The Nanny State of Oregon — Equal Parents, Unequal Rights — And Envisioning the Ideal “Family Law” System
Executive Summary: Oregon’s family law system turns judges into nannies, elevating conflict and costs while sidelining the equal constitutional rights of fit parents. After a century of Supreme Court cases confirming parental rights as fundamental civil rights, Oregon still annoints “custodial” winners and “noncustodial” losers, and its joint-custody veto hands one parent power over the other’s rights. I outline a parent-first model: default equality, mediation-first decision-making, neutral tie-breakers (providers or coordinators), and courts as a last resort — so kids get stability and both parents stay involved.
Read Time: ~3,000 words; 10-15 minutes
1. Introduction: Why this Matters
Divorces with young children happen, and they are not going away. Lowering the divorce rate is certainly a worthy goal, especially when children are involved and we can keep families together.
While most of this post will focus on Oregon, first let’s contemplate the “ideal” family law system for children. An ideal system would focus on the child’s relationship with both parents, and the child’s emotional and psychological health. An ideal system would keep parents out of court, where facts are manipulated by lawyers and limited time, where judges (and often lawyers) never meet the child(ren), and where parents must pay tens of thousands of dollars into a system that clearly only benefits the careers of lawyers, harming both parents, children, their social networks, and wasting judicial resources.
To even call Oregon’s current system “family law” borders on an oxymoron. In practice, it has become anti-child and anti-family: it incentivizes litigation and rewards those with more money and appetite for conflict. Parents are bled dry to pay attorney,s while pooer families are either shut out, or pushed towards overburdened “free” counsel who can actually look better on paper than a capable, working parent. And if a fit parent dares appear self-represented (pro se), they face an even stronger, unspoken bias in most courtrooms.
Here in Oregon, the only people I’ve ever met who think the “family law” system even resembles acceptable are lawyers entrenched in the system that pays their salaries — and even then, it’s only a minority. Most know our system is terrible, and many lawyers either moonlight as different but related jobs (parenting coordinator, custody evaluator, counselor or therapist, child attorney, etc.), or are moving their practices away from family law battles. I haven’t met a single non-lawyer who thinks the Oregon system is acceptable — let alone good.
Worse, Oregon’s system is built on an unconstitutional principle — that you can strip parental rights to equal decision making over children from one parent if the other parent refuses to consent. I’m challenging this law in federal court, but it’s not the focus on this post. Even for tens of thousands of parents who never actually went to a custody trial before a judge in the past four decades, the effects of that law were felt on them — the lawyers pressured them to agree to terms they otherwise wouldn’t have in other states, or otherwise wouldn’t have if Oregon’s system had been built on the constitutional principle that parents are equal.
2. The Core Question: Are parents equal?
Are parents equal? Or, more broadly, should they be?
In the strict, literal sense, the Constitution says nothing about divorce, marriage, or children. But the 14th Amendment is a powerful one, at the heart of this debate. The Fourteenth Amendment commands that no state may “deprive any person of life, liberty, or property, without due process of law,” nor “deny to any person … the equal protection of the laws.” The Amendment puts into power the idea that rights not explicitly enumerated in the Constitution still exist, either under the principles of the Amendment, by Congress, or with the States, if no federal laws exist. Congress has written major “Civil Rights” Acts, and we usually associate “Civil rights”, as a term, with equal rights for adults of the different racial backgrounds — i.e. equal rights for whites and blacks, the core of the post-civil war civil rights century, a fight which continues to the present day — or equal voting rights.
We don’t usually associate “civil rights” with parental rights. And why not? In my experience, it’s because these “parental rights” issues only really come up for divorced parents who want different things for their child(ren). Rarely in American history, parental rights are argued within the judicial system for a non-parent relative of the child(ren) — usually this is a grandparent or foster parent, and indeed, many of the “parental rights” cases before the Supreme Court have been of such families.
But unless you’re a divorced parent — or know one — you’ve probably never considered parental rights as a fundamental civil right. But guess who does? The United States Supreme Court — and not in a one-off case.
3. The Constitutional History: The Fourteenth Amendment
The U.S. Supreme Court has affirmed parent’s rights as civil rights — over ten times.
This began with Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), which protected parents’ authority over children’s education. Later, mid-century cases like Prince v. Massachusetts (1944) acknowledged strong parental interests, while allowing reasonable child-welfare limits. In the 70s and 80s, Stanley v. Illinois (1972) safeguarded unwed fathers’ rights to a fitness hearing; Wisconsin v. Yoder (1972) protected parental control of religious education; Parham v. J.R. (1979) presumed fit parents act in their children’s best interests in medical decisions; and Santosky v. Kramer (1982) raised the proof standard to “clear and convincing” before terminating parental rights. Most recently, Troxel v. Granville (2000) reaffirmed the “care, custody, and control” of children as a fundamental right, and Adoptive Couple v. Baby Girl (2013) wrestled with parental rights in the adoption/ICWA context—again treating parental status as a serious constitutional interest. (This isn’t the full list of cases, but these are among the most cited.) If a parent is deemed fit — which basically means a loving, decent parent — and about 95% of us are — then they have fundamental equal civil rights.
