2013-02-27 - Scott C Kandel - Constitutional and Other Challenges - My Love Story To My Children and The US Constitution - FINAL

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447 S . VE N TU PA R K RD . NEW BUR Y PA R K, C A 91 320
This AMENDMENT TO A PLEADING is submitted pursuant to California Rules of CourtTitle 5, Family and Juvenile RulesDivision 1, Family Rules Chapter 4, Starting and Responding to a Family Law Case; Service of Papers Article 5, Pleadings and Amended Pleadings; adopted January 1, 2013. Rule 5.74. Pleadings and amended Pleadings, which states, in part, (3) "Amendment to a pleading" means a pleading that modifies another pleading and alleges facts or requests relief materially different from the facts alleged or the relief requested in the modified pleading. An amendment to a pleading does not restate or supersede the modified pleading but must be read together with that pleading. The Respondent respectfully asks that that the Court first rule on the FL300/FL-320-REPLY Request for Order requested in his September 6 th , 2012 and February 20 th , 2013 pleadings while then continuing the hearing to a date convenient to the court to rule on the issues presented in this amendment to those pleadings.
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Case No.: SD 037475 SCOTT C. KANDELS AMENDME NT TO PE TITION OF G OVERNME NT FOR A REDRESS OF G RIEVANCES
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I. II.
INTRODUCTION. ................................................................................................................. 1 THE JURISDICTION AND VENUE ARE CORRECT FOR THIS PETITION, AND RESPONDENT HAS THE PROPER STANDING TO PURSUE REDRESS. .... 3
III. GIVEN THE NATURE OF THE CONSTITUTIONAL CHALLENGES PRESENTED, THE STRICT SCRUTINY STANDARD OF JUDICIAL REVIEW SHOULD BE USED................................................................................................................ 6 IV. THE CONSTITUTIONAL CHALLENGES RELATED TO THE BEST INTERESTS THE CHILD STANDARD MEET ALL THE CRITERIA NECESSARY FOR BOTH FACIAL AND AS-APPLIED CHALLENGES. .................................................................. 8 V. THE PARENT-CHILD RELATIONSHIP IS UNIQUE AND PRICELESS, AND PERHAPS THE MOST IMPORTANT ASPECT OF HUMAN EXISTENCE. ............. 9
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VI. A BRIEF HISTORY OF CALIFORNIA CHILD CUSTODY LAWS. ........................... 16 VII. THE U.S. CONSTITUTION PROTECTS THE ABSOLUTE AND FUNDAMENTAL RIGHTS OF FAMILIES, INCLUDING THAT OF CHILDREN AND THEIR PARENTS. ..................................................................................................... 20 VIII.BRIEF REVIEW OF THE CURRENT CALIFORNIA CHILD CUSTODY STATUTORY SCHEME AS IMPLEMENTED BY THE CALIFORNIA FAMILY COURT SYSTEM. ................................................................................................................. 24 IX. THE FOUNDING FATHERS OF THE UNITED STATES OF AMERICA WOULD ALL LIKELY BE MARGINALIZED AS ACTUAL FATHERS, UNDER THE CHILD CUSTODY STATUTES USING THE BEST INTERESTS OF THE CHILD STANDARD. ......................................................................................................................... 30 X. CONSTITUTIONAL RIGHTS AND PROTECTIONS, AS WELL AS U.S. SUPREME COURT AND CALIFORNIA CASE LAW, ALL SHOW THAT THE CURRENT CHILD CUSTODY STATUTES ARE UNCONSTITUTIONAL AS ENACTED. ............................................................................................................................ 31
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XI. CAUSES OF ACTION BASED ON FACIAL CONSTITUTIONAL CHALLENGES AND OTHER POINTS OF LAW AND PUBLIC POLICY. ............ 35 A. VIOLATIONS OF SUBSTANTIVE DUE PROCESS............................................ 35 CAUSE OF ACTION #1: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Violate the U.S. and California State Constitutions Rights of Children to Be Free of Unwarranted Governmental Harms. ............................................................................ 35 CAUSE OF ACTION #2: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Violate the U.S. and California State Constitutions by Infringing Upon the Fundamental Constitutional Rights of Parenthood. ........................................................................... 38 CAUSE OF ACTION #3: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Harm Children in Violation of the Parents' Rights to Raise Their Children Free From Government-Inflicted Injury. ......................................................................................... 43 CAUSE OF ACTION #4: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Infringe Upon the Fundamental Constitutional Rights of Association Between Parents and Their Children. .......................................................................................................... 45 CAUSE OF ACTION #5: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Infringe Upon the Fundamental Constitutional Rights of Privacy. ....................................... 46 CAUSE OF ACTION #6: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Allow for the Forced Use of Expensive "Experts" and Other Professionals (Therapists, Supervised Visitation Monitors) Who Have No Proven Value, Resulting in Unconstitutional Takings......................................................................... 48
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CAUSE OF ACTION #7: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Inflict a Penalty "as Great [as], if Not Greater, Than a Criminal Penalty," Thus Violating the Eighth Amendment's Proscription Against Cruel and Unusual Punishment and Cal. Const., Art. I, 17, Prohibition Against Cruel Punishment. ................... 50 B. VIOLATIONS OF PROCEDURAL DUE PROCESS ........................................... 52 CAUSE OF ACTION #8: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Abridge the Fundamental Right of Parenthood on the Basis of an Unconstitutionally Arbitrary and Vague "Best Interests of the Child" Standard. ..................................... 52 CAUSE OF ACTION #9: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Abridge the Fundamental Right of Parenthood on the Basis of an Unconstitutionally Overbroad "Best Interests" Standard. ........................................................................... 58 CAUSE OF ACTION #10: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Use an Indefinable and Not Narrowly Tailored Best Interests of the Child Standard. .. 59 CAUSE OF ACTION #11: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Allow Interested Adversaries to Deprive Individuals of Their Own Fundamental Constitutional Rights. ...................................................................................................... 63 CAUSE OF ACTION #12: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Deprive Individuals of Their Fundamental Constitutional Rights Without Meeting a "Clear and Convincing Evidence" Standard. ................................................................... 64 CAUSE OF ACTION #13: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts by Depriving Individuals of Their Fundamental Constitutional Rights with "Evidence" that is of No Proven Value at All. ............................................................ 66
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CAUSE OF ACTION #14: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Require "Mediation" (as Set Forth in Family Code 3170 et seq.) wherein Parents Are Expected to Relinquish Their Fundamental Constitutional Rights of Parenthood. ............................................................................................................................................... 70 CAUSE OF ACTION #15: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Inflict "A Penalty as Great [as], if not Greater, than a Criminal Penalty" Without Affording Those at Risk the Right to a Trial by Jury. ............................................... 71 C. VIOLATIONS OF EQUAL PROTECTION ............................................................ 73 CAUSE OF ACTION #16: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Violate the Equal Rights of Parents Versus Their Children. .................................................. 73 CAUSE OF ACTION #18: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Violate the Equal Rights of Parents with a "Better" Other Parent Versus Parents with a "Worse" Other Parent. ...................................................................................................... 76 CAUSE OF ACTION #19: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Violate the Equal Rights of Those Who Seek to Retain Their Parental Rights Against a Co-Parent Versus Those Who Seek to Retain Their Parental Rights Against a Potential Adoptive Parent. .............................................................................................. 77 CAUSE OF ACTION #20: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Violate the Equal Rights of Non-Disabled Parents Versus Those Parents Who Have Significant Disabilities. .................................................................................................... 78
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D. OTHER CLAIMS ......................................................................................................... 79 CAUSE OF ACTION #21: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Violate California Family Code 3010(a). ................................................................................. 79 CAUSE OF ACTION #22: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Violate 42 U.S.C. 1983.................................................................................................................. 80 XII. RESPONDENTS STATUS AS A PRO PER LITIGANT SHOULD BE GIVEN DUE AND PROPER CONSIDERATION. ....................................................................... 81 XIII.CONCLUSIONS PRAYERS. .............................................................................................. 83
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AMENDMENT PETITION OF GOVERNMENT FOR A REDRESS OF GRIEVANCES
I.
INTRODUCTION.
This Amendment to Petition of Government for a Redress Of Grievances embodies numerous facial and as-applied United States and California State Constitutional Challenges as well as Void as Against Public Policy and other legal challenges to the existing California Legislative Family Code Child Custody & Visitation Statutory Framework (comprised of Family Code (FC) 3100, 3105, 3011, 3020, 3022, 3040, 3041, 3087, and other referenced statutes) (Child Custody & Visitation Statutes) affecting the rights of a parent and his or her child.
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The challenged Child Custody & Visitation Statutes currently authorizes and allows a California Family Court to unjustly restrict, without support from constitutional provisions or applicable authoritative case law, the custody a parent whenever making a determination of the best interest of the child (FC 3011) (emphasis added). These Child Custody & Visitation Statutes are facially unconstitutional as they result in the abrogation of fundamental constitutional and civil rights of both parents and children. These statutes, and their implementation by The challenges presented in this petition include the constitutional inadequacy of the relative Best Interests of the Child standard (relative in that the current statutory language concerns only what is best between the childs two parents not truly an absolute Best Interests of the Child standard) which fails in properly balancing and protecting the constitutionally guaranteed rights of a minor child with the constitutional and other rights of each minor childs parent to the care, companionship, management, and control of that minor child.
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the California Family Courts, are counter to the basic liberties and principles, embodied in both the U.S. and California Constitutions, that the United States of America was founded and built upon.
In addition, the challenged Child Custody & Visitation Statutes are, as-applied to the Respondent, unconstitutional because the y do not adequately, and in a manner compatible with the U.S. and California State Constitutions, manifest the necessary protections of the Respondents fundamental rights to equally participate in and direct the upbringing of his daughters.
The subject Child Custody & Visitation Statutes are constitutionally infirm by: a.) failing to expressly and adequately balance and protect the fundamental rights of a parent with the fundamental rights of the child; b.) violating due process by failing to require a showing of direct harm to the child by a parent through, at a minimum, clear and convincing evidence as a condition precedent to restricting custody; c.) violating equal protection considerations by using a vague and arbitrary standard to restrict the fundamental rights of both parents in relation to their child, as well as those of the child in relation to both parents, while applying the standard in an entirely different manner to other parents and children ; d.) giving one parent a cause of action against the other parent of a child, regardless of whether the prosecuting parent can show direct and tangible harm to the child by the other parent; e.) allowing the State of California, who has no compelling interest in establishing a cause of action for denying a parent a custody arrangement that properly respects their rights, to establish a Family Code and Family Court system that does not protect the inalienable and fundamental constitutional and civil rights of each parent and their child; and f.) inflicting, as a result of this Courts application of the subject Child Custody & Visitation Statutes, to the Respondent, penalties which constitutes criminal, and demonstrably cruel, punishment by severely restricting and impinging his inalienable rights, as without substantive interaction and association with his children, he is unable to enjoy life to the fullest, and,
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3) Regardless of whether or not the Respondent receives all the relief he has requested in his FL-300 Request for Order dated September 6 th , 2012 and his FL-320-REPLY, dated February 20 th, 2013, concerning modification to the existing child custody and visitation orders, the Respondent has standing and a ripe dispute. This, because he is sufficiently likely to be subjected to future orders based on the challenged Child Custody & Visitation Statutes. (See Thomas v. Anchorage Equal Rights Commission (9th Cir.2000), 220 F.3d 1134, 1139-40 (en banc) [holding that the history of enforcement of a statute is relevant to standing and ripeness]).
4) The Respondent challenges various activities of the California Family Court System, generally, and of the Ventura County Family Court more specifically, and this Court, in particular, as it relates to the referenced Child Custody & Visitation Statutes and the instant case. Therefore, this Court has jurisdiction pursuant to Cal. Const., art. VI, 10.
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5) Nothing contained in or argued for by the Respondent herein is inconsistent or at odds with the U.S. Constitution or the California State Constitution. This Court, therefore, has jurisdiction under California Code of Civil Procedure ("Code Civ. Proc.), 410.10.
6) The causes of action in this petition have arisen, currently arise, and will in the future arise throughout the State of California, including Ventura County. Venue is therefore proper pursuant to Code Civ. Proc., 393(b).
7) The Petitioner, Respondent, and this Court are situated in Ventura County. Venue is therefore proper pursuant to Code Civ. Proc., 394(a) and (b).
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III.
GIVEN THE NATURE OF THE
CONSTITUTIONAL CHALLENGES PRESENTED, THE STRICT SCRUTINY STANDARD OF JUDICIAL REVIEW SHOULD BE USED.
Strict scrutiny is the most stringent standard of judicial review used by the courts. The notion of levels of judicial scrutiny, including strict scrutiny, was introduced in footnote 4 of the U.S. Supreme Court decision in United States v. Carolene Products (1938) 304 U.S. 144.
As our California Supreme Court opined In re Marriage Cases (2008) 43 Cal.4th 757, 783, Although in most instances the deferential rational basis standard of review is applicable in determining whether different treatment accorded by a statutory provision violates the state equal protection clause, a more exacting and rigorous standard of review strict scrutiny is applied when the distinction drawn by a statute rests upon a socalled suspect classification or impinges upon a fundamental right. (emphasis added.)
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Parenting is a fundamental right (In re Carmaleta B. (1978) 21 Cal.3d 482, 489); thus, to not fail on strict scrutiny review, the challenged Child Custody & Visitation Statutes must satisfy three tests:
1. The challenged statutes must be justified by a compelling governmental interest. That statutes not violate explicit constitutional rights and protections are the embodiment of legal challenges requiring strict scrutiny judicial review; 2. The challenged statutes must be narrowly tailored to achieve the compelling governmental goal or interest. If the government action encompasses too much (i.e., is overbroad) or fails to address essential 6
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aspects of the compelling interest, then the rule is not considered narrowly tailored;
3. The challenged statutes must be the least restrictive means for achieving such compelling governmental interests; that is, there cannot be a less restrictive way to effectively achieve the compelling government interest.
It should be self-evident that the U.S. and California Constitutional Rights, inalienable (Cal. Const., art. I, I) and otherwise, which are put in jeopardy by the challenged Child Custody & Visitation Statutes and their application by California Family Courts to parents and children, must be reviewed by the judiciary using the strict scrutiny standard. Strict constitutional scrutiny of laws by the judiciary stands for the proposition that the basic rights and protections conferred by the U.S. and California Constitutions are not negotiable and that even popular laws passed by the California State Legislature must not violate a persons fundamental constitutional rights (emphasis added).
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Ensuring adequate constitutional and other protections for the parents and children subjected to the challenged Child Custody & Visitation Statutes becomes of a judicial imperative of the highest order after examining the following facts and data: Approximately two hundred thousand divorce petitions are filed annually in California. (Judicial Council of California, Statewide Action Plan for Serving SelfRepresented Litigants (2004)). Seventy percent of those cases involve at least one selfrepresented litigant at the beginning of the case. That figure increases to 80 percent by the time of judgment. (Id.). Simply put, most of these self-represented litigants have no ability or resources available to protect their own constitutional rights; they must take what the Legislature gives them, constitutional or not. It is incumbent
