Appendix O — Giampa v. Giampa (No. 09-502)

July 16, 2008

FROM: Victoria Giampa

1848 Wellington Court

Henderson, NV 89014

(702) 434-9027

superjanedoe@yahoo.com

TO: Joyce Woodhouse District 5

Jwoodhouse642@yahoo.com

ISSUE: Challenge to the Nevada Revised Statutes

Best Interests of the Children Statute

CONFIDENTIAL INFORMATION NOT

FOR DISSEMMINATION TO THE

GENERAL PUBLIC

QUESTION TO THE STATE OF NEVADA

LEGISLATURE:

WHETHER OR NOT PRESUMED “FIT”

PARENTS SHOULD BE WELL-DEFINED IN A

SEPARATE CATEGORY ‘SHARED CUSTODY

AND OMITTED UNDER THE BEST INTERESTS

OF THE CHILDREN STATUTE NRS 125.480

AND EXEMPT FROM THE FOLLOWING:

1. preparing for or participating in an evidentiary

hearing to determine “fitness” when the parties

had previously stipulated to who should be

awarded primary physical custody;

2. standing under the same umbrella with other

parents who are presumed to have physically or

emotionally or sexually abused or abandoned their

minor children;

3. participating in a psychological evaluation.

NOTE: THE COURT COULD IMPOSE SANCTIONS IF

THE FOLLOWING IS LEAKED TO THE GENERAL

PUBLIC AND/OR THE LEGISLATURE.

Ms. Woodhouse, my particular case is “under seal” and gag

order and all confidential information is prohibited from

wide dissemination and viewing from the public or from

disclosure of any confidential information. Following is a

synopsis from a motion submitted to Family Court and

concerns the pertinent part of my constitutional challenge.

If it is at all possible, I would prefer that the synopsis not be

included as part of the Question.

VICTORIA argues that in 2005, the Family Law Section of

the State Bar of Nevada filed amicus curiae briefs for the

Court’s participation in the determination of joint physical

custody in the case of Potter v. Potter, 121 Nev. 613, 119

P.3d 1246. The Family Law Section requested that the

Court address the following with regard to joint physical

custody:

1.) the definition of joint physical custody;

3.) whether joint physical custody for the purposes of

NRS 125C.200 has to be equal;

3.) whether a specific time share constitutes joint

physical custody, and

4.) whether joint physical custody is defined by the

courts or by the parties.

VICTORIA argues that because the Nevada Legislature

failed to address and define joint physical custody by the

time Judge Sanchez awarded joint physical custody to both

parties in this case, it infringed on VICTORIA'S substantive

constitutional rights and totally deprived her ofa

fundamental right to a parent-child relationship of her two

children. VICTORIA also contends that when interpreting

a statute, any doubt as to legislative intent must be resolved

in favor of what is reasonable, and against what is

unreasonable, so as to avoid absurd results. Cragun v.

Nevada Pub. Employees’ Ret. Bd., 92 Nev. 202, 205, 547

P.2d 1356, 1358 (1976).

VICTORIA also challenges the constitutionality of the best

interest of the children statute and argues that Nevada

Revised Statute is void for vagueness because it fails to

define “joint custody.” VICTORIA contends that the Nevada

Courts have defined when a “statute is void for vagueness if

“'..a person of ordinary intelligence cannot understand what

conduct is prohibited and is predicated upon its repugnancy

to the due process clause of the Fourteenth Amendment...”

in that it encourages arbitrary and _ discriminatory

enforcement. VICTORIA challenges the constitutionality of

the best interest of the children statute and argues that an

award of “joint custody” is unconstitutional when the

legislature and the courts had not yet defined what “joint

custody” is in that persons of ordinary intelligence have a

vague understanding of NRS 125.480 which states in

pertinent part:

1. In determining custody of a minor child in an action

brought under this chapter, the sole consideration of the

court is the best interest of the child. If it appears to the

court that joint custody would be in the best interest of

the child, the court may grant custody to the parties

jointly.

