IN
THE UNITED STATES DISTRICT COURT
FOR
THE NORTHERN DISTRICT OF TEXAS
FORT
WORTH DIVISION
James
W. Loose, individually and on §
behalf of other persons similarly situated, §
Plaintiff, §
v. § Civil Action No.:
Greg Abbott, Attorney General for the §
State
of
and §
XXXXX Loose, §
Defendants. §
TO THE
HONORABLE TERRY R. MEANS, UNITED STATES DISTRICT COURT JUDGE:
On March 19, 2004, this Court dismissed Without
Prejudice a case, Civil Action No. 4: 03-CV-266-Y, brought by James W. Loose
(“Mr. Loose”), pro se. As the
reason for its dismissal, the Court found that Mr. Loose had failed to
establish standing.
In this complaint, Mr. Loose, pro se,
modifies his prior claims, brings forth substantial matters of law not
previously presented for the Court’s consideration,
develops alternative requests for relief, and establishes his standing.
Thank you.
I. CASE
OVERVIEW............................................................................ 2,
3
A.
Violations
of Rights Protected by the
B.
Standard
of Review................................................................. 2,
3
II. CLASS
ACTION ALLEGATIONS .................................................... 3,
4
III. VENUE
AND JURISDICTION ............................................................. 4
IV. PARTIES
…….. ............................................................................... 4,
5
V. ALLEGATIONS
OF RELEVANT STATE LAW..................................... 5
VI. ALLEGATIONS
OF RELEVANT FACTS.......................................... 5,
6
VII. ALLEGATIONS
OF RELEVANT
VIII. FEDERAL
CAUSES OF ACTION...................................................... 8,
9
IX. PLAINTIFF’S
STANDING TO SUE ..................................................... 9
X. PRAYER
FOR RELIEF.................................................................. 9
- 15
I.
CASE OVERVIEW
A. Violations of Rights
Protected by the
1. The right of fit parents to parent their children is a fundamental right. Provisions of the U.S. Constitution implicitly protect this right.
2. This right is routinely
abridged when fit married parents divorce in the State of
3. The challenged statutes and procedures adjudicate the
fundamental right to parent on an impermissible evidentiary standard of
Preponderance in clear violation of
B.
Standard of Review
4. Application of the challenged statutes and
procedures segregates
similarly situated parents into two classes.
These two classes are Custodial Parents (“CPs”)
and Noncustodial Parents (“NCPs”).
5. As soon as fit NCPs are
forced into their new legal class, they become subject to impermissibly
disparate treatment in violation of the Equal Protection Clause of the U.S.
Constitution’s 14th Amendment.
Application of the challenged
statutes and the disparate treatment resulting from their application happens
as follows:
a. In divorce proceedings between similarly situated
fit parents, state courts apply the statutes this complaint challenges on
general constitutional grounds;
b. The application of those statutes creates legal
classifications – CP and NCP – that aren’t related to any legal finding of
fault of the person named the NCP;
c. The CP/NCP classification establishes two classes of
fit parents – with each class having substantially different parental rights;
d. The NCP classification is forced on one fit parent,
often against his or her will;
e. With CP/NCP classifications in place, fit NCPs become subject to ongoing disparate treatment.
6. Disparate treatment of fit NCPs
lacks both just cause and state interest/statutory
construction sufficient to permit abridgement or denial of the rights in
question.
7. There are two conditions in which statutes must
pass Strict Scrutiny. Strict Scrutiny is
required when a fundamental right is at issue.
And Strict Scrutiny is required when a classification operates to the
peculiar disadvantage of a suspect class.
8. Strict Scrutiny of the challenged statutes is required in this case
because:
a. The right of fit parents to parent their children is
fundamental;
b. Application of the challenged state statutes creates
a suspect class of fit NCPs who are subject to
disparate treatment despite being similarly situated to the other parent prior
to the application of those statutes, and despite fit NCPs
remaining similarly situated to the other parent and to non-divorced parents
vis-à-vis their children after the application of those statutes;
c. The disparate treatment that follows from applying
the CP/NCP classification results from operation of state law rather than
findings of fault concerning fit parents who become NCPs,
or express and informed consent of fit NCPs;
d. Application of the challenged statutes relies on a
constitutionally defective Preponderance evidentiary standard in violation of
the fundamental fairness requirement of procedural due process.
