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We have comprehensive federal research and significant state research. We have well-developed and fully cited argument that will help you hit the ground running in defending your client’s constitutional rights in your family law case. You know there are significant problems in family law, we expose the root cause of these problems and provide solutions you can use in court this afternoon.
If you aren’t using these arguments, or at least discussing these arguments with your client, you are NOT performing your due diligence in protecting your client’s rights.
Do State Courts have Federal Jurisdiction?
We have two legal systems in this country one federal system and 50 different state systems. Judges have jurisdiction, in appropriate cases, to adjudicate under any of these systems. Issues from other states may sometimes be adjudicated in a foreign state under the rules of the Full Faith and Credit clause of the federal constitution. Issues of federal law can be adjudicated by state court judges under jurisdiction conveyed by the Supremacy Clause. Federal judges, under supplemental jurisdiction, can adjudicate state legal questions in cases where the state question is relevant to resolving an issue before the court that falls directly in the federal court’s jurisdiction.
What is relevant in family law is that the question of whether your judge is adequately protecting your federal rights in your child custody suit is a federal question that can only be adjudicated under federal substantive law. Your judge is required to adjudicate any properly raised federal questions under their federal jurisdiction by reference to federal law alone, NOT your State’s family code.
Is the Exercise of Federal Jurisdiction by state court judges discretionary?
The Supreme Court tells us that when a court has federal jurisdiction that court must exercise the jurisdiction unless there is an established and constitutionally legitimate justification to not exercise that discretion. This federal jurisdiction compels the state court judge to protect the federal rights of the litigants in their court, you are the litigant and it is your federal rights that your state judge must protect. The State says your judge must ignore your federal rights and provide judicial relief to a third-party non-litigant child. If the judge follows the State’s command, the judge violates the federal rights of the parents and the federal rights of the child. If your judge acts in the government’s viewpoint of your child’s best interest instead of protecting your federal rights, your judge violates his or her duty under federal law. The only question then is whether your judge commits an abuse of discretion when he or she violates your federal rights on the state legislature’s request.
The United States Supreme Court has definitively answered this question many times over:
1. Robb v. Connolly, 111 US 624, 637 (Supreme Court 1884), (Upon the State courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the Constitution of the United States and the laws made in pursuance thereof, whenever those rights are involved in any suit or proceeding before them; for the judges of the State courts are required to take an oath to support that Constitution, and they are bound by it, and the laws of the United States made in pursuance thereof, and all treaties made under their authority, as the supreme law of the land, “anything in the Constitution or laws of any State to the contrary notwithstanding.”)
2. Howlett v. Rose, 496 US 356, 369-371 (Supreme Court 1990), (corollaries follow from the proposition that “federal” law is part of the “Law of the Land” in the State: 1. A state court may not deny a federal right, when the parties and controversy are properly before it, in the absence of “valid excuse.” … “The existence of the jurisdiction creates an implication of duty to exercise it.” … 2. An excuse that is inconsistent with or violates federal law is not a valid excuse: The Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source.)
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What is the One Law Doctrine
The One Law Doctrine is a doctrine holding that each state has only one code of laws and that code of laws includes federal law and the federal constitution which define the outer boundaries of state legislative power.
Your judge cannot claim to operate under state law but not operate under federal limitations on that state law. There is no state statute or state constitutional provision of any kind that can exist outside the boundaries of federal law. Where federal law or the federal constitution impose a limitation on government power, that limitation applies to state laws just as if that limitation were written directly into the state statute. We call this the One Law Doctrine.
When your judge attempts to avoid your federal law challenges to his or her authority by referencing state statutes as if federal limitations do not apply to them, your judge commits an abuse of discretion.
1. Howlett v. Rose, 496 US 356, 367 (Supreme Court 1990), (Federal law is enforceable in state courts … because the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislature. The Supremacy Clause makes those laws the supreme Law of the Land, and charges state courts with a coordinate responsibility to enforce that law according to their regular modes of procedure. The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. . . . The two together form one system of jurisprudence, which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent.)
