Fundamental Rights (Texas)

[Austin Apexmale]

Prior to pre-trial, I have the following questions about the lower level state courts.

1. Am I entitled to a determination of what process is "due" under federal due process law?

2. Does Article VI of the United States Constitution , and, specifically, the Supremacy Clause of that article apply to the state court, to the presiding judge of the state court, and to all proceedings in the case?

3. Is the state court and the presiding judge of the state court a state actor being asked to take state action under color of the state's family code and will the orders of the court be enforced through the use of state power or state authority?

4. Am I entitled to an adjudication of my substantive rights or does the court consider my substantive rights to be waived, neutralized, or non-existent such that my procedural right to an adjudication of my substantive rights becomes non-existent in custody cases?

5. Am I entitled to Constitutional protections for my substantive rights in these proceedings and if so, which specific substantive rights are at issue in these proceedings?

6. Is the Court authorized to issue advisory opinions?

7. Am I entitled to US Fourth and Fourteenth Amendment protections where the state court seizes my cash property to pay child support or pay another party?

8. Am I entitled to Fourth Amendment protections from open ended, exploratory searches and seizures where the state court may order Discovery, psychological studies, family studies, home studies, evaluations, etc.?

9. Is the state court authorized to censor my speech and association or my child's speech and association, and if it is, what is the source of the state court's authority to censor speech in these cases?

10. Are state courts authorized to compel me to pay for the speech of the other parent for which I strongly disagree, and if so, what is the source of the state court's authority to compel me?

11. Do the rules of civil procedure, due process, and standing apply differently to me as a civil litigant under family law than they apply to other civil litigants in other types of cases?

12. Am I entitled to a neutral and impartial decision maker in these custody suits?

13. Am I required to waive my federal constitutional rights to gain access to the state court under family law?

14. Does my child have substantive rights that are concomitant to my substantive rights and is my child entitled to constitutional protections for those rights in these court proceedings?

15. Does the state's "child's best interest" policy decision supercede a constitutional mandate?

Fit parent.

 

[justblue]

Prior to pre-trial, I have the following questions about the lower level state courts.

1. Am I entitled to a determination of what process is "due" under federal due process law?

2. Does Article VI of the United States Constitution , and, specifically, the Supremacy Clause of that article apply to the state court, to the presiding judge of the state court, and to all proceedings in the case?

3. Is the state court and the presiding judge of the state court a state actor being asked to take state action under color of the state's family code and will the orders of the court be enforced through the use of state power or state authority?

4. Am I entitled to an adjudication of my substantive rights or does the court consider my substantive rights to be waived, neutralized, or non-existent such that my procedural right to an adjudication of my substantive rights becomes non-existent in custody cases?

5. Am I entitled to Constitutional protections for my substantive rights in these proceedings and if so, which specific substantive rights are at issue in these proceedings?

6. Is the Court authorized to issue advisory opinions?

7. Am I entitled to US Fourth and Fourteenth Amendment protections where the state court seizes my cash property to pay child support or pay another party?

8. Am I entitled to Fourth Amendment protections from open ended, exploratory searches and seizures where the state court may order Discovery, psychological studies, family studies, home studies, evaluations, etc.?

9. Is the state court authorized to censor my speech and association or my child's speech and association, and if it is, what is the source of the state court's authority to censor speech in these cases?

10. Are state courts authorized to compel me to pay for the speech of the other parent for which I strongly disagree, and if so, what is the source of the state court's authority to compel me?

11. Do the rules of civil procedure, due process, and standing apply differently to me as a civil litigant under family law than they apply to other civil litigants in other types of cases?

12. Am I entitled to a neutral and impartial decision maker in these custody suits?

13. Am I required to waive my federal constitutional rights to gain access to the state court under family law?

14. Does my child have substantive rights that are concomitant to my substantive rights and is my child entitled to constitutional protections for those rights in these court proceedings?

15. Does the state's "child's best interest" policy decision supercede a constitutional mandate?

Fit parent.

Do you have an attorney?

 

[flyingron]

1. What do you mean by "determination." Generally, you won't get some customized response if that's what you are asking. All the Constitutions require is that there be due process.

2. It applies if there is some Federal law that would overrule a State one. Child support/custody/etc... issues are almost always state things. You need to pursue this is State courts (and their appellate system first).

3. Eh? That's what courts do. Act under the color of law. Not sure what you are asking here.

4/5 Which substantive right are you talking about. Custody/Support/etc... are not usually substantive.

