Franklin County Prosecuting Attorney's Office
(This is the only case across the States
which mentions the UPREPA.)
Uniform Parental Rights Enforcement and Protection Act
(PROPOSED UNIFORM STATE STATUTORY LANGUAGE)
Federal Oversight and Implementation of UPREPA Among the Several States
Reported in F.Supp.2d, 2005 WL 1398489
Only the Westlaw citation is currently available.
FRANKLIN COUNTY PROSECUTING ATTORNEY'S OFFICE, Defendant.
Kamlan Tchankpa, pro se.
Adjoa Tchankpa, pro se.
Scott Oliver Sheets, Franklin County Prosecuting Attorney's Office, Columbus, OH, for Defendant.
*1 The Court considers this matter pursuant to a motion to dismiss filed by Defendant Franklin County (“Defendant”).FN1 (Doc. # 6). Pro se Plaintiff Kassi Avion filed a response in opposition (Doc. # 8) on behalf of himself and on behalf of Plaintiffs Adjoa Tchankpa and Kamlan Tchankpa (“Plaintiffs”), to which Defendant replied (Doc. # 10). Plaintiff then filed a reply of their own. (Doc. # 11). The Court finds the motion to be well-taken and therefore GRANTS the same. (Doc. # 6).
FN1. Plaintiffs named the Franklin County Prosecutor's Office as a Defendant in their complaint but the summons indicated that Franklin County is the Defendant.
<>For purposes of deciding the instant motion, and keeping Plaintiffs' pro se Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (in ruling on motion to dismiss, court must assume as true all well-pleaded facts in complaint). status in mind, the Court accepts the following facts from the Plaintiffs' complaint as true.
Plaintiff Kassi Avion (“Avion”) is the father of Plaintiffs Adjoa Tchankpa (“Adjoa”) and Kamlan Tchankpa (“Kamlan”). (Doc. # 1 at 1). Avion was involved in a custody dispute with the children's mother, Marcelline Gatorano, in the Juvenile Division of the Franklin County, Ohio Court of Common Pleas. Id. Because Avilon alleged that Gatorano abused and/or neglected the children, the Court appointed Attorney Clarence Mingo (“Mingo”) to investigate the allegations and act as the children's guardian ad litem. Id. It was during this period that Kamlan began performing poorly at school. Id. at 1-2.
Mingo completed his investigation and determined that Gatorano had not abused or neglected the children. Id. at 2. He recommended the implementation of a “5/9 shared parenting plan.” Id. The judge apparently agreed with Mingo's findings and issued an appropriate order. Subsequently, Avion filed a motion with the juvenile court to increase the amount of time he could spend with Kamlan to help him with his schoolwork.FN2 Id. The court conducted a hearing on the motion, and at that hearing Mingo allegedly told Avion that he did not have any right to see his children even though he was the children's father. Id. After the hearing, the court denied Avion's motion and the instant suit followed.
FN2. Ostensibly, Avion filed a motion for a temporary restraining order to prevent the custody order from going into effect.
Avion alleges that Mingo's comments to the effect that Avion did not have a right to see his children and Mingo's recommendations that the children's mother have more time with the children violated his right to equal protection. Id. at 3, 4, 5. Additionally, Avion claims that Mingo's actions violated the: (1) Elementary and Secondary School Act of 1965, 20 U.S.C. § § 241(a) et seq; (2) No Child Left Behind Act of 2001, 20 U.S.C. § 7231; (3) Uniform Child Custody Jurisdiction and Enforcement Act,FN3 Ohio Revised Code § 3127.01.01 et seq.; and (4) Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5101. Id. at 2-5. Plaintiffs' Complaint fails to name Mingo as a Defendant; rather, Plaintiffs allege that Defendant Franklin County is liable for his actions because Mingo is Defendant's agent. (Doc. # 8 at 2).
FN3. Plaintiffs' Complaint references the “Uniform Parental Rights Enforcement and Protection Act.” (Doc. # 1 at ¶ 3). The Court could not find that statute, and presumes that Plaintiffs intended to cite to the Uniform Child Custody Jurisdiction and Enforcement Act.
