Across U.S., Non-Custodial Parents Sue
Tuesday, September 28, 2004
By Wendy McElroy
At least 28 federal class action suits in 28 states have been filed in
the last two weeks on behalf of non-custodial parents (NCPs). The
defendants are the individual states.
The plaintiffs claim to represent an estimated 25 million
non-custodial parents — primarily fathers — whose right to equal
custody of minor children in situations of dispute is allegedly being
violated by family courts across the nation.
Family law is traditionally a state matter, but the federal government
has assumed greater control in the area over the last few decades.
Thus, the plaintiffs are appealing to the Constitution, U.S. Supreme
Court precedent and acts of Congress "to vindicate and restore their
various inalienable rights."
In short, federal law is being asked to trump state practice in
custody matters.
According to the suits, state practices appear to be "willful,
reckless, and/or negligent fraud, deceit, collusion, and/or abuse of
powers" with a "systematic pattern of obstructing, hindering, and/or
otherwise thwarting the rightful and lawful conclusion of due process"
of non-custodial parents in child custody proceedings.
In particular, fathers protest the widespread practice of almost
automatically granting sole custody to mothers in divorce disputes.
The 28-plus class action suits are identical, as any future suits will
be. The ultimate goal is for every state and U.S. possession to be
represented in one large consolidated action. Indeed, Torm L. Howse —
president of the Indiana Civil Rights Council and coordinator of the
suits — says that paperwork is under way for submission to the
Judicial Panel on Multidistrict Litigation, a legal body which has the
authority to transfer such multiple civil cases to a single district
court.
If this happens, every single non-custodial parent in America will be
represented by the class action suit, which is nothing more than a
lawsuit brought by one person or a small group on behalf of an entire
class who shares a grievance.
What specific relief is being sought?
The sweeping legal goals are spelled out in a press release. The main
relief sought from federal court is the immediate
"restoration/elevation to equal custodial status" of all current
non-custodial parents against whom no allegations of abuse or neglect
have been proven and who have an ongoing relationship with the child.
The establishment of equal custody embraces several other reliefs.
For example, the "prohibition of custodial move-aways of minor
children [more than 60 miles] from their original physical residences
with natural parents." Also, the "abolishment of forced/court-ordered
child support in most cases." Support of the child would be borne by
each parent during their own parenting time.
The Plaintiffs argue for restoration of equal custody not merely for
the sake of non-custodial parents but also for children's welfare. The
press release cites a much-touted study entitled "Child Adjustment in
Joint-Custody Versus Sole-Custody Arrangements," which was published
in the APA's Journal of Family Psychology. The study concluded,
"Children in joint physical or legal custody were better adjusted than
children in sole-custody settings, but no different from those in
intact families."
In this sense, the suits also advocate children's rights.
Other reliefs being sought are financial in nature; some of them take
the suits into murky areas. For example, the suits ask for
"reimbursement" from custodial parents to non-custodial parents of any
state-ordered child support that exceeded the "maximum limits of
federal law." This ceases to be an appeal to constitutional or
parental rights and instead pits one set of civil law against another,
with retroactive penalties being imposed.
In addition, the suits ask for "various damages against the Defendant
[the state named] in the aggregate value of $1,000,000 payable per
Plaintiff." The court awards would be "executable upon all monies,
property, chattels, assets, goods, pecuniary interest and anything
whatsoever of any value" owned or controlled by the State. The suits
request that "an appropriate portion" of the award be provided by the
liquidation or direct transfer of title of "unused, abandoned, or
unnecessary state property and assets."
The number of non-custodial parent plaintiffs who sign on to a federal
class action cannot be predicted but it could run into millions; the
collective damages could run into billions or even trillions of
dollars. Unfortunately, this gives the appearance of pursuing profit
rather than justice.
When asked to elaborate on the amount of damages, Howse clarified, "We
are preparing, later this week, to offer proposed settlements that
will waive the vast majority of damages, among other things, in
exchange for a quick restoral of equal custody rights, a few forms of
tax abatements/credits to balance what custodial parents have enjoyed
for years and some other basic and related issues, like the setting up
of neutral visitation exchange centers, and the like."
He added, "It has never been about winning large amounts of money from
the states ... It's about restoring the lives of our children, and
restoring our own lives."
