Parental Custody Protected By US Constitution

Parental Custody Protected By US Constitution Bruce Eden   As to divorce and similar (cohabitation, etc.) situations with child custody involved, 96-98% of all custody "awards" in this country are flatly unconstitutional, and this has been going on for soooo long (almost 4 decades now), that even the last couple/few employment generations of judges and attorneys don't even know what the real law is anymore, and just conduct "business as usual", violating parental rights every day of the week, simply because most of them actually don't even know any better...  If you are a so-called "noncustodial" parent, the *real* law and legal facts directly relevant to you are these three (3) points:   1) At the very moment of live birth of a child, BOTH natural (bio) parents are *immediately* and *automatically* vested with total and full custodial rights, including all aspects of both "physical" and "legal" custody.  Interestingly, a stillborn child is never actually in the legal custody of anyone, but that's a whole 'nuther story.  The point is that BOTH you AND the other natural parent *already HAD* full, pre-existing, totally-vested custodial rights to your child(ren), from the very moment of birth(s)...  the same as every other pair of natural parents out there in America.  You BOTH already HAD full child custodial rights, long before any court ever got involved...  That's main point # 1.  Know it.  Remember it -->  You already had *pre-existing* custodial rights to your child(ren), loooong before any court ever got involved  That includes ALL custodial rights, i.e., often referred to as those two familiar parts, i.e. again, "physical" custody and "legal" custody, or, actually, every possible aspect of "custody" you can ever think of.  As a natural parent to any live born child, you ALREADY had FULL custodial rights, all of it, every bit of it, from the very moment of the given child's live birth, automatically.   2) The next main point, # 2, is over one hundred years of *absolutely consistent* U.S. Supreme Court rulings, in that the State (or any agent/arm of the State) absolutely can NEVER interfere, remove, take away, inhibit, etc., your well-established, fully vested, pre-existing custodial rights to your child(ren), without FIRST finding you *seriously* unfit (and that is only allowed by full due process with what is known as "clear and convincing" evidence), in order to even have the first possible "compelling state interest", to even BEGIN to question whether or not the State could even think about interferring with your *pre-existing* custodial rights...  See various "biggie" parental rights cases, like Santosky v. Kramer, 455 U.S. 745 (1982) [ http://www.law.cornell.edu/supct/html/historics/USSC_CR_0455_0745_ZO.html ] and others..  The singular point of all these cases is that the State (and no part OF the State) can EVER even begin to question the superior right of parents to raise their own children without the State's interference in any manner, without the State FIRST establishing "clear and convincing" evidence of some VERY serious issues of parental unfitness, i.e., very serious abuse, very serious neglect, and/or something else that is reasonably related to *very serious* parental unfitness.  Letting the kids stay up too late, or drink too much chocolate milk, etc., just doesn't cut it.  We're talking about *serious* stuff, and ONLY serious stuff...  It is *irrelevant* that most of these particular biggie cases are in regards to various CPS type stuff. The rulings of parental rights ALWAYS being superior to the State, and the mandates that the State *must* have very serious compelling reasons to even first *think* about interferring with pre-existing rights, applies to ALL natural parents, regardless of the type of court scenario.   3) What happens then -- what *really* happens -- in virtually every single domestic relations (divorce and similar) case with any children involved, then, is that the State (the family court judge) is ACTUALLY allowing one parent to RETAIN and KEEP her/his pre-existing custodial rights, but actually TAKING AWAY the exact same equally-shared custodial rights of the other parent, i.e., YOU...  And, so, what explicitly makes this unconstitutional, is that the state family court DID *remove* or *take away* your PRE-EXISTING custodial rights to your child(ren), but WITHOUT ever finding you seriously unfit.. and also doing that ONLY by establishing clear and convincing evidence of serious parental unfitness.. and also doing THAT under full due process procedures (full discovery, witnesses, cross-examination, etc., etc., etc... even a jury if timely claimed...).  