Petition for Writ of Certiorari — Eichinger v. Eichinger

aupreme Court, U.S.

FILED

04-801 DEC 8 - 2004

OFFICE OF THe CLERIC

No. 04-

IN THE SUPREME COURT

OF THE UNITED STATES

Richard A. Lichinger,

Petitioner,

v.

Christel U. Eichinger,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of the State of Indiana

PETITION FOR WRIT OF CERTIORARI

Richard A. Eichinger

28 Jefferson Street

Brookville, OH 45309

Petitioner, Pro Se

(937) 255-3808 x3189 (office)

QUESTIONS PRESENTED FOR REVIEW

Whether the Indiana Statutes, utilized to order child

custody, revoke his night to equal protection of the laws,

infringe upon his night to substantive due process, and

interfere with his right to privacy in parental decisions

under the Fourteenth Amendment of the United States

Constitution.

Will this court conduct a judicial review of Indiana

statutes that imply that interests have superseded rights?

In this case, whether a child’s interest can act to revoke a

child’s right to continue life parented by both their own

parents. Absent a compelling interest, is a child’s right to

be parented paramount to any state interest, before the

state can be authorized to determine what is in “the best

interests of the child”?

What would you do if they came to take your children?

Would you do nothing or would you seek justice?

PARTIES

The caption on the cover contains the names of all

parties. None of the parties is a corporation. See Rule

29.6.

ll

TABLE OF CONTENTS

Questions Presented for Review

Parties

Table of Contents

Table of Authorities

Decisions Below

Jurisdiction

Constitutional and Statutory Provisions Involved

Statement of the Case

A. Statement of Material Facts

B. Statement on Preservation Below

of Federal Questions

1. The trial court's treatment

of the federal questions

2. The Court of Appeal of Indiana's

treatment of the federal questions

3. The Supreme Court of Indiana's

treatment of the federal questions

REASONS FOR GRANTING THE WRIT

ill

I. THE DECISION BELOW 8

CONFLICTS WITH DECISIONS

OF THIS COURT

A. Equal Protection Decisions grouped 9

as reasons to grant this Court's cert

1. Stanley v. Illinois 9

2. Glona v. American 11

Guarantee Co.

3. Meyer v Nebraska 12

B. Standard of Review for 13

Fundamental Rights Cases grouped

as reasons to grant this Court's cert

C. Substantive Due Process Decisions « IS

grouped as reasons to grant

this Court's cert

D. Privacy Decisions grouped 20

as reasons to grant this Court's cert

E. Due Process Decisions with 23

Respect To Interpretation grouped

as reasons to grant this Court's cert

Il. THE PETITION PRESENTS 24

IMPORTANT QUES . IONS OF

FEDERAL CONSTITUTIONAL LAW

THAT THIS COURT SHOULD RESOLVE

CONCLUSION 26

1V

Contents of the Appendix

Order of the Supreme Court of the State a-1

of Indiana, Eichinger, Richard v. Eichinger,

Christel, Cause No. 02A04-0401-CV-00012

September 9, 2004

Order of the Court of Appeals of Indiana = a-2

Order or Judgement of the Court, a-7

Allen Circuit Court

U.S. Constitution: Fourteenth Amendment a-10

Constitution of the State of Indiana, a-11

Article 1, Section 1. Inherent nghts

Constitution of the State of Indiana, a-11

Article 1, Section 23.

Equal privileges and immunities

Indiana Code statute: IC 31-17-2-8 a-11

Indiana Code statute: IC 31-17-2-13 a-12

Indiana Code statute: IC 31-17-2-14 a-13

Indiana Code statute: IC 31-17-2-15 a-13

TABLE OF AUTHORITIES

Federal Cases

Cipriano v. City of Houma, 395 U.S. 701 (1969) 17

City of Phoenix v. Kolodziejski, 17

399 U.S. 204 (1970)

Dunn v. Blumstein, 405 U.S. 330 (1972) 17

Glona v. American Guarantee Co., 8,9, 11

391 U.S. 73 (1968)

Griswold v. Connecticut, 381 U.S. 479 (1965) 15, 21

Korematsu v. United States. 16, 17

323 U.S. 214 (1944)

Kramer v. Union Free School Dist.. 14,17

395 U.S. 621 (1969)

Meyer v. Nebraska. 12, 15, 16, 19, 22

262 U.S. 390, 399 (1923)

Personnel Administrator v. F eeney, 16

442 U.S. 256 (1979)

Quilloin v. Walcott, 434 U. S. 246, 255 (1978) 14

Roe v. Wade, 410 U.S. 113 (1973) 15, 22

Santosky v. Kramer, 455 U.S. 745, 753 (1982) 13

Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) 23

Shapiro v. Thompson, 394 U.S. 618 (1969) 14, 17

Skinner v. Oklahoma ex rei. Williamson. 16, 18

316 U.S. 535 (1942)

Solesbee v. Balkcom, 339 U.S. 9 (1950) 24

Snyder v. Massachusetts, 291 U.S. 97 (1934) 24

Stanley v. Illinois, 405 U.S. 645 (1972) 8,10, 13,16

Troxel v. Granville, 13, 14, 19, 21

530 U.S. 99-138 (2000)

Washington v. Seattle School Dist., 16

458 U.S. 457 (1982)

State Cases

Gilchrist v. Gilchrist, 75 N.E.2d 417 (Ind. 1947) 5

Duckworth v. Duckworth, 179 N.E.773 (Ind. 1932) 5

Glover v. State, 5

760 N.E.2d 1120, 1123 (Ind. Ct. App. 2002)

Vii

Reilly v. Daly, 6

666 N.E.2d 439, 445 (Ind. Ct. App. 1996)

Pence v. Pence, 7

667 N.E.2d 798, 800 (Ind. Ct. App. 1996)

See also Matter of Joseph, 7

416 N.E.2d 857, 861 (Ind. Ct. App. 1981)

Constitutional and Statutory Provisions

U.S. Constitution 4, 6, 11, 18, 19, 20, 23

Fourteenth Amendment

Indiana Constitution, Article 1, Section 1 4

Indiana Constitution, Article 1, Section 23 4

28 USC section 1257 1

INDIANA CODE STATUTE: IC 31-17-2-8 1,9

INDIANA CODE STATUTE: IC 31-17-2-13 1,10

INDIANA CODE STATUTE: IC 31-17-2-14 ]

INDIANA CODE STATUTE: IC 31-17-2-15 1,10

Vill

DECISIONS BELOW

The Order or Judgment in the Allen Circuit Court is

unpublished. App at a-7. The decision of the Indiana

Court of Appeals is a Memorandum Decision — Not for

Publication. App. at a-2. The Order of the Supreme

Court of Indiana denying the Petition for Transfer of

jurisdiction is unpublished. App. at a-1.

