Galluzzo Equal Custody Brief | Challenging Ohio State Custody Laws

Challenging Ohio State Custody Laws

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_______________________

No. 04-3527

_______________________

Michael A. Galluzzo,

Plaintiff - Appellant,

v.

Champaign County, Court of Common Pleas;

Roger B. Wilson; Teresa A. Cook, also known

as Teresa A. Galluzzo; State of Ohio

Defendant - Appellees.

_______________________

Amicus Brief of Bill Wood Supporting Reversal in accord with

Plaintiff – Appellant Michael Galluzzo

On Appeal from the United States District Court

Case No. 3:01-CV-174

_______________________

Bill Wood

6220 Lake Providence Lane

Charlotte, North Carolina, 28277

amicus curiae - pro se

March 14, 2005

TABLE OF AUTHORITIES............................................................................ iii

STATEMENT OF AMICUS INTEREST.......................................................... 1

SUMMARY OF THE ISSUES......................................................................... 3

FIRST ERROR OF LAW.............................................................................. 3

SECOND ERROR OF LAW......................................................................... 4

THIRD ERROR OF LAW............................................................................. 8

REDUCING NEGATIVE OUTCOMES FOR CHILDREN............................ 11

CAN ANYONE HEAR THE CHILDREN CRY? ...................................... 12

VIABILITY OF MARRIAGE......................................................................... 20

FIRST AMENDMENT MARRIAGE AND FAMILY PRIVACY PROTECTIONS      23

DOING SUBSTANTIAL JUSTICE................................................................ 26

OUTCOME OF A FAVORABLE RULING FOR THE APPELLANT........... 29

CONCLUSION............................................................................................... 29

CERTIFICATE OF COMPLIANCE ............................................................... 31

CERTIFICATE OF SERVICE ........................................................................ 32

TABLE OF AUTHORITIES

Cases

Andrews v. Andrews, 188 U.S. 14 (1903)...................................................... 18

Armstrong v. Manzo, 380 U.S. 545 (1965) (per curiam).................................. 8

Baker's Ex'rs v. Kilgore, 145 U.S. 487 (1891)................................................ 17

Bonner v. Circuit Court of St. Louis, 526 F.2d 1331 (8th Cir. 1975)............. 23

Bower v. Hardwick, 478 U.S. 186 (1986)...................................................... 23

Bramlet v. Wilson, 495 F.2d 714 (8th Cir. 1974)........................................... 23

Carey v. Population Services International, 431 U.S. 678 (1977).................. 21

Catz v. Chalker, 142 F. 3d. 279 (6th Cir. 1998)............................................... 7

Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974).................... 21

Conley v. Gibson, 355 U.S. 41 (1957)............................................................ 23

Davis v. Michigan Dept. of Treasury, 489 U. S. 803 (1989)............................ 9

Due v. Tallahassee Theaters, Inc., 333 F.2d 630 (5th Cir. 1964).................... 23

Friends of the Earth v. Laidlaw Environmental, 528 U.S. 167 (2000).............. 7

Gilmore v. City of Montgomery, 417 U.S. 556 (1974)................................... 21

Griswold v. Connecticut, 381 U.S. 479 (1965)............................................... 21

Haines v. Kerner, 404 U.S. 519 (1972)........................................................... 22

Hodgson v. Minnesota, 497 U.S. 417 (1990)................................................. 18

Hughes v. Rowe, 449 U.S. 5 (1980) (per curiam)........................................... 22

Ingraham v. Wright, 430 U.S. 651 (1977)........................................................ 5

Jackson v. City of Columbus, 194 F.3d 737 (6th Cir. 1999)............................ 5

Lassiter v. Department of Social Servs., 452 U.S. 18 (1981)....................... 5, 7

Little v. Streater, 452 U.S. 1 (1981) (unanimous)............................................. 8

Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938).................................... 23

Maynard v. Hill, 125 U.S. 190 (1888)...................................................... 17, 18

Meyer v. Nebraska, 262 U.S. 390 (1923)....................................................... 20

Moore v. East Cleveland, 431 U.S. 494, 503 -504 (1977) (plurality)............. 21

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).......................... 21

Olmstead v. United States, 277 U.S. 438 (1928) (dissent).............................. 21

Parr v. Great Lakes Express Co., 484 F.2d 767 (7th Cir. 1973)..................... 23

Pierce v. Society of Sisters, 268 U.S. 510 (1925)..................................... 20, 21

Poe v. Ullman, 367 U.S. 497 (1961) (dissent)................................................ 21

Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808 (6th Cir. 2002) (en banc) cert. denied................................................................................ 4, 5, 7

Quilloin v. Walcott, 434 U.S. 246 (1978)....................................................... 21

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) (nem. con.)............................. 20

Skinner v. Oklahoma, 316 U.S. 535 (1942).................................................... 18

Smith v. Organization of Foster Families, 431 U.S. 816 (1977)..................... 21

Stanley v. Georgia, 394 U.S. 557 (1969)........................................................ 21

Stanley v. Illinois, 405 U.S. 645 (1972).......................................................... 21

Troxel v. Granville, 530 U.S. 57 (2000)............................................. 3, 4, 5, 20

United States v. Howell, 318 F.2d 162 (9th Cir. 1963).................................. 23

