THIS APPEAL INVOLVES A QUESTION OF CHILD CUSTODY, ADOPTION, TERMINATION OF PARENTAL RIGHTS OR OTHER MATTER AFFECTING THE BEST INTERESTS OF A CHILD

Nos. 1-04-1602 and 05-0149

IN THE APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT

Brian Lovett, Pro Se
1416 W Wolfram St., #1
Chicago, IL 60657-4117
(312) 245-7982
blovett@gsb.uchicago.edu

ORAL ARGUMENT REQUESTED

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POINTS AND AUTHORITIES

ARGUMENT

I. STATES CANNOT REGULATE FUNDAMENTAL RIGHTS WITHOUT A COMPELLING INTEREST

Lulay v. Lulay, 193 Ill. 2d 455 (2000)
Palmore v. Sidoti , 466 U.S. 429 (1984)
Brown v. Board of Education , 347 U.S. 483 (1954)
Jones v. Helms , 452 U.S. 412 (1981)
Troxel v. Granville , 530 U.S. 57 (2000)

II. CONTRARY TO LAURIE’S DESIRE, THE FOURTH AND FIFTH AMENDMENTS HAVE NOT BEEN REPEALED

Boyd v. United States , 116 U.S. 616 (1886)
Brown v. Board of Education , 347 U.S. 483 (1954)
Plessy v. Ferguson , 163 U.S. 537 (1896)
Fisher v. United States , 425 U.S. 391 (1976)
United States v. Doe, 465 U.S. 605 (1984)

III. THE WEALTH TRANSFER STATUTES ARE EXACTLY THAT

A. In no way is Brian barred from attacking the constitutionality of the Maintenance Statutes.

B. Contrary to Laurie’s wishful thinking, fundamental rights require strict scrutiny – not the rational relation test or even intermediate scrutiny.

Kujawinski v. Kujawinski, 71 Ill.2d 563 (1978)
In re Marriage of Blaisdell, 142 Ill.App. 3d 1034 (1986)
Jones v. Helms, 452 U.S. 412 (1981)
Palmore v. Sidoti, 466 U.S. 429 (1984)
Orr v. Orr, 440 U.S. 268 (1979)
Lane v. Lane, 35 Ill.App.3d 276 (1976)
Kaufman, Litwin, and Feinstein v. Edgar , 301 Ill.App.3d 826 (1998)
In re Marriage of Galvin, 94 Ill.App.3d 1032 (1981)

C. There is nothing illogical about fundamental rights.

N.E. v. Hedges, 391 F. 2d. 832 (6 th Cir., 2004)
Lulay v. Lulay, 193 Ill. 2d 455 (2000)
City of Chicago v. Morales, 527 U.S. 41 (1999)
People ex rel. Sheppard v. Money, 124 Ill. 265, 269 (1988)
Stanley v. Illinois, 405 U.S. 645 (1972)

D. The Constitution – void where prohibited by divorce law.

Brady v. United States, 397 U.S. 742 (1970)

E. Even if, as Laurie claims, the taking is for a public use, just compensation must be provided and the statutes are, therefore, still unconstitutional.

Lulay v. Lulay, 193 Ill. 2d 455 (2000)
In Re Fisher, 15 Ill.2d 139 (1958)
Chicago, Burlington and Quincy Railroad Company v. Chicago, 166 U.S. 226 (1897)
Federalist No. 54 ( Madison ) (C. Rossiter ed. 1961)
Kelo v. City of New London , 545 U.S. ___ (2005)
United States v. Lynah, 188 U.S. 445 (1903)
Armstrong v. United States, 364 U.S. 40 (1960)
Monongahela Navigation Co. v. United States, 148 U.S. 312 (1893)
Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978)
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)

F. Slavery is a condition of enforced compulsory service of one to another.

In re Marriage of Smith, 77 Ill.App.3d 858 (1979)
Hodges v. United States, 203 U.S. 1 (1906)

IV. THIS COURT HAS NOT YET RULED ON THE INJUNCTION

A. The Injunction is properly before this court.

B. No court has authority to limit what a fit parent can and cannot say to his child as there is no compelling interest.

Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir. 2000)
Doe v Heck, 327 F.3d 492 (7th Cir. 2003)
Roth v. Weston, 789 A.2d 431 ( Conn. 2002)
Lulay v. Lulay, 193 Ill. 2d 455 (2000)

V. LAURIE'S MERE CLAIM THAT THERE WAS NO FRAUD IS NOT ENOUGH TO CHANGE REALITY AND MAKE IT TRUE

A. The oral agreement to waive child support was completely enforceable as both parents are fit.

Soules v. General Motors Corp., 79 Ill.2d 282 (1980)
Majewski v. Gallina, 17 Ill.2d 92 (1959)

VI. ILLINOIS HAS A CONSTITUTIONAL GUARANTEE OF THE RIGHT TO TRIAL BY JURY FOR THOSE ACTIONS RECOGNIZED IN COMMON LAW, AND DIVORCE WAS RECOGNIZED IN COMMON LAW

The People Ex Rel. Diane v. Daryon McDaniel, 180 Ill. App. 3d 13 (1989)

APPENDIX

Statutes

"Attorneys' Fees Statutes," including 750 ILCS 5/501 (c)(1), 750 ILCS 5/503 (j), and 750 ILCS 5/508, as well as any other sections within 750 ILCS 5 and rules that refer to “attorneys’ fees”

"Maintenance Statutes," including 750 ILCS 5/504, and associated sections 750 ILCS 5/501 (a), 750 ILCS 5/507, and 750 ILCS 5/510 (a), as well as any other sections and rules that refer to “maintenance”

”Best Interest of the Child Statutes,”including 750 ILCS 5/602, 750 ILCS 5/603, 750 ILCS 5/604, 750 ILCS 5/607, 750 ILCS 5/609, 750 ILCS 5/610, 750 ILCS 5/503 (g), and 750 ILCS 5/506, as well as any other sections and rules that refer to “best interest of the child”

”Child Support Statutes,” including 750 ILCS 5/505, and associated sections 750 ILCS 5/501 (a), 750 ILCS 5/507, 750 ILCS 5/510 (a), 750 ILCS 5/510 (e), 750 ILCS 5/510 (f), and 750 ILCS 5/513, as well as any other sections and rules that refer to “child support”

”Mandatory Disclosure Rules,” including Rules of the Circuit Court of Cook County 13.3.1 and 13.3.2

750 ILCS 65/15 (2)

Constitutional Provisions

Fourth Amendment
Fifth Amendment
Fourteenth Amendment

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ARGUMENT

I. STATES CANNOT REGULATE FUNDAMENTAL RIGHTS WITHOUT A COMPELLING INTEREST

Laurie Lovett (hereinafter “Laurie”) claims in her Appellee Brief (hereinafter “Brief”) that “[t]here must be thousands of cases in American courts each year in which custody issues between parents are appealed; but Brian found none to cite in support of this argument.” Brief, p. 12. Any other “best interest of the child” cases, other than “strict scrutiny” cases regarding parental fitness, are completely irrelevant, as they all are based on the same corrupt standard. Not so many years ago, all states had “Jim Crow laws” against blacks (e.g., separate drinking fountains, separate seating sections, separate schools). Plenty of cases supported those corrupt “standards” as well. Nothing but proven criminal actions against a child warrants the state to exclude a parent from their child's life. The state cannot simply acquire the right to take legal responsibility away from a fit parent just by declaring it so without a compelling interest – the type of behavior taken under the authority of these laws is beyond the power of government appropriation.

Laurie claims in her Brief that “Brian suggests no real alternative to the Best Interest Standard. He urges an approach without any standards or rules.” Brief, p. 12. Brian Lovett (hereinafter “Brian”) does not need a law degree to understand that courts are not a “super-legislature” and do not (or, rather, are not supposed to) manufacture the laws (regardless of what they illegally do through judicial activism, as they attempt to dictate morality by pretending to limit themselves to interpreting the laws and find “realities” where none existed). Though Brian believes it is completely irrelevant to suggest an alternative, in the off-chance that Brian is uninformed due to lack of any legal training, and in direct reply to Laurie’s Brief, Brian attaches a “real alternative” to the purported “best interest of the child” standard in the Appendix.[1]

Regardless, before the divorce, Brian had an "interest" in his daughter, Samantha Lovett (hereinafter “Samantha”) and his property. After the divorce, and as a direct result of the challenged laws and the state’s associated police power, Brian no longer has an interest in either. Laurie retained her "interest" to Samantha and her property, and Brian’s interest was directly removed by the trial judge (and transferred to Laurie). This case is easy, no matter how much the state, its courts, and Laurie attempts to complicate it by claiming the best interest standard is “not perfect.” Brief, p. 12. As Laurie found it useful to quote from socialist Winston Churchill[2], Brian thinks it is appropriate to quote from another socialist during Churchill’s time: “The state must declare the child to be the most precious treasure of the people. As long as the government is perceived as working for the benefit of the children, the people will happily endure almost any curtailment of liberty and almost any deprivation.” (Adolf Hitler, Mein Kampf).