JURISDICTION

The Order of the Supreme Court of Indiana denying the

Petition for Transfer of jurisdiction was issued on

September 9, 2004. No rehearing was requested and no

extension of time to file this petition-was requested. This

Court has jurisdiction under Title 28 USC §1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED IN THE CASE

The following constitutional and statutory provisions

involved in this case are set forth in the Appendix to the

Petition: United States Constitution Fourteenth

Amendment; Constitution of the State of Indiana, Article

1, Section 1; Constitution of the State of Indiana, Article

1, Section 23; Indiana Code statute: IC 31-17-2-8;

Indiana Code statute: IC 31-17-2-13; Indiana Code

statute: IC 31-17-2-14; Indiana Code statute: IC 31-17-2-

15.

STATEMENT OF THE CASE

The Supreme Court of Indiana upheld the

constitutionality of a statute in which the state had

unconstitutionally determined his children’s best interest.

That determination, in this case, denied due process to

these children by taking their fundamental nights to be

raised, educated and socialized by both of their parents.

A. Statement of Material Facts

Heidi Anne Eichinger was born in Fort Wayne, Indiana,

and therefore no state shall deprive her of life. She has a

fundamental right to be raised, educated and socialized by

both of her parents. Mystrahlen Adel Eichinger (herein

below known as Mysti) was born in Annapolis,

Maryland, and therefore like her sister, no state shall

deprive her life and liberty without due process of law.

Mysti has a unique genome. Her physical and emotional

characteristics match those of her Mom and Dad ‘more

precisely than any other human, excepting her siblings.

Hans Christoffer Eichinger was born in Westminster,

Maryland, and therefore a US citizen, like his sisters. His

genome contains long chains of DNA codes in cells that

closely match the cells that live in his Mom and Dad.

The cells that live in him will live in his children and

theirs, so the lives of his Mom and Dad can propagate

eternally.

Richard Alan Eichinger (herein below known as Dad)

and Christel Utta Eichinger (herein below known as

Mom) were married in Fort Wayne. Heidi was born prior

to their marriage while Mysti and Hans were born during

the marriage.

Dad can provide material facts describing his parent-child

relationships because he has expert knowledge. Dad

loves Heidi because she is his first-born daughter. Mysti

is second but unique and most loved by Dad since she is

born in the same month as him. Her strength of mind,

perseverance and emotion-driven conviction mirror Dad’s

psyche. Hans is Dad’s favorite son. Dad loves no son on

the planet more. Each relationship is life. Although Dad

and Mom have dissolved their relationship to individuals

separate and distinct, he knows that Mom too has a

precious relationship with each of her children.

There is no dispute between the parties and Dad has at all

times before, during and after his marriage supported his

children in a comfortable, safe, healthy and secure

manner.

B. Statement on Preservation Below of Federal

Questions

It is self-evident that each parent-child relationship has a

fundamental right to be lived once established. This

inalienable right to live is a higher law than those

legislated and adjudicated by government. Rights, such

as these, transcend the authority of the state. This court

has identified them as substantive. The authority of the

state is limited. Im cases such as these, due process

requires strict scrutiny.

The iederal questions presented in this Petition have first

been raised in a Motion for Modification of Parental

Responsibilities and Parenting Time to the trial court.

Dad’s motion to modify was produced when he

discovered that the state had _ unconstitutionally

determined his children’s best interest. That

determination, in this case. denied due process to these

children by taking their fundamental right to be parented

by both of their parents. The state claimed to determine

their interests and it did so by revoking their nghts. In

this case, there exists no state interest compelling it to

revoke, interfere or infringe these person’s fundamental

rights.

Dad asserted that the statutes utilized to order child

custody, violate his fundamental right to parent his

children. These statutes are construed to preclude equal

parenting when married parents dissoive their marriage.

The Constitution of the State of Indiana contains Bill of

Right proscriptions for Inherent Rights and for Equal

Privileges and Immunities. App at a-11. These are the

State of Indiana’s counterparts to the US 14" amendment.

Dad became increasingly aware of this court’s treatment

of substantive due process and it’s interminable

application of strict scrutiny whenever it seeks to uphold

rights so precious.

These arguments were propounded throughout the state

appellate briefings.

1. The trial court's treatment of the federal questions

In the trial court, Dad asserted that the allocation of

parenting time and parental responsibilities and rights by

the Court in its final Orders constitutes an

unconstitutional infringement of his fundamental liberty

interest in his family, and his rights under the Equal

Protection and Substantive Due Process Clauses of the

Fourteenth Amendment of the United States Constitution.

The trial court denied Dad’s motion. App. at a-7.

The trial court evinced a complete misapprehension of

the gravamen of the challenge by citing cases where a

compelling state interest existed.

The Trial Court cited two cases, Duckworth v

Duckworth, 179 N.E.773 (ind. 1932) and Gilchrist v

Gilchrist, 75 N.E.2d 417 (Ind. 1947). Both cases were

inapposite to the case presented to the Appellate Court.

Both cases were brought before the Supreme Court of

Indiana after years had passed and the family

circumstances had changed. At the time of their divorce,

similar unconstitutional statutes were used to “award sole

custody.” Their fundamental rights to parent their

children had been infringed at the times of their

dissolutions of marriage.

In Gilchrist, Eileen sought to parent her son after her

son’s Dad died, after years of not parenting her son. In

Duckworth, Richard Duckworth, sought to parent his son

after his son’s Mom died, again years after he had not

parented his son. In both cases, the parents had neglected

to parent their children for years after their divorces,

probably for no fault of their own. In the interim,

adoptive parents formed new parent-child relationships.

A compelling state interest to preserve the best interests

- of the children existed. Both of the cases were inapposite

to all cases where parents are separated by divorce. They

served only as adequate examples of cases where a

biological parent’s right to parent is not absolute.

2. The Court of Appeals of Indiana's treatment of the

federal questions

The Court of Appeals of Indiana affirmed. App. at a-3.

The Indiana Appeals Court cited Glover v. State, 760

N.E.2d 1120, 1123 (Ind. Ct. App. 2002) to assert their

contention that Dad must rebut a presumption that all

reasonable doubts must be resolved in favor of the

statute’s constitutionality.

The constitutionality of the Indiana statutes are

challenged because of the assumptions they make with

regard to the parent and children’s rights. Dad did not

question whether the words of the statute had conveyed to

the public a meaning that comports with the equal

protection clause of the 14 amendment. There is not

validity that is vague that must be resolved in favor of

constitutionality. Rather, Dad requires judicial review of

Indiana statutes that imply that interests have superseded

rights. In this case, whether a child’s interest can act to

revoke a child’s right to continue life parented by their

own parents. A child’s night to be parented is paramount

to any state interest, absent a compelling one, before the

State can be authorized to determine what is in “the best

interests of the child”.