2. Preference must not be given to either parent for the

sole reason that the parent is the mother or the father of

the child.

3. The court shall award custody in the following order of

preference unless in a particular case the best interest of

the child requires otherwise:

(a) To both parents jointly pursuant to NRS 125.490 or to

either parent. If the court does not enter an order

awarding joint custody of a child after either parent has

applied for joint custody, the court shall state in its

decision the reason for its denial of the parent's

application.

(b) To a person or persons in whose home the child has

been living and where the child has had a wholesome and

stable environment.

(c) To any person related within the third degree of

consanguinity to the child whom the court finds suitable

and able to provide proper care and guidance for the child,

regardless of whether the relative resides within this State.

(d) To any other person or persons whom the court finds

suitable and able to provide proper care and guidance for

the child.

VICTORIA further challenges the constitutionality of the

best interest of the children statute and argues that NRS

125.480 is also void for vagueness because it goes against

the policy of preserving the sanctity of “...a parent's

interests in the nurture, upbringing, companionship, care,

and custody of children which are generally protected by the

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Due Process Clause of the Fourteenth Amendment.” ‘The

Supreme Court of the United States acknowledges in Meyer

v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed.

1042 (1923), “the right of parents to “bring up children,” 262

U.S., at 399, 43 S.Ct. 625, and to control the education of

their own” is protected by the Constitution, id., at 401, 43

S.Ct. 625. VICTORLA further challenges the

constitutionality of the best interest of the children statute

and argues that this Court failed to consider some of the

other relevant factors other jurisdictions have found to be

relevant in determining whether to grant joint physical

custody to the parties, Taylor, 306 Md. 290, 508 A.2d 964:

1.) the willingness of parents to share custody; 2.) the

potential disruption of the child’s social and school life; 3.)

the geographic proximity of the parental homes; 4.) the

demands of parental employment; and 5.) the sincerity of

the parents’ request.

VICTORIA contends that the Supreme Court of Washington

invalidated its statute because it authorized a contested

visitation order at the intrusive behest of any person at any

time subject only to a best-interests-of-the child standard.

In construing their statute, the state court explained that

the “any person” at “any time” language was to be read

literally, 137 Wash.2d at 10-11, 969 P.2d, at 25-27, and that

“[m]Jost notably the statute does not require the petitioner to

establish that he or she has a substantial relationship with

the child,” id., at 20-21, 969 P.2d, at 31. Although the

statute speaks of granting visitation rights whenever

“visitation may serve the best interest of the child,” Wash.

Rev.Code § 26.10.160(3), the state court authoritatively read

this provision as placing hardly any limit on a court's

discretion to award visitation rights. As the court

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understood it, the specific best-interests provision in the

statute would allow a court to award visitation whenever it

thought it could make a better decision than a child’s parent

had done.

VICTORIA challenges the constitutionality of the best

interest of the children statute and argues that the Supreme

Court of Nevada should invalidate this statute because it is

also void for vagueness. VICTORIA contends that the

following phrase is a non sequitur [the 24 sentence does not

logically follow the 1**]. “In determining custody of a minor

child in an action brought under this chapter, the_sole

consideration of the court is the best interest of the child. If

it appears to the court that joint custody would be in the best

interest of the child, the court may grant custody to the

parties jointly. VICTORIA argues that if the Nevada

Legislature had not yet defined what joint custody is, then

the (2) sentences are incompatible with each other's

principals and thus void for vagueness. It authorizes a

contested custody order at the intrusive behest of the other

party without defining “joint custody” subject only to a best-

interests-of-the child standard. VICTORIA argues that in

construing the statute, that the statute does not mandate

that an investigation be conducted to establish that the

parties meet all the factors in NRS 125.4804(a) through 4(j).

