Prologue — Grabill v. Grabill (No. 05-1178)

Suprems Cot @.

05117 8 MAR 1 4 2006

ap No.

OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

RUSSELL GRABILL,

Petitioner

JESSICA GRABILL,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

PETITION -FOR WRIT OF CERTIORARI

Laura D. Maitney

Attorney for Petitioner

MATNEY LAW FIRM, LLC

15200 Shady Grove Road, Suite 350

Rockville, MD 20850

(301) 279-7200

: QUESTIONS PRESENTED

I. Does this Court’s previously published

interpretation of the United States Constitution call for all

States to have a rebuttable presumption of Joint Legal

Custody unless there is a strong reason not to Order this,

such as a finding by the court of “abuse, abandonment, or

parental unfitness?”

II. Does this Court’s previously published

interpretation of the United States Constitution call for all

States to have a rebuttable presumption of Joint Physical

Custody unless there is a strong reason not to Order this,

such as a finding by the court of “abuse, abandonment, or

parental unfitness?”

Ill. Does this Court’s previously published

interpretation of the United States Constitution call for all

States to at least have to first consider Joint Legal and Joint

Physical Custody before considering Sole Custody?”

IV. Does the United States Constitution call for

all States to have a rebuttable presumption of Joint Legal and

Physical Custody unless there is a strong reason not to Order

this, such as a finding by the court of “abuse, abandonment,

or parental unfitness,” or at least have to first consider Joint

Custody before considering Sole Custody, due to the Child

having a fundamental right to a rebuttable presumptive nght

to the equal access and input of both parents?”

li

V. Does the United States Constitution call for

all States to have a rebuttable presumption of Joint Legal and

Physical Custody unless there is a strong reason not to Order

this, such as a finding by the court of “abuse, abandonment,

or parental unfitness,” or at least have to first consider Joint

Custody before considering Sole Custody, due to each of the

parents having a fundamental mght to a rebuttable

presumptive right to the equal access and input regarding

his/her Child (i.e., not based on previously published

interpretation by this Court, but which, may in the future be

found by this Court)?

VI. Is Maryland Code Ann. Fam. Law Art.

Title 9: Child Custody and Visitation regarding custody

repugnant to this Court’s previously published interpretation

of the United States Constitution (or to any interpretation not

yet published by this Court) because it does not require

courts to consider Joint Custody?

VII. Did the Court of Special Appeals of Maryland

err and violate Petitioner’s Fundamental Constitutional nghts

in Grabill v. Grabill, Case No. 02831, September Term,

2004, in affirming the lower Court’s decision which failed to

consider Joint Custody despite the fact that no abuse,

abandonment, or parental unfitness was found by the Court?

ili

TABLE OF CONTENTS

Page

RNIN UII ik hic ca cheb aw skew esesues i

Ree I Was a ee ee eee cs li

FORM GF Cited AMEONHICS ne ease css ill

Petition For Writ Of Certiorari ................ l

tO Ue ree eae er ee Coe

SURES GE TUTTO no. oie i keen 2

Notification of State Attorney General ........ 3

Constitutional provisions involved ............ 3

seen OT GN CNS as oe ee keeycsss 6

Reasons for Granting the Wnt ............... 15

I. The Federal Questions .......... | 15

Ul. State Courts Disagree .......... 20

Il. | What Review Will Provide ....... 24 -

Conclusion > 27

iV

TABLE OF CITED AUTHORITIES

CASES

Page

United States Supreme Court

Meyer v. Nebraska, 262 U.S. 390, 399, 401

BSc wwe Ramee Fe a en eta ek 4,17

Parham v. J. R., 442. U.S. 584, 602

ERP PeE ask Curva aa oa eee ee eas 5, 18

Pierce v. Society of Sisters, 268 U. S$. 510, 534-535

EXER Se Sein ced pau ein bas ST ees 4,17

Prince v. Massachusetts, 321 U.S. 158

CUR. irs ie ie as 4,17

Quilloin v. Walcott, 434 U. S. 246, 255

COPTER is Sea RASA ees OR eh oe 5, 18

Reno v. Flores, 507 U.S. 292, 301-302 (1993) ... 4,16

Santosky v. Kramer, 455 U.S. 745, 753 (1982) .... 6,18

Stanley v. Illinois, 405 U.S. 645, 651 (1972) ...... 5,17

Troxel v. Granville, 530 U.S. 57 (2000) .......... 3, 16

Washington v. Glucksberg, 521 U.S. 702, 719

CI i ined Os RK oe te 4,16

Wisconsin v. Yoder, 406 U. S. 205, 232 (1972)

State Courts

Chalupa v. Chalupa, 830 S.W.2d 39,

‘ae, 3s. «: SARS AA a bie Pree

In the Interest of A. R. B., a child, 433 $.E.2d 411

CP SOT os oes ATS reece es

STATUTES:

ON Ba Si aes.

D.C. Code

§ 16-914 B (2) Custody of children ..........

Ga. Code

eh Se ee Dr i ke wns Wh aw

Maryland Code

Maryland Code Ann. Fam. Law Art.

Title 9: Child Custody and Visitation .....

PETITION FOR A WRIT OF CERTIORARI

Russell Grabill petitions for a Writ of Certiorari to

review the judgment of the Court of Special Appeals of

Maryland. No. 02831, September Term, 2004 (unreported

opinion by Davis, J., filed September 30, 2005; Mandate

issued on October 17, 2005, and certiorari denied by the

Court of Appeals of Maryland on December 21, 2005), and

to review the part(s) of the Maryland Code regarding

Custody (Maryland Code Ann. Fam. Law Art. Title 9: Child

Custody and Visitation).

OPINIONS BELOW

The September 30, 2005 Unreported Opinion of

the Court of Special Appeals of Maryland in Case No 2831,

affirmed the Judgment of the Circuit Court (2a-14a). The

Mandate was issued on October 17, 2005 (15a). The Petition

for Writ of Certiorari to the Court of Appeals of Maryland

was denied on December 21, 2005 (1a).

The Court of Special Appeals of Maryland affirmed

the Judgment of the Circuit Court for Frederick County

(Case No. C-04-1771), which had a trial date of January 4,

2005 and the resulting pendente lite Order (16a — 19a) and

Order denying Plaintiffs Motion To Alter Or Amend

Judgment (20a) were both entered on February 11, 2005.

STATEMENT OF JURISDICTION

A state court of last resort has decided an important

federal question in a way that conflicts with the decision of

another state court of last resort, and a state court of last

resort has decided an important question of federal law in a

way that conflicts with relevant decisions of this Court, and a

state court of last resort has decided an important federal

question that has not been, but should be, settled by this

Court.

In addition, jurisdiction of this Court is invoked under 28

US.C. § 1257.

28 U.S.C. § 1257 (a) Section 1257. State

courts; certiorari

(a) Final judgments or decrees rendered

by the highest court of a State in which a

: decision could be had, may be reviewed by

the Supreme Court by wnit of certiorari where

the validity of a treaty or statute of the United

States is drawn in question or where the

validity of a statute of any State is drawn in

question on the ground of its being repugnant

to the Constitution, treaties, or laws of the

United States, or where any title, nght,

privilege, or immunity is specially set up or

claimed under the Constitution or the treaties

or statutes of, or any commission held or

authority exercised under, the United States.

Maryland Code Ann. Fam. Law Art., Title 9: Child

Custody and Visitation, does not require a presumption of

Joint Custody, or even that the Courts consider it. This is

repugnant to this Court’s previous published interpretation of

the United States Constitution.

Rule 10 of the Rules of this Court states that the above

“are neither controlling nor fully measuring the Court’s

discretion . . .” to grant a Writ of Certiorari. The facts

involved and fundamental nights at issue in this case call for

an exercise of this Court’s supervisory power. :

NOTIFICATION OF STATE ATTORNEY

GENERAL

Counsel for Petitioner mailed a copy of the foregoing

Petition For Writ Of Certiorari via Overnight U.S. mail,

postage prepaid, to the Attorney General of Maryland, J.

Joseph Curran, Jr., Office of the Attorney General, 200 St.

Paul Place, Baltimore, MD 21202.

CONSTITUTIONAL PROVISIONS INVOLVED

As summarized by this Court in Troxel v. Granville,

530 U.S. 57, 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 (1997). The Clause also

includes a substantive component that

"provides heightened protection against

government interference with certain

fundamental rights and liberty interests." Jd.,

at 720; see also Reno v. Flores, 507 U.S.

292, 301-302 (1993).

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. More than 75

years ago, in Meyer v. Nebraska, 262 U.S.

390, 399, 401 (1923), we held that the

"liberty" protected by the Due Process

Clause includes the nght of parents to

"establish a home and bring up children"

and "to control the education of their own."

Two years later, in Pierce v. Society of

Sisters, 268 U.S. 510, 534-535 (1925), we

again held that the "liberty of parents and

guardians” includes the mght "to direct the

upbringing and education of children under

their control." We explained in Pierce that

"[t]he child is not the mere creature of the

State; those who nurture him and direct his

destiny have the night, coupled with the high

duty, to recognize and prepare him for

additional obligations." /d., at 535. We

returned to the subject in Prince v.

Massachusetts, 321 U.S. 158 (1944), and

again confirmed that there is a constitutional

dimension to the right of parents to direct

the upbringing of their children. "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." /d.,

at 166.

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

(1972) ("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’ " (citation

omitted)); Wisconsin v. Yoder, 406 U.S.

205, 232 (1972) ("The history and culture of

Western civilization reflect a strong tradition

of parental concern for the nurture and

upbringing of their children. This primary

role of the parents in the upbringing of their

children is now established beyond debate as

an enduring American tradition"); Quilloin

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

have recognized on numerous occasions that

the relationship between parent and child is

constitutionally protected"); Parham v. J. R.,

6

442 U.S. 584, 602 (1979) ("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"); Santosky v. Kramer,

455 U.S. 745, 753 (1982) (discussing "[t]he

fundamental liberty interest of natural

parents in the care, custody, and

management of their child"); Glucksberg,

supra, at 720 ("In a long line of cases, we

have held that, in addition to the specific

freedoms protected by the Bill of Rights, the

‘liberty’ specially protected by the Due

Process Clause includes the ngh[t] ... to

direct the education and upbringing of one's

children” (citing Meyer and Pierce)). 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.

STATEMENT OF THE CASE

The Court of Special Appeals of Maryland affirmed

the Judgment of the Circuit Court for Frederick County

(Case No. C-04-1771), which had a trial date of January 4,

2005 and the resulting pendente lite Order and Order

denying Plaintiff's Motion To Alter Or Amend Judgment