A divorced parent is similarly situated to all other parents

in that they have the same relationship with their children

as any other parent. The statutes assume that the state has

the authority to act as parent and determine what is in

“the best interests of the child”. The state has no such

authorization when parents are fit to parent.

The Indiana Appeals Court cited Reilly v. Daly, 666

N.E.2d 439, 445 (Ind. Ct. App. 1996) to explain that it

hadn’t treated Dad differently from similarly situated

parties, to the extent that the statutes operate

evenhandedly in the context of child custody situations.

Dad has argued that his substantive due process case was

wrongly decided and that the original understanding of

the Due Process Clause precludes judicial enforcement of

unenumerated rights under that constitutional provision.

Although, Dad is similarly situated to all the other fit

parents who have had their rights infringed by these

unconstitutional statutes, he also remains similarly

Situated to all the other parents who are not oppressed

whether they are married, separated, or unwed. Dad has

identical relationships to his children, as does any parent

with a parent-child relationship relating to their offspring.

The appellate court has suggested that its creation of

suspect classes titled “non-custodial parent” or “divorced

parent” or “unwed parent”, authorizes the state to act as

parent. But, this court has consistently rebutted the State

of Indiana’s assumption. Dad stands as parent, in

precisely the same situation as Mom, yesterday, today

and tomorrow, forever and ever.

The Indiana Appeals Court cited Pence v. Pence, 667

N.E.2d 798, 800 (Ind. Ct. App. 1996) and Matter of

Joseph, 416 N.E.2d 857, 861 (Ind. Ct. App. 1981) both

cases are examples of situations where there exists a

compelling state interest. Both cases cited were

inapposite to the issue before the courts of Indiana.

In Pence, a parent that is in prison is unable to provide

care, control and nurturing for their children. That parent

neglects their child, and the state has a compelling

interest to protect the rights of that child. In the Matter of

Joseph, he was found to be a dependent and neglected

child and declared a ward of the Department. Again, in

order to protect the right of a child to live absent neglect

or abuse, the state would be compelled to act as parent.

Both of these cases are examples of when the

fundamental right to parent is not absolute. However,

when fit parents assert their nght to parent, the

government is precluded from infringing unenumerated

rights that are substantive.

In this case, the government of Indiana lacks even a

legitimate state interest, to say nothing of a compelling

one, to interfere with Dad’s right to parent his kids.

3. The Supreme Court of Indiana's treatment of the

federal questions

The Supreme Court of Indiana indicated in its order to

deny transfer that it reviewed “the records, briefs and the

decision of the Court of Appeals”. It stated further that

“Each participating member has had the opportunity to

voice that justice’s views on the case in conference with

the other justices”. And, “each participating member of

the Court has voted on the petition”. App. at a-1.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF THIS COURT

The challenged statutory provision is functionally similar

to the presumption of unfitness provision struck down by

this Court in Stanley v. Illinois, 405 U.S. 645 (1972). Its

operation is indistinguishable on any substantive basis

from the legitimacy distinction for recovery for wrongful

death struck down in Glona v. American Guarantee Co.,

391 U.S. 73 (1968). The decisions below upholding the

challenged Indiana statutes squarely conflict with the

decisions of this Court.

8

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i A ERT Te Rye eh MB

A. Equal Protection Decisions grouped as reasons to

grant this Court's cert

1. Stanley v. Illinois

The Appeals Court of Indiana wrote that the ‘best

interests test and the ‘best interests’ standard is a

compelling state interest in the event of dissolution of that

parent's marriage or when the parent has never married

the other parent. The rationale for this imposition is that

the state has an alleged interest in insuring that children

of unmarried parents are adequately cared for. The

implication in such a state act is that one parent would not

otherwise adequately care for his or her child - that he

would be derelict in his acknowledged duty of support

and by logical extension unfit. The Court below

concluded that such state imposition was constitutional.

The judgment below clearly conflicts with this Court's

cases.

Stanley involved a case of state statutory presumption of

parental unfitness on the part of an unwed father without

any proof of neglect, whereas the scheme at that time did

not allow the state to assume custody of children of

married or divorced parents or a single mother. ~ This

Court held that, pursuant to due process, the petitioner in

Stanley was entitled to a hearing when the state proposed

to take custody of his offspring and that denial of such a

hearing violated his right to equal protection of the laws.

In the matter at hand, the challenged statute, while

providing for a hearing, presumes that the best interests of

the child are served by continuing a relationship with

only one parent without any proof of neglect or unfitness.

The statute IC 31-17-2-8 states, in pertinent part:

The court shall determine custody and enter a custody

order in accordance with the best interests of the child.

And, the statute IC 31-17-2-13 states:

The court may award legal custody of a child jointly if

the court finds that an award of joint legal custody would

be in the best interest of the child.

And, the statute IC 31-17-2-15 states:

In determining whether an award of joint legal

custody under section 13 of this chapter would be in

the best interest of the child, the court shall consider it

a matter of primary, but not determinative,

importance that the persons awarded joint custody

have agreed to an award of joint legal custody.

This requirement that ‘persons awarded joint custody

have agreed’ is equivalent to this Court in Stanley

allowing the State of Illinois to presume the unwed father .

to be unfit and to force him to prove his fitness. Such an

outcome - in either Stanley or Indiana’s child custody

determination - is anathema to this Court's long history of

championship of equal protection.

The absence of marriage is not an impediment to the

recognition of the fundamental right of the parent-child

relationship:

Nor has the law refused to recognize those family

relationships unlegitimized by a marriage ceremony.

The Court has declared unconstitutional a state statute

denying natural, but illegitimate, children a wrongful-

death action for the death of their mother,

10

emphasizing that [405 U.S. 645, 652] such children

cannot be denied the right of othen children because

familial bonds in such cases were often as warm,

enduring, and important as those arising within a

more formally organized family unit. Levy v.

Louisiana, 391 U.S. 68, 71 -72 (1968).

2. Glona v. American Guarantee Co.

The lower courts have identified several classifications

for parents, among these are unmarried, married,

divorced, custodial, non-custodial and parents that agree.

The mandate of the challenged statutes for child custody

determinations create a legal line in the sand between

married parents and those who have ceased to be or who

chose not be married. However, this Court has rejected

such an artificial distinction in cases involving family

relations. In Glona v. American Guarantee Co., 391 U.S.

73, 75, (involving a claim for damages for wrongful death

of an illegitimate son, denied by the State of Lousiana),

this Court stated:

To say that the test of equal protection should be the

“legal” rather than the biological relationship is to

avoid [391 U.S. 73, 76] the issue. For the Equal

Protection Clause necessarily limits the authority of a

State to draw such “legal” lines as it chooses.

