Father Challenges the Alabama Supreme Court on Constitutional Grounds
In September, 2009 the Father, for himself and as next of friend for his little girl, filed an application for rehearing in the Alabama Supreme Court because their September 11, 2009 judgment and opinion based on Alabama's ore tenus assumptions of the 'Child's Best Interest' standard raises numerous issues of constitutional proportions under the United States Constitution and the Alabama Constitution.
The U.S. Supreme Court in Troxel v. Granville said when a state court issues a judgment or opinion based on "mere assumptions" because no written findings of fact were listed, state courts are violating Due Process of the Constitution.
Further, the Court in Troxel said,
"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. As this Court explained in Parham:
“[O]ur constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations[education] … The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.”
Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be 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, Flores, at page 304.
The problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to Granville’s determination of her daughters’ best interests. More importantly, it appears that the Superior Court applied exactly the opposite presumption."
Now, apply the above to Judge Mike Suttle in this particular case.
Firstly, there was no mention whatsoever of unfitness of the father in Judge Suttle's courtroom.
Secondly, Mike Suttle gave no deference to the Father's determination of his daughters' best interests. This is where Judge Mike Suttle failed as a matter of law.
Also, this is where the Alabama Supreme Court failed as a matter of law.
The law in Alabama - WHEN PROPERLY APPLIED - is this:
"Where the question presented on appeal is whether the trial court correctly applied the law, the ore tenus rule has NO application. In such circumstances, appellant courts are to review the judgment of the trial court de novo" (Latin meaning from the beginning, afresh, anew, beginning again.)" ~ Ex Parte Perkins 1994
The Father argues, to the Alabama Supreme Court, as a legally fit parent, he is legally equal to the fit mother, and for that reason he is entitled to equal-time with his daughter under the Equal Protection Clauses of the U.S. and Alabama Constitutions. The Tennessee equal-time Order protects the child’s relationship with each parent as required by Constitution. The Alabama custody order is unconstitutionally discriminatory. The Father claims the lopsided custody is without legal basis in fact, it is unfair and needlessly hurting his daughter’s relationship with him. The parents live only three miles apart in Florence, Alabama.Alabama Order Discriminatory & Without Legal Basis in Fact
The Father Requested the Alabama Supreme Court to:
1) grant rehearing of this case; and
2) issue a briefing schedule for full briefing of the constitutional issues raised by the opinion;
3) conspicuously publish invitations for the filing of amicus briefs in this case from the bench and bar, Alabama law school teachers and students, Constitutional Law scholars, and other stakeholders in the administration of justice in accordance with the Rule of Law in the American System of Justice; and
4) appoint an expert in Constitutional Law as personal, legal advocate for the child to brief the issues from the perspective of the child; and
5) remand this case to the Court of Appeals with instructions to remand the case to the trial court for entry of written findings of fact and conclusions of law, followed by trial court briefing of the Constitutional issues.
Alabama Supreme Court Overruled (Denied) Rehearing Request with No Opinion
In February 2010, as expected, the Alabama Supreme Court overruled (denied) - with no opinion - the father's Application for Rehearing.
The Alabama Supreme Court judgment and opinion and judge Suttle's order is being appealed to federal court.
To read the legal history of this case from Tennessee and Alabama go here.
NOTE TO ALABAMA SUPREME COURT JUSTICES:
"Where the question presented on appeal is whether the trial court correctly applied the law, the ore tenus rule has NO application. In such circumstances, appellant courts are to review the judgment of the trial court de novo" (Latin meaning from the beginning, afresh, anew, beginning again.)" ~ Ex Parte Perkins 1994