Class action suit for equal custody - a must read

[VeronicaGia]

http://www.foxnews.com/story/0,2933,133875,00.html

The first few paragraphs:

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.

[Lawmoe]

Unfortunately, the lawsuit was poorly drafted and has little to no chance of success.  As a result, though well intentioned, is just a lot of wishful thinking.  It is rather amazing that they were able to coordinate so many lawsiuts in different jurisdictions. Maybe that alone will make the legislatrs take note.  However, there are far to many problems with the underlying complaint and case.

The Complaint is overly long, rambling and not specifically crafted to address necessary jurisdictional questions necessary in a federal pleading.

Moreover, 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.

Additionally, the complaint lists itself as a "Class Action" portion.  However, the proponents have done nothing to follow feederal law to have the case certifiesd as a class action. A case does not become a class action simply because you call it one. It is unlikely to qualify.

There is also no real federal question to warrant having the case heard in Federal Court.  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.