Laurie claims that “[t]he Lovetts proved in their protracted pretrial litigation that they were incapable of working together.” Brief, p. 12.[3] Laurie’s assertion that this is a compelling reason for a judge to ignore, disregard, and get around Brian’s (but not Laurie’s) fundamental rights has no basis in law.

Brian finds it interesting to watch someone argue something they clearly know is not true, but that they are being paid to argue anyway (not to mention is in their own self-interest as lawyers would lose millions of dollars in fees if these statutes were ruled unconstitutional). In a strained attempt to salvage an obviously unsalvageable statutory scheme, Laurie’s response to the constitutional challenges is that all state legislatures “made the rational choice to protect children of divorce by giving our courts the discretion to decide where they would live and which parent would make decisions.” Brief, p. 12. Yet, in response to Brian’s assertion that “when a state law or rule affects fundamental rights, the traditional standard of appellate review is abandoned, there is no presumption of constitutionality, and the court is required to apply “strict scrutiny” (Brian’s Appellate Brief, p. 14), Laurie cowers with “[n]o response is made.” Brief, p. 11. The rational basis test is only appropriate when there is no suspect classification or fundamental right in issue. Lulay v. Lulay, 193 Ill. 2d 455, at para. 54 (2000).[4] Laurie’s ranting and mere assertions that the legislature’s “choice was neither irrational nor unconstitutional” (Brief, p. 12) do not address at all the fundamental rights of a parent to the care, custody, control, companionship, and nurture of one’s offspring embodied in the fundamental liberty interest in family, which rights are secured by the Fourteenth Amendment.

As weak support, Laurie cites Palmore v. Sidoti, 466 U.S. 429, 433 (1984), claiming that “[t]he goal of granting custody based on the best interest of the child is a substantial government interest for purposes of the Equal Protection Clause.” Brief, p. 13. Well, a “substantial governmental interest” is insufficient to overcome the fundamental rights and liberty interest of adults embodied in the Fourteenth Amendment. Only “ compelling” state interests – reviewed under the strictest scrutiny – can do that (as Brian’s Appellate Brief makes perfectly clear). Palmore v. Sidoti also claims that the state “has a duty of the highest order to protect the interest of minor children.” Id., at 433. Sorry, but not in contravention of the parent’s fundamental rights, EVER, unless the parent has abdicated his or her rights, or forfeited them by committing a crime which impacts the children. The case goes on to say “particularly those of tender years.” Id., at 433. Wrong again. The “tender years doctrine” was generally gone by 1984 and does not exist anywhere anymore. Now, Brian understands that by Shepardizing authorities, you can analyze their current value as precedent. Guess what? This will not Shepardize and is “bad law.” It goes on to say: “In common with most states, Florida law mandates that custody determinations be made in the best interests of the children involved.” Id., at 433. So what? The law is unconstitutional on its face AND as applied.

Laurie makes the delusional assertion that “[t]he states can and pretty much always have imposed separate and special rules for children of divorce.” Brief, p. 13. In fact, the way her attorneys worded that sounds a lot like the “separate but equal doctrine” addressed in Brown v. Board of Education, 347 U.S. 483 (1954). After all, if the states had always discriminated against blacks by imposing “separate and special rules,” then it is legal, correct? What is so wrong about separate but equal drinking fountains? Then again, at the time of Brown v. Board of Education, black children were (theoretically) granted “equal facilities,” whereas Brian (as a so-called “non-custodial parent”) is not even allowed equal parenting time or responsibilities. As a result of the trial court, Brian is now treated as an “inferior” parent (e.g., who has no decision-making authority, who only is “allowed” to “visit” with his daughter approximately 16% of the time), while Laurie is now treated as a “superior” parent (e.g., who has full decision-making authority, who provides the permanent residence of Samantha 84% of the time). The state may not treat parents differently, no matter what classification scheme they use.

“The Equal Protection Clause provides a basis for challenging legislative classifications that treat one group of persons as inferior or superior to others, (footnote omitted) and for contending that general rules are being applied in an arbitrary or discriminatory way. (footnote omitted) The portion of the Georgia statute at issue in this case applies equally to all parents residing in Georgia…” Jones v. Helms, 452 U.S. 412, 423-424 (1981). (Finding no equal protection violation.)

Laurie asserts that “Brian does not claim error in any of Judge Hamilton’s findings” (e.g., that Brian is “controlling,” “uncompromising,” “inflexible,” “a bully,” and “too rigid to be able to jointly parent”). Brief, p. 14. Even if this vague, irrelevant, and unfounded character attack (by a judge no less!) were provable, the criterion for “fitness” does not require that a parent conform to some arbitrary state-imposed definition or a set of characteristics for personality, wealth, gender, temperament or other individual trait, but only that one “adequately cares for his or her children.” As long as one “is fit” in this regard, one is entitled to the full constitutional protection of one’s liberty interest in family. Troxel v. Granville, 530 U.S. 57, 67 (2000).

II. Contrary to Laurie’s desire, the Fourth and Fifth Amendments have not been repealed

In her attorney’s continuing colorful tone, to rebut Boyd v. United States, 116 U.S. 616 (1886), Laurie claims that “[t]he law has changed in the past 119 years. More recent cases (like the last century) have a less restrictive view of discovery.” Brief, p. 14. Funny enough, Brian has read all of the Amendments to the Constitution and can find no Amendment that repeals the Fourth and Fifth Amendments. Additionally, Brian is unable to find any U.S. Supreme Court case that overturns Boyd v. United States(cf. Brown v. Board of Education and Plessy v. Ferguson, 163 U.S. 537 (1896)). Laurie asserts that Fisher v. United States, 425 U.S. 391 (1976), which was about the government directing a third-party to produce documents given to him by an individual taxpayer (“the accused,” Id., at 398), basically guts Boyd v. United States and invalidates Brian’s argument. Brief, p. 15. Nothing could be further from the truth. As the U.S. Supreme Court states:

“The taxpayer's privilege under this Amendment is not violated by enforcement of the summonses involved in these cases because enforcement against a taxpayer's lawyer would not "compel" the taxpayer to do anything - and certainly would not compel him to be a "witness" against himself. The Court has held repeatedly that the Fifth Amendment is limited to prohibiting the use of "physical or moral compulsion" exerted on the person asserting the privilege (citations omitted).” Fisher v. United States, at 397.

Also, in her summary of that case, Laurie explains that Fisher v. United States distinguishes “between being required to create documents and producing existing documents.” Brief, p. 15. Laurie seems to (intentionally) forget that the Mandatory Disclosure Rules compel an individual to complete a new document (i.e., a “Disclosure Statement”), which is certainly not a document that any sane person would ever produce on their own without a gun being held to their head as part of a divorce or post-divorce proceeding. In other words, these documents are completed and produced involuntarily. Additionally, Fisher v. United States applies to a one-time subpoena, while the Judgment orders an annual disclosure for at least 14 years. Finally, and perhaps most clearly, Fisher v. United States, at 414 asserts that:

“Whether the Fifth Amendment would shield the taxpayer from producing his own tax records in his possession is a question not involved here; for the papers demanded here are not his "private papers."

United States v. Doe, 465 U.S. 605 (1984) is more of the same (i.e., restating Fisher v. United States), being about “business records of a sole proprietorship” in a criminal case (United States v. Doe, at 606). This case is no way offends Brian’s argument.

III. The Wealth Transfer Statutes are exactly that

In referring to the Wealth Transfer Statutes, Laurie colorfully states that “[w]hile a good slogan will help sell an idea just as others will sell a car, beer or brand of margarine, slogans rarely result from or assist in careful legal analysis,” later claiming the term “is catchy, but meaningless.” Brief, p. 16. Brian suggests that this court apply that same unfounded assertion to the “best interest of the child” standard and statutory “factors.”

