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States
Has No Right To Take Away Any Parents
Rights Without PROVING A Parent Harmful
to the Children Case Law Citations |
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Date: Fri, 09
Dec 2005 19:51:40 -0500
From: "Ken Wiggins" <wiggins_k@hotmail.com>
Subject: Subject Matter Jurisdiction
For those of you who wrote in suggesting
"additional issues", have
patience.
The "Improper Venue" was
just the first of ten. Part of my
purpose to presenting this in sections
is the hope that you readers will
offer additional arguments and case
law for those individuals issues as
presented.
Someone else also suggested the P.A.C.E.
group. I am well aware of Mike Galuzzo's
case, and in fact borrowed some arguments
and case law from it.
But ... keep those kind of suggestions
coming. That is exactly what I want.
This is Part Two of the issues and
deals with the Subject Matter Jurisdiction
and the "fraud" the state
commits by failing to "establish"
that it has any actual jurisdiction
to interfere with the parental relationship.
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Void Subject Matter
Jurisdiction |
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5) While the statutes
of the State may clearly “assign”
matters of family
and children to the “civil” trial
court, such an “assignment” does neither
confer nor confirm an actual subject
matter jurisdiction over any given
matter, especially where it regards
the ownership and custody of a parent’s
children.
6) The State, under the guise of “property”
and “equity” division in a
divorce, “assigns” itself authority
of the children. In fact, the State
is performing an “In Parens Patriae”
action, which is profoundly protected,
as is well substantiated by Federal
Stare Decisis.
7) The burden is on the State, not
the citizen, to prove its case. The
Petitioner does not question the authority
of the state in “its interest to protect
its children”, but argues that its
Procedural and Substantive Fraud in
obtaining its proper authority is
profoundly Unconstitutional.
8) The deprivation of rights regarding
ones own children is fundamental to
our Constitutional form of government
and must stand the “strict scrutiny”
test. Regardless of State statute,
which may suggest contrary actions,
those rights are profoundly protected,
and any State statute, which “by-passes”
those rights, fails in its Constitutional
Mandate – substantive and procedural
due process. Ergo any and all such
State statutes are profoundly unconstitutional
on their face.
9) Claims of “the children’s best
interest” are noticeably protected
by
stare decisis, fall under the equal
“strict scrutiny,” and are limited
to of “a showing of endangerment of
the child.” Further, claims of “public
interest”, also noticeably protected
by stare decisis, are not sufficient
to overcome Petitioner’s Personal
Natural Rights.
10) The Petitioner further asserts
that the State’s Income Based child
support statutes impermissibly infringe
the Privacy Interest right under the
14th Amendment of the Federal Constitution.
They, in fact, remove all rights of
fatherhood for independent self-determination,
which are required fundamentals in
all free governments. The Petitioner
asserts that how much money a parent
spends for the care and maintenance
of his or her child is a parenting
decision and thus is a Constitutionally
guaranteed natural, fundamental right.
The State government under Common
and Natural Law is not permitted to
intrude upon this fundamental right
without proof of demonstrable harm
to the child.
11) Ironically, the State “presumes”
this authority to award custody of
the
children to the mother under the guise
that the mother is “the better parent”
(absent any proper hearing to so determine),
but then turns around and admits the
mother is incapable of caring for
the children without the fiscal transfer
of wealth from the father. Not only
does the State take the Petitioner’s
property (his income) without any
proper demonstration of due process,
but then openly enjoins the mother
to pursue fraud for their own fiscal
gain.
12) Corrective or punitive child support
can only be ordered by the
State/Court by showing a profound
positive disqualification or some
wrong-doing, which “shocks the conscience”
of the community, and invokes the
doctrine of parens patriae. Parens
patriae may only be asserted “reluctantly”,
as a “last resort” and to “save the
child.” No such manifest threshold
requirement has been met by the State,
whereas, it is factual, that they
have no jurisdiction to make any claim
whatsoever. By mandating child support
based on combined parental income,
the State exceeds the constitutionally
permitted right of the State to intrude
in the Federal Right to Privacy of
a parent in the Privacy Protected
Zone of Parenting. The State has cogently,
and knowingly, with premeditation,
removed all rights to individual self-determination
in this matter, which is a god-given,
fundamental right as a Father.