Apparently, here in Oregon, no one cares.
4. Oregon’s Outlier: The Joint-Custody Veto and “Custodial vs. Noncustodial” Labels
When parents aren’t agreeing and are going to a court trial, Oregon’s unconstitutional system and culture is built to label one parent as “custodial” and one parent as “noncustodial”. Guess which parent has “more” of their civil rights? The “custodial” parent, of course.
Let’s let that sink in: if two Americans are equal, how can one have more of their civil rights than the other?
Oregon argues that this was designed to reduce conflict out of the courtroom, after a “contested” trial, and we’ll get to that in a minute. Regardless of intention, however, it’s both morally wrong and unconstitutional: if parental rights are a fundamental, equal civil right, and both parents are fit, then rights cannot be taken away. And we must remember, labels drive outcomes. Once the law sorts parents into “custodial” and “noncustodial”, decisions tilt to once side, and conflict usually follows.
5. How Oregon’s Veto Hurts Families and Worsens Conflict:
Here’s how those labels play out in real life.
Let’s consider the logic of the argument that this system might reduce conflict — the argument made by the lawmakers who supported it in Oregon’s legislature in 1987. Unfortunately, in many cases, the effect is the opposite: the “noncustodial” parent might vehemently disagree with a decision they believe would harm their child(ren), but the educator/school/doctor/dentist/therapist must go by what the “custodial” parent said. The “noncustodial” parent has to return to court (and/or third-party providers) to make their voice heard; the “custodial” parent can paint them as aggressive, harassing, threatening, etc., and the two eventually return to court. The lives of both parents and child(ren) are further stressed — and only the lawyers benefit. Alternatively, the “noncustodial” parent “just lives with it” for a decade or more, and lives their life feeling that Oregon has taken away their equal rights.
Oregon’s family law culture is built on this idea.
What remedy, then, is available in Oregon’s system, if the “custodial” parent won’t agree to let the third-party mediator, or formally mediate with a mediator out of court? The only available option is a return to the court system — tens of thousands of dollars more on attorney’s fees, and/or scores of hours on motions, responses, documents, filings, appearances, and research on it all. And this could go on and on, every year or two, merely fighting for one’s constitutional rights.
6. What My Federal Challenge Says
This isn’t just theory, it’s the basis of my constitutional challenges.
In one of my federal filings, I challenge Oregon’s “joint-custody veto” law (ORS 107.169(3)), which lets one parent block joint custody by refusing consent. Oregon’s law violates the Fourteenth Amendment’s Due Process and Equal Protection guarantees—and burdens First Amendment, religious freedom — because it forces a categorical bar on joint legal custody whenever one parent withholds consent. The state’s law strips courts of individualized adjudication, and hands one private party unilateral control over a fit co-parent’s fundamental rights.
To summarize that with less legalese: it puts one parent’s civil rights into the hands of another! This “veto” invites weaponization, shifts focus from children’s needs to parental leverage, and exacerbates conflict rather than reducing it. The federal term is that Oregon’s law is unconstitutional facially, or “on its face,” and I’m fighting that it be struck down as such.
7. From Judges to Nannies: When Courts Micromanage Homes
Courts are completely unsuited to manage daily parenting.
Oregonian judges often “get in the weeds” of the private lives of divorced families, and here we come to the title of this post — literally nannying divorced parents. Not only will a judge set the day-to-day parenting schedule of the child(ren), they might have free speech restrictions, or restrictions on what a parent can or cannot (or must) do within the home with the child. They might also order where exchanges of the child must take place, or other such intimate particulars.
Judges are literally nannying parents — and some judges enjoy the “power trip” that comes from this. Regardless, the structure incentivizes judicial micromanagement of daily family life: decisions judges are ill-positioned to make after just a few short hours of family exposure. There’s no ideal parenting system, but parents should be parenting their children — not judges, who were often previously lawyers — or other caregivers that parents agree to allow into their child’s close circles. Judges are presented with an extremely narrow fraction of the child’s life, manipulated by each parent’s lawyer, and in the span of a few hours (or sometimes minutes), must guess at the exact terms with which to nanny these two divorced parents — and all of this without ever meeting the child(ren) they’re ordering decisions about.
No court can possibly weigh “all” of the evidence in a child’s life. In a case with an “event” — whether tax evasion, criminal, or business contract issue — the facts clutter around specific, past events; it’s at least conceivable to test a finite record. Children are different; they’re changing every week, every season, in ways no hearing or transcript can capture. By the time a judge signs a parenting plan, new realities already outpace the evidence, and the gap only widens year by year. (And all of this says nothing about the cost: each legal hearing can easily cost each parent in the tens of thousands of dollars.)
