Since there have been requests to hear of specific cases in which fathers have in fact fought for the right to be with their child(ren), I decided to post this one:
Appeals Court To Hear Child Custody Constitutionality Issue
November 22, 2004
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MND NEWSWIRE
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Federal Appeals Court to Hold Oral Argument on the Dismissal of a Lawsuit Challenging the Constitutionality of New York’s Child Custody Laws
The United States Court of Appeals for the Second Circuit scheduled oral argument on January 6 th, 2005 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in a federal appeal, captioned, Rosenberger v. Pataki, Case #04-0312-CV, pertaining to the dismissal of a constitutional challenge to the State of New York child custody laws. The federal suit was filed by Highland, New York resident Harold L. Rosenberger, a divorced father of three children.
Mr. Rosenberger asserts that his lawsuit was erroneously dismissed under a doctrine known as the Rooker-Feldman doctrine. This frequently abused doctrine is utilized by federal trial courts to dismiss cases where the subject matter originates in state courts, concluding that the litigant is filing an improper appeal to the federal court in what is actually a state court case. Mr. Rosenberger challenged the State of New York’s statutory language as it is written and challenged the procedures used by the state domestic courts to determine custody designations that deny a suitable parent’s federal liberty right to custody of their children. This fundamental right is anchored in the Fourteenth Amendment.
Mr. Rosenberger did not challenge his state court judgment, for he merely challenged the procedures leading up to the deprivation of his custodial rights as the procedures are written in New York law. The constitutional challenge addresses the fundamental protected rights of suitable parents to the legal and physical custody of their minor children where both parents are similarly situated. Mr. Rosenberger asserts the State cannot arbitrarily designate one parent a custodial parent and the other parent a non-custodial parent where there is no finding of unfitness by an evidentiary standard of "clear and convincing" evidence. The "clear and convincing" evidentiary standard is the conclusion of the United States Supreme Court decision in Santosky v. Kramer, 455 U.S. 745 (1972), a case which, coincidentally, originated in Ulster County, New York, the same county in which Mr. Rosenberger resides.
Without such a finding, Mr. Rosenberger asserts that the State of New York cannot substitute its judgment by arbitrarily depriving one fit parent of their fundamental right to the care, custody, and control of their children where both parents are suitable. And where both parents are suitable under the law, the Fourteenth Amendment requires that similarly situated parents must be treated similarly, i.e., the equal protection of similarly situated individuals. Such protection requires a rebuttable presumption, unless a legal finding of unsuitability is made by "clear and convincing" evidence, of each parent’s right to legal custody and equal physical custody of the children at issue in a divorce situation.
The State of New York asserts that the child’s best interests is the appropriate evidentiary standard to make arbitrary custody awards, but this standard rests in state law, and Mr. Rosenberger asserts, does not comport with federal law where an individual’s federal right is implicated. Furthermore where both parents are suitable parents, the "best interests of a child" are presumed to be protected. The standard of "best interests" is legislated discretionary language permitting the state domestic courts to make a "best guess" custodial determination. The State of New York’s "best interests" standard implicates parental rights of every divorcing parent in the State of New York without adhering to the due process protections and a mandatory evidentiary standard afforded citizens under the Constitution of the United States.
"Fit and suitable parents are denied the custody of their minor children by the New York Family Court system", says Mr. Rosenberger. "As unbelievable as it may seem, the New York law does not assume that either parent has a right to custody of their minor children", says Rosenberger. Domestic Relations Law §240 states: "In all cases there shall be no prima facie right to the custody of the child in either parent."
"A constitutionally-compliant law properly places the burden on the State to prove by ‘clear and convincing’ evidence that one or both parents are unfit and thus not entitled to custody", says Rosenberger.
After being properly notified of the constitutional challenge to New York’s child custody laws and refusing to voluntarily participate in defending Mr. Rosenberger’s federal challenge, New York Attorney General Elliot Spitzer’s office has subsequently sought to participate in the proceedings as an amicus curiae (Latin for "friend of the court"). Pursuant to federal rules of procedure, an amicus curiae party can only appear in support of one of the parties to the action. Where the sole defendant-appellant did not file a brief in the appeal, Mr. Spitzer has requested special consideration from the United States Court of Appeals for the Second Circuit to participate in defense of Mr. Rosenberger’s challenge. However, where Mr. Spitzer’s amicus brief was submitted well past the filing date, the federal appellate court must first decide whether to permit the attorney general’s participation at oral argument on January 6, 2005.
Additional Info:
Harold L. Rosenberger
Highland, New York 12528
845-567-1234 x4244 (work)
HLRosenberger@Hotmail.com