Washington v. Glucksberg, 521 U. S. 702, (1997)........................................... 4

Wisconsin v. Yoder, 406 U.S. 205 (1972)...................................................... 21

Zablocki v. Redhail, 434 U.S. 374 (1978)................................................. 17, 21

Statutes

42 U.S.C. § 1983.......................................................................................... 8, 9

42 U.S.C. § 651 et. seq..................................................................................... 8

42 U.S.C. § 666................................................................................................ 8

Ohio Revised Code § 3109.04................................................................. passim

Other Authorities

5 C. Wright & A. Miller, Federal Practice and Procedure 1357 (1969)........... 23

Amicus Brief of Attorney Stanley Charles Thorne......................................... 10

Appellant’s Proof Brief.................................................................................... 6

District Court Merits Decision.......................................................................... 4

Elizabeth S. Scott, Rational Decision making About Marriage and Divorce, 76 Va. L. Rev. 9, 29 (1990).................................................................................................. 11

Los Angeles Times, 16 September, 1985. Cited in Amneus, The Garbage Generation 13

Ohio Merits Brief.......................................................................................... 4, 6

Richard Kuhn and John Guidubaldi. Child Custody Policies and Divorce Rates in the US. 11th Annual Conference of the Children's Rights Council October 23-26, 1997     17

Robert F. Cochran, Jr. & Paul C. Vitz, Child Protective Divorce Laws: A Response to the Effects of Parental Separation on Children, 17 Fam. L.Q. 327 (1983)...... 11

United States v. Salerno, 481 U.S. 739 (1987)....................................... 6, 7, 24

Rules

Federal Rule of Civil Procedure 8(f)................................................................ 22

Ohio Rule 75(N)...................................................................................... passim

U.S. Constitutional Provisions

First Amendment..................................................................................... passim

Fourteenth Amendment........................................................................... passim

Congressional Record

Excerpts from the Statement of Bill Wood, US House Testimony on Welfare Reform Reauthorization Proposals, 107-87 (H.R. 4090), 2002............................. 11

National Center for Health Statistics Vol. 43, No. 9. 1995............................. 17

Senate Bill 657 (2003), the Strengthening Families Act of 2003..................... 16

U.S. House Testimony on Child Support and Fatherhood Proposals 107-38. June 28, 2001.................................................................................................................. 13

US House Testimony on Teen Pregnancy prevention PRWORA, Public Law 104-193, Hearing 107-48, November 15, 2001..................................................................... 15

Social Studies

A. Frost, PhD; B. Pakiz, EdM. The Effects of Marital Disruption on Adolescents: Time as a Dynamic. American Journal of Orthopsychiatry, 60(4), (1990)........ 11, 12

Cynthia C. Harper and Sara S. McLanahan, "Father Absence and Youth Incarceration." Annual Meeting of the American Sociological Association (1998 San Francisco)   12

David B. Larson, James P. Swyers, and Susan S. Larson, The Costly Consequences of Divorce (Rockville, Md.: National Institute for Healthcare Research, 1995).......... 12

David M. Fergusson, Michael T. Lynskey, and L. John Horwood, "Childhood Sexual Abuse and Psychiatric Disorders in Young Adulthood: I. Prevalence of Sexual Abuse and Factors Associated with Sexual Abuse," Journal of the American Academy of Child and Adolescent Psychiatry, Vol. 34 (1996)..................................................... 13

David Popenoe, Life Without Father (New York: Martin Kessler Books, 1995) 12

Judith S. Wallerstein & Sandra Blakeslee, Second Chances: Men, Women, and Children a Decade After Divorce (1989).................................................................... 11

Judith S. Wallerstein et al., The Unexpected Legacy Of Divorce: A 25 Year Landmark Study (2000)....................................................................................................... 11

Margaret F. Brinig and Douglas W. Allen, These Boots Are Made for Walking: Why Most Divorce Filers are Women, 2 American Law and Economics Review 126 (2000)   10, 14, 15

Neil Kalter, Ph.D., University of Michigan. Long-Term Effects of Divorce on Children: A Developmental Vulnerability Model, American Journal of Orthopsychiatry, 57(4), (1987).................................................................................................................. 12

Wisconsin Department of Health and Social Services, Division of Youth Services, "Family Status of Delinquents in Juvenile Correctional Facilities in Wisconsin," (1994)      13

STATEMENT OF YOUR AMICUS INTEREST

I am the custodial parent of a 13 year-old girl after a grueling 2 ½ year divorce and custody action in the State of North Carolina (beginning in 1998 ending with a final order in 2001). My attorney refused to raise the constitutional issues in my case while my ex-wife had her own employer provided attorney, aligned with the full and open support of a Guardian ad litem staff attorney, [1] a volunteer ad litem attorney, a volunteer advocate, and another ad litem staff resource. In conjunction with this, a Ph.D. psychologist and Master’s level Social worker prepared a report for the court with considerable falsified content.

When my attorney would not raise the constitutional issues, and then pressured me not to fight back, I fired my attorney, proceeded pro se, and with a lot of prayer and a three day bench trial, I finally prevailed. The reasons I prevailed were because the ad litem staff employee admitted bias on the stand, the ad litem volunteer openly told my ex-wife, while on the stand, what testimony to give in the presence of the court (which upon objection was admonished by the court), the Psychologist’s report was proven falsified, my ex-wife admitted her vindictiveness in court, and finally, recorded evidence noting her stating she’d commit perjury finished the case.

