A must read...

[Gecko]

[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.

[c_alexander]

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?

[MYSONSDAD]

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"

[MYSONSDAD]

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"

[Peanutsdad]

bump

[c_alexander]

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.

[Bolivar]

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.

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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.

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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.

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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.

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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.

[catherine]

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.

[nosonew]

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.

[MYSONSDAD]

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.