If you wanted to build one of the worst legal systems for children of divorced parents, you need not brainstorm — Oregon has already built it for you!
8. A Better Way: The Ideal, Parent-First Model
(Note: If it sounds like I’m modeling the foundation of an “ideal” family law system on an “in-tact” nuclear family, I am, but only for simplicity here. I’m not saying the modern American “nuclear” family is ideal. Non-traditional households certainly have their benefits, especially multi-generational households, and we should remember that the latter have been far more common throughout human history. Only recently do we have isolated, parent-child two-generation households living in isolation. However, a full discussion of this background is outside the scope of this post.)
An ideal system would not, in general, allow fit parents to wage courtroom wars over their children once both are found fit and loving. If two fit parents cannot agree, the answer should not be “fight harder in front of a judge! (and pay us — the lawyers — to fight for you!)”; it should be structured help.
Let’s assume parents are fit (almost all are) and loving.
If parents won’t agree on custody terms or a parenting plan, they should be routed into a professional support system — mediators, parenting coordinators, therapists, counselors, psychologists, custody evaluators, child attorneys, and others — centered on the child’s relationships with both parents and a healthy upbringing. If, after that, they still cannot agree, a neutral professional should review the situation on a regular schedule (for example, every six months, adjusted for the child’s age) and adjust as needed. The focus should be continuous problem-solving, not one winner-takes-all verdict that freezes a child’s life in time.
Courts are the worst place to decide routine questions of children’s lives. Allowing fit parents to litigate endlessly over “best intertests” only incentivizes conflict and manipulation, drains the family’s resources, harms the children’s futures, and wastes scarce judicial time that should be reserved for true abuse, neglect, and public safety.
9. Practical Tools: Defaults That Work
A: Age-Based Default Schedules (with a 50/50 Presumption)
In my humble opinion, the state should designate some “default” options based on the child’s age. 50/50 should be the presumption, if the parents can’t agree on the percentages of parenting time and both parents appear fit and loving. A 2-year-old isn’t mature enough for a 7-7 Schedule (week on week off with each parent), and a 2-2-3-2-2-3 schedule is too hectic for a 9-year-old, but states can easily have a default/recommended option for each age, with other recommended options.
These plans should also encourage contact with the other parent (calls, quick or shorter visits, participation at extracurriculars, etc.).
B: Right of First Refusal (ROFR)
Built into these plans should be a “right of first refusal”, often abbreviated “ROFR” — the concept that before a parent can allow another adult to watch the child(ren) for more than x-number of hours, they must first ask the other parent; only if that parent declines (first refusal) can they ask another caregiver. (Parents usually agree on this concept, but they usually disagree on the number of hours that should be required, so that’s the only detail for a mediator to mediate.
C: Everyday Tie-Breakers (Medical and School Decisions)
In Oregon, people within the system often object to me that medical and educational disagreements of divorced parents are reasons why rights cannot be equal, and judges/courts must make one person have more power. I disagree. All these decisions can — and should — take place outside of the court system, with neutral mediators given the tie-breaking vote.
Let’s take medical disagreements — first if that the parents agree on the provider herself, but we’ll come back to that topic in a moment — where disagreement can significantly affect the rest of the child’s life. If the parents disagree on the care plan for an abnormal sore throat — in the first few days following a lab test, let’s say — they should respectfully make their opinions clear to the provider, with or without the child present (depending on age, emotional maturity, and context), and the provider should choose which option she feels is best for the child. The other parent can (and probably should) object in writing with the provider and anyone overseeing their custody case, but the problem is solved at the day-to-day level, with the lowest friction and court intervention necessary. And four months later, if the parents disagree with the immediate care for an inflamed red eye (often one parent wants to wait-and-see for at least 1-3 days, yet often the other parents wants any and all drugs ASAP!), the provider might choose the side of the opposite parent.
This preserves equal rights — equal civil, parental rights — to make decisions with the medical provider, while also allowing for faster decision making at the point the decision is needed. Medical providers don’t need to consult with complicated court orders, and don’t need to worry that they are going to be involved in litigation. Much like an ER doctor making an in-the-moment-of-emergency decision, a provider with both parents present — but disagreeing — can clearly write the two options they considered, and why they chose the option they did.
The same schema can work for decisions within an educational setting/school.
D. Choosing Providers and Schools (When Parents Disagree)
How, though, do parents choose the medical provider — or school itself — when they disagree?