The State mandates that a divorced
parent must be forced to spend an
egregious percentage of their income
on his or her children; but the State
does not, and cannot, mandate that
a married parent, living in a “single
family unit”, spend a percentage of
his income for his child. It is a
fact that under law, the father is
only liable for the necessities of
the child, and no more. This difference
between married and unmarried fathers
violates equal Protection and hence
Due Process. More importantly, the
challenged statutes are enforced against
the parent without the State ever
determining if any harm has befallen
the children related to the parent’s
spending for them. As such, the State
child support statutes based on combined
parental income are in fact, ultra
vires and unconstitutional. The State
lacks the constitutional authority
to mandate spending for a child based
on income, rather than adhering to
the law which requires a child be
supported only for the necessaries.
The State asserts that the Petitioner
“must pay” a sum of money to support
his children, gives the money to the
mother, but makes no equal assumption
or requirement of the mother to either
spend that confiscated money on the
children, or to pay an equivalent
sum herself on those children. Equal
treatment under the law is wholly
absent.
13) These “presumptions” are openly
incompetent logic, and to which no
man
in his “legally sane mind” would agree.
If the mother “can’t handle it”
then the court should, “in the children’s
best interest”, award custody to the
father who will. The alleged “contract
of debt” against the Petitioner is
an Unconscionable Contract and a Fraud.
It is an open admission that their
true “compelling interest” is founded
in the state and federal funding.
14) In as much as Petitioner’s ownership
of his own children has never
lawfully been removed, no claims,
orders or acts predicated from that
are lawful. The court has failed to
establish its proper “compelling interest”
jurisdiction, acts through fraud,
and thereof any “order” or “judgment”
is lawfully therefore a Void Judgment.
(21) Harris v. McRae, 448 US 297 (1980)
(USSC+). (24) Santosky v Kramer,
102 S. Ct. 1388, 488 US 745, (1982).
(25) Stanley v. Illinois, 405 U.S.
652
at 653 (1972). (26) Quillon v. Walcott,
434U.S. 246, 247-248 (1978) (27)
Herrick v. Richardson, 40 NH 272 (1860].
(28) People ex rel Barry v.
Mercien 3 Hill 399. (29) 30 (Fiore,
1982, pp. 141-42, citations omitted.)
Santosky v. Kramer, 455 US 745 (1982).
(30) Stanley v. Illinois (1972),
405 U.S. 645 @ 657. (31) Hooks v.
Hooks, 771 F.2d 935 (6th Cir.1985)
@ 935;
Finding of Constitutional Law #1.
(32) Watson v. City of Memphis, 83
S.Ct. 1134, 375 YS 526, 10 L.Ed.2d
(1963). (33) Rideout v. Riendeau.
Roth v. Weston 789 A.2d 431, 443-444
Conn. (2002)
The
Petitioner further asserts the following
claims in regards to his Natural Constitutional
Rights and further under the substance
of the Common Law.
37.) The Supremacy Clause appears
in Article VI of the Constitution
of the United States.
(14) Under the Supremacy Clause, everyone
must follow federal law in the face
of conflicting state law. It has long
been established that "a state
statute is void to the extent that
it actually conflicts with a valid
federal statute" and that a conflict
will be found either where compliance
with both federal and state law is
impossible or where the state law
stands as an obstacle to the accomplishment
and execution of the full purposes
and objectives of Congress. Edgar
v. Mite Corp., 457 U.S. 624, 631 (1982).
Similarly, we have held that "otherwise
valid state laws or court orders cannot
stand in the way of a federal court's
remedial scheme if the action is essential
to enforce the scheme." Stone
v. City and County of San Francisco,
968 F.2d 850, 862 (9th Cir. 1992),
cert. denied, 113 S. Ct. 1050 (1993).
(15) Any state judge that acts contrary
to the United States Constitution
violates the Supremacy Clause and
acts in treason. The U.S. Supreme
Court has stated "No state legislator
or executive or judicial officer can
war against the Constitution without
violating his undertaking to support
it." Cooper v. Aaron, 358 U.S.
