Love Is Earned

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT - DOMESTIC RELATIONS DIVISION

IN RE THE MARRIAGE OF:

BRIAN LOVETT, Petitioner,

and

LAURIE LOVETT, Respondent

Case No. 00 D 06725

TRIAL BRIEF

Brian Lovett (hereinafter "Brian") hereby submits his Trial Brief in support of his position and to present the applicable legal principles and argument.

INTRODUCTION

Anything repugnant to the Constitution is null and void.

Chief Justice John Marshall, Marbury v. Madison, 1 Cr. 127 (1803).

"The world is a dangerous place to live, not because of the people who are evil, but because of the people who don't do anything about it."

Albert Einstein

Brian alleges fraud and irreconcilable differences, and is seeking dissolution of his marriage as a result of these contentions:

Brian will prove that Laurie Lovett (hereinafter "Laurie") committed fraud and breached her contract when she entered into a verbal contract with Brian indicating that she would contribute her salary to the marital expenses, if Brian would reciprocate. Laurie then refused to contribute her salary, and the parties were required to live from Brian's pre-marital assets and salary.

Except for a very small contribution of $4,600, Laurie's income was not shared with Brian during the first fourteen months of the marriage.

Laurie did not consistently begin sharing her paycheck with Brian until twenty-six months after the parties were married, and only after Brian had announced his intent for divorce. Brian was therefore forced to pay a significant portion of the marital expenses. During those first twenty-six months, Laurie unwillingly contributed only 47% of her salary to the marriage, while Brian was effectively forced to contribute his full 100%. Laurie refused to tell Brian where the remaining $X was, which drove significant tension in the marriage.

To his detriment, Brian relied on this verbal contract with Laurie, and suffered substantial harm as a result.

Laurie funneled money to her New Jersey family without Brian's knowledge. After Brian discovered Laurie's dishonest behavior, Laurie promised Brian that her family would return this money. Brian is informed and believes the money has not been returned. Laurie has admitted these allegations are true.

Brian is informed and believes that Laurie broke her life commitment to the marriage and family when she did not put the marriage and family as primary in her priorities; instead, Brian contends Laurie's prime concern and loyalty was to her family in New Jersey.

More serious than Laurie's admitted physical abuse of Brian, Laurie has openly tried to alienate Samantha Lovett (hereinafter "Samantha") from Brian. Brian is seeking that this Court provides an impassioned disapproval of Laurie's efforts to thwart Brian's strong relationship with his daughter, and prohibit future abuse by Laurie.

Additionally, Brian will present indisputable proof that Laurie's attorneys have willfully committed perjury and fraud, and have assisted Laurie in committing perjury and fraud.

Furthermore, Brian is seeking that statutes 750 ILCS 5/602, 603, 604, 607, 609, 610, 506, 501 (a), 503 (g), 505, 507, 510 (a), 510 (e), 510 (f), 513, 504, 501 (c)(1), 503 (j), and 508 (as well as any other sections and rules that refer to "best interest of the child", "child support," or "maintenance," and any other section within 750 ILCS 5 that refers to "attorneys' fees"), as well as parts 13.3.1 and 13.3.2 of the Rules of the Circuit Court of Cook County and Illinois Supreme Court Rules 201 through 214, be declared unconstitutional as they violate his fundamental Rights (e.g., to his children, to his property, to his privacy, to his personal liberty, to equality, to due process).[1] Such "laws," which are opened to varied interpretation, are, in reality, not laws at all but were born dead.

Brian requests that this Court issue formal findings of fact and conclusions of law if it rules unfavorably on ANY of Brian's relief sought. Specifically, this Court MUST show WHY the numerous U.S. Supreme Court decisions, which override ALL State decisions when there is a conflict, are not applicable or irrelevant.[2]

This Court has no authority to "award" Brian anything less than equal parenting time and responsibilities as Brian is a fit parent, and no evidence or claim exists otherwise. A parenting plan has existed for over fifteen months whereby Brian and Laurie share time and responsibilities with Samantha equally. Samantha has not had any signs of adjustment problems, and, in fact, is thriving. It is in Samantha's best interest to be with both parents equally, and for both parents to jointly share in major decision-making for her.

This Court has no authority to award Laurie "child support" from Brian, as no evidence exists that Brian does not reasonably support his daughter. Brian is seeking that no award of child support is ordered, and that each parent provide for Samantha when she is in his or her care. Brian is further seeking that only major expenses which the parties jointly agree to (i.e., education and major health care) are split equally between Brian and Laurie.

This Court has no authority to award Laurie maintenance or attorneys' fees from Brian, as Laurie makes a high annual salary, has significant assets, is readily employable, is financially able to meet her contractual commitments, and was not economically injured as a result of the marriage. The standard of living established in the marriage was almost exclusively based on Brian's salary and pre-marital assets, which allowed Laurie to frivolously waste her own assets and fraudulently filter them to her New Jersey family. Brian and Laurie entered an agreed order clearly identifying that future income and expenditures would be deemed equivalent in value, thereby precluding any ability by this Court to award maintenance or attorneys' fees based on Laurie not being able to support herself or fulfill her personal financial obligations (i.e., by definition of the word equivalent, Brian then would also not be able to support himself or fulfill his personal financial obligations). Additionally, Brian owes no duty to Laurie after they are divorced. Brian is seeking that no awards of maintenance or attorneys' fees are ordered.

Constitutional Challenges

Before Brian filed for divorce, his "constitutional rights" were intact.[3] However, during these proceedings, the previous court (Judge Veronica Mathein, hereinafter "Previous Court") had, on MANY occasions, temporarily suspended and/or eliminated Brian's Rights for no other reason than because it has the purported statutory authority (i.e., absolute power) to do so. The Previous Court has WILLFULLY revoked and shredded Brian's Rights without ANY cause, and thus insulted the Federal Constitution and committed perjury against its oath of office. As a result, Brian has suffered tremendously. But, as John Adams said: "I am well aware of the toil and blood and treasure that it will cost to maintain this Declaration, and support and defend these States. Yet through all the gloom I can see the rays of ravishing light and glory. I can see that the end is worth more than all the means...." Brian intends to get his Rights back.

It is BEYOND preposterous that Brian, an Illinois citizen, should have to take a defensive posture in this case to defend and protect his Rights to his child and his property in this Court, when he has not been convicted of a crime. Yet, this is exactly the condition of our legal system, and representatively the Previous Court. That court, like all "family" courts around the country, has nullified the Federal Constitution. Along with a small, highly dedicated group of individuals around the country, Brian's resolve in bringing the Federal Constitution back to "family" court and ensuring that Justice is served is without precedence. He intends to prove it. As Edmund Burke once said: "The only thing needed for evil to prosper is for good men to do nothing."

Make no mistake about it: if this Court refuses to declare all of the referenced statutes and rules repulsive to the Federal Constitution, and therefore unconstitutional based on the irrefutable, voluminous, and CRYSTAL CLEAR U.S. Supreme Court decisions presented here, there will be no question that this Court clearly ignored and warred against the Constitution, as it thus found federal law and decisions irrelevant and inapplicable.

The ONLY relevant issue in a divorce proceeding with fit parents is the separation of MARITAL assets. The parties' individual, FUNDAMENTAL Rights (e.g., to children, to property, to privacy, to personal liberty, to equality) continue to exist as they have. Fundamental Rights are Rights that cannot be impinged on IN ANY WAY or taken away from any state citizen UNLESS they have been convicted of a CRIMINAL crime. Fundamental Rights are NOT privileges (i.e., temporary authority granted to citizens by a "higher power"). A fundamental Right is the sovereign authority to do something without permission from a higher power, because that person IS the higher power. The State/judiciary does not have ANY jurisdiction or authority to usurp fundamental Rights without criminal conviction. Any attempt by the State/judiciary to do otherwise is a flawed and obvious attempt to "rule" rather than to "serve," and is therefore unconstitutional. As a reminder of Thomas Jefferson's words: "A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate."

As such, Brian challenges the constitutionality of all Illinois statutes that refer to the "best interest of the child" (e.g., 750 ILCS 5/602, 603, 604, 607, 609, 610, 503 (g), and 506, as well as any other sections and rules that refer to "best interest of the child") (hereinafter "Best Interest of the Child Statutes"), on their face and as applied, which compel the State's judiciary to make awards of child custody and parenting time, or allocation of parental responsibilities, privileges, and parenting time, or assignment of "guardians" and "evaluators," within the context of dissolution of marriage actions and post-decree of dissolution of marriage actions concerning children. Brian contends that the challenged statutes and rules violate well-recognized FUNDAMENTAL Rights, including the Right to due process of law, the Right to equal protection of the law, and the Right to the care, custody, control, companionship, and nurture of one's offspring embodied in the fundamental liberty interest in family, which Rights are secured by the Fourteenth Amendment of the Federal Constitution. Brian is seeking that the challenged "best interest" statutes and rules are declared unconstitutional. It would be difficult to find a statute that fails more comprehensively to achieve its stated goal than the purported "best interest of the child" statute.

Additionally, the so-called "child support" statutes (750 ILCS 5/505, and associated sections 501 (a), 507, 510 (a), 510 (e), 510 (f), and 513, as well as any other sections and rules that refer to "child support") (hereinafter "Child Support Statutes"), the maintenance statutes (750 ILCS 5/504, and associated sections 501 (a), 507, and 510 (a), as well as any other sections and rules that refer to "maintenance") (hereinafter "Maintenance Statutes"), and the attorneys' fee statutes (750 ILCS 5/501 (c)(1), 503 (j), and 508, as well as any other sections within 750 ILCS 5 and rules that refer to "attorneys' fees") (hereinafter "Attorneys' Fees Statutes"), as well as parts 13.3.1 and 13.3.2 of the Rules of the Circuit Court of Cook County (hereinafter "Mandatory Disclosure Rules") and Illinois Supreme Court Rules 201 through 214 (hereinafter "Discovery Rules"), are directly and egregiously violative of the Federal Constitution and Illinois Constitution. Specifically, Brian contends that the statutes and rules are unconstitutional on their face[4] and as applied because they violate the FUNDAMENTAL Rights to equal protection, to due process, to privacy, to property, and to proscriptions about involuntary servitude, all of which are guaranteed to Brian under the Federal Constitution. Further, the statutes are unconstitutional as threatened to be applied to Brian because they violate the Rights to not be imprisoned for debt and for proscriptions about private takings for private use or public use, all guaranteed to Brian under the Illinois Constitution. Brian is seeking that all of these challenged statutes and rules are declared unconstitutional. In the words of Thomas Jefferson: "The policy of the American government is to leave their citizens free, neither restraining nor aiding them in their pursuits." Or, at least that is the way it is supposed to be.

CHILD SUPPORT: In the instant matter, and for that matter, in the vast majority of cases, each parent stands in the same relation to the child as they did before the divorce. They each owe the child a duty of support, the threshold of which is reasonable support - food, clothing, shelter, safety. The State cannot dictate how much money or other assets must be expended for the benefit of children in married families, except to the extent that a threshold of reasonableness is achieved. The State cannot treat parents in non-intact families differently from intact families. The only time the State can act in either family is if they have passed below the threshold of reasonableness. Additionally, the child support factors have no economic basis and are not rationally related to their initial/intended purpose.

MAINTENANCE: The State cannot treat spouses or ex-spouses differently, regardless of their income levels or asset base. The only constitutionally legal statement a judge can make about spouses regarding income or assets is "Who cares?" The State lacks a legitimate or compelling interest in re-allocating future earnings of one spouse or non-related person to another. Evidence of legislative intent is no longer applicable nor applies in the award of maintenance. Alimony was designed for the wife of a broken marriage who needed financial assistance, and to compensate women for past discrimination during marriage which left them unprepared to fend for themselves in the working world following divorce. The underlying facts of maintenance/alimony no longer exist, in that sex is no longer a factor (i.e., women are no longer the only recipients of alimony) and women now more fully participate in the workplace. Further, reverse discrimination has occurred as a result of women overwhelmingly being "awarded" custody. Additionally, the maintenance factors have no economic basis and are not rationally related to their initial/intended purpose.

ATTORNEYS' FEES: The State cannot treat spouses or ex-spouses differently, or discriminate against financially able individuals, regardless of their income levels, asset base, or financial ability. The State lacks a legitimate or compelling interest in awarding attorneys' fees from one spouse or non-related person to another when there is no showing of fault, tort, compensable injury, or damages.

MANDATORY DISCLOSURE AND DISCOVERY: The State cannot "mandate" that a spouse or ex-spouse be required to turn over any financial papers on the basis of divorce, as the Fourth Amendment of the Federal Constitution specifically prohibits such a violation without probable cause of something ILLEGAL, supported by oath or affirmation. Additionally, the Fifth Amendment of the Federal Constitution declares that a person cannot be compelled to be witness and give information about himself, regardless of whether or not such information is incriminating. This applies to both criminal and civil suits. A "Mandatory Disclosure," and the Discovery Rules as applied, are nothing more than a compulsory production of a private party's books and papers, to be used against him to extort his property. Effectively, Mandatory Disclosure and Discovery is an unauthorized "fishing expedition," as a divorce action does not alone give the government probable cause of illegal activities.

Substantive due process requires, in essence, that the outcome of judicial proceedings be fundamentally fair. From the outset of our constitutional history, due process of law as it occurs in the Fifth Amendment and now Fourteenth Amendment has been recognized as a restraint upon government where fundamental interests are at stake.

This, then, is the gravamen of these contentions: Who shall control Brian's money and the quality and nature of his relationship with his offspring - the State or the individual? The State and this Court can attempt to assert that the State shall have pre-eminence in this arena and may supersede the decisions of the individual. Our Founding Fathers, of course, thought otherwise. As Thomas Jefferson said: "To take from one because it is thought that his own industry and that of his father's has acquired too much, in order to spare to others, who, or whose fathers have not exercised equal industry and skill, is to violate arbitrarily the first principle of association - the guarantee to every one of a free exercise of his industry and the fruits acquired by it."

The Previous Court has told Brian openly and on record that Brian's "constitutional rights are subject to the law, and more specifically to the Illinois Marriage and Dissolution of Marriage Act." By this statement, that court obviously feels that it is functioning appropriately under the State law when it interferes with Brian's FUNDAMENTAL Rights. Brian offers three reminders of history to that court: 1) Spanish inquisitors used to argue that burning people at the stake saved their souls and was thus in their "best interest;" 2) In America, slavery was entirely "legal," as was the racial segregation that followed it; and 3) the Nazi high officers in Germany during World War II also believed they were functioning appropriately and maintaining order the entire time they affected the Terminal Solution and created untold human misery and pain.[5] The Nazi's used to boast: "Tell a big enough lie often enough and people will believe it's true." In other words, the notion that society's "laws" are always moral is ridiculous and IMMORAL.

In light of the Previous Court's statement, Brian suggests for that court to re-read the Supremacy Clause of the Federal Constitution. Under the Supremacy Clause, everyone must follow federal law in the face of conflicting state law. The government of the United States has declared, through the U.S. Supreme Court, that a parent's Right to the custody, care, control, companionship, and nurture of his or her child is a fundamental Right, recognized by that Court as an element of the liberty interest in family. For state intrusion into familial relationships to be allowed, the state must meet a burden of compelling interest. Participation of a parent in his or her own divorce litigation, or the completion of said divorce, does not meet that burden. It is as simple as that.

It is embarrassing that this reminder needs to be made by Brian (who has no legal training) to court officers (who are supposed to have legal training), but before a state can deprive a person of life, liberty, or property, it must insure that all of the Rights of the individual established under the Constitution have been protected. Most individuals would gladly surrender their lives, liberty, or property before they would surrender their children. The Right to raise one's children is at least as fundamental as the Right to any other liberty interest, and is entitled to at least as great a level of protection from governmental interference.

Brian's plea for this Court's understanding and care should be obvious. Constitutionally, ethically, developmentally, and psychologically, children need as much time, love, support, and nurturing as humanly possible from both parents. If this Court, by force of a gun, allows Samantha's mother to hurt Samantha by depriving her, an innocent child, of her father, the destruction will be irreparable. This Court must not allow Samantha's mother to hurt her like that. With every means available, this Court must fight for and protect an innocent child's life, just as her father is doing already. This Court must fight to help educate Samantha's mother about the harm her actions and behaviors will do to Samantha. Anything less by this Court is not only unconstitutional - it is morally wrong and should be considered State- and judiciary- sponsored child abuse. Regardless of the overwhelming data and evidence available that demonstrates children are significantly worse off without their fathers (which was too voluminous to mention it all here), the mere fact that Samantha's mother wants to take Samantha away from her loving and fit father should be all of the evidence this Court needs to know that Laurie does not have Samantha's best interest in mind or at heart. Brian is a dedicated, caring, nurturing, loving, full-time father whose daughter loves him, and his fight for his Right to be equally involved in his daughter's life should be the only proof this Court needs. Bestowed upon it by flagrant legislative errors and malice, this Court must not underestimate the mental abuse and damage it has the capability and power to deliver on an innocent, little child. You have the power - use it wisely. As Thomas Jefferson said: "The legitimate powers of government extend to such acts only as are injurious to others."

Additionally, Brian fully understands the magnitude of what he is asking this Court to do. Brian is asking this Court to restore constitutional legitimacy to the dissolution of marriage. The wide applicability of declaring these statutes and rules unconstitutional will create problems of considerable complexity, especially economic ones, across the entire country. The decision will even have widespread impact around the world. In our country's early history, we said that the economics of freeing the slaves made it impossible. It could not be done, even if it was morally right. In the early 1950's, racial segregation in public schools was the norm across America, with laws making it so. We also had segregation in other public areas, such as restaurants and restrooms. Many tried to prevent righting that flawed morality as well. The U.S. Supreme Court has said these past atrocious state laws, which were "on the books" for decades, were wrong. If this Court refuses to correct the State's moral and legal errors now when they are so clearly presented here, the U.S. Supreme Court will do so.[6] The cost of the judicial carnage created and permitted by the challenged statutes and rules, in terms of human lives, human misery, human dignity, human Rights, and the health and welfare of the State's children, is immeasurable, perhaps even exceeds the butchery of racial segregation, and is more than reason enough for the U.S. Supreme Court to intervene to enjoin the enforcement of the most deceitful, insidious, and downright evil laws ever created by man.

Brian of course understands that the U.S. Supreme Court is very selective in the cases it reviews. However, there is no remedy within any state court system for these wholesale violations of protected fundamental Rights. The state "family" courts routinely ignore pleas for protection or restoration of basic liberties. The state appellate courts routinely uphold custody decisions by "family" law judges by stating that they "will not second guess the finder of fact" or by dismissing the appeal at the earliest opportunity - when, in fact, the issues before them indicate profound constitutional violations. And the state supreme courts exercise their discretion in matters related to constitutional protections in domestic relations disputes by declining to hear such cases. It should also go without saying that this case presents questions whose resolution will have immediate importance far beyond the particular facts and parties involved. If you knew that millions of children across America were being abducted, and you could specifically point to the perpetrators by name, and you had indisputable evidence that the state government was sponsoring and encouraging it, would not that be of significant national importance? Not since Brown v. Board of Education has there been such a nationally important issue. When a large, artificially created class of citizens are denied fundamental Rights by operation of clearly unconstitutional laws, and when a state judiciary's application of those laws thwarts, and not infrequently destroys, the most precious of human relationships, it is proper for the U.S. Supreme Court to intervene. Brian will not let this Court fake reality, and begs this Court to be courageous now, rather than responsible and accountable later. It is black or white - there will be no gray.

As Thomas Jefferson said: "Experience has shown that, even under the best forms of government, those entrusted with power have, in time and by slow operations, perverted it into tyranny." There are only two things that stand between tyranny and liberty: the Federal Constitution and our will. Despotism only occurs when we allow it. Contrary to popular belief, we are NOT a democracy in that the majority cannot limit the inalienable Rights of the minority - we are a constitutional republic. Our Rights to life, liberty, and property cannot be denied. The State is not sovereign, contrary to what it believes - the individual is. The reminder should be unnecessary, but the government works for Brian and exists for his purposes; Brian does not exist for the purposes of government. Brian has a Right to demand that this Court correct the infringements of his liberties, and this Court's primary duty is to do so. The judiciary may not neglect its duties to the Federal Constitution. Fidelity to the Constitution requires this Court to protect Brian and Samantha's inalienable Rights.

Additionally, the matter of judicial immunity obviously is not absolute. Case "law" provides ample examples of when a judge loses judicial immunity, such as acting without jurisdiction or violating clear and settled law. Also, each court takes an oath to support the Federal Constitution, and should the court abandon that fiduciary duty, they are exposed as a proper person. This Court is required to know and understand basic constitutional law, especially the meaning of FUNDAMENTAL Rights, and to know and take protective action when fundamental Rights are implicated as they are so obviously implicated here. The Right to your children, the Right to your property, the Right to your privacy, and the Right to equality are but a few examples of fundamental Rights implicated by these statutes and rules. Should this Court order any decision contrary to Brian's relief sought and exile him by denying his Right to his child, or denying his Right to property, or denying his Right to personal liberty, or in any way deem him less than equal, it would not only be considered extortion but also Court-sanctioned child abuse, and will be a clear and flagrant abuse of power under Title 42 USC 1983. Only two elements are necessary for recovery under Title 42 USC 1983: (1) whether conduct complained of was committed by personal action under color of state law, and (2) whether this conduct deprived the person of Rights, privileges, or immunities secured by the Federal Constitution. The Previous Court has indeed committed intolerable personal acts under the color of State law and has indeed deprived Brian of Rights, privileges, and immunities secured by the Federal Constitution. That court did not have the authority to deny Brian, a fit parent without criminal conviction, of fundamental Rights. Brian now offers this Court the opportunity to make amends. Please do not destroy the heart, mind, and soul of an innocent child, much less her father, by denying fundamental Rights without criminal conviction.

The entire arena of "family law" has become a domain of constitutional violations and usurpation of civil Rights. Our children statewide are being raped by the court system of their parents, their birthrights, their heritage, and their civil Rights. In addition to these Rights, parents are also being raped by the court system of their children and their property. Most of the divorce "laws" in Illinois, as in most states, are morally destructive, legally flawed, and harmful to children. This Trial Brief presents the indisputable proof, even though it should be morally obvious to any rational person. Regardless of any claims it may make, the government has NO interest or authority in regulating FUNDAMENTAL Rights, and may not restrict FUNDAMENTAL Rights without a criminal conviction. Brian begs this Court to quickly order it so to prevent further destruction and allow us to start rebuilding the freedom that has been lost.

The essence of the Due Process Clause, which could be considered the most important part of the Federal Constitution, is a fair hearing before an impartial judge, since a hearing before a partial and biased judge would be a "hearing" in name only and would make a mockery of the Right. There is no question that the Due Process Clause in the Previous Court is dead. That court has made innumerable "errors" during these divorce proceedings, and Brian recognizes that court as his enemy.[7] Make no mistake about it: Brian is not at war with the mother of his child; Brian is at war with that court and its "officers." This Court is now being offered a chance to correct those "errors." The ineluctable fate of these immoral and illegal statutes and rules is sealed within this case and concurrent, targeted cases around the country. As Samuel Adams once said: "...it does not require a majority to prevail, but rather an irate, tireless minority keen to set brush fires in people's minds..." The Previous Court attempted to temporarily postpone that fate by personally subjecting itself to the guaranteed peril and consequences of Title 42 USC 1983, not to mention high crimes and misdemeanors. Deliberately violating Rights secured by the Federal Constitution, especially when those Rights are explicitly asserted, is not simply malfeasance, but is most assuredly a liability under Title 42 USC 1983, as well as an impeachable offense. After reading through all of the extensive, yet simple evidence presented here, Brian hopes that this Court takes the only opportunity it has to restore credibility to the judicial process. Significant thought, intelligence, and analysis are not required here, as Brian has thoroughly, clearly, and plainly elucidated the "Achilles Heel" of these damaging statutes and rules - the courage and conscientiousness of this Court are the only deciding factors. Either way, Justice will be served.

"There are a thousand hacking at the branches of evil to one who is striking at the root."

Henry David Thoreau

"Never doubt that a small group of thoughtful, committed people can actually change the world; indeed it is the only thing that ever has."

Anthropologist Margaret Mead

GENERAL INFORMATION

1. In re the Marriage of: Brian and Laurie Lovett

a. Date of Marriage: August 31, 1997

b. Date of Separation: April 28, 2000

2. The parties

a. Husband: Brian Lovett

i.  Born X, age 34

ii. Address: 600 W Surf St 4 Chicago IL 60657

iii. Social Security Number: X

iv. Health: Good

v. Attorney: Brian Lovett, Pro Se

1. Address: 600 W Surf St 4 Chicago IL 60657

b. Wife: Laurie Lovett

i.  Born X, age 35

ii. Address: 2034 N Seminary 1 Chicago IL 60614

iii. Social Security Number: X

iv. Health: Good

v. Attorney: Dorene Marcus

1. Davis, Friedman, Zavett, Kane, MacRae, Marcus & Rubens

2. Address: 140 South Dearborn Street, Suite 1600 Chicago, IL 60603

3. Children

a. Samantha Lovett

b. Born X, age 3

4. Grounds

a. Brian alleges irreconcilable differences based on three contentions:

i.  Brian is informed and believes that Laurie committed fraud and breached her contract when she entered into a verbal contract with Brian indicating that she would contribute her salary to the marital expenses, if Brian would reciprocate. Laurie then refused to contribute her salary, and the parties were required to live from Brian's pre-marital assets and salary.

1. Except for a very small contribution of $4,600, Laurie's income was not shared with Brian during the first fourteen months of the marriage.

2. Laurie did not begin formally or consistently sharing her paycheck with Brian until twenty-six months after the parties were married, and only after Brian had announced his intent for divorce. Brian was therefore forced to pay a significant portion of the marital expenses. During those first twenty-six months, Laurie unwillingly contributed only 47% of her wages to the marriage, while Brian was effectively forced to contribute 100%. Laurie refused to tell Brian where the remaining $X was, which drove significant tension in the marriage.

3. To his detriment, Brian relied on this verbal contract with Laurie, and suffered substantial harm as a result.

ii. Laurie funneled money to her New Jersey family without Brian's knowledge. After Brian discovered Laurie's dishonest behavior, Laurie promised Brian that her family would return this money to her. Brian is informed and believes the money has not been returned. Laurie has admitted these allegations are true.

iii. Brian is informed and believes that Laurie broke her life commitment to the marriage and family when she did not put the marriage and family as primary in her priorities; instead, Brian contends Laurie's prime concern and loyalty was to her family in New Jersey.

5. Education

a. Brian Lovett

i.  B.A., University of Illinois (Undergraduate)

ii. M.B.A., University of Chicago (Graduate)

b. Laurie Lovett

i.  B.A., Syracuse University (Undergraduate)

ii. M.M., Stevens Institute of Technology (Graduate)

6. Wages

a. Brian is employed by IBM for a salary of $X annually plus possible bonus.

b. Laurie is employed by Accenture for a salary of $X annually.

7. Summary of disputed items

a. Custody, visitation, removal, child support, maintenance, dissipation, whether property is marital or non-marital, division of marital property, disposition of debts, division of personal property, attorneys' fees

8. Summary of major assets[8]

a. In general, Brian has the following major assets:

Asset	Account Number	Titled	As of	Balance/ Approximate Value
IBM ESOP	X	Brian Lovett	4/15/03	(XXX shares) $X[9]
IBM 401(k)		Brian Lovett	4/15/03	$X
Citibank IRA	X	Brian Lovett	4/15/03	$X
2034 North Seminary	Condominium	Brian and Laurie Lovett[10]	Offer to purchase made on 11/6/02	Listing Price: $X Recent Value: $X[11] Mortgage: $X
Seabury and Smith Insurance Company	X	Insured: Brian Lovett	11/30/02	Death Benefit: $X
Jewelry		Brian Lovett	9/17/97	$X
1998 Acura Sports Utility Vehicle		Brian and Laurie Lovett[12]	1/9/03	$X

b. In general, Laurie has the following major assets:

Asset	Account Number	Titled	As of	Balance/ Approximate Value
Accenture options		Laurie Lovett	1/27/03	$X
Accenture 401(k)		Laurie Lovett	1/24/03	$X
Vanguard IRA	X	Laurie Lovett	12/31/02	$X
Accenture stock	X	Laurie Lovett	1/31/03	$X
2001 BMW		Laurie Lovett	4/24/03	$X

9. Laurie's credibility is effectively non-existent, considering she has shown a clear pattern of constant dishonesty, fraud, perjury (with the help and assistance of her attorney in many cases - see paragraph 13), willful and intentional breach of her contracts, and avoided complying with the terms of the parties' agreements (e.g., see paragraphs 88, 107, 111, 111.b.ii, 118, 140, 141, 143, 145, 147.c.iv, 148, 155, and see also many examples throughout Exhibit B - such as paragraphs 7.b, 12.a, 13.b.vi, and 14.a). The overwhelming evidence presents, and should leave no question of, Laurie's culpability.

10. Upon further study and research, Brian has discovered that the unequal allocation of parental Rights and responsibilities, the imposition of unequal burdens on spouses, the transfer of property from one party to another without a showing of harm, the requirements to divulge private information and papers without probable cause supported by oath or affirmation, and the consequential material infringement of Brian's fundamental Rights, are impermissible under the strict standards of protection afforded litigants when such fundamental Rights are at stake.

I. JUDICIAL NOTICE

11. All officers of this Court are hereby placed on notice that non-attorney litigants are held to less stringent standards than bar licensed attorneys, and may not be "punished" (e.g., made to pay another party's attorneys' fees) for exercising fundamental Rights. Fundamental Rights do not hang by a tenuous thread of a layman's knowledge of the niceties of law. It is sufficient if it appears that he is attempting to assert his Rights, protected by the Federal Constitution. The plea, rather than the form in which it is asserted, is the substance of which this Court must respect and address.

[13] ...under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers...

Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972).