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upon the Judiciary to be hyper vigilant in protecting the constitutional rights of these and all litigants.
The California Supreme Court ruled these concerns legitimate when it endorsed the adoption of new rules of court establishing statewide rules of practice and procedure for fair and expeditious proceedings in family law, from the initiation of an action to postjudgment motions. Special care might be taken to accommodate self-represented litigants. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1369, fn. 20) (emphasis added).
IV.
THE CONSTITUTIONAL CHALLENGES RELATED TO THE BEST INTERESTS THE CHILD STANDARD MEET ALL THE CRITERIA NECESSARY FOR BOTH FACIAL AND AS-APPLIED CHALLENGES.
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To assert a facial constitutional challenge, the Respondent needs to show the statute is unconstitutional in all or most cases . (Coffman Specialties, Inc. v. Dept. of Transportation (2009) 176 Cal.App.4th 1135, 1145) In contrast, an as-applied constitutional challenge contemplates analysis of the facts of a particular case or cases to determine the circumstances in which the statute or ordinance has been applied and to consider whether in those particular circumstances the application deprived the individual to whom it was applied of a protective right . (Sturgeon v. Bratton (2009) 174 Cal.App.4th 1407, 1419) (emphasis added).
The Respondent asserts that the challenged Child Custody & Visitation Statutes which use, directly and through indirect reference, the vague, arbitrary, capriciously applied, and not narrowly tailored Best Interest of the Child standard, are unconstitutional. Period.
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Respondent further argues that the same challenged statutes, as well as other child custody-related court orders applied to him in the past, and which are likely to be directed to him again in the future, fall squarely within the four corners of his asapplied challenges as well. (Coffman Specialties, Inc., 176 Cal.App.4th at 1144-45).
V.
THE PARENT-CHILD RELATIONSHIP
IS UNIQUE AND PRICELESS, AND PERHAPS THE MOST IMPORTANT ASPECT OF HUMAN EXISTENCE.
California courts have opined; The relationship of parent and child is the most fundamental bond humans share," (Sharon S. v. Superior Court (2003) 31 Cal. 4th 417, 463 (Brown, J., concurring and dissenting); the [E]stablishment of the parent-child relationship is the most fundamental right a child possesses to be equated in importance with personal liberty and the most basic of constitutional rights. and Likewise, parents have a fundamental liberty interest in the custody, care, management and companionship of their children. (Kristine M. v. David P. (2006) 135 Cal.App.4th 783, 791); that Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood. (In re Carmaleta B. (1978) 21 Cal.3d 482, 489); and We have previously recognized that the interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights. A parents interest in maintaining a parent-child relationship is an extremely important interest. (In re Guardianship of Christian G. (2011) 195 Cal.App.4th 581, 597-598) (emphasis added). Tellingly, none of the aforementioned authoritative and binding PUBLISHED opinions have been disputed or overturned by superior courts.
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Others have written about truths related to the parent-child relationship: The parent-child relationship affects us more profoundly than any other relationship of our lives .
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It is the foundation of all of our relationships and the source of our earliest cons ciousness about love, intimacy, trust and security. It can nourish us to wholeness and self-assurance or scar us for life. (Perlin, AR., Importance of the Parent-Child Bond, Washington Post, September 27, 2008, at B09) (emphasis added).
Consequently, any impairment of this relationship is an injury to that child, resulting in the abatement of the full love and nurturing of one of the most enduring supports in their lives. For a loving parent, a fact to which the Respondent has previously declared and to which the Petitioner has stipulated in open court and on the record, the injury is even worse. Most parents consider their children to be THE single most important aspect of their beings, and any unjustified interference, meaning without full basis in our constitutions, with their relationships with their children is an injury beyond all others.
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Such interference results in irretrievable losses, and inflicts what is, for most parents, the most horrific pain imaginable. Unjust and unconstitutional infringement on the parent-child relationship, without doubt, amounts to harsh penalties; assertively and discernibly criminal, and arguably cruel. (Cal. Const., art. I, 17, [prohibition against cruel punishment, whether criminal or not]) (emphasis added) for the aggrieved child and parent.
Along this line of thought, the U.S. Congress and the U.S. Supreme Court have both noted, "the removal of a child from the parents is a penalty as great [as], if not greater, than a criminal penalty." (Santosky v. Kramer (1982) 455 U.S. 745, 769 (citing H. R. Rep. No. 95-1386, p. 22 (1978)) (emphasis added).
The Court must determine whether a particular law or statutory scheme is criminal punishment for purposes of constitutional challenges based on the Fifth,
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Sixth, and Eighth Amendments to the U.S. Constitution [rights regarding criminal proceedings, due process rights, right to a jury trial, and prohibitions against cruel and unusual penalties and punishment].
Although the California Family Code and Family Courts are generally considered to be civil, not criminal, in nature, the civil label is not dispositive as to the character of the penalties fracturing parents and their children are subject to under its statutes and jurisdiction. The U.S. Supreme Court articulated the approach this Court must use in determining the real penalties inflicted upon the Respondent in United States v. Ward (1980), 448 U.S. 242, and its progeny, when it stated [the court must] inquir[e] further whether the statutory scheme [is] so punitive either in purpose or effect as to transfor[m] what was clearly intended as a civil remedy into a criminal penalty." (Hudson, 118 S. Ct. at 493 (quoting Ward, 448 U.S. at 248-49, and Rex Trailer Co. v. United States (1956), 350 U.S. 148, 154)) (last alteration in original).
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[I]f ... the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [the State's] intention to deem it civil. (Smith v. Doe (2003) 538 U.S. 84, 92 (Smith) (quoting Ward, supra, at p. 249)).
Under Smith, the Court must first determine whether the Legislature intended to impose punishment. If the intention of the legislature was to impose punishment, that ends the inquiry. (Smith, Ibid.). However, if the Court determines the Legislature intended to enact a regulatory scheme that is civil and nonpunitive, then the Court must determine whether the statutory scheme is so punitive either in purpose or effect as to negate [the State's] intention to deem it civil. (Ibid.). (emphasis added). To analyze the effects of the statute, the Court should consider several factors set out in Kennedy v. MendozaMartinez (1963) 372 U.S. 144. (Smith, supra, at p. 97). These factors, which are
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neither exhaustive nor dispositive, include whether the provision create s an affirmative disability or restraint, imposes what has been viewed traditionally as punishment, or is excessive with respect to the nonpunitive purpose.
Orders originating from Family Court based on the challenged Child Custody & Visitation Statutes are typically injunctive in nature, which either enjoin or mandate acts by the parties, as such acts relate to the parent-children relationship. These orders, more often than not, have the effect of excessively stripping and/or otherwise limiting the following fundamental constitutional rights of one or more of the parents and also of the child:
Right to be an Equal Parent to Their Child. To wit, The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. (Stanley v. Illinois (1972) 405 U.S. 645, 651) (emphasis added);
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Right to Freely Associate with Their Child. Hoffman Estates v. Flipside (1982) , 455 U.S. 489, 499, [P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of association ] (emphasis added);
Rights of Free Speech and Expression. Nebraska Press Assn. v. Stuart, (1976) 427 U. S. 539, 559, [P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights (emphasis added);
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Rights of the Parents and Child t o Familial Privacy: [T]he Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty" are included in this guarantee of personal privacy. They also make it clear that the right has extension to activities relating to ... family relationships, and childrearing and education. (Roe v Wade (1973) 410 U.S. 113, 152-53) (emphasis added).
It is self-evident that removing a child from a parent is so punitive in effect, regardless of legislative intent, as to transform such a judgment into a criminal penalty. This "penalty" is not limited to only the extreme act of the complete removal of a child from a parent.
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Penalties and punishment are also inflicted when either or both of the parentchild relationships are marginalized by the Court stripping and/or otherwise limiting fundamental rights enumerated above of the parents and the child. Marginalization occurs, at a measurable level, whenever a good enough parent is deprived of 50 percent physical custody and wholly equal legal custody of his or her child. Such penalties accruing from the marginalization of a parent are also as great, if not greater, than almost any other commonly recognized criminal penalty imposed by any court in any other proceeding. It is a matter of fact that marginalized parents suffer actual penalties and harms worse than those imposed upon many convicted felons in this state.
There are many tangible measures of the marginalization of the parent-child relationship. Some are obvious, like a time-sharing physical custody arrangement that is not commensurate with each parents DNA contribution to and the parental
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DNA content of the child (leaving out, for the sake of simplicity, other legitimate actual parent-child manifestations).
Some are less obvious, but still readily identifiable: the U.S. Supreme Court articulated an insidious and actual state-inflicted type of parental marginalization in Elk Grove Unified School Dist. v. Newdow (2004) 542 U.S. 1 when it ruled that a California citizen and parent, Dr. Michael A. Newdow, did not have standing to petition the government for a redress of grievances on behalf of his minor daughter. We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court . (Elk Grove Unified School Dist. v. Newdow (2004) 542 U.S. 17, 18 (Elk Grove)) (emphasis added).
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Importantly, the court in that case did not address in its ruling the constitutionality of the Californias Best Interests of the Child standard from which Dr. Newdows lack of adequate legal custody resulted, opining only that such a Legal Custody arrangement had stripped away his right to legal standing on behalf of his daughter. This, even though the father had Joint Legal Custody, it was not equal Joint Legal Custody. In a word, he was marginalized in this regard as a parent, based on , in his California Family Court case, the capricious application of the Best Interests of the Child standard.
The U.S. Constitution, Amendment VIII, proclaims, nor cruel and unusual punishments inflicted. U.S. Supreme Court precedent, in Furman v. Georgia (1978), 408 U.S. 238, stated, that punishment must not by its severity be degrading to human dignity," (emphasis added), else such punishment is cruel and unusual. In Robinson v. California (1962), 370 U.S. 660, the Court ruled that the Eighth Amendment did apply to the states through the Fourteenth Amendment.
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The restrictions placed on the parent-child relationship and the associated constitutional rights which are often stripped from one or both the parents and the child through the application of challenged Child Custody & Visitation Statutes are inherently degrading to the human dignity of the affected parents and their children as can be any punishment imagined.
And yet, without neither the constitutionally necessary clear and convincing evidence, or more (i.e., beyond all reasonable doubt) to support its judgments, which are then instantiated by the courts in the form of restrictive custody orders, nor having been, optimally, decided in front of a jury of peers, the application of unconstitutional Child Custody & Visitation Statutes do inflict criminal and cruel punishment upon parents and children every day.
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 To be sure, California Family Courts certainly believe they are doing "good" that cannot be denied. However, "[e]xperience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding." (Olmstead v United States (1928) 277 U.S. 438, 479 (Brandeis, J., dissenting). See also Minersville School District v. Gobitis (1940) 310 U S. 586, 604 (Stone, J., dissenting) ("History teaches us that there have been but few infringements of personal liberty by the state which have not been justified . . . in the name of righteousness and the public good.") (emphasis added).
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VI.
A BRIEF HISTORY OF CALIFORNIA CHILD CUSTODY LAWS.
Initially, California law was exceedingly sexist, with a statutory claim that "[t]he husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto." (California Civil Code 156, The Civil Code of the State of California, Sims RM (ed ) (San Francisco: Bancroft-Whitney Company; (1906)), p. 52).
Accordingly, California law held that "[t]he father of a legitimate unmarried minor child is entitled to its custody, services and earnings," (Civil Code 156, Id., at p. 60) and it was "extremely rare" for him to not secure custody of the children upon divorce. (McNeely, CA Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family Court (1998) 25 Fla. St. U.L. Rev. 891, 897).
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "Eventually, 'the tender-years presumption became the rationale for awarding custody of children of all ages to the mother on a permanent basis."' (McNeely (n 12, supra) at 899; citing Warshak RA, The Custody Revolution: The Father Factor and Motherhood Mystique (New York: Poseidon Press; (1992)), p. 31). Subsequently, the statutory scheme was altered to one where, other things being equal, if the child is of tender years, it should be given to the mother; if it is of an age to require education and preparation for labor and business, then to the father. (Goto v. Goto (1959) 52 Cal 2d 118, 123 (citing California Civil Code 138)). This scheme has now come to be easily recognized as patently unfair, unjust, and unconstitutional; neither of particular benefit to children nor in respecting their rights, and clearly contrary to all constitutional notions of equal protection and due process for the child and both parents. And yet, society deemed this approach to be proper at the time, even though it arbitrarily pierced the hearts of mothers.
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This scheme is also now readily recognized as being patently unfair, unjust, and unconstitutional, neither of particular benefit to children nor in respecting their rights, and clearly contrary to all constitutional notions of equal protection and due process of the child and both parents. And yet, once again, society deemed this approach to be proper, even though it arbitrarily pierced the hearts of fathers.
In 1972, California altered its law, to declare that custody should be awarded To either parent according to the best interests of the child. (In re Marriage of Carney (1979) 24 Cal. 3d 725, 730 (citing to the relevant statute at the time (California Civil Code 4600)) (emphasis added). Importantly, the Carney court did not reach on any constitutional issues related to the Best Interests of the Child standard. (In re Marriage of Carney, Id., at FN 3, In the view we take of the case we need not reach the constitutional issues at this time.). Indeed, the Custody & Visitation Statutes based on the Best Interests of the Child standard have never been directly challenged based on as many constitutional rights and protections as those embodied in this petition.
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Although the Best Interests of the Child certainly sounds noble, a State cannot foreclose the exercise of constitutional rights by mere labels. (NAACP v. Button (1963) 371 U.S. 415, 429). This petition asserts that the Best Interests of the Child label is merely a faade for unconstitutional state actions a smokescreen, more than perhaps.
The Respondent, in fact, contends that this Best Interests of the Child label is a gross misnomer. It is, in most respects, arbitrary and highly subjective; traits which make statutes based on the Best Interests of the Child standard, and their application by trial courts, evasive of meaningful appellate review. (FC section 3011, [Best Interests of the Childcustody determination includes, among other things,
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any other factors [the court] finds relevant ]). (emphasis added).
On point is Vermont Yankee Nuclear Power Corp v Natural Resources Defense Council (1978) 435 U.S. 519, 546, [if a standard were simply what the court perceives to be the 'best' or 'correct' result, judicial review would be totally unpredictable.]. (emphasis added).
The Best Interests of the Child standard, as instantiated in statute, often promotes the worst interests of children; this, given that the state, unwittingly or not, pits each parent against one another in modern-day government-sanctioned Mandingo Slave Fight (Tarantino, Quentin, Django Unchained (2012), American Western film). The result: at least serious injury to both parents, and often the figurative death of one all while the child, who is then scarred for life, looks on with horror.
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One could, perhaps, argue that it is the parents themselves that put the custody issue before the Family Court for adjudication in the first place, so each parent and the child get what they get. But this would make no more sense than it would have made in Loving v. Virginia (1967) 388 U.S. 1 (state system that forbade marriage between the races was invoked by the litigants themselves), in Palrnore v. Sidoti (1984) 466 U.S. 429 (state system that favored same-race parenting was invoked by the litigants themselves), or in any other case where the government has only one system available for individuals seeking to redress grievances. That individuals must use those systems does not absolve the government of its duty to uphold the constitutions of the state and of the nation.
