Fundamental Rights (Texas)

[Zigner]

Has there been any indication that I am not a good parent or that I cannot co-parent?

Has anybody said there has been? You seem to be expending a ton of energy on hypothetical possibilities that seem to have no basis in reality. The point is that you should simply be the best parent and co-parent you can be. If problems arise, worry about them then and address them in a more pin-point matter. You are concerned about things that may never (heck, probably will never) become an issue for you.

 

[Austin Apexmale]

...or, you could simply be a good parent and co-parent for your child.

Can you simply move on to a thread if you do not benefit from this one? Thank you sir.

Fit Parent

 

[Zigner]

For clarification, the first presiding judge during a temporary orders hearing stated we do not have equal rights. That the family code does not think 50/50 timesharing is a good idea and that females are mostly the custodial parents in our society (yes, I secured the transcripts).

That statement was improper and could have been grounds for appeal. Of course, that is a moot point now since you have 50/50 custody.

Have I misinterpreted? Thanks.

It's a moot question at this time. Stop compulsively researching topics that don't seem to have any bearing on your matter and enjoy the time you have with your child.

 

[Zigner]

Can you simply move on to a thread if you do not benefit from this one? Thank you sir.

I understand that your perception of yourself as the apexmale here may affect your statements, but you really don't get to decide who posts on your thread.

 

[zddoodah]

The discussion is not about whether I am a good parent.

Obviously. We know nothing about you and, even if you were to provide some actual facts, we would not know enough to form an intelligent opinion about you as a parent.

I'm sure there are others here who will engage in your discussion of hypothetical and abstract things.

 

[Austin Apexmale]

That statement was improper and could have been grounds for appeal. Of course, that is a moot point now since you have 50/50 custody.
It's a moot question at this time. Stop compulsively researching topics that don't seem to have any bearing on your matter and enjoy the time you have with your child.

I did appeal. The state appellate circuit court affirmed and stated the lower court has broad judicial discretion under the "best interest" doctrine.

Hence the legal confusion.



Fit Parent

 

[PayrollHRGuy]

I did appeal. The state appellate circuit court affirmed and stated the lower court has broad judicial discretion under the "best interest" doctrine.

Hence the legal confusion.

Your legal confusion comes from a preconceived notion that you understand what you are reading when you read legal cites you have posted. I don't think we are going to be able to educate you to the point you do understand them.

 

[Zigner]

I did appeal. The state appellate circuit court affirmed and stated the lower court has broad judicial discretion under the "best interest" doctrine.

You got 50/50...what is the actual concern here?

 

[Austin Apexmale]

Your legal confusion comes from a preconceived notion that you understand what you are reading when you read legal cites you have posted. I don't think we are going to be able to educate you to the point you do understand them.

What I found on the "best interest" doctrine is the US Supreme Court immigration case titled Sessions v. Dimaya. Specifically on April 17, 2018, Justice Gorsuch held the statute in question violated the Due Process Clause of the US Constitution because it did not give parties fair notice of what the law required and was, therefore, "void for vagueness". As Justice Gorsuch said:

"The implacable fact is that this isn't your everyday ambiguous statute. It leaves the people to guess about what the law demands—and leaves judges to make it up. You cannot discern answers to any of the questions this law begets by resorting to the traditional canons of statutory interpretation. No amount of staring at the statute's text, structure, or history will yield a clue." See Sessions v. Dimaya 2018.

And this is what Texas said about the doctrine... Baker v. State, 50 SW 3d 143 - Tex: Court of Appeals, 11th Dist. 2001 "A statute is void for vagueness if it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute"

Are there other ways to interpret these citations?

Fit Parent

 

[Zigner]

Are there other ways to interpret these citations?

Does it matter?

 

[Austin Apexmale]

You got 50/50...what is the actual concern here?

The Texas family code allows modification petitions every 365 days. Final orders are NOT final orders.

Fit Parent

 

[PayrollHRGuy]

And this is what Texas said about the doctrine... Baker v. State, 50 SW 3d 143 - Tex: Court of Appeals, 11th Dist. 2001 "A statute is void for vagueness if it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute"

Do you not think it impossible that you aren't a person of ordinary intelligence?

 

[Zigner]

The Texas family code allows modification petitions every 365 days. Final orders are NOT final orders.

