Burden of Proof
The Burden of Proof is something you hear us talk about all the time. This is one of the key flaws in the current family law system and one of the easiest ways to block a huge number of family court lies and prevent your judge from screwing you over. This article from the American Bar Association explains in simple language how the burden of proof works.
Your family law judge knows the rule that all fundamental rights are protected at some form of enhanced scrutiny and knows that the key fundamental element of enhanced scrutiny is that the person challenging the government action does NOT have to prove that the action is unconstitutional.
Let me say that again, when the right in question is a fundamental right, your judge cannot presume the action to be constitutional but must prove with real evidence that the action is constitutional
Your Judge is NOT your friend
This is basic constitutional law. If your judge does NOT know this simple fact, then your judge is quite literally incompetent to do their job. This is how we know that the judges are active participants in the government conspiracy to violate your rights. They know better and they violate the rules anyway. Why would your judge do this if your judge wasn’t in on it?
It is vital that you realize that your judge is NOT your friend and your judge has zero intention of doing the right thing or the legal thing. Your judge has every intention of feeding the machine your money and your judge is absolutely willing to inflict direct injury to your child to keep the machine fed.
On August 17, 2021 the 3rd Circuit Federal Appellate Court ruled on a zoning challenge regarding rifle ranges where the District Court (trial court) applied intermediate scrutiny, articulated by the Appellate panel as “heightened” scrutiny, but wrongly applied the burden of proof and improperly dismissed the case. In dismissing the case, the district court was implicitly holding that not all fundamental rights require the government to meet its burden of proof.
What the appellate court held is that it was an abuse of the jduge’s discretion to fail to require the government to prove with evidence that it has overcome the burden of proof where enhanced scrutiny is the proper standard of constitutonal review:
Even though no discovery had taken place, the Court concluded that “the fit between the challenged regulations and the Township’s objective is reasonable.” So the District Court again dismissed the complaint.
The central question presented is whether Drummond plausibly alleges that the Township’s rules contradict the Second Amendment. To answer that question, we proceed in three steps. First, we distill constitutional commands from District of Columbia v. Heller, the North Star guiding our Second Amendment jurisprudence. Second, applying those commands, we hold that the Township’s ordinance implicates the right to bear arms and must therefore face heightened scrutiny. Finally, we explain why the Township cannot overcome that scrutiny at the pleading stage.
Your Parental Rights are protected by heightened scrutiny
As we have proven many times before, your rights to your child and your child’s rights to you are individual rights, they are fundamental rights, and they are constitutionally protected rights. The specific purpose of a child custody suit is to destroy these rights as the constitution protects them and reissue them as a conditional license subject to continuous review by the judge—these licenses substituted for rights are regularly altered by that review. The laws governing the custody suit and the judge’s orders, “must therefore face heightened scrutiny.”
Now you may challenge our reading of this case and argue that we aren’t attorneys so let us point you to an article written by attorneys at the American Bar Association who say the same thing we say in even simpler and shorter language than we use, 3rd Circuit revives Second Amendment challenge to zoning restrictions on gun club (abajournal.com).
The 3rd Circuit’s own words
Here it is in the appellate court’s own words which amazingly reflect precisely what we have been arguing for years, because we get our arguments from the federal courts, not because they get theirs from us:
If this historical inquiry reveals that a law interferes with the Second Amendment, it must satisfy the same type of searching tests we use to safeguard First Amendment freedoms. Heller rules out rational-basis review as too feeble to preserve specific, enumerated rights, like the right to bear arms. Instead, it requires that challenged laws survive some form of heightened scrutiny, whether strict or intermediate.
By subjecting gun regulations to these robust tests, we respect the Court’s mandate to elevate above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
Remember how we proved to you that your parental rights are First Amendment protected rights of speech, association, family worship, and family privacy. Because they are protected by the First Amendment, your parental rights must be protected by some form of heightened scrutiny and be elevated above all other interests such as the state’s broad and unripe interest in your child’s best interests. Remember, your child has the same First Amendment rights to your as you do to them and the state’s best interest viewpoint discrimination violates your child’s rights.