I genuinely hope the settlements come to pass. Stripped of their
financial demands, the suits could go a long way toward removing what
I believe to be the worst laws governing child custody in disputed
divorce.
At bare minimum, they are raising the profile of an issue that will
not go away: the crying need of non-custodial parents, especially
fathers, to know their children.
And the equal need of children to embrace both parents.
Wendy McElroy is the editor of ifeminists.com and a research fellow
for The Independent Institute in Oakland, Calif. She is the author and
editor of many books and articles, including the new book, "Liberty
for Women: Freedom and Feminism in the 21st Century" (Ivan R.
Dee/Independent Institute, 2002). She lives with her husband in Canada.
Respond to the Writer
"Children learn what they live"
I had been thinking about joining this lawsuit for some time, ut last year when I was looking for the site, the webmasters e-mails, and ALL of the contacts on the website were invalid so I gave up. Is this lawsuit for real? Is it underway? If so how can I help?
A judge told mye last year that he could NOT keep my ex wife from moving over 1000 miles away because it would violate her consitiutional rights. However it is apparently NOT a violation of my own consitiuational rights for her to take our 9 year old daughter with her against MY will. It is not against my consitutional rights for her to make ALL of the life decisions for our daughter Jessie without consulting or even asking me. It's not against my constitutional rights for her to raise our daughter in a religious setting that goes against everything I believe in. The list goes on and on and on....I think this motion would be MOST benefical to many parents....however it might be dangerous in some cases too. Msot noteable "bad" parents who have lost their visitations for a reason, or parents who jsut don't care.
It's real... //www.indianacrc.org More states are filing this week.
http://www.foxnews.com/story/0,2933,133875,00.html
Hasn't this kind of thing been tried before?
Could have a major impact on those of us NCP's that already have orders for parenting time?
If it could have some impact, what kind of time frame would we be looking at?
Obviously no one can tell the future, but I am not a legal expert and I was wondering if anyone else that is more "in the know" about it could give us some light about what is going on... I have looked at the web site, but I still don't know if this could have any real impact for NCP's like myself...
After reading all the info on the case I only see one major problem. From what I understand about the way the Child support payment systems work I seriously doubt the government would allow such a cash cow for themselves to ever be touched. It would be the same as saying "Hey guys no more taxes".
I don't know if this has been tried before, but the fact that they cases have been filed and that they are going ahead with this is fantastic. If this thing gets pulled off it would literally change the lives of millions of parents and children.
I see your point, the government will be less likely to reduce their own income. But, for me at least, it's not so much about the money. What I want is equality, I want to be able to see my daughter more than the eow which equates to about 20% of the year.
Additionally, I pay for her to have her own room at my house, as well as her clothing and everything else here. I also pay for it at her mother's house, I would like to see more equality in the child support, and maybe some kind of checks and balances where I can be sure the money I provide is being used to directly benefit my daughter, not her mother...
It seems like this case is geared a great deal towards the child support, does anyone think it will have any real world effect on custody and parenting time?
>It seems like this case is geared a great deal towards the
>child support, does anyone think it will have any real world
>effect on custody and parenting time?
It's very "gender-specific," which doesn't translate to equal opportunity as it's supposed to mean. IF such a class action suit is won, there will be scores of NCP mothers wanted to be included. In turn custodial fathers who already have custody of their children are suddenly faced with the prospect of losing them again.
Not to mention the prospect of custodial mothers rising to a class action countersuit filing. Then what?
Admirable, but a Pandora's Box.
"gender-specific," ???? It's geared for custodial and non custodial.
Of course it may "appear" to be gender specific, but what gives one "Gender" the advantage over the other, the right to direct, influence and ultimately determine the mind of a child? AND, doesn't that child have a right to it's own mind, undeterred from obnoxious influence from one parent or the other? Irregardless of gender?
Perhaps if we did away with this archaic, adversarial system, perhaps, we could just share our offspring, eh? Now there's a concept... taught every day in pre-school... SHARING...
Dads have been getting the short end of the stick lately, and not very many Mom's I could cite as "Virgin Marys".... and of course the Deadbeats can't drum, from their feminazi prison cells.