9. Necessarily, then, the state bears a twofold burden of affirmatively
showing:
a. That it has a compelling interest served by the
challenged statutes; and
b. That those statutes are narrowly drawn to serve the
state’s interests by least restrictive means.
The state can do neither.
10. In the alternative to the suspect class claims
made above, NCPs are a semi-suspect class, which
requires the statutes establishing the classification to pass Intermediate
Scrutiny.
11. Even if Rational Relations is held to be the
correct standard of scrutiny, the challenged statutes are not rationally
related to a legitimate government purpose.
12. Strict Scrutiny is required regardless of the
resolution of the suspect class question because the right in question is
fundamental.
II. CLASS ACTION ALLEGATIONS
13. Mr. Loose brings this action as a class action under Fed. R. Civ. P. 23. For
purposes of this action Mr. Loose asks this Court to certify the following
class: NCPs divorced under the laws of
a. Haven’t been found legally unfit as a parent or
mentally incompetent, have never been found guilty of any form of crime against
any child(ren), aren’t indigent, and aren’t
incarcerated;
b. Desire to parent their child(ren)
equally with their child(ren)’s CP; and reside within
30 miles of their child(ren)’s CP or other legal
guardian; and
c. As a condition of receipt of the requested relief,
agree not to transfer their child(ren)
from their child(ren)’s present school without
express written agreement to any such transfer between themselves and their
child(ren)’s CP or other legal guardian.
14. It is common knowledge that the class assertions
made in paragraph 13 above describe a large segment of the adult population of
the State of
III. VENUE AND JURISDICTION
15. Venue is proper in this federal
district according to 28 U.S.C. §1391.
This Court has jurisdiction according to 28 U.S.C. §1331 and 28 U.S.C.
§1343. This Court’s
jurisdiction is invoked where Mr. Loose presents a general
constitutional challenge to certain State of Texas statutes, specifically:
T.F.C. §§§153.002, 153.133(a)(1), 153.136, and the provisions of the T.F.C. that
provide for significantly different allocations of times of child custody
between fit divorc(ing)(ed)
parents (T.F.C. Subchapter F, §153.311, et seq.).
16.
This Court has authority to hear and grant Mr. Loose’s:
a. Prayer for relief for violations of his and
the class’s U.S. constitutional rights under color of statute, ordinance,
regulation, custom, or usage of the State of Texas – rights enforceable under
42 U.S.C. §1983;
b. Prayer for declaratory relief under 28
U.S.C. §2201;
c. Prayer for further necessary or proper
relief under 28 U.S.C. §2202;
d. Prayer for injunctive relief under Fed.
R. Civ. P. 65;
e. Prayer for class-based relief under Fed.
R. Civ. P. 23;
f.
Prayer
for expedited consideration under 28 U.S.C. §1657.
17. James W. Loose, individually,
and as class representative of the class described in paragraph 13 above, is a
private citizen of the
18. XXXXX
Loose is a private citizen of the
19. Greg Abbott, sued in his official
capacity, is the Attorney General of the State of
20. The class of persons indicated in
paragraph 13 above consists of all the persons described there.
V. ALLEGATIONS OF RELEVANT STATE LAW
21. T.F.C. §153.002 is
“The best interest of the child shall
always be the primary consideration
of the court in determining the issues of
conservatorship and possession
of and access to the child.”
22. T.F.C. §153.133(a)(1) states that
when divorc(ing)(ed)
parents file a joint managing conservatorship agreement of their own making
with a court, the court has no discretion to appoint those parents as joint
managing conservators of their child(ren) unless the
parents’ agreement:
“designates the
conservator who has the exclusive right to establish the primary residence of the
child…”
23. T.F.C. §153.136 states that:
“… the best
interest of the child ordinarily requires the court to designate a primary
physical residence for the child.”
24. T.F.C. Subchapter F, §153.311, et
seq. are provisions of the T.F.C. that provide for significantly different
allocations of times of child custody between divorc(ing)(ed) parents.
VI.