Brian is deprived of property by force to “compensate” Laurie (and, purportedly, his child) for no harm that was committed in any sense (nor even any foreseeable harm or intent to commit harm). The rights guaranteed by the State and Federal constitutions can be changed by the People, but not by legislatures. Any other view would lead to the absurdity that the constitutions protect only those rights which the legislatures do not take away. If Laurie's arguments, as advanced in support of the Attorneys’ Fees Statutes, Maintenance Statutes, and Child Support Statues, can subvert the fundamental right to property, then there is no private right entirely safe, because there are no limitations upon the absolute discretion of legislatures and judges, and the guarantees of the constitutions are a mere waste of words. The final and simple analysis is this: the forced taking of property from A to give to B cannot be done under our constitutions.

A. In no way is Brian barred from attacking the constitutionality of the Maintenance Statutes.

Laurie admits that Brian paid maintenance to her, though she contends he has “no future obligation to pay.” Brief, p. 16. As Laurie also admits, Brian has been challenging the constitutionality of the Maintenance Statutes since March, 2003. Brief, p. 4. Brian was ordered on September 30, 2002 to pay Laurie maintenance, and “[t]he terms of this Order [were] without prejudice to either parties’ right to contest the issue and to seek set offs/credits at a final trial.” (Exhibit DDDD, see also C. 2269). Brian asked for the forced transfer of money to be refunded and, as Laurie agrees, the trial court denied the request. Brief, p. 16. Brian also asked for the Maintenance Statutes, which compelled the forced transfer, to be declared unconstitutional. That request was also denied by the trial court. So, contrary to Laurie’s unsupported claim, it is clear that the maintenance statutory provisions did affect Brian. Therefore, Brian properly appeals now.

B. Contrary to Laurie’s wishful thinking, fundamental rights require strict scrutiny – not the rational relation test or even intermediate scrutiny.

Laurie is effectively begging this court to ignore this very simple legal requirement, and the courts have clearly encouraged this with past “family court” rulings (e.g., Kujawinski v. Kujawinski, 71 Ill.2d 563 (1978), which applies the incorrect standard when dealing with fundamental rights in order to rationalize the fraud and dissuade challenges).

Child Support. Using In re Marriage of Blaisdell, 142 Ill.App. 3d 1034 (1986) in support, Laurie claims that because “the statue treats all divorced parents alike,” it is not constitutionally infirm. Brief, p. 18. Even if “the statute treats all divorced parents alike” (which is obviously not the case as In re Marriage of Blaisdell, at 1046, points out: “the statute obviously distinguishes between custodial and non-custodial parents”), this is not the claim being urged here. This distinction, created by operation of statute, is one of the core elements of the law being challenged. The rights at issue are of the most fundamental nature. A divorced father is treated by the state very differently than the way the state treats married fathers. Regardless of custody, and regardless of one parent’s income relative to the other’s, and regardless of the amount of time a parent is “allowed” to spend with the child, a divorced parent is NOT situated differently with respect to his child (i.e., he is still a parent). Therefore, the claim that all divorced parents are treated alike is not to draw a valid distinction. Jones v. Helms, at 423-424.

Maintenance. Similar to Palmore v. Sidoti, Laurie uses Orr v. Orr, 440 U.S. 268 (1979) in a futile attempt to suggest that a “legitimate and important governmental objective” is enough to discount the fundamental right to property. Brief, p. 18. The legitimate state interest test in vogue today is a bare conclusion, tantamount to asserting that the action is legitimate because it is lawful. The test completely ignores the connection between the police power and the need to maintain peace and good order. As such, the test functions, at best, as a convenient label for serious inquiry, without defining the set of permissible ends of government action. Police power cannot be invoked to counter the perceived economic inequality between parties, without force or misrepresentation, as there is no private wrong to control. The sole function of the police power is to protect individual liberty and private property against all manifestations of force and fraud.

Laurie’s use of Lane v. Lane, 35 Ill.App.3d 276 (1976) is quite funny (and irrelevant) considering the constitutional challenge in this case was:

“…whether compelling a former husband to pay alimony to his former wife after she enters a convent to become a nun creates an impermissible connection between church and State in violation of the first and fourteenth amendments to the United States Constitution.” Id., at para. 11.

Clearly, Brian is not challenging the constitutionality based on a separation of church and state argument, nor is he challenging the constitutionality based on gender. So, either Laurie’s attorneys are not reading the cases they are citing or, more likely, they know that these statutes cannot withstand the compelling interest test required by fundamental rights and they are, therefore, grasping at straws.

Attorneys’ Fees. Laurie claims that this court is “bound by its prior decisions, no matter how wrong” they are. Brief, p. 18. Discounting for a moment the enormous moral implications of that claim, if that argument had any merit, court decisions would never be reversed now, would they? According to Laurie, reexamination of statutes and precedence juxtaposed with the considerations raised in different cases never occurs.

Brian addressed Kaufman, Litwin, and Feinstein v. Edgar, 301 Ill.App.3d 826 (1998) in his closing argument, but will do so again here. The arguments that this law firm presented are utter nonsense, and Brian has a very hard time believing that a bar-licensed attorney would even consider such an approach without a covert reason. The primary premise of this case is a separation of powers argument, and the secondary arguments are laughable. Nowhere does Brian claim that attorneys’ fees are unconstitutional because of an inappropriate separation of power – that is ridiculous. Property is a fundamental right! The state cannot infringe on fundamental rights without a compelling state interest narrowly tailored, and strict scrutiny is the hardest test to meet. Except for railroads in the late 1800’s and early 1900’s which have established solid authorities for the constitutionality of attorneys’ fees, no one has ever attacked these divorce attorneys’ fees statues before like Brian is. (Just follow the money to understand why.) In fact, Illinois statutes contradict themselves. Statute 750 ILCS 65/15 (2) specifically states that “[n]o creditor, who has a claim against a spouse or former spouse for an expense incurred by that spouse or former spouse which is not a family expense, shall maintain an action against the other spouse or former spouse for that expense…” Laurie’s legal expenses have only benefited herself and her attorneys, while directly harming Brian and Samantha. Additionally, In re Marriage of Galvin, 94 Ill.App.3d 1032 (1981) is about a law firm suing its client for non-payment of fees, claiming a “constitutionally prohibited special legislation,” which is completely irrelevant in the instant matter. Though Laurie begs this court to look the other way (legally and morally), and though this court will likely do so based on past (flawed) decisions, everyone knows that this is about fundamental rights, compelling state interests, and strict scrutiny.

C. There is nothing illogical about fundamental rights.

Laurie claims that Brian’s arguments would be “strengthen[ed]” if the “precise statutes complained of were specified.” Brief, p. 19. For some reason, Laurie’s attorneys must have missed both pages 6 and 8 of Brian’s Appellate Brief that specifically identified these (twice). Laurie complains that “[i]t appears that if there is a statute on the books in Illinois which could in any way ever take any of Brian’s “labor” or “wages,” it is unconstitutional. This takes the concept of due process beyond precedent, beyond logical limits.” Brief, p. 19.[5] At this point, Brian is only attacking the statutes which have directly injured him and his daughter by infringing on well-established fundamental rights.

Laurie’s use of N.E. v. Hedges, 391 F. 2d. 832 (6 th Cir., 2004) is so off-the-mark that it is difficult to know where to begin. This case is about a father whose

“…claim is that the mother of the child "fraudulently induced" sexual intercourse, claiming that her birth control pills would prevent pregnancy, then left the state, married another man, and delayed seeking child support for several years after birth.” Id., at para. 19.

He claimed his paternity should be

“…invalidated because it "imposes parenthood on biological fathers while denying them any right or opportunity to decide not to become a parent after conception… His "fairness" argument seems to be that he should receive this constitutional right in exchange for the woman's right to abort her pregnancy." Id., at para. 19.

Brian believes he has made it clear, but he will do so again: Brian is PROUD to be the father of his wonderful daughter and fully asserts that he should equally support her with Laurie. However, just like in any family with two married parents, until there is a compelling state interest (e.g., Brian does not provide a safe place for his daughter to sleep, Brian does not feed his daughter enough food), the state has no police power authority to take ANY of his money and give it to a non-related person (parent or otherwise) purportedly for support of his daughter.