And,

[21] To punish a person because he has done what the law plainly allows him to do is a due process violation "of the most basic sort." Bordenkircher v. Hayes, 434 U.S. 357, 363. In a series of cases beginning with North Carolina v. Pearce and culminating in Bordenkircher v. Hayes, the Court has recognized this basic -- and itself uncontroversial -- principle. For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.*fn4

[74] *fn4 "[For] an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is 'patently unconstitutional.'" Bordenkircher v. Hayes, 434 U.S. 357, 363 (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 32-33, n. 20).

United States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485, 73 L. Ed. 2d 74, 50 U.S.L.W. 4696 (1982).

12. Additionally, all litigants have a constitutionally-secured Right to have their claims adjudicated according to the rule of precedent and, by the Supremacy Clause,[13] the Federal Constitution and U.S. Supreme Court decisions take precedence over State court decisions.

[16] Inherent in every judicial decision is a declaration and interpretation of a general principle or rule of law. Marbury v. Madison, 1 Cranch 137, 177-78 (1803). This declaration of law is authoritative to the extent necessary for the decision, and must be applied in subsequent cases to similarly situated parties. James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 544 (1991); Cohens v. Virginia, 6 Wheat. 264, 399 (1821). These principles, which form the doctrine of precedent, were well established and well regarded at the time this nation was founded. The Framers of the Constitution considered these principles to derive from the nature of judicial power, and intended that they would limit the judicial power delegated to the courts by Article III of the Constitution. *fn3

[FN 3] "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. Const. art. III, ß 1, cl. 1.

[25] ...but the principles of the decision are held, as precedents and authority, to bind future cases of the same nature. This is the constant practice under our whole system of jurisprudence. Our ancestors brought it with them, when they first emigrated to this country; and it is, and always has been considered, as the great security of our rights, our liberties, and our property. It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice or will of judges. A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.

[26] This known course of proceeding, this settled habit of thinking, this conclusive effect of judicial adjudications, was in the full view of the framers of the constitution. It was required, and enforced in every state in the Union; and a departure from it would have been justly deemed an approach to tyranny and arbitrary power, to the exercise of mere discretion, and to the abandonment of all the just checks upon judicial authority. [Emphasis added].

Anastasoff v. United States, No. 99-3917EM (8th Cir. 08/22/2000).

13. As is evidenced by the statements of facts provided in paragraphs 35, 88, 111, and 155, Laurie's attorneys, who are officers of the Court, knew, or should have known, that some of the statements made and pleadings submitted under penalties of perjury by their client conflicted with other statements made and pleadings submitted under penalties of perjury, and also conflicted with statements made by Laurie's attorneys in open court. Further, Laurie's attorneys failed to withdraw pleadings made that they knew contained false and prejudicial statements after being informed of such statements in open court. Also, Laurie's attorneys clearly violated a Court order by failing to disclose materials as ordered, and then attempting to cover-up their fraudulent actions by alteration. Additionally, a reasonable person would find it hard to believe that Laurie's attorneys did not know that the statements they made in open court and through pleadings were not perjured. Finally, Laurie's attorneys advised their client to ignore a proper Notice to Appear and obstructed Brian's access to information and evidence. These facts would appear to show a pattern of willful disregard for the rule of law by Laurie's counsel.

[24] Furthermore, tampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.

[25] Truth needs no disguise.

[37] No fraud is more odious than an attempt to subvert the administration of justice.

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S. Ct. 997, 88 L. Ed. 1250 (1944).

a. The acts of Laurie's attorneys constitute deliberate, malicious, and severe fraud. These acts have harmed the integrity of the judicial process. Additionally, Laurie's attorneys have offended multiple Illinois Supreme Court Rules, specifically Article VIII, Illinois Rules of Professional Conduct (hereafter "RPC"), Rule 3.3 (Conduct Before a Tribunal) including:

(a) In appearing in a professional capacity before a tribunal, a lawyer shall not:

(1) make a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false;

(2) fail to disclose to a tribunal a material fact known to the lawyer when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures;

(5) participate in the creation or preservation of evidence when the lawyer knows or reasonably should know the evidence is false;

(6) counsel or assist the client in conduct the lawyer knows to be illegal or fraudulent;

(7) engage in other illegal conduct or conduct in violation of these Rules;

(10) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused, but a lawyer may argue, on analysis of evidence, for any position or conclusion with respect to the matter stated herein;

(11) refuse to accede to reasonable requests of opposing counsel that do not prejudice the rights of the client;

(12) fail to use reasonable efforts to restrain and to prevent clients from doing those things that the lawyer ought not to do;

(13) suppress any evidence that the lawyer or client has a legal obligation to reveal or produce;

(14) advise or cause a person to become unavailable as a witness by leaving the jurisdiction or making secret their whereabouts within the jurisdiction; or

(b) The duties stated in paragraph (a) are continuing duties and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

b. Also, Laurie's attorneys have offended Rule 3.4 of the RPC (Fairness to Opposing Party and Counsel), which states:

a) A lawyer shall not:

(1) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(2) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(3) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(A) the person is a relative or an employee or other agent of a client; and

(B) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

c. Further, Laurie's attorneys have also offended Rule 4.1 of the RPC (Truthfulness in Statements to Others) which states:

In the course of representing a client a lawyer shall not:

(a) make a statement of material fact or law to a third person which statement the lawyer knows or reasonably should know is false; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

II. PRIVATE PAPERS

Any documents required to be submitted/exchanged pursuant to Illinois Supreme Court Rules and/or Cook County Circuit Court Rules may not be entered into evidence

A Rule With the Force and Effect of "Law" That Requires Divulging Information About Oneself Is Facially Unconstitutional

14. Laurie, upon information and belief, intends to offer various private papers/documents belonging to Brian exclusively (e.g., financial documents and records, Asset Disclosure Statement, wage documents and records) (hereinafter "Private Papers"), provided by Brian pursuant to the purported authority of the Discovery Rules and the Mandatory Disclosure Rules which compelled Brian to produce them. Brian objects to any and all of these Private Papers being offered into evidence that he was compelled to produce, as they were a compulsory production of a private party's books and papers to be used against him.

[36] The rules of the circuit court, which have been of many years standing, provide for the practical and effective administration of the business of the court and are within the power of the court. Such rules must, of course, be consistent with the law.

People v. Lindsay, 412 Ill. 472, 107 N.E.2d 614 (1952).

And,

[19] Pursuant to legislative authority, *fn2 the rules of the circuit court of Cook County were adopted by the circuit judges in order to effectuate the administration of justice and to simplify judicial procedure. In determining the constitutionality of a legislative enactment or a law passed pursuant to legislative authority, the judiciary is limited to a determination of whether the law is a valid exercise of the State's police power to promote the public comfort, health, safety, morals or welfare. (Henson v. City of Chicago (1953), 415 Ill. 564, 570-71, 114 N.E.2d 778.) To be valid, the legislation must not only bear a reasonable relationship to one of the foregoing interests, but the means adopted to promote that interest must be reasonable. (Sherman-Reynolds, Inc. v. Mahin (1970), 47 Ill.2d 323, 327, 265 N.E.2d 640.) Because the legislature is granted broad discretion in determining how best to secure the interests of the public welfare, the court will not disturb a police regulation merely because there is a difference of opinion as to its wisdom, necessity or expediency. (City of Carbondale v. Brewster (1979), 78 Ill.2d 111, 115, 398 N.E.2d 829.) Moreover, a strong presumption of constitutional validity attaches to authorized enactments, and the party attacking a law has the burden of showing that it is unreasonable. People v. Copeland (1980), 92 Ill. App.3d 475, 479-80, 415 N.E.2d 1173. [Footnote omitted].

People v. Adams, 451 N.E.2d 1351, 116 Ill. App.3d 315 (1983).

a. However, when a state "law" or rule affects FUNDAMENTAL Rights, as it so clearly does here, there is NO presumption of constitutionality and the court is REQUIRED to apply "strict scrutiny" - NOT the rational relation test (e.g., see paragraphs 65, 68.e, 68.k, 78, 79, and 80).

i.  No compelling reason exists for Brian to be required to turnover his Private Papers as part of a divorce proceeding. The State is purely using the implicated rules as a "fishing expedition" to circumvent a party's Rights.

ii. The Fifth Amendment of the Federal Constitution specifically bars the use of compelled testimony against individuals.

1. The Fifth Amendment of the Federal Constitution applies to both criminal and civil trials (see paragraph 15.a).

iii. In addition, verification of the Asset Disclosure Statement (i.e., the "13.3") requires that individuals produce their personal books and records (or be held in contempt), which violates the Fourth Amendment of the Federal Constitution.

iv. The requirements to submit all the personal and financial data requested in divorce proceedings also violate an individual's Right to privacy under the Ninth Amendment of the Federal Constitution (see paragraphs 61.a and 101).

b. Cook County Circuit Court Rule 13.3.1 (c) specifically states: "Failure of a party to timely serve the "Disclosure Statement" shall subject the non-complying party to such sanctions as the court deems appropriate, including all sanctions available under Illinois Supreme Court Rule 219." Therefore, Brian is obviously threatened with sanctions if he refuses to comply under the protection of the Fourth and Fifth Amendments of the Federal Constitution.

c. Brian was told by his attorneys, against his objections, that he was required per the implicated rules to submit these Private Papers to the Court and/or Laurie. Brian was therefore forced to divulge this information against his will. As Brian was required by "law" to turnover all of the Private Papers and therefore compelled, they may not be used against Brian in any way.

i.  If any of these Private Papers are used to present evidence that "justifies" Brian's ability to pay Laurie child support, maintenance, and/or attorneys' fees, these Private Papers are OBVIOUSLY being used against Brian to extort his property.

ii. Furthermore, without the use of these Private Papers, this Court lacks any evidence (as the "law" requires) to extort Brian's property and give it to Laurie. Thus again, it is OBVIOUS that these Private Papers will be used against Brian to take his property.

d. At no time was Brian told that he had the right to remain silent, that if he gave up the right to remain silent, that the Private Papers could be used against him and his property. Therefore, these Private Papers may not be admitted into evidence, or used against him, or used to take his property, as Brian was not given "free choice" to divulge the Private Papers.

e. These Private Papers will be a "material ingredient" in Laurie's and the State's continued pursuit to extort Brian's property. The government, Laurie, and Samantha are NOT "entitled" to possession of Brian's property as a result of this divorce proceeding.

f. Brian is innocent, but is "confounded with the guilty" when he was forced to turnover these Private Papers against his will.

15. Any court order or rule that requires the production of personal books and records without probable cause of something ILLEGAL, supported by oath or affirmation under penalties of perjury, is facially unconstitutional. This Court has no authority or jurisdiction to compel Brian to produce these Private Papers. It cannot be ANY clearer than the U.S. Supreme Court's words from 100 years ago:

[27] It is our opinion, therefore, that a compulsory production of a man's private papers to establish a criminal charge against him, or to forfeit his property, is within the scope of the Fourth Amendment to the Constitution, in all cases in which a search and seizure would be; because it is a material ingredient, and effects the sole object and purpose of search and seizure.

[28] ...It is contended by the counsel for the government, that it is a legitimate proceeding, sanctioned by long usage, and the authority of judicial decision. No doubt long usage, acquiesced in by the courts, goes a long way to prove that there is some plausible ground or reason for it in the law, or in the historical facts which have imposed a particular construction of the law favorable to such usage... The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo. In the one case, the government is entitled to the possession of the property; in the other it is not.

[29] But, when examined with care, it is manifest that there is a total unlikeness of these official acts and proceedings to that which is now under consideration. In the case of stolen goods, the owner from whom they were stolen is entitled to their possession; and in the case of excisable or dutiable articles, the government has an interest in them for the payment of the duties thereon, and until such duties are paid has a right to keep them under observation, or to pursue and drag them from concealment; and in the case of goods seized on attachment or execution, the creditor is entitled to their seizure in satisfaction of his debt; and the examination of a defendant under oath to obtain a discovery of concealed property or credits is a proceeding merely civil to effect the ends of justice, and is no more than what the court of chancery would direct on a bill for discovery. Whereas, by the proceeding now under consideration, the court attempts to extort from the party his private books and papers to make him liable for a penalty or to forfeit his property.

[35] "Papers are the owner's goods and chattels; they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and, therefore, it is too much for us, without such authority, to pronounce a practice legal which would be subversive of all the comforts of society.

[40] "Lastly, it is urged as an argument of utility, that such a search is a means of detecting offenders by discovering evidence. I wish some cases had been shown, where the law forceth evidence out of the owner's custody by process. THERE IS NO PROCESS AGAINST PAPERS IN CIVIL CAUSES. IT HAS BEEN OFTEN TRIED, BUT NEVER PREVAILED. Nay, where the adversary has by force or fraud got possession of your own proper evidence, there is no way to get it back but by action. In the criminal law such a proceeding was never heard of; and yet there are some crimes, such, for instance, as murder, rape, robbery, and house-breaking, to say nothing of forgery and perjury, that are more atrocious than libelling. But our law has provided no paper-search in these cases to help forward the conviction. Whether this proceeds from the gentleness of the law towards criminals, or from a consideration that such a power would be more pernicious to the innocent than useful to the public, I will not say. It is very certain that the law obliges no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it would seem, that search for evidence is disallowed upon the same principle. Then, too, the innocent would be confounded with the guilty."

[46] And any compulsory discovery by extorting the party's oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.

[51] We have already noticed the intimate relation between the two amendments. They throw great light on each other. For the "unreasonable searches and seizures" condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man "in a criminal case to be a witness against himself," which is condemned in the Fifth Amendment, throws light on the question as to what is an "unreasonable search and seizure" within the meaning of the Fourth Amendment. And we have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself. We think it is within the clear intent and meaning of those terms. We are also clearly of opinion that proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him, THOUGH THEY MAY BE CIVIL IN FORM, are in their nature criminal... [W]e are further of opinion that a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution, and is the equivalent of a search and seizure -- and an unreasonable search and seizure -- within the meaning of the Fourth Amendment. Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose.

[55] We think that the notice to produce the invoice in this case, the order by virtue of which it was issued, and the law which authorized the order, were unconstitutional and void, and that the inspection by the district attorney of said invoice, when produced in obedience to said notice, and its admission in evidence by the court, were erroneous and unconstitutional proceedings.

Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).

And,

[30] The order of May 5 requiring appellant to produce the papers called for in the subpoena duces tecum was void under the Fourth Amendment. Its enforcement would amount to the ancient seizure and search which continued by usage in England until the decision of Lord Camden in Entick v. Carrington, 19 How. St. Tr. 1029. See also Boyd v. United States, 116 U.S. 616, 626; Hartranft's Appeal, 85 Pa. St. 433; Ex parte Brown, 72 Missouri, 83; In re Lester, 77 Georgia, 143; In re Morer, 101 N.W. Rep. 588.

[104] The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. He owes no such duty to the State, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. HE OWES NOTHING TO THE PUBLIC SO LONG AS HE DOES NOT TRESPASS UPON THEIR RIGHTS.

[108] We are also of opinion that an order for the production of books and papers may constitute an unreasonable search and seizure within the Fourth Amendment. While a search ordinarily implies a quest by an officer of the law, and a seizure contemplates a forcible dispossession of the owner, still, as was held in the Boyd case, the substance of the offense is the compulsory production of private papers, whether under a search warrant or a subpoena duces tecum, against which the person, be he individual or corporation, is entitled to protection. [Emphasis added].

Hale v. Henkel, 201 U.S. 43, 50 L. Ed. 652, 26 S. Ct. 370 (1906).

a. And, in case there is any doubt that the Fifth Amendment applies to civil cases in addition to criminal cases:

[29] The Government insists, broadly, that the constitutional privilege against self-incrimination does not apply in any civil proceeding. The contrary must be accepted as settled. The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant. [Emphasis added].

McCarthy v Arndstein, 266 U.S. 34, 69 L. Ed. 158, 45 S. Ct. 16 (1924).

And,

[68] Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. [Emphasis added].

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

i.  There can be no question that a setting in which Brian can lose (and has already lost) his Rights to his daughter and his property without criminal conviction constitutes a "setting[] in which [his] freedom of action is curtailed in [a] significant way." As only a few examples indicate, the Previous Court has already taken away Brian's Right to choose the education he wants for his daughter, the Right to spend time with her on his scheduled days, and the Right to his property (e.g., purported child support, maintenance), not to mention his Rights to Due Process and Equal Protection, ALL taken without ANY criminal conviction or accusation.

b. It is an established principle in American Jurisprudence that:

"The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statue, to be valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows: The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted."

"Since an unconstitutional law is void, the general principals follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it.... A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it superseded thereby. No one is bound to obey an unconstitutional law and no courts are bound to enforce it."

Volume 16, American Jurisprudence 2d, Section 256, page 177 (1979).

And,

[30] That act was therefore as inoperative as if it had never been passed, for an unconstitutional act is not a law, and can neither confer a right or immunity nor operate to supersede any existing valid law. Norton v. Shelby County, 118 U.S. 425, 442; Ex parte Siebold, 100 U.S. 371, 376.

Chicago v. Hackett, 228 U.S. 559, 57 L. Ed. 966, 33 S. Ct. 581 (1913).

c. Therefore, the Mandatory Disclosure Rules are unconstitutional on their face and as applied. Additionally, the Discovery Rules in divorce proceedings are unconstitutional as applied. Hence, even though Brian has unwillingly turned over his Private Papers, these personal books and records may not be admitted into evidence or used in these proceedings in any way.

DISPUTED ITEMS

III. CUSTODY

The parties should maintain joint "custody" and equal parenting time and responsibilities

Recommendations from the Custody Evaluation Report and Associated "Expert" Witness Testimony Must Be Barred As They, As Well As All Custody Evaluations, Are "Junk Science," Unreliable, and Irrelevant

16. Brian has unwillingly submitted to the Court-ordered custody evaluation (hereinafter "Evaluation") performed by Dr. Alan P. Childs and Dr. Martin H. Blackman (hereinafter "Dr. Childs" and "Dr. Blackman" respectively) pursuant to 750 ILCS 604 (b).

[29] Duress exists where one is induced by the wrongful act of another to make a contract under circumstances which deprives her of the exercise of her free will. (Regenold v. Baby Fold, Inc. (1977), 68 Ill.2d 419, 432-33, 369 N.E.2d 858.) Mere annoyance or vexation will not constitute duress, but there must be such compulsion affecting the mind as shows that the execution of the note is not the voluntary act of the maker. (People ex rel. Drury v. Catholic Home Bureau (1966), 34 Ill.2d 84, 92-93, 213 N.E.2d 507.) The burden of proving such duress is on the person asserting it. 34 Ill.2d 84, 92, 213 N.E.2d 507.

First Security Bank v. Bawoll, 458 N.E.2d 193, 120 Ill. App.3d 787 (1983).

a. The Evaluation was performed against Brian's will and objections. But based on the strong "recommendation" of the Previous Court, the significant pressure applied from the Guardian Ad Litem (Jacalyn Birnbaum of Nadler, Pritikin and Mirabelli, hereinafter "Jacalyn Birnbaum"), and after his previous attorney (Jay Frank of Aronberg, Goldgehn, Davis and Garmisa, hereinafter "Jay Frank") immediately quit representing Brian when Brian initially refused, Brian, who at the time was unaware of his Right to privacy and other related Rights secured by the Federal Constitution, felt threatened to submit to this Evaluation in order to ensure equitable time with his daughter and therefore agreed to the Evaluation.

i.  On Sunday, February 10, 2002, Brian called Jay Frank seeking advice after Laurie had physically abused him multiple times. Jay Frank suggested that Brian go into court on February 11, 2002 in the morning and file an order of protection WITHOUT counsel because he would more likely get a favorable ruling. Jay Frank advised Brian to communicate to the Court:

1. That Brian needed to file this order of protection immediately.

2. That Brian's attorney was not available, which was the reason Brian was appearing by himself.

3. That Laurie might leave the state for New Jersey (where she had family) without any notice and take Samantha.

4. That the parties' previous agreement had been that the party that has scheduled time with Samantha also had exclusive access to the parties' car.

5. That Laurie might change the locks on the marital residence, which she had previously threatened to do.

6. That Brian requested the Court to prevent Laurie from removing Samantha from him when it was his scheduled time.

7. That Brian requested the Court to order Laurie not to destroy any of Brian's personal possessions in the marital residence.

8. That Brian requested the Court to order Laurie not to deny Brian access to the marital residence.

9. That Brian requested the Court to order Laurie not to do anything negative to Brian in front of Samantha.

ii. On the morning of February 11, 2002, Brian was afraid of making a legal mistake and asked a previous friend of his (who was not a divorce attorney but who also worked at Aronberg, Goldgehn, Davis and Garmisa) to assist him finding the correct rooms and completing the correct forms for the order of protection.

1. After Brian and his friend located the correct room and Brian completed the order of protection, Brian's friend suggested that he "may get into trouble" if he appeared in front of the Previous Court without proper representation.

2. Brian immediately communicated this with Jay Frank and begged him to represent him in court, which he unwillingly agreed to do.

3. After the hearing was transferred to multiple courtrooms, and after the closed-door pre-trial, Jay Frank advised Brian that the Previous Court was making a very strong "recommendation" that he have "visitation" with his daughter for only four out of the next fourteen days and immediately submit to the Evaluation. Jacalyn Birnbaum confirmed the Court's recommendation in the closed-door conference to Brian and strongly suggested that Brian agree. Jacalyn Birnbaum further suggested that there would be negative "ramifications" if Brian did not agree to the Previous Court's recommendations regarding visitation and the Evaluation.

4. Regardless of the significant pressure being applied by the Previous Court, Jacalyn Birnbaum, and Jay Frank, Brian refused the Evaluation and refused anything less than equal and shared custody. Upon Brian's refusal to agree to the Previous Court's and attorneys' "recommendations," Jay Frank immediately withdrew as Brian's attorney, stating to Brian that "he wasn't going to help him lose." As it was now the end of the day, no hearing took place.

5. Brian hired a new attorney on February 13, 2002.

iii. Out of fear of losing his daughter (considering all of the pressure), and after Laurie agreed to split Samantha's time equally with Brian, and upon the suggestion of Brian's replacement attorney (Michael Sabath of Kalcheim, Schatz, and Berger, hereinafter "Michael Sabath") to go along with the Previous Court's recommendation, and out of fear that the Previous Court would not approve/accept the party's agreement to allow Brian equal time with his daughter unless he agreed (based on Michael Sabath's counsel), Brian unwillingly agreed (i.e., under duress) to the Evaluation and to pay for half of the $8,000 Evaluation fee.

17. From the Evaluation, Dr. Childs and Dr. Blackman produced the custody evaluation report (hereinafter "Report").

18. Within the Report, Dr. Childs and Dr. Blackman formed a number of opinions, conclusions, and recommendations regarding the care, control, custody, and parenting time of Samantha (hereinafter "Recommendations").

19. Laurie, upon information and belief, intends to offer the Recommendations into evidence.

20. Laurie, upon information and belief, intends to offer Dr. Childs as an "expert" witness at the hearing, at which time he will testify regarding his Recommendations.

21. Laurie, upon information and belief, intends to offer testimony and evidence from Dana Royce Baerger, JD PhD (hereinafter "Dana Baerger") as another "expert" witness at the hearing, at which time she will testify regarding her Forensic Mental Health Report: Review of Child Custody Evaluation (submitted to the Court on May 8, 2003 as Respondent's Additional Answers to Interrogatories Pursuant to Illinois Supreme Court Rule 213) which is an analysis of the Recommendations and supporting data used to develop the Recommendations (hereinafter "Analysis of Recommendations").

a. As an aside, at no time did Brian give Dana Baerger any authorization to review his personal/private information contained in the Report.

22. However, this Court has a "gatekeeping" obligation to keep "pseudoscience" (also known as "junk science") out of the courtroom. Brian objects to any and all "expert" testimony, analysis, and opinions regarding the Report, Recommendations, and Analysis of Recommendations.

a. Additionally, as Brian agreed to allow the Evaluation under duress, the Recommendations must be barred.

23. Regardless of the length or depth of experience on the purported experts' Curriculum Vitae,[14] it is self-evident that the Recommendations and Analysis of Recommendations are not based on any reliable foundation or science.[15] As per a subpoena served on Dr. Childs on or around December 17, 2002, as well as a Court order issued on March 13, 2003, Dr. Childs was ordered to, but did not, turn over the following information to Brian:

a. Names of any and all experts relied upon and/or upon which he intended to base his testimony, and;

b. All books, periodicals, or other publications relied upon, and;

c. Any articles, periodicals, or other publications he had authored or been involved with in any way, and;

d. Any test results.

24. Laurie, Dr. Childs, Dr. Blackman, and Dana Baerger have not presented any support, valid or otherwise, that a custody evaluation has general acceptance in the scientific field, or that a custody evaluation has any supporting scientific evidence, or that a custody evaluation measures parental fitness.

a. The "most commonly accepted" definition of science "among the general population... is that science concerns a collection of facts so well established that they are generally considered true, or at least considered to possess a reasonable certainty of truth."[16]

b. By their own admissions, psychologists recognize that custody evaluations are an "art," fully admit that their "concerns about many of the instruments ostensibly developed for child custody evaluations is the lack of scientific foundation for interpreting them," fully admit that the standards, methods, and procedures for custody evaluations are "not sufficiently developed," and also admit that there is insufficient "consensus among scholars and practitioners."[17]

c. Psychologists also readily admit that no test, standard, or criteria exist that adequately measures parental fitness or a child's best living arrangements, nor translates into what is in a child's best interest.[18]

d. The relationship between law and mental health disciplines, especially child custody evaluations, has generally been marked by ambivalence.[19]

e. In this Evaluation, as well as the Analysis of Recommendations, as well as ALL custody evaluations, the facts and data are insufficient and irrelevant, reliable scientific principles and methods are not used, the purported "experts" do not apply the scientific principles and methods reliably, and the opinions routinely exceed the limitations of empirically-based scientific knowledge.[20]

i.  In fact, the best that mental health professionals strive for is to be "quasi-scientific,"[21] which is certainly not enough for a custody evaluation, or analysis thereof, to be admitted as scientific evidence.

f. In the Analysis of Recommendations, Dana Baerger cites a number of behavioral science research reports (i.e., last names and years ONLY) on which she specifically bases her conclusions and opinions. However, these supporting facts (i.e., the behavioral science research reports to which she refers) are not in evidence or part of the record and are therefore hearsay.

[48] Plaintiff correctly states that the opinion of an expert is admissible only if it is supported by facts in evidence. (See Bartimus v. Paxton Community Hospital (1983), 120 Ill. App. 3d 1060, 1064, 458 N.E.2d 1072, 76 Ill. Dec. 418 (expert's opinion based on presumed facts not in evidence is improper because it may cause the jury to assume that such facts are true and have been adopted by the witness).)

Ann Hulman v. Evanston Hospital, 631 N.E.2d 322, 259 Ill. App. 3d 133, 197 Ill. Dec. 319 (1994).

25. There is no research to support the proposition that mental health professional expert-guided child-custody placements or recommendations are better than those where children are placed without the benefit of an expert opinion.[22] Mental health professionals have NO scientific research to guide them in making evaluations concerning numerous factors relative to the determination of a child's best interest.

a. "[A]s a group, lawyers display an appalling degree of scientific illiteracy, which ill equips them to educate and guide the bench in its decisions on admissibility of evidence proffered through expert witnesses. This scientific illiteracy is shared by a large segment of the trial and appellate bench; many judges simply do not understand evidence based on scientific principles. Even more tragically, they overlook important attributes indicative of reliability of evidence that they reject, while ascribing positive properties to other evidence they accept which that evidence simply does not possess."[23]

b. "No scientific research exists to demonstrate that mental health professionals are accurate in predicting specific outcomes that will be in the best interests of the child in custody determinations."[24]

c. It is even further unsettling considering there is no outcome research comparing the consequences of child-custody placement decisions based on expert testimony to those without expert guidance.[25]

d. Although state child-custody statutes often include factors like parental moral fitness and financial capability, there is no scientific research on these components to aid mental health professionals.[26] Further complicating these determinations is the fact that the extent of the methodological rigor necessary for a psychologist or psychiatrist to offer exclusively science-based opinions on the best interest of a particular child remains unestablished. In other words, custody evaluations can be manipulated, introduce subterfuge into the court and legal process, and hinder a properly reasoned decision.

e. The majority of psychological research, especially in the post-divorce adjustment area, has been pathology based.[27]

f. "[E]ssentially all of the newer forensic assessment instruments that have been developed specifically for purposes of child custody decision-making have significant limitations. Although those who have developed these instruments have made an important first step, it is clear that further research examining the reliability and validity of these forensic instruments is necessary before they become part of the custody evaluator's assessment process. What is less clear, however, is whether this research will occur. In essentially every published review of these custody assessment instruments, concerns about their reliability and validity have been identified, and the need for research has been made clear. Unfortunately, child custody evaluators continue to wait for that research."[28]

g. Most mental health professional expert testimony is largely based on the unverified, and often unverifiable, observations and experiences of the expert.[29] Clinical judgment (i.e., untested opinions) and decision-making characteristically rely upon the practitioner's reliance on personal experience instead of statistically analyzed data drawn from valid and reliable research.[30]

"[P]olicymakers should not accept a practitioner's unsupported allegation that something works when the only warrant for this claim is purported clinical experience. Clinical experience is an invaluable source of ideas. It is also the only way that a practitioner can acquire certain behavioral skills, such as how to ask questions of the client. It is not an adequate method for settling disputes between practitioners, because they each appeal to their own clinical experience.

All policymakers should know that a practitioner who claims not to need any statistical or experimental studies, but relies solely on clinical experience as adequate justification, by that very claim is shown to be a non-scientifically minded person whose professional judgments are not to be trusted."[31]

h. Therefore, expert testimony that highlights what might not be in a particular child's best interest, but rarely suggests which of several custodial arrangements would be in a child's best interest, should be inadmissible because the testimony will not aid the trier of fact in determining what would be in the best interest of the child. Custody evaluations are simply bad science that leads to bad decisions.

i. Custody evaluations are inherently biased.[32]

j. Additionally, as custody evaluations are ALWAYS lacking scientific evidence, scientifically inaccurate, and therefore can NEVER be legally admitted, custody evaluations are therefore ALWAYS invalid, completely useless, and unnecessary in any divorce proceeding.

