It is a fact that the probate courts of many states, especially Massachusetts, operate unconstitutionally (and therefore unlawfully)  in taking away parental rights from perfectly fit fathers and mothers every day in the process of divorce. See here The constitution and U.S. Supreme courts are the overriding law over any state laws as follows:

1. The several states has no greater power to restrain individual freedoms protected by the First Amendment than does the Congress of the United States. Wallace v. Jaffree, 105 S Ct 2479; 472 US 38, (1985).   

2. The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14.  Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985).

3. See far more here

Here is the pleading filed by one brave and learned civil rights activist father to change this illegal, sexually biased and unethical behavior of judges and lawyers that is harming a generation of children further every day. You are free to learn from this and copy and past for your own battle against these evil tyrants who are driven by money and power over the interests of our children and our civil rights.

Middlesex Probate and Family Court

Introductory Statement

1)      This is being prepared by order of Judge ______________ to help clarify the issues in the Federal pleadings.

2)      Also incorporated are arguments developed since the Remand due to Judge ______________’s remarks.

3)      As the recent ballot question showed, the judiciary is out of step with the populace’s view regarding child custody issues following divorce.

4)      It continues to be my position that failing to answer any issues in the Federal Remand is a violation of Due Process.

5)      I have challenged the court’s jurisdiction on multiple occasions – including on the October 4^th hearing where I challenged jurisdiction and demanded a right to a jury trial based on several Constitutional issues - and the court has again in the aforementioned Memorandum and Order failed to answer the jurisdictional challenge.  Another clear violation of Due Process.

6)      Furthermore, the Memorandum and Order failed to address the issue of Default in Federal Court.  This oversight is another example of lack of Due Process.

7)      A Bill of Particulars has been filed in this case and goes unanswered.  The Bill of Particulars is a Federally protected instrument which completely informs me of the nature and cause of the actions against me.  The failure to answer the Bill of Particulars – to which a default has been issued – is a violation of Due Process.  The Bill of Particulars, among other things asks what wrong have I committed and who seeks remedy.

8)       The US Supreme Court has repeatedly stated that “Suits in equity shall not be sustained in any court of the United States in any case where a plain, adequate, and complete remedy may be had at law.”, see Schoenthal v. Irving Trust CO., 287 U.S. 92 (1932).  Also see  Whitehead v. Shattuck, 138 U.S. 146 (1891).  Below it is shown that divorce and custody before and after the signing of the state Constitution were done AT LAW.

9)      Common Law adjudication, is fundamental to the protection of rights and the prevention of arbitrary determinations.  Custody and divorce issues were decided as an issue of rights at and after the signing of the Constitutions, not as equity “relief IN EXTRAORDINARY CASES, which are EXCEPTIONS to general rules”, see the Federalist Papers No. 83.

10)  Forcing a Common Law Matter into Equity jurisdiction is a violation of Due Process.

11)  Any violation of DUE PROCESS voids the court’s jurisdiction.

RESERVATION OF RIGHTS DUE TO FRAUD

12)  Defendant hereby explicitly reserves his fundamental rights to amend this and all subsequent pleadings, should future events and/or discoveries or omissions from previous pleading fail to be properly incorporated herein or that I have failed to adequately to comprehend the full extent of the damages which has been suffered at the hands of the Plaintiff, or other involved parties, both named and unnamed, now and at all times in the future.

INCORPORATION OF PRIOR PLEADINGS

13)  Defendant hereby incorporates by reference all pleadings, papers, and effects heretofore filed or otherwise lodged within the state or Federal proceedings the same as if fully set forth herein.

ALLEGATIONS

Constitutional “heretofore” clause

14)  The arguments presented in Bigelow v. Bigelow, 120 Mass. 320 (1876) and Bucknam v. Bucknam, 176 Mass. 229 (1900) are not relevant and are distinguishable from the instant case because it did not address that the legislature and governor:

a)      did not have the capability to provide for a trial by jury,

b)      did not require a trial by jury because of the strictness of the rules regarding custody,

c)      would provide strict determination of custody based on Natural and Common Law property right

d)      neither of these two government branches could interfere with God's law that clearly stated that a father owned (i.e., had a perfect right to) his child.

These significant legal and factual differences between today’s variant of divorce and custody as it was heretofore used and practiced by the governor and legislature renders Bigelow, Bucknam, and their progeny void.

15)  Also, Massachusetts did not provide for Equitable determination to terminate a marriage contract or to decide custody at the signing of the Constitution.

16)  God’s laws were seen as immutable by the religious founding fathers and hence the notion of intruding on divine laws was outside the scope of a Natural Law based government.

17)  It was not until 1785 (Statutes 1785, Chapter 69) in Massachusetts that the State Supreme Court was allowed jurisdiction over divorce cases (because, in part, the cost imposed upon a citizen in traveling to Boston and the workload on the Governor It should be noted that it was not until 1877 (Statutes 1877, Chapter 178) that the SJC was given equity jurisdiction.  In 1889, Superior Court was given jurisdiction (Statutes 1889, Chapter 332).  And in 1922, Probate Court was given jurisdiction (Acts 1922, Chapter 542).

18)  ). In 1855 (Statutes 1855, Chapter 56) provided for a trial by a jury for cases of divorce. In 1877 the right to a trial by jury was repealed by Statutes 1877, Chapter 178.

19)  The Supreme Judicial Court although continuously sitting since November 25^th, 1692, did not have equity jurisdiction until 1877.

20)  Thus the Supreme Judicial Court of Massachusetts exercised only Common Law jurisdiction over divorce and custody cases from 1785 until 1877.

21)  So, the arguments presented in Bigelow and Bucknam are also not relevant and are distinguishable from the instant case because it did not address the conversion of Common Law to Equity jurisdiction for divorce and custody cases.

22)  This conversion from a determination based on rights to an Equity based decision is unlawful, Unconstitutional, and voids all custody and divorce decision made under Equity, in their first instance.

23)  The clause in the Massachusetts Constitution, “heretofore been otherwise used and practiced”, only applies to SPECIFIC AT LAW – COMMON AND NATURAL LAW - METHODS used by the executive and legislative branch in divorce and custody cases prior to and at the signing of the Constitution.  Those methods were absolute edicts that required no government interpretation.  Note that these at law determination are no longer practiced within the Commonwealth.

24)  All of the cases decided prior to and shortly after the signing of the Constitution were decided against a factual and legal background sufficiently different from the instant case (and from most current divorce and custody cases).  Specifically, custody determinations were made based on Natural and Common Law maximums by branches of government that did not have the ability to convene a trail by jury but adjudicated things based because of AT LAW rule which held a married man held superior to his children even in divorce, see Commonwealth v. Briggs, 33 Mass. (16 Pick.) 203.  Additionally, in order for a divorce to be granted, party had to claim a wrong or prohibited action within the marriage; i.e., there had to be a guilty party and an innocent party claiming remedy.

25)  Under Common and Natural law the state could not interfere with the right of a fit father to the to the custody of his children; hence this absolute rule was not subject to interpretation by judge nor jury.  It was a “law of nature’s God” that man nor government could modify.

26)  Under Common and Natural Law, a party cannot claim remedy if there has been no wrong; additionally, the party committing a wrong cannot claim remedy, e.g., clean hands doctrine.

27)  These strict Natural and Common Law rules regarding custody held that a married father held superior to his children (a strict right of property) that could only be challenged if the father abused, abandoned, or neglected his children, referred to as a ‘positive disqualifying event’.    Regardless of how ‘fair’ you judge this, it was a full and complete remedy AT LAW; i.e., under the Common and Natural Law.

28)  The state has failed to show how this right to property can be modified and what remedy or more specifically what “just compensation”, is available to divorcing Fathers.

29)  And since there needed to be a ‘guilty party’ in a divorce, the Common Law held that only the innocent party could claim remedy; as opposed to the state claiming remedy in current divorce cases.  Again, divorce held a complete remedy AT LAW under rules of Common and Natural Law.

30)  It was these Natural and Common Law determinations that are what is covered by the heretofore clause, not the areas of divorce and custody.

31)  Therefore, the method and rules “heretofore been otherwise used and practiced” with regard to divorce and custody are no longer “used or practiced” thereby rendering the clause void in all current divorce and custody issues. The ‘new’ divorce laws are not relevant and are distinguishable and significant legal and factual differences exist between custody determinations at the time of the signing of the Constitution and today.

32)  It was not until 1785 (Statutes 1785, Chapter 69) in Massachusetts that the judiciary, specifically only the State Supreme Judicial Court  (hereafter SJC) was allowed jurisdiction over divorce cases (a transfer Constitutional responsibility from the Governor). It should be also be noted that it was not until 1877 (Statutes 1877, Chapter 178) that the SJC was given equity jurisdiction.  Again, the judiciary, specifically the SJC, could only exercise COMMON LAW jurisdiction over custody and divorce cases at least between 1785 and 1877.  Since divorce was practiced at law then it must be practiced at law now.

33)  Discussed below is the issue that Common Law defined the remedy for divorce and custody, with no allowance for the state to impose Equity jurisdiction.

Case Cites

34)  Bigelow v. Bigelow, 120 Mass. 320 (1876), cited in the Memorandum and Order is not relevant and is distinguishable from the instant case because in the instant case the issue of “ to the custody” is raised as a “right to property” and the significant legal and factual differences between today’s variant (to include the conversion of Common Law to Equity jurisdiction) of divorce and custody whereas the Supreme Judicial Court did not address custody nor the “right to property” or differences in current procedures being raised herein. Furthermore, I have found no case law where this “right to property” was addressed in a divorce custody case.