2. Howlett v. Rose, 496 US 356, 374 (Supreme Court 1990), (The policy of the federal Act was to be considered the prevailing policy in every state which the state court could not refuse to enforce because of conceptions of impolicy or want of wisdom on the part of Congress in having called into play its lawful powers.)
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Why is state court federal jurisdiction important in family law?
Your state child custody judge and court have federal jurisdiction. If you raise a federal question your state court must address that federal question unless it can produce justification in the record* to avoid exercising it. This federal jurisdiction imposes a non-discretionary duty on your state judge to protect your federal rights. The justification for not exercising the federal jurisdiction cannot be that exercising federal jurisdiction will void state powers granted to the state court judge by the State’s legislature, because that would be both an impermissible arbitrary exercise of discretion and an act of judicial bias against federal law.
When your judge rejects the supremacy of federal law over your State’s family code, your judge commits an abuse of discretion.
1. Howlett v. Rose, 496 US 356, 369-371 (Supreme Court 1990), (corollaries follow from the proposition that “federal” law is part of the “Law of the Land” in the State: 1. A state court may not deny a federal right, when the parties and controversy are properly before it, in the absence of “valid excuse.” … “The existence of the jurisdiction creates an implication of duty to exercise it.” … 2. An excuse that is inconsistent with or violates federal law is not a valid excuse: The Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source.)
2. Howlett v. Rose, 496 US 356, 372, 373 (Supreme Court 1990), (These principles are fundamental to a system of federalism in which the state courts share responsibility for the application and enforcement of federal law… The existence of the jurisdiction created an implication of duty to exercise it)
3. Howlett v. Rose, 496 US 356, 373 (Supreme Court 1990), (the refusal to hear the FELA action constituted discrimination against rights arising under federal laws, … in violation of the Supremacy Clause.)
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What does this mean to you in your child custody case?
This means that the federal questions you raise regarding your fundamental rights in your child custody proceeding must be resolved by your court. Anything less than full application of its federal jurisdiction to resolve the federal questions is an arbitrary exercise of discretion and consequently an abuse of discretion. This abuse of discretion is grounds for you to overturn your trial court’s best interest of the child determination and limitation on your federal rights. If you want to protect your federal rights you need to properly object to your trial court’s abuse of discretion. We can help you accomplish this:
Objection: Objection your Honor, this court has federal jurisdiction and consequently a non-discretionary duty to exercise that discretion in full compliance with federal law and without reference to any state statute or policy of any kind. If this court fails to fully exercise this discretion, the court abuses its discretion by acting arbitrarily in violation of the Supremacy Clause, with Bias Against Federal Law, and in violation of judicial canons requiring neutrality and impartiality. The integrity of our dual judicial system depends upon state courts properly exercising their federal jurisdiction to resolve properly presented federal questions. 42 U. S. C. 1983 and 1985 were established in large part specifically because state court judges refused to protect the civil rights of individuals in the black minority. This court refusing to protect the civil liberties of these litigants in this child custody case from the state’s viewpoint that they are not entitled to equal protection of the law because they made a protected privacy choice which the state disfavors is not one bit different from state courts refusing to protect black litigants from the state’s viewpoint that they were not entitled to equal protection of the law because they were deemed an inferior race.
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How our Motions use this principle of law:
Our motions are designed to invoke the court’s federal jurisdiction and compel the court to exercise that jurisdiction in terms of its non-discretionary duty to protect your rights by providing full and proper adjudication of your federal rights before your state court judge acts to limit them in any way. Your judge cannot ignore your federal rights simply because your court would prefer to be your child’s “protector.”
- The general objection above should be used to object to any oral statements by the court that it isn’t going to provide the relief requested in our motions.
- Ask for a written holding when you object and follow up immediately with us to see if we might recommend a more detailed written objection be filed based on what the judge actually said. Try to, immediately after your hearing, write down exactly what the judge said while it is fresh on your mind.
