HIRSCHFELD'S CITATION.TXT (PART D)
- from: www.nolawyer.com
Findings of Fact, Conclusions of Law, Order and Judgment, Lenton v.
Fleming, Maricopa County Superior Court DR 240615 SEJD, Hon. Linda
Scott, J., 10/28/86.
Findings of Fact, Conclusions of Law, Judgment and Order, Stojkovich
v. Brambach, Maricopa County Superior Court DR 159401, Hon. Alan S.
Kamin, J., 5/8/85.
"Kidnapping 1 - Prohibition in this section against custodial
interference is applicable only in context of criminal prosecution."
When cited in Domestic Relations sections of the A.R.S., the same
case is characterized thus:
"Parent and Child 2(2) - Natural parents are entitled to custody
absent some order to the contrary."
"Parent and Child 2(2,17) - Father has right to co-equal custody of
his child, but not exclusive custody, absent court order to that
"Children out-of-Wedlock 20 - Parents of children born out of
wedlock, whose parentage has been established, have co-equal custody
of child, absent court order to contrary."
"Children out-of-Wedlock 20 - Residence of child born out of wedlock
cannot be exclusively based on parental gender when there is no
custody order." Matter of Juvenile Action No. JD-4974, 163 Ariz. 60
(App. Jan. 25, 1990) (hereinafter "JD-4974")
The decision in "JD-4974" is dated January 25, 1990. The legislature,
heeding the anguished cries of child-support-collection authorities
aggrieved by the ramifications of "JD-4974", in 1991 added a tie-
breaker to our paternity statute, ARS 12-843:
"In any case in which paternity is established the parent with whom
the child has resided for the greater part of the last six months
shall have legal custody unless otherwise ordered by the court." ARS
12-843(C), laws 1991, Ch. 103 section 1. (Enacted after the events
and adjudication herein; and is stated here for argument purposes
Custodial interference; child born out of wedlock; classification.
A. A person commits custodial interference if, knowing or having
reason to know that he has no legal right to do so, such person
knowingly takes, entices or keeps from lawful custody any child less
than 18 years of age or incompetent, entrusted by authority of law to
the custody of another person or institution.
B. If the child is born out of wedlock, the mother is the legal
custodian of the child for the purposes of this section until
paternity is established and custody is established by a court.
C. If committed by a parent or agent of the parent of the person
taken, custodial interference is a class 6 felony unless the person
taken from lawful custody is returned voluntarily by the defendant
without physical injury prior to arrest in which case it is a class 1
D. If committed by person other than a parent or agent of the parent
of the person taken, custodial interference is a class 3 felony. ARS
Stanley v. Illinois, 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct.Rptr.
1208, 1211 (1972): Is a presumption that distinguishes and burdens
all unwed fathers constitutionally repugnant?
Appellant has an important constitutionally protected interest in his
child. This private interest "undeniably warrants deference and,
absent a powerful countervailing interest, protection." Stanley v.
Illinois, supra, p. 1212.
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 lacking when appeal is made to liberties
which derive merely from shifting economic arrangements." Stanley,
supra, citing Kovacs v. Cooper, 336 U.S. 77, 95, 69 S.Ct. 448, 458,
93 L.Ed. 513 (1949). (Frankfurter J. Concurring).
To say that the test of equal protection should be the "legal" rather
than the biological relationship is to avoid the issue. For the
equal protection clause necessarily limits the authority of the state
to draw such "legal" lines as it chooses. Glona v. American
Guarantee and Liability Insurance Company., 391 U.S. 73, 75-76, 88
S.Ct. 1515, 1516, 20 L.Ed.2d 441 (1960). Stanley, supra, p. 1213.
"As the Supreme Court has recognized, `[p]arental rights do not
spring full-blown from the biological connection between parent and
child. They require relationships more enduring.' Caban v. Mohammed,
441 U.S. 380, 397 (1979 (Steward, J. dissenting).
The state "may not subject men and women to disparate treatment when
there is no substantial relation between the disparity and an
important state interest. Lehr v. Robertson, 463 U.S. 248, 77
L.Ed.2d 614, 103 S.Ct. 2985, 2996 (1983).
In Caban v. Mohammed, 441 U.S. 380, 60 L.Ed.2d 297, 99 S.Ct.Rptr.
1960 (1979), the United States Supreme Court held that the equal
protection clause of the Fourteenth Amendment was violated by sex
based distinctions between unmarried mothers and unmarried fathers
where a New York statute allowed an unwed mother, but not an unwed
father, to block the adoption of their child simply by withholding
consent. The court held that this distinction bears no substantial
relation to any important state interest.
In Little v. Streater, 452 U.S. 168, L.Ed.2d 627, 101 S.Ct.Rptr. 202,
the United States Supreme Court held that due process was denied to
an indigent defendant who was required to bear the costs of blood
grouping tests in order to establish that he was probably not the
father of a child. Similarly here this indigent appellant is unable
to litigate paternity and custody and is therefore denied his
parental rights without due process of law.
People v. Carrillo, 162 Cal.App.3d 585, 208 Cal.Rptr. 684 (1984). In
Carrillo, the court was called upon to determine whether or not Civil
Code 197 was violative of the equal protection clause. This
California case interpreted California statutes which are dissimilar
to the Arizona statute subject to attack in the instant case. In
California, pursuant to Civil Code 197, the father of a child, if
presumed to be the father under Subsection a of Section 7004, is
equally entitled to custody, services and earnings of the unmarried
minor. Mr. Carrillo had been determined to be the natural father of
his child but not a "presumed" father.