Ok, but does it matter?

 

[cbg]

Okay, I'll be more blunt about it.

Why do you believe that the lawyer who represents you will not understand the relevant laws and will need you to educate him on the subject?

 

[Tax Counsel]

Because my Final Orders can be so temporary, it remains critical that I continue research into statutes and caselaw so that If I ever do face a modification, I can search for representation and provide them with the most descriptive circumstance I can so that they in turn can make the best gameplan determination before I invest in a retainer.

You don't need to do a lot of research into the law before consulting an attorney. The attorney will know the law — that's part of what you're paying for. My experience has been that most clients who undertake their own legal research don't know enough to do a good job of it and they often end up with an incorrect understanding of the law as a result of their disjointed and incomplete efforts in learning it. That's not to say that there is no value in getting a basic understanding of how the family law works in your state. But your lawyer will ask you for all the information he/she needs to advise and guide you on the issues that you have.

 

[Tax Counsel]

...is a litigant entitled to ask the court on record whether both child and parent will be afforded substantive due process as well as procedural due process before fundamental rights are minimized?

You could ask for that, but it would be utterly pointless to do so. Courts do not exist to answer general legal questions for you or to educate you on the law, and the judge will decline to do that for you here. All you'd succeed in doing with this is annoying the judge, and that's not helpful to you in persuading the judge to your position.

2. Where two fit, willing, and able parents are before the Court, does the court have statutory authority to make possession anything less than 50/50 where one parent objects without the requisite proof of parental unfitness?

One does not have to be found unfit to end up with less than 50% custody. While equal custody is the starting point, a number of factors may necessitate some other arrangement. For example, the living situations of the two parents may make it, as a practical matter, impossible to give each parent truly 50% of the time with the child.You misunderstand the application of the cases you've read. The Quillion case you cited is not a case of two parents contesting custody time between them, but rather a case of an unwed father contesting the adoption of the child initiated by the mother. As the circumstances are significantly different, the case is of limited use to you in your situation. The Cooper case is from a Kansas appellate court and thus has no binding effect in Texas whatsoever. It is at best used for persuasive value only. You are making the mistake I see lots of nonlawyers make of ripping out snippets from case decisions they think helpful without analyzing the entire case and putting it into context with the situation they have. That's not good legal research and analysis.

Does this expose opposing counsel to potential damages in civil suits for violations "Under the Color of Law" as a state actor?

No. The opposing counsel is not exercising state power against you. The opposing counsel is representing his/her client and makes requests to the court of what the counsel and his/her client want. It is the judge, not the opposing counsel, that decides the outcome of the matter.

 

[Tax Counsel]

Many attorneys in my area will not bring up fundamental rights or Consitutional arguments in front of the judge because they claim there is a high probability the judge won't like it and will rule in favor of opposing counsel.

You need to understand when a Constitutional issue is truly present in your case before you raise it in court. No judge likes to have his/her time wasted reviewing requests that lack merit. I see lots of pro se litigants raise what they think are good Constitutional issues for their cases only to be shot down and in the process annoy the judge. Constitutional issues do not come up nearly as much as your posts suggest you think they do. This is why attorneys do not argue such issues routinely. Most cases simply do have have genuine Constitutional issues in them to be litigated.

 

[Austin Apexmale]

You need to understand when a Constitutional issue is truly present in your case before you raise it in court. No judge likes to have his/her time wasted reviewing requests that lack merit. I see lots of pro se litigants raise what they think are good Constitutional issues for their cases only to be shot down and in the process annoy the judge. Constitutional issues do not come up nearly as much as your posts suggest you think they do. This is why attorneys do not argue such issues routinely. Most cases simply do have have genuine Constitutional issues in them to be litigated.

In Texas, where no prior court orders exist, per state statutes, married parents have equal access to their children and children have equal rights to their parents regardless of whether they are married, later divorce, or choose to never marry.

Section. 160.202. NO DISCRIMINATION BASED ON MARITAL STATUS. A child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other.


Section 153.003. No Discrimination Based on Sex or Marital - The court shall consider the qualifications of the parties without regard to their marital status in determining (3) the terms and conditions of conservatorship and possession of and access to the child.