Although the statute speaks of granting a modification of

custody rights whenever custody may serve the best interest

of the child, the Nevada State Court authoritatively reads

this provision as placing hardly any lmit on a court’s

discretion to an award of modification of joint custody

rights. As the court understood it, the specific best-

interests provision in the statute would allow a court to

award a modification of joint custody whenever it thought it

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could make a better decision than the children’s parent had

done by 1.) depriving the parents an opportunity to conduct

an investigation, 2.) depriving the parents an opportunity to

define what joint custody is, and 3.) depriving the parents

an opportunity to agree to a parenting plan pursuant to

Nevada Revised Statutes.

In addition, VICTORIA challenges and brings to the court’s

attention NRS 125.520 [Plan for carrying out court’s order;

access to child’s records] which this Court again failed to

implement and reads in pertinent part:

1. The court may, when appropriate, require the parents

to submit to the court a plan for carrying out the court’s

order concerning custody.

2. Access to records and other information pertaining to a

minor child, for example, medical, dental and _ school

records, must not be denied to a parent for the reason that

the parent is not the child’s custodial parent.

VICTORIA further challenges and brings to the court’s

attention that reasonable “fit” parents would conclude that

because the legislature failed to define “joint custody,” this

Court in actuality cannot implement nor Order any of its

sub-parts without first defining what ‘joint custody is.”

NRS 125.510 states in pertinent part: Court orders;

modification or termination of orders; form for orders; court

may order parent to post bond if parent resides in or has

significant commitments in foreign country.

1. In determining the custody of a minor child in an action

brought pursuant to this chapter, the court may, except as

otherwise provided in this section and chapter 130 of NRS:

(a) During the pendency of the action, at the final hearing

or at any time thereafter during the minority of any of the

children of the marriage, make such an order for the

custody, care, education, maintenance and support of the

minor children as appears in their best interest; and

(b) At any time modify or vacate its order, even if the

divorce was obtained by default without an appearance in

the action by one of the parties.

O The party seeking such an order shall submit to the

jurisdiction of the court for the purposes of this subsection.

The court may make such an order upon the application of

one of the parties or the legal guardian of the minor.

VICTORIA challenges the constitutionality of the best

interest of the children statute and argues that reasonable

“fit” parents would have a difficult time understanding that

their rights as joint custodians could be modified or

terminated by the Court at any time — even though the

legislature failed to give a well-defined definition for the

term “joint custody.”

2. Any order for joint custody may be modified or

terminated by the _court_upon the petition of one or both

parents or on the court’s own motion if it is shown that the

best interest of the child requires the modification or

termination. The court shall state in its decision the

reasons for the order of_modification or termination if

either parent opposes it.

VICTORIA challenges the constitutionality of the best

interest of the children statute and argues that similarly,

reasonable “fit” parents would have a difficult time

understanding that their rights as joint custodians is broad

enough to include anyone [and that includes sexual

predators and abusersj for any reason without clarifying

whether that person is “fit” or “unfit” to be included in the

vague definition of “joint custody.”

3. Any order for custody of a minor child or children of a

marriage entered by a court of another state may, subject

to the jurisdictional requirements in chapter 125A of NRS,

be modified at any time to an order of joint custody.

4. A party may proceed pursuant to this section without

counsel.

VICTORIA further challenges the constitutionality of the

best interest of the children statute and argues that the sole

reason for keeping “fit” parents in the un-defined definition

of “joint custody” is a presumption that they are employed,

have an education, and have the finances to litigate for a

change of custody for the attorneys own fortune,

enrichment and greed to the detriment of the family and the

children. VICTORIA further reasons that a substitute for

fault-based divorce is now fault-based child custody, pitting

“fit” parents against each other and silently shifting the

burden from a preponderance of evidence and applying an

unevenhanded unspoken heavier burden of clear and

convincing evidence. VICTORIA further reasons that the

Nevada Legislature has authority to find that “fit” parents

should be well-defined in the statute and should also be

exempt from:

4. preparing for or participating in an evidentiary

hearing to determine “fitness” when the parties

had previously stipulated to who should be

awarded primary physical custody:

5. standing under the same umbrella with other

parents who are presumed to have physically or

emotionally or sexually abused or abandoned their

minor children;

6. participating in a psychological evaluation.

