Connecticut Brief with Constitutional Parental Rights Arguments Moving up through Appellate Courts – see the En Banc arguments here

by | Nov 2, 2019

Connecticut appellate courts decided that constitutional parental rights could be ignored. The parent decided that she would request an en banc review. We are sharing with you the en banc arguments that we gave her to help her continue her fight for justice at the end of this blog post. When you know the trial courts and appellate courts are corrupted, you need to position your brief to go to the Supreme court. We help parents learn how to do this, learn the right arguments, and get these arguments to the Supreme Court.

What was argued in the brief?

Today we are analyzing a case that was written by a parent who studied our materials and attempted to apply our arguments as she understood them. We look at this appeal in order to assist all of you in gaining a better understanding of how and why these arguments are made. By reviewing your arguments, we can help the next parent overcome what you might not have known as well as correct any mistakes you might have inadvertently made.

The following will help you apply parental rights arguments that came from our motions package. Keep in mind that each parent argues the information that we gave them to their understanding of the material, so there might be alterations to their arguments that do not quite hit the mark, so you are encouraged to get the motions package and learn the material yourself and not just copy the arguments as you find them duplicated here or in the brief itself.

The arguments of interest to us made in the brief are the following:

Best interest of the child standard violates the constitution.

A Mathews test is required before interfering with fundamental rights.

Fundamental parental rights require strict scrutiny.

Changing marital status is not a proper threshold for interfering with fundamental parental rights.

Summary of the Syllabus of the Brief:

BEGINNING OF SUMMARY EXCERPT:

KELLER, J. The self-represented plaintiff, appeals from the trial court’s decisions denying, in part, her post judgment amended motion for modification of custody and awarding attorney’s fees to the defendant. The plaintiff also challenges the trial court’s decision dismissing two motions she filed during the pendency of the custody modification proceedings, in which she sought a declaratory judgment that certain fundamental rights guaranteed by the United States constitution deprived the court of the authority to adjudicate parental custodial conflicts under the best interests of the child standard.

In summary, the parent argued that the court erred by not adjudicating her unfit prior to interfering with her parental rights. The trial court ruled that she lacked “standing to request a declaratory judgment to adjudicate her constitutional rights as a fit parent,” and violated her right to due process and abused its discretion by not ruling on her motions for declaratory judgment before trial commenced; (3) violated her and her child’s rights under the first and fourteenth amendments to the United States constitution by failing to apply the proper balancing test under Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); (4) erred in awarding attorney’s fees to the defendant . . . (5) erred in failing to grant her motion for modification of custody; and (6) erred in using its own opinions to infringe on her ‘‘fundamental rights to her child,’’ circumvented her due process right to cross examine the judge, and made clearly erroneous findings regarding her proposed orders and the needs of the child. We affirm the judgment of the court.

END OF SUMMARY EXCERPT

We are only reviewing the sections that relate to our arguments.

Some Background First

Before we look at the specifics that were argued in this parent’s brief and the resulting opinion, it is best to understand what the precedent is in the appellate courts where the brief is filed.

WHAT CLAIMS IS THE APPELLATE COURT MAKING IN CONNECTICUT?

CONNECTICUT CLAIMS THAT THE FAMILY LAW DOMESTIC RELATIONS TRIAL COURTS NEED TO MAINTAIN FLEXIBILITY to weigh the multiplicity of competing interests that may hang in the balance, similar to what they ORIGINALLY HAD WHEN THEY WERE EQUITY COURTS,  AND that “such sensitive and personal affairs are no place for an immutable legal standard that is bordered by bright lines. Indeed, we have recognized that it is preferable to leave “the delicate and difficult process of fact-finding in family matters to flexible, individualized adjudication of the particular facts of each case without the constraint of objective guidelines.”

Therefore, the trial courts in Connecticut reject “the constraint of objective guidelines” and “a blanket [rule of law] . . .” [76]

Their reasoning is that not all fathers and not all families are similarly situated so they need this flexibility to fashion creative relief packages. Connecticut court is improperly defining similarly situated. While this case, Duclos, is one about a putative father, the appellate court uses this as their precedent and it doesn’t matter whether it is a case about a putative father or a case between two fit parents.