This Court upheld the right of the mother to recover for

the death of her illegitimate son, rejecting the notion that

only parents of “legitimate” children could so recover

under state law, and affirmed that any such distinction

was a violation of the Equal Protection Clause of the

Fourteenth Amendment.

1]

However, it is just such a distinction, which the

challenged statute does, in fact, create. The statute treats

unmarried parents as having no right to determine the

precise nature of the care and nurturing of their offspring,

substituting instead the combined and tabulated wisdom

of the state legislature to establish that care, whereas the

state does not interfere with the equivalent care and

nurture of children provided by married parents without a

showing of a compelling interest.

3. Meyer v. State of Nebraska

The Constitutional right to be a parent has long been

recognized by this the highest Court in the land. As long

ago as 1923, this US Court, in a case involving the nght

to teach in a foreign language, held:

One claim put forward is, that the statute [prohibiting

teaching in a foreign language] forwards the work of

Americanization. But in our desire for the

Americanization of our foreign born population we

should not overlook the fact that the spirit of America

is liberty and toleration -- the disposition to allow

each person to live his own life in his own way,

unhampered by unreasonable and arbitrary

restrictions.

The law, as construed by the Supreme Court of

Nebraska, operates to deny the plaintiff in error the

equal protection of the law. Meyer v. State of

Nebraska, 1923.SCT.40447; 262 U-S. 390, 67 L. Ed.

1042, 43 S. Ct. 625 (1923)

12

B. Standard of Review for Fundamental Rights Cases

grouped as reasons to grant this Court's cert

That family relations comprise a protected liberty interest

is well established and settled law:

The liberty interest at issue in this case -- the interest of

parents in the care, custody, and control of their children -

- is perhaps the oldest of the fundamental liberty interests

recognized by this Court.

Troxel v. Granville, 530 U.S. 57, 66 (2000).

And,

Discussing "[{t]he fundamental liberty interest of natural

parents in the care, custody, and management of their

child"

Santosky v. Kramer, 455 U.S. 745, 753 (1982).

And this liberty interest is to be accorded the greatest

respect:

It is plain that the interest of a parent in the

companionship, care, custody, and management of his

or her children "“come[s] to this Court with a

momentum for respect lacking when appeal is made

to liberties which derive merely from shifting

economic arrangements". Stanley v. Illinois, 405 U.

S. 645, 651 (1972), citing Kovacs v. Cooper, 336 U.S.

77, 95 (1949) (Frankfurter, J., concurring)

And is a protected interest:

We have recognized on numerous occasions that the

relationship between parent and child is constitutionally

protected...

13

Quilloin v. Walcott, 434 U. S. 246, 255 (1978).

There must exist a compelling state interest before the

state can impair fundamental rights, even in the face of

apparent statutory empowerment to the contrary, as

evidenced by the fact that the standard of review of such

a decision is one of strict scrutiny:

Consequently, I agree with the plurality that this

Court's recognition of a fundamental right of parents

to direct the upbringing of their children resolves this

case. Our decision in Pierce v. Society of Sisters, 268

U. S. 510 (1925), holds that parents have a

fundamental constitutional nght to rear their children,

including the right to determine who shall educate and

socialize them. The opinions of the plurality, Justice

Kennedy, and Justice Souter recognize such a right,

but curiously none of them articulates the appropriate

standard of review. I would apply strict scrutiny to

infringements of fundamental rights. Here, the State

of Washington lacks even a legitimate governmental

interest -- to say nothing of a compelling one -- in

second-guessing a fit parent's decision regarding

visitation with third parties. On this basis, I would

affirm the judgment below.

Troxel, supra, at 75, Thomas, J. concurring.

This principle was enunciated unequivocally in Roe v.

Wade, infra:

Where certain "fundamental rights" are involved, the

Court has held that regulation limiting these nghts

may be justified only by a "compelling state interest,"

Kramer v. Union Free School District, 395 U.S. 621,

627 (1969); Shapiro v. Thompson, 394 U.S. 618, 634

14

(1969), Sherbert v. Verner, 374 U.S. 398, 406 (1963),

and that legislative enactments must be narrowly

drawn to express only the legitimate state interests at

stake. [Citations omitted. ]

Roe et al. v. Wade, 973.SCT.40394 ; 410 U.S. 113, 93

S. Ct. 705, 35 L. Ed. 2d 147 (1973)

Roe drew on a long heritage of U.S. Supreme Court

holdings that the state must demonstrate a "compelling

interest" to justify infringement of fundamental rights. In

Griswold v. Connecticut, infra, that Court held:

In a long series of cases this Court has held that where

fundamental personal liberties are involved, they may

not be abridged by the States simply on a showing

that a regulatory statute has some rational relationship

to the effectuation of a proper state purpose. "Where

there is a significant encroachment upon personal

liberty, the State may prevail only upon showing a

subordinating interest which is compeiling," Bates v.

Little Rock, 361 U.S. 516, 524. The law must be

shown "necessary, and not merely rationally related,

to the accomplishment of a permissible state policy."

McLaughlin v. Florida, 379 U.S. 184, 196. See

Schneider v. Irvington, 308 U.S. 147, 161.

Griswold et al. v. Connecticut, 1965.SCT.40818 ; 381

U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965)

This Court, in Stanley, examined much prior authority to

establish the fundamental nature of parental rights:

The Court has frequently emphasized the importance

of the family. The nghts to conceive and to raise one's

children have been deemed "essential," Meyer v.

Nebraska, 262 U.S. 390, 399 (1923), "basic civil

15

rights of man," Skinner v. Oklahoma, 316 U.S. 535,

541 (1942), and "[r]ights far more precious . . . than

property rights," May v. Anderson, 345 U.S. 528, 533

(1953). "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." Prince v. Massachusetts, 321

U.S. 158, 166 (1944). The integrity of the family unit

has found protection in the Due Process Clause of the

Fourteenth Amendment, Meyer v. Nebraska, supra, at

399, the Equal Protection Clause of the Fourteenth

Amendment, Skinner v. Oklahoma, supra, at 541, and

the Ninth Amendment, Griswold v. Connecticut, 381

U.S. 479, 496 (1965) (Goldberg, J., concurring).

Stanley, supra, at 651.

The State of Indiana has created a non-custodial class of

parents, those parents whose marriage is dissolved must

fulfill their obligations and commitments to their children

as ordered by the Court. This legislatively created class

is every bit as suspect as that based on race (Korematsu v.

United States, 323 U.S. 214, 216 (1944), applying "rigid

scrutiny"; Personnel Administrator v. Feeney, 442 U.S.

256, 272 (1979), "A racial classification, regardless of

purported motivation, is presumptively invalid and can be

upheld only upon an extraordinary justification"; quoted

in Washington v. Seattle School Dist., 458 U.S. 457, 485

(1982)).