1, 78 S.Ct. 1401 (1958).
38.) In Common Law, where the judge
is presented with superior law, he
has no discretion in the matter but
must act upon that higher precedence
of law. Any failure to do so is an
act as a "minister of his own
prejudice" and not "acting
in his capacity" for the state.
Thereof, he may be held for civil
and criminal liabilities. If a judge
does not fully comply with the Constitution,
then his orders are void, In re Sawyer,
124 U.S. 200 (1888), "he is without
jurisdiction, and has engaged in an
act or acts of treason."
PLEASE JUDICIALLY NOTE:
(16) "Fundamental Rights do not
hang by a tenuous thread of a layman's
knowledge of the niceties of law.
It is sufficient if it appears that
he is attempting to assert his Constitutional
privilege. The plea, rather than the
form in which it is asserted ..."
U.S. v St. Pierre, Supra, 128 F 2d.
(17) "The law will protect an
individual who, in the prosecution
of a right does everything, which
the law requires him to do, but fail
to obtain his right by the misconduct
or neglect of a public officer."
Lyle v Arkansas, 9 Howe, 314, 13 L.
Ed. 153.
(18) "Where rights are secured
by the Constitution are involved,
there can be no rule-making or legislation
which would abrogate them. Miranda
v. Arizona, 380 US 426 (1966).
IMPROPER VENUE
1) The first issue that the Petitioner
addresses regarding the trial court,
and no doubt those many like it both
in the State of Michigan and the State
of New York is the practice of the
"presumption" of its own
powers, absent proper procedure, substance
and law, and the practice and policy
of "law by ignorance." These
practices are apparently common throughout
the Michigan and this State's Family
Court system. A "wrong",
though committed a thousand times,
is still "wrong." (19) Amos
v. Mosley, 74 Fla. 555, 77 So. 619.
2) The claim of the State is that
of "Civil Law", and yet
these proceedings ultimately lead
to potential criminal complaints as
witnessed in this instant case. The
Defendant is neither informed of the
potential severity of the "civil"
proceeding, nor informed of any "rights".
Under the guise of "civil law",
"civil court rules" and
"civil procedure", the Petitioner's
foundational constitutional rights
under a criminal context are profoundly
abrogated. In practice, even those
minimal rights commonly afforded in
civil law are profusely ignored through
"default" administrative
procedural fraud, a practice and policy
of defying due process.
3) The "ultimate potential"
of incarceration exists at the onset
of the "civil" proceeding,
and is a deprivation of the Petitioner's
Civil liberties. The Venue, ab initio,
rightfully exists in a Criminal Court.
Absent a proper venue, the "civil"
court has no jurisdiction, and any
"order" or "judgment"
is lawfully thereof a Void Judgment.
4) The claim of Venue in a Civil Court
is a substantial deprivation of the
Petitioner's guaranteed Constitutional
Rights under mandated Federal Law.
Rule making or legislation may not
abrogate these rights. The Defendant
further avers that factually it is
part of an unlawful scheme for the
State to receive funding under the
Federal Title IV-D and TANF programs.
(20) Dupont v. Dupont, Sup. 32 Ded
Ch. 413; 85 A 2d 724. (21) Harris
v. McRae, 448 US 297 (1980) (USSC+).
(22) United States v. Moreland 258
US42=33, 42 S. Ct. 368, 66 L.Ed. 700
(1922). (23) McCullen v. Massachusetts,
27 US 620, 630.
Wiley - Webmaster for:
http://www.amatterofjustice.org
http://www.parentsforchildren.net |
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Mass Constitutional
Cites on Kids.doc |
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Kids and Juries
Quotes |
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The United States Supreme Court has
held in Quilloin v. Walcott,
434 U.S. 246, 98 S. Ct. 549, 54 L.Ed.
2d 511 that: |
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We have recognized
on numerous occasions that the relationship
between parent and child is constitutionally
protected. See, e.g., Wisconsin
v. Yoder, 406 U.S. 205, 231-233,
92 S.Ct. 1526, 1541-42 L.Ed.2d 15
(1972); Stanley v. Illinois,
supra; Meyer v. Nebraska,
262 U.S. 390, 399-401, 43 S.Ct. 625,
626-27, 67 L.Ed. 1042 (1923). "It
is cardinal with us that the custody,
care and nurture of the child reside
first in the parents, whose primary
function and freedom include preparation
for obligations the state can neither
supply nor hinder." Prince
v. Massachusetts, 321 U.S. 158,
166, 64 S.Ct. 438, 442, 88 L.Ed.
