hey are all scared but well protected

February 18, 2017 § Leave a comment

Dr. Monty Weinstein, Dr Monty the Original Guru of Fathers RIghts and Parental Alienation.
This is part three of a three part series with Dr. Monty on Parental Alienation. You can view the other two…
YOUTUBE.COM

Legally Kidnapped

February 18, 2017 § Leave a comment

Legally Kidnapped
County Supes Push DCFS To Make Back Payments To Foster Parents by Mid-March
Elvis Presley’s twin granddaughters ‘taken into care after indecent images found on dad’s computer’
Judge apologizes to parents of girl left in ‘limbo’ for years after flawed Motherisk drug test
Kirkless council breached parents’ human rights by removing baby
How hollow rhetoric and a broken child welfare system feed Texas’ sex-trafficking underworld
DHHS supervisor on the run
Why do more L.A. County black children end up in foster care? Experts clash over the reason
Grand Jury Says Foster Care System In New York Endangers Children
County Supes Push DCFS To Make Back Payments To Foster Parents by Mid-March
Posted: 17 Feb 2017 05:27 AM PST
Citing hundreds of missed county payments to foster parents and children since December, the Board of Supervisors pushed child welfare staffers Tuesday to come up with a plan to make all back payments by mid-March.

More >> County Supes Push DCFS To Make Back Payments To Foster Parents by Mid-March
Elvis Presley’s twin granddaughters ‘taken into care after indecent images found on dad’s computer’
Posted: 17 Feb 2017 04:58 AM PST
The twin granddaughters of Elvis Presley have allegedly been taken into care after their mum found ‘hundreds of indecent photos of children’ on their dad’s computer.

More >> Elvis Presley’s twin granddaughters ‘taken into care after indecent images found on dad’s computer’
Judge apologizes to parents of girl left in ‘limbo’ for years after flawed Motherisk drug test
Posted: 17 Feb 2017 04:41 AM PST
A 10-year-old girl has been in “legal limbo” for nearly half her life after she was “wrongly apprehended” from her mother who had failed a flawed drug test from the Sick Kids’ Motherisk laboratory.

More >> Judge apologizes to parents of girl left in ‘limbo’ for years after flawed Motherisk drug test
Kirkless council breached parents’ human rights by removing baby
Posted: 17 Feb 2017 04:31 AM PST
Social workers have been accused of breaching the human rights of a couple after their week-old baby was taken off them in hospital when the father praised “the benefits of formula milk”.

More >> Kirkless council breached parents’ human rights by removing baby
How hollow rhetoric and a broken child welfare system feed Texas’ sex-trafficking underworld
Posted: 16 Feb 2017 04:08 PM PST
How the crusade against sex trafficking in Texas has left child victims behind.

When Mia was 16, she walked out of a Houston children’s emergency shelter. She had to go, she told the staff. Her pimp was waiting.

More >> How hollow rhetoric and a broken child welfare system feed Texas’ sex-trafficking underworld
DHHS supervisor on the run
Posted: 16 Feb 2017 09:45 AM PST

A supervisor with the Department of Health and Human Services (DHHS) child protection unit, who has held similar positions in Seymour, is wanted by police for allegedly possessing child pornography.

More >> DHHS supervisor on the run
Why do more L.A. County black children end up in foster care? Experts clash over the reason
Posted: 16 Feb 2017 09:11 AM PST
Black children account for eight out of 100 Los Angeles County children, yet they make up 28 out of 100 foster children, according to Department of Children and Family Services data.

More >> Why do more L.A. County black children end up in foster care? Experts clash over the reason
Grand Jury Says Foster Care System In New York Endangers Children
Posted: 16 Feb 2017 09:34 AM PST
A damning report from a grand jury in New York accuses the state’s foster care system of endangering children. The jury found that the state’s poor regulations and bureaucracy allowed an alleged predator access to disabled boys for nearly 20 years.

More >> Grand Jury Says Foster Care System In New York Endangers Children

Grand jury report blasts NY foster care system, identifies ‘abysmal’ communication failures

Oral Arguments: to recording officials or public actors.

January 23, 2017 § Leave a comment

http://www.illinoiscorruption.net/common/oral-arguments.html

More DCFS stuff ?

