Case Law on Fathers and Children's Rights In Divorce
The genesis of this page are cases used by the
Great-Granddad of Fathers'
Below is a copy of some raw material which Bob
Hirschfeld, who worked for Nat Denman years ago, stumbled on recently in
his files. The cases were gathered years ago in this list by Nat Denman
(now deceased), the great granddaddy of fathers rights across the
States, and have not been checked for "obsolescence" . . . for
whether any courts' minds have changed on the subject. Many cites,
particularly those to the U.S. Supreme Court, are likely still fine.
As on September 2006 We have now gathered the full text of these cases and made them available instantly by hyperlink. They are not generally shepardized, so if you are going to use them in court you might want to get a shepardized copy from: http://www.lawlib.state.ma.us/deliveryform.html or other legal sources like Lexis and Findlaw.
Please also note that many references are to the unofficial reporters (private company which adds headnotes with a "key" system) rather than to the official reporters (entity which has contract with government to print the opinions in the form in which they are issued by court). Note that anything gathered by government, and paid for with tax dollars is not copyrightable. Because time is of the essence for many of you with pending cases, I have listed them in an "as is" condition.
Note also that the citations are not necessarily in the correct format. Although as a pro se party you don't need to use the so-called correct format because much is forgiven, you should use it if you know it: it makes you appear more knowledgeable -- image, appearances. . . . A book which should be in all law libraries is A Uniform System of Citation, published and distributed by The Harvard Law Review Association, Gannett House, Cambridge, MA 02138, USA.
EDITOR'S NOTE: The cases cited below usually involve many more issues than the one for which they are herein cited. The interpretation preceding the citation is that of Denman or another editor, and not necessarily an interpretation agreed upon by others. FOR YOUR PROTECTION, YOU MUST LOOK UP AND READ a cited case before you cite it in your own pleadings, to make sure that it is "on point" with what you are trying to do. Otherwise, you run the risk that the other side will look up and read your cited case and find something in it distinguishable from your case, or even usable against you.
It is usually preferable to quote in legal pleadings the particular pertinent wording from reading the case itself, followed by the volume/reporter designation/page/year citation, rather than to quote the general, and unofficial, summary by which the cases are stated below.
Most of the cited decisions can be found in your local (and publicly available) county, state, city or college law library. If you haven't already done so in preparing your own legal pleadings, it is essential that you spend some time in one of these law libraries learning how to look up and find the cited cases. There are often helpful other users of the library, or you can ask at the desk for a reference on how to use a law library.
Need to get other cases? Use this service to retrieve
any 5 cases per day for free:
If custodial mother has boyfriend living with her, state can
change custody to father.
Visitation (parenting time) is a constitutionally protected right
which can be protected in federal court, even if father is in prison.
Custody can be awarded to father of girls of "tender years" if
mother commits perjury, and is otherwise immoral.
Arguments that Joint Custody constitutes a "fundamental right."
Mother cannot take child out of state if that prevents
"meaningful" relationship between father and child.
WEISS V. WEISS, 436 NYS 2d 862, 52 NY 2d 170 (1981)
Ex Parte conferences, hearings or Orders denying parental rights
or personal liberties are unconstitutional, cannot be enforced, can be
set aside in federal court, and can be the basis of suits for money
(1999 Warning from Bob Hirschfeld. Rankin later overturned in part in 9th Circuit.
See Petition for Certiorari, Hirschfeld v. Rogers, http://www.how2.org/nolawyer/rogersup.html
Judges' refusal to consider evidence and psychologist reports denies
due process right to "meaningful hearing."
Laws and Court procedures that are "fair on their faces" but
administered "with an evil eye and a heavy hand" (discriminatorily) are
Federal Courts can rule on federal claims (constitutional questions)
involved in state divorce cases and award money damages for federal
torts or in diversity of citizenship cases involving intentional
infliction of emotional distress by denial of parental rights,
"visitation", as long as the Federal Court is not asked to modify
Right to have an appointed attorney in Appeal
Contempt of Court is quasi-criminal, merits all constitutional
Excessive fine on Contempt
Payment of support tied to visitation:
Although court may acquire subject matter jurisdiction over
children to modify custody through UCCJA, it must show independent
personal jurisdiction (significant contacts) over out-of-state father
before it can order him to pay child support.
Attorney's fees only if court-appointed in contempt for
non-payment of child support.
Custody can be changed if visitation is denied.
Unlawfully retaining noncustodial parent cannot argue change of
custody at Habeas Corpus hearing.
Process service in family matters must provide due process
Stay of execution by Court of Appeal protects its jurisdiction,
not to protect Appellant's rights.
Justice delayed is justice denied.
Attorney can be sued for malpractice under consumer protection
Money damages in federal civil rights suits need not exceed
But claim under $10,000 is cause of dismissal of diversity of
citizenship action in federal court.
Spouses can sue each other while still married for torts,
intentional and unintentional.
In Massachusetts, the common law rule of interspousal immunity was abolished in
Lewis v. Lewis, 370 Mass. 619, 629-630, 351 N.E.2d 526 (1976).
Interspousal immunity is also inapplicable to claims of fraudulent conveyance, fraud, breach of fiduciary duty as trustee of property held in trust for wife. Garrity v. Garrity, 399 Mass. 367, 371-372, 504 N.E.2d 617, 620 (1987).
Judge's dismissal for no cause is reversible.
Non-lawyers can assist or represent litigants in court.
Members of group who are competent nonlawyers can assist other
members of group achieve the goals of the group in court without being
charged with "unauthorized practice of law"
Pro Se (Without a Lawyer, representing self) pleadings are to be
considered without technicality; pro se litigants pleadings are not to
be held to the same high standards of perfection as lawyers.
Federal judges can set aside or overturn state courts to preserve
Right to electronically record one's own conversations without
"beep note" when life, liberty or property is threatened, or to preserve
sanctity of home.
A conspirator is responsible for the acts of other conspirators
who have left the conspiracy before he joined it, or joined after he
left it; statutes of limitations tolled for previous acts when each new
act is done.
State statute of limitations is tolled (does not run) in SOME
STATES while same action is pending in federal court; action can be
brought in State Court after federal court dismisses for lack of subject
Either parent can sue for interference with parental rights.
Children must be returned to home state before child support
payments are continued.
Custody can be changed if wife is "disrespectful" of "visitation"
Wife held in contempt for denial of visitation; new judge should
not suspend contempt order.
Wife can be held in contempt if visitation is denied
Alimony and wive's lawyers fees are civil debts, not enforceable by
contempt procedures, since the Constitution did away with debtor's
This case law is from Fathers and Families web site and is Massachusetts: