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- Date: Wed, 27 Jan 1993 11:45:36 -0500
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- From: David Garrod <garrod@ECN.PURDUE.EDU>
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- Found on the net:
-
- Article: 39432 of misc.legal
- Newsgroups: misc.legal
- From: mwhhlaw!tim (Timothy E. Hollingsworth)
- Subject: Re: Sexual Discrimination
- Message-ID: <1993Jan27.131413.4225@mwhhlaw.uucp>
- Sender: tim@mwhhlaw.uucp
- Reply-To: uunet!mwhhlaw!tim
- Organization: Martin Wade Hartley & Hollingsworth
- References: <1993Jan26.232704.27278@cbnewsk.cb.att.com>
- Distribution: usa
- Date: Wed, 27 Jan 1993 13:14:13 GMT
- Lines: 58
-
- There has been a suggestion that a class action be brought to challenge the
- administration of Indiana's child custody laws under the theory that such laws
- have been administered in such a manner as to discriminate on the basis of sex;
- to wit, males are denied custody solely because of their gender. Several
- writers have asked how to go about bring such a suit. Without commenting upon
- the wisdom of such a proceedings, I thought it might be useful to reflect upon
- that particular question.
-
- It has been recognized that Indiana's state law on the issue is facially
- neutral. Indiana Code 31-1-11.5-21 expressly states that in consideration of
- custody "there shall be no presumption favoring either parent." Statistics
- have been cited that tend to illustrate an over representation of custody
- awards to females.
-
- Before any legal action is initiated, good lawyers engage in a preliminary
- analysis something like the following lines:
-
- Who will be the plaintiffs? - It would probably be best to limit the class of
- plaintiffs to males who have been denied custody and who have actively sought
- custody in contested proceedings where the evidence presented was at least as
- favorable to the male as to the female. Where can a list of such males be
- obtained? In a class action, notice to all members of the class will be
- required. How will that notice be given? Alternatively, would it be better to
- pick a particular case and file a motion to correct errors to raise the
- constitutional issue? What if the motion is granted?
-
- Who will be the defendants? - This would be, in part, dependent upon the theory
- or theories of recovery. However, it could be the 92 plus Indiana courts with
- domestic law jurisdiction. I would be concerned about concepts of judicial
- immunity. Alternatively, how about the Indiana Supreme Court in its role as
- supervisors of the lower courts? How would service of process be handled? Is
- this an attack upon the constitutionality of a statute so as to invoke the
- special service requirements of such actions?
-
- What would be the theory? - Is this a 14th amendment case or a 1983 case or
- what? I personally have difficulty in placing this matter in the proper
- context. I do note, in passing, that the U.S. Supreme Court has made facially
- neutral-disparate impact cases difficult for plaintiffs. Mere statistical
- impact is suspect evidence, at best. Moreover, the recent Abortion Clinic
- holding seems to me to raise a high proof threshold for invidious sexual
- discrimination cases.
-
- In what court would the case be filed? - If cast as a 14th amendment case, a
- federal court probably have jurisdiction. However, careful study is always
- required to determine federal jurisdiction. In addition, and assuming no venue
- problems, some consideration would have to be given as to the best court in
- which to file.
-
- What evidence will need to be presented? One study will not be sufficient.
- What other evidence would need to be produced to be successful in a trial?
-
- Bottom line - If those discussing the possibility of a such an action are
- serious, then the first step would be to generate a large war chest. I suspect
- that the legal budget would be in the mid-six figures. Next, find a good
- lawyer who is willing to sue either about every judge in Indiana or his Supreme
- Court and who is will to devote a large block of time to the case.
- __
- Tim Hollingsworth
-