26. The general law regarding the admissibility of scientific evidence in Illinois courts is unclear, tortured, irregularly (chaotically) applied, and has recently reached a shockingly bizarre level. The state of the law in this area should serve as an alarm to the legal community.

a. There are currently four basic paradigms of legal admissibility for scientific evidence used by Illinois state courts. They arise from two federal cases, Frye v. United States (293 F. 1013 (D.C. Cir. 1923)) and Daubert v. Merrell Dow Pharmaceuticals,Inc. (509 U.S. 579 (1993)), and two Illinois state cases, People v. Jennings (96 N.E.1077 (Ill. 1911)) and Harris v. Cropmate Co. (706 N.E.2d 55 (Ill. App. Ct. 1999). The multiplicity of standards permits Illinois courts to ARBITRARILY pick and choose the standard they wish in an outcome determinative fashion, thereby precluding the consistency of law and justice through ruthless manipulation.

b. Illinois child-custody cases seem to follow a pattern of wholesale admission of mental health professional expert opinion evidence (e.g., see In re C.B., 618 N.E.2d 598 (Ill. App. Ct. 1993), In re Marriage of Lewis, 544 N.E.2d 24 (Ill. App. Ct. 1989), and In re Marriage of Petraitis, 636 N.E.2d 691 (Ill. App. Ct. 1993)). The admissions are made without any type of preliminary assessment as to whether the reasoning or methodology underlying the testimony is valid or substantiated, and without any type of preliminary assessment of whether that reasoning or methodology properly can be applied to the facts of a particular case. Rather, after admission, if it is discovered that the testimony was unreliable and insufficiently based, the mental health professional expert's opinion may be rejected.

c. Equally as troublesome is where the mental health professional's opinion is admitted and not rejected. Illinois courts and commentators exhibit great confusion as to what weight the testimony should be given. Such an inquiry seems fruitless ab initio because there is no preliminary assessment as to whether the expert's opinion reasoning or methodology underlying the testimony is valid or substantiated, and because no assessment is given as to whether that reasoning or methodology properly can be applied to the facts of a particular case. However, the weight which the admitted testimony should be given is obviously subject to much debate.

d. Therefore, the admission of this Evaluation's "junk science," as well as any analysis thereof (i.e., Analysis of Recommendations and related testimony), which is based on non-scientific, non-specialized, and non-technical knowledge is highly prejudicial and cannot be qualified as expert testimony.

27. Under the Frye standards, Brian objects to the entry of the Recommendations and Analysis of Recommendations into evidence, as well as any testimony by any "expert" witnesses regarding the Recommendations, as Dr. Childs and Dana Baerger are not "experts" in parenting or custody determinations and this Court is capable of forming a correct judgment without their assistance. The Recommendations, Analysis of Recommendations, and any associated testimony are therefore not admissible.

The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence.

Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923).

And,

[58] Additionally, in determining whether an expert is qualified to render an opinion based on novel scientific evidence, Illinois follows the test set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). See People v. Miller, 173 Ill. 2d 167, 187 (1996). Under the standard articulated in Frye, the proponent of expert testimony predicated upon scientific theory must establish that the theory has gained general acceptance in the expert's scientific field. Miller, 173 Ill. 2d at 187-88. The proponent of the evidence also has the burden of establishing the qualifications of the expert testimony. People v. Jordan, 103 Ill. 2d 192, 208 (1984).

[60] Having determined that the proffered evidence would be of assistance to the trier of fact, we must next examine whether the evidence met the other foundational and reliability requirements for admissibility. In order to apply the correct foundational criteria, we must first characterize whether the proffered evidence constitutes scientific evidence. See Harris, 302 Ill. App. 3d at 368. If the testimony does not constitute scientific evidence, then the Frye admissibility standard does not apply.

[61] Although Illinois has not adopted the standard for admission of scientific testimony articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), several Illinois courts have utilized Daubert's discussion of "scientific knowledge" to determine what constitutes scientific testimony. See Whiting v. Coultrip, 324 Ill. App. 3d 161, 166 (2001); Harris, 302 Ill. App. 3d at 369. In Daubert, the United States Supreme Court explained that "science" is a process whereby theories are proposed and refined. To qualify as "scientific knowledge," an inference or assertion must be derived by the scientific method. Daubert, 509 U.S. at 590, 125 L. Ed. 2d at 481, 113 S. Ct. at 2795. In short, a "scientific expert" is an expert who relies on the application of scientific principles, rather than on skill or experience-based observations, for the basis of his opinion. Harris, 302 Ill. App. 3d at 369.

[62] In the instant case, the trial court found that Dabbagh was a nonscientific expert and that her opinions were predicated upon her observations and experience resulting from her work in the field of international child abduction. However, an examination of her testimony reveals that her opinions were not derived solely from her observations and experience. Rather, Dabbagh testified that her evaluation was predicated upon factors identified in studies and literature authored by certain psychologists. Dabbagh testified that she examined the evidence in the case in order to determine whether these factors were present. It is therefore apparent that Dabbagh's opinions relied on the application of psychological studies and literature. As such, we believe that Dabbagh's testimony constituted scientific evidence. See People v. Shanahan, 323 Ill. App. 3d 835, 837-38 (2001) (opinion testimony that a child suffered from "battered child syndrome" was scientific evidence for purposes of Frye).

[63] As scientific evidence, the trial court was obligated to conduct a Frye hearing to determine whether the scientific theory upon which the evidence was based was novel and, if so, whether the scientific theory has gained general acceptance in the relevant scientific community. See Miller, 173 Ill. 2d at 188. Without a determination that the science relied upon by Dabbagh has been accepted by the relevant scientific community, her testimony lacked the necessary foundation to be admitted into evidence and should not have been considered by the trial court.

In re Marriage of Jawad, 326 Ill.App.3d 141, 759 N.E.2d 1002, 259 Ill.Dec. 941 (2001).

28. However, as Frye's general acceptance threshold permits a court to admit scientific evidence based on an "expert's" proclamation that such evidence is indeed "generally accepted," and as mental health professionals' testimony is largely based on unverifiable observations and experiences of the expert (see paragraph 25), the Daubert standard is more likely applicable. Thus, "scientific knowledge" must be derived from the scientific method supported by "good grounds" in validating the expert's testimony, establishing a standard of "evidentiary reliability." Regardless of the length of Dr. Childs and Dana Baerger's Curriculum Vitae, or any professed strength of reputation, their techniques, methods, theories, and "science" on determining custody: (1) are not "generally accepted" in the scientific community; (2) cannot be and have not been empirically tested; (3) have not been subjected to peer review and publication; and, (4) have unknown Type I and Type II error rates.[33] Therefore, no precision exists and Dr. Childs and Dana Baerger are not qualified as experts to submit Recommendations to the Court, nor testify in this case, under the Daubert standards.

[26] The court declared that expert opinion based on a methodology that diverges "significantly from the procedures accepted by recognized authorities in the field . . . cannot be shown to be 'generally accepted as a reliable technique.'" Id., at 1130, quoting United States v. Solomon, 753 F. 2d 1522, 1526 (CA9 1985).

[52] Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. "Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry." Green, at 645. See also C. Hempel, Philosophy of Natural Science 49 (1966) ("[T]he statements constituting a scientific explanation must be capable of empirical test"); K. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989) ("[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability").

[53] The fact of publication (or lack thereof) in a peer-reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.

[54] Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, see, e. g., United States v. Smith, 869 F. 2d 348, 353-354 (CA7 1989) (surveying studies of the error rate of spectrographic voice identification technique), and the existence and maintenance of standards controlling the technique's operation. See United States v. Williams, 583 F. 2d 1194, 1198 (CA2 1978) (noting professional organization's standard governing spectrographic analysis), cert. denied, 439 U. S. 1117 (1979).

[55] Finally, "general acceptance" can yet have a bearing on the inquiry. A "reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community." United States v. Downing, 753 F. 2d, at 1238. See also 3 Weinstein & Berger Para(s) 702[03], pp. 702-41 to 702-42. Widespread acceptance can be an important factor in ruling particular evidence admissible, and "a known technique that has been able to attract only minimal support within the community," Downing, supra, at 1238, may properly be viewed with skepticism.

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).

29. Further, in Kumho Tire, the U.S. Supreme Court confirmed that the standards set forth in Daubert applied to any expert testimony based on "technical" or "other specialized" knowledge, not simply testimony based upon a "scientific" technique. In the same decision, the U.S. Supreme Court declared that admitting unreliable, questionable, or invalid data was an ABUSE OF JUDICIAL DISCRETION.

[20] The Daubert "gatekeeping" obligation applies not only to "scientific" testimony, but to all expert testimony.

[94] I join the opinion of the Court, which makes clear that the discretion it endorses -- trial-court discretion in choosing the manner of testing expert reliability -- is not discretion to abandon the gatekeeping function. I think it worth adding that it is not discretion to perform the function inadequately. Rather, it is discretion to choose among reasonable means of excluding expertise that is fausse and science that is junky. Though, as the Court makes clear today, the Daubert factors are not holy writ, in a particular case the failure to apply one or another of them may be unreasonable, and hence an abuse of discretion. [Scalia, J., O'Connor, J., and Thomas, J. concurring in judgment]. [Emphasis added].

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

30. Moreover, the fundamental Right of a parent to raise his or her own child has never been premised on any kind of expertise. Mental health "experts" may be able to help parents with various aspects of parenting. The Right to raise one's own child as one sees fit, however, is no more subject to any such expert opinion about a child's "best interest" than is the Right to freedom of religion subject to precisely analogous "expert" opinions about consistent theology. Citizens have the Right to raise their children; citizens have the Right to freedom of religion - in both cases the opinions of "experts" about how well citizens exercise those Rights have no bearing upon whether citizens actually possess those Rights. To say otherwise is reductio ad absurdum, since Rights that are subject to such "expert" opinions are not Rights at all. "Rights," in fact, are inherent in the individual and flow out of the constitutionally recognized endowment of "Nature and Nature's God" and are not subject to the "expert" opinions of mental health professionals and/or social workers. This is critically important in light of the obvious inability of mental health "experts" to achieve consensus on any notions of "best interest of the child" other than protection from abuse or criminal neglect.

[48] Unquestionably, there are many competing theories about the most effective way for parents to fulfill their central role in assisting their children on the way to responsible adulthood. While we do not pretend any special wisdom on this subject, we cannot ignore that central to many of these theories, and deeply rooted in our Nation's history and tradition, is the belief that the parental role implies a substantial measure of authority over one's children. Indeed, "constitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society." Ginsberg v. New York, supra, at 639. [Emphasis added].

Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035, 61 L. Ed. 2d 797 (1979).

a. Utilizing the virtually unlimited discretion vested in them by 750 ILCS 5/604, "family" courts routinely fail in their fundamental responsibility to protect the liberty interests of all citizens, in part by over-estimation of, and/or over-reliance upon the expertise of various social workers and mental health professionals that courts frequently appoint as "experts" to assist in pursuit of the laudable goal of assessing the "best interest of the child." Courts often use the "expert" findings of such professionals to help justify the implementation of disproportionate "custody" schedules and Rights as between parents. But courts fail to correctly appraise the modest status of the knowledge-claims of such "experts," the best of whom readily concede how little consensus "knowledge" exists in their field of interest. Exactly as mental health "experts" cannot begin to achieve a consensus definition of the "best interest" of adults, mental health "experts" cannot begin to achieve a consensus definition of the "best interest" of children.

31. The Recommendations contained in the Report, the findings contained in the Analysis of Recommendations, and any testimonies offered by any "experts" are irrelevant and highly prejudicial.

32. The Recommendations in the Report regarding residential custody and parenting time are completely devoid of a proper and logical analysis of the facts (see Exhibit B - paragraph 17). The Report is SIGNIFICANTLY and OPENLY BIASED towards Laurie and against Brian.

33. Therefore, Brian objects to any presentation of the Recommendations, Analysis of Recommendations, and associated "expert" testimony, in that "junk science" must be barred.

Dana Baerger's Report and Testimony Must Be Stricken and Not Allowed Into Evidence as Laurie Clearly Violated a Court Order

34. On May 29, 2003, the Court granted Brian's Motion to Open Limited Discovery (filed on May 23, 2003), which stated in pertinent part:

2. Laurie is ordered to produce hard copies or electronic copies of all books, reports, documents, and/or other supporting materials that Dana Royce Baerger refers to in her forensic mental health report, no later than 10 days before June 23, 2003 (the start of trial), including missing page numbers in the bibliography.

A. For those large books cited in the report that were not used in their entirety to support the opinions, recommendations, and conclusions, Laurie is required to produce only those pages that completely provide the support, and additionally to copy the front cover of the book. The intent is to give Brian all pages of the book that support the report.

3. If Laurie does not produce as ordered, Dana Royce Baerger's report and testimony is stricken and will not be allowed into evidence at trial. Laurie must fully comply within the spirit of this order. [Emphasis not added].

35. It is plainly clear from the May 29, 2003 order that, except for "large books" (from which Laurie was "required to produce only those pages that completely provide the support"), Laurie was required to produce copies of all other supporting materials in their entirety. Additionally, Laurie was ordered to produce the "missing page numbers." As Laurie has not complied with the May 29, 2003 order, AND as the order provides that Dana Baerger's report (i.e., Analysis of Recommendations) and testimony be stricken and not allowed into evidence if Laurie does not comply, AND as Laurie's attorneys even attempted to fraudulently misdirect Brian and this Court that they had fully complied, the Analysis of Recommendations and associated testimony must be stricken and not allowed into evidence, and Laurie's attorneys should be sanctioned for their fraudulent actions.

a. After Laurie's attorney had communicated to Brian that Dana Baerger's supporting materials would be ready for pickup on June 13, 2003, Brian picked up the materials.

b. Laurie did not produce the missing page numbers in the bibliography as ordered. Therefore, Laurie clearly violated the May 29, 2003 order.

c. On page 11 of the Analysis of Recommendations, Dana Baerger makes the following statement: "In addition, the use of self-report measures in a forensic evaluation should include a discussion of the limitations of the test data," and then cites one of her sources as "Martindale, 2001."

i.  As part of the supporting materials that Laurie's attorneys turned over to Brian per the May 29, 2003 order, Brian received a 2-page document titled "Cross-examining mental health experts in child custody litigation" by David A. Martindale, which was published in The Journal of Psychiatry and Law (Winter, 2001), and should encompass 29 pages (pages 483 - 511), which is clearly displayed on the title page of the document.

ii. The first page of this document is the title page. Therefore, Laurie's attorneys only turned over one page of the 29-page report, purportedly page 505.

iii. It is obvious that the 2-page document for this source that Laurie's attorney's turned over to Brian was re-typed, as:

1. The source is obviously out of a formal publication (i.e., The Journal of Psychiatry and Law), yet the title page/first page was obviously re-typed and looks more like a college termpaper cover page than what would come out of a professionally published journal; and

2. On the second page, the page number (505) is displayed directly before the first sentence of the page, and the sentence on the last line of the page is cut off midway (i.e., the page is not formatted properly).

a. In fact, Laurie's attorneys turned over to Brian all pages from another article (i.e., Improving the Clinical Judgment and Decision Making in Forensic Evaluations, pages 35 - 76) from the Journal of Psychiatry and Law, which specifically provides an example of the proper formatting of a document out of this publication.

iv. In other words, not only did Laurie's attorneys clearly violate the May 29, 2003 order by not turning over to Brian the full document, but they did not even turn over a copy of the purported page 505, and rather re-typed it (and the title page) in their OBVIOUS attempt to fraudulently misdirect Brian and this Court into thinking they had complied.

v. As is very clear from the title of the material (i.e., "Cross-examining mental health experts in child custody litigation"), Laurie's attorneys were obviously concerned that the remaining 28 pages of the document would provide Brian important information that he would use to impeach Dana Baerger's testimony and analysis upon his cross-examination, which was of course Brian's reason for his Motion to Open Limited Discovery to acquire the supporting materials in the first place. Therefore, Laurie's attorneys chose to suppress and mask the evidence that they had a legal obligation to produce in order to hinder Brian, frustrate his efforts, and mislead the Court, which, at minimum, obviously offends RPC Rule 3.3 (a) (13) and RPC Rule 3.4 (a) (1).

d. On page 19 of the Analysis of Recommendations, Dana Baerger makes the following statement: "The Specialty Guidelines for Forensic Psychologists [ ] and the Guidelines for Child Custody Evaluations in Divorce Proceedings [ ] each address the need for collateral interviews in the context of a forensic evaluation, and the training arm of the American Academy of Forensic Psychology stresses the need for collateral interview data in conducting child custody evaluations," and then cites one of her sources as "Weissman, 1996."

i.  As part of the supporting materials that Laurie's attorneys turned over to Brian per the May 29, 2003 order, Brian received a 3-page document titled "Child Custody Evaluations: Concepts, Methods and Complications - C.E. Presentation" by Herbert N. Weissman, which was published for the American Academy of Forensic Psychology (March 1, 1997). This document was clearly a "presentation" (i.e., not a "book"), yet Laurie's attorneys only turned over 2 pages from this presentation, pages 6 and 10. Therefore, Laurie clearly violated the May 29, 2003 order.

ii. As is clear from the title of the document that it discusses "complications" of child custody evaluations, Laurie's attorneys were again obviously concerned that the remaining pages of the document would provide Brian important information that he would use to impeach Dana Baerger's testimony and analysis upon his cross-examination. Therefore, Laurie's attorneys chose to again suppress the evidence that they had a legal obligation to produce in order to hinder Brian, frustrate his efforts, and mislead the Court.

e. On page 18 of the Analysis of Recommendations, Dana Baerger makes the following statement: "Significantly, Wood, Nezworski, Lilienfeld, & Garb (2003) express concern that use of the Rorschach in forensic settings may violate a number of standards articulated by the Ethical Principles of Psychologists and Code of Conduct (APA, 1992, 2002)." Laurie's attorneys did not turn over the "APA, 1992" document to Brian. Therefore, Laurie clearly violated the May 29, 2003 order.

Recommendations from the Custody Evaluation Report and Associated "Expert" Witness Testimony Must Be Barred as Brian Was Denied Due Process and the Previous Court Violated Other Law

36. On June 4, 2003, Brian requested the Previous Court to reconsider its March 13, 2003 ruling that the Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110) (hereinafter ("Act") is incorporated into the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5), and, as a result, to then reconsider its ruling that Dr. Childs did not need to release his notes, tape recordings, or any other work product.[34]

a. The March 13, 2003 Order states as follows: "The Court finds that 740 ILCS 110 is incorporated into 750 ILCS 5, and services provided under 604(b) are protected by 740 ILCS 110." From this finding, the Previous Court reasoned and stated: "Dr. Childs does not need to release his notes, tapes, or any other work product created as part of his report and evaluation in this matter."

b. However, the Previous Court also ordered that: "Dr. Alan P. Childs shall respond within 14 days to Brian's subpoena request for billing records, names of experts relied upon, books and treatises referred to in forming his opinion, articles he has authored, and all materials faxed to him by Brian on March 26, 2002, all in relation to his report in this matter."

c. Over Brian's objections, the Previous Court denied Brian's request on June 4, 2003. Therefore, Brian was denied due process as he was prevented from properly examining the professional personnel consulted by the Court as provided for in 750 ILCS 5/604 (b). Denied the ability to properly examine the records of Dr. Childs and Dr. Blackman, Brian is unfairly and significantly hampered in his information to impeach the Evaluation.

i.  As the transcript of the June 4, 2003 hearing clearly shows (page 4), the Previous Court attempted to ignore Brian's request for findings of fact and conclusions of law, "railroaded" her decision, and denied Brian due process:

5 JUDGE MATHEIN: I am going to deny the Motion

6 for Reconsideration.

7 MR. LOVETT: On what basis, your Honor?

8 JUDGE MATHEIN: Next, we are moving along to

9 the motion to amend agreed interim order. We are going

10 to begin with the motion to strike.

11 MR. LOVETT: Your Honor, just on that last point

12 I object. I would just like to know on what grounds you

13 are denying my request.

14 JUDGE MATHEIN: I am denying your request

15 because you failed to set forth anything for which I can

16 grant your motion. You have failed to set forth the

17 requirements under a motion for reconsideration.

18 Now we are going to move to the motion to

19 amend agreed interim order and a motion to strike.

20 MR. LOVETT: Your Honor, --

21 JUDGE MATHEIN: Stop.

22 Mr. Ainley, anything further in support of

23 your motion to strike?

ii. Additionally, as the transcript of the June 4, 2003 hearing clearly shows (page 20), the Previous Court considers acknowledging due process requirements as an unnecessary change of "faith" for her:[35]

14 MR. LOVETT: Your Honor, I would like to

15 formally say I do object to the due process I was given

16 on my Motion to Reconsider.

17 JUDGE MATHEIN: Mr. Lovett, please. This is

18 not a forum for you to stand and proselytize. Please

19 step back. We are finished.

iii. In fact, Brian attempted to present to the Previous Court that, as he is a Pro Se litigant, the court errors if it dismisses the pleadings of a non-attorney litigant without instruction of how pleadings are deficient and how to repair pleadings. However, just as Brian attempted to present this to the Previous Court, she curtly responded "Stop," and then ignored Brian by moving to the next item on the call.

[12] Pro se plaintiffs are often unfamiliar with the formalities of pleading requirements. Recognizing this, the Supreme Court has instructed the district courts to construe pro se complaints liberally and to apply a more flexible standard in determining the sufficiency of a pro se complaint than they would in reviewing a pleading submitted by counsel. See e.g., Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972) (per curiam); see also Elliott v. Bronson, 872 F.2d 20, 21 (2d Cir. 1989) (per curiam). In order to justify the dismissal of a pro se complaint, it must be "'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Haines v. Kerner, 404 U.S. at 521, 92 S. Ct. at 594 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).

[13] Instead of simply dismissing the complaints for naming federal agencies as the defendants, it would have been appropriate for the district judge to explain the correct form to the pro se plaintiff so that Platsky could have amended his pleadings accordingly.

[16] We think that Platsky should have a chance to state his claim more clearly. It is not "'beyond doubt that the plaintiff can prove no set of facts in support of his claims,'" Haines v. Kerner, 404 U.S. at 521, 92 S. Ct. at 595, and therefore we hold that the better course would have been for the district court, in dismissing Platsky's pro se complaints, to grant him leave to file amended pleadings. See Elliott v. Bronson, 872 F.2d at 22. We have instructed Platsky that his complaint must set out, with particularity and specificity, the actual harms he suffered as a result of the defendants' clearly defined acts.

Platsky v. Central Intelligence Agency, 953 F.2d 26 (1991).

1. Brian is informed and believes that there was absolutely nothing wrong with his pleading, which was the reason why he wanted the Previous Court to explain the purported deficiencies.

iv. As Brian's Motion to Reconsider the Court's March 13, 2003 Order Regarding 740 ILCS 110 clearly presented under what authority the Previous Court could consider the motion, AND as Brian presented it to the Previous Court within the 30-day requirement (see footnote 34), AND as Brian presented the Previous Court with 4 well-defined legal theories[36] (see paragraphs 37 through 53), AND as Brian clearly presented his requested relief,[37] the Previous Court was obviously tyrannically ignoring Brian's request and thus denied him due process, which is protected under both the Federal and State Constitutions (see paragraph 88.n.).

1. It is logical to assume that the Previous Court knew that a timely appeal of its denial would not be available to Brian (as the divorce proceedings were on their third year and trial was scheduled only 3 months away), therefore effectively eliminating any viable recourse Brian might have to the clearly erroneous decision.

37. A custody evaluation is not treatment, and evaluators are not giving therapy. A custody evaluation is a forensic work product ONLY.[38]

38. The legislature did not intend the Mental Health and Developmental Disabilities Confidentiality Act to be incorporated into 750 ILCS 5.

a. The fundamental canon of statutory construction is to ascertain and give effect to the intention of the legislature. Varelis v. Northwestern Memorial Hospital, 167 Ill. 2d 449, 454, 657 N.E.2d 997, 212 Ill. Dec. 652 (1995). In doing so, the court must look principally to the words of the statute itself (Metropolitan Life Insurance Co. v. Washburn, 112 Ill. 2d 486, 492, 493 N.E.2d 1071, 98 Ill. Dec. 50 (1986)), for the language used by the legislature is the best indication of legislative intent. Kirwan v. Welch, 133 Ill. 2d 163, 165, 549 N.E.2d 348, 139 Ill. Dec. 836 (1989); County of Du Page v. Graham, Anderson, Probst & White, Inc., 109 Ill. 2d 143, 151, 485 N.E.2d 1076, 92 Ill. Dec. 833 (1985).

b. In interpreting a statute, the court may consider the reason and necessity for the law, the evils it was intended to remedy, and its ultimate aims. Also, the court must assume that the legislature did not intend an absurd or unjust result. However, the inquiry must always begin with the language of the statute, which is the surest and most reliable indicator of legislative intent. The language of the statute must be given its plain and ordinary meaning, and where the statutory language is clear and unambiguous, there will be no occasion to resort to aids of construction. People v. Pullen, 192 Ill.2d 36, 733 N.E.2d 1235, 248 Ill.Dec. 237 (2000).

c. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive. Consumer Product Safety Commission et al. v. GTE Sylvania, 447 U.S. 102, 100 S. Ct. 2051, 64 L. Ed. 2d 766 (1980).

39. Unlike the Mental Health and Developmental Disabilities Code (405 ILCS 5), statute 750 ILCS 5 includes no reference whatsoever to the Act or to a "therapist." Therefore, it is plainly obvious that by providing for custody evaluations under 750 ILCS 5 by "professional personnel" and excluding any reference to the Act, the legislature did not intend for records related to a custody evaluation to be "protected" under the Act.

a. The Mental Health and Developmental Disabilities Code (405 ILCS 5) includes and formally incorporates the Act with many references throughout (see, for example, 405 ILCS 5/2-114 (b) and (d), 405 ILCS 5/2-201 (b), 405 ILCS 5/3-800 (c), 405 ILCS 5/5-100A (d), and 405 ILCS 5/5-103). Therefore, it is plainly obvious that the legislature intended the Act to be incorporated into 405 ILCS 5.

i.  Statute 405 ILCS 5 serves the proper purpose to protect the confidentiality of mentally- or developmentally- disabled patients who receive "mental health or developmental disability services" (405 ILCS 5/1-115), such as those with a "developmental disability" (405 ILCS 5/1-106), "persons with mental illness" (405 ILCS 5/1-114, see also 1-119), persons where "mental retardation" exists (405 ILCS 5/1-116), or "a person who has received or is receiving treatment or habilitation" (405 ILCS 5/1-123).

ii. Additionally, the whole structure of the Act conforms to this purpose of protecting the confidentiality of mentally- or developmentally- disabled patients.

b. Statute 405 ILCS 5 is not incorporated into or referenced in 750 ILCS 5. Additionally, at no time has either parties' mental faculty (e.g., mentally retarded, mental impairment, mental disability) been called into question. Therefore, 405 ILCS 5, which references the Act for confidentiality, cannot be applied as the government-sanctioned custody evaluation services are not provided for within 405 ILCS 5, but rather 750 ILCS 5.

c. If 405 ILCS 5 is not incorporated into 750 ILCS 5 because it is not referenced, the Act is also not incorporated into 750 ILCS 5, as it is also not referenced.

40. The legislature could have chosen to use the term "therapist" instead of "professional personnel" (as stated in 750 ILCS 5/604 (b)) or "evaluator" (as stated in 750 ILCS 5/604.5), but it did not. Similarly, the Act contains no reference whatsoever to "professional personnel." Therefore, the legislature did not intend to prohibit the disclosure of records or communications of professional personnel who provide custody evaluations.

a. A custody evaluation under 750 ILCS 5/604 (b) is not a "treatment."

b. The recipients of a custody evaluation are not "patients" or "persons who need treatment." In fact, a forensic examiner has the court as his client, not the parties. As there is no therapist, there is no patient, and therefore, there is no patient-therapist privilege.[39]

c. Through 750 ILCS 5/604 (b), the court seeks "the advice of professional personnel" - NOT "treatment" from a "therapist" as defined in the Act.

d. More specifically, both Brian and Laurie were not "patients" and were not seeking or receiving therapy or "treatment."

41. Furthermore, Dr. Childs was not compensated by the parties or ordered by the Previous Court to provide therapy or treatment to Brian and Laurie.

42. If 740 ILCS 110 is incorporated into 750 ILCS 5, then disclosure of custody evaluations is, BY ITS VERY NATURE, prohibited and illegal.

43. Section 3 of the Act provides that "[a]ll records and communications shall be confidential and shall not be disclosed except as provided in this Act." [Emphasis added].

a. The "records" and "communications" to a "therapist" made confidential under the Act refer to any communication made during or in connection with providing mental health or developmental disability services, any record kept in the course of providing such services, and any information which indicates that a person is a "recipient."

b. Section 2 of the Act defines "mental health or developmental disabilities services" to include "examination, diagnosis, evaluation, treatment, training, pharmaceuticals, aftercare, habilitation or rehabilitation."

c. Section 2 of the Act defines a "recipient" as a "person who is receiving or has received mental health or developmental disabilities services."

d. A "therapist" is, by definition, one who specializes and gives therapy. Section 2 of the Act defines a "therapist" as "a psychiatrist, physician, psychologist, social worker, or nurse providing mental health or developmental disabilities services or any other person not prohibited by law from providing such services or from holding himself out as a therapist if the recipient reasonably believes that such person is permitted to do so." [Emphasis added].

44. To meet the avowed statutory purpose of protecting the confidentiality of the records and communications of those receiving mental health services, the Act is premised on a general prohibition against the disclosure of such information, except where specifically provided for in the Act. People v. Foskey, 175 Ill. App. 3d 638, 644 (1988). The general prohibition against disclosure of recipient records and communications was enacted by the legislature because:

[20] "Presumably, the patient in psychotherapeutic treatment reveals the most private and secret aspects of his mind and soul. To casually allow public disclosure of such would desecrate any notion of an individual's right to privacy. At the same time, confidentiality is essential to the treatment process itself, which can be truly effective only when there is complete candor and revelation by the patient. Finally, confidentiality provides proper assurances and inducement for persons who need treatment to seek it." [Emphasis added].

