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Author Topic: Legal status and interpretation questions  (Read 3067 times)

socrateaser

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RE: Excuse my butting in... but wouldn't it just be easier/quicker...
« Reply #10 on: Mar 15, 2006, 02:12:33 PM »
>1 - You mentioned the 11th Amendment and declaratory
>judgments. If I take your meaning correctly, did you suggest
>that I file a lawsuit in federal court for a declaratory
>judgment for full recognition of my parental rights as
>established by VA?

I suggest that you just file a paternity action under the GA family law codes and not try to get fancy, because it will cost you a fortune to try to get a federal court to declare GA's statute re illigitemate children unconstitutional.

I'm sure that you could do this, on the grounds that the constitution protects the rights of fathers who attempt to maintain a parent-child relationship as fundamental and subject any interfering state law to proof by the state government that it is advancing a compelling interest by the most restrictive means available. This standard is nearly insurmountable in practice, and since there's no real interest at all in not recognizing your parental rights, the state couldn't possible meet its burden of persuasion.

>2 - If so, would the state of GA be the "defendant"? Would a
>particular state agency need to be identified, or simply the
>state itself?

In order to challenge the constitutionality of a law you must first demonstrate that you have standing. This means that there must be a concrete and partularized injury in fact (or immediate threat thereof), fairly traceable to the defendant, which the court can redress if you are successful.

At present, you have not sufferred any injury, nor is there any threatened injury, at the hands of the State of GA. Rather it is the other parent who has cut off your fundamental constitutional rights to have a relationship with your child. So, you must sue the other parent. Then, if the other parent counters your complaint by claiming that GA does not recognize your constitutional rights, then you have the right to move that the court find the GA statute unconstitutional under federal law.

But, by then the other parent will be on notice of what you're trying to accomplish, so thinking that there's some tricky way to avoid this is unreasonable.

There isn't, so stop trying to write Schoenberg, and stick to something more approachable -- like Sousa, maybe.

>3 - This doesn't seem like something GA would want to fight.
>After all, they have no incentive to deprive me of my legal
>rights. Rather, they merely lack the procedure to clarify my
>already-established rights in this state. (After all, the
>public policy of the state of GA strongly favors the
>presumption of legitimation.) Thus, might I expect GA to
>simply "settle" outside of court rather quickly?

Everyone wants to be the first to climb Everest. If you want to see your kid sometime soon, I strongly suggest that you file a paternity action and go through the standard legitmation process. Every day that you wait, decreases your custody rights because your status quo relationship with the child becomes more attenuated.

One more thing, re the administrative procedure. If I were in-house counsel to the GA support authorities, I would tell the clerk who brought me your complaint to go back and tell you that if you want to challenge GA law, you need to do it in court, because even if I agreed with you that GA should recognize the administrative act of a sister state, that I am bound by my attorney-client relationship, to defend the law of the State of GA, which at the moment does not recognize the law to which you appeal.

If you are lucky enough to obtain relief from an administrative official, your child will probably be 35 years old when it's finally confirmed.

In unwed parent circumstances like yours, time is of the essence, because the actual relationship between the parent and child is the most important factor.

So, stop wasting time, and file the paternity action, just like everybody else does.


annemichellesdad

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RE: Excuse my butting in... but wouldn't it just be easier/quicker...
« Reply #11 on: Mar 15, 2006, 02:51:17 PM »
Thanks, as always. The easiest route - filing for paternity in GA - is simply the most threatening, as well. The mother has already said she would contest it, claiming it to be against the child's best interest on the basis of child molestation (of course I havn't molested my own child, but who wants to be called a child molester is public?). Even proving myself innocent may take years, especially if the mother wants to delay the proceedings as much as possible.

When you know at least some of these terrors that lie ahead on a certain path, all other avenues simply have to be exhausted first. And, once again, I cannot overstate the malicious nature of this adversary.

Again, thank you. I will consider all points brought up here.

annemichellesdad

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By the way, Soc...
« Reply #12 on: Mar 15, 2006, 02:59:39 PM »
By the way, thanks for the musicial analogies! They speak volumes to the educated! You're Schoenberg reference made your point with crystal clarity! If only the judge were a musician!




 

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