January 23, 2017 § Leave a comment

Legally Kidnapped
B.C. Indigenous leaders accuse Bennett of ‘stall tactics’ on child welfare
Dr. Phil Goes To Capitol Hill To Demand Change To The Foster Care System
Dad Forced To Give Newborn Daughter Up For Adoption For Just One Simple Reason
One father’s fight to remove his name from child abuse register
B.C. Indigenous leaders accuse Bennett of ‘stall tactics’ on child welfare
Posted: 16 Jan 2017 05:53 AM PST
B.C. Indigenous leaders are “extremely concerned” about the state of First Nations child welfare, and, in a strongly worded letter, are accusing Canada’s Indigenous affairs minister of using “stall tactics” to delay fixing the broken system.

More >> B.C. Indigenous leaders accuse Bennett of ‘stall tactics’ on child welfare
Dr. Phil Goes To Capitol Hill To Demand Change To The Foster Care System
Posted: 16 Jan 2017 05:50 AM PST
Dr. Phil often says that the foster care system is broken and in need of drastic change. In an effort to bring about change, he and Dr. Frank Lawlis, Chairman of the Dr. Phil Advisory Board and founder of the Lawlis Peavey PNP Center, went to Washington, D.C. to address members of the House of Representatives to make a case to overhaul the foster care system.

More >> Dr. Phil Goes To Capitol Hill To Demand Change To The Foster Care System

He’s still a System Suck

Dad Forced To Give Newborn Daughter Up For Adoption For Just One Simple Reason
Posted: 16 Jan 2017 05:15 AM PST
A 20-year-old Utah father claims his baby daughter is being put up for adoption against his will.

More >> Dad Forced To Give Newborn Daughter Up For Adoption For Just One Simple Reason
One father’s fight to remove his name from child abuse register
Posted: 15 Jan 2017 05:54 AM PST
John M. Mylett is a former Coast Guardsman and police officer with a serious manner. He’s also a noncustodial father who is not to be trifled with on matters concerning his daughter’s care.

More >> One father’s fight to remove his name from child abuse register

Is there any of these Child aganceythat work?

January 23, 2017 § Leave a comment

Legally Kidnapped
Top Five Threats to Child Welfare from ACA Repeal and Proposals to Alter Medicaid
Movement grows to reform child protective services on Pine Ridge reservation
DCF says case workers erred by allowing now-deceased child back in home
Former DCF investigator arrested for falsifying records, FDLE says
Study: DCF underperforming Florida’s foster children
Northern Ireland inquiry finds widespread abuse of children in care
Top Five Threats to Child Welfare from ACA Repeal and Proposals to Alter Medicaid
Posted: 21 Jan 2017 05:14 AM PST
Proposals by Congress and President-elect to repeal the Affordable Care Act (ACA)—including the Medicaid expansion—to turn Medicaid into a block grant, and to cut resources, all can sound very abstract to social workers and policymakers coping with the day-to-day tragedies and crises of child welfare.

More >> Top Five Threats to Child Welfare from ACA Repeal and Proposals to Alter Medicaid
Movement grows to reform child protective services on Pine Ridge reservation
Posted: 21 Jan 2017 05:12 AM PST
A heart wrenching child custody case has sparked a wide ranging effort to reform child protective services on the Pine Ridge Indian Reservation.

More >> Movement grows to reform child protective services on Pine Ridge reservation
DCF says case workers erred by allowing now-deceased child back in home
Posted: 21 Jan 2017 05:07 AM PST
Failures were made by child welfare workers in Manatee County when the decision was made to allow Ethan Thompson and his five brothers to return home, according to a Florida Department of Children and Families report.

More >> DCF says case workers erred by allowing now-deceased child back in home

Former DCF investigator arrested for falsifying records, FDLE says
Posted: 21 Jan 2017 05:04 AM PST
A former child protective investigator from the Florida Department of Children and Families turned himself in Friday for falsifying records, the Florida Department of Law Enforcement said.

More >> Former DCF investigator arrested for falsifying records, FDLE says
Study: DCF underperforming Florida’s foster children
Posted: 21 Jan 2017 05:01 AM PST
The federal agency has given the Florida Department of Children and Families has 90 days to devise a plan to improve care for foster children.