Laurie’s mere assertion that the Wealth Transfer Statutes are not unconstitutional because “Illinois law provides judges general standards and rules and allows remedies to be tailored to the facts” (Brief, p. 19) completely (and intentionally) ignores the very essence of the heightened standard of review of strict scrutiny (i.e., to prevent individuals from being victimized by arbitrary action and having their fundamental interests infringed by the state). The Fourteenth Amendment, in essence, protects a state’s citizens from forced obeisance to whimsical and capricious state actions. Even the rational relation test REQUIRES statutes to NOT be dependent on the individual discretion of a judge, but fixed on law (i.e., not be arbitrary). Lulay v. Lulay, at para. 54.

Child Support. Laurie claims that “[t]he statute contains perfectly clear language empowering the trial court to take almost anything significant into account to deviate from the guidelines.” Brief, p. 20. Brian could not have said it better himself.

“It is unconstitutional, not because a policeman applied his discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications. See Lanzetta v. New Jersey, 306 U. S. 451, 453.” City of Chicago v. Morales, 527 U.S. 41, at para. 26 (1999).

Humorously claiming to be unsure whether this “flaw would render the statute unconstitutional” (Brief, p. 20), Laurie’s admission that the court enjoys “almost” unlimited discretion completely reinforces its failure to even pass the measly rational relation test.

“A court generally applies the rational basis test in examining the constitutionality of a statute under substantive due process. See Tully, 171 Ill. 2d at 304. To satisfy this test, a statute need only bear a rational relation to a legitimate state purpose, and must be neither arbitrary nor discriminatory.” Lulay v. Lulay, at para. 54.

Laurie uses People ex rel. Sheppard v. Money, 124 Ill. 265, 269 (1988) to claim that “[a] parent’s duty to support his or her minor child is among the oldest principles of law.” Brief, p. 21. As Laurie continues to avoid the argument, Brian will continue to reassert it: Brian is not claiming that he does not owe a duty of support to his daughter, nor has he claimed that he does not wish to support his own daughter. Laurie also uses N.E. v. Hedges, at 836, because it concludes that “[c]hild support has long been a tax fathers have had to pay in Western civilization.” Brief, p. 22. It is certainly disappointing that a federal court in 2004 can claim that discrimination against fathers is “constitutionally sufficient to support… child support requirements.” Id., at 836. It is shameful that courts and their lapdog attorneys think it acceptable to compel fit fathers to “pay their fare, board at the back of the bus, and not sit in the first five rows,” not unlike Montgomery, Alabama’s segregation laws in 1955.

Maintenance and Attorneys’ Fees. Laurie claims that Brian asserts that “[t]he child support guidelines were too specific.” Brief, p. 22. Clearly, Laurie must have been reading someone else’s brief, as that is not even close to what Brian argues. To generally reiterate, Brian asserts that the child support guidelines are arbitrary, without a legitimate or compelling interest, do not identify prohibited behavior or unlawful conduct (and are, therefore, unconstitutionally vague), that there exists no factual basis or reasons for the amount or degree of deviation (nor how to apply the deviations) within the factors, and bear no rational relation to the actual cost of supporting his daughter. The Maintenance and Attorneys’ Fees Statutes suffer the same infirmaries. Laurie also claims that Brian cites “[n]o cases… in support of these broad attacks.” Brief, p. 22. Laurie must have (intentionally) ignored all of the cases on pages 40 – 44 of Brian’s Appellate Brief, not to mention Stanley v. Illinois, 405 U.S. 645 (1972) on page 47.

D. The Constitution – void where prohibited by divorce law.

Laurie imagines a fantasy world where “[m]uch of what is claimed to be protected under the right to privacy was surrendered when Brian initiated this case in the circuit Court of Cook County. He asked the court to take power over his marriage to Laurie, to determine the best interest of the child, to make financial arrangements, etc. Having submitted himself to the jurisdiction of the court, he cannot now come back to complain that the court has invaded his constitutional right to privacy.” Brief, p. 23. This reminds Brian of Judge Mathein’s statement on December 16, 2002: “Mr. Lovett, regarding your constitutional rights, when you filed for divorce, you give yourself to the jurisdiction and are governed by the rules of the Illinois Marriage and Dissolution of Marriage Act. And so even though we support that [constitutional] right, your [constitutional] rights are subject to the [divorce] law.” (05-0149 R. Vol. 2: 16 lines 1-9; see also 05-0149 R. Vol. 2: 23 lines 1-13).[6]The U.S. Supreme Court disagrees:

“Waivers of constitutional rights must not only be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences. See Brookhart v Janis, 384 U.S. 1 (1966); Adams v U.S. ex rel. McCann, 317 U.S. 259 (1942); Johnson v Zerbst, 304 U.S. 458 (1938); Patton v U.S., 281 U.S. 276 (1930)." Brady v. United States, 397 U.S. 742, 748 (1970).

At no time did Brian explicitly or implicitly waive his rights to his child or his property.[7]

E. Even if, as Laurie claims, the taking is for a public use, just compensation must be provided and the statutes are, therefore, still unconstitutional.

Laurie’s claim that the state has a “compelling public interest in awarding maintenance and child support” (Brief, p. 24) is wholly unsubstantiated (legally or morally, see, e.g., Lulay v. Lulay, at para. 73). Using In Re Fisher, 15 Ill.2d 139 (1958), Laurie propounds that maintenance is a “public interest.” Brief, p. 24. If it is a public interest, then Brian’s property is legislatively confiscated to satisfy this public use and the U.S. Supreme Court has long ago stated that practice is unconstitutional.

“In our opinion, a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the State or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the Fourteenth Amendment of the Constitution of the United States, and the affirmance of such judgment by the highest court of the State is a denial by that State of a right secured to the owner by that instrument.” Chicago, Burlington and Quincy Railroad Company v. Chicago, 166 U.S. 226, 241 (1897). [8]

The public receives no direct or indirect benefit at all from the forced transfer of Brian to Laurie and her attorneys, ESPECIALLY as a private party is solely controlling, enjoying, and benefiting from the funds. Having said that, taking Brian’s property to merely advance what cannot even be considered a legitimate state interest is wholly inconsistent with the historical purpose of the Takings Clause. The Framers of the Constitution and Bill of Rights regarded the protection of individual property rights as a central goal of government. “Government,” James Madison wrote, “is instituted no less for protection of the property than of the persons of individuals.” Federalist No. 54 ( Madison) (C. Rossiter ed. 1961), at 339. The Framers would have been shocked at the notion that the Takings Clause, which lies at the heart of this protection, requires no more than a purported “need” of government’s purposes in commandeering private property. The text of the Takings Clause is unambiguous, mandating that “private property [shall not] be taken for public use, without just compensation.” Even the “perverse,” “dangerous” (Thomas J., dissenting), and “illicit” (O’Connor, J., dissenting) recent U.S. Supreme Court decision indicates that, although government may deprive a “victim” (Id.) of his property in order to put it to public use, government's right to do so is conditioned on the payment of just compensation. Kelo v. City of New London, 545 U.S. ___ (2005).

Finding “’no warrant in the laws or practices of our ancestors’” for governmental “’authority [to] inva[de] private right under the pretext of the public good'” (United States v. Lynah, 188 U.S. 445, 470 (1903)), the U.S. Supreme Court has long recognized that the purpose of the Takings Clause was to shield individual rights from government action that would convert one person's property to community use. See Armstrong v. United States, 364 U.S. 40, 49 (1960) (the Takings Clause “was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole”); Monongahela Navigation Co. v. United States, 148 U.S. 312, 325 (1893) (the Clause “prevents the public from loading upon one individual more than his just share of the burdens of government”). A “she needed it” exception to the just compensation requirement is inconsistent with this purpose. The teaching of the Takings Clause is that where public benefits are achieved by depriving individuals of property, the costs “must be borne by all [a community's] taxpayers [and not] imposed entirely on the owners of the individual properties.” Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 139 (1978) (Rehnquist, J., dissenting). The cardinal principle that should guide interpretation of the Takings Clause is that government may not sacrifice the property interests of some to benefit others: “a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922).

