Objection on behalf of the kids
October 31, 2013 12:44 PM   Subscribe

A legal question for the family law attorneys of AskMeFi

In the US, has there ever been a significant legal challenge, successful or not, to the apparent status quo situation where the right to divorce (at least in a no-fault divorce state) seems to trump children's rights not to be harmed by said divorce?

Let's say (concede or stipulate) for the purposes of this question that the situation asked about above is one in which one parent wants a divorce and the other parent has a moral objection to participating in any process that is harmful to children (much like a conscientious objector in wartime or a doctor with a "do no harm" oath).

Let's also say (concede or stipulate) for the purposes of this question that the situation asked about above is one in which all parties agree that a divorce is detrimental to the emotional well-being of the children in the sense that there is more harm to them in the parents divorcing than there is in the parents staying together.

Has there ever been a significant legal challenge to the legality of a divorce proceeding in spite of inevitable and possibly irreparable emotional harm to the children in that divorce? If yes, but it didn't succeed, why didn't it succeed?

This is strictly a legal question, so I'm only looking for answers from family law attorneys, and I do realize there are things called children's bills of rights, but this question is specifically about fundamental emotional harm from divorce, not about the specific other things you see in a typical children's bill of rights.
posted by Dansaman to Law & Government (21 answers total) 1 user marked this as a favorite
Nope, there has not been.

An attempt to grant or deny divorce based upon the impact to marital children would not be successful, in part because the children are not party to the marriage or the divorce. Further, the idea that the child's emotional needs are the driving factor in whether a divorce can be granted is fundamentally incompatible with the legal concept of both marriage and the modern paradigm of no-fault divorce.
posted by crush-onastick at 12:51 PM on October 31, 2013 [5 favorites]

This is strictly a legal question

Lawyer here. No, it isn't a legal question because you are asking "has this event ever happened"?

And no, it has never happened and I cannot see how it could conceivably happen under the no-fault divorce regime. No-fault divorce means that if one party to the marriage wants a divorce, the divorce is going to happen no matter what. (this is considered by many to be a triumph of American jurisprudence)
posted by Tanizaki at 12:55 PM on October 31, 2013 [4 favorites]

Mod note: Just for the record - AskMe is for all MeFites - you are welcome to say who you are looking for answers from, but anyone is allowed to answer any question.
posted by jessamyn (staff) at 12:55 PM on October 31, 2013 [4 favorites]

There is also a problem with your second stipulation - I think one could make a compelling case that it would be more damaging to the child to have one parent stuck in a marriage against their will (and the emotional fallout from that coercion) that would it would be to permit the divorce.
posted by metahawk at 12:56 PM on October 31, 2013 [6 favorites]

And when I say "nope, there has not been", I mean no such challenge has ever been filed in the right court and survived long enough to be anything other than a curiosity. I can't say that no person ever in the U.S. has ever filed a document with a court that says "divorce can't be granted because the kids will be harmed more by divorce than the bad marriage."

Incidentally--trivia for today--13 states still do not have a family court division of any type in their courts.
posted by crush-onastick at 12:57 PM on October 31, 2013 [1 favorite]

Response by poster: crush-onastick: from a legal perspective, how is not taking into account the damage of a divorce on children different from not taking into account whether there is a car stuck in an intersection when you decide to drive through it?

metahawk: the question pertains to a hypothetical situation with certain stipulations that have already been conceded.
posted by Dansaman at 1:01 PM on October 31, 2013

How is not taking into account the damage of a divorce on children different from not taking into account whether there is a car stuck in an intersection when you decide to drive through it?

Because not every harmful thing in the world has a legal remedy, and even where party one has a legal remedy, party two's legal remedy may take precedence. Our society has decided that you can't drive through an intersection where a car is stuck and you can't force someone to stay in a marriage against their will. You're comparing apples and oranges.
posted by Mavri at 1:08 PM on October 31, 2013 [10 favorites]

The children are not party to the marriage. The marriage is between the two adults. The family is not party to the marriage; not your in-laws, not your grandparent, not your kids. The only people with a legal interest in the marriage are the parties to the marriage. Someone else may have a legal interest in some part of the settlement (like, the bank sometimes gets involved when it's foreclosing the marital home and the people are getting divorced) but only the two married people have any legal interest in the continuation or dissolution of the marriage.

