DAILY TOOL: Is the other parent Guilty of Violating My Constitutional Rights?

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.