There is no question that there was a taking of Brian’s private property, the property in question was equally valuable to Brian and Laurie, and the taking was the entire property (i.e., not just a part). This taking of private property was both conscious and deliberate, and was accomplished by a simple but direct act by Laurie. Ergo, it is undeniable that private property has been taken. This is a prima facie argument that Brian is entitled to recover his property that was taken. If it was the government, in fact, that had taken the property for its own direct use and/or incorporated it into its own property, there would be no question that just compensation would have to be paid. Once private property is taken, if there is no police power justification, compensation must be provided. Monongahela Navigation Co. v. United States, at 327.

There is no question that Laurie gains/benefits (and even “profits” as she is allowed to spend more time with and exclusively control Samantha) from taking Brian’s property because she uses it to exclusively defend her taking of Brian’s other property and her actions to prevent Brian from seeing Samantha; while, as a result, Brian suffers because he cannot then use that property in defense of himself against a flawed judgment. There was no wrong committed and, therefore, there can be no taking of private property.

The government is inflicting a substantial and deliberate loss on Brian without any justifiable reason (e.g., if Brian had harmed his daughter in some way). Let the government remove any of the incidents of ownership, let it diminish the rights of the owner in any fashion, then it has brought itself within the scope of the Eminent Domain Clause, no matter how small the alteration and no matter how general its application. What is decisive is that which is taken, not that which was retained.

By way of absurd analogy, Laurie claims that Brian’s taking argument amounts to “[i]f Bill Gates’ wife were to be crippled by accident or illness and had no money in her own hands, she would not be entitled to any financial assistance from her spouse no matter how many billions of dollars he kept in his petty cash drawer. Our law honors and protects the right to own private property. But this argument puts that right over virtually all other rights.” Brief, p. 23. Brian asks: what “other rights” is Laurie referring to that could possibly be more important than property rights (see Federalist No. 54, at 339), other than, perhaps, the fundamental right to the care, custody, control, companionship, and nurture of one’s children? The socialistic principle of “obligations” to the “needy,” such as ex-wives who have a constitutional right to maintain their “standard of living?”

Laurie’s rationale is constitutionally defective because it permits government intervention to shift wealth from one class to another in cases where the classic police power ends of controlling force and fraud are wholly absent. To use inequality of wealth to overthrow the fundamental right to property is to sanction endless government intervention in virtually all cases, because there will always be differences in wealth in virtually all cases. The state cannot take property lawfully acquired because its owner has too much of it; for the same reason, it cannot take some part of that property. If outright confiscation is not justified by showing that the owner has some “superior” strength, then a partial taking cannot be so justified either.

F. Slavery is a condition of enforced compulsory service of one to another.

Laurie claims that a pitiful, unsubstantiated assertion in In re Marriage of Smith, 77 Ill.App.3d 858 (1979) substantiates that the involuntary servitude argument is without merit. Brief, p. 25. For that assertion, here are the only words the court used:

“This argument is completely without merit. Purely monetary obligations, whether based on ordinary commercial contracts or upon a relationship such as marriage or parenthood cannot be equated with peonage or slavery.” Id., at para. 30.

Of course, the U.S. Supreme Court disagrees:

“The meaning of this is as clear as language can make it. The things denounced are slavery and involuntary servitude, and Congress is given power to enforce that denunciation. All understand by these terms a condition of enforced compulsory service of one to another. While the inciting cause of the Amendment was the emancipation of the colored race, yet it is not an attempt to commit that race to the care of the Nation. It is the denunciation of a condition and not a declaration in favor of a particular people. It reaches every race and every individual…” Hodges v. United States, 203 U.S. 1, 16-17 (1906).

Laurie states that “[t]o compare the nuisance of paying money to a needy former spouse or her lawyers to the unthinkable horror of slavery is to insult those miserable souls who were slaves.” Brief, p. 25. A thug, using the point of a gun, forces Brian to give his money to his assaulter for no other reason than she is purportedly “needy” (by what standard she is “needy” is by whatever arbitrary standard the thug chooses it to be). This is what Laurie considers a “nuisance.” “Unthinkable horror” is having someone steal your children and steal your money at the point of a gun while a court sanctions the thief, an appellate court affirms it, and the state provides the gun… EXACTLY like slavery did.

IV. This court has not yet ruled on the injunction

A. The Injunction is properly before this court.

Laurie claims that because Brian “did not file any motion to vacate or reconsider the June 22, 2004 Order… [n]or did he file a Notice of Interlocutory Appeal in accordance with Supreme Court Rule 307,” it is not properly before this court (though, Laurie admits she is unable to find any cases to support this ridiculous claim). Brief, p. 26. As Brian made perfectly clear in paragraph 2 of his Emergency Motion to Stay Permanent Injunction Pending Appeal filed with this court on June 21, 2004: “Per Supreme Court Rule 305(d), this emergency motion is being made directly to this Court, as an application to the trial court is not practical given its harassing conduct which resulted in multiple procedural and substantive due process violations. Application to the trial court is also not practical given the directive of the Order and the limited lack of evidence used to support the Order, which solidly supports a belief that the trial court will not stay the injunction.” In other words, it is completely impractical that Judge Mathein, who clearly believes the Constitution does not apply in her courtroom, would reconsider.

B. No court has authority to limit what a fit parent can and cannot say to his child as there is no compelling interest.

Suggesting that the trial court was protecting Samantha from her loving father (see Brian’s Appellate Brief, pp. 26-27), Laurie proclaims that “[c]learly, the trial court was persuaded that Brian had said highly inappropriate things to his daughter and that she was in danger of being harmed if he continued to do so.” Brief, p. 27. Nonsensically assuming the court’s inquiry was even valid, to prevent harm, it must be possible to identify that activity which is uniquely the cause (not to mention define the specific harm).

“…courts have recognized that a state has no interest in protecting children from their parents unless it has some definite and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse.” Brokaw v. Mercer County, 235 F.3d 1000, at para. 60 (7th Cir. 2000).

On the facts presented, it is not difficult to weigh the state’s interest in investigating an allegation of child abuse (i.e., speaking purportedly harmful words to his daughter) against Brian’s or Samantha’s right to familial relations because, as the trial court (and Laurie) had no basis to suspect Brian of child abuse, thus they had no reason to interfere with his familial relationships. Regardless of what Brian discusses with his child, in no way could it ever be proved that these comments uniquely would cause harm or remotely be considered abuse, which is the only constitutionally defensible argument. Ergo, there is no compelling state interest. (Incidentally, no proof was ever offered that the four statements Brian made to Samantha were untrue. Therefore, the statements must be taken as true, which means the trial court considers truthful statements to be “harmful.”)

Freedom of speech gives one the right to talk in ways that are unpleasant to others, without any justification for doing so. Individual rights of speech, especially to one's children, can be overridden only by a showing of a compelling state interest. In fact, in Doe v Heck, 327 F.3d 492 (7th Cir. 2003) the court implied that even corporal punishment is likely within the bounds of the fundamental right of parents:

[69] In assessing the reasonableness of the defendants' actions in this case, we begin with the constitutional presumption that "fit parents act in the best interests of their children," Troxel, 530 U.S. at 68, and stress that unless government officials have evidence calling into question the fitness of a parent, there is "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 the best decisions concerning the rearing of that parent's children."

Considering Laurie takes the liberty of referring to cases outside of this jurisdiction to support her nonsensical claims, Brian will offer one of his own:

[44] The constitutional issue, however, is not whether children should have the benefit of relationships with persons other than their parents or whether a judge considers that a parent is acting capriciously. In light of the compelling interest at stake, the best interests of the child are secondary to the parents’ rights. Brooks v. Parkerson, 265 Ga. 189, 194, 454 S.E.2d 769, cert. denied, 516 U.S. 942, 116 S. Ct. 377, 133 L. Ed. 2d 301 (1995) (finding it “irrelevant” to constitutional analysis that visitation may be in best interest of child); Rideout v. Riendeau, supra, 761 A.2d 301 (“something more than the best interest of the child must be at stake in order to establish a compelling state interest”); In re Herbst, 971 P.2d 395, 399 (Okla. 1998) (noting that court does not reach best interest analysis without showing of harm; absent harm, no compelling interest); Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993) (holding that best interest of child is not compelling interest warranting state intervention absent showing of harm). Otherwise, “[the best interest] standard delegates to judges authority to apply their own personal and essentially unreviewable lifestyle preferences to resolving each dispute.” Rideout v. Riendeau, supra, 310.

