BRIEF
IN SUPPORT OF MOTION FOR EQUAL PARENTAL RIGHTS AND DENIAL OF CONSTITUTIONAL AND CIVIL RIGHTS

Mitchell Sanderson and Cheryl Harlow were divorced in August of 2003. The Plaintiff was never found to be an unfit parent or a danger to the children yet was stripped of his Constitutional right to be a parent. He was discriminated against which is prohibited by the Fourteenth Amendment of the United States Constitution.
2.
The Judiciary, Donovan Foughty, has refused to grant a change of visitation and custody using the high conflict excuse alleging myself to be hostile with Cheryl. The US Supreme Court has ruled that only a finding of unfitness can be used to deny custody! No fitness hearings were ordered in this divorce case when requested by the Plaintiff. Article XI Section 4 of the North Dakota Constitution states: Members of the legislative assembly and judicial department, except such inferior officers as may be by law exempted shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation: “I do solemnly swear (or affirm as the case may be) that I will support the Constitution of the United States and the Constitution of the State of North Dakota; and that I will faithfully discharge the duties of the office of _________ according to the best of my ability, so help me God” (if an oath), (under pains and penalties of perjury) if an affirmation, and no other oath, declaration, or test shall be required as a qualification for any office or public trust. A court faced with a motion to dismiss a pr se complaint must read the complaint allegations expansively, Hainses v. Kerner, 404 U. S. 519, 520-21, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972), and take them as true for purposes of deciding whether they state a claim. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972). More over, the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory. Bonner v. Circuit Court of St. Louis, 526 F. 2d 1331 1334 (8th Cir. 1975) (quoting Bramlet V. Wilson, 495 F. 2d 714, 716 (8th Cir. 1974)).
3.
I challenge this court to find any domestic violence or abuse against Cheryl Harlow or our children. You cannot find any such conflict! I as well challenge this court to find judge Gieger’s findings to be factual! You cannot! The only problem here is a hateful controlling former wife trying to keep a loving father from his children with perjury and a family law system that allows such behavior to continue. This system is the fault creating and allowing conflict in divorce cases.
4.
All courts are bound by law to follow the law. The Walsh County district court failed to abide by Constitutional law and higher court rulings on parent rights. In doing so the custody order in the divorce case 03-C-57 is null and void due to it is an unconstitutional act due to no custody can be lost by the Plaintiff unless first found unfit or a danger to the children!. The best interest standard for taking away custody is null and void due to the fact that both parents can be found to be fit yet the courts award custody to the mother in over 90% of custody cases creating two fit natural parents into different classes is patently unconstitutional. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby County, 188 U.S. 425 (1886)1. The United States Supreme Court Has long and consistently held that the care, custody, maintenance, management, companionship, education choices, and general child-rearing decisions related to one’s children are fundamental rights protected by the Federal Constitution. As such any action by any person or entity, whether it be by a person acting alone, in conjunction with another, directly or indirectly, by any State entity, or demonstrated by a pattern of deprivations generally attributable to the State itself, that intrude upon these fundamental right, are patently unconstitutional until, and unless, first validated by a substantially compelling State interest Applied with strict scrutiny, and only performed in the least intrusive manner. The State is not permitted to intrude upon these right of the natural parent without clear and convincing proof of demonstrable harm to the children in question. The United States Supreme Court has consistently reminded that there is a presumption that fit parents act in their children’s best interest, and that there is normally no reason for the State to inject itself into the realm of the family to further question fit parents’ ability to make the best decisions regarding their children.
5.
Hopt v. Utah, 110 U.S. 574 (1884). Judicial solutions to problems of constitutional dimension have evolved decade by decade. As courts have been presented with the need to enforce constitutional rights, they have found means of doing so. That was our responsibility when Escobedo was before us and it is our Page 491 responsibility today. Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.
6.
Article I Section 21 of the North Dakota Constitution: No special privileges or immunities shall ever be granted which may not be altered, revoked or repealed by the legislative assembly; nor shall any citizen or class of citizens be granted privileges or immunities which upon the same terms shall not be granted to all citizens. Over 90% of custody is given to mothers (without ever declaring a father unfit) in divorce cases, this is a clear bias and special privilege in our courts and cannot be legally allowed by law. The Plaintiff is demanding his equal parenting rights be restored due to he is a fit parent and no danger to the children.
