THE CONSTITUTIONAL RIGHT TO BE A PARENT
http://www.childrensjustice.org/cases1.htm
US SUPREME COURT DECISIONS
http://www.fathersforlife.org/families/sprmcrt.htm
JOINT LEGAL CUSTODY:
http://www.hofstra.edu/PDF/law_bozzomo.pdf
PARENTING AS A FUNDAMENTAL RIGHT
http://www.gocrc.com/constitution.html
CONSTITUTIONAL LAW SUMMARY FOR PARENTS
http://www.kids-right.org/const_summary.htm
A filed suit awaiting a hearing.
http://www.givemeliberty.org/RTPLawsuit/InfoCenter.htm

And 2 docs with no links:
Childs Best Interest Constitutional Arguments


I. Jurisdictional Challenge

A statutory grant of jurisdiction is trumped if a parent objects and cites
constitutional protections. This blocks a judge from hearing any petitions
regarding a child, excepting only allegations the child is abused or neglected,
or is in substantial harm for another reason.

The petition must also contain specific, good faith allegations that denial of
the visitation will cause real and significant harm to the child. [T]hat degree
of harm requires more than a determination that visitation would be in the
child’s best interest. It must be a degree of harm analogous to the kind of harm
contemplated by §§ 46b-120 and 46b-129, namely, that the child is ‘‘neglected,
uncared-for or dependent.’’ The degree of specificity of the allegations must be
sufficient to justify requiring the fit parent to subject his or her parental
judgment to unwanted litigation. Only if these specific, good faith allegations
are made will a court have jurisdiction over the petition. Roth v. Weston 789
A.2d 431, 450 (Conn.2002)


Separately the portion of T.C.A. § 36-6-101(a)(1) which purports to grant a
judge jurisdiction of a parent and child, "Such decree shall remain within the
control of the court and be subject to such changes or modification as the
exigencies of the case may require.", is facially unconstitutional under the
Tennessee and United States Constitutions. Hence no statutory grant of
jurisdiction exists to begin with and no injunctions can be issued against a
parent, and any standing orders issued via the invalid statute are unenforceable
and null and void.

Subject matter jurisdiction can only be conferred by statute or constitution.
The issue of subject matter jurisdiction is not waivable and thus may be raised
at any time, regardless of whether any objection to the assertion of
jurisdiction was made at the trial court level. Any order entered by a court
without subject matter jurisdiction is a nullity and is therefore unenforceable.
Mora v. Mora W1999-02483-COA-R3-CV (Tenn.App.2001) (citations omitted)

If there is other law which purports to grant continuing jurisdiction, personal,
subject, or other, over the parent and child, the Defendant avers they are
equally infirm.


II. Constitutional Challenge


Parental rights predate constitutional law.

The right to family autonomy and privacy acknowledged in the common law has been
recognized as so fundamental as to merit constitutional protection. Castagno v.
Wholean 684 A.2d 1181, 1186 (Conn.1996)


Constitutional guarantees described in case law such as grandparent visitation
rulings apply to divorced parents.

We believe the parents’ constitutional right of privacy as found by our Supreme
Court in Hawk is applicable here where we have two fit parents, even if those
parents are now divorced. Stillwell v. Stillwell p.5. No. E2001-00245-COA-R3-CV
(Tenn.App.2001)

It is indisputable that parental rights are fundamental liberty interests under
both federal and state constitutions.

The fundamental liberty interest of natural parents in the care, custody, and
management of their child is protected by the Fourteenth Amendment. Santosky v.
Kramer 455 U.S. 745, 753 (1982)


Tennessee’s historically strong protection of parental rights and the reasoning
of federal constitutional cases convince us that parental rights constitute a
fundamental liberty interest under Article I, Section 8 of the Tennessee
Constitution Hawk v. Hawk 855 S.W.2d 573, 579 (Tenn.1993)


It is equally beyond dispute that natural parents have fundamental privacy
interests.

Throughout this century, this Court also has held that the fundamental right to
privacy protects citizens against governmental intrusion in such intimate family
matters as procreation, child-rearing, marriage, and contraceptive choice.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 926-927
(1992) (Blackmun, concurring in part, and dissenting in part)


Statutes and rulings which impinge on fundamental rights are presumptively
unconstitutional.

It is well settled that, quite apart from the guarantee of equal protection, if
a law "impinges upon a fundamental right explicitly or implicitly secured by the
Constitution [it] is presumptively unconstitutional." Harris v. McRae 448 U.S.
297, 312 (1980)


Fundamental rights have strict scrutiny applied.

Determining whether an asserted interest is fundamental is essential because
fundamental rights receive special protection under both federal and state
constitutions. Federal case law uniformly holds the government regulation of the
exercise of fundamental rights is unconstitutional unless the regulations both
serve a compelling governmental interest and are narrowly tailored to serve that
interest. Tennessee courts have adopted this "strict scrutiny" approach in
regard to fundamental rights without exception. Planned Parenthood of Middle
Tennessee v. Sundquist No. M1996-00060-SC-R11-CV p.12 (Tenn.2000) (citations
omitted)


[W]e conclude that, consistent with the court’s determination that a parent’s
interest in the care, custody and control over his or her children is ‘‘perhaps
one of the oldest of the fundamental liberty interests recognized by [the]
Court’’; Troxel v. Granville, supra, the application of the strict scrutiny test
is required to any infringement it may suffer. Roth v. Weston 789 A.2d 431, 441
(Conn.2002) (citation omitted)

No Tennessee statute has ever survived strict scrutiny.