- If the judge refuses to grant relief, you may be entitled to an immediate mandamus or interlocutory appeal. We can tell you whether we think you should ask your attorney to pursue such an appeal immediately before your case moves any further, before you lose any more rights, and to potentially restore your rights much more quickly.
- It is also possible that a refusal of this type by the court can be grounds for recusing the judge because it establishes a bias against federal law which creates a very real perception and likely outcome that your federal rights will not be protected by this judge and that this judge will act arbitrarily and capriciously:
- Look for appellate cases in your state which hold that state court judges must always act in the child’s best interest such as this statement of pure bias by the Texas Supreme Court which directs all Texas courts that they must also exercise bias, Lenz v. Lenz, 79 SW 3d 10, 18 (Tex: Supreme Court 2002), (Of course, the child’s best interest trumps that of either parent).
- Use these appellate cases to demonstrate that the court is by higher order compelled to be biased against the federal rights of the litigants in favor of the state’s viewpoint regarding the best interests of a child who is neither a party to the suit nor has jurisdiction to have its interests asserted in this case.
- An appellate court command for a state trial court to act in the interests of a third-party, non-litigant child is a clear abuse of discretion for bias in multiple ways, for exceeding the court’s constitutional jurisdiction which is limited by the controversy before the court, for depriving the litigants of access to the state courts for adjudication of their federal claims, and for violating the supremacy clause.
- Codes of judicial conduct provide greater protections than the minimum due process the constitution affords. For this reason, any objection which can be supported by your state’s code of judicial conduct should be raised (find, read, and study this code for your state).
- Caperton v. AT Massey Coal Co., Inc., 129 S. Ct. 2252, 2267 (Supreme Court 2009), (“The Due Process Clause demarks only the outer boundaries of judicial disqualifications. Congress and the states, of course, remain free to impose more rigorous standards for judicial disqualification than those we find mandated here today.” Lavoie, supra, at 828, 106 S.Ct. 1580. Because the codes of judicial conduct provide more protection than due process requires, most disputes over disqualification will be resolved without resort to the Constitution. Application of the constitutional standard implicated in this case will thus be confined to rare instances.)
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- The American Bar Association publishes a “model code of judicial conduct” as a template for states to adopt. Most state canons use this template but make minor changes, Model Code of Judicial Conduct (americanbar.org)
- Always cite your state’s officially adopted code, not the ABA code which is added here only for reference.
Your judge simply cannot lawfully refuse to protect your rights by exercising his or her federal jurisdiction and ruling on the federal questions you have properly placed before it. Federal public policy demands that your judge protect your rights through proper adjudication of those rights under federal rules and federal law. Nowhere in federal law is there any support whatsoever for limiting your fundamental rights simply because in the viewpoint of a state court judge, in a custody proceeding, that the interests of a third-party non-litigant would best be served by violating your fundamental rights nor does the constitution allow the judge to look for justification in the body of laws established by a legislature who lacks any jurisdiction whatsoever to define or establish federal law.
The conflict between you and the other parent can be fully resolve in terms of almost every element of relief requested through proper adjudication of the federal rights at issue and that adjudication defines limits beyond which the state legislature may not roam.
Any conflict which remains to be settled under state laws, such as what school the child will attend, must be resolved within the constitutional limitations the federal constitution provides. If the court seeks to continue violating fundamental rights through application of a specific state law, then this is the point where you challenge the constitutionality of the state law on federal constitutional grounds.
Every remaining element of relief against you should be challenged first on its specific source in state law, which the courts love to obfuscate. If you are not provided with the specific controlling statute by name and number then your procedural due process rights are being challenged. You should object and challenge any action against a fundamental right that is not justified by reference to a specific governmental interest and a specific statute which authorizes governmental authority to pursue that interest. The court cannot demonstrate that its action was justified to any enhanced standard of review where the record fails to reflect the governmental interest and the authorizing statute in precise and narrowly articulated terms.
Broad references to broad authority provided by the family code fail every level of enhanced scrutiny under every conceivable condition, if you challenge it ,and only if you challenge it, as a violation of federal due process law.