[45] The trial court is not better situated to determine the issue based upon its best judgment. As Troxel instructs, “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.” Troxel v. Granville, supra, 530 U.S. 72-73. Because parenting remains a protected fundamental right, the due process clause leaves little room for states to override a parent’s decision even when that parent’s decision is arbitrary and neither serves nor is motivated by the best interests of the child. Roth v. Weston, 789 A.2d 431, 443-444 ( Conn. 2002).

However, an Illinois case probably sums it up best:

[63] …It is the role of parents to nurture their children and to influence and shape their children’s character. As the United States Supreme Court has recognized, “[i]t 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, 88 L. Ed. 645, 652, 64 S. Ct. 438, 442 (1944). This “preparation for obligation” includes the parents’ determination of who will be instrumental in the development of their child’s personality and character. Section 607(b) (1) allows the State to usurp the decisionmaking function of parents with respect to the relationships that their children will have. This decisionmaking function lies at the core of parents’ liberty interest in the care, custody, and control of their children.

[65] The court reasoned that, even though “the State neither takes the minor out of the home nor alters the parents’ temporary or permanent custody of the minor, the State nevertheless intercedes, on behalf of the minor, in the family relationship.” R.G., 131 Ill. 2d at 344. Thus, the statutes “significantly interfere[ ] with the family relationship and can only be justified if the State has a compelling interest.” R.G., 131 Ill. 2d at 344.

[66] Likewise, by allowing the State to override the decisions of parents regarding the upbringing of their children, section 607(b) (1) significantly interferes with the fundamental rights of parents. Lulay v. Lulay.

V. Laurie’s mere claim that there was no fraud is not enough to change reality and make it true

A. The oral agreement to waive child support was completely enforceable as both parents are fit.

As both parents are fit, the state has no compelling reason to interfere in the parents’ decision to “waive child support.” Further, the Agreed Interim Order (Exhibit A) specifically spelled out that “each party shall be responsible for Samantha’s reasonable needs while Samantha is in his or her care.” Ergo, as there was no harm to Samantha with such an agreement (not to mention that Samantha would clearly receive appropriate support and be well cared for by such an agreement, especially considering she would be with each parent equally), the agreement was completely enforceable.

Laurie claims that “[e]ven if Laurie had failed to live up to the terms of the alleged agreement to waive child support, it would not be fraud, as Brian alleges.” Brief, p. 30. Laurie must not have read Soules v. General Motors Corp., 79 Ill.2d 282 (1980):

[14] As disclosed by decisions of this court, the elements of a cause of action for fraudulent misrepresentation (sometimes referred to as "fraud and deceit" or "deceit") are: (1) false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. (citations omitted) Furthermore, the reliance by the other party must be justified, i.e., he must have had a right to rely. (citations omitted).

Majewski v. Gallina, 17 Ill.2d 92 (1959) is also enlightening:

[26] With reference to the master's findings of fraud in this case, that concept has been deemed to comprise in its general sense anything calculated to deceive, including all acts, omissions and concealments involving a breach of legal or equitable duty, trust or confidence resulting in damage to another. (citations omitted) There is no general rule for determining what facts will constitute fraud; whether or not it is found depends upon the special facts of each particular case. While fraud is never presumed, a conspiracy, as alleged herein, is rarely susceptible of direct proof, but must, very nearly always from the nature of things, be established by circumstantial evidence and legitimate inferences arising therefrom. (citations omitted) These inferences depend largely upon the common-sense knowledge of the motives and intentions of men in like circumstances. (citations omitted.) Thus, fraud may be inferred from the nature of the acts complained of, the individual and collective interest of the alleged conspirators, the situation, the intimacy and relation of the parties at the time of the commission of the acts, and generally all the circumstances preceding and attending the culmination of the claimed conspiracy. (People v. Small, 319 Ill. 437.) In this connection the court stated in People v. Small, 319 Ill. 437, at p. 449: "It is seldom that any one act, taken by itself, will establish a conspiracy, but when taken in connection with other acts it may appear clearly that the series of wrongful acts result from concerted and associated action. Considered separately the acts of the conspiracy are rarely of an unequivocally guilty character, and they can be properly estimated only when connected with all the surrounding circumstances."

VI. ILLINOIS HAS A CONSTITUTIONAL GUARANTEE OF THE RIGHT TO TRIAL BY JURY FOR THOSE ACTIONS RECOGNIZED IN COMMON LAW, AND DIVORCE WAS RECOGNIZED IN COMMON LAW

Laurie states that “Brian raises a claim that seems novel: No Illinois case has been found that says there is no constitutional right to a jury trial in a dissolution case. Nor, for that matter, have any been found that say there is such a right.” Brief, p. 35. As Brian presented in his Supplemental Appellate Brief, The People Ex Rel. Diane v. Daryon McDaniel, 180 Ill. App. 3d 13, at para. 15 (1989) clearly says otherwise, as this court certainly knows that trial by jury used to be part of a divorce action. Ergo, Laurie’s argument and supporting cases regarding “special or statutory proceedings unknown to common law” (Brief, p. 35) are irrelevant.

Appendix

Uniform Parental Rights Enforcement and Protection Act

The following represents "model legislation" proposed to the 50 States of the United States of America, along with federal oversight requirements (following the main body of the proposed legislation) similar to that proposed, passed and enacted under the UC CJA - Uniform Child Custody Jurisdiction Act.

PROPOSED UNIFORM STATE STATUTORY LANGUAGE

ACTIONS ABOLISHED - CHILD CUSTODY - EXCEPTIONS - INHERENT RIGHTS OF CHILD

Legislative Declaration

101. Legislative Declaration. The remedies provided by law on or before enactment of this legislation, for the enforcement of actions based upon issues of custody of children after dissolution of marriage or legal separation, or in the case of unmarried birth of children, have been subjected to grave abuses, caused extreme annoyance, embarrassment, humiliation, and devastating psychological, emotional, mental and pecuniary damage to many persons wholly innocent and free of any wrongdoing who were merely the victims of circumstances, and have been exercised by unscrupulous persons for their unjust enrichment, vengeance or other venal purpose contrary to the interests of the child, and have furnished vehicles for the commission or attempted commission of crimes against children and parents and in many cases have resulted in the perpetuation of frauds.

It is, therefore, hereby declared as the public policy of the state that the best interests of the people of the state, and especially the minor children of the state, will be served by the abolition thereof, except in the below defined and proven circumstances.

Consequently, in the public interest, the necessity for the enactment of this Act is hereby declared as a matter of legislative determination.

Definition and interpretation of terms

102. Definition and interpretation of terms. As used in this act, unless the context otherwise requires, the term:

(a) "Parent" shall mean the natural, biological parent of a child, or the duly adoptive parent of a child pursuant to this state's adoption statutes, but shall not be construed to mean a foster parent as defined in the statutes of this state, or a parent whose parental rights have been terminated pursuant to statute.

(b) "Child" shall mean the natural, biological child of a parent, or the duly adopted child of a parent pursuant to this state's adoption statute, but shall not be construed to mean the child of a parent whose parental rights have been terminated pursuant to statute.

(c) "Inherent rights" shall mean the natural, fundamental, inalienable right of the child to a full relationship with each parent, and the natural, fundamental, inalienable right of the parent to a full relationship with the child, which may be abridged only in the case of the existence of certain exceptions as more fully set forth in this Act.

(d) The "inherent relationship" shall mean the natural, fundamental, inalienable child-parent relationship, providing the child approximately equal access to each parent.

Acts of the Legislature

103. Rights of children to parental contact. The general assembly hereby finds and declares that children are endowed with certain inalienable rights, among them the natural, fundamental and inalienable right to a full and complete, inherent relationship with and full access to both its parents both during marriage and following dissolution of marriage or separation, and at all times for children born out of wedlock. This right of the child extends to essentially equal access to each parent to enjoy the love, affection, attention and contact between the child and each parent, and this right of the child shall not be abridged by the courts of this state, nor by any other agency or division of the state, nor by a parent of the child or any other person, except in the circumstances as described in section 109.

104. Custody of the child abolished. Except as provided for in section 109, separate custody of the child by one parent is hereby abolished. A child shall continue to enjoy its inherent rights in and to its parents, and each parent shall continue to enjoy its inherent parental rights in and to its child, and, as provided by law, each parent shall continue to exercise its parental responsibilities and obligations to its child, subsequent to dissolution of marriage or separation, and at all times in the case of a child born out of wedlock, subject to the provisions of this Act.