[T]he application of strict scrutiny is not flexible at all, and I can find no
case in this state where application of this standard has resulted in upholding
the challenged law. Planned Parenthood of Middle Tennessee v. Sundquist No.
M1996-00060-SC-R11-CV p.20 (Tenn.2000) (Barker, dissenting) (this opinion not at
odds with majority)


To survive strict scrutiny, the state must first prove its compelling interest.
With regards to parental rights, states’ case law describes this as "substantial
harm" or a derivative of it.

[W]e believe that when no substantial harm threatens a child's welfare, the
state lacks a sufficiently compelling justification for the infringement on the
fundamental right of parents to raise their children as they see fit." Hawk v.
Hawk 855 S.W.2d 573, 577 (Tenn.1993)


Beagle v. Beagle (Fla.1996) state can satisfy compelling interest required under
state constitution when acting to prevent harm; Brooks v. Parkerson (Ga.1995)
holding that ‘‘state interference with parental rights to custody and control of
children is permissible only where the health or welfare of a child is
threatened’’ under both state and federal constitutions; In re Herbst
(Okla.1998) ‘‘[a]bsent a showing of harm, [or threat thereof] it is not for the
state to choose which associations a family must maintain and which the family
is permitted to abandon’; Hawk v. Hawk (Tenn.1993) ‘‘[t]he requirement of harm
is the sole protection that parents have against pervasive state interference in
the parenting process’’ contrary to their state constitutional right; Williams
v. Williams (Va.1998) holding that for ‘‘compelling state interest’’ to exist
under fourteenth amendment, justifying order of visitation over objection of
child’s parents, court must find actual harm to child’s health or welfare
without such visitation; In re Custody of Smith (Wash.1998) ‘‘[s]hort of
preventing harm to the child, the standard of ‘best interest of the child’ is
insufficient to serve as a compelling state interest [under the fourteenth
amendment] overruling a parent’s fundamental rights’’. Roth v. Weston 789 A.2d
431, 445-446 (Conn.2002) (citations omitted)


The legal term "substantial harm" and its synonyms are identical to a state’s
abuse and neglect statutes.

[T]he only level of emotional harm that could justify court intervention is one
that is akin to the level of harm that would allow the state to assume custody
under General Statutes §§ 46b-120 and 46b-129- namely, that the child is
‘‘neglected, uncared-for or dependent’’ as those terms have been defined. Roth
v. Weston 789 A.2d 431, 445 (Conn.2002)


The courts have not undertaken to define the circumstances that pose a risk of
substantial harm to a child. These circumstances are not amenable to precise
definition because of the variability of human conduct. However, the use of the
modifier "substantial" indicates two things. First, it connotes a real hazard or
danger that is not minor, trivial, or insignificant. Second, it indicates that
the harm must be more than a theoretical possibility. While the harm need not be
inevitable, it must be sufficiently probable to prompt a reasonable person to
believe that the harm will occur more likely than not. Ray v. Ray No.
M2000-00895-COA-R3-CV p.6-7 (Tenn.App.2001)


Lacking a requirement that a child is or ever was proven to be in substantial
harm, T.C.A. § 36-6-101(a)(1) is facially unconstitutional. Also, had that
threshold been met, it falls to a second due process substantive mandate, that
any orders issued be as narrow as possible.

To satisfy strict scrutiny, the State must show that [a statute] furthers a
compelling state interest by the least restrictive means practically available.
Bernal v. Fainter 467 U.S. 216, 227 (1984)

In addition to the above due process problems, T.C.A. § 36-6-101(a)(1)
unnecessarily creates two classes of parents (custodial and non-custodial) out
of essentially similarly situated persons, thus committing an equal protection
under-inclusive violation (treats persons with the same capabilities
differently). Also it discriminates against non-married parents, who may be
identically situated to married ones, hence creating a second under-inclusive
violation. Additionally the statute automatically places fit parents in the same
group as unfit ones and subjects them all to the best interest of the child
legal standard, thus causing an equal protection over-inclusive violation
(treats persons with different capabilities the same, and sweeps in more than it
should).

[T]he reviewing court must determine whether the proffered justification is
"exceedingly persuasive." The burden of justification is demanding and it rests
entirely on the State. The State must show ‘at least that the [challenged]
classification serves ‘important governmental objectives and that the
discriminatory means employed’ are ‘substantially related to the achievement of
those objectives.’ The justification must be genuine, not hypothesized or
invented post hoc in response to litigation. And it must not rely on overbroad
generalizations []. United States v. Virginia 518 U.S. 515, 533 (1996)


The Supreme Court of the United States has applied two basic tests in
determining violations of equal protection. The "rational connection" test is
the traditional approach, but the one most appropriate in this case is the
"compelling state interest" test. Under this test, any classification which
penalizes the exercise of a fundamental constitutional right is unconstitutional
unless the State can show a compelling government interest. Knowlton v. Board of
Law Examiners 513 S.W.2d 788, 790 (Tenn1974)


Frequently the legal community uses the term "Best Interest of the Child" to
gloss over constitutional mandates. "Best Interests" is actually a legal
standard placing the trial judge, and hence the state, superior to fit parents.
It’s only properly used after parental rights are terminated, and should appear
in no statutes or rulings unless such rights are first terminated.

