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Date:         Wed, 27 Jan 1993 11:45:36 -0500
From:         David Garrod <garrod@ECN.PURDUE.EDU>

Found on the net:

Article: 39432 of misc.legal
Newsgroups: misc.legal
From: mwhhlaw!tim (Timothy E. Hollingsworth)
Subject: Re: Sexual Discrimination
Reply-To: uunet!mwhhlaw!tim
Organization: Martin Wade Hartley & Hollingsworth
Distribution: usa
Date: Wed, 27 Jan 1993 13:14:13 GMT

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
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