Any schoolboy notions I had about justice in American Courts were shattered by the corruption I experienced first hand. With roughly 50% of marriages ending in divorce, like so many others, my only experience with the courts has been shaped by this experience. I have since discovered that as a direct result of the corruption in “family” court, the judiciary nationally is falling into disrepute.

In spite of how it may appear, the system didn’t work in my case, I was fortunate enough to have one of the very few fair and conscientious jurists I have heard of anywhere in family law, and the opposition was so completely refuted even the judge was stunned.

I prevailed and the corruption I experienced was so rampant that my conscience could not allow me to stand idly by with this broken system. I have literally studied the law and social issues for well over 10,000 hours, offered congressional testimony to the US House Ways and Means Committee several times, and authored amicus briefs to help share with the judiciary what I have learned about how broken the system is.

I must reiterate, I PREVAILED against a corrupt system, but the stench of corruption in “family law” is so odious that after almost seven years, I work constantly to see constitutional respect for the family in the arena of “family” law. I have since learned that while our system is not perfect, this whole arena of “family” law is bringing the judiciary into disrepute and is slowly having a corrosive affect on other areas of law. My goal is simple – restore constitutional protections to the family and end the widespread abuses of “family” law.

SUMMARY OF THE ISSUES

Appellant’s Proof Brief raises three errors of law by the District Court.

The first error is the District Court’s failure to recognize the fundamental nature of parental rights.
The second error was in not applying the appropriate Fourteenth Amendment test.
The third error was that Appellant did not have sufficient redressability to proceed.

FIRST ERROR OF LAW

On the first error of law, Troxel v. Granville, 530 U.S. 57 (2000), with its extensive legal authority unequivocally holding that parental rights are a fundamental liberty interest, is dispositive. “[I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Id. at 66.

In accord with Troxel, the Sixth Circuit recognizes a parent’s fundamental liberty interest in the context of divorce and custody actions. Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808, ___ (6th Cir. 2002) (en banc) cert. denied, 123 S.Ct. 72 (2002) (“[I]n child custody proceedings… consider… the ‘vital’ and ‘fundamental’ nature of the rights at stake…”).

The Ohio Attorney General certainly recognizes the rights of each parent in a custody action are fundamental and equal. “[T]he case of a divorcing parent does not involve a dispute between a person with a fundamental right and a person without – both parents have an equal fundamental right to direct the upbringing of the children.” Ohio Merits Brief, pg. 9; “[B]etween two individuals with an equal fundamental right….” Id., pg. 10; “The state… is settling a dispute between the two individuals with equally compelling and fundamental rights.” Id., pg. 11.).

The Sixth Circuit should reverse the District Court’s first error and hold as a matter of law that each parent in a child custody case is vested with a “fundamental” liberty interest in parental rights. Troxel, Popovich, id.

SECOND ERROR OF LAW

In failing to recognize the constitutional stature of parental rights in child custody actions, the District Court saw no reason to apply any of the Fourteenth Amendment tests related to procedural due process, substantive due process, or equal protection.

For purposes of substantive evaluation, Washington v. Glucksberg, 521 U. S. 702, 721 (1997) requires a 'careful description' of the fundamental liberty. As noted by the District Court (Merits decision, pg. 14-15) citing from Troxel v. Granville, 530 U.S. 57, 65 (2000) the explicit fundamental liberty interests of parents protected by the First and Fourteenth Amendment include:

“The liberty interest at issue… care, custody, and control of … children…, direct the upbringing and education… nurture… and direct his destiny… prepare him for additional obligations… , companionship, and management…”

Procedural due process analysis requirements are well established. “The Fourteenth Amendment prohibits any state deprivation of life, liberty, or property without due process of law. Application of this prohibition requires the “familiar two-stage analysis: We must first ask whether the asserted individual interests are encompassed within the Fourteenth Amendment's protection of ‘life, liberty or property’; if protected interests are implicated, we then must decide what procedures constitute ‘due process of law.’" Ingraham v. Wright, 430 U.S. 651, 672 (1977). The Sixth Circuit is in accord. See Jackson v. City of Columbus, 194 F.3d 737, 749 (6th Cir. 1999).

The Sixth Circuit applies strict scrutiny for substantive due process analysis, deciding that “… in analyzing the safeguards needed in child custody proceedings”, the Due Process Clause requires a balancing of "the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions." Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808, 813-14 (6th Cir. 2002) (en banc) cert. denied, 123 S.Ct. 72 (2002), citing Lassiter v. Department of Social Servs., 452 U.S. 18, 27 (1981).

Ohio concurs with strict scrutiny for fundamental rights. “In most cases where a fundamental right is involved, a court must go through a strict scrutiny analysis.” Ohio Merit Brief, pg. 8. However, Ohio has urged the use of the Salerno test and Appellant agrees. United States v. Salerno, 481 U.S. 739 (1987). The Salerno test (and not a single quote out of context) is a prime example of Fourteenth Amendment strict scrutiny analysis in a facial constitutional challenge:

(1) The case addressed a criminal bail bond matter.