When you sign a contract, the only people who are party to the contract are the people who sign it, even if other people are affected by the execution of the contract. The marriage is between the husband and wife, not between the parents and the children. The children are legally unrelated to the marriage contract.

The child's right to support does not come from the marriage but from the legal relationship of parent to child--thus children whose parents were never married are entitled to support, to survivor's benefits, to inheritance.

The child's right to a relationship with the parent, likewise, does not come from the marriage.

Basically, the marriage is legally irrelevant to the children's rights. We've got lots of legal precedent for that, largely connected to constitutional challenges to treating "bastard" children differently than children of marriage.

How is not taking into account the damage of a divorce on children different from not taking into account whether there is a car stuck in an intersection when you decide to drive through it?

Sorry, this makes no legal sense whatsoever. Really, I'm not being snarky. It's like saying "how is not taking into account the damage of divorce on children different than not putting nuts in brownies?" Or like saying "how is taking into account the mental capacity of a defendant in the punishment phase of a capital trial different from taking into account whether the contractor knew the zoning laws"? The dissolution of the marriage is not a tort, like a lawsuit over a car accident would be.

Marriage and parentage are two separate legal entities--the former being unnecessary (and in some cases not sufficient) for the latter. A divorce is the dissolution of the legal rights and responsibilities which you incurred when you got married, only. Your legal rights and responsibilities to your children accrued when you had the children/adopted the children/acknowledged your paternity of the children. The allocation of rights and responsibilities of parentage is often adjudicated in conjunction with a dissolution, but it is not part of the dissolution and is not necessary for divorce. Sometimes, people get divorced and it's years later before there is an order of custody or final adjudication of support.
posted by crush-onastick at 1:20 PM on October 31, 2013 [27 favorites]

There has never been such a case nor do I think there will be. It is well accepted that the right to marry is constitutional in dimension, part of substantive due process (and, likely when SCOTUS squarely gets the gay rights issue, equal protection.) That indicates to me that the right to dissolve the marriage has similar dimension and heft.

The way the law tries to take children involved in divorce into account is to require post divorce arrangements for custody/visitation to be in the children's best interests, and of course to provide for child support.
posted by bearwife at 1:24 PM on October 31, 2013 [1 favorite]

(not an attorney.) You seem to be conflating tort liability for a traffic accident with the legal procedure of divorce. Divorce isn't a tort that inflicts an injury; it's a legal procedure performed according to various state laws. Children have no legal right to block that procedure against the wishes of their parents in the same way that I have a legal right to be compensated when you drive into my car. Those laws do recognize that children have special interests in a divorce, and so there are extensive procedures to deal with custody and visitation and child support and the like, based on the best interests of the child, but those issues aren't ultimately about the divorce, they are about the responsibilities of parents to their children.

Now, could the children later sue the parents for intentional infliction of emotional distress as a result? It's certainly possible (and things like it have happened)--anybody can sue for anything after all--, but you're usually talking in these situations about significant long-term physical abuse, neglect, etc... Emotional distress generally requires extreme and outrageous behavior, so you'd have to convince a court that there was something extreme and outrageous about two parents divorcing to have a chance. I did drum up an instance in New Jersey where a court opened the door a small crack for one parent suing the other for claims of parental alienation, while denying the claim in this specific case. Of course, any lawsuit like this, even if you ultimately prevailed, could only get you money; a court can't force your parents to get back together or undo past harms.