35)  The United States government in establishing its own legal system adopted by custom and reason "that suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate, and complete remedy may be had at law.", Judiciary Act of 1789 "an architectonic act still in force."

36)  Bucknam v. Bucknam, 176 Mass. 229 (1900), is again not relevant and is distinguishable from the instant case because it does not address the issue of custody and as a result does not address the “right of property” nor the issue of conversion from Common Law to Equity as in the instant case.

37)  Moreover, both of these cases are not relevant and are distinguishable from the instant case because they do not address the fact that it was not until 1877 (Statutes 1877, Chapter 178) – one year after Bigelow - that the SJC was given equity jurisdiction; therefore the SJC was operating ONLY under rules of Common Law in Bigelow, i.e., not under Equity, when it rendered the Bigelow decision AND IN ALL PREVIOUS CUSTODY DECISIONS RENDERED BY THE SJC (from 1785 to 1877) SINCE IT DID NOT HAVE EQUITY JURISDICTION.  The Bigelow decision does not hold if custody is outside the strict Common and Natural Law determination.  The subsequent (Unconstitutional) conversion of divorce and custody issues from Common Law to Equity was illegal and a trial by jury is the only Common Law means available today to resolve matter unless the previously held Common and Natural Laws rules of to the custody are revived.

38)  Both of these cases are not relevant and are distinguishable from the instant case because they clearly show that the methods (i.e., the laws of Nature’s God discussed above) previously “used and practiced” with regard to custody and divorce are no longer being “used or practiced”; hence custody determinations no longer fall under the exception of the heretofore clause, the state must provide a Common Law determination for custody and not convert the decision to Equity; i.e., since divorce and custody are no longer practiced in a manner consistent with the strict rules and procedures of Common Law that were in place prior to the signing of the Constitution, they are no longer protected under “heretofore been otherwise used and practiced.”

39)  The phrase “heretofore been otherwise used and practiced” only allowed things previously practiced to continue within the same use and practice and not allow the state to convert Common Law actions into Equity.  If custody no longer follows the strict rules of Common and Natural Law that were in place before, at, and after the signing of the Constitution, which provided no allowance for Equity discretion, then it must be adjudicated under Common Law. Common Law property issues always have the right to a trial by jury.  Conversion from the Natural Law and Common Law “right to property”, an AT LAW decision, to Equity is Unconstitutional and unlawful.

40)  Bucknam and Bigelow, and their respective progeny are not relevant and are distinguishable from the instant case because they do not address the fact that there have been pronounced factual and legal background changes sufficiently distinguishable from the methods used to determine custody and provide grounds for dissolution of marriage today, to include that no wrong be necessary to institute a divorce and no party is claiming remedy.

41)  Furthermore, Bucknam and Bigelow, and their respective progeny are not relevant and are distinguishable from the instant case because they do not address the unlawful conversion of a Common Law action to Equity and the effect of this conversion on Due Process.  Again, this conversion of law is unlawful and voids jurisdiction.

42)  Both of these cases are not relevant and are distinguishable from the instant case because these case do not address that under both Common and Natural Law the government has no power to punish the innocent even in divorce and custody cases, see Baldwin v. Foster, 138 Mass. 449.  Custody and support are RECIPROCOL arrangement under Common Law.  Support obligations without custody is a punishment.  In both of the court cited cases, the husband had unlawfully committed some act and under strict rules of Common Law was the guilty party and therefore as previously practiced did not have the right to a trial SINCE THE INNOCENT PARTY IS, UNDER NATURAL AND COMMON LAW, end to compensation or remedy for a wrongful termination of marriage and subsequent support without a trial by jury.  Wherein the instant case the Defendant is the innocent party; whereas the Plaintiff is the guilty party in the instant case.

43)  Imposed child or spousal support obligations, lacking any reciprocal rights, was the Common Law punishment for wrongful acts.  The state can not use some Orwellian logic to re-define a punishment.

44)  Both of these cases are not relevant and are distinguishable from the instant case because they do not address the fact that ALL custody determination issues originate under Common Law and remedy was not defined under Equity.

45)   Furthermore, neither case cites addressed the Natural and Common Law right of married fathers to superior to the custody of their children, a right of property, which is protected under the social contract and by the state and Federal Constitution protections of property.

46)   Blackstone described the Laws of Nature and of Nature's God in a chapter in his Commentaries end, "Of the Nature of Laws in General." Interestingly:

“Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. And consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should, in all points, conform to his Maker's will.

    This will of his Maker is called the law of nature.

    This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity [happiness].

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.”

Common Law

47)  Initially adopted by the Massachusetts Bay Colony, Common Law TA \l "Massachusetts Bay Colony, Common Law" \s "Massachusetts Bay Colony, Common Law" \c 2  was subsequently, formally adopted, on June 15, 1692, by the Governor, Council and Representatives convened in General Assembly passed an act that continued “the local laws that stand in force till November the 10th, 1692.”  The text reads:

“That all the local laws respectively ordered and made by the late governour and company of the Massachusetts Bay and the late governour of New Plymouth, being not repugnant to the laws of England nor inconsistent with the present constitution and settlement by their majesties’ royal charter, do remain and continue in full force in the respective places for which they were made and used, until the tenth day of November next . . . “ Then on November 9, 1692 the General Assembly passed an act end, “An Act for the Reviving of an Act for Continuing of the Local Laws; and one Other Act for Sending our soldiers to the Relief of Neighbouring Provinces and Colonies.” TA \l "An Act for the Reviving of an Act for Continuing of the Local Laws; and one Other Act for Sending our soldiers to the Relief of Neighbouring Provinces and Colonies.\”" \s "An Act for the Reviving of an Act for Continuing of the Local Laws; and one Other Act for Sending our soldiers to the Relief of Neighbouring Provinces and Colonies.\"" \c 2   This act continued the effect of the June 15, 1692 act without any expiration: “ . . . and shall so continue until the general assembly shall take further order.”

48)  The Massachusetts Constitution adopted the Common Law by way of:

Chapter VI, Article VI TA \l "Massachusetts Constitution Chapter VI, Article VI" \s "Massachusetts Constitution Chapter VI, Article VI" \c 7 . “All the laws which have heretofore been adopted, used and approved in the Province, Colony or State of Massachusetts Bay, and usually practiced on in the courts of law, shall still remain and be in full force, until altered or repealed by the legislature; such parts only excepted as are repugnant to the rights and liberties contained in this constitution.”

49)  It is therefore a fact that the Massachusetts is a Common Law State.

50)  The Common Law is a Federally protects set of laws under Article IX of the Federal Constitution.

51)  Whereas, it is a fact, that “We the people” mandate and compel the Common Law, or as John Adams, secretary for the First Continental Congress and former Chief Justice of Massachusetts in 1775 and 1776, put it: “We the congress adopt the common law not as the law, but rather, as the law of the highest reason.”[1]  No state is allowed to aver or disregard the common law—as it is well settled that the Common Law of England will be in fact, the rule of decision within all the courts of this land and is a birthright of all citizens.

52)  Family rights predate both the US and State Constitutions.  All parental rights and family law are historically covered under English Common Law, which was adopted by the Continental Congress, later by the United States, and by the states, specifically this Commonwealth, under the articles of this Federal Republic.  There is no organic family law or parental rights authority within either the State or Federal Constitutions; furthermore, there is no organic authority in our Constitutional Republic that permits conversion of these rights.  Family rights do not ‘flow’ from the state but should be protected by the state (see Federalist Papers argument below).  Additionally, the US Supreme Court has repeatedly stated that these family rights fall under multiple protections of  the US Constitution.

53)  Oliver Wendell Holmes, Jr., also put forth in his book, “The Common Law”, the premise that the Common Law and Morality are coincident, giving additional weight to the maxim that ignorance of the law is no excuse.  At least two issues of concern for the Federal courts.  If this is moral connection to the Common Law is true then modification to the Common Law affects the moral fabric of society.  Since there is a Federal issue of separation of church (a moral authority) and state (a legal authority), according to that separation the state must have extremely limited right to change the Common Law and indirectly effect moral changes to society if we truly have separation of church and state.  Second, if this slippery slope of removing the Common Law in Family Law extends (or has already) to other areas of law within the Commonwealth, the citizens, for the sake of some new doctrine, will cease to have any Constitutional protections and the concise rule of law is at risk.  Also, since “ignorance of the law is no excuse” is a Common Law maxim then it holds no meaning outside a Common Law framework.

54)   The Common Law’s importance can be seen in Heydon's Case, 3 Co. Rep. 7 a, 76 Eng. Rep. 637 (Ex. 1584) TA \l "Heydon's Case, 3 Co. Rep. 7 a, 76 Eng. Rep. 637(Ex. 1584)" \s "Heydon's Case, 3 Co. Rep. 7 a, 76 Eng. Rep. 637(Ex. 1584)" \c 1    TA \l "Pierson, Et al. v. Ray Et al. (1967) 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288" \s "Pierson, Et al. v. Ray Et al. (1967) 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288" \c 1 Pierson, Et al. v. Ray Et al. (1967) 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288  where it was noted that “Congress of course acts in the context of existing common-law rules XE "common-law rules:Making of Statutues" , and in construing a statute a court considers the ‘common law’ before the making of the Act."

