The federal courts have never considered a case involving the allocation of child custody (or other parental rights) between the child's two parents. In all federal cases involving parental rights, either the child had only one surviving parent, or the two parents were on the same side and were asserting the same right and remedy.On further research, it turns out that federal judges dismiss cases unless there is something called federal jurisdiction. Back in 1859, almost all the federal cases were pleaded on the basis of 28 USC 1332, "diversity of citizenship" (plaintiff and defendant were citizens of different states). Nowadays, most federal cases are based on some alleged violation of federal law, as stated in 28 USC 1331.
This is because all federal courts recognize a "domestic relations exception" to federal jurisdiction. The exception was first announced in 1859 when the Supreme Court declared federal courts may not hear any cases involving divorce or alimony. In 1890 the Supreme Court extended the exception to cases involving child custody as well. The exception was reaffirmed in this 1992 case, which summarized the history.
The 9th Circuit federal appeals court (for a region including California) just ruled in Atwood v Fort Peck Tribal Court (Jan. 2008) that:
We hold that the "domestic relations exception," a doctrine divesting the federal courts of jurisdiction, applies only to the diversity jurisdiction statute, 28 U.S.C. § 1332, and that the district court erred by applying the domestic relations exception because federal question jurisdiction exists in this case under 28 U.S.C. § 1331. We affirm the district court's dismissal nonetheless, because Plaintiff failed to exhaust tribal court remedies.The reader responded:
This is an encouraging development, but you're still confronted with a now 150-year-old principle that federal courts will not entertain lawsuits involving domestic relations, divorce, alimony, or child custody.Yeah, judges don't want to hear these cases. Deep down I think that they realize that meddling judges usually make things worse.
I previously noted that the domestic relations exception was originally created for "diversity" cases, and to my knowledge was never extended to "federal question" cases. Nevertheless, as this case shows, federal courts will likely find some other reason to dismiss domestic relations cases - such as the need to exhaust non-federal remedies. They just don't want to hear these cases!
But federal jurisdiction is defined by Congress, and the law says that the federal courts do have jurisdiction over denials of constitutional rights. In my opinion, Commissioner Irwin H. Joseph has denied me my constitutional rights. If I cannot get the matter corrected, I will eventually ask a federal judge to rule on the matter.