Amicus Curiae Brief — Kelly Georgene Routten, Petitioner v. John Tyler Routten

No. 20-618

IN THE

Supreme Court of the United States

_________

KELLY GEORGENE ROUTTEN,

Petitioner,

v.

JOHN TYLER ROUTTEN,

_________

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of North Carolina

_________

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF PARENTS, INC.

D/B/A PARENTSUSA IN SUPPORT OF PETITIONER

_________

DAVID S. DELUGAS

Counsel of Record

NATIONAL ASSOCIATION OF PARENTS INC.

D/B/A PARENTSUSA

1600 Parkwood Cir, Ste. 200

Atlanta, Georgia 30339

(888) 687-4204

david.delugas@parentsusa.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF CONTENTS ..................................................... i

TABLE OF AUTHORITIES ............................................... ii

INTEREST OF AMICUS IN THIS CASE .............................. 1

SUMMARY OF ARGUMENT ............................................. 1

SUPPLEMENTAL STATEMENT OF THE CASE ................... 3

ARGUMENT ................................................................... 5

The Court Should Grant The Writ To Protect

Children From Poorer Outcomes When Deprived

Unnecessarily Of The Parent-Child Relationship

And To Clarify The Standard States Must Follow

Before De Facto Taking Children From Their

Parents ........................................................................ 5

A. Children Have Poorer Outcomes When

Deprived Of A Meaningful Parent-Child

Relationship And When A Parent Is

Authorized To Be The Gatekeeper ............ 5

B. Absent A Finding Of Unfitness Or That

Parenting Time Would Harm A Child,

Depriving A Parent Of Meaningful

Contact With Her Children And Making The Other Parent The Gatekeeper

Must Not Be Countenanced ..................... 10

CONCLUSION .............................................................. 19

ii

CASES

TABLE OF AUTHORITIES

Borgers v. Borgers,

820 S.E.2d 474 (Ga. App. 2018)............... 11, 15

In the Interest of M. F.,

780 S.E.2d 291 (Ga. 2015) ............................. 13

Meyer v. Nebraska,

262 U.S. 390 (1923) .................................. 10, 12

Pierce v. Society of Sisters,

268 U.S. 510 (1925) .................................. 10, 12

Prince v. Massachusetts,

321 U.S. 158 (1944) .................................. 10, 12

Stanley v. Kramer,

455 U.S. 745 (1982) .................................. 10, 14

Troxel v. Granville,

530 U.S. 57 (2000) ............................ 1, 2, 10, 13

CONSTITUTION AND STATUTES

U.S. Const. amend. IX .............................................. 14

U.S. Const. amend. XIV ........................................... 14

Ga. Const. Art. 1 ....................................................... 14

O.C.G.A. §5-6-34(a)(11) ............................................ 10

O.C.G.A. §5-6-35(j).................................................... 10

iii

O.C.G.A. §15-3-3.1(a)(6) ........................................... 10

OTHER AUTHORITIES

William G. Austin, Marsha Kline Pruett, H.D.

Kirkpatrick, James R. Flens, and Jonathan

W. Gould, Parental Gatekeeping And Child

Custody/Child Access Evaluation: Part I:

Conceptual Framework, Research, And

Application, Family Court Review, Vol. 51

No. 3, July 2013, Abstract at 485.

https://www.researchgate.net/publication/2

56662725_Parental_Gatekeeping_and_Chi

ld_CustodyChild_Access_Evaluation_Part_

IConceptual_Framework_Research_and_A

pplication ...................................................... 7, 8

Five Myths about George Orwell, Gordon Bowker,

The Washington Post, February 24, 2017.

https://www.washingtonpost.com/opinions/

fivemyths-about-george-orwell/2017/02/24/

24ef0572f9ec-11e6-9845576c69081518_sto

ry.html ............................................................ 14

Sanford L. Braver & Michael E. Lamb (2018)

