petition for writ of certiorari us sup ct (3)
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IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari be granted to review the
judgments below.
OPINIONS BELOW
The Georgia Supreme Court denial of certiorari appears in Appendix A and
has no published opinion. The opinion of the Georgia Court of Appeals appears in
Appendix B, and is reported as Trotter v. Ayres et al, 315 Ga. App. 7 (2012).
JURISDICTION
The Georgia Supreme Court decision was rendered on July 2, 2012. The
Court of Appeals opinion was rendered on March 5, 2012. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1257(a).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This case concerns the basic liberty interests of fit parents protected under
the U.S. Const. amend. XIV, every states duty to enact and implement laws within
the constraints of the United States Constitution, and to be bound by those
constraints under the USCS Const. Art. VI, Cl 2. 28 U.S.C. §2403(b) may also apply.
No United States Court has certified to the State Attorney General the fact that the
constitutionality of a statute has been called into question pursuant to 28 U.S.C.
§2403(b). See Appendix A-1 for all constitutional and statutory provision involved.
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STATEMENT OF THE CASE
The Father and I were divorced on March 21, 2005. See Appendix H. He and
I, shared joint legal custody of our child, Kiara Celeste Ayres, born December 15,
1999, See Appendix F. In the original jurisdiction of this case, the Father had been
awarded sole temporary custody by default, on March 4, 2004 of our child due to the
negligence of my attorney, for which said attorney was disciplined See Appendices
K and Y. I was a soldier stationed overseas and my attorney neglected to inform me
that the Father had set a hearing for modification of the custody order which was in
place, where I had been awarded primary physical custody of our daughter. On
rehearing, the Court restored my legal custody, but ruled that the Father would
have primary physical custody. The Court declared that my military service
rendered me unstable as I was subject to deployments and that the case was
“replete with Show Causes,” show causes mainly filed by the paternal grandparents
who had intervened at that time as well. I was never held in contempt for anything.
The Father relocated to two states, finally settling in his parents’ home in Georgia,
(the grandparents), with our child. On or about December 2009, I learned that the
Father had caused their home to be raided by the police for illegal drug trafficking
from the home, thus the grandparents threw him out of the home, but kept my
child. At no time did the grandparents inform me of the terrible circumstances or
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the fact that my child remained in their home since on or about September 2008
without the father. When I learned of the illegal situation, I filed to resume physical
custody of my child.
I started with an Ex Parte Motion for Temporary Physical Custody, See
Appendix E, to have my child returned to me immediately. I also filed a Motion for
Contempt against the grandparents who at the time had nothing more than
visitation, pursuant to the Virginia court order in place. See Appendix U. In
response to my file, the grandparents did not file for custody in Georgia, but
instead, ran out of the state of Georgia back to Virginia and filed for custody of my
child there. The grandfather is an attorney surely aware of the correct jurisdiction.
They also had their attorney from Virginia, not licensed to practice in the state of
Georgia, file thirty seven pages of the Virginia matter which was res judicata, into
the Superior Court in Georgia. The grandparents’ forum shopping attempt failed.
See Appendix O. After the grandparents who had no legal custody of my child,
denied my Spring Break visitation, as I would not comply with their demand that
she would be returned to them, I filed for a Writ of Habeas Corpus. See Appendix F.
It is only at that time, four whole months after I had filed my original pleading for
custody that the grandparents motioned to intervene for custody in the state of
Georgia. See Appendix P. This was against Georgia’s procedural law. O.C.G.A.§19-
9-23 (2012). The grandparents claimed that they had a legal right to have my child
in their care based upon a Power of Attorney, previously given to them by the father
while he was in the military. A Power of Attorney is not valid in the state of Georgia
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where two parents have joint legal custody, unless both parents authorize it.1
Although the statute for service of process in the state of Georgia is clear, O.C.G.A.
§9-14-8 (2012), which is to leave the summons at the home or residence when the
person is not present, the sheriff’s deputies failed numerous times, See Appendix F,
to leave the summons at their home. This allowed the grandparents to proceed with
their file for custody in spite of O.C.G.A.§19-9-23 (2012)2.
This case was set three times for a final hearing, See Appendix J and there
were three trials, but the matter was dragged out for an additional fourteen months
in order to facilitate the grandparents with paying a new psychologist to create a
report against me, which would help them meet their burden of proof pursuant to
Georgia’s third party-fit parent best interest custody standard. After the first judge
heard the case, including the testimony of a psychologist as to my daughter’s mental
state, the first judge awarded physical custody back to me and left my legal custody
intact. See Appendix K. The second judge then took over the case. The grandparents
tried again to gain custody at the second trial, this time alleging that I was
neglecting my daughter, but failed to show the alleged neglect. The second judge
refused to modify the custody order. See Appendix I. The Guardian Ad Litem (the
Guardian) then recommended at the insistence of the grandparents that the court
1 O.C.G.A. § 19-9-127 (2012)(b) (1) The instrument providing for the power of attorney for the care of
a minor child shall be executed by both parents, if both parents are living and have joint legal
custody of the minor child, and shall specify which hardship prevents the parent or parents from
caring for the child... 2 O.C.G.A. §19-9-23 (2012): (c) No complaint specified in subsection (a) or (b) of this Code section
shall be made: (1) As a counterclaim or in any other manner in response to a petition for a writ of
habeas corpus seeking to enforce a child custody order; or(2) In response to any other action or
motion seeking to enforce a child custody order.
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appoint a new psychologist to perform a mental evaluation on me. See Appendix T.
The grandparents were never required to file an interlocutory appeal. At the third
trial, after hearing the deposition of the second psychologist and not her testimony
in court, the second judge ruled that I was fit, but unable to act in the best interest
of my child, pursuant to Georgia’s third party-fit parent best interest statute
O.C.G.A §19-7-1 (b.1) (2012).
The Evaluator found that I was hostile towards the grandparents and
deemed this hostily as misconduct3 because the grandparents held the primary
custodial bond with my daughter, See Appendix Z pg.11. The Evaluator found that
by not allowing my daughter to receive extravagant, excessive gift packages, that
the grandparents were bombarding my mail box with every week, and my daughter
going behind my back to try to retrieve the packages that it was evident that my
daughter was in turmoil , See Appendix Z pg. 12, and characterized the situation as
emotional abuse4. Appendix Z pg.11. I had made the decision that the grandparents’
efforts to manipulate my child into wanting to return to Georgia instead of
adjusting to where she was, was detrimental to my daughter’s psychological health.
3 O.C.G.A. §15-11-94 (2012): (4) (A) The court determines parental misconduct or inability by finding
that: (i) The child is a deprived child, as such term is defined in Code Section 15-11-2; (ii) The lack of
proper parental care or control by the parent in question is the cause of the child's status as
deprived; (iii) Such cause of deprivation is likely to continue or will not likely be remedied;
and(iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional,
or moral harm to the child.
O.C.G.A. § 15-11-2 (2012) (8) "Deprived child" means a child who:
(A) Is without proper parental care or control, subsistence, education as required by law, or other
care or control necessary for the child's physical, mental, or emotional health or morals;
(B) Has been placed for care or adoption in violation of law;
(C) Has been abandoned by his or her parents or other legal custodian; or
(D) Is without a parent, guardian, or custodian. 4 (iv) Egregious conduct or evidence of past egregious conduct of the parent toward the child or
toward another child of a physically, emotionally, or sexually cruel or abusive nature;
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The Evaluator also found that I had refused to allow the grandparents more than
the very restricted, court-ordered telephonic visitation, Appendix Z pg. 11, ordered
by the first court. The Court had found that during the time the grandparents had
illegally detained my child, they had prevented bonding time between she and I,
which is exactly what the grandparents intended to continue to do by sending
packages filled with candy, books, love notes, pictures of friends in Georgia, etc.,
every week. See Appendix I. They also sent a secret cell phone full of Georgia
numbers and gave my address out to their friends I didn’t know, who also without
my permission, sent cards and letters to my child. The Evaluator found that
although I had a considerable bond with my daughter and was no monster,
Appendix Z pg. 12, I was “incapable of separating my hostility toward the
Grandparents” from what was in the best interest of my daughter. Appendix Z pg.