More >> Study: DCF underperforming Florida’s foster children
Northern Ireland inquiry finds widespread abuse of children in care
Posted: 20 Jan 2017 06:11 AM PST
Shocking instances of historic child abuse in institutions in Northern Ireland have been outlined in the findings of a four-year inquiry into mistreatment of residents.

More >> Northern Ireland inquiry finds widespread abuse of children in care

The appearance the collection rackets to big to turn TITLE IV monies.

January 18, 2017 § Leave a comment

Supreme Court of Wisconsin

In re the Marriage of:

Petitioner- Respondent- Cross-Appellant, Petitioner v.

Respondent-Appellant-Cross-Respondent

PETITION FOR REVIEW 2002

(The following arguments were presented to the Wisconsin Supreme Court in a petition for review. In 2002, the Wisconsin Supreme Court denied

this petition, without any explanations.
They are made available here to allow others to adopt these arguments in their own cases.)

ARGUMENTS

I. PARENTS IN DIVORCE AND PATERNITY CASES HAVE A FUNDAMENTAL AND STATUTORY RIGHT TO ASSUME EQUAL PERIODS OF PLACEMENT OF THEIR CHILDREN AND THE APPLICATION OF WIS STAT. 767.045(1)(A)2, 767.045(4), 767.11(10), 767.11(14), SECOND SENTENCE OF 767.24(4)(A), 767.24(5), AND 767.325 (1)(B), IN CASES WHERE THERE IS NO CREDIBLE EVIDENCE THAT EITHER PARENT IS UNFIT OR THAT A PLACEMENT PROPOSAL THAT MAXIMIZES PLACEMENT OF THE CHILD WITH BOTH PARENTS WOULD BE HARMFUL TO THE CHILD, IS THEREFORE UNCONSTITUTIONAL?

A. Applicable Laws
The Fourteenth Amendment of the United States Constitution states,

“no State shall . . . deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The essence of this constitutional principle is that like persons in like circumstances will be treated similarly.

On June 5, 2000, the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 65 (2000) , affirmed

“ the interest of parents in the care, custody, and control of their children – is perhaps the oldest of the fundamental liberty interests recognized by this court.”

The Supreme Court also stated,
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“In light of this extensive precedent, it 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 p.66

and

“So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the state to inject itself into the private realm of the family to further question the ability of that parent to make decisions concerning the rearing of that parent’s children.” Id. at p.68, 69

and acknowledged a

“traditional presumption that a fit parent will act in the best interest of his or her child.”Id. at p.68.

It also made clear that

“the Due Process Clause does not permit a state to infringe on the fundamental right of parents to make child-rearing decisions simply because a state judge believes a ‘better’ decision could be made.” Id. at p.72, 73.

While Troxel involved a placement dispute between a parent and a grandparent, in disputes between two fit parents, the due process and equal protection provision of the 14th amendment of the United States Constitution suggest the fundamental rights of both parents must be treated equally. The wisdom of Troxel is no less applicable to disputes between parents. If anything more applicable.

Numerous previous cases involving parental rights are cited in Troxel and other briefs in the record of this case. For the sake of not being redundant they are

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not repeated in this brief.
A parent’s ability to make personal choices regarding the care and nurture

of his or her children is directly proportional to that parent’s physical access to his or her children. Thus, the only way two parents living separately can equally exercise this responsibility and right is if each is afforded the same opportunity to assume equal physical placement of his or her children. Thus, EACH PARENT HAS A FUNDAMENTAL RIGHT TO ASSUME EQUAL PERIODS OF PLACEMENT OF THE CHILDREN, unless there is credible evidence that a parent is not fit, that this placement would be harmful to the children, or that circumstances of the parties do not allow this. If a parent is not willing or able to assume equal periods of placement, or circumstances do not allow this to be practical, each parent has a fundament right to assume maximum placement periods with the children. This right is fundamental, not one that parents must win as a result of a lengthy, intrusive and costly legal battle, or compromise simply to reach a stipulated agreement to avoid such a battle.