In light of the compelling interest at stake, the best interests of the child
are secondary to the parents’ rights. Brooks v. Parkerson (finding it
‘‘irrelevant’’ to constitutional analysis that visitation may be in best
interest of child); Rideout v. Riendeau (‘‘something more than the best interest
of the child must be at stake in order to establish a compelling state
interest’’); In re Herbst (noting that court does not reach best interest
analysis without showing of harm; absent harm, no compelling interest); Hawk v.
Hawk, (holding that best interest of child is not compelling interest warranting
state intervention absent showing of harm). Otherwise, ‘‘[the best interest]
standard delegates to judges authority to apply their own personal and
essentially unreviewable lifestyle preferences to resolving each dispute.’’
Rideout v. Riendeau. Roth v. Weston 789 A.2d 431, 443-444 (Conn.2002) (citations
omitted)


The burden is on the state, not parent, to prove all four prongs of due process
and equal protection guarantees are met. The state hasn’t, and can’t do that,
and so the portion of T.C.A. § 36-6-101(a)(1) which purports to grant a judge
jurisdiction over parents and children must fall, as do any standing orders.

Under the strict scrutiny standard, it is the State’s burden to show that the
regulation is justified by a compelling state interest and narrowly tailored to
achieve that interest. Planned Parenthood of Middle Tennessee v. Sundquist No.
M1996-00060-SC-R11-CV p.20 (Tenn.2000)


Requiring a State to demonstrate a compelling interest and show that it has
adopted the least restrictive means of achieving that interest is the most
demanding test known to constitutional law. City of Boerne v. Flores 521 U.S.
507, 534 (1997)


++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Notes on above sections.


1-3. The key to a judge’s power is jurisdiction. Lacking that no orders can be
issued, and the judge can be sued or even jailed for any that are. Blocking
jurisdiction is really the only way to stop legal practitioners from plundering
families and harming children. Once they have it, as Jefferson said they will
work like gravity to stealthily expand it. Parents would be on their own to work
out caregiving arrangements, and if they were in disagreement which placed the
child in substantial harm (such as each attempting to take the child to opposite
sides of the country), they could file a petition for a judge to hear that
narrow issue.

5. Defense of current statutes and practices will likely include absurd
statements such as "The 14th Amendment doesn’t apply to divorcing parents.", or
"Constitutional law doesn’t apply in juvenile (or chancery) court.". In
Stillwell an appellate court provided an explicit link from fit divorced parents
to case law where 14th Amendment protections are present, thus refuting them.

7. Liberty is the right to do as you wish with your child, and Privacy is the
right for no one to inquire into what you are doing. Privacy rights can only be
overcome with an allegation the child is in substantial harm, Liberty by proving
such harm is present. The Privacy provision can be used to shut down a custody
proceeding thusly, every time opposing counsel speaks of your parent-child
relationship object on fundamental privacy grounds. Do the same for attempts to
order a custody investigation or mental health examinations, assign a Guardian
At Litem, etc. If successful, and legally you should be, the judge will have no
information upon which to assign custody or issue any orders.

9. You must argue for strict scrutiny, and back this up with case law from your
state. Note the statement by the Connecticut Supreme Court in Roth that "the
application of the strict scrutiny test is required to any infringement it
[parent’s liberty interest] may suffer." Not only is the statute subject to
strict scrutiny, but so is each separate judicial order as they all individually
infringe into the parent-child relationship.

11. Substantial harm or its derivatives are identical to a compelling state
interest or state’s abuse statutes. Watch out for sleight of hand tricks such as
done by the Tennessee Supreme Court in Hawk. There they substituted the term
"harm" for "substantial harm", in an attempt to create the illusion the due
process mandate of compelling state interest had been met.

15. The term "Best Interest of the Child" is Owellian speak and must be amended
out of every statute where fit parents are involved. It’s a legal standard which
gives the state a free hand to determine a child’s future, and is only properly
used after both parents rights have been terminated.

16. If you raise the four prongs of due process and equal protection, the state
has to prove all of them are met. Attorneys never ask this of a judge, and
instead focus on one part of due process or equal protection. This creates
loopholes which may allow for an improper ruling. Argue for all four.

Requested Remedy: If the judge is able to retain jurisdiction, and he probably
will, the next narrowest intervention is keeping the parents in one class by
alternating primary custody between them. Anything beyond that such as creating
a permanent custodial parent, dividing parenting time 50/50 and setting a rigid
parenting schedule, will be held unconstitutional if the above arguments are
used.



