Sunday, February 19, 2023


By Tim Rohr

As posted at Kandit News:

“This AG’s Office is pro-parents and believes parents must have discretion to raise their children. Raising your kids is a fundamental right protected by the U.S. Constitution.  Both non-corporal and corporal punishment will be supported by this AG’s Office. There is a difference between child abuse and firmly raising one’s children to make them respect the rules.  All parents are welcome to contact me directly if they are faced with an allegation by Child Protective Services or any law enforcement officer / prosecution for my personal review.  This AG’s Office is a work in progress to  bring balance back to conservative, time-proven values.” 

While Moylan's comments are in the context of parents disciplining their children, Moylan's reference to the right to parent as a "fundamental right protected by the U.S. Constitution" speaks to the larger issue of  when and by what authority can the state deprive a parent of this fundamental right.

Said "fundamental right" is inherently set forth in the Fourteenth Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The U.S. Supreme Court has interpreted the Fourteenth Amendment in the family law context to protect parents from undue intrusion by the state, and the American Bar Association in "Parental Rights Cases to Know" sets out several cases relative to parental rights, the most recent and definitive of which is Troxel v Granville (2000):

the “liberty interest…the interest of parents in the care, custody, and control of their children— is perhaps the oldest of the fundamental liberty interests recognized by this [Supreme] Court…It is cardinal with us that the custody, care and nurture of the child reside first in the parents…”

Troxel is of particular interest because the parents of the children were not married and even did not live together at the time of the father's death. Copying here from the case:

Tommie Granville and Brad Troxel shared a relationship that ended in June 1991. The two never married, but they had two daughters, Isabelle and Natalie. Jenifer and Gary Troxel are Brad's parents, and thus the paternal grandparents of Isabelle and Natalie. After Tommie and Brad separated in 1991, Brad lived with his parents and regularly brought his daughters to his parents' home for weekend visitation. Brad committed suicide in May 1993. Although the Troxels at first continued to see Isabelle and Natalie on a regular basis after their son's death, Tommie Granville informed the Troxels in October 1993 that she wished to limit their visitation with her daughters to one short visit per month.

What is important in Troxel is that the Constitution trumped "best interest of the child factors," - a common legislative denominator in almost all custody cases involving minor children - including Guam.

Note: Even though Troxel is the critically relevant case pursuant to the content of this post, Santosky v Kramer is even more impactful given that (per this summary): "even after parents are found unfit in a contested court proceeding, they retain constitutionally protected parental rights."  

This finding is major given how the lower courts continually ignore "constitutionally protected parental rights" if and when - per "the best interest of the child," the parents - or a parent - is found "unfit." 

In fact, family law attorneys (and I know this from experience) will tell you NOT to mention "constitutional rights" otherwise you will "p*ss off the judge.")


It is clear throughout Troxel that the best interest of the child would have been better served had the children's grandparents (Troxel's) had the access to their grandchildren that they sued for. Nevertheless, the Court, said "no." The Constitution must stand. 

Many parents have lost their children (and the children have lost at least one parent) due to the very vague legislative standard of "best interest of the child." 

As an example, the Guam Code states this:

Custody should be awarded to either parent according to the best interest of the child. 19 GCA § 8404(a)(1)

That's it. The law sets out no "factors." So who and what determines what is in the "best interest of the child?" 

The seminal case in Guam which established the so-called "best interest of the child factors" is Howerton v Howerton (2004)

However, even in Howerton, the Guam court had to reach out to an obscure 20 year old opinion (1984) from a Tennessee court to set out what "should be" the "best interest factors:" 
For instance, in Bah v. Bah, 668 S.W.2d 663, 666 (Tenn. Ct. App. 1984), the court found that in determining where the best interests of a child lies when awarding custody, the lower court should consider many factors including, but not limited to... (see this link for the factors set forth in Bah.)

In short, no one really knows what are these "best interest factors," a "factor" which opens up the whole matter for the court to use its "discretion" - functionally an open door for the judge to do whatever he or she chooses. 