Shared Parenting After Parental Separation: The Views of 12 Experts, Journal of

Divorce

&

Remarriage,

59:5,

https://doi.org/10.1080/10502556.2018.1454

195 .................................................................... 7

iv

Child

Welfare Information Gateway (2020),

Determining the best interests of the child,

Washington, DC: U.S. Department of

Health and Human Services, Administration for Children and Families, Children’s

Bureau.

https://www.childwelfare.gov

/pubPD Fs/best_interest.pdf ...................... 9, 10

Children and Divorce, American Academy of

Child & Adolescent Psychiatry, No. 1, January 2017. https://www.aacap.org/AACAP/

Families_and_Youth/Facts_for_Families/F

FF-Guide/Children-and-Divorce001.aspx ....... 9

Ga. L. 2016, p. 883, §§ 3-1, 6-1 (c) ............................ 10

Joint Versus Sole Physical Custody: Children’s

Outcomes Independent of Parent–Child Relationships, Income, and Conflict in 60

Studies, Journal of Divorce & Remarriage

2018, Vol. 00, No. 00, pp. 5 (Nielsen, Ph.D.,

Linda)

https://www.tandfonline.com/doi/

full/10.1080/10502556.2018.1454204 ........ 6, 17

Merriam-Webster

https://www.merriam-webster.com/diction

ary/Orwellian ................................................ 14

Nielsen, L. (2017), Re-examining the research on

parental conflict, coparenting, and custody

arrangements, Psychology, Public Policy,

and Law, 23(2). https://doi.org/10.1037/

law0000109 .................................................... 17

v

Preface to the Special Issue: Shared Physical

Custody: Recent Research, Advances and

Applications, Journal of Divorce & Remarriage 2018, Vol. 59, No. 04, (Nielsen, Ph.D.,

Linda),

https://www.tandfonline.com/doi/full/10.10

80/10502556.2018.1455303 ............................. 5

Unloved Daughters and the Dark Side of Maternal Gatekeeping, Psychology Today, Peg

Streep. https://www.psychologytoday.com/u

s/blog/tech-support/201903/unloved-daught

ers-and-the-dark-side-maternal-gatekeep

ing ..................................................................... 8

1

INTEREST OF AMICUS IN THIS CASE 1

The National Association of Parents, Inc.

(“ParentsUSA”) is a secular nonpartisan 501(c)(3)

nonprofit organization located in Atlanta, Georgia.

ParentsUSA exists to serve all legal parents; i.e.,

mothers and fathers, married or unmarried, biological or adoptive, and their children throughout the

United States. One of the missions of ParentsUSA is

to preserve and support the parent-child relationship

by protecting the constitutional rights of parents —

as those rights have been recognized by this Court.

SUMMARY OF ARGUMENT

ParentsUSA contends that, when children are

deprived of significant time with each of their fit

parents, children have poorer “outcomes on all

measures of behavioral, emotional, physical, and

academic well-being and relationships with parents

and grandparents.” Such poorer outcomes include

drug abuse, depression, teen pregnancies, misbehavior, deficient academic performance, and increased

incidence of physical health issues. Better outcomes

for children come from fit parents having significant

roles in their children’s lives and the parents making

the best decisions they can concerning their children

by reason of the “natural bonds of affection[.]” Troxel

1

All parties have consented in writing to the submission of this

Brief. Counsel for the parties received the notice of the intention

by Amicus to file this brief at least ten (10) days prior to the

deadline to file the brief. Amicus affirms that no portion of this

Brief was authored by counsel for a party and that no person or

entity other than Amicus made a monetary contribution intended to fund the Brief’s preparation or submission.

2

v. Granville, 530 U.S. 57, 68 (2000) (plurality opinion).

ParentsUSA further contends that, because of

the better outcomes for children who have significant

parenting time with each of their parents and because of the constitutional rights of parents, as

recognized by this Court, trial courts must not be

permitted to intrude and to micromanage families by

imposing custody schedules that de facto sever or

undermine the parent-child relationship without

first finding, upon clear and convincing evidence, an

unfit parent or actual or likely harm to children.