FAMILY LAW REFERENCE- another doc with crapola link

Family Law Reference for Parents
_____________________________________

This is the first update to a paper written as a guide for parents and legal
professionals on family law. Primarily it is the words of the judges themselves,
with some commentary to help explain concepts. Upon updating it became so
complicated that it needed to be divided into two parts, and this is now the
introductory one. If you wish to learn in more depth, this documents big brother
(with full case citations) is available to officersof Childs Best Interest, or
to judges and state attorney generals when they send a request on their
letterhead to: 357 Dove Valley Collierville, TN, 38017.

The relation between family and constitutional law needs to be clearly
understood. Constitutional law has "bright lines" that identify areas where the
state cannot tread. As of today all states' family law consists of a jumble of
rules and practices, many of which have little to no relation to these bright
lines. The ensuing disorder allows judges great and improper discretion.

As I update the original paper, and so to with writing the original, no help was
provided from legal professionals. We told hundreds of lawyers, judges,
appellate justices, law school professors, state representatives and senators,
and attorney generals about the problems in family law. None attempted to refute
or add to the information. On a better note, many good rulings have recently
been released by the Tennessee Middle and Eastern Section Appellate Courts.
Nevertheless, it is clear today there is total failure in family law, and the
legal profession in general.

Most of the research and development fell to me, with others providing real and
useful input. Don, Chuck, and Dennis, of Ohio PACE, Mike "MD/JD" in California,
Murray in Virginia, Karen in Alabama, members of Childs Best Interest across the
U.S., and shared parenting advocates who acted as sounding boards and provided
assistance in other small or large ways. Also help from the kind student
librarians at the University of Memphis Law School Library was very useful and
appreciated.

Today in most family law cases attorneys are not raising a constitutional shield
to protect their clients. And when they fail to do that, a very cruel thing
happens. Not only are one or both parent's ability to parent their child
indefinitely suspended with the state taking permanent jurisdiction of their
child, but in legal terminology they will be considered to have voluntarily
waived their right to parent their child! That's pretty harsh to say a parent
has voluntarily given this up, when it was only the attorney who failed to raise
the constitutional arguments, but that's the legal standard. If you are a parent
not in an intact married relationship, or out of one and haven't been designated
the primary caregiver, somewhere along the line you surrendered your right to
parent your child.

The following pages are to help all parents understand their rights in relation
to raising their children. Having this knowledge will allow you to defend
yourself and your child if ever required.

This document may be freely reproduced, and if doing so please credit the
author. If you are in an actual case, please remember this information is not
legal advice. Every case is unique and must be tailored accordingly by a
litigant acting as their own attorney, or an actual one.

Section 1 Controlling Law

Sections of the Constitutions where parental rights derive

The fundamental liberty interest of natural parents in the care, custody, and
management of their child is protected by the Fourteenth Amendment. Santosky v.
Kramer United States Supreme Court (1982)

The rights of parents to the care, custody and nurture of their children is of
such character that it cannot be denied without violating those fundamental
principles of liberty and justice which lie at the base of all our civil and
political institutions, and such right is a fundamental right protected by
First, Fifth, Ninth, and Fourteenth Amendments. Doe v. Irwin United States
District Court of Michigan (1977)

Tennessee's historically strong protection of parental rights and the reasoning
of federal constitutional cases convince us that parental rights
constitute a fundamental liberty interest under Article I, Section 8 of the
Tennessee Constitution Hawk v. Hawk Tennessee Supreme Court (1993)

Parents have comparable interests under our state constitutional protections of
liberty and privacy rights. "The right to the custody and control of one's child
is a fiercely guarded right in our society and in our law. It is a right that
should be infringed upon only under the most compelling circumstances." Brooks
v. Parkerson Georgia Supreme Court (1995)

A parent's constitutionally protected right to rear his or her children without
state interference, has been recognized as a fundamental "liberty" interest
protect by the Fourteenth Amendment and also as a fundamental right derived from
the privacy rights inherent in the constitution. In re Smith Washington Supreme
Court (1998)

[A] parent's right to the care, custody, and control of his or her children is a
fundamental right protected by article I, section 8 of the Iowa Constitution.
Santi v. Santi Iowa Supreme Court (2001)

Parental Autonomy is the condition that exists when a child is not subject to a
judge's jurisdiction

Parental autonomy is grounded in the assumption that natural parents raise their
own children in nuclear families, consisting of a married couple and their
children. The family has been seen as the "basic building block" of society.
Parental autonomy strengthens the family and the entire social fabric "by
encouraging parents to raise their children in the best way they can by making
them secure in the knowledge that neither the state nor outside individuals may
ordinarily intervene." In re Smith Washington Supreme Court (1998) Note 1: We
are aware of 1 parent outside of an intact married family receiving parental
autonomy via a consent order. Wickman v. Dixon No.DR-96-1360.01C p.489. Note 2:
Presumably parental autonomy exists in adoptive families with either one or two
parents, and in natural parents who have sole custody with the other parent's
rights terminated, so it is not tied to married parents.

