44
1 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.

Petition for Writ of Certiorari Us Sup Ct (3)

Embed Size (px)

DESCRIPTION

Grandparents have no constitutional entitlement to challenge parents for custody of their own children, outside of the constraints of the termination of parental rights process and the Parens Patriae authority is only triggered by the alleged unfitness of a parent. Even if the Parens Patriae is triggered, it has no arbitrary authority to skip the possible reformation of the parent's misconduct and award permanent custody to grandparents. To do so is a violation of the 5th and 14th Amendment and state statutes for purpose of doing such, violate the Supremacy Clause.

Citation preview

Page 1: Petition for Writ of Certiorari Us Sup Ct (3)

1

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.

Page 2: Petition for Writ of Certiorari Us Sup Ct (3)

2

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

Page 3: Petition for Writ of Certiorari Us Sup Ct (3)

3

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

Page 4: Petition for Writ of Certiorari Us Sup Ct (3)

4

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.

Page 5: Petition for Writ of Certiorari Us Sup Ct (3)

5

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;

Page 6: Petition for Writ of Certiorari Us Sup Ct (3)

6

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,

Page 7: Petition for Writ of Certiorari Us Sup Ct (3)

7

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

Page 8: Petition for Writ of Certiorari Us Sup Ct (3)

8

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

Page 9: Petition for Writ of Certiorari Us Sup Ct (3)

9

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.”

Page 10: Petition for Writ of Certiorari Us Sup Ct (3)

10

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).

Page 11: Petition for Writ of Certiorari Us Sup Ct (3)

11

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.

Page 12: Petition for Writ of Certiorari Us Sup Ct (3)

12

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...

Page 13: Petition for Writ of Certiorari Us Sup Ct (3)

13

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

Page 14: Petition for Writ of Certiorari Us Sup Ct (3)

14

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

Page 15: Petition for Writ of Certiorari Us Sup Ct (3)

15

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

Page 16: Petition for Writ of Certiorari Us Sup Ct (3)

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

Page 17: Petition for Writ of Certiorari Us Sup Ct (3)

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...

Page 18: Petition for Writ of Certiorari Us Sup Ct (3)

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):

Page 19: Petition for Writ of Certiorari Us Sup Ct (3)

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)

Page 20: Petition for Writ of Certiorari Us Sup Ct (3)

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.

Page 21: Petition for Writ of Certiorari Us Sup Ct (3)

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

Page 22: Petition for Writ of Certiorari Us Sup Ct (3)

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...

Page 23: Petition for Writ of Certiorari Us Sup Ct (3)

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.

Page 24: Petition for Writ of Certiorari Us Sup Ct (3)

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

Page 25: Petition for Writ of Certiorari Us Sup Ct (3)

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,

Page 26: Petition for Writ of Certiorari Us Sup Ct (3)

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)

Page 27: Petition for Writ of Certiorari Us Sup Ct (3)

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.

Page 28: Petition for Writ of Certiorari Us Sup Ct (3)

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

Page 29: Petition for Writ of Certiorari Us Sup Ct (3)

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.

Page 30: Petition for Writ of Certiorari Us Sup Ct (3)

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

Page 31: Petition for Writ of Certiorari Us Sup Ct (3)

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”.

Page 32: Petition for Writ of Certiorari Us Sup Ct (3)

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):

Page 33: Petition for Writ of Certiorari Us Sup Ct (3)

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)

Page 34: Petition for Writ of Certiorari Us Sup Ct (3)

34

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,

Page 35: Petition for Writ of Certiorari Us Sup Ct (3)

35

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.

Page 36: Petition for Writ of Certiorari Us Sup Ct (3)

36

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

Page 37: Petition for Writ of Certiorari Us Sup Ct (3)

37

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:

Page 38: Petition for Writ of Certiorari Us Sup Ct (3)

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)...

Page 39: Petition for Writ of Certiorari Us Sup Ct (3)

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

Page 40: Petition for Writ of Certiorari Us Sup Ct (3)

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:______________________________

Page 41: Petition for Writ of Certiorari Us Sup Ct (3)

41

Page 42: Petition for Writ of Certiorari Us Sup Ct (3)

42

Page 43: Petition for Writ of Certiorari Us Sup Ct (3)

43

Page 44: Petition for Writ of Certiorari Us Sup Ct (3)

44