In this divorce case, the trial court did not find

Petitioner unfit and did not find that the children

would suffer or likely would suffer harm in her care

through parenting time. The trial court did not

award Petitioner-Mother any in-person contact with

the children, not even if visitation was supervised,

not even on Mother’s Day, only awarding Petitioner

phone contact with the children. The trial court

further confirmed and amplified Petitioner’s fitness

as a parent by the trial court delegating to Respondent-Father the unfettered authority to permit the

children to be with Petitioner as often and for as long

as Respondent decided. The totality of the award was

a de facto termination of Petitioner’s parental rights.

Because the North Carolina Supreme Court

decided important federal questions in ways that

conflict with relevant decisions of this Court, ParentsUSA urges this Court to grant the Petition.

Then, on the merits, this Court can clarify the body of

opinions on the constitutional rights of parents so

that courts throughout the United States of America

3

will cease employing the “best interest of the child”

standard as a mechanism, perhaps unknowingly, by

which to by-pass the rights of parents in the absence

of findings of fact, upon clear and convincing evidence, of parental unfitness or actual or likely harm

to a child that is greater than the harm the children

will suffer under the restrictive terms and conditions

the courts otherwise would impose upon the parents

and the children.

SUPPLEMENTAL STATEMENT OF THE CASE

ParentsUSA supplements Petitioner’s Statement of the Case by highlighting the following from

the trial court’s memorandum and orders set forth in

Petitioner’s Appendix, Appendix C, Appendix D, and

Appendix E:

1.

Although the trial court’s findings of fact may

have justified the award of primary physical

custody to Respondent-Father with PetitionerMother’s parenting time a/k/a visitation or custodial time either limited, contingent, or supervised, nowhere does the trial court reveal that

(a) Respondent-Father alleged that Petitioner

was an unfit parent, (b) Respondent-Father alleged that the children would be or likely would

be harmed when in Petitioner’s care if she was

awarded parenting time a/k/a visitation, (c) Respondent-Father alleged that contingent or supervised visitation would be necessary to protect

the children from harm from Petitioner; or (d)

Respondent-Father requested a parenting plan

or visitation schedule that would deny the children any in-person contact with their mother.

4

2.

The trial court did not find that PetitionerMother was unfit or that the children would be

harmed or likely would be harmed when in her

care.

3.

Petitioner-Mother’s fitness and that the children

would not be harmed when in her care were confirmed by the trial court also authorizing the

Respondent-Father to “permit custodial time between the children and [Petitioner-Mother]”

within his sole discretion, taking into account

the recommendations of H.’s counselor as to frequency, location, duration, and any other restrictions deemed appropriate by the counselor

for permitting visitation between H. and [Petitioner-Mother].” Pet. App. 80a, ¶2. The trial

court did not order Respondent-Father to follow

the counselor’s recommendations, but only to

take them into account. The trial court also authorized Respondent-Father to allow PetitionerMother to attend the children’s healthcare appointments. Pet. App. 79a-80a, ¶1.

4.

The Orders and Memorandum of Judgment,

Appendix 65a – 101a, do not reflect that any

consideration was given to the harm or adverse

impact on the children that could come (a) from

the children having phone contact, but no inperson time with their mother; (b) from the children not having their mother at sports, dance,

music, school or other activities, events, and

functions as their father and their peers’ parents

would be attending; or (c) from having their father, Respondent, be the “gatekeeper” to their

5

mother on a day-to-day basis including on such

special holidays as Mother’s Day.

ARGUMENT

The Court Should Grant The Writ To Protect

Children From Poorer Outcomes When Deprived Unnecessarily Of The Parent-Child

Relationship And To Clarify The Standard

States Must Follow Before De Facto Taking

Children From Their Parents.

A. Children Have Poorer Outcomes When Deprived Of A Meaningful Parent-Child Relationship And When A Parent Is Authorized To Be

The Gatekeeper.