Kids are not possesions, they are individuals! Adults understand a semblence of time-sharing, condo's, jet-ski's and the like, so, whats the big hubub, bub? Got something against EQUALITY? Differerent but EQUAL?
:)
copy/paste from custodyreform.com
Posted by: Gecko @ custodyreform.com
Email:
[email protected] If anyone else wants a copy, email me.
The Complaint itself is gender neutral...I did a "search" and the words "father" or "mother" was only used once on page 35 section 121 and in regards to suicides attributed to victimization by the family courts.
Since it can't be printed or copied for easier reading, it's going to take some time to get through it (and check reference points), but so far it appears to be well written.
I think the real problem is going to be the "press" it is going to get, as we have seen with Ms McElroy's article.
I only read the article that was posted and this was what I read. It may have had a different impact on myself, sans the peppering. I still believe it will be looked upon as pandora's box. One cannot view the pros without visualizing the cons, otherwise they would become both one- and blind-sided.
>The plaintiffs claim to represent an estimated 25 million
>non-custodial parents — primarily fathers — whose right to
>equal
>custody of minor children in situations of dispute is
>allegedly being
>violated by family courts across the nation.
>
>In particular, fathers protest the widespread practice of
>almost
>automatically granting sole custody to mothers in divorce
>disputes.
>
Unfortunately, this gives the appearance of pursuing
>profit
>rather than justice.
>
>At bare minimum, they are raising the profile of an issue that
>will
>not go away: the crying need of non-custodial parents,
>especially
>fathers, to know their children.
>
I was just passing something on that many here, unlike you, are interested in.
If you don't like the posts, either write the author or just keep your mouth shut. No one cares about your insight or your ability to the socalled 'read between the line' garbage.
And if you bothered to do the research, you would find the majority support to be from women. Women who see first hand who the Family Courts favor. Take a hard look at the petitions and who signs them, you might just learn something.
It said, incase you have a reading problem, 'NCP, primarily fathers.'
If you can not post an educated response, don't bother....
I certainly agree that something needs to be done. I know that in my case not only did my ex wife end a marriage I did not want ended, but then took the child that she did not even originally want to bear, and made me pay for her to raise her. Where is the fairness in that? Furthermore she then decides to move halfway across the country so I can see my child a whopping 17% of the year if I am luck...usually only 14%, garnished my paycheck and made it all but impossible for me to follow her out there without winning the freaking lottery. How is that fair? How can ANY judge look me in the eye and with a straight face claim that these judgements are fair...not only to me and my constitutional rights, but to the 9 year old that has to live with these decisions for the next 9 years until she is old enough to do as she pleases. If things are left to go on as they are now I fear what kind of children, and what kind of society we are creating. Equal opportunity or not, government cash cow or not, I am standing behind this movement because of what it stands for. No where on Oprah, Maury Povich, Montel Williams, judge freaking judge or any of 100 different nation wide television news programs are we seeing this issues dealt with. It is taken for granted by the media while stories of skateboarding dogs, or the some or non sense is aired. For the gentleman spear heading these lawsuits I feel that perhaps he can be the Martin Luther King of Non Custodial parents everywhere. The Ghandi of family law. Now more than ever I think we need to get as many on board for this as we can.
'I CARE ABOUT 'MY' KIDS.
>I was just passing something on that many here, unlike you,
>are interested in.
Why do you conclude I wasn't interested? If I wasn't interested, why would I read it, then respond?
>
>If you don't like the posts, either write the author or just
>keep your mouth shut. No one cares about your insight or your
>ability to the socalled 'read between the line' garbage.
The author isn't posting this. You are. If you don't want responses to your posts, then consider not posting them. If you don't care about my insight or ability to read between the line garbage, then just throw it out with the rest of your garbage.
>And if you bothered to do the research, you would find the
>majority support to be from women. Women who see first hand
>who the Family Courts favor. Take a hard look at the petitions
>and who signs them, you might just learn something.
"Behind every man, stands a woman." Without them, where would you be?? Clinton passed "federal" CS laws not too long ago. How well is this working, as it comes down to "state's rights," who neither care nor bother to enforce these laws. Think about it.
>It said, incase you have a reading problem, 'NCP, primarily
>fathers.'
Actually you appear to have the reading problem. It's clearly reposted and highlighted exactly as I said it, and you repeated it.
