class action lawsuit in 28 states!

[alienateddad]

I've come out of "lurk mode" to spread the news!  It looks like there may be a light at the end of the tunnel for all of us and our children.

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

[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 " 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.

[Peanutsdad]

Damn LawMoe!! LOL  


Ok, how SHOULD they have gone about the suit? I really am interested in hearing your thoughts on something like that.

[Lawmoe]

I am not sure that there was a right way to go about the suit since  I  do not believe it has a legal leg to stand on.  Nonetheless, the exposure of even a flawed lawsuit exposes the issue and may result in legislative change.  

Seeking legislative change , by the way, it the only valid way to address the issue.

[Peanutsdad]

So in essence, it's a publicity stunt.


But damn,, what a stunt, eh?

[Lawmoe]

I don't think it was intended as a publicity stunt.  I just believe it was misguided in its legal premise.  As a result, I believe that is the best it can hope for is punlicity, and, it appears to have done a good job drawing attention to the issue so far.

I am a bit surprised at some of the states where it was filed. For example, filing was attempted in Wisconsin. However, Wisconsin laws already have a presumption to maximize time with each parent which is interpreted by the Courts I have been in as a rebuttable presumption for shared placement, which is what the lawsuit seeks.  

I also believe that the Wisconsin filing was either rejected or dismissed as predicted --because the Complaint failed to state a short and concise statement of the Cause as required under the Federal Rules of Civil Procedure.

I believe that there are plans to revise it and refile.  In fact, that may have already occurred.

[FleetingMoment]

That's the key for all good fathers out there. The publicity stunts don't work. The tactics pulled by members of groups such as Fathers4Justice do nothing but demean fathers. Jumping on the bandwagon is not the way to go.

If it's necessary to start "alone" then do it that way, but approach the people who have the capacity to change the laws. Your congress and senate people. Your lobbyists. On a smaller quieter scale, you'll all be amazed at what you can accomplish not only for your children but for yourselves.

[Danae]

Out of my two year Lurk.....

I have perused the lawsuit and all its filings, and it is Legit.

The premise of the suit is to level the playing field for BOTH parents, and the kids. It is meant to force the Fed. Gov. to take over the issues of CHILD SUPPORT, how the numbers are generated, and to make it a FEDERAL issue, the COST of raising a child. There is NO state in the US that currently has an ACCURATE list of what those actual costs are. ALL of them go by the mistaken premise that the Cost of a kid goes UP with income. Oops, even a 5th grader can understand proportions. The cost goes DOWN as income goes up. The whole point is to force the states to start using real numbers instead of the utterly unfair and incorrect ones they use now, and to PERMINATELY stop the Unconstitutional seizure of assets, licenses, tax returns, and anything else the STATE deems necessary in ruining a NCP's life, in the name of the "Child". The states are making MILLIONS of dollars off this industry and it is time for it to stop. Anyone who has faced the garnishment of their wages (we got nailed with 1000$ a month at one point, done ILLEGALLY by the state of Washington Child support services, WHILE THERE WAS AN OPEN PATERNITY CASE IN KING COUNTY!!! Blatantly Illegal, by their OWN rules! But they did it anyway! We had to file an injunction to make it stop! We got off easy! TONS worse happen every day!)

This has been filed in District Court, in at least one District per state, making it a Federal issue, and all the District cases are linked. So literally, there will be a panel of judges hearing the case, and once the decision is made, then it will apply Nationally.  

On a Constitutional Basis, the case has merit. A lot. There are far too many instances across the Nation where decisions made arbitrarily by individual States in order to procure Federal funding for their "Child Support" procurement bureaucracy, have taken the rights from NCP's and Children with out Just Cause, or any cause. The power of the case is in the numbers of those who join it. Think of it as an opportunity to have Millions of disenfranchised NCP's speak with one voice and scream, STOP IT!! And make it stick. Frankly, we are sick and tired of getting raped by the state. I don't have the $$ to file a Constitutional Challenge to the Laws! This is my only chance to exercise my rights since well, since the poor kid was born.

There is another aspect, anyone who has been through a full trial knows that the nature of the case can change or be amended during the process. If there are issues that the suit should be dealing with but has not yet been addressed, as a party to the suit, you have some influence in what is in it and what isn't. How much I have no idea, but more than if you are not.

We have joined the case in Washington. It is our chance to nail the State for its Unconstitutional, and Illegal treatment of us and all the NCP's they have screwed over the last 30 years. This case is about JUSTICE. Not money, or monetary awards. It is about Justice. That is why we joined it! That is why I am asking everyone to join in their state. It is the best way so far in the last 30 years for all of us to make our voices heard, and to get some bloody change. TIME FOR US TO HAVE OUR SAY! Stop taking our RIGHTS away from us!!!

Most respectfully,
Danae

[Lawmoe]

The filing is legit, however, it is poorly drafted, fails to state a judiciable federal question along with a myriad of other problems.   Nonetheless, it is an excellent effort and should draw legislative attention which is really the avenue that needs to be explored.

I have little to no hope for teh suits, but great hope for their impact.

[Danae]

I have to disagree. So does my Lawyer. It is an issue of violations of Rights underlined in the Constitution. Certainly our rights have been violated, and we had it easy compared with a lot of other people! the point is, the more that join the suit, the more weight it has. The more weight it has, the more likely it is to be heard.

Legislation is NOT the way to go. Just WHO is going to introduce THAT in the House or Senate??? Not ONE of our reps in either house is willing to take this on. Both parties consider it a looser of an issue. So we are stuck. Our only recourse is to file it in Federal District Court. A Class action is designed for EXACTLY that purpose, to represent a class of people disenfranchised for what ever reason. Certainly they said that about Big Tobacco, it could never be done, it was poorly written ect ect., Oops, the plaintifs one that one against HUGE odds. It can be done.

Not only is this Legit, it has a damn good chance of getting to Trial. So if some of the language needs to be changed, that is certainly something that will be addressed! Good God! OUR cases certainly changed significantly from the original filings! Refinment is part of the process. If you don't agree with some of the language, then offer your advise rather than dismissing the best chance we have had for change in the last 30 years!!!

This case might take years, but hell, what else is happening on our behalf?? Exactly Nothing, and that is most certainly a significant point.

better SOMETHING than Nothing!!!

Danae