Almost a quarter-century ago, 18 expert social

scientists chosen by the National Institute of

Child Health and Human Development recommended that parenting time be distributed

so that it would “ensure the involvement of

both parents in important aspects of their children’s everyday lives and routines—including

bedtime and waking rituals, transition to and

from school, extracurricular and recreational

activities (Lamb, Sternberg, & Thompson, 1997, p. 400).”

Preface to the Special Issue: Shared Physical Custody:

Recent Research, Advances and Applications, Journal

of Divorce & Remarriage 2018, Vol. 59, No. 04, p. 5

(Nielsen,

Ph.D.,

Linda),

https://www.tandfon

line.com/doi/full/10.1080/10502556.2018.1455303

In social science, “child well-being” or “outcomes” are derived from the following categories:

6

(1) academic or cognitive outcomes, which include

grades, attentiveness in class, and tests of cognitive

development;

(2) emotional or psychological outcomes, which

include feeling depressed, anxious, or dissatisfied

with their lives or having low self-esteem;

(3) behavioral problems, which include misbehaving

at home or school, hyperactivity, and teenage drug,

nicotine, or alcohol use;

(4) overall physical health or stress-related physical

problems (e.g., sleep or digestive problems, headaches); and

(5) the quality of parent–child relationships, which

includes how well they communicate with and how

close they feel to their parents.

Joint Versus Sole Physical Custody: Children’s Outcomes Independent of Parent–Child Relationships,

Income, and Conflict in 60 Studies, Journal of Divorce & Remarriage 2018, Vol. 00, No. 00, pp. 5, 11

(Nielsen,

Ph.D.,

Linda)

https://www.tandfon

line.com/doi/full/10.1080/10502556.2018.1454204

JPC [or Joint Physical Custody, which is defined for purposes of the 60 studies summarized in this article as 30% to 50% of a child’s

time with each parent] is generally linked to

better outcomes than [Sole Physical Custody

or] SPC for children, independent of parenting

factors, family income, or the level of conflict

between parents. It appears that leaving the

classwork, clothing, cleats, or clarinet at the

other parent’s house and living under two sets

of rules has not created dire circumstances for

7

JPC children—perhaps because they are not

leaving behind the love, attention, involvement, and commitment of either parent when

with their other parent.

Id. at 30. Accord Sanford L. Braver & Michael E.

Lamb (2018) Shared Parenting After Parental Separation: The Views of 12 Experts, Journal of Divorce &

Remarriage, 59:5, 372-387, 383 https://doi.org/10.108

0/10502556.2018.1454195 (a minimum of 35% of the

child’s time should be allocated to each parent for the

child to reap the benefits of Shared Parenting and

the existence of interparental conflict or opposition to

Shared Parenting by one parent should not preclude

or rebut Shared Parenting).

Here, Petitioner was awarded zero percent

(0%) of the children’s time and, making her life and

the lives of the children worse, Respondent was

appointed by the trial court to be the “gatekeeper.”

“Parental gatekeeping refers to parents’ attitudes

and actions that serve to affect the quality of the

other parent’s relationship and involvement with the

child.” William G. Austin, Marsha Kline Pruett, H.D.

Kirkpatrick, James R. Flens, and Jonathan W.

Gould, Parental Gatekeeping And Child Custody/Child Access Evaluation: Part I: Conceptual

Framework, Research, And Application, Family

Court Review, Vol. 51 No. 3, July 2013, 485–501,

Abstract at 485. https://www.researchgate.net/pu

blication/256662725_Parental_Gatekeeping_and_Chi

ld_CustodyChild_Access_Evaluation_Part_I_Concept

ual_Framework_Research_and_Application.