VICTORIA challenges the constitutionality of the best

interest of the children statute and argues that reasonable

“fit” parents would have a difficult time understanding that

their rights as joint custodians could be deliberately ignored

and modified or terminated by the Court at any time — even

though the legislature failed to give a well-defined definition

for the term “joint custody” and yet memorialize its un-

defined definition in Findings of Facts and Conclusions of

Law:

5. Any order awarding a party a limited right of custody

to a child must define that right with sufficient

particularity to ensure that the rights of the parties can be

properly enforced and that the best interest of the child is

achieved. The order must include all specific times and

other terms of the limited right of custody. As used in this

subsection, “sufficient particularity” means a statement of

the rights in absolute terms and not by the use of the term

“reasonable” or other simular term which ts susceptible to

different interpretations by the parties

VICTORIA challenges the constitutionality of the best

interest of the children statute and argues that reasonable

“fit” parents would have a difficult tume understanding that

their rights as joint custodians could be limited by the Court

at any time — even though the legislature failed to give a

well-defined definition for the term “joint custody” - and

1)

memorialize its Findings of Facts and Conclusions of Law

even though “fit” parents had previously stipulated 3 times

and memorialized their agreement in a Parenting Plan that

they retain rights as joint custodians:

6. All orders authorized by this section must be made in

accordance with the provisions of chapter 125A of NRS

and must contain the following language:

PENALTY FOR VIOLATION OF ORDER: THE

ABDUCTION, CONCEALMENT OR DETENTION OF A

CHILD IN VIOLATION OF THIS ORDER IS

PUNISHABLE AS A CATEGORY D FELONY AS

PROVIDED IN NRS 193.130. NRS 200.359 provides that

every person having a limited right of custody to a child or

any parent having no right of custody to the child who

willfully detains, conceals or removes the child from a

parent, guardian or other person having lawful custody or

a right of visitation of the child in violation of an order of

this court, or removes the child from the jurisdiction of the

court without the consent of either the court or all persons

who have the right to custody or visitation is subject to

being punished for a category D felony as provided in NRS

193.130.

VICTORIA challenges the constitutionality of the best

interest of the children statute and argues that reasonable

“fit” parents would have a difficult time understanding that

a culture of indifference permeates Family Court against

minor children age 15 and older and that this culture of

indifference is perpetuated by this Family Court. That this

Court could cut off a minor child’s rights to be guided and

nurtured by either parent and the child’s rights could cease

at any time before a minor child age 15 or older reaches the

age of majority. VICTORIA contends that NRS 125.510

Vl

must be strictly construed, and when a statute is clear on its

face, the Courts will not look beyond the statute’s plain

language which states 1n pertinent part:

9. Except where a contract providing otherwise has been

executed pursuant to NRS 123.080, the obligation for care,

education, maintenance and support of any minor child

created by any order entered pursuant to this section

ceases:

(a) Upon the death of the person to whom the order was

directed; or

(b) When the child reaches 18 years of age if he is no longer

enrolled in high school, otherwise, when he reaches 19

years of age.

VICTORIA contends that the usual test to determine

whether her procedural due process rights have been

violated is set forth in Mathews v. Eldridge, 424 U.S. 319,

335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and the factors the

United States Supreme Court considers are:

1. the private interest that will be affected by the

official action;

z: the risk of an erroneous deprivation of the private

interest through the procedures used; and the

probable value, if any, of additional or substitute

procedural safeguards; and

3. finally, the government’s interest, including...the

fiscal and administrative burdens that the

additional or substitute procedural requirement

would entail.

VICTORIA challenges the constitutionality of the best

interest. of the children statute and argues that the parties

did not_agree to an award of joint custody and this court

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failed to conduct a hearing for the purposes of determining

the custody of the minor children; so consequently the

parties failed to meet the 1st step in NRS 125.490:

1. There is a presumption, affecting the burden of proof

that joint custody would be in the best interest of a minor

child if the parents have agreed to an award of joint

custody or so agree in open court at a hearing for the

purpose of determining the custody of the minor child or

children of the marriage.

