Equity is supposed to be what is just and fair. However, this authority has been repeatedly misused and misunderstood, and thus been the excuse for a great deal of injustice. Equity has too frequently been the banner under which parents and children have been dealt injustice. Equity does not give the court license to treat parties unfairly. Equity does not give the court the authority to punish the innocent.
There are bounds to equity, even in divorce and custody cases. Those bounds are set by the Fourteenth Amendment of the Constitution, which guarantees all equal protection under the law. When a custody dispute arises both parents have the same rights and liberties. However, it has now become routine that when those parties leave the courthouse only one of those parents will leave with their rights intact. One parent will be given custody and the other will be removed from the child’s life except for occasional visits. One parent will remain a parent and the other will become an acquaintance that helps with the bills. This outcome is said to be equity, but the concepts of justice and fairness are nowhere to be found.
Equity has no authority to rob Justice. Equity is the servant, not the master of Justice. When parents decide to divorce they are making a decision that they want to raise their children in two homes. A judge may believe that this is a “bad parenting decision” but, bad parenting decisions, absent abuse or neglect, do not empower the court to take over parenting decisions. When the court decides in “equity” to unequally distribute parental rights, privileges and responsibilities it usurps the ultimate parental authority over the child. A stranger in a black robe has now taken parental rights and authority from fit parents and delivered it to the state. This may sound like a cold, harsh exaggeration, but consider who really has authority to direct the upbringing of the child when the parties leave the court. If mother and father do not agree on where the child should go to school, if the child needs braces, how many extracurricular activities are in the child’s best interests, etc., then it is back to court the parties go and the state through a judge will now be making all final decisions.
How much simpler it would be if the court simply refused to interfere in parenting decisions.