Gatekeeping varies from facilitative to restrictive, with

restrictive gatekeeping adversely impacting children

and fostering parental conflict. Id. See also Parental

8

Gatekeeping & Parental Alienation, Psychological

Center

for

Expert

Evaluations,

Inc.

http://forensicpsychologicalcenter.com/2013/07/08/par

ental-gatekeeping-parental-alienation/

The research on gatekeeping does not contemplate cases, as is the situation before this Court,

when a trial court denies Petitioner any parenting

time or physical custody, but then empowers and

authorizes Respondent to follow the custody schedule

or parenting plan with no in-person contact or, on a

whim, for good reasons or for no reason at all, to

allow as little or as much contact with the children as

Respondent decides (only taking into account the

recommendation of one child’s counselor).

If Petitioner does not “push back” against Respondent’s gatekeeping, she risks the children feeling

betrayed by her. In addition to harming the children’s relationship with Petitioner, the trial court

has authorized Respondent to marginalize the children’s mother and, as a consequence, Respondent

risks the children rebelling against him, blaming

him, and becoming estranged from him. Gatekeeping

is ultimately about control, control that the trial

court provided Respondent without honoring the

constitutional rights of Petitioner and, based on its

orders and judgments, without understanding the

ramifications to the children, their relationship with

Petitioner, and their relationship with Respondent.

See Unloved Daughters and the Dark Side of Maternal Gatekeeping, Psychology Today, Peg Streep.

https://www.psychologytoday.com/us/blog/tech-suppo

rt/201903/unloved-daughters-and-the-dark-side-mate

rnal-gatekeeping

9

The volume of divorces in the USA is staggering. One out of every two marriages, many including

children, end in divorce. Parents are adults and must

handle the emotional impact of the divorce that is

individual to each parent on a continuum from feeling relieved to feeling devasted. But “[c]hildren often

believe they have caused the conflict between their

parents. Many children assume the responsibility for

bringing their parents back together, causing them

additional stress. Vulnerability to both physical and

mental illnesses can originate in the traumatic loss of

one or both parents through divorce.” Children and

Divorce, American Academy of Child & Adolescent

Psychiatry,

No.

1,

January

2017.

https://www.aacap.org/AACAP/Families_and_YouthF

acts_for_Families/FFF-Guide/Children-and-Divorce 001.aspx

Trial courts are charged by state law with addressing the issues presented in divorces, including

the “award” of legal custody, jointly or solely to one

parent, and the custody schedule or parenting plan

for the children. When trial courts fail to consider

and to balance the harm that the award being imposed will cause or likely cause the children, merely

claiming such award is in “the children’s best interests,” employing the magic words that lack definition 2 by legislation or by case law, lack any objective

2

No standard definition of the term “best interests of the child”

exists. Many states provide “guiding principles” and subjective

“factors.” In practice, trial courts are unconstrained and merely

have to draft orders and judgments in a manner to claim

compliance with such principles and factors. Child Welfare

Information Gateway (2020), Determining the best interests of

the child, Washington, DC: U.S. Department of Health and

10

standard, and insulate trial courts from meaningful

appellate review, trial courts often participate in,

perhaps unknowingly, and exacerbate the children’s

“traumatic loss of one or both parents through divorce.” Id.

B. Absent A Finding Of Unfitness Or That Parenting Time Would Harm A Child, Depriving A

Parent Of Meaningful Contact With Her Children And Making The Other Parent The Gatekeeper Must Not Be Countenanced.

For nearly a century, from Meyer v. Nebraska,

262 U.S. 390 (1923), and Pierce v. Society of Sisters,

268 U.S. 510 (1925), and through Stanley v. Kramer,

455 U.S. 745 (1982) and Troxel v. Granville, 530 U.S.

57 (2000), this Court has repeatedly held that “the

custody, care and nurture of the child reside first in

the parents.” Troxel, 530 U.S. at 60 (plurality opinion) (quoting Prince v. Massachusetts, 321 U. S. 158,

166 (1944), and citing other cases).

