Courts deal with controversies, and it is vital to identify the controversy at issue.
The Best Interest Controversy
Child custody courts will claim that your custody suit is a civil suit between private parties and while that is true, it isn’t the whole story.
Under the common law and equity used historically before civil family codes were established, the argument that child custody suits are only civil suits between private parties may have been justifiable depending on the actions the court chose to take. However, under the civil law, this idea fails.
When a state legislature establishes a civil regulation, such as the best interests of the child policy, the State creates a legal conflict between the state and the individuals whose rights become limited under that policy. So, the best interest of the child civil law policy establishes additional conflicts beyond just the civil suit between private parties. These conflicts involve federal civil rights and can only be resolved using federal law NOT state law.
Parental rights are individual federally protected rights that attach to each parent individually and they consist of intimate and expressive close family speech and association rights as well as numerous privacy rights interests. The Child has rights of its own as direct rights such as intimate and expressive close family speech and association. The Child also has concomitant rights which mirror the rights of the fit parents. Where the parent makes a protected care, custody, or control choice for the child, the child is protected by that choice and is entitled to the protection of that privacy choice by concomitant right. The protection is NOT from the other parent but protection from the state and from any judge who has predetermined to apply the state’s best interests policies against your rights and against your child’s rights.
The State’s best interests of the child civil law policy generally holds that the state can do pretty much whatever it wants with your child against your wishes upon no more justification than the written viewpoint of a sole government official that doing so is in the child’s best interests. Because the State’s policy asserts state authority to violate federally protected civil rights, at every point where the asserted authority puts a protected right at risk, the State creates a legal point of controversy that is justiciable, meaning it is a controversy that state courts can resolve by exercise of their inherent federal jurisdiction and application of federal law to the federal questions. This action creates a justiciable conflict between each fit parent and the state as well as between each child and the state that can only be resolved by federal law.
This word “justiciable” is important and has a general usage as well as some very specific usages. When addressing questions of standing and subject matter jurisdiction the distinctions must become very precise and apply to each element of relief pleaded. Here we are using the more generalized form of the word meaning that a controversy exists that is subject to resolution through the judicial process because some form of relief is available through judicial action if properly pleaded. We have a separate line of legal reasoning demonstrating why child custody courts lack subject matter jurisdiction under best interests because of standing issues.
The child custody court will ignore these conflicts with the state created by the State’s civil law code if you allow it. When you do, you are essentially saying that you waive the conflict created by the assertion of state authority against your fundamental rights and you accept the State’s authority to deprive you of rights by the terms of the statute. If your attorney goes along with this illusion, you will have effectively waived your rights and permitted the state to do as it pleases with your child against your objections.
Two Reasons Why
There are two reasons why your judge will attempt at all costs to ignore these justiciable conflicts. The first is that your judge has already agreed, before your suit was even filed, to act as the state’s agent in pursuing the state’s policy interests against the interests of every litigant in every child custody case between fit parents. This means that the justiciable conflict between you and the state is also a justiciable conflict between you and your judge which disqualifies your judge under the requirement that the court remain neutral, impartial, and independent. The judge cannot be a judge in a case where he has standing to be a litigant. If your judge asserts broad discretion to violate your fundamental rights in pursuit of his or her viewpoint of your child’s best interests, your judge has standing. The proof of this is in your state’s Code of Judicial Conduct. Most address these issues in multiple places.
This is one of the core reasons why it is absolutely and unquestionably unconstitutional for judges to regulate state domestic relations policy interests. If your judge claims he or she does NOT regulate domestic relations policy related to child custody suits between fit parents, then ask your judge who the state’s accountable executive agency or executive official is because you want to sue them for civil rights violations. If the judge cannot identify an official, then the state cannot demonstrate its jurisdiction to deprive you of any fundamental rights under its civil law at all. This is a catch-22 for the state. If the legislature has failed to delegate, to an executive official, authority to appear in court and assert the state’s interests under the policy, then best interest is the only justification that can be asserted and it fails because it is NOT compelling.