6. On what?

7. Fourth amendment doesn't apply to levies,etc.. passed down from courts. Again, all the 14th requires is due process. A court acting almost certainly is in the path of the due process.

8. Again, the if the court decides it is necessary, that meets the fourth amendment requirements.

9. Speech on the other and is a fairly substantive right, but certain things can be enjoined. You'll have to explain what you are talking about.

10. Yes, they can do that.

11. Possibly, possibly not. It's up for the state and the courts to set the procedure.

12. That's what the court is. If you think that the judge is not, you can make a proper motion to find anotehr.

13. Waive what rights? Again you're being nebulous.

14. You don't have rights that override another person's rights. Again, you have to explain what you're talking about.

15. What constitutional mandate?


Your problem is that you seem to have only a spattering of legal principals that you are bent to misapply to your situation which is going to at best waste time and jeopardize whatever legal point you are trying to make. And worst, it might get you subject to sanctions from the state for your misbehavior.

You seem to have dire need of an attorney who can take an INFORMED and dispassionate view of the facts and advise you just what applies under the law (Constitutional and otherwise).

 

[justblue]

Court How-Tos (Civil Procedure) | Texas Law Help

 

[Zigner]

SovCit nonsense...

 

[zddoodah]

Hard to answer a lot of these without ANY context at all.

1. Probably not.

2. The Supremacy Clause states, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

I have to wonder if you read this before asking your question because, if you had, you'd know that state courts and judges are "bound thereby." The extent to which the Supremacy Clause is relevant "to all proceedings in [some] case" that we know nothing about is obviously impossible to know.

3. Again, we know nothing about your case. However, family law is almost entirely state law.

4/5. Again, we know nothing about your case.

6. I have no idea if Texas state courts are authorized to issue advisory opinions, but most state courts are so authorized (or not prohibited) by their state constitutions and state law.

7/9. The Fourth Amendment is not relevant to such a situation. Whether the Fourteenth Amendment is relevant isn't apparent.

9. The answer to the first part of the question is maybe, depending on context. The answer to the second part of the question depends on the answer to the first part of the question.

10. Impossible to know with zero context.

11. Every case is unique. Beyond that, this question is way too vague to permit any further response.

12. Yes.

13. No.

14. Your child has constitutional rights. Whether those rights have any relevance in some case we know nothing about is impossible to know.

15. What "constitutional mandate" are you talking about?

 

[adjusterjack]

SovCit nonsense...

Right.

OP has been advised to get an attorney. That's all we need to say to him.

Thread closed.

Reopened by popular demand. Let's see where it goes.

 

[justblue]

Right.

OP has been advised to get an attorney. That's all we need to say to him.

Thread closed.

Reopened by popular demand. Let's see where it goes.

Thank you, Jack.

 

[Tax Counsel]

1. Am I entitled to a determination of what process is "due" under federal due process law?

Determination by whom? If the court fails to provide you due process you can challenge that in court. You won't succeed in simply asking the court to spell out for you all the rights you have.

2. Does Article VI of the United States Constitution , and, specifically, the Supremacy Clause of that article apply to the state court, to the presiding judge of the state court, and to all proceedings in the case?

Of course the state courts must follow the Constitution where it applies to them. But understand that some provisions of the Constitution only applies to the federal government and not the states.

3. Is the state court and the presiding judge of the state court a state actor being asked to take state action under color of the state's family code and will the orders of the court be enforced through the use of state power or state authority?

The state courts derive their authority by the applicable state law, and of course may enforce any valid state law, including the provisions of domestic relations (family) law.

4. Am I entitled to an adjudication of my substantive rights or does the court consider my substantive rights to be waived, neutralized, or non-existent such that my procedural right to an adjudication of my substantive rights becomes non-existent in custody cases?

You are entitled to the rights you have. The problem is that a lot of people misunderstand exactly what those rights are and how the courts work.

5. Am I entitled to Constitutional protections for my substantive rights in these proceedings and if so, which specific substantive rights are at issue in these proceedings?

You have a number of rights under the Constitution, and you are free to read the Constitution and relevant federal court opinions to learn about them. No one here is going to list them all for you.

6. Is the Court authorized to issue advisory opinions?

That depends on the applicable state law, but courts will not simply issue advisory opinions to just anyone asking for them. They are only issued in very specific circumstances. Asking a family court judge for an advisory opinion on a matter before the court is not likely to be received well.

7. Am I entitled to US Fourth and Fourteenth Amendment protections where the state court seizes my cash property to pay child support or pay another party?

