Civil rights suit for violating fundamental parenting rights

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Latest post Tue, Dec 29 2015 11:05 AM by LegisMojo. 13 replies.
  • Wed, Dec 23 2015 4:50 PM

    • LegisMojo
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    Civil rights suit for violating fundamental parenting rights

    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.

  • Thu, Dec 24 2015 8:36 AM In reply to

    Re: Civil rights suit for violating fundamental parenting rights

    1. The judge and judicial officers have absolute immunity.  Stump v. Sparkman (1978) 435 U.S. 349.

    2.  Your ex-wife and her attorney are not state actors and advocating for her position regarding custody is not a violation of 1983 nor will it serve as a basis for suit against either of them. 

    3.  You're not going to find an attorney to take this pro bono.

    4.  Good luck with that.

     

  • Thu, Dec 24 2015 9:49 AM In reply to

    • LegisMojo
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    Re: Civil rights suit for violating fundamental parenting rights

    JaymeP:

    1. Except Absolute Immunity does not extend to protection from injunctive and declaratory relief under §1983 and judges (as well as executive officers like the attorney general) can even be charged attorneys fees under §1988 (Pulliam v Allen, 466 US 540, 541 (1984)). §1983's predecessor, the Civil Rights Act of 1871, was intended to enforce the provisions of the Fourteenth Amendment "against State action, . . . whether that action be executive, legislative, or judicial." Ex parte Virginia, 100 U. S. 339, 346 (1880). Thus, "The rule [of state sovereignty/immunity], however, does not bar certain actions [like §1983] against state officers for injunctive or declaratory relief." (Alden v. Maine, 527 US 706, 757 (1999))

    2. Incorrect re "state actors". There are several situations in which *private parties* like my ex and her attorney can be deemed as "state actors" for purposes of "under color of state law" for civil rights actions. Regarding private parties as state actors under color of state law for civil rights actions see North Ga. Finishing, Inc. v. Di-Chem Inc., 419 U.S. 601 (1975) (private party is a state actor when the party deprives the injured of federal rights by using a governmental framework requiring government approval or action), and Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)(attorney liable for racial discrimination in preemptory challenges). Besides using a "government created legal framework", two other grounds for making my ex and her attorney as "state actors" is state "compulsion or encouragment", and where the state "knowingly accepted benefits of this unconstitutional practice". So, they are liable under three different rules under existing USSC precedent.

    As I stated in original post, I have a brief which details the controlling cases for my claim, but there is a lot of ignorance among family law attorneys and civil rights attorneys about the existence of this precedent and how it should apply in divorce court, which is why current family law is this horribly neglected backwater area of "law". Civil rights and family law attorneys should be ashamed that they have allowed so much state interference with family rights in divorce. It's despicable.

  • Thu, Dec 24 2015 10:07 AM In reply to

    Re: Civil rights suit for violating fundamental parenting rights

    LegisMojo:
    can even be charged attorneys fees under §1988

    No, they can't.  The statute you're referencing has been amended twice since the Pulliam decision. It now reads "except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction."  The family law judge clearly has jurisdiction over a family law matter in his court.

    1983 actions based upon family court custody and visitation  issues have been brought in the federal courts, most unsuccessfully.  As I said, good luck.....

  • Thu, Dec 24 2015 10:18 AM In reply to

    • LegisMojo
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    Re: Civil rights suit for violating fundamental parenting rights

    That  change in 1988 does not extend to executive officers, like attorney general.

    And you didn't address any part of my point that Absolute Immunity does not extend to injunctive or declaratory relief under the Civil Rights Act. Yes, they are immune from damages, but not injunctive or declaratory relief. Otherwise, the Civil Rights Act is virtually neutered against state tyranny.

    Your silence about private parties as state actors also is telling.