The Court of Appeals of Indiana - upheld by the Supreme

Court Indiana by its denying transfer - applied the /east

rigorous standard of review of Petitioner's constitutional

challenge to the statute.

16

However, as far back as World War II, in Korematsu this .

Court recognized that classifications which infringe upon

fundamental civil rights are subject to ‘rigid’ scrutiny:

It should be noted, to begin with, that all legal

restrictions which curtail the civil nghts of a single

racial group are immediately suspect. That is not to

say that all such restrictions are unconstitutional. It is

to say that courts must subject them to the most ngid

scrutiny. Pressing public necessity may sometimes

justify the existence of such restrictions; racial

antagonism never can.

Korematsu, supra, at 216.

The civil rights of parents to the care, custody,

management and nurture of their children deserve no

less deference and protection. The rights, which the

Petitioner asserts are being violated, all constitute

universally recognized fundamental rights, as they are

all embodied in the Federal and/or State

Constitutions. Whenever a state would attempt to

infringe such fundamental rights in favor of a "state

interest," that interest must be compelling (Shapiro v.

Thompscn, 394 U.S. 618, 627 , 634, 638 (1969);

Kramer v. Union Free School Dist., 395 U.S. 621

(1969); Cipriano v. City of Houma, 395 U.S. 701

(1969); City of Phoenix v. Kolodziejski, 399 U.S. 204

(1970); Dunn v. Blumstein, 405 U.S. 330 (1972)) and

the standard of review is one of strict scrutiny

(Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

535, 541 (1942)).

The lower Court applied an inadequate standard of

review, and this Court cannot countenance the state's

17

treatment of a parent differently simply because he is no

longer or has never married the other parent.

C. Substantive Due Process Decisions grouped as

reasons to grant this Court's cert

Indiana statutes that determine “the best interests of the

child” unconstitutionally infringe on unenumerated rights.

Parents have a fundamental constitutional nght to rear

their children, including the nght to determine who shall

educate and socialize them. Judicial discretion tempered

by arbitrary determinations of exactly what constitutes

“the best interests of the child” is fraught with capricious

orders unconstitutionally infringing upon basic human

rights. One of the most basic building blocks of a

civilized society and the most fundamental,

unenumerated, inalienable and precious rights is that of

fit parents to parent their children and for those children

to be parented by both of their parents. Protecting

children from harm, such as when children are neglected

or abused, is one of the only compelling state interests

that rise to a level authorizing a governmental unit to act.

The lower courts, in this substantive due process case,

wrongly considered the original understanding of the Due

Process Clause because the appropriate standard of

review is strict scrutiny to infringements of fundamental

rights under the US 14° Amendment.

The Constitutional right to be a parent has long been

recognized by this Court. The precious right to parent

your own children is a “fundamental right”. What

constitutes a “fundamental mght”, especially as that

concept relates to family relationships, is well established

in American jurisprudence.

Moreover, this court has decided that the “compelling

state interest” or the “process of effecting that which is in

the best interests of children” alluded to by the Trial

Court cannot trump a parent’s right to parent his own

children:

It is apparent, then, that the case we are now

considering involves two areas (adoption and the

welfare of children) which are peculiarly within the

province of legislative action. Balanced against this

area of primary State concern is the right of a parent

to the custody of her child, which has been recognized

as a right encompassed within the protection of the

fourteenth amendment which "may not be interfered

with, under the guise of protecting the public interest,

by legislative action which is arbitrary or without

reasonable relation to some purpose within the

competency of the State to effect."

Meyer v. Nebraska, 262 U.S. 390, 399-400, 67 L.Ed.

1042, 1045, 43 S.Ct. 625, 627. Regenold v. Baby

Fold, Inc., 369 NE 2d 858; 68 Ill 2d 419, appeal

dismissed 98 S Ct 1598, 435 US 963, IL, (1977).

In Troxel v. Granville, supra, 99-138, this Court stated:

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 (1997). The Clause

also includes a substantive component that "provides

heightened protection against government

interference with certain fundamental rights and

19

liberty interests." Id., at 720; see also Reno v. Flores,

507 U. S. 292, 301-302 (1993).

This Court went on to reiterate that a parent's “care,

custody and control” of children was one of the oldest

fundamental liberty interests recognized here. The Court

cited a long line of its own cases and came to the

conclusion that, “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.” The right to the care,

custody and control - and by a very short extension of

logic, the right to self-determination in that care - is not

forfeited by a parent by the mere occurrence of divorce or

having a child born out of wedlock. If that were so, then

the rights so carefully scrutinized and declared by this

Court would not be “fundamental” at all, but rather mere

grants of privilege by the state, removable at the whim of

the state.

D. Privacy Decisions grouped as reasons to grant this

Court's cert

Justice Louis Brandeis, in a quote famously attributed to

. him, described privacy as “the right to be let alone.”

To avoid state impairment of parental rights, one need

only be a "fit" parent:

Accordingly, so long as a parent adequately cares for

his or her children (i.e., is fit), there will normally be

' The Right of Privacy, Warren and Brandeis, Harvard Law Review,

Vol. IV, No. 5, December 15, 1890; quoting Cooley on Torts, 2d ed.,

p. 29 [p. 195 Note 4 in original].

20

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 best decisions concerning the

rearing of that parent's children. See, e.g., [Reno v. ]

Flores, 507 U. S. [292,] at 304.

Troxel et vir. v. Granville, supra 67.

The criterion for "fitness" does not require that a parent

conform to some arbitrary state-imposed definition or a

set of characteristics for personality, wealth, gender,

temperament or other individual trait, but only that one

"adequately cares for his or her children." As long as one

is fit in this regard, one is entitled to the full

Constitutional protection of one's private liberty interest

in family.

This Court has extended this right to privacy against

government interference in personal spheres

encompassing a protected liberty interest.

In Griswold v. Connecticut, 381 U.S. 479 (1965) this

Court found an independent right of privacy, derived

from the confluence of several provisions of the Bill of

Rights or discovered in the “penumbras” of these

provisions, which was expounded upon by the Court and

actually used to strike down a governmental restraint.

(“The Connecticut statute forbidding use of

contraceptives violates the right of marital privacy which

is within the penumbra of specific guarantees of the Bill

of Rights. Pp. 481-486.”) It is self-evident that both

government restraint as well as government compulsion,

as in the challenged statute here - mirroring the concepts

of prohibition and mandamus - are subject to

Constitutional scrutiny.

21

This Court expounded numerous manifestations of

personal privacy in Roe v. Wade, 410 U.S. 113 (1973):

..the Court has recognized that a right of personal

privacy, or a guarantee of certain areas or zones of

privacy, does exist under the Constitution. In varying

contexts, the Court or individual Justices have,

indeed, found at least the roots of that right in ...the

penumbras of the Bill of Rights, Griswold v.