11. She declared that I had caused and would continue to cause significant
psychological injury to my child. “Based on all the work done” by the Evaluator, See
exact verbiage at Appendix R, the trial Court removed my child from my home,
terminated my legal custody and awarded sole “full” custody to the grandparents.
The Court ruled that although I and the grandparents shared a significant
psychological bond with my child, the grandparents had a primary psychological
bond. See Appendix Z pgs. 18-19. As if the grandparents had equal constitutional
entitlement to make decisions for my daughter, and already had custody all along,
the trial Court found that because the grandparents were more willing to allow me
to maintain my bond with my daughter, that they should be awarded custody,
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permanently, as they were better able to act in her best interest. See Appendix Z pg.
19. Grandparents having only visitation have no such equal parental constitutional
entitlement, Knox v. Knox, 226 Ga. 619 (176 SE2d 712) (1970), and this Court has
no case law conferring such an entitlement.
I had originally filed a discretionary application for review to the Georgia
Supreme Court pursuant to O.C.G.A. §5-6-35 (a)(12)(2012) citing that in removing
my child from my home and awarding sole custody to the grandparents, that the
trial Court had terminated my constitutional parental rights. The Georgia Supreme
Court disagreed and ruled that the case was not a termination of parental rights
case, but a simple change of custody pursuant to O.C.G.A. §5-6-34 (2012), and
transferred the case to the Court of Appeals, declaring that the said court had
jurisdiction over “unquestionable, unambiguous, constitutional provisions.” See
Appendix D.
All questions were raised in my Motion to Dismiss5 and all enumerations of
error to both lower appellate Courts6. Although a Georgia Superior Court’s duty is
to render a written decision for a written motion7 and the Court had over six weeks
5 Appendix G 6 Appendix W 7 O.C.G.A. 15-6-21 (2012): Time for deciding motions; filing and notification; noncompliance as
ground for impeachment (a) In a county with less than 100,000 inhabitants, it shall be the duty of
the judge of the superior, state, or city court, unless providentially hindered or unless counsel for the
plaintiff and the defendant agree in writing to extend the time, to decide promptly, within 30 days
after the same have been argued before him or submitted to him without argument, all motions for
new trials, injunctions, demurrers, and all other motions of any nature.(b) In all counties with more
than 100,000 inhabitants, it shall be the duty of the judge of the superior, state, or city court, unless
providentially hindered or unless counsel for the plaintiff and the defendant agree in writing to
extend the time, to decide promptly, within 90 days after the same have been argued before him or
submitted to him without argument, all motions for new trials, injunctions, demurrers, and all other
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to rule, the trial Court did not rule on the Motion and only claimed that it
“expressly” denied the motion at the third trial. See Appendix Z, pg. 1.The Court of
Appeals did not apply the unquestionable, unambiguous, constitutional provisions,
and only reviewed three of my procedural enumerations of error, and one
substantive enumeration, which was the unconstitutionality of removing my child
after applying a best interest standard. The Court of Appeals upheld the
constitutionality of applying O.C.G.A. §19-7-1 (b.1) (2012) citing Clark v. Wade, 273
Ga. 587, 599 (2001), which then cites not to any ruling from this Court, but Price v.
Howard, 346 N.C. 68 (1997).8 The Court then declared pursuant to Clark, supra and
the Georgia Constitution binding it to its Supreme Court’s decisions it had a duty to
affirm the trial Court’s decision9. The appellate Court then disregarded the
remaining sixteen substantive enumerations concerning how the trial Court had
applied Clark v. Wade, 273 Ga. 587 (2001), declaring that it needed the transcripts
in order to review the said errors. There are three sets of transcripts for this instant
case but none were transferred to the Court of Appeals by the trial Court clerk.
According to the clerk, the first two sets were “lost”. Said transcripts were then
motions of any nature.(c) When he or she has so decided, it shall be the duty of the judge to file his or
her decision with the clerk of the court in which the cases are pending and to notify the attorney or
attorneys of the losing party of his or her decision. Said notice shall not be required if such notice has
been waived pursuant to subsection (a) of Code Section 9-11-5.
(d) If any judge fails or refuses, unless providentially hindered or unless counsel for the plaintiff and
the defendant agree in writing to extend the time, to obey the provisions of subsections (a) through
(c) of this Code section, or if any judge repeatedly or persistently fails or refuses to decide the various
motions, demurrers, and injunctions coming before him in the manner provided by such subsections,
such conduct shall be grounds for impeachment and the penalty therefor shall be his removal from
office. 8 Clark v. Wade, 273 Ga. 587, 599 (2001) citing Price v. Howard, 346 N.C. 68 (1997) See Appendix B
page 5...the best interest of child test does not offend due process in a custody dispute between
custodial nonparent and parent when parent’s conduct has been inconsistent with his or her
constitutionally protected status as a natural parent. 9 Ga. Const. of 1983, Art. VI Sec. VI, Par. VI; see Appendix B
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recovered and transferred10, five days after the said appellate Court had already
affirmed the trial Court’s ruling, along with my Amended Notice of Appeal, dated
December 20, 2011, which would have alerted the Court that they were on the way.
See Appendix Q. As this Court can plainly see by the many amendments to my
Notice of Appeal, I had quite a difficult time securing all three sets. Appendix Q.
The third set was deliberately withheld by the opposing counsel, who had instructed
the court reporter not to “allow” me access to them, because I had not helped to pay
for them. Opposing counsel had no legal right to withhold the third set of
transcripts. Kent v. Kent, 716 S.E.2d 212 (2011)11. The transcripts were a matter of
public record and the court reporter had a duty to file the transcripts into the trial
Court. O.C.G.A. §§ 15-14-5, 5-6-41(e).Thwarting the said efforts to hinder or prevent
my right to appeal, I supplied the Court of Appeals with fifty seven citations to the
record, to support all twenty enumerations of procedural and substantive errors .
The Court had ample parts of the record to review the case12 but still did not.
Georgia Court of Appeals Rule 25 (a)(1). Any reasonable person reading the Court of
Appeal’s decision can plainly see that the Court takes an adversarial stance instead
of an objective one with a duty to review for error. The first thing the Court takes
10 See Appendix Q: Letter from trial court clerk sent on 9 March 2012. The appellate court affirmed
on 5 March 2012. 11 The Respondents had no legal right to strike a private agreement with the court reporter to deny
the Petitioner the right to prepare the transcripts for review. Likewise, the Petitioner did not
“expressly refuse” to pay for the transcripts and the Respondents did not secure a ruling from the
trial court affirming that the Petitioner expressly refused to share in the cost of the transcripts. Kent v. Kent, 716 S.E.2d 212 (2011). Therefore, the Harrington rule, which would have allowed the
Respondents the right to deny the transcripts does not apply... 12 The Court of Appeals order stated: “ that citation to … “parts of the record or transcript”… were…
“essential to consideration of the errors complained of” See Appendix B, page 2, par. 1. The key word
in this statement is “or.”
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care to do is insult my intelligence comparing me to two previous Pro Se litigants
whom in its opinion couldn't compose a coherent legal argument. I have a paralegal
degree and am confident in my ability to aid any attorney. The appellate Court goes
on to make legal arguments and cite cases as if the Court itself is the opposing
party, defenses and citations which if this Court grants certiorari, will not find in
any of the responses submitted by the opposing party.
My Motion for Reconsideration was denied without opinion. See Appendix C.
So was my Petition for Writ of Certiorari to the Georgia Supreme Court. I now file
this Petition.
REASONS FOR GRANTING WRIT
This case is extremely important to every fit parent who has a parent-child
relationship in the United States. This instant case sets precedent that a trial Court
may sever a custodial relationship between a fit parent and a child and award
custody to third parties by applying a best interest standard. This is in direct
contrast of the now eighty nine years of rulings of this Court:
Meyer v. Nebraska, 262 U.S. 390, 399, 401, 67 L. Ed. 1042, 43 S. Ct. 625
(1923); Pierce v. Society of Sisters, 268 U.S. 510, 535, 69 L. Ed. 1070, 45 S.
