States Has No Right To Take Away Any Parents
Rights Without PROVING A Parent Harmful to the Children
Case Law Citations
Date: Fri, 09 Dec 2005 19:51:40 -0500
From: "Ken Wiggins" <email@example.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.
Void Subject Matter Jurisdiction
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
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
37.) The Supremacy Clause appears in Article VI of the Constitution of the
(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
(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).
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.
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:
Constitutional Cites on Kids.doc
and Juries Quotes
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:
We have recognized on
numerous occasions that the relationship between parent and child is
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]
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
"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
citing Custody of a Minor, --- Mass. ---, --- , 389 N.E.2d 68, 74 (1979).
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
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)
"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
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
N.E. 665 (1913)
Mass. 349; 749 N.E.2d 143; 144 Lab. Cas. (CCH) P59,329
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
Seventh Amendment to the United States Constitution does not apply to a
State civil trial. Dalis v. Buyer Advertising, Inc., 418 Mass. 220, 223
A. JAMGOCHIAN vs. PETER P. DIERKER & another ,
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)
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)
If Due Process is a Federal requirement:
"When a state officer acts under a state law in a manner volatile 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.
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)
"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)
"No court, state or federal, may serve as an accomplice in the willful
transgression of federal laws by which judges in every state are bound." (Lee v.
State of Fla. 392 U.S. 378, 88 S.Ct. 2096 (U.S.Fla. 1968))
The dissenting opinions manifest an astonishing blind side in pointing to
that old reliable that "no man is above the law." The Court has had no
difficulty expanding the absolute immunity of Members of Congress, and in
granting derivative absolute immunity to numerous aides of Members. Gravel v.
United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972).
We have since recognized absolute immunity for judges, Stump v. Sparkman, 435
U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), and for prosecutors, Imbler v.
Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), yet the
Constitution provides no hint that either judges, prosecutors, or congressional
aides should be so protected. Absolute immunity for judges and prosecutors is
seen to derive from the common law and public policy, which recognize the need
to protect judges and prosecutors from harassment. The potential danger to the
citizenry from the malice of thousands of prosecutors and judges is at once more
pervasive and less open to constant, public scrutiny than the actions of a
Nixon v. Fitzgerald 457 U.S. 731, *759, 102 S.Ct. 2690, **2706 (U.S.,1982)
Privacy Rights of a Family Violated By Child Support
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
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