645 (1944). And it is now firmly
established that "freedom of
personal choice in matters of... family
life is one of the liberties protected
by the Due Process Clause of the Fourteenth
Amendment." Cleveland Board of
Education v. LaFleur, 414 U.S. 632,
639-640, 94 S.Ct. 791, 796, 39 L.Ed.2d
52 (1974).
The U.S. Supreme
Court implied that "a (once)
married father who is separated or
divorced from a mother and is no longer
living with his child" could
not constitutionally be treated differently
from a currently married father living
with his child. Quilloin
v. Walcott, 98 S Ct 549; 434 US
246, 255-56, (1978).
"It
is cardinal with us that the custody,
care and nurture of the child reside
first in the parents, whose primary
function and freedom include preparation
for obligations the state can neither
supply nor hinder." Prince
v. Massachusetts, 321 U.S. 158,
166, 64 S.Ct. 438, 442, 88 L.Ed.
645 (1944).
Our
conclusion that indigent parents have
a constitutional right to appointed
counsel, if they wish, before their
parental rights are terminated is
buttressed by the fact that [379 Mass.
5] |
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virtually every other court which
has faced this issue has reached the
same conclusion. DEPARTMENT
OF PUBLIC WELFARE V. J. K. B.
379 Mass. 1, 393 N.E.2d 406 |
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"loss of a child may be as onerous
a penalty as the deprivation of the
parents' freedom." DEPARTMENT
OF PUBLIC WELFARE V. J. K. B.
379 Mass. 1, 393 N.E.2d 406 |
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citing Custody of a Minor,
--- Mass. ---, --- , 389 N.E.2d 68,
74 (1979). |
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This fundamental
interest in their relationships with
their children is one of the "liberty"
interests protected by art. 10 of
the Massachusetts Declaration of Rights,
and the due process clause of the
Fourteenth Amendment to the United
States Constitution. See Dep't of
Pub. Welfare v. J.K.B., 379 Mass.
1, 3, 393 N.E.2d 406 (1979), citing
Quilloin v. Walcott, 434 U.S. 246,
54 L. Ed. 2d 511, 98 S. Ct. 549 (1978).
OPINION OF THE JUSTICES TO THE
SENATE
427 Mass. 1201; 691 N.E.2d 911 |
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Before the State may permanently deprive
any parent of that interest, it should
generally be required to meet a standard
of proof higher than a preponderance
of the evidence.
See Santosky v. Kramer, 455 U.S.
745 at 764-766, 71 L. Ed. 2d 599, 102
S. Ct. 1388 (1982); Petition of the
Dep't of Pub. Welfare to Dispense with
Consent to Adoption,
383 Mass. 573, 421 N.E.2d 28 (1981) |
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"In all
controversies concerning property,
and in all suits between two or more
persons, except in cases in which
it has heretofore been otherways used
and practiced, the parties have a
right to a trial by jury . . . ."
Art. 15 of the Declaration of Rights
of the Massachusetts Constitution |
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Article 15 "must
be construed with 'flexibility in
its adaptation of details to the changing
needs [*3] of society
without in any degree impairing its
essential character.'"
Dalis v. Buyer Advertising, Inc.,
418 Mass. 220, 222, 636 N.E.2d 212
(1994), quoting Bothwell v. Boston
Elevated Ry., 215 Mass. 467, 473,
RONALD P. ROSATI, JR., & another
n1 vs. BOSTON PIPE COVERING, INC
102 N.E. 665 (1913) 434
Mass. 349; 749 N.E.2d 143; 144 Lab.