Laurent v. Brelji, 392 N.E.2d 929, 74 Ill. App.3d 214 (1979).

a. It is therefore clear that "recipients" of mental health or developmental disability services are "patients" or persons who need or seek "treatment," or who participate in a "treatment process."

45. Therefore, if the legislature had intended to incorporate the Act into 750 ILCS 5, a custody evaluation report under 750 ILCS 604 (b) could not be legally submitted to the court or the parties.

a. As any communication made during, or in connection with providing, mental health or developmental disability services are made confidential under the Act, a custody evaluation report provided for within 750 ILCS 604 (b) which explicitly details many of the communications between the professional personnel and recipients (as evidence to its recommendations to the court), would be forbidden.

b. Similarly, any testing performed during, or in connection with providing, mental health or developmental disability services would also be made confidential under the Act, and therefore the results of such tests would also be forbidden.

c. Also, any communications between the professional personnel and therapists that the recipients may have seen in the past would also be forbidden.

d. In summary, the professional personnel would not be able to document any communications in its court-submitted evaluation report between the professional personnel and recipients, and would not be able to provide any test results in its evaluation report, and would not be able to disclose any communications of the recipient's past therapists, as all of these communications and records would be considered confidential.

i.  As a point of fact, the Report for Brian and Laurie submitted to the Court exudes all "forbidden" communications and test results.

e. If the professional personnel could not document and share with the court these data to (theoretically) substantiate their recommendations, the recommendations would be unsupported and, thus, meaningless to the court as "advice."

f. Also, if data such as tape recordings, notes, and test results that support the recommendations cannot be examined by the parties, even in camera (e.g., to determine if the professional personnel were negligent/exerted the proper standard of care in conducting the evaluation, to determine if the professional personnel ignored, withheld, or concealed information of material fact), the recommendations are also unsupported and meaningless as they cannot be factually challenged.

i.  As the courts use this custody evaluation report as a tool to deprive parents of their Right to the care, control, and custody of their children, which is secured by the Federal Constitution, prohibiting access to the records and communications of the professional personnel violates the Due Process Clause of the Fourteenth Amendment of the Federal Constitution.

ii. Upon information and belief, Brian asserts that Dr. Childs did not exert the proper or appropriate standard of care in conducting the Evaluation or preparing the Recommendations, in that Dr. Childs blatantly ignored hard evidence, disregarded his own opinions and conclusions, misrepresented facts, and drew conclusions that were inconsistent with Illinois state law (see Exhibit B - paragraph 17).

1. Dr. Childs ignored hard evidence of physical violence by Laurie upon Brian.

2. Dr. Childs ignored hard evidence of fraud, false accusations, and other knowing falsehoods promulgated by Laurie about Brian.

3. Dr. Childs ignored hard evidence of untruths promulgated by Laurie to Dr. Childs.

4. Dr. Childs ignored hard evidence of kidnapping by Laurie of Samantha from Brian.

5. Dr. Childs ignored hard evidence of parental alienation against Brian by Laurie of Samantha.

6. Dr. Childs ignored his own opinions and conclusions that diminished Laurie's effectiveness as a parent in his estimation.

7. Dr. Childs willfully and intentionally withheld challenges from the custody evaluation report made by Brian to Laurie's mistruths.

8. Dr. Childs willfully and intentionally withheld and/or concealed evidence, provided by Brian, from the custody evaluation report.

9. Dr. Childs refused to accept additional relevant information from Brian.

10. Dr. Childs formed opinions, conclusions, and recommendations inconsistent with the facts before him.

11. Dr. Childs formed opinions, conclusions, and recommendations that were inconsistent with Illinois state law governing parental time, care, and responsibilities.

12. Dr. Childs made conclusions against Brian and in favor of Laurie which were irrational and illogical, and which were calculated to create, or had the net effect of creating, baseless prejudice against Brian's standing with respect to his right to be a parent to Samantha.

13. Dr. Childs exhibited an overall irrational and illogical bias against Brian and in favor of Laurie.

iii. Upon information and belief, Brian asserts that Dr. Childs willfully, intentionally, and fraudulently ignored, withheld, and concealed evidence and information of material fact regarding Laurie with the purpose of deceiving the Court and Brian.

1. Dr. Childs willfully misrepresented his opinions and conclusions as he concealed negative aspects of Laurie's behavior.

g. Additionally, any record kept in the course of providing such services, or any information which indicates that a person is a "recipient," such as the "billing records" and "all materials faxed to [Dr. Childs] by Brian on March 26, 2002" (as stated in (4) of the March 13, 2003 Order), would be considered confidential and thus, forbidden.

46. Furthermore, any recipient whose data (e.g., verbal or written communications, test results, therapist communications, billing records) were documented and shared with the court (and therefore placed in the public record) or with the other "recipient" would have indisputable grounds for suit against the professional personnel and be virtually guaranteed damages, injunctions, and reasonable attorneys' fees, as he/she would always be aggrieved by having their Right to privacy destroyed, not to mention prejudicial recommendations to the care, control, and custody of his/her children.

a. Section 15 of the Act states: "Any person aggrieved by a violation of this Act may sue for damages, an injunction, or other appropriate relief. Reasonable attorney's fees and costs may be awarded to the successful plaintiff in any action under this Act."

b. As discussed above, the Report for Brian and Laurie submitted to the Court exudes all "forbidden" communications and test results. Additionally, the Previous Court has ordered Dr. Childs to produce records that, according to the Previous Court's interpretation of the law, are in violation of this Act. Therefore, the Previous Court is a conspirator to violate the law.

47. Also, all professional personnel who perform under 750 ILCS 5/604 (b) would be guilty of a Class A misdemeanor, as they knowingly and willfully would be violating the provisions of the Act.

a. Section 16 of the Act states: "Any person who knowingly and willfully violates any provision of this Act is guilty of a Class A misdemeanor."

48. The Previous Court has arbitrarily and capriciously rewritten and eroded the law.

49. The Previous Court's ruling renders the legislature's clear and plain wording of 750 ILCS 5/604 (b) invalid and useless. Without an in camera review, and by its farrago ruling that the Act is included in 750 ILCS 5 and Dr. Childs therefore does not need to produce notes, tape records, or other work products, but that he must produce other records and communications, the Previous Court has rewritten the statute, effectively eroding unmistakable legislative intent under the weight of judicial fiat.

a. The Evaluation was ordered by the Previous Court under 750 ILCS 5/604 (b) - not 405 ILCS 5.

b. The clear and plain wording of 750 ILCS 5/604 (b) specifically allows the parties to "examine ... any professional personnel consulted by the court." Without allowing the parties to properly examine the records of the professional personnel to validate or impeach the Evaluation, the Previous Court has rendered the clear and plain wording of the legislature invalid and useless.

i.  Statute 750 ILCS 5/604 (b) states: "The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel. Counsel may examine, as a witness, any professional personnel consulted by the court, designated as a court's witness."

c. As the Previous Court has ordered Dr. Childs to produce only specific records (e.g., "billing records," "all materials faxed to [Dr. Childs] by Brian on March 26, 2002"), this Court has arbitrarily and capriciously interpreted the statute.

50. The Previous Court's decision to interpret the Act as being incorporated into 750 ILCS 5 is arbitrary and constitutes a capricious exercise of government power. As an overwhelming number of cases point out, statutes may NOT be dependent on the individual discretion of a judge (i.e., arbitrary), but MUST be fixed on law.

[54] A court generally applies the rational basis test in examining the constitutionality of a statute under substantive due process. See Tully, 171 Ill. 2d at 304. To satisfy this test, a statute need only bear a rational relation to a legitimate state purpose, and must be neither arbitrary nor discriminatory. Tully, 171 Ill. 2d at 304. [Emphasis added].

Lulay v. Lulay, 193 Ill. 2d 455 (2000).

And,

[27] "Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications" (footnotes omitted). [Emphasis added].

Village of Hoffman Estates v. Flip-Side, 455 U.S. 489, 102 S. Ct. 1186, 71 L. Ed. 2d 362, 50 U.S.L.W. 4267 (1982).

And,

[28] But arbitrary selection can never be justified by calling it classification. The equal protection demanded by the Fourteenth Amendment forbids this. No language is more worthy of frequent and thoughtful consideration than these words of Mr. Justice Matthews, speaking for this court, in Yick Wo v. Hopkins, 118 U.S. 356, 369: "When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power." [Emphasis added].

Gulf, Colorado and Santa Fe Railway Company v. Ellis, 165 U.S. 150, 41 L. Ed. 666, 17 S. Ct. 255 (1897).

a. The Merriam-Webster dictionary defines arbitrary as "depending on individual discretion (as of a judge) and not fixed by law."

51. Though the Act provides for protection of the therapist's personal notes and test materials (740 ILCS 110/3 (b) and (c)), nowhere does the Act provide protection for tape recordings. Therefore, the Previous Court arbitrarily and capriciously denied Brian access to the tape recordings made by Dr. Childs during the course of the custody evaluation.

52. Even if the legislature had intended the Act to be incorporated into 750 ILCS 5, and even assuming that Brian and Laurie were considered "patients," the parties have expressly waived their privilege against disclosure.

a. Section 10(a)(1) of the Act governs disclosure in civil actions and provides: "[r]ecords and communications may be disclosed in a civil, criminal or administrative proceeding in which the recipient introduces his mental condition or any aspect of his services received for such condition as an element of his claim or defense...." Thus, the privilege against disclosure of communications between patient and therapist can be waived expressly or affirmatively by placing in issue one's own mental condition. Bland v. Department of Children & Family Services, 141 Ill. App. 3d 818, 826 (1986).

b. The parties have not placed their mental condition at issue. However, the Previous Court has forcefully done so by virtue of the Previous Court's strong urging and requirement that a custody evaluation be performed as part of the March 26, 2002 Agreed Interim Order (in which the Previous Court originally ordered the Evaluation and appointed Dr. Childs).

c. Further, the Agreed Order entered on February 3, 2003, which was based on the oral motion of Brian to compel Dr. Childs to produce records, and was joined by Laurie's counsel, indicated that Dr. Childs was "ordered to submit all documents."

d. Therefore, by the parties' agreement per the March 26, 2002 Agreed Interim Order, and the parties' agreement per the February 3, 2003 Agreed Order, any potential privilege against disclosure of communications (e.g., tape recordings) between the parties and Dr. Childs was waived explicitly by both Brian and Laurie.

53. The legislature, courts, and professional personnel cannot have it both ways - either all of these data are confidential and cannot be submitted to the court or recipients, or these data are not confidential and the parties therefore have access to the data. The law cannot be arbitrary, for an arbitrary law is unconstitutional. It is obvious that the legislature did not intend to make the communications and records of a custody evaluation report under 750 ILCS 604 (b) confidential, for otherwise A) they would have said so; B) a court would never be able to legally view a custody evaluation report, and; C) all professional personnel who submitted custody evaluation reports would be in significant peril (e.g., in jail, bankrupt from fines and legal fees).

54. As Brian was denied due process, and as the Previous Court violated Illinois law, the Court should bar the Recommendations of the Report, as well as any "expert" witness testimony regarding the Report.

An Effective Agreement for Samantha Is Already in Place

55. It is in Samantha's best interest to keep the current parenting agreement in place. Samantha has not had any signs of adjustment problems, and in fact is thriving based on an agreement between the parties that has been effective for over fifteen months.

a. On March 26, 2002, an agreed interim order between Brian and Laurie (Exhibit A) (hereinafter "Agreed Interim Order") was entered which divides parenting time equally (i.e., 50/50).

b. As Brian's Affidavit OVERWHELMINGLY indicates (Exhibit B), which is structured based on 750 ILCS 5/602 and is partially based on the Evaluation of the parties (Exhibit H), Laurie often does not, and shows a general unwillingness to, facilitate and encourage a close and continuing relationship between Brian and Samantha.

i.  As per 750 ILCS 5/602 (a) (8), this willingness to facilitate and encourage a close and continuing relationship between parent and child is a substantial factor in determining the best interest of the child.

ii. As these many examples of Laurie's behavior suggest, it is imperative that Brian continue to be an active an equal parent in Samantha's life to stave further affects of parental alienation and other potential injuries.

It is clear to this Court that both parents love their children. What concerns this Court most, however, and was apparently a concern to the trial court, is Wife's blatant attempt to alienate the affections of the children from their father. When loved by both parents, children should be taught to love and respect each parent equally. This reciprocation, in turn, will garner self respect and a positive self image in the children. The record in this case lends absolutely no reason as to why the children should not be encouraged to respect and love their father. We do not find the record to show that Wife has supported such a healthy relationship between parent and child. Although Wife testified otherwise, her actions speak loud and clear. [Emphasis added].

Varley v. Varley, 934 S.W.2d 659 (Tenn. 1996).

iii. Brian further contends that Laurie's actions create a very dangerous risk to Brian and Samantha's relationship. Specifically, Brian is very concerned that these actions presented here (Exhibit B - paragraph 14) are part of Laurie's malicious attempt to alienate Samantha from Brian, the impacts of which would be irreparable.

iv. Significant research on parental alienation exists (e.g., http://www.rgardner.com/refs/), which meets the standards of Frye (Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923)), and indicates that intentional depreciation of one parent by another, such as the behaviors exhibited by Laurie to Brian and by Laurie to Samantha, creates a disturbance with the child that can have "disastrous effects" (Exhibit D).

Accordingly, having considered the evidence that's been provided to me, the credibility of the witnesses, and specifically the basis of each witness's opinion, having carefully considered over the last few days all of the -- all of the testimony, I do find specifically that the principle of the Parental Alienation Syndrome is sufficiently established as to have gained general acceptance in the particular field.

Bates v. Bates 18th Judicial Circuit, Dupage County, IL Case No. 99D958 (Jan 17, 2002). See also Kilgore v. Boyd, Circuit Court of the 13th Judicial Circuit of the State of Florida, Hillsborough County, Family Law Division. Case no. 94-7573, Div. D (Nov 22, 2000).

v. During the pendency of this case, Laurie has sought to limit Brian's time with Samantha, and has also sought to return to the east coast with Samantha as often as possible (Exhibit B - paragraph 14.a.ii). Her conduct in this regard has the effect of diminishing Brian's time with Samantha, and it has the further effect of laying the groundwork for Laurie's sole custody (Exhibit R) and removal case (Exhibit P).

c. Brian and Samantha will suffer grievous losses and irreparable injuries if Laurie prevents Brian from seeing Samantha on an equal basis, which there is no adequate remedy at law as Brian's relationship with Samantha and Samantha's relationship with Brian will suffer.

d. It is NOT in Samantha's best interest to be with Brian less than 50% of the time as:

i.  Such action results in a detrimental disruption of Samantha's normal routine and decreases stability in Samantha's life;

ii. Such action unnecessarily interferes with Brian's parenting time and adversely affects Brian's relationship with Samantha;

iii. Such action unnecessarily interferes with the benefit Samantha receives from Brian, and adversely affects Samantha's relationship with Brian; and

iv. The negative impact of separation on the relationship between a parent and a child is devastating.

Between parent and child, there is no monster like separateness. It can grow even faster than children, shutting first the heart, than the home, then history.

Brooks v. Parkerson, 454 S.E.2d 769, 265 Ga. 189 (1995).

e. Brian contends that Laurie's actions (e.g., Exhibit B - paragraph 13.b) are fabricating, harassing, and intimidating, as to interfere with his personal liberties as per 750 ILCS 60/103.

Brian Is a Fit Parent, and No Evidence Exists of Abuse or Risk of Substantial Harm from Brian

56. This Court is without authority or jurisdiction to "award custody" as Brian is a fit parent.

[19] This court feels that the evidence establishes that the father is a fit and proper person to have the custody of the child and that the intervening petitioners failed to produce any evidence that he was not such a proper and fit person.

[20] A court is only warranted in depriving a father of the custody of his child where the evidence discloses that the child is destitute, abandoned or dependent; that the father is living an immoral life or in vicious or disreputable circumstances; that he has neglected or treated the child cruelly or unkindly or that he may so treat the child; that he is wanting in good principles or that he is illy adapted to the care of the child on account of defects in his mental or physical qualities which prevent him from being a kind and affectionate father. Wohlford v. Burckhardt, 141 Ill. App. 321. None of these conditions appear in this case.

[23] Deprive worthy parents of their natural right to the custody of their children, where they have not forfeited that right, and you undermine the home." People ex rel. Yarmulnick v. Hoff, 323 Ill. App. 535. [Emphasis added].

Jarrett v. Jarrett, 348 Ill. App. 1, 107 N.E.2d 622 (1952).

And,

[15] Stanley presses his equal protection claim here. The State continues to respond that unwed fathers are presumed unfit to raise their children and that it is unnecessary to hold individualized hearings to determine whether particular fathers are in fact unfit parents before they are separated from their children. We granted certiorari, 400 U.S. 1020 (1971), to determine whether this method of procedure by presumption could be allowed to stand in light of the fact that Illinois allows married fathers -- whether divorced, widowed, or separated -- and mothers -- even if unwed -- the benefit of the presumption that they are fit to raise their children.

[20] We must therefore examine the question that Illinois would have us avoid: Is a presumption that distinguishes and burdens all unwed fathers constitutionally repugnant? We conclude that, as a matter of due process of law, Stanley was entitled to a hearing on his fitness as a parent before his children were taken from him and that, by denying him a hearing and extending it to all other parents whose custody of their children is challenged, the State denied Stanley the equal protection of the laws guaranteed by the Fourteenth Amendment.

[23] The State's right -- indeed, duty -- to protect minor children through a judicial determination of their interests in a neglect proceeding is not challenged here. Rather, we are faced with a dependency statute that empowers state officials to circumvent neglect proceedings on the theory that an unwed father is not a "parent" whose existing relationship with his children must be considered.

[24] Under Illinois law, therefore, while the children of all parents can be taken from them in neglect proceedings, that is only after notice, hearing, and proof of such unfitness as a parent as amounts to neglect, an unwed father is uniquely subject to the more simplistic dependency proceeding. By use of this proceeding, the State, on showing that the father was not married to the mother, need not prove unfitness in fact, because it is presumed at law. Thus, the unwed father's claim of parental qualification is avoided as "irrelevant."

[31] But we are here not asked to evaluate the legitimacy of the state ends, rather, to determine whether the means used to achieve these ends are constitutionally defensible. What is the state interest in separating children from fathers without a hearing designed to determine whether the father is unfit in a particular disputed case? We observe that the State registers no gain towards its declared goals when it separates children from the custody of fit parents. Indeed, if Stanley is a fit father, the State spites its own articulated goals when it needlessly separates him from his family.

[39] The State's interest in caring for Stanley's children is de minimis if Stanley is shown to be a fit father. [Emphasis added].

Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208 (1972).

And,

Thus, by natural law, by common law, and, likewise, the statutes of this state, the natural parents are entitled to the custody of their minor children, except when they are unsuitable persons to be entrusted with their care, control, and education, or when some exceptional circumstances appear which render such custody inimical to the best interests of the child. While the right of a parent to the custody of its infant child is therefore, in a sense, contingent, the right can never be lost or taken away so long as the parent properly nurtures, maintains, and cares for the child.

Wilson v. Mitchell, 111 P. 21, 25-26, 48 Colo. 454 (Colo. 1910).

57. The entire concept of "awarding custody" is flawed; no one is awarded Rights, but, rather, one parent is deprived of Rights (or, in the case of temporary "custody," one parent's Rights are suspended/temporarily revoked).

58. No evidence or claim exists that Brian has committed ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, nor is there any threat that violence or abuse will occur. Therefore, this Court may declare custody favoring one parent only if it finds the occurrence of ongoing abuse.

a. As per 750 ILCS 5/602(c), unless the Court finds the occurrence of ongoing abuse,

[T]he court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their children is in the best interest of the child.

59. Laurie has not presented any allegations of child abuse, neglect, or substantial harm, and therefore Brian's Rights, secured by the Federal Constitution, would be violated by anything less than leaving the parties alone as joint tenants in common of their child regardless of marital status.

a. "Custody" is a misleading term, for it suggests a unitary thing when, in fact, it refers to a set of Rights and responsibilities. In this respect, it is like "property."

Brian Has a Right to Privacy and a Right to Be an Equal Parent, Both Secured By the Constitution

60. A statutory grant of jurisdiction is trumped if a parent objects and cites constitutional protections. This blocks a court from hearing any petitions regarding a child, except only in those petitions where there are allegations that the child is abused or neglected, or is in substantial harm for another reason.

[63] Implicit in the statute is, as we have stated, a rebuttable presumption that visitation that is opposed by a fit parent is not in a child's best interest. In sum, therefore, we conclude that there are two requirements that must be satisfied in order for a court: (1) to have jurisdiction over a petition for visitation contrary to the wishes of a fit parent; and (2) to grant such a petition.

[64] First, the petition must contain specific, good faith allegations that the petitioner has a relationship with the child that is similar in nature to a parent-child relationship. The petition must also contain specific, good faith allegations that denial of the visitation will cause real and significant harm to the child. As we have stated, that degree of harm requires more than a determination that visitation would be in the child's best interest. It must be a degree of harm analogous to the kind of harm contemplated by ßß 46b-120 and 46b-129, namely, that the child is "neglected, uncared-for or dependent." The degree of specificity of the allegations must be sufficient to justify requiring the fit parent to subject his or her parental judgment to unwanted litigation. Only if these specific, good faith allegations are made will a court have jurisdiction over the petition.

[65] Second, once these high jurisdictional hurdles have been overcome, the petitioner must prove these allegations by clear and convincing evidence. Only if that enhanced burden of persuasion has been met may the court enter an order of visitation. These requirements thus serve as the constitutionally mandated safeguards against unwarranted intrusions into a parent's authority. [Emphasis added].

Roth v. Weston 789 A.2d 431, 450 (Conn.2002).

61. As there is no abuse or risk of substantial harm, and as it is a parent's Right to manage a child, and as this Right is a fundamental Right protected by the Constitution, this Court does not have the authority or jurisdiction to force/inject itself into Brian's private life, under the guise of the best interest of the child. Therefore, the Best Interest of the Child Statutes cannot be applied.

a. Liberty is the Right to do as you wish with your child. Brian's Right to liberty can ONLY be overcome by proof that SUBSTANTIAL harm to Samantha is present. Privacy is the Right for no one to inquire into what you are doing. Brian's Right to privacy can ONLY be overcome with an allegation that Samantha is in SUBSTANTIAL harm. Substantial harm or its derivatives are identical to a compelling state interest or Illinois abuse statutes. This Court may not interfere with Brian's protected liberty interest in family relations. This Court may also not interfere with Brian's protected Right to privacy.

[26] The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.S. 616, 630, as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life." We recently referred in Mapp v. Ohio, 367 U.S. 643, 656, to the Fourth Amendment as creating a "right to privacy, no less important than any other right carefully and particularly reserved to the people." See Beaney, The constitutional Right to Privacy, 1962 Sup. Ct. Rev. 212; Griswold, The Right to be Let Alone, 55 Nw. U. L. Rev. 216 (1960).

[50] In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the "traditions and [collective] conscience of our people" to determine whether a principle is "so rooted [there] . . . as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105. The inquiry is whether a right involved "is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions' . . . ." Powell v. Alabama, 287 U.S. 45, 67.

[52] "The protection guaranteed by the [Fourth and Fifth] Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men." The Connecticut statutes here involved deal with a particularly important and sensitive area of privacy -- that of the marital relation and the marital home. This Court recognized in Meyer v. Nebraska, supra, that the right "to marry, establish a home and bring up children" was an essential part of the liberty guaranteed by the Fourteenth Amendment. 262 U.S., at 399. In Pierce v. Society of Sisters, 268 U.S. 510, the Court held unconstitutional an Oregon Act which forbade parents from sending their children to private schools because such an act "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control." 268 U.S., at 534-535. As this Court said in Prince v. Massachusetts, 321 U.S. 158, at 166, the Meyer and Pierce decisions "have respected the private realm of family life which the state cannot enter."

[55] Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family -- a relation as old and as fundamental as our entire civilization -- surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution.

Griswold v. Connecticut, 381 US 479 (1965).

And,

[26] And it is now firmly established that "freedom of personal choice in matters of... family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974).

Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255-56 (1978).

And,

[23] In light of this right to privacy, we believe that when no substantial harm threatens a child's welfare, the state lacks a sufficiently compelling justification for the infringement on the fundamental right of parents to raise their children as they see fit.

[40] We, too, agree that neither the legislature nor a court may properly intervene in parenting decisions absent significant harm to the child from those decisions. In so holding, we approve the logic of Santosky v. Kramer, 455 U.S. 745 (1982), which applied a two-step process to child neglect cases leading to foster family placement. In Santosky, the Supreme Court approved New York's bifurcated proceeding requiring the state first to establish parental unfitness before placing a child in foster care. This procedure assures parents that a "best interests of the child" analysis will not pit them against potential foster parents; rather, the state cannot consider a child's "best interests" until the natural parents have been declared unfit. Id. at 759-61. An approach requiring a court to make an initial finding of harm to the child before evaluating the "best interests of the child" works equally well in this case to prevent judicial second-guessing of parental decisions. As one scholar has written:

[41] If the courts attempt to resolve these disputes when the only thing at stake is a grandparent's argument that visitation is a 'better' decision for the child, the placement of the child with the parent becomes subject to the court's supervision and judgment of what are the best decisions for that child. See Bean, Grandparent Visitation, supra, at 444-5.

[42] By applying this type of analysis, we also seek to avoid the "unquestioning judicial assumption" that grandparent-grandchild relationships always benefit children, an assumption that overlooks the necessity of a threshold finding of harm before the state can intervene in the parent-child relationship. For example, in In re Robert D., 151 Cal. App. 3d 391, 396-7, 198 Cal. Rptr. 801, 803-4 (1984), the California court gave nominal weight to the "right to parent can only give way upon a clear and convincing showing of parental unfitness and detriment to the child," but then balanced this right against grandparent visitation which the court assumed was "beneficial for the child's development." Accepting a counselor's recommendation of grandparent visitation, the court disregarded the parents' concerns. Id. Robert D. illustrates how easily a court can deprive parents of fundamental rights when it contemplates the benefits of a grandparent-grandchild relationship, or any other perceived benefit, before assessing the need for state interference. [Emphasis added].

B. F. Hawk v. Robert S. Hawk, 855 S.W.2d 573 (Tenn. 1993).

And,

[24] This Court held in In re: Adoption of Female Child, Bond v. McKenzie, S.W.2d (Tenn. 1995) [slip op. at 6], that "in a contest between a parent and a non-parent, a parent cannot be deprived of the custody of a child unless there has been a finding, after notice required by due process, of substantial harm to the child. Only then may a court engage in a general 'best interest of the child' evaluation in making a determination of custody."

Petrosky v. Keene, 898 S.W.2d 726 (Tenn. 1995).

And,

[29] The statute must be interpreted in the context of the applicable federal constitutional law. In Wilson and Wilson, 184 Or App 212, 55 P3d 1106 (2002), we considered at length the impact of the United States Supreme Court's decision in Troxel v. Granville, 530 US 57, 120 S Ct 2054, 147 L Ed 2d 49 (2000), on the 1997 version of ORS 109.119. We concluded that, under Troxel, biological parents have a fundamental due process right "'to make decisions concerning the care, custody and control of their children.'" Id. at 217 (quoting Troxel, 530 US at 66). After discussing decisions of the Oregon Supreme Court and this court, we held that that fundamental constitutional right supervenes a pure "best interest of the child" analysis in a custody dispute...

[31] Parental decisions about the extent of contact with third parties are the kinds of decisions that are presumptively protected by the constitution.

[35] The heart of the standard is that we analyze only whether father can provide adequate love and care for the children and whether they are at undue risk of harm in his custody. It is simply irrelevant to that determination whether grandmother might provide better care, for that consideration lapses back into a "best interests" test that is inapplicable.

[39] We agree with him, however, that those concerns, by themselves, are insufficient to show by a preponderance of the evidence that father cannot provide adequate love and care to the children or that they will suffer an undue risk of harm in his custody. [Emphasis added].

In re Strome, No. A111369 (Oregon, 2003).

62. Brian contends that any unequal allocation of parenting time and parental responsibilities and Rights by the Court will constitute an unconstitutional infringement of his fundamental liberty interest in his family, and his Rights under the Equal Protection and Substantive Due Process Clauses of the Fourteenth Amendment of the Federal Constitution. SUBSTANTIVE due process can be defined by one word - fairness.

63. Brian stands in the same relation to Samantha during these proceedings as he did before these proceedings, as a divorced parent is still the parent. This relationship is independent of any other relationship that exists with any other person. A pending divorce does not nullify or reduce the relationship between Brian and Samantha. The parties' divorce, even though it includes a child, does not give this Court a special circumstance to usurp Brian's parental authority and constitutional Rights. Any decision by this Court that favors one parent over the other or interferes with Brian's privacy will eventually destroy an intact relationship. This Court has a responsibility/mandate to protect constitutional Rights.

[53] A parent's right to the preservation of his relationship with his child derives from the fact that the parent's achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A child's corresponding right to protection from interference in the relationship derives from the psychic importance to him of being raised by a loving, responsible, reliable adult.

Franz v. U.S., 707 F 2d 582, 595-599; US Ct App (1983).

And,

[26] The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection.

Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208 (1972).

And,

[13] In Stanley v. Illinois, 405 U.S. 645 (1972), this Court held that the State of Illinois was barred, as a matter of both due process and equal protection, from taking custody of the children of an unwed father, absent a hearing and a particularized finding that the father was an unfit parent. The Court concluded, on the one hand, that a father's interest in the "companionship, care, custody, and management" of his children is "cognizable and substantial," id., at 651-652, and, on the other hand, that the State's interest in caring for the children is "de minimis" if the father is in fact a fit parent, id., at 657-658.

Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255-56 (1978).

And,

[41] The problem for our determination is whether the statute as construed and applied unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. "No State shall . . . deprive any person of life, liberty, or property, without due process of law."

[42] While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and BRING UP CHILDREN, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. [Citations omitted] [Emphasis added].

Meyer v. Nebraska, 262 or 426 US 390; 43 S Ct 625 (1923).