Furthermore, parents who wish to simply share equally in the custody and care of their children without judicial intervention do nothing to invoke the system. Rather, they are often unwillingly dragged into court by the actions of their co -
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parent; co-parents who, due to the unconstitutional custody scheme implemented by the Legislature, are given an incentive to use the machinery of the state to create the inequality that the Best Interest of the Child standard both facilitates and encourages.
Noted political philosopher, novelist, and journalist George Orwell likely had disingenuous doublespeak phrases like the Best Interests of the Child in mind when he wrote, The great enemy of clear language is insincerity. When there is a gap between one's real and one's declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink. (Orwell, George; Politics and the English Language (1946), Essay criticising ugly and inaccurate contemporary written English). (emphasis added) Without doubt, the Best Interests of the Child is one of those exhausted idioms which, while seemingly representing all that is good, really says nothing of substance at all.
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The Respondent contends that, both facially and as-applied, this "Best Interests of the Child" scheme, a scheme in which the pendulum has swung so far away from the prior unconstitutional child custody determination methods, but has resulted in statutes that are nearly as unconstitutional, is again as patently unfair, unjust, and unconstitutional, neither of greater benefit to children nor in respecting their rights, and is no more in accord with seemingly quaint constitutional notions of equal protection and due process of the child and both parents than any of the previously referenced unconstitutional child custody schemes. The major substantive difference in the current iteration of California Custody & Visitation Statutes is that the unconstitutional injustices are applied to both mothers and fathers, depending only on whether it is a fit or good enough mother or father who comes out on the losing side of the vague, arbitrary, and capriciously applied Best Interests of the Child test.
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VII.
THE U.S. CONSTITUTION PROTECTS
THE ABSOLUTE AND FUNDAMENTAL RIGHTS OF FAMILIES, INCLUDING THAT OF CHILDREN AND THEIR PARENTS.
The U.S. Supreme Court has held: It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment , the Equal Protection Clause of the Fourteenth Amendment and the Ninth Amendment. (Stanley v. Illinois (1972) 405 U.S. 645, 92 S. Ct. 1213). (emphasis added)
Justice Scalia's opinion in Troxel v. Granville (2000), 530 U.S. 57, 91, which recognized that the right of parents to make decisions regarding a child's care, control, education, health, and religion, as well as with whom the child will associate, is a fundamental right that arises "as an inherent consequence of the parent-child relationship independent of any caselaw, statute, or constitutional provision." (emphasis added).
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A Best Interests of the Child standard alone is insufficient to justify infringing on the fundamental right of the parents. The right of parents to direct the upbringing of their children has long been recognized as fundamental by the United States Supreme Court and, therefore, as a right protected by the Fourteenth Amendment:
The Fourteenth Amendment provides that no State shall 'deprive any person of life, liberty, or property, without due process of law.' We have long recognized that the Amendment's Due Process Clause, like its Fifth Amendment counterpart, 'guarantees more than fair process.' (Washington v. Glucksberq (1997), 521 U.S. 702, 719). The
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clause also includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests . (Id., at 720; see also Reno v. Flores (1993), 507 U.S. 292, 301-302).
The liberty interest at issue in this case--the interest of parents in the care, custody, and control of their children--is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923), we held that the 'liberty' protected by the Due Process Clause includes the right of parents to 'establish a home and bring up children' and 'to control the education of their own.' Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925), we again held that the 'liberty of parents and guardians' includes the right 'to direct the upbringing and education of children under their control.' We explained in Pierce that '[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.' Id., at 535. We returned to the subject in Prince v. Massachusetts, 321 U.S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. 'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' Id., at 166.
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In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e.q., Stanley v. Illinois, 405 U.S. 645, 651 (1972) ('It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children "come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements' (citation omitted)); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) ('The history and culture of Western civilization
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reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition'); Quilloin v. Walcott, 434 U.S. 246, 255 (1978) ('We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected'); Parham v. J.R., 442 U.S. 584, 602 (1979) ('Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course'); Santosky v. Kramer, 455 U.S. 745, 753 (1982) (discussing '[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child'); Glucksberq, supra, at 720 ('In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the righ[t] ... to direct the education and upbringing of one's children' (citing Meyer and Pierce)). In light of this extensive precedent, it 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, 530 U.S. at 65-66).
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The fundamental right of parents to direct the education and upbringing of their children has both substantive and procedural components:
It is, of course, true that 'freedom of personal choice in matters of ... family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Cleveland Board of Education v. LaFleur (1974), 414 U.S. 632, 639-640. There does exist a 'private realm of family life which the state cannot enter ,' (Prince v. Massachusetts (1944), 321 U.S. 158, 166, that has been afforded both substantive and procedural protection. (Smith v. Organization of Foster Families for Equality & Reform (1977), 431 U.S. 816, 842). (footnotes omitted).
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The substantive component of this right includes broad authority to make decisions concerning the care, custody, and control, Troxel, 530 U.S. at 66, of the child. For centuries it has been a canon of the common law that parents speak for their minor children. So deeply imbedded in our traditions is this principle that the Constitution itself may compel a State to respect it. (Parham v. J.R. (1979), 442 U.S. 584, 621). (Stewart, J., concurring) (footnote omitted). (emphasis added).
The substantive fundamental right of parents to make decisions regarding the "care, custody, and control " of their children is premised on the legal presumption that fit (i.e., good enough) parents act in the best interests of their children:
"[T]here is a presumption that fit parents act in the best interests of their children. As this Court explained in Parham v. J.R. (1979), 442 U.S. 584:
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"'[O]ur constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations. The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.' 442 U.S., at 602 (alteration in original) (internal quotation marks and citations omitted) .
Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private re alm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children. ( Troxel, 530 U.S. at 68-69).
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The state's compelling interest is limited to overruling the decisions of unfit parents. As the United States Supreme Court said in Santosky v. Kramer (1982), 455 U.S. 745, it is only [a]fter the State has established parental unfitness at that initial proceeding, [that] the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge. 455 U.S. at 760. Unless the parents are shown by clear and convincing evidence to be unfit, the state's interest is not compelling: [T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents. Stanley v. Illinois (1972), 405 U.S. 645, 652. All parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody. (Stanley, supra, 405 U.S. at 658.
In the absence of at least clear and convincing proof that a parent is unfit, the state's basis for intervention through the judicial system evaporates. The State's interest in caring for the children is 'de minimis' if the father is in fact a fit parent. Quilloin v. Walcott (1978), 434 U.S. 246, 248.
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VIII. BRIEF REVIEW OF THE CURRENT CALIFORNIA CHILD CUSTODY STATUTORY SCHEME AS IMPLEMENTED BY THE CALIFORNIA FAMILY COURT SYSTEM.
There exists in California an official parent and child relationship. This is a legal relationship existing between a child and the child's natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. The term includes the mother and child relationship and the father and child relationship. (Family Code 7601).
Of note is that, [t]he parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents. (Family Code 7602).
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Thus, single, married, separated, or divorced parents are all to retain the same rights in terms of their relationships with their children.
The mother of an unemancipated minor child and the father, if presumed to be the father under Section 7611, are equally entitled to the custody of the child. Family Code 3010(a), [implying the notion, again, of other things being equal.] (emphasis added).
This is the situation that exists as long as there is no judicial intervention. Should one or both parents opt to obtain a legal decree regarding child custody, however, the challenged Child Custody & Visitation Statutes and Family Court System as implemented and inflicted upon parents and children largely ignores the entitlement to equal custody referenced in Family Code 3010(a).
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The stated purposes of this mediation are given in Family Code 3161: (a) To reduce acrimony that may exist between the parties; (b) To develop an agreement assuring the child close and continuing contact with both parents that is in the best interest of the child, consistent with Sections 3011 and 3020; and (c) To effect a settlement of the issue of This harmful and unconstitutional process often begins during mandatory mediation. (Family Code 3170). (If it appears on the face of a petition, application, or other pleading to obtain or modify a temporary or permanent custody or visitation order that custody, visitation, or both are contested, the court shall set the contested issues for mediation.) (emphasis added). In fact, under the guise of the "Best Interests of the Child" standard, those equal custodial rights (which, as has been previously argued and is further argued for in the remainder of this petition, are not only statutory rights, but are constitutional rights as well) are eviscerated and essentially fade away or completely vanish.
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visitation rights of all parties that is in the best interest of the child (emphasis added). In those instances where the parties come to mediation with a view towards treating each other with fairness, respect, and equality, those purposes are usually fulfilled.
The Respondent contends that the mediators determination of what is in the Best Interest of the Child is largely meaningless. For the most part, all that can be known is what is harmful or, more often than not, what is alleged, but not yet proven, to be harmful to the child. It is known (albeit often ignored) that the Family Code Custody & Visitation Statutes and the associated exposure to the Family Court System are visibly harmful to children. (Noting, of course, when the parties treat each other with fairness, respect , and equality, aggressive litigation is unnecessary).
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The problem is fundamental and foundational: the Family Code Custody & Visitation Statutes largely due to the use of the arbitrary and vague Best Interest of the Child standard stirs and actually encourages individuals and other stakeholders (i.e., attorneys, and other professionals who stand to benefit financially and otherwise from high levels of strife between the parents) to not treat the other party with fairness, respect , and equality.
Fully aware of the essentially limitless discretion this standard grants to the Court, the parties (with the aid of attorneys who profit handsomely by developing techniques to game the system for the benefit of their clients), have enormous incentives to be selfish and unfair. Among these are: i. More of what is among the most rewarding and fulfilling aspects of a parent's existence: time to be with, and the nurture and love of their children; ii. iii. iv. Power and Control; Money; and Vengeance/Punishment
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Thus, "Custody" is generally linked to words like "dispute," "battle," or "war", as in Custody Battle.
The interaction among and the perverse incentives provided by the challenged Custody & Visitation Statutes, along with the application and implementation of these statutes by California Family Courts often, maybe almost always, brings out the worst characteristics of the human condition in the parental parties and their supporters WRATH, GREED, HUBRIS, ENVY, SLOTH, GLUTTONY, and LUST. (Pope Gregory I, Seven Deadly Sins, (AD 590)) (EMPHASIS added). And while the state shouldnt overreach by attempting to legislate morals in all form and fashion, neither should it discourage ethical conduct by creating overwhelming incentives to the contrary.
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Family Code 2100(b) states: "Sound public policy further favors the reduction of the adversarial nature of marital dissolution . . . (emphasis added). The system, as implemented, runs counter to current California public and sound policy to promote the settlement of family law-related litigation and encourage cooperation among the litigants involved in family law disputes. Accordingly, with parents (and/or their counsel) often believing that excess custody may be obtained through litigation, mediation is often just a prelude to severe and prolonged conflict that results in little but increased interparental animus, increased parental distress, wasted parental time, squandered familial financial resources, and the shattering of at least one parent's life (as he or she is marginalized in the ability to love and nurture his or her children). These sequelae are anything but "best" for the child.
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Family law cases are not supposed to be conducted as adversarial proceedings. Quite the contrary, the goal is to reduce acrimony and adversarial approaches common to general civil litigation and, instead, to foster cooperation between the parties and their counsel with a view toward settlement short of full-blown litigation. [See Fam. C. 2100 (b), 271(a) (sanctions for uncooperative conduct in family law cases); see also Cal. Atty. Guidelines of Civility & Professionalism 19in family law proceedings an attorney should seek to reduce emotional tension and trauma and encourage the parties and attorneys to interact in a cooperative atmosphere, and keep the best interest of the children in mind] . (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2010) 14.265a, 1:56, pp.1-17-118) (emphasis in original).
... under [Family Code] section 271, which provides that the court may base an award ... on the extent to which the conduct of each ... attorney furthers or frustrates the policy of the law to promote settlement ... and ... to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. (Id., subd. (a).) Section 271 says what it says. (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1536) (emphasis added)
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Court-ordered mediation, of course, is not binding, and no parent is under any obligation to agree to any mediation plan. But the entire concept of placing one's fundamental liberties up for mediation, a concept bolstered by Family Code 3170, is completely inconsistent with our constitutional governmental structure.
Furthermore, this process leads to a cascade of increasing harms to the child and his or her parents, as Evidence Code 730 child custody evaluations are frequently ordered (pursuant to Family Code 3110-3118, to wit, FC 3111, (a) In any contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct a child custody evaluation in cases where the court
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determines it is in the best interests of the child..; FC 3118 (a) In any contested proceeding involving child custody or visitation rights, where the court has appointed a child custody evaluator or has referred a case for a full or partial court-connected evaluation, investigation, or assessment) (emphasis added); if the parents dont agree to stipulate to such an evaluation, California Family Courts can, and often do, by the force of order, compel the unwilling parties to sign such a stipulation as well as pay for the evaluation too.
The Child Custody Evaluation process is usually followed by a long-cause hearing. On occasion, the enormous burden , to all parties and the Court, of a full trial takes place.
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To be sure, full trials occur in a very small percentage of custody proceedings. That fact, however, is of no greater probative value than the fact that very few black railroad passengers went to trial in Louisiana (Plessy v. Ferguson (1896) 163 U.S. 537) or that very few women sought a judicial remedy when denied the right to an abortion in Texas (Roe v Wade (1973) 410 U.S. 113).
This is because: [E]ven though few custody cases result in a trial[, [t]he adversarial mentality ... can permeate the custody dispute and the thinking of parents and counsel. Precisely when children need parents to lessen the degree of hostility and behave cooperatively, the specter of courtroom combat -- and especially the conflict over the vague legal standard of the 'best interests of the child' encourages conflict. (Schepard, A, War and P.E.A.C.E.: A Preliminary Report and a Model Statute on an Interdisciplinary Educational Program for Divorcing and Separating Parents (1993), 27 U. Mich. J.L. Reform 131, 145-46) (footnote omitted) (emphasis added).
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Thus, not only do the challenged Family Code Custody & Visitation Statutes and the coupled Family Court System unconstitutionally limit fundamental right s associated with the parent-child relationship, in addition to being counter to sound and stated public policy, there is a lack of any evidence of benefit to the children they are alleged to serve; actually, there is demonstrable harm to all those subjected to their effect.