Common Law “Best Interest” Determination

55)  The follow chain of determination for custody under Common Law “Best Interest” of the child[ren][2] is based on case law and Common Law principles.  Such determination should be determined by the court in the following order:[3]

COMMON LAW ‘BEST INTERESTS’ OF THE CHILD “TEST” DECLINATION CHART XE "BEST INTERESTS OF THE CHILD \“TEST\” DECLINATION CHART"  XE "BEST INTERESTS OF THE CHILD \“TEST\” DECLINATION CHART:Declination of persons who have primary rights over state as parens patriae"

56)  John Locke, in his treatise's on Government and formation of the social compact theory, basically said there are two types of governments in the world: 1) in which the government owns the people, i.e., the people are subjects, and 2) in which the people owns the government, i.e., comprised of free and sovereign citizens.  The socialist "Best Interest" doctrine (below) holds that the state does not need to provide remedy when taking custody from a fit parent because the government owns its subjects and hence defines their rights; whereas under our Constitutional Republic and terms of our great social compact, intrusion into God given, Natural Law, or Constitutionally protected rights by the government must provide remedy unless a law or contract has been broken and some punishment is due.  Hence the fundamental difference between the Socialist and Common Law "Best Interest" models.

Socialist “Best Interest”

57)  The first instance of “No-Fault Divorce” was in Bolshevik, Leninist Russia circa 1918.  No-Fault divorce was designed to 1) destroy the family, and 2) increase control of the government over the citizens,

58)  Recall Lenin’s famous statement, “Destroy the family and you destroy society." In “Perestroika”, Mikhail Gorbachev said, "We have discovered that many of our problems -- in children's and young people's behavior, in our morals, culture and in production -- are partially caused by the weakening of family ties.

59)  The judiciary cites old cases such as Purinton v. Jamrock, 195 Mass. 187; 80 N.E. 802; (1907), in support of their self-imposed right to act in a child’s “Best Interest” in new cases, see Youmans v. Remos, SJC-07866, (1999) (“The welfare of the child is "the controlling consideration" in custody proceedings”).  NOT SO.  Instead, cases like Purinton took great pains to overcome the right of property before the state could act in the Common Law “Best Interest”.  This statement  from Youmans is a gross misrepresentation of Purinton and other case cites where the parent’s right of property first had to be overcome before the state could assert the subordinate doctrine of Parens Patriae.

60)  The standards of stare decisis in family law came to an abrupt and absolute end in 1974. The state has invalidated all family law precedents prior to circa 1974 by adopting current custody laws contrary to:

"To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; ", Federalist Papers #78

61)  Furthermore, it is fraud upon the court to overcome the parent's property right when the state makes the socialist “Best Interest”[8] determination.  In cases such as Purinton v. Jamrock, the state’s ability to make the Common Law “Best Interest” determination was only allowed when the parent(s) had a positive disqualifying event and the state had title to the custody; i.e., had acquired the right of property to the child(ren); i.e., the state in effect ‘owned’ the children. 

62)  The socialist “Best Interest” policy cannot be considered valid law because it disregards the parental property rights and tramples multiple Constitutionally guaranteed rights (defined under multiple US Supreme Court rulings).  There should be no confusion between the Common Law “Best Interest” determination and the Bolshevik/socialist “Best Interest” determination.

63)  The Bolshevik “Best Interest” religious[9] ideology was designed to destroy the family and increase state control over its subjects.

64)  The socialist “Best Interest” doctrine has no foundation in western law and in fact promotes the breakdown of society as designed by the Bolsheviks.  For example, two-thirds of all child abuse incidents are perpetrated by women, see below.  Plenty of statistics vouch the negative effect when a Father is not involved in their childrens’ lives.

65)  Here is but a small sample of the statistics that repudiate the effect of the state’s claim that the socialist “Best Interest” claims actually are in a child’s best interest:

a)      Fatherless children are twice as likely to drop out of school. --Source: U.S. Department of Health and Human Services. National Center for Health Statistics. Survey on Child Health. Washington, DC; GPO, 1993.

b)      63% of youth suicides are from fatherless homes. U. S. D.H.H.S. Bureau of the Census.

c)      85% of all children that exhibit behavioral disorders come from fatherless homes. Center for Disease Control

d)      80% of rapist motivated with displaced anger come from fatherless homes. Criminal Justice and Behavior, Vol. 14 p. 403-26

e)      71% of all high school dropouts come from fatherless homes. National Principals Association Report on the State of High Schools

f)         70% of juveniles in state operated institutions come from fatherless homes. U.S. Dept. of Justice, Special Report, Sept., 1988

g)       85% of all youths sitting in prisons grew up in a fatherless home, Fulton County Georgia Jail Populations and Texas Dept. of Corrections, 1992

h)      The U.S. Department of Health and Human Services states, "Fatherless children are at a dramatically greater risk of drug and alcohol abuse", U.S. Department of Health and Human Services. National Center for Health Statistics. Survey on Child Health. Washington, DC, 1993.

i)        Children who live apart from their fathers are 4.3 times more likely to smoke cigarettes as teenagers than children growing up with their fathers in the home. --Source: Stanton, Warren R., Tian P.S. Oci and Phil A. Silva. "Sociodemographic characteristics of Adolescent Smokers." The International Journal of the Addictions 7 (1994): 913-925.

j)        Children who are in the care of single mothers are: 33 times more likely to be seriously abused (so that they will require medical attention), and 73 times more likely to be killed, see "Marriage: The Safest Place for Women and Children", by Patrick F. Fagan and Kirk A. Johnson, Ph.D. Backgrounder #1535.

k)      The Heritage Foundation report "The Child Abuse Crisis: The Disintegration of Marriage, Family, and the American Community," May 15, 1997 notes that: "[due to] ... the disintegration of family and community ... America's infants and young children, about 2,000 of whom -- 6 per day -- die each year," in the following manner:

Total Children Killed Per Year    2,000

Killed by Mothers                       1,100

Killed   by        Stepfathers            250
Killed by Live-In Boyfriends          513
Killed by Biological Fathers           137

66)  These statistics support a Prima Facie argument that the socialist “Best Interest” is not in the true best interest of children or of society and is instead fulfilling the socialist design of destroying the family.

67)  Again the distinction between the socialist and Common Law “Best interest” must be kept in mind.  The state must address this prima facie argument of the effects of the socialist “Best Interest” doctrine or again violate Due Process.

Rights of Property

68)  It is in fact, the original reason for the existence of the Commonwealth of Massachusetts, was to protect both private property and the Natural Law (and hence the Common Law rights of its citizens).

69)  Each and every “right of property” is protected as a right to the Common Law right to a trial by a jury of one’s peers under the Federal and state Constitution.  In Massachusetts, only in the case of marriage, when strict Common and Natural Law rules defined superior title to the custody belonged to a married father and the punishment of the guilty can the state circumvent the right to trial by a jury of one’s peers.  But again, the state no longer practices the methods which would allow for an exception.

70)  Regarding children as a “right of property” and natural law right of married fathers to superior title to the custody of their children, see at least Commonwealth v. Briggs, 33 Mass. (16 Pick.) 203, Purinton v. Jamrock, 195 Mass. 187; 80 N.E. 802, In re Campbell, 130 Cal. 380; 62 P. 613; 1900 Cal., Booth v. Booth, (1945) 69 Cal. App. 2d 496, 159 P.2d 93, People V. Olmstead, 27 Barb. 9; Henson v. Walts, 40 Ind. 170; Cole v. Cole, 23 Iowa, 433; Johnson v. Terry, 34 Conn. 259; McBride v. McBride, 1 Bush, 15; State v. Stigall, 22 N.J. L 286; Verser v. Ford, 37 Ark. 27; Miller v. Wallace, 71 Ga 479; Rex v. Greenhill, 6 Nev & M. 244; 4 Ad. & E. 624; Hakewill’s Case, 22 Eng. L. & Eq. 395, 1 Bla Conn. 452; the Etna, 1 Ware, 462, 465, 2 Story's Eq., secs. 1343-1350; 2 Kent's Com. 193; 1 Bl. Com. 453; Jenness v. Emerson, 15 N. H. 486; Huntoon v. Hazelton, 20 N. H. 389, May v. Anderson, 345 U.S. 528; 73 S. Ct. 840; 97 L. Ed. 1221; (1953), Winter v. Director of The Department of Public Welfare of Baltimore City, 217 Md. 391; 143 A.2d 81; 1958 Md., State v. Richardson, 40 NH 272,, Goshkarian vs. Fairfield County Temporary Home, 110 Conn. 463; 148 A. 379; 1930 Conn., DeMannevill v. DeManneville (1804), Rex v. Demanneville, 102 Eng Rep 1054 (KB 1804).

71)  Parents held title to their children in 1760 (the date Thomas Jefferson said our laws diverged from English laws), 1776 (the Declaration of Independence), 1780 (the signing of the state Constitution), and 1789 (the signing of the Federal Constitution).  Children were, per the Common Law, a right of property, see Purinton v. Jamrock, 195 Mass. 187; 80 N.E. 802; (1907).  The rights that existed at the signing of the Constitution remain rights today; hence children are a right of property today.

72)  It is a fact that the Defendant’s right to life, liberty, and property (herein includes children), are absolute and unalienable, see Miranda v. Arizona, 384 US 436, 491 ("Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.").

73)  The state’s socialist “Best Interest” determination destroys multiple rights without cause or remedy and therefore is Unconstitutional, see Miranda above and in Marbury v. Madison, 1 Cranch 137, 170 (1803). 

74)  Furthermore, if 1) state remedies are inadequate or fail to provide a forum for relief; or 2) when a state claim for relief would be futile, then the resultant loss of this right of property and other Federal Constitutional rights as defined by the US Supreme Court (and other Federal rulings) and similar rights secured under the state Constitution, this action is immediately removable to Federal Court.