And,

[28] Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

Santosky v. Kramer, 102 S Ct 1388; 455 US 745 (1982).

64. The Right to be a parent, secured by the Federal Constitution, has long been recognized by the highest court in the land. As long ago as the second decade of the twentieth century, the U.S. Supreme Court, in a case involving the Right to teach in a foreign language, held:

[15] One claim put forward is, that the statute [prohibiting teaching in a foreign language] forwards the work of Americanization. But in our desire for the Americanization of our foreign born population we should not overlook the fact that the spirit of America is liberty and toleration -- the disposition to allow each person to live his own life in his own way, unhampered by unreasonable and arbitrary restrictions.

[16] The law, as construed by the Supreme Court of Nebraska, operates to deny the plaintiff in error the equal protection of the law.

Meyer v. State of Nebraska, 262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. 625 (1923).

a. If this Court forced an unequal parenting/custody schedule on Brian, this Court would limit Brian's disposition to allow him to live his own life in his own way, and would place unreasonable and arbitrary restrictions on Brian.

b. Furthermore, when the parties were not getting divorced, this Court did not have the authority or jurisdiction to infringe or restrict one parent's fundamental Rights by forcing either parent to accept an unequal parenting/custody schedule.

The U.S. Supreme Court implied that "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 US 246, 255-56 (1978).

The Best Interest of the Child Statutes Are Unconstitutional and Infringe on Brian's Constitutional Right to Rear His Child

65. If a state classification affects fundamental Rights, as it so clearly does here, there is no presumption of constitutionality.

[24] Before we can consider whether plaintiff has been denied the equal protection of the laws, we must first determine whether the statutes in question are to be considered under traditional equal protection principles or by the more rigorous analysis applicable to legislative classifications affecting fundamental rights. Under a traditional equal protection analysis, a legislative classification will be sustained if it is rationally designed to further a legitimate State interest (Hoskins v. Walker (1974), 57 Ill.2d 503, 315 N.E.2d 25; People v. Perine (1980), 82 Ill. App.3d 610, 402 N.E.2d 847). In such cases, there is a presumption in favor of the validity of the legislative classification, and it will not be set aside if any state of facts reasonably may be conceived to justify it. (Hoskins v. Walker; Friedman & Rochester, Ltd. v. Walsh (1977), 67 Ill.2d 413, 367 N.E.2d 1325.) The burden is then on the party challenging the classification to establish its invalidity by showing it to be unreasonable or arbitrary. (Hoskins v. Walker; People v. Perine; Friedman & Rochester, Ltd. v. Walsh.) If the classification affects fundamental rights, however, there is no presumption of constitutionality, and the classification will be sustained only if justified by a compelling State interest. (Hoskins v. Walker.) Identification of the interest or right affected by the legislative classification thus determines the appropriate level of scrutiny. [Emphasis added].

Coles v. Ryan, 414 N.E.2d 932, 91 Ill. App.3d 382 (1980).

And,

[24] If, as previous decisions have indicated, strict scrutiny means that the State's system is not entitled to the usual presumption of validity, that the State rather than the complainants must carry a "heavy burden of justification," that the State must demonstrate that its educational system has been structured with "precision," and is "tailored" narrowly to serve legitimate objectives and that it has selected the "less drastic means" for effectuating its objectives*fn41, the Texas financing system and its counterpart in virtually every other State will not pass muster. The State candidly admits that "[n]o one familiar with the Texas system would contend that it has yet achieved perfection." *fn42 Apart from its concession that educational financing in Texas has "defects"*fn43 and "imperfections," *fn44 the State defends the system's rationality with vigor and disputes the District Court's finding that it lacks a "reasonable basis." [Footnotes omitted].

[25] This, then, establishes the framework for our analysis. We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. [Emphasis added].

San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973).

66. Brian accepts that dissolution of his marriage would of necessity act to diminish the amount of time spent with his child, but contends that arbitrary application of the statutory factors set forth specifically in 750 ILCS 5/602 or broadly in the 750 ILCS 5, Illinois Marriage and Dissolution of Marriage Act -- in light of the fact that no credible evidence exists herein to implicate Brian as an unfit parent -- would result in a capricious "custody" decision which flagrantly violates Brian's Right to equal protection of the law by "awarding" him unequal parenting time and parental responsibilities as compared with Laurie.

[27] The catalogue need not be lengthened. It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare; and that this includes, to some extent, matters of conscience and religious conviction.

[28] But it is said the state cannot do so here. This, first, because when state action impinges upon a claimed religious freedom, it must fall unless shown to be necessary for or conducive to the child's protection against some clear and present danger, cf. Schenck v. United States, 249 U.S. 47; and, it is added, there was no such showing here.

Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

And,

[67] 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; our 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." Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). See also Wisconsin v. Yoder, 406 U.S. 205, 213 (1972); Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Meyer v. Nebraska, 262 U.S. 390, 400 (1923)... More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.

[68] As with so many other legal presumptions, experience and reality may rebut what the law accepts as a starting point; the incidence of child neglect and abuse cases attests to this. That some parents "may at times be acting against the interests of their children" as was stated in Bartley v. Kremens, 402 F.Supp. 1039, 1047-1048 (ED Pa. 1975), vacated and remanded, 431 U.S. 119 (1977), creates a basis for caution, but is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child's best interests. See Rolfe & MacClintock 348-349. The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.

Parham v. J.R., 442 U.S. 584 (1979).

And,

[17] A parent's right to the custody of his or her children is an element of "liberty" guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States.

Matter of Gentry, 369 NW 2d 889, MI App Div (1983).

67. To avoid state impairment of parental Rights, one need only be a "fit" parent:

[56] 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, e.g., [Reno v.] Flores, 507 U. S. [292,] at 304.

Troxel et vir. v. Granville, 530 US 57, 67 (2000).

And,

[79] By the same token, we conclude that the right of a parent not to be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect is so fundamental to our society and so basic to our constitutional order (see the authorities quoted in Part III of this opinion) that it ranks among those rights referred to in Article I, ß 25 of the Utah Constitution and the Ninth Amendment of the United States Constitution as being retained by the people.

In re J.P., 648 P 2d 1364; Utah (1982).

a. The criterion for "fitness" does not require that a parent conform to some arbitrary state-imposed definition or a set of characteristics for personality, wealth, gender, temperament or other individual trait, but only that one "adequately cares for his or her children." As long as one is fit in this regard, one is entitled to the full constitutional protection of one's liberty interest in family.

b. Brian has not been shown to be an unfit parent and therefore this Court has no reason to inject itself into the realm of his relationship with his daughter.

c. Any decision by this Court to force itself into the private realm of Brian's relationship with his daughter would be a flagrant violation of his full constitutional protection of his liberty interest in family.

d. The triggering mechanism of a divorce, of and by itself, is not a sufficient-enough reason to require the State to impermissibly intervene and interrupt the associative Right of the child and parent in the parent-child relationship.

[39] We think the Due Process Clause mandates a similar result here. The State's interest in caring for Stanley's children is de minimis if Stanley is shown to be a fit father. It insists on presuming rather than proving Stanley's unfitness solely because it is more convenient to presume than to prove.

Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208 (1972).

i.  The State cannot support the argument that a child is in imminent harm just because the parents are divorcing, for alleged parental conflict may or may not rise to a level compelling State intervention, and where such imminent level of harm does not occur in the vast majority of custody divorces; then the State cannot impermissibly intervene in the private realm of the parent-child relationship.

[15] Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. 494 U. S., at 888. [Emphasis added].

City Of Boerne v. Flores, No. 95-2074 (U.S. 06/25/1997).

ii. Where a parent is fit, the legal presumption implies that the child is not in imminent harm. Where the child is not in imminent harm, there are no competing interests to a parent's Right to the care, custody, and companionship of the child. Where there are no competing interests, the child's best interests are already protected.

iii. Therefore, the State cannot assign a Guardian Ad Litem to protect the "best interest" of the child, as fit parents are already, by definition, protecting the child's best interest. Thus, the State may not interfere. Further, the State may not infringe on a fit parent's Right to property and require him to fund a Guardian Ad Litem with his private property against his will.

iv. The State also cannot require a custody evaluation to "evaluate" or identify the physical or mental state of the parties, or identify the "best interest of the child," as fit parents are already, by definition, protecting the child's best interest. Thus, the State may not interfere. Further, the State may not infringe on a fit parent's Right to privacy and property by forcing him to subject himself to a custody evaluation/psychological review, reveal information to a stranger, and then fund the process with his private property, all against his will.

1. In fact, "[m]ost custody disputes do not hinge on a distinction between the 'fit' versus 'unfit' parent but on a description and possible explanation of the relative strengths and weaknesses of the parents in their capacity to meet the child's physical, intellectual, emotional, social, moral, religious, and material needs."[40]

68. Brian contends that the Best Interest of the Child Statutes unconstitutionally infringe on his fundamental Right to rear his children.

a. The welfare of citizens, including children, is an important State interest. The State has exclusive jurisdiction over matters pertaining to the welfare of its citizens. However, the State CANNOT impinge upon the protected and underlying federal Rights of its citizens. State privileges (i.e., statutory entitlements) DO NOT supercede substantive federal Rights.

i.  The State of Illinois has reversed the "pecking order" of the Supremacy Clause. The best interest standard cannot supercede parental Rights. The State places the best interest of the child at the top of the pyramid, disregarding both parents' federal Right to "custody."

b. The Federal Constitution permits a State to interfere with this Right only to prevent harm or potential harm to the child. There is no public purpose that demands the harm and social damage to the fundamental parent-child relationship where the child is implicitly protected by a fit parent.

c. The Best Interest of the Child Statutes, however, do not require a threshold showing of harm and sweep too broadly by permitting a court to exercise virtually infinite discretion in "allocating" parental Rights and responsibilities, parenting time and "awards" of custody, "guardians" and "evaluators," with the only requirement being that the judicial outcomes be "found" -- solely by the court -- to serve the "best interest of the child," which is in fact determined by the court itself.

[81] Moreover, once this burden is met, the only standard provided for the judge's decision is the best interest of the minor. That standard provides little real guidance to the judge, and his decision must necessarily reflect personal and societal values and mores whose enforcement upon the minor -- particularly when contrary to her own informed and reasonable decision -- is fundamentally at odds with privacy interests underlying the constitutional protection afforded to her decision. [Emphasis added].

Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035, 61 L. Ed. 2d 797 (1979).

d. Lacking a requirement that a child is, or ever was proven to be, in substantial harm, the Best Interest of the Child Statutes are facially unconstitutional.

e. Statutes and rulings which encroach on fundamental Rights are presumptively unconstitutional.

[33] It is well settled that, quite apart from the guarantee of equal protection, if a law "impinges upon a fundamental right explicitly or implicitly secured by the Constitution [it] is presumptively unconstitutional." Mobile v. Bolden, 446 U.S. 55, 76 (plurality opinion). [Emphasis added].

Harris v. McRae 448 U.S. 297, 312 (1980).

f. Frequently, the legal community uses the term "best interest of the child" to gloss over constitutional mandates. "Best interest" is actually a legal standard placing the trial judge, and hence the State, superior to fit parents. Its only proper use is after parental Rights are terminated or after a threshold showing of harm.

[27] We have little doubt that the Due Process Clause would be offended "[if] a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest." Smith v. Organization of Foster Families, 431 U.S. 816, 862-863 (1977).

Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255-56 (1978).

And,

[44] The constitutional issue, however, is not whether children should have the benefit of relationships with persons other than their parents or whether a judge considers that a parent is acting capriciously. In light of the compelling interest at stake, the best interests of the child are secondary to the parents' rights. Brooks v. Parkerson, 265 Ga. 189, 194, 454 S.E.2d 769, cert. denied, 516 U.S. 942, 116 S. Ct. 377, 133 L. Ed. 2d 301 (1995) (finding it "irrelevant" to constitutional analysis that visitation may be in best interest of child); Rideout v. Riendeau, supra, 761 A.2d 301 ("something more than the best interest of the child must be at stake in order to establish a compelling state interest"); In re Herbst, 971 P.2d 395, 399 (Okla. 1998) (noting that court does not reach best interest analysis without showing of harm; absent harm, no compelling interest); Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993) (holding that best interest of child is not compelling interest warranting state intervention absent showing of harm). Otherwise, "[the best interest] standard delegates to judges authority to apply their own personal and essentially unreviewable lifestyle preferences to resolving each dispute." Rideout v. Riendeau, supra, 310.

[45] The trial court is not better situated to determine the issue based upon its best judgment. As Troxel instructs, "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." Troxel v. Granville, supra, 530 U.S. 72-73. Because parenting remains a protected fundamental right, the due process clause leaves little room for states to override a parent's decision even when that parent's decision is arbitrary and neither serves nor is motivated by the best interests of the child.

Roth v. Weston 789 A.2d 431, 443-444 (Conn.2002).

g. Courts can reasonably claim to know that the "best interests of children" means protecting children against abuse and/or criminal negligence. They cannot reasonably claim to know more. Thus, in all cases in which court decisions implement disproportionate custody schedules and privileges as between parents, those decisions are per se capricious and unconstitutionally violative of liberty interests, except in those in which a parent has been legally found to be abusive or criminally negligent of his or her children.

h. The Best Interest of the Child Statutes unnecessarily create two classes of parents (i.e., custodial and non-custodial) out of essentially similarly situated persons, thus committing an equal protection under-inclusive violation (i.e., treats persons with the same capabilities differently).

In the present cases, we are not obliged to reason from the probable to the actual, and pass upon the validity of the ordinances complained of, as tried merely by the opportunities which their terms afford, of unequal and unjust discrimination in their administration; for the cases present the ordinances in actual operation, and the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration, and thus representing the state itself, with a mind so unequal and oppressive as to amount to a practical denial by the state of that equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the fourteenth amendment to the constitution of the United States. Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal [118 U.S. 356, 374] hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution. This principle of interpretation has been sanctioned by this court in Henderson v. Mayor of New York, 92 U.S. 259 ; Chy Luny v. Freeman, 92 U.S. 275 ; Ex parte Virginia, 100 U.S. 339 ; Neal v. Delaware, 103 U.S. 370 ; and Soon Hing v. Crowley, 113 U.S. 703 ; S. C. 5 Sup. Ct. Rep. 730. (Emphasis added)

Yick Wo v. Hopkins, 118 US 356 (1886).

i. Additionally, the Best Interest of the Child Statutes automatically place fit parents in the same group as unfit ones and subject them all to the best interest of the child legal standard, thus causing an equal protection over-inclusive violation (i.e., treats persons with different capabilities the same, and sweeps in more than it should).

[69] Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is "exceedingly persuasive." The burden of justification is demanding and it rests entirely on the State. See Mississippi Univ. for Women, 458 U. S., at 724. The State must show "at least that the [challenged] classification serves 'important governmental objectives and that the discriminatory means employed' are 'substantially related to the achievement of those objectives.'" Ibid. (quoting Wengler v. Druggists Mutual Ins. Co., 446 U. S. 142, 150 (1980)). The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. See Weinberger v. Wiesenfeld, 420 U. S. 636, 643, 648 (1975); Califano v. Goldfarb, 430 U. S. 199, 223-224 (1977) (Stevens, J., concurring in judgment). [Emphasis added].

United States v. Virginia 518 U.S. 515, 533 (1996).

And,

[18] The Supreme Court of the United States has applied two basic tests in determining violations of equal protection. The "rational connection" test is the traditional approach, but the one most appropriate in this case is the "compelling state interest" test. Under this test, any classification which penalizes the exercise of a fundamental constitutional right is unconstitutional unless the State can show that the classification promotes some compelling governmental interest. E.g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972).

Knowlton v. Board of Law Examiners 513 S.W.2d 788, 790 (Tenn. 1974).

j. No contested divorce with children in Illinois can achieve a constitutional resolution under federal law where both parents' Rights are implicated, for the non-custodial parent's Rights are denied, and the custodial parents are enlarged without an evidentiary standard other than the discretion (i.e., best interests) of the trial court.

k. Further, the Supremacy Clause (see paragraph 68.a.i) requires that a fit parent is entitled to legal and physical custody of his children where there is no finding of unfitness, and therefore no reason for the State court to intervene on behalf of the best interest of the child.

[48] The essential inquiry in a case such as this is not only whether the State has acted in a field in which it has a legitimate interest to achieve goals inherent in its police power. Rather, our task is also to ascertain whether the provisions of the state act are compatible with the policy expressed in the federal legislation with which the state law is alleged to be in conflict.*fn17 If there is no escape from a finding of incompatibility, the Supremacy Clause of the United States Constitution demands that the conflicting state law and policy must yield to the federal statute.*fn18 This demand is made no less apparent by a determination that the state statute has been enacted pursuant to an otherwise valid exercise of state power.*fn19 [Footnotes omitted].

Kesler v. Department Public Safety Utah, 369 U.S. 153, 82 S. Ct. 807, 7 L. Ed. 2d 641 (1969).

l. Arbitrary and discriminatory infringements of Rights secured by the Federal Constitution are cruel and unusual punishment, which is banned by the Eighth Amendment. Unequal "allocation" of parental privileges based on unconstitutional statutes causes psychological damage to the child and stigmatizes the parent with lesser privileges as unfit (Exhibit D). The degradation of a parent in this respect can be as hard to deal with as a death in the family or a parent's distress at a child gone missing.

[40] There is increasing recognition of the fact that the basic theme of equal protection is implicit in "cruel and unusual" punishments. "A penalty . . . should be considered 'unusually' imposed if it is administered arbitrarily or discriminatorily."

[91] A punishment is "cruel and unusual," therefore, if it does not comport with human dignity.

Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).

69. Brian contends that the Best Interest of the Child Statutes are biased and discriminatory against men/fathers.

[71] The charge that a State has engaged in a pattern of unconstitutional discrimination against its citizens is a most serious one. It must be supported by more than conjecture.

Nevada Department of Human Resources v. Hibbs, No. 01-1368 (U.S. 05/27/2003).

a. Statistics published by the National Center for Health Statistics (a division of the Centers for Disease Control, U.S. Department of Health and Human Services) indicate that mothers consistently and overwhelmingly receive preferential treatment in Illinois custody "awards" (i.e., mothers receive custody 75% of the time, whereas fathers receive custody 7% of the time, and joint custody is declared 14% of the time) (Exhibit O - page 24 - Table 17).

[74] But a law nondiscriminatory on its face may be grossly discriminatory in its operation. For example, this Court struck down the so-called "grandfather clause" of the Oklahoma Constitution as discriminatory against Negroes although that clause was by its terms nondiscriminatory. Guinn v. United States, 238 U.S. 347. See also Lane v. Wilson, 307 U.S. 268.

Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956).

b. Further, as all states have similar best interest of the child statutes, statistics again indicate that mothers consistently and overwhelmingly receive preferential treatment in nationwide custody "awards" (i.e., mothers receive custody 72% of the time, whereas fathers receive custody 9% of the time, and joint custody is declared 16% of the time) (Exhibit O - page 5). Therefore, the weight of this evidence can leave little doubt that Illinois and all other states engage in a willful pattern of discrimination and unconstitutional behavior.[41]

"Some reasons why wives are awarded custody more often are because they more often request custody of the children and also because of strong legal presumptions and traditions that favor the other as the custodial parent, especially when the children are young (11, 12)...Custody awarded to the mother was the most common arrangement in every State - ranging from 45 percent of the divorces in which custody was awarded in Montana to 81 percent in Alabama...The percent of divorces in which the father was awarded custody varied between 5 and 12 percent by State..." [Emphasis added]. [Endnotes omitted].

Exhibit O - pages 5 - 6.

i.  The entrenched and pervasive stereotypes which inhibit a father's role in his children's lives are therefore nothing more than pure, yet disguised, gender discrimination, for which no compelling state interest exists and the heightened scrutiny standard applies. Through the best interest of the child statutes, the states participate in and foster clear-cut gender-biased discrimination.

c. Brian additionally contends that not only do the Best Interest of the Child Statutes position men/fathers as inferior, but that they also deprive children of opportunities to have their fathers equally involved in their lives. In a landmark case, the U.S. Supreme Court ruled that the principle of "separate but equal" based on "tangible factors" is unconstitutional. Discriminatory impacts of Illinois statutes based on subjective factors designed to be in the best interest of the child must be considered in light of their overwhelming results. Statutes must be supported by modern authority (e.g., Exhibit D), not psychological knowledge at the time of their conception.

[23] We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

[25] We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

[26] In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on "those qualities which are incapable of objective measurement but which make for greatness in a law school." In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: ". . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.

[28] Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.

[29] We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.

[30] Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question -- the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws.

Brown et al v. Board Education Topeka et al, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954).

70. A statute, in and of itself, cannot trump the Constitution. In this case, the so-called Best Interest of the Child Statutes are routinely utilized by this Court to effectively limit or reduce parental Rights (i.e., personal liberties), by assigning custody when there is absolutely no finding that the parent is unfit.

There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for PERSONAL LIBERTY, or private property, for the protection whereof of the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. [Emphasis added].

Calder v. Bull, 3 Dall. 386, 390 (1798).

And,

[73] The State maintains that it has an interest under these circumstances in protecting these children whose lives have been disrupted because of their parents' divorce. This interest is nothing like the compelling interests involved in cases such as R.G. and Prince. Moreover, the parents in this case, Michael and Kiley Lulay, have not been alleged to be unfit. We therefore presume that they are acting in the best interests of their children. See Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 58, 120 S. Ct. at 2061. [Emphasis added].

Lulay v. Lulay, 193 Ill. 2d 455 (2000).

And,

[51] Balanced against this area of primary State concern is the right of a parent to the custody of her child, which has been recognized as a right encompassed within the protection of the fourteenth amendment which "may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect." Meyer v. Nebraska 262 U.S. 390, 399-400, 67 L.Ed. 1042, 1045, 43 S.Ct. 625, 627.

Regenold v. Baby Fold, Inc., 369 N.E.2d 858, 68 Ill.2d 419 (1977).

And,

[210] Supreme Court decisions examining the parameters of the constitutional protection afforded the parent-child relationship more forcefully indicate that Daniel Bell's father possessed a constitutional liberty interest in his relationship with his son. The Court has frequently emphasized the primacy of the parent-child relationship. The rights to conceive and to raise one's children have been deemed "essential," Meyer v. Nebraska, 262 U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625, "[rights] far more precious * * * than property rights." May v. Anderson, 345 U.S. 528, 533, 97 L. Ed. 1221, 73 S. Ct. 840. "Marriage and procreation and fundamental to the very existence and survival of the race." Skinner v. Oklahoma, 316 U.S. 535, 541, 86 L. Ed. 1655, 62 S. Ct. 1110. "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." Prince v. Massachusetts, 321 U.S. 158, 166, 88 L. Ed. 645, 64 S. Ct. 438.

Bell v. City of Milwaukee, 746 f 2d 1205, 1242-45; US Ct App 7th Cir WI (1985).

71. Further, a statute, by its mere existence "on the books," cannot overcome fundamental individual Rights such as one's liberty interest in his family relations, which was clearly enunciated recently by the U.S. Supreme Court in Troxel v. Granville, supra, wherein that Court declared:

[49] 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." Id., at 720; see also Reno v. Flores, 507 U. S. 292, 301-302 (1993).

Troxel et vir. v. Granville, 530 US 57, 67 (2000).

Here, the Supreme Court found the Washington State third-party visitation statute to be unconstitutionally overbroad and violative of the Rights of the surviving parent to the care, custody and control of her offspring.

a. A federal Right cannot be allocated unequally - you either have it or you do not. The State cannot order free speech on Saturdays and Sundays, and deny free speech on the other five days of the week. Fundamental Rights are inherent.

i.  Therefore, any statute that can deny equal Rights to one parent (e.g., allocation of unequal parenting time and responsibilities, custody), or any statute that can deny a child equal parenting time and responsibilities from either or both parents, without a standard of threshold finding of substantial harm to a child, is flagrantly unconstitutional because it violates the Equal Protection Clause of the Fourteenth Amendment.

ii. This Court does not have discretion to allocate federal Rights unequally without a threshold finding of parental unfitness, nor can a parent be deprived of their Right to custody without a threshold finding of parental unfitness.

b. The Best Interest of the Child Statutes cannot overcome Brian's fundamental individual Rights to liberty interest in family relations.

c. A statute that allows a judge to exercise considerable discretion is unconstitutional because it undermines the parent's fundamental Right to make decisions regarding the care and custody of the child (i.e., because the parent's decision is no longer presumed to be in the child's best interest).

[23] 2. Because the ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted, it is impermissibly vague. See, e.g., Coates v. Cincinnati, 402 U. S. 611, 614.

[26] It is unconstitutional, not because a policeman applied his discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications. See Lanzetta v. New Jersey, 306 U. S. 451, 453.

[59] Lack of clarity in the description of the loiterer's duty to obey a dispersal order might not render the ordinance unconstitutionally vague if the definition of the forbidden conduct were clear, but it does buttress our Conclusion that the entire ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted. The Constitution does not permit a legislature to "set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." United States v. Reese, 92 U. S. 214, 221 (1876). This ordinance is therefore vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. Cincinnati, 402 U. S. 611, 614 (1971).

City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999).

i.  The Best Interest of the Child Statutes attempt to allow this Court broad discretion to take over a child's life like a thief and usurp parental Rights. It is a statutory flaw when a statute "...places the best-interest determination solely in the hands of the judge." Troxel v. Granville, supra, at 52.

d. The issue here is not who achieves/receives "custody." The issue is that, under Illinois law, a parent can be deprived of their parental Right to custody or responsibility of their child, temporarily or permanently, based solely on the whim of the court, absent of proven criminal violent acts. As Illinois statute 602.1 states:

(c) The court may enter an order of joint custody if it determines that joint custody would be in the best interests of the child, taking into account the following:

(1) the ability of the parents to cooperate effectively and consistently in matters that directly affect the joint parenting of the child. "Ability of the parents to cooperate" means the parents' capacity to substantially comply with a Joint Parenting Order. The court shall not consider the inability of the parents to cooperate effectively and consistently in matters that do not directly affect the joint parenting of the child;

(2) the residential circumstances of each parent; and

(3) all other factors which may be relevant to the best interest of the child.

And,

(d) Nothing within this section shall imply or presume that joint custody shall necessarily mean equal parenting time. The physical residence of the child in joint custodial situations shall be determined by:

(1) express agreement of the parties; or

(2) order of the court under the standards of this Section.

e. Additionally, during the Illinois Supreme Court's recent review of 607(b)(1), they reminded us that:

[41] A statute is facially invalid only if the party challenging the enactment can establish "that no set of circumstances exists under which the Act would be valid." In re C.E., 161 Ill. 2d 200, 210-11 (1994), quoting United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987).

Wickham v. Byrne, 199 Ill.2d 309, 769 N.E.2d 1, 263 Ill.Dec. 799 (2002).

Any statute that limits the decision-making capability of a fit parent is unconstitutional. Anytime a fit parent can provide a benefit to the child (i.e., provide for in the best interest of the child), this test would be met and, thus, the statute would be invalid.

f. In addition, a statute will be held unconstitutional if it is "breathtakingly broad." Troxel v. Granville, supra at 52.

i.  Section 602 states:

(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:

(1) the wishes of the child's parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;

(4) the child's adjustment to his home, school and community;

(5) the mental and physical health of all individuals involved;

(6) the physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person;

(7) the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person; and

(8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

In the case of a custody proceeding in which a stepparent has standing under Section 601, it is presumed to be in the best interest of the minor child that the natural parent have the custody of the minor child unless the presumption is rebutted by the stepparent.

(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.

(c) Unless the court finds the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, the court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child. There shall be no presumption in favor of or against joint custody.

ii. Section 602, and related statutes that refer to the "best interest of the child," create an intolerable tension in the law because they allow the Court extremely broad latitude to make ANY custody decision, and almost ANY decision for that matter, based on its own discretion, even if Brian adequately cares for Samantha, and without any showing that Brian is an unfit parent.

1. Even the mental health "professionals" who perform custody evaluations readily admit that the "best interest of the child" standard is "a vague concept in search of a practical meaning."[42]

iii. As previously noted, it is a statutory flaw when a statute "...places the best-interest determination solely in the hands of the judge."

[52] Should the judge disagree with the parent's estimation of the child's best interests, the judge's view necessarily prevails. Thus, in practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interests.

Troxel et vir. v. Granville, 530 US 57, 67 (2000).

g. Even depriving a parent temporarily of Rights secured by the Constitution deserves extensive due process protection, with the burden of proof resting on the state:

[49] The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. See New York Times Co. v. United States, 403 U.S. 713 (1971).

Elrod v. Burns, 96 S Ct 2673; 427 US 347 (1976).

And,

[211] The due process clause requires that severances in the parent-child relationship caused by the state occur only with rigorous protections for the individual liberty interests at stake. Lassiter v. Department of Social Services, 452 U.S. 18, 27, 68 L. Ed. 2d 640, 101 S. Ct. 2153; Little v. Streater, 452 U.S. 1, 13, 68 L. Ed. 2d 627, 101 S. Ct. 2202: Smith v. Organization of Foster Families, 431 U.S. 816, 842, 846, 53 L. Ed. 2d 14, 97 S. Ct. 2094; Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551. The state may not separate the parent from the child, even temporarily, without according them due process of law to protect their liberty interests. See Lassiter, supra; Stanley, supra. Indeed, the Supreme Court has accorded the parent-child relationship these protections whether legitimized by marriage or not, and due process is implicated in state involvement in both the termination and the imposition of those bonds. See Little v. Streater, supra, 452 U.S. at 13 (due process requirements of paternity determinations).

Bell v. City of Milwaukee, 746 f 2d 1205, 1242-45; US Ct App 7th Cir WI (1985).

And,

Parent's interest in custody of her children is a liberty interest which has received considerable constitutional protection; a parent who is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection. "Nor can few things happen to her with more grievous consequences than to be deprived of her child, even temporarily." "Since, before a parent's rights to custody may be severed, there must first be a finding that the child is deprived..."

