Equal Parenting pending in state court of appeals

[Anonymous 0]

I currently have a case pending in a state appeals court for a rebuttable presumption of Equal Parenting in divorce.

The outline of my argument is:

1. Parents have a constitutional, fundamental, parental right in the “care, custody, and control” (Troxel) of their children.
2. State law determining physical and legal child custody and child support threatens that fundamental, parental right.
3. Mathews v Eldridge requires a balancing test when state action threatens a fundamental right in order to determine what substantive and procedural safeguards must be provided before infringing on that right.
4. Therefore the state judiciary must conduct a Mathews balancing test to determine and apply the rights that must be provided before carrying out laws that threaten parental rights of custody and support.
5. Under Mathews balancing test: a) the “best interests of the child” standard is an unconstitutional state interest and means for determining custody and support; b) basing child support beyond the minimum needs of a child is an unconstitutional interest and means for determining child support; c) the state’s only interest in divorce (in regards to children) is to settle a dispute and to protect the child from “substantial harm”; d) under the Equal Protection clause, neither a mother nor a father can be discriminated against in apportioning child custody; e) fathers are discriminated against in divorce proceedings in violation of the Equal Protection clause; and f) the only “narrowly tailored”, “least restrictive means”, “necessary” for the state’s compelling interests to settle a dispute over fit parents in divorce is a presumption of Equal Parenting——including i) roughly equal custody time (generally no less than 180 days per year), ii) joint legal custody (with no unilateral or superior authority of one spouse over the other), and iii) no child support beyond the minimum needs of a child——which can only be overcome by clear and convincing evidence of substantial harm to a child (as determined by a jury, if requested).

My brief is already filed with the court of appeals. My guess is that the appellate court will make a decision in February, give or take a month or two.

This is a case of first impression, meaning, no state court has ever ruled on how Mathews balancing test applies under Troxel.

[Binary LogicParticipant 2351]

Holy. S~~~. By what I could follow on that post, you mean business. Do keep up abreast of how that turns out. From what little I claim to know of the world of legalize, my first guess is that the courts will recognize that you are aiming to deprive them of both power and the ability to collect cash off the backs of men. This may result in them tossing it in the trash bin, finding some kind of garbage loop-hole (of their own making) to dismiss your cause, or simply they may hear you out but the entire time plan to shut it down and make sure the discussion is closed session ensuring nothing said in that room leaves it.

STILL. This little fire you’ve started, I’d be lying if I said I wouldn’t want to watch it set the established standards ablaze.

Funny, isn't it? How women thrive on a mans time, attention and resources, while simultaneously telling him he isn't enough...

[Anonymous 43]

wow, you are well researched. that is good, give your lawyer your expectation and understand what precedents are being applied to your case.

my experience with divorce court was show up for court, then my lawyer met the c~~~ and her lawyer in a side room to negotiate…to limit my losses.

once an agreement was made, we all put the agreement before the judge. she approved the agreement, and wrote up the order.

now, the custody phase, that was different. the judge swore us in, and asked maybe 10 questions about our new divided lifestyle. in our case, the c~~~ kept the house, had a high income career, and her family lived nearby. She had money, and family support. I was attending college to earn a teaching certificate. I said I would live near my college. I think the test for custody was least disruptive to the children, with that, living in the house and attending the same school was least disruptive. my reality was living in a minivan for 6 months while going to school, clearly, this would not work for 2 kids, when one parent had a house and made $150K.

after a while, I moved in to an apartment in my home town, a couple miles from my old house, but still attending college. I was still not eligible for half custody, not passing an income test, could I support myself, make rent and provide for two kids half time? Nope, I made enough to support myself and the kids for a couple weekends, but could not compete with the c~~~ and her high income. My school schedule and distance from school precluded me from half time parenting. While we were married, I was a stay at home dad for 9 years.