>
>If you can not post an educated response, don't bother....
It's your opinion what an educated response is. I did not respond the "mass petition." I responded to your post about Wendy's article.
I think the board moderator, if not other's have made it clear that conflicting views are both welcome and helpful here, despite your "personal" belief otherwise. I just take your comments with couple of grains of salt and toss them over my shoulder for "good luck."
I'm not here to argue with YOU, nor do I make it my daily goal to attack and pick apart every post you make. Conclusion: Say what you want from this point on, but I will not respond to you again.
New! You can read a generic copy of
the main classaction federal complaint.
http://www.indianacrc.org/TheMainComplaint.pdf
(Adobe PDF format, 43 pages, 88KB)
http://www.indianacrc.org/
The Federal Government is violating the United States constitution by assuming control of child support payments. They are usurping states rights by doing so. Of course they've been doing this for years. Take highway funds for instance. They bleed everyone dry, then come up with all kinds of little laws that have to be complied with before a state can get their money back.
Until several months ago, I had no idea why the Feds were involved in the collection of CS. Roger F. Gay used to post over on Free Republic, and I learned that the Feds receive interest on these payments from him. I literally had no idea this was going on.
I think the lawsuit has merit, but I don't think it's going to go very far. I'm completely disgusted with what our legal system has deteriorated into.
Posted by Kay at Divorce Source on the CS board:
"after clicking on my state and finding the representative and the web site for Iowa, one of the main headings is "$512,655 Billion at stake in Iowa alone". This really rubs me the wrong way. Not a number of children at stake but the money amount. Things that make me doubt the sincerity. "
Iowa is already worried more about the money than they are the kids. I'd have to guess that other states have already mentioned the money and the rest will follow.
More proof from the words of our representatives that money is the issue, kids are not the issue. They couldn't care less about the kids.
It's really too bad people have had to go this far just to get what they deserve: equal treatment in courts, equal time with their kids, kids having equal access to both parents. I've said it before and I will probably say it again - I'm for a U.S. Constitutional amendment that states that children are given equal, unfettered access to both parents.
I posted on it below, as the courts are now retaliating by way of CS in regards to the new JC law that went into effect here in July.
Makes me ill to think that the almighty dollar would have more importance than an actual human being, and a CHILD at that! Talk about the country going to hell in a handbasket!
"Children learn what they live"
>Posted by Kay at Divorce Source on the CS board:
>
>"after clicking on my state and finding the representative and
>the web site for Iowa, one of the main headings is "$512,655
>Billion at stake in Iowa alone". This really rubs me the wrong
>way. Not a number of children at stake but the money amount.
>Things that make me doubt the sincerity. "
Clearly, "Kay" missed a fact. The very first line of the Iowa website states "Join our efforts to level the playing field for children affected by divorce to provide them with two, virtually equal parents."
>Iowa is already worried more about the money than they are the
>kids. I'd have to guess that other states have already
>mentioned the money and the rest will follow.
"Kay" needs to understand some things. The website and the State of Iowa are two different things. As I stated above, the "children" are mentioned FIRST, the money figure is just informational. The website (and lawsuit) was created by a SINCERE non-custodial parent who, by government order, recieves unfair time with their children. I hope the state IS worried more about the money, because if this suit succeeds, thats what it will pay, one way or another. Time=Money, the non-custodials just want fair/equal time.
The site further states "Estimated non-custodial parents in Iowa 170,885"
Simple math... if that's minimal one child per non-custodial, total is 170,885
If it's an average of two children per non-custodial, total is double or 341,770 children without EQUAL access to their parents. It could be that no accurate figures exist of the children impacted by divorce as it's constantly changing or just difficult to tally. Younger kids, not in school may not be accounted for. I just read someplace that the Florida DHS has "lost" over 1000 children in their system. Hmmm, surely they and/or records weren't blown into the gulf by a hurricane? Gov't incompetence most likely.
>More proof from the words of our representatives that money is
>the issue, kids are not the issue. They couldn't care less
>about the kids.
I fully agree. Include many lawyers, judges, and worst of all the evil-ex's who lie and cheat, and use their own children as a pawn against a loving and devoted non-custodial parent.