And, since the State never even began to **lawfully** question - let alone prove - your well established rights to CONTINUE to raise your children, unfettered, uninterferred with, etc., then the family court judge's act in summarily REMOVING your **pre-existing** FULL custodial rights to your child(ren), while still allowing the OTHER parent to RETAIN and KEEP her/his exact same, equally-shared FULL custodial rights to your child(ren), was patently discriminatory, patently unlawful, patently unconstitutional, and flagrantly in direct violations (multiple..) of your own individual due process rights... It was, in fact, even criminal.  Oh, yes -- see 18 USC 241 and 242, which at least one of them, if not both of them (i.e., the opposing attorney, the guardian ad litem against you, the other parent, etc.) does apply.  Oh, yes it does, under the real law, honestly applied.   The same unconstitutional wrongdoing is routinely done in 96-98% of all other "family court" (divorce and similar) cases across the nation, every day of the blessed week... (in the other 2-4% of cases, the court DID - somehow - allege, and even reasonably prove, to the level of the due process-required clear and convincing evidence, that at least one of the parents WAS seriously unfit, at least enough to reasonably terminate their continuing parental rights that they once HAD without previous question, you see, so the end results in those fewer/rarer cases is at least *reasonably* compliant to the constitutional requirements).   Over one hundred-plus years of MANY consistent rulings by the US Supreme Court, on virtually every conceivable aspect of parental rights, STILL ensures that everyone typically, inherently and instantly knows that every regular common parent on the street HAS full and complete custody to their child(ren).  Of course, this is exactly why still-married parents (who have NEVER been "granted" or "awarded" custodial rights to their OWN child(ren) by any court, whatsoever...) can instantly and LEGALLY make all sorts of everyday binding decisions regarding their child(ren), such as medical exams and treatments, schooling, religious, any activity, what time to make the kids go to bed, and everything else under the sun.  NOBODY ever even *thinks* of questioning the absolutely superior and well established, fully legal custodial rights of EITHER the mom OR the dad, in any of those situations (i.e., still married parents, or cohabitating parents who have never been involved in a family court, or a single parent who has never been involved in a family court, etc.), precisely BECAUSE they ALREADY HAVE full legal custodial rights --- those fully vested, fully legal, absolutely superior custodial rights to their own children were ALREADY and automatically "in them" from the very moment of live birth, too, and that's the way it has ALWAYS been...   If any one (or both) of these such parents (who have never been involved in a family court) takes their kid to the doctor, then neither the doctor, nor anybody in the doctor's office/staff, even BEGINS to question whether or not that parent HAS full legal rights over that sick child...  If any one of these such parents wants to enroll their kid in school, neither the principal, nor any staff, nor any teacher, even BEGINS to question whether or not that parent HAS fully established legal rights over that child, and therefore the unquestionable legal right to enroll the kid in school.  Etc., etc., etc....  precisely because the custodial rights over a child are ALREADY established at the very moment of birth, and EVERYONE knows it, and everyone knows that's the way it has ALWAYS been, too.  This is a well-established, universally-solid truth, and everyone already knows it!   So, then, you finally begin to understand the raw and horrible, totally unconstitutional problem going on in today's "family" courts -- the public myth and misperception is that once the mom and dad are "now" facing each other inside a family court proceeding, everyone (including modern judges and attorneys) MISTAKENLY believe that it is all going to be about "he said, she said" stuff, and all of that sub-par nonsense, in order to see WHICH parent will be "awarded" or "granted" CUSTODY...   BUT THAT IS FLAT, DEAD WRONG!!!   Yes, the actual reality is that BOTH of those same parents ALREADY HAVE custody, and the State does NOT have any form of custody of the child(ren) in question.  