Ct. 571 (1925); Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S.
Ct. 1208 (1972);Wisconsin v. Yoder, 406 U.S. 205, 232, 32 L. Ed. 2d 15, 92 S.
Ct. 1526 (1972); Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 98 S.
Ct. 549 (1978); Parham v. J. R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct.
2493 (1979); Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 102 S.
Ct. 1388 (1982); Washington v. Glucksberg, 521 U.S. 702, 720, 138 L. Ed.
2d 772, 117 S. Ct. 2258 (1997).
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The trial Court in this instant case not only infringed upon my fundamental right
to make a decision for my child13, but actually terminated my parental rights based
on the decision. This is brazenly unconstitutional14. With Trotter v. Ayres, 315 Ga.
App. 7 (2012) standing as new precedent in Georgia, Georgia and other states, will
continue to confer constitutional, parental entitlement upon grandparents in order
to remove children from the homes of their fit parents. The term, significant
primary emotional bond, See Appendix Z pg. 14, will remain the official legal term
in effect and applied to the status of grandparents, who occasionally had their
grandchildren in their care, aided a custodial parent with care, or like in this
instant case, stole a child. This significant primary emotional bond will continue to
supersede the parent-child relationship and the custodial relationship. This Court
has decided otherwise.15 This bond will continue to implant parental power in
grandparents, to make the decision that a grandchild needs protection from his or
her fit parent, effectively giving a grandparent liberty interest and legal standing as
that of parent, to file for permanent custody of a child, pursuant to a visitation
statute. The grandparent will continue to be able to assert that a fit parent seeks to
gain custody from them, See Appendix Z pg. 16, persons who have never had legal
custody or like in this instant case, broke the law to acquire the child, and that
13 Stanley v. Illinois, 405 U.S. 645, 651 (1972) 14 Troxel v.Granville, 530 U.S. 57, 66 (2000): ("Our jurisprudence historically has reflected Western
civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have
consistently followed that course")... In light of this extensive precedent, it cannot now be doubted that the Due
Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions
concerning the care, custody, and control of their children. 15 Troxel v. Granville, 530 U.S. 587 citing, Prince v. Massachusetts, 321 U.S. 158 (1943): 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.
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restoration of a parent’s right will cause harm to the child. Clark v. Wade, 273 Ga.
587, 597 (2001).16 The harm to the child after severing the relationship with his or
her parent will remain subordinate. If the parent has demonstrated that he or she
can provide adequate care for the child, the grandparents’ ability to care for the
child will remain paramount, after a comparison of the two abilities. All other
material facts will remain null and void, including a past or even present custodial
or healthy parent-child relationship. This deprivation of the fundamental rights of a
fit parent, outside of the constraints of the U.S. Const. amend XIV Due Process
Clause cannot continue. This Court has held for 89 years that a parent must be
found unfit before he or she loses his or her liberty interest. Meyer v. Nebraska, 262
U.S. 390 (1923). Nevertheless, in my research of thirty of the fifty states of the
United States, all thirty had differing appellate opinions as to the constitutionality
of applying the best interest standard to a third party-fit custodial parent custody
dispute. Alaska has dual verbiage in their statute. A parent may lose custody by a
showing of unfitness or a welfare of the child standard. Alaska Stat. §25.24.150
(2012). Carter v. Novotny, 779 P. 2d 1195 (1989). Heartbreakingly, I found another
mom in Connecticut who has suffered the same violation as I have. Connecticut’s
statute and appellate ruling mirrors that of Georgia. In this state, a trial Court may
“sever the parent-child relationship” with only a showing that continued custody
will be “clearly damaging.”Conn. Gen. Stat.§46b-57 (2012); Schult v. Schult, 40
Conn. App. 675 (1995). D.C. has a “termination of parent and child relationship”
statute, but gives a deficient parent the chance, through ordered programs, to
16 By harm, we mean...significant, long-term emotional harm...
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correct their deficiencies. If the parent fails to do so, then a termination is ordered.
D.C. Code § 16-2353 (2012); In re K.D. 26 A.3d 772 (2011). In Delaware, a parent is
not a parent having a fundamental right, but a “natural guardian” and a parent
“does not have an absolute right over grandparents” for guardianship of a child. In
re Two Minor Children, 283 A. 2d. 859 (Del. Ch. 1971). In finding the best interest
of the child, the parent need only to proven “unsuitable.” 13 Del. C.§
701(2012).Unbelievably, in Hawaii, a third party is given “De Facto” parental
standing and a prima facie entitlement to custody over a parent. HRS §571-46
(2012); In the Matter of the Guardianship of John Doe, 106 Haw. 75 (2004).In
Idaho, where a child is residing with a grandparent, the grandparent is given the
“same standing” as that of a parent, in determining what is in the best interest of a
child. Idaho Code § 32-717 (2012). Hernandez v. Hernandez, 151 Idaho 882 (2011).
In Indiana, De Facto status is given to a third party after a child has resided with
them for six months if under three years old and after a year if over three. Burn
Ind. Code Ann. §31-9-2-35.5 (2012); In re Custody of J.V., N.E.2d. (2009). Kentucky
also gives De Facto status to third parties, but in this state a parent still must be
proven unfit before a third party may utilize the best interest standard. K.R.S. §
403.270 (2012). C.C. V. M.H. NO. 2008-CA-000439-ME (2009), is the only citation
available. In Louisiana, a third party may gain custody by showing “substantial
harm,” but this state is reluctant to remove a child from the stable home of a parent
after hearing “stale evidence”. Willhite v. Willhite, 17 So. 3d 495 (2009). La. C.C.
Art. 131 (2012). In Minnesota, a court is instructed that there is no preference over
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a third de facto party simply because the other party is a parent. Minn. Stat. §
257C.04 (2012). A party gains De Facto status pursuant to Minn. Stat. § 257C.03,
subd.7(a) and then shows by a preponderance of evidence that an award of custody
to them is in the best interest of the child and by clear and convincing evidence that
the third party is a safe choice if said third party has committed a crime in the past.
Minn. Stat. § 518.179 (2012). In Missouri, any person may intervene at any time
and show a parent to be unfit, unsuitable or unable, to be a custodian. 452.375 R.S.
Mo. (2012). In the Matter of K.S.H, 355 S.W.3d 515 (2011). While I certainly don’t
agree with a mother beating a child and leaving bruises or neglecting a child’s
health, the Court could have found her unfit instead of applying a best interest
standard. In New Hampshire, a third party is deemed as having a “parent-child”
relationship. N.H. Rev.Stat. Ann § 458:17 (2004) with standing to challenge an
unwed parent and gain custody by proving clear and convincing evidence of
emotional harm. In the Matter of R.A. and J.M., 153 N.H. 82 (2006). North
Carolina’s unconstitutional case law is explained in the body of this brief. North
Dakota actually remanded a case, after the fitness standard had been applied, with
instructions to only apply the best interest standard and find only “exceptional
circumstances.” Mansukhani v. Pailing, 318 N.W.2d 748 (1982). A third party has
no chance of gaining custody in New Jersey without proving unfitness. The
grandparents in this instant case, moved from New Jersey to Georgia in 2006. In
New Mexico there is what’s called the “Kinship Guardianship Act.” Third parties
petitioning for guardianship must show by clear and convincing evidence that a
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parent is “unwilling” or “unable” to provide adequate care for the child. In the
Matter of the Guardianship of Victoria R., 145 N.M. 500 (2008). The rest of the
nearly thirty states I researched simply abide by the Constitution: Arkansas,
Skaggs v. Robertson, 302 Ark. 305 (1990), Colorado, Sidman v. Sidman, 249 P.3d
775 (2011), Iowa, In the Interest of M.A., 801 N.W. 2d 32 (2011), Illinois, Timmons
ex rel. R.L.S. v. L.S., 218 Ill. 2d 428 (2006), Kansas, K.S.A. §38-2266 (2011),
Massachusetts, Maryland, Md. Family Law Code Ann. §5-320 (2012),Maine, 22
M.R.S. § 4002 (2011), Michigan, MCLS §712A. 19b (2012), Mississippi, Miss. Code
Ann. §93-5-24 (2011), Vaughn v. Davis, 36 So. 3d 1261 (2010), Montana, Mont. Code
Anno., §40-4-227 (2011), Parenting of Skow, Mont. Dist. LEXIS 484, Nebraska,
R.R.S. Neb. §43-2923 (2012) and New York NY CLS Dom Rel §72 (2012), Bennet v.