ALLEGATIONS OF RELEVANT FACTS
25. Mr. and Ms. Loose
married in a civil ceremony on September 4, 1997 in
26. Mr. and Ms. Loose divorced on December 21, 2000 by decree of the 325th Judicial District Court of the State Texas. In the divorce between Mr. and Ms. Loose no allegations of parental unfitness of either party were made, and no findings of parental unfitness of either party were made. Mr. and Ms. Loose’s divorce decree established a “Joint Managing Conservatorship” of XXXXX, making Mr. Loose the NCP and Ms. Loose the CP. Through subsequent modifications of the decree, Mr. Loose remains the NCP, while Ms. Loose remains the CP. At the time of the filing of this complaint, Ms. Loose’s child custody time is approximately 200% of Mr. Loose’s. Subsequent to their divorce, no allegations or findings of parental unfitness of either Mr. or Ms. Loose have been made.
27. Prior to Ms. Loose choosing to move away
from the marital home, Mr. Loose was a fully involved parent to XXXXX, performing the full
spectrum of parental duties. From
the day an early sonogram told him he would be fathering a little girl, he
regularly sang to XXXXX in the womb. He took twelve weeks leave from work
beginning the day she was born, during which time he bonded with her. From XXXXX’s birth until Ms. Loose’s
voluntary move away from the marital home, Mr. Loose continually engaged in the
full spectrum of parental duties toward XXXXX at
all times except when he was at work, or on vacation with Ms. Loose, or away
from home for his father’s funeral, or enjoying an occasional outing with Ms.
Loose. During the period from Ms. Loose’s voluntary move away from the marital home until
today, Mr. Loose has continued bonding with XXXXX. To Mr. Loose, his parent-child relationship
with XXXXX is an irreducibly fundamental aspect
of his life. Mr. Loose desires to resume
enjoying his full spectrum of parental responsibilities and rights and time of
child custody equally with Ms. Loose.
28.
In the divorce proceedings between Mr. and Ms. Loose,
Mr. Loose:
a. Did not receive proper notice that his
federal rights to his parent-child and familial relationships were implicated
by the proceedings;
b. Did not receive proper notice that
included allegations of relevant facts permitting a hearing in which his
federal rights to his parent-child and familial relationships could be
diminished compared to the relative enlargement of Ms. Loose’s
identical rights;
c. Did not receive proper notice indicating
that a constitutionally permissible evidentiary standard would be used in
adjudicating his federal rights to his parent-child and familial relationships;
d. Suffered diminishment of his federal
rights to his parent-child and familial relationships compared to the relative
enlargement of Ms. Loose’s identical rights, without
a particularized finding of fact under a proper evidentiary standard that could
allow that outcome.
The allegations of this paragraph are
also true with respect to the members of the class identified in paragraph 13
above, regarding the particular state court proceedings that diminished their
parental rights.
29. In the divorce of Mr. and Ms. Loose,
application and/or the threat of application of T.F.C. §§§153.002,
153.133(a)(1), 153.136, and the provisions of the T.F.C. that provide for
significantly different allocations of times of child custody between fit divorc(ing)(ed) (T.F.C.
Subchapter F, §153.311, et seq.), and the procedures for applying those
statutes caused the diminishment of Mr. Loose’s
parental rights compared to the relative enlargement of Ms. Loose’s
identical rights. This is true regarding
the members of the class identified in paragraph 13 above.
VII.
ALLEGATIONS OF RELEVANT
30. Article VI of the U.S. Constitution
states, in relevant part:
“This Constitution, and the laws of the
United States which shall be made in pursuance thereof … shall be the
supreme law of the land; and the judges
in every state shall be bound thereby, anything in the Constitution or
laws of any state to the
contrary notwithstanding … (T)he members of the
several state legislatures, and all
executive and judicial officers … of the several states, shall be bound by oath or
affirmation, to support this Constitution …”
31. The 1st
Amendment to the U.S. Constitution states:
“Congress
shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to
petition the Government for a redress of
grievances.”
32. The 9th
Amendment to the U.S. Constitution states:
“The enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage others retained by
the people.”
33. The 14th
Amendment to the U.S. Constitution states, in relevant part:
“No state
shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any state 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.”
