TOPIC FOR OCTOBER'S ARTICLE:
"I Heard it Through the Grapevine and Other Rumors:"
Sometimes a song
conveys ideas better than mere words alone ever could. Marvin Gays' hit song "I
heard it through the Grapevine" is one of those songs. It deals with a man
who heard a rumor that his girlfriend was going to dump him. It talks
about how he feels dealing with that rumor and how hurt he is because of it. In
case you are wondering what I am leading up to, it has to do with misinformation
or rumors. Something that you heard or read through the grapevine or on the
internet.
Recently I was in
Court with a client who was facing the results of an E.C.
§730 evaluation. The issue facing the parties was that it was
time for their young child
to start school. Since the parties had voluntarily moved almost 80 miles from
each other, there was no easy solution to this problem. Someone was going to
have to be the primary custodial parent for schooling. Someone
was going to win and someone was going to lose. While this is an overly
simplistic explanation, I can assure you that is how both parents viewed the
situation. I am not going to go into the various factors that led up to this
event because they are not important to this discussion. Suffice it to say
that the parents had differences over child rearing and parenting styles.
We had been waiting for the evaluator's recommendation concerning school
for quite awhile. So it came as no great surprise when we learned from the
evaluator that they were going to recommend that the child live with the other
parent, rather than our client. The primary reasons for this was that the
school where the other parent lived was scholastically superior to the
school where our client lived. Obviously this recommendation telegraphed
the evaluator's intentions regarding the overall issue of custody. I
intended to challenge the evaluators recommendation, because it was based solely
on differences which were the results of affluence and nothing else. This
problem could have been addressed by a proper child support award.
At the hearing that was held on the issue of the recommendation of the
choice of school, we were scoring important points by demonstrating the basis of
our objections. I felt that these points could have easily swayed the final
outcome to our point of view. The judge seemed very sympathetic to the points
that we were making, and was not pleased with the other attorney's position or
attitude. Obviously emotions were running very high and a lot was riding
on the outcome of this and the next hearing. Despite the adverse
recommendation of the evaluator, we had the judge's ear and were quite
confident of ultimately prevailing on the issue of custody. The case was
so close, that mere millimeters separated the parties positions. The tiniest
mistake would be fatal to whoever blinked first.
The tension in the air was palpable, the time had come for the judge to make the
decision. Just before the judge even had a chance to rule, our client for the
very first time in over two years decided to speak up. Our client politely asked
the judge for permission to read a statement into the record. My heart
sank as I heard her words. Since the client was represented by counsel, the
judge denied the request. Despite being ordered not to, the client proceeded to
read the articles aloud to the whole court. To make matters worse, the
article had nothing to do with what was before the Court. The judge ordered the
client to cease reading or the bailiff would remove our client from the
courtroom. Since our client refused, they were removed from the courtroom.
Apparently the stress of the evaluation process had finally taken its
toll.
Not once did our client ever mention to me what they intended to do.
Evidently our client had been visiting people who had introduced them to some sites on the web which
are
heavily slanted with anti-government political propaganda. These sites tend to be extremely critical of the government and the legal system.
Most people would characterize these sites as being written by kooks and
crazies that believe all in all sorts of paranoid conspiracy nonsense. I have
heard them
described as belonging to the "Black Helicopter" crowd.
In any event, the thrust of these sites was the recommendation that people read into the
record a certain passage from Article One of the Uniform Commercial
Code, which was supposed to render the court powerless to do anything to them. While we certainly endorse everyone's right to exercise their
first amendment rights, the readers should always exercise their good common sense
before acting on such advice. The reason for this is obvious. These sites are
usually not written by legal scholars with a mainstream point of view. The
advice posted on most of the sites that I visited was patently wrong, as is a lot of lay
advice regarding legal issues.
I
am purposely being vague about the identity of these sites, because I don't want
anyone who visits our site to go to one of these sites and make the same mistake
our client did. However in order to
understand the extent of the problem, you need a general understanding of the viewpoint of
the people who run these sites. They tend to hold non-traditional views, such as the view that this government is not
legal because we supposedly violated some obscure misinterpretation of the
Uniform Commercial Code.
Basically their theory seems to be that since this government is based upon a bastardized
contract theory and the government didn't live up to their end of the bargain,
the contract is void. Therefore, we are foreign nationals and not
citizens. And according to their theory, we are not required to pay taxes because the Government has no power over
us. Reduced to its lowest common denominator, that is their position as I
understand it. Before we totally dismiss these folks out of hand, I think
that you should know is that at one time some of their ideas were very mainstream and
not as kooky as they may sound.