You see, the State has absolutely NO power or authority or jurisdiction to give away ("grant", "award") something that IT does NOT have (custody of the child or children in question) to ONLY one parent who *already* HAS full custody of the same child or children... and yet still take AWAY the *pre-existing* custodial rights from the OTHER parent, without even once so much as alleging (let alone proving by constitutional hurdles..) any *serious* forms of parental unfitness, serious enough to even BEGIN to start questioning *whether or not* that other parent's pre-existing and STILL-fully-vested custodial rights should be, "now", somehow, suddenly taken AWAY from him/her...   By the way, again, when I say "serious" allegations of parental unfitness, I am not just whistling dixie -- these allegations must be of such COMPELLING reasons, of such a very high, very strong, and very serious nature, that the local prosecutor or district attorney would even stand a fairly good chance at achieving a criminal conviction, in a full-blown due process criminal trial, with discovery, etc., and finally having a jury of your peers CONVICT you, under the "beyond a reasonable doubt" threshold of evidence...  I am talking about SERIOUS allegations, because the "clear and convincing" evidence threshold is just about one gnat's hair short of the level required under the "beyond a reasonable doubt" evidentiary standard.... they are VERY close to the same HIGH level of proof threshold as required by law.   Do you see the flagrantly unconstitutional wrongdoing that is going on everywhere, everyday???  It is smack FULL of unlawful gender discrimination, everyday, everywhere (REGARDLESS of which parent gets "awarded" or "granted" custody.. it is STILL discrimination *between* the two different-gendered parents..), it is smack FULL of violations of equal protection of the law, everyday-everywhere, it is also smack FULL of violations of *individual* due process rights (as to the victimized parent, still typically the dad in most cases, yet more moms are being violated nowadays, too..), and it is also often smack FULL of "class discrimination", to boot, in all those situations where ONE parent has an attorney, and the other parent is being routinely violated in everything under the sun, simply because they are acting pro se...   Again, in some 96-98% of ALL "family court" cases across this country, every day of the week, 1/2 of the citizen-parents ARE being unconstitutionally violated in more ways than you can shake a stick at....  And, those multiple types of DUE PROCESS violations ARE, in fact, fully solid *federal* grounds / causes of action for: -- civil damages against the State, the given judge (for necessarily acting OUTSIDE of their lawful scope and authority). -- civil damages against any opposing attorneys, (and guardian ad litems, "custody evaluators", and/or "counselors", who also just happen to be licensed attorneys..) -- all of whom are mandated by law NOT to unconstitutionally infringe upon the rights of any opposing parties or third parties, etc.... -- civil damages against your OWN attorney, for flagrant MALPRACTICE in utterly failing to have been at least minimally competent enough to have PROPERLY raised (let alone adequately defended..) your *pre-existing* custodial rights (which are *superior* to "mere" Constitutional rights, remember), absent very *serious* allegations of parental unfitness. -- etc., etc., etc.     Therefore, if YOU are a so-called "noncustodial" parent, and there was never any full due process determination of VERY serious parental unfitness, using "clear and convincing" evidence, then YOUR parental rights (which are, again, SUPERIOR to "mere" Constitutional rights, i.e., which have *at least* the same legal hurdles required to overcome..) WERE violated, the "award" or "grant" of child custody to the OTHER parent is and was a total fraud upon the court (any judgment based upon fraud is VOID, by the way..), and you HAVE extremely SOLID grounds to have everything turned around, and WITH very significant civil damages, to boot.   Not sure about "fighting city hall" all by yourself?  Fine -- get together with a few other "similarly situated" parents (so-called "noncustodial" parents, all victimized by the same State, or better yet, by the exact same County..), and simply agree to file a federal classaction lawsuit together.  Why not?  The actual, real law and facts are totally and completely on YOUR side...!   Bruce Eden is the director of DADS (Dads Against Discrimination), New Jersey and New York chapters, Fathers Rights Association of New Jersey, PO Box 4075, Wayne, NJ 07474 (973) (http://www.dadsamerica.org/NJ/nj.htm)