Article VI, Clause 2 of the United States Constitution points out:

This constitution, and the laws of the United States …… shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

The court’s responsibility to support these fundamental rights is further

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established in Wis. Stat. 757.02 (1);

Every person elected or appointed justice of the supreme court, judge of the court of appeals, judge of the circuit court or municipal judge, shall take, subscribe and file the following oath: “I, …. do solemnly swear that I will support the constitution of the United States and the constitution of the state of Wisconsin”

Wis. Stat. 767.045(1)(a) 2, 767.045(4) , 767.11(10), 767.11(14) , the second sentence of 767.24(4)(a), 767.24(5), and 767.325 (1)(b), are unconstitutional because they allow the state to intrude into the private realm of the family without first requiring a preliminary determination as to the unfitness of a parent or that a parent’s placement proposal which maximizes placement of the child with both parents would be harmful to the children. These statutes allow a mediator, placement study evaluator, guardian ad litem or judge to be guided by “the best interest of the child” criteria and have no safeguards that a mediator, placement study evaluator, guardian ad litem or judge must strive first and foremost to equally support the fundamental rights of both parents. Thus they allow an unconstitutional intrusion into the family.

Furthermore, since Wis Stat. 767.325 (1)(b) provides unnecessary and irrational legal obstacles which preclude many fit parents from fully exercising this fundamental right, without any compelling state purpose, this provision is also unconstitutional.

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This appeal does not challenge the application of these statutes in cases where “the court has reason for special concern as to the welfare of a minor child.” It only challenges the constitutionality of applying these statutes in the large portion of cases when both parents want to fully participate in the raising of their children, there is no credible evidence that either parent is unfit or that a placement schedule which maximizes placement of the children with both parents would be harmful to the children, and legal custody or physical placement of the child is merely contested.

B. Barstad v. Frazier

At first impression, this Court may believe Barstad v. Frazier , 118 Wis. 2d 549 is controlling in this case. In Barstad, which involved a third party dispute similar to Troxel, the Wisconsin Supreme Court did not deal with the issue of placement disputes between two fit parents. The court, however, made only a passing comment, without any analysis of this issue:

“This court has accepted the principle that between parents in a divorce action the “ best interest of the child” is generally applied as to which parent is awarded custody.” Id. at 555

Barstad is based on obsolete statutory law, old societal patterns on parenting in non-intact families, and is not as to the point as the higher court decision in Troxel. It is therefore incumbent on this Court to carefully examine

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the validity of the Barstad decision in light of the following:
1. The United States Supreme Court has consistently and most recently in 2000, ruled parental rights are fundamental rights. This court has never made a distinction between mothers vs fathers, black parents vs white parents or parents in intact families vs non-intact families. The due process and equal protection provisions of the 14th amendment of the United States Constitution protect the responsibilities and rights of all parents regardless of their gender, race or marital status.
2. Johnson v Johnson, 78 Wis. 2d 137, 148 cited in Barstad, did not deal with the issues of placement or physical custody of children, but merely legal custody or decision making regarding medical treatment issues.
3. The term physical placement, which is the major source of conflict between parents such as those in this case, did not exist in statutes in 1984. The statutory provision 767.24(b) stating “A child is entitled to periods of physical placement with both parents” and the burden of proof “unless, after a hearing, the court finds that physical placement with a parent would endanger the child’s physical, mental or emotional health” was created in 1987 by Wisconsin act 355. This act also allowed the court to award joint custody even if one parent does not agree to joint custody. Thus in 1987, the Wisconsin legislature overruled this Wisconsin Supreme Court finding, by requiring the same harm burden of proof

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for divorce cases as in third party cases. This suggests that “the best interest of the child” criteria may be used only after a finding, that a parent is unfit or that maximizing placement with a parent would be harmful to the child.
4. Recent studies of Wisconsin cases by the Institute for Research on Poverty (IRP) (App: 51-54) indicate that prior to 1987, the number of shared placement cases accounted for less than 2.5% of all cases . This number has increased to 23.1% in 1996-8, with 15.1% of the cases being awarded equal placement. (App: 55-57). Another recent IRP report which found a 90% compliance rate three years after the original order further supports that equal placement orders are working.(App: 58-59) These reports demonstrate that parents can adequately exercise their fundamental parental responsibilities and rights during their respective equal placement periods. They also demonstrated that when state statutes reduce legal obstacles for non-custodial parents to exercise their responsibility and rights to their children, such as 1987 Wisconsin Act 355 did, many parents will do so.

