The Palmer Systems Approach to Best Practices in Family Law

Due Process Primer

PSA Training Page - Due Process Primer

1What is Due Process?

Due process is simply the process that you are due under the law. It is a concept that varies depending on facts and circumstances. When the government establishes an entitlement to something such as a social security payment, the government can only deny you that entitlement if it provides you notice and a hearing where you can meaningfully challenge the deprivation. A social security benefits case called Mathews v. Eldridge sets this baseline of protection. There are additional protections such as the requirement of a neutral and impartial decision-maker that may or may not apply. Standards applying to the decision-maker are greater for judicial proceedings than they would be for a loss of employment hearing. Your right to call witnesses may vary. Your right to discovery varies. Your right to compel testimony varies. Your right to confrontation and cross-examination varies. The standard of evidence varies.

Divorce court judges often claim that you got notice and a hearing so you received all the process you were due. We’ve witnessed a state court judge make this statement in federal court pleadings. Don’t ever let a divorce court judge get away with telling you that garbage. Divorce court judges are absolutely biased against your federal due process rights and this kind of statement is proof.

2What are the two types of Due Process?

Federal courts recognize two different types of due process that provide two different types of guarantees called “substantive” due process and “procedural” due process.

3What is Substantive Due Process?

Substantive due process is a component of the due process guarantees of our Fifth and Fourteenth Amendments which refers to a set of rights that have protections limiting government invasion which are unrelated to the process used to limit them.

Some of the substantive rights for which our constitution provides specific protections are your right to speech, to associate, to petition the government, to worship as you choose, to keep and bear arms, to not have soldiers quartered in your home, to privacy, to be free from unreasonable searches and unreasonable seizures, the have the assistance of an attorney, to not testify against your own interests, to a jury trial, to vote, to the care, custody, and control of your own minor children, to be free from government censorship, and many more that our founding fathers didn’t write down.

Our Substantive Rights Motion is specifically designed to raise substantive arguments to ensure that you have something of constitutional significance to argue on appeal. []

4What is Procedural Due Process?

Procedural due process is a component of the due process guarantees of our Fifth and Fourteenth Amendments which refers to protections conveyed through imposing minimum requirements for the processes that the government must follow to limit any substantive right.

Some of the elements of process to which minimum protections apply include notice of government action, an opportunity to be meaningfully heard by a decision-maker, the degree of neutrality and independence of the decision-maker, the degree to which parties may compel discovery, the degree to which parties may compel testimony, standards of evidence, the degree to which you may confront your accuser, the degree to which you may cross-examine your accuser, whether the government is required to provide an attorney, and more.

4.1What process is due?

There is no per se procedural due process test, each element of procedure has its own rules, but there is a judicial duty for courts to determine “what process is due” in every case where constitutional rights are at risk of erroneous deprivation. Litigants can invoke this duty by asserting that they have constitutional rights that are at risk of erroneous deprivation in the current proceedings and moving the court to make a determination of what process is due.

Motion Declaratory Relief Procedural RightsThere is process that is due under the State’s constitution and process that is due under the federal constitution. Every state court judge has federal jurisdiction and a federal duty to determine what process the federal constitution demands independently from state statutory or constitutional law, by reference only to federal law. This is true because no State and no state legislature has any jurisdiction of any kind to set or alter minimum standards of federal due process. This jurisdiction only exists under federal law for federal officials.

State court judges have a duty to exercise the federal jurisdiction which the Supremacy Clause and their Article VI oath conveys to them and to apply federal law to make this determination of what process is due to protect each litigant’s federal rights no matter what any state statute or constitutional provision might hold to the contrary. This duty is non-discretionary and it is an appealable abuse of discretion for state court judges to fail to exercise this duty.

The only exception to this non-discretionary duty is where there is a constitutionally legitimate excuse for not exercising the duty. Child custody suits provide NO such legitimate excuse.

The degree of procedural protection due is highly dependent upon the substantive rights that are at risk of erroneous deprivation in the proceeding. For this reason, before any judge can determine what process is due, that judge must first perform a substantive rights analysis to determine what substantive rights are at risk and to determine what degree of process is necessary to protect each specific substantive right.

Our Procedural Rights Motion is specifically designed to raise this argument to ensure that you have something of constitutional significance to argue on appeal. []

4.2What is the Burden of Proof

The burden of proof is a procedural due process concept which defines which of the parties has the burden of proving some element of the case. This burden may apply differently for different parts of due process or equal protection but used here, it primarily refers to the burden of proof in demonstrating compliance with or lack of compliance with substantive constitutional guarantees.

In this sense, which party carries the burden of proof differs depending upon the importance of the right being limited.

