Many state court judges believe that you waive your rights when you enter a custody battle because they say you are asking the court to decide what you cannot decide together.
This, of course, is total baloney, but you need to know how to fight it.
What should you do?
There are many ways you can waive your rights, so you have to identify what these are and eliminate them. Let’s look at one of the biggest ones today in this blog post. Best interest of the child. Almost every parent who enters the court has a pleading filed by their attorney that says to the court, these two parents could not get along so we are asking the judge to make decisions for the parents regarding their child. The court takes this as you have now turned over all of your rights to the judge.
The First Step is to Update Your Pleadings First: You need to review your pleadings, your petition, counterpetition, or your response to the other party. Look for any place where you may be asking the court to make a best interest determination directly or by reference to statute. If you find any, remove them.
Second: If you are the petitioner and have already filed your petition then modify your petition*. If you are the respondent and have already filed a counterpetition, then amend your counterpetition* making your intentions and requests explicitly clear. Make a plain statement in this petition that you are asking the court to protect and preserve your constitutional rights and your child’s constitutional rights through your state court’s federal jurisdiction under the supremacy clause. (Click here to get the book to learn more about it.) We show you how to do this in our Motion samples. These contain the language and arguments on how to do this. These are not customized by state, so you will have to pull up your own statutes and rules and conform the arguments to address any caselaw that your court is using to continue these civil rights violations. There are a lot of excuses they will use. So we did the hard part for you and created the core argument in the motions, in our online classes, and our books.
Third: Make a plain statement that you expect the court to uphold the federal public policy, to safeguard your and your child’s constitutional rights, [Content protected for "Gold Member". Want access to the case law, get a membership and this section will be revealed. members only]
Fourth: Make a plain statement that you expect the court to enforce the federal public policy over any state public policy including the state’s best interest of the child public policy and to fail to do so is a violation of the supremacy clause, [Content protected for "Gold Member". Want access to the case law, get a membership and this section will be revealed. members only]
Fifth: Make plain statement that you do NOT waive any federal or state constitutional rights by entering these proceedings and that if the trial court conditions access to this court upon a waiver of rights the court commits error because it violates the due process right to open access to the courts, [Content protected for Gold Member only receive access to the case law here. members only]
Sixth: Make a plain statement that failing to act on this federal public policy would be error because it would constitute discrimination against federal rights. [Content protected for members only]
This is just the bare minimum you need to do to assert your rights against the many tricks that the custody courts use to take from you. There are many more steps you need to know how to do. You need to force the trial court to exercise its federal jurisdiction and to exercise it properly. Often they will trick you by saying that the state statute defines the due process you are to receive. You need to know why this is error and how to challenge it and much more. Click here if you would like the book and motions that help you complete the above steps. BEGINNER’S GUIDE TO FAMILY LAW
- *(Always check with an attorney whether you retain one or not, ask for any legal technical information regarding updating pleadings. Sometimes changing dates on things can create other consequences so look into that and any other reasons the attorney gives you for or against making changes and amendments to your current pleadings and filings.)