5. To suggest that the fundamental rights of parents established by the Wisconsin and United States Supreme Court in the context of a parent and third- party dispute does not similarly apply to disputes between two parents is in direct conflict with the very basis of our justice system. It suggests that when parents divorce, rather than each parent having an equal interest in this fundamental right,

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both parents have no rights. It suggests both parents are presumed to be unfit and each must prove to the court that they are worthy of the right to raise their own children. This is contrary to the very foundation of the American system of justice because, rather than being innocent until proven guilty, both parents are presumed guilty until proven innocent.

In practice, partly due to historic societal roles of parents and statistics on court rulings, there is an unwritten presumption that the mother gets custody and primary placement of the children and the father pays child support to the mother. While this presumption is not defined anywhere in the statutes, and is contrary to the equality principles established by law in 765.001(2) and the equal protection provision of the 14th amendment, it is very real. The net result is that the legal process treats a mother as innocent until proven guilty, and a father as guilty until proven innocent. In light of this presumption, in cases involving two fit parents, the equal fundamental right of the mother is usually fully supported, while the equal fundamental right of the father is subject to negotiation and compromise.

As in this case, fathers who merely want to fulfill their responsibilities to the children by providing for their care during equal periods of placement are often forced to accept 25-45% placement or endure a lengthy, intrusive and costly legal battle. This violates the civil rights of those fathers who are encouraged, coerced or threatened to agree to stipulated agreements that deny them equal

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periods of placement against their will and denies the children the opportunity to an equally important relationship with their father.
6. In Barstad at p. 555, The Wisconsin Supreme Court noted.

“But a change of custody may result in as complete a severance of- parent ties as does termination. The day to day contact between the child and one having custody can create a relationship that may leave the birth parent almost an intruder. All of the day to day interactions between a parent and child are bound to be diminished if not eliminated where the parent comes to the scene as a court permitted “visitor.””

The court, however, did not address the issue of: Why the termination of parental rights standard should not be used to protect a natural parent from being turned into “a court permitted visitor” by the other natural parent?

C. The best interest of the child criteria is a insufficient legal basis to obstruct a parent’s equal fundamental right

There are currently 16 factors in 767.24(5)( more since 5/1/2001), that a mediator, guardian ad litem or court may consider in determining what is “in the best interest of the child” in resolving a child custody and placement conflict between two parents. As noted in Troxel v. Granville, 530 U.S. 57, 63 (2000) , in 1998, the Washington State Supreme Court found the states’s third party visitation statutes, which allow the court to award custody to third parties based solely on what the court determines is “in the best interest of the child”, to be

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unconstitutional. The Washington court ruled “the Constitution permits a State to interfere with the right of parents to rear their own children only to prevent harm or potential harm to a child.”

The application of Wis. Stat. 767.045(1)(a) 2, 767.045(4) , 767.11(10), 767.11(14) , second sentence of 767.24(4)(a), 767.24(5), and 767.325 (1)(b) dealing with determination of child placement in divorce and paternity cases, since they do not apply this same harm standard, is similarly unconstitutional.

In Bush v. Gore 531 U.S. 98, 109 2000, the US Supreme Court, noted :

“When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal protection and fundamental fairness are satisfied.”

and ruled that

“The recount mechanism implemented in response to the decisions of the Florida Supreme Court (“ to consider the intent of the voter”) do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right.” Id. at p. 105.

While “the best interest of the child” is a well-meaning legal concept in theory, the criteria set forth in 767.24(5) is so broad and vague as to be susceptible to arbitrary interpretation by a mediator, guardian ad litem, psychologist or a court thereby yielding significantly different results and constituting a convenient disguise for discrimination based on gender of the parent. Like “the intent of the voter”, “ the best interest of the child” does not satisfy the

minimum requirement for non-arbitrary treatment of parents necessary to secure 21

the equal fundamental rights of both parents.

The arbitrary nature of this criteria is clearly illustrated by the fact that in this case two psychologists, a GAL and a judge all came to a different conclusion as to what is in the best interest of the children, based on the same circumstances of the parties.

In addition to father’s every other weekend placement periods:

Dr. AAA recommended placement every Thursday overnight, and two weeks in the summer. (R-144:101-102)

Dr. BBB recommended no mid-week overnight placement but two dinner visits per week and three weeks during the summer. (R131:Trial Exhibit 17)

The guardian ad litem, recommended every Thursday overnight placement and six weeks (equal placement) during the summer. (R-111)

The Judge found this to be equal placement throughout the entire year.(R – 120)

All of this speculation and opinioning, and the emotional and financial costs attached to it could have been avoided, with the same result being reached, had the court merely began with the constitutionally mandated position that both parents are entitled to assume equal placement of their children.