In the Interest of Cooper, 621 P 2d 437; 5 Kansas App Div 2d 584 (1980).

h. Also, the Right to determine with whom their children should associate is also a well-established fundamental Right of a parent - not the State:

[63] Encompassed within the well-established fundamental right of parents to raise their children is the right to determine with whom their children should associate. See Hoff v. Berg, 595 N.W.2d 285, 291 (N.D. 1999) (stating that "[d]eciding when, under what conditions, and with whom their children may associate is among the most important rights and responsibilities of parents," in holding that its most recent grandparent visitation statute was unconstitutional). It is the role of parents to nurture their children and to influence and shape their children's character. As the United States Supreme Court has recognized, "[i]t 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." Prince v. Massachusetts, 321 U.S. 158, 166, 88 L. Ed. 645, 652, 64 S. Ct. 438, 442 (1944). This "preparation for obligation" includes the parents' determination of who will be instrumental in the development of their child's personality and character. Section 607(b) (1) allows the State to usurp the decisionmaking function of parents with respect to the relationships that their children will have. This decisionmaking function lies at the core of parents' liberty interest in the care, custody, and control of their children.

[66] Likewise, by allowing the State to override the decisions of parents regarding the upbringing of their children, section 607(b) (1) significantly interferes with the fundamental rights of parents. Indeed, section 607(b) (1) ultimately allows the State, under certain circumstances, to force parents to deliver their children to individuals whom the parents have decided the children should not see. The constitutionality of section 607(b) (1), which significantly interferes with a fundamental constitutional right, must therefore be evaluated under strict scrutiny. See Tully, 171 Ill. 2d at 304.

Lulay v. Lulay, 193 Ill. 2d 455 (2000).

72. The Best Interest of the Child Statutes create significant interference on Brian's fundamental Rights and implicates Samantha's welfare:

[64] The parent or parents are then haled into court. The parents must presumably hire attorneys, and then present evidence and defend their decision regarding the visitation before a trial court. The parents' authority over their children is necessarily diminished by this procedure. This can only be characterized as a significant interference with parents' fundamental right to make decisions regarding the upbringing of their children. Indeed, the "burden of litigating a domestic relations proceeding can itself be 'so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child's welfare becomes implicated.' "Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 62, 120 S. Ct. at 2065, quoting 530 U.S. at ___, 147 L. Ed. 2d at 78, 120 S. Ct. at 2079 (Kennedy, J., dissenting).

Lulay v. Lulay, 193 Ill. 2d 455 (2000).

73. Furthermore, the Illinois Supreme Court recently reiterated this opinion in its appellate review striking down 607(b)(1) and reinforced that state interference with fundamental childrearing Rights is extremely limited, giving specific examples of where State interference is permitted:

[42] The fourteenth amendment of the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const., amend. XIV, ß1. The due process clause grants "heightened protection against government interference with certain fundamental rights and liberty interests." Washington v. Glucksberg, 521 U.S. 702, 720, 138 L. Ed. 2d 772, 787, 117 S. Ct. 2258, 2267 (1997). One of the fundamental rights protected under the fourteenth amendment is the right of parents to make decisions concerning the care, custody, and control of their children without unwarranted state intrusion. Troxel, 530 U.S. at 66, 147 L. Ed. 2d at 57, 120 S. Ct. at 2060; Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 606, 102 S. Ct. 1388, 1394-95 (1982); Parham v. J.R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 118, 99 S. Ct. 2493, 2504 (1979); Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 519, 98 S. Ct. 549, 554-55 (1978); Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 558, 92 S. Ct. 1208, 1212-13 (1972); Wisconsin v. Yoder, 406 U.S. 205, 232, 32 L. Ed. 2d 15, 35, 92 S. Ct. 1526, 1541-42 (1972); Prince v. Massachusetts, 321 U.S. 158, 165-66, 88 L. Ed. 645, 652, 64 S. Ct. 438, 442 (1944); Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534-35, 69 L. Ed. 1070, 1078, 45 S. Ct. 571, 573 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 67 L. Ed. 1042, 1045, 43 S. Ct. 625, 626 (1923). Decisions concerning care, custody, and control include, for example, decisions about a child's education, religion, and general upbringing. See Lulay, 193 Ill. 2d at 471-72. State interference with fundamental parental childrearing rights is justified in limited instances to protect the health, safety, and welfare of children. See, e.g., Prince, 321 U.S. at 166-67, 88 L. Ed. at 653, 64 S. Ct. at 442 ("the state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare"). Under Illinois law, examples of these limited instances include: required testing for phenylketonuria at birth (410 ILCS 240/1 (West 2000)); required immunization for diphtheria, pertussis, and tetanus (410 ILCS 315/2 (West 2000)); required hearing and visual examinations (410 ILCS 205/1 et seq. (West 2000)); and prohibited child labor (820 ILCS 205/1 et seq. (West 2000)). [Emphasis added].

Wickham v. Byrne, 199 Ill.2d 309, 769 N.E.2d 1, 263 Ill.Dec. 799 (2002).

a. Under Illinois law, this Court may not force an unequal "custody" or parenting schedule, or force any parental action concerning a child's general upbringing, as justified because the health, safety, and welfare of the child is not at risk, like it would be in the case of immunizations, required medical testing and examinations, or prohibited child labor.

74. An individual's liberty interests under the Fourteenth Amendment of the Federal Constitution are protected by due process. Whether any procedural protections are due depends upon an analysis of "whether the nature of the interest is one within the contemplation of the 'liberty or property' language of the Fourteenth Amendment." (Morrissey v. Brewer, 408 U.S. 471, 481 at 31 (1982)). It is well-established and settled law that family relations comprise a protected liberty interest, possibly one of the oldest of these interests:

[50] 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.

Troxel et vir. v. Granville, 530 US 57, 67 (2000).

And,

[28] The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

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

75. Brian's liberty interest of family relations is to be accorded the greatest respect:

[26] 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." Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J., concurring).

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

76. Brian's liberty interest of family relations is a protected interest:

[26] We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected...

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

And,

[39] 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 righ[t] ... to direct the education and upbringing of one's children.

Washington v. Glucksberg, 521 U. S. 702, 720 (1997), citing Meyer, supra and Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925).

77. Any attempt by this Court to order a change to the parenting schedule of the Agreed Interim Order, without any credible evidence of substantial harm or danger or even the imminent risk of substantial harm or danger, but only on the flimsy ground of what this Court determines to be the "best interest of the child" and pursuant to Illinois statutes, would constitute a constitutionally impermissible infringement of Brian's Substantive Due Process Rights.

[51] 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.

Troxel et vir. v. Granville, 530 US 57, 67 (2000).

78. Statutes challenged under fundamental Rights secured by the Federal Constitution require strict scrutiny, not only a rational relation to a legitimate state purpose. There must exist a compelling state interest before the state can impair fundamental Rights, even in the face of apparent statutory empowerment to the contrary, as evidenced by the fact that the standard of review of such a decision is one of strict scrutiny:

[77] Consequently, I agree with the plurality that this Court's recognition of a fundamental right of parents to direct the upbringing of their children resolves this case. Our decision in Pierce v. Society of Sisters, 268 U. S. 510 (1925), holds that parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them. The opinions of the plurality, Justice Kennedy, and Justice Souter recognize such a right, but curiously none of them articulates the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental rights. Here, the State of Washington lacks even a legitimate governmental interest -- to say nothing of a compelling one -- in second-guessing a fit parent's decision regarding visitation with third parties. On this basis, I would affirm the judgment below.

Troxel et vir. v. Granville, 530 US 57, 67 (2000).

And,

[54] A court generally applies the rational basis test in examining the constitutionality of a statute under substantive due process. See Tully, 171 Ill. 2d at 304. To satisfy this test, a statute need only bear a rational relation to a legitimate state purpose, and must be neither arbitrary nor discriminatory. Tully, 171 Ill. 2d at 304. If, however, challenged legislation impinges upon a fundamental constitutional right, the court will examine the statute under the strict scrutiny standard. Tully, 171 Ill. 2d at 304. To withstand the strict scrutiny standard, a statute must serve a compelling state interest, and be narrowly tailored to serve the compelling interest, i.e., the legislature must use the least restrictive means to serve the compelling interest. See Tully, 171 Ill. 2d at 304-05; People v. R.G., 131 Ill. 2d 328, 342 (1989).

[65] The court reasoned that, even though "the State neither takes the minor out of the home nor alters the parents' temporary or permanent custody of the minor, the State nevertheless intercedes, on behalf of the minor, in the family relationship." R.G., 131 Ill. 2d at 344. Thus, the statutes "significantly interfere[ ] with the family relationship and can only be justified if the State has a compelling interest." R.G., 131 Ill. 2d at 344. [Emphasis added].

Lulay v. Lulay, 193 Ill. 2d 455 (2000).

And,

[36] It is firmly established that a significant impairment of First Amendment rights must survive exacting scrutiny. Buckley v. Valeo, 424 U.S., at 64-65; NAACP v. Alabama, 357 U.S., 449, 460-461 (1958). "This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the government's conduct...." Buckley v. Valeo, supra, at 65. Thus encroachment "cannot be justified upon a mere showing of a legitimate state interest." Kusper v. Pontikes, 414 U.S., at 58. The interest advanced must be paramount, one of vital importance, and the burden is on the government to show the existence of such an interest. Buckley v. Valeo, supra, at 94; Williams v. Rhodes, 393 U.S., at 31-33; NAACP v. Button, 371 U.S., 45, 438, 444 (1963); Bates v. Little Rock, 361 U.S., 516, 524 (1960); NAACP v. Alabama, supra, at 464-466; Thomas v. Collins, 323 U.S. 516, 530 (1945). In the instant case, care must be taken not to confuse the interest of partisan organizations with governmental interests. Only the latter will suffice. Moreover, it is not enough that the means chosen in furtherance of the interest be rationally related to that end. Sherbert v. Verner, supra, at 406. The gain to the subordinating interest provided by the means must outweigh the incurred loss of protected rights, see United Public Workers v. Mitchell, 330 U.S., at 96, and the government must "emplo[y] means closely drawn to avoid unnecessary abridgment...." Buckley v. Valeo, supra, at 25. "[A] State may not choose means that unnecessarily restrict constitutionally protected liberty. 'Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.' [Emphasis added].

Elrod v. Burns, 96 S Ct 2673; 427 US 347 (1976).

79. The principle that there must exist a compelling state interest before the state can impair fundamental Rights was also enunciated unequivocally in Roe v. Wade:

[90] Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest," Kramer v. Union Free School District, 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 634 (1969), Sherbert v. Verner, 374 U.S. 398, 406 (1963), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. [Citations omitted.]

Roe et al. v. Wade, 973.SCT.40394 ; 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).

80. Roe drew on a long heritage of U.S. Supreme Court holdings that the state must demonstrate a "compelling interest" to justify infringement of fundamental Rights. In Griswold v. Connecticut, that Court held:

[58] In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. "Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling," Bates v. Little Rock, 361 U.S. 516, 524. The law must be shown "necessary, and not merely rationally related, to the accomplishment of a permissible state policy." McLaughlin v. Florida, 379 U.S. 184, 196. See Schneider v. Irvington, 308 U.S. 147, 161.

Griswold et al. v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965).

Regardless of State Statutes that Are "On The Books," Refusal to Comply With the Law When the Law Has Been Ruled Upon by a Higher Court Is an Actionable Violation of the Constitution and of this Court's Duty

81. This Court is not immune to the consequences of violation of, nor exempted from adherence to, the principles of constitutional law merely by dint of its designation as a civil court division focused on domestic relations. This Court is still continually bound to adherence to the protections afforded individuals by the Federal and State Constitutions.

[23] State judges, as well as federal, have the responsibility to respect and protect persons from violation of federal constitutional rights.

Goss v. State of Illinois, 312 F 2d 257 (1963).

And,

[40] No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . ." Sterling v. Constantin, 287 U.S. 378, 397-398.

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958).

And,

A father has the right at common law to maintain his children in his own home, and he cannot be compelled against his will to do so elsewhere, unless he has refused or failed to provide for them where he lives, and [the statutes] providing for the punishment of a father for the failure to support his children, were not intended to change the common law, with respect to the duty of a father to maintain and support his infant children, but merely to more effectually enforce the legal duty.

Butler v. Commonwealth, 132 Va. 609, 110 S.E. 868 (1922).

And,

[24] The state's power to legislate, adjudicate and administer all aspects of family law, including determinations of custodial and visitation rights, is subject to scrutiny by the federal judiciary within the reach of the Due Process and/or Equal Protection Clauses of the Fourteenth Amendment. In re Burrus, 136 U.S. 586, 10 S. Ct. 850, 34 L. Ed. 500 (1890); Schleiffer v. Meyers, 644 F.2d 656 (7th Cir. 1981), U.S. app. pndg.; Crouch v. Crouch, 566 F.2d 486 (5th Cir. 1978); Huynh Thi Anh v. Levi, 586 F.2d 625 (6th Cir. 1978); Solomon v. Solomon, 516 F.2d 1018 (3d Cir. 1975); Leonhard v. Mitchell, 473 F.2d 709 (2d Cir. 1973), cert. denied, 412 U.S. 949, 93 S. Ct. 3011, 37 L. Ed. 2d 1002 (1973).

[104] The noncustodial divorced parent has no way to implement the constitutionally protected right to maintain a parental relationship with his child except through visitation. To acknowledge the protected status of the relationship as the majority does, and yet deny protection under section 1983 to visitation, which is the exclusive means of effecting that right, is to negate the right completely.

Wise v. Bravo, 666 F 2d 1328 (1981).

And,

[22] We reversed, holding that the parent-child relationship is constitutionally protected and that governmental interference with it gives rise to a section 1983 action for damages.

Kelson v. City of Springfield, 767 F.2d 651 (1985).

a. According to the State of Illinois Judicial Inquiry Board Code of Judicial Conduct preamble:

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all provisions of this code are precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.

And, according to Rule 62(A):

A judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

b. As far back as 1821, Thomas Jefferson warned the nation: "The germ of destruction of our nation is in the power of the judiciary, an irresponsible body - working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall render powerless the checks of one branch over the other and will become as venal and oppressive as the government from which we separated."

Therefore, This Court Is Without Authority to Order Unequal Parenting Rights, Responsibilities, and Time, and Would Violate Brian's Rights, Which Are Secured by the Constitution, if It Does

82. As per 750 ILCS 5/502, this Court is bound by Brian and Laurie's parenting agreement, as the parties have entered into an agreement to promote amicable settlement of disputes, and this agreement does not inflict any substantial harm on Samantha, and none of its terms regarding parenting time are excessive, unreasonable, or shockingly unfair/unjust.

Parental authority is plenary. It prevails over the claims of the state, other outsiders, and the children themselves. There must be some compelling justification for interference.

Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan (1985).

83. In the instant matter, there exists no credible evidence to trigger the State's compelling interest here which would permit infringement of Brian's Right to the care, control, companionship and management of his child. Absent such compelling interest (i.e., credible showing of unfitness), the State cannot intrude in his family relations, nor can it impair his protected liberty interest. This Court's constitutionally-permissible authority extends only to guarantee the equal protection of each litigant's Rights. Any Court order that does otherwise will be flagrantly in violation of Brian's fundamental Rights in and to his child and his Rights under the Equal Protection and Substantive Due Process Clauses of the Fourteenth Amendment, the "best interest" statute notwithstanding.

84. Under these circumstances, this Court is without authority and jurisdiction to enter orders for modification of parental responsibilities and parenting time which impair and infringe upon Brian's fundamental liberty interest in his family relations in favor of Laurie. Any Court order providing for egregiously unequal parental Rights and parenting time constitutes an affront to Brian's protected liberty interest in his family and are self-evidently repugnant to the letter and spirit of the Fourteenth Amendment. The only outcome which can guarantee the protection of such fundamental Rights is an order for the equal division of parenting time and a co-equal allocation of parental responsibilities and Rights between the parties, which already exists.

IV. CHILD SUPPORT

The parties should financially support Samantha individually when she is in his or her care, excluding major expenses which the parties jointly agree to

Brian Has No Duty to Pay Laurie Child Support

85. As indicated in paragraph 6.b, Laurie's salary is $X.

86. As ordered by the Previous Court, Brian is currently paying Laurie $314 monthly as child support (Exhibit DDDD - 1.e.).

87. The parties currently share EQUAL time with Samantha (Exhibit A - B.2.).

88. The parties orally agreed in February, 2002 that neither party would pay the other child support. Brian alleges that Laurie and her attorneys committed multiple torts, including when they intentionally made false statements of material fact and then Laurie breached her oral contract with Brian. This violation of Laurie's duty was the proximate cause of Brian's injury (i.e., financial and emotional). While Brian performed all of his duties, Laurie failed to perform on most every aspect of her duties and is therefore liable for breach of contract and fraud.

[14] As disclosed by decisions of this court, the elements of a cause of action for fraudulent misrepresentation (sometimes referred to as "fraud and deceit" or "deceit") are: (1) false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. (Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, 333; Roth v. Roth (1970), 45 Ill.2d 19, 23; Roda v. Berko (1948), 401 Ill. 335, 339-40; Bennett v. Hodge (1940), 374 Ill. 326, 332.) Furthermore, the reliance by the other party must be justified, i.e., he must have had a right to rely. Schmidt v. Landfield (1960), 20 Ill.2d 89, 94; Prosser, Torts sec. 105, at 686 (4th ed. 1971); Restatement (Second) of Torts sec. 537 (1977).

Soules v. General Motors Corp., 79 Ill.2d 282, 402 N.E.2d 599 (1980).

a. Laurie filed an Emergency Petition for Exclusive Possession of the Marital Residence on February 1, 2002.

b. Brian filed an Emergency Petition for Order of Protection on February 11, 2003 (see paragraph 16.a.ii) as a result of Laurie's physically violent and abusive behavior (e.g., see Exhibit B - paragraph 12.a) and significant recent interference by Laurie in Brian's parenting time with Samantha (e.g., see Exhibit B - paragraphs 14.a.i.7 through 14.a.i.13).

c. An agreement was negotiated on or around February 19, 2002 between the parties and their counsel.

i.  Laurie wanted four considerations as part of the negotiations:

1. That Laurie be able to temporarily reside in the marital residence immediately (i.e., within "a few days") (Exhibit A - paragraph D.2.);[43]

2. That neither party be in the company of an unrelated person of the opposite sex with whom that party is more than casually/socially involved with while Samantha is in his/her care (Exhibit A - paragraph B.4.b.);[44]

3. That the parties' nanny will travel between the parties homes to care for Samantha (Exhibit A - paragraph B.4.c.);

4. That each party would be responsible for 50% of the nanny expenses (Exhibit A - paragraph C.2.).

ii. Upon Laurie's insistence during these negotiations that she immediately be able to temporarily reside in the marital residence and under SIGNIFICANT pressure from the Previous Court, the Guardian Ad Litem (Jacalyn Birnbaum), and his attorney to resolve the issue and eliminate the need for a hearing (see paragraph 16.a), Brian agreed to move from the marital residence (and to unwillingly submit to the Evaluation - see paragraph 16) for the following five considerations:

1. Brian would have equal (i.e., 50/50) parenting time with Samantha, which would not be interfered with by Laurie (Exhibit A - paragraph B); [45]

2. As the parties would have equal parenting time with Samantha and both could financially afford to meet her reasonable needs, and as the parties would be paying half of all major expenses, INCLUDING the nanny (Exhibit A - paragraph C.2.), the parties agreed that neither party would pay the other child support (Exhibit A - page 3 - crossed out paragraph C.1.);

3. In order to resolve any future issue regarding the parties' "spending habits," after February 19, 2002, the parties would retain their respective future paychecks (Exhibit A - paragraph E.1.b.), which would be deemed "equivalent in value," "without further analysis as to expenditures or the like;"[46]

4. In order to resolve any future issue regarding property, the parties would divide the major personal property (Exhibit A - paragraph E.2., see also Exhibit KKKK), and, in good faith, divide the remaining personal property outside this formal agreement;

5. Brian would retain the parties' automobile (Exhibit A - paragraph E.3.).

d. Laurie agreed to all of Brian's considerations in exchange for her own, knowing these future conduct promises to be false, with the malicious intent to get Brian to voluntarily and immediately move out of the marital residence in good faith (as well as to cheat and defraud him of other property later - see paragraph 88.g). Considering the attorneys were present during the negotiations,[47] Brian, relying on Laurie's purported truth of her agreement and keeping "true" to his word, immediately looked for and found an apartment, and moved out 6 days later (Exhibit U - page 31 [February 25, 2002]).

e. On March 21, 2002, the day this agreement (i.e., Agreed Interim Order) was to be filed and memorialized with the Previous Court, and 24 days after Brian, IN GOOD FAITH, moved out of the marital residence, Laurie, through her attorneys, "sand-bagged" Brian and refused the inclusion of the proposed language regarding child support.

i.  As is clearly indicated in Exhibit A[48] the author of the Agreed Interim Order (Jacalyn Birnbaum) was obviously under the (correct) impression that the parties had intended and agreed that, during the pendency of the order, "[t]he parties' respective obligations to pay child support are reserved... and each party shall be responsible for Samantha's reasonable needs while Samantha is in his or her care."

ii. As all of the definitive and final wording had been worked out and agreed to by the parties during the month (again, see footnote 48), and as Brian had already performed on his part of the oral agreement in good faith (e.g., in 6 days, immediately securing a rental apartment and moving out on February 25, 2002, Laurie's PRIMARY consideration[49]), on the day the Agreed Interim Order was to be entered, and fully aware of how financially, physically, and emotionally difficult it would be for Brian to move back in, Laurie reneged on this part of her commitment and refused to sign the Agreed Interim Order unless paragraph C.1. was removed.

iii. This constitutes fraud and it is a blatant breach of contract.

f. As Brian had already entered into a contract for a one-year rental apartment that could not be altered without significant penalty, AND as he had been living there already for one month, AND as Brian had moved much of his property out of the marital residence up four narrow flights of stairs to his new apartment,[50] AND as Samantha (age two at the time) was in a precarious period of adjusting to her parents no longer living together in the house she had grown up in, AND as Samantha was adapting well to Brian's new home, AND even though Brian knew he had been deceived/tricked by Laurie, Brian felt that moving back into the marital residence would place a SIGNIFICANT hardship on Samantha (who would likely be VERY confused) and himself (as he would have to repack all of his belongings and pay significant financial penalties and moving costs). Based on the advice of his then-attorney and the detrimental ramifications of choosing otherwise, Brian, therefore, unwillingly (i.e., under duress) allowed the paragraph to be removed (i.e., crossed out BY HAND, as is clearly indicated in the order) and entered on March 21, 2002.

g. Laurie has also since wangled out of and reneged on all of her other duties per the parties' agreement.

i.  Laurie reneged on her agreement that the parties would retain all future paychecks without further analysis (see paragraphs 106.b, 107, 108, and 115 though 117).

ii. Laurie reneged on her agreement that the parties would divide the major personal property (see paragraph 154).

iii. Laurie reneged on her agreement that Brian would retain the parties' automobile (see paragraph 148).

h. It was therefore Laurie and her attorney's entire scheme to defraud Brian and take advantage of his good faith that he offered to resolve the parties' immediate differences, when they had no intention of honoring their part of the agreement.

i.  It is likely Laurie and her attorneys were planning this fraud before the parties' agreement.

1. Laurie spent over $7,600 in cosmetic dental work, with approximately 50% of it being charged 1.5 months prior to her claiming that she was in desperate need of financial support (see paragraphs 140.a, 88.j, and 111.c).

2. As if further proof should even be necessary, Laurie purchased an expensive BMW car with a $5,000 down payment on February 21, 2002 without Brian's knowledge or approval days after the parties had negotiated the terms of the Agreed Interim Order, but before the Agreed Interim Order was formally entered with this Court (see Exhibit AAAA, see also Laurie's 13.3 financial disclosure).

i. Therefore (and not dismissing its importance), the ONLY consideration Brian has received as a result of moving out of the marital residence is equal parenting time, WHICH SHOULD HAVE BEEN GUARANTEED BY THE FEDERAL CONSTITUTION ANYWAY (see section III, CUSTODY). Effectively, Brian has therefore received little to no consideration whatsoever for moving out of the residence that he purchased and improved exclusively with non-marital assets (paragraph 147).

j. ONE DAY AFTER the Agreed Interim Order was entered, on March 22, 2002, Laurie filed an Emergency Petition for Temporary Support (Exhibit KKK), which was COMPLETELY against the spirit and clear wording of the agreement/Agreed Interim Order.

k. Laurie willfully and intentionally made false statements signifying her oral agreement during negotiations (i.e., that she would not seek child support from Brian) with inducement to get Brian to, in good faith, willingly agree to immediately leave the house. Brian believed the statements made by Laurie to be true, relied on them, and as a result, suffered damages.[51]

l. In Brian's formal (Exhibit IIII and Exhibit WWWW) and oral responses to Laurie's Emergency Petition for Temporary Support, Brian affirmatively stated these facts, which the Previous Court refused to consider as relevant, and even refused to rule on Brian's Motion in Limine (see paragraph 156.c.i). The Previous Court refused to conduct a formal hearing, as the parties had "used up their allocated time" (see paragraph 88.n) in a pre-trial hearing. Brian was ordered to pay Laurie "child support" of $314 monthly, retroactive to July, 2002. The terms of this order were without prejudice to Brian's "right" to contest the issue and seek credits at final trial (Exhibit DDDD - 5.).

m. In addition to the "child support" Brian is paying Laurie, since Brian moved from the marital residence, Brian has been paying 50% of Samantha's daycare,[52] medical insurance expenses, and 61% of her school (all as ordered by the Previous Court), in addition to all relevant expenses while Samantha is in his care.

i.  Also, Laurie refused to give Brian half of Samantha's clothes as the parties verbally agreed (see paragraphs 88.c.ii.4 and 155.e.i.8), but only gave Brian a very few "odds and ends." When Brian would care for Samantha during his scheduled time, Laurie would send over only enough outfits for Samantha to wear one per day and REQUIRE Brian to return the outfits to her when she picked Samantha up. As this caused a significant number of disagreements between the parties, Brian was forced to purchase $X in new clothes for Samantha (Exhibit HHHH).

n. The Previous Court blatantly violated Brian's Rights, secured by the Federal Constitution, as guaranteed by the Fourteenth Amendment of the Federal Constitution and section 2 of Article II of the Illinois Constitution when it denied Brian adequate time to present evidence on Laurie's Emergency Petition for Temporary Support (see September 6, 2002 Report of Proceedings - page 82: lines 2 - 24 and page 83: lines 1 - 22, see also Brian's Motion to Reconsider September 6, 2002 Court Order Regarding ‡ Hour Hearing and this Court's denial in Exhibit DDDD - 4.). The time limit imposed by the Previous Court clearly violated Brian's due process Rights, which directly resulted in significant financial and emotional injury to Brian.

[12] The procedural aspects of due process and equal protection of the laws require that a person be given notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the case. (City of Chicago v. Cohn (1927), 326 Ill. 372, 374-75, 158 N.E. 118.) In Pettigrew v. National Accounts System, Inc. (1966), 67 Ill. App.2d 344, 351, 213 N.E.2d 778, the court stated:

[13] "A fundamental requisite of procedural due process is that every man shall have the protection of his day in court and the benefit of an orderly proceeding according to the general law or established rules; and that the hearing shall not be arbitrary, but rather shall afford to him an opportunity to be heard in his defense and shall assure to him an inquiry on the issues of the case, wherein judgment is rendered only after trial."

[14] Applying the aforementioned standards to the case at bar, we find that Parkway was not afforded procedural due process as guaranteed by section 1 of amendment XIV of the Federal Constitution and section 2 of article II of the Illinois Constitution. The record is replete with examples of a trial procedure so lacking in the fundamental principles of our system of justice that the procedure must be condemned as a denial of due process rights.

[19] Not only was there an arbitrary time limit put on the proceeding...

Nye v. Parkway Bank & Trust Co., 114 Ill. App.3d 272, 448 N.E.2d 918 (1983).

And,

[63] "Due process of law implies the administration of equal laws according to established rules, not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the case and proceeding upon notice and hearing. (McGehee on Due Process of Law, p. 1.) The guaranty of due process of law requires that every man shall have the protection of his day in court and the benefit of the general law, ó a law which hears before it condemns, which proceeds not arbitrarily or capriciously but upon inquiry and renders judgment only after trial, so that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. (Truax v. Corrigan, 257 U.S. 312; Simon v. Craft, 182 id. 427; Hurtado v. California, 110 id. 516; Ex parte Wall, 107 id. 265). An orderly proceeding in which a person is served with notice, actual or constructive, and has an opportunity to be heard and to protect and enforce his rights before a court having power to hear and determine the cause, is due process of law. (City of Chicago v. Cohn, 326 Ill. 372, People v. Cohen, 219 id. 200). The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. Simon v. Craft, 182 U.S. 427; Lent v. Tillson, 140 id. 316; Turpin v. Lemon, 187 id. 51; City of Chicago v. Cohn, 326 Ill. 372."

People v. Garlick, 46 Ill. App.3d 216, 360 N.E.2d 1121 (1977).

The Child Support Statutes Violate Brian's Right to Equal Protection Under the Law

89. This Court has no authority or jurisdiction to "award" child support, as the Child Support Statutes violate Brian's Right to equal protection of the laws, a Right guaranteed by the Federal and Illinois Constitutions, in that the statutes subject Brian to burdens different from, and in excess of, those imposed on persons who are parents in an intact marriage.

90. While the legal relation between a husband and wife is altered by the entry of a decree of dissolution of marriage, the legal relation between each parent individually and the child is not so altered.

a. A parent stands in the same relation to his or her child after dissolution as he or she did prior to dissolution (see paragraph 63).

b. In the situation of an intact marriage, the State lacks any interest sufficiently compelling to permit it to enact laws that would dictate a sum certain to be used for or directed to the benefit of a child. That decision lies strictly within the discretion of the parents, assuming that the level of support is sufficient to maintain the child healthy and safe (i.e., reasonable).