IX.
THE FOUNDING FATHERS OF THE UNITED STATES OF AMERICA WOULD ALL LIKELY BE MARGINALIZED AS ACTUAL FATHERS, UNDER THE CHILD CUSTODY STATUTES USING THE BEST INTERESTS OF THE CHILD STANDARD.
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Historian Richard B. Morris in 1973 identified the following seven figures as the key Founding Fathers of the United States of America: John Adams, Benjamin Franklin, Alexander Hamilton, John Jay, Thomas Jefferson, James Madison, and George Washington. (Richard B. Morris, Seven Who Shaped Our Destiny: The Founding Fathers as Revolutionaries, (New York: Harper & Row, 1973)).
And it is not merely rank speculation to know that these great men, who were all too fathers of children, would have fared poorly under the challenged California Custody & Visitation Statutes and the associated California Family Court System.
To a man, they each suffered from mental illness; what modern-day experts would diagnose as delusions of grandeur of the highest order. To a man, they were radicals and militants; all deemed criminal traitors at one point in their lives. They were rarely home with their children, as they had the quixotic notion that they could and should spend much of their time building a better nation-state; one greater than anything that had previously existed throughout history. Some of them, like
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Alexander Hamilton, fought gun duels to the death. Others, like Benjamin Franklin, thought themselves clever enough to invent things that no one else had ever imagined. In a word, they were likely crazy by the vague and overbroad standards now used to dole out child custody between parents.
If these men were alive today to scrutinize the grievances presented in this petition, their reaction to the Best Interests of the Child standard, as expressed in California Family Code Statutes and as applied by California Family Courts could easily be predicted: that this unconstitutional muddle is the antithetical instantiation of almost every crazy idea and principle they stood for; they certainly wouldnt recognize it as something that could exist in the ir United States of America, under their U.S. Constitution. Though only an assertion by the Respondent, the foregoing are also self-evident truths. X. CONSTITUTIONAL RIGHTS AND PROTECTIONS,
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AS WELL AS U.S. SUPREME COURT AND CALIFORNIA CASE LAW , ALL SHOW THAT THE CURRENT CHILD CUSTODY STATUTES ARE UNCONSTITUTIONAL AS ENACTED.
The degree of any society's harmony or disharmony is often directly related to the system of laws in effect. For instance, the fact that there was taxation without representation animated those who revolted against the Engli sh Crown to found our Nation. (Texas v. Johnson (1989) 491 U.S. 397, 435 (Rehnquist, C.J., dissenting)).
Similarly, when institutionalized prejudice against people of color pervaded some regions of the country, communities were prone to interracial disturbances, violence, riots, and community confusion and turmoil. (Watson v Memphis (1963) 373 U.S. 526, 535).
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Within the courts, harmony an d disharmony (as measured by the amount and the intensity of litigation) are often dependent upon procedural legal provisions. Civil Code section 43.5(d), for instance, eliminated a cause of action for the breach of a promise of marriage. Thus, since the passage of section 43.5(d), cases involving such a breach are essentially unheard of. Just as the elimination of a cause of action results in diminished litigation, the creation or expansion of a cause of action results in the opposite.
Accordingly, as the California Supreme Court has noted, litigation increases when strict liability is imposed (Jimenez v. Superior Court (2002) 29 Cal. 4th 473, 481), when malicious prosecution claims are permitted (Brennan v. Tremco (2001) 25 Cal. 4th 310, 316), or when an agency notice is deemed to be a "suit." (Foster-Gardner, Inc. v. National Union Fire Ins. Co (1998) 18 Cal 4th 857, 887-88).
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One of the best means of controlling litigation is adhering to "that equality which ought to be the basis of every law," (James Madison. Memorial and Remonstrance Against Religious Assessments, as given in the Appendix to Everson v. Board of Education (1947) , 330 U.S. 1, 66 (Rutledge, J., dissenting) reflecting "the perfect equality of mankind." (Annals of Congress 454 (June 8, 1789) [These were James Madison's words as he introduced the Bill of Rights during the First Congress.])
Equality undergirds our state and federal legal systems, and (when followed) is a key factor limiting social unrest. "Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me." (Cruzan v. Director, MDH (1990) 497 U.S. 261, 300-301 (Scalia, J., concurring).
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This equality concept is codified in the aforementioned Family Code section 3010(a) ("The mother of an unemancipated minor child and the father, if presumed to be the father under Section 7611, are equally entitled to the custody of the child ").
Respondent contends a strict application of only this statute and its mandate in dealing with child custody issues would largely (if not entirely) eliminate the harms and costs that now occur. Case law corroborates this view, as is perhaps best shown in Marriage of Weiss (1996) 42 Cal. App 4th 106, Marriage of Mentry (1983) 142 Cal. App. 3d 260, and Marriage of Murga (1980) 103 Cal App. 3d 498.
These three cases all involved conflicts over the religious upbringing of children. Before they were decided, parents sought judicial intervention to show that their children's "best interests" were served by adhering to their religions. With judges empowered to make such determinations, parents had incentives to litigate, which (as Weiss, Mentry, and Murga show) they did.
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Yet, the only demonstrable results of that governmental intrusion into parentchild relationships were injuries to the parents robbed of their rights, and children deprived of exposure to a more diverse set of religious views.
In the wake of Weiss, Mentry and Murga, judges no longer have authority to make such assessments. Rather, each parent has an inalienable First Amendment right to the free exercise of religion, which includes the right to change her religious beliefs and to share those beliefs with her offspring. (In re Marriage Weiss (1996), 42 Cal. App. 4th at 118 (emphasis in original) (emphasis added).
The result is as one might readily predict: parents no longer waste their time, energy, money and anger fighting over religion, while the children are enriched and
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demonstrably benefit. In other words, with the incentive to battle removed, the battles disappeared. Respondent contends that the same outcome would ensue if all the other indeterminate "Best Interests of the Child Tests" were similarly addressed.
Accordingly, the Respondent respectfully submits that abiding by the principles of equal rights and fairness, rather than adjudicating on the basis of whim and caprice, is "best" for the children, as well as for the parents.
Thus, the family courts should follow the lesson of Weiss, Mentry and Murga, and accord to both fit (i.e., good enough) parents their equal rights to 50% time (physical custody) with their children, unless one parent voluntarily agrees to less custody than 50%. As with other constitutional rights, no parent is obligated to fully exercise the right of custody. Thus, if the two parents agree that an unequal custody arrangement is preferable, that is perfectly acceptable. (Men gladly do voluntarily what they will not do under compulsion. Coffin, Building the Nation (1882) at 251) (emphasis added).
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However, as with all other constitutional rights only the individual (and not the government) should have the power to decide whether he or she will relinquish that right.
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XI.
CAUSES OF ACTION
BASED ON FACIAL CONSTITUTIONAL CHALLENGES AND OTHER POINTS OF LAW AND PUBLIC POLICY.
A. VIOLATIONS OF SUBSTANTIVE DUE PROCESS
CAUSE OF ACTION #1: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Violate the U.S. and California State Constitutions Rights of Children to Be Free of Unwarranted Governmental Harms.
The allegations set forth in the preceding paragraphs are realleged herein;
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The California Legislature has appropriately found and declared that [t]here is a compelling state interest in the development of a speedy, conflict-reducing method of resolving custody and visitation disputes . (Family Code 20000(a)(4). See also 4250(a)(5)); (A) Family Code Custody & Visitation Statutes and the Associated Family Court System Create, Exacerbate, and Perpetuate Interparental Conflict. In cases such as those alleged to be encompassed by this litigation (i.e., where there are two fit (i.e., good enough) parents, there are no demonstrable benefits to the child as a result of the Family Code Custody & Visitation Statutes and the coupled Family Court System. On the contrary, in regard to the child, all that is provable are harms from these statutes and the court system, including the following:
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It has been assumed that the state's heavy-handed involvement in the Family Court System is necessary to further this goal;
Whether or not this is correct, the current process dismally fails in this regard. When people are treated with e qual respect, battles rarely erupt. When people are given incentives to fight, battles are inevitable. The current Family Code Custody & Visitation Statutes and the coupled Family Court System provides incentives to fight; not to amicably settle with as little acrimony as possible;
Thus, the Family Code Custody & Visitation Statutes and the coupled Family Court System has become a legislatively-created battlefield that animates and perpetuates interparental conflict;
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Animating and perpetuating interparental conflict harms children , without question, and the parents too (and especially a good enough parent who is attacked by the other parent with dubious motives) and violated their inalienable rights to the pursuit of happiness and enjoyment of life. (Cal. Const., art. I, I; [All people are by nature free and independent and have inalienable rights. Among these are enjoying life and liberty, and pursuing and obtaining happiness,]). (emphasis added).
(B) Family Code Custody & Visitation Statutes and the Associated Family Court System Waste Parental Time, Money, and Resources
Family Court proceedings take a toll often huge in terms of parental time, money, and emotional capital, among other things;
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No proven benefit has been shown to result from the current Family Code Custody & Visitation Statutes and the coupled Family Court proceedings, especially as contrasted with simply respecting the parties' equal and inalienable rights; (U.S. Const., 14 th Amend., Equal Protection Clause, "no state shall ... deny to any person within its jurisdiction the equal protection of the laws .", Cal. Const., art. I, I);
Wasting parental time, money, and draining all the parties emotionally in unnecessary legal proceedings harms children. (Cal. Const., art. I, I).
(C) Family Code Custody & Visitation Statutes and the Associated Family Court System Shatters Childrens Eventual Adult Lives, Especially If They Too Become Parents.
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The State's Family Code Custody & Visitation Statutes and the Family Court System routinely make parents miserable; often, literally, ruining their lives. Having a fit and good enough parent made miserable causes distress and other harms not only in that parent, but in children as well; (Cal. Const., art. I, I);
Thus, the State's Family Code Custody & Visitation Statutes and the Family Court System adversely affects children not only during their developmental years, but long into their adult lives as well; (Cal. Const., art. I, I);
Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by
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implementing and perpetuating a system that needlessly and unjustifiably violates children's rights to be free of unwarranted governmental harms. ( Cal. Const., art. I, I).
CAUSE OF ACTION #2: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Violate the U.S. and California State Constitutions by Infringing Upon the Fundamental Constitutional Rights of Parenthood.
[T]he interest of parents in the care, custody, and control of their children--is perhaps the oldest of the fundamental liberty interests recognized by this Court . (Troxel v. Granville (2000) 530 U.S. 57, 65;
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In fact, the U.S. Supreme Court has reiterated this notion repeatedly for nearly a century:
a. [T]he liberty guaranteed ... by the Fourteenth Amendment ... denotes ... the right of the individual to establish a home and bring up children. (Meyer v. Nebraska (1923) 262 U.S. 390, 399);
b. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. (Pierce v. Society of the Sisters (1925) 268 U.S. 510, 535);
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c. It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter . (Prince v. Massachusetts (1944) 321 U.S. 158, 166); (citation omitted);
d. [C]onstitutional interpretation has consistently recognized t hat the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. ( Ginsberg v. New York (1968) 390 U.S. 629);
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e. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of thei r children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition. (Wisconsin v. Yoder (1972) 406 U S. 205, 232);
f. [F]reedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment ; (Santosky v. Kramer (1982) 455 U.S. 745, 753);
g. It is settled now, as it was when the Court heard arguments in Roe v . Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood. (Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) 505 U S 833, 849);
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h. [T]he 'liberty' specially protected by the Due Process Clause includes the right ... to direct the ... upbringing of one's children. (Washington v. Glucksberg (1997) 117 S. Ct. 2258, 2267).
The California Supreme Court has similarly ruled:
a. "[T]he importance of preserving the relationship between a natural parent and his child cannot be gainsaid." (Guardianship of Smith (1954) 42 Cal. 2d 91, 85).
b. "Where the case involves an obvious invasion of an interest fundamental to personal autonomy, e.g., ... the freedom to pursue consensual familial relationships, a 'compelling interest' must be present to overcome the vital privacy interest." (Am. Acad. of Pediatrics v. Lungren (1997) 16 Cal. 4th 307, 329).
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For the State to abridge this right, strict scrutiny applies: [C]lassifications affecting fundamental rights are given the most exacting scrutiny. (Clark v Jeter (1988) 486 U.S. 456, 461). (citations omitted)
Under strict scrutiny standard of judicial review, the State is required to show a compelling interest [w]here there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling. (Bates v. Little Rock (1960) 361 U.S. 516, 524)
There is no such compelling interest in Family Court cases where there is no neglect or abuse or undue harm to the child; that is, the parties are fit and
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good enough as parents. Even if the Best Interests of the Child could be adequately divined (which they cannot), making certain individuals' lives better is simply not a compelling state interest. Especially when that alleged improvement comes at the cost of shattering the lives of other individuals, and when the degree of harm to those individuals is not even considered. To paraphrase the Declaration of Independence, We hold these truths to be selfevident, that all human beings, children, women, and men, are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
As the U.S. Supreme Court has specifically noted, So long as certain minimum requirements of child care are met, the interests of the child may be subordinated , even to the interests of the parents or guardians themselves. (Reno v Flores (1993) 507 U.S. 292, 304).
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In fact, it is constitutionally necessary that equal, in every respect, child custody be awarded to each parent when both are good enough. (Id , at 305)
Furthermore, even if there were a compelling interest, the State would need to narrowly tailor their laws to serve that interest. [T]he Fifth and Fourteenth Amendments' guarantee of 'due process of law' include a substantive component, which forbids the government to infringe certain 'fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. (507 U S. at 301-302).
As far as custody determinations are concerned, neither the State of California nor any other state Best Interests of the Child statutes have ever met the
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demands of constitutional tests of strict scrutiny. In fact, no state has ever even met the demands of a rational-basis analysis.
Nor can this strict scrutiny test ever be passed by the so-called Best Interests of the Child standard, which has no proven benefits that outweigh the harms, and thus, runs afoul of the constitutional rights and protections noted above.
Of course, supporters of the current statutes will claim otherwise, alleging that some children do better after Family Court intervention. However, such allegations are totally speculative in nature and cannot ever be proven.
It is true there are too many stakeholders to count who do not wish to see much, if anything, changed in the current system, based on a simple truth: stakeholders with any stock in the current system will, with great likelihood, resist change that threatens their position, power, and resources. They will say and do most anything to maintain the status quo. Even at the expense of the integrity of the U.S. and California Constitutions.
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Additionally, if a child could be shown to have done better after intervention by Family Court, that would have occurred in the current legal milieu, where parents knowing from the start that there will likely be gross disparities in the outcome vis--vis parental rights are doing battle. Never has there been a study contrasting the current framework against a framework based simply on fairness and equal protection.
With this lack of scientific evidence, the Respondent cannot empirically prove that an equal protection-based framework will be superior, either. Thus, the legality of the current system depends upon who bears the burden of proof.
