A question that always came to my mind, during Piper’s court case, was, “Why is this case being tried in Colorado? Why not Virginia?” Virginia would’ve been a much more favorable jurisdiction for my purposes.
The reason is that, according to the Colorado Children’s Code, “all proceedings brought under this article shall be commenced in the county in which the child resides or is present.”
But why? The mother of the child can then take the kid to whatever jurisdiction she thinks will be most favorable to her, and deny the father his rights.
To me, that’s like if the law said that if a man were to commit a crime, he should be tried in whatever jurisdiction he fled to. That would give the defendant an unfair advantage over the victim. For that reason, that’s not the way the law works.
Per the Vicinage Clause, he’s to be tried by an impartial jury “of the State and district wherein the crime shall have been committed”. The Extradition Clause says, “A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.” This gives the advantage to the victim.
Shouldn’t Child Protective Services laws work the same way? The case should be tried in the jurisdiction where the child was conceived — in this case, Virginia. That was where a lot of the acts that gave rise to the case — e.g., the statements I made to August, that she later used against me — happened.
August was also the one to leave the marriage and go to Colorado, where she would have had an advantage in being the in-state litigant; why should the spouse who breaks up the family, by leaving and taking the kid with her to another state, have the advantage? I guess it’s just a case of possession being 9/10ths of the law, but we don’t apply that rule when there’s an allegation of theft. We extradite, so the case can be tried in the jurisdiction where the theft happened, and where the victim lives.
The Colorado Children’s Code says, with regard to paternity, “A person who has sexual intercourse in this state thereby submits to the jurisdiction of the courts of this state as to an action brought under this article with respect to a child who may have been conceived by that act of intercourse. . . . . The action may be brought in the county in which the child or the alleged father resides or is found”. So obviously there’s some precedent for basing venue on where a child was conceived, and/or where the father lives.
This same kind of issue arises in restraining order cases. Colorado law says, “Venue for filing a motion or complaint pursuant to this section is proper in any county where the acts that are the subject of the motion or complaint occur, in any county where one of the parties resides, or in any county where one of the parties is employed.”
Why should a woman be allowed to leave her husband and then get a restraining order against him in another state, where maybe the laws will be a lot less favorable to him? Shouldn’t she have to get the restraining order in the jurisdiction where whatever she’s accusing him of having done to her happened? It seems like a man should have the right to avoid being under a particular jurisdiction by not having anything to do with that jurisdiction; but these laws can cause him to be subject to some other jurisdiction that he never went to nor did anything involving.
E.g., in my case, August claimed that I raped her, sent a letter to her parents, etc. All that (allegedly) happened in Virginia. So why not file the case in Virginia’s courts? Or if it’s a federal matter, file it in federal court, so it can be taken care of under federal law (which, as a U.S. citizen, I would have some say in making, unlike Colorado law).
I would almost say, maybe we should just go ahead and federalize Child Protective Services proceedings. The only reason not to, is if it would interfere with local experimentation with child protection policies and systems.
But the feds already interfere in a lot of matters involving child protection. E.g., Terry Hoff was charged under federal law with producing child porn that never crossed state lines. Although the child porn never left Wyoming, that U.S. state is not allowed to experiment with its own policies concerning child porn. (It’s the same way with pot, under Gonzales v. Raich; California was not allowed to experiment with its own laws concerning medical cannabis).
I guess the idea is, the feds for whatever reason don’t think they can properly deal with the “problem” of child porn unless they federalize the issue. Well, it’s the same way with these interstate child protection cases. The U.S. Constitution federalizes certain matters, like bankruptcies, for a reason — it’s so that when there’s a lot of stuff going on that transcends state boundaries, people don’t try to take unfair advantage by going to a different jurisdiction.
Maybe, when it’s impossible to deal with an issue without federalizing it, we should take that as a sign that perhaps we’re taking the entirely wrong approach to the issue. E.g., we could just have a patriarchal system that gives fathers absolute rights over their wives and daughters, and then a lot of these child protection issues would be moot. All that would need to be adjudicated would be ownership, which would be simple enough. The Full Faith and Credit Clause would take care of that, by requiring marriage and birth certificates to be recognized by other states.
Federalization is partly how we got in this mess to begin with. If it weren’t for federal laws like the Parental Kidnapping Prevention Act, I probably could have just grabbed Piper and taken her back to Virginia, since it was really August who kidnapped her. Also, federal laws like the Violence Against Women Act order states to give full faith and credit to restraining orders of other states; were it not for that, you could just hang out in a state that has laws making it hard to issue restraining orders, and ignore a restraining order issued by a state you didn’t plan to go to. Then of course there’s 18 U.S. Code § 922, making it illegal to possess a gun if any state has a restraining order in effect against you; that’s a problem from a Second Amendment standpoint, given that these are civil rather than criminal proceedings.