Another reason your child custody court ignores these conflicts created by the state’s civil code is that your judge benefits in multiple ways, including financially, from failing to recognize and adjudicate those conflicts. If your judge were to recognize these conflicts, your judge would be forced to recuse. Every state judge would be forced to recuse unless one of them were to hold the State’s civil law scheme to be unconstitutional. Then the judge could resolve the issues through equity so long as he or she fully complied with all controlling federal law.
The reason for this is very straight forward and most people already have a fair grasp of how this works. Under common law and equity, courts have dealt with conflicts between individuals without the state taking an active part. While some issues such as property rights may have been defined under the civil law, the state did NOT take a position of adversity against either or both parties. The State simply set the rules that the Court applied, hopefully fairly. Your judge may claim this to be the same in child custody courts, but the facts just don’t support that assertion. Under equity, judges don’t claim authority to violate fundamental rights through means that cannot survive constitutional review. The state and federal constitutions absolutely limit your judge’s equitable powers.
How is child custody similar to property law?
Property law is a classic and appropriate example of how judges typically apply civil law, because children and women were once considered by the law to be a specific type of property and their rights were often managed by the courts through property law. Child custody statutes, if they existed, were typically found in the property codes. This means that our founding fathers expected their parental rights to be protected through the Fourth and Fourteenth Amendments because that was the legal expectation when those amendments were written. The Supreme Court has since held that parental rights are protected by the First Amendment as speech and association rights.
When two private individuals have a property dispute, one or both files suit against the other and a court applies the neutral property laws to determine which rights each party has to the property in question. At NO point does the State ever seize the property, or claim to have custody of the property, nor does the State presume power to “grant” property rights to the party found to have those rights. In this way, property disputes under the civil law are addressed very differently from child custody disputes under the civil law.
When one parent files a custody suit against the other parent, the states perform a magical sleight of hand that is unquestionably fraudulent. Unlike in a property dispute, the moment a parent files a child custody suit against the other parent, the state, interestingly enough, recognizes that each parent has full and equal constitutionally protected custody rights over the child. These rights are a protection of the individual against state action to infringe the rights. However, rather than adjudicate the rights of the parents fairly in compliance with constitutional law, the court uses the existence of the full and equal rights as a means of illegally seizing custody of the child for the State. Just filing a child custody suit deprives you of your fundamental rights requiring the state to prove absolutely noting before seizing custody of your child from you.
I didn’t realize that this was the thinking until we helped in a Massachusetts appeal where an appellate court made exactly this holding by saying that each parent has full and equal rights and therefore the rights cancel out and the state can do whatever it pleases. It sounded all legal and logical the way that judge articulated it, but this absurd statement quickly falls apart under closer examination.
A constitutional right protects the individual from state action in an individualized fashion. If one person has a fundamental right, that person is protected against state action taken to infringe that right. If another person has that same right, that person is also protected against state action to infringe that right. Now imagine if two people have full and equal right to a piece of land as a property right. Do their individual property rights as protected by the Fourth Amendment still protect each of them from government infringement of the right? The answer is yes, absolutely. Can the state presume away the property rights simply because two people hold those rights? NO!
The slight of hand here, is that the court treated the parental rights as if the rights were protection against individual personal actions but the Fourteenth Amendment does NOT protect anyone against private actions, only from “state” actions. The rights of the parents cannot cancel out because they do NOT and can NOT clash in that way. The civil and criminal law applied by the amendment’s terms, NOT the Fourteenth Amendment itself, are the appropriate mechanisms to protect private individuals from other private individuals violating their rights. There is nobody tricker at manipulating the perception of law to support their own personal self-interests than judges.
In a situation such as this, the state cannot claim the property for itself and then “grant” the property back to whichever of the two property owners a court feels will do what is best for the land. The state is required to apply a constitutional balancing test conducted under strict federal due process rules to determine first if both claims of right are valid, and if both are valid, apply those rules to balance the rights through application of the least restrictive means available to the court. The court may limit how the land may be used if a use by one landowner would violate the rights of the other. The court may divide the land between the two. the court may order the property sold. The court will certainly hold that when the property is sold, each owner will get a percentage of the profits in proportion to their ownership percentage, with the split being 50/50 if each has full ownership.