(2) The Court engaged in a review three separate times of the considerable procedural due process protections (Id. at 742-43, 747-48, 751-52) concluding, “We think these extensive safeguards suffice to repel a facial challenge.”

(3) The “clear and convincing evidence” standard was applied. Id. at 742.

(4) The statutes in question did not provide “unbridled discretion”. Id. at 742.

(5) The statute contained appropriate “compelling interests”. Id. at 749. The statute under review was narrowly tailored to the public interest and safety by applying only to those who posed a danger to society.

(6) The statute was narrowly tailored to affect those interests. Id. at 750. (“individuals who have been arrested for a specific category of extremely serious offenses”). Appellant’s Proof Brief pg. 33-34.

Carefully reading Salerno for the actual test, with its extensive protections, shows the challenged statute should survive where under remote circumstances it might occasionally deprive a litigant of a brief period of freedom. On the other hand, the statute should not survive when, as in the case of 75(N) in pari materia with 3109.04, the damage it does is pervasive, conspicuous, undeniable, and constitutionally inexcusable.[2]

The Sixth Circuit should reverse the District Court’s second error and hold as a matter of law that the Ohio scheme implicates the “fundamental” liberty interest of parents in a child custody case, and that it must pass strict scrutiny analysis -- or be declared unconstitutional. Lassiter, Salerno, and Popovich, id.

THIRD ERROR OF LAW

Appellant is entitled to redress in several ways, e.g. see Friends of the Earth v. Laidlaw Environmental, 528 U.S. 167 (2000) for one form of redress and this Court’s decision in Catz v. Chalker, 142 F. 3d. 279 (6th Cir. 1998) for another. (Catz clearly allows Appellant to first challenge the constitutionality of the statute in federal court, and then ask the Ohio trial court to reconsider its order under constitutionally compliant standards).[3]

Friends of the Earth v. Laidlaw Environmental, supra, demonstrates redressiblity as a powerful deterrent to any trial court judge to operate under laws or rules after they are declared unconstitutional. Supremacy Clause jurisprudence makes it unreasonable to expect that a trial court judge would continue practices declared unconstitutional by a superior tribunal. To do so would be to step so far outside of the bounds of the oath of office as to remove the judicial robes for the purposes of 42 U.S.C. § 1983 liability.

Appellant has noted Armstrong v. Manzo, 380 U.S. 545 (1965) (per curiam), which is dispositive on the point that post-deprivation remedial actions are not sufficient to remedy the problems caused by the operation of 75(N). Where there are no post-deprivation remedial alternatives to a constitutionally flawed scheme such as Ohio’s 75(N) in pari materia with 3109.04, the scheme must be struck down.

Noting another form of redress, Appellant has prospective relief as against Theresa Cook. [4] See Little v. Streater, 452 U.S. 1, 13 (1981) (unanimous):

The private interests implicated here are substantial. Apart from the… father's pecuniary interest in avoiding a substantial support obligation and liberty interest threatened by the possible sanctions for noncompliance, at issue is the creation of a parent-child relationship. This Court frequently has stressed the importance of familial bonds, whether or not legitimized by marriage, and accorded them constitutional protection. Just as the termination of such bonds demands procedural fairness, so too does their imposition. (citations omitted)

With the prospect of having to give up part of the “care and custody” she now enjoys and the substantial financial benefits she gained “under color of law,” Teresa Cook is an adverse party from whom Appellant is entitled to see redress under 42 U.S.C. § 1983:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage… subjects, or causes to be subjected, any citizen… to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable…” [5]

Of the several forms of redress to which Appellant is entitled, his action has devolved to the simple facial constitutional challenge to now before this Court. [6]

REDUCING NEGATIVE OUTCOMES FOR CHILDREN

The following sections demonstrate conclusively that the state’s “compelling governmental interest” in protecting children is only supported by constitutionally compliant rules and laws which do everything possible to discourage a “race to the courthouse.” The volume of social studies data is conclusive that all other “compelling interests” are nothing but straw men to detract from the devastation the current legally insufficient process provides.

“With the widely documented damage to children that divorce causes (which is worthy of judicial notice), it is inconceivable that the parent who initiates a divorce for no good reason is acting in the best interests of their children.” Amicus Brief of Attorney Stanley Charles Thorne, pg. 9. A comprehensive and exhaustive research study has concluded that child custody, over all other variables, is the determining factor for who decides to break their marriage vows.[7] The ex parte nature of the Rule 75(N) encourages the decision to divorce with the strongest incentives that could be offered -- rewarding the swift with child custody and financial payments simply for filing first.

CAN ANYONE HEAR THE CHILDREN CRY? [8]

“The casualties of the “divorce revolution” are the children…[9] ‘There is substantial evidence that the process of going through their parents' divorce and the resulting changes in their lives are psychologically costly for most children.’ [10] ‘The impact of the marital disruption was most pronounced among girls, who skipped school more frequently, reported more depressive behavior, and described social support in more negative terms than did boys from recently disrupted homes.’ [11] Math scores for girls are dramatically reduced without their biological father in the home.[12] ‘Among teenage and adult populations of females, parental divorce has been associated with lower self-esteem, precocious sexual activity, greater delinquent-like behavior, and more difficulty establishing gratifying, lasting adult heterosexual relationships… [I]n these studies, the parental divorce typically occurred years before any difficulties were observed.” [13] Children of divorced parents are significantly more likely to become delinquent by age 15, regardless of when the divorce took place [14] and boys without an intact family were twice as likely to end up behind bars, [15] with one Wisconsin study showing juvenile delinquent incarceration 12 times higher for children from divorced families. [16] "Most victims of child molestation come from single parent households or are the children of drug ring members." [17] Stepchildren are abused, psychologically, physically, and sexually, far more often than their peers from intact families [18] with re-marriage and step-parenting posing one of the greatest risk factors for child abuse and child sexual abuse, [19] second only to abuse in single-parent homes.