The most important thing to realize here is that you do NOT in any way have to prove that the government is unconstitutionally violating your rights. You need only show that your family association rights exist, are fundamental, and are subject to infringement by the court’s actions. You don’t have to prove that the rights exist in any specific context such as divorce, the government has to prove that divorce legitimately grants it some kind of special authority over child custody, which it cannot by law because your right to divorce is also protected by the First Amendment.
Listen to the clear words of the federal appellate court. Listen to the clear words of the American Bar Association. Use those words to protect your First Amendment rights and your child’s First Amendment rights from a bought-off judge who simply wants to feed your child to the machine.
Listen to the appellate court restate this concept yet again in even simpler language,
Step Two establishes that when a rule restricts the right, it must endure either strict or intermediate scrutiny as we articulated those tests in Marzzarella. See id. at 97. In adapting those tests for new Second Amendment domains, we may look to free speech cases for guidance.
The appellate court goes on to provide even more detail that is absolutely consistent with what we have been telling you about scrutiny for so long now:
To survive intermediate scrutiny, a law must clear two hurdles. First, it must serve a “significant, substantial, or important government interest. Second, the fit between the asserted interest and the challenged law must be reasonable and may not burden more conduct than is reasonably necessary. Though we owe substantial deference to local zoning decisions, restrictions on conduct within the scope of the Second Amendment must still satisfy these requirements
The Court Must apply the proper burden of proof
Here, the Court explains where the district court got it wrong, precisely because the district court failed, as every single child custody court does, to properly apply the burden of proof that attaches to fundamental rights,
But while the District Court was right to look to free speech cases for guidance, it drew the wrong lessons—or at least incomplete ones. Critically here, our First Amendment jurisprudence makes clear that the government, not the plaintiff, must prove that a challenged law satisfies intermediate scrutiny. So at Marzzarella Step Two, the Township needs to establish fit. When a rule places only a de minimis burden on the right to bear arms, it may be clear—even before any evidence is produced—that the rule is reasonably narrowly tailored. But when a rule imposes a significant burden and takes an exceptional form, as is true of the challenged rules here, the government must demonstrate that alternative measures that burden substantially less protected activity would fail to achieve its interests. By shifting the evidentiary burden from the Township to Drummond, and by performing no analysis of alternatives, the District Court subjected the challenged rules to far less searching scrutiny than our cases command.
Harm to the Child Must be Real and the Best Interest Policy Must cure the harm
Here, the appellate court completely destroys the state’s best interest of the child public policy because as we have shown elsewhere, when the custody court violates your child’s rights it directly injures your child and that injury is counter to the stated goal of acting in the child’s best interest. It simply cannot be best for your child for the court to violate your child’s fundamental rights, as the appellate court explains,
The Township must do more than simply posit the existence of the disease sought to be cured. Instead, it must persuade us that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way. That leaves us to focus on the fit between the Township’s ends and the means it uses to achieve them.
The child custody court certainly does not remove any concrete harms to the child by depriving the child of two fit parents are no disease is cured cured by the custody court depriving your child not only of his or her rights but also to the guarantees protecting those rights. This is a critical distinction.
As the appellate court makes very clear in this case, the government can limit your rights provided its actions survive the required application of scrutiny. This is constitutional. However, the required application of scrutiny is not the right, it is the guarantee that protects the right.
While the government can in certain situations violate rights, there exists no situations of any kind whatsoever that the government can legitimately refuse to provide the guarantees our constitution provides. When your child custody court refuses to apply enhanced scrutiny to your case, the child custody court violates not only your rights but also the guarantee of your rights which it cannot justify with any excuse of any kind. This applies equally to the rights of the child.
General reference to Health and Safety or Best Interest is NOT good enough
Don’t let your divorce court judge fool you when he or she holds that its broad interest in the health and safety of your child authorizes he or she to do whatever he or she pleases because that is NOT how the guarantee works.