Parental Rights are Fundamental Liberty Interests

The liberty interest at issue in this case - - the interest of parents in the
care, custody, and control of their children -- is perhaps the oldest
of the fundamental liberty interests recognized by this Court Troxel v.
Granville United States Supreme Court (2000)

It is well-settled that parents have a liberty interest in the custody of their
children. Hence, any deprivation of that interest by the state must
be accomplished by procedures meeting the requirements of due process." Hooks v.
Hooks United States Court of Appeals (1985)

Indeed, the right to rear one's children is so firmly rooted in our culture that
the United States Supreme Court has held it to be a
fundamental liberty interest protected by the Fourteenth Amendment to the United
States Constitution. Hawk v. Hawk Tennessee Supreme Court (1993)

Parental Rights also contain Fundamental Privacy Interests

"[p]rivate realm of family life which the state cannot enter" Prince v.
Massachusetts United States Supreme Court (1944)

Throughout this century, this Court also has held that the fundamental right to
privacy protects citizens against governmental intrusion in such intimate family
matters as procreation, child-rearing, marriage, and contraceptive choice.
Planned Parenthood of Southeastern Pennsylvania v. Casey United States Supreme
Court (1992)

Statutes and rulings that infringe upon fundamental rights are presumptively
unconstitutional, and a substantial burden rests on the state, not citizen,
to prove its case

It is well settled that, quite apart from the guarantee of equal protection, if
a law "impinges upon a fundamental right explicitly or
implicitly secured by the Constitution it is presumptively unconstitutional."
Harris v. McRae United States Supreme Court (1980)

The application of strict scrutiny is not flexible at all, and I can find no
case in this state where application of this standard has resulted in upholding
the challenged law. With the adoption of strict scrutiny, this Court has forced
the State of Tennessee into an "all-or-nothing" scenario, where only the most
impeccably drafted legislation withstands the slightest possibility of darkening
the constitutional doorway. Planned
Parenthood of Middle Tennessee v. Sundquist Tennessee Supreme Court (2000) Note:
This citation goes beyond saying infringements on fundamental parental rights
are presumptively unconstitutional, and clearly states essentially no
legislative restrictions on parents will be upheld.

If the classification affects fundamental rights however, there is no
presumption of constitutionality, and the classification will be sustained
only if justified by a compelling state interest. Coles v. Ryan Illinois Appeals
Court (1980)

==============================

The Fourteenth Amendment guarantees Due Process and Equal Protection to all

"[n]o state shall. deprive any person of life, liberty or property, without due
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws" U.S. Const. Amend. XIV, § 1

==============================

The state must meet a threshold prior to infringing upon fundamental rights

First, according to the Washington Supreme Court, the Constitution permits a
State to interfere with the right of parents to rear their children only to
prevent harm or potential harm to a child. Section 26.10.160(3) fails that
standard because it requires no threshold showing of harm. Troxel v. Granville
United States Supreme Court (2000)

The right of a parent not to be deprived of parental rights without a showing of
fitness, abandonment or substantial neglect is so fundamental
and basic as to rank among the rights contained in the State and Federal
Constitutions" In re J.P. Utah Supreme Court (1982)

Likewise, following the analysis of the Tennessee Supreme Court in interpreting
its state statutes and constitutions, we find that implicit in Georgia cases,
statutory and constitutional law is that state interference with parental rights
to custody and control of children is permissible only where the health or
welfare of a child is threatened. Brooks v. Parkerson Georgia Supreme Court
(1995)

For the constitutional requirement to be satisfied, before visitation can be
ordered over the objection of the child's parents, a court must find an
actual harm to the child's health or welfare without such visitation. Williams
v. Williams Virginia Supreme Court (1998)

Examples of Tennessee's threshold standard

In 1993 in a grandparent visitation case the Tennessee Supreme Court held, "we
believe that when no substantial harm threatens a child's welfare, the state
lacks a sufficiently compelling justification for the infringement on the
fundamental right of parents to raise their children as they see fit." Hawk v.
Hawk Tennessee Supreme Court (1993)

In a 1995 parent vs. third party custody case, "Therefore, in a contest between
a parent and a non-parent, a parent cannot be deprived of the custody of a child
unless there has been a finding, after notice required by due process, of
substantial harm to the child. Only then may a court engage in a "best interest
of the child" evaluation in making a determination of custody." In re Adoption
of a Female Child Tennessee
Supreme Court (1995)

In a 1999 parental rights termination case, "Therefore Bond stands for the
proposition that a natural parent may only be deprived of custody of a
child upon a showing of substantial harm to the child." In re Askew Tennessee
(1999)

A July 2001 parental abuse case, "In furtherance of that goal, and in the best
interests of Pamela due to a threat of substantial harm, the juvenile court
ordered a termination of visitation." "Although parents' have a right to raise,
care for and have the companionship of their child under both Tennessee and U.S.
Constitutions, these rights can be infringed upon if the court finds substantial
harm threatens a child's welfare." "The court made clear that there must be a
threshold finding of harm before the state can intervene in a parent-child
relationship; however, once this finding of harm to the child is made, a
determination of custody is made based on the "best interest of the child". This
threshold finding of substantial harm was made when Pamela was found by the
juvenile court to be abused, dependent, and neglected and removed form the
custody of her parents and placed in foster care." DCS v. Cox Tennessee Appeals
Court (2001)

