By Michael Phillips with Bruce Eden
In 1982, the U.S. Supreme Court made one thing crystal clear in Santosky v. Kramer: before the state can permanently interfere with a parent’s rights, it must prove unfitness by clear and convincing evidence. The Court affirmed that parents and children share a “vital interest” in maintaining their natural relationship, and that the government’s role is limited unless and until actual harm is proven.
So why, more than 40 years later, are family courts still acting like that decision never happened?
Why are good, fit parents being stripped of access to their children based on hearsay, bias, or a four-second edited video clip? Why are courts relying on vague notions of “the child’s best interest” while sidestepping the Constitution, ignoring due process, and elevating one parent’s subjective accusations into hard law?
Because the family court system is not truly operating under constitutional law. It is functioning under a parallel legal framework—one built on discretion, not due process, and subjectivity, not scrutiny.
“Best Interest” Is Not a Legal Standard—It’s a Loophole
Let’s be honest about how courts get around constitutional limits. They use the phrase “best interest of the child” as a shield to justify nearly any intrusion into the parent-child relationship—even when there has been no finding of abuse or neglect. They claim that a teenager’s “preference,” a therapist’s speculation, or a GAL’s bias somehow outweighs the fundamental rights of a parent.
But Supreme Court precedent says otherwise:
- Parham v. J.R. (1979): Parents are presumed to act in the best interests of their children. Courts must not presume adversarial interests between parent and child unless unfitness is proven.
- Stanley v. Illinois (1972): The state has no interest in children who are in the care of fit parents. Removing children presumptively violates due process.
- Troxel v. Granville (2000): The due process clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
The courts know this. But they also know they can sidestep these rulings by framing their decisions in emotional language: “We just want to protect the child.” It sounds noble—until you realize it’s used to ignore due process, punish fit parents, and enable alienation.
The Two-Prong Test the Courts Don’t Want You to Know
Here’s what every litigant should be demanding in family court:
- Is there provable abuse or neglect?
This must be established by clear and convincing evidence—not hunches, therapist notes, or edited recordings. Allegations alone are not enough. - If not, the inquiry ends.
Any further restriction of parenting time or custody is unconstitutional. Full stop. The state’s interest in the child does not override parental rights without meeting the evidentiary burden.
If courts applied this standard consistently, hundreds of thousands of parents—many of them fathers—would still have relationships with their children today. Instead, we have a system that punishes one parent for being “emotional” while rewarding the other for weaponizing the legal process.
The Bias Is Baked In
Let’s talk about how the court sets the table:
- Mothers often gain control of the narrative early, supported by attorneys who know the playbook: file an emergency motion, gain temporary custody, allege vague “emotional harm,” and then fight to make it permanent by stalling.
- Fathers, especially pro se fathers, are painted as unstable, reactive, or “too intense” for court. Judges cut them off, disregard their motions, and treat their documentation like a nuisance.
- Courts accept fraudulent or misleading evidence with no penalty. Meanwhile, fit fathers are held to impossible standards, financially drained, and emotionally broken.
Parental alienation isn’t just a theory—it’s a tactic, one that the courts enable when they refuse to act on interference, false allegations, or continuous violations of parenting orders.
Due Process Wasn’t Optional in Santosky—and It Isn’t Optional Now
The courts are not allowed to use therapeutic language to replace constitutional analysis. “Best interest” is not a license to disregard strict scrutiny. “Gut instinct” is not a substitute for clear and convincing evidence. And “erring on the side of caution” is not neutral—it is state-sanctioned bias when only one side is punished.
We must be clear: family court is functioning outside the Constitution, and it is doing so with full knowledge of its violations.
What Needs to Change
Together, we propose the following reforms:
- Enforce the Two-Prong Test: No restriction of custody or parenting time unless there is clear, court-adjudicated evidence of abuse or neglect.
- Raise the Evidentiary Bar: Require sworn testimony and cross-examination before any significant custody determination.
- Hold Judges and Lawyers Accountable: Judicial and bar complaints must be taken seriously when there is proof of bad faith, false filings, or manipulation of evidence.
- End Gender Bias: Treat fathers as equal parents—not as threats, wallets, or scapegoats.
- Empower Pro Se Litigants: Courts must ensure an even playing field, including the right to accessible legal standards, time to present arguments, and actual consideration of evidence.
Final Word
Until the courts stop using emotional framing to ignore legal rights, until judges stop enabling one party’s abuse while punishing the other’s persistence, and until the Constitution is actually applied in family law—we will continue to have broken children, shattered families, and generations of silent suffering.
As the Supreme Court held in Santosky, “Until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.”
It’s time the family courts were reminded of that—and held accountable when they forget.
Michael Phillips is a journalist, legal reform advocate, and founder of Father & Co., The Republic Dispatch, and The REBUILT Justice Project.
Bruce Eden is a pro se constitutional scholar and father’s rights advocate with decades of experience fighting family court injustice.
The People's Law Review 