Finally, the stipulations of your hypothetical situation are also hypothetical. The parents cannot predict the future and can't possibly know what course of action will truly be more harmful to their children. Perhaps if they stayed together, one parent would become a depressed alcoholic as a result and start beating the kids! Extreme perhaps, but my point is that you simply don't know. There's also no sort of law that says that parents must minimize all potential harms to their kids to the lowest possible level. That's why you don't have to send your 12-year-old to school wrapped in bubble wrap or have them wear a SCUBA tank all the time to be prepared for a fire. There are lines that constitute abuse or neglect, but within those lines, parents are free to make decisions as they see fit. Many other sorts actions might be emotionally upsetting to a child (not to minimize the pain of having your parents divorce certainly), such as moving away to another city or even another country for a parent's job or having a parent join the military. The potential for emotional harm doesn't make these actions somehow illegal or give the child a legal right to stop them. The same goes for a divorce.
posted by zachlipton at 1:40 PM on October 31, 2013 [3 favorites]

how is not taking into account the damage of a divorce on children different from not taking into account whether there is a car stuck in an intersection when you decide to drive through it?

State laws don't allow you to drive through intersections willy-nilly. There are a number of restrictions on when you are permitted to drive through an intersection, one of which is that it is prohibited when another car is blocking the way.

Laws in all 50 states and DC permit either spouse to get a divorce for any reason they please, even if it hurts other people. It doesn't necessarily have to be this way; presumably a state legislature could revoke no-fault divorce and allow judges to consider the welfare of the children in deciding whether or not to grant a divorce, but no state currently does this (and such a change in the law would likely be immensely unpopular).

To put it another way: driving through an intersection when another car is in the way is not inherently illegal based on some supposed right of people in the other car not to get hurt; driving through an intersection when another car is in the way is illegal because the legislature has made it illegal.
posted by DevilsAdvocate at 1:42 PM on October 31, 2013 [1 favorite]

Yeah, maybe this analogy will help. Very broadly speaking, courts view marriages as contracts. Very Special Contracts, but contracts nonetheless. A and B agree to get married, understanding that marriage brings with it a whole bunch of rights and responsibilities.

Now, very generally speaking, the only ones who have any rights under a contract are the people who signed the contract, even though the contract or its breach may affect other people. For example, if Company A buys up Mars through a contract and now you can't buy Snickers bars anymore, you don't get to sue Company A or Mars because you don't have any rights under the contract.

Company A = Parent 1
Mars = Parent 2
You = Kid
posted by craven_morhead at 1:47 PM on October 31, 2013

Mod note: Answers here need to be about legal precedent or lack thereof and not about whether jurisprudence is consistent. No discussion, whether about the traffic analogy or otherwise.}
posted by goodnewsfortheinsane (staff) at 2:17 PM on October 31, 2013

I would think you'd need a crystal ball to even make the argument. You simply cannot say what situation would cause more harm to those particular children with those particular parents in those particular circumstances. You may believe one outcome is preferable to another but belief alone, especially when opposed by another reasonable adult, is not the same as fact.
posted by headnsouth at 2:58 PM on October 31, 2013 [1 favorite]

I've never heard of such a challenge, successful or otherwise.

Here's why it wouldn't work, despite these hypothetical parties agreeing that harm from parents divorcing < harm from parents not divorcing. Let's say that Parent A files for divorce from Parent B, and Parent B raises the defense, "But we agreed that to divorce would be more harmful than staying together." By the time the judge hears about this, there's been at least six months of increasingly acrimonious legal proceedings. The judge listens, then says, "That might have been the case when you had that discussion. But with Parent A wanting out and Parent B resisting, I'm not sure it will still be less harmful when I send you both home with your attorney's bills and the hurt feelings already generated. Divorce granted."

