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Lawyer Who Fought Pledge Assails Courts on Custody PDF Print E-mail
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Written by Leslie Eaton   

He became famous this year for arguing his own case before the United States Supreme Court, in what onlookers described as a spellbinding (though ultimately unsuccessful) challenge to the reciting of the Pledge of Allegiance in schools.

Now Michael A. Newdow is taking on a new target: family law and the way it handles child custody. "It's outrageous, it's inane," he said. "It ruins lives." And, he argued, it tramples on basic constitutional rights.

Dr. Newdow, a lawyer and emergency-room physician, made his first public presentation on this topic yesterday at New York Law School. He spoke to a group of law professors and students invited by Nadine Strossen, the president of the American Civil Liberties Union.

In a passionate, rapid-fire speech that lasted more than an hour, Dr. Newdow described problems with the family-law system, which makes custody decisions based on the "best interests of the child."

But that is "a meaningless standard which you can't fight," Dr. Newdow said. Which is best for children, he asked, to teach them to be generous or to teach them to be stingy? To spend time on Shakespeare or on baseball?

"Which is better? We don't know," he said. And there are no valid studies that answer the question of what is best for children, he said. Instead, judges simply impose their own biases about what they think is best, with no checks or balances.

In addition to being unconstitutionally vague, Dr. Newdow said, the best-interests focus puts the rights of children above the rights of parents, which is inequitable.

Courts say they are not concerned with parents, only with what happens to children - but that does not square with rights to due process, he said. "Judges actually verbalize this: 'I'm not going to be fair to you.' " And the legal system does not treat parenthood as a fundamental constitutional right, even though the Supreme Court has described it as "perhaps the oldest of the fundamental liberty interests we have," Dr. Newdow said.

For many parents, he said repeatedly, being separated from their children is "worse than rape."

Dr. Newdow stressed that he believes the government has the obligation to protect children from harm. But absent abuse or harm, he argued, the government should not impose conditions on parents who are before the court that it would not impose on intact families, like telling parents where to live or how to behave.

The solution Dr. Newdow proposes for many of these problems is a presumption that parents should share custody evenly.

That proposal is popular with fathers' rights groups, which are trying to have it adopted by courts and legislatures around the country, arguing in part that it is better for children to have both parents involved in their lives.

Psychologists generally agree in cases where the parents can cooperate, but raise concerns about joint custody's effect on children where the parents are engaged in constant strife. And some experts warn that parents who insist on a strict division of custodial time are less interested in what is good for children and more interested in lowering child support payments or in controlling their former spouses.

In New York, court decisions have held that joint custody is inappropriate in so-called high-conflict cases.

But Dr. Newdow argued that the fundamental unfairness of current custody law increased the conflict.

In June, the Supreme Court ruled that because Dr. Newdow did not have legal custody of his daughter, he did not have the standing to challenge the constitutionality of the daily recitation of the Pledge of Allegiance at her school. An atheist, Dr. Newdow had argued that the "under God" phrase in the pledge violated the separation of church and state.

 



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