Children are significantly different from property as they cannot be sold or subdivided. However, the rights of each parent can and must be balanced through exactly the same type of federally approved balancing tests, the Mathews Test in this case. Where each parent has full and equal parental rights claims to the child, the court cannot take custody from either parent and “grant” the custody rights to one of them.
Just like with the property, the State has NO legitimate authority to seize the child from either fit parent and thus NO source of authority to “grant” custody of the child back to the parent the judge likes. This is the magical sleight of hand that nobody sees and that nobody is challenging properly.
To grant a thing, the grantor must be in possession of the thing. This applies to child custody rights and all other forms of parental rights. These rights of natural parents come from biological parentage and gain federal constitutional protection the moment a natural parent establishes a parental relationship with the child and takes on parental duties for the child.
At NO point in this process does the State ever have rights over the child nor is the State ever in possession of these natural rights such that the State has any claim of authority to “grant” these rights to a natural parent. This is true even when paternity is contested and proven in court. No state claim of parens patriae authority can overcome this because parens patriae authority is authority of last resort applying only when no fit parent is available or when the state is credibly challenging a parent’s fitness in a competent fitness court.
NO! The child custody court is NOT a competent fitness court and cannot make legitimate findings of fitness or unfitness. The constitution requires that child custody courts presume both parents to be fit and to be making choices that are best for their child. There is NO divorce exception to this rule. Nor can the judge of your custody court act as the state’s prosecutor to accuse you and prosecute you for unfitness. To start with the judge would have to commit the charges to writing and personally serve you with the charges for them before he could legitimately claim jurisdiction over a fitness finding.
The state can never grant natural rights
One of the many fundamental legal errors in family law is the idea that the State ever has, or can ever have, authority to “grant” rights to a natural parent. “Granting” natural rights is simply a legal impossibility. The State can recognize natural rights. The State can protect natural rights. The State can infringe natural rights, but the State can never “grant” natural rights. For instance, in adoptions, the state does NOT “grant” natural rights. The technical path is that the state grants parental rights to the adoptive parents where there are no willing fit parents, and then statutes define that those adoptive parental rights will be protected to the same degree as natural parental rights but they never actually become natural rights. Regardless of how strongly they are protected, the rights are always a state grant of right.
Because so many parents want to battle over parental rights, states are able to maintain their fraud as an open secret. If you ask your court for full custody over your child against another fit parent, you are perpetuating, seeking to benefit from, and protecting the fraud. You should only be asking that your full and equal parental rights be protected to strict scrutiny standards. This standard will result in 50/50 rights and custody because that is the least restrictive option available to the court.
What is the proper course of action in a child custody suit?
The proper course of action is to establish as a fact before the court that you are the natural biological parent, that you have established a parent-child relationship, and that you have taken on parental duties for the child. Consequently, your natural parental rights are vested with federal constitutional protections for you as an individual against any state action, including judicial action, against your federally protected natural rights. The State has NO source of lawful authority to “grant” these rights to you because these rights are yours individually, are fully vested in you as an individual, and are federally protected.
What should I be asking the court in a child custody suit?
Because you are a full and equal natural parent, you should be asking the court to protect your rights fully and equally to your child and protect your child’s rights to you under a balancing of rights whereby the full and equal rights of each parent are fully protected and the child’s full and equal rights to each parent are protected. It is the reality of your desire to exercise your rights separately from the other parent and the other parent’s desire to do the same that creates the necessity of balancing when each parent may exercise their rights independent from the other parent, but in a manner that does NOT subject the other parent to substantial loss of rights. The actions of the parents, not the state, causes the division of time and access. The state merely applies the civil or equitable law appropriately under the Fourteenth Amendment to protect each parent’s rights from being infringed by the other parent.
Here, an example of substantial loss would be one parent authorizing a risky elective surgery where the child may die, resulting in a loss of parental rights for the parent NOT making the choice. Courts can legitimately and constitutionally impose limits on the unilateral choices of fit parents if doing so protects the rights of the other parent and is the least restrictive option.