An August 2001 divorced parent v. parent case, "We believe the parents'
constitutional right of privacy as found by our Supreme Court in Hawk is
applicable here where we have two fit parents, even if those parents are now
divorced. Additionally, we believe the constitutional rights under the Second
Amendment of the United States Constitution as well as Article I, Section 26 of
the Tennessee Constitution are worthy of the same protection as is the
constitutional right to privacy discussed in Hawk. Accordingly, the Trial Court
could not restrict Father's otherwise lawful possession of a firearm absent a
showing of risk of substantial harm to the child. The Trial Court made no such
finding." Stillwell v. Stillwell Tennessee Appeals Court (2001) Note: This may
be the first and only U.S. case where a harm standard was applied to divorced
parents.

A standardized threshold (bright-line rule) is needed

Many threshold terms are in use, and the best seems to be "severe harm". It
has a proper sense of urgency which strikes a balance between too low of
threshold terms such as "harm" which implies virtually no barrier, and too high
of ones like "serious danger" implying an impossible hurdle. When combined with
the designation as a "bright line rule" that cuts cleanly and clearly between
the state and parents in all circumstances, a trial judge will have no problem
properly applying family law to any circumstance that he or she faces.

The state may not apply the best interest of the child standard nor infringe in
the parent-child relationship prior to proving that a child is in severe harm

We too, agree that neither the legislature nor a court may properly intervene in
parenting decisions absent significant harm to the child from those decisions.
In so holding, we approve the logic of Santosky v. Kramer which applied a
two-step process to child neglect cases leading to foster family placement. In
Santosky, the Supreme Court approved New York's bifurcated proceeding requiring
the state first to establish paternal unfitness before placing a child in foster
care. This procedure assures parents that a "best interest of the child"
analysis will not pit them against potential foster parents; rather, the state
consider a child's "best interests" until the natural parents have been declared
unfit. Hawk v Hawk Tennessee Supreme Court (1993) Note: In a case where parental
rights are infringed to a much lesser degree than in a parent v. parent custody
case, the Tennessee Supreme Court clearly states parents must be declared
"unfit" prior to "best interests" being applied.

The proof in this case supports the trial court's finding that the father is not
unfit to have custody, and that he has developed a substantial relationship with
the child. It shows that the child is in no danger of substantial harm. The
father, therefore, has a fundamental interest in parenting the child which
precludes a "best interest" determination of custody. Petrosky v. Keene
Tennessee Supreme Court (1995)

If the threshold of severe harm is found, any orders issued must be so as no
less restrictive remedies can be contemplated

To satisfy strict scrutiny, the State must show that a statute furthers a
compelling state interest by the least restrictive means practically available.
Bernal v. Fainter United States Supreme Court (1984)

Requiring a State to demonstrate a compelling interest and show that it has
adopted the least restrictive means of achieving that interest is the
most demanding test known to constitutional law. City of Boerne v. Flores United
States Supreme Court (1997)

T.C.A. § 36-6-101(a)(1) "In a suit for annulment, divorce or separate
maintenance, where the custody of a minor child or minor children is a question,
the court may,.award the care, custody and control of such child or children.as
the welfare and interest of the child or children may demand" Note: This is
Tennessee's custody statute for divorcing parents. No harm threshold is present,
nor any requirement for narrow tailoring.
This statute is facially unconstitutional on two grounds.

A statute must be followed as written

When "the language contained within the four corners of a statute is plain,
clear and unambiguous, the duty of the courts is simple and
obvious, 'to say sic lex scripta, and obey it." Hawks v. City of Westmoreland
Tennessee Supreme Court (1997)

Thus, a court must "presume that the legislature says in a statute what it means
and means in a statute what it says there." A statute, therefore, must be
construed as it is written. Berryhill v. Rhodes Tennessee Supreme Court (2000)

T.C.A. § 36-6-301 After making an award of custody, the court shall, upon
request of the non-custodial parent, grant such rights of visitation as will
enable the child and the non-custodial parent to maintain a parent-child
relationship. Note: A reasonable definition of the clause "enable the child and
the non-custodial parent to maintain a parent-child relationship" is two to
three overnights per week. Tennessee courts
routinely allow moveaways, long stretches (weeks/months/years) where no
parenting occurs, and other restrictions such as every other weekend visitation.
All of these circumstances violate their own case law, "the language contained
within the four corners of a statute is plain, clear and unambiguous, the duty
of the courts is simple and obvious, 'to say sic lex scripta, and obey it.", and
can be challenged on this basis.