7.
LEGALITY OF PARENTAL RIGHTS
14-09-06 “Priority of custody of father and mother” The husband and father and wife and mother have equal rights with regard to the care, custody, education, and control of the children of the marriage, while such husband and wife live separate and apart from each other,…
The Plaintiff has been unlawfully stripped of these equal rights.
8.
“a (once) married father who is separated or divorced from a mother and is no longer living with his child” could not constitutionally be treated differently from a currently married father living with his child.  Quilloin v. Walcott, 98 S.Ct.549; 434 U.S. 246, 255-56, (1978)
9.
Parenting is a fundamental right protected by the 5th and 14th amendments. This has been established in Troxel v. Granville, 530 U.S. 99-138 (2000), Santosky v. Kramer, 102 S Ct 1388; 455 U.S. 745 (1982) and Quilloin v. Walcott, 98 S Ct 549; 434 U.S. 246, 255 Q56 (1978), among other cases. Treating parental rights as fundamental rights requires a presumption of joint legal and joint physical care upon divorce and through litigation. The Fourteenth Amendment’s due process clause has a substantitive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests, “Washington v. Glucksberg, 521 U.S. 702, 720, including parents’ fundamental right to make decisions concerning the care, custody, and control of their children, see e.g., Stanley v Illinois, 405 U.S. 645, 651, Pp. 5-8. Troxel v Granville. U.S. Supreme Court, June 5, 2000.
10.
There is a presumption that fit parents act in their children’s best interests, Parham v. J.R., 442 U.S. 584, 602; there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their children, see e.g., Reno v. Flores, 507 U.S. 292, 304. Troxel v Granville. U.S. Supreme Court, June 5, 2000.
11.
The routine and cavalier deprivation of parental rights takes place in the context of divorce where, during the pendency of litigation, one parent is routinely deprived of significant parental rights without any demonstration that a state interest exists-much less that there is a compelling state interest that cannot be achieved in any less restrictive way. In marked contrast to our current practice, treating parental rights as fundamental rights requires a presumption of joint legal and physical custody upon divorce and during the pendency of divorce litigation. The presumption may be overcome, but only by clear and convincing evidence that such an arrangement is harmful to the children. Doe v. Irwin, 441 F. Supp. 1247 1249 (D. Mich. 1977).  From: Hubin, D.C., 1999, Parental Rights and Due Process. The Journal of Law and Family Studies, V 1, N 2, pp. 123-150.
12.
Meyer v. Nebraska, 262 US 390; 43 S Ct 625,(1923) Parent’s rights have been recognized as being essential to the orderly pursuit of happiness by free man.
13.
Santosky v. Kramer, 102 S Ct 1388; 455 US 745 (1982) Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs.
14.
Troxel v. Granville, 530 U.S. 99-138 (2000) The liberty interest at issue…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… [I]t 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. Troxel v. Granville, 530 U.S. 57, 65 (2000). This Supreme Court precedent states these rights are neither lost or diminished in any way by a divorce. In this case, we have the same situation faced in Troxel: a disagreement between Petitioner and the trial court as to what is in the “best interests” of Petitioner’s children. See Troxel, 530 U.S. at 72-73: “As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.”
15.
EQUAL PROTECTION FOR PARENTS
The above rules lead to four conclusions: (1) there can be no disparate treatment of either of two fit parents as it relates to their constitutional right to make decisions about their children, including choosing the children’s residence and education; (2) there is a due-process presumption that both parents are fit and have not relinquished their fundamental right to parent; (3) operation of logic on points 1 and 2 must produce in each parent a right to equal, post-divorce possession of their children and to have equal control over the life decisions affecting those children; and (4) this presumption can only be overcome by clear and convincing evidence that one or both of the parents is unfit. Lehr v. Robertson, 463 U.S. 248, 265-66 (1983). See also Troxel, 530 U.S. where a majority of this Court held that fit parents are presumed to act in the best interests of their children: “First, the Troxels did not allege, and no court has found, that Granville was an unfit parent. That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children.” The fact that this Petitioner was not afforded that same presumption calls the North Dakota’s court’s procedures into serious question. This means that only one of two equally-qualified and identically-situated parents—neither of whom has been adjudicated “unfit” or otherwise incapable of making such basic decisions for their children—is allowed to retain a significant legal right while the other parent is completely and suddenly deprived of the exact same right they possessed only moments before the divorce decree was signed, said deprivation being imposed for no other reason than because “the law” says it must. This entire process is the antithesis of “equal” protection of the laws. The equal protection clause of the Federal Constitution requires that similarly-situated persons be treated similarly.  It is the definition of unequal protection to grant favoritism or special rights to either of two similarly-situated persons.
