TOOL OF THE DAY: Entanglement – State Action Doctrine exception
CATEGORY: Family Law Doctrines
When can someone be held responsible for violating the constitutional rights of an individual? Since we are only dealing with family law here, we will keep this very specific.
So I decided to ask the question “When can the other parent be held responsible for being a participant for violating your constitutional rights?”In general, an individual is not responsible to respect that you have constitutional rights. They can violate them in ways that government agencies cannot, unless the state you live in has created laws to prevent it.
For instance, a private company can tell you that you cannot post a poster at their business because it offends them. This in essence is a limitation of free speech. But the private business is not responsible to obey your constitutional rights and can set these limits.
But for today, I am looking at when does a parent in a child custody battle violate your constitutional rights, or ever. There are many possible routes to take with this question. Let’s explore the one that I found as an exception to the state action doctrine called “entanglement.”
Entanglement is a form of “abuse of process.”
And “abuse of process” is “the use of legal process by illegal, malicious, or perverted means. Examples include serving (officially giving) a complaint to someone when it has not actually been filed, just to intimidate an enemy; filing a false declaration of service (filing a paper untruthfully stating a lie that someone has officially given a notice to another person, filing a lawsuit which has no basis at law, but is intended to get information, force payment through fear of legal entanglement or gain an unfair or illegal advantage. Some people think they are clever by abusing the process this way. A few unscrupulous lawyers do so intentionally and can be subject to discipline and punishment. Sometimes a lawyer will abuse the process accidentally; an honest one will promptly correct the error and apologize.”**
So it would seem that when a parent withhold’s a child from the other parent in violation of a court order and then uses a person that the court has appointed, like a child therapist, further deprive you of your child, this would seem to be a form of entanglement. Since their violation has been used to “gain an unfair or illegal advantage.” This tactic has especially been effective when parental alienation is involved. If the court then relies on that child therapist to deprive you of your time and rights to that child, it would seem that the parent has been an actor in a violation of your Fourth Amendment because there was not a lawful order in place that authorized them to keep your child from you when they acted.
This would follow the thinking in Soldal v. Cook County, where “the Supreme Court found that the private owner of a mobile home park was acting under color of state law when he acted with sheriff’s deputies to seize an individual’s property…The Court found that this conduct constituted state action in violation of the Fourth Amendment because there was not a lawful eviction order or other judicial authorization.”
One of the deciding factors used in entanglement is whether the individual acted in concert with government officials. When this happens, they can be held responsible for the requirement to comply with your constitutional rights.
Perhaps you can bring up this topic the next time you are discussing the topic of violation of court orders along with parental alienation with your attorney.
*Please check with an attorney to further research and explore this idea. We are not attorneys and are not responsible for your legal results if you use this informaiton. This information is for exploratory purposes to generate interest in areas of discussion.
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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)
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Disclaimer: I am NOT an attorney or a lawyer. I do NOT practice law in any federal or State court system. Any information provided by me to you, regardless of how specific, is NOT intended to be legal advice under any state or federal law. I provide research, written strategies, and non-professional personal opinions on the Constitution and State laws as free exchange of politically important information that also serves an important public need and interest allowed under the First Amendment. You are highly encouraged to engage an attorney in your State to help you with the specifics of your legal issues and the law in your State. If you are a pro se litigant then you bear all and full responsibility for understanding the law in your state and acting under the law in your state. Nothing you receive from me is intended to be a “legal” document for purposes of any type of filing in any court. You are free to use my words for your personal non-commercial benefit, or as an aide in petitioning your government for redress of perceived wrongs, if properly cited where appropriate. YOU TAKE SOLE RESPONSIBILITY FOR ANY LEGAL ACTIONS YOU PURSUE AND THE RESULTS THAT YOU GET. I BEAR NO RESPONSIBILITY FOR YOUR RESULTS. MY OPINIONS ARE NOTHING MORE THAN MY PERSONAL NON-PROFESSIONAL OPINIONS OR BELIEFS. I MAKE NO CLAIMS OF LEGAL COMPETENCY IN THE LAW UNDER ANY GOVERNMENT STANDARD OF COMPETENCY IN THE LAW.
The information provided above is not a substitute for the advice of an attorney. You should consult an attorney regarding your rights under the law.
- See more at: https://www.fixfamilycourts.com/divorce-child-custody-blog/daily-tool-motion-for-protective-order-sample-template/#sthash.6DjgnL1K.dpuf
*Constitutional Law Fourth Edition Erwin Chemerinsky
**http://dictionary.law.com/Default.aspx?selected=2292