Jeffreys, 40 N.Y. 2d 543 (1976). This sort of division amongst the states will
continue without a commanding decision from this Court, as to whether or not a
state may sever a parent-child custodial relationship with a best interest standard.
The state of Georgia has created a new way in which parental power may be
lost, separate and apart from Georgia’s termination of parental rights statute,
O.C.G.A. § 15-11-94 (2012), the U.S. Const. amend. XIV and Troxel v. Granville, 530
U.S. 57 (2000). The separate best interest statute, O.C.G.A. §19-7-1 (b.1), and
Georgia’s interpretation of its application, Clark v. Wade, 273 Ga. 587 (2001), were
created for the sole purpose of awarding custody of a child to third parties, mainly
grandparents, over fit parents. O.C.G.A. § 19-7-1 (b.1) is an unconstitutionally
16
vague, constitutionally impractical, statute of sweeping breadth, standing only with
the authority of another state’s ruling.
The first problem with O.C.G.A. § 19-7-1 (b.1) is its constitutionally
impractical provisions.
...In any action involving the custody of a child between the parents or either
parent and a third party limited to grandparent, ...parental power may be
lost by the parent...if the court hearing the issue of custody, in the exercise
of its sound discretion and taking into consideration all the circumstances of
the case, determines that an award of custody to such third party is for the
best interest of the child or children and will best promote their welfare
and happiness. There shall be a rebuttable presumption that it is in the
best interest of the child or children for custody to be awarded to the parent
or parents of such child or children, but this presumption may be overcome
by a showing that an award of custody to such third party is in the best
interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.
The constitutionality of O.C.G.A. § 19-7-1 (b.1) is supposedly defended and outlined
in Clark v. Wade, 273 Ga. 587 (2001). Clark, id. at 599, proclaims that Santosky v.
Kramer, 455 U.S. 745, 755 (1982), authorizes a trial Court to combine the high
burden of clear and convincing evidence in a termination of parental rights case,
with the trial Court’s sole discretion in applying the best interest standard. Clark
supra at 599 (2001): Standard of Proof
...we conclude that the same standard of proof should apply in custody
disputes between parents and third parties as applies in termination cases.
Santosky v. Kramer, 455 U.S. 745, 755 (1982).That is, a third-party relative
may overcome the presumption in favor of parental custody only by
presenting clear and convincing evidence that the award of custody to the
parent is not in the best interest of the child.
Santosky provides no such thing. This is an impossible method of determination. A
trial Court cannot possibly ensure the liberty interest of a parent with the stringent
17
burden of proof of clear and convincing evidence, and make a decision at its own sole
discretion at the same time. Moreover, Troxel, supra at 96 prescribes that harm to a
child and the best interest of a child are two different standards:
While it might be argued as an abstract matter that in some sense the child
is always harmed if his or her best interests are not considered, the law of
domestic relations, as it has evolved to this point, treats as distinct the two
standards, one harm to the child and the other the best interests of the
child... there are real and consequential differences between the two
standards.
In an attempt to make harm and the best interest standard one in the same in a
third party-fit parent custody case, the presumption is outlined in Clark supra at
592 as:
(1) the parent is a fit person entitled to custody
(2) a fit parent acts in the best interest of his or her child, and
(3) the child’s best interest is to be in the custody of a parent
One would assume in reading this three tier presumption, that a third party would
be required to show that the parent has demonstrated any element of Georgia’s
termination statute, in order to overcome the presumption. This is far from the
case. Instead, Georgia prescribes elements that a trial Court shall apply that have
absolutely nothing to do with fitness. In implementing these considerations,
Georgia claims that it has avoided “constitutional defects”. Clark, supra at 597:
In enacting the parent-third party custody statute, the Georgia Assembly
avoided the constitutional defects that the U.S. Supreme Court plurality
found in the Washington visitation statute. First, O.C.G.A 19-7-1 (b.1)
expressly limits third parties who may seek custody to a specific list of the
child’s closest relatives...
18
Troxel v. Granville, 530 U.S. 57 (2000) was about third party visitation- not
permanent custody- or a removal of a child from a fit parent’s home or severing a
custodial relationship.
Clark supra at 597, continuation:
...Second, the statute defers to the fit parent’s decision on custody by
establishing a rebuttable presumption in favor of parental custody.
This provision is misleading. This implies that just as this Court in Troxel, supra at
80, condemned the Washington Court for not giving any deference to a fit parent’s
decision on visitation, the Georgia Supreme Court avoids this constitutional pitfall
by giving deference to a fit parent’s decision on custody. A fit parent has no need to
make a decision concerning his or her custody. A fit parent who has legal and
physical custody of his or her child has already received a decision on custody from
a competent Court. Clark supra at 597 goes on:
What is left open for judicial interpretation is how to determine that an
award of custody to a third party “is for the best interest of the child or
children and will best promote their welfare and happiness...”Applying a
narrowing construction that is consistent with both the legislature’s intent
in Brooks v. Parkenson, we interpret the best interest of the child standard in
O.C.G.A. 19-7-1 (b.1) as requiring the third party to show that parental
custody would harm the child to rebut the statutory presumption in favor of
the parent....
The Georgia Supreme Court then provides these elements not to rebut fitness, but
to show harm in order to satisfy the best interest standard, utilizing two conflicting
standards. Troxel supra at 96. Here they are. Clark v. Wade, 273 Ga. 587, 597
(2001):
19
(1) who are the past and present caretakers of the child17
(2) with whom has the child formed psychological bonds and how strong are
those bonds18
(3) have the competing parties evidenced interest in, and contact with the
child over time19; and
(4) does the child have unique medical or psychological needs that one party
is better able to meet20
Clearly these factors do not address fitness, thus cannot refute the fitness of a
parent. So a trial Court applying these factors cannot even get passed tier (1) the
parent is a fit person entitled to custody, of the presumption, let alone make it all
the way to (3). The presumption in favor of the parent is secure so long as the
parent is fit. The trial Court did not find me unfit. Troxel, supra at 68:
First, the Troxels did not allege, and no court has found, that Granville was
an unfit parent. That aspect of the case is important, for there is a
presumption that fit parents act in the best interests of their children.
Thus, the trial Court’s application of the harm elements and its finding that I was
fit, but unable to act in the best interest of my child is an impossible conclusion.
Such constitutional impracticality leads to the denial of Due Process of fit
parents. Troxel v. Granville, 530 U.S. 57, 67 (2000):
The relationship between parent and child is constitutionally protected. It is
cardinal that the custody, care and nurture of the child reside first in the
17
Ortner v. Pritt, 187 W. Va. 494 (1992) 18
Comer v. Comer, 61 N.C. App. 324 (1983) 19 In re Brandon LE, 183 W. Va. 113 (1990); (3) has been overruled from In re Brandon LE, 183
W.Va. 113 (1983) to Clifford K. v. Paul S. ex rel. Z.B.S., 217 W. Va. 625 (W. Va. 2005). It now
reads:(3) has the parent consented to the third party having custody of the child and is the parent
unfit;… With the new stance of the state of West Virginia, the deduction process of applying these
elements as they were when this instant case was heard should have resulted in my child remaining
in my custody. The court’s application of the obsolete element is clear in the record. Appendix Z pg.
18. 20 Triplett v. Elder, 234 Ga. 243 at 244 (1973); Williams v. Ferrell, 231 Ga. 470- (1973)
20
parents, whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder. 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. Stanley v. Illinois, 405 U.S. 645 (1972); Meyer v. Nebraska, 262
U.S. 390, 399-401 (1923); Cleveland Board of Education v. LaFleur, 414 U.S.
632, 639-640 (1974).