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Thus as demonstrated in this case, the best interest of the child criteria does not satisfy the minimum requirement for non-arbitrary treatment of parents necessary to secure the equal fundamental rights of both parents, even in the same county. This arbitrary treatment may further vary from judge to judge, county to county and based on the ability of each parent to afford and get effective legal representation.

A child placement conflict usually arises between two fit parents, that both love their children and want to continue to be responsible for their care, but one parent acting out of anger, selfishness or vindictiveness doesn’t want to share the joys of raising the children, wants to have full parental control over the children and/or wants the disproportionate child support entitlement that the greater placement parent is usually awarded in Wisconsin. These goals can be achieved by diminishing the parental role of the other parent. This leaves the other parent with the option of accepting a minimized parental role or enduring a long intrusive, destructive and expensive legal battle over the placement of the children, to determine what is in “the best interest of the child”.

The adversarial contest encourages parents to throw mud at each other, make big issues out of small incidents, make false accusations about the other parent and use the children as weapons against the other parent. After the fight is over everyone then expects both parents to be nice to each other and co-parent

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these children. Many parents( particularly fathers) who cannot endure the emotional and financial cost of this process are disenfranchised from their children. This clearly is not in the best interest of the children.

The legal community has also broadly embraced an unwritten philosophy that a stipulated agreement or order where both parties are unhappy is a good agreement or order. Thus, when a parent is respectful of the other parent’s fundamental role and only asks the court for equal placement of the children, this parent is often denied his or her equal fundamental right merely because, “the best interest of the child” criteria is arbitrarily applied just to make sure both parents are unhappy in reaching a stipulated agreement or order.

In Troxel, the grandparents wanted placement every other weekend. The mother asked the court to order placement with the grandparents one day a month. The trial court ordered placement with the grandparents one weekend a month. Since the United States Supreme Court ruled in Troxel, that the compromise placement schedule ordered by the trial court was an “unconstitutional infringement” of the parent’s fundamental right to decide what is in the best interest of the child, the current process of encouraging, coercing or threatening fit parents to enter into stipulated agreements which deny a parent equal periods of placement of the children against his or her will, based merely on the recommendations of what a mediator, guardian ad litem, and psychologist thinks is

24

the best interest of the children, also fails to meet the heightened protection against government interference and is an “unconstitutional infringement” of that parent’s equal fundamental right.

Similarly, a court order which denies a fit parent equal periods of placement of their children against his or her will, based on merely what a court finds is in the best interest of the children, also fails to meet the heightened protection against government interference and is an unconstitutional infringement on that parent’s right to due process and equal protection.

The fact that approximately 90% of unequal or sole placement orders give the mother greater placement, (IRP report in R-App:113-115) support the conclusion that “the best interest of the child” criteria is also a convenient disguise for gender bias.

In these cases the requirement for mediation, the appointment of a guardian ad litem and psychological evaluations, unnecessarily increase the conflict in the family, the cost of litigating this issue and deprive both parents of substantial amounts of money that could have instead been shared with the child. This expense not only damages the ability of one or both parents to provide for the emotional and economic needs of the children, it also uses up valuable court resources and is an unnecessary expense for taxpayers.

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The United States Supreme Court noted in the Troxel 530 U.S. 57, 75 (2000) that this further impinges on the fundamental rights of the parents:

“The burden of litigating a domestic relations proceeding can itself be “so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child’s welfare becomes implicated.”

While these statutes and “the best interest of the child” criteria is a well- meaning legal concept in theory, when it is used in an adversarial legal process, as demonstrated in the history of this case, it not only violates the fundamental rights of one or both parents, but in many cases it does more harm to the children and their families than good.

D. Courts must use “less-drastic means” to resolve placement disputes

The United States Supreme Court further noted in Troxel 530 U.S. 57, 65 (2000)

“We have long recognized that the (14th)Amendments’s Due Process Clause, … “guarantees more than a fair process.”… The clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.”

