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
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