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Defendant moves to dismiss under Fed.R.Civ.P. 12(b)(6). Dismissal is warranted under that rule “ ‘only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” ’ Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir.1996) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)), cert. denied, 520 U .S. 1251 (1997). The focus is therefore not on whether a plaintiff will ultimately prevail, but rather on whether the claimant has offered “either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416, 419 (6th Cir.2001) (quoting Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988)). In making such a determination, a court must “ ‘construe the complaint liberally in the plaintiff's favor and accept as true all factual allegations and permissible inferences therein.” ’ Sistrunk, 99 F.3d at 197 (quoting Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir.1994)). A court need not, however, accept conclusions of law or unwarranted inferences of fact. Perry v. American Tobacco Co., Inc. ., 324 F.3d 845, 848 (6th Cir.2003).
Defendant moves to dismiss Plaintiffs' Complaint, arguing that it fails to state a claim for which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6) for three reasons. (Doc. # 6). First, Defendant argues that Avion can represent himself but cannot represent his children. Id. at 2. Second, Defendant points out that Franklin County is a geographical boundry and not a person under 42 U.S.C. § 1983. Id. at 4. Third, and finally, Defendant asserts that Mingo is not its agent. Id. at 4; Doc. # 10 at 1. Because Defendant's last argument proves dispositive, the Court will not examine Defendant's alternative reasons for granting Defendant's motion to dismiss.
Defendants correctly point out that Ohio Revised Code § 2151.281 provides “the Court shall appoint a guardian ad litem to protect the interest of a child in any proceeding concerning an alleged abused or neglected child.” (Emphasis Added). Clearly, then, Defendant had no role in Mingo's appointment and no control over his actions. Thus, Mingo is not an agent of Defendant and all of Plaintiffs' claims fail.FN4 As such, the Court GRANTS Defendant's motion to dismiss. (Doc. # 6). The Clerk shall enter judgment accordingly and terminate this case upon the docket records of the United States District Court for the Southern District of Ohio, Eastern Division, at Columbus.
FN4. “ ‘Parents cannot appear pro se on behalf of their minor children because a minor's personal cause of action is her own and does not belong to her parent or representa- tive.” ’ Cavanaugh v. Cardinal Local Sch. Dist., 2005 U.S.App. LEXIS 8867, at *3 (6th Cir.2005) (quoting Shepherd v. Wellman, 313 F.3d 963, 970-71 (6th Cir. 2002)). Thus, Avion, as a non-attorney, may not assert any claims on behalf of his children. The Court therefore dismisses any and all claims Avion attempts to assert on his children's behalf. (Doc. # 6 at 3).
END OF DOCUMENT
(C) 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Uniform Parental Rights Enforcement and Protection Act
PROPOSED UNIFORM STATE STATUTORY LANGUAGE
following represents "model legislation"
to the 50 States of the United States of America, along with federal
oversight requirements (following the main body of the proposed
legislation) similar to that proposed, passed and enacted under the
UCCJA - Uniform Child Custody Jurisdiction Act.
ACTIONS ABOLISHED - CHILD CUSTODY - EXCEPTIONS - INHERENT RIGHTS OF CHILD
101. Legislative Declaration The remedies provided by law on or before enactment of this legislation, for the enforcement of actions based upon issues of custody of children after dissolution of marriage or legal separation, or in the case of unmarried birth of children, have been subjected to grave abuses, caused extreme annoyance, embarrassment, humiliation, and devastating psychological, emotional, mental and pecuniary damage to many persons wholly innocent and free of any wrongdoing who were merely the victims of circumstances, and have been exercised by unscrupulous persons for their unjust enrichment, vengeance or other venal purpose contrary to the interests of the child, and have furnished vehicles for the commission or attempted commission of crimes against children and parents and in many cases have resulted in the perpetuation of frauds.
It is, therefore, hereby declared as the public policy of the state that the best interests of the people of the state, and especially the minor children of the state, will be served by the abolition thereof, except in the below defined and proven circumstances.
Consequently, in the public interest, the necessity for the enactment of this Act is hereby declared as a matter of legislative determination.