This would mean the rights of the child to full and equal relationships with both parents has no legal relationship to the marriage of the child's parents and cannot depend on that marriage nor can they be infringed simply because the parents' divorce. I use no other interpretation other than the plain meaning rule. "In interpreting a statute a court should always turn to one cardinal canon before all others. . . . [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "when the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" 503 U.S 249, 254. When writing statutes, the legislature intends to use ordinary English words in their ordinary senses. The United States Supreme Court discussed the plain meaning rule in Caminetti v. United States, 242 U.S. 470 (1917), reasoning "it is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Supreme Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion."


The constitutional issue inherently presented itself when the court applied a standard possession order to a parent who is presumed by law to be fit and child who had a parent minimized through no fault of their own. Conflict between any parents does NOT constitute a compelling state interest sufficient to infringe fundamental rights of children nor the parents. Supreme Court caselaw and the Texas family code statutes have acknowledged the marriage relationship is seperate from the parent/child relationship and that parental rights are tied to individuals and not tied to marriage or relationships. I found it very difficult finding an attorney who claimed that parental rights only came about through marriage and that parental rights terminate and become the state's rights to give out as a result of divorce/seperation.

My ex's appellate attorneys tried to get my appeal thrown out on the grounds you mentioned, the lack of clear constitutional issues of law or whether an issue was indeed present. The appellate circuit denied the dismissal based on federal caselaw in my response. This is where even a case with only pleaded state law claims may nevertheless arise under federal law "where the vindication of a right under state law necessarily turn on some construction of federal law." Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9 (1983); Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 312 (2005); See also Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 690 (2006) (holding that a case arises under federal law if a well-pleaded complaint establishes that the plaintiff's right to relief necessarily depends on the resolution of a substantialquestion of federal law). Furthermore, "A plaintiff need not always identify a closely analogous case; rather, he can establish a clearly established constitutional right by showing that the violation was so obvious that a reasonable person would have known of the unconstitutionality of the conduct at issue. Thus, binding precedent is not necessary to clearly establish a right." Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir.1988)

It was in my opinion, the given state court in any such similar proceeding cannot falsely and fraudulently pretend to ostensibly "award" or "grant" something it does not have (child custody) to someone who already has it (child custody) fully, or more correctly described as fully flagrant discrimination and fraud by typically allowing just one fit parent to continue retaining her/his pre-existing child custody rights, but in fact removing the other fitnparent's exact same.

Possession and access rights minimized by simple divorce was contrary to Texas 153.003 (3) and 160.202.

So predisposition, don't parents have fundamental rights under Texas family code Section 151.003. LIMITATION ON STATE AGENCY ACTION where it says "A state agency may not adopt rules or policies or take any other action that violates the fundamental right and duty of a parent to direct the upbringing of the parent's child."?

This is where a lot of confusion lies. State statutes and federal caselaw state that marriage is a constitutional right, and that divorce is a constitutional right. Having said that, I have not been able to find the source of statutory authority (absent parental unfitness) for a court to punish parents by minimizing fundamental rights, possession and access simply because the parents choose to exercise state action clearly within the law. I have yet to find statutes that allow the court to treat children who's fit parents divorced or seperated any different than children whose fit parents have remained married. Any difference is how the court treats children of divorce is no different than treating someone differently based on gender or the color of one's skin.

Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 US 537 545 (Supreme Court 1987), (We have emphasized that the First Amendment protects those relationships, including family relationships, that presuppose "deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thought, experiences, and beliefs but also distinctly personal aspects on one's life.")