This problem is more challenging to solve, but it’s one that many states already have a professional vocation in existence for — the parenting coordinator. Parenting coordinators (often former or still-active lawyers who are working to expand their careers) often field day-to-day, minor decisions the rest of us might see as “silly”: who has to buy the rain boots this year, how far away to sit during an outdoor soccer practice, whether ballet or gymnastics class is the better choice for Saturday mornings, when each parent doesn’t want to take the child to the other parent’s choice of activities on “their” Saturday. But parenting coordinators not only are equipped to help make these gigantic decisions in the lives of a child — which medical provider and which school the child attends — they often find such work far more rewarding (especially considering the work of a lawyer is to litigate for one parent, against the other parent, and often manipulate the truth before the court, which most lawyers know only harms the child(ren) year by year).
These decisions are why parenting coordinators do what they do. Parents would have to clearly explain why they believe their choice (s) for a school or medical provider are best for their child, given locations, parenting time schedule, medical and educational philosophies, finances and income, and other factors. Parents could do this in writing or calls or in-person time, but they would have to make their best “case” to the parenting coordinator.
Year by year, decision by decision, the state system would hand tie-breaking authority of disagreeing parents to coordinators (or other professionals as the state system designed it), and parents could have some process to object and review without the expense, stress, and delay of the courtroom.
Even married parents in the same household might find use in such decision-making help — medical philosophies often differ within the same household. In our home, for example, pre-divorce, my former wife usually wanted any pharmaceutical intervention that the medical textbook would allow, as she came from a foreign culture with an extremely high trust towards (and deference of) anyone of authority: police, lab coats, construction workers, you name it. Having lived in different states and having a master’s in biology and an active health coach certification, I question authority — and I know medicine is well intentioned, but corruption is rampant. I’m supportive of routine vaccinations, I’m OK applying antibacterial cream if it’s a confirmed bacterial infection and it’s getting worse. Moreover, if I’m wounded in an emergency (via gunshot, car accident, etc.), you are free to rush me to the ER right away! But, at the doctor with my son, I often lean towards a “wait and see” approach. Things often get better in 12-48 hours with a child, and if one symptom or sign is getting better, but others are staying the same, I’m OK waiting some more, especially if my son’s complaints are low.
Drugs always have consequences, and pharmaceutical drugs always have unknown consequences — I only want to use them as a last resort, of if he’s clearly in pain or getting worse faster than “wait and see” would allow. So my former wife and I clashed on this philosophical and cultural difference even while we were married.
A good family law system should help even parents living within the same household — whether they are married or not. That should be the goal of each state’s family law system.
10. Are Children Property? How Property Law Warped Custody Language
A bad system, like Oregon’s is one parents want to avoid at all costs. Oregon's crowns “winners” and “losers”, as though the parents were fighting over property.
When we strip away the 19th-century baggage and return to first principles, a child’s wellbeing is best served by two fit, equal parents empowered to solve day-to-day issues without judicial micromanagement. Reform means a default of equality, mediation-first tiebreakers, and courts only as a last resort — so that families spend less time in court and more time parenting.
For much of human history — and under English common law — married women usually lost a unique legal entity through a concept called “coverture”, where the husband controlled property and decision-making. That idea morphed into childrearing, as fathers were treated as “natural guardians,” and many jurists — including Blackstone and early American judges — described children as “interests” (i.e. property) aligned with the father’s household and other property. Legal historians and Blackstone’s Commentaries (Book I, ch. 16) and early court decisions such as Barry v. Mercein (1842) note that early custody doctrine presumed control by fathers, with mothers holding on derivative rights.
However, by the 1800s, sentiment swung towards what’s called the “tender-years doctrine,” presuming young children should be with their mothers. Still, even that shift carried a property-like mindset — who gets the “award” of custody — before evolving into today’s language of the child’s best interests. Scholars trace this arc from paternal preference to tender-years to best-interests as courts moved away from ownership ideas towards child-centered standards — at least, in theory.
Oregon’s still in the stone ages. Its custody vocabulary — “award,” “custodial,” “noncustodial”, etc. — is a historical artifact, one based on the child as property, one that was never about fairness, or the child’s relationships and emotional and psychological health. Oregon’s vocabulary grew from rules about property and marital power — not from a first principles view of two equal, fit, loving parents sharing constitutional rights.
11. Conclusion: Act Now
When we strip away the outdated notions of ownership, what remains is simple: fit, loving parents should stand equally under the law. Real reform means starting from that equality — making courts the exception, not the rule.
If this post resonates with you, please share it and send it to your lawmakers — not just in Oregon, but wherever you live. Here are two sites to help you find them: pluralpolicy.com and congress.gov. Every state can do better than parenting by court order. If we want our children to be the true winners, we must treat parents as equal partners and use courts only as a last resort.
If you’d like to help me push real family-law reform — default equality, mediation-first, and less judicial micromanagement — donate so I can run for Governor to reform Oregon’s system and set a better model for the rest of the country.
Together we can end the nanny state idea in family court and put families — not bureaucracies — back in charge.