In Dunn v. Blumstein, 405 US 330, 342-43(1972) the United States Supreme Court noted

“The State cannot choose means that unnecessarily burden or 26

restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with“precision,” and “If there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose ‘less drastic means.”

A reasonable and “less drastic means” to resolve placement disputes between two fit parents is to require both parents to submit a parenting plan which defines what each parent believes is in the best interest of the child to satisfy his or her responsibility to the child.

The court should then hold a preliminary hearing to determine if there is any credible evidence that a parent is unfit or that a placement schedule which maximizes placement of the children with both parents would be harmful to the children. If the court finds there is no credible evidence to raise a concern as to the welfare of the child, the court should simply support equally each parent’s fundamental right by setting an equal placement schedule or one that maximizes placement of the children with both parents, if equal placement is not feasible or desired by either parent. The court must simply presume that each parent will act in the best interest of the child while in his or her placement. This is a less drastic way to resolve the child placement conflict and equally support each parent’s fundamental right and does not require the further intrusion of a mediator, guardian ad litem, psychologist or the court into this family as called for Wis. Stat.

767.045(1)(a) 2, 767.045(4) , 767.11(10), 767.11(14) , second sentence of 27

767.24(4)(a), 767.24(5) and 767.325 (1)(b).

The “substantial change of circumstances” criteria to modify an existing order in Wis. Stat. 767.325 (1)(b) may be intended to reduce the burden of litigating a domestic relations proceeding resulting from the application of the statutes being challenged in this appeal, but in light of the availability of this less- drastic means to resolve placement disputes between parents, this provision acts to “unnecessarily burden or restrict constitutionally protected activity” and obstructs many fit, loving and responsible parents from exercising their full fundamental responsibility and right to participate in the upbringing of their children. It is therefore also unconstitutional.

Furthermore there is no compelling or even a rational state purpose to obstruct the fundamental role of fit parents per 767.325 (1)(b) 3. A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification under subd. 1. Both of these provisions can provide a more positive environment for raising children and therefore there is not even a rational basis to obstruct fundamental rights based on these provisions.

E. Framework of “less drastic means” to resolve placement disputes already exists in statutes

Wisconsin statutes now partially mandate the framework of such a method 28

in the new provisions of 767.24(1m) which sets for the requirements of a parenting plan, the last sentence of 767.24(4)(a) and 767.24(b) which read

767.24(4)(a) (third sentence was added by 1999 Wisconsin Act 9) “The court shall set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households.”

767.24(b) “A child is entitled to periods of physical placement with both parents” and the burden of proof “unless, after a hearing, the court finds that physical placement with a parent would endanger the child’s physical, mental or emotional health”

Thus in addition to the court’s responsibility to equally support fundamental rights, Groh v Groh, 110 Wis. 2d 117, 122, 327 N.W.2d 655,658 (1983), points out the courts further responsibility on this issue.

“Where the legislature has set forth a plan or scheme as to the manner and limitations of the court’s exercise of its jurisdiction, that expression of the legislative will must be carried out and power limitations adhered to.”

While the framework for a less drastic approach is now set fort in the statutes, Wis. Stat. 767.045(1)(a) 2, 767.045(4) , 767.11(10), 767.11(14) , second sentence of 767.24(4)(a), 767.24(5), and 767.325 (1)(b) still mandate the intrusion of mediators, guardians ad litem, psychologists, merely if the parents do not reach agreement as to custody and placement of the children.

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The directive in the second sentence of Wis. Stats 767.24(4)(a) In determining the allocation of periods of physical placement, the court shall consider each case on the basis of the factors in sub. (5) and in 767.24(5) “In determining legal custody and periods of physical placement, the court shall consider all facts relevant to the best interest of the child.” conflict with the court’s responsibility to equally support the fundamental and statutory right per 767.24(4)(b) to placement of both parents and the more recent directive in the last sentence of 767.24(4)(a) to maximizing placement with both parents .

Grant County Service Bureau v. Treweek, 19 Wis. 2d 548, 552 (1963) provides direction in resolving conflicts between competing statutes:

Under well-established rules of statutory construction, the more- recent and more specific statute controls and exists as an exception to the general statute.