For every day rights where the government has a recognized authority to act, the burden of proof falls on the person challenging the government’s actions to prove that those actions violate the constitution in some way. When fundamental rights such as parental rights and close family association rights are being limited, this burden shifts to the government.

When fundamental rights are at issue, the government’s actions against those interests are presumptively unconstitutional and the government can only establish constitutional jurisdiction to limit the rights if the government demonstrates that its authority and actions are constitutional in compliance with the applicable standard of constitutional review. This is the distinguishing factor for the burden of proof. Where the state authority and action can be presumed to be constitutional, the government is free from restraint to act unless a party proves otherwise. However, where fundamental rights are at issue the Fourteenth Amendment deprives the government of authority as the default condition. It is only through individualized case and fact specific demonstration that the government may gain authority to act.

This burden is NOT a burden on the litigants but a burden on state action taken by a state actor as mandated by the Fourteenth Amendment. The Fourteenth Amendment limits the actions of the States as taken by their state officials which includes legislative officials, executive officials, and judicial officials. It does NOT limit the actions of individuals, except under certain specific circumstances. This is the reason that the burden of proof applies to government officials and not individuals where the State may not presume its authority to act.

When the action is purely an equitable action taken by a court, it is the fact finding court’s duty to ensure that the record reflects all that is required to demonstrate that the court has overcome all substantive and procedural guarantees. The court cannot testify, be confronted, or be cross-examined but it nevertheless must ensure that the parties have provided sufficient evidence to satisfy the constitutional review tests. The court may require the parties to produce the evidence, but it is the court that is limited by the Fourteenth Amendment, not the parties.

Where the State’s interests must be uniquely asserted, the court, acting under equitable powers, can make the required assertions. When exercising equitable authority, the strictures of neutrality, impartiality, and independence are NOT quite as strictly applied as under the civil or criminal law.

When the action is taken under civil law authorization, such as the State’s family code, the burden falls to the State, and the court cannot meet the burden for the state nor can the court waive the State’s burden. The burden of proof must be overcome through the introduction of testimony and evidence into the record under confrontation and cross-examination. This requires that the State establish standing to be a party to the suit if it wants its interests to be asserted and that a government official appears to testify as to the State’s interests in a forum where those interests can be challenged by the parties.

Where the State’s interests must be uniquely asserted, the court, acting under the civil law, is barred from making the required assertions. Those assertions must be made by an executive official who has been delegated regulatory and enforcement authority for the relevant state policy or statute. It is only this official or his direct executive superiors who may assert the States interests on these issues in any unique manner. Others can, of course, repeat what these officials have previously asserted, but they cannot create new assertions on the Government’s behalf.

Only a properly authorized government official may assert a novel government interest for any claimed authority or speak definitively upon the precision under which the authority is established or the precision under which the state’s actions are limited. The litigants are entitled to challenge the government’s asserted authority, its justifications for that authority, and the actions proposed or taken. The litigants are entitled to the right of confrontation and the right of cross-examination against the government.

4.3Fundamental Burden of Proof Issues in Family Law

Before the 1970’s the presumption of law was that parents and children had rights to their child only through a marriage between the child’s parents with the sexes receiving differing treatment under these bastardy codes. Because of this presumption, the law held that parents did not have rights when unmarried to each other and lost those rights by default when divorcing. That legal presumption was held to be unconstitutional.

Through a series of cases in the early to mid-1970’s, the Supreme Court resoundingly overturned nearly every single aspect of those bastardy codes holding that parental rights and rights of a child to their parents are “individual” rights that have no relationship to the marriage or lack of marriage between the child’s parents. Further, the Court held that children could NOT legitimately be punished for the perceived sins of their parents, particularly sins related to marriage, divorce, or adultery.

The problem for divorce and child custody courts is that they have continued to operate under the bastardy code presumptions that are undeniably unconstitutional presumptions. Because parents do NOT lose “individual” rights to their child when they choose not to marry or chose to divorce, the State has no legitimate means to “grant” parental rights post-divorce. The power of States to grant custody to natural parents ceased to exist the moment the Supreme Court held those rights to be Individual rights. No divorce court judge can grant you a right that is already vested in you as an inalienable right.

The moment your judge asserts authority to “grant” parental rights to you, your judge establishes a justiciable conflict of federal constitutional fundamental right between you and them. This act by your judge is a repudiation of the judge’s neutrality, impartiality, and independence from the State’s policy interests.

This asserted authority to grant to you or to someone else fundamental rights that you already possess is and must be presumed to be unconstitutional until such time as the proper government official appears and overcomes the constitutional presumption of unconstitutionality. Your judges attempt to exercise unconstitutional state action against you disqualifies him or her as a judge.

5What are Fundamental Rights?