We will address each of one these claims and defeat each of these claims at a high level in this blog post.

FAMILY LAW DOMESTIC RELATIONS TRIAL COURTS ARE NOT A COURT OF EQUITY

Appellant argues:

The family courts are courts of equity and are designed to make the litigants “whole”, rather than repeatedly enforcing an unnatural separation between mother and child.

Connecticut family law courts are not a court of equity. The trial courts are a court of law blended with equity. If your state has a family code, it is a court of law, but also maintains equitable powers. The trial court’s discretion is limited and controlled by state law. Therefore, it is a falsehood to call this purely a court of equity. Anywhere there is a statute guiding the court, it is no longer just a court of equity. Statutes place boundaries on the courts. Federal laws, your constitutional rights, place boundaries on the courts.

Is an Equity Court outside of Constitutional Requirements?

No. Equity cannot be exercised outside of constitutional limitations. So claiming that it is a court of equity does not get the court out of having to apply the constitution.

How does the constitution apply?

The constitution is your protection. In order to determine what kind of protection is warranted, you apply a balancing test. The Mathews test to be more specific when the case involves parental rights. This is a test used to balance the interest of the state against your interests and the child’s. If you put a child custody suit between two fit parents into perspective, the suit really is parent versus judge. One of you brings the case to court and asks the judge to assert his power and make decisions regarding your child. Many times both of the parents bring their case to the judge and you both ask the judge to decide. The judge wants to assert his interest in protecting the welfare of the child. The boundaries for the judge have to be set and unfortunately in every family law case right now you are going to have to outline it for the judge. If you do not, they trample your fundamental rights and force you into doing things their way and there won’t be a thing you can do about it.

A balancing tests is necessary to keep the judge within the boundaries of his desire, the state’s desire, to protect the welfare of the child, and your rights to make decisions regarding your child. If you want the court/state to protect you from the attacks on your rights or protect your right to make different decisions than the other parent, you will need to know how to assert and demand these boundaries be respected. You will have to fight for this. We will talk about this balancing test a little later in this blog.

First, it is important that you know what triggers the court’s authority to use its Parens Patriae powers to interfere with your rights to your child.

Changes in Marital Status is not a sufficient trigger for interfering with fundamental parental rights, cannot justify applying best interest factors, and each parent is only required to meet basic minimum standards.

The appellant argues that the trial court failed to overcome the constitutional threshold. That threshold is disputed between the state and the appellant. We use “the state” and the “trial court” interchangeably, because when the judge is upholding statutes that the legislator passed and interpreting laws on behalf of the state, the judge is acting on behalf of the state, the judge is using powers that the state has conveyed onto him.

Most people think that breaking up or not being in a relationship with the other parent creates the authorization for a judge to take over the decision making for each of the parent’s, positions the judge to re-allocate the rights, duties, and responsibilities to each parent as the judge sees fit and how the legislators have defined. This is not correct. This is how the family courts have been doing it and making parents believe that this is how it has to be done.

We however did some research and discovered that the way that they are doing it and telling you is all wrong. The way that the family courts are set up right now has left you and your child without any protections and has opened the gates for extortion, fraud, corruption, and tyranny. The entire foundation and boundaries that are right there in our constitution have been completely ignored because the states found a way to benefit off of you by pretending that these protections didn’t exist. Instead attorneys could vigorously fight for an emotional position that you want and adjudicate your case on these adversarial positions. This creates the high conflict litigation that you are all experiencing today. Remove the boundaries and you have a free for all arena, gladiator style.

The way this is supposed to be done is the following:

Your rights to your child are not bound to your relationship with or to your marriage. You might have heard Ron talk about the bastardy laws and the importance of understanding the significance of those cases. These cases are important because this is how your rights got untangled from your relationship to the other parent. Your rights used to be tied to your marital status. Now they are not. What this means is that you do not have to get along with the other parent and the state cannot use your dissolution proceedings as the justification for forcing you into a fight over your rights, duties, and responsibilities to your child. So this appellant argued the following:

  • The court failed to meet the trigger required to intervene in the Plaintiff and child’s fundamental liberty interests.

