrisy of the
current public policy and discourse on fatherhood, wherein
men are lectured to take responsibility for their children
while at the same time courts and lawmakers frequently
disregard their right to play a meaningful role in their
children's lives. Many believe that the court used the
issue of standing as a way to sidestep having to make a
decision on the thorny issue of the pledge. Evidently
noncustodial parents are of such little concern that the
court found it more expedient to undercut their rights
than to decide the pledge case.
Elk Grove will also fuel damaging and costly
custody battles. Millions of divorced or separated fathers
have declined to fight for custody because they did not
want to put their children in the middle of a conflict, or
because they wanted to respect their children's bonds with
their mothers. These dads are fit parents and are an
important part of their children's lives, yet by declaring
that noncustodial parents have no standing, the Court has
seriously undermined their parental rights.
It will now be more difficult for parents to preserve
their rights without expensive and sometimes gut-wrenching
custody litigation, and the family court system will
become even more adversarial. An average custody
battle--one without accusations of abuse or visitation
interference, and one in which both parents are relatively
civil--often costs $25,000 or more. This decision
aggravates the problem of divorcing parents financially
supporting attorneys instead of their children.
By upping the ante on winning custody, Elk Grove
may also increase the number of divorcing parents who use
false allegations of sexual abuse, domestic violence, or
child abuse as weapons in custody battles.
The lasting legacy of Elk Grove will have little to
do with the Pledge of Allegiance or the battle between
atheism and religion that is now the public's focus. It
will instead be a legacy of pain, both for children of
divorce and for the noncustodial parents who love them,
and who in many cases will now be legally constrained from
acting in their best interests.