75)  The state has not shown how it properly modified this right of property and enacted statutes that nullified the Natural Law; a necessary part of the great social compact.  If the rights of property are no longer protected by the state and the Natural Law based social compact is no longer valid the state Constitution is also void.

76)  Since no "just compensation" was provided for the loss of superior title to the custody of my son at any time, the title to the custody decision, and all subsequent actions, are Unconstitutional and void in their first instance. Lacking "just compensation" for the takings of property, the entire fascist, Bolshevik 'custody' scheme is Unconstitutional.

Invidious Discrimination

77)  Married men and unmarried women started out with the exact same rights to their children; i.e., protection under strict rights of property for as long as there was no positive disqualifying event.  Married men have now lost all property rights whereas unmarried women have gained additional rights (e.g., support from the father).  This unequal treatment of two classes of person, based solely on gender, shows a pattern, by the state, of Invidious Gender Discrimination and a clear violation of Due Process and Equal Protection (under art. 10 of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts and the Federal Constitution) with regard to title to the custody of children.  This Invidious Gender Discrimination and unequal treatment is in regards to the protection of a right of property, done through a conversion of law, done to enrich the state, specifically to provide the judiciary with an independent revenue stream.  See Yick Wo v. Hopkins, 118 U.S. 356; 6 S. Ct. 1064 (1886) and Frontieroe et vir v. Richardson, 411 U.S. 677; 93 S. Ct. 1764 (1973) and Baird v. Attorney General, 371 Mass. 741; 360 N.E.2d 288 (1977).

78)  The Plaintiff has two children from a previous marriage.  She receives child support for these two children.  When we divorced the amount of child support she was receiving from her first ex-husband was one hundred and seventy-five dollars a week for the two children.  I was required to pay three hundred and sixty-five dollars for one child.  This is a violation of law — and in excess of fundamental legal requirements to which I have not consented.  Hence I was paying more than FOUR TIMES the amount, on a per child basis, for my son living in the same household, enjoying the same standard of living as the other two children.  My son was clearly not the recipient of the full amount of the child support I was forced to pay.  This Invidious BIRTH ORDER BASED Discrimination is not defensible, and given the differing amounts, that the differing ‘child support’ awards do not meet the Federally mandated NECESSITIES requirement.  Again, this Invidious Discrimination is a direct violation of Due Process and the Federal Equal Protection clause.

79)  This Invidious ‘Birth Order’ Based Discrimination extends to the Defendant’s daughter, (Name), was born (DATE). The mother of this daughter and I are married.   Massachusetts forces me to discriminate between my two children and my children are treated unequally in direct violation of law[10].  In theory, my daughter is not due any less Constitutional protections because of the order of her birth; however in the eyes of the Commonwealth she is not afforded the same protections enjoyed by my son specifically because of the order of their births; this clearly violates the Equal Protection clause since different children from the same parent are treated differently solely based on birth order.  Again, a violation of Due Process and Equal Protection.

80)  "Facially discriminatory" statutes are clearly a violation of the Equal Protection Clause[11]. Massachusetts General Laws Chapter 273 are de facto blatantly gender biased[12]. This court should consider the gender biased laws, giving greater than 93% sole custody to females, excessive child support amounts, the political drive to maximize federal incentives, and the deprivation of rights the socialist “Best Interest” doctrine is “Facially Discriminatory” and has resulted in the injury to a single class of individuals[13].  The facts should prove to the court that male litigants are not provided Equal Protection or Due Process in Massachusetts’ courts.  Instead there is a palpable gender bias in all proceedings.

81)  Furthermore, divorced fathers are also treated as second-class citizens with respect to starting "second families" because of the financial burden of current custody law places on them thereby depriving men of Constitutionally guaranteed rights – under the US Constitution as “pursuit of happiness” and “liberty interests” - whereas mothers are financially rewarded by the Commonwealth for successive, failed relationships which produce children.  Invidious Gender based discrimination interferes with the quality of one gender’s life violates the Due Process and Federal Equal Protection clause.

82)  The marriage contract, when violated, remedy is only provided to one gender.  This is yet another example of Invidious Discrimination perpetrated by the state under color of law, color of authority in order to enrich various actors and the state.

Compelling Interest

83)  In addition, the Defendant asserts that the Commonwealth’s Income Based child support statutes impermissibly infringe the Privacy Interest right under the 14th Amendment of the Federal Constitution.  They in fact, remove all rights of fatherhood for independent self-determination, as required by all free governments.

84)  The Defendant asserts that how much money a parent spends for the care and maintenance of his or her child is a parenting decision and thus is a Constitutionally guaranteed fundamental right. The State government under Common and Natural Law is not permitted to intrude upon this fundamental right without proof of demonstrable harm to the child. 

85)  Corrective or punitive child support can only be done by showing a profound POSITIVE DISQUALIFICATION of some wrong-doing which “shocks the conscience” of the community, which then invokes the doctrine of parens patriae 1.) Reluctantly and 2.) as a last resort to 3.) save the child[ren].  No such manifest threshold requirement has been met by the Commonwealth of Massachusetts, whereas, it is factual, that they have no jurisdiction to make any claim against me, whatsoever.  By mandating child support based on combined parental income, the Commonwealth exceeds the constitutionally permitted right of the State to intrude in the Federal Right to Privacy of a parent in the Privacy Protected Zone of Parenting.  The Commonwealth of Massachusetts has cogently, and knowingly, with premeditation, removed all rights to individual self-determination in this matter which is my fundamental right as a Father.  Massachusetts mandates that a divorced parent must be forced to spend an egregious percentage of their income on his or her children; however the Commonwealth does not mandate that a married parent spends a percentage of his income for his child.  It is a fact, that under law; the father is only liable for the necessities of the child, and no more.   This difference between married and unmarried fathers violates equal Protection and hence Due Process.

86)  Parents are constitutionally entitled to be free of government intrusion in the care and maintenance of their children unless there is a proven harm to said children.  It is a fact, that there has been none attributed to the Defendant in this matter.

87)  Again, any State statute to which the Federal Right to Privacy attaches is presumed unconstitutional unless the State proves a compelling interest applied in the least intrusive manner, i.e. strict scrutiny. The Plaintiff asserts that the amount of spending by a parent for his or her child, i.e. child support, is a parenting decision. There is only a minimum amount of child support that the State can justify to prevent harm to a child. Any amount over that minimum is unconstitutional because it intrudes in the Right to Privacy of Parenting and strips property rights from the parent. Any amount over the minimum amount to prevent harm to the child represents the State substituting its judgment for the parent’s.

88)  More importantly, the challenged statutes are enforced against the parent without the State ever determining if any harm has befallen the children related to the parent’s spending for them.

89)  The standard for a compelling State interest to justify State intrusion in parental decisions is not the socialist “Best Interest of a child” but prevention of demonstrable harm to the child.

90)  The Plaintiff asserts by right and perfect right that the existing income based child support guidelines in excess of the minimal amount needed to prevent harm to the child represent State intrusion in the Privacy Protected zone of care and maintenance, i.e. spending, i.e. child support, i.e. self-determination i.e. liberty interest, etc., which is a parenting decision. As such, the Commonwealth child support statutes based on combined parental income are in fact, ultra vires and unconstitutional. The Commonwealth lacks the constitutional authority to mandate spending for a child based on income, rather than adhering to the law which requires a child be supported only for the necessaries.

Remedy

91)  Marbury v. Madison, 1 Cranch 137, 170 (1803) clearly states that for every wrong or deprivation of right a remedy must be available if the US is to maintain the high appellation of being a nation of laws.

92)  The Defendant specifically complains on matters which go to related federal questions, such as federal criminal jurisdiction within the several States of the Union, and the denial or the inability to enforce, in the courts of a State, one or more rights under any law providing for the equal rights of citizens of the United States, or of all persons within the jurisdiction thereof, to-wit:

93)  The Defendant complains of various systematic and premeditated deprivations of fundamental Rights guaranteed by the U.S. Constitution, by the Constitution of the Commonwealth of Massachusetts, as lawfully amended (hereinafter "Massachusetts Constitution"), and by federal law, and which deprivations are criminal violations of 18 U.S.C. §§ 241 and 242. See also 28 U.S.C. § 1652.

94)  These violations of Constitutional rights without any law or contract being broken requires the state to provide remedy

95)  That the state does not provide “just compensation” for the loss of a property right is a violation of Due Process.

Constitutional Rights

96)  Courts must not only place the Constitution higher than the laws passed by the legislature, they must also place the intentions of the people ahead of the intentions of their representatives.   Meaning that the recent referendum on joint child custody has significant weight in court even if the legislature does not act:

"There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.", Federalist Papers #78

97)  The importance of property in a Constitutional Republic per Billings v. Hall (1857), 7 C. and many other cites as - "Right of protecting property, declared inalienable by constitution, is not mere right to protect it by individual force, but right to protect it by law of land, and force of body politic."

98)  As noted in Coppage v. State of Kansas, 236 U.S. 1; 35 S. Ct. 240; 59 L. Ed. 441 (1915)  “The Fourteenth Amendment recognizes "liberty" and "property" as co-existent human rights and debars the States from any unwarranted interference with either.”

99)  The US Supreme Court has stated that the U.S. Constitution protects the parent/child relationship by at least the 1st, 4th, 5th, 8^th, 9th, 10th, and 14th Amendments, and arguably also under various sections of the Preamble to the U.S. Constitution, to include liberty and property interests.