The court must balance the state interests involved with the private decisions of fit parents. Where two married parents meet minimum standards of care to their children, the state cannot evaporate rights and re-distribute them just because the parents enter a divorce proceeding. Fit parents approach the court to resolve disagreements and will ask the court to make decisions. However, the court must moderate those disagreements and only infringe on rights in a narrowly tailored fashion and using least restrictive means.”

RESPONSE: First we have moved away from arguing these rights under “liberty” and shifted to arguing that these rights are protected under “First Amendment.” The First Amendment is more strongly protected. It is true that the Fourteenth Amendment protects your liberty interests, the courts just have’t defined that protection in a clear cut fashion yet so we go where you have more clearly delineated protections.

The appellate panel in this Appellant’s Connecticut case decided that the parent was contradicting herself. They stated that the parent was contradicting herself. They said that they were confused as to why she would make the argument that the Constitution deprived the trial court of making these custody decisions when Appellant herself asked the court to make custody decisions. The flaw that they have exposed is that the parent did not address this issue in her brief. She had at some point changed course on the trial court and was attempting to re-frame her case under the constitutional standards. When you modify a prior final order, the modifications are premised on that original framing from that original order and the laws including for modifications in place at that time continue to be the ones that set the pattern and precedent in your own case. So pay attention, there is a precedent in your individual case aside from the precedent setting cases that were used to arrive at your original final order, parenting plan, visitation or possession orders, and divorce decree.

In order to moderate “those disagreements” between parents the court must apply the tests required to define the process that is due in order to ensure a fair outcome and preservation of the integrity of the rights at issue. The court’s duty is to uphold the protections for your civil rights. It is true the court can only interfere as much as necessary and not more. This is based on the constitutional requirement that the state must justify it’s involvement first by addressing whether or not there is a compelling state interest, whether this interest can be satisfied, and only satisfying this interest using the least restrictive means, and under a narrowly tailored order.

Your parent-child relationship is protected under the First Amendment

The First Amendment right of free family association between parent and child, for the purposes of intimate and expressive communication is protected at strict scrutiny from any infringement by state actors of any kind, even judges in civil cases.

THE TESTS THE CONNECTICUT COURT USES TO BALANCE INTERESTS

Because of the Judge’s desire to protect the welfare of the child, even if the child’s welfare is not really in danger, the judge has to create a conflict between the parents and orders court-appointed experts and professionals to investigate, interview, and study you. The court uses the best interest of the child factors to measure each of the parental capacities and home worthiness so that the judge can apply his own opinions as to what is best for your child per your request, the other parent’s, or both. This boils down to viewpoint discrimination.

Connecticut appellate court claims that the best interest of the child factors are the state’s balancing test. They claim that they use the best interest factors to balance the interests of all of the parties and the children.

This is not sufficient to satisfy constitutional scrutiny. Best interest factors are nothing more than viewpoint discrimination. Best interest factors require you to qualify as a parent. This brief argues against these practices and argues for her constitutional protections to be applied to prevent the court from applying these biased, discriminatory, and damaging practices.

Have you ever had to qualify your parenting to anyone else, not know what criteria will be used against you, and then get punished for slights as benign as you got the help of your current husband to pick up your child from school? Why are you having to qualify your parenting now? More people need to ask themselves this. This is the number one way that the state wiggles its way into your private life and takes over your life, your parenting decisions, and your wallet.

You should not be proving yourself to anyone unless you have been charged with a crime and you receive proper notice of these charges. The state will claim that these are civil proceedings and therefore the only due process you are entitled to is notice and a hearing. The problem is that these are catch-all, do anything, don’t follow any rules, anything goes type of hearings.

No fit parent should be required to prove their capacity as a parent or the suitability of their home prior to receiving charges and notice of those charges. Your only charge here is that you and the other parent no longer are together and no longer get along.