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Under strict scrutiny judicial review, that burden rests entirely on the State. The State must show at least that the [challenged] classification serves 'important governmental objectives and that the discriminatory means employed' are `substantially related to the achievement of those objectives .' (United States v Virginia (1996) 518 U.S. 515, 533) (citations omitted).
The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad and speculative generalizations. The State of California has never been adequately challenged nor has it met its burden in this regard.
Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that needlessly and unjustifiably infringes upon the constitutional rights of parenthood, while failing under the burden imposed by strict scrutiny tests.
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CAUSE OF ACTION #3: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Harm Children in Violation of the Parents' Rights to Raise Their Children Free From Government-Inflicted Injury.
The U.S. Supreme Court has consistently ruled that parents have basic liberty interests in raising their children free from unwarranted governmental intrusions, as stated in Moore v. East Cleveland (1977) 431 U S. 494, 499:
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A host of cases, tracing their lineage to Meyer v. Nebraska, 262 U.S. 390, 399401 (1923), and Pierce v. Society of Sisters, 268 U S. 510, 534-535 (1925), have consistently acknowledged a "private realm of family life which the state cannot enter" Prince v Massachusetts, 321 U.S. 158, 166 (1944). See, e.g., Roe v. Wade, 410 U.S. 113, 152-153 (1973); Wisconsin v. Yoder, 406 U.S. 205, 231-233 (1972); Stanley v Illinois, 405 U S. 645, 651 (1972); Ginsberg v. New York, 390 U.S. 629, 639 (1968); Griswold v Connecticut, 381 U S. 479 (1965); id., at 495-496 (Goldberg, J., concurring); id., at 502-503 (WHITE, J., concurring); Poe v. Ullman, 367 U.S. 497, 542-544, 549-553 (1961) (Harlan, J., dissenting); cf. Loving v. Virginia, 388 U.S. 1, 12 (1967); May v Anderson, 345 U.S. 528, 533 (1953); Skinner v Oklahoma ex rel Williamson, 316 U.S. 535, 541 (1942). Of course, the family is not beyond regulation. See Prince v. Massachusetts, supra, at 166. But when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. See Poe v. Ullman, supra, at 554 (Harlan, J., dissenting).
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If this is the case when there is no issue of State-induced harms to those children, it surely must be the case when, as alleged here, there are such Stateinduced harms.
Accordingly, this cause of action re veals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that needlessly and unjustifiably injures children in violation of the parents' rights to raise their children free from government-inflicted injury.
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CAUSE OF ACTION #4: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Infringe Upon the Fundamental Constitutional Rights of Association Between Parents and Their Children.
The allegations set forth in the preceding paragraphs are realleged herein ;
[C]hoices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. (Roberts v. United States Jaycees (1984) 468 U.S. 609, 617-18).
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This is especially true regarding bonds between family members. This Court has long deferred to the bonds which join family members for mutual sustenance . (L v Matheson (1981) 450 U.S. 398, 437).
Thus, the bonds uniting the members of the nuclear family ... [including] uncles, aunts, cousins, and ... grandparents ... has roots ... deserving of constitutional recognition. (Moore v East Cleveland (1977) 431 U.S. 494, 504)
If this is true for the bonds uniting uncles, aunts, cousins and grandparents, then it surely is true for the bonds uniting fit parents with their children as well. Yet the current family law system tears at those bonds with more than regularity.
Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by
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implementing and perpetuating a system that needlessly and unjustifiably infringes upon the fundamental constitutional rights of association between parents and their children.
CAUSE OF ACTION #5: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Infringe Upon the Fundamental Constitutional Rights of Privacy.
Although not specifically enunciated, there is a federal constitutional right of privacy. (U.S. Const., Ninth Amendment, [unenumerated rights]).
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[T]he Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, fou nd at least the roots of that right in the First Amendment; in the Fourth and Fifth Amendments; in the penumbras of the Bill of Rights; in the Ninth Amendment; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment. These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty" are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to ... family relationships, and childrearing and education. (Roe v Wade (1973) 410 U.S. 113, 152-53) (citations omitted).
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Article 1, section 1 of the California Constitution specifically enunciates the right of privacy: All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
[T]he explicit right of privacy protected under California Constitution, article I, section 1, protects two classes of privacy interests: `(1) interests in precluding the dissemination or misuse of sensitive and confidential information ("informational privacy"), and (2) interests in making intimate personal decisions or conducti ng personal activities without observation, intrusion, or interference ("autonomy privacy").' (Ruiz v Podolsky (2010) 50 Cal. 4th 838, 850-51) (citation omitted).
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Both of these privacy interests are implicated in the case at bar.
Where the case involves an obvious invasion of an interest fundamental to personal autonomy, e.g., ... the freedom to pursue consensual familial relationships, a "compelling interest" must be present to overcome the vital privacy interest. (Am Acad of Pediatrics v. Lungren (1997) 16 Cal. 4th 307, 329).
[T]he best interests of the child ... approach raises the repugnant specter of governmental interference in matters implicating our most fundamental notions of privacy. (Johnson v. Calvert (1993) 5 Cal. 4th 84, 93 (n.10). [Although the California Supreme Court distinguished between parentage and custody in Calvert, it gave no explanation for why the use of the "Best Interests of the Child" standard is any less repugnant in the latter setting]. (emphasis added) Family privacy is grounded on the right of parents to rear their children without unwarranted state interference. (Marriage of Harris (2004) 34 Cal. 4th 210, 251 (Chin, J , concurring and dissenting)). 47
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Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that needlessly and unjustifiably infringes upon the fundamental constitutional rights of privacy.
CAUSE OF ACTION #6: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Allow for the Forced Use of Expensive "Experts" and Other Professionals (Therapists, Supervised Visitation Monitors) Who Have No Proven Value, Resulting in Unconstitutional Takings.
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Pursuant to Family Code section 3111, parents who have done nothing illegal and have in no way harmed their children are often forced to pay large sums of money for "Child Custody Evaluators", the so-called experts, whose measurable value has not been proven and who then intrude into their lives with modern-day methods equivalent to that of Tarot cards and astrology. These Child Custody Evaluators often pit the two parents against each other in a duel to determine who is the better parent, all the while also scarring the psyches of the children for life.
The reports from these experts are based on completely unproven methodologies. As has been charitably described in the journal published by the Center for Families, Children & the Courts, there is "considerable debate over the relevance, reliability, validity, and potentially grave problems of overreaching by mental health professionals in child custody evaluations and reports in general " (Kirshbaum, Taube
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and Baer, Parents with Disabilities: Problems in Family Court Practice (2003) 4 J Center for Fam. Child. & Cts. 27, 28) (footnote omitted).
To wit, these experts often use methods such the Rorschach Inkblot Test. U.S. Courts have long questioned the validity of the Rorschach test. In Jones v. Apfel (1997) 997 F.Supp. 1085, the Court stated (quoting from Attorney's Textbook of Medicine) that Rorschach results do not meet the requirements of standardization, reliability, or validity of clinical diagnostic tests, and interpretation thus is often controversial. (Gacono, Carl B., The Handbook of Forensic Rorschach Assessment , F. Barton Evans (2007), p. 83).
The gold standard method used by these experts is the Minnesota Multiphasic Personality Inventory (MMPI-2) for assessing the mental health of the dueling parents. However, all the correct answers to this test are readily available in publically available books and on the Internet, allowing parents to game the outcome of the MMPI-2 test at will, with the incentive to do so obvious.
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Pursuant to Family Code section 3200.5, parents who are who have never been convicted of any criminal acts are often ordered to pay for a professional supervised visitation monitor to spy on their interactions with their children. These professionals can also be ordered by the court based on mere allegations alone, with nothing approaching even clear and convincing, let alone beyond a reasonable doubt, proof that a parent has harmed or abused his or her child. Such monitoring can be ordered based upon the childs best interest.
To force parents, against their will, to pay for such "expert" evaluations and
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professional therapists and monitors, which can then be used to infringe upon each parents own liberties, violates the Takings Clause of the Fifth Amendment.
Figuratively, and maybe more literally, the affected parents set up their own gallows and hang themselves; forced to buy the bullets for their own firing squad all for crimes they never committed.
This is especially true when the takings actual purpose [i]s to bestow a private benefit. (Kelo v. City of New London (2005) 545 U.S. 469, 478).
Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that needlessly and unjustifiably imposes a "Takings."
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CAUSE OF ACTION #7: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Inflict a Penalty "as Great [as], if Not Greater, Than a Cri minal Penalty," Thus Violating the Eighth Amendment's Proscription Against Cruel and Unusual Punishment and Cal. Const., Art. I, 17, Prohibition Against Cruel Punishment.
The allegations set forth in the preceding paragraphs are realleged herein .
The Eighth Amendment to the United States Constitution protects against the infliction of "cruel and unusual punishments."
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Article I, section 17 of the California Constitution states, Cruel punishment may not be inflicted
Respondent recognizes that this protection generally does not apply in civil matters. (Ingraham v. Wright (1977) 430 U.S. 651). However, the label, CIVIL, is not dispositive as to the character of the penalties (United States v. Ward (1980), 448 U.S. 242).
The unjustified interference in the right of parenthood is "a penalty as great [as], if not greater, than a criminal penalty," (Santosky, 455 U.S. at 769 (citing H. R. Rep. No. 95-1386, p. 22 (1978)).
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Some punishments, though not labeled 'criminal' by the State, may be sufficiently analogous to criminal punishments in the circumstances in which they are administered to justify application of the Eighth Amendment. (Ingraham, 430 at 669 (n.37)).
Respondent therefore asserts that the Eighth Amendment of the U.S. Constitution and Article I, section 17 of the California Constitution are applicable in the Family Court setting. Further, the Responded contends every word in both the federal and state constitutions must by adhered to by all Custody & Visitation Statutes and the California Family Courts.
Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that violates the Eighth Amendment's and Article I, section 17s protection against cruel and/or unusual punishment.
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B. VIOLATIONS OF PROCEDURAL DUE PROCESS
CAUSE OF ACTION #8: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Abridge the Fundamental Right of Parenthood on the Basis of an Unconstitutionally Arbitrary and Vague "Best Interests of the Child" Standard.
The United States Supreme Court has made it clear that:
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If arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. (Grayned v. City of Rockford (1972) 408 U.S. 104, 108-109 (emphasis added and footnote omitted).
The California Supreme Court has concurred with this assessment (People ex rel Gallo v. Acuna (1997) 14 Cal. 4th 1090, 1116 (citing Grayned).
The "Best Interests of the Child" concept does not provide the requisite "explicit standards," and is, therefore, unconstitutionally vague. Despite this fact, the "Best Interests of the Child" term is used repeatedly in the California Family Code as it pertains to child custody determinations.
Moreover, "perhaps the most important factor affecting the clarity that the
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Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of association, a more stringent vagueness test should apply " (Hoffman Estates v. Fltpszde, Hoffman Estates (1982) 455 U.S. 489, 499).
The "Best Interests of the Child" standard interferes not only with the right of association, but the right of association with an individual's own children.
Thus, in conjunction with the interference with the many other substantive constitutional rights noted in the preceding causes of action, the arbitrariness and vagueness of the "best interests" standard is clearly impermissible.
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The United States Supreme Court specifically alluded to this problem when it noted that "judges too may find it difficult, in utilizing vague standards like 'the best interests of the child,' to avoid decisions resting on subjective values." (Smith v. Organization of Foster Families for Equality & Reform (1977) 431 U.S. 816, 835 (n 36) (emphasis added) [involved the rights of association of foster parents, which in contrast to the rights of association of natural parents such as exist in the instant action the Supreme Court found not to be fundamental liberty interests protected by the Fourteenth Amendment.] (Id. at 839-847) See also Gelling v Texas (1952) 343 U.S. 960, in which the Court held in a per curiam decision that a law allowing governmental agents to determine what films are in "the best interests of the people" is one that "offends the Due Process Clause of the Fourteenth Amendment on the score of indefiniteness." (Id.) (Frankfurter, J., concurring)) (emphasis added).
A sister state's Supreme Court more pointedly chastised the Best Interests notion:
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[T]he absence of standards for its determination threatens to render the concept of "best interest" so vague that it defies analysis, invites decision by guesswork, and evades any sort of meaningful review on appeal. (Taylor v. Taylor (Tenn. 1993) 849 S.W.2d 319, 326; See also Vermont Yankee Nuclear Power Corp v Natural Resources Defense Council (1978) 435 U.S. 519, 546 [if a standard were simply what the court perceives to be the 'best' or 'correct' result, judicial review would be totally unpredictable). (emphasis added).
In fact, since its inception, a phalanx of family law's most distinguished scholars has attacked the nebulous quality of the best-interest standard. (Schneider, One Hundred Years of Uniform State Laws. Discretion, Rules, and Law Child Custody and the UMDA's Best-Interest Standard (1991) 89 Mich. L Rev. 2215, 2216). (emphasis added).
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As one of the most esteemed writers in this field noted decades ago: [W]hat is "best" or "least detrimental" for a particular child is usually indeterminate and speculative because existing psychological theories do not allow confident prediction of the effects of alternative custody dispositions and because society lacks a clear-cut consensus about what values should inform the determination of what is "best" or "least detrimental. (Mnookin, Foreward: Law and Contemporary Problems (1975), 39 Children and the Law 1, 6) (emphasis added);
Even authors published in the journal Center for Families, Children & the Courts have recognized problems with the Best Interests standard. (See, e.g., Richmond, Parentage Issues Challenging California's Judicial System: Parentage by
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Intention for Same-Sex Partners (2005) 6 J. Center for Fam. Child. & Cts. 125, 131 (The best-interest test poses inherently vague criteria for the evaluator or the judge deciding the matter), Anderlik, Disestablishment, Suits What Hath Science Wrought? (2003) 4 J. Center for Fam. Child. & Cts. 3, 9 (noting the worries about the "Best Interests" standard being vague and open to bias in application); Custody Criteria in Statutes and Rules of Court (2003) 4 J. Center for Fam. Child. & Cts. 28 (noting that although all states use the well-known 'bestinterest-of-the-child' standard ... it has long been recognized that these standards are vague and that, at least as currently conceptualized, they provide less than optimal guidance for judicial efforts to promote standardized, objective, and fair custody determinations) (emphasis added).
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Thus, sentiments such as the following are commonly expressed :
[T]here seems to be no agreement on what ['the best interest of the child'] truly mean[s]. The term is vague, illusive, and subject to myriad interpretations. Nonetheless, it has become the universal standard used today in adjudicating custody battles. (Duncan, The Ultimate Best Interest of the Child Ensures from Parental Reinforcement, The Journey to Family Integrity (2005) 83 Neb. L. Rev 1240, 1251-52). (emphasis added).
These are not rare expressions by a few eccentric commentators. On the contrary, such sentiments have been repeated by a virtually endless stream of respected judges, legislators, scholars, and others.
Under the "best interests" scheme, parents have no way of knowing what it is they must do to prevent the horrors that Family Courts inflict, Yet:
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The void-for-vagueness doctrine reflects the principle that "a statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. (Roberts v. United States Jaycees (1984) 468 U.S. 609, 629) (citation omitted).
The difficulty is not limited to the custody determinations made by the t rial court judges, with the "best interests" standard being so unconstitutionally vague; judges in the Courts of Appeal have no benchmark against which to gauge the lower court decisions.