The California court felt that because Mr. Carrillo had never sought
legal custody of his daughter, had never taken any steps whatsoever
to establish paternity, secure visitation or provide financial
assistance and the fact that he denied paternity when the mother
initiated an action against him and that because the mother did not
endeavor to obstruct the establishment of the relationship between
Mr. Carrillo and his child that Mr. Carrillo, as a natural father,
was not similarly situated with the mother and, therefore, was not
denied equal protection.
Because appellant is concededly the natural father of Joshua, resort
to Section 7004 (in California) to establish paternity would have
been unnecessary. People v. Johnson, 151 Cal. App. 3rd 1021, 199
Cal. Rptr. 231, 234 (Cal. App. 1 District 1984).
This Court has fashioned preliminary relief already which benefits
the class of similarly situated foster and adoptive parents and
children, lessening the need to look to stringent mootness criteria.
Weinstein v. Bradford, 423 U.S. 147, 149 (1975).
Northwest Environmental Defense Center. v. Gordon, 849 F.2d 1241
"The burden of demonstrating mootness is a heavy one." County of Los
Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.ed.2d 642
(1979)....The basic question in determining mootness is whether there
is a present controversy as to which effective relief can be granted.
U.S. v. Geophysical Corp., 732 F.2d 693, 698 (9th Cir. 1984); We have
pointed out that `courts of equity have broad discretion in shaping
remedies.' Garcia v. Lawn, 805 F.2d 1400, 1403 (9th Cir. 1986)"
Northwest at 849 F.2d 1244
"The plaintiffs are not required, however, to have asked for the
precise form of relief that the district court may ultimately
grant..... the fact that the alleged violation has itself ceased is
not sufficient to render a case moot. As long as effective relief may
still be available to counteract the effects of the violation, the
controversy remains live and present." Northwest at 849 F.2d 1245
The "development after the filing of the complaint" referred to in
Defendants' cited Aguirre v. S.S. Sohio Intrepid, 801 F.2d 1185 (9th.
Cir. 1986), citing Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942,
1950, 20 L.Ed.2d 947 (1968), was the nunc-pro-tunc amendment by
Congress of a dispositive maritime labor relations statute. The
aggrieved Seamen's moot protest in Aguirre was against the
retroactive nature of Congress' action.
Equal-protection impropriety of basing a placement solely upon race,
cited, as do Defendants, Drummond v. Fulton County Dept., etc. 563
F.2d 1200, 1205 (5th Cir. 1977) and Compos v. McKeithen, 341 F.Supp
264, 266 (E.D. La. 1972).
" `In all civil litigation, the judicial decree is not the end but
the means. At the end of the rainbow lies not a judgment, but some
action (or cessation of action) by the defendant that the judgment
produces - the payment of damages, or some specific performance, or
the termination of some conduct. Redress is sought through the court,
but from the defendant. This is no less true of a declaratory
judgment suit than of any other action. The real value of the
judicial pronouncement - what makes it a proper judicial resolution
of a `case or controversy' rather than an advisory opinion - is in
the settling of some dispute which affects the behavior of the
defendant towards the plaintiff.' Hewitt v. Helms, 482 U.S. 755
(1987)", as cited in Rhodes v. Stewart, 488 U.S. 1 (1988)
The two-pronged test for taxpayer standing: Flast v. Cohen, 392 U.S.
83, 102-103, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968). Wilder v.
Bernstein, 499 F.Supp. 980, 991 (S.D. N.Y., 1980).
Children in foster care or pre-adoptive situations are commonly
permitted to appear as named Plaintiffs having standing in comparable
Civil Rights cases:
Child v. Beame, 412 F. Supp 593 (S.D.N.Y., 1976);
Chrissy F. by Medley v. Miss. Dept. of Public Welfare, 883 F.2d 25
(5th Cir. 1989)
Player v. State of Alabama Dept. of Pensions & Security, 400 F.Supp.
249 (M.D. Ala., N.D. 1975)
Foster parents are routinely permitted to sue on behalf of the foster
children or pre-adoptive children in their care, as next friends:
Smith v. Organization of Foster Families for Equality and Reform
(OFFER) et.al, 431 U.S. 816, 97 S.Ct. 2094(1977);
Wilder v. Bernstein, 499 F.Supp. 980 (S.D.N.Y. 1980);
McLaughlin v. Pernsley, 876 F.2d 308 (3rd Cir. 1989)
Chrissy F. by Medley v. Miss. Dept. of Public Welfare, 883 F.2d 25
(5th Cir. 1989)
Harvard Law Professor Elizabeth Bartholet's recent Law Review
article, Where do Black Children Belong? The Politics of Race
Matching in Adoption, 139 U.Penn. L.R. 5, May 1991, (hereinafter,
"W. Feigelman & A. Silverman, Chosen Children: New Patterns of
Adoptive Relationships, 92-93 (1983) (comparing the significance of
the race matching factor to the significance of delay in placement);
Barth, Berry, Yoshikami, Goodfield & Carson, Predicting Adoption
Disruption, 33 Soc. Work 227,231 (1988) [hereinafter Predicting
Disruption]..." Bartholet, id at p.1208, n.119.
"...Perry, Race and Child Placement: The Best Interests Test and the
Cost of Discretion, 29 J.Fam.L. 51, 80-81 (1990)." Bartholet, id at
" W. Feigelman & A. Silverman.... (noting that the experts in child
development see continuity and stability in a child's environment as
essential, and the `absence of a stable and enduring parental
relationship ... as devastating and traumatic to a child's
development'). Reference to the vast body of research supporting
these propositions is made in Perry, supra....at 72-73, nn 74-82."
Bartholet, pp.1223-24, n.162.
(END OF PART D - CONTINUED IN PART E)