>It's really too bad people have had to go this far just to get
>what they deserve: equal treatment in courts, equal time with
>their kids, kids having equal access to both parents. I've
>said it before and I will probably say it again - I'm for a
>U.S. Constitutional amendment that states that children are
>given equal, unfettered access to both parents.
Kay may really be on our side, just needs to fully examine the facts.
I like that idea, a Constitutional amendment proclaiming equality!
[em][font color=green]It's very "gender-specific," which doesn't translate to equal opportunity as it's supposed to mean.[/em][/font]
Yes, the ARTICLE is "gender-specific", but the Complaint itself is not.
[em][font color=green]IF such a class action suit is won, there will be scores of NCP mothers wanted to be included. [/em][/font]
And so they already are. Think about it, the fact that the majority of NCMs are just as discriminated against as are NCFs only PROVES that the problem is NOT about "mothers vs fathers", but that the courts are ONLY interested in the custodial PARENT as opposed to the NON custodial PARENT.
[em][font color=green]In turn custodial fathers who already have custody of their children are suddenly faced with the prospect of losing them again. [/em][/font]
Why would custodial fathers "lose" their children?
Is it's because non-custodial mothers are part of the law suit? If so, then wouldn't it also be true that custodial mothers would "lose" their children because non-custodial fathers are part of the law suit?
Or is it because you are still thinking on the terms of "gender", that it's "mothers vs fathers"? It's not you know and hasn't been for quite some time now.
[em][font color=green]Not to mention the prospect of custodial mothers rising to a class action countersuit filing. Then what?[/em][/font]
And if such a thing were to happen, then I would expect that custodial FATHERS would join in.
The one BIG thing that bothers me about this article. Why they would take a gender neutral lawsuit and allow a feminist to report on it? Shame on the news media. Do you think that there is going to be some bias there? I think if anything we the masses need to petition the news media to put their money where their mouth is and acutally give "fair and balanced" coverage of this situation. You certainly don't see terrorists giving the us news media live coverage of the Iraq situation? During the war was Hitler in charge of the Jewish lifestyle section of the Sunday paper?
It does not matter if your male or female. The keyword here is 'NON-CUSTODIAL PARENT. It is degrading and turning good parents into second class citizens.
Equality all the way.
What I have a problem with is the message it sends the kids, one of your parents is better then the other...
"Children learn what they live"
It does not matter if your male or female. The keyword here is 'NON-CUSTODIAL PARENT. It is degrading and turning good parents into second class citizens.
Equality all the way.
What I have a problem with is the message it sends the kids, one of your parents is better then the other...
"Children learn what they live"
bump
The last two timesI went to court to fight for my daughter the courts spent about 5 minutes dealing with what would happen to her and lcose to a hour dealing with how owes what and how they are gonna pay and back child support and this and that. Like I said CD is their cash cow. The state doesn't care about the kids, they never did. Kids can't vote, pay taxes, or help them out in anyway.
If the states or the government for that matter had cared about the kids legislation like the lawsuit that is going through now would have been passed years ago.
I think that WE need some more positive media coverage of this thing. ACan we all spam the news media? Perhaps get everyone here to write Dateline? If there is going to be any chance of this thing succeeding we must get as many people on borad as we can. Only way I know to do that is to get the word out. Best way I know how to do that is to get some fair and balnced news time, not some feminists rantings.
Considering the fact that almost everyone in the nation has heard about the dumb lady who sued McDonalds cause she burnt herself with hot coffe while trying to drink and drive with it....that lady won a million bucks. Certainly with a cause as important and as noble as ours there is a place we can shout out to the masses for support.
copy/paste from custodyreform.com and responses to CD's outline .
Author: CD (Caring Dad) @ custodyreform.com
on September 30, 2004 at 10:51:10:
OK, I actually read the entire 43 page complaint. Yep, everything.
First, my compliments to those who took the time and effort to organize and research it. 28 simultaneous lawsuits in 28 states is quite an administrative and organizational achievement.
Of course, this should be considered only the beginning and not the end of the organizational efforts of the NCp movement. There is so much more work to be done, for instance, becoming a potent voting bloc that can not only sway an election, but actually command it. Unless we can install our own politicians into office, the existing politicians won't really play ball with us; they have proved this time and again.