Thus, under the Best Interests of the Child standard, appellate review is essentially precluded:
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The requirement that government articulate its aims with a reasonable degree of clarity ensures that state power will be exercised only on behalf of policies reflecting an authoritative choice among competing social values, reduces the danger of caprice and discrimination in the administration of the laws, enables individuals to conform their conduct to the requirements of law, and permits meaningful judicial review. (Id.)
In consequence, the vague Best Interests of the Child standard exposes parents to a penalty as great [as], if not greater, tha n a criminal penalty (Santosky, 455 U.S. at 769 (citing H. R. Rep. No. 95-1386, p. 22 (1978)) for behavior that is perfectly acceptable A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment." (Stromberg v. California (1931) 283 U.S. 359, 369). (emphasis added).
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The result is that Family Court judges truly have unbridled discretion in making custody decisions, and unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure. (In re Gault (1967) 387 U.S. 1, 18)
In fact, the discretion that exists in the Family Courts is virtually identical to that struck down in Shuttlesworth v. Birmingham (1969) 394 U.S. 147. In Shuttlesworth, a commission maintained the power to deny parade permits if that was required to serve the public welfare, peace, safety, health, decency, good order, morals or convenience (Id at 149).
Such factors are no more vague than the [t]he health, safety, and welfare of the child found in Family Code section 3011(a).
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Yet, according to the U.S. Supreme Court, a municipality may not empower its licensing officials to roam essentially at will, dispensing or withholding [a fundamental liberty protected by the constitution] according to their own opinions regarding the potential effect of the activity in question on the `welfare,' decency,' or 'morals' of the community. (Id. at 153).
With the right of expression (at issue in Shuttlesworth) encompassed within the right of parenthood, and with the right of parenthood valued by the overwhelming majority of parents far more dearly than that right of expression, the unconstitutionality of the vague Best Interests of the Child standard (as used in child custody proceedings) is unmistakable.
Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the
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California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that deprives parents of their basic rights by utilizing an arbitrary and vague standard.
CAUSE OF ACTION #9: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Abridge the Fundamental Right of Parenthood on the Basis of an Unconstitutionally Overbroad "Best Interests" Standard.
The vast majority of parents brought before the Family Courts are loving, devoted, and fit parents; far more concerned about the welfare of their children than any judge, "expert", professional, or other government agent.
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Nonetheless, the Family Code, wrongly, presumes that those latter individuals are better able (than these parents) to determine what is "best" for the children.
Such a presumption is unconstitutional in that it sweeps within its broad scope activities that are constitutionally protected, (Cox v. Louisiana (1965) 379 U.S. 536, 552, [involving speech and assembly]) and results in sweeping and improper application. (NAACP v. Button (1963) 371 U.S. 415, 433 [involving political advocacy].
Because what is in the best interests of a particular child is indeterminate, there is good reason to be offended by the breadth of power exercised by a trial court judge in the resolution of custody disputes. (Mnookin, Child Custody Adjudication: Judicial Function in the Face of Indeterminacy (1975) 39 Law & Contemp. Probs. 226, 230).
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Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that is needlessly and unjustifiably overbroad.
CAUSE OF ACTION #10: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Use an Indefinable and Not Narrowly Tailored Best Interests of the Child Standard.
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The welfare of the child is nothing but a synonym for the vague and arbitrary "Best Interests of the Child" standard. Health and safety are essentially universal concerns of all parents, and , as is the case with parents outside of the jurisdiction of the Family Court system. it is the rare fit mother or father whose parenting implicates these factors. Section 3011 (a) speaks of [T]he health, safety, and welfare of the child. Family Code section 3011 states, In making a determination of the best interest of the child, the court shall, among any other factors it finds relevant, consider all of the following. (emphasis added). This is then followed by number of factors, grouped under headings (a)-(e).
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Section 3011(b) concerns abuse against other individuals.
Section 3011(c) concerns [T]he nature and amount of contact with both parents. This is a topic that raises a host of issues on its own.
Suffice it to say that there is no eviden ce that a change in "the nature and amount of contact," in and of itself, is harmful.
On the contrary, children frequently make huge changes in the nature and amount of contact they have with their parents over the course of their lives.
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For instance, going to school, attending summer camps, acquiring friends, taking trips, joining sports teams, visiting relatives, etc., all entail marked alterations in "the nature and contact with both parents ." These changes are rarely viewed negatively.
It is only in the realm of the Family Courts, when the change involves the increased involvement of a loving and fit parent, that such an alteration is deemed to be problematic.
Section 3011(d) concerns substance abuse.
Section 3011(e) concerns judicial obligations when sections (b) and/or (d) come into play.
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Accordingly, very few, or more likely, none, of the "factors" enumerated in Family Code section 3011 have any proven value in determining what is "best" in terms of custody arrangements.
Any true "Best Interests of the Child" determination would require Family Court judges to come up with what is as impossible as it would be arbitrary a set of all relevant criteria concerning how a parent affects a child.
Using even a small sampling of such criteria immediately reveals the folly of such an endeavor. Consider evaluating each individual's kindness, sense of humor, intelligence, fashion sense, artistic ability, "people skills," fine motor skills, musical talents, diligence, responsibility, insight, cu riosity, adaptability, comfort with technology, dedication, stability, athletic prowess, social contacts, literary background, creativity, skepticism, trust, generosity and inventiveness.
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Assuming, arguendo, that this task could even be performed; judges would then need scales to measure each criterion . No such scales exist. After that, an assessment of how that criterion is likely to play out over the child's lifetime would be required. For instance, how might dad's facility with Google searches assist the children socially in college, or professionally after their careers are launched? Will mom's penchant for magic tricks help the children earn a living, gain self-confidence, or meet their future spouses? Obviously, the answers to these questions (which represent a minuscule fraction of the possibilities) are unascertainable.
Weighing the scores for the two parents in their endless permutations against one another would be the next step. As between Parent A's knowledge of guns, fluency in Spanish, appreciation of caterpillar metamorphosis, and
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fondness of Verdi or Parent B's interest in politics, knowledge of Oprah, love of reptiles and abilities in ping-pong, how can anyone possibly determine what is best?
In fact, examining multiple characteristics is not necessary to demonstrate how foolhardy this process is. What is in the "Best Interests of a Child" is unknowable for even one characteristic. Take, for example, whether it is "best" to live in a clean or in a dirty house. How clean and how dirty? Is it the kitchen, the bathroom, or the yard that count most? Does the amount of time spent cleaning enter into the equation? In keeping his house spotless, dad has less time to read to the children. Mom's house is a mess, but she reads to the kids every night. Which is better? Do odors count? Are air fresheners okay? Is the smell of cleansers good or bad? How much is the freedom (in a "dirty" house) to just throw clothes on the floor worth? When is cleanliness a sign of an obsessive-compulsive disorder? When is it manifestation of power and control? When does a "dirty" house become an unhealthy house? How unhealthy is permissible? How does the degree of cleanliness affect visits from friends and relatives?
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As can be seen, the issues involved, even for this one aspect of child-rearing, are as legion as they are unanswerable.
The notion that a judge (or any other fallible and biased human being) can possibly make valid assessments in terms of what is "best" for a child is absurd. Yet that is the standard upon which the destruction of parental lives and the associated harms to their children is based.
Accordingly, this cause of action reveals that the challenged California Family
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Code Child Custody & Visitation Statutes are unconstitutional and that California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that deprives parents of their basic rights by using a standard, the Best Interests of the Child, that itself is no standard at all and is essentially worthless in determining child custody disputes.
CAUSE OF ACTION #11: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Allow Interested Adversaries to Deprive Individuals of Their Own Fundamental Constitutional Rights.
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Family Code section 3080 states that "[t]here is a presumption, affecting the burden of proof, that joint custody is in the best interest of a minor child, subject to Section 3011, where the parents have agreed to joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child." (emphasis added).
Pursuant to the foregoing Family Code section 3080, Family Court judges generally approve of equal custody arrangements when the two parents agree to that arrangement. In theory, the court is responsible for determining custody, visitation, and support in all proceedings for marital dissolution. In practice, the court will exercise this responsibility by deferring to agreements made by divorcing parents in nearly every instance. (Moore, Part Three: Custody and Visitation: Indirect Representation of the Child in Custody Disputes (2001) 16 J. Contemp. Legal Issues 193, 194 (n.6))
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Yet, in the otherwise identical circumstances, if one parent decides to withhold agreement, judges will often order unequal custody as a result. In other words, an equal custody arrangement that a judge believes meets the "Best Interests of the Child standard suddenly becomes inadequate merely because an inte rested adversary alleges that it does not.
When it is realized that this allegation usually stems from a desire for power, control, vengeance, money, etc. (often combined with the inordinate weight of parental love), it can be seen that a State may not infringe upon an individual's fundamental constitutional rights on this basis. Of course, the savvy litigant will not admit to these selfish reasons, but will instead couch the argument for more custody in "Best Interests of the Child" terms.
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Standards of proof, like other 'procedural due process rules[,] are shaped by the risk of The allegations set forth in the preceding paragraphs are realleged herein ; CAUSE OF ACTION #12: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Deprive Individuals of Their Fundamental Constitutional Rights Without Meeting a "Clear and Convincing Evidence" Standard. Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that grants to interested adversaries the power to deprive individuals of their own basic liberties.
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error inherent in the truth-finding process. (Santosky v Kramer (1982) 455 U.S. 745, 757). Thus:
This Court has mandated an intermediate standard of proof -"clear and convincing evidence" -- when the individual interests at stake in a state proceeding are both "particularly important" and "more substantial than mere loss of money. Addington v. Texas, 441 U.S., at 424). Notwithstanding "the state's 'civil labels and good intentions,' id., at 427, quoting In re Winship, 397 U.S., at 365-366, the Court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with "a significant deprivation of liberty" or "stigma. 441 U.S., at 425, 426. See, e. g , Addington v Texas, supra (civil commitment); Woodby v INS, 385 US, at 285 (deportation); Chaunt v United States, 364 U.S. 350, 353 (1960) (denaturalization); Schneiderman v. United States, 320 U.S. 118, 125, 159 (1943) (denaturalization)). (Id. at 756-57).
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One's equal rights to parent his or her child is certainly particularly important, and the diminution of those rights are a significant deprivation of liberty. Thus, a clear and convincing evidence standard is required before a parent can have his or her equal parenting rights abridged. That standard is not utilized in the State's Family Courts Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that abrogates the fundamental rights of parenthood without meeting the constitutionally required clear and convincing standard. 65
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CAUSE OF ACTION #13: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts by Depriving Individuals of Their Fundamental Constitutional Rights with "Evidence" that is of No Proven Value at All.
As mentioned previously, Evidence Code section 730 evaluations are frequently ordered by Family Court judges (pursuant to Family Code sections 3110-3118). It is assumed that these evaluations provide valid data to help the judges make their "Best Interests of the Child determinations.
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On November 22, 2005, the Science, State, Justice, Commerce, and Related Agencies Appropriations Act of 2006 became law. Under the terms of the statute, Congress authorized the National Academy of Sciences to conduct a study on forensic science. (Prepublication "Summary", at http://books.nap.edu/openbook.php?record_id=12589&page=1), at S-1 (footnote omitted). (emphasis added)
In the report that ensued, significant defects were found in forensic science practices for such evidence as fingerprints, firearms, toolmarks, bite marks, impressions (tires, footwear), bloodstain pattern analysis, handwriting and hair. (Id. at S-2). Accordingly, the committee that authored the report came up with thirteen recommendations to improve these forensic science practices.
As deficient as the National Academy of Sciences found the forensic science practices to be in the hard sciences addressed in its report, those practices are
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pictures of perfection when compared to the practices in the completely nebulous world of family law.
In fact, to situate the word science anywhere near the two words family law is to make mockery of the English language.
Family Law practice and jurisprudence does not even possess the bare minima to apply scientific method. There are virtually no agreed-upon criteria, no agreed-upon standards by which any criteria are applied, no agreed-upon scales with which to measure the criteria, no means to weigh the various criteria against one another, no studies demonstrating any inter-observer reliability, and, most importantly, there is not a shred of evidence demonstrating any efficacy of the process currently in place.
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As three esteemed researchers in this field have written of the so-called "experts" upon whom family law judges rely:
[A]ll measures that purport to assess constructs directly relevant to child custody determinations suffer from significant limitations. In fact, no study examining the properties of these measures has ever been published in a peerreviewed journalan essential criterion for science and, in theory, for the courts. In our view, the absence of scientific support should preclude the use of any of these forensic assessment instruments for any purpose other than research. We even have doubts about the value of research using these measures, because it is hard to conceive of any psychological test that could measure all the factors that might be relevant to child custody (Shuman, 2002) or that might assess the best custody arrangements for children when the criteria for fulfilling children's best interests are so poorly defined (Emery, 1999b). (Emery, Otto
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and O'Donohue, A Critical Assessment of Child Custody Evaluations Limited Science and a Flawed System (2005) 6 Psychological Science in the Public Interest 1, 8).
Family Court judges themselves will often note that the alleged "experts" in the field can come to completely contrary conclusions, and that virtually any fit parent (and/or his or her attorney) can readily find an "expert psychologist" to testify that it is in the "Best Interests of the Child" to have custody awarded to that parent.
In addition:
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Scholars have strongly criticized the involvement of mental health professionals in child custody litigation, citing difficulties in researching a standard that is poorly defined, the paucity of methodologically sound, empirically based knowledge about the effects of various custody arrangements on child development, and the likely irrelevance of mental health testimony to the legal questions at hand. Further objections have been raised based upon the absence of valid and reliable measures for evaluators to use, the use of measures that were originally not developed for assessing parenting capacities, the potential for mental health professionals to overstep the bounds of their competence, and the potential for courts to defer to mental health professionals because of their putative expertise and the complex bases of the decision (Id. at 29). Furthermore, it has been noted that there are significant problems with bias on the part of evaluators, and that "much [of this] bias is unwitting ... mental health professionals probably do not have any better capacity than laypeople to become aware of prejudices." (Id.)
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Such a setting is a breeding ground for arbitrary decision-making, which is precisely what has evolved in the State's family law courts, leading to the infliction upon completely helpless individuals of "a penalty as great [as], if not greater, than a criminal penalty. (Santosky, 455 U S. at 769 (citing H. R. Rep. No 95-1386, p. 22 (1978)).