In order for a trial Court to deprive a parent’s liberty interest its application of the
law must satisfy the requirements of the U.S. Const. amend XIV Due Process
Clause. Lassiter v. Department of Social Services, 452 U.S. 18, 37 (1981).
It is not disputed that state intervention to terminate the relationship
between a parent and a child must be accomplished by procedures meeting
the requisites of the Due Process Clause...
Troxel v. Granville, 530 U.S. 57 at 65 (2000)
The Fourteenth Amendment provides that no State shall "deprive any person
of life, liberty, or property, without due process of law." We have long
recognized that the Amendment's Due Process Clause, like its Fifth Amendment counterpart, "guarantees more than fair process." Washington v. Glucksberg, 521 U.S. 702, 719, 138 L. Ed. 2d 772, 117 S. Ct. 2258
(1997). The Clause also includes a substantive component that "provides
heightened protection against government interference with certain
fundamental rights and liberty interests." 521 U.S. at 720; see also Reno v. Flores, 507 U.S. 292, 301-302, 123 L. Ed. 2d 1, 113 S. Ct. 1439 (1993).
Most importantly, id. at 304:
So long as a parent adequately cares for his or her children (i.e. is fit), there
will normally be 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
decisions concerning the rearing of that parent’s children.
Due process, in the case of a custodial parent, is a finding of unfitness thus a
parent’s lack of ability to make decisions concerning the care, custody and control of
his or her child, and loss of his or her liberty interest.
21
The best interest of the child standard is only applied between two parents
with equal fundamental rights to their child. Troxel v. Granville, 530 U.S. 57 (2000)
citing Reno v. Flores, 507 U.S. 292, 304 (1992):
"The best interests of the child," a venerable phrase familiar from divorce
proceedings, is a proper and feasible criterion for making the decision as to
which of two parents will be accorded custody. But it is not traditionally
the sole criterion -- much less the sole constitutional criterion -- for other, less
narrowly channeled judgments involving children, where their interests
conflict in varying degrees with the interests of others. Even if it were shown,
for example, that a particular couple desirous of adopting a child would best
provide for the child's welfare, the child would nonetheless not be removed
from the custody of its parents so long as they were providing for the child
adequately. See Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 98 S.
Ct. 549 (1978). Similarly, "the best interests of the child" is not the legal
standard that governs parents' or guardians' exercise of their custody: So long
as certain minimum requirements of child care are met, the interests of the
child may be subordinated to the interests of other children, or indeed even to
the interests of the parents or guardians themselves.
Georgia’s own precedence says the exact same thing.
Childs v. Childs, 237 Ga. 177 (227 SE2d 49) (1976)
However, where a third party (e.g., a grandparent) is being awarded custody
of a child as part of a divorce case, or where such a third party sues to obtain
child custody from a parent, the test is not simply the "best interests" or
"welfare" of the child because the parents are being deprived of custody of
their child. In such cases, a parent is entitled to be awarded custody by the
trial court unless it is shown by clear and convincing evidence that such
parent is unfit or otherwise not entitled to custody under the laws. Conroy v. Jones, 238 Ga. 321 (232 SE2d 917) (1977); Drummond v. Fulton County Dept. of Family &c. Services, 237 Ga. 449, 451 (228 SE2d 839) (1976).
Despite its own precedence Georgia has misconstrued this Court’s expression
of a need for maintaining visitation statutes for certain third parties, in order to
22
preserve the welfare of the child21, to mean that a trial Court may apply the same
concept to a permanent custody dispute, where a parent-child or custodial
relationship exists and revoke custody from a fit parent. The trial Court in this
instant case makes this misinterpretation of Troxel clear, See Appendix Z pg. 16:
Thus, there need be no specific finding that the parent has intentionally or
even unintentionally caused harm to the child, or is otherwise unfit, only that
continued custody by the parent would cause harm.
There is no case law from this Court, authorizing a trial Court, to remove children
from the homes of their fit parents, without a finding of unfitness or from finding
that continued custody would cause psychological harm to the child. This is not
what the provisions of Troxel supra at 99, were designed to infer. This is a very
dangerous precedent, giving the state the power to invade the homes of fit parents
and remove their children, based on a discretionary determination that there could
be harm to the child in the future. This open-ended, subjective conclusion of future
harm, stands to provide an infinite array of ways to terminate a parent’s rights
outside of the constraints of the U.S. Const. amend. XIV and the rest of the rulings
of this Court. The sweeping breadth and vagueness of the said provisions and
O.C.G.A. 19-7-1 (b.1)’s verbiage: The sole issue for determination in any such case
shall be what is in the best interest of the child or children, should render the ruling
of the trial Court and its application of §19-7-1, an unconstitutional deprivation of
parental rights. Troxel v. Granville, 530 U.S. 57, 73 (2000):
21 Troxel, supra at 99 (2000):..."in certain circumstances where a child has enjoyed a substantial
relationship with a third person, arbitrarily depriving the child of the relationship could cause severe
psychological harm to the child," In re Smith, 137 Wn.2d at 20, 969 P.2d at 30;... In the design and
elaboration of their visitation laws, States may be entitled to consider that certain relationships are
such that to avoid the risk of harm, a best interests standard can be employed...
23
“...we rest our decision on the sweeping breadth of § 26.10.160(3) and the
application of that broad, unlimited power in this case,...”
See also: Okla. Comp. Stat. §7255 of Connally v. General Construction, 269 U.S. 385
(1926):
On appeal, the court held that since the statute did not define the terms
"current rate of wages" or "locality," the statute was not sufficiently explicit
for an employer to know what they meant. Thus, the statute was too vague as
a criminal statute to be constitutional. See also Haque v. Magnusson, 2011 U.S.
Dist. LEXIS 39385.
This instant case confers onto grandparents, equal constitutional entitlement
as that of the parent, as psychological parents. Despite the circumstances as to how
the grandparents came to have my daughter in their care, and the circumstances
taking place in their home, the Court, only looking to the sole best interest of the
child or “bond” between the child and third party, declared that the grandparents
had a “significant, primary, emotional bond,” See Appendix Z pg. 14, with my child,
which was much more important than the bond I shared with my child. This Court
has not sanctioned any compare the bonds doctrine to be applied to a fit custodial
parent- third party custody dispute. The state of Georgia’s precedence agrees.
Carvalho v. Lewis, 247 Ga. 94 (1981):
The court agreed that the case had to be remanded for the prescribed
determination but disagreed to the extent that the opinion implied that a
trial judge could compare the relative merits of a parent to those of a third
party. A finding of unfitness had to center on the parent alone, and only
under compelling circumstances could the parent-child relationship be
severed. The fitness of a parent could not be compared to the superior fitness
of a third person.
24
Knox v. Knox, 226 Ga. 619 (176 SE2d 712) (1970):
The best interests of the child test is used only between parents who both
have equal right to the child. Code Ann. § 74-107; Where the dispute is
between a natural parent and a third party, on the other hand, the court
must award the custody of the child to the parent unless he has lost his
parental prerogatives under Code Ann. § 74-108 or is unfit. Edwards v. Cason, 237 Ga. 116; White v. Bryan, 236 Ga. 349 (223 SE2d 710) (1976);
Knox v. Knox, supra; Perkins v. Courson, 219 Ga. 611 (135 SE2d 388) (1964).
Drummond, supra:
Under Georgia law, the "best interest of the child" test was inapplicable to
foster parents. The statutory right to adopt a child set forth in Ga. Code Ann.
§ 74-402 did not confer on foster parents a protectable entitlement under U.S.
Const. amend. XIV...The Drummonds (and amici, The Concerned Foster
Parents of Metro Atlanta and Foster Parents in Action) misconstrue the
Georgia law in assuming that the best interests of the child rule applies to
foster parents. Without this test and its focus on the child, there is no basis
for recognizing any right in the "psychological parents." Since the focus
in determining whether a third party is entitled to custody is on the natural
parents and whether or not they have forfeited their rights or are unfit
(Code Ann. § 74-107; Perkins v. Courson, supra), any relationship
between the child and his foster parents is primarily irrelevant. Stuckey v. Jones, 212 Ga. 495 (93 SE2d 719) (1956); Watkins v. Terrell, 196 Ga. 651 (27
SE2d 329) (1943).