Definition and interpretation of terms
Definition and interpretation of terms. As
used in this act, unless the context otherwise requires, the term:
(a) "Parent" shall mean the natural, biological parent of a child, or the duly adoptive parent of a child pursuant to this state's adoption statutes, but shall not be construed to mean a foster parent as defined in the statutes of this state, or a parent whose parental rights have been terminated pursuant to statute.
(b) "Child" shall mean the natural, biological child of a parent, or the duly adopted child of a parent pursuant to this state's adoption statute, but shall not be construed to mean the child of a parent whose parental rights have been terminated pursuant to statute.
(c) "Inherent rights" shall mean the natural, fundamental, inalienable right of the child to a full relationship with each parent, and the natural, fundamental, inalienable right of the parent to a full relationship with the child, which may be abridged only in the case of the existence of certain exceptions as more fully set forth in this Act.
(d) The "inherent relationship" shall mean the natural, fundamental, inalienable child-parent relationship, providing the child approximately equal access to each parent.
Acts of the Legislature
103. Rights of children to parental contact. The general assembly hereby finds and declares that children are endowed with certain inalienable rights, among them the natural, fundamental and inalienable right to a full and complete, inherent relationship with and full access to both its parents both during marriage and following dissolution of marriage or separation, and at all times for children born out of wedlock. This right of the child extends to essentially equal access to each parent to enjoy the love, affection, attention and contact between the child and each parent, and this right of the child shall not be abridged by the courts of this state, nor by any other agency or division of the state, nor by a parent of the child or any other person, except in the circumstances as described in section 109.
104. Custody of the child abolished. Except as provided for in section 109, separate custody of the child by one parent is hereby abolished. A child shall continue to enjoy its inherent rights in and to its parents, and each parent shall continue to enjoy its inherent parental rights in and to its child, and, as provided by law, each parent shall continue to exercise its parental responsibilities and obligations to its child, subsequent to dissolution of marriage or separation, and at all times in the case of a child born out of wedlock, subject to the provisions of this Act.
105. Civil causes for custody of children abolished. All civil causes of action for custody of children, whether at law or in equity for separate custody of the child between parents or between a parent and another party claiming a right to bring such action, and whether as part of a proceeding for dissolution of marriage as provided for in statute, or as part of a post-decree action, or as an independent action by a person other than a child's parent or by the state or any agency thereof, are hereby abolished, except as provided for in [Insert statute on child dependency from juvenile law].
106. Effect on existing orders for custody and parenting time. Except as otherwise provided for in this Act, all judgments, decrees, and orders, whether interlocutory or final in character, awarding custody of the child to one parent as against the other, or to a person not a parent, wherein the judgment, decree or order was based on a lesser standard of proof than is called for in section 109, and all claims or causes of action for sole or joint custody, whether such claim or cause of action arose within or without this state but which affects the rights of persons subject to the jurisdiction of the courts of this state, are declared to be contrary to the public policy of this state and absolutely void.
107. Rights of children in non-intact families. The general assembly hereby declares that children whose parents are dissolving or have dissolved their marriage or are separated, and children born out of wedlock, have certain inalienable rights in the determination of their continued relationship with each parent, including the right to have such determinations based upon the inherent right of the child to its inherent relationship with, and the care, companionship, control and nurture of the child by, each parent.
108. Best Interests of child. The general assembly finds and declares that it is in the best interest of all parties and all children to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage, and that it is in the best interest of children born to an unmarried mother to have frequent and continuing contact with both parents. In order to effectuate this goal, the general assembly urges parents to share the rights and responsibilities of childrearing and to encourage the love, affection, and contact between the children and the parents. The General Assembly hereby finds and declares that separation of a child from a parent after divorce or unmarried birth can and likely will endanger the child's physical health and significantly impair the child's emotional development.
Exceptions. The fundamental
relationship, the inherent relationship, may be altered or abridged by
operation of law solely in the following circumstances. The standard of
proof of a claim of abuse or neglect by a parent shall be beyond a
reasonable doubt as established by conviction for a criminal offense,
and there shall be an absolute presumption of innocence absent such
degree of proof.