For the government to inflict such an egregious penalty even to advance a compelling state interest raises significant constitutional questions.
For the government to inflict such an egregious penalty without demonstrably advancing any state interest is an extreme violation of procedural due process. "The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state." (Addington v. Texas (1979) 441 U.S. 418, 427).
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For the government to inflict such an egregious penalty as it does in the Family Courts i.e., with clear and convincing evidence that it is causing harm to the very interests it asserts it is seeking to aid is beyond comprehension, and manifestly unconstitutional.
Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that has no agreed-upon standards and utilizes nonsensical "evidence" in depriving individuals of their basic rights to the care, companionship and love of their children.
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CAUSE OF ACTION #14: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Require "Mediation" (as Set Forth in Family Code 3170 et seq.) wherein Parents Are Expected to Relinquish Their Fundamental Constitutional Rights of Parenthood.
Family Code section 3170 states (in pertinent part) that "the court shall set the contested [custody] issues for mediation." Participation in such mediation is mandatory. (Marriage of Economou (1990) 224 Cal.App 3d 1466, 1487). On its face and as applied, this sets in motion a scheme whereby the fundamental constitutional right of parenthood is placed up for grabs.
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The notion that one can be forced to mediate regarding his or her fundamental constitutional rights is oxymoronic. Mediators have no more demonstrable skills in terms of knowing what is actually "best" for a child in terms of allocating time between two fit parents any better than any other person. Its a proverbial crap shoot for anyone to divine what is really best for child, short of G-d herself.
Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that encourages parents to "mediate" away their basic rights to care for, be with, and love their children.
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CAUSE OF ACTION #15: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Inflict "A Penalty as Great [as], if not Greater, than a Criminal Penalty" Without Affording Those at Risk the Right to a Trial by Jury.
California Constitution, Article I, section 16 states, "Trial by jury is an inviolate right and shall be secured to all."
Article I, section 26 states, "The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise."
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The right to trial by jury guaranteed by the Constitution is the right as it existed at common law at the time the Constitution was adopted. ... The common law respecting Further, in 1883, when Cassidy was decided, there was no such thing as a custody determination in divorce proceedings, as custody of the child went to whomever the father deemed appropriate. Despite the foregoing, the California Supreme Court has held that there is no right to a trial by jury in divorce actions. (Cassidy v Sullivan (1883) 64 Cal. 266). The basis for that holding was that divorce is not an action " where an issue of fact is made by the pleadings." (Id. at 267). "The right has always been regarded as sacred and has been jealously guarded by the courts." (People v. One 1941 Chevrolet Coupe (1951) 37 Cal. 2d 283, 287 n.1) (citation omitted).
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trial by jury as it existed in 1850 is the rule of decision in this state. ... It is the right to trial by jury as it existed at common law which is preserved; and what that right is, is a purely historical question, a fact which is to be ascertained like any other social, political or legal fact. The right is the historical right enjoyed at the time it was guaranteed by the Constitution It is necessary, therefore, to ascertain what was the rule of the English common law upon this subject in 1850. (Chevrolet Coupe (1951) 37 Cal. 2d at 286-87).
That historical question can be answe red by reference to Baker v. Baker (1859) 13 Cal. 87, where paternity was in question. Citing approvingly to an 1854 Georgia Supreme Court case, Baker noted that "the jury may decide the question of paternity, by attending to the relative situation of the parties ... and it is the duty of the jury to weigh the evidence." (Baker, 13 Cal. at 100). (nested quotation marks removed) (emphasis added).
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Baker then further cited to a British case from 1732, again noting "the evidence which should have been submitted to the jury [and which] should have been left to the jury." (Id. at 101) (emphasis added).
In view of the clear language of Article I's sections 16 and 26, the "sacred" nature of the right to a jury trial (that "has been jealously guarded by the courts "), the "issue of fact" as to what is in the "Best Interests of the Child, and the Baker case, it would appear that parents do have a fundamental constitutional right to a trial by jury before their parental rights maybe in any manner abridged.
Moreover, it is a violation of State and Federal Due Process (as well as the Sixth Amendment) to place parents in jeopardy of suffering "a penalty as great [as], if not greater, than a criminal penalty" (Santosky v. Kramer (1982) 455 U.S. 745,
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769) (citing H.R. Rep. No. 95-1386, p. 22 (1978)), without being afforded the right of a trial by jury. (Id. at 756-57).
This is especially the case in the Family Courts, where there is pervasive arbitrariness in judicial custody determinations. (Cf Lewis v United States (1996) 518 U.S. 322, 329 [noting "[t]he benefit of a jury trial, as a protection against the arbitrary exercise of official power."]) (citation and internal quotation mar ks omitted).
Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that that deprives individuals of their constitutionally-mandated right to a trial by Jury.
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C. VIOLATIONS OF EQUAL PROTECTION
CAUSE OF ACTION #16: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Violate the Equal Rights of Parents Versus Their Children.
The allegations set forth in the preceding paragraphs are realleged herein.
Government has a compelling interest in protecting those who are incapable of protecting themselves. Thus, there is a compelling interest in protecting children.
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However, this interest only becomes of concern only when those vested with the control of the children have engaged in neglect or abuse .
There is no compelling interest in making anyone's life "better" (even assuming, arguendo, that what is "better" is determinable). More importantly, for the government to have as a stated policy the betterment of one subset of the population at the expense of another subset's fundamental rights is a clear violation of equal protection.
This is especially with the situation as it exists in the Family Courts. As previously noted, the injury to a parent, i.e., marginalization in her relationship with her child, is a devastating one. Assuming, arguendo, that a child's life is made "better" under the current Family Code and Family Court System (and the Respondent contends that it is, in fact, made far worse), whatever minimal, incremental benefits that might accrue for the child do not justify shattering the life of his or her parent .
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Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that violates equal protection of the laws as applied to parents versus children.
CAUSE OF ACTION #17: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Violate the Equal Rights of Parents in Family Courts Versus Parents Outside of Family Courts.
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The fundamental constitutional right of parenthood exists for all parents . The government has no power to intrude into the parent-child relationship unless there is a finding of neglect or abuse.
This is true even when there are parents who have separated, but wish to avoid governmental intervention by avoiding the Family Court System. Yet a fit parent often suffers governmental infringement upon this most critical liberty interest solely because the other parent hopes to obtain some advantage in that venue.
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This is the case even though that subject parent may have f ar fewer "deficiencies" than other parents who raise their children under the "normal" circumstances (i.e., with the government prohibited from entering this private realm).
This violates the Equal Protection provisions of the California and U.S. Constitutions.
Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that violates equal protection of the laws as applied to parents within the jurisdiction of the Family Courts versus parents outside of that jurisdiction.
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CAUSE OF ACTION #18: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Violate the Equal Rights of Parents with a "Better" Other Parent Versus Parents with a "Worse" Other Parent .
Under the current Family Code and Family Court System, a parent who is assessed as being in the 80th percentile in terms of parenting abilities may lose significant custodial time with her child if her former partner is assessed as being in the 95th percentile, since that would be in the child's "best interests." (In making this argument, Respondent in no way accepts that such assessments have any validity).
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Yet a parent who rates at the 20th percentile might get increased custody if his former partner is assessed as being in the 5th percentile, since that would be in that couple's child's "best interests."
It cannot possibly be a "compelling" interest of the State to diminish custody from someone who parents in the 80th percentile, while augmenting custody for someone who parents in the 20th percentile.
The fact that the current system allows for precisely this result not only demonstrates the absurdity of the "compelling state interest" claim, but it demonstrates one more equal protection violation that occurs with regularity in California Family Courts.
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Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that violates equal protection of the laws as applied to parents who have a superior "other parent" versus parents whose "other parent" is inferior.
CAUSE OF ACTION #19: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Violate the Equal Rights of Those Who Seek to Retain Their Parental Rights Against a Co-Parent Versus Those Who Seek to Retain Their Parental Rights Against a Potential Adoptive Parent .
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This is true even if the single parent has not yet bonded with the child and has no experience whatsoever in child care, whereas the couple has a decades-long In other words (as long as there is no issue of neglect or abuse), a fifteen year old high school dropout, living in poverty as a single parent, with borderline intelligence, no particular skills and dismal future prospects has no fear of the government infringing upon his parental rights even if a wealthy, established professional couple that could offer far more stability and opportunities is striving to adopt that single parent's newborn Despite the State's contention that it has a compelling interest in making children's lives "better", it disregards that alleged interest when there are individuals seeking to adopt . The allegations set forth in the preceding paragraphs are realleged here in;
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history of successfully raising numerous other children. Should that same, hoping-to-adopt couple divorce, however, either spouse would then be at risk of losing parental rights to the other, despite a decadelong relationship with a child he or she shared in raising without any problems .
All that would be necessary for this to occur would be the action of a vindictive spouse seeking the arbitrary decree of a California Family Court judge.
That the fifteen year old with so bleak a future for himself and his child has no risk of this intrusion upon his right of parenthood, while each of the successful and accomplished adults can readily have their parental rights abridged reveals a clear equal protection violation.
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Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that violates equal protection of the laws as applied to parents with a child that might benefit from a relationship with a natural parent versus parents with a child that might benefit from a relationship with an adoptive parent.
CAUSE OF ACTION #20: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Violate the Equal Rights of Non-Disabled Parents Versus Those Parents Who Have Significant Disabilities.
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When a parent sustains a severe disability, and thus has measurable and severe impediments to many of the interactions and facilities a "normal" parent maintains in caring for a child, it is "an abuse of discretion" for a family law judge to weigh those factors as being "of sufficient relevance and materiality" in a custody determination. (Marriage of Carney (1979) 24 Cal. 3d 725, 740).
Yet, when unmeasurable factors that have no proven impediments are claimed to exist, that same judge is permitted to markedly deprive a fit individual of his or her basic parental rights, apparently because those vague and arbitrarily determined factors are "of sufficient relevance and materiality."
Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that violates equal protection of the laws as applied to non-disabled parents as opposed to parents with significant disabilities.
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D. OTHER CLAIMS
CAUSE OF ACTION #21: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Violate California Family Code 3010(a).
Family Code section 3010(a) states, "The mother of an unemancipated minor child and the father ... are equally entitled to the custody of the child ."
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The word "equally" is unambiguous, and denotes equal custody.
Respondent contends that the harms previously noted would largely, if not entirely, disappear were this provision (along with the related constitutional provisions) enforced.
Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that violates the statutory command of Family Code section 3010(a).
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . 42 U.S.C. section 1983 states in pertinent part: The allegations set forth in the preceding paragraphs are realleged herein; CAUSE OF ACTION #22: The Challenged California Family Code Child Custody & Visitation Statutes and Their Implementation by California Family Courts Violate 42 U.S.C. 1983.
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Respondents daughters have been have deprived of their constitutionally secured rights to an optimally full, happy and loving relationship with Respondent.
Additionally, the Respondent has been deprived of his constitutionally secured right to an optimally full, happy, and loving relationship with his children (limited only as much as is necessary to protect the Petitioners equal parental rights).
Accordingly, this cause of action reveals that the challenged California Family Code Child Custody & Visitation Statutes are unconstitutional and that the California Family Courts engage in illegal (unconstitutional) activity by implementing and perpetuating a system that violates the federal mandate of 42 U.S.C. section 1983.
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XII.
RESPONDENTS STATUS AS A PRO PER LITIGANT
SHOULD BE GIVEN DUE AND PROPER CONSIDERATION.
Our California Courts of Appeal has found that, [w]e know the litigants, both plaintiffs and defendants, are unrepresented by counsel in the vast majority of cases as was true here. We also know this fact influences how these hearings should be conductedwith the judge necessarily expected to play a far more active role in developing the facts, . . . In such a hearing, the judge cannot rely on the pro per litigants to know each of the procedural steps, to raise objections, to ask all the relevant questions of witnesses, and to otherwise protect their due process rights. (Ross v. Figueroa (2006) 139 Cal.App.4th 856; 43 Cal. Rptr. 3d 289). (emphasis added).
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And while it is true, in light of the Respondents extremely limited legal skills, he feels he has done the best he is capable of doing on this Amendment to Petition of Government for a Redress of Grievances, he is not a member of the State Bar of California with 35+ years of experience like opposing counsel, who, as it so happens, has successfully argued constitutional challenges himself in front of the California Supreme Court. Thus, the Respondent is certain he has made mistakes in the structure, layout, argument, length, and other aspects of his petition. Therefore asks for the Courts indulgence and understanding related to such matters while still deciding the substantive and other issues presented on merit and in the interests of justice.
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XIII. CONCLUSIONS PRAYERS.
WHEREFORE, Respondent prays for relief and judgment as follows:
I.
To declare that referenced California Family Code (with its "Best Interests of the Child" standard), violates the Due Process and Equal Protection Clauses of the United States and the California Constitutions;
II.
To abide by Family Code section 3010(a) and, absent a compelling interest to the contrary, ensure that the Respondent has a right to 50% custody of his daughters when custody is to be split between two fit parents;
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /// VI. V. IV. III.
To declare that the referenced California Family Code (with its "Best Interests of the Child" standard), is void as against public policy;
To declare that the referenced California Family Law Code (with its "Best Interests of the Child" standard), violates 42 U.S.C. section 1983;
To enjoin this Court from utilizing the referenced California Family Code in its current guise (with its "Best Interests of the Child" standard), from which the aforementioned constitutional and statutory violations occur;
To provide such other and further relief as the Court may deem proper.
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///
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this amendment to the Respondents referenced petition was executed by me on this 26 th day of February, 2013 at Newbury Park, California. Respectfully submitted, SCOTT C. K ANDEL
By: Scott C. Kandel In Propria Persona For Respondent.
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2013-02-27 - Scott C Kandel - Constitutional and Other Challenges - My Love Story To My Children and The US Constitution - FINAL