  • Thu, Dec 24 2015 10:25 AM In reply to

    • LegisMojo
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    Re: Civil rights suit for violating fundamental parenting rights

    Also, your point that family custody issues have been brought under 1983 is incorrect. Cite a single district or appellate case. There is none.

    Most family issues in federal court have been dismissed due to "domestic exception" or abstention doctrines. Domestic exception does not apply when the central matter is fundamental rights as opposed to idiosyncratic, state family law.

    There are exceptions to abstention under Younger that would allow a 1983 action for jurisdiction in federal court.

  • Thu, Dec 24 2015 10:36 AM In reply to

    Re: Civil rights suit for violating fundamental parenting rights

    LegisMojo:
    Cite a single district or appellate case. There is none.

    Brittain v. Hansen (2006) 451 F.3d 982.  I am not responding to the rest of your posts or addressing all the issues because it's clear that all you want to do is argue and it's simply not worth my time over the holidays. Good luck.

  • Thu, Dec 24 2015 12:09 PM In reply to

    • LegisMojo
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    Re: Civil rights suit for violating fundamental parenting rights

    JaymeP,

    First, thanks for engaging at all. I want to hear good faith, reasonable points contrary to my position. That's one of the primary reasons I'm posting this thread. You've already helped me understand a small piece of this puzzle I hadn't resolved yet. Please stay engaged as you can. Enjoy your holidays, but please check back in at least once after I've provided additional information and a links to the legal brief and the rough draft on my pleadings. I value your comments.

    Thanks for Brittain v Hansen. That case is inapposite to my case. My claim is based on *fit* parents with *substantial* infringement on *fundamental* parental rights under 1983. In Brittain, the court determined that the the cop's action was not a substantial infringement of mother's *visitation* rights, and thus, did not rise to a 1983 claim violating *fundamental custodial* rights. The cop's qualified immunity applied because the facts and law did not support a 1983 case. Thus, there was also no 1983 exception to immunity. So the cop is not liable. In reading the case, I agree with the result of the court: the cop made a reasonable, good faith judgement call in his discretion and didn't do anything rising to a civil rights violation. In fact, the case reminds me of how legislators and courts have hamstrung cops by putting them in awkward sitations like that case. But I'll save my digressive comments on that for another day.

    In my situation, there is in fact and law a substantial infringement of my fundamental rights as *fit* parent. So 1983 claim does apply, and thus 1983 exception against immunity applies to...at least in regards to declaratory and injunctive relief against state officials.

  • Thu, Dec 24 2015 6:30 PM In reply to

    Re: Civil rights suit for violating fundamental parenting rights

    LegisMojo:

    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.

    You will lose on that one. The case law makes that quite clear. Challenges to the constitutionality of child support orders have been made and routinely lost.

    The standard of the best interests of the child has been accepted as the standard for determining matters concerning custody, visitation, and support by legislatures and the courts for decades and you'll not get the courts to change that now. What you are overlooking here is that the child and the other parent have certain rights, too, it’s not all about you. The Supreme Court has held that a fit parent’s decisions regarding many decisions for his/her child should be given great weight and a presumption that the parent is acting in the best interests of the child, but that is a presumption that can be rebutted. See Troxel v. Granville, 530 U.S. 57 (2000).

    Moreover, these constitutional issues should be raised within the custody/visitation/support cases that you are complaining about. Filing a separate action later to sue the judges and every one else involved is not the proper way to pursue these challenges. If you did not contest these issues in those cases you cannot now sue the persons involved because you didn’t like the outcome. Res judicata will bar that.

    The immunity of the judge would also bar your claim against him/her.

    The other parent and his/her attorney owe you no special duty and cannot be successfully sued simply for opposing what you want. Why should the other parent not the have the right to oppose your position? You have the right to present your case, and so does the other parent.

    I doubt you'll find a lawyer to take this case. At least as you have described it here, it is likely frivolous and would subject the lawyer to sanctions for filing it.