The provisions of 767.24(1m) (added by 1999 Wisconsin Act 9) which sets forth the requirements of a parenting plan, the third sentence of 767.24(4)(a) which mandates maximizing placement with both parents and 767.24(4)(b), which establishes the harm standard, are more recent and specific than the vague “best interest of the child” or the “substantial change of circumstance” standard mandated in Wis. Stat. 767.045(1)(a) 2, 767.045(4) , 767.11(10), 767.11(14) , second sentence of 767.24(4)(a), 767.24(5), and 767.325 (1)(b).

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The provisions of 767.24(1m), the third sentence of 767.24(4)(a) and 767.24(4)(b) are also consistent with the paramount legal standard for supporting equally the fundamental rights of both parents. Maximizing placement is quantitative and therefore much more specific that the subjective best interest of the child criteria. So is the word EQUAL as used in the 14th amendment.

Maximizing placement and equal placement are synonymous in cases where both parents are fit, both want to be fully involved in the parenting of their child, and no circumstances exist that would make equal placement impractical. In these cases, the only way a court can truly maximize placement is to order equal placement. Only if one parent wants less than equal placement and/or circumstances do not make equal placement feasible, can maximizing placement result in less than equal placement.

The “the best interest of the child” criteria in these statutes may be used only after a finding, by the preponderance of the credible evidence, that a parent is unfit or that maximizing placement with both parents would endanger the child’s physical, mental or emotional health.

The recent District III Court of Appeals decision in Keller v. Keller 2002 WI App is in conflict with Groh since the appellate court failed to carry out the statutory requirement in Wis. Stat. 767.24(4)(a) that “The court shall set a

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placement schedule …. that maximizes the amount of time the child may spend with each parent.” In Keller, the trial court’s equal placement order was the only order that could not only satisfy this statutory requirement but also the court’s responsibility to equally support the fundamental rights of both parents.

It is therefore incumbent on this court, not only to clarify the fundamental right of parents to assume equal placement of their children, but also to harmonize the application of existing statutes consistent with this finding.

F. Conclusion

In child placement disputes between two fit parents where there is no credible evidence that placement with a parent would be harmful to the children, the due process and equal protection provision of the fourteenth amendment to the United States Constitution demand the equal treatment of each parent’s fundamental right established by numerous United States Supreme Court decisions as discussed in Troxel v. Granville and the right to placement as established by the Wisconsin legislature in 767.24(4)(b).

The state cannot allow one parent, a mediator, a guardian ad litem or a court to minimize, obstruct or interfere with the other’s equal parental role. Wis Stat. 767.045(1)(a) 2, 767.045(4) , 767.11(10), 767.11(14) , second sentence of 767.24(4)(a), 767.24(5), and 767.325 (1)(b) allow the state to intrude into the

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private realm of the family without any compelling state purpose. There is no requirement for a preliminary determination as to the unfitness of a parent or that a parent’s placement proposal which maximizes placement of the child with both parents would be harmful to the children. These statutes also provide no safeguards that the mediator, placement study evaluator, guardian ad litem or judge must first and foremost strive to equally support the fundamental rights of both parents. These statutes are therefore unconstitutional.

First and foremost, Wisconsin laws regarding the family should act to serve the children and families in Wisconsin. They should promote cooperation between parents, not provide incentives for litigation. They should not be concerned about preserving the ability of family law professionals to continue to provide their services at the expense of Wisconsin children, parents, and taxpayers. Mediators, psychologists, guardians ad litem , court commissioners and judges do not love the children and don’t have to live with the consequences of their recommendations or orders. While they serve a very important role in some cases, most placement disputes can be resolved more fairly and efficiently by a lesser involvement on their part.

It is the parents that know the children the best, that love the children and will have to live with the consequences of their decisions for the rest of their lives. A decision by this court, strongly supporting the equal fundamental rights of both

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parents, would act to assure both parents that their parental role will be equally supported in Wisconsin Courts, unless there is evidence of harm or potential harm to the children. It would make clear that they should focus on how to best co- parent their children, rather than trying to use the legal system to diminish the role of the other parent. This should promote cooperation between the parents and allow families to save significant amounts of money currently being wasted to litigate this issue. This will, by itself, help secure the best interest of the children.

Dated this day of 2002.

Respectfully submitted by

The purpose of Legislative intent ,use the senators that proposed

January 6, 2017 § Leave a comment

When arguing legislative intent of the new IMDA subpoena Senator John Mulroe.

http://senatormulroe.org/10th-district

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