If a zoning board could immunize its own rules from review merely by mentioning public safety, heightened scrutiny would be heightened in name only. Indeed, the Township’s proposal would authorize even absolute bans on gun ranges and stores whenever a local zoning board believes a ban would promote public safety. Heller demands far more.
Heller demands far more because our constitution demands far more. The United State Supreme Court has already held that the government’s assertion of the child’s best interest is only a substantial interest, not a compelling interest. Therefore, best interest cannot even meet the first test even under some forms of enhanced scrutiny that are lower than strict scrutiny.
And to wrap it all up, the appellate court explains why your child custody judge’s lazy order claiming only that deprivation of our rights and the child’s rights is in the child’s best interest simply does not meet the required burden placed on the judge.
Our Second Amendment inquiry ends where it began. Heller rejects rational-basis review and instead requires a rigorous analysis of rules that interfere with the right to bear arms. Here, for example, the Township must marshal evidence to explain why… it embraced the unusual rim-fire rifle and non-profit ownership rules over more common, less burdensome alternatives. The question is not whether the Township used the least restrictive or least intrusive means of serving its interests, but whether it seriously considered substantially less restrictive alternatives. As is unsurprising at the pleading stage, the Township has failed to establish a close fit between the challenged zoning regulations and the actual public benefits they serve—and to do so with actual evidence, not just assertions.(requiring the government to present some meaningful evidence, not mere assertions, to justify its predictive judgments). We leave it to the District Court to analyze whatever evidence the Township presents in light of these governing principles
Heightened Scrutiny means that the court must scrutinize
The point of heightened scrutiny is that the court actually highly scrutinizes the case presented by the government and requires the government to actually prove its case and it can only prove its case by presenting evidence in the record that you are permitted to confront and cross-examine.
Troxel cites multiple cases from multiple different contexts in a case whose context is completely different from the cases the court cited to clearly articulate that parental rights are broad rights that apply in all circumstances. We are not required to prove we have parental rights in in the context of a specific kind of civil case. We are required to demonstrate that we have a broad and fundamental constitutional interest in our parental rights and Troxel is all that is necessary to prove beyond any doubt whatsoever that we have this protected interest when we have natural minor children and have not previously been proven unfit. If there exists an exception to this broadly applicable rule, the burden of proving the exception falls on the government and your judge cannot legally force you to prove that the exception does NOT exist.
Because government power is being used in a child custody case to remove fundamental rights, the government must prove its own interests in removing these rights survives the proper level of enhanced scrutiny. This proof requires the entry of evidence into the record.
While your judge can present evidence in an order it initiates against you under its equitable powers proving that the order is based upon sufficient evidence, when your judge is called on to determine whether the application of a written statute can survive that challenge, only an independent government official may do so. Your judge cannot offer evidence into the record to prove the government’s burden for imposing statutory relief on a party. The moment your judge does, he or she violates your right to a neutral judge. Neither can the other party provide justification for the government’s statute beyond reference to its exact wording, because the other party cannot speak on the government’s behalf.
What if they do? Then you may be able to sue them in federal court for violating your civil rights, see our book Oath Breakers: Lies Family Courts Tell.
The Simple Facts
The simple facts are that 1) you and your child are entitled to some degree of enhanced scrutiny guarantee for every single fundamental right at stake in your child custody suit and 2) if the statute on its face fails to establish the necessary proof in its text and the government fails to appear to offer evidence, your judge has zero authority to apply those written statutes to your rights.
And don’t be afraid of the court’s equitable authority that exists in the absence of statutory authority because that equitable power is just as limited under our constitution as every other government power. The law of judicial equity is NOT in any way a constitution free zone.
Read the ABA article.
Read the Third Circuit Appellate Opinion directly.
Now think for yourself. Would your child be better off if you forced the court to respect your child’s rights and your own? If the answer is yes, then contact us and let’s get started.