16.
Chief Justice of the ND Supreme Court stated “We recognize the adversarial system is not good for families,” VandeWalle Said. “It can, and on occasion does inject hostility and bitterness into a situation that is already wrought with emotion.” This statement from our chief justice, in the Gavel, clearly states that the current system as being ran is detrimental to our children and parents and is not in the best interest of our children. It creates conflict and harms our children.
17.
“Although the dispute is symbolized by a ‘versus’ which signifies two adverse parties at opposite poles of a line, there is in fact a third party whose interests and rights make of the line a triangle. That person, the child who is not an official party to the lawsuit but whose well-being is in the eye of the controversy, has a right to shared parenting when both are equally suited to provide it.  Inherent in the express public policy is a recognition of the child’s right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents’ wisdom, judgment and experience.  The child does not forfeit these rights when the parents divorce.” Presiding Judge Dorothy T. Beasley, of the Georgia Court of Appeals, “In the Interest of A.R.B, a Child, July 2, 1993.

BEST INTEREST STANDARD UNCONSTITUTIONAL
18.
Gordon E. Finley, Ph.D., Professor of Psychology, Florida International University states “The Best Interest of the Child” standard is, in reality, no standard whatsoever (Finley, 2002).  Given its vacuous status as a standard, it is critical to determine who has the authority to define the best interests of children of divorce.
19.
14-09-06.1. Awarding custody - Best interests and welfare of child. An order for custody of an unmarried minor child entered pursuant to this chapter must award the custody of the child to a person, agency, organization, or institution as will, in the opinion of the judge, promote the best interests and welfare of the child. Between the mother and father, whether natural or adoptive, there is no presumption as to who will better promote the best interests and welfare of the child.
20.
Without of a finding of unfitness a judge cannot constitutionally alter any parental rights or custody! See Troxel, 530 U.S. at 72-73: “As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.” The best interest standard is as well unconstitutional due to it favors one parent over the other event if neither is found unfit.
21.
14-09-06.2. Best interests and welfare of child - Court consideration - Factors.
22.
1. For the purpose of custody, the best interests and welfare of the child is determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable: The court must treat parental rights as fundamental rights requiring a presumption of joint legal and physical custody upon divorce as stated in the above case law.
23.
a. The love, affection, and other emotional ties existing between the parents and child. The love, affection and emotional ties existing between myself and my children are indisputable and can be proven by multiple witnesses. I attend all school programs and as many other functions that my work schedule will allow. I am at all cub scout meetings and events if work hours permit. I discipline when needed and the kids respect my judgment. This is an area were Cheryl is weak in. I fear that this current custody arrangement puts me at a disadvantage to parent due to the kids may look at me as a weekend grand parent instead of as a father. My time is precious with the kids knowing they will eventually grow up and move on.
24.
b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child. My capacity of a parent to give love, affection and guidance and help with our children’s education is as well undisputable. I help the kids do their school work when they are with me and hugs and kisses are a daily practice with the kids.
25.
c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs. I provide the kids with food, clothing and other care when I am parenting them. I as well provide my share of court ordered medical to the children. In our marriage I was the primary care taker of the children when sick and stayed home to care for them. Work was more important to Cheryl.  I am disappointed at Cheryl’s attempts not to inform or invite me to the kid’s doctor appointments. If we had shared parenting this is a greater chance the kids could spend more time with their parents than at a daycare or a third party.
26.
d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity. The children will never live in a stable environment when their mother has a rotating door of boyfriends she runs off. Social Scientists consider a stable environment one with which the children can have equal access to both parents. A stable environment is falsely portrayed in this family law system as the children spending more time with a custodial parent. Children clearly need both parents!
27.
e. The permanence, as a family unit, of the existing or proposed custodial home. The most stable family unit would be an intact family. In a divorce the closest you can get to this is equal physical custody with the children spending a rebuttable presumption of equal time with both parents. The kids do not get to see their grand mother or aunts and uncles on my side of the family due to this custodial system.