Amicus is challenged with persuasively presenting existing law to this Court knowing there

have been few, if any, presentations more compelling

than that provided by then Chief Judge Dillard of the

Georgia Court of Appeals 3 in his fully and specially

concurring opinion in Borgers v. Borgers, 820 S.E.2d

Human Services, Administration for Children and Families,

Children's Bureau.

https://www.childwelfare.gov/pubPDFs/best_interest.pdf

3

In Georgia, the Court of Appeals now has exclusive appellate

jurisdiction over domestic relations cases pursuant to the

Appellate Jurisdiction Reform Act of 2016. See Ga. L. 2016, p.

883, §§ 3-1, 6-1 (c); O.C.G.A. §15-3-3.1(a)(6); O.C.G.A. §5-634(a)(11) and (d) and O.C.G.A. §5-6-35(j).

11

474 (Ga. App. 2018). Chief Judge Dillard, relying on

decisions from this Court, sets forth the rights of

parents and the very limited circumstances under

which states may interfere with those rights:

The liberty interest of parents to direct the upbringing, education, and care of their children

is the most ancient of the fundamental rights

we hold as a people, and is "deeply embedded

in our law." This cherished right derives from

the natural order, preexists government, and

may not be interfered with by the State except

in the most compelling circumstances.

Id. 820 S.E.2d at 478-479 (citations omitted).

Our trial courts must be mindful in every case

involving parental rights that, regardless of

any perceived authority given to them by a

state statute to interfere with a natural parent’s custodial relationship with his or her

child, such authority is only authorized if it

comports with the long-standing, fundamental

principle that “[p]arents have a constitutional

right under the United States and Georgia

Constitutions to the care and custody of their

children.” In this respect, the Supreme Court

of the United States has acknowledged that

“[t]he liberty interest ... of parents in the care,

custody, and control of their children—is perhaps the oldest of the fundamental liberty interests ....” And while a parent’s right to raise

his or her children without state interference

is largely expressed as a “liberty” interest, the

Supreme Court of the United States has also

noted that this right derives from “privacy

12

rights” inherent in the text, structure, and history of the federal constitution.

Id. 820 S.E.2d at 479-48 (citations omitted).

Amicus relies extensively, as did Chief Judge

Dillard, on this Court’s holdings that address children and their parents and the sanctity of the family.

In Meyer v. Nebraska, 262 U.S. 390, 399 (1923), this

Court noted the “liberty interest guaranteed by the

Fourteenth Amendment [to the United States Constitution] includes freedom ... to engage in any of the

common occupations of life, to acquire useful

knowledge, to marry, establish a home[,] and bring

up children, to worship God according to the dictates

of his own conscience, and generally to enjoy those

privileges long recognized at common law as essential

to the orderly pursuit of happiness by free men[.]” In

Prince v. Massachusetts, 321 U.S. 158, 166 (1944) this

Court recognized there is a “private realm of family

life which the state cannot enter.” Similarly, the

parent-child relationship was aptly described in

Pierce v. Soc’y of the Sisters of the Holy Names of

Jesus & Mary, 268 U.S. 510, 535 (1925), thusly: “The

child is not the mere creature of the state; those who

nurture him and direct his destiny have the right,

coupled with the high duty, to recognize and prepare

him for additional obligations.”

The Georgia Supreme Court also consistently

relies on the longstanding precedents of this Court

with regard to the barriers to state intervention in

the parent-child relationship:

The presumption that children ordinarily belong in the care and custody of their parents is

13

not merely a presumption of the statutory and

common law, but it has roots in the fundamental constitutional rights of parents. The Constitution secures the fundamental “right of

parents to direct the upbringing of their children,” Troxel v. Granville, 530 U.S. 57,65

(2000), and it “protects a private realm of family life which the state cannot enter without

compelling justification.” Arnold v Bd. of Ed. of

Escambia County, 880 F.2d 305, 313 (11th Cir.

1989).

In the Interest of M. F., 780 S.E.2d 291, 297 (Ga.

2015).