100)          US Federal Cases that enumerate these rights include no less than: Meyer v Nebraska, 262 US 390 (1923), Pierce v Society of Sisters, 268 US 510 (1925), Prince v Massachusetts, 321 US 158 (1944), Griswold v Connecticut, 381 US 479 (1965), Loving v Virginia, 388 US 1 (1967), Wisconsin v Yoder, 406 US 205 (1972), Stanley v Illinois, 405 US 645 (1972), Cleveland Board of Education v La Fleur, 414 US 632 (1974), Moore v East Cleveland, 431 US 494 (1977), Smith v Organization of Foster Care Families, 431 US 816 (1977), Quilloin v Walcott, 434 US 246 (1978), Lassiter v Department of Social Services, 452 US 18 (1981), Santosky v Kramer, 455 US 745 (1982), M. L. B. v. S. L. J., ___ US ___, 117 S. Ct. 555 (1996), and Troxel v. Granville, 527 U.S. 1069 (1999).

Father’s Rights

101)          In Booth v. Booth, (1945) 69 Cal. App. 2d 496, 159 P.2d 93, TA \l "Booth v. Booth, (1945) 69 Cal. App. 2d 496, 159 P.2d 93" \s "Booth v. Booth, (1945) 69 Cal. App. 2d 496, 159 P.2d 93" \c 1  this right of property is clear - “The philosophy of all these cases is based upon the early rule of In re Campbell, 130 Cal. 380 [62 P. 613], that the right of a parent to the use of a minor child is a right of property of which a parent cannot be deprived unless the court finds that he or she is "unfit."

102)          Comparing Roman and Common Law: “The ancient Roman law held children to be the property of the Father, and placed them, in relation to him, in the category of things, instead of that of persons; and he had over them the power of life and death; See 1 Bla Conn. 452; the Etna, 1 Ware, 462, 465.  By the common law, the father the father has a paramount right to the custody and control of his infant children, upon the principle that he is in duty bound by the law of nature as well as of society, to maintain, protect, and educate them; People v. Olmstead, 27 Barb. 9; Henson v. Walts, 40 Ind. 170; Cole v. Cole, 23 Iowa, 433; Johnson v. Terry, 34 Conn. 259; McBride v. McBride, 1 Bush, 15; State v. Stigall, 22 N.J. L 286; Verser v. Ford, 37 Ark. 27; Miller v. Wallace, 71 Ga 479; Rex v. Greenhill, 6 Nev & M. 244; 4 Ad. & E. 624; Hakewill’s Case, 22 Eng. L. & Eq. 395.

103)          And again: “It is a well settled doctrine of the common law, that the father is entitled to the custody of his minor children, as against the mother and every body else; that he is bound for their maintenance and nurture, and has the corresponding right to their obedience and their services. 2 Story's Eq., secs. 1343-1350; 2 Kent's Com. 193; 1 Bl. Com. 453; Jenness v. Emerson, 15 N. H. 486; Huntoon v. Hazelton, 20 N. H. 389. By statute of 12 Car. 2, ch. 24  State v. Richardson, 40 NH 272.

104)           In the Massachusetts case, Commonwealth v. Briggs, 33 Mass. (16 Pick.) 203, it was again noted that “In general, as the Father is by law clearly entitled to the custody of his child, the court will so far interfere as to issue the writ of Habeas Corpus and inquire into the circumstances of the case, in order to prevent a party entitled to the custody of a child from seeking it by force or stratagem.  And the court will feel bound to restore the custody to the father, where the law has placed it, unless in a clear and strong case of unfitness on his part to have such custody. “

105)          In the case of Purinton v. Jamrock, 195 Mass. 187; 80 N.E. 802; (1907), the mother had given the Commonwealth custody of the child six years previously and had multiple opportunities to regain custody during that time but did not act. This Catholic mother filed a motion when the Protestant foster parents petitioned to adopt the child.  The court took time to discuss the parental ‘rights of property’ and went to great detail noting how the mother had forfeited these rights and that under these circumstances the state could act “in the [Common Law] best interest” of the child.  The practice of parens patriae had been limited to such case where the state either had custody of the child or had rescued the child from abusive situations.

106)          In Mercein v. Barry, 25 Wend. 64; 1840, the three different courts iterated between two different positions.  The initial court decision was based on the “tender years doctrine”; then being removed to the state Supreme Court, that court found according to the Common Law fiat that “the father has a paramount right to the custody, which no court is at liberty to disregard.”  This was then reversed in the Court of Errors, which expressed discomfort with the notion that the father “ … was entitled to the entire and absolute control and custody of the child, and to exclude from any share in that control and custody the mother of that child.” Ultimately the case was decided the case based on Unconstitutional “tender years doctrine.”

107)          Furthermore, since said unlawful taking under color of law and color of authority results in Federal remuneration and is done to limit public welfare roles, creating a net revenue increase for the state, the state’s actions invoke R.I.C.O. when depriving a fit parent of their Common Law property.

108)          Action under law should be held under law and not transfer to courts of equity.  For instance, the  Judiciary Act of 1789, An Act to establish the Judicial Courts of the United States , Sec. 16. “And be it further enacted, That suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate and complete remedy may be had at law.”

109)          Common Law provided a complete remedy AT LAW for custody disputes, i.e., a very strict line of succession for the “title to the custody” of Common Law property.

Fraud

110)          I have stated in state filings that the relationship between plaintiff and myself was induced by fraud.  This fraud was driven by the state gender biased custody determination.  This fraud resulted in a contract, i.e., marriage.  Both of these issues fall under the right to a trial by jury.

111)          The Plaintiffs knew well the state’s bias in custody matters because of both her upbringing and her first divorce.

112)          The conversions under law, done to enrich the state and deprive father’s of Constitutional rights, to include the right of property, is fraud done under color of law, color of authority to enrich various state and independent actors.

Coercion

113)          Additionally the court routinely forces Fathers to accept its unconstitutional agreements by threatening Fathers with little or no visitation time.  As an example, Judge Ginsberg told me in his chambers during a January of 2000 court date that I had better accept the existing agreement, a near visitation 50/50 split, or he would reduce my ‘visitation’ to the minimum mandated by the Commonwealth or less.

Abuse

114)          During the initial divorce, the GAL said “at least there are no broken bones.”  The GAL also ignored the mother and child sleeping and showering together, my ex-wife attacking me with a 13 inch chef knife, and the emotional stress inflicted by my wife upon myself which resulted in specific health concerns.

115)          Jonathan has suffered while under the Plaintiff’s care has been the subject of a GAL investigation, monitoring by the Westford police department and by the pediatrician’s office and a professional psychologist.

116)          During the first divorce proceedings the GAL regarded the biting and hitting of plaintiff’s son by his older half siblings in context by stating “it’s not like there are any broken bones”.  One has to question whether the standard is minimum thresholds applied to the Mother or “best interest” or the child.  The GAL also ignored the defendant’s showering and sleeping with plaintiff’s son when he was 5, 6, and 7.  Jonathan still sleeps with the Plaintiff.

Right to a Trial by Jury

117)          Above, your Defendant has put forth the argument that custody was and should be now a Common Law determination and thus a trial by jury is the only mechanism available under current rules of law.

118)          I’ve further alleged abuse of Jonathan.  These facts should be determined by a jury.

119)          I have made monetary claims and called for punitive damages and other legal relief, action which a protected under the right to a trial by jury.

120)          Gender based discrimination and fraud have connections to common-law tort and rights to jury trials.  The Federal equal rights statute, 42 U.S.C. § 1981 (Equal rights under the law), also has been interpreted to confer a right to a jury trial.  See  Laskaris v. Thornburgh, 733 F.2d 260, 263 (3d Cir.), cert. denied,  469 U.S. 886, 105 S.Ct. 260, 83 L.Ed.2d 196 (1984) ("A party seeking compensatory and punitive damages or other legal relief under 42 U.S.C.§ 1981 has a right to a jury trial").

121)          Since even the hint or appearance of impartial proceedings is always an issue; and whereas a panel composed of judges determine the child support formula; and these same judges preside custody proceedings; sit in judgement over the collection of these ‘obligations’; and these same courts benefit from the collection of said monies; only a trial by jury provides the impartial forum required by Due Process.

Punishment

122)          Both the Common Law and US Constitution prohibit the state from unwarranted punishment.  ‘Child Support’, per the socialist Wisconsin Model, requires an arbitrary decision to punish one parent during divorce by imposing a non-quid pro quo obligation; this arbitrarily imposed obligation subsequently impacts that parents ability to secure the blessings of liberty and happiness and subject him to arrest, fines, loss of licenses, and other criminal and civil penalties.  The Common Law only allowed the punishment of the guilty party.

123)          The Constitution, Common nor Natural Law never ever gave permission to any of our government's to take over marriage, our families, or our children. A marriage license is not government permission to marry; the marriage contract existed long before our government.  The right of granting a divorce with or without cause was never a state right but the right of the individual to seek redress of a wrong through the power of the body politic. Providing remedy without identifying a wrong directly contradicts the Constitution, Common and Natural Law.  Separating a fit parent from their child violates multiple rights, to include the natural rights identified in the Preamble, for which remedy must be provided.  Government cannot make you or me pay an 'obligation' unless it is providing a remedy for a wrong.

124)          The right of the innocent under Common Law never allows for the right of the state to impose ideologies.  Individual rights ‘trump’ any attempted imposition of religious ideology.

125)          A child support order is in essence both conviction and punishment for the crime of not supporting one's children.  In Baldwin v. Foster, 138 Mass. 449, Justice Holmes struck down a jury decision to award child support because the father had been the innocent party in the divorce.