What is Best Interest Really?

Best interest is not really about the child’s interest. It’s the government’s viewpoint of that child’s interest that the state is promoting as evidenced here.

“[T]he court must balance the interests of all parties involved, while keeping in mind that the child’s interests are paramount.” Id., 312; see Ban v. Quigley, supra, 168 Ariz. 199; In re Marriage of Ross, 245 Kan. 591, 602, 783 P.2d 331 (1989). “In determining whether it is in the child’s best interests to allow a paternity action by one outside the present family, the trial court should consider the stability of the present home environment, the existence or lack thereof of an ongoing family unit, the extent to which uncertainty of parentage *75 already exists in the child’s mind, and any other factors which may be relevant in assessing the potential benefit or detriment to the child…. A court must reach this conclusion independently based on the facts in the record and the recommendations of the guardian ad litem appointed to represent the interests of the child.” McDaniels v. Carlson, supra, 108 Wash. 2d 312-13.

What the state of Connecticut is asserting here is a state governmental interest in the welfare of the child. However, the state has not met the threshold for asserting the interest of the child. Further, where it is the court that is asserting the interest of the child, the court waives its neutrality and impartiality. The court becomes an advocate for the child and therefore loses its essential neutrality and the court rejects its federal duty to maintain neutrality and independence in these proceedings. Therefore, the court as child’s advocate is a biased state actor and lacks all jurisdiction to resolve a federal constitutional question because of that bias.

What is that federal question?

What process is due. You are asking how will the state trial court protect your parental rights?

This brief and opinion that we are reviewing attempts to use many of our arguments so we are going to review the brief and how this parent argued the concepts that we crafted, and we are going to discuss the opinion that came out of the Connecticut appellate court on this brief on October

How do you argue that you are entitled to the a Mathews Balancing Test?

The Appellant argued this:

The balancing test set forth in Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. 893 determines the amount of due process needed and weighs three factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute requirement would entail.The Plaintiff stated she was seeking statutory remedy, which is not an advisory opinion. The court failed to see this instant case as a fundamental rights issue. The Plaintiff had a jurisdictional question prior to the hearing and asked the court to determine what procedure would be used to balance her fundamental rights against the state’s interest. Plaintiff requested the balancing test to prevent erroneous deprivation to her rights.

RESPONSE: You are not seeking statutory remedy. The way the appellant phrased this is problematic and we probably wouldn’t bring it up that way anyway. She argues Mathews throughout her brief but there are a few things she attempts to adapt that we thought could use a little updating. We are providing a little assistance to you so that you have some foundation for understanding how we apply Mathews to help you adapt it to your facts of your case. You are asking the state court to apply federal question. The Mathews test is a federal question test, that can only be answered by the judge, not by the state legislator. And it is case and fact specific. Remember the Connecticut state appellate panel’s precedent is that it is their opinion that no family is similarly situated so they have to have flexibility and no bright line rule would suffice because each case is fact specific. They use this as their excuse for rejecting constitutional arguments that the constitution limits the judge. The appellate panel has admitted that each case is fact specific. What they ignore is that it is their federal duty to determine in each fact specific case what bright lines must be applied and they can never ever set those limits below constitutional mandates. They swore an oath to live up to this fact. And their mere desire to act as a super parent does not overcome their oath nor does it overcome the constitution. No government official anywhere of any kind has broad discretion to act beyond constitutional limitations. Period. The end. That is what Article VI says. The supremacy clause of Article VI is crystal clear. These terms your judge swore an oath to uphold what it says.

The three prongs of the Mathews test are:

  • Identify the private interest at issue that will be affected by the official action
  • Identify the risk of erroneous deprivation of those interests through the procedures used
  • The governmental interest in infringing those interests, or depriving you of those interests.