(1) Death of both parents. In the event neither parent of a child is living, custody of a child may vest with the legal custodian of the child, pursuant to [cite state-specific Statute on non-parental custody requirements], or the state, pursuant to [cite state-specific Statute on juvenile dependency].
(2) Abuse or neglect of the child. In the event a parent has been proven to have abused the child under [Insert state-specific cite on physical and sexual abuse of children] or neglected the child under [Insert state-specific cite on neglect of children], and has been convicted under said statutes, the court may enter an order for custody of the child solely to the other parent, subject to the provisions of this Act; or, in the event both parents have been proven to have abused or neglected the child, and have been convicted under either of said statutes, the court may enter an order for custody of the child as provided for in [Insert cite of non-parental custody award criteria], subject to the provisions of this Act. If the court enters an order for custody of the child pursuant to this subsection, the court shall enter an order for parenting time to either or both parents, unless the court finds by clear and convincing evidence that the child is unable to tolerate contact with that parent. The provision for parenting time entered pursuant to this subsection shall be in conformance with section 111.
(3) False allegations. False allegations of abuse or neglect in a dissolution of marriage proceeding or proceeding to determine a child's relationship with a parent shall operate as an absolute bar to a parent's right to make decisions regarding the child's upbringing, including but not limited to the child's education, religious training and medical treatment. For the purpose of this Act, a "false allegation" is one that is either known to be false or one that a reasonable person should have known is false. By way of example but not enumeration, a finding by state child protective services that the alleged abuse was "not substantiated", or any disposition under a lower standard of evidence (such as "unfounded", or "closed without investigation"), or failure to report the alleged abuse contemporaneously with the act alleged to the police and/or child protective services shall be deemed conclusive evidence of the falsity of the claim so made. A parent so barred shall nonetheless be entitled to reasonable parenting time not inconsistent with protecting the child from further false abuse or neglect allegations, the terms of which shall be defined with specificity by the court along with procedures to prevent further false reports under section 109. A second false allegation as defined herein, notwithstanding the court's protective procedures, by the same parent, shall operate to permanently bar parenting time of the child so involved by that parent in addition to the previous penalties imposed.
(4) Imprisonment of a Parent. Imprisonment of a parent for offenses not related to child neglect or abuse shall operate to suspend that individual's parental rights and responsibilities during the time of such imprisonment, with all rights and responsibilities being restored under this Act at the time of their release from confinement.
110. Rights of persons whose parental rights are terminated. Notwithstanding any provision of law to the contrary, a parent whose parental rights have been previously terminated may bring action to restore those rights, if termination of parental rights was based on a lesser standard of proof than is called for in this Act.
111. Implementation of protective measures. Upon a finding by a court of competent jurisdiction that protective measures are required to insure the safety of the children while in the care, custody or control of one or both parents, the court shall enter upon the record of such proceedings the complete findings of fact and conclusions of law which gave rise to the implementation of such protective measures. Such protective measures may include supervision of parenting time. Such measures shall be designed in the most minimally invasive manner to provide the protections deemed necessary. Any order for protective measures shall, in addition, set forth in detail the conditions which shall be deemed proof of rehabilitation of the parent, or a time certain for the cessation of the protective measures without further proceedings, or both. Notice by the parent subject to protective measures of that parent's satisfaction of the conditions of the order for cessation of protective measures, accompanied by motion for the cessation of said measures, shall constitute a rebuttable presumption of the satisfaction of the conditions precedent for the cessation of protective measures.
litigants in a dissolution of marriage or post-decree proceeding
involving children shall submit a proposed parenting plan for the minor
children. Said plan shall set forth with specificity the educational
and religious upbringing of the children involved, along with a
specific schedule during which each child shall be resident with each
parent. All such plans shall include comprehensive alternate dispute
resolution procedures in the event of conflicts. The court shall admit
and enforce any parenting plan agreed to by the parties unless it finds
that the plan submitted is unjust or unconscionable on its face at the
time it is submitted. A submitted plan may be accepted or rejected only
in total. If the parties to such a proceeding are unable to agree upon
the terms of such a parenting plan, the parenting plan set forth in
subsection(2) of this section shall be imposed by the court until such
time as an alternative plan is agreed to and accepted by the court.