Regrettably for Petitioner and for other parents similarly situated across the USA, the North

Carolina Supreme Court and many states’ highest

appellate court fail to follow this Court’s long recognized constitutionally protected interest of parents to

raise their children without undue state interference.

The fundamental liberty interest of natural

parents in the care, custody, and management

of their child does not evaporate simply because they have not been model parents or

have lost [at least] temporary custody of their

child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction

of their family life. If anything, persons faced

with forced dissolution of their parental rights

have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the

State moves to destroy weakened familial

14

bonds, it must provide the parents with fundamentally fair procedures.

Stanley v. Kramer, 455 U.S. 745, 753-754 (1982). See

generally U.S. Const. amend. IX (“The enumeration

in the Constitution, of certain rights, shall not be

construed to deny or disparage others retained by the

people.”); U.S. Const. amend. XIV, § 1 (“... No State

shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States ....”); Ga. Const. Art. 1, § 1, XXIX (“The enumeration of rights herein contained as part of this

Constitution shall not be construed to deny to the

people any inherent rights which they may have

hitherto enjoyed.”).

“Orwellian” is an adjective that MerriamWebster defines as: “of, relating to, or suggestive of

George Orwell or his writings[;] especially: relating to

or suggestive of the dystopian reality depicted in the

novel 1984.” https://www.merriam-webster.com/d

ictionary/Orwellian. “Yet Orwellianism isn’t just

about big government; it’s about authoritarianism

coupled with lies.” Five Myths about George Orwell,

Gordon Bowker, The Washington Post, February 24,

2017. https://www.washingtonpost.com/opinions/fivemyths-about-george-orwell/2017/02/24/24ef0572-f9ec11e6-9845-576c69081518_story.html

[W]hen [in the absence of compelling circumstances necessary to substitute its own preferences for the parent’s decision] state actors engage in this sort of Orwellian policymaking

disguised as judging, is it any wonder that so

many citizens feel as if the government does

15

not speak for them or respect the private realm

of family life.

In sum, I take this opportunity, yet again, to

remind our trial courts that, in making any decision or taking any action that interferes with

a parent-child relationship, our state statutes

are subordinate to and must be construed in

light of the fundamental rights recognized by

the federal and Georgia constitutions [ ]. As

this Court has rightly recognized, "[t]he constitutional right of familial relations is not provided by government; it preexists government."

Indeed, this "cherished and sacrosanct right is

not a gift from the sovereign; it is our natural

birthright. Fixed. Innate. Unalienable." Thus,

regardless of a court’s personal feelings or perception of a parent’s fitness to care for or retain custody of his or her child, careful consideration of these bedrock constitutional principles and safeguards must remain central to

each case without exception. And when this

fails to occur, we will not hesitate to remind

our trial courts of the solemn obligation they

have to safeguard the parental rights of all

Georgians.

Borgers v. Borgers, 820 S.E.2d at 482 (citations

omitted)(CJ Dillard, specially concurring).

Nothing could be more “Orwellian policymaking disguised as judging” Id. at 482, than the trial

court below, without a finding of unfitness or a

finding that harm would come to the children if

parenting time were awarded to Petitioner, depriving

Petitioner of any meaningful relationship with her

16

children and, simultaneously, depriving the children

of a meaningful relationship with their mother; that

is, unless their father, Respondent, allows it.

It is an undisputed fact that, when a child’s

parents live together, married or unmarried, the

child can spend time with each parent and also with

both parents 100% of the child’s time. The actual

time with each parent or both parents depends, of

course, on the age of the child, whether the child is of

school-age and is attending school outside the home,

the work schedule of one or both parents, and the use

of family, friends or others for childcare.

When parents choose not to live together, divorcing, if married, or, if not married, just moving

apart, this only means the parents choose to live

apart from the other parent. The children have no

part in the decision of their parents and the children

still have the same number of parents; i.e., two, but

now the children have two residences with one parent in each residence instead of only one residence

with both parents. The children do not choose to

slash their opportunity to share time with each

parent from 100% of their time not spent asleep, in

school, or in activities, to, at best, 50% due solely to

the separate living arrangements of the children’s

parents.