Having analyzed all 46,000 divorces filed in 1995 in the states of Connecticut, Virginia, Montana and Oregon, it was determined that custody was the overriding reason that divorce petitions are sought.[20] See attached, Margaret F. Brinig and Douglas W. Allen, “These Boots are Made for Walking, Why Most Divorce Filers are Women,” 2 American Law and Economics Review 126 (2000) (numerous notes and references omitted): [21]

[E]xpectations of custody… drive divorce filing. By making a preemptive filing, the wife may be able to secure rights such as child or spousal support that require court enforcement. When the wife files, she is often given temporary custody of the children. Temporary custody, like possession, tends to be “nine-tenths of the law” and plays a role in the assignment of permanent custody, especially when the divorce does not occur for some time. Ibid. at 137.

If it is custody outcomes that most influence divorce filings, changes in custody rules (or their likely outcomes)… should most shape the patterns of both marriage and divorce… [T]his could take the form of a presumption of joint custody or a rule that made post-divorce patterns mirror pre-separation time shares as closely as possible, with sole custody only in cases where one party can show the other parent unfit. An appropriate custody rule mitigates the incentive for one-party filing for the purpose of gaining unilateral control over the children and, to the extent both parents remain involved through visitation or child support, the other spouse. Ibid. at 138-139

[T]he person who anticipates custody is the one who files for divorce… Divorce without custody means giving up a large part of the joy of being a parent-while continuing the financial responsibility for the child… This is consistent with our model: when there is no clear assignment of wealth or custody at divorce, there is no systematic filing behavior. Ibid. at 146, 147.

[B]ecause custody outcomes are so obviously important to who files for divorce, changes in custody rules are likely to have a major impact not only upon divorce filings but upon the conduct of the marriage itself… In many modern marriages, men seemingly hold up their parts of a traditional bargain in a world where many, if not most, women have changed their roles dramatically… Ibid. at 157.

Our results are consistent with our hypothesis that filing behavior is driven by self-interest at the time of divorce… We have found that who gets the children is by far the most important component in deciding who files for divorce, particularly when there is little quarrel about property, as when the separation is long. Ibid. at 158.

For more extensive information on the destructive affects of divorce, custody, and the attendant fatherlessness caused by divorce and custody actions, see the following congressional statements:

US House Testimony on Teen Pregnancy prevention PRWORA, Public Law 104-193 (Hearing 107-48). November 15, 2001, 43 citations and references -- effects of fatherlessness and divorce on teen pregnancy. (http://waysandmeans.house.gov/legacy.asp?file=legacy/humres/107cong/11-15-01/Record/wmwood.htm)

US House Testimony on Child support and Fatherhood proposals (Hearing 107-38). June 28, 2001, 83 citations or references - Social consequences of failed divorce and child custody policies (http://waysandmeans.house.gov/legacy.asp?file=legacy/humres/107cong/6-28-01/record/chillegalfound.htm) -- Father absence, a byproduct of divorce, illegitimacy, and the erosion of the traditional family, is responsible for; filling our prisons, causing psychological problems, suicide, psychosis, gang activity, rape, physical and sexual child abuse, violence against women, general violence, alcohol and drug abuse, poverty, lower academic achievement, school drop-outs, relationship instability, gender identity confusion, runaways, homelessness, cigarette smoking, and any number of corrosive social disorders.

Senate Bill 657 (2003), the Strengthening Families Act of 2003, while not passed into law made several significant findings consistent with the Congressional testimony above. Divorce and fatherlessness, which are promoted by Rule 75(N) and 3109.04, are destructive to children, for example: [22]

(1) Nearly 24,000,000 children in the United States, or 34 percent of all such children, live apart from their biological father. (2) Sixty percent of couples who divorce have at least 1 child. (3) The number of children living with only a mother increased from just over 5,000,000 in 1960, to 17,000,000 in 1999, and between 1981 and 1991 the percentage of children living with only 1 parent increased from 19 percent to 25 percent. (4) Forty percent of children who live in households without a father have not seen their father in at least 1 year and 50 percent of such children have never visited their father's home. (6) Children who live without contact with their biological father are, in comparison to children who have such contact--
(A) 5 times more likely to live in poverty; (B) more likely to bring weapons and drugs into the classroom; (C) twice as likely to commit crime; (D) twice as likely to drop out of school; (E) more likely to commit suicide; (F) more than twice as likely to abuse alcohol or drugs; and (G) more likely to become pregnant as teenagers.
(7) Violent criminals are overwhelmingly males who grew up without fathers. (18) Despite declining national and State rates, in the United States 4 out of 10 girls get pregnant at least once by age 20, nearly 1,000,000 girls each year. There are nearly 500,000 teen births each year. (19) Although teen pregnancy and birth rates are declining, the United States still has the highest rates of teen pregnancy and birth in the industrialized world, nearly twice as high as the next highest nation, Great Britain. (21) At present, 79 percent of births to teen mothers are out-of-wedlock and nearly 1/2 of all non-marital first births occur to teens. (24) Teen pregnancy and childbearing costs United States taxpayers at least $7,000,000,000 per year.