28.
f. The moral fitness of the parents. I am moral and a fit parent and never have been found not to be as the US Supreme Court has ruled I must be to loose any custody! The children have seen at least 3 different men sleeping with their mother since our divorce. One even fought with Cheryl so much the kids have told me they would be woke up by them yelling and it scared the kids. Cheryl also had a man living in the marital home before the divorce was even final. Cheryl has punished the kids by putting powdered cocoa in the kids mouth which could choke them! Cheryl has played dirty, hateful games to keep me from the kids.
29.
g. The mental and physical health of the parents. I am mentally sound and clearly am doing what is best for kids as social science research suggests. I, however, think that if Cheryl Harlow’s past counseling records were introduced into this divorce we would find otherwise. Cheryl displays characteristics of bi-polarism, depression, paranoid delusional fears, extreme hateful behavior towards the Plaintiff and then takes out her issues on myself and the children.
30.
h. The home, school, and community record of the child. I provide a clean home for the children providing for their basic needs. I as well work with the school and attend school functions for the kids. People in the community see me with the kids and comment on how much fun we have together.
31.
i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference. Both of our children have expressed an interest of more time with me and do not think it is fair that they are limited to time with me. At this age the US Supreme Court rulings should stand that a parent cannot loose custody unless proven unfit.
32.
j. Evidence of domestic violence. In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent’s participation as a custodial parent. The court shall cite specific findings of fact to show that the custody or visitation arrangement best protects the child and the parent or other family or household member who is the victim of domestic violence. If necessary to protect the welfare of the child, custody may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court. If the court awards custody to a third person, the court shall give priority to the child’s nearest suitable adult relative. The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent custody. As used in this subdivision, “domestic violence” means domestic violence as defined in section 14-07.1-01. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14-07.1. I have never committed or even been alleged to have committed domestic violence. Cheryl Harlow is the only one to have committed domestic violence in our marriage yet the court does not care to address this. The domestic violence was perpetrated in front of the children which is child maltreatment!
33.
k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests. The court shall consider that person’s history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons. As I have already mentioned the kids have seen a number of men sleeping with their mother some even scaring the kids with arguing going on and Cheryl has used cocoa powder in the kid’s mouths as a punishment. I have not let the kids know of any female companions I may have had due to the custody issues that need to be corrected in this state. Cheryl on one occasion threatened me telling me she was a good shot with a gun!
34.
l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02. No allegations I have made in this divorce are false but many false allegations have been made by Cheryl.
35.
m. Any other factors considered by the court to be relevant to a particular child custody dispute. The court must follow US Supreme Court rulings and not deny equal and physical custody without first finding myself unfit!
36.
SUPPORT FOR EQUALL PARENTING
President Bush and HHS Secretary Tommy G. Thompson have made promoting involved, committed, responsible fatherhood a national priority. The initiative includes encouraging more responsible fathering by non-custodial parents.  U.S. Department of Health and Human Services fact sheet: Promoting responsible Fatherhood (2002). The Defendant is aware or should be aware (due to her sister is a social worker) of numerous official governmental report, studies, and other relevant published data, that children of divorced parent who have two primary parents in their lives do better in school, are better adjusted and happier than children raised by only one primary parent, and that children in joint custody arrangements have less behavior and emotional problem, higher self-esteem, better family relation, and better school performance than children who are subjected to sole custody arrangements.
37.
The research is absolutely clear… the one human being most capable of curbing the antisocial aggression of a boy is his biological father. Children with involved, loving fathers are significantly more likely to do well in school, have healthy self-esteem, exhibit empathy and pro-social behavior, and avoid high-risk behaviors such as drug use, truancy, and criminal activity compared to children who have uninvolved fathers. Excerpts from Horn, W.F. and Sylvester, T. (2002).  Father Facts: Fourth Edition.  National Fatherhood Initiative:  Gaithersburg,
38.
M.D.Kelly, J.B, Current research on children’s post-divorce adjustment. Family and Conciliation Courts Review, 31.29-49, 1993. On child satisfaction:  “Children have expressed higher levels of satisfaction with joint physical custody than with sole custody arrangements; citing the benefit of remaining close to both parents. Joint custody does not create confusion for the majority of youngsters about their living arrangements or about the finality of the divorce, nor does increase loyalty conflicts (Leupnitz, 1982; Shiller, 1986a, 1986b; Steinman, 1981).”