(a) The children shall alternate residence with each parent on each calendar Wednesday at 6:00 PM, except during one four week period during the summer school break when each parent shall have residence for one uninterrupted two-week period for the purpose of summer vacation.
(b) If multiple children are involved in the dispute all children shall rotate with each parent such that all related children are present in each household at the same time.
(c) Neither parent shall hinder, infringe upon or prevent reasonable private telephonic or other communication between the children and parent not currently the resident parent.
(d) Neither parent may move beyond the school district boundaries in which the children reside at the initiation of proceedings so as to cause the child's school district to change without written agreement of the other parent, nor may either parent withdraw the children from the school district of their current attendance without permission of the other parent in writing.
(e) Each parent shall be solely responsible for all expenses and costs of the children while they are in their respective care, including clothing, food, shelter, education, child care and elective activities.
(f) Neither parent shall, without the prior consent of the other parent, schedule elective activities during the parenting time of the other parent that would infringe upon that parent's access to or time with the child.
(g) Extraordinary medical and other expenses, which are not of a discretionary nature, shall be apportioned in equal amounts to both parents, and such amounts, if unpaid, shall constitute a judgment for said amounts against a parent. It shall be an absolute defense to such an assessment that (1) the expense was voluntary or discretionary in nature (including but not limited to cosmetic procedures, trips, enrichment activities or the like), (2) the expense was required by medical necessity but was not an emergency requiring immediate action to protect life or health and the other parent was not notified and consulted, or was not a full partner to the decision to undertake the expense, or, if consultation was attempted but agreement was not reached, the dispute was not subjected to the resolution procedures in the parenting plan. No part of this clause shall operate to inhibit the immediate provision of necessary emergency medical care.
(h) Routine medical and related expenses (e.g. dental cleanings, etc.) shall be equally apportioned to each parent. Neither parent shall undertake any such expense or activity without full consultation with and agreement by the other parent.
(i) Each parent shall be responsible for physically retrieving the children from the other or their activities at said time of exchange, and all costs occasioned by the nonperformance or late arrival of a parent for pickup shall be taxed to the non-performer as a money judgment.
(j) All parental responsibility shall terminate upon each child reaching the age of 18 years, with any further parental responsibility or expense being at the discretion of each parent. Neither parent shall be obligated to incur post-secondary educational expense on behalf of the child.
(k) Dispute resolution.
(I) Disputes arising from the attempted implementation of this plan shall be submitted to an arbitrator named by the court.
(II) The arbitrator is permitted to tax equally to the parties the costs of arbitration at a rate not to exceed $100 per hour.
(III) Both parties shall submit their positions to the arbitrator in written form, along with all supporting evidence for their position, and the arbitrator shall render a decision within a reasonable amount of time, which shall not exceed five business days.
(IV) The arbitrator's decision shall set forth in detail the findings of fact that are used to reach the decision rendered, citing the provided evidence, along with the decision itself.
(V) If either party disagrees with the arbitrator's decision they may commencelegal proceedings for further relief by motion to the court.
(VI) The court may require by way of injunction or other order that either party or both parties comply with an arbitration decision pending judicial review.
Move-aways. Except by agreement of
parties, neither parent may move the child's physical residence from
the school district where the child resided at the time of the initial
filing for dissolution, nor may either parent withdraw the child or
children from their school of habitual attendance without the written
consent of the other parent. The following rules shall govern all such
requests and attempts:
(a) For children more than six months of age, the situs and residence shall be deemed to be their habitual residence in the six months preceding the filing of the dissolution or parenting action. For children under six months old, their residence shall be determined as the habitual residence of the mother in the six months preceding the filing of the action.
(b) No act or move by a parent and/or children immediately preceding the filing of a petition shall operate to establish their habitual residence.