I finished my degree at a school 180 miles away from my kids. clearly the distances were too disruptive, and my income was too low to support my kids. But I was losing visitation time because the c~~~ was scheduling activities during my time…marching band, music camp and foreign travel. I had a choice, pay for half of the activities and maintain the visitation schedule, and I would have to get them to their events during my time, or lose my time, but not pay for the activities. How would I drive them 3 hours to a football game or a parade, or a music competition? I had to commit to developing my career, and let go of my visitation time. after graduating, I found a job 900 miles away. I had enough income to support 2 kids and myself, but the distance was too disruptive to the kids.

This was my situation and experiences. I was not in a position for half time, nor did I have the expectation of being given half time. I posted this so you could compare your circumstances to mine, and not have an unrealistic expectation of a half time outcome.

There are other men here who have half time parenting, I’m sure they can give you their experiences.

[Anonymous 43]

one last bit of advice, and you will not like this. What you think makes sense in the real world, has no relevance or may cause harm in the courtroom. you will need to follow orders to the letter, while your ex seems to break rules at will. you break the rules, you are in contempt and will be in jail.

next, say as little in court as possible. yes, no, I don’t know. this will be a real trial, your answers matter and you do not want to perjure yourself. stick to the truth, it is easier to remember. in court, you are seen as the criminal, and are at a huge disadvantage. it is a womans nature to lie, let her lie and perjure her self. maintain frame when she lies in court, lawyer will call her out, not you.

you will be cross examined by her lawyer, it is ok to pause and think about your answer. I don’t know is hard to prove as perjury. answer as little as possible. explaining is generally bad. opens you up to more questions.

legal logic is not real life logic. let the lawyer do his job.

[Anonymous 0]

I am an attorney, but I’ve never practiced law as a career; my career has been in an entirely different business.

I am representing myself. “Family” lawyers don’t know a damn thing about how constitutional law should apply in family law. I would go so far as to say that generally, family lawyers have been committing malpractice for decades for failing to assert their client’s constitutional, parental rights in family court. Family lawyers typically won’t make the arguments I’m making for all sorts of reasons. So, I’ve gone it mostly alone.

There are cases cited throughout my brief regarding parental rights, government interests, due process, quasi-criminal punishment, jury, standard of evidence, etc. I’ve just given the outline of my brief.

Regarding half time in any one calendar year: that can mean all sorts of ways whether for co-parenting or parallel parenting: 2/2/3 split days in a week; alternating weeks; half year from January to June with one parent and July to December with the other parent; or alternating years from July to June. Yes, splitting years in half, or alternating full years would likely mean the child attends a different school every other semester or school year, BUT…that is NOT the government’s business or problem. The only issue is whether the custody is a “substantial harm” to the child as proven by clear and convincing evidence.

There are bulls~~~ arguments to counter that splitting a kid’s time between schools is a substantial harm. Bulls~~~, prove it by clear and convincing evidence. Consider these factors in regards to schooling: homeschooling; military families who move often; alternative schooling of rich or celebrity children; alternative schooling of prodigies or olympic-athletes. Is it more important that a child have a stronger quality relationship with a parent or with a school friend?… Under Equal Protection, divorced parents cannot be discriminated against versus married parents. The state doesn’t have any more business in the schooling or lifestyle of children of divorced parents than it does in the children of married parents.

[Anonymous 0]

57, this is an appellate case, not a trial court. There is no testimony or witness in appeals courts. It’s all legal argument.

[Anonymous 43]

oh ok good luck amigo…judges don’t like undoing other judges decisions and precedents. Divorce law is built up on a s~~~ty foundation.

[Anonymous 0]

57, thank you. Yes, I have no delusions that this is a slam dunk by any means, but I am going to at least give it my best shot, if not anything for my kids.

[TaxGuyParticipant]

The one saying that always stuck with me during the divorce: There isn’t a whole lot of law in family law. Basically the court is going to sign off on almost anything negotiated between you and the ex, as long as it isn’t too one sided. Against the woman I presume.

Good luck GenXRex. What a win it would be for fathers everywhere.

Order the good wine

[BeachBumParticipant 813]

Please keep us updated for when the ruling comes down next year!!

[Author]

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