That effort, however, might be the best thing that results from this lawsuit.
I have read it thoroughly, and there are some glaring problems, notwithstanding the expressly stated disclaimer that pro per lawsuits should not be held to the same standard as professional lawyers.
First and foremost, the lawsuit purports to be a class action, yet it fails to comply with even the most minimum standard for that designation, that is Fed Rule Civ. Pro. 23.
See http://www.ord.uscourts.gov/Rules/LR23.htm
The words "class action allegation" have to appear prominently, just for starters. Secondly, there are requirements associated with a class lawsuit; the mere assertion that there is a class is insufficient on its face. Nowhere in the NCP complaint is there any attempt to comply with the requirments of becoming a class. Pretty basic stuff, even for lay people, so the class part of the lawsuit fails right then and there as a matter of law. I propose you immediately amend your complaint to conform to the above stated class requirements.
Second, what relief is being sought, and what remedies can the fed court provide? The relief being sought is primarily injunctive. Though there are allegations of monetary damages in the amount of $1,000,000, merely asserting such damages without further specificity will not produce the desired result. As the relief is primarily injunctive, you have no 7th amendment right to jury trial, so the complaint wastes everyone's time by requesting it. Request denied, I could easily guess.
Third, what is the court supposed to do? Strike down every single statute on the books that is alleged to be discriminatory or detrimental to NCP? Yeah, maybe that would be nice in some fantasy world, but I assure you the fed court will not take such a proactive stance. What you are asking, the court cannot and will not provide. You need to seek redress in the legislative arena, that's what the court will say.
Fourth, back to the money issue. You don't seem to meet the minimum federal requirement of $75,000 in damages per plaintiff. The mere assertion that there are millions in dollars of damages is insufficient, as a matter of law. Apart from passing assertions, there is no other evidence of any monetary damages. Therefore, you will be kicked out of fed court for failing to meet that minimum amount, per 28 USC 1332, diversity question jurisdiction (if I recall correctly). And since you will be kicked out of fed court, guess where you will be heading (assuming the complaint isn't dismissed entirely)? That's right, straight back to state court, even though you have articulated some federal question. However, there is a chance that, since you have at least alleged a 28 USC 1343 violation (without much specificity, regrettably), you might slide on this monetary requirement. I'm not completely sure on this.
Next, at 43 pages, the complaint is way too long. This is known as, pleading yourself right out of court (see Chicago Nurses Association case about twenty years ago, alleging gender discrimination in hiring. Court ruled that plaintiffs had not only failed to state a case, but failed to do so in way too long pleading.)
See also Fed Rule Civ. Pro 8:
"A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded."
This complaint is way too long, particularly considering it fails to adequately state a cause of action upon which relief can be granted, but at the same time "venting" emotively at length about the alleged injustices suffered.
Back to stating a cause of action. This is simple. You take the statute that is alleged to be violated, and you show how it has been violated, in reasonably specific terms, such that a judge could see by a plain reading that a cause of action exists. You don't have to plead with particularity at the initial stage, judges understand that some of the details won't be available until formal discovery begins. However, there has to be some reasonable precision about which laws have been violated, and how, not just a superficial recounting of vague injustices suffered.
All right, I could go on, but you are getting the idea. I suggest you amend this complaint immediately, before a judge even has the chance to rule on whether it is a meritorious claim or not. Fix the glaring problems, or it will quickly be tossed summarily into the trash heap.
Don't get me wrong, i would love this lawsuit to go forward, but i can easily foresee the inevitable result on this one.
Good Luck.
--------------------------------------------------------------
Author: CD (Caring Dad) @ custodyreform.com
on September 30, 2004 at 12:12:09:
FED RULE 8 - PLAIN STATEMENT
"There are material violations of constitutional rights of parents (particularly NCP) and their children, done by state actors on a systematic basis, with no overriding or compelling state purpose that would justify such an intrusion into the sanctity of the universally recognized fundamental liberty interests of the family relationship. Additionally, there are perverse financial incentives written into legislation which tend to exacerbate the foregoing violations."
there it is, plain and simple. Just a bit over 43 words, who needs 43 pages? You think a judge is even going to read it?
Obviously, you could take a few pages to expound on the brief statement, but 12 to 15 pages double space, maximum for initial pleadings.