34.
The state statutes challenged in this complaint are unconstitutional as applied to Mr. Loose; they are unconstitutional as applied to
the members of the Plaintiff class. Here
are the reasons:
a. BIC, despite being a civil statute, is
void for vagueness;
b.
BIC and the other statutes in “V. Allegations of Relevant
State Law” above are overbroad;
c.
BIC and the other statutes in “V.
Allegations of Relevant State Law” above are overinclusive;
d.
BIC and the other statutes in “V.
Allegations of Relevant State Law” above abridge 14th Amendment liberty rights;
e.
BIC and the other statutes in “V.
Allegations of Relevant State Law” above violate both procedural and
substantive due process guaranteed in the 14th Amendment;
f.
BIC and the other statutes in “V.
Allegations of Relevant State Law” above violate equal protection of the law
guaranteed in the 14th Amendment;
g.
BIC and the other statutes in “V.
Allegations of Relevant State Law” above abridge 1st Amendment freedom of
association;
h.
BIC and the other statutes in “V.
Allegations of Relevant State Law” above abridge U.S. Constitutional privacy
rights;
i.
BIC and the other statutes in “V.
Allegations of Relevant State Law” above violate the right of fit divorced parents to equal
custody of their children under Art. VI of the
35. In addition to, or
in the alternative to, the claims in paragraph 34 above, because BIC and the
other statutes in “V. Allegations of Relevant State Law” above rely on a
Preponderance evidentiary standard for their application (according to T.F.C.
§105.005) they are facially unconstitutional.
Further, in addition to, or in the alternative to, the other claims in
paragraph 34 above and in this paragraph, because BIC expressly instructs family court judges
in the State of Texas to provide primary protection to the best interest of the
child in its conservatorship, possession, and access considerations – thereby
making the U.S. constitutional rights of the fit parents of the child secondary
as a matter of law – it is facially unconstitutional.
36. The procedures
described in paragraph 28 above den(y)(ied) Mr. Loose and the members of the Plaintiff class
procedural Due Process of law, being violations of fundamental fairness. They’re inadequate to protect the fundamental
right involved.
37. The procedures described in paragraph 28 above den(y)(ied) Mr. Loose and the members of the Plaintiff class substantive Due Process of law, abridging without just cause his (their) federal right to a relationship with, companionship with, and society of his (their) child(ren) equal to that of the other parent of his (their) child(ren).
VIII.
FEDERAL CAUSES OF ACTION
38. This action arises under the U.S. Constitution and
federal law. The allegations made above
in “VI. Allegations of Relevant Facts” show that the Defendants, jointly and/or
severally, have violated, continue to violate, and threaten to continue to
violate one or more of Mr. Loose and the members of the
Plaintiff class’s rights protected by the U.S. Constitution and federal
laws. They did so, continue to do so,
and threaten to continue to do so, under color of statute, ordinance,
regulation, custom, or usage of the State of
a. Abridged Mr. Loose and the members of the Plaintiff class’s 14th Amendment federal liberty right to his (their) parent-child relationships, and his (their) familial relationships, without having affirmatively shown a state interest sufficient to outweigh Mr. Loose and the members of the Plaintiff class’s right; and/or
b. Violated Mr. Loose and the members of the Plaintiff class’s 14th Amendment guarantee of procedural due process of law, without having affirmatively shown a state interest sufficient to outweigh Mr. Loose and the members of the Plaintiff class’s right; and/or
c. Violated Mr. Loose and the members of the Plaintiff class’s 14th Amendment guarantee of substantive due process of law, without having affirmatively shown a state interest sufficient to outweigh Mr. Loose and the members of the Plaintiff class’s right; and/or
d. Violated Mr. Loose and the members of the Plaintiff class’s 14th Amendment guarantee of equal protection of the law, without having affirmatively shown a state interest sufficient to outweigh Mr. Loose and the members of the Plaintiff class’s right; and/or
e. Abridged Mr. Loose and the members of the Plaintiff class’s 1st Amendment right to Freedom of Association with his (their) child(ren), without having affirmatively shown a state interest sufficient to outweigh Mr. Loose and the members of the Plaintiff class’s right; and/or
f. Abridged Mr. Loose and the members of the Plaintiff class’s right to privacy in his (their) autonomous parent-child and familial relationship, without having affirmatively shown a state interest sufficient to outweigh Mr. Loose and the members of the Plaintiff class’s right – whether that privacy right is within the protected penumbra of specific guarantees of the Bill of Rights, or the penumbra of familial privacy rights guaranteed by the Constitution, or is encompassed under the autonomy branch of privacy found in the 14th Amendment’s guarantee of substantive due process, or is guaranteed by the 9th Amendment; and/or