91. The Child Support Statutes violate Brian's Right to equal protection of the laws in that the egregiously different burdens and benefits placed on persons similarly situated with respect to their respective child (i.e., parents with the obligation to support their child and the same means for doing so as when they were married but with different expense structures), but who are now divorced suffer the imposition of a sum certain to be expended for the child.

a. The courts have openly acknowledged that classifications of custodial and non-custodial parents exist. The logic of Blaisdell is fatally flawed and must be reversed. The Illinois Appellate Court stated there:

[92] ï 6 Respondent again relies on the assumption that the statutory guidelines are mandatory. Although the statute obviously distinguishes between custodial and non-custodial parents, the statute treats all divorced parents alike, and thus does not deny non-custodial parents equal protection. See, e.g., Sanders v. City of Springfield (1985), 130 Ill. App.3d 490, 497, 474 N.E.2d 438.

[93] Even if the statute can be construed to treat non-custodial parents differently, such classification is proper. The equal protection clause does not deny a State the power to differentiate between persons similarly situated if there is a rational basis for doing so. (Jenkins v. Wu (1984), 102 Ill.2d 468, 477, 468 N.E.2d 1162.) As noted above, the statute includes a percentage of non-custodial parents' income in order to standardize and increase child support in light of comprehensive studies showing inadequate awards. See, e.g., Williams, Child Support and the Cost of Raising Children: Using Formulas to Get Adequate Awards, Institute for Court Management of the National Center for State Courts (May 3, 1985).

[94] Sufficient differences exist between custodial and non-custodial parents to warrant the conclusion that they comprise different classes. The major distinction here is that a custodial parent has the primary and general responsibility to care for the child.

[95] Non-custodial parents are assessed a specific amount for child support payments, while custodial parents are not so assessed. But custodial and non-custodial parents are not "similarly situated" since, after divorce, the custodial parent's responsibility for the child's support as well as care is general and plenary, while the non-custodial parent's responsibility is usually limited to the requirements of the support order. While both parents are responsible for the child's support, it is not the child support schedules themselves but the very fact that the non-custodial parent must discharge his or her responsibility by making cash payments to the custodial parent which initially distinguishes them. The schedules themselves do not create a legislative "classification"; they merely structure, subject to court adjustment, the non-custodial parent's contribution in an effort to shift some of the burden of care and support from the custodial parent. The legislature could rationally have concluded that the percentages of the non-custodial parent's net income included in the guidelines constituted a fair point of departure and fully rebuttable presumption in attempting to equalize, or at least make more equitable, the share of the non-custodial parent's contribution. Illinois constitutional law requires no more.

[96] That custodial parents are differently situated than non-custodial parents appears from the one case which the respondent cites presumably in support of his Illinois equal protection claim. In Hursh v. Hursh (1975), 26 Ill. App.3d 947, 326 N.E.2d 95, the appellate court reversed an order which completely denied the custodial parent (the father) any child support payments from the non-custodial parent (the mother), even though the income of the non-custodial parent was higher than that of the custodial parent. The trial court had apparently relied on the fact that the custodial parent made an adequate income. (26 Ill. App.3d 947, 949, 326 N.E.2d 95.) Of course, in Hursh, the custodial parent had not been "assessed" any child support "obligation" either, but the court recognized the obvious fact that he was significantly contributing to the needs of the child, while the non-custodial parent was contributing nothing, despite a significant income. Under those circumstances, the court found a violation of the custodial parent's right to equal protection of the laws. (26 Ill. App.3d 947, 951, 326 N.E.2d 95.) In this case, on the other hand, the court, after considering the contributions by both parents and their relative abilities to contribute to the child's support, has ordered the non-custodial parent to increase the amount he is paying for support of the child. This is, of course, consistent with section 505(a) which has required and continues to require both parents to contribute to the child's support.

[97] In amending section 505(a), the legislature could rationally have "assumed" that the custodial parent is already contributing to the support of the child in an amount equivalent to the percentage schedules, and constructed the schedules, subject to modification in any individual case, on that assumption. See Kujawinski v. Kujawinski (1978), 71 Ill.2d 563, 376 N.E.2d 1382.) The statute does not deprive the respondent of equal protection of law under the Federal and Illinois constitutions.

In Re Marriage of Blaisdell, 492 N.E.2d 622, 142 Ill. App.3d 1034 (1986).

b. However, even if "the statute treats all divorced parents alike" (which is obviously not the case as Blaisdell points out), this is not the claim being urged here. This distinction, created by operation of statute, is one of the core elements of the law being challenged.

i.  The Rights at issue are of the most fundamental nature (see section III, CUSTODY). A divorced father is treated by the State very differently than the way the State treats married fathers. Regardless of the custody of the child, and regardless of one parent's income relative to the other's, and regardless of the amount of time a parent is "allowed" to spend with the child, a divorced parent is NOT situated differently with respect to his/her child (see paragraph 63). Therefore, the claim that all divorce parents are treated alike is not to draw a valid distinction.

c. Also, there exist key economic facets of this case that render Blaisdell inapplicable to the constitutional issues before this Court (see paragraph 95).

This is a 1986 decision that applied to welfare case guidelines. The guidelines were not applied outside of welfare cases. The obligor is assumed to have no child costs beyond the child support order. The case did not address the classification issue for situations in which there are shared parenting arrangements. The Illinois case certainly did not address the classification issue in which there is joint physical custody as now occurs with some frequency in Georgia. Additionally, if this case is interpreted beyond welfare case application in which the obligor incurs child costs in addition to the child support order, then any such interpretation would be in conflict with the underlying studies from Wisconsin and in conflict with the principles established in Meltzer v. Witsberger, 480 A.2d 991 (Pa. 1984), Conway v. Dana, 318 A.2d 324 (Pa. 1985), and Smith v. Smith, 626 P.2d 342 (Or. 1980). All of these cases that addressed constitutionally sound sharing of child costs indicated that the costs of each parent should be treated alike and that each parent had an equal duty for child support to the other. The Boris decision is economically and constitutionally sound only if limited to situations in which the obligor incurs no child costs beyond the payment of the child support award (along with various assumptions such as the obligee having no income).

Exhibit OO - page 70.

92. The Child Support Statutes, while facially content-neutral and generally applicable, are neither, in that they regularly and routinely result in unequal treatment of similarly situated persons. The statutes are not supported by nor narrowly tailored to serve a valid governmental interest, as their application inevitably result in the imposition of an order against one parent to pay an arbitrary sum certain for his child when the State cannot and does not impose such a burden on a parent situated identically in relation to that parent's child.

a. Section 505 specifically allows the Court to "order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for his support..."

b. The section is BLATANTLY biased in that even its wording specifically allows the court to order ONLY ONE parent (i.e., "either or both") to support a child of the marriage, when both parents are obviously financially responsible for providing, and have a duty to provide, reasonable support for the child.

c. Discriminatory intent is clear as, by its very terms, the Court can order only one party (e.g., the non-custodial parent, the parent that makes a higher salary, the parent who receives less time/privileges) to pay child support.

d. In Illinois, both parents have an obligation to support their children. No rationale justifies singling out one parent (e.g., on a basis of custody, financial resources, or parental time/privileges) and imposing upon him (and on rare occasion, her) a disproportionate financial burden while awarding the other parent a windfall of tax-free income and other benefits.

e. Suspect classifications arise when legislation creates them where no "overriding statutory purpose" was shown (McLaughlin v. Florida, 379 U.S. 184, 192, 194 (1964)) and they were not necessary to some "legitimate overriding purpose" (Loving v. Virginia, 388 U.S. 1, 11 (1967)).

i.  The State has created a classification of married and divorced parents. This is an arbitrary classification as there is no legitimate overriding purpose, and is therefore suspect.

ii. The State has created a classification of "more financially able" and "less financially able" ex-spouses. This is an arbitrary classification as there is no legitimate overriding purpose, and is therefore suspect.

f. The State cannot assume that a divorced father, simply by dint of the marital dissolution, will fail to support his children.[53]

i.  The State cannot, consistent with due process requirements, merely presume that unmarried fathers in general and Brian in particular, are unsuitable and neglectful parents, and will therefore fail or refuse (be "unsuitable" in the parlance of Stanley) to provide the reasonable or necessary support. Parental unfitness must be established on the basis of individualized proof (see Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 and Stanley, supra). Any other legislative scheme creates an artificial class of parents who, by dint of marital status alone, are presumed "unfit" and in need of State coercion to discharge their obligations.

g. The State cannot intentionally create a condition/class (e.g., non-custodial parent) and then impose a punishment/penalty on it (e.g., child support) without a compelling interest such as a crime.

93. A state cannot single out a class of persons identified by traits (e.g., married or divorced, custodial or non-custodial, higher or lower wage earner, more or less assets, financially able or disabled), and then deny them equal protection by imposing a burden on that class (e.g., that they must pay child support). A state's actions are even more blatantly discriminatory when the imposed burden benefits a similarly situated class (i.e., divorced, custodial parents), as it does in the case of child support. In the words of Gulf, Colorado and Santa Fe Railway Company v. Ellis, "[t]he burden does not go with the privilege." Gulf, Colorado and Santa Fe Railway Company v. Ellis, 165 U.S. 150, 41 L. Ed. 666, 17 S. Ct. 255 (1897) (see also paragraph 171.d.i).

a. In Romer v. Evans, the Supreme Court scrutinized a Colorado statute which stated that homosexuals could not be granted any special privileges by any governmental entity. Because homosexuality is not a suspect class, the Court applied the minimum scrutiny test and reviewed the Amendment for a rational relationship to a legitimate state end. In holding the statute unconstitutional on equal protection grounds, the majority noted that the statute singled out a class of persons identified by a single trait, then denied them protection across the board.

[43] Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.

[44] It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. "Equal protection of the laws is not achieved through indiscriminate imposition of inequalities." Sweatt v. Painter, 339 U. S. 629, 635 (1950) (quoting Shelley v. Kraemer, 334 U. S. 1, 22 (1948)). Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of 'equal protection of the laws is a pledge of the protection of equal laws.'" Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942) (quoting Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886)). [Emphasis added].

Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620 (1996).

94. Brian is not claiming that he does not owe a duty of support to Samantha, nor has he claimed that he does not wish to support his own daughter. Brian's claim under the equal protection argument is that the State's sum certain guideline child support treats him differently from other parents similarly situated with respect to their children without a compelling state interest.

95. Even if the State had a compelling interest (which they do not in the case of a fit parent [e.g., see Stanley v. Illinois in paragraph 56 and B.F. Hawk v. Robert S. Hawk in paragraph 61], and as the State must use the least intrusive means [e.g., see U.S. v. Virginia in paragraph 68.i and Lulay v. Lulay in paragraph 78]), the child support guidelines, in and of themselves, are constitutionally flawed. As Georgia has a similar child support guidelines model (hereinafter "Guidelines") as Illinois has now, which was based on the same underlying economic factors and data as the Illinois model, and as Georgia's model was struck down by the trial and appellate courts as unconstitutional (Exhibit NN),[54] almost all of the data, analysis, and conclusions within the Georgia decision (e.g., Exhibit MM, Exhibit OO) that were used as a basis to strike down Georgia's model are VERY relevant and applicable to Illinois's model. The relevant Georgia data, analysis, and conclusions that are applicable to Illinois include:

a. Any calculation of a support award under the Guidelines was so far removed from any economically rational and appropriate award that it constituted a gross error well beyond any "mere imprecision." The Guidelines as applied to EVERY parent in Georgia who is not granted custody of their child is harmful and that the harm flowing from the constitutional flaws in the Guidelines is suffered each and every time a payment calculated thereunder is due (Exhibit NN).

b. The Guidelines do not meet equal protection standards. For equal protection standards to be met, both parents must contribute equally for the child's needs. Each parent has an equal duty to provide for the child's needs. A key equal protection case for domestic relations law is Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979), which struck down as unconstitutional on its face a statute allowing alimony for women but not for men. Orr v. Orr made it clear that family courts are to treat men and women equally.

i.  As mothers consistently and overwhelmingly receive preferential treatment in Illinois custody "awards" by being "awarded" custody 75% of the time (paragraph 69.a), the Guidelines support has an impermissibly discriminatory affect upon men based on their gender.

1. As custody was "awarded" to 82.2% of mothers in Georgia, it follows that a support obligation under the Guidelines was imposed on fathers in those cases. Therefore, the court found that men are adversely impacted by the Guidelines as applied to a grossly disproportionate degree, which constitutes an impermissibly discriminatory effect on a group based upon their gender. Even if the Guidelines bore a rational relationship to a legitimate government purpose, the Guidelines would still fail.

ii. The child-related tax benefits are not shared with the non-custodial parent. These benefits are intended as cost offsets to child expenditures. Both parents are equally responsible for covering expenditures and both are equally entitled to any cost offset resulting from child-related tax benefits.

iii. The Guidelines do not treat child costs incurred by each parent on an equal basis. This also violates the child's Right to be supported in each parent's household by both parents.

c. The Guidelines fail to determine an economically appropriate child support award. The Guideline percentages grossly exceed actual child costs and therefore have no rational relationship to child cost data. As a recent analysis by the U.S. Department of Agriculture points out (which is used to set child support) (Exhibit LL - page 23), estimated annual expenditures on a child in Illinois are as follows:

Age of Child	Total	Housing	Food	Trans-porta‚tion	Clothing	Health care	Child care and education	Miscel-laneous
Before-tax income: More than $64,500 (Average = $96,500)
0 - 2	$12,310	$4,760	$1,310	$1,570	$530	$640	$1,970	$1,530
3 - 5	12,600	4,740	1,490	1,540	520	610	2,150	1,550
6 - 8	12,510	4,700	1,810	1,660	570	700	1,480	1,590
9 - 11	12,400	4,540	2,120	1,730	620	750	1,020	1,620
12 - 14	13,200	4,730	2,220	1,870	1,030	760	790	1,800
15 - 17	13,630	4,330	2,350	2,270	930	790	1,390	1,570
Total	$229,950	$83,400	$33,900	$31,920	$12,600	$12,750	$26,400	$28,980

d. The Guidelines are economically unsound because they are not based on sound economic principles. The Guidelines result in presumptive awards so far above child rearing costs as to result in the granting of hidden alimony without the satisfaction of the requirements for alimony awards under Illinois law.

i.  As the Guidelines call for 20% of a parent's net income for one child, and as Brian's base annual salary is $X, and assuming approximately XX% for taxes, the Guidelines would call for Brian to pay Laurie $X annually ($X * XX% = $X; $X * 20% = $X) for "child support."

ii. The presumptive award results in one parent receiving a huge financial windfall (i.e., profit) in excess of child costs. This is an extraordinary benefit for the receiving parent and an extraordinary burden for the obligor.

iii. Though the presumption is that Laurie is equally responsible for supporting Samantha, any "support" provided by Brian would provide an obvious WINDFALL to Laurie of $X[55] ANNUALLY without requiring Laurie to spend ANYTHING to support Samantha.

1. "A comparison of awards based on actual child costs with the presumptive award shows that presumptive awards typically are double or more the economically appropriate award" (Exhibit OO - page 3).

iv. "The child has the same type of financial needs when in the care of either parent. There is no economic distinction between a child expenditure incurred by a custodial parent versus that incurred by a non-custodial parent - other than the amount incurred" (Exhibit OO - page 2).

e. Guidelines do not result in economically appropriate awards and therefore do not meet the intended purpose of the Guidelines. Federal regulations require that the intended purpose of each state's child support guidelines be the computation of the economically appropriate child support award. If the guidelines do not result in economically appropriate awards, then the guidelines are unconstitutional.

First, what do Federal regulations require of states when establishing child support guidelines? Separate from the requirement that the obligor's income be a factor in determining the award, there have been two basic economic requirements (many in terms of procedure) and one very specific numeric requirement related to equal protection. The Code of Federal Regulations (CFR) in 1988 required that the basic living needs of the obligor (non-custodial parentóor non-custodial parent) be taken into account and that the guidelines be economically appropriate. See 45 CFR 302.53 (1988) and 45 CFR 302.56.

The intent of Georgia's child support guidelines being found in federal regulations can be corroborated from additional sources. In "Evaluation of Child Support Guidelines," U.S. Department of Health and Human Services, March 1996, in Chapter 1, page 3, the U.S. Department of Health and Human Services specifically states that regarding state guidelines, "their applications result in the determination of appropriate child support awards" and reviews must be based on "economic data." This shows that guidelines must reflect child cost patterns shown in economic data in order to be appropriate. It follows that child support guidelines that follows no known child cost pattern cannot result in appropriate child support awards.1

[Footnote 1] Federal case law indicates that the federal intent for child support guidelines supercedes any state intent. The U.S. Court of Appealsóamong other federal courtsóhas published opinion that when states engage in program agreements with the federal government, federal regulations supercede not just state rules and regulations but also related state statutes. A key opinion is Jackson v. Rapps, U.S. Court of Appeals for the Eight Circuit, October 17, 1991. 947 F.2d 332. This case specifically addressed child support program regulations. It follows that the federal regulation defines the intent of state child support guidelines because of the supremacy clause. There is a long list of case law to substantiate this. Recently, from the issues of the last presidential election regarding federal regulation of overseas ballots, the case of Robert Harris, et all, v. Florida Elections Canvassing Commission, et al., United States District Court for the Northern District of Florida, Tallahassee Division, Case No. 4:00cv459, December 9, 2000 was important. This case stated that federal regulations supercede state law and that a state regulation implemented to cure a defect in complying with federal regulation supercedes the state law in which that state regulation may conflict.

Exhibit OO - page 1.

f. As economists have shown, there is no economic basis for using fixed percentages over a wide range neither of incomes nor for only considering the obligor's income and ignoring the custodial parent's income. Current obligor-only Guidelines violate almost every assumption of the underlying study.

i.  Illinois uses the "percent of obligor-only income" guideline model, which is based on the Wisconsin model/related studies.

ii. Child support guidelines which rise as a share of net income, as Illinois's Guidelines do, conflict with all economic studies on child costs (Exhibit MM - page 18 and Exhibit OO - page 24).

1. Illinois's Guidelines - as fixed percentages - conflict with the well-established economic fact that personal saving rates rise as net income rises, thereby reducing spending rates - including on children. Illinois's Guidelines are not on a rational economic basis. In order to conform to professionally-accepted economic facts, Illinois's child support guideline percentages should decline as net income rises (Exhibit OO - page 22).

2. "There is no rational basis for using flat percentages of gross income for a wide income range" (Exhibit MM - page 18).

iii. This "percent of obligor-only income" guideline model is based on, and intended ONLY for, welfare cases (Exhibit MM - page 14). The Guidelines assume that the mother has the child 100% of the time and has NO INCOME (Exhibit OO, page 13). In other words, the father is assumed to not incur any overhead expenses for the child such as a set-aside room, food, childcare, clothes, and utilities.

1. "The Federal Advisory Panel specifically recommended against states enacting percent-of-obligor-income" - the very type that Illinois enacted and uses (Exhibit OO - page 12, see also the recommendation of the Federal Advisory Panel on Child Support Guidelines, appointed by the U.S. House Ways & Means Committee in Development of Guidelines for Child Support Orders, U.S. Department of HHS, September 1987).

2. "These guidelines were never intended by those conducting the original studies to apply to anything other than low-income levels or for other income levels but to obtain minimal benefits for the child as guaranteed by the state" (Exhibit MM - page 14).

a. Quite obviously, this is not applicable in the present situation in that Laurie makes $X annually.

3. As current Guidelines were only intended for welfare situations, Illinois's current use for all situations is not for the purpose intended. For the underlying study, both parents averaged an annual HOUSEHOLD income of $12,000 in 1982 dollars ($21,426 in 2000 dollars). "The underlying study specifically states that at higher incomes, the applicable percentage should decline" (Exhibit OO - page 13).

a. "It is well documented that the original concept of Wisconsin's child support plan included...ceilings on income subject to the guidelines..." (Exhibit MM - page 14).

iv. The Guidelines are therefore arbitrary and are not rational since there is no economic foundation.

g. Related to the issue of whether the Guidelines are arbitrary, one of the key issues is whether the underlying facts of the presumption continue to exist. If they do not, then the presumption is unconstitutional.

i.  The underlying facts of the presumptions the Guidelines were based on no longer exist.

1. For Illinois's Guidelines, like Georgia's, the underlying facts are that the Guidelines will be applied in welfare cases only and also under various constraints in application (e.g., ceilings for awards). These facts no longer exist as the presumptions are applied to all cases - welfare and non-welfare - and without limiting the application of the percentages to recovery of welfare payments to the custodial parent (i.e., a ceiling for awards).

2. The non-existence of the underlying facts renders the presumptive Guidelines unconstitutional.

[181] A statute based upon a legislative declaration of facts is subject to constitutional attack on the ground that the facts no longer exist; in ruling upon such a challenge a court must, of course, be free to re-examine the factual declaration. See Block v. Hirsh, 256 U.S. 135, 154-155 (1921); Communist Party v. SACB, 367 U.S. 1, 110-114 (1961).

Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969).

h. As per Title 45 CFR 302.55, "the State must provide that there shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of the guidelines established under paragraph (a) of this section is the correct amount of child support to be awarded" (Exhibit PP).

i.  There are no baseline components to the Guidelines. It is not clear what can be rebutted, therefore they are arbitrary and also a due process violation. Current Guidelines, according to federal regulations, should be rebutted if it is shown that the presumptive award is unjust and inappropriate. If the case before the court does not fit with the economic assumptions underlying the Guideline or if the economic assumptions are flawed, then such a showing rebuts the presumption.

i. The Guidelines do not take into account the large tax-related child cost offsets the custodial parent receives. Not sharing the child-related tax benefit violates equal protection, in that it provides an extraordinary benefit for the custodial parent.

j. The Guidelines do not take into account the other parent's income. The presumptive child support award does not vary with family income - only obligor income. This is not rational and violates equal protection.

i.  "Without the custodial parent income as part of the award formula, the non-custodial parent obligation is not on a rational basis and generally results in an inappropriate child support award" (Exhibit OO - page 25).

k. The Guidelines ignore which parent actually incurs the child costs. Without examining which parent incurs what costs, an economically appropriate award cannot be determined.

i.  Child costs of only one parent (e.g., custodial) are covered by the Guidelines. Similar costs incurred by the other parent (e.g., non-custodial) do not receive similar consideration.

ii. Yet, parents are similarly situated when child costs are incurred by either parent. Each parent has an equal duty to provide financially for the children.

l. The Guidelines do not take into account that two households are being supported (i.e., each parent's household), that intact family standards of living cannot be maintained, and that the award is being spent in a single-parent household.

i.  Section 505 allows this Court to consider "the standard of living the child would have enjoyed had the marriage not been dissolved" as a basis for its child support award. "However, a standard of living comparison is not a comparison of child costs" (Exhibit OO - page 26).

ii. "An important caveat for this type of standard of living comparison is that the comparison is most appropriate when both parents' incomes are near the poverty level. Further away from the poverty level, the comparison is less reliable" (Exhibit OO - page 26).

m. The Guidelines presumptive awards include such large amounts of hidden alimony that a non-custodial parent is unable to provide for a child when in the non-custodial parent's care to the same extent as in the custodial parent's household.

i.  "A comparison of after-tax, after-child support standards of living for custodial and non-custodial parents shows that custodial parents typically have a higher presumptive standard of living than the non-custodial parent even when the custodial parent earns substantially less than the non-custodial parent" (Exhibit OO - page 3).

ii. "The guidelines have such a bias for including hidden alimony within the child support award that the presumptive award typically boosts the standard of living for the custodial parent even when the custodial parent has the higher income and should be shouldering a greater burden of child support. This bias toward inclusion of hidden alimony is quite large" (Exhibit OO - page 3).

iii. "When standard of living comparisons are adjusted for shared parenting arrangements such that the custodial parent has reduced child costs and the non-custodial parent has increased child costs, the non-custodial parent is forced to provide a dramatically lower standard of living for the child than the custodial parent. This occurs even when the non-custodial parent typically earns more than the custodial parent" (Exhibit OO - page 3).

iv. In most cases, the custodial parent's obligation of support ends up being largely or entirely paid by the non-custodial parent.

The Child Support Statutes Violate Brian's Right to Due Process

96. Even though the Guidelines are subject to modification at a hearing before a court, a sliding scale of obligations to support a child based on (or even not based on) the parents' income is NOT a legitimate state interest, regardless of whether the parents are married or divorced, custodial or non-custodial.

a. The Federal Constitution provides that no state may "deprive any person of life, liberty or property without due process of law." Protection from arbitrary state action is the very essence of substantive due process.

[38] The right to property is fundamental...

[41] The substance and effect of this act is to deprive claimants of their property. That is a penalty, a punishment in substance as much as though it were a fine.

United States v. Heinszen & Company, 206 U.S. 370, 51 L. Ed. 1098, 27 S. Ct. 742 (1907).

i.  An individual's labor is considered his personal property, and the wages from this labor are considered property. Therefore, Brian's labor and wages are considered and must be protected as a fundamental Right.

It has been well said that 'the property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.' Smith, Wealth Nat. bk. 1, c. 10. [Emphasis added].

No one would object to the clause forbidding a state to abridge the privileges and immunities of citizen of the United States; that is, to take away or impair their fundamental rights.

Butchers' Union Co. v. Crescent City Co., 111 U.S. 746 (1884).

b. Any statute that violates universally recognized fundamental Rights, which Brian asserts here, must be more than narrowly tailored to address a significant state interest.

i.  Whenever a state would attempt to infringe such fundamental Rights in favor of a state interest, that interest MUST be compelling (Shapiro v. Thompson, 394 U.S. 618, 627 , 634, 638 (1969); Kramer v. Union Free School District, 395 U.S. 621 (1969); Cipriano v. City of Houma, 395 U.S. 701 (1969); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Dunn v. Blumstein, 405 U.S. 330 (1972)) and the standard of review is one of STRICT SCRUTINY (Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)).

1. When certain fundamental liberties and interests are involved, government classifications which adversely affect them must be justified by a showing of a compelling interest necessitating the classification and by a showing that the distinctions are required to further the governmental purpose. The effect of applying the test is to deny to legislative judgments the deference usually accorded them and to dispense with the general presumption of constitutionality usually given state classifications. Regarding a different fundamental Right, the Right to vote, the U.S. Supreme Court has held:

[22] Statutes granting the franchise to residents on a selective basis always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives. Therefore, if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest. [Citation omitted.]

[23] And, for these reasons, the deference usually given to the judgment of legislators does not extend to decisions concerning which resident citizens may participate in the election of legislators and other public officials.

Kramer v. Union Free School District, 395 U.S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969).

2. The U.S. Supreme Court affirmed again in a Right-to-travel and welfare waiting period case that strict scrutiny must be applied when fundamental interests are at stake:

[47] But, of course, the traditional criteria do not apply in these cases. Since the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest. Under this standard, the waiting-period requirement clearly violates the Equal Protection Clause.

Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969).

ii. It is not enough for this Court to contend that the purpose of the Guidelines is to address a critical state interest (e.g., the support of children in divorce situations). The very essence of the heightened standard of review of strict scrutiny is to prevent individuals from being victimized by arbitrary action and having their fundamental interests infringed by the state. The Fourteenth Amendment, in essence, protects a state's citizens from forced obeisance to whimsical and capricious state actions. Substitute the words "toys" or "entertainment" or "home" with "able counsel" and the illegitimate "power" of the State is clear and chilling:

[30] Of course a State need not equalize economic conditions. A man of means may be able to afford the retention of an expensive, able counsel not within reach of a poor man's purse. Those are contingencies of life which are hardly within the power, let alone the duty, of a State to correct or cushion. [Emphasis added].

Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956).

iii. When government legislates or acts either on the basis of a "suspect" classification or with regard to a "fundamental" interest, the traditional standard of appellate review is abandoned, and the Court exercises a "strict scrutiny." Under this standard, the government must demonstrate a high degree of need, and usually little or no presumption favoring the classification is to be expected.

iv. This Court may NOT use intermediate scrutiny (e.g., narrowly tailored to address a specific or critical state interest) because it is not the heightened scrutiny required when fundamental interests are implicated.

v. Any attempt by this Court to use anything less than strict scrutiny would clearly indicate that this Court completely avoided or ignored the fact that such fundamental interests are involved.

c. The Child Support Statutes violate Brian's Right to due process in that they impose a sum certain "payment" ostensibly in support of children when the State has no ability to dictate a sum certain in married families. The State's actions under these statutes are therefore arbitrary and constitute a capricious exercise of governmental power.

97. The Child Support Statutes further violate Brian's Right to due process in that they impose an arbitrary burden on Brian to "support" his daughter which bears no rational relation to the actual cost of supporting his daughter.

a. The Child Support Statutes are irrational and unreasonable statutes, which impose irrational and unjustifiable restrictions on the pristine exercise of protected Rights secured by the Federal Constitution. Because they are irrational and unreasonable, their application violates the due process clause of the Federal and Illinois Constitutions.

b. For child support guidelines, the intended purpose is to establish an economically appropriate child support award, as described in 45 CFR 302.56 (Exhibit QQ) and is the State's intent for the Guidelines by the supremacy clause of the Federal Constitution and related case "law." Illinois's Guidelines do not award economically appropriate child support.

i.  As thoroughly discussed in paragraph 95 and related exhibits (e.g., Exhibit NN, Exhibit MM, Exhibit OO), the Guidelines are not rational-related to their intended purpose or economically sound/appropriate.

c. A rational relationship for the Guidelines must include a rational economic basis. Specifically, the Guidelines must not be arbitrary. Substantive due process guarantees are violated if the questioned statute or a part thereof is a patently arbitrary classification lacking any rational justification. U.S. v. Neal, 46 F. 3d 1405 (7th Cir, 1995), aff'd 516 U.S. 284 (1996). The U.S. Supreme Court has found that a presumption cannot be arbitrary; otherwise the presumption violates due process.

A statute creating a presumption that is arbitrary or that operates to deny a fair opportunity to repel it violates the due process clause of the Fourteenth Amendment. Bailey v. Alabama, 219 U.S. 219, 233, et seq.

Manley v. Georgia, 279 U.S. 1, 49 S.Ct. 215 (1929).

d. The Guideline reasons allowed for deviation do not give any guidance on how to apply the deviations. This is unconstitutionally vague and, therefore, the "enactment is void" (see paragraph 71.c).

i.  As stated in Elrod v. Burns, "[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms" (see paragraph 78).

ii. The U.S. Supreme Court provides general standards for evaluating whether a statute is unconstitutionally vague:

[24] It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. [Emphasis added].

Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).

