WA State Child Support Termination---Socrateaser

[Bubbles]

Sorry for being all over the place.  I will state that I'm a guardian ad litem and have done three pro se cases, winning in all....and all of them family law.  I do not "vent" in court.  

Until 1997, daughter was living with mom.  That year, my husband's mother died and the ex made a play for my husband while I was out of state.  Daughter thought they were getting back together but was also leary.  It didn't happen and daughter had a huge falling out with her mother, started doing drugs, drinking, refusing to go to school.  Mother allowed the daughter to live here from summer of 1998 until April of 2000.  The daughter did not want to go to public school and the mother supported that.  So, I homeschooled her so that she was doing "something" educational.  I'm a teacher, too.


In Feb 1999, my husband started a custody proceeding which the mother wanted dropped after the GAL recommended that the daughter live with the father and the mother would have been ordered to pay child support.  This was dropped in May 1999.

In April 2000, when daughter was 17, she left our home to return to her mother's home.  There has been no visitation, other than very brief ones here in our home but certainly none the way that they were before.

We don't know anything about her schooling except that she didn't restart high school until after she was 18.  We believe that she was enrolled but didn't start until after she was 18.  She has always worked either in a salon or in a barista since 2000.  She presently has completed vocational training and all but one credit of high school.  She is working in a salon.

Other than that, we know nothing about the situation.  We never asked in 2001 for a cessation of support.  We were naive in that.  I was in a cross-country child custody battle (won) and then we changed the whole parenting plan with my stepson's mother (2nd wife).  

We've been told by two attorneys that mother might not be able to claim this support, as the child is an adult but also perhaps that the statute of limitations in this state has run out.  State agency enforcing the order says that the child isn't emancipated at all but I find many references to our very points that would indicate that she is.  Care, custody and control.....

I will post my motion with references to the emancipation.  We apparently need to file a declaration as well but the motion will be concise and refer to only the facts since perhaps 1997 but certainly 2000 to the present.

[socrateaser]

Ok, your a professional. That sort of changes things.

I'm gonna write a "public takings" argument right here and now. It will require some polish and the addition of some substantial case law cites, before placing it before a judge. But, that, I ain't gonna do for free.

Nevertheless and because this issue annoys me particularly -- here goes nuttin:

Can the state create a legal duty that obligates one adult to pay another, based only on the need of the recipient, absent proof of breach of contract, quasi contract, tortious or any other harm or injury, without violating the "public takings clause" of the 5th Amendment of the U.S. Constitution?

We say it cannot. Adults are not children. They are entitled to the full pallet of constitutional rights, and no longer subject to gaurdianshipa and custody of their parents. For the state to create a legal duty that forces one adult to pay for another adult's post secondary schooling, based on nothing more than the fact that the parent was once obligated to pay child support for the adult child's benefit, is nothing short of a private taking, i.e., a government-coerced transfer of property from  adult person to another, without any showing of liability on the part of the obligated person other than the artificial creation of a statutory duty.

If such a legal contrivance can exist, then there is nothing to stop the state from creating a legal duty to transfer any property from any person to any other, at any time and for any reason, and without just compensation.

It would be one thing if the child were still subject to the parent's custody and guardianship -- for example if the state were to increase the age of majority to 21 years of age, as it once was in the past. Under this circumstances, it could be reasonably said that the parent has a duty to raise his/her child to adulthood, and the child is an innocent.

But an adult child is no innocent. The child is free to leave the state, to marry, to contract -- in short, the child is free to pursue life, liberty, and property, in exactly the same manner as his or her parent, or any other person in the U.S.

The law as constructed does not even suggest the classic test of civil liability, that "but for" the parents divorce, or failure to marry, the child would have had financial support for a college education. Instead, the law simply dictates that a parent will pay for the adult child's education, because the law says so.

Were this adult child an unrelated person, say, the obligated parent's next door neighbor, could the state create such a duty and not violate the "takings" clause? Of course not. No one would ever suggest that one adult has some inherent duty to render up his property to his neighbor simply because that neighbor wishes to get a college educaton. To suggest this is nonsensical.

Yet, an adult child is, in every meaningful legal way, no different than a neighbor to the obligated parent. It may be convenient to say that it's the parent's child. But what of it? Suppose the state passed a law mandating the duty of a parent who is a homeowner to pass title to that home to his or her child at the age of the child's majority for the sole reason that there is a parent-child relationship between the parties. Would that not qualify as a "taking" under the 5th Amendment? Of course it would.

Well that is EXACTLY what the state is doing by creating a duty to pay for an adult child's college education. There is NO difference whatsoever.

And, as there is no difference, the state cannot do it. It is an absolute violation of the 5th Amendment based on well-established case law precedent that makes such transfers prohibited as private takings.

For all of the foregoing reasons, we hereby request that the court declare that the current order obligating (Petitioner/Respondent) to be a violation of the 5th Amendment to the Constitution of the United States of America, and vacate the offending provisions of the aforementioned order forthwith.

Hmmm...not too bad, if I do say so myself.

[Bubbles]

Did you hear my jaw hitting the floor?  This is beautifully written and I think my eyes are going to fall out of my head, I'm so stunned.

Hope that it wasn't my meandering (at times) posts that annoyed you.  But you're right, the whole situation is just annoying for us (there are much more personal things that I did leave out that point this as revenge on the part of the mother).  Now and then I can't help but get emotional on the part of this particular ex-wife.

Thank you for bearing with me and your thorough"ness".  I will put my motion together over the weekend; it will take some thinking to put together the other factors with this beautiful addition.

Again, thank you.

Bubbles(Margaret)

[socrateaser]

If you're gonna try to declare a law unconstitutional, you need to serve the motion on the county District Attorney, and probably the State Attorney General, also (not sure about WA law on this issue, but a courtesy copy may be appropriate).

Like I said, there's a lot of stuff that ought to be in this argument, to make it really solid. I haven't distinguished between public and private takings, as they are different issues, but both prohibited under the 5th Amendment. Private takings are particularly interesting because the U.S. Supreme Court citations inevitably refer to Justice Oliver Wendel Holmes, arguably the most important jurist in the history of American Law.

Anyway, be careful making this argument without an attorney, unless, of course, you are one. Judges treat people who make constitutional challenges without representation, sort of like they would treat a garage-door installer who tries to practice brain surgery -- not that I have anything against garage-door installers, mind you.