Rather than the Court claiming authority to “grant” rights to one or both parents, the Court would be protecting rights by establishing an equitable scheme under which each parent has opportunity to equally exercise their rights. This is the purpose and role of the courts, and this is fully consistent with the state court’s federal duties. There is no doubt that your state court could do this right now today. That court may need to first declare the state’s family code to be unconstitutional, to remove civil law preemption of his or her equitable and common law authority, but state family codes are all so blatantly unconstitutional in so many ways that this is easily done. Pick a parental right, any right, and I will show you how your family code blatantly violates it.
The Proper Burden of Proof
The path to declaring the family code unconstitutional is for the court to first recognize the legal conflict created by the family code and recognize the fundamental nature of the close family rights at issue. Because the family code seeks to regulate core fundamental rights, recognizing the conflict also causes the court to assert the proper burden of proof beginning with the mandatory presumption that the family code is unconstitutional where it seeks to regulate fundamental rights.
In this case the burden of proof holds that the State must appear before the court, prove its jurisdiction to assert its interests regarding the child in this civil dispute, then demonstrate through evidence placed into the record through testimony subjected to confrontation and cross-examination that the State’s family code contains sufficient constitutional guarantees to overcome the presumption against its constitutionality. One of the reasons your judge cannot legally act as the state’s best interest agent is that the judge cannot testify in his or her own court and thus cannot possibly demonstrate that the burden of proof has been met. The rules under equity are a bit different, but under equity, the court has a means of ensuring that the required proof is demonstrated in the record. The level of constitutional protection provided through checks and balances is less under equitable law than under the civil law but the standards of constitutional review are the same.
The outcome of this path under current civil law best interest policies is undeniably that the State cannot demonstrate sufficient proof that its interests in pursuing its own viewpoint of your child’s best interests provides the state with any authority whatsoever to violate core fundamental rights. The reason is simple. Legitimate limitation of core fundamental rights, through application of the civil law, requires the state to demonstrate a compelling state interest and narrowly tailored authority to infringe fundamental rights in pursuit of that compelling state interest. The State cannot possibly prove this because best interest isn’t compelling, and the judge cannot testify.
The United States Supreme Court has ruled, in a child custody modification appeal between divorced parents, that the State’s interest in pursuing its opinion of the child’s best interests is at best merely “substantial” and therefore insufficient to overcome the compelling state interests test. Consequently, best interests can NEVER be applied as justification to overcome regulation of a core fundamental right or to impose prior limitations on parent-child speech or association, all of which require a compelling state justification of narrowly tailored state authority, applied using least restrictive means.
An even easier proof is the fact that your child custody court claims “broad authority” to violate your fundamental rights. The Supreme Court has held, too many times to easily count, that fundamental rights may NOT be violated by application of “broad” authority. Fundamental rights are always protected by some degree of enhanced scrutiny. There is NOT a single established enhanced scrutiny test that permits the use of broad authority to violate any fundamental right.
Best interest of the child is an openly accepted fraud
This last one is why best interest is such an openly accepted fraud. There is NO justification for any bar certified attorney to ever believe that a fundamental right may be violated through application of “broad” authority. Every last one of them has a professional duty to know better. Yet in family law, they all quietly go along with the court’s claim of “broad discretion” to violate the fundamental rights of parents and their children because it is in their personal, professional, and financial best interests to do so. That is until a parent comes along who is willing to sue their attorney for violation of their fiduciary duty to protect the parent’s fundamental rights against such a blatant violation. The system will self-correct rapidly when attorneys realize they can be sued for damages for not making the simple claim that the child custody judge cannot violate fundamental rights through use of broad discretion.
The only way the legislature, the courts, and the attorneys can maintain this fraudulent fiction is if they all openly agree to refuse to acknowledge the clear and unmistakable legal conflicts created by the state’s best interests of the child policies, and by its family code, against the constitutional interests of both parents and child. If they simply refuse to recognize the conflict, and you don’t insist that the controversy be recognized, then they don’t have to answer the hard constitutional and professional questions and they don’t have to give up the money.