Certainly, as is the case here, by the very nature of a divorce action, a legal process the state

requires those married to endure, the trial court

understands it has been empowered by state statutes

and by the North Carolina Supreme Court to impose

on the parents and on their children whatever custodial schedule the trial court deems in “the best inter-

17

ests of the children.” Logistics alone may render a

50/50 split of parenting time unworkable for the

parents and the children at issue. However, there

should be, must be, compelling reasons to impose a

parenting schedule that deprives one parent of her

constitutional right to participate in her children’s

lives and that actually harms children and makes

more likely poor outcomes throughout their childhood

and into adulthood.

As noted above, children have poor outcomes

when the parenting time of a parent is less than 25%

(35% being the more commonly used benchmark).

Nielsen, L. (2017), Re-examining the research on

parental conflict, coparenting, and custody arrangements, Psychology, Public Policy, and Law, 23(2),

211–231.https://doi.org/10.1037/law0000109;

Joint

Versus Sole Physical Custody, id. at 5, 11; Shared

Parenting After Parental Separation, id. Therefore,

Petitioner’s zero percent (0%) parenting time cannot

be considered acceptable without a finding that

Petitioner is unfit or a finding that the children will

be harmed or are likely to be harmed when in the

care of Petitioner. Again, it is undeniable here that

Petitioner is a fit parent and that the children are

not at risk of harm when in her care. Otherwise, the

trial court’s grant of authority to Respondent-Father

to allow Petitioner with as much time with the children as Respondent-Father decides would be indefensible as being in the children’s “best interests.”

Amicus contends that when parenting time is negligible or non-existent, the parent-child relationship

has been de facto terminated, without the statutory

and judicial safeguards that must be followed when

states seek to terminate parental rights.

18

Trial courts are not omniscient. Trial courts

cannot be expected to make custody and parenting

time allocations with the wisdom of Solomon, yet that

is exactly what trial courts often appear to claim they

are doing. What percentage of parenting time is in

“the best interests of the children” in each case? If

everyone involved in the process was honest about it,

there is no means, no mechanism, by which trial

courts or parents can know. Therefore, in the absence

of a finding that a parent is unfit or that custodial

time with a parent will or likely will cause harm to a

child, trial courts should be directed to intervene as

little as is necessary to provide a logistically workable parenting schedule and, thereby, to provide each

parent and, therefore, the children not less than 25%

to 35% of parent-child time.

The right of fit parents to meaningful time

with their children, Amicus believes, is fully consistent with the original understanding of the Due

Process Clause of the Fourteenth Amendment and

wholly inconsistent with “the best interest of the

child” standard. Here, in a divorce case in which legal

custody, physical custody, and parenting time or

visitation are to be determined by a trial court,

ParentsUSA urges this Court to grant Petitioner’s

petition and provide the parties and Amicus the

opportunity to brief fully the issues raised. This

Court then may address the use of “the best interests

of the child” standard as the mechanism by which

courts across the United States infringe on the

constitutional rights of parents and, in so doing,

adversely impact the short and long-term outcomes of

children without attempting to balance the “best

interests” of the children courts may believe they are

19

serving with the harm the courts themselves are

causing the children.

Amicus submits that the Court should now

emphatically reaffirm and clarify its parental-rights

precedents.

CONCLUSION

For the foregoing reasons, Amicus ParentsUSA

respectfully requests that this Court grant Kelly

Georgene Routten’s Petition for Writ of Certiorari.

Respectfully submitted,

DAVID S. DELUGAS

Counsel of Record

NATIONAL ASSOCIATION OF PARENTS INC.

D/B/A PARENTSUSA

1600 Parkwood Cir, Ste. 200

Atlanta, Georgia 30339

(888) 687-4204

david.delugas@parentsusa.org

Counsel for Amicus Curiae

December 7, 2020