JMHO. Good Luck.
-----------------------------------------------------
Author: Lawmoe @ custodyreform.com
on September 30, 2004 at 13:29:06:
I agree that the lawsuit, though well intentioned, is just a lot of wishful thinking. I have not read the Complaint, but it sounds overly long, rambling and not specifically crafted to address necessary jurisdictional questions necessary in a federal pleading.
Moreover, without seeing it, there are a number of hurdles that it is unlikely to meet. First, there is much more to the jurisdictional problem. Before a federal court can hear a case, or "exercise its jurisdiction," certain conditions must be met.
First, under the Constitution, federal courts exercise only "judicial" powers. This means that federal judges may interpret the law only through the resolution of actual legal disputes, referred to in Article III of the Constitution as "Cases or Controversies
Second, assuming there is an actual case or controversy, the plaintiff in a federal lawsuit also must have legal "standing" to ask the court for a decision. That means the plaintiff must have been aggrieved, or legally harmed in some way, by the defendant.
Third, the case must present a category of dispute that the law in question was designed to address, and it must be a complaint that the court has the power to remedy. In other words, the court must be authorized, under the Constitution or a federal law, to hear the case and grant appropriate relief to the plaintiff.
Finally, the case cannot be "moot," that is, it must present an ongoing problem for the court to resolve. The federal courts, thus, are courts of "limited" jurisdiction because they may only decide certain types of cases as provided by Congress or as identified in the Constitution.
The current lawsuit appears to have problems on all three counts. From what I have read, the Plaintiffs appear to be parents whose custody cases have been decided already. It is not an ongoing issue and, thus, no jurisdiction or standing. Moreover, even if they Plaintiffs were involved in active custody cases, the complaint seems to fail in stating that fact.
You have covered the issues regarding the "Class Action" portion. A case does not become a class action simply because you call it one. Also you have addressed the diversity issue. It also fails as a federal question.
Federal question jurisdiction in the district courts is governed by 28 U.S.C. § 1331, which provides that "[t] he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Federal question jurisdiction will not lie where a plaintiff invokes a federal statute that does not provide a private right of action, or where a plaintiff otherwise fails to make a tenable claim under federal law. Smith v. Kansas City Title &. Trust Co., 255 U.S. 180, 199 (1921).
As a preliminary matter, the federal courts are not, except in rare instances not present in the case filed, proper forums for a determination of domestic relations disputes, including custody rights. In re Burrus, 136 U.S. 586, 594 (1890). See also Neustein v. Orbach. 732 F. Supp. 333, 339 (E.D.N.Y. 1990), and cases cited therein. As a result, the Federal Court is likely to state that the plaintiff's claims concern custody determinations more appropriately left to state courts. Moreover, none of the statutes or claims cited by plaintiff provided any basis for the federal Court to extend federal jurisdiction over the issues in the Complaint.
Suffice it to say that if no specific statutes are invoked by plaintiffs, the complaint fails. If they are, the PLaintiffs must show that the Statute carries a private right of action. It seems that the main tenet of the case is simply that custody is a fundamental right. That is insufficient as a pleading. Instead, a federal law or statute must be cited giving rise to an implied private right of action under that statute.
Cort v. Ash applied four factors to determine whether Congress intended to make a private remedy available under a statute: (1) whether the statute was enacted for the benefit of a special class of which the plaintiff is a member; (2) whether there is any indication of legislative intent to create a private remedy; (3) whether such a remedy is consistent with the underlying purposes of the legislative scheme; and (4) whether a federal remedy would be inappropriate because the subject matter involves an area that is primarily of concern to the states. 422 U.S. at 78.
None of the factors necessary for implying a private cause of action seem to be present in the present case regarding custody.
--------------------------------------------------------------
Author: Hack @ custodyreform.com
on September 30, 2004 at 17:01:56:
The current lawsuit appears to have problems on all three counts. From what I have read, the Plaintiffs appear to be parents whose custody cases have been decided already. It is not an ongoing issue and, thus, no jurisdiction or standing. Moreover, even if they Plaintiffs were involved in active custody cases, the complaint seems to fail in stating that fact.