Motion Declaratory Relief Substantive RightsFundamental rights are a category of substantive rights that are distinguished from the larger class of substantive rights by the provision that the government is forbidden from infringing them, even under its enumerated powers, unless the government first proves its authority to do so against an “enhanced” standard of constitutional review. The key distinction is that the burden of proof, that is normally on the person challenging the government to prove that the government violated their rights, shifts to the government requiring the government to prove each element of the constitutional review test.

Our Substantive Rights Motion is specifically designed to raise substantive arguments to ensure that you have something of constitutional significance to argue on appeal. []

6Standards of Constitutional Review

Additionally, the constitutional review tests that must be applied under enhanced scrutiny are more difficult to overcome than the general rational basis tests. There are three different tests that the government must demonstrate they can overcome at any degree of enhanced scrutiny. Each test has three different levels based upon the importance of the substantive right at issue. The lowest level of review is called rational basis. The highest level of review is called strict scrutiny. There is an intermediate level of review that has numerous different tests within a range between rational basis and strict scrutiny.

6.1Burden of Proof / Enhanced Scrutiny

Both intermediate scrutiny and strict scrutiny together are referred to as enhanced scrutiny. This standard of scrutiny is primarily identified by the shifting of the burden of proof away from the individual and onto the State. Under enhanced scrutiny the government must demonstrate that it can pass each of the below tests to the degree determined by the nature of the right at issue and whether the State is limiting the core interests the right protects or whether the State is limiting a less than core interest protected by the right.

Enhanced scrutiny is the source of the biggest failure of the child custody courts in family law. Child custody courts presume their authority and do not require the State to demonstrate that its best interests of the child public policy and family code statutes based upon that policy can survive any degree of enhanced scrutiny. This is structural constitutional error and an abuse of discretion by the judge that makes every single child custody court order in this country void ab initio.

The reason child custody courts so strongly resist properly applying enhanced scrutiny review is that the only way the State can meet its burden of proof is by hiring state officials to appear in each and every child custody suit and enter evidence in the record through their testimony under confrontation and cross-examination to prove that the State may violate the parental rights and the rights of the child.

Applying enhanced scrutiny properly will dramatically increase the cost to the state of regulating domestic relations. Instead of child custody suits being a profit center for the state, they become a cost to the state.

More drastically, the State’s ability to run roughshod over your rights will be taken away from it and it will have to justify itself in every single case.

6.2Governmental Interest Test

The rational basis standard holds that the governmental interest asserted must merely be a “legitimate” governmental interest, while the enhanced review standards require the interests additionally be “substantial” at the intermediate standard or “compelling” at the compelling standard, both of which are enhanced standards.

Some intermediate review standards may require a compelling interest in the compelling interests test but a lesser proof on the other two tests.

6.3Tailoring Test

The rational basis standard holds that the government’s asserted authority must be rationally related to the legitimate interest asserted while the enhanced review standards demand tighter alignment between the authority asserted and the interests asserted up to the tightest alignment titled narrow tailoring, also referred to as being precisely drawn or drawn with precision. The first two tests, the governmental interest test and the tailoring test, are often discussed as a single two stage test but they are better understood individually before attempting to combine them.

This is because the last test works in the same way but instead of measuring asserted authority against the asserted justification, the test measures the actions to be taken against the asserted justification.

6.4Ends Means Test

The rational basis standard holds that so long as the means used by the government are not arbitrary or capricious, under a legal definition of the terms that is generous to the government, that the government’s actions are constitutional. Under enhanced scrutiny, the means the government applies must be more limited by degrees up to the least restrictive means test which holds that if a less restrictive means is available the government must use that less restrictive means. The term “less restrictive” means the degree that the means limit other protected rights beyond the targeted rights or goes too far in limiting the targeted rights.

Of vital importance to child custody issues is the fact that the least restrictive means test is your constitutional path to equal care, custody, control, and association interests. Your 50/50 parental rights are directly protected by the least restrictive means test. If your goal is 50/50 parental rights, you need to understand the least restrictive means test.

Please do NOT argue that you are entitled to 50/50 rights through the equal protection clause because that is NOT a legitimate claim under existing equal protection law. Least Restrictive Means is your path to 50/50 rights.

7Can state law such as the family code establish the required due process?

State legislatures can provide state due process protections that exceed the federal minimum requirements of due process but state legislatures have zero jurisdiction to establish federal due process standards. This means that your State’s family code does NOT and can NOT define the degree of federal due process you are entitled to. If the opposing counsel or the judge say otherwise, they are emphatically wrong. Your judge commits an abuse of discretion when he or she cites state law as a source of federal due process and you should object to their contrary assertion as an abuse of discretion and a jurisdictional error.

