Carr challenges custody ruling in Appeals Court

Former CPF co-chair Robert Carr finally had his day in court, the Massachusetts Court of Appeals, that is. On Monday, Dec. 15, Carr made an oral presentation of the appeal of his four-year-old divorce judgment in front of a three-judge appellate panel.

Carr challenged a trial court judgment which restricted his ability to educate his son while in his care. Middlesex Probate & Family Court Judge Edward Ginsberg, apparently disliking Mr. Carr's attempts to teach his young son how to write clear sentences, severely restricted his time with his son and ended legal custody. The Fatherhood Coalition and the Fathers Group both filed amicus briefs on Carr's behalf. Carr authored his own brief, with the assistance of legal scholars from Harvard and the A.C.L.U. [The ACLU had no involvement in the case.]

Carr's argument, according to attorney Eric Maxwell, who consulted and wrote the Fatherhood Coalition's amicus brief, is based in part on the famous Times v. Sullivan case of 1964. In that decision, the Supreme Court pointed out that fundamental constitutional rights must be protected by the state by substantive due process. Fundamental constitutional rights, said the Supreme Court, cannot be taken from an individual even when the means of removal is a civil suit between two citizens.

The application of that argument to Massachusetts divorce and custody law is clear, since divorce is a civil suit between two citizens.

Parents' rights to parent - to educate and form the minds of their children - are fundamental constitutional rights. A long history of case law supports this. According to Mr. Carr, the erratic and whimsical ways family court judges take away father's rights to educate their children does not meet the test of "substantive due process" by any stretch of the imagination. He argues that the phrase "best interest of the child" is vague and meaningless, particularly since those who wield it ignore the basic human fact: Every child needs to be parented by two parents.

The Fatherhood Coalition's brief makes the additional point that the courts give very little guidance to judges as to what constitutes "the best interests of the child."

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