The jurisprudential attitude towards marriage is sort of that if one party is not happy, neither party is happy. For example, there is a spousal privilege against testifying in a civil case. If a man talks to his wife about, say, how he plans to cheat a business partner on a contract, the business partner cannot call the wife to testify in a civil matter about the contract. The logic is that the pressure of a wife testifying against a husband will cause strain in the marriage relationship and break it down. Even if the wife WANTS to testify, the husband can move to suppress the testimony permanently and he'd win. However, if it's a criminal case, the testifying spouse can waive the privilege. The logic there is that if a spouse is willing to testify against the other spouse in a criminal proceeding that could send them to jail, there's probably not a lot of marriage to be saved.
posted by mibo at 3:52 PM on October 31, 2013

I don't think the law works that way, and I don't think it's a remotely close call or difficult question. But I'm not doing the legal research to try to figure out if this issue has ever been litigated.
posted by J. Wilson at 4:44 PM on October 31, 2013

As others say, any children they might have aren't party to the marriage contract, therefore they have no standing when it comes to permitting or forbidding a divorce.

But think about this: forbidding a divorce, for whatever reason, would be tantamount to holding the person who wants out of the marriage a prisoner, pretty much the same as any other form of illegally locking them up somewhere.
posted by easily confused at 4:59 PM on October 31, 2013 [1 favorite]

What would it mean to deny a divorce? People could still move out, move on, make new romantic entanglements, etc. a court can withhold a divorce decree but it can't order a couple to keep a home together, eat family meals, and fuck. Leaving the legal bond in place only invites greater instability for each of their futures.

That said, every jurisdiction I know of makes custody and support rulings 'in the child's best interests.' It can't forbid a parent from moving out of state but it can prevent (or retroactively if necessary undo) the child moving with that parent if it would not be in the child's best interests with regards to the relationship with the other parent. At least in New York, children in contested support and custody cases are appointed 'counsel for the child' to represent their interests to the judge. That lawyer can call expert testimony and make motions.
posted by Salamandrous at 7:36 PM on October 31, 2013

I think there are some legal systems that do this, in a way -- in countries where one parent automatically loses all parental rights in a divorce, as a condition of the divorce being granted. If I remember correctly, the deal is usually that the wife has the technical right to divorce her husband, but she'll lose her parental rights. But even then, it's a threat to keep parents from divorcing, it's not about harm done to the child. I also can't say for sure because I think this came up regarding a country operating under Sharia, and I'm about as far from an expert as you can get in that and might have misunderstood.

When it comes to the US legal system, I agree with everyone above that the marriage is a contract between Person X and Person Y, and Persons A/B/C/D don't have the right to dictate the terms/dissolution of that contract. It doesn't matter if Persons A/B/C/D are related to X and Y, they weren't the ones to enter into the contract.

Think about the opposite idea, too -- what if X and Y have an unhappy marriage, do their children A/B/C/D have a right to file for a divorce between them, on the grounds that the marriage sucks for the children? No, of course they don't, third parties can't stand in front of a judge and force people to marry or divorce...Though I think that in real life, that scenario might be more likely to be touched on in court, because it would be based on harm already occurring/having occurred to the children, and not the threat of theoretical future harm. The children still wouldn't be able to somehow divorce their parents, but the parents might be pressured to physically separate somehow if the children are to be kept away from one parent/have restraining orders against one parent, etc, but the other parent is trying to keep custody. So maybe the threat of harming the children wouldn't be a way to keep people from divorcing, but it might be a way to instigate legal separation (based on harm already occurring/the threat of *continued* harm to the children)?

*If it wasn't already obvious, I'm not a lawyer.
posted by rue72 at 7:57 PM on October 31, 2013

As a matter of precedent I don't know. It certainly hasn't come up any case I've come up with and I doubt it has in the strict sense you're asking about.

What I mean is you're asking about no-fault divorce. No-fault divorce is a fairly new, I believe it started in California in 1969. But the basic idea behind it is that, if people want to get divorced, they should be able to get divorced, and that the state has no business asking why or, at least, judging their reasons. This was because of a long history of moralistic bullshit, strange results, and insanely acrimonious divorces because one party was "the wronged" and both parties tried to prove they were really "the wronged". The theory is that people who want to get divorced need to be divorced and that keeping them together is going to lead to pain and suffering, so the divorce should be as quick and painless as possible so as to avoid as much pain and suffering together.