g. Violated Mr. Loose and the members of the Plaintiff class’s right to equal custody of his (their) child(ren) in conflict with the Supremacy Clause in Article VI of the U.S. Constitution, without having affirmatively shown a state interest sufficient to outweigh Mr. Loose and the members of the Plaintiff class’s right;
h. Abridged Mr. Loose and the members of the Plaintiff class’s fundamental right to parent by application of the challenged overbroad statues;
i. Abridged Mr. Loose and the members of the Plaintiff class’s fundamental right to parent by application of the challenged overinclusive statues;
j. Abridged Mr. Loose and the members of the Plaintiff class’s fundamental right to parent by application of a statute that is void for vagueness (BIC).
The violations, described in paragraph 38 above, of federal law protecting Mr. Loose and the Plaintiff class’s federal rights were not a one-time event. They are ongoing, continue daily, and can be expected to continue in the absence of the requested relief.
39. Mr. Loose alleges that he has been injured in fact. He’s suffered loss of consortium with his child, and psychological agony resulting from that loss. His injury continues daily and, in the absence of the relief requested from this Court, can be expected to continue until at least May of 2016 when XXXXX graduates from high school.
40. Mr. Loose alleges that the
joint and/or several acts of the Defendants cause his injury.
41. Mr. Loose alleges that the
relief requested below will redress of his injury.
42.
Mr. Loose realleges paragraphs 1-41 above, and incorporates them
herein as if fully set forth.
43. Mr. Loose requests the following
Declaratory Judgments:
a. That
no state will deprive any person within its jurisdiction of life, liberty, or
property without due process of law, that no state will deny to any person
within its jurisdiction equal protection of the law, and that these protections
of the U.S. Constitution’s 14th Amendment apply to all legal
proceedings regarding child custody in the State of Texas, including divorce.
b. That
the right of fit parents to parent their children is a fundamental right.
c. That
the following is liberty right protected under the U.S. Constitution; or, in
the alternative, that the following is a privacy right protected under the U.S.
Constitution; or, in the alternative, that the following is an associational
right protected under the U.S. Constitution: In a divorce between two fit
parents, absent compelling state interest secured by least restrictive means
that includes proof of an adversely affected parent’s parental unfitness under
a Clear & Convincing evidentiary standard, each fit parent has the right to
equal physical and legal custody of his or her child(ren).
d. That
in a divorce between fit parents, due process of law requires the following:
i. That
state statutes allowing for disparate treatment of the parents regarding any of
their separate individual parental and familial rights must be justified by a
compelling state interest that includes proof of an adversely affected parent’s
parental unfitness under a Clear & Convincing evidentiary standard;
ii. That
affected parties must be provided notice and a meaningful hearing at a
meaningful time; that said notice must include the relevant facts for the
action to be taken, a statement of the federal rights implicated in the action,
and a statement that the legal evidentiary standard that will be applied in
deciding such action will be Clear & Convincing;
iii. That,
absent an adversely affected parent’s express and informed consent to the
relinquishment or reduction of his or her rights regarding custody of his or
her child(ren) – after being made aware of the full
extent of his or her federal parental rights and the consequences of agreeing
to their relinquishment or reduction – any resulting decision to abridge or deprive
a parent’s fundamental right to parent his or her child(ren)
must be supported by Clear & Convincing evidence;
iv. That,
absent an adversely affected parent’s express and informed consent to the
relinquishment or reduction of his or her rights regarding custody of his or
her child(ren) – after being made aware of the full
extent of his or her federal parental rights and the consequences of agreeing
to their relinquishment or reduction – a particularized finding of fact must be
made to abridge or deprive a parent’s fundamental right to parent his or her
child(ren);
v. That
the state must have a compelling interest to reduce any of an adversely
affected parent’s parental rights, and that the state must use the least
restrictive means to secure that compelling interest.
