I intend to file a civil rights suit under §1983 and §1985 in federal court for violation of my fundamental parental rights in (post-)divorce proceedings.
I'm determined to do this on my own if I have to, but I'm seeking a civil rights attorney who will represent me pro bono. However, should we prevail, the attorney should be awarded attorneys fees and costs against the defendants jointly and severally under §1988.
Defendants will be: 1. State attorney general in official capacity; 2. state district judge in official capacity; 3. state commissioner in official capacity; 4. my ex-spouse; and 5. my ex-spouse's attorney. Other possible defendants might include the attorney general of another state and the my ex-spouse's former attorney in that state.
Claim: 1. "best interests of the child" standard to order child custody is an unconstitutional infringement of a *fit* parent's fundamental right in the "care, custody, and control" of the parent's child; 2. child support is an unconstitutional infringement of a *fit* parent's fundamental right in the "care, custody, and control" of the parent's child.
Generally, a *fit* parent has a fundamental right to roughly equal parenting time under substantive Due Process and Equal Protection in divorce proceedings. Generally, *fit* parents are not obligated to pay child support to each other regardless of custody time.
*Fit* parents, not the state, are presumed to act in the best interests of their child (whether the parents are (un)married or divorced/ing), that includes the fit parent's prerogative, discretion, and determination of the level of financial support for a child above necessary minimums. The *only* time a state/court can award anything besides a rebuttable presumption of roughly equal parenting time and no child support between fit parents is when there is "clear and convincing evidence" that the state is using the "least restrictive means", "narrowly tailored" for a "compelling state interest". A near legal impossibility with the robust precedent from the US Sup Ct on this issue including this gem: "The State's interest in caring for...children is de minimis if [a parent] is shown to be a fit [parent]." (Stanley v Illinois at 657-658, 1972)
I have been declared to be a "fit" parent and a "joint legal custodian" with my ex by divorce decree from a state with prior, exclusive jurisdiction. However, I do not have roughly equal parenting time under the decree. Further, the current state with exclusive jurisdiction is probably going to order me to pay child support, and is denying me roughly equal parenting time. If/when the current, state court orders child support and denies me roughly equal parenting, I am filing my civil rights suit.
I will seek damages against my ex, ex's attorney, and possibly ex's former out-of-state attorney as "state actors" using a "government created legal framework" (i.e. "best interests" custody and child support guidelines) with state "compulsion or encouragment" (the only/primary way custody & support are handled acorss the country), and where the state "knowingly accepted benefits of this unconstitutional practice" (such as Title IV-D payments ($5B/year) from the federal government to the states for child support enforcement). The damages will include, among other things, any child support payments ordered, lost employment income, and attorneys fees during and post divorce.
I will seek declaratory and injunctive relief against the attorney general, judge, and commissioner to enforce my fundamental rights to equal parenting time and no child support.
The commissioner recently ruled that I waived my rights. I objected to that ruling, and the judge is reviewing.
Fundamental rights (like parenting, right to counsel, privilege against self incrimination, and others) cannot be waived unless "voluntary, knowingly, and intelligently" and with "procedural safeguards" in place. Not only are there no procedural safeguards to protect fundamental parental rights (and concommitant children's rights to free assocation, speech, among others) in any jurisdiction in the U.S., the current process of child custody and support in divorce is completely anti-thetical to fundamental family rights. Divorce courts run roughshod over the rights of parents and children in court every day.
I have a brief that argues and cites all the legal points I've made above. I will provide a link to that document and provide additional information in later posts when I can get to it. The US Sup Ct precedent in favor of these family rights is very robust, but the so-called "family" law has been largely neglected as a sort of backwater area of civil and constitutional rights. It's a horrible tragedy in jurisprudence.
I'm in the process of drafting pleadings for the civil rights suit. I will post a link to that rough draft when I'm done. I hope that if I can't get an attorney to represent me, that I can get some tips or suggestions with my pleadings, etc.
A final note: if I fail to prevail because I've "waived" my rights, then I will be pursuing a legal malpractice claim against my former attorney for failing to advise, assert, and defend my fundamental parental rights in the original divorce proceeding. That's right...all you family attorneys who have failed to attempt to defend your client's fundamental parental rights in divorce have a potential malpractice claim hanging over you.