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“[A] natural parent may only be deprived of custody of a child upon a showing of substantial harm to the child.” In re Askew Tennessee (1999)

The child is not in substantial or any harm in the parents’ care, and never has been.  This citation trumps all statutory law, and presumably if cited along with associated information, the child will be going back to her parents.

Constitutional protections don’t only supercede statutory law in termination of parental rights proceedings, they also do so in every instance the state wishes to infringe into the parent-child relationship.  If you are a non-custodial parent and your child wasn’t in substantial harm, then constitutional law was violated.

The reason this happens?  Your attorney failed to raise constitutional arguments, and that allowed the judge to apply the “Best Interest of the Child” legal standard.  Best Interests (complete judicial discretion with regard to the child) only applies after both parents’ rights are terminated.

If you see Best Interests in a statute or ruling and mom and dad’s rights have not been terminated, the person who used the term either doesn’t know what they are doing, or they are purposely applying the wrong legal standard.

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We’ve been receiving many e-mails about constitutional law, and need to clear up some misunderstandings:

Father’s have natural rights to raise their children, and mothers do not.

This was the legal standard in the 1800’s and further back in history.  Society and life were quite different in those times, and whatever merits fathers being sole custodians had, from our present vantage point it’s not the best outcome.  With the application of the U.S. Constitution, all persons within this country are to be treated equally, and this supercedes automatic father custody.

What are the definitions of the various types of custody?

Custody is not defined in Tennessee and many other states, and even varies between judges and judicial districts.  In general physical custody is the ability to take physical possession of a child, legal custody is which parent makes decisions such as schooling and where the child will live, joint custody is one or both of those, and sole custody is everything vested in one parent.

An additional very important point is no matter what type of custody the orders specify, whichever parent has the child the majority of time is called the custodial or residential parent, and in the eyes of the law effectively has sole custody.  All “joint custody” or “shared parenting” legislation we are aware of doesn’t incorporate this reality, and so will change little to nothing from today.  Our equal custody bill would specifically give each parent custodial status in equal measure.

"Canadian Divorce Law is in a state of change. Recent proposed amendments to Canadian Family Law make an effort to remove the idea of child custody and replace it with the concept of parental responsibility – in part this was done to ensure the “best interests of the child” and to reduce the need for court time by promoting the use of mediators."

Dear Mr. Siegel,

I’d like to see if I can assist you with the case in Chancery Court III, regarding the Chinese family. My name is Daniel Lee,
and the organization I am with this last legislative session, had Tennessee’s termination of parental rights statute amended.

Unless there is another statute which applies to the facts of this
matter, under T.C.A. § 36-1-113 Termination of Parental Rights, two steps must be met prior to terminating parental rights:

(1) A finding by the court by clear and convincing evidence that the
grounds for termination or parental or guardianship rights have been established; and
(2) That termination of the parent's or guardian's rights is in the
best interests of the child.

As I understand the facts of this case, neither of those will be met.
Section (1) under T.C.A. § 36-1-102 abandonment is defined as 4 months of willfully not visiting a child, and/or 4 months of willfully not supporting the child.

Opposing counsel has to prove by clear and convincing evidence 4 months went by where nothing more than token contact or support were provided at the parents’ voluntary choice. You can counter that if the parents had problems accessing the child (like being in fear of the police being called and they arrested, no reliable transportation, etc), or they lacked financial resources (due to illness, birth of later children, etc). Also it might be mentioned there are serious cultural differences, which led to misunderstandings at some or all stages of the procedures.

If it is shown Section (1) to terminate parental rights are met, the
judge still has be meet Section (2), where this is in the best interest of the child. There is no reasonable way this can be met. You have an intact family, with siblings and extended family the child will be permanently separated from. Under no stretch of the imagination can that be considered the best interest of the child.

Finally, you can consider asserting constitutional law on behalf of the parents. To terminate parental rights requires two things; the state's compelling interest is met (child is in or at risk of substantial
harm), and this is the most narrow remedy. The child in this case is not in or at risk of substantial or even any harm in the parents’ care, nor would termination of parental rights be the most narrow remedy to what is in essence a problem that has been caused by the state and other third parties.

Best of luck, and if you need case citations for a constitutional
challenge, please let me know.

Danial Lee
President & CEO, Child Best Interest
childsbestinterest@hotmail.com