The only caveat to this is that when a state legislature establishes a standard in excess of the federal requirements, this enhanced standard becomes mandatory under federal due process law and can only be limited by adherence to federal due process rules or by a later act of the state’s legislature. When a legislature exercises its proper jurisdiction, that is an exercise of due process which means that what the legislature grants through a regular legislative act, it can later take away going forward through a regular legislative act, but they cannot go back in time. Other than that action, state executive officers and state courts must comply with regular due process rules.

If your judge claims that you received all the due process to which you are entitled because the judge complied with the terms of the state statute, you should object and argue that the judge is abusing his or her discretion by failing to determine what process is due under federal law and by failing to provide adequate federal due process protections.

8What can you do to protect your due process rights in family law?

Sadly, you cannot depend on your attorney to fight for your due process rights nor can you depend on the judge to properly perform his or her federal due process duties. Both the attorneys and the judges are willing participants in the unconscionable scheme to punish our children and their parents simply because those parents make perfectly lawful and constitutionally protected choices which the state disfavors. There are so many things that your attorney would object to in a different type of civil suit that they simply won’t do in family law because they are deeply biased and deluded in believing that outdated Eighteenth Century values still control family law.

It could also be the easy money that attorneys make in family law whether they win or lose. My bet is on the money in most cases.

If you want your rights protected, you will have to learn what those rights are and insist that your attorney do theirs properly. Sometimes, parents can’t find attorneys willing to perform their jobs properly and are forced to take matters into their own hands believing that they have a better chance of having their rights respected by acting as their own attorneys.

This choice is yours to make. We will help you protect your rights either way. We regularly work with the few good attorneys out there and help them protect their client’s rights and we also work with pro se litigants. We strive to provide as much low cost self-help as we can but we also provide more full service options for those who need more help and have the means.

While we would love to be able to provide the fullest service to everyone, the reality is that fighting this corrupt system can be expensive. It is those people who can afford to fund the fight who will be the ones who change this for everyone. Our goal is to change the system so dramatically that you will NOT have to fight anymore and your children won’t ever have to face a corrupt family court when they have children.

Become a member button Membership If you want to protect yourself, get a membership so you can have access to the more detailed tools and knowledge that we offer. You can read our books and some of our motions online in the members site.

If you simply want to support our mission of dramatically changing this corrupt system for the better, get a membership.

If you want to hire us to work one-on-one with you and your attorney, first get a membership so that you can inform yourself as much as possible and better help us to help you.

When you become a member, you and we are in a constitutionally protected association organized under the political goal to change family law in your state and across the entire country, and our sharing of legal advice with you becomes even more protected because of this political association. It establishes that we share more than just a business transactional arm’s length association and that more significant association receives more significant protections. As a political association, it receives some of the highest protections.

This is NOT any kind of political party or political ideology association other than applying concepts of fundamental freedoms in family law courts. We are NOT Republican or Democrat. We are NOT conservative or liberal. This membership is tightly focused on protecting individual close family associational freedoms against the States’ assert interests in regulating these protected associations.

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9 The Fix Family Courts Motions Package Deal

We also have a Motions Package option where you get all the motions listed in this training and more for one low price. []

Motion Package Deal

9.1The Motions Package Contains:

      1. Pre-Trial Conference Sample Motion
      2. Procedural Rights Declaratory Relief Sample Motion
      3. Substantive Rights Declaratory Relief Sample Motion
      4. Equal Protection Declaratory Relief Sample Motion
      5. Pre-Trial Framing Sample Motion
      6. Petition Insert
      7. The Equal Protection Treatise
      8. Example Responses and Objections


10Personalized Consulting Assistance

If you want to protect yourself and your child from a child custody judge and a child custody system that are intent on violating your right to live with your child as a family unit exercising direct care, custody, and control over your minor child as is your God given and Natural Right, then you will want to schedule a consultation with us so that we can help you apply these concepts in your case.

Our goal is always to help you as a fit parent to protect your child from a corrupt system set on irreparably injuring your child by depriving your child of their First Amendment protected fundamental right to share an intimate and expressive close family parent child association with you, their own fit parent, free from unwarranted State interference in your private family life.

Divorce cannot authorize the State to take your parental rights. Choosing NOT to marry your child’s other parent cannot authorize the State to take your parental rights. The State may NOT punish your child with loss of fundamental rights simply because the State doesn’t like the lawful and constitutionally protected marital choices you have made. Every single child custody order where a judge “grants” custody rights to a fit natural parent is a constitutionally void order because neither your judge nor your State has any legitimate authority to grant to you that which you already have.

Contact us Now to schedule the help that you need to protect your child from the government. 

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Beyond our standardized products and services we offer a host of customized services to meet your unique needs. While we cannot act as your attorney, we can speak and write freely regarding our understanding of the law and how it applies to you in the context of your case because those are core rights protected by the First Amendment.

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