By that time in history the idea that parents could get divorced despite the wishes of their children was so well enshrined in law that, honestly, I haven't ever seen it mentioned.

I think, if you want to find legal opinions that deal with if the welfare of the children should be able to be considered to stop the divorce you're going to have to go back before that. Likely long before that.

In short the very premise of your question is antithetical to the idea of no-fault divorce. A believer of the theory no-fault divorce would think that having unhappy parents living together will always lead to stress and situations that hurt the children. Thus your "conceded or stipulated points" would be ridiculous and similar to a person who asks "Once we've conceded or stipulated that gravity doesn't hold down water, has any modern physicist done any papers on why the oceans don't fly off into space?"

The answers you're going to get are "No one concededs or stipulates that".
posted by bswinburn at 9:00 PM on October 31, 2013 [2 favorites]

I'm going to push back on the hypothetical a little. You're envisioning a situation in which one parent is being selfish, saying, "I realize that separating from my spouse will hurt my children, but I'm going to do it anyway, because I am unhappy and would rather not be married anymore." Hypothetically, some state could pass a set of divorce laws in which parents in that situation would be denied a divorce and essentially forced to remain married to their child's other parent. No state that I know of has laws permitting such an order right now, but it could theoretically be set up that way. As far as I know, such a thing is not possible under current law in the United States.

But let's pretend that it was possible for a moment, and really think about what that would look like. A court denies one spouse a divorce because it's bad for the kids and the other spouse objects to doing anything that might hurt the kids. So you have two people married to one another, at least one of whom is not interested in continuing to be the spouse of the other. Do you ask the court to issue an order that neither spouse is allowed to move out of the house? That the parents aren't allowed to fight, or at least not in front of the kids? Does the court order that the parent who wants the divorce can't spend time alone with members of her/his preferred gender, in order to prevent her/him from dating? Should the court order the parents not to become incredibly angry and resentful of their kids for trapping them in a loveless marriage and for making them feel sometimes so sad and disgusted and desperate that they want to kill themselves, but they love their kids too much to go through with it?

And what are the consequences if a parent who wants a divorce fails to comply with the court's order, and they move out of the house and get boyfriends and tell the kids that mommy and daddy love each other very much, but daddy doesn't love mommy anymore? Does the parent who wants the divorce get punished if he's insufficiently convincing at pretending to be happily married for the sake of the children? Are you going to imprison parents who have extramarital affairs? Put their kids in foster care if they're not sufficiently convincing in pretending to love their spouses? Fine every married couple who fails to maintain joint bank accounts and require them to write each other's name down as the "in case of emergency" person on forms? Shut down landlords who rent one-bedroom apartments to people who already own houses as a couple?

The courts have the ability to enforce very specific behavioral commands when they can impose direct consequences. Stop smoking crack or else we'll send you to prison. Pay a $500 fine or else we'll suspend your driver's license. Stop beating your kid or else we'll take him away from you. But here, it's not clear what you want the parent ordered to do, or what consequences you envision if they fail to comply. There's simply no way that a court can order someone to maintain a marriage in any way other than on paper, and there's no way to enforce that order even if they could articulate it. So what you're left with is the court keeping people legally bound to each other even as they live their lives separately. And that's just not good public policy. Because just as laws that deny marriage to people who want it have created a complicated, difficult, and legally difficult morass of half-solutions to try to give people what they want, forcing people to remain married when they don't want to be would basically be a job-creation program for lawyers as people figure out ways to separate their lives legally while the courts deny them the right to divorce. Ultimately, there's just no way to get the result you want using the force of the legal system, because the piece of paper that the legal system controls is not the part of a marriage that can be good for a kid. The stuff about marriage that is good for kids--love, stability, trust, togetherness, etc.--courts can't order that stuff.
posted by decathecting at 9:08 PM on October 31, 2013 [2 favorites]

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