All the Georgia cases cited in this brief are still “good law.”Despite its own
precedence, Georgia still claims that the United States Constitution has provisions
which allow a state to sever a bond between a parent and a child and cites Quilloin
v. Walcott, 434 U.S. 246 (1978):
Thus, even when the parental bond is to be severed, the United States
Constitution permits courts to use a “best interests” standard.
Here, the Georgia Supreme Court is careful to exclude the fact that the child in
Quilloin, id., was born into a marriage making the husband the legal father. The
high Court also leaves out the fact that the natural father in Quilloin, id., had never
25
had, sought, nor was seeking at the time, custody of his child, far from the
circumstances in this instant case. There was no custodial relationship to sever in
Quilloin, id. Custodial relationship is the term that Georgia substitutes with
“parental bond” in order to avoid a constitutional pitfall. Quilloin, id. has no
verbiage allowing courts to sever a custodial relationship-or a bond.
This entire strategy to revoke custody from fit parents is unconstitutional. No
state has the authority to diminish the minimum requirements of procedural due
process to what a particular state would like it to be. Vitek v. Jones, 445 U.S. 480,
491 (1980).
The minimum requirements of procedural due process being a matter of
federal law, they are not diminished by the fact that the State may have
specified its own procedures that it may deem adequate for determining the
preconditions to adverse official action.
The trial Court’s order explains that a fit parent’s interest “must be balanced”
with a child’s and the state’s interest. See Appendix Z pg. 17.Clark v. Wade, 273 Ga.
587, 596 (2001). A state’s power to protect a child who has a relationship with a
parent or is part of an embodied family unit, only derives from a parent being found
unfit. Troxel v. Granville, 530 U.S. 57 (2000) citing Reno v. Flores, 507 U.S. 292 at
304 (1992). No case rendered from this Court allows third parties to steal children
and then declare themselves the new parental replacements and no ruling from this
Court empowers a trial Court to revoke legal custody from a fit parent. As far as the
state’s compelling interest, faced with being stripped of all custody of my daughter,
26
I stood to lose and lost a heck of a lot more than the state had at risk. Addington v.
Texas 441 U.S. 418, 427 (1978):
"The individual should not be asked to share equally with society the risk of
error when the possible injury to the individual is significantly greater than
any possible harm to the state." Thus, at a parental rights termination
proceeding, a near-equal allocation of risk between the parents and the State
is constitutionally intolerable.
See Also: Goldberg v. Kelly, 397 U.S. 254, 262-263 (1970), quoting Joint Anti-Fascist
Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951):
The trial court in its decision prescribes that this instant case was one where the
"parens patriae had to protect the helpless and innocent." See Appendix Z pg. 17.
The parens patriae interest is to preserve the family, not sever it:
Since the State has an urgent interest in the welfare of the child, it shares
the parent's interest in an accurate and just decision at the factfinding
proceeding. Lassiter v. Department of Social Services, 452 U.S., at 27. As
parens patriae, the State's goal is to provide the child with a permanent
home...there is still reason to believe that positive, nurturing parent-child
relationships exist, the parens patriae interest favors preservation, not
severance, of natural familial bonds... [The] State registers no gain towards
its declared goals when it separates children from the custody of fit parents.
Stanley v. Illinois, 405 U.S., at 652.
As far as the child’s interest, again so long as the child is adequately cared for by
the parent, his or her interest is subordinated to the parent. Reno v. Flores, 507
U.S. 292, 304 (1992).
Georgia supplies a variation of its supposed constitutional justification. Clark
v. Wade, 273 Ga. 587, 588, 599 (2001)
27
…Considering the fundamental rights of parents, we construe the custody
statute as requiring the third party to show by clear and convincing evidence
that parental custody would harm the child in order to rebut the statutory
presumption in favor of the parent. With that narrowing construction, we
uphold as constitutional…
Clark, id. does not cite to any constitutional authority or any decision from this
Court, but to a state decision, Price v. Howard, 346 N.C. 68 (1997) as the authority.
As if it can’t get any worse, as already pointed out, O.C.G.A §19-7-1 (b.1) mentions
absolutely nothing about a showing of harm. Amazingly, Georgia offers no citation
to Troxel v. Granville, 530 U.S. 57 (2000), or any other United States Supreme
Court precedent and instead, actually cites to its own visitation statute,
O.C.G.A.§19-7-3 (2012) as the constitutional authority for its finding of harm
doctrine. Clark supra at 594:
…Reviewing the parents’ protected interest in raising their children against
the state’s interest in protecting a child, we concluded that “state interference
with a parent’s right to raise children is justifiable only where the state acts
in its police power to protect the child’s health or welfare, and where parental
decisions in the area would result in harm to the child. As a result, the
Georgia Assembly amended the grandparent visitation statute to require a
finding of harm to the health or welfare of the child before visitation is
granted...
As it turns out, Georgia turns to the said visitation statute, as guidance as to how to
proceed in third party-fit parent custody disputes. This method is deceptive. A
parent, in reading O.C.G.A § 19-7-1 (b.1) is unaware of the application of §19-7-3
and Clark, supra, because there is no mention of either in § 19-7-1. This deceptive
practice is exactly how such disputes are being adjudicated in Georgia today and
can be used as an example by other states, unless this Court ceases such
unconstitutional actions with a commanding decision.
28
One more supposed constitutional justification. Id at 596:
Based on our decision in Brooks, the state may interfere with a parent’s right
to raise his or her child only when the state acts to protect the child’s health
or welfare and the parent’s decision would result in harm to the child.
Again, the Georgia Supreme Court, offers no citation to any precedent from this
Court, to justify severing a custodial or parent-child relationship with visitation
provisions, because there aren’t any.
Although §19-7-1 purports that a Court must consider all of the
circumstances of the case, the trial Court in this instant case completely ignored the
material fact that the grandparents had set themselves apart from other
grandparents, who only wished to stay an active part of their grandchildren's lives.
These grandparents, in this instant case, not only violated the court order which
was already in place, See Appendix F, they also violated the UCCJEA, Georgia’s
Interference with Legal Custody statute, O.C.G.A. §16-5-45 (2012)22, and
ultimately, kidnapped my child. I have read the legal definition of kidnapping in the
Georgia code and I ask; what else would one call it when parties clandestinely and
deliberately maintain a child in their home without legal custody for nearly two
years, but kidnapping? Other states agree. W. Va. Code § 61-2-14; Fla. Stat. §
787.03; NH RSA 633:1, R.R.S. Neb. § 28-316 and Bundy v. State, 114 Neb. 121 (Neb.
22(3) "Lawful custody" means that custody inherent in the natural parents, that custody awarded by
proper authority as provided in Code Section 15-11-45, or that custody awarded to a parent,
guardian, or other person by a court of competent jurisdiction.
(b) (1) A person commits the offense of interference with custody when without lawful authority to do
so, the person: (A) Knowingly or recklessly takes or entices any child or committed person away from
the individual who has lawful custody of such child or committed person;
(C) Intentionally and willfully retains possession within this state of the child or committed person
upon the expiration of a lawful period of visitation with the child or committed person
29
1925). What the grandparents have done in this instant case is much more than
interference with custody. The grandparents coached and encouraged my child to lie
to me to cover up the fact that the Father was gone from their home. The
grandparents utilized the Father’s email account to coordinate visitation with me,
pretending to be the Father and kept my child with these tactics for nearly two
whole years. This is all in the withheld transcripts. This wasn’t a simple
interference. This wasn’t an extended period of care. This was an extended criminal
offense. Instead of considering this calculated, premeditated act defined by four
states as kidnapping, the court instead chose to deny my constitutional rights to my
child citing a “significant primary bond,” resulting from the crime.
In this instant case, my child was removed from my home and care after
living with me for fourteen months. I was her custodian for the first four years of
her life as her father and I were married. I exercised extended visitation with her
up until this newest litigation, including two months each and every summer since
2005. Appendix V.Twice, and the two different judges who presided over this case
declared that the law prescribed that my child belonged in my care and such was so
ordered. The fact that the orders were temporary is irrelevant. My child was in my
home and back in my care. I was a custodial parent and I was found fit three times
in the same courtroom. As I was found fit, it follows that I possess the ability to
make decisions concerning my child that are in my child’s best interest. Reno v.