e. That
in a divorce between fit parents:
i. Failure
to comply with the notice requirements noted above in paragraph 43d violates of
due process;
ii. A
judgment rendered without due process is void ab
initio;
iii. Any
deprivation of a parent’s liberty right to equal physical and legal custody of
his or her child(ren), or in
the alternative, to his or her privacy right in his or her parent-child
relationship, or in the alternative, to his or her associational right in his
or her parent-child relationship, requires full compliance with the due process
requirements noted above in paragraph 43d.
f. That
in divorces between fit parents in the State of Texas, the NCP designation
happens as follows: A hearing is provided; there is no finding of parental
unfitness according to the due process requirements detailed above in paragraph
43d; then, the relevant court renders a decision that is necessarily arbitrary
since the preponderance standard of evidence required under T.F.C. §105.005 doesn’t
provide for a constitutionally compliant conclusion to the hearing.
g. That
in the State of
h. That
Texas’ family court hearings regarding child custody determinations between two
fit parents do not meet the requirements of due process because: No notice is
filed of the issues to be presented that implicate the parental fitness of the
parent subsequently denominated as the NCP; such notice as is filed doesn’t
advise the parties of the federal rights implicated in the action; no
evidentiary standard of Clear & Convincing evidence that meets federal due
process requirements is utilized in the family courts of the State of Texas in
its hearings that affect the rights of the parent subsequently denominated as
the NCP.
i. That
the implicated T.F.C. statutes violate minimum federal due process requirements
regarding fit parents’ right to custody of their children and that, therefore,
they are unconstitutional as applied when a fit NCP wishes to have physical and
legal custody of his or her child(ren) equal to the
other parent’s.
j. That
Texas’ family courts’ designations of a parent as an NCP implicates one or more
of that parent’s federal rights in his or her parent-child relationship and/or
familial relationship.
k. That
absent due process noted above in paragraph 43d the designation of a fit
divorcing parent as an NCP denies that parent due process of law.
l. That
in a divorce the abridgement of a fit parent’s federal rights in his or her
parent-child relationship and/or familial relationship relative to the other
parent’s federal rights in his or her parent-child relationship and/or familial
relationship – absent the express and informed consent of an adversely affected
parent after being made aware of the full extent of his or her federal parental
rights and the consequences of agreeing to their relinquishment or reduction –
requires a compelling state interest for abridgement of those rights and strict
constitutional scrutiny of any such abridgement.
m. That
the State of Texas’ “Standard Possession Schedule” (T.F.C. Subchapter F, §153.311, et seq.),
violates the equal protection of the law for fit NCPs
–
absent an adversely affected parent’s express and informed consent after being
made aware of the full extent of his or her federal parental rights and the
consequences of agreeing to their relinquishment or reduction.
n. That
– absent an adversely affected parent’s express and informed consent after
being made aware of the full extent of his or her federal parental rights and
the consequences of agreeing to their relinquishment or reduction – in a
divorce between fit parents, a fit divorcing parent’s rights to equal physical
and legal custody of his or her child(ren) cannot be diminished relative to the identical rights
of the other parent.
o. That,
absent a finding by Clear & Convincing Evidence of the parental unfitness
of an adversely affected parent, “the best interest of the child” cannot be
asserted as a compelling state interest to deprive a fit divorcing parent of
equal legal and physical custody of his or her child.
p. That
designating a parent as an NCP increases the likelihood of substantial or total
parental absence of the affected parent from the lives of his or her children,
and that the designation NCP tends to further diminish contact time between fit
NCPs and their children.
q. That
divorce and the diminished NCP contact time it tends to promote per paragraph
43p above make children more likely to experience failure in school, suicide,
substance abuse, teen pregnancy, violence, emotional distress and dysfunctionality associated with emotional distress, social
disorders, and problems associated social adjustment throughout their lives.