In other words,

  • The trial court has a federal duty and is under obligation to provide due process in compliance with the federal standard, this includes two factors: First, certain rights cannot be infringed at all by the trial court no matter what process the trial court uses unless the trial court applies the substantive test associated with those rights; and two, the court must provide fundamentally fair processes when any constitutional right is at issue. What is fair in one proceeding may not be fair in another proceeding. This has to do with the strength of the rights at issue and who is seeking to infringe those rights and how. The procedure you receive in an employment termination hearing from a government employer is much less than the procedural protections you must receive in a criminal trial.
  • The Mathews test is applied in civil proceedings, only civil proceedings. The purpose of the Mathews test is to determine precisely which procedures are necessary given the facts and circumstances of an individual case to ensure that the procedures provided are adequate to meet the requirements of procedural due process. The way this is accomplished is to first evaluate what rights are at issue. These would be your substantive rights that are subject to being infringed. And this test does not remove thee requirement to provide the substantie guarantees to go along with those rights. This test only determines what process must be used.
  • The next thing the court has to look at in the Mathews test is what risk is associated with the court making an erroneous decision or in other words, if the trial court makes a bad decision what is the damage associated with that bad decision.
  • And then the trial court has to evaluate what the government’s stated purpose is for seeking to infringe the rights. For instance, the government has a compelling interest to prevent you from falsely yelling fire in a crowded theater because doing so might significantly harm other people. What is vitally important as part of this test is that the rights, the private rights, and the governmental interest have to be stated at the same degree of precision with each other for the balance to be true. So, in preventing you from yelling fire in a crowded theater, the court’s justification is not a broad interest in the welfare of people in theaters. The state’s compelling interest must be articulated in terms of preventing the specific harm of people stampeding toward a small number of exits out of fear of a nonexistent fire. That is a narrowly specified compelling state interest. That kind of precision is required under this test. Where child custody courts violate the rules of this test primarily is when they look at a precise specific right of an individual and then state that the broad best interest of the child standard outweighs the individual’s very precisely articulated interest or right. That is a bad application of the Mathews test. It is always flawed. It is always plain error when the court does that. Smart judges know this they simply do not care.

One of the things that the government loves to argue is the cost of protecting the individual rights, but cost cannot be the predominant factor unless it is extreme.

The essentials of this test is to assert your constitutional rights very clearly, very particularly, and with great specificity. Then you argue the BIC standard is far too broad justification to infringe these precisely articulated rights. And the trial court errs where it fails to evaluate the private interests and the governmental interests on the same “plane of generality.” For instance, you and your child share a First Amendment protected right to speech and association through the intimacies of daily interaction. The government’s general and broad interest in acting in a child’s best interest is not as precisely articulated as your specific right of intimate speech and association shared through the intimacies of daily living. (Want more training like this so you can write your own appeal? All you have to do is get a MEMBERSHIP and check out our appellate education.)

The Supreme Court has stated this with slight variations in one of its cases. This is the way they cited it in Turner v. Rogers:

  • Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (considering fairness of an administrative proceeding). As relevant here those factors include (1) the nature of “the private interest that will be affected,” (2) the comparative “risk” of an “erroneous deprivation” of that interest with and without “additional or substitute procedural safeguards,” and (3) the nature and magnitude of any countervailing interest in not providing “additional or substitute procedural requirement[s].”

These are the three things that have to be balanced on the same “plane of generality” using the specific facts of your case.

Due Process Violations

The Plaintiff also raises this as a question of law: even if the record was properly developed to properly determine with a preponderance of evidence that the Plaintiff has the attitudes, thoughts, feelings, motives and perspectives, and the opinions survived due process, they still do not rise to the level of harm needed to infringe fundamental rights. The court failed to illustrate a compelling state interest to why the mother’s thoughts and feelings, even if true, would trigger the need to deprive fundamental rights. Plaintiff challenges the constitutionality of the infringement on her parental rights based on her thoughts and feelings. The scope of constitutional rights is a question of law. Cambodian Buddhist Society of Connecticut, Inc., supra. The question of law is reviewable on a plenary standard of review.