Imagine having spent twenty or thirty years failing to perform your fiduciary duty as an attorney, to protect the rights of your clients, and some parent tells you that best interest creates a legal conflict for them with their clients. If the attorney accepts the conflict and applies the law, he or she quickly realizes that they may finally have to face the music for committing fiduciary fraud for all those years. Then, of course, they would need to find a new way to earn a living, because where the constitution is followed in family law, only a tiny few attorneys will ever be required.
Now imagine you are a judge having spent ten or more years on the bench depriving fit parents and children of their fundamental rights. Recognizing the conflict forces you to face the fact that what you have done for so long is truly evil and illegal. Recognizing the conflict would change public perception from seeing judges as the great protectors of children to seeing judges as the perpetrators of a great institutional evil on the level of historical racial and gender discrimination.
Make no mistake, competent judges already understand the evil they have been committing for so long, and they know that openly facing that evil means facing public disgrace. Not only that, but child custody suits are a significant proportion of the suits that courts hear. If most future child custody suits result in 50/50 custody without a fight and altering that outcome would require a parent to overcome strict scrutiny protections for the other parent’s and the child’s rights to each other, most states would quickly find that they have far more judges than they actually need. Then many judges and many courts would be chopped in the cost cutting spree that would follow.
Best Interest undeniably creates a legal conflict between the state and your parental rights. You need to demand that your attorney and the judge recognize this conflict and adjudicate this conflict properly in full compliance with federal law. This won’t be easy to do because your attorney and your judge have a financial interest in preventing you from receiving an adjudication of this conflict. But if you argue for it in the right way, and don’t give in, they will have a very hard time denying you.
Your secret weapon is a tool called advisory opinions. Judges are prohibited from issuing advisory opinions and any final opinion that fails to resolve the conflict is an advisory opinion that cannot bind the parties to the suit. This means that every existing parenting plan is illegal and unenforceable.
The secret to unraveling the entire family law system
Forcing your attorney and the court to recognize and adjudicate this controversy is the string, that when pulled, will cause the entire corrupt system to unravel.
One of the first things you will realize is that your court isn’t competent to adjudicate this conflict because your court has already accepted the legislature’s best interests of the child command to assert the state’s viewpoint of the child’s interests against your constitutional interests. Your judge has already picked sides against you, against the other parent, and against your child. The state will win in your case, without even having to appear as a party, because your judge is the state’s agent willingly doing the state’s bidding against your interests. This result is foreordained by your judge’s open conspiracy with your state’s legislature. This makes your court both biased and dependent on the state’s policy interests in violation of your fundamental due process and equal protection rights.
Commit this idea to your long-term memory and use it in you case. The equal protection challenge is NOT that your rights are treated differently from the rights of married parents. The challenge is that the rules being used to justify depriving you of your fundamental rights in this civil suit are substantially different from the rules applying to all other civil litigants in all other types of civil actions. If the child-custody civil court classifies you as less deserving of the same constitutional protections as other civil litigants generally receive, then your court must justify that classification by the rules of equal protection under strict scrutiny.
The entire scam is held up by lies stacked on top of lies by judges who are not competent to be judges because they have already decided to be biased in favor of the state government against you as a parent and against your child. The lies continue because NOT a single child custody judge, or state appellate court, ever properly applies the rules of constitutional review to their actions and NO attorney ever holds them accountable for their unconstitutional actions in this legal conflict. The result of all this is that you are denied your fundamental right of access to a competent state court in which to challenge the state’s actions taken against your rights. Competent in this sense, means that the court complies with the constitutional mandate to remain neutral, impartial, and independent.
The entire system is an open conspiracy to commit fraud. Every single player in the system, except for the few parents who simply ask that their rights be protected, and of course the children who don’t know what is going on, is an active conspirator in this system either through professional incompetence or willful intent. One cannot be a competent attorney and not know that broad discretion can never support violations of fundamental rights. If one is a competent attorney, one must know this simple basic legal fact, and must be accountable for not arguing this fact for parents who simply seek protection of their rights.
All you have to do is give the sting a strong consistent pull and this system will unravel at your feet.
Copyright Constitutional Scholars Inc. November 17, 2022. All Rights Reserved.
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