Parental rights are identical between natural parents, without regard to gender
or marital status

The Constitution protects "the interest of a parent in the companionship, care,
custody, and management of his or her children." Stanley v. Illinois
United States Supreme Court (1972)

"The parent and child relationship extends equally to every child and to every
parent, regardless of the marital status of the parents." Johnson v.
Calvert California Supreme Court (1993)

The Nales' position that this Court in Hawk limited the protection of parental
rights to an "intact, nuclear family with fit parents" is untenable. Nale v.
Robertson Tennessee Supreme Court (1994)

Parental Alienation

It is clear to this Court that both parents love their children. What concerns
this Court most, however, and was apparently a concern to the trial court, is
Wife's blatant attempt to alienate the affections of the children from their
father. When loved by both parents, children should be taught to love and
respect each parent equally. The reciprocation, in turn, will garner
self-respect and a positive self image in the children.
The record in this case lends absolutely no reason as to why the children should
not be encouraged to respect and love their father. We do not find the record to
show that Wife has supported such a healthy relationship between parent and
child. Although Wife testified otherwise, her actions speak loud and clear.
Varley v. Varley Tennessee Appeals Court (1996)

Effect on the parent-child relationship by being apart

Between parent and child, there is no monster like separateness. It can grow
even faster than children, shutting first the heart, then the home,
then history. Brooks v. Parkerson Georgia Supreme Court (1995)

Friendly Parent Doctrine

The Court stressed, the parent-child relationship "undeniably warrants deference
and, absent a powerful countervailing interest, protection." Stanley v. Illinois
United States Supreme Court (1972)

Custody and visitation arrangements should promote the development of a healthy
relationship between children and both their parents. Solima v. Solima Tennessee
Appeals Court (1998)

Parent vs. Third Party Custody

Therefore, in a contest between a parent and a non-parent, a parent cannot be
deprived of the custody of a child unless there has been a finding, after notice
required by due process, of substantial harm to the child. Only then may a court
engage in a "best interest of the child" evaluation in making a determination of
custody." In re Adoption of a Female Child Tennessee Supreme Court (1995)

Biological parents have a fundamental liberty interest in the care and custody
of their children under both the United States and Tennessee Constitutions.
These parental rights are superior to the rights of others and continue without
interruption unless a biological parent consents to relinquish them, abandons
his or her child, or forfeits his or her parental rights by some conduct that
substantially harms the child. O' Daniel v. Messier Tennessee Appeals Court
(1995)

Grandparent/third party visitation

This appeal presents the issue of the constitutionality of Georgia's
"Grandparent Visitation Statute", OCGA § 19-7-3. We hold that the statute is
unconstitutional under both our state and federal constitutions, and reverse the
trial court's order to the contrary. Brooks v. Parkerson Georgia Supreme Court
(1995)

Children in state care

Judge Quinones, a Family Court Judge with eight years of experience, described
the conditions of detention as follows:

"Then again, Juvenile Center, as much as we might try, is not the most pleasant
place in the world. If you put them in detention, you are liable to be exposing
these youngsters to all sorts of things. They are liable to be exposed to
assault, they are liable to be exposed to sexual assaults. You are taking the
risk of putting them together with a youngster that might be much worse than
they, possibly might be, and it might have a bad effect in that respect."

Many other observers of the circumstances of juvenile detention in New York have
come to similar conclusions. Schall v. Martin United States Supreme Court (1984)

1st Amendment Protest Guarantees

We have recognized that the First Amendment reflects a "profound national
commitment" to the principle that "debate on public issues should be
uninhibited, robust, and wide-open," This has led us to scrutinize carefully any
restrictions on public issue picketing. Boos v. Barry United States Supreme
Court (1988)

The traditional approach sets forth a bright-line rule: any restriction on
speech, the application of which turns on the content of the speech, is a
content-based restriction regardless of the motivation that lies behind it. Boos
v. Barry United States Supreme Court (1988)

Pro-Se litigant's pleadings

Pro se litigant's pleadings should not be held to the same high standards of
perfection as lawyers. "Significantly, the Haines case involved a pro
se complaint - as does the present case - which requires a less stringent
reading than one drafted by a lawyer. Puckett v. Cox United States Court of
Appeals (1972)

Section 2 Persuasive Arguments

Thus, apart from constitutional problems of using the best interest of the child
standard without a prerequisite showing of harm, the vagueness and subjectivity
of such a standard lends itself to an invasion of family privacy which is
abhorrent to our current society. Kathleen Bean (1985-86) Grandparent
Visitation: Can the Parent Refuse? Note: This statement is equally applicable to
all invasions of the parent-child relationship.

The bible advises input from both parents; "Hear, my son, your father's
instruction, and reject not your mother's teaching;" Proverbs 1:8 Revised
Standard Version

Hubin, Donald (1999). Parental Rights and Due Process. University of Utah
Journal of Law & Family Studies Volume 1 Number 2, 123-150. Note: The best
article on unconstitutionality of family law.

See at:
http://www.cohums.ohio-state.edu/philo/people/faculty/hubin.1/Research/PRDP.PDF

See Childs Best Interest website generally for useful information:
http://childsbestinterest.org

Section 3 Traps

When a legal action is initiated which involves a child, if a parent is not
residing in the same home as the child, he or she will presumptively
be considered as the non-custodial parent. The only way to avoid this trap is to
not leave the home, or allow your child to be taken out of it.

When hiring an attorney, one of the first things they do is request financial
information. This is because they are mentally figuring how much wealth they
will be able to transfer to themselves.

