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" <wiggins_k@hotmail.com> Subject: Subject Matter Jurisdiction For those of you who wrote in suggesting "additional issues", have patience. The "Improper Venue" was just the first of ten. Part of my purpose to presenting this in sections is the hope that you readers will offer additional arguments and case law for those individuals issues as presented. Someone else also suggested the P.A.C.E. group. I am well aware of Mike Galuzzo's case, and in fact borrowed some arguments and case law from it. But ... keep those kind of suggestions coming. That is exactly what I want. This is Part Two of the issues and deals with the Subject Matter Jurisdiction and the "fraud" the state commits by failing to "establish" that it has any actual jurisdiction to interfere with the parental relationship. 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 parents children. 6) The State, under the guise of property and equity division in a divorce, assigns itself authority of the children. In fact, the State is performing an In Parens Patriae action, which is profoundly protected, as is well substantiated by Federal Stare Decisis. 7) The burden is on the State, not the citizen, to prove its case. The Petitioner does not question the authority of the state in its interest to protect its children, but argues that its Procedural and Substantive Fraud in obtaining its proper authority is profoundly Unconstitutional. 8) The deprivation of rights regarding ones own children is fundamental to our Constitutional form of government and must stand the strict scrutiny test. Regardless of State statute, which may suggest contrary actions, those rights are profoundly protected, and any State statute, which by-passes those rights, fails in its Constitutional Mandate substantive and procedural due process. Ergo any and all such State statutes are profoundly unconstitutional on their face. 9) Claims of the childrens 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 Petitioners Personal Natural Rights. 10) The Petitioner further asserts that the States 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 Petitioners 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 parents 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 cant handle it then the court should, in the childrens 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 Petitioners ownership of his own children has never lawfully been removed, no claims, orders or acts predicated from that are lawful. The court has failed

to establish its proper compelling interest jurisdiction, acts through fraud, and thereof any order or judgment is lawfully therefore a Void Judgment. (21) Harris v. McRae, 448 US 297 (1980) (USSC+). (24) Santosky v Kramer, 102 S. Ct. 1388, 488 US 745, (1982). (25) Stanley v. Illinois, 405 U.S. 652 at 653 (1972). (26) Quillon v. Walcott, 434U.S. 246, 247-248 (1978) (27) Herrick v. Richardson, 40 NH 272 (1860]. (28) People ex rel Barry v. Mercien 3 Hill 399. (29) 30 (Fiore, 1982, pp. 141-42, citations omitted.) Santosky v. Kramer, 455 US 745 (1982). (30) Stanley v. Illinois (1972), 405 U.S. 645 @ 657. (31) Hooks v. Hooks, 771 F.2d 935 (6th Cir.1985) @ 935; Finding of Constitutional Law #1. (32) Watson v. City of Memphis, 83 S.Ct. 1134, 375 YS 526, 10 L.Ed.2d (1963). (33) Rideout v. Riendeau. Roth v. Weston 789 A.2d 431, 443-444 Conn. (2002) The Petitioner further asserts the following claims in regards to his Natural Constitutional Rights and further under the substance of the Common Law. 37.) The Supremacy Clause appears in Article VI of the Constitution of the United States. (14) Under the Supremacy Clause, everyone must follow federal law in the face of conflicting state law. It has long been established that "a state statute is void to the extent that it actually conflicts with a valid federal statute" and that a conflict will be found either where compliance with both federal and state law is impossible or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Edgar v. Mite Corp., 457 U.S. 624, 631 (1982). Similarly, we have held that "otherwise valid state laws or court orders cannot stand in the way of a federal court's remedial scheme if the action is essential to enforce the scheme." Stone v. City and County of San Francisco, 968 F.2d 850, 862 (9th Cir. 1992), cert. denied, 113 S. Ct. 1050 (1993). (15) Any state judge that acts contrary to the United States Constitution violates the Supremacy Clause and acts in treason. The U.S. Supreme Court has stated "No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it." Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). 38.) In Common Law, where the judge is presented with superior law, he has no discretion in the matter but must act upon that higher precedence of law. Any failure to do so is an act as a "minister of his own prejudice" and not "acting in his capacity" for the state. Thereof, he may be held for civil and criminal liabilities. If a judge does not fully comply with the Constitution, then his orders are void, In re Sawyer, 124 U.S. 200 (1888), "he is without jurisdiction, and has engaged in an act or acts of treason." PLEASE JUDICIALLY NOTE: (16) "Fundamental Rights do not hang by a tenuous thread of a layman's knowledge of the niceties of law. It is sufficient if it appears that he is attempting to assert his Constitutional privilege. The plea, rather than the form in which it is asserted ..." U.S. v St. Pierre, Supra, 128 F 2d. (17) "The law will protect an individual who, in the prosecution of a right does everything, which the law requires him to do, but fail to obtain his right by the misconduct or neglect of a public officer." Lyle v Arkansas, 9 Howe, 314, 13 L. Ed. 153.