Flores, 507 U.S. 292, 304 (1992). Still the trial Court not only overrode my decision,
but actually terminated my parental rights.
30
I raised the contention that the grandparents were detaining my child
illegally on day one after law enforcement refused to enforce the court order in
place. I wrote a handwritten motion right there at the Superior Court. Appendix F.
The Senior judge to hear the emergency motion, ironically the same one who
decided the first trial, denied it because Georgia law doesn’t prescribe a child being
detained illegally, as an “emergency.” His hands were tied at the time. I also filed a
Writ of Habeas Corpus and this emergency hearing, was also denied by another
judge as the case should have been finalized at the custody hearing. See Appendix
P. I raised the contention that the grandparents were before the Court with unclean
hands and the fact that the best interest standard did not apply to this instant case,
in my Motion to Dismiss. See Appendix G. Although a Court is bound by statute to
rule on a written motion with a written decision, the Court did not rule on the said
motion, nor did it rule on four other motions which would have ensured my right to
procedural due process, including the right to cross-examine a witness,23 and to be
furnished with the Evaluator’s report well before the third trial. 24
The Georgia Court of Appeals in its affirmation of the lower Court’s decision,
justified the actions of the Guardian with the Uniform Superior Court Rule 24.9.
23 O.C.G.A. § 24-9-64 (2012), Appendix; Court’s order that report be furnished to all parties and the
court; Appendix X 24 Appendix G: Motion to Compel Custody Evaluator’s Report and Motion for Contempt and
Sanctions; Motion for Continuance of Final Hearing: Petitioner’s Motion to Compel Court Evaluator
to Attend Final Hearing... Appendix; Motion for Custody Evaluator Nancy McGarrah P.H.D. to
Appear in Court Instanter
31
4.25See Appendix B pg. 5-6. The Uniform Superior Court Rule 24.9 4. or (8)(a) does
not give any Guardian Ad Litem, the authority to denounce the credentials of a
psychologist, who had already testified as to the mental state of a child or to
denounce the competency of a judge’s ruling based on such testimony, and then
propose to bring in a new psychologist, of her own choosing, after a particular party
has failed to meet their burden of proof. See Appendix T. Although the
grandparents never at any time made any allegations of me being unfit due to a
mental incapacity, and my counsel so objected, See Appendix N, I was ordered by
the Court to undergo an extensive, grueling psychological evaluation which lasted
two days and consisted of over five hundred written questions and two sessions of
oral counseling. Although the Evaluator did not discover that I had any mental
incapacity, she even took her findings a step further and found that my behavior
couldn’t even be corrected with counseling or treatment, as if she had successfully
diagnosed me as being insane, See Appendix Z pg. 12, in order to fix it so I could
never file in the future and assert a material change of circumstances.
The Court of Appeals also compared this instant case to Galtieri v. O’Dell,
673 S.E.2d 300 (2009). The father and mother in Galtieri were never married .
Galtieri, the father was never custodial and was not granted a petition for
legitimation until the child was seven years old- nothing like the circumstances in
this instant case or the supposed parameters of Clark, supra. The Court of
25 Uniform Superior Court Rule 24.94. : Duties; The GAL may request the court to order examination
of the child, parents or anyone seeking custody of the child, by a medical or mental health
professional, “if appropriate”.
32
Appeals, in its effort to defend an unconstitutional ruling, would like the public to
believe that I am a mere “biological” parent who has been absent from my child’s
life when it knows the record clearly shows otherwise and so do the errors it refused
to consider. The Court of Appeals took care to focus on the “onset of the case”,
deliberately excluding from the public, the fact that my child was removed from my
home and that I had legal custody of my child which I clearly cited and provided
where it could find such orders in the record. The fact that the appellate Court
addressed the circumstances at the “onset” of the case, shows it could have easily
addressed the facts of the rest of the case without the transcripts, but instead chose
which one it would address. There were no transcripts to support the onset of the
case either. See Appendix B, page 2. The appellate Court’s ruling mentions no
findings of the trial Court, the Evaluator or the Guardian Ad Litem ; neither does it
address how the trial Court applied the law to any findings. The Court of Appeals
completely ignored the evidence in the record which clearly showed and the
grandparents admitted, that my daughter lived in Texas with her paternal
grandmother, from 2004 to 2006- and not Georgia- with the step-grandmother and
her grandfather as its order states. There were no transcripts to support that my
child lived with the grandparents from 2004-2006, but there was clearly the
grandparents file for custody in Virginia showing she did not.
The state of Georgia, has taken it upon itself to decide when and if a fit,
parent is entitled to his or her fundamental liberty interest. Clark v. Wade, 273 Ga.
587, 592 (2001):
33
In cases dealing with the rights of unwed fathers, however, the Court refused
to adopt unfitness as the sole standard for enforcing a…father’s due process
rights, instead distinguishing between a developed parent-child relationship
and a potential relationship.
In actuality, this doesn’t matter in the state of Georgia as it now, even applies
Clark, supra, to married, custodial couples being challenged by grandparents.
Harris v. Snelgrove, 290 Ga. 181 (2011). Georgia is actually applying Clark, supra
to any and every third party- parent case. It claims that pursuant to the cases cited
where the parent either abandoned or did not develop a relationship, Clark supra at
108, that rose to the level of daily care26, it had the right to apply the best interest
standard. On the other hand, where a parent has a custodial or parent-child
relationship, then the parent is entitled to the trial Court's application of the
termination standard or the traditional fitness standard. Clark v. Wade, 273 Ga.
587, 600 (2001). Honorable Justice Sears:
“It is critical to distinguish these “reunification” cases from cases in which a
third party seeks to break apart an intact parent-child relationship by
seeking custody of the parents’ child. When a third party seeks to remove
a child from the care of his or her parents, an even more stringent standard
than that applied in the present case is necessary for the removal to be
constitutional. In such “removal” cases, only the traditional parental fitness
test can be constitutionally applied…”
This instant case, a removal case, is clearly evident that Clark, id. is being applied
to terminate the rights of parents, not to deny a reunification. As a matter of fact,
the state of Georgia boldly admits this fact. Clark, id. at 592:
26 Lehr v. Robertson, 463 U.S. 248, 260-263 (1983)
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In enacting O.C.G.A. §19-7-1 (b.1), the legislature changed the law governing
parent-third party custody disputes and added an additional way by which
parental power could be lost. The Georgia General Assembly intended to
replace the parental unfitness standard with the best interest of the child
standard.
Regarding the constitutionality of O.C.G.A. §19-7-1 (b.1), Justice Thompson says it
best. Clark, supra at 605:
This case requires this Court to decide whether O.C.G.A. §19-7-1 (b.1), which
authorizes an award of custody to a nonparent upon a showing that such an
award is in the best of the child, is constitutional. In my view, because it only
considers the best interest of the child and fails to consider the fundamental
rights of parents, this Code section cannot pass constitutional muster...
The court didn’t care that the grandparents had kidnapped my child in order
to assert Georgia’s “emotional bond” doctrine. Clark, supra at 591. With the trial
Court applying the best interest standard in this case, even where a parent-child
and custodial relationship existed, and the grandparents having had stolen my
child, it is clear that Georgia’s only objective is to develop laws which provide
grandparents with impermeable favor, no matter what the circumstances of any
given case are and facilitate grandparents with seizing custody from fit parents.