126)          Punishment is the deprivation or withholding of any right or benefit.  Under the Common Law: nulla poena sine crimen – No punishment except for a crime; Nulla poena sine leges – No punishment outside the law.

127)          Remedy for the deprivation of Constitutional rights requires compensation that leaves the deprived individual no poorer than without that right.  The SCOTUS has clearly stated that depriving a person of the rights of parenthood violates multiple Constitutional rights yet the state does not provide remedy, only additional punishments.

128)          Under Common Law the innocent party was never punished or deprived of benefits.  For example, under the socialist “Best Interest” doctrine, a man can come home, find his wife ‘with’ another man or woman or just waiting for him with divorce papers.  This man will be instantly removed from the residence by force, i.e., by police, immediately become a visitor in his child(ren)’s lives, after the divorce or separation decree, will be designated a non-custodial parent, forced to surrender the house to his wife, split other real property and assets, forced to pay child support and perhaps alimony, provided limited visitation to his children, and left with not enough money to provide for a dwelling large enough to have bedrooms for his children to visit overnight.  Also, he will find himself subject to the threat of prison, license suspension, garnishment of wages, restriction on where he can move, and even loose contact with his children because the state fails to enforce the visitation schedule.  These are all punishments, yet he was the innocent party in this. Oliver Wendell Holmes, Jr. in his book on the Common Law noted the following: “…punishment following wrong-doing is axiomatic, and is instinctively recognized by unperverted minds.[14]”   The wrong-doing under Common Law was in the unilateral breaking of the marriage contract and/or adultery yet under the socialist “Best Interest” doctrine this behavior is rewarded based on gender.  As proof, there should be no doubt in anyone’s mind that if the gender roles were reversed in the initial act, the gender-based outcome would have been the same.  This socialist “Best Interest” doctrine discriminates based on gender, punishes the innocent, and makes the court party to fraud by depriving an innocent person of children, property, assets, and future income.

129)          Imposed obligations, without any reciprocal rights, is punishment.  The state can not use some Orwellian logic to re-define a punishment.

130)          The Eight Amendment to the US Constitution prohibits cruel and unusual punishments.

131)          It is a fact that it was unknown in the Common Law to remove a fit Father from his children; therefore, the state is imposing a “cruel and unusual punishment” when it imposes this punishment.  Imposing obligations without reciprocal rights is also a cruel and unusual punishment.  A violation of the Federal Constitution.

Due Process

132)          The cornerstone of Due Process is fundamental fairness.

133)          Multiple violation of Common Law Due Process are enumerated throughout this pleading, at least: conversion from at law decisions to equity, failure to answer jurisdictional challenges, failure to address defaults, failure to address the Bill of Particulars, failure to provide remedy for arbitrary Constitutional violations, failure to provide “just compensation” when the state takes property, failure to provide an impartial hearing, and failure to provide a trial by jury.

134)          Any violation of Due Process voids the court’s jurisdiction.

Right to Privacy

135)           The United States Constitution’s Fourteenth Amendment contains a recognized Right to Privacy. This fundamental Right to Privacy encompasses the Privacy Protected Zone of Parenting.

136)          The Commonwealth’s Income Based Child Support Domestic Relations Orders impermissibly infringe the fundamental Federal Right to Privacy, in the Privacy Protected Zone of Parenting.

137)           In addition, the Defendant asserts that the Commonwealth’s Income Based child support statutes impermissibly infringe the Property Interest right under the 14th Amendment of the Federal Constitution.

138)           The state financial form divorced parents are forced to fill out not only demands accounting of very detailed weekly expenditures, but it even asks what kind of energy you are using to heat your dwelling with.

139)           The Child Support formula do not show any relation to the Federal necessities requirements.  Instead they require a linear proportion of a (male) parent’s income.  Several studies have conclusively shown that with increased income come increased ‘free’ spending monies but that the basic necessities do not increase with income; necessities remain relatively fixed.  Also note, married parents are not required to spend a set proportion of their income on their children.  Specifically in this case, the state does not mandate what I spend on my daughter.

140)          Married or ‘intact families’ do not have anywhere near the same level of government intrusion.  Federal Equal Protection requires that married and divorced parents be treated the same by the state.

141)          If, as an example, the Plaintiff were to pass away right now, the Defendant would instantly be ‘given custody’ and no longer have to deal with the same level of government intrusion on the expenditures for my children.  Also again note that the state does not mandate how much I have to spend on my daughter.

142)           Federal and Common Law mandates necessities only.  To wit, the Defendant, has two children from a previous marriage.  She receives child support for these two children.  When we divorced the amount of child support she was receiving from her first ex-husband was (tax free) one hundred and seventy-five dollars a week for the two children.  I was required to pay (tax free) three hundred and sixty-five dollars for one child.  This is a violation of Federal law — and in excess of fundamental legal requirements.  Hence I was paying more than FOUR TIMES the amount, on a per child basis, for my son living in the same household, enjoying the same standard of living as the other two children.  Add to this that Jonathan spends more time with the Defendant (approx. half-time) than the other two children spend with their father.  Jonathan was clearly not the recipient of the full amount of the child support the Defendant is forced to pay.  Nor is it defensible, given the differing amounts, that the ‘child support’ meets the Federally mandated necessities requirement.  The true ‘Child Support’ here is that Jonathan is with me approximately half time, has his own room, enjoys the company of his sister, the Defendant helps coach Jonathan’s sports teams, help with his homework, encourage his endeavors, and I love and care for him.

Contracts

143)          The Commonwealth mandates multiple unconscionable contracts and violates multiple contractual obligations secured under “Obligations of Contracts” under Article I, Section 10, of the U.S. Constitution.  For example: the right of a fit parent to contract with and for his child(ren), Child Support – a concept foreign to the Common Law – is a ‘Special Obligation’ that is void of any quid pro quo or reciprocal arrangement, the state version of the marriage contract now provides incentives to women to unilaterally break and receive tax-free income in excess of the amounts needed for the support of the child(ren).

144)          The socialist "Best Interest" doctrine violates freedom to contract by predetermining one innocent person will suffer punishment should either party, usually female, decides to unilaterally terminate the contract.

145)          The marriage contract, when violated, called for an innocent party to claim remedy.  Today the state impairs the obligation of this contract by inserting itself into the proceedings by claiming superior title to the children and provides remedy to one gender only.

Vagueness

146)           The vagueness of the socialist “Best Interest” doctrine includes results in the abuse of children.  For example, the abuse that Jonathan has suffered while under your Plaintiff’s care has been the subject of a GAL investigation, monitoring by the Westford police department and by the pediatrician’s office and a professional psychologist.  While under some versions of Common Law a parent could be deprived of custody under continued abuse, the current system only makes custody changes, away from females, following substantial criminal behavior toward the child.  To wit, the Westford police has warned the Plaintiff “someone is going to jail” if the pattern of abuse keeps up against Jonathan and by the infamous statement by the GAL (a lawyer) “at least there are no broken bones.” Federal Equal Protection, Due Process, and slippery slope argument in the behavior of the laws with respect to the definition of fitness of a parent which is overtly intertwined with gender biases in the courts.

147)          Vagueness violates the Federally protected rights of Due Process.  Your Defendant’s state court pleadings have challenged the vagueness[15] of the socialist “Best Interest” doctrine in part by repeatedly providing statistics from government sources and reputable institutes that show fatherless children and children from single-female headed household are more likely to commit crimes, end up in jail, become pregnant as teens, have emotional disorders, abuse drugs and alcohol, more likely to divorced themselves, and that mothers are (eight-times) more likely to kill their children than fathers.  The state has failed to address these issues or demonstrate how better than 93% custody awards to women under the socialist “Best Interest” doctrine manifests itself in a child’s life.  The lack of concise rules to be followed by the judge is in direct contrast to the rules under Common Law, violates the concise rule of law, is a violation of Due Process, and because of the high sole custody rates to female litigants is proof that these laws discriminate based on gender (discussed below), is a violation of Equal Protection.

148)          The vagueness[16] of the socialist “Best Interest” is 1) contrary to established law, and 2) used to relegate men to the status of second-class citizens[17].  Again, against the Common Law, the socialist ‘Best Interest” doctrine is used by the court to justify fraud.

Immunity

149)          Among the first written laws of this land was the Massachusetts Body of Liberties (1641).   The founders of Massachusetts clearly provided for the punishment of judges in the Body of Liberties (“Every church hath liberty to deal with any magistrate, Deputy of Court or other officer what so ever that is a member in a church way in case of apparent and just offence given in their places, so it be done with due observance and respect.”).  The people clearly had no intention of judicial immunity and clearly required judges to be accountable to the law and the communities.

150)          These beliefs, in the right to punish judges, originates under English law where the King, and later also Parliament, could punish judges.  For example, the Star Chamber case Floyd and Barker, Floyd, 12 Co., 77 Eng.Rep. (1607) clearly shows that there is no valid claim of Judicial Immunity and that judges could not judge other judges in keeping with Common Law.  At the end of Floyd, it is noted that the judges were indeed punished, see Floyd, 12 Co. at 1308, 77 Eng.Rep. at 25 (“Note; Thomas Weyland, Chief Justice of the Common Bench, Sir Ralph Hengham, Justice of the King's Bench; and the other justices, were accused of bribery and  corruption; and their causes were determined in Parliament, where some were banished, and some were fined and imprisoned.”).  It should be noted that the Star Chamber was one of the most corrupt courts in the history, even rivaling today’s Family Courts.  Even this legendarily corrupt Star Chamber did not attempt to fabricate the concept of judicial immunity.