They believe that the since the Federal Government is a government of
enumerated powers, it has no powers except those set forth in the
constitution. When our country was founded, many people were afraid of a
strong central government. They believed that any powers not expressly
granted to the Federal government are reserved to the states and the people.
These folks preferred states rights as it was called. While I wouldn't argue with this point of view in
theory. In reality, it has never been strictly followed.
Their theory was that a strong state and a weak federal government was
preferable and safer to the other way around. Fortunately for us, our forefathers
learned from the Articles of Confederation that a weak central
government was a handicap and not an asset which is why the Articles of
Confederation failed and yet the Constitution survives.
Where these people part company with actual history is when they go on about their
interpretation that we, the people, make a contract with the government to
be governed. But only on certain terms and conditions that they contend are set
forth in the Uniform Commercial Code. They conveniently overlook the fact that
when our country was founded, the Uniform Commercial Code didn't even exist.
Time for a little history lesson.
I think that the basis for much of this misunderstanding can be found in the
fact that many people do not know that this country is a Republic and not a true
democracy. In fact if you go back and read the Federalist papers, you will not
find any support for their contract theory at all. Although you will find
that at that time, quite a debate raged over what form of government our country
should be. Some argued that George Washington should be king or president for
life. Others wanted a pure democracy. Still others wanted King George
back.
The most fundamental common denominator in this debate was basically an issue of states
rights versus federal rights. Some states didn't want to give up their sovereign
power to a federal government. The small states were afraid of the large states.
The interior states were jealous of the coastal states. The slave states were
unwilling to give up slavery. In fact many people do not know that in order to
get a government formed at all, the issue of slavery had to be totally off
limits, a decision which eventually led to the Civil War. The
constitution was a compromise, which many people at that time viewed as fatally
flawed. In our history, compromise has always been the rule of the
day. In fact at one point in our history, we came within one single vote of
speaking German instead of English.
Eventually our forefathers decided on a representative republic, which is what
we have today. In fact we can directly trace our present day system of checks
and balances directly to this debate. As well as the first ten amendments to the
Constitution known collectively as the Bill of Rights. This fact alone
demonstrates that theories of
governance are not static, they evolve.
No one in the 1700's, 1800's or even
1900's could possibly envision the complexity that faces our nation today.
If we still lived back in the 1700's and still had a basically agrarian
society, maybe we would still support this very parochial view of the world. But we
don't and while it was an interesting
theory in the 1700's it really isn't workable in the new millennium.
In today's world a strong centralized form of government is essential. Otherwise,
if everyone is free to accept what they want and reject the rest, we would all
live in chaos. America would be a third rate country instead of the
economic powerhouse and only remaining superpower. It is our rule of
law that separates us from the despots of the world.
Their
reasons for not paying income taxes are based on the same basic misunderstanding. Despite the fact that the U.S. Supreme Court has rejected
their view and ruled to the contrary, they still believe that the entire
income tax system is not legal. Apparently the United States Supreme Court is
not enough authority for these folks, because they continue to interpret laws and Court
decisions in ways which gets them in
trouble. For example, these people go way beyond a mere academic discussion of
these rather esoteric issues, they actively advocate that people not pay taxes
and do other things that are clearly not legal or make sense.
Unfortunately people have actually gone to jail as a result of implementing these point of view. Which sort of explains why these sites usually recommend
that people not ask their attorneys or accountants about doing what they recommend. They
feel that lawyers are part of the great conspiracy and wouldn't understand their
point of view anyway. The reason why we don't "understand"
their point of view is because it has been rejected by the Courts. It's wrong.
The main point of their argument seems to be that because of a breach of "the contract"
between the government and the people, they are
technically not citizens of the United States nor subject to our laws.
They cite Article 1 of the UCC for support of their theory. They even
advocate writing to the Internal Revenue Service and the Bureau of Alcohol,
Tobacco and Firearms and retracting or modifying signatures made on Income tax
and other forms that were filed with the government. They recommend making
statements of limitation over your signature, once again citing the UCC for
authority.