Conclusion of do state courts have federal jurisdiction?
We have two jurisdictions of laws in this country, federal law which applies to everyone and state laws which are unique to each state. The two work together such that each state has only one law code. Where federal law has jurisdiction, that federal law is absolutely supreme over laws made by the states. State law judges are unique in the states in that they are the only state officials who can say what federal law is or when federal due process and equal protection have been satisfied. What comes with this uniqueness is a non-discretionary duty to exercise the authority they have been granted.
Your judge has a duty to protect your federal rights and your child’s federal rights. This duty is a higher duty order than any duty to state law. Where state law calls on a state judge to violate rights, that judge must declare the state law to be unconstitutional. Your role is to remind your judge of their non-discretionary duty and show the world how judges have been knowingly violating their duty all this time. When enough people bring these issues to light, the federal courts will no longer be able to look the other way without being known to be complicit in the unconstitutionality.
* This concept of being in the record is very important where fundamental rights are at issue, see Burden of Proof. If the rights you are challenging are less than fundamental then the court may properly presume that the state’s authority to limit them because you carry the burden of proving that the state cannot under the terms of Rational Basis Constitutional Review. However, when the rights you’re are challenging are fundamental and at risk of being erroneously infringed, then once you establish that the right exists and as at risk, the burden of proving the state’s authority to limit these rights shifts to the state and until the state meets this burden in the record, no judge may legitimately limit your fundamental rights. If the record shows that you properly objected to your fundamental rights being limited and fails to show that the state, not the opposing party, appeared and justified its policies against an appropriate enhanced scrutiny standard, subject to confrontation and cross-examination, then that is proof that the court abused its discretion under the federal standard.
** Abuse of Discretion: The Federal Standard: Remember, federal questions of due process must be resolved by reference only to federal law, not state law. Therefore, in the federal analysis, the question of whether the court abused its discretion turns on the federal definition of this term not the state definition. You must point this out in your appeal so that when the appellate court improperly applies the more lax state definition, that constitutes an abuse of discretion by the appellate court. The Supreme Court establishes the federal definition, at least in relevant part, in this manner, Koon v. United States, 518 US 81, 100 (Supreme Court 1996), (A district court by definition abuses its discretion when it makes an error of law. 496 U. S., at 405.) Where the state trial court fails to exercise its federal jurisdiction and fails to apply federal law that court makes an error in law because the federal policy leaves the state trial court zero discretion to refuse to exercise this discretion unless it has demonstrated in the record that one of the very few and limited exceptions to this rule applies in your case, which they likely do not.
NOT A SUBSTITUTE FOR AN ATTORNEY
*Not a Substitute for an Attorney
WE CANNOT GUARANTEE RESULTS. OUR MATERIALS AND MOTIONS ARE NOT FILE READY. WE ARE NOT ATTORNEYS, ARE NOT A SUBSTITUTE FOR AN ATTORNEY, AND DO NOT PRACTICE LAW. THE INFORMATION ON THIS SITE IS EDUCATIONAL REGARDING MATTERS OF PUBLIC IMPORTANCE. AS SUCH, IT IS PROTECTED FREE SPEECH UNDER THE FIRST AMENDMENT. FIX FAMILY COURTS’ PARENT COMPANY IS INCORPORATED IN TEXAS. THE AUTHORS OF THIS SITE RESIDE IN TEXAS. THIS CONTENT IS FREE SPEECH PROTECTED BY ARTICLE 1, SECTION 8 OF THE TEXAS CONSTITUTION. PLEASE USE THIS MATERIAL FOR ITS INTENDED EDUCATIONAL PURPOSE AND CONSULT AN ATTORNEY FOR ALL LEGAL OPINIONS REGARDING YOUR SPECIFIC CASE. IF YOU PURSUE YOUR CASE PRO SE, YOU TAKE FULL RESPONSIBILITY FOR UNDERSTANDING THE LAW IN YOUR STATE AND THE VALIDITY OF ANY INFORMATION PROVIDED HERE.