The disregard for substantive law in this case, although the state of Georgia by way
of Clark v. Wade, supra, purports to differentiate between a parent-child
relationship and the lack thereof, makes it clear that it actually had no intentions to
draw a line between the two. O.C.G.A. §19-7-1 (b.1) and Clark v. Wade, supra, is in
fact Georgia’s arbitrary action to vest power in itself, to supersede the constraints of
the U.S. Const. amend. XIV Due Process Clause and Troxel v. Granville, supra,
concerning a fit parent’s fundamental constitutional right to his or her children,
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under the guise of protecting a child from harm. This fact is solidified with the
Georgia General Assembly recently voting House Bill 1198 into law this past March
2012. The passing of HB 1198 modified O.C.G.A. §19-7-3 (2012) to provide a
presumption of harm to grandparents in third party-fit parent visitation disputes:
(3) While a parent's decision regarding grandparent visitation shall be given
deference by the court, the parent's decision shall not be conclusive when
failure to provide grandparent contact would result in emotional harm to the
child. A court may presume that a child who is denied any contact with his or
her grandparent or who is not provided some minimal opportunity for contact
with his or her grandparent may suffer emotional injury that is harmful to
such child's health. Such presumption shall be a rebuttable presumption.
Troxel v. Granville, 530 U.S. 57, 69 (2000) did not give the state of Georgia the
authority to place the burden of harm on the parent:
More importantly, that court appears to have applied the opposite
presumption, favoring grandparent visitation. In effect, it placed on Granville
the burden of disproving that visitation would be in her daughter’s best
interest and thus failed to provide any protection for her fundamental right.
This state has effectively even negated its own supposed constitutional
compliance with this new legislation, as parental power may be lost supposedly
pursuant to O.C.G.A.§ 19-7-1 (b.1) but grandparents actually gain legal standing to
file for custody from the declared constitutionality and inclusion of the requirement
of the grandparents to show harm to the child via O.C.G.A. § 19-7-3 (2012), Clark v.
Wade, 273 Ga. 587, 594 (2001). Now, grandparents don’t have to prove anything at
all before visitation is granted and if this modification is incorporated into the
deceptive application of § 19-7-1 they won’t have to for custody either. The fit parent
need not even show up for court because they will lose on the courthouse stairs.
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In awarding sole legal and physical custody to the grandparents, although I
was declared fit, I now have no right to make any decisions for my daughter. See
Appendix M. This is wantonly unconstitutional under the United States
Constitution. Troxel, supra at 72. My supposed "misconduct" and "emotional abuse"
supposedly warranted this outrageous decision. Ironically these elements are not
listed as part of the best interest standard, but Georgia's termination standard. So
the trial court once again commingled the standards as a means to rule in favor of
the grandparents.
The state of Georgia justifies severing my custodial relationship with my
daughter and revoking my legal custody as Constitutional, so long as I am allowed
visitation, with Gazaway v. Brackett, 241 Ga. 127 at 128, 129 (1978). There is no
case law from this Court to support such a claim. Neither is there any Georgia case
law. As a matter fact, Gazaway, id., which said the exact opposite, was overruled
with Durden v. Barron, 249 Ga. 686 (1982):
It is now settled that, in a custody contest between a parent and third party,
the parental right to custody may be lost only if by clear and convincing
evidence one of the conditions specified in Code Ann. §§ 74-108, 74-109, or
74-11027 or parental unfitness is shown to exist. Miele v. Gregory, 248 Ga.
93 (281 SE2d 565) (1981)
In light of the provisions in Gazaway v. Brackett, 241 Ga. 127 (1978) and its
overruling in 1982, it is baffling as to how Gazaway, id., was even cited to justify
depriving a fit parent of custody, in Clark v. Wade, 273 Ga. 587 (2001), which was
decided nineteen years later. Moreover, the state of Georgia had actually already
27 Childs v. Childs, 239 Ga. 304 (1977) prescribes that statutory grounds of relinquishment are found
in Code Ann. 74-108, 74-109 and 74-110
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settled in 1977- five years earlier, as to whether or not a parent may be deprived of
custody without a showing of unfitness. Childs v. Childs, 239 Ga. 304 (1977):
"The law contemplates that one of the natural parents will be awarded
custody of the child unless the present unfitness of the parents is established
by clear and convincing evidence at the hearing on permanent custody.
The circumstances of this instant case are incredibly different from the cases
that were on review in Clark. One, I was married to the father of my child. Two, I
had a parent-child, custodial relationship with my daughter and most of all, the
grandparents had stolen her and then had the audacity, the pair, the gall, to stand
before a court of law- after breaking the law- and ask the court to declare that they
had more of a right to raise the child that I carried, nursed and nurtured, then I did.
None of this was considered by the trial Court and its ultimate ruling was to give no
weight to my right to make a decision concerning my child’s welfare, and actually
terminated my parental rights based on my decision. Troxel v. Granville, 530 U.S.
57, 67 (2000):
Once the visitation petition has been filed in court and the matter is placed
before a judge, a parent’s decision that visitation would not be in the child’s
best interest is accorded no deference. Section 26.10.160(3) contains no
requirement that a court accord the parent’s decision any presumption of
validity or any weight whatsoever. Instead, the Washington statute places
the best-interest determination solely in the hands of the judge...
Georgia claims that its decision in Clark, supra, only applies to single, never
married parents who do not have a relationship with their child at issue. Clark,
supra at 588:
38
Both of these appeals concern a custody dispute between a single,
noncustodial parent...Thus, these cases do not involve the removal of a child
from the parent’s home, but rather the possible reunification of a parent and
child.
But, remove my child from home is exactly what the trial Court did. In actuality
this instant case and Harris v. Snelgrove, 290 Ga. 181 (2011), overrules Clark v.
Wade, supra, as both of the said cases involved custodial parents and the parents in
Harris, supra were even married. Nevertheless, neither case has been overtly
reported as the new precedence concerning third party-parent custody disputes.
Georgia’s claim that its right to sever a custodial relationship derives out this
Court is without merit. Not only is it not sanctioned by this Court, Georgia’s own
precedence doesn’t even allow it.
The claim that a termination of parental rights and award of custody to a
third party is constitutional, so long as a Court replaces such with visitation is
equally without merit.
A parent’s fundamental right to his or her child is to make decisions
concerning the care, custody and control of their children, so long as they are fit.
Reno v. Flores, 507 U.S. 292, 304 (1993) and Troxel supra at 66:
...In subsequent cases also, we have recognized the fundamental right
of parents to make decisions concerning the care, custody, and control of
their children. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972) "It is plain that the interest of a parent in the
companionship, care, custody, and management of his or her children comes
to this Court with a momentum for respect... the relationship between parent
and child is constitutionally protected"; Parham v. J. R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979)...
39
A revocation of that right is a termination, not a change of custody. Moreover, no
decision deriving from this Court conferred onto grandparents a constitutional
entitlement to parental rights. A trial Court cannot change custody to those who
were never entitled to custody in the first place.
Troxel v. Granville, supra at 73, did not require that every state’s visitation
statute required a showing of harm and it certainly did not vest states with the
power to enact a presumption of harm in third party-fit parent custody disputes,
where a parent must prove that continued custody to themselves will not harm the
child.
The grandparents in this case never should have been allowed to proceed
with a file for custody, after they had kidnapped my child and interfered with both
my and my child’s father’s legal custody. I have yet to find any other case with such
unique circumstances.
Most of all, in Georgia’s effort to thwart the constitutional rights of fit
parents, it claims to have in place a presumption of fitness, but provides a harm test
as a rebuttal, with factors to be considered, which have absolutely nothing to do
with fitness.
The handling of this instant case and the appeal process shows that the state
of Georgia, will not tolerate any challenge to its authority or its objective, whether a
parent’s constitutional rights have been violated or not, and will do whatever it
takes to preserve its objective. To Georgia, the Constitution of the United States is
40
irrelevant. The decisions of this Court, are irrelevant. Procedural law is irrelevant.
Its own constitution and its own precedence on the matter are equally, irrelevant.
The only thing that matters is that grandparents gain custody of their
grandchildren.
I ask this Court to make it very clear to this state, and any other like it, that
the United States Constitution is still the Supreme Law of the Land. All states
must abide by this Court’s decisions. Thus the state of Georgia, nor any other state,
may not violate the most basic, long standing liberties of its people, or create laws to
the contrary. USCS Const. Art. VI, Cl 2 Supreme law.
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
___________________________________
Kyung L. Trotter, Pro Se
3 Briarwood Lane
Marlborough, MA 01752
(978) 875-4146
Date:______________________________
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