At the filing of a legal action involving a child, if a temporary injunction is
issued to maintain the status quo (keep the child under the care of one parent),
the excluded parent will presumptively be considered as non-custodial. Any
pre-trial orders which impede your ability to parent your child can be
immediately appealed. If you wait for trial, you will waive your right to later
raise these issues.

Pre-trial if a parent consents to pay child support, the judge and both
attorneys will take this as a signal that he or she agrees to be the
non-custodial parent.

Any consent order a parent agrees to (even if it comes after a contested
hearing) cannot be appealed. You do not have to "consent" to anything, even if
your attorney says otherwise. Remember, attorneys are officers of the court, and
quite possibly friends with the judge and opposing attorney. They are required
to zealously represent you, and to uphold the constitution. Expect neither.

Normally an investigation of the parents will be done. This can be anything from
a college volunteer working for CASA, an attorney called a Guardian Ad Litem, a
private investigator, up to a pediatric psychologist. The job of all these folks
is to invade the privacy of your relationship with your child, and transfer as
much wealth as possible to themselves. Also you will either be encouraged or
mandated to attend counseling, to achieve the same goals. Using the above
constitutional citations you can object to any invasion of your privacy and your
child's. If you fail to
object, you waive your rights.

At trial your attorney can have a pre-trial brief prepared which carefully
identifies the applicable laws and how your case applies to those laws
(including of course constitutional law). Very few attorneys will do this. Most
will present your case with no reference to any laws whatsoever, and simply
allow the judge to rule as he or she wishes.

Also at trial both parents are considered to be voluntarily submitting the
question of child custody to the court. Your attorney can assert that you do not
want custody of your child decided by the state. If you don't do this, it will
be considered waived for appeal purposes, as will any applicable state and
constitutional laws not raised by your attorney in his or her oral arguments.

If you ask that the law be followed in your case, expect intimidation tactics
such as your attorney threatening to resign, or being told visitation with your
child will be reduced. If any of this happens, request a brochure or other
method whereby you can file a complaint with your state board of responsibility
against the unlawful attorney. To make a complaint call: 1-800-486-5714

If you receive an unfavorable decision at trial, your attorney can file a motion
to reconsider, or a notice of appeal. If you are appealing there
are strict time limits on this, which if not followed will cause your case to
be thrown out. If you consent to anything at trial, it will not be appeallable.

Appeals are usually taken to a state appellate court, then if needed an
application is filed to your state supreme court (they may be called another
name). The state supreme court has discretion whether to take your case or not,
and they probably won't take it. If your state supreme court does not give you a
favorable ruling, you can appeal properly preserved constitutional questions to
the United State Supreme Court, which virtually never takes a family law case.
Wherever your case finally stops, it will be considered final.

Section 4 Legal Primer

There are three types of law, constitutional, statutory, and case.
Constitutional law is primarily what this paper consists of, it is written by
the people, and everyone must follow it. Statutory law is created by your state
legislature, and the judges and all citizens must follow it as written. Case law
is the judge's interpretation of how constitutional and statutory law apply to
individual cases. Most libraries will have copies of your state constitution,
and statutory laws.

Solima v. Solima 7 S.W.3d 30, at 33 (Tenn.App.1998)

Being able to read case citations is very important as this enables you to look
up and verify the original. In the above example the "style" of the
case is Solima v. Solima, and these of course are the two parties at odds.

The next part 7 S.W.3d 30 tells you the original decision is contained in the
"SouthWest" reporters. If you are unable to find them yourself, the law school
librarian can show you where they are at. 7 is the volume number, 3d means third
edition, and 30 is the page the case begins on. The at 33 is the specific page
where the quote you are referring to is at, and (Tenn.App.1998) tells you the
court that issued the decision and year it did so. If you see a case citation
that has only the year listed without any court, such as (2000), that is a
decision from the U.S. Supreme Court.
NY or Utah would be a state supreme court, U.S.D.C. is a federal court, and
U.S.C.A. is a federal appeals court.

If you are starting from scratch and don't have a case citation, ask the
librarian where the "digests" for your state, or the "Corpus Secundum"
are. These allow you to start with a subject, such as "constitutional law", and
look up all of the cases cited in that area.

Summary

Parental rights consist of fundamental liberty and privacy interest, which the
state can only infringe upon after finding a child is in severe harm,
or severe danger of being harmed. You must properly assert your rights at every
stage of litigation, or forever waive them, and your ability to parent your
child.

As a final note constitutional rights in general, and parental rights in
particular, are being regularly eroded. Amendments to the U.S. and state
Constitutions must be enacted to reverse this.

Daniel Lee ACFC Associate Director

© Copyright Daniel Lee 2001 CBI Home: http://childsbestinterest.org ACFC Home:
http://www.acfc.org/
+++++++++++++++++++++++++++++++++++++++++++++++++
Children Need BOTH Parents!

The American Coalition for Fathers and Children

For Membership information call 1-800-978-DADS or see ACFC's homepages at:
http://www.acfc.org




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EditEd,
E!WAR!, MD

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Ed "RAGE AGAINST THE MACHINE" WARd