Cas. (CCH) P59,329 |
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The right to a jury trial is firmly
rooted in both the Federal and our State
Constitutions. See Sixth and Seventh
Amendments to the United States Constitution;
arts. 12 and 15 of the Declaration of
Rights of the Massachusetts Constitution.
DANIEL A. JAMGOCHIAN vs. PETER P. DIERKER
& another , N.E.2d
212 (1994), 425 Mass. 565; 681 N.E.2d 1180 |
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The Seventh Amendment
to the United States Constitution
does not apply to a State civil trial.
Dalis v. Buyer Advertising, Inc.,
418 Mass. 220, 223 n.4, 636 DANIEL
A. JAMGOCHIAN vs. PETER P. DIERKER
& another , N.E.2d 212 (1994),
425
Mass. 565;
681 N.E.2d 1180
"Although art.
12 deals with many matters related
to the rights of criminals, it is
NOT EXCLUSIVELY concerned with criminal
matters. For example, art. 12 sets
forth principles of due process of
law applicable to civil, as well as
criminal, actions in both a procedural
. . . and a substantive sense."
Commonwealth v. One 1972 Chevrolet
Van, 385 Mass. 198, 199-200, n.1,
431 N.E.2d 209 (1982)
"As a general
rule, when State or Federal law entitles
an individual meeting certain eligibility
criteria to the receipt of a State
or federally funded benefit, the individual
has a property interest in the benefit."
Madera v. Secretary of the Executive
Office of Communities & Dev.,
418 Mass. 452, 459, 461-462, 636 N.E.2d
1326 (1994) |
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If Due Process is
a Federal requirement: |
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"When a
state officer acts under a state law
in a manner violative of the Federal
Constitution, he "comes into
conflict with the superior authority
of that Constitution, and he is in
that case stripped of his official
or representative character and is
subjected in his person to the consequences
of his individual conduct. The State
has no power to impart to him any
immunity from responsibility to the
supreme authority of the United States.",
Scheuer v. Rhodes, 416 U.S. 232, 94
S.Ct. 1683, 1687 (1974) citing EX
PARTE YOUNG, 209 U.S. 123 (1908)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=416&invol=232
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=209&invol=123
Whenever a judge acts and deprives
any person of any of the rights guaranteed
by the Constitution, that judge had
declared war against the
Constitution. Cooper v. Aaron, 358
U.S. 1, 78 S.Ct. 1401 (1958)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=358&invol=1
"No man in this country is so
high that he is above the law. No
officer of the law may set that law
at defiance with impunity. All the
officers of the government from the
highest to the lowest, are creatures
of the law, and are bound to obey
it." Butz v. Economou, 98 S.Ct.
2894 (1978);
United States v. Lee, 106 U.S. at
220, 1 S.Ct. at 261 (1882)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=438&invol=478&pageno=500 |
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Privacy Rights of
a Family Violated By Child Support Requirements: |
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While the source
of the right to privacy has been held
to originate in varying constitutional
provisions, it has been long recognized
to apply to “family” concerns whether
the family exists within the confines
of marriage or not. Eisenstadt v.
Baird, 405 U.S. 438, 92 S. Ct. 1029
(8) (1972), Roe v. Wade, 410 U.S.
113, 93 S. Ct. 705 at 726-28 (1973).
This Court finds that, by requiring
the non-custodial parent to pay an
amount in excess of those required
to meet the child’s basic needs, as
the economic analysis has shown, the
Guidelines impermissibly interfere
with parental decisions regarding
financial expenditures on children.
Troxel v. Granville, 530 U.S. 57,
120 S. Ct. 2054 (2000) and 147 L.
Ed. 2d 49 (U. S. 2000); Moylan v.
Moylan, 384 NW 2d 859 at 866 (Minn.,
1986).
A statute creating a presumption that
is arbitrary or that operates to deny
a fair opportunity to repel it violates
the due process clause of the Fourteenth
Amendment. Bailey v. Alabama, 219
U.S. 219, 233
http://adrr.com/law1/csp11.htm |
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Constitution Click Here
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Parental
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