You are, but I suspect you don't have a good understanding of your rights and the state's power here. The state laws that provide the process for garnish of wages and attachment of property provide you with the due process that the Constitution requires. The courts have long held that states have the power to impose child support and spousal support obligations and to enforce collection of them by garnishment and attachment. Raising some of the spurious arguments one finds on the internet to challenge that risks getting you cited for contempt or other violations of court rules or orders.

8. Am I entitled to Fourth Amendment protections from open ended, exploratory searches and seizures where the state court may order Discovery, psychological studies, family studies, home studies, evaluations, etc.?

Most of your protection against overbearing discovery, etc., will be found in state law, not the Constitution. And again, I suspect you may be thinking that you have more protection here than you really do. If you have a specific instance of excessive discovery or other efforts to get information, please provide the relevant facts to get helpful feedback. General open ended questions are only going to get you very limited responses. We aren't here to write legal textbooks for you, after all.

9. Is the state court authorized to censor my speech and association or my child's speech and association, and if it is, what is the source of the state court's authority to censor speech in these cases?

In some cases it does. No one here is going to write you a legal treatise explaining this stuff. If you have a specific instance were the court is limiting your speech, provide the relevant facts and you may get some useful feedback on it.

10. Are state courts authorized to compel me to pay for the speech of the other parent for which I strongly disagree, and if so, what is the source of the state court's authority to compel me?

Same answer as to #9.

11. Do the rules of civil procedure, due process, and standing apply differently to me as a civil litigant under family law than they apply to other civil litigants in other types of cases?

In some states the family law courts operate under a different set of rules tailored to those proceedings. That does not violate the Constitution.

12. Am I entitled to a neutral and impartial decision maker in these custody suits?

Yes.

13. Am I required to waive my federal constitutional rights to gain access to the state court under family law?

No.

14. Does my child have substantive rights that are concomitant to my substantive rights and is my child entitled to constitutional protections for those rights in these court proceedings?

It's not clear what you are asking for here.

15. Does the state's "child's best interest" policy decision supercede a constitutional mandate?

No, but the best interest of the child standard is one that is well accepted and been around for a long time. You'll have a hard time challenging that on a constitutional basis.

Fit parent.

If your fitness as a parent is being challenged in court, you really need a lawyer. I think I see the direction you want to go with this, and that direction is likely to simply make it easier for the other parent to get what he/she seeks.

 

[Austin Apexmale]

After a good conversation with adjusterjack and some further clarification, the thread was reopened and I'd first like to extend a big Thank You for that.

I will be as descriptive as possible on every issue and I WILL omit my personal opinion on the subject matter as I am only here for interpretation of state statutes and caselaw clarification. I DO encourage every Bar member to gice their opinion though, this is the only way we canncollectively benefit from the Q&A opportunity.

I currently have 50/50 possession and each parent is responsible for their own finances. I do not have pending litigation BUT, the Texas family code is set up so that Final Orders are legally, temporary orders in that either party can file for modification every 365 days. The TFC (Texas Family Code) even allows for a modification within 365 days under certain conditions. 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.

Having said that, I will start responding to and clarifying some questions.

Fit Parent

 

[Zigner]

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

 

[cbg]

And of course, the lawyer representing you won't have any knowledge of the statutes or caselaw and will need you to interpret them all for him.

 

[ldij46]

After a good conversation with adjusterjack and some further clarification, the thread was reopened and I'd first like to extend a big Thank You for that.

I will be as descriptive as possible on every issue and I WILL omit my personal opinion on the subject matter as I am only here for interpretation of state statutes and caselaw clarification. I DO encourage every Bar member to gice their opinion though, this is the only way we canncollectively benefit from the Q&A opportunity.

I currently have 50/50 possession and each parent is responsible for their own finances. I do not have pending litigation BUT, the Texas family code is set up so that Final Orders are legally, temporary orders in that either party can file for modification every 365 days. The TFC (Texas Family Code) even allows for a modification within 365 days under certain conditions. 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.

Having said that, I will start responding to and clarifying some questions.

Fit Parent

It works that way in every state. The reason for that is the law cares about the best interest of the children, not the best interest of the parents, therefore the law has to allow for changes in parenting arrangements if that is what is in the best interest of the child.

However, at the same time the courts have no interest whatsoever in changing a parenting arrangement that is working. Therefore, it takes a significant change in circumstance to cause a court to entertain a change in the parenting arrangement. Therefore, if you are a good co-parent who puts the best interest of the children first, above all else, then you will be very unlikely to find yourself in a situation where the other parent files to modify the arrangement.