39.
Fabricius, W.V. and J. Hall, (2000) “Young Adults Perspective on Divorce”, Family and Conciliation Courts Review, Vol. 38, 446-461. “Our participants, who have lived through their parents’ divorces and have now entered young adulthood (and college) have given us their ‘expert’ advice.  Seventy percent of them, men and women alike, believe that living equal amounts of time with each parent is the best arrangement for children.”
40.
Division 16, School Psychology, American Psychological Association, Report to the U.S. Commission on Child and Family Welfare, June 14, 1995. This report “summarizes and evaluates the major research concerning joint custody and its impact on children’s welfare.” The report concludes that “The research reviewed supports the conclusion that joint custody is associated with certain favorable outcomes for children including father involvement, best interest of the child for adjustment outcomes, child support, reduced re-litigation costs, and sometimes reduced parental conflict.”
41.
CHILDREN FROM FATHERLESS HOMES ACCOUNT FOR:
63% of youth suicides. (Source: US Dept. of Health & Human Services, Bureau of the Census). 71% of pregnant teenagers. (Source: US Dept. of Health & Human Services) 90% of all homeless and runaway children. 70% of juveniles in state-operated institutions come from fatherless homes (Source: U.S. Dept. of Justice, Special Report, Sept 1988). 85% of all children that exhibit behavioral disorders. (Source: Center for Disease Control). 80% of rapists motivated with displaced anger. (Source: Criminal Justice & Behavior, Vol. 14, p. 403-26, 1978). 71% of all high school dropouts. (Source: National Principals Association Report on the State of High Schools). 75% of all adolescent patients in chemical abuse centers. (Source: Rainbows for all God`s Children). 85% of all youths sitting in prisons. (Source: Fulton Co. Georgia jail populations, Texas Dept. of Corrections 1992).
42.
There is no need for a child custody investigation or guardian ad litem to be appointed in this matter. Unless Cheryl wished to challenge my and her fitness following the US Supreme Courts ruling to first find a parent unfit before any custody may be lost. Then both of us shall be required to be evaluated by the same specialist and all records of counseling past and present be evidence to the court!
43.
Under NDCC 14-09.1-02 the court can grant court ordered mediation with neutral social workers and or councilors that can assist in all cases that Cheryl will not work with me in a reasonable manner to reduce more court costs and wasting this courts time. If this court does not do this it would be enabling Cheryl to continue such unreasonable behavior. Cheryl Harlow has refused to mediate and communicate to work these issues out so I am forced to file with this court to resolve them. I ask this court to order Cheryl to mediate and pay for the costs if she is unwilling to work reasonably with me.
44.
The court should enforce orders equally and gender cannot be discriminated against as stated under NDCC 14-02.4-01.
45.
Both parties shall pay their own attorney fees in accordance with NDCC 28-26-01 and the American Rule with the exception that Cheryl Harlow pay Mitchell Sanderson’s filing fees, lost time from work and any additional cost due to her refusal to mediate or cooperate to come to agreement in compliance with the US Constitutional rulings on parental rights requiring repeated court filings to re-obtain my equal rights as a fit parent! 
46.
The above relief is as well requested under N.D.C.C. §§ 14-05-22 and 14-09-06.1, and is in the best interest of the child(ren). The relief sought is to award all issues in the motion for equal parental rights and for Cheryl Harlow to pay Mitchell Sanderson’s filing fees and time lost from work and any other expenses incurred in this filing. I as well ask this court to declare the current best interest standard to be unconstitutional due to the manner it is implemented in violation of parental rights. Child support be calculated by ND Administrative code for equal custody from the beginning of the divorce.

51.
Any reasonable judge or mother would and should understand that the father needs his children and the children need their father. If no reputable or substantial evidence of abuse to the children or unfitness can be supported, by clear and convincing evidence, I ask that any reasonable judge would grant this motion! I further ask that the presiding judge follow the law!

By: _Mitchell S. Sanderson________
Mitchell S. Sanderson, Pro Se, Plaintiff
P. O. Box 195
Park River, ND 58270
701-331-0410