Constitutional Motion Practice & Evidentiary Due Process in Family Court: Procedural due process guarantees litigating parents the right to timely notice, an impartial tribunal, formal evidentiary hearings, and the cross-examination of adverse witnesses before parental liberties are infringed (Armstrong v. Manzo, 380 U.S. 545). Filing timely constitutional objections and modular pre-trial motions prevents domestic relations courts from deciding fundamental custody rights through informal conferences, judicial fiats, or unsworn hearsay recommendations.
How Texas S.B. 8 Private-Right-of-Action Precedents Apply to Family Court
The State Action Axiom: When a state statutory scheme delegates enforcement authority to private individuals to evade federal judicial review—as Texas attempted in S.B. 8 and has practiced for decades under family code "best interest" private actions—private litigants act under color of state law. Federal rulings striking down private enforcement schemes provide direct, binding precedent to dismantle unconstitutional domestic relations statutes.
Every element of the Texas Anti-Abortion Act that gets overturned at the federal level is precedent we will use to dismantle the Texas Family Code—because that code unconstitutionally and irreparably injures children and families.
The Texas abortion law authorizes a private right of action in civil law that, as federal judges observed, undermines the Constitution in part because there is ostensibly no state executive agent to sue for civil rights violations. But is there really no state actor?
The United States Constitution does not protect against private individuals violating your rights in routine private disputes; that is the traditional role of state tort and civil law. The Constitution protects citizens from government action that violates fundamental civil rights. When a state legislature attempts to remove government officials from the enforcement equation while empowering private citizens to wield judicial machinery to strip fundamental liberties, the state is attempting to subvert the Constitution.
That is exactly what states have done for decades in domestic relations law: conveying a statutory “best interest” private right of action that permits one parent to enlist the state's coercive judicial power to strip the other parent and child of their fundamental constitutional rights to each other.
There are well-established situations where private actors are held accountable for civil rights violations under the State Action Doctrine. Acting as the state's designated enforcer under S.B. 8—or using family court machinery to deprive a fit parent of fundamental liberties under vague best-interest standards—is sufficient under Supreme Court State Action Doctrine precedents to make private litigants liable in federal court.
Oath Breakers: Lies Family Courts Tell
We wrote a book, Oath Breakers: Lies Family Courts Tell, that demonstrates how private litigants and attorneys can be sued in federal court under 42 U.S.C. § 1983 as state actors when they deploy the state legal system to deprive a parent and child of their fundamental constitutional rights to each other.
We have long recommended to constitutional advocates that they examine how family law operates, because domestic relations statutes have been insulated from meaningful federal review for generations. Pro-choice litigators are far better equipped than traditional family law attorneys and are far more motivated to push their constitutional issues to higher courts. This dynamic works in our favor: federal courts will conduct the rigorous constitutional analysis in abortion cases that they have historically evaded in family law disputes.
As federal courts strike down the private right of action structure in S.B. 8, they establish binding principles that apply with equal force against the private-right-of-action enforcement models that custody courts rely upon. This will deliver a clear judicial precedent: private parties who wield state enforcement machinery to infringe civil rights can be sued under the State Action Doctrine.
Ron B. Palmer Foreshadowed Texas Making the Critical Mistake Inherent in S.B. 8
Texas Abortion Law
“We have been saying for years that child custody courts are NOT properly adjudicating the rights of the parents or the child even though the Fifth Circuit has clearly held that state court judges are required to properly adjudicate the federal questions that are properly presented to them. Now we have a directly on point holding specific to state court judges in a nearly identical context. The fallout from that can only help us.
Texas S.B. 8 is exactly what we have been hoping for and pushing for. We aren't sure if they got the idea from us or they came up with it on their own, but one thing is for absolute certain: the federal courts will address the abortion issues even as they ignore family law. The federal courts will protect a woman's right to an abortion, but they won't lift a finger to protect a mother's parental rights after she chooses NOT to have an abortion. Shame on the federal courts.
It is NOT just the federal courts though. These political factions don't seem to give a damn about any living children or their rights. They are completely unwilling to address the irreparable harm child custody courts cause to children every single day.
I want to give a great big thank you to state Senator Bryan Hughes for introducing the bill that turned into the Texas Heartbeat Act, S.B. 8. You, Senator Hughes, have done far more for the constitutional rights of fit parents in divorce than you are likely to ever know. Every element of your Texas Anti-Abortion Act that gets overturned at the federal level is precedent we will use to destroy the Texas Family Code and its absolutely unconstitutional destruction of families and children's lives.
We are going to cover the law and the legal proceedings around it in much more detail and demonstrate to you how what we have been saying for years is actually the law. You can be confident that Fix Family Courts will leverage every single element of this anti-abortion law to help actual living children that the Honorable Senator Hughes seems to care little about.
Watch as what we have been saying and writing for years gets proven to be true in a federal court, because the federal courts and federal judges care more about protecting a woman’s right to terminate a pregnancy than they care about protecting the constitutional rights of actual living children. When this is over, they will no longer be able to ignore our arguments.”
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