Therefore, I would recommend putting more of your energy into being a good parent and co-parent, and significantly LESS energy into researching the law.

 

[Zigner]

Those who look for trouble often find it...

 

[Austin Apexmale]

1. What do you mean by "determination." Generally, you won't get some customized response if that's what you are asking. All the Constitutions require is that there be due process.

2. It applies if there is some Federal law that would overrule a State one. Child support/custody/etc... issues are almost always state things. You need to pursue this is State courts (and their appellate system first).

3. Eh? That's what courts do. Act under the color of law. Not sure what you are asking here.

4/5 Which substantive right are you talking about. Custody/Support/etc... are not usually substantive.

6. On what?

7. Fourth amendment doesn't apply to levies,etc.. passed down from courts. Again, all the 14th requires is due process. A court acting almost certainly is in the path of the due process.

8. Again, the if the court decides it is necessary, that meets the fourth amendment requirements.

9. Speech on the other and is a fairly substantive right, but certain things can be enjoined. You'll have to explain what you are talking about.

10. Yes, they can do that.

11. Possibly, possibly not. It's up for the state and the courts to set the procedure.

12. That's what the court is. If you think that the judge is not, you can make a proper motion to find anotehr.

13. Waive what rights? Again you're being nebulous.

14. You don't have rights that override another person's rights. Again, you have to explain what you're talking about.

15. What constitutional mandate?


Your problem is that you seem to have only a spattering of legal principals that you are bent to misapply to your situation which is going to at best waste time and jeopardize whatever legal point you are trying to make. And worst, it might get you subject to sanctions from the state for your misbehavior.

You seem to have dire need of an attorney who can take an INFORMED and dispassionate view of the facts and advise you just what applies under the law (Constitutional and otherwise).

Great questions! I should have been thorough in my OP. Thanks.


1. In reading caselaw, minor children have Constitutional Rights as well. In order to minimize a civil right, or fundamental right such as free speech and association, 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? In my research, a child's right to equal access to both their fit parents comes from substantive due process which can pretty much only be preserved through applying procedural due process.

When I discussed some issues with a civil rights attorney friend, here is what she stated in regards to parents and children:

"Both parents have a 1st Amendment free speech right to educate their child on their own moral, religious, and civic values both directly through formal teaching and indirectly through observed example. Each child has a concomitant right to learn and benefit equally from each parent. This teaching and learning is achieved both in formal teaching and through the child's observation of their parent in the intimacies of everyday life. Any reduction in child possession beyond the equal 50/50 split necessitated by parents living separately infringes this right which is protected at strict scrutiny. Where the state makes a best interest determination that one parent will have greater opportunity to educate their child, the state is exercising a prior restraint on speech based on the content of anticipated speech and the value the state places on that speech."

"Constitutional rights do not mature and come in to being magically only when one attains the state defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights". Planned Parenthood of Central Mo v Danforth, 428 U.S. 52, 74 (1974)

"Niether the Fourteenth Amendment nor the Bill of Rights is for adults alone." In re Gault, 387, U.S. 1, 13 (1967)

Croft, 103 F.3d at 1125 ("The Due Process Clause of the Fourteenth Amendment prohibits the government from interfering in familial relationships unless the government adheres to the requisites of procedural and substantive due process.")



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? "A Due Process violation occurs when a state-required break-up of a natural family is founded solely on a "best interests" analysis that is not supported by the requisite proof of parental unfitness". Quillion v. Walcott, 434 U.S. 246 (1978)

The Interest of Cooper, 621 P2d, 437, 2d 584 (1980), declared that a parent's interest in custody of his children is a liberty interest which, as noted above, has received considerable constitutional protection and a parent who is deprived of custody of his child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection. The liberty interest of the family encompasses an interest in retaining custody of one's children and, thus, a state may not interfere with a parent's custodial rights absent due process protections (Langton v. Maloney, 527 F Supp 538, D.C. Conn. [1981]). Federal and State Courts, under Griswold v. Connecticut, should protect, under the "life, liberty, and pursuit of happiness" phrase of the Declaration of Independence, the right of a man to enjoy the mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of the law.

The State of Texas presumed, up until 9/1/2021, that minizing a child's access to one parent under the Standard Possession Order after speration/divorce was in the child's best interest, disregarding SCOTUS mandates and surely contradictory to Texas Family Code Sec. 160.202. NO DISCRIMINATION BASED ON MARITAL STATUS which states "A child born to parents who are not married to each other has the samerights under the law as a child born to parents who are married toeach other."