Actually, despite being on the losing end of some significant "judicial discretion" decisions in my own case, I sympathize with the judges in family law cases given that the legislature has provided such nebulous guidance - and guidance which functionally ignores, if not contradicts, the Constitution

Here's an example of how the Court is forced to rule based on the vagaries of the law relative to the "best interest of the child:"

The primary consideration when determining custody is the best interests of the children. See 19 GCA § 8404; Flores, 1998 Guam 30. The purpose of a custody hearing is "to determine the best interests of the child and not that of the parents." Flores, 1998 Guam 30 at P 23. "The issue is not what is in the best interest of the family unit consisting of the custodial mother and the minor children." Riley v. Riley, 45 Ark. App. 165, 873 S.W.2d 564, 567 (Ark. Ct. App. 1994). Once a court finds that a change in custody is necessary, the sole issue before the court is "determining the best interests of the children, not the children and their mother, and not the children and their father." Id.Lanser v. Lanser, 2003 Guam 14, 2003

The Court is caught between a rock and a hard place. The parents are fighting, so the Court "in the best interest of the child" steps in as the parents patiae. 


And this is a big "HOWEVER." In the absence of better or more detailed legislation, the Court can and should fall back on the Fourteenth Amendment and NOT deprive a parent of a child (nor the child or a parent) without Due Process

In family court, this would translate into NO CUSTODY DETERMINATION - even temporary custody - without an evidentiary hearing

As it stands now, judges can and do make custody determinations based solely on filings...and not hearings (functionally mini-trials). 

And - given the ubiquity of gross lying in domestic cases (even under penalty of perjury), AS WELL AS ATTORNEY NEGLIGENCE AND ERROR (aka "Ineffective Assistance of Counsel"), innocent children can be - and are  - severely harmed. 

Without getting into details... of the five judges in my own case made a custody determination based solely on filings. The filings were deficient due to my then-attorney's refusal to file a reply to very damaging allegations. 

Based on the filings and the lack of a reply from me, the judge awarded temporary custody to the other side. 

HOWEVER, due to some very strange anomalies relative to my case, compounded by the Covid shut down of the courts, what should have only been a few months turned into 5 very long years during which time two of my children were irreparably damaged by being deprived of their father during the most formative years of their lives.

Thus, I go back to a letter to the editor I sent to the Guam Daily Post in November 2022, and which I re-posted here in JW relative to what the Legislature and our Courts can and must do if "Our Children (really) Are Our Future" - as so many politicos are wont to say.

Copying here from the original post

Here are three recommendations:

1. After criminal matters, domestic cases involving children should be pushed to the top of the judicial calendar. Children are only children for a very few years and even temporary orders can last years given that the courts often look at domestic cases as simply unsavory spats between parents. Interestingly, Guam law fast tracks child support but not custody. It should do both.

2. Relative to awarding custody, even temporary custody, an evidentiary hearing should be automatically calendared. As court rules stand now, one of the parties must request a hearing, and even then the court has the authority to waive the hearing and grant custody based solely on the filings. This is dangerous. It is not uncommon for parties in domestic disputes to outright lie - even under penalty of perjury. And it is much easier to lie on paper than in the full view of a black-robed judge. Also, attorney neglect, if not outright malpractice, may result in the court awarding custody to the parent who is most dangerous to the child. Our laws make much of “the best interest of the child,” but unless a judge engages both parties, in-person, and in a full evidentiary hearing, the child is at risk - sometimes severe risk.

3. Guam needs a unique version of a “child-kidnapping” law. Given Guam’s remote location it is not uncommon for a disaffected - but still legally married - spouse to relocate to a faraway state or territory with a couple’s minor children without the other parent’s knowledge or consent. To address such a scenario, Guam adopted the Uniform Child Custody Jurisdiction and Enforcement Act. However, for the abandoned parent to take action under the Act, he or she must usually initiate an action for divorce and then await the peculiarities of the court’s calendar relative to domestic cases. Meanwhile, a child might remain functionally kidnapped and in the custody of an abusive parent…for years.

I hope you get your children back. 

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