It is well-established that the rights protected by and through the Fourteenth Amendment are individual rights. It is well-established that a parent's right to custody of their own child is a personal right. It is well-established that the associational rights of parents and their minor children cannot be dependent upon the marital status of the child's parents because bastardy laws have been held to be invidious. It is well-established that children cannot be punished for the sins of their parents whether that sin is to procreate outside of wedlock or whether that sin is for parents with minor children to divorce. Therefore, the concomitant fundamental rights of the child in these proceedings cannot be infringed any more than the fundamental rights of the parents can be infringed as a consequence of the parents making the constitutionally protected choice regarding marriage – to
never marry, or divorce. These choices are individually constitutionally protected privacy choices and the rights of parents and children to have associations with each other are individual rights not a right conveyed through marriage. Levy v. Louisiana, 391 US 68, 72 (Supreme Court 1968), (We conclude that it is invidious to discriminate against them when no action, conduct, or demeanor of theirs is possibly relevant to the harm that was done the mother.); Weber v. Aetna Casualty & Surety Co., 406 US 164, 175 (Supreme Court 1972), (The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing.). It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder… And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.); Fiallo v. Bell,430 US 787, 810 (Supreme Court 1977), (dissent), (The right to live together as a family belongs to both the child who seeks to bring in his or her father and the father who seeks the entrance of his child.) Wooley v.City of Baton Rouge, 211 F. 3d 913, 923 (5th Circuit 2000), (Because a child's right to family integrity is concomitant to that of a parent, we define the scope of Jordan's rights in this context with reference to his mother's rights. Duchense, 566 F. 2d at 825; Bennett v. Town of Riverhead, 940 F. Supp. 481, 488-89 (E.D.N.Y. 1996) ("This interest is reciprocal in that it belongs to the children as much as it does to parents").)

I get how frustrating this is, but I have to anticipate I will be in court again sometime in the next 12 years. If I fail to prepare, I'm prepared to fail. And although some of you may believe it is a waste of time, as attorneys... you have to assume these issues will come up sometime in your careers. Maybe as soon as next week. Maybe never. But is the uncertainty worth not preparing for? Not to me.

Navigating legal precedent as a result of caselaw that is contrary to many "court created standards" has to be a collective effort. It's not going to bring clarity to itself. I remember standing in court to address an Associate Judge who stated I can remain seated while addressing the Court in the proceeding, that standing up to respond could be construed as an act of aggression. Then while before a District Judge in the same courthouse, she said local rules require that I stand up when addressing the court. [emoji15]

Does it ever get any less confusing for you all?

Fit Parent

[/i][/I]

 

[Zigner]

In Texas, where no prior court orders exist, per state statutes, married parents have equal access to their children and children have equal rights to their parents regardless of whether they are married, later divorce, or choose to never marry.

Huh?

 

[justblue]

In Texas, where no prior court orders exist, per state statutes, married parents have equal access to their children and children have equal rights to their parents regardless of whether they are married, later divorce, or choose to never marry.

Section. 160.202. NO DISCRIMINATION BASED ON MARITAL STATUS. A child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other.


Section 153.003. No Discrimination Based on Sex or Marital - The court shall consider the qualifications of the parties without regard to their marital status in determining (3) the terms and conditions of conservatorship and possession of and access to the child.


This would mean the rights of the child to full and equal relationships with both parents has no legal relationship to the marriage of the child's parents and cannot depend on that marriage nor can they be infringed simply because the parents' divorce. I use no other interpretation other than the plain meaning rule. "In interpreting a statute a court should always turn to one cardinal canon before all others. . . . [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "when the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" 503 U.S 249, 254. When writing statutes, the legislature intends to use ordinary English words in their ordinary senses. The United States Supreme Court discussed the plain meaning rule in Caminetti v. United States, 242 U.S. 470 (1917), reasoning "it is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Supreme Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion."


The constitutional issue inherently presented itself when the court applied a standard possession order to a parent who is presumed by law to be fit and child who had a parent minimized through no fault of their own. Conflict between any parents does NOT constitute a compelling state interest sufficient to infringe fundamental rights of children nor the parents. Supreme Court caselaw and the Texas family code statutes have acknowledged the marriage relationship is seperate from the parent/child relationship and that parental rights are tied to individuals and not tied to marriage or relationships. I found it very difficult finding an attorney who claimed that parental rights only came about through marriage and that parental rights terminate and become the state's rights to give out as a result of divorce/seperation.

My ex's appellate attorneys tried to get my appeal thrown out on the grounds you mentioned, the lack of clear constitutional issues of law or whether an issue was indeed present. The appellate circuit denied the dismissal based on federal caselaw in my response. This is where even a case with only pleaded state law claims may nevertheless arise under federal law "where the vindication of a right under state law necessarily turn on some construction of federal law." Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9 (1983); Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 312 (2005); See also Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 690 (2006) (holding that a case arises under federal law if a well-pleaded complaint establishes that the plaintiff's right to relief necessarily depends on the resolution of a substantialquestion of federal law). Furthermore, "A plaintiff need not always identify a closely analogous case; rather, he can establish a clearly established constitutional right by showing that the violation was so obvious that a reasonable person would have known of the unconstitutionality of the conduct at issue. Thus, binding precedent is not necessary to clearly establish a right." Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir.1988)

It was in my opinion, the given state court in any such similar proceeding cannot falsely and fraudulently pretend to ostensibly "award" or "grant" something it does not have (child custody) to someone who already has it (child custody) fully, or more correctly described as fully flagrant discrimination and fraud by typically allowing just one fit parent to continue retaining her/his pre-existing child custody rights, but in fact removing the other fitnparent's exact same.