I have the understanding that this Texas SPO statute is contradictory to the Supreme Court when it stated "Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competance and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand." Stanley v. Illinois, (1972).

And when the Court also stated "The presumption is not only contrary to fact some of the time, it is contrary to fact all of the time." Vlandis v. Kline, (1973)



3. When asking about the status of "state actors", according to caselaw, it appears that opposing counsel (on behalf of fheir clients request) is petitioning the judge as a state actor to minimize a child's fundemental rights and their other parent's fundamental rights through state action. Judges have judicial immunity but that judicial immunity does not extend to opposing counsel. Absent an adjudication of parental unfitness, under many federal citations, state actors can face civil suits for violations of fundamental rights. Does this expose opposing counsel to potential damages in civil suits for violations "Under the Color of Law" as a state actor?

"To satisfy the color of law requirement, "[t]he person charged must either be a state actor or have a sufficiently close relationship with state actors such that a court would conclude that the non-state actor is engaged in the state's actions." DeBauche, 191 F.3d at 506.

Courts and commentators have articulated several tests under which "the state-action label" may be applied to private actors. These tests include: the "symbiotic relationship" test (the state profits from a private wrong); the "public function" test (a private party performs a function that is traditionally the "exclusive prerogative of the state"); the "close or joint nexus" test (the state orders, coerces, or significantly encourages private action); the "joint participation" test (a private citizen conspires with a state actor to violate constitutional rights); and the "pervasive entwinement" test (the identity of the state and private actors largely overlap)." See Federal Judicial Center, Martin A. Schwartz & Kathryn R. Urbon

Sir I will continue on the others in a bit... I have to walk away from the desk for awhile. Thanks again!

Fit Parent

 

[zddoodah]

Hypothetical questions/discussion (such as what everything in your post #15 above seems to be) are rarely productive in a forum such as this, and it doesn't sounds as though you have anything specific, concrete or current to discuss, so I'm out.

 

[Austin Apexmale]

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

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

I currently have 50/50, co-parent very well over a 6 yr old boy. I've worked as a first responder for over 26 years and have served as a Chief Steward in a labor union for 21 years. No history of family violence. No history of drug or alcohol abuse. No periods of unemployment. Not a stranger to my child.

I am familiar with labor law in civil courts but am staying up to date on caselaw and statute understanding regarding family law. The letter of the law is quite different from the spirit of the law in almost every courthouse and even between courts just down the hall from eachother. The probability I end up in court again is exttemely low, but is it impossible? No. That is why I have continued my studies. 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. One attorney stated it would not end there for him, that the judge could very well punish him on cases that go before his court in the future and he has a family he needs to concern himself with. This is one reason I sought some clarification here.

Please stay on topic. Thanks.

Fit Parent

 

[zddoodah]

Please stay on topic.

As far as I can tell, the topic of this thread is "abstract constitutional concepts in family law cases," which, as I just noted isn't likely to be terribly productive. What I will tell you is that issues under the federal constitution rarely arise in family law cases.

 

[Austin Apexmale]

Hypothetical questions/discussion (such as what everything in your post #15 above seems to be) are rarely productive in a forum such as this, and it doesn't sounds as though you have anything specific, concrete or current to discuss, so I'm out.

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). Absent parental unfitness, is it a misunderstanding of caselaw that "the child's best interest" doctrine cannot be a compelling state interest? The Supreme Court explains why this cannot be in Reno v. Flores, 507 US 292, 305 (Supreme Court 1993). In short, the Court said best interest is a policy decision not a constitutional mandate. The state can choose to act in a child's best interest or not based on many factors and this level of choice simply cannot support a "compelling" interest. Further, because the Constitution presumes that parents are fit and that fit parents make the best decisions for their children, the state's opinion of a child's best interest has no validity without showing something more. See Troxel v. Granville, 530 US 57, 72, 73 (Supreme Court 2000), (As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a "better" decision could be made.)

Have I misinterpreted? Thanks.



Fit Parent

 

[Austin Apexmale]

As far as I can tell, the topic of this thread is "abstract constitutional concepts in family law cases," which, as I just noted isn't likely to be terribly productive. What I will tell you is that issues under the federal constitution rarely arise in family law cases.

Thank you. The discussion is not about whether I am a good parent. The education I receieve here, as well as in many other areas, is education that we as parents pass on to our children.

Fit Parent