Opinions were used to deprive this mother and her child of civil rights. The first hurdle is learning to recognize what they are using and what category those practices fall under. Next is learning what arguments defeat this practice. But before you even make those arguments you first must state the “Standard of Review.” This requirement can be found under the Rules of Appellate Procedure.

What is the standard of review?

The standard of review focuses on the deference an appellate court affords to the decisions of a District Court. Basically, “plenary” or “de novo” is the highest level of review where the appellate court can replace the district court’s position with its own. This is the standard that all of our arguments are reviewed under since they are questions of federal law.

You are going to copy and paste the standards of review from appellate court opinions. You can copy and paste them from a brief is you know they are correct. How do you know they are correct, if you verify them in an appellate court opinion. So why not just copy the standard of review from that opinion then? Sometimes you copy from a brief because that brief might have stated it more succintly or more in terms of related to what you are arguing specifically.

For example, this parent didn’t have to know what standard of review was required, she just went to opinions on scholar.google.com and looked for standard of review for constitutional rights and found that constitutional rights is a question of law and questions of law are reviewed under the “plenary standard of review.” Most states will call this “de novo.” The federal standard is “de novo.”

There are several different standards of review: Review of questions of law (De novo or Plenary), review applied to a mixed question of fact and law (clearly erroneous when factual questions predominate or de novo when legal questions predominate or a sliding scale of the two), and then review for question of facts alone (clearly erroneous). There are three basic standards of review: Clearly erroneous, Abuse of Discretion, and De Novo. Some appellate courts use the clearly erroneous and abuse of discretion for questions of facts interchangeably. Knowing the standards of review helps you know how the appellate courts limits and narrows the grounds for appeal.

Making arguments that contradict or hurt your other arguments.

“Plaintiff is not appealing the court’s decision to not allow a school change or residency change.”

RESPONSE:  This one sentence was used against Appellant as the reason they killed her IDEA educational argument. We did not create her IDEA educational argument. She tried to tie some of the concepts that she learned from us about her rights to her educational and ADA arguments.

When you make the argument that the court improperly denied your changed circumstances argument and that argument is that your child’s education is suffering and needs to change schools, and then you say that you are not challenging the court’s decision, you might think that this will only kill your educational argument. You have to understand how the arguments might get tied together and make sure you address those ties. In this case, the educational arguments were being used as the gatekeeper for allowing the rest of the arguments, and because she tied the majority of her rights arguments to her educational position, it was easy for this appellate court to kill her rights arguments.

Of course, that wasn’t all of her argument regarding her rights to her child, so it was not appropriate for the appellate panel to kill all of her constitutional arguments. That just killed the  IDEAI

“The family courts are courts of equity and are designed to make the litigants “whole”, rather than repeatedly enforcing an unnatural separation between mother and child.”

RESPONSE: See our discussion on equity in this blog post. Do NOT make statements that you don’t understand, or make broad swath statements, stick with the legal language that we teach so that you don’t invite the court to fill in their own interpretations, or give them paths to escape your arguments. It is not the court’s job to make you “whole.” What does that even mean!There are times when overly broad statements can hurt you. There are also times when being too precise can hurt you. You have to know when to be broad and when to be precise. It is a strategic choice that you must understand.

It is the court’s job to protect yours and your child’s civil rights. It is your judge’s job to honor his Article VI oath and protect you from any attempts to violate your rights, not make you fight to prove that you have these rights, or that you are a good enough parent.

THE FOLLOWING ARGUMENT WAS PROVIDED FOR APPELLANT’S CONSIDERATION IN EN BANC REVIEW:

We suggested that the Appellant is asserting that there is a controversy between Appellant and the state as to whether the state’s viewpoint regarding the best interest of her child is sufficient grounds to violate her fundamental federal rights and the child’s fundamental federal rights. There is a controversy between her and the judge regarding the judge’s neutrality and impartiality on a question of law as to whether the judge’s viewpoint regarding matters of conscience in child rearing is sufficient grounds to infringe her rights and her child’s rights. No question of federal law can be resolved by reference to state law. The state legislature has no federal question jurisdiction, no authority whatsoever to define federal law. Only the state courts have that. Only the state’s judiciary has federal question jurisdiction to interpret and apply federal law.