> Ok..That caught my eye. I haven't read the suit yet. Haven't had time. But on the moot part. I am now curious about how many orders out there are temporary vs final? I know I have been in the courts for 7 years now. And only one case (out of three) is final. Yet that does not mean that I cannot reopen the case so to speak. I just have to file a new complaint. So it seems that as long as I am an NCP I still have an ongoing issue.
Wouldn't that be the case for all involved? Just curious.
-------------------------------------------------------------
Author: CD (Caring Dad) @ custodyreform.com
on September 30, 2004 at 14:41:16:
justiciability agreed with lawmoe, who expounds nicely on justiciability issues.
don't forget the ripeness issue (see Palazzolo v. Rhode Island), as well as standing, jurisdiction, actual controversy, mootness, etc, in the justiciability question.
Alas, the lawsuit hopefully will generate some positive media coverage at best. Nice try, but it will either have to be severely amended (I suggest start over), or it will most likely fail.
Good Luck.
I know you from CR. I have to say though that I know you are trying to help, but on numerous occasions I have seen you copy and paste other's posts from different sites. I would watch doing that and/or ask the poster's permission to do so in the future as it might piss some people off that you were doing that.
do what my ex and I did when we divorced, none of this would be an issue. I immediately realized that he could NOT pay the state set c.s. amount, and requested the court REDUCE the amount to a very reasonable amount I knew he could afford. Secondly, he was able to see and talk to his son as much as possible, which amounted to 3 times the "current guidelines for visitation". Sorry, but parents shouldn't get "visitation" with their kids...they should be allowed as much access to them as possible given the distance and work schedules of the parents. If at all possible, 50/50. Luckily for our son, we put him as the priority over our own distaste for each other.
That is called loving your child. Putting the CHILD before your own wants, needs, and desires. By doing so, my ex and I now have a very amicable relationship...as do both stepparents...my husband and my ex's wife. And my son has FOUR parents who love him immensely and put his well-being first. THAT is called caring for your child, that is loving your child, that is called, being a parent.
For some of us, that's not an option. I would love to sit down and work out something good for everyone. My son is 'the priority'.
My STBX will do everything in her power to alienate my son. She has done just that time and time again. If you have any suggestions on how to communicate with the devil themselves, I would be interested in listening.
And same goes for this situation. I know MANY people who are in a serious custody situation due to just ONE of the parents. I guess I was thinking everyone COULD be as sane and reasonable as my ex and I were...believe me...my dh has one just like you...that is why I am here in the first place! :)
Count yourself as one of the lucky ones. Having communication helps the entire situation and is so much easier for the kids. Their lives will be richer for it.
My attorney is going to attempt to settle before trial. How I wish she would meet me half way. Right now, she won't even talk, just denies my time.
"Children learn what they live"
It's unfortunate but true, for far too many kids, you're in the minority, nosonew. You're to be commended for putting the children first.
If the majority of parents could rise above their own selfishness, and act as you and your ex did, we wouldn't need a class action, or even places like SPARC. Maybe you should write a "How To" book, describing how thoughtful, caring parents can divorce each other without hurting their children.
>do what my ex and I did when we divorced, none of this would
>be an issue. I immediately realized that he could NOT pay the
>state set c.s. amount, and requested the court REDUCE the
>amount to a very reasonable amount I knew he could afford.
>Secondly, he was able to see and talk to his son as much as
>possible, which amounted to 3 times the "current guidelines
>for visitation". Sorry, but parents shouldn't get "visitation"
>with their kids...they should be allowed as much access to
>them as possible given the distance and work schedules of the
>parents. If at all possible, 50/50. Luckily for our son, we
>put him as the priority over our own distaste for each other.
>
>
>That is called loving your child. Putting the CHILD before
>your own wants, needs, and desires. By doing so, my ex and I
>now have a very amicable relationship...as do both
>stepparents...my husband and my ex's wife. And my son has
>FOUR parents who love him immensely and put his well-being
>first. THAT is called caring for your child, that is loving
>your child, that is called, being a parent.
>
>
>
It would great to have each divorcing parent to be legally obligated to read the "How To" book, and commit to putting hte children first.
Even take a pop quiz, after.....
Not just have it written in the order and ignored.
Was wondering if anyone had an update on the progress of the lawsuits?