Is the Equal You Use the Correct Equal?
Are you presenting the issues right?
I
see this often when people talk about equal custody and it is the confusion of
legal and mathematical “equal” in the terms they use. Call it a personal pet
peeve and one that I think confuses legislators and the general public on this
issue.
In mathematics, equal is absolute. 1 =1, 20=20, 1,234 = 1,234, 1.0075 =1.0075. They are identical amounts and there is no way to show that they are different in any mathematical formula.
In legal terms, equality is not always as clear cut. I am 5’ 8” tall and weigh about 160 lbs. yet I am legal an equal with Shaquille O’Neal who stands 7’ 1” and tips the scales at 325 lbs. Mathematically we are not close to being equal yet in the eyes of the law, we are. The same applies to every man, woman, a child on the planet regardless of their race or national heritage.
Where does this play of words comes into play is when you attempt to tell a legislator that you want 50-50 custody or an equal division of time? When you confuse the two types of equality while presenting the issue of equal custody. If you tell a legislator that you want 50-50 custody you are sending a message that at all times the rights between the parents must be divided equally in a mathematical sense. This will imply that elements such as time should be taken to such extremes as to divide the time down to the nanosecond. Don’t laugh; I have seen that argument used and it is physically not possible nor should it even be considered and this confusion is also commonly used to stop “equal” custody bills from going thru. Those that oppose equal custody legislation will use this play on words to their advantage to confuse legislators that are on the fence.
Equal custody should never be presented as an issue of time-division as under all current state shared parenting laws the opportunity exists for every parent to have the ability to have a legally equal division of responsibilities. The major problems come when the decisions on how the family is made by a third party (the Court) and not the family. This is done without a compelling state interest.
One way of presenting this is what I have used to explain the problem by asking someone if they would ever consider walking into a stranger’s home and telling them how they are going to raise their family from that point forward. I have yet to hear a single person say that they would ever consider this yet we allow the courts to do it every day. The methodology of the current system lacks respect for the sanctity of the family and the natural presumption that a fit parent will always act in the best interest of the child and their own family. See Parham v. JR, 442 US 584 - Supreme Court 1979
Stay away from the “I have a Constitutional Right to Equal Custody”.
Before the last custody bill was introduced in Ohio I had a long talk with the primary sponsor to discuss tactics and approaches. Unlike the majority of you, I can present an explanation of parental rights along with proper case law to someone. To do that has taken 15 years of study of case law coupled with open discussions with attorneys, judges, law professors, and other top advocates. It is a complicated issue to explain to even those that have full knowledge of the subject matter let alone to a person that does not know this area. It will produce a “deer in the headlights” look every time with the average person.
The sponsor that I was talking with is an attorney and graduated cum laude from one of the better law schools in the country. At the end of the discussion which did include questioning by him on case law in this area, his words struck hard on an argument I had been trying to use for years. “Don’t even try that argument with a legislator. A Senator is far too busy and you will not grab their attention to even open the discussion. You need to be able to present a 15 second sound bite that will open the discussion”.
Even after I told people to not do this, they continued. In a meeting, I saw a guy ramble on about his Constitutional rights and I saw a legislative aide go deer in the headlights. If I had not chimed in with a quick one-sentence explanation, that meeting would have been a total waste of time.
A soul searching moment came to come up with a “sound bite” that would work. That is why the simple question was developed and is used by many that are having success in talking with legislators.
Why do we remove fit parents from the lives of children every day?
If you open with this simple question you will have them stopping to think and then asking you to explain what is going on. You have your conversation starter and you have your conversation on needed changes to the language beginning.
Once that conversation begins you better be able to back your statements and you need to be able to point to the reasons that this happens. If you cannot show a solution you may end up wasting your time. While your legislator can get a bill written, why would you trust the same body that screwed the law up in the first place to get it right now? Your legislator does not write the bill themselves, there is a group of attorneys that do nothing but writing new laws for the state. What you were taught in high school government is not correct and does not completely explain the process.
There is a misconception by many that you cannot write the proposed bill yourself. That is false but you also need to have an understanding of the language of the law. While most words are common use some are “unique” in their use in law. I found that out very fast in the first bill that I worked on and I have stuck to my guns in the use of proper language since. While common language usage would have you telling someone that they must do something, in law the word shall is used as a directive. In the same manner in the common language, you might say that someone should or will consider something, in law is it is a may. No matter what you propose it will go to the same group of attorneys for them to check for other areas that need to be changed that you may have missed or for corrections that make them more in line with the state’s statutes. You will be allowed to review before a bill is introduced so that all is to your liking.
Every state does have unique little things and areas that many continue to miss. It is often confusing for those that don’t read law in other states and it takes time and patience to read and understand where every flaw is in the state laws of other states. Ohio comes naturally for me as I have been at it for so long but when I wrote the proposal for Nebraska it took me 6 months to get everything exactly as it was needed. It surprised many of Nebraska’s senators that someone from outside of their state could write in their “language” and I am sure that the same is being told to other states that I have written for. I have a process that I use and I have stuck to in all bills I have written. That is why I require so much information when a group wants to work on a proposal for their state. The reality is their work is the easy part and it is me that has to do the learning curve and hard word after they follow the simple instructions that can be seen here. If in doubt it is best to leave a proposal to someone with years of experience and after some of the bills I am seeing that have been introduced this year, it is clear that they will fail or will fail to do what they think they will do. All I can say is remember what happened in South Dakota when they passed a bill and then admitted it would not do what they said it would do.
Stop asking for a cheeseburger and expecting a fish sandwich.
What do I mean by this? I see many saying that they want shared parenting in states that already have shared parenting. Every state has shared parenting. If you approach a legislator and tell them that you want shared parenting in a state that already has it that legislator will look at you like you are an idiot. That is because you are not using the proper terminology when discussing the issue. If you do not know what the proper terms are then you need to read this explanation of the terms. I do blame this on organizations that keep telling people to ask or demand something yet they continue to use the wrong terminology when they make their statements or send out their newsletters. You can’t redefine legal terms to fit your agenda as they have long been set by Black’s Law, all 5428 pages of it.
Stop the small change!
Major misconception also put forth by those that want this problem to keep going. It takes no more work to get major changes passed than it does a small change. Both take as much preparation to defeat the opposition, both take as much time to explain, and both take as much time to work thru the legislative process. Preparation is the key to effective change and you need to be well prepared before you even begin to talk about changes because there will be questions that will come up from a legislator and if you cannot answer them on the spot you will go nowhere.
I have been prepared for the question since the first meeting I sat in on with a legislator and I have been honest in my answers. Some say brutally honest but every legislator that I talk with knows that they will be a correct answer even if it is not one they want to hear and my answer will be back by solid facts produced by the state, not some internet blogger. I am prepared.
Over the next year, you are going to see just how prepared I am and you are going to see that that there are some things that I have researched that no one has done before. Many of the old arguments from the opposition are going to be defeated in a manner that the opposition never saw coming.
This has only just begun but the end is very near.
Ray R. Lautenschlager
National Legislative Director
Ohio Family Rights