105. Civil causes for custody of children abolished. All civil causes of action for custody of children, whether at law or in equity for separate custody of the child between parents or between a parent and another party claiming a right to bring such action, and whether as part of a proceeding for dissolution of marriage as provided for in statute, or as part of a post-decree action, or as an independent action by a person other than a child's parent or by the state or any agency thereof, are hereby abolished, except as provided for in [Insert statute on child dependency from juvenile law].

106. Effect on existing orders for custody and parenting time. Except as otherwise provided for in this Act, all judgments, decrees, and orders, whether interlocutory or final in character, awarding custody of the child to one parent as against the other, or to a person not a parent, wherein the judgment, decree or order was based on a lesser standard of proof than is called for in section 109, and all claims or causes of action for sole or joint custody, whether such claim or cause of action arose within or without this state but which affects the rights of persons subject to the jurisdiction of the courts of this state, are declared to be contrary to the public policy of this state and absolutely void.

107. Rights of children in non-intact families. The general assembly hereby declares that children whose parents are dissolving or have dissolved their marriage or are separated, and children born out of wedlock, have certain inalienable rights in the determination of their continued relationship with each parent, including the right to have such determinations based upon the inherent right of the child to its inherent relationship with, and the care, companionship, control and nurture of the child by, each parent.

108. Best Interests of child. The general assembly finds and declares that it is in the best interest of all parties and all children to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage, and that it is in the best interest of children born to an unmarried mother to have frequent and continuing contact with both parents. In order to effectuate this goal, the general assembly urges parents to share the rights and responsibilities of childrearing and to encourage the love, affection, and contact between the children and the parents. The General Assembly hereby finds and declares that separation of a child from a parent after divorce or unmarried birth can and likely will endanger the child's physical health and significantly impair the child's emotional development.

109. Exceptions. The fundamental child-parent relationship, the inherent relationship, may be altered or abridged by operation of law solely in the following circumstances. The standard of proof of a claim of abuse or neglect by a parent shall be beyond a reasonable doubt as established by conviction for a criminal offense, and there shall be an absolute presumption of innocence absent such degree of proof.

(1) Death of both parents. In the event neither parent of a child is living, custody of a child may vest with the legal custodian of the child, pursuant to [cite state-specific Statute on non-parental custody requirements], or the state, pursuant to [cite state-specific Statute on juvenile dependency].

(2) Abuse or neglect of the child. In the event a parent has been proven to have abused the child under [Insert state-specific cite on physical and sexual abuse of children] or neglected the child under [Insert state-specific cite on neglect of children], and has been convicted under said statutes, the court may enter an order for custody of the child solely to the other parent, subject to the provisions of this Act; or, in the event both parents have been proven to have abused or neglected the child, and have been convicted under either of said statutes, the court may enter an order for custody of the child as provided for in [Insert cite of non-parental custody award criteria], subject to the provisions of this Act. If the court enters an order for custody of the child pursuant to this subsection, the court shall enter an order for parenting time to either or both parents, unless the court finds by clear and convincing evidence that the child is unable to tolerate contact with that parent. The provision for parenting time entered pursuant to this subsection shall be in conformance with section 111.

(3) False allegations. False allegations of abuse or neglect in a dissolution of marriage proceeding or proceeding to determine a child's relationship with a parent shall operate as an absolute bar to a parent's right to make decisions regarding the child's upbringing, including but not limited to the child's education, religious training and medical treatment. For the purpose of this Act, a "false allegation" is one that is either known to be false or one that a reasonable person should have known is false. By way of example but not enumeration, a finding by state child protective services that the alleged abuse was "not substantiated", or any disposition under a lower standard of evidence (such as "unfounded", or "closed without investigation"), or failure to report the alleged abuse contemporaneously with the act alleged to the police and/or child protective services shall be deemed conclusive evidence of the falsity of the claim so made. A parent so barred shall nonetheless be entitled to reasonable parenting time not inconsistent with protecting the child from further false abuse or neglect allegations, the terms of which shall be defined with specificity by the court along with procedures to prevent further false reports under section 109. A second false allegation as defined herein, notwithstanding the court's protective procedures, by the same parent, shall operate to permanently bar parenting time of the child so involved by that parent in addition to the previous penalties imposed.

(4) Imprisonment of a Parent. Imprisonment of a parent for offenses not related to child neglect or abuse shall operate to suspend that individual's parental rights and responsibilities during the time of such imprisonment, with all rights and responsibilities being restored under this Act at the time of their release from confinement.

110. Rights of persons whose parental rights are terminated. Notwithstanding any provision of law to the contrary, a parent whose parental rights have been previously terminated may bring action to restore those rights, if termination of parental rights was based on a lesser standard of proof than is called for in this Act.

111. Implementation of protective measures. Upon a finding by a court of competent jurisdiction that protective measures are required to insure the safety of the children while in the care, custody or control of one or both parents, the court shall enter upon the record of such proceedings the complete findings of fact and conclusions of law which gave rise to the implementation of such protective measures. Such protective measures may include supervision of parenting time. Such measures shall be designed in the most minimally invasive manner to provide the protections deemed necessary. Any order for protective measures shall, in addition, set forth in detail the conditions which shall be deemed proof of rehabilitation of the parent, or a time certain for the cessation of the protective measures without further proceedings, or both. Notice by the parent subject to protective measures of that parent's satisfaction of the conditions of the order for cessation of protective measures, accompanied by motion for the cessation of said measures, shall constitute a rebuttable presumption of the satisfaction of the conditions precedent for the cessation of protective measures.

112. Parenting Plans.

(1) All litigants in a dissolution of marriage or post-decree proceeding involving children shall submit a proposed parenting plan for the minor children. Said plan shall set forth with specificity the educational and religious upbringing of the children involved, along with a specific schedule during which each child shall be resident with each parent. All such plans shall include comprehensive alternate dispute resolution procedures in the event of conflicts. The court shall admit and enforce any parenting plan agreed to by the parties unless it finds that the plan submitted is unjust or unconscionable on its face at the time it is submitted. A submitted plan may be accepted or rejected only in total. If the parties to such a proceeding are unable to agree upon the terms of such a parenting plan, the parenting plan set forth in subsection(2) of this section shall be imposed by the court until such time as an alternative plan is agreed to and accepted by the court.

(2) The following parenting plan, as set forth in this subsection (2), shall be ordered by the court in the event the parties are unable to agree upon a parenting plan.

(a) The children shall alternate residence with each parent on each calendar Wednesday at 6:00 PM, except during one four week period during the summer school break when each parent shall have residence for one uninterrupted two-week period for the purpose of summer vacation.

(b) If multiple children are involved in the dispute all children shall rotate with each parent such that all related children are present in each household at the same time.

(c) Neither parent shall hinder, infringe upon or prevent reasonable private telephonic or other communication between the children and parent not currently the resident parent.

(d) Neither parent may move beyond the school district boundaries in which the children reside at the initiation of proceedings so as to cause the child's school district to change without written agreement of the other parent, nor may either parent withdraw the children from the school district of their current attendance without permission of the other parent in writing.

(e) Each parent shall be solely responsible for all expenses and costs of the children while they are in their respective care, including clothing, food, shelter, education, child care and elective activities.

(f) Neither parent shall, without the prior consent of the other parent, schedule elective activities during the parenting time of the other parent that would infringe upon that parent's access to or time with the child.

(g) Extraordinary medical and other expenses, which are not of a discretionary nature, shall be apportioned in equal amounts to both parents, and such amounts, if unpaid, shall constitute a judgment for said amounts against a parent. It shall be an absolute defense to such an assessment that (1) the expense was voluntary or discretionary in nature (including but not limited to cosmetic procedures, trips, enrichment activities or the like), (2) the expense was required by medical necessity but was not an emergency requiring immediate action to protect life or health and the other parent was not notified and consulted, or was not a full partner to the decision to undertake the expense, or, if consultation was attempted but agreement was not reached, the dispute was not subjected to the resolution procedures in the parenting plan. No part of this clause shall operate to inhibit the immediate provision of necessary emergency medical care.

(h) Routine medical and related expenses (e.g., dental cleanings) shall be equally apportioned to each parent. Neither parent shall undertake any such expense or activity without full consultation with and agreement by the other parent.