States with high levels of joint physical child custody in divorce show declining rates of divorce [23] while policies that support or promote sole custody appear to contribute to high divorce rates. [24] (Judicial Notice of all of the aforementioned congressional testimony and record is hereby respectfully requested)

VIABILITY OF MARRIAGE

Preserving marriage is certainly a cause worthy of the “state’s interest” by reducing divorce rates. See Baker's Ex'rs v. Kilgore, 145 U.S. 487, 491 (1891) ("public interests overshadow private -- one which public policy holds specially in the hands of the law for the public good…”); See Zablocki v. Redhail, 434 U.S. 374, 398 (1978) citing from Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). ("Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.”); Maynard v. Hill, 125 U.S. 190, 211, 212 (1888) (“[Marriage is the most important social relation]… the first step from barbarism to incipient civilization, the purest tie of social life and the true basis of human progress.")

Marriage and family are the most basic building blocks of a stable and cohesive society providing another of the state’s interests. See Maynard v. Hill, 125 U.S. 190, 211 (1888) ("[Marriage] is an institution… which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.") ; Andrews v. Andrews, 188 U.S. 14, 30-31 (1903), (“Marriage, as creating the most important relation in life, [has] more to do with the morals and civilization of the people than any other institution” citing from Maynard v. Hill, supra at 210)

Since the enactment of the Fourteenth Amendment, the marital relationship has been repeatedly characterized as “a basic civil right of man” so far as it specifically relates to the possibility of a husband and wife to procreate and have children. See e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (“We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.”); [25] Hodgson v. Minnesota, 497 U.S. 417, 447 (1990) (“The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed `essential,'... `basic civil rights of man,' ” (citations omitted)

Rule 75(N), and its inherent incentives to race to the courthouse to end the family relationship, affect the fundamental liberty and basic civil rights of parents in the care and custody of their children.   The operation of the statute strongly deter any possibility of reconciliation. Ohio’s scheme directly encourages the destruction of the family by providing custody and financial incentives to the first to file, and in so doing, increases and exacerbates the damage to the children of divorce.

FIRST AMENDMENT MARRIAGE AND FAMILY PRIVACY PROTECTIONS

Appellant has raised First Amendment privacy protection issues in the First Amended Complaint ¶ 5, [26] in original briefing (footnotes 17 and 20 [27] ), and upon Appellant’s Request for Reconsideration pg. 2, and finally noted in the District Court’s Decision on Order on Reconsideration, pg. 1 - 2. First Amendment jurisprudence also militates against any presumption in favor of the constitutionality of the State of Ohio scheme. Not only does Fourteenth Amendment “fundamental liberty” acquire substantive protection, so also do First Amendment rights of association. Many of the same parent-child relationship cases cited in Troxel v. Granville, supra, are also noted in Roberts v. U.S. Jaycees, 468 U.S. 609, 617 – 620 (1984) (nem con):

Our decisions have referred to constitutionally protected "freedom of association" in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment - speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties.

The intrinsic and instrumental features of constitutionally protected association may, of course, coincide. In particular, when the State interferes with individuals' selection of those with whom they wish to join in a common endeavor, freedom of association in both of its forms may be implicated… [T]he nature and degree of constitutional protection afforded freedom of association may vary depending on the extent to which one or the other aspect of the constitutionally protected liberty is at stake in a given case.   We therefore find it useful to consider separately the effect of… what could be called… freedom of intimate association and… freedom of expressive association.

The Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State. E. g., Pierce v. Society of Sisters, 268 U.S. 510, 534 -535 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Without precisely identifying every consideration that may underlie this type of constitutional protection, we have noted that certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers between the individual and the power of the State. See, e. g., Zablocki v. Redhail, 434 U.S. 374, 383 -386 (1978); Moore v. East Cleveland, 431 U.S. 494, 503 -504 (1977) (plurality opinion); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); Griswold v. Connecticut, 381 U.S. 479, 482 -485 (1965); Pierce v. Society of Sisters, supra, at 535. See also Gilmore v. City of Montgomery, 417 U.S. 556, 575 (1974); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 -462 (1958); Poe v. Ullman, 367 U.S. 497, 542 -545 (1961) (Harlan, J., dissenting). Moreover, the constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one's identity that is central to any concept of liberty. See, e. g., Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Smith v. Organization of Foster Families, 431 U.S. 816, 844 (1977); Carey v. Population Services International, 431 U.S. 678, 684 -686 (1977); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639 -640 (1974); Stanley v. Illinois, 405 U.S. 645, 651 -652 (1972); Stanley v. Georgia, 394 U.S. 557, 564 (1969); Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

