[AKidsRight.Org] Family Law Reform events (New York & Colorado)

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Good People and People of Faith,

This message contains info on:

1. Argued before the US Second Circuit (Jan 6) - NY Custody Law Unconstitutional?
2. On trial for documenting CPS abuses (Jan 14) - Suzanne Shell (Colorado).
3. Effort continues with Senator Clinton (Jan 18) - Moms and Dads welcome!

1. Argued before the US Second Circuit (Jan 6) - NY Custody Law Unconstitutional?
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Harold reports that the session went well with few questions asked by
the Judges.  A decision is expected in 4-6 months.  Harold is NOT a lawyer,
but is self-taught and worked with others to bring his legal case forward.
We like what he stands for (and hopefully it makes sense):

      "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..."

--- Harold L. Rosenberger <HLRosenberger@Hotmail.com>

> 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 ｧ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.

2. On trial for documenting CPS abuses (Jan 14th) - Suzanne Shell (Colorado)
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Suzanne could certainly use words of encouragement as she struggles
against a court action that could be used to 'silence' her activities
in favor of parents who have unjustly lost their kids due to child
abuse allegations.  If you are in/near Colorado, don't hesitate to
contact her -- I'm sure she would love to see you at her appearance!

-- From Suzanne Shell <dsshell@ix.netcom.com>
   Director, American Family Advocacy Center
   Author: Profane Justice
   http://www.profane-justice.org

It takes quite a stretch of the imagination to convert news gathering
activities like filming and information gathering and publishing into
a crime, but the state of Colorado is attempting to do just that to
independent documentary producer, Suzanne Shell. Shell is being tried
for contempt of court for engaging in the Unauthorized Practice of
Law. The contempt citation alleges she drafted legal documents and
gave legal advice. Shell denies the allegations, insisting that she
was merely engaged in news gathering and filming for her documentary
series.

Shell is a nationally recognized leader in the Family Rights movement,
a growing grassroots movement which emerged in response to
out-of-control and abusive child protection practices. If she has been
praised as a godsend by families fighting unconstitutional government
intrusions in their lives, she has been a corresponding thorn in the
side of various state and county governmental agencies since the
publication of her first book in 1997 on the subject of parental
rights.

Shell has published three books on the issue, and maintains a website
covering this subject (www.profanejustice.org). In addition to her
books and articles, she conducts training seminars which focus on her
mission, promoting and protecting the fundamental human right to
family association. In an effort to bring this issue to a larger
audience, she has also embarked on the production of a documentary
video series covering all aspects of this issue.

"My books and other publications have been carefully researched and
documented," said Shell. "This means I must spend a lot of time
talking to professionals as well as aggrieved family members across
the country, reviewing agency and court records and attending court
proceedings and legislative hearings."  She is frequently seen with
video camera in hand, documenting events on film. But this occupation
is not without its hazards.

"I've been assaulted multiple times for filming, brutally attacked by
police for refusing to surrender my tape upon demand, attacked by a
convicted child molestor who didn't want me filming him. This child
molester then ran to the magistrate who was favoring him and who
ordered security to escort me from the building. This magistrate was
wrong, and the child molestor was convicted for his attack on me and
my cameraman. I've been manhandled by security in the Colorado State
Capitol for refusing to stop filming a public committee hearing after
filming without incident or complaint for 1 hour and 40 minutes during
the presentation of a bill and the few presentations of opposing
testimony. They didn't want me to document the overwhelming testimony
in favor of the bill. I've been threatened with kidnapping charges for
retrieving 2 runaway foster children from Kansas City and returning
them to the custody of Arapahoe County. I've been verbally abused by a
judge who compared my work to 'Judy Garland and Mickey Rooney putting
on a show to save Farmer Jones farm,' who then convienently 'lost' the
tape so I couldn't get a transcript of his demeaning comments. Other
judges in various jurisdictions have made abusive and defamatory
comments about me on court record simply because I sat quietly in the
gallery to observe the proceedings. I've been singled out for
exclusion from public hearings without cause and have had to resort to
seeking a sheriff deputy escort in courthouses to prevent physical
attack or exclusion from courtrooms. I've been dragged into court and
denied the right to defend myself. I've had illegal taps on my phones,
and been subjected to noisy surveillance. They send spies to any event
where I speak and make reports to state or county agencies about the
content of my speech. This is a matter of record in my upcoming
trial. They will stop at nothing to punish me for my peaceful,
protected political activism because of my viewpoint which is in
opposition to the governement on this issue." Shell asserts that this
prosecution is just another in a long line of retalitory actions
implemented against her in an effort to force her to withdraw from her
activism.

Shell has eight years of video documentation on this issue, including
hundreds of hours of interviews with parents, foster children, judges,
lawyers, legislators and others on the subject of child protection
practices and problems.

Shell is being tried for criminal contempt of the Colorado Supreme
Court. She has been accused of practicing law. For filming. Fremont
County was so opposed her knowing and disseminating anything about the
cases they handle that the county attorney filed an Unauthorized
Practice of Law (UPL) complaint against her and managed to get a local
court to order her not to have contact with one of the subjects of her
documentary. The Colorado Supreme Court Attorney Regulation Counsel
decided to proscute her for contempt, alleging she drafted legal
documents and gave legal advice.

"I've been documenting these cases for broadcast, nothing more," Shell
said. "I had nothing to do with their legal pleadings. The fact that
legal documents filed by individuals in their own cases were freely
available on my website and other websites does not implicate me in
UPL. That I may write legal pleadings for myself or for publication on
my website is not UPL. There is still a first amendment in this
country and anyone has the right to free speech, to publish or to
petition the government without fear of punishment, retribution or
retaliation. . . unless your name is Suzanne Shell."

Shell is represented by attorney Paul Grant (303-771-1908). Readers
may recall the Grant represented juror Laura Kriho when she was
charged with contempt for her vote in the jury room. (see Jury on
Trial at http://www.profane-justice.org/html/editorials.html).  He won
Kriho acquital on two counts at trial and on the third count on
appeal. Grant has raised several consitutional issues, including his
objection to this criminal contempt trial being conducted according
the Colorado Rules of Civil Procedure. He does not believe the
procedures being employed against Ms. Shell will pass constitutional
muster and is already prepared to appeal any adverse decision.

Shell's trial is scheduled for January 14, 2005 at 9 am. It will be
held at the office of the Presiding Disciplinary Judge at 600 17th
Ave, Suite 510-S in Denver, Colorado. The public is welcome to attend
this trial. Media wishing to attend are reminded that any requests for
expanded media coverage must be submitted no less than 24 hours prior
to the scheduled trial time. Ms. Shell will not opposed any motion for
expanded media coverage.

Contact information:
Attorney Paul Grant (303)771-1908
Suzanne Shell (719)749-2971
Presiding Disciplinary Judge William R. Lucero (for expanded media 
requests only - case number 04SA093 - (303) 866-6658)

3. Effort continues with Senator Clinton (Jan 18) - Moms and Dads welcome!
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Many of you are aware John Murtari <jmurtari@AKidsRight.Org> has been
involved in an ongoing group effort to get a meeting between Senator
Clinton and parents hurt by the 'system'.
http://www.AKidsRight.Org/actionc_syr

He plans on resuming his efforts on Tuesday, Jan 18th (the day after
Martin Luther King Day), and hopes to have other mothers and fathers
with him at the Syracuse Federal Building.  You are welcome to signup
at the web site to participate. A meeting is planned at his offices in
the morning before the event that afternoon (schedule at the site).

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