(i) Each parent shall be responsible for physically retrieving the children from the other or their activities at said time of exchange, and all costs occasioned by the nonperformance or late arrival of a parent for pickup shall be taxed to the non-performer as a money judgment.

(j) All parental responsibility shall terminate upon each child reaching the age of 18 years, with any further parental responsibility or expense being at the discretion of each parent. Neither parent shall be obligated to incur post-secondary educational expense on behalf of the child.

(k) Dispute resolution.

(I) Disputes arising from the attempted implementation of this plan shall be submitted to an arbitrator named by the court.

(II) The arbitrator is permitted to tax equally to the parties the costs of arbitration at a rate not to exceed $100 per hour.

(III) Both parties shall submit their positions to the arbitrator in written form, along with all supporting evidence for their position, and the arbitrator shall render a decision within a reasonable amount of time, which shall not exceed five business days.

(IV) The arbitrator's decision shall set forth in detail the findings of fact that are used to reach the decision rendered, citing the provided evidence, along with the decision itself.

(V) If either party disagrees with the arbitrator's decision they may commence legal proceedings for further relief by motion to the court.

(VI) The court may require by way of injunction or other order that either party or both parties comply with an arbitration decision pending judicial review.

113. Move-aways. Except by agreement of the parties, neither parent may move the child's physical residence from the school district where the child resided at the time of the initial filing for dissolution, nor may either parent withdraw the child or children from their school of habitual attendance without the written consent of the other parent. The following rules shall govern all such requests and attempts:

(a) For children more than six months of age, the situs and residence shall be deemed to be their habitual residence in the six months preceding the filing of the dissolution or parenting action. For children under six months old, their residence shall be determined as the habitual residence of the mother in the six months preceding the filing of the action.

(b) No act or move by a parent and/or children immediately preceding the filing of a petition shall operate to establish their habitual residence.

(c) A parent who moves his or her personal residence without the child or children involved shall be presumed to have abandoned equal custody and parenting of the child so involved. Such a parent:

(I) Shall be assessed all costs of implementing his or her parenting time with the child.

(II) Shall be assessed child support pursuant to state statute should that parent fail to exercise substantially equal shared parenting. Such child support shall not include the direct expense of implementing his or her parenting time subsequent to the move.

(III) Shall not impede the ordinary educational and extracurricular activities of the child or children so involved.

(d) A parent shall be deemed to have moved his or her residence if that parent substantially abandons his or her previous address, registers to vote in another state or locale, registers a motor vehicle in another state, obtains an occupational license in another state, or becomes domiciled under the provisions of state law in a foreign state.

(e) A parent shall not be deemed to have violated the provisions of this section if that parent moves his or her residence within the school district boundaries of the children's habitual residence and provides at least 7 days prior written notice to the other parent of both his or her intent to do so and the moving parent's new address.

(f) A parent who attempts to violate the provisions of this section, whereby that parent removes or attempts to remove the children from their habitual residential locale, shall be subject to indictment and trial for the crime of parental abduction under [Insert state statute for parental abduction].

(g) A parent who previously had been non-resident in the child's and other parent's habitual domicile may restore their parental rights and responsibilities by moving his or her personal residence within the school district boundary of the child or children so involved. A parent intending this act must notify the other parent in writing at least 30 days prior to effectuating such a move.

(h) A parent who is the resident parent of the child, where the other parent has voluntarily abandoned shared residency and shared parenting, may move on an unrestricted basis with the children provided that:

(I) The move will not substantially increase the difficulty in exercising parenting time by the other parent, AND

(II) They have not been served notice under sub-subsection (g) that the other parent intends to return to the area where the residential parent currently resides.

114. No disparagement; controlling law. The rights and responsibilities enumerated herein shall operate only to the benefit of biological or adoptive parents, and shall not inure to the benefit of any other party. Any legislation or judgment within this state, to the extent that it operates to diminish, impair or infringe upon any of the rights and responsibilities enumerated herein, shall be null and void and of no further force or effect.

115. Notification required. The general assembly directs that a pamphlet describing the rights and responsibilities for both parents and children, as set forth in this Act, be produced and distributed along with each application for a marriage license, as well as for public distribution by the office that distributes marriage license applications on request by any person in the state. This pamphlet shall include the rights and responsibilities set forth in this legislation, as well as the acts that constitute abuse or neglect of a child within the state and the criminal penalties therefor. Updates to the standards for abuse and neglect prosecutions and their penalties, must be published, with conspicuous notice in the major daily newspapers and other media when significant statutory revisions are made.

116. Prevailing law; conflict of laws. Any provision of law in conflict with any term or provision of this Act shall be null and void and of no further force or effect. In any determination wherein the provisions of law conflict with or contravene any term or provision of this Act, the requirements of this Act shall prevail.

Federal Oversight and Implementation of UPREPA Among The Several States

CONGRESSIONAL DECLARATION:

The remedies provided by law on or before enactment of this legislation, for the enforcement of actions based upon issues of custody of children after dissolution of marriage or legal separation, or in the case of unmarried birth of children, have been subjected to grave abuses, caused extreme annoyance, embarrassment, humiliation, and devastating psychological, emotional, mental and pecuniary damage to many persons wholly innocent and free of any wrongdoing who were merely the victims of circumstances, and have been exercised by unscrupulous persons for their unjust enrichment, vengeance or other venal purpose contrary to the interests of the child, and have furnished vehicles for the commission or attempted commission of crimes against children and parents and in many cases have resulted in the perpetuation of frauds.

It is, therefore, hereby declared as the public policy of the United States that the best interests of the people of the several states, and especially the minor children of the several states, will be served by the abolition of custody thereof, except in the defined and proven circumstances set forth in the Uniform Parental Rights Enforcement and Protection Act hereby proposed to the several states.

Consequently, in the public interest, it is the determination of the Congress of the United States of America that the following shall be the policy and the Act of the United States upon passage of the Uniform Parental Rights Enforcement and Protection Act into law by each of the several states without regard to the universality of the adoption of said Act.

PROVISIONS:

1. That the several states are to be presented the model legislation entitled Uniform Parental Rights Enforcement and Protection Act, otherwise to be known and recognized as "UPREPA", as set forth hereinabove.
2. That the continued receipt of Title IV-D, TANF, and all other federal funds intended and designated for promotion, welfare, and assistance to families and children whether by virtue of grant, matching funds, or direct expenditure of the United States government within the individual states shall be conditioned upon the passage of UPREPA so proffered.
3. That states may modify the form but not substance of UPREPA so as to conform to the statutory requirements of that state not in conflict with the terms and provisions of UPREPA.

IMPLEMENTATION:

1. The Attorney General shall be charged with the responsibility of reviewing modified UPREPA language that the states proffer to the Federal Government prior to passage to certify its functional equivalency to the model UPREPA legislation.
2. The Attorney General's decision, legal reasoning, all work product, correspondence and memoranda related to review of conformance to UPREPA shall be published in the Federal Register.
3. The Attorney General shall certify to the Congress of the United States, under penalty of perjury, and not later than ninety days prior to the introduction of each year's federal budget, the list of states which are in full compliance with the requirements of this legislation and of states which are not in full compliance therewith.
4. State funding under the Federal Budget of the United States intended and designated for promotion, welfare, and assistance to families and children shall be reduced on a pro-ratable basis for non-compliant states based on the following schedule:

   a. From the date of passage of this Act until ninety days prior to the first introduction of the federal budget shall be deemed a grace period, wherein no penalties shall apply.

   b. For the next budget cycle following passage of this Act, ten percent (10%) of funds shall be withheld from non-compliant states.

   c. For the second and each successive year in which a state is not in compliance, the percentage of deduction shall be doubled, such that in the second year 20% shall be withheld, the third 40%, the fourth 80% and the fifth and all subsequent years 100%.

   d. A state that was formerly listed as compliant but is later found to be non-compliant shall begin its deduction schedule at twice the starting deduction, or twenty percent (20%).

5. Funds withheld from non-compliant states shall be distributed to compliant states as directed by the Congress of the United States on a pro rata basis based on the individual state's percentage of population among the states then in compliance solely for the purpose of promoting the welfare of families and children in those states.
6. A state which cures its earlier violation of the UPREPA statutory requirements may not retroactively recover funds previously withheld, and allocations and withholdings, once made by the Congress, shall remain in full force and effect and may not be altered, amended or remediated by prospective or retrospective legislation.

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