And,

[27] "Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications" (footnotes omitted).

[28] The degree of vagueness that the Constitution tolerates -- as well as the relative importance of fair notice and fair enforcement -- depends in part on the nature of the enactment.

[29] Finally, perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply. [Footnote omitted]. [Emphasis added].

Village of Hoffman Estates et al. v. Flip-Side, 455 U.S. 489, 102 S. Ct. 1186, 71 L. Ed. 2d 362, 50 U.S.L.W. 4267 (1982).

iii. As if that was not enough proof to immediately dispose of the implicated statutes, the U.S. Supreme Court also held that a statute is void only if it is so vague where "no standard of conduct is specified at all." Coates v. City of Cincinnati, 402 U.S. 611, 91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971). [Emphasis added]. All implicated statutes throughout this pleading specify no standard of conduct.

iv. There exists no factual basis for the amount or degree of deviation from the Guidelines, other than the Court's ARBITRARY opinion of the "best interest of the child." Trial courts have tremendous latitude for variation from the Guidelines, with no review of how that latitude is being exercised and whether it is being used to achieve results that are fair or not.

The Child Support Statutes Violate Brian's Right to Privacy

98. While the source of the Right to privacy has been held to originate in varying constitutional provisions, it has been long recognized to apply to "family" concerns whether the family exists within the confines of marriage or not.

99. The statutes violate Brian's Right to privacy in that they require Brian to pay an amount in excess of that required to meet Samantha's basic needs, and therefore the statutes impermissibly interfere with parental decisions regarding financial expenditures on children.

a. The Guidelines are an unnecessary interference by the government. Any government mandate beyond basic child costs interferes with this Right to privacy.

b. The Child Support Statutes usurp from Brian his Right to self-determination in the raising and caring for his daughter, which intrusion serves no legitimate public interest, since he has never been accused or convicted of failing to reasonably and adequately care for his child.

c. Once the economic necessities of a child are covered, the government has no Right to say how much money should be spent for the care of children.

i.  By requiring a parent to pay an amount in excess of that required to meet the child's basic needs, the Guidelines impermissibly interfere with parental decisions regarding financial expenditures of children.

ii. As Laurie makes $X annually, Laurie is more than capable to properly support Samantha when in Laurie's care.

iii. Brian is willing and offers to pay 50% of all of Samantha's MAJOR educational and health care expenses (including insurance) that the parties JOINTLY agree to.

100. Moreover, the statutes violate Brian's Right to privacy in that they require a sum certain in support of Samantha when there is a less intrusive law existing in Illinois which provides for felony conviction and punishment for failure "to provide for the support and maintenance of his or her child or children under the age of 18 years..." (Statute 750 ILCS 16/15 [Failure to Support]). The Child Support Statutes interfere with a married or divorced parent's Right to raise one's children without "unnecessary" government interference.

101. Privacy is a fundamental Right subject to review under strict scrutiny.

a. In a number of U.S. Supreme Court cases, privacy has been identified as a core value of the Bill of Rights, as for example in the Fourth Amendment.

i.  In Griswold v. Connecticut, 381 U.S. 479 (1965), the U.S. Supreme Court found an independent Right of privacy, derived from the confluence of several provisions of the Bill of Rights or discovered in the "penumbras" of these provisions, which was expounded by the Court and actually used to strike down a governmental restraint (i.e., the Connecticut statute forbidding use of contraceptives violates the Right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights).

ii. It is self-evident that both government restraint as well as government compulsion - as in the challenged statutes here - are subject to constitutional scrutiny.

iii. The Right of privacy was denominated by the U.S. Supreme Court to be a liberty - and therefore subject to review under strict scrutiny - with a long history of high court sustenance and which found its source and its protection in the due process clause of the Fourteenth Amendment:

[83] The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454; id., at 460, 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

Roe v. Wade, 410 U.S. 113, 152 (1973).

iv. By designating the Right as a "fundamental" Right, the Court required a governmental restraint to be justified by a "compelling state interest."

b. Privacy as a concept appears to encompass at least two different but related aspects. First, it relates to the Right or the ability of individuals to determine how much and what information about themselves is to be revealed to others. Second, it relates to the idea of autonomy, the freedom of individuals to perform or not perform certain acts or subject themselves to certain experiences. This second aspect is the aspect which Brian propounds here.

[23] The cases sometimes characterized as protecting "privacy" have in fact involved at least two different kinds of interests. [Citation omitted.] One is the individual interest in avoiding disclosure of personal matters, [citations omitted] and another is the interest in independence in making certain kinds of important decisions. 26

[Footnote 26] Roe v. Wade, supra; Doe v. Bolton, 410 U.S. 179 ; Loving v. Virginia, 388 U.S. 1 ; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, 268 U.S. 510; Meyer v. Nebraska, 262 U.S. 390; Allgeyer v. Louisiana, 165 U.S. 578. In Paul v. Davis, 424 U.S. 693, 713, the Court characterized these decisions as dealing with "matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas, it has been held that there are limitations on the States' power to substantively regulate conduct." [Emphasis added].

Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977).

c. In a case involving private possession of pornography, the U.S. Supreme Court enunciated the autonomy aspect of privacy, which is manifest in the instant action:

[16] For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy.

[17] "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized man." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969).

d. If the conditions of our Federal Constitution sought to protect man's Right to his material things, beliefs, thoughts, and emotions (i.e., his Right to be "let alone" from the unwarranted intrusions of government), then that protection must extend ineluctably to the self-determination of how and in what manner man shall raise his own children, and in what manner man shall spend and utilize his property.

[51] It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.

Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).

The Child Support Statutes Are Unconstitutional Taking of Property

102. The Child Support Statutes are unconstitutional per se and as applied in that they constitute an illegal taking in violation of the Federal (Fifth Amendment) and Illinois (Article I, section 15) Constitutions because the statutes impose an award under the guidelines within it against Brian for the purpose of the State continuing to receive federal funds under Title 45 CFR 302.55 and related federal code. This constitutes a taking of private property for public use without just compensation.

a. Sum certain Guideline child support in non-intact families falls squarely within the realm of public interest and public use.

b. Guideline child support was enacted by the State legislature for the public weal; therefore, it serves a putatively "public" use, for which Brian's property is legislatively confiscated to satisfy.

c. Sum certain Guideline child support taken from Brian would result in direct pecuniary gain to the State. Additionally, the more the State takes from Brian, the more the State gains financially.

d. CFR 302.55 provides for Federal "incentive payments" to the State and its political subdivisions for "costs of carrying out the activities under the State plan . . ." to collect ordered sum certain amounts of child support. Thus, the State would garner funding directly as the result of imposing and collecting sum certain child support from Brian.

[43] In our opinion, a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the State or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the Fourteenth Amendment of the Constitution of the United States, and the affirmance of such judgment by the highest court of the State is a denial by that State of a right secured to the owner by that instrument.

Chicago, Burlington and Quincy Railroad Company v. Chicago, 166 U.S. 226, 41 L. Ed. 979, 17 S. Ct. 581 (1897).

i.  From 1997 through 2001 (i.e., 5 years), Illinois received $51,156,165 in incentive payments for its collection of child support.[56]

103. The statutes are also unconstitutional per se and as applied in that they constitute an illegal taking in violation of Article 1, section 15, of the Illinois Constitution, which forbids eminent domain's exercise for private use. The statutes impose an award under the Guidelines within it against Brian for the purpose of transference to Laurie or Samantha exclusively for her/their discretionary use. This constitutes a private taking for a private use.

a. The challenged statutes compel a private taking for private use (i.e., an individual, rather than the community) - without the payer's consent or just compensation to payer - in that the sum certain that would be extracted from Brian pursuant to the statutes would be transferred to Laurie or Samantha with a complete vacuum of any accountability that said monies are actually expended on behalf of Samantha when she is in her care, or are expended on appropriate educational expenses.

[27] In reaching its decision, Tuohy discussed the criteria to be used in determining a public use. These criteria were: (1) the use should affect a community as distinguished from an individual (2) the law should control the use to be made of the property (3) the title so taken should not be invested in a person or corporation as private property to be used and controlled as private property, and (4) the public should reap the benefit of public possession and use and no one should exercise control except the municipality. Tuohy, 394 Ill. at 485, 68 N.E.2d at 766; see Poole v. City of Kankakee, 406 Ill. 521, 94 N.E.2d 416, 419 (1950) (discussing Tuohy).

[29] As disparate as these purposes are, it should be noted that none of them involve the taking of property from one private party and the immediate transfer of it to another private party, whose interest in the property is solely to earn greater profits. It is clear that each of the listed takings served a public purpose, which is at the heart of Locke's principle that governments were instituted to protect every person's property against the depredations of his neighbor. W. Stoebuck, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553, 595 (1972).

[30] The American colonists understood Locke's theory of representative government to apply to eminent domain. Locke theorized that private property could only be taken by consent--of the individual in person or by his governmental representatives consenting for him. 47 Wash. L. Rev. at 567. According to the principle of representational government, there is no compulsory taking, but rather a voluntary relinquishment by delegated consent. 47 Wash. L. Rev. at 569. Locke's social-contract theory postulates as follows:

[31] When men were in a simple state of nature, before government was formed, they enjoyed private property and personal liberty unhindered. As natural society became more complex, its members impinged upon each other, so that it became necessary to form governments, the purpose of which was to preserve the private rights enjoyed in the state of nature. Government is a servant, necessary but evil, to which its subjects have surrendered only what they must, and that grudgingly. They recognize that government needs their money and other property to operate, but it would defeat the very purpose if government could extract a larger share from a subject than it needs to serve its purposes to him.

[34] Illinois cases have embodied the idea of a social contract by imposing a public-purpose limitation on the exercise of the eminent-domain power. Under the social contract in eminent-domain cases, the private landowner relinquishes her property to the government, and the public is likened to a third-party beneficiary, as it is the public who reaps the benefit of the bargain. Takings of private property are justified only where the third-party beneficiary is the public.

[62] Implicit in the cases cited by both parties is the principle that though land can be taken for a proper public use, taking private property for private use under the law of eminent domain is in direct contravention of article 1, section 15, of the Illinois Constitution. The legislature's statement that SWIDA's purpose is, in part, to promote the public health, safety, morals, happiness, and general welfare of this State is entitled to respect. However this is not an urban-renewal case, nor is the taking a justifiable "public use." The expansion of Gateway parking is a private use, rather than a public use.

[63] We have found no Illinois precedent to support the proposition that where a private enterprise admits it can use its own resources to develop its property (in this case by building a parking garage), a condemning authority is justified in using its power of eminent domain to take private property from an unwilling seller and to transfer it to another private enterprise to increase the profits of that enterprise. See Reel v. City of Freeport, 61 Ill. App. 2d 448, 209 N.E.2d 675 (1965).

[82] If a government agency can decide property ownership solely upon its view of who would put that property to more productive or attractive use, the inalienable right to own and enjoy property to the exclusion of others will pass to a privileged few who constitute society's elite.

[84] It is, after all, akin to the tyranny our forefathers fled. Our heritage stems in part from the aversion to the King's use of property to convey favor upon a privileged nobility. It betrays that heritage to rekindle the practice. [Emphasis added].

Southwestern Illinois Development Authority v. National City Environmental, L.L.C., 304 Ill.App.3d 542, 710 N.E.2d 896, 238 Ill.Dec. 99 (1999).

And,

[38] No court, he said, would hesitate to adjudge void any statute declaring that "the homestead now owned by A should no longer be his, but should henceforth be the property of B. [Emphasis added].

Chicago, Burlington and Quincy Railroad Company v. Chicago, 166 U.S. 226, 41 L. Ed. 979, 17 S. Ct. 581 (1897).

b. Furthermore, since Brian will no longer be married to Laurie, the transfer of assets to a stranger-at-law/non-related person constitutes the government forcing Brian to assuage and offset the obligations of Laurie, since the Legislature has established and the courts have affirmed as well-settled law that each parent owes a duty of support for their children.

c. The respect for private property and the restraint on arbitrary government confiscation of it come to this Court with a momentum initiated at the founding of our nation. James Madison wrote, in Property: "What a man has honestly acquired is absolutely his own, which he may freely give, but cannot be taken from him without his consent." If Brian fails to reasonably support Samantha, he should be criminally prosecuted. Otherwise, the State has no claim upon his income or assets with respect to his child.

The Child Support Statutes Constitute a Threat of Imprisonment for Debt

104. The Child Support Statutes are unconstitutional per se and as applied in that they constitute an ongoing threat by the State of imprisonment for debt in violation of the Illinois Constitution (Article I, section 14). The statutes denominate the support duty as an obligation. Inherent in that obligation is that money is due and payable, which is the definition of debt. If Brian opposes the sum certain ordered for child support, believing that his child would be adequately cared for for less, he subjects himself to the certainty of imprisonment. While the courts denominate this action as "contempt of court," the outcome is indistinguishable from imprisonment for debt.

V. MAINTENANCE

Neither party should be required to provide maintenance

Brian Has No Duty to Pay Laurie Maintenance

105. As Laurie earns a high salary (see paragraph 6.b), Laurie is not in need of financial support. Laurie is more than able to support more than just her basic needs.

106. As ordered by the Previous Court, Brian is currently paying Laurie $336 monthly as a contribution to the household mortgage payment (Exhibit DDDD - 1.d.).

a. The monthly household mortgage payment was reduced from $X to $X on April 1, 2003, which resulted from a reduction in interest expenses of $X (Exhibit TTTT). With the mortgage payment reduction, Brian currently pays $X more for "rent" than Laurie.[57]

b. For the $X more that Brian pays monthly in rent over Laurie, Brian has a SIGNIFICANTLY reduced standard of living, while Laurie has made minimal to no sacrifices in her standard of living.

i.  Brian asserts that currently, and for the past year, he lives in a VERY small, two-bedroom/one bathroom apartment on the fourth floor of a building without an elevator or storage space in the relatively less desirable Lakeview area on a loud, very busy street. Brian's apartment has no laundry, no garage parking,[58] no backyard, old appliances, and no parks close by for Samantha to play.

ii. Conversely, Laurie continues to reside in the parties' VERY large, beautiful, four-bedroom/two bathroom home (with dining room, "great room," relatively new kitchen, backyard, laundry machine, garage, and two parks close by) on the first floor in a VERY desirable Lincoln Park area on a quiet street with many children who are Samantha's friends.

iii. Also, as discussed in paragraph 147, this home that Laurie has solely lived in for the past year, and continues to reside in was SOLELY purchased by Brian EXCLUSIVELY with his non-marital funds, and ALL home improvements were purchased with Brian's non-marital funds, and all mortgage payments were made from Brian's salary.

107. In December, 2001, Laurie made the sole decision to contribute the maximum $5,000 to a flexible spending health care plan her company offered, without Brian's knowledge or approval. As ordered by the Previous Court, Brian paid $2,500 to Laurie purportedly for her flexible spending health care plan her company offered (Exhibit DDDD - 1.b.), from which Brian received NO value.

a. Brian contended and stated to the Previous Court that he would not get any benefit from this contribution (i.e., he would not get his money back because he would not have $2,500 of medical expenses to apply), while Laurie would get the full value of the $5,000 as she planned to have at least $5,000 in medical expenses (which is obviously the reason she made the sole decision to enroll in the plan).

i.  Therefore, this was a blatant forced transfer of $2,500 from Brian to Laurie (i.e., hidden alimony).

ii. Brian filed only two claims for reimbursement on November 14, 2002 for a total of $74.09 (Exhibit JJJ). Brian has not received any reimbursement for these claims. Brian questioned Laurie about reimbursements she has received, and Laurie responded that she has received checks already that have fully depleted the reimbursement account. Brian has not received any reimbursement from Laurie for the $2,500 he has contributed to Laurie's medical expenses, and Laurie has refused to give Brian any reimbursement.

iii. Therefore, Laurie has received not only her full value of her $2,500 contribution "risk free," but also the full value of Brian's $2,500 contribution which Brian has paid to Laurie.

108. Brian was ordered by the Previous Court (Exhibit VVV and Exhibit DDDD) to pay for half of Laurie's 401 (k) loan which totaled $2,826 (Exhibit UUUU) that was being used directly for her dissipation activities (see section VI, DISSIPATION). Therefore, this was nothing more than a blatant transfer of funds from Brian to Laurie for her personal use.

109. As is indicated in paragraph 5.b, Laurie's education, in addition to her skills developed during her consistent, twelve-plus years in the workforce, makes her readily employable with a continued enhanced earnings capacity.

110. Laurie is not economically injured as a result of the marriage.

a. Laurie did not sacrifice her earnings capacity as a result of the marriage. Laurie continued to pursue her best career opportunities throughout the marriage, and did not make any concessions in her career for the best interest of the family.

b. Laurie has not contributed substantially to the marriage as a homemaker. Brian and Laurie were equally involved as homemakers.

111. Laurie's high standard of living lifestyle is self-imposed, is almost entirely based on Brian's income and non-marital assets, and is based on fraud.

a. Laurie minimized her contribution of her salary and pre-marital assets to any marital investments or expenses during the first twenty-six months of marriage (see paragraph 145).

b. Laurie is a spendthrift (Exhibit CCCC, see also paragraphs 140.a, 140.b, and 140.c), dishonest, and such financial disagreements were a SIGNIFICANT portion of the marital stress and ultimate breakdown of the marriage.

i.  In a 24-month period, Laurie spent AT LEAST $27,887.71 in total on clothes for herself (i.e., Laurie spent at least $14,704.74 on clothing in 2001, and spent at least $12,864.41 on clothing in 2002 (Exhibit CCCC) when she claimed to be in desperate need (i.e., "EMERGENCY") of temporary maintenance and required a "significant contribution" (Exhibit KKK)).

1. For comparison purposes, Laurie spent 350% more on clothing in the last 2 years than Brian spent during the entire term of the marriage. Brian spent $7,983.67 in total on clothing in 4.5 years (Exhibit CCCC).

ii. Laurie certified, under penalties of perjury, that she was in "[e]mergency" need of financial support, and that she was "without sufficient funds to pay her immediate household expenses." Yet, Laurie's Disclosure Statement Pursuant to Rule 13.3.1 (Exhibit KKK), was obviously perjured, which Laurie's attorney knew, or should have known. For example:

1. Laurie listed $X per month in medical/hospitalization insurance (item 3.d.3), when she already accounted for her health/hospitalization premiums (under Required Monthly Deductions) of $X.

2. Laurie listed $X per month in newspapers, magazines, and books (item 4.b.), when Laurie does not purchase any newspapers, and rarely purchases magazines or books.

3. At the time of Laurie's disclosure, Samantha did not go to school. Yet, Laurie listed $X per month in education tuition expense (item 5.c.1).

4. Laurie listed $X per month as entertainment for Samantha (item 5.l), in addition to $X per month for other activities (item 5.k). However, Laurie has never spent $X per month in entertainment for Samantha, much less $X.

5. Laurie did not provide ANY information in the Statement of Assets section regarding her Vanguard IRA account (in which she had approximately $X at the time) or her Accenture 401 (k) plan (in which she had approximately $X at the time).

iii. Laurie purchased an expensive BMW car (see paragraph 88.h.i.2) one month prior to her claiming that she was in desperate need of financial support (see paragraph 111.c).

iv. Laurie spent over $7,600 in cosmetic dental work (see paragraph 140.a), with approximately 50% of it being charged 1.5 months prior to her claiming that she was in desperate need of financial support (see paragraph 111.c).

v. Laurie spent approximately $3,500 in therapy for "out-of-plan" therapists, when the parties' "in-plan" therapists were only $15 per session (see paragraph 140.b).

vi. Laurie has an incentive to continue to be a spendthrift and waste assets if she is awarded maintenance, which is beyond Brian's control. Therefore, an award of maintenance to Laurie would be a punishment to Brian and a reward to Laurie for her dissipation, wasting of assets, and fraudulent actions (see section VI, DISSIPATION).

vii. Laurie is in full and sole control of her discretionary expenses, and with an approximate net monthly income of $X, is very capable to afford reasonable expenses.

c. On March 22, 2002, Laurie filed an Emergency Petition for Temporary Support (Exhibit KKK, see also paragraph 88), which, on its face was fraudulent.

i.  As Laurie's Emergency Petition for Temporary Support clearly indicates (Exhibit KKK - 9.), Laurie claimed through her Financial Disclosure Statement that she requires a "significant contribution" for temporary support, this "need" solely based on her claim that Brian has the ability to pay because he has a larger income.

ii. Though Laurie claimed that she had only $1,000 to pay all household expenses (Exhibit M - 12.), in the following nine months after Laurie filed her EMERGENCY petition claiming she was in desperate need, she spent $9,547 on clothes ALONE (Exhibit CCCC).

iii. Laurie's claim, which her attorney knew, or should have known, that she had only $1,000 to pay all household expenses (Exhibit M - 12.) was on its face perjured as Laurie did not intentionally report her Vanguard IRA or Accenture 401 (k) assets (see paragraph 111.b.ii.5).

[26] With reference to the master's findings of fraud in this case, that concept has been deemed to comprise in its general sense anything calculated to deceive, including all acts, omissions and concealments involving a breach of legal or equitable duty, trust or confidence resulting in damage to another. (Diversey v. Johnson, 93 Ill. 547, 560; Connolly v. Gishwiller, (7th cir.) 162 F.2d 428, 433, cert. den. U.S. 68 S.C. 166; Gibbons v. Brandt, (7th cir.) 170 F.2d 385.) There is no general rule for determining what facts will constitute fraud; whether or not it is found depends upon the special facts of each particular case. While fraud is never presumed, a conspiracy, as alleged herein, is rarely susceptible of direct proof, but must, very nearly always from the nature of things, be established by circumstantial evidence and legitimate inferences arising therefrom. (Commercial Merchants Bank and Trust Co. v. Kloth, 360 Ill. 294, 306.) These inferences depend largely upon the common-sense knowledge of the motives and intentions of men in like circumstances. (Philadelphia Storage Battery Co. v. Kelley-How-Thomson Co. (8th. cir.) 64 F.2d 834, 837; Garlick v. Imgruet, 340 Ill. 136, 143.) Thus, fraud may be inferred from the nature of the acts complained of, the individual and collective interest of the alleged conspirators, the situation, the intimacy and relation of the parties at the time of the commission of the acts, and generally all the circumstances preceding and attending the culmination of the claimed conspiracy. (People v. Small, 319 Ill. 437.) In this connection the court stated in People v. Small, 319 Ill. 437, at p. 449: "It is seldom that any one act, taken by itself, will establish a conspiracy, but when taken in connection with other acts it may appear clearly that the series of wrongful acts result from concerted and associated action. Considered separately the acts of the conspiracy are rarely of an unequivocally guilty character, and they can be properly estimated only when connected with all the surrounding circumstances." [Emphasis added].

Majewski v. Gallina, 160 N.E.2d 783, 17 Ill.2d 92 (1959).

d. "Family" Court is a court of equity governed by the rules of limited jurisdiction. Whereas the maintenance awarded to Laurie by this Court (see paragraphs 106, 107, and 108) is a cause in equity, the "clean hands doctrine" applies, and Laurie may not take advantage of her own wrong. In courts of limited jurisdiction, subject-matter jurisdiction is determined only by an inspection of the record of the case. The inspection of the record of the case must show that all of the elements of subject-matter jurisdiction existed, and existed at all times. Brian contends that, as Laurie and her attorney willfully committed fraud, the Previous Court did not have subject-matter jurisdiction.

[22] ï 2, 3 This doctrine holds that he who comes into equity must come with clean hands or, as otherwise stated, one seeking equitable relief cannot take advantage of his own wrong. (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App.3d 480, 408 N.E.2d 1069; Metcalf v. Altenritter (1977), 53 Ill. App.3d 904, 369 N.E.2d 498.) Equitable relief may be denied if the applicant is guilty of misconduct, fraud or bad faith toward the party against whom relief is sought, provided that it is in connection with the transaction under consideration. (Metcalf v. Altenritter (1977), 53 Ill. App.3d 904, 369 N.E.2d 498.) [Emphasis added].

Fair Auto. Repair v. Car-x Serv. Systems, 128 Ill. App.3d 763, 471 N.E.2d 554 (1984).

And,

[27] It is axiomatic that fraud vitiates everything. Lack of jurisdiction over the subject matter can be raised at any time, even after judgment, and it is not waived by failure to object in proper time. [Emphasis added].

In Re Petition To Annex Certain Territory, 185 N.E.2d 696, 37 Ill. App.2d 393 (1962).

i.  Either subject-matter jurisdiction exists, or it does not. A court is without subject-matter jurisdiction and all of its orders/judgments are void when fraud is committed in procurement of jurisdiction.

[42] In defining fraud, this court, in People ex rel. Chicago Bar Association v. Gilmore, 345 Ill.2d 28, 46, stated:

[43] "Fraud includes anything calculated to deceive, whether it be a single act or combination of circumstances, whether the suppression of truth or the suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or by silence, by word of mouth or by look or gesture."

[45] In In re Adoption of Hoffman, 61 Ill.2d 569, 578, this court, after quoting the definition from Gilmore, added "'the concept of fraud "implies a wrongful intent an act calculated to deceive."' (Exline v. Weldon (1974), 57 Ill.2d 105, 110.) We have also observed that 'A misrepresentation in order to constitute a fraud must consist of a statement of material fact, false and known to be so by the party making it, made to induce the other party to act, and, in acting, the other party must rely on the truth of the statement.' Roth v. Roth (1970), 45 Ill.2d 19, 23." [Emphasis added].

Regenold v. Baby Fold, Inc., 369 N.E.2d 858, 68 Ill.2d 419 (1977).

And,

[70] Where such fraud is proved, it vitiates all transactions touched by it. Gilmore, 345 Ill. at 46.

[71] Here, the record indicates that both the trial court and J.L. were victims of fraud throughout the proceedings. The fraudulent conduct included fraud perpetrated by the A.'s attorney.

[77] "A void judgment or order is one that is entered by a court lacking jurisdiction over the parties or the subject matter, or lacking the inherent power to enter the particular order or judgment, or where the order was procured by fraud." Miller v. Balfour, 303 Ill. App. 3d 209, 215, 707 N.E.2d 759 (1999). [Emphasis added].

J.L. v. F & P.A., 315 Ill.App.3d 137, 733 N.E.2d 846, 248 Ill.Dec. 171 (2000).

112. Laurie has funneled significant amounts of money to her New Jersey family without Brian's knowledge or approval (see paragraph 143 generally and paragraph 143.d specifically).

113. Brian has no duty to provide financial support to Laurie.

a. As is indicated in paragraphs 4.a.i and 4.a.ii, two of Brian's three grounds for divorce were Laurie's fraudulent actions regarding finances.

i.  As financial disagreements were such a SIGNIFICANT portion of the marital stress and ultimate breakdown of the marriage, continued financial entwinement between the parties will sustain significant stress between the parties and not allow for a "clean break."

b. In assenting to be married to Laurie, at no time did Brian formally agree or imply that he agreed to provide ANY type of support to Laurie after the parties were no longer married, ESPECIALLY financial.

114. Laurie is not at any risk of being a financial burden on the State as a result of divorce.

115. Pursuant to Laurie's requests, Brian tendered copies of his financial records, which include transactions made after February 19, 2002. Brian's financial records after February 19, 2002 include documents such as financial statements and registers, a 13.3 Affidavit, financial projections, and calculations (hereinafter "Records").

116. Upon information and belief, Laurie intends to offer these Records into evidence, and to offer testimony and evidence analyzing these Records, and to question Brian about these Records (hereinafter "Analysis of Records").

117. However, these Records, or any Analysis of Records, are completely irrelevant to any Court matter due to the clear and explicit wording of the Agreed Interim Order.

118. Brian and Laurie formally agreed in the Agreed Interim Order (Exhibit A - E.1.), which was SPECIFICALLY prompted by Laurie's prior spending habits and fraud, that the parties would retain their respective future paychecks, which would be deemed "equivalent in value," "without further analysis" (see paragraph 88). Brian alleges that Laurie and her attorneys committed a tort when she intentionally breached her contract with Brian (e.g., that the parties would keep their respective future paychecks, that no further financial analysis would occur), and this violation of her duty was the proximate cause of Brian's injury (i.e., financial and emotional). Laurie failed to perform and is therefore liable for breach of contract and fraud.

[14] As disclosed by decisions of this court, the elements of a cause of action for fraudulent misrepresentation (sometimes referred to as "fraud and deceit" or "deceit") are: (1) false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. (Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, 333; Roth v. Roth (1970), 45 Ill.2d 19, 23; Roda v. Berko (1948), 401 Ill. 335, 339-40; Bennett v. Hodge (1940), 374 Ill. 326, 332.) Furthermore, the reliance by the other party must be justified, i.e., he must have had a right to rely. Schmidt v. Landfield (1960), 20 Ill.2d 89, 94; Prosser, Torts sec. 105, at 686 (4th ed. 1971); Restatement (Second) of Torts sec. 537 (1977).

Soules v. General Motors Corp., 79 Ill.2d 282, 402 N.E.2d 599 (1980).

a. As previously discussed throughout paragraph 88, ONE DAY after the Agreed Interim Order was entered, Laurie filed an EMERGENCY Petition for Temporary Support (Exhibit KKK), which was COMPLETELY against the spirit and clear wording of the agreement/Agreed Interim Order.

b. As previously discussed in paragraph 88.d, Laurie agreed to all of Brian's considerations in exchange for her own, knowing these future conduct promises to be false, with the malicious intent to get Brian to voluntarily and immediately move out of the marital residence in good faith (as well as to cheat and defraud him of other property later - see paragraph 60.f.i). Considering the attorneys were present during the negotiations (see footnote 47), Brian, relying on Laurie's purported truth of her agreement and keeping "true" to his word, immediately looked for and found an apartment, and moved out 6 days later (Exhibit U - page 31 [February 25, 2002]).

c. As previously discussed in footnote 46, this agreement was a response to the parties' constant bickering about finances - Laurie being a spendthrift and stealing money from the parties, and Brian being a frugal saver. Laurie cannot now use the funds allocated to Brian as an advancement of the marital estate to justify his requirement and/or ability to pay her support. Not only does this constitute a "double bite," but the Agreed Interim Order <