TOOL OF THE DAY: State Action Doctrine

CATEGORY: Family Law Doctrines

What is the State Action Doctrine and how does it play a role in how the state courts handle child custody disputes? This doctrine is one that protects the states from the federal government setting laws for the states. It gives the state exceptions to the federal constitution. Remember when the constitution was written, most of it did not apply to the states. It wasn’t until the 14th amendment was passed that more of it began to apply.

There is a lot of behavior that still lingers in the states when it comes to family law that comes from this state action doctrine thinking. 

You might hear a lot of people talk about common law. They say that the constitution of the United States doesn’t apply to courts that apply common law. Family courts they say are common law courts and therefore they can violate your rights.

Further, you might see that the federal courts have not done much to stop the violation of rights. Federal politicians might explain this as a “zone of state sovereignty.” And that “Structuring the legal relationship of private citizens was for the state, not for the national government.”

Much of this was because at the time of the writing of the Constitution as mentioned above, “it was thought that the common law completely safeguarded personal iberties from private infringements. Individuals were protected from state government infringements by state constitutions.”

This is what makes cases like Troxel such landmark cases. The federal government has started to demonstrate that state actions are limited now because of the application of more of the United States Constitution to the states because “states are not adequately protecting those rights from private interference…”

So yes, originally federalism allowed states to violate individual rights, but only because they had been restrained by the belief that this was necessary in order to preserve individual freedoms, and the belief that the state constitutions were protecting individual rights and that these protection of rights would become part of the common law.

Since states are not doing this, more federal caselaw is being created to guide the states into properly protecting individual rights.

This has been a slow process however. Perhaps the federal government needs to start appointing federal judges in some of these courts just like they have recently done in Ferguson in their local citation courts.

By understanding this, you will be able to present a better case to your judge for why your rights do apply in their court and how.


You can learn more about how to reason through your rights and protect your rights in our books and courses. Click at the top on Store and you will find the books and training tabs. The book teaches you your rights and the training courses teach you how to argue them like I demonstrated above.]

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Strategic Parental Rights Strategist, Instructor, Constitutional Scholar, and Author

Divorce Solutions and Child Custody Solutions

Co-author “Not in the Child’s Best Interest” (Book on parental rights and children’s rights)

Co-author “Protecting Parent-Child Bonds: 28th Amendment” (Book includes guide for legislators)


Twitter: (@fixfamilycourts)




Disclaimer: I am NOT an attorney or a lawyer. I do NOT practice law in any federal or State court system. Any information provided by me to you, regardless of how specific, is NOT intended to be legal advice under any state or federal law. I provide research, written strategies, and non-professional personal opinions on the Constitution and State laws as free exchange of politically important information that also serves an important public need and interest allowed under the First Amendment. You are highly encouraged to engage an attorney in your State to help you with the specifics of your legal issues and the law in your State. If you are a pro se litigant then you bear all and full responsibility for understanding the law in your state and acting under the law in your state. Nothing you receive from me is intended to be a “legal” document for purposes of any type of filing in any court. You are free to use my words for your personal non-commercial benefit, or as an aide in petitioning your government for redress of perceived wrongs, if properly cited where appropriate. YOU TAKE SOLE RESPONSIBILITY FOR ANY LEGAL ACTIONS YOU PURSUE AND THE RESULTS THAT YOU GET. I BEAR NO RESPONSIBILITY FOR YOUR RESULTS. MY OPINIONS ARE NOTHING MORE THAN MY PERSONAL NON-PROFESSIONAL OPINIONS OR BELIEFS. I MAKE NO CLAIMS OF LEGAL COMPETENCY IN THE LAW UNDER ANY GOVERNMENT STANDARD OF COMPETENCY IN THE LAW.


The information provided above is not a substitute for the advice of an attorney. You should consult an attorney regarding your rights under the law.

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*pp 528-529 Constitutional Law Fourth Edition Erwin Chemerinsky