Connecticut, 381 U.S., at 484 -485 ...in the concept of

liberty guaranteed by the first section of the

Fourteenth Amendment, see Meyer v. Nebraska, 262

U.S. 390, 399 (1923). ...These decisions make it clear

that only personal rights that can be deemed

"fundamental" or "implicit in the concept of ordered

liberty," Palko v. Connecticut, 302 U.S. 319, 325

(1937), are included in this guarantee of personal

privacy. They also make it clear that the right has

some extension to activities relating to marriage,

Loving v. Virginia, 388 U.S. 1, 12 (1967);

procreation, Skinner v. Oklahoma, 316 U.S. 535, 541

-542 (1942); ...family relationships, Prince v.

Massachusetts, 321 U.S. 158, 166 (1944); and child

rearing and education, Pierce v. Society of Sisters,

268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

Roe, supra, at 152.

The Indiana statutes revoke, restrict and constrain liberty

interests denying a right to privacy by injecting

government into the private realm of family.

22

E. Due Process Decisions With Respect To

Interpretation grouped as reasons to grant this

Court's cert

This Court has interpreted due different than the Appeals

Court of Indiana especially while determining what is in

the best interest of children.

In fact, however, procedural due process was never at

issue in the case below. All due process claims were

focused on the substantive component of due process.

Inherent in the substantive due process clauses of the

Fourteenth Amendment is the assumption that the law

under which process is due is itself valid and

constitutional, else “due process” becomes an empty

shibboleth of the judicial class and not a bulwark against

government tyranny.

There exists in the “law of the land” and the “due process

clauses” of the state constitutions a restriction upon the

substantive content of legislation, which prohibited,

regardless of the matter of procedure, a certain kind or

degree of exertion of legislative power altogether.

Thus, Chief Justice Taney was not innovating when in his

opinion in the Dred Scott case he pronounced, without

elaboration, that one of the reasons the Missouri

Compromise was unconstitutional was that an act of

Congress which deprived “a citizen of his liberty or

property merely because he came himself or brought his

property into a particular territory of the United States,

and who had committed no offence against the laws,

could hardly be dignified with the name of due process of

law.” Scott vy. Sandford, 60 U.S. (19 How.) 393, 450

(1857).

23

This Court has articulated the most profound and

historical meaning of the protection of due process:

It is now the settled doctrine of this Court that the

Due Process Clause embodies a system of rights

based on moral principles so deeply imbedded in the

traditions and feelings of our people as to be deemed

fundamental to a civilized society as conceived by our

whole history. Due Process is that which comports

with the deepest notions of what is fair and right and

just.

Solesbee v. Balkcom, 339 U.S. 9, 16 (1950) (Justice

Frankfurter dissenting).

According to this Court, due process is violated if a

practice or rule “offends some principle of justice so

rooted in the traditions and conscience of our people

as to be ranked as fundamental." Snyder v.

Massachusetts, 291 U.S. 97, 105 (1934).

A fundamental right to parent is a right to live and is most

assuredly substantive.

II. THE PETITION PRESENTS IMPORTANT

QUESTIONS OF FEDERAL CONSTITUTIONAL

LAW THAT THIS COURT SHOULD RESOLVE

Ultimately, this petition presents a simple question of

national importance.

All parents have a fundamental right to raise, educate and

socialize their own children. But, the statutes of Indiana

are laden with unconstitutional conditions. They purport

the child’s welfare to be paramount, not the child’s right

24

to be parented by both parents. The separated parents

must agree and cooperate before the state can preserve

and protect the fundamental rights of other American

citizens, namely their children. Parents that are separate,

without joint interest must act in a joint manner or their

children’s fundamental rights are revoked. Parents,

predominantly Dads, are declared non-custodial and

denied an equal opportunity to parent their own children,

denied a fundamental right solely for the purpose, if Dad

were to guess, only to preserve the state’s construct of a

suspect class.

The right of a parent to determine for themselves the

quality and nature of the upbringing of one's child are

both fundamental, essential rights well anchored in the

United States Constitution and the jurisprudential history

of this Court.

The Indiana statutes utilized to determine child custody

assume that parents in other than an intact marriage will

be scofflaws with respect to the health, safety and

economic security of their offspring. The statute directly

restricts activities entitled to the utmost constitutional

protection. While purporting to secure the state's interest

in ensuring that children of divorce are adequately cared

for, the statute does no such thing.

In the process of enforcing the statute, the state has

created a highly suspect class of persons — non-custodial

parents - that it then treats completely differently from

custodial parents, despite the fact that a// parents are

similarly situated with respect to their children. It

infringes the privacy of the family relationship and the

right of the parent - and the child - to be free of arbitrary

government intrusion in their personal affairs.

25

The constitutional injury that the Court of Appeals of

Indiana - and by implication, in its denial of transfer, the

Supreme Court of Indiana - have subjected a statute, the

review of which should be made under the strictest

scrutiny because the implicated rights are the most

fundamental, to the least rigorous standard of review, as

if the ‘rights’ in question were a division of marital

property.

CONCLUSION

For th foregoing reasons, Petitioner respectfully requests

that a writ of certiorari issue to review the judgment of

the Supreme Court of Indiana. On review, the judgment

of that Court should be reversed and the challenged

statutes held to be unconstitutional, void and have no

further force or effect.

Respectfully submitted,

Richard Eichinger

PRO SE

28 Jefferson Street

Brookville, OH 45309

937-255-3808 x3189 (office)

Petitioner

December 8, 2004

26

APPENDIX

APPENDIX

A Order of the Supreme Court of the State of Indiana,

Eichinger, Richard v. Eichinger, Christel, Cause No.

02A04-0401-CV-00012 September 9, 2004

Supreme Court, State of Indiana

217 State House

Indianapolis, Indiana 46204

Lower Court Number:

02C01-9903-DR-259

Eichinger, Richard -v- Eichinger, Christel

You are nereby notified that the Supreme Court has on

this day 9/09/04

This matter has come before the Indiana Supreme Court

on a petition to transfer jurisdiction following the

issuance of a decision by the Court of Appeals. The

petition was filed pursuant to Appellate Rule 57. The

Court has reviewed the decision of the Court of Appeals.

Any record on appeal that was submitted has been made

available to the Court for review, along with any and all

briefs that may have been filed in the Court of Appeals

and all of the materials filed in connection with the

request to transfer jurisdiction. Each participating

member of the Court has voted on the petition. Each

participating member has had the opportunity to voice

that justice’s views on the case in conference with the

other justices.

Being duly advised, the Court now denies the Appellant’s

Petition to Transfer of jurisdiction.