While regulation of domestic relations is a state law matter it is axiomatic that state law may not exceed federal constitutional limitations in any sphere, see Article VI.

The trial court is biased in believing it can violate First amendment rights based on its own personal viewpoint regarding matters of conscience in child rearing. The trial court is asserting that it has unbridled discretion to violate speech, association, worship, and family privacy based on its own subjective viewpoint which constitutes censorship. I am asking this court to apply constitutional review to the trial court’s failure to answer the federal question and determine what process I was due to protect my rights and to protect the rights of my child from the judge’s unbridled discretion and viewpoint discrimination. I am asking for constitutional protection of my substantive rights under the first, fourth and fourteenth amendment that the trial court has been violating for years absent substantive guarantees and through the application of fundamentally unfair processes. Where the judge asserts unbridled discretion to attack my fundamental rights in direct contradiction to Article VI and the 14th amendment, the judge creates a direct controversy between the judge and me. And that judge can no longer sit as a neutral and unbiased decisionmaker.

These federal questions cannot be resolved by reference to state law nor can they be resolved by reference to best interest factors. These federal questions cannot be resolved by reference to the interest of a third party nonlitigant who has no standing to be a party in this suit, where addressing that third party’s interest does not and cannot resolve the conflict of federal rights between the litigants. The best interest factors are not a substitute for a Mathew’s balancing test and the appellate panel erred in treating as such.

Appellant asked for this en banc review because the appellate panel failed to properly apply its federal question constitutional review authority and failed to address the well-established constitutional mandates that must be applied when any state actor such as the trial court infringes federal rights. Appellant is asking this en banc panel to apply its federal constitutional review jurisdiction to determine whether well-established principals of federal constitutional law have been improperly infringed in these proceedings.

The trial court and the appellate court categorized appellant into a class of litigant to which lesser constitutional protections are to be afforded based on nothing more than the fact that she is a fit parent who is not married to her child’s father. Neither the trial court nor the appellate court applied any degree of equal protection analysis or justification to this classification and consequently violated appellant’s equal protection rights. Classifications which exist to deprive a class of constitutional fundamental rights must survive strict scrutiny constitutional review. The appellate panel has failed to justify this discrimination at any standard of review.

Application of the best interest factors only to this class of litigant must be constitutionally justified. The argument that this class of litigants is not entitled to constitutional protections simply because they enter these proceedings with full and equal constitutional rights is an absolute rejection of everything our constitution stands for and essentially says that when any two parties have a conflict over the same rights, those rights are de facto terminated. That is impermissible under our constitutional scheme. That is causing harm to the children.

The First Amendment directly prohibits the Connecticut legislature from passing laws that limit the speech of these litigants. This is a jurisdictional limitation on legislative authority and no act nor omission of the parties can convey jurisdiction to the legislature that the constitution has removed. Nor can this court convey jurisdiction to the legislature simply because these parties First Amendment rights are in conflict. The record reflects that the court carefully considered and applied the criteria set forth in General Statutes § 46b-56, including properly opining on the capacity and disposition of the parents to understand and meet the needs of the child, one of the § 46b-56criterion. The court’s factual findings as to the plaintiff’s motivations in seeking a modification11 and the child’s needs as a child with autism were amply supported by the evidence and the reasonable inferences drawn therefrom and are not clearly erroneous.”

The Supreme Court has never recognized a First Amendment exception based on conflict between litigants regarding their First Amendment rights and it is inconceivable that they would do so now.

CONCLUSION:

These parties are bringing to this court a conflict of federal law.

The states are converting the federal question conflict into something else. The states have no authority whatsoever to alter the nature of the conflict whatsoever when the nature of that conflict is a federal question. The authority is to resolve the conflict in federal rights by resort to the court’s federal jurisdiction. The court and the state legislature has zero authority to redefine a conflict of federal rights into a state law issue.

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This blog post was last updated on November 3, 2019 at 3:57 p.m.