What they do not explain is that the primary purpose of the Uniform Commercial
Code is to regulate commerce between "Merchants." It has nothing
to do with paying income tax, child custody or visitation, citizenship or anything else. It
isn't magic, it's about regulating commerce between merchants. It's very name
explains it all: the Uniform Commercial Code, it covers commerce
not government. In fact there really isn't even just one code, each state
has adopted its own version of the code and they are usually slightly
different. If I am not mistaken not every state has even adopted
one. Even Guam has its own version of the code.
The authors of these sites advise people that when they get into court,
they should read
aloud long passages from the Uniform Commercial Code into the record or cite excerpts from cases which really don't have any bearing on
the issues before the court. They claim that the reading of these diatribes
"magically" protect the person who spouts these words from whatever evil that supposedly
lurks in our government or in the halls of our courtrooms. The theory being that
since you are a "foreign national," the courts of the United
States have no jurisdiction over you. I would love to hear how they would
square their theory with what is going on in Afghanistan and Cuba. It seems the
courts are having no trouble with detaining and prosecuting certain "foreign nationals."
Some people have difficulty drawing proper conclusions regarding this issue. So
for these folks let me make it perfectly clear,
"never, never, ever say
anything in court to the judge or the other side that you have not previously
cleared with your attorney." Just because a friend, acquaintance, book, pamphlet, website or person says that
something is the "Law," you should never ever act on it without discussing the
consequences with your attorney first. Much of the crap that you will find at
these sites is simply wrong, wrong, wrong. If you do as they advocate, you could
have extremely adverse consequences happen to you. You could be arrested,
deported, audited, or worse. Which is exactly what happened to our client. Remember
once you say it or do it, you can't take it back.
When you are in Court over something as important as your children, you cannot
afford to appear to be irrational or mentally unbalanced. Based on our
client's outburst and apparently erratic or irrational behavior, the opposing
counsel moved to immediately change custody and to cut off our client's
access to the children. The motion was granted, over our fierce objection, but
nonetheless it was granted. The child was immediately removed by the police from
our client's care and turned over to the other party. The court set a hearing
date on the issue of custody and visitation, but that is just a formality.
Can you even imagine what their child must have thought when the police showed
up to retrieve the child?
Any time that custody or visitation is brought up in the future, the other side
is going to be able to throw our client's irrational outburst up for the judge
to see anew. This mindless act will follow our client until the children attain
their majority. At this point in time, we have no way of knowing the total
impact that this will have on our client. A few impulsive seconds and
years of regret. How would you even begin to explain it to your children?
Which brings me to the point of this article. This is not a game, never
gamble with your child's future. A custody fight is like a
war, you have to have the stomach for it. You should never, ever rely solely on
something that you read, heard or were told by someone as gospel. You
should always verify these "facts" with your lawyer.
You also need to have nerves of steel, and be able to have the guts to
take the verdict, even if it is adverse. Even if you lose, if you do it with grace and style, you
will live to fight another day. Custody cases are never really over until the
child attains majority anyway. It is not unusual for custody to shift back
and forth several times. As long as you act responsibly and with dignity you
really have nothing to fear. Patience and persistence pays off big time.
On the other hand, a momentary lapse of judgment can have years of adverse impact on your children.
If you are ever in this situation yourself, talk to your lawyer and tell them
what you read or what you are considering doing. Ask them if what you read is true or if you should
actually do what the site or person recommends. Never conceal your intention
from your lawyer. If you don't have faith in your lawyer, then change lawyers or
seek another opinion from a licensed attorney who is currently practicing family
law. But never, ever conceal something so potentially dangerous from your
lawyer. That would make as much sense as concealing something from your doctor.
If this article prevents someone else from making the same mistake then I have
done my job. Just remember, "if it sounds too go to be true, it
probably is." If what these sites advocate were really as simple as they
make it sound wouldn't everyone be doing it? After all if we really had a
choice, I don't think too many of us would cheerfully sign up to pay taxes and
be subjected to this or any countries laws. Why would we bother to even stop at
stop signs? Wouldn't we just shoot everyone that annoyed us? Why would we
bother to go to Court? But if we all acted like this, we would live in a world of chaos. Remember
our government may not be perfect, but it is still the best one around. If
it isn't responsive, we can always change it, but we should never abandon it.
On that cheery note I will leave you with two other old adages to ponder:
1. "It is better to be thought of as a fool than to open one's mouth and
remove all doubt;" or
2. The old carpenter's rule, "check twice, cut once." Think
about it.
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