(c) A parent who moves his or her personal residence without the child or children involved shall be presumed to have abandoned equal custody and parenting of the child so involved. Such a parent:
(I) Shall be assessed all costs of implementing his or her parenting time with the child.
(II) Shall be assessed child support pursuant to state statute should that parent fail to exercise substantially equal shared parenting. Such child support shall not include the direct expense of implementing his or her parenting time subsequent to the move.
(III) Shall not impede the ordinary educational and extracurricular activities of the child or children so involved.
(d) A parent shall be deemed to have moved his or her residence if that parent substantially abandons his or her previous address, registers to vote in another state or locale, registers a motor vehicle in another state, obtains an occupational license in another state, or becomes domiciled under the provisions of state law in a foreign state.
(e) A parent shall not be deemed to have violated the provisions of this section if that parent moves his or her residence within the school district boundaries of the children's habitual residence and provides at least 7 days prior written notice to the other parent of both his or her intent to do so and the moving parent's new address.
(f) A parent who attempts to violate the provisions of this section, whereby that parent removes or attempts to remove the children from their habitual residential locale, shall be subject to indictment and trial for the crime of parental abduction under [Insert state statute for parental abduction].
(g) A parent who previously had been non-resident in the child's and other parent's habitual domicile may restore their parental rights and responsibilities by moving his or her personal residence within the school district boundary of the child or children so involved. A parent intending this act must notify the other parent in writing at least 30 days prior to effectuating such a move.
(h) A parent who is the resident parent of the child, where the other parent has voluntarily abandoned shared residency and shared parenting, may move on an unrestricted basis with the children provided that:
(I) The move will not substantially increase the difficulty in exercising parenting time by the other parent, AND
(II) They have not been served notice under subsubsection (g) that the other parent intends to return to the area where the residential parent currently resides.
114. No disparagement; controlling law. The rights and responsibilities enumerated herein shall operate only to the benefit of biological or adoptive parents, and shall not inure to the benefit of any other party. Any legislation or judgment within this state, to the extent that it operates to diminish, impair or infringe upon any of the rights and responsibilities enumerated herein, shall be null and void and of no further force or effect.
115. Notification required. The general assembly directs that a pamphlet describing the rights and responsibilities for both parents and children, as set forth in this Act, be produced and distributed along with each application for a marriage license, as well as for public distribution by the office that distributes marriage license applications on request by any person in the state. This pamphlet shall include the rights and responsibilities set forth in this legislation, as well as the acts that constitute abuse or neglect of a child within the state and the criminal penalties therefor. Updates to the standards for abuse and neglect prosecutions and their penalties, must be published, with conspicuous notice in the major daily newspapers and other media when significant statutory revisions are made.
116. Prevailing law; conflict of laws. Any provision of law in conflict with any term or provision of this Act shall be null and void and of no further force or effect. In any determination wherein the provisions of law conflict with or contravene any term or provision of this Act, the requirements of this Act shall prevail.
Federal Oversight and Implementation of UPREPA Among the Several States
The remedies provided by law on or before enactment of this legislation, for the enforcement of actions based upon issues of custody of children after dissolution of marriage or legal separation, or in the case of unmarried birth of children, have been subjected to grave abuses, caused extreme annoyance, embarrassment, humiliation, and devastating psychological, emotional, mental and pecuniary damage to many persons wholly innocent and free of any wrongdoing who were merely the victims of circumstances, and have been exercised by unscrupulous persons for their unjust enrichment, vengeance or other venal purpose contrary to the interests of the child, and have furnished vehicles for the commission or attempted commission of crimes against children and parents and in many cases have resulted in the perpetuation of frauds.
It is, therefore, hereby declared as the public policy of the United States that the best interests of the people of the several states, and especially the minor children of the several states, will be served by the abolition of custody thereof, except in the defined and proven circumstances set forth in the Uniform Parental Rights Enforcement and Protection Act hereby proposed to the several states.
Consequently, in the public interest, it is the determination of the Congress of the United States of America that the following shall be the policy and the Act of the United States upon passage of the Uniform Parental Rights Enforcement and Protection Act into law by each of the several states without regard to the universality of the adoption of said Act.
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