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2013-02-27 - Scott C Kandel - Constitutional and Other Challenges - My Love Story To My Children and The US Constitution - FINAL

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AMENDMENT PETITION OF GOVERNMENT FOR A REDRESS OF GRIEVANCES

GIVEN THE NATURE OF THE

THE PARENT-CHILD RELATIONSHIP

A BRIEF HISTORY OF CALIFORNIA CHILD CUSTODY LAWS.

THE U.S. CONSTITUTION PROTECTS

A. VIOLATIONS OF SUBSTANTIVE DUE PROCESS

The California Supreme Court has similarly ruled:

Both of these privacy interests are implicated in the case at bar.

B. VIOLATIONS OF PROCEDURAL DUE PROCESS

The United States Supreme Court has made it clear that:

Thus, sentiments such as the following are commonly expressed :

Section 3011(b) concerns abuse against other individuals.

Section 3011(d) concerns substance abuse.

C. VIOLATIONS OF EQUAL PROTECTION

The word "equally" is unambiguous, and denotes equal custody.

RESPONDENTS STATUS AS A PRO PER LITIGANT

SHOULD BE GIVEN DUE AND PROPER CONSIDERATION.

XIII. CONCLUSIONS PRAYERS.

WHEREFORE, Respondent prays for relief and judgment as follows:

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /// VI. V. IV. III.

By: Scott C. Kandel In Propria Persona For Respondent.

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