Possession and access rights minimized by simple divorce was contrary to Texas 153.003 (3) and 160.202.

So predisposition, don't parents have fundamental rights under Texas family code Section 151.003. LIMITATION ON STATE AGENCY ACTION where it says "A state agency may not adopt rules or policies or take any other action that violates the fundamental right and duty of a parent to direct the upbringing of the parent's child."?

This is where a lot of confusion lies. State statutes and federal caselaw state that marriage is a constitutional right, and that divorce is a constitutional right. Having said that, I have not been able to find the source of statutory authority (absent parental unfitness) for a court to punish parents by minimizing fundamental rights, possession and access simply because the parents choose to exercise state action clearly within the law. I have yet to find statutes that allow the court to treat children who's fit parents divorced or seperated any different than children whose fit parents have remained married. Any difference is how the court treats children of divorce is no different than treating someone differently based on gender or the color of one's skin.

Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 US 537 545 (Supreme Court 1987), (We have emphasized that the First Amendment protects those relationships, including family relationships, that presuppose "deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thought, experiences, and beliefs but also distinctly personal aspects on one's life.")

It is well-established that the rights protected by and through the Fourteenth Amendment are individual rights. It is well-established that a parent's right to custody of their own child is a personal right. It is well-established that the associational rights of parents and their minor children cannot be dependent upon the marital status of the child's parents because bastardy laws have been held to be invidious. It is well-established that children cannot be punished for the sins of their parents whether that sin is to procreate outside of wedlock or whether that sin is for parents with minor children to divorce. Therefore, the concomitant fundamental rights of the child in these proceedings cannot be infringed any more than the fundamental rights of the parents can be infringed as a consequence of the parents making the constitutionally protected choice regarding marriage – to
never marry, or divorce. These choices are individually constitutionally protected privacy choices and the rights of parents and children to have associations with each other are individual rights not a right conveyed through marriage. Levy v. Louisiana, 391 US 68, 72 (Supreme Court 1968), (We conclude that it is invidious to discriminate against them when no action, conduct, or demeanor of theirs is possibly relevant to the harm that was done the mother.); Weber v. Aetna Casualty & Surety Co., 406 US 164, 175 (Supreme Court 1972), (The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing.). It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder… And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.); Fiallo v. Bell,430 US 787, 810 (Supreme Court 1977), (dissent), (The right to live together as a family belongs to both the child who seeks to bring in his or her father and the father who seeks the entrance of his child.) Wooley v.City of Baton Rouge, 211 F. 3d 913, 923 (5th Circuit 2000), (Because a child's right to family integrity is concomitant to that of a parent, we define the scope of Jordan's rights in this context with reference to his mother's rights. Duchense, 566 F. 2d at 825; Bennett v. Town of Riverhead, 940 F. Supp. 481, 488-89 (E.D.N.Y. 1996) ("This interest is reciprocal in that it belongs to the children as much as it does to parents").)

I get how frustrating this is, but I have to anticipate I will be in court again sometime in the next 12 years. If I fail to prepare, I'm prepared to fail. And although some of you may believe it is a waste of time, as attorneys... you have to assume these issues will come up sometime in your careers. Maybe as soon as next week. Maybe never. But is the uncertainty worth not preparing for? Not to me.

Navigating legal precedent as a result of caselaw that is contrary to many "court created standards" has to be a collective effort. It's not going to bring clarity to itself. I remember standing in court to address an Associate Judge who stated I can remain seated while addressing the Court in the proceeding, that standing up to respond could be construed as an act of aggression. Then while before a District Judge in the same courthouse, she said local rules require that I stand up when addressing the court. [emoji15]

Does it ever get any less confusing for you all?

Fit Parent

[/i][/I]

Why did you cross out so much of your post?