151)          The judges could not judge other judges because it would have violated the Common Law maxim against one being a judge in one’s own case.   Judges could no more judge themselves or their fellow judges because of this Common Law maxim, “One cannot be a judge in one’s own cause.”

152)          Since the King had the right to punish judges, as was pointed out in Floyd, see Floyd, 12 Co. at 1305, 77 Eng.Rep. at 5, the King, as the ruler by Divine Right and hence the source of all power of the government, including being Chief Magistrate, could kill, banish, imprison, fine, or impose any other punishments on his judges, since their actions effected the king’s honor; hence judge were immune for other judge’s judgements but not immune from the king.  We the people, being the source of power, have, as in the Massachusetts Body of Liberties, the right to judge judges because their actions impact our honor.

153)          Furthermore the King himself was subject to the law (at the Common Law, “The King is the King because he obeys the law”).  There is no historical evidence supporting the concept of Common Law immunity for judges or government officials; ultimately, everyone had to answer to the king, and the king had to answer to the law.  Marbury v. Madison also supports this position stating that the king himself was not immune from suites and proves that there was no immunity of government officials in any branch of government if the king himself was answerable to the laws.

154)          The MA Constitution, in the Declaration of Rights, simply restated the prohibition against judicial immunity in a broader context of all government actors. Specifically, Article 5 and 6 of the Massachusetts Declaration of Rights, which had been ratified prior to the Federal Constitution, constitutionally guaranteed to the people accountability and prohibited anyone from special privileges, which precluded the grant of immunity to all three branches of government, the legislative, executive, and the judiciary.  In fact, Massachusetts has waived all claims to immunity in its Constitution

155)          The first Massachusetts judicial-immunity case to be heard in a federal court was Randall v. Bingham, 74 U.S. (7 Wall.) 523 (1868). The Supreme Court, in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871), ignored the Constitution, Common Law, and acted as a legislative body in violation of the separation of powers. Given those conditions of birth, the doctrine of judicial immunity and its progeny, the derivative "quasi" immunities, are unconstitutional and may not be applied not only to this case but to any other.

156)          Under the Lockean social compact theory, no government official is provided any special rights since the natural rights of man make all men equal (in God’s eyes), even in the service of government.  Given the reciprocal relationship between a free and sovereign citizen, when a government actor violates a sovereign citizen’s rights under color of law, color of authority, the social compact is void thereby denying any right to office during that act.  This reciprocal relationship between the government and the people is often ignored in order to provide immunity for treasonist behavior.  Also, if all people are equal within a social compact, then all are responsible to the law.

157)          Furthermore, Locke (who generously used scripture to justify his theories) broke governments into two basic forms: 1) governments that ‘own’ its citizens/subjects, e.g., a monarchy, and 2) where the government is ‘owned’ by the free and sovereign citizens, e.g., The United States of America.  We the People own this natural law based government; government is the servant of the people.  Since the servant can not have any privileges beyond that of the master, see Matthew 24:10 (A student is not above his teacher, nor a servant above his master.), and citizens do not have immunity then their servants, the officers of government, cannot have immunity.

158)          Federal judicial immunity has no basis in Common Law but was illegally manufactured via Judicial fiat in direct contradiction to Common Law; i.e., prohibition against being a judge in one’s own cause.  Hence even at the Federal Level, immunity is illegal.

159)          Eleventh Amendment Enhancement by Judicial Fiat: in Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504 (1890), the court enhanced the Eleventh Amendment by judicial fiat holding that a citizen cannot sue his/her own State in federal court.

160)          So the Eleventh Amendment ended up having two prongs. One a legitimate prong, properly ratified, and a second prong, not properly proposed and ratified in accordance with Art. 5 of the United States Constitution, and, instead, imposed by judicial fiat; therefore, any attempt to impose the Federal statute over the state Constitution constitutes a violation of state sovereignty.

161)          Where the Eleventh Amendment has two prongs and it is the second, which was not duly enacted by the Legislature and upon which the court relied, the Eleventh Amendment can neither override the Commonwealth's constitutional guarantee of accountability nor bestow sovereign immunity on the Commonwealth of Massachusetts or any agency has no valid claim to immunity ab initio.

162)          Where Congress enacted 42 U.S.C. 1983 to enforce provisions of the Fourteenth Amendment, and Massachusetts has explicitly consented to suit at all times, the Fourteenth Amendment effectively overrides the judicially derived prong of the Eleventh Amendment.

163)          Where judicial immunity, like the second prong of the Eleventh Amendment, arose from judicial fiat, Article 6 of the U.S. Constitution may not be invoked to make the doctrine of judicial immunity reign supreme over Art. 5 and 6 of the Declaration of Rights, Massachusetts Constitution. Likewise, the derivative quasijudicial and qualified immunities may also not reign supreme over the command of accountability in Art. 5 and 6 of the Declaration of Rights, Massachusetts Constitution. This and similar rules are also contrary to the Common Law requirement that no one (i.e., the judiciary) could be a judge in its own cause (i.e., judicial immunity).

164)          Judges are officers of the court.  If they commit fraud and treason upon the court they must answer for it in their own person.  When a judge violates the terms of the social compact, that judge is no longer sitting as a judge.  His office and position become void by the act of violating or going beyond the terms of the contract.  Hence without a contract, the 'judge' is acting in his own person and is liable for any actions or remedy as the result of his action.

165)          This reciprocal parent to child relationship is a legal right that is superior to the enumerated Constitutional Rights (i.e., and as ruled by the USSC, which must be afforded at least all of the due process protections that "regular" - i.e., the "lesser", actually - listed  Constitutional Rights are given; and can NOT be taken away by any government official (including a state judge), agency, or etc., UNLESS - AND NOT UNTIL - the parent in question has been - first - been already proven (and, then only by "clear and convincing" evidence, too...) to be an "unfit parent".

166)          Therefore, the state’s or judge's act of taking away the (fictional title of noncustodial) parent's previously-existing child custody was done unlawfully, i.e., unconstitutionally, and that judgement is null and void as unlawful against the U.S. Constitution, at least under the 1st, 4th, 5th, 8^th, 9th, 10th, and 14th Amendments, and arguably also under various sections of the Preamble to the U.S. Constitution, to include liberty and property interests.  It is not an award but a deprivation of rights.

Federalist Papers

167)          The Federalist Papers noted that each citizen is a free and sovereign individual who surrenders part of his sovereignty to the state in order provide better protections of his rights by the body politic.  Under ‘Family Law’ fit parents, sovereign individuals, have surrendered their rights under family law and been subjected to the point where non-custodial parents, mostly male litigants, are civilly murdered, have been deprived of may free will choices, threatened with various license suspensions, deprived of property, deprived of liberty, deprived of life (directly and indirectly), deprived of the right to bare arms, become financially disadvantaged, their freedom to travel or movement curtailed by the state (see MGL Chapter 273 above), are forced into unconscionable contracts, and threatened with prison; put simply, these fathers are treated as slaves, no longer as sovereign entities.  This violates the basic compact between the ‘free and sovereign citizen’ and the state as outlined in the Federalist papers.   This violation goes to the very core of our Federal Constitutional Republic.

168)          In Federalist Papers number 45:

“We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form?”

And,

“It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter. [emphasis added] How far the sacrifice is necessary, has been shown. How far the unsacrificed residue will be endangered, is the question before us. Several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the State governments. The more I revolve the subject, the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale.”

169)          Receiving Federal Funds as a result of their decision seems to violate the concerns in the Federalist Papers number 78.  Specifically:

" The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever."

170)          Courts must not only place the Constitution higher than the laws passed by the legislature, they must also place the intentions of the people ahead of the intentions of their representatives.   Meaning that the recent referendum on joint child custody in Massachusetts has significant weight in court even if the legislature does not act.

"There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."

171)          Judicial Independence is tied to the rights of individuals and a guard against "dangerous innovations", i.e., no-fault divorce and judicial discretion for child "title to the custody" decisions.

"This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. "

172)          The Commonwealth has violated a basic tenant of the Judiciary in that all precedence prior to about 1974 with regard to Family Law was invalidated by the currently adopted custody laws.

" To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them;"

173)          If we take the following excerpt from the Federalist Papers number 80 at face value, it implies that since federal funds are being provided to the states based on certain divorce statistics, that the state can no longer judge divorce cases; furthermore since the judiciary sets the child support guidelines, sits in judgement over the guidelines, and benefits from the collection of these funds, a trial by jury or by the Federal Judiciary provides the guarantee of impartial findings:

"The reasonableness of the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial, speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias. This principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different States and their citizens."

174)          The Federalist Papers number 83 discussed trial by jury as a  guard against corruption:

“The excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. The strongest argument in its favor is, that it is a security against corruption.”

And

“But making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption.”

175) In the Federalist Papers number 83 the proper use of Equity jurisdiction is found:

“My convictions are equally strong that great advantages result from the separation of the equity from the law jurisdiction, and that the causes which belong to the former would be improperly committed to juries. The great and primary use of a court of equity is to give relief IN EXTRAORDINARY CASES, which are EXCEPTIONS to general rules.”

Noted below is that “title to the custody” issues followed strict rules at law.

176)          And again in #83 we find the concern that Equity will overcome the right to a trial by jury:

“The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law; but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this State, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode.”

177)          In the Federalist Papers, Publius puts forth the argument that all governments tend to tyranny.  This is echoed by George Santayana in his book “Dominations and Powers”.

178)          In Federalist Papers #80, Alexander Hamilton  paralleled a Common Law maxim when he noted:

"The reasonableness of the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial, speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias. This principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different States and their citizens."

