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The Constitution and Separating Children from Parents: Constitutional Issues in Family Court

The Constitution and Separating Children from Parents: Constitutional Issues in Family Court

David Domina et al: Nebraska Lawyer Magazine

Separation of children from parents could not be a more acute concern. It commands the attention of the United Nations. The United States is the only country in the world that has not ratified the Convention on the Rights of the Child adopted by the United Nations and member states in 1989.

The border controversy and separations of children is one highly visible current international political problem. But every day in courtrooms across the United States, parents dissolve their marriages and children are separated from one parent or the other. These separations of a child from a single parent also raise serious legal issues. Until recently, the constitutional dimension of these issues has received little attention.

Domina Law Group is proud to contribute to an elevated awareness of the rights of parents and children to avoid separation from one another. David Domina led authorship by three lawyers of an extended article in the June 2018 Nebraska Lawyer Magazine focusing on the Constitutional issues in family law cases. See,

Domina and his co-authors call into question serious issues about the “best interests of the child” legal standard for determining custody and visitation issues. The standard is so vague that its constitutional dimensions are highly suspect.

The vagueness of this standard often leads to wildly different outcomes even in cases that deal with relatively similar circumstances. Research proves these outcomes often hinge on which judge hears the case, rather than on the law or facts.

Equal Protection for Mothers and Fathers

Empirical studies also prove a notable disparity in child custody rulings between mothers and fathers. These studies indicate that equal protection issues are present in family law cases. The Supreme Court ruled recently that child custody decisions:

“cannot be validated on the basis of the State’s preference for an allocation of family responsibilities under which the wife plays a dependent role. No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.”

Domina’s article, “Yes, Virginia, the Constitution Applies in Family Court, Too: Common Constitutional Issues in Family Law” may be read at the Nebraska State Bar’s website here.


If you are in need of an experienced attorney to help you navigate your legal issues, contact Domina Law Group today to discuss your situation with a member of our firm and learn more about what we can do to help. Fill out our online form today to schedule a case evaluation, or call us at (888) 387-4134 to speak with one of our attorneys over the phone.

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