Joint Custody Right

The Fourteenth Amendment: An Individual Right, Not a Marital Privilege

Joint Custody is your natural fundamental right that can NOT be made to depend upon your being married to your child's other parent. The right to custody of your child is an "individual" or "personal" right that derives from nature and is constitutionally protected against state action by the Fourteenth Amendment. The Fourteenth Amendment is very clear that it protects the rights of individuals against state action. There is nothing anywhere in the constitution the ties your custody rights to a marriage.

In marriage both parents have full and equal custody over their child as individual rights and they share in the decision-making. What the marriage provides is a default means of resolving decision-making disputes. What divorce does is it removes the default marital process of removing disputes.

The removal of the dispute resolution process does NOT justify terminating your rights. It only justifies providing a legal structure for resolving parenting disputes within the limits of parental rights constitutional protections.

Rather than focus on replacing the default resolution process with a more formal process when child custody suits are filed, your state has chosen to illegally terminate your custody rights anytime a child custody suit is filed. Termination of constitutional rights upon the mere filing of a legal petition is an "illegitimate" state action that can NOT be legally supported by the state under any conditions.

The reality is that the day before the suit is filed you have full constitutional protections for your child custody rights. The moment a child custody suit is filed, those protections evaporate and are replaced with nothing more than a sole state official's viewpoint regarding your otherwise lawful and constitutionally protected parenting choices. This Civil Law Post-Divorce Child Custody Scheme is absolutely illegal.

Procedural Due Process: Shifting the Burden of Proof

Child custody rights are "fundamental" rights. This is a hugely important concept because the rules of civil procedure change when the state seeks to regulate fundamental rights. Most importantly, the burden of proof shifts.

When the state regulates a less-than-fundamental right, the state can presume that its regulation is constitutional. If you believe it isn't, you can sue but the burden of proof is on you to prove that the regulation is unconstitutional against the presumption that it is constitutional. The standard of constitutional review that applies is the Rational Basis Test that requires the state to have a "legitimate state interest" and state authority defined in a manner that is "Rationally Related" to that legitimate state interest. Additionally, the actions that the state takes must NOT be arbitrary or capricious.

The legal definition of "arbitrary and capricious" is a good bit stricter or more lenient for the state than common usage of the terms would dictate.

When the state regulates "fundamental rights," such as your right to child custody, the state is NOT permitted to presume that its regulation is constitutional. If the state asserts authority to violate your fundamental rights, the state is required to initiate a legal deprivation hearing before doing so. The purpose of the deprivation hearing is to provide a forum where you can challenge the state's actions or intended actions against the constitutional presumption that the state's regulation is invalid.

In this hearing, a state official with legislatively delegated authority to speak on the legal issues asserted must appear. They must establish standing to be a party to the suit and they must testify as to why the court should declare their intended regulation to be constitutional under the specific facts of your case. The presumption is that the state's intended regulation is illegal. The burden of proving otherwise is the state's.

You have a right to confront this state official in a court of law. You have the right to testify against the state's intended action. You have the right to cross-examine the state's testimony. These rights are core elements of fundamental fairness which is a procedural due process protection for your rights. They are generally considered structural or jurisdictional issues, meaning that if they are not provided by the court, the court lacks any jurisdiction to bind your rights or to permit the state to deprive you of your rights.

Procedural due process is the court's responsibility. Your court has the burden of ensuring that the proceedings are fundamentally fair in their process.

It is NOT permissible for the state to wait for you to sue. Before the state's actions can be valid, the state MUST initiate the deprivation hearing, providing you with "specific" "actionable" notice that is sufficiently informative for you to defend your interests against the state's asserted interests.

Why the 'Best Interests of the Child' Standard Is Unconstitutional As Applied

The Best Interests of the Child standard as applied in the state's Civil Law Post-Divorce Child Custody Scheme violates these core principles of fundamental fairness and it is facially unconstitutional because there exists NO set of circumstances whereby fundamental rights may be infringed upon the mere viewpoint of a sole state official regarding matters of conscience in child-rearing that are otherwise legal.

The standard is unconstitutional as applied to you when the state fails to provide the proper deprivation hearing.

The only proper use of the best interest standard is the way Texas applies it in state initiated termination proceedings. In these proceedings, the state must meet statutory requirements to terminate rights. If the state meets that burden but the court believes that it would NOT be in the child's best interests to separate the child from a parent, then the court can take other less drastic actions, even though the terms of the statute have been met justifying termination.

You are entitled to joint custody postdivorce NOT because of any state statute but rather because you have a "natural," "individual," and "fundamental" right to have custody over your minor child that is protected from state action by the Fourteenth Amendment. Because choices regarding marriage, including the choice to end the marriage through divorce, are constitutionally protected choices, the state is NOT permitted to punish this choice by terminating your parental rights as a consequence of your making the choice.

This is one of the many Equal Protection arguments which demonstrate that your state's Civil Law Post-Divorce Child Custody Scheme is blatantly unconstitutional.

The question becomes why do child custody judges and family law attorneys fail to recognize this simple inescapable operation of law. The answer is that it is NOT in their financial best interests to properly apply the law and they will happily violate your rights to make money for themselves as long as you let them.

Strategic Litigation: Why You Must Never 'Ask' for Joint Custody

You should NEVER ask for joint custody. You SHOULD ALWAYS demand joint custody as a natural individually and federally protected fundamental right which the Fourteenth Amendment holds the state may NOT infringe. Challenge the presumptive termination of fundamental rights as a procedural due process violation, as a substantive rights violation, and as an Equal Protection violation. We will happily show you how to do this.