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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.

Motion Pre-Trial Framing
Motion in Defense of Enforcement - Ability to Pay. - child support
Motion Declaratory Relief Substantive Rights
Motion Declaratory Relief Procedural Rights
Motion Declaratory Relief Equal Protection
Motion in Lemine

What 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.

What 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.

What 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.

What is procedural due process?

Procedural due process is a component of the due process guarantees of our Fifth and Fourteenth Amendments which seeks to provide fundamental fairness to all the parties involved by imposing minimum requirements for the processes that the government must follow before it may 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.

What 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.

There 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 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 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 rights are at risk and to determine what degree of process is necessary to protect those specific rights.

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

What are fundamental rights?

Fundamental 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 before it can limit fundamental rights.

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

Standards 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.

Burden 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 based upon that policy can survive any degree of enhanced scrutiny. This is constitutional error and an abuse of discretion by the judge that makes every single child custody court order 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. Applying enhanced scrutiny properly will dramatically increase the cost to the state of regulating domestic relations. Instead of child custody suits being a money maker 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.

Governmental 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.

Tailoring 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.

Ends 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 protected 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.

Can 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.

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 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.

What 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 duty. 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.

If you want your rights protected, you will have to learn what they are and insist that your attorney do theirs properly. Sometimes, parents can’t find attorneys willing to perform their jobs properly and 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 attorneys 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 of 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 change this for everyone. Our goal is to change the system so dramatically that you will NOT have to fight and your children won’t ever have to face a corrupt family court when they have children.

If you want to protect yourself, get a membership so you can have access to the more detailed tools and knowledge that we offer. 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, get a membership so that you can better help us help you. When you become a member, you and we are in a constitutionally protected association organized to change family law in your state and across the entire country, and our sharing of legal advice with you becomes even more protected.

*Not a Substitute for an Attorney