  • Mon, Dec 28 2015 3:23 PM In reply to

    • LegisMojo
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    Re: Civil rights suit for violating fundamental parenting rights

    Taxagent,

    I disagree on just about every point of your post, and it's a good example of what I refer to above as "a lot of ignorance among family law attorneys and civil rights attorneys about the existence of [USSC] precedent [re parental rights] and how it should apply in divorce court."

    You seem to have missed most of the discussion in the thread prior to your post. You give incorrect generalizations, and with no specific case or law to back it up.

    There is no federal case specifically on point regarding the constitutionality of child support orders on a fit parent, let alone "routinely". In fact the constitutionality of child support orders on a fit parent would be a de novo, legal issue. Cite a reference in federal court. Otherwise, you are just promoting propaganda. You can't cite a reference on point because any existing case is inapposite on the law or the facts.

    It doesn't matter that states having been using best interests standard for decades. That doesn't make it any more constitional than what was done over 100 years ago when men were routinely granted chid custody in divorce because women and children were considered the man's property.

    Your analysis that what I am "overlooking here is that the child and the other parent have certain rights, too, it's not all about you" is bizarre. It's not my ex whose rights are being violated; it's my parental rights that my ex is violating. My rights and my children's rights to equal parenting are being violated by my ex's state sponsored and supported framework that allows her to do this. Neither my ex's nor the state's determination of the best interests of the children are to be given *greater* weight than my determination. Troxel supports my position that: 1) I am presumed to be a fit parent; and 2) I am presumed to act in the best interest of my children. And precedent prior to Troxel goes further that those presumptions of my parental rights can only be rebutted by clear and convincing evidence of the least restrictive means narrowly tailored to a compelling state interest. State divorce courts completely fail to follow USSC precedent in this respect. What the divorce courts are failing to do is protect these fundamental parental and child rights under Equal Protection.

    I disagree that the constitional issues "should [only] be raised" in the state proceedings. The Civil Rights Act is specifically there to provide US citizens protection against state tyranny in federal courts. It is up to the civil rights plantiff to decide upon the most effective strategy. At this point, I will file the 1983 action, certify state constitional issues to the state supreme court, and reserve federal constitutional issues pending the state court's decision.

    Res Judicata will not prevent a 1983 action. A 1983 action in this case is not an appeal, and it is not another proceeding on the same issue. It is an original action attacking a soon to be made order that violates my parental rights. I could file an (interlocutory) appeal in state court, or file a 1983 action, and possibly even both depending on the timing of the filing.

    Again, as I stated above, immunity of the judge does not bar 1983 actions for declaratory and injunctive relief against the judge. I cited specific, established precedent on this.

    Again, read the posts earlier in the thread. There is specific predent, which I cited, for holding *private parties* (like my ex and my ex's attorney) as "state actors" "under color of state law" under section 1983 claims.

    I might not be able to find a lawyer in this case, but it's not because its frivolous. Far from it, it has more to do with ignorance of USSC precedent on parental rights, and ignorant bias on the constitutionality of divorce laws.

     

  • Tue, Dec 29 2015 2:20 AM In reply to

    Re: Civil rights suit for violating fundamental parenting rights

    You are trying to make out a constitutional right that does not exist. No court has held that there is a constitutional right to equal parenting time, and your arguments do not support creating one. You are basing it all on the idea that as a fit parent your decisions should control. But under that premise, if your ex is a fit parent her decisions should likewise control. But if she doesn't want the same outcome as you, what then? You seem to be saying that your decisions would be paramount, which is why I said it is not only about you. Your ex has rights too. So when her decisions regarding the child conflict with yours, how should that be resolved? Neither fit parent would automatically be able to veto the other, right? So some other standard must be used by the courts to resolve that problem. That's why the best interests of the child standard is applied. Some standard is needed to resolve the differing views of the fits parents. So why is it that what you want automatically trumps what your ex wants? Do you not see the problem with that? What other standard do you think ought to be used to resolve these disputes?