(18) "Where rights are secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them. Miranda v. Arizona, 380 US 426 (1966). IMPROPER VENUE 1) The first issue that the Petitioner addresses regarding the trial court, and no doubt those many like it both in the State of Michigan and the State of New York is the practice of the "presumption" of its own powers, absent proper procedure, substance and law, and the practice and policy of "law by ignorance." These practices are apparently common throughout the Michigan and this State's Family Court system. A "wrong", though committed a thousand times, is still "wrong." (19) Amos v. Mosley, 74 Fla. 555, 77 So. 619. 2) The claim of the State is that of "Civil Law", and yet these proceedings ultimately lead to potential criminal complaints as witnessed in this instant case. The Defendant is neither informed of the potential severity of the "civil" proceeding, nor informed of any "rights". Under the guise of "civil law", "civil court rules" and "civil procedure", the Petitioner's foundational constitutional rights under a criminal context are profoundly abrogated. In practice, even those minimal rights commonly afforded in civil law are profusely ignored through "default" administrative procedural fraud, a practice and policy of defying due process. 3) The "ultimate potential" of incarceration exists at the onset of the "civil" proceeding, and is a deprivation of the Petitioner's Civil liberties. The Venue, ab initio, rightfully exists in a Criminal Court. Absent a proper venue, the "civil" court has no jurisdiction, and any "order" or "judgment" is lawfully thereof a Void Judgment. 4) The claim of Venue in a Civil Court is a substantial deprivation of the Petitioner's guaranteed Constitutional Rights under mandated Federal Law. Rule making or legislation may not abrogate these rights. The Defendant further avers that factually it is part of an unlawful scheme for the State to receive funding under the Federal Title IV-D and TANF programs. (20) Dupont v. Dupont, Sup. 32 Ded Ch. 413; 85 A 2d 724. (21) Harris v. McRae, 448 US 297 (1980) (USSC+). (22) United States v. Moreland 258 US42=33, 42 S. Ct. 368, 66 L.Ed. 700 (1922). (23) McCullen v. Massachusetts, 27 US 620, 630. Wiley http://www.amatterofjustice.org http://www.parentsforchildren.net Webmaster for:

Mass Constitutional Cites on Kids.doc Kids 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 constitutionally protected. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 231-233, 92 S.Ct. 1526, 154142 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 Before the State may permanently deprive any parent of that interest, it should generally be required to meet a standard of proof higher than a preponderance of the evidence. See Santosky v. Kramer, 455 U.S. 745 at 764-766, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 421 N.E.2d 28 (1981) "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 102 N.E. 665 (1913) 434 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 The Seventh Amendment to the United States Constitution does not apply to a State civil trial. Dalis v. Buyer Advertising, Inc., 418 Mass. 220, 223 n.4, 636 DANIEL A. JAMGOCHIAN vs. PETER P. DIERKER & another , N.E.2d 212 (1994), 425 Mass. 565;
681 N.E.2d 1180

"Although art. 12 deals with many matters related to the rights of criminals, it is NOT EXCLUSIVELY

concerned with criminal matters. For example, art. 12 sets forth principles of due process of law applicable to civil, as well as criminal, actions in both a procedural . . . and a substantive sense." Commonwealth v. One 1972 Chevrolet Van, 385 Mass. 198, 199-200, n.1, 431 N.E.2d 209 (1982) "As a general rule, when State or Federal law entitles an individual meeting certain eligibility criteria to the receipt of a State or federally funded benefit, the individual has a property interest in the benefit." Madera v. Secretary of the Executive Office of Communities & Dev., 418 Mass. 452, 459, 461-462, 636 N.E.2d 1326 (1994) If Due Process is a Federal requirement: "When a state officer acts under a state law in a manner violative of the Federal Constitution, he "comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.", Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) citing EX PARTE YOUNG, 209 U.S. 123 (1908) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=416&invol=232 http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=209&invol=123 Whenever a judge acts and deprives any person of any of the rights guaranteed by the Constitution, that judge had declared war against the Constitution. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=358&invol=1 "No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it." Butz v. Economou, 98 S.Ct. 2894 (1978); United States v. Lee, 106 U.S. at 220, 1 S.Ct. at 261 (1882) http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl? navby=case&court=us&vol=438&invol=478&pageno=500 Privacy Rights of a Family Violated By Child Support Requirements: 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 childs 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