The personal affiliations that exemplify these considerations… are those that attend the creation and sustenance of a family - marriage, e. g., Zablocki v. Redhail, supra; childbirth, e. g., Carey v. Population Services International, supra; the raising and education of children, e. g., Smith v. Organization of Foster Families, supra; and cohabitation with one's relatives, e. g., Moore v. East Cleveland,supra. Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty. Conversely, an association lacking these qualities - such as a large business enterprise - seems remote from the concerns giving rise to this constitutional protection…

Between these poles, of course, lies a broad range of human relationships that may make greater or lesser claims to constitutional protection from particular incursions by the State. Determining the limits of state authority over an individual's freedom to enter into a particular association therefore unavoidably entails a careful assessment of where that relationship's objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments…

Family rights, including the rights to intimate association with one’s children, are not only protected by the Fourteenth Amendment, but also clearly by the First Amendment as well. While the Fourteenth Amendment jurisprudence is sufficient to support Appellant’s contentions, First Amendment jurisprudence strongly militates for striking down both 75(N) and 3109.04 as unconstitutional.

DOING SUBSTANTIAL JUSTICE

Rule 8(f) directs the courts to construe pleadings so as to do substantial justice and a pro se complaint is held to even “less stringent standards than formal pleadings drafted by lawyers.” (Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175-76, 66 L.Ed.2d 163 (1980) (per curiam) citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). The Federal “Rules require… ‘a short and plain statement of the claim’… following the simple guide of Rule 8(f) that ‘all pleadings shall be so construed as to do substantial justice’… “The Federal Rules reject the approach that pleading is a game of skill in which one misstep… may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” (Conley v. Gibson, 355 U.S. 41, 47-48 (1957) citing Cf. Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)). It is “a well-settled matter of law that a ‘complaint should not be dismissed… because a plaintiff’s allegations support the particular theory he advances, for the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory.”’ Bower v. Hardwick, 478 U.S. 186, 201-202 (1986), (Blackmun, Marshall, and Stephens dissent) citing considerable unoverturned law for this proposition [28]). See also Bonner v. Circuit Court of St. Louis, 526 F.2d 1331, 1334 (8th Cir. 1975) (“[T]he court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory.” quoting Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974)).

OUTCOME OF A FAVORABLE RULING FOR APPELLANT

Your amicus recognizes the practical affects of a ruling in favor of Appellant. Inarguably, striking down Ohio’s laws as lacking proper Fourteenth Amendment protections for “fundamental” and “basic civil rights” will have far-reaching effects. Though any transition period of such a ruling would be difficult, the longer-term results would inure to the benefit of the citizens of the State of Ohio (and the State is its citizens) in many ways, e.g. enhanced stability of the marital relationship, a reduction in the need for social welfare spending, and most importantly, the well-being of children who will be less likely to be savaged in Ohio’s one-sided custody procedures because both parents will be afforded due process and equal protection.

CONCLUSION

The First Amendment provides additional protections for the privacy interests in families. Being protected by the First Amendment, and being a substantive or fundamental liberty, Ohio’s normal presumption of statutory constitutionality does not obtain. In conjunction, the State of Ohio must meet the exacting requirements of strict scrutiny under Salerno, supra, for their statutes to survive a constitutional challenge. The burden shifts to the State of Ohio to demonstrate that its statutes are in full compliance with the Salerno test.

For the reasons set forth in Appellant’s Proof Brief, the other amicus briefs in support of Appellant, and this amicus brief in support of Appellant, Rule 75(N) and 3109.04 must give way to the Constitution under the landmark holding in Marbury v. Madison, 5 U.S. 137, 177 (1803).

“It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it… The constitution is… a superior, paramount law, unchangeable by ordinary means… [A] legislative act contrary to the constitution is not law… [A]n act of the legislature repugnant to the constitution is void.”

Your amicus urges reversal of the District Court’s order on the grounds that Ohio Rule 75(N) and ORC 3109.04 violate the parental rights of fit parents in all Ohio custody actions--, they are legally insufficient under the requirements of the First and Fourteenth Amendments of the United States Constitution as a matter of law and facially unconstitutional.

[1]   Twice changed during the course of proceedings for a total of three GAL staff attorneys.

[2] To the knowledge of your amicus, the only case where strict scrutiny was applied to a statute under a general constitutional challenge and the statute survived is Salerno.

[3] The Federal Courts would not be making any modification to a state Court order; no aspect of child support, custody, or divorce would be determined or re-determined by the Federal Courts, only the constitutionality of the staute(s).

[4] The state can not return the time that has already been lost, but it may, as a matter of both equity and justice relieve part or all of the improperly fashioned child support obligation and immediately move to provide some amount of equitable “care and custody”. Relieving the child support would be consistent with the State’s Federal obligation to provide due process in child support determinations (42 U.S.C. § 666), and in grant fund reporting to the U.S. Government (42 U.S.C. § 651 et. seq.) so as to prevent a fraud on the government.

[5] 42 U.S.C. § 1983 not only makes Teresa Cook a proper party, but explicitly precludes an action against a judge unless declaratory relief has been sought first.