Randall T. Shepard, Chief Justice

All justices concur. MS

Witness my name and the seal of said Court, this 9" day

of September, 2004

David C. Lewis

Clerk, Supreme Court, Court of Appeals and Tax Court

B Order of the Court of Appeals of Indiana

Richard Eichinger, Appellant-Respondent, vs. Christel

Eichinger, Appellee-Plaintiff.

No: 02A04-0401-CV-12

Appeal from the Allen Circuit Court

The Honorable Thomas P. Boyer, Special Judge

Cause No. 02C01-9903-DR-259

May 7, 2004

Memorandum Decision — Not for Publication

Darden, Judge

Seal of the Clerk the Supreme Court, Court of Appeals

and Tax Court, filed May 7, 2004

a-2

STATEMENT OF THE CASE

Richard Eichinger appeals the denia! of his Motion for

Modification of Parental Responsibilities and Rights and

Parenting Time.

We affirm.

ISSUE

Whether Richard has met his burden to show that Indiana

Code Section 31-17-2-8, which authorizes the trial court

to determine custody and enter a custody order in

accordance with the best interest of the child is

unconstitutional.’

FACTS

In March 2001, the trail court dissolved the marriage of

Richard and Christel Eichinger and awarded sole custody

of their children to Christel. Richard was awarded

parenting time with the children pursuant to the terms and

conditions of the Allen County Standard Visitation Order

with certain modifications.

' Richard also argues that Indiana Code Sections 31-17-2-13 and 14

are unconstitutional. Section 13 provides that “[t]he court may award

legal custody of a child jointly if the court finds that an award of joint

legal custody would be in the best interest of the child.” Section 14

provides that “[a]n award of joint legal custody under section 13 of

this chapter does not require and equal division of physical custody

of the child.” Richard’s specific arguments, however, do not address

these statutes. We therefore confine our analysis to whether Richard

has met his burden of proof to show the unconstitutionality of section

8.

In April 2003, Richard filed a Motion for Modification of

Parental Responsibilities and Rights and Parenting Time,

wherein he argued that the dissolution decree and custody

order should be vacated because Indiana Code Sections

31-17-2-8, 13 and 14, all relating to child custody, are

unconstitutional. The trial court denied Richard’s motion

and he appeals.

DECISION

At the outset, we note that Christel has declined to file an

appellate brief. When an Appellee fails to file an

appellate brief, we apply a less stringent standard of

review. In re Adoption of R.L.R., 784 N.E.2d964, 968

(Ind. Ct. App. 2003). We may reverse if the appellant

establishes prima facie error. Id. Prima facie error is error

at first sight, first appearance, or in the face of it. Id. The

purpose of this rule is not to benefit the appellant, but to

relieve the court in proper circumstances of the task of

controverting the appellant’s arguments and contentions,

a burden that most appropriately rests with the Appellee.

Halliday v. Auburn Mobile Homes, 511 N.E.2d 1086,

1088 (Ind. Ct. App. 1987). However, the court is vested

with the discretion to consider the appellant’s contentions

and decide the case on the merits when the appellant has

- made the requisite showing of prima facie error. Id.

Where we can address the merits without the aid of an

Appellee’s brief, we will do so. Id. Such is the case

before us today. ;

Richard argues that the Indiana Code Section 31-17-2-8 is

unconstitutional. Specifically he claims that the child

custody statute that authorizes the trail court to determine

the custody and enter a custody order in accordance with

the best interests of the child violates his constitutional

rights to equal protection and substantive due process.”

When the validity of a statute is challenged, the reviewing

court begins with a presumption of constitutionality.

Glover v. State, 760 N.E.2d 1120, 1123 (Ind. Ct. App.

2002), trans. denied. The burden to rebut this

presumption is upon the challenger, and all reasonable

doubts must be resolved in favor of the statute’s

constitutionality. Id.

A. Equal Protection

_ Richard first contends that the Indiana Code Section 31-

17-2-8 violates his right to equal protection because he is

treated “differently from a married parent with respect to

-his freedom to raise his children and to chofo]se who

educates and socializes them.” Appellant’s Brief, p. 7.

The Equal Protection Clause of the Fourteenth

Amendment prohibits states from treating similar situated

individuals differently. Reilly v. Daly, 666 N.E.2d 439,

445 (Ind. Ct. App. 1996), trans. denied. It does not

require that all persons be treated either identically or

equally. Id. at 445-46. Rather, equal protection analysis

is implicated only if an individual has been treated

differently from similarly situated persons. Id. at 446.

Here Richard has failed to set forth any argument as to

? Richard also argues that the statute violates his constitutional right

to privacy. However, in his cursory argument, Richard has failed to

present any cogent analysis on this issue or cite any relevant

authority. Richard has therefore waived appellate review of this

issue. See Ind. Appellate Ru'e 46(A)(8)(a); Olcott International and

Company, Inc v. Micro Data Base Systems, Inc., 793N.E.2d 1063,

0168 (Ind. Ct. App. 2003), trans. denied.

a-5

how the challenged statute operates to treat him

differently from similarly situated parties. To the extent

that the statue operates evenhandedly in the context of

child custody situations, there is no unequal treatment and

Richard has failed to rebut the statute’s presumed

constitutionality.

B. Substantive Due Process

Richard next contends that Indiana Code Section 31-17-

2-8 “unconstitutionally infringes on his fundamental nght

to raise his children.” Appellant’s Br., p. 15. Specifically

he complains that the “so-called ‘best interests of the

child’ statute has been utilized by the court to effective

terminate [his] parental nights, when there was absolutely

no finding that he was unfit as a parent.” Appellant’s Br.,

p. 15.

The Fourteenth Amendment due process clause

recognizes a fundamental right to family integrity. Pence

v. Pence, 667 N.E.2d 798, 800 (Ind. Ct. App. 1996). A

fundamental nght to family integrity means that our

federal constitution, as a matter of substantive due

process, protects the private ordering of interpersonal

relationships from state intrusion. Id. State interference

may be justified only by a compelling state interest. Id.

In Pence, this court found that the best interests test set

forth in the visitation statute constituted a compelling

state interest that justified the resultant interference with

the nghts of the biological parents. Id. See also Matter of

Joseph, 416 N.E.2d 857, 861 (Ind. Ct. App. 1981)

(“[T]he decisions of this state reveal the ‘best interests’

standard has not been employed to make vague moral

- judgments about alternative lifestyles and parental fitness.

a-6

Instead, the process of effecting that which is ‘in the best

interests of the child’ has in fact been an effort by our

courts to preserve, and in some instances create, an

environment which, to the extent possible, meets the

‘need of every child for unbroken continuity of

affectionate and stimulating relationships with an adult.’

