TOOL OF THE DAY: Invoking 4th Amendment Protection
CATEGORY: Family Law
If you are facing threats to undergo drug testing, psychiatric evaluations, or social studies or else be cut off from your child…read this post to find out what elements you need in order to claim that your privacy is being intruded illegally.
A good place to start for finding out the elements required in your State would be a book on Evidence. In this case, we look to the Texas Evidentiary Foundations book. Beginning on page 463 there is a section called “Motions to Suppress”. Here is where you find the basic rules for blocking the Court from forcing you into psychiatric evaluations, social studies, family studies, and other invasive investigations in your State.
Before you claim the right to refuse being ordered to undergo that psychiatric evaluation or drug test, you might want to make sure that you meet the criteria for that protection.
In order to claim that you have a right to protect the privacy of your personal decisions in your family life you have to be able to check off the following: (These come from page 465 of Texas Evidentiary Foundations book, Second Edition 1998 — the book is older but the foundation remains the same.)
- Did you have a proprietary or possessory interest in the place searched?
- Is your presence in or on the place searched legitimate?
- Do you have such control of the place to be entitled to exclude others?
- Did you take normal precautions, prior to the search, customarily taken by a person expecting privacy?
- Was the place searched for private use?
- Is your claim of privacy consistent with historical notions of privacy?
I know some of these sound strange. That’s because they are basically addressing actions and physical places that you think more about as a location. Your mind is something that you possess a privacy interest in and it is a physical place. So if you think of your mind as a place and the decisions that you make regarding your children and your relationship with them as private family decisions, you will see how they apply.
After you have determined that you meet the criteria listed, next you determine “The Nature of the Governmental Intrusion.” This is the very next section in this book.
Here is where the Due Process clause of the 14th amendment gets introduced. This Texas Evidence book reads, “The Fourth Amendment and article I. section 9 of the Texas Constitution apply only to searches and seizures made by the government. Ah, but hang on here. This is not where this rule stops. This might be where many of the Courts and opposing counsel try to stop.
This is generally where the Court will say “Well this only applies if the State was taking action, but this is a dispute between two private parties.” Well, yes it is a dispute between two private parties. However, the actions that the Court asks others to take on their behalf is initiated by the government. The Court, by the way, is the government. Therefore this does apply. So don’t let them fool you.
If the private person, which can be one of the experts that the Court orders to conduct a psychiatric evaluation or social study, etc. if their efforts are intended to further the Court’s effort in depriving you of your rights or time with your children, then this is government interference.
Your 4th amendment right to be protected from unwarranted search and seizure however are not protected from a private person acting on their own. So if you leave private things laying around and private information unsecured, posting your e-mails regarding things you otherwise considered private, or even go to a psychiatrist or undergo a drug test on your own, etc., these could be argued to no longer be of a private nature.
So if you consent to undergo a social study or a drug test and then decide you don’t want that information used after all, you pretty much acquiesced and might have blown your claim of privacy.
If you have an evidence book for your State, which we would highly recommend as something that you invest in right away if you don’t. This book served as an invaluable resource for us when we were going through child custody modification.
So for all of you who are being bullied right now. It is because the Court knows that if you don’t give in or consent you are preserving your right to challenge any evidence that they collect from forcing you into those studies. And you might get their decision overturned. This angers them tremendously. They get irritated and may make further threats. (They won’t admit to this being the reason. They will try to make it look like they are just trying to be efficient at protecting a child, and make it seem like you are just getting in the way and causing unnecessary delays. But this is simply because they are operating under the assumption that they get to take over your rights with your child. — Let me tell you a secret that will be further developed in later posts and that is a statute stating that they have the right to determine best interest of a child doesn’t give them the right to not apply the proper due process protections.)
We have seen and heard judges make threats only for those threats to be empty and hollow. However, there is always the risk that the judge follow through with their threat to jail you or cut you off from your child. There is also an even graver possibility that your relationship might be destroyed between you and your child forever if you allow them to force their way into your life and take control over it. So make your choices wisely. And perhaps you might have second thoughts about given in to your fears of jail.
Take Care and see you back here tomorrow!
Read our book for citations of specific cases that you can use in your arguments to the court when you are arguing for the proper protection of your family rights.
You can learn more about this and how to reason through your rights and protect your rights in our books and courses. Click at the top on Store and you will find the books and training tabs. The book teaches you your rights and the training courses teach you how to argue them like I demonstrated above.]
*We are not telling you to disturb the peace. This paragraph is a quote from the movie “Selma” 2014.
Strategic Parental Rights Strategist, Instructor, Constitutional Scholar, and Author
Divorce Solutions and Child Custody Solutions
Co-author “Not in the Child’s Best Interest” (Book on parental rights and children’s rights)
Co-author “Protecting Parent-Child Bonds: 28th Amendment” (Book includes guide for legislators)
Twitter: https://twitter.com/fixfamilycourts (@fixfamilycourts)
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