[6] Before being dismissed as parties, both the state court judge and the state trial court articulated prospective relief. As a pattern and practice, the judge and the County Court have interpreted all custody law (pre-deprivation, hearing and post-deprivation remedial measures) to be the same--, under this pattern and practice of statutory construction Galluzzo has unequivocal prospective relief. (“Defendants affirmatively state that the rule must not only be read in pari materia with Ohio Rev. Code § 3109.04, but also with all other statutes relating to domestic relations…”) Post remedial adjustments to Galluzzo’s fundamental rights under Ohio domestic relations law give him prospective relief. See Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989) ("It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme").

[7] Margaret F. Brinig and Douglas W. Allen, These Boots Are Made for Walking: Why Most Divorce Filers are Women, 2 American Law and Economics Review 126 (2000).

[8] Excerpts from the Statement of Bill Wood, US House Testimony on Welfare Reform Reauthorization Proposals, 107-87 (H.R. 4090), April 11, 2002. 109 citations or references on the consequences of marriage instability in society. Online version from the House Ways and Means Committee at http://waysandmeans.house.gov/legacy.asp?file=legacy/humres/107cong/4-11-02/records/billwood.htm

[9] Judith S. Wallerstein et al., The Unexpected Legacy Of Divorce: A 25 Year Landmark Study (2000); Judith S. Wallerstein & Sandra Blakeslee, Second Chances: Men, Women, and Children a Decade After Divorce (1989); Robert F. Cochran, Jr. & Paul C. Vitz, Child Protective Divorce Laws: A Response to the Effects of Parental Separation on Children, 17 Fam. L.Q. 327 (1983)

[10] Elizabeth S. Scott, Rational Decision making About Marriage and Divorce, 76 Va. L. Rev. 9, 29 (1990)

[11] A. Frost, PhD; B. Pakiz, EdM. The Effects of Marital Disruption on Adolescents: Time as a Dynamic American Journal of Orthopsychiatry, 60(4), October, 1990

[12] David Popenoe, Life Without Father (New York: Martin Kessler Books, 1995), p. 148

[13] Neil Kalter, Ph.D., University of Michigan. Long-Term Effects of Divorce on Children: A Developmental Vulnerability Model, American Journal of Orthopsychiatry, 57(4), October, 1987

[14] Abbie K. Frost and Bilge Pakiz, "The Effects of Marital Disruption on Adolescents: Time as a Dynamic," American Journal of Orthopsychiatry, Vol. 60 (1990), pp. 544-555; David B. Larson, James P. Swyers, and Susan S. Larson, The Costly Consequences of Divorce (Rockville, Md.: National Institute for Healthcare Research, 1995), p. 123.

[15] Cynthia C. Harper and Sara S. McLanahan, "Father Absence and Youth Incarceration." Annual Meeting of the American Sociological Association (1998 San Francisco).

[16] Wisconsin Department of Health and Social Services, Division of Youth Services, "Family Status of Delinquents in Juvenile Correctional Facilities in Wisconsin," April 1994.

[17] Los Angeles Times, 16 September, 1985. Cited in Amneus, The Garbage Generation

[18] David M. Fergusson, Michael T. Lynskey, and L. John Horwood, "Childhood Sexual Abuse and Psychiatric Disorders in Young Adulthood: I. Prevalence of Sexual Abuse and Factors Associated with Sexual Abuse," Journal of the American Academy of Child and Adolescent Psychiatry, Vol. 34 (1996), pp. 1355-1364.

[19] US House Testimony 107-38, June 28, 2001. Pg. 96-97.

[20] While your amicus does not concur with the author’s noted personal preference for changes in custody determinations to favor the “caretaker” presumption of custody, additional resources note that where joint custody is more common divorce rates drop. Your amicus holds the position, consistent with the US Supreme Court, that society’s interest in the preservation of marriage is more important than potentially selfish interests. Your amicus also notes that disincentives against divorce should not be absolute in cases such as abuse or adultery. The information from this study is not included to ask the court to consider any form of gender-bias, only to show that custody determinations also drive divorce behavior--, thereby negating the state’s interest in “pendent lite” proceedings and “tiebreakers.”

[21] The variables considered in this study about who initiates divorce included abuse, adultery, better opportunities, “trading up,” etc. The factor above all else that determined who filed for divorce was who expected to get custody.

[22] See the Thomas Online Legislative section http://thomas.loc.gov/cgi-bin/query/z?c108:S.657: (Select SEC. 2. FINDINGS.)

[23]   National Center for Health Statistics Vol. 43, No. 9. 1995.

[24] Richard Kuhn and John Guidubaldi. Child Custody Policies and Divorce Rates in the US. 11th Annual Conference of the Children's Rights Council October 23-26, 1997. Washington, D.C.

[25] For more extensive authority on this point, see Amicus Brief of Attorney Stanley Charles Thorne, Footnote 4.

[26] Noting “where Plaintiff’s right to freedom of association with his children has been infringed upon pursuant to the First Amendment…”.

[27] See e.g., footnote 20 “Right of Association, First Amendment.”

[28] The cited law includes: Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974); see Parr v. Great Lakes Express Co., 484 F.2d 767, 773 (7th Cir. 1973); Due v. Tallahassee Theaters, Inc., 333 F.2d 630, 631 (5th Cir. 1964); United States v. Howell, 318 F.2d 162, 166 (9th Cir. 1963); 5 C. Wright & A. Miller, Federal Practice and Procedure 1357, pp. 601-602 (1969); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

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Published on: 2005-07-31 (597 reads)

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