As such, the ‘best interests’ test without question

COMES NOW Petitioner, Christel U. Eichinger, in

person, and by counsel, Daniel L. Lauer, and Respondent,

Richard A. Eichinger, in person. A hearing is held on

Respondent’s Motion For Modification Of Parental

Responsibilities And Rights And Parenting Time, filed

April 14, 2003. The Court being duly advised in the

premises now FINDS, ORDERS, ADJUDGES AND

DECREES:

i.

The Court takes judicial notice of the prior findings

and orders in this matter.

On March 27, 2001, the Court entered a Decree Of

Dissolution Of Marriage with respect to the parties.

In the Decree, the Court entered certain orders

regarding custody and parenting time (visitation)

with respect to the parties’ minor children and

Respondent was granted parenting time with the

children pursuant to the terms and conditions of the

Allen count Standard Visitation Order with certain

modifications.

Respondent had not presented any evidence with

respect to modification of the aforesaid custody and

parenting time orders, but rather contends that the

orders should be vacated based upon his contention

that I.C. 31-17-2-8, I.C. 31-17-2-13, and LC. 31-17-

2-14 are unconstitutional.

The custody and parenting time orders in this case

were entered on March 27, 2001. The time frame for

challenging these orders by way of a Motion To

Correct Errors or by way of an appeal has expired.

a-8

5. The cased cited by Respondent do not support his

contention that the aforesaid statutes are

unconstitutional. It has long been recognized that a

parent’s custodial rights are not absolute, and the

State has a compelling interest in custody

proceedings.

6. In Duckworth v. Duckworth, 179 N.E.773 (Ind.

1932), the Indiana Supreme Court state as follows

with respect to the State’s interest in a custody

proceeding:

Three interests are involved in all questions

touching the custody of children, those of the

child, of the parents and of the State. In

determining disputes as to the custody of children,

the court acts as parens patriae and regards the

welfare of the child as the controlling

consideration. The interest of society and the

established policy of the law make the welfare of

the child paramount to the claims of the parent,

and the welfare of the child is the most controlling

of the three interest, since, upon its proper

determination, the other two are a great degree

dependent (Citations omitted).

7. In Gilchrist v. Gilchrist, 75 N.E.2d 417 (Ind. 1947),

the Indian Supreme Court noted that a parent’s right

to custody is not absolute:

The rights of parents, however, are not absolute.

They most yield to the welfare of the child. It’s

welfare and best interest are the paramount and

controlling considerations in all disputes over

the custody of a child. The disposition of

a-9

children is not controlled by hard and fast rules

of law but by the exercise of the sound judicial!

discretion of the court confronted with the

problem.

8. The Court does not find that the provisions of I.C.

31-17-2-8, LC. 31-17-2-13, or LC. 31-17-2-14, are

unconstitutional, and Respondent’s Motion For

Modification Of Parental Responsibilities And

Rights And Parenting Time, is denied.

Dated: 12-3-03

Signed: Thomas P. Boyer, Special Judge, Allen Circuit

Court

Copies to: Daniel L. Lauer, 7

Richard Eichinger, 13820 Hammerhill Way, Fort Wayne,

IN 46845

Date of Notice: 12/05/03

Initials of person giving notice: DB

DUS. Constitution: Fourteenth Amendment

Fourteenth Amendment - Rights Guaranteed Privileges

and Immunities of Citizenship, Due Process and Equal

Protection

Amendment Text

Section. 1. All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

a-10

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

E Constitution of the State of Indiana

Article 1 Bill of Rights

Section 1. Inherent rights

Section 1. WE DECLARE, That all people are created

equal; that they are endowed by their CREATOR with

certain inalienable rights; that among these are life,

liberty, and the pursuit of happiness; that all power is

inherent in the People; and that all free governments are,

and of right ought to be, founded on their authority, and

instituted for their peace, safety, and well-being. For the

advancement of these ends, the People have, at all times,

an indefeasible right to alter and reform their government.

(History: As Amended November 6, 1984).

F Constitution of the State of Indiana

Article 1 Bill of Rights

Section 23. Equal privileges and immunities

Section 23. The General Assembly shall not grant to any

citizen, or class of citizens, privileges or immunities,

which, upon the same terms, shall not equally belong to

all citizens.

\

G Indiana Code statute: IC 31-17-2-8

Custody order

Sec. 8. The court shall determine custody and enter a

custody order in accordance with the best interests of the

child. In determining the best interests of the child, there

is no presumption favoring either parent. The court shall

consider all relevant factors, including the following:

(1) The age and sex of the child. =

(2) The wishes of the child's parent or parents.

(3) The wishes of the child, with more consideration

given to the child's wishes if the child is at least fourteen

(14) years of age.

(4) The interaction and interrelationship of the child with:

(A) the child's parent or parents;

(B) the child's sibling; and

(C) any other person who may significantly affect the

child's best interests.

(5) The child's adjustment to the child's:

(A) home;

(B) school; and

(C) community.

(6) The mental and physical health of all individuals

involved.

(7) Evidence of a pattern of domestic or family violence

by either parent.

(8) Evidence that the child has been cared for by a de

facto custodian, and if the evidence is sufficient, the court

shall consider the factors described in section 8.5(b) of

this chapter.

As added by P.L.1-1997, SEC.9. Amended by P.L.96-

1999, SEC.7; P.L.133-2002, SEC. 32.

H_ Indiana Code statute: IC 31-17-2-13

Joint legal custody; finding required for award

Sec. 13. The court may award legal custody of a child

jointly if the court finds that an award of joint legal

custody would be in the best interest of the child.

As added by P.L.1-1997, SEC.9.

I Indiana Code statute: IC 31-17-2-14

Joint legal custody; division of physical custody

Sec. 14. An award of joint legal custody under section 13

of this chapter does not require an equal division of

physical custody of the - child.

As added by P.L.1-1997, SEC.9.

J Indiana Code statute: IC 31-17-2-15

Joint legal custody; matters considered in making

award

Sec. 15. In determining whether an award of joint legal

custody under section 13 of this chapter would be in the

best interest of the child, the court shall consider it a

matter of primary, but not determinative, importance that

the persons awarded joint custody have agreed to an

award of joint legal custody. The court shall also

consider:

(1) the fitness and suitability of each of the persons

awarded joint custody;

(2) whether the persons awarded joint custody are willing

and able to communicate and cooperate in advancing the

child's welfare; -

(3) the wishes of the child, with more consideration given

to the child's wishes if the child is at least fourteen (14)

years of age; and

(4) whether the child has established a close and

beneficial relationship with both of the persons awarded

joint custody; -

(5) whether the persons awarded ioint custody:

(A) live in close proximity to cach other; and

(B) plan to continue to do so; ana

(6) the nature of the physical and emotional environment

in the home of each of the persons awarded joint custody.

As added by P.L.1-1997, SEC.9.