A Reader Asks:

 

I have a question about your definition of "unfitness". Texas family code currently states that a person with a finding of family violence against either spouse or child is prevented from sole or joint conservator (possessory only)  (153) . Would you agree or disagree that parents should be prevented from equal custody if they have a finding of family violence against them, or not? Does family violence equal "unfit" under your definition?  How would you, under your definition of evidence, treat evidence of family violence in determining custody? I'm curious. Thanks.

 

PEP Responds:

 

Hello:
 

I haven't studied family violence to anything like the extent that I've studied the fundamental right to be a parent.  So, anything I say in response to your question is provisional.
 
The two strongest intuitions I have in response are:
 

1. I have a daughter and a mother.  Sisters too. One of my sisters had a former husband beat ... her more than once.  Anyone is outraged at violence against spouses and I think one area of progress that the contemporary system (for all of its other flaws) has made is the progress it made at getting rid of the protections that used to exist inside the family relationship for people to get away with violence.  But I think the current regime has missed the boat by not saying the obvious: Assault is Assault, and it should be a felony if it's Aggravated Assault. 

 

If someone does something within a family that would get him/her tossed in prison if s/he did it elsewhere, it ought to have the same consequences if it's done inside the family.  I think that would be a salutary legal development.  Unfortunately, here as with so many contemporary legal issues, our reality is a very sloppy reflection of what clear and careful thinking would demand.
 
2. What the Texas Family Code (TFC) calls family violence is an amorphous shadow.  Do you know what it is?  I don't, and I don't know anyone who does.  I'm positive that family violence should be a crime.  I'm also positive that under TFC family violence is adjudicated on Preponderance.  That's impermissible.  A crime must be adjudicated Beyond A Reasonable Doubt.  So, again ... more sloppiness -- this time in Family Court "findings".
 
More generally: What's violence?  Where's the line?  Is it simple fear in someone's mind?  A woman slapping her husband when he says something that hurts her feelings?  A man cuffing a woman when he catches her in bed with another man?  A woman sticking a knife in her husband for the same?  How about a woman giving hubby a good kick for snoring?  How about hubby flinging water in wife's face when he gets p.o.'d and yells at her after she denigrates his sexual performance?  Or wife flinging water in hubby's face for the same?  Maybe violence is just looking at someone the wrong way ... or saying a "hurtful" word?  Tough questions, and I haven't thought through them all the way.  I'm sure it's impermissible to let judges each decide these questions for themselves and have the law be different in different courtrooms. 

What about parent-child violence?  Where's the line there?  Me ... I don't believe in corporal punishment.  Period.  But would I want someone tossed in jail for assault for striking his/her child (the same thing that would get that person jailed if s/he did it to a fellow citizen)?  There are cases of obvious neglect or abuse that virtually everyone would agree merits the state's strongest response.  I'm probably on the pretty-intolerant side of that issue, personally.  

How does all this intersect with the definition of parental fitness?  I think conviction of crimes against children (the same kind of abuse or neglect that would require the state to intervene against married parents) should probably do the trick.  But would there be exceptions?  Ways to recover?  My instincts on this are harsh against abusive/negligent parents.  Others might emphasize that some abuser did it as a one time event that was entirely out of character with that parent's prior behavior pattern.  What about that situation?
 
Why do I offer all these questions?  Because it seems clear to me that parental unfitness must, logically, be the only grounds upon which the state may permissibly infringe the fundamental right of fit parents to parent their children.  Is "parental unfitness" sufficiently well-defined in the law?  If not, that's a legislative failing ... the legislature gets a big fat "F".  Parents are citizens and need to be treated with the honor of the office until they disgrace the office.  In America, we don't permit vague laws to inflict injury on citizens.  The responsibility to get the law right is the legislature's.  It isn't the citizen's job to live a Kafkaesque life in which s/he constantly has to wonder if what s/he wants to do might just get him/her into hot soup.    

The legislature needs to do its job ... not shuck and jive and punt its work to judges who can't be counted on to "legislate" consistently from one courtroom to another.  We're a nation of laws and one of the terrible truths of our time is that legislatures consistently pass (I believe often intentionally) vague laws so that the individual representatives can pretend to be on whatever side of a question it's subsequently expedient for them to be on.  That's execrable.  One of the ways to stop that is for informed citizens like you and me to start demanding that our elected officials cut it out.  They need to put their duty as citizen-lawmakers ahead of their ambitions as career politicians.
 
Well, I've droned on for too long.  You asked a great question and I hope you feel that my response was worthwhile.  Please join PEP.  Whether you're a CP, an NCP, or just a well-informed citizen, people of your caliber have a lot to offer. Everyone who's given any sincere thought to this subject knows there's a bad general problem out there.  Very few people are actually pleased with how the current legal regime treats fit NCPs.  PEP needs all the able citizens we can get lined up with us to force our government to be responsible about the matter.