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Non-Custodial Parents SUE!
To sign the class-action petition, go to
The movement now has suits filed in 44 states, with three more states
and Puerto Rico in the works!
Across U.S., Non-Custodial Parents Sue
Wednesday, September 29, 2004
By Wendy McElroy
At least 28 federal class action suits in 28 states have been filed in
the last two weeks on behalf of non-custodial parents (NCPs). The
defendants are the individual states.
The plaintiffs claim to represent an estimated 25 million non-custodial
parents — primarily fathers — whose right to equal custody of minor
children in situations of dispute is allegedly being violated by family
courts across the nation.
Family law is traditionally a state matter, but the federal government
has assumed greater control in the area over the last few decades. Thus,
the plaintiffs are appealing to the Constitution, U.S. Supreme Court
precedent and acts of Congress "to vindicate and restore their various
In short, federal law is being asked to trump state practice in custody
According to the suits, state practices appear to be "willful, reckless,
and/or negligent fraud, deceit, collusion, and/or abuse of powers" with
a "systematic pattern of obstructing, hindering, and/or otherwise
thwarting the rightful and lawful conclusion of due process" of non-
custodial parents in child custody proceedings.
In particular, fathers protest the widespread practice of almost
automatically granting sole custody to mothers in divorce disputes.
The 28-plus class action suits are identical, as any future suits will
be. The ultimate goal is for every state and U.S. possession to be
represented in one large consolidated action. Indeed, Torm L. Howse —
president of the Indiana Civil Rights Council and coordinator of the
suits — says that paperwork is under way for submission to the Judicial
Panel on Multidistrict Litigation, a legal body which has the authority
to transfer such multiple civil cases to a single district court.
If this happens, every single non-custodial parent in America will be
represented by the class action suit, which is nothing more than a
lawsuit brought by one person or a small group on behalf of an entire
class who shares a grievance.
What specific relief is being sought?
The sweeping legal goals are spelled out in a press release. The main
relief sought from federal court is the immediate "restoration/elevation
to equal custodial status" of all current non-custodial parents against
whom no allegations of abuse or neglect have been proven and who have an
ongoing relationship with the child.
The establishment of equal custody embraces several other reliefs.
For example, the "prohibition of custodial move-aways of minor children
[more than 60 miles] from their original physical residences with
natural parents." Also, the "abolishment of forced/court-ordered child
support in most cases." Support of the child would be borne by each
parent during their own parenting time.
The Plaintiffs argue for restoration of equal custody not merely for the
sake of non-custodial parents but also for children's welfare. The press
release cites a much-touted study entitled "Child Adjustment in Joint-
Custody Versus Sole-Custody Arrangements," which was published in the
APA's Journal of Family Psychology. The study concluded, "Children in
joint physical or legal custody were better adjusted than children in
sole-custody settings, but no different from those in intact families."
In this sense, the suits also advocate children's rights.
Other reliefs being sought are financial in nature; some of them take
the suits into murky areas. For example, the suits ask for
"reimbursement" from custodial parents to non-custodial parents of any
state-ordered child support that exceeded the "maximum limits of federal
law." This ceases to be an appeal to constitutional or parental rights
and instead pits one set of civil law against another, with retroactive
penalties being imposed.
In addition, the suits ask for "various damages against the Defendant
[the state named] in the aggregate value of $1,000,000 payable per
Plaintiff." The court awards would be "executable upon all monies,
property, chattels, assets, goods, pecuniary interest and anything
whatsoever of any value" owned or controlled by the State. The suits
request that "an appropriate portion" of the award be provided by the
liquidation or direct transfer of title of "unused, abandoned, or
unnecessary state property and assets."
The number of non-custodial parent plaintiffs who sign on to a federal
class action cannot be predicted but it could run into millions; the
collective damages could run into billions or even trillions of dollars.
Unfortunately, this gives the appearance of pursuing profit rather than
When asked to elaborate on the amount of damages, Howse clarified, "We
are preparing, later this week, to offer proposed settlements that will
waive the vast majority of damages, among other things, in exchange for
a quick restoral of equal custody rights, a few forms of tax
abatements/credits to balance what custodial parents have enjoyed for
years and some other basic and related issues, like the setting up of
neutral visitation exchange centers, and the like."
He added, "It has never been about winning large amounts of money from
the states ... It's about restoring the lives of our children, and
restoring our own lives."
I genuinely hope the settlements come to pass. Stripped of their
financial demands, the suits could go a long way toward removing what I
believe to be the worst laws governing child custody in disputed
At bare minimum, they are raising the profile of an issue that will not
go away: the crying need of non-custodial parents, especially fathers,
to know their children.
And the equal need of children to embrace both parents.
Wendy McElroy is the editor of ifeminists.com and a research fellow for
The Independent Institute in Oakland, Calif. She is the author and
editor of many books and articles, including the new book, "Liberty for
Women: Freedom and Feminism in the 21st Century" (Ivan R.
Dee/Independent Institute, 2002). She lives with her husband in Canada.
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