r. That
– absent an affected parent’s express and informed consent after being made
aware of the full extent of his or her parental rights and the consequences of
agreeing to their relinquishment or reduction – the diminishment of a fit parent’s rights
to his or her parent-child relationship and/or familial relationship, relative
to the identical rights of the other parent, is a facially unconstitutional
abridgment of an adversely affected parent’s rights.
s. That
– absent an adversely affected parent’s express and informed consent after
being made aware of the full extent of his or her parental rights and the
consequences of agreeing to their relinquishment or reduction – the
diminishment of a fit parent’s right to the equal legal and physical custody of
his or her child(ren) – relative to the identical
right of the other parent – must be made by a finding of parental unfitness of
the adversely affected parent, and that that finding must be supported by Clear
& Convincing evidence.
t. That
any infringement whatsoever of a parent’s rights to equal legal and physical
custody of his or her child(ren) – relative to the
identical rights of the other parent – must be made on the basis of Clear &
Convincing evidence.
u. That
T.F.C. §153.002 is void for vagueness when applied to fit parents, and is
facially unconstitutional when used to adjudicate parental rights of fit
parents without due process requirements that include an explicit evidentiary
standard of Clear & Convincing Evidence.
v. That
153.133(a)(1), 153.136 are
facially unconstitutional when used to adjudicate parental rights of fit
parents without due process requirements that include an explicit evidentiary
standard of Clear & Convincing Evidence.
w. That
the provisions of the T.F.C.
that provide for significantly different allocations of times of child custody
(T.F.C. Subchapter F §153.311, et seq.) are facially unconstitutional when
used to adjudicate parental rights of fit parents without due process
requirements that include an explicit evidentiary standard of Clear &
Convincing Evidence.
x. That
– absent an adversely affected parent’s express and informed consent after
being made aware of the full extent of his or her parental rights and the
consequences of agreeing to their relinquishment or reduction – any relative
enlargement of the other parent’s rights to custody of his or her child(ren) is unconstitutional in the absence of meeting the
requirements of due process that include an explicit evidentiary burden of
Clear & Convincing Evidence that the adversely affected parent is an unfit
parent.
y. That
Texas’ family court hearings for allocating child custody do not employ the
evidentiary standard of Clear and Compelling evidence required to enlarge a
parent’s rights to custody of his or her child(ren)
relative to diminishing the identical rights of the other parent.
z. That
aa. That
the State of Texas’s statutory
scheme as embodied in T.F.C. §§§153.002, 153.133(a)(1),
153.136, and the provisions of the T.F.C. that provide for significantly
different allocations of times of child custody (T.F.C. Subchapter F, §153.311,
et seq.) lacks the explicit burden of proof by Clear & Convincing evidence
that is required when adjudicating federal rights, and is therefore facially
unconstitutional.
bb. In the alternative to paragraph 43aa
above, that the State of Texas’s statutory scheme as embodied in T.F.C. §§§153.002,
153.133(a)(1), 153.136, and the provisions of the T.F.C. that provide for
significantly different allocations of times of child custody (T.F.C.
Subchapter F, §153.311, et seq.) lacks the explicit burden of proof by Clear
& Convincing evidence that is required when adjudicating federal rights,
and is therefore unconstitutional as applied to fit divorc(ing)(ed) parents.
cc. That
– absent an adversely affected parent’s express and informed consent after
being made aware of the full extent of his or her parental rights and the consequences
of agreeing to their relinquishment or reduction – any relative enlargement of
a parent’s rights to custody of his or her child(ren)
relative to the diminishment of the identical rights of the other parent,
requires minimum due process protections that include: notice, oral hearing,
the right to examine evidence and confront witnesses, and a Clear &
Convincing evidentiary finding of the parental unfitness of the adversely
affected parent.
dd. That
the process and application of the challenged statutes and procedures of the
State of Texas to designate one divorcing parent as the NCP represents a
consistent pattern and practice of the state.
ee. That – absent an adversely affected parent’s express and informed consent after being made aware of the full extent of his or her parental rights and the consequences of agreeing to their relinquishment or reduction – diminishing or enlarging parental custody rights without Clear & Convincing evidence of parental unfitness of the parent subsequently denominated the NCP serves no legitimate government purpose, and that, therefore, the State of