Applicable here since federal funds are being provided to the states based on certain divorce statistics, that the state can no longer judge divorce cases

179)          Judicial Independence is tied to the rights of individuals and a guard against "dangerous innovations", i.e., no-fault divorce and judicial discretion for child "title to the custody" decisions:

"This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. ", Federalist Papers #78

Lockean Social Compact

180)          Natural Law, or more precisely, Lockean Natural law states  that one "owns" himself and his labor (labour);  they are property.  Furthermore, each person is created free and equal in the state of nature. Denying a person the fruit of ones own makes him a slave or peon.  Since unemancipated children can not direct their own destiny, the title to children must be held by the parents and in Common Law the superior title was held by the married Father in cases of divorce.

181)          Preamble[18] summarizes the intention of an act; is a introductory statement, a preliminary explanation of the reason and intent.  The preamble of the Massachusetts Constitution specifically defines the framework for our government, calling upon "natural rights", the great "social compact", and to be guided by the "great Legislator of the universe" in establishing the "Constitution of the Commonwealth of Massachusetts."

182)          America was settled by men who came to this new land to escape the arbitrary bonds of civil and equitable systems that were often no more than the will of despotic tyrants and sought to be at least in principle ruled by Divine will.

Other

183)          Old law is settled law and is to be preferred.

184)          I continue to claim that the Plaintiff, the state, and various state actors have conspired to commit fraud by depriving me of property rights without “just compensation” and deprived me of other Constitutional rights, i.e., parental rights defined under various rulings by the Supreme Court of the United States, without providing remedy for loss of rights; this is done under color of law, color of authority, and through an illegal conversion of law for the enrichment of both the state via Federal Incentive monies, state actors through increase ‘business’, and the Plaintiff via an unlawful transfer of wealth scheme.

185)          The socialist “Best Interest” doctrine is not only contrary to the Common Law but to Due Process, Equal Protection, Obligation of Contracts, and subjects the courts to be party to fraud.  Seventy-five to eighty percent of divorces are initiated by women, with better than ninety-three percent chance of getting sole custody of the children, child support, at least half the joint property, and even alimony.  These statistics and benefits hold even when the female litigant unilaterally broke the marriage contract.

186)          Massachusetts did not provide for Equitable determination to terminate a marriage contract or to decide custody at the signing of the Constitution.  The legislatures in Massachusetts prior to the signing of the state Constitution, and the executive branch after the signing the state Constitution, had to be petitioned for a divorce.  It was not until 1785 (Statutes 1785, Chapter 69) in Massachusetts that the State Supreme Court was allowed jurisdiction over divorce cases (because, in part, the cost imposed upon a citizen in traveling to Boston and the workload on the Governor). In 1855 (Statutes 1855, Chapter 56) provided for a trial by a jury. It should be noted that it was not until 1877 (Statutes 1877, Chapter 178) that the SJC was given equity jurisdiction and the right to a trial by jury was repealed.  In 1889, Superior Court was given jurisdiction (Statutes 1889, Chapter 332).  And in 1922, Probate Court was given jurisdiction (Acts 1922, Chapter 542).

187)          Another violation of Federally protected Due Process that routinely occurs in Family Courts is that male litigants are routinely required to pay for the female litigant’s court costs.  Contrary to Federal requirements: “District court's entry of order awarding attorney fees under Equal Access to Justice Act (EAJA) was not consistent with due process and, thus, relief was mandatory under rule providing for relief from void judgments;”  Orner v. Shalala, 30 F.3d 1307

188)          The political branches of the Commonwealth no longer provide the proper separation required under our Republican form of government.  The courts have entered into conversion with the state legislature in the area of ‘Family Law.’  For example, a panel of state judges determines the child support formula, sits in judgement on the enforcement of the formula, and receives “kickback” on the Federal monies that are collected as a result of these practices. Interdepartmental agreement signed on July 13,2001 for Justice Dortch-Okara Chief Justice for administration and management of the trial courts.  This contract, lays out the procedures by which the Department of Revenue and the Massachusetts Probate and Family Court go about violating, predominately male litigants, civil and constitutional rights in exchange for Federal remunerations being redirected to the courts.  This revenue agreement gives every appearance of being in violation of the 1986 Federal anti kickback act, 41 USC 53 TA \l "the 1986 Federal anti kickback act, 41 USC 53" \s "the 1986 Federal anti kickback act, 41 USC 53" \c 2  and/or the R.I.C.O. Act.  Also, the legislature no longer acts without direction of the judiciary in the area of Family Law.  Even with the recent referendum on shared parenting in the state – the vote was 85% in favor of shared parenting – the legislature, specifically under ‘counsel’ from the judiciary, refuses to change the laws.  Such an arrangement between divorcing parents would put at risk a significant portion of federal incentive monies.  A key component to the state budget.  This financial arrangement and state dependence on Federal remunerations calls into question the ability of the Family Courts to provide male litigants with a “fair and impartial hearing” as guaranteed under the US Constitution.

Federal question as regarding awards of child support and commissions of fraud therein

189)          The egregiously different burdens and benefits placed on persons similarly situated but for the award of custody, i.e., parents with the obligation to support their child and the same means for doing so as when they were married, has been explained at length in several judicial opinions. The finding is that such disparate treatment violates the guarantees of equal protection. Jones v. Helms, 452 U.S. 412, 101 S.Ct. 2434 (1981), South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 119 S.Ct. 1180 (1999), and Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620 (1996). Child support guidelines do not result in awards based on the constitutionally sound principles of equal duty and proportional obligation (proportional to available financial resources such as each parent's income). See Smith v. Smith, 626 P 2d 342, 345-348 (Oregon, 1980); Meltzer v. Witsberger, 480 A.2d 991 (Pa. 1984); and Conway v. Dana, 318 A.2d 324 (Pa. 1985).

190)          Further, the instant state proceedings have consistently demonstrated themselves to be willfully, intentionally, and knowingly in violation of both state and federal law, by: ordering awards of child support in favor of Plaintiff, and of garnishment against Defendant, that circumvented various statutory due process consideration factors as to needs, assets, debts, and resources of each parent, as well as violating due process procedures in the timeliness and payment logistics thereof; moreover, the actual amounts awarded, even if they had not been otherwise unlawful pursuant to the above, were consistently mandated and carried out in express violation of statutory maximum limits proscribed by Common Law and both state and federal law, even though this Defendant duly informed the instant state court of said limits multiple times, within various pleadings, and also on the record in open court. See Ind. Code § 24-4.5-5-104, and Ind. Code § 24-4.5-5-105, as well as 15 USC § 1673, and 15 USC § 1675.

191)          Additionally, multiple commissions of fraudulent reporting of income and expenses have been committed in knowing, intentional, and willful concert by Plaintiff and her counsel, Conger; When these incidents have been presented to the instant state court, they were also ignored; The result is judicial-attorney conspiracy to commit child support fraud and further unlawful deprivations of property without due process, all in violation of the Constitution.

Federal question as regarding equal rights to care, custody, and control of minor children:

192)          A parent's right to raise a child is a constitutionally protected liberty interest. This is well-established constitutional law. The U.S. Supreme Court long ago noted that a parent's right to "the companionship, care, custody, and management of his or her children" is an interest "far more precious" than any property right. May v. Anderson, 345 U.S. 528, 533, 97 L. Ed. 1221, 73 S.Ct. 840, 843 (1952). In Lassiter v. Department of Social Services, 452 U.S. 18, 27, 68 L. Ed. 2d 640, 120 S.Ct. 2153, 2159-60 (1981), the Court stressed that the parent-child relationship "is an important interest that 'undeniably warrants deference and absent a powerful countervailing interest protection.'" quoting Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed 2d 551, 92 S.Ct. 1208 (1972).

193)          A state's granting of custody and awarding child support is sufficiently intrusive to warrant scrutiny, i.e., granting sole custody to one parent impinges on the rights of the other parent to a significant extent. This is obvious to the most casual observer.  In Troxel v. Granville, 527 U.S. 1069 (1999), Justice O'Conner, speaking for the Court stated, "The Fourteenth Amendment provides that no State shall 'deprive any person of life, liberty, or property, without due process of the law.' We have long recognized that the Amendment's Due Process Clause, like its Fifth Amendment counterpart, 'guarantees more than fair process.' The Clause includes a substantive component that 'provides heightened protection against governmental interference with certain fundamental rights and liberty interest" and "the liberty interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interest recognized by this Court." Logically, these forms of fundamental violations are inherently a federal question.

194)          The compelling state interest in the socialist “Best Interest” of the child can be achieved by less restrictive means than sole custody. A quarter-century of research has demonstrated that joint physical custody is as good or better than sole custody in assuring the best interest of the child. As the Supreme Court found in Reno v. Flores, 507 U.S. 292, 301 (1993): “’The best interest of the child,' a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody only if done under Common Law. But it is not traditionally the sole criterion -- much less the sole constitutional criterion -- for other, less narrowly channeled judgments involving children, where their interest conflicts in varying degrees with the interest of others. Even if it were shown, for example, that a particular couple desirous of adopting a child would best provide for the child's welfare, the child would nonetheless not be removed from the custody of its parents so long as they were providing for the child adequately.” Narrow tailoring is required when fundamental rights are involved. Thus, the state must show adverse impact upon the child before restricting a parent from the family dynamic or physical custody. It is apparent that the parent-child relationship of a married parent is protected by the equal protection and due process clauses of the Constitution. In 1978, the Supreme Court clearly indicated that only the relationships of those parents who from the time of conception of the child, never establish custody and who fail to support or visit their child(ren) are unprotected by the