    I won't bother trying to futher argue the matter with you though. You are convinced you are right and I doubt anything I tell you will make any difference to what you plan to do. But I will make this prediction: you will not succeed in getting the federal courts to declare that there is a constitutional right to equal parenting time. There are practical problems with such a rule, nevermind that there is no basis in any court decisions from which to derive such a right. Feel free to post back when the case is over and let us know how you fared.

  • Tue, Dec 29 2015 4:27 AM In reply to

    • LegisMojo
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    Re: Civil rights suit for violating fundamental parenting rights

    Taxagent,

    I disagree again on nearly every point. Roughly equal parenting time is the only correct conclusion that can be drawn based on prior USSC precedent on parenting rights of fit parents, even high conflict parents. And your presumption that *my decisions are paramount* is an incorrect intrepretation. My argument is based precisely on neither parents' custody preference is controling. They are both entitled to equal parenting time in divorce; it's not a matter of preference. No parent is entitled to more parenting time than another.

    Your point is not missed. It's a common and expected objection, but it's still deeply flawed. Yes, a standard is needed, but best interests is not a constitutional standard.

    Reno v Flores (1993) explicitly states that best interests is not traditionally the sole criterion-much less the sole constitutional criterion for determining custody.

    When the various constitutional precedents about parent rights are pieced together in a coherent framework, best interests cannot be used to determine custody between fit parents.

    "Ideat cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." (Troxel at 66)

    Strict scrutiny applies to fundamental rights, and custody decisions must be done under Equal Protection as well. I already cited Stanley earlier in the thread, but I'll cite it again: "The State's interest in caring for...children is de minimis if [a parent] is shown to be a fit [parent]." Under Stanley, there is no compelling government interest in a strict scrutiny analysis: a state's interest is "de minimis"! in the care of a child with a fit parent. The only cases where the USSC has identified a state interest in child custody beyond "de minimis" is to protect the child from substantial harm. Divorce is *not* per se a presumption of harm to a child. Nor are high conflict parents unfit parents. When it comes to fit parents, the state has the burden of proof for infringing on a parent's care or custody of the child, and the burden also must be by clear and convincing evidence. Best Interest does not pass strict scrutiny analysis. What the court is left with and what the court must do is protect and preserve the fundamental rights of the parents and the children by minimizing as much as possible the infringement of those rights in divorce. And one fit parent's custody cannot be preferred over another. That leads to roughly equal parenting time. Otherwise one of the parent's rights is violated under Equal Protection.

    Now consider a hypothetical example: high conflict, but fit parents can't agree to anything, including a stipulated custody schedule for the court to endorse. One parent lives in LA, the other parent lives in NYC. So what is the court to do: one parent gets the child the first half of the year, and the other parent gets the child the second half of the year. The court would defer to what the parents are presumed to determine as the best interest of the child for custody. But in the absence of agreement, the court has protected all of the parties fundamental rights the best as possible under Equal Protection by splitting custody time into roughly equal halves of the year. The end.

    So you are wrong about practical problems too. It cuts through that gordian-knot bullshit that states have created for themselves by micromanaging custody in divorce for fit parents.

    The bottom line is: the state does not get to determine what the custody schedule is in the best interest of a child of fit parents; it is not the state's problem, nor the state's business about the care of a child including where to live, schooling, religion, etc. The state/court's primary interest is to minimize the infringement on the family rights in divorce as much as possible.

    So, your analysis about equal parenting time is wrong. Roughly equal parenting time is *not* one parent *automatically trumps another parent* because both parents have roughly equal parenting time. Anything other than roughly equal parenting time *is* one parent trumping another parent, AND at the expense of the other parent. Trumping is exactly the problem with "best interest", but You don't see it. You have it backwards. Under best interest a parent tries to prove s/he is the better parent to trump the other parent, and with government support and encouragement. Horrible!

    It's absolutely disgusting that anyone believes a court has the authority to *veto* parents rights and impose its arbitrary determination of best interests. Troxel: Fit parents are presumed to act in the best interest of children. *NOT* state or its courts! How do you not see that the current best interests standard is flawed, state tyranny which enables & exacerbates divorce by pitting one fit parent against another fit parent to prove who is the better parent. Despicable! and Ridiculous.

    No one wants to "further argue the matter" when they have an indefensible argument...

    I'll make a prediction: if the federal courts fail to declare roughly equal parenting time as a rebuttable presumption of a parent's fundamental right, that's tantamount to an act of war. The government has absolutely no authority to deprive a fit parent of equal parenting time. That is sacred ground the states have been trammelling for decades. The fact that you don't recognize that is appalling. Equal parenting time is as fundamental a right as voting, right to counsel, or Miranda rights. Miranda rights were not explicit either until 1966. Nor gay marriage for that matter. Parenting rights have a looong, explicit USSC precedent. It is not a jump to draw those precedents to their conclusion under Equal Protection in divorce: roughly equal parenting time.

    The states' current best interest standard is a substantial factor in the decline of marriage and fertility rates across western civilization to unsustainable population levels. The states' overreaching in divorce laws make marriage and children not worth the risk, especially for men. You may not realize this decline, but decades of this overreaching has already affected behavior going beyond trends to established relationship patterns. Every citizen should be demanding legislators to amend their custody rules to a rebuttable presumption of roughly equal parenting time, but flawed bias is strong, as we see in your own misconception. The person who has already made up your mind is...you.

     

  • Tue, Dec 29 2015 7:18 AM In reply to

    Re: Civil rights suit for violating fundamental parenting rights

    LegisMojo:
    I'm seeking a civil rights attorney who will represent me pro bono.

    ZERO chance of that happening.  Feel free to start calling law firms but don't be surprised when you don't get any calls back or are flat out told no.  This isn't a civil rights issue as much as one between you and your ex-spouse.

    LegisMojo:
    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.

    Rarely if ever does a lawyer/firm take over a case after a pro-se filed it themselves simply because they don't want the liability or the responsibility to clean up their mess.  

    Site rules here prohibit giving specific legal advice so you won't be getting tips or advice on your brief/case here either.  Especially not the way you argue.

    LegisMojo:
    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.

    I disagree on just about every point of your post, and it's a good example of what I refer to above as "a lot of ignorance among family law attorneys and civil rights attorneys about the existence of [USSC] precedent [re parental rights] and how it should apply in divorce court."

    ANYONE here surprised that this guy is divorced?

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • Tue, Dec 29 2015 11:05 AM In reply to

    • LegisMojo
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    Re: Civil rights suit for violating fundamental parenting rights

    ClydesMom:
    ZERO chance of that happening. Feel free to start calling law firms but don't be surprised when you don't get any calls back or are flat out told no.

    A civil rights attorney did look at it, and he had nothing but very high praise after reading the legal brief. In fact he was a little stunned. He declined to take it because of his current workload, and his depth of experience in family law. He may still act in an advisory role.

    ClydesMom:
    This isn't a civil rights issue as much as one between you and your ex-spouse.

    I disagree. This is a private party as a state actor using a governmental framework to violate the civil and fundamental rights of me and my children. You can rail conversely all you want, but until you cite a case, statute, argument or otherwise, you are incorrect. Best Interest is an unconstitutional standard, and the USSC precedent strongly points to this conclusion. It just has not made it's application down to divorce proceedings...yet.  A similar case is already pending in federal court in Texas.

    BTW, if you don't have much experience practicing civil rights law or family law, I don't really care for your opinion. So...

    ClydesMom:

    ANYONE here surprised that this guy is divorced?

    That ad hominem attack is completely inappropiate. Why don't you just move along, you don't have anything productive to add here.

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