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
Newsgroups: misc.legal