VICTORIA challenges the constitutionality of the best

interest of the children statute and argues that the parties

did not agree to joint legal custody and this court failed to

conduct a hearing for the purposes of determining the

custody of the minor children; so the parties failed to meet

the 2nd step in NRS 125.490:

2. The court may award joint legal custody without

awarding joint physical custody in a case where the

parents have agreed to joint legal custody.

VICTORIA challenges the constitutionality of the best

interest of the children statute and argues that since the

parties failed to meet the 1S* and 274 steps pursuant to NRS

125.490 that the parties’ only recourse was the Court’s

enforcement of the last and final step and that is that an

investigation be conducted for the purposes of assisting the

parties in making a determination whether an award of

joint custody is appropriate. VICTORIA contends that the

statute is void for vagueness because it encourages the

Court’s arbitrary and discriminatory enforcement and it

lacks specific language on what conduct is prohibited by the

13

parties. This Court failed to conduct an investigation 1.)

into the party leaving the children alone without parental

supervision; 2.) into the party parenting from his cell phone

as evidenced by Sprint records; 3.) into Las Vegas

Metropolitan Police Department well-checks; and 4.) into

the party’s lease agreement for an apartment leaving the

minor children alone and unsupervised before making a

determination as to whether to award joint custody and

whether it is appropriate as provided for pursuant to NRS

125.490(3):

3. For assistance in making a determination whether an

award of joint custody is appropriate, the court may direct

that an investigation be conducted.

VICTORIA also argues that Judge Sanchez commits error

by applying NRS 125.490 in a joint physical custody

arrangement when the Nevada Legislature had not yet fully

addressed the issue of defining joint physical custody.

VICTORIA challenges the constitutionality of the best

interest of the children statute and argues that the statute

is void for vagueness when it fails to address the definition

of joint custody, fails to make a distinction between sharing

parental responsibility in major decision-making matters

and sharing responsibility for providing a home for the

children. VICTORIA argues that because Judge Sanchez

failed to allow the parents to make their own parenting plan

as a joint physical custody arrangement in light of the

statutory definition of “joint custody,” this Court deprived

VICTORIA any significant period of time during which the

children could possibly reside with or is under the care and

supervision of each of the parents. VICTORIA challenges

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the constitutionality of the best interest of the children

statute and argues that the statute regarding “joint custody”

is also too narrowly tailored so as to serve a compelling

interest. In addition, Judge Sanchez fails to conduct a

reasonableness test “which implicitly calibrates the level of

scrutiny in each custody proceeding case to match the

particular degree of intrusion on the parents’ interests.”

David D. Meyer, Lochner Redeemed: Family Privacy After

Troxel and Carhart, 48 UCLA L.Rev. 1125 (2001).

VICTORIA challenges the constitutionality of the best

interest of the children statute and argues that Judge

Sanchez with deliberate indifference infringed on her

procedural due process rights by depriving her of proper

notice and the opportunity to be heard without issuing

independent Findings of Facts and Conclusions of Law

based on the factors outlined in NRS 125.490, Joint Custody

and voids this Court’s Order which states in pertinent part:

: There is a presumption, affecting the burden of

proof, that joint custody would be in the best

interest of a minor child if the parents have agreed

to an award of joint custody or so agree in open

court at a hearing for the purpose of

determining the custody of the minor child or

children of the marriage:

z. The court may award joint legal custody without

awarding joint physical custody in a case where the

parents have agreed to joint custody;

3. For assistance in making a determination whether

an award of joint custody is appropriate, the court

may direct that an investigation be conducted.

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VICTORIA also contends that due process requires proper

“notice reasonably calculated, under all the circumstances,

to apprise interested parties of the pendency of the action

and afford them an opportunity to present their objections.”

Mullane v. Cent. Hanover Bank & Trust Co., 339 IU.S. 306,

314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).