Bill About Custody Battle

On Feb. 9, The Times ran a critical editorial, “Congress, Stay Out of This One,” on a proposed legislative initiative in Congress dealing with the custody battle between Elizabeth Morgan and Eric A. Foretich. The editorial described the submission of HR 1855, a bill that would legislatively divest Foretich of his parental rights. While the editorial correctly notes that the intervention of Congress into a single family dispute is highly unconstitutional and dangerous, it incorrectly suggests that Foretich has continued to insist on visitation with his daughter despite her wishes.

To the contrary, Foretich testified in Congress under oath that he does not oppose the return of his ex-wife and certainly not his daughter to this country. Foretich also stated repeatedly in court that he does not oppose such a return and that he will not ask for, nor accept, any mandatory visitation with his daughter without her express consent.

Your editorial asks Foretich to “listen to his daughter” and counsels that “her voice should carry greater influence in any decision over her life.” The editorial further advises that, if Foretich wishes to avoid this unconstitutional act, “Foretich should again seek remedy in the courts” and voluntarily reduce his parental rights. It is remarkable that you believe that, when threatened with an unconstitutional act, the target of the legislation should relent and thereby remove the need for the legislation. Foretich refuses to accept Congress’ termination of both his parental rights and the court’s supervision over the care of his daughter.

Foretich’s opposition to this legis lation is confined to the language of the legislation, which directly negates his current parental rights and endorses the previously rejected allegations made against him by his ex-wife. For more than 200 years, Congress has been prohibited from enacting “bills of attainder,” or special acts that target a single person or group for punishment or penalty. It is this constitutional issue that has brought legal academics and civil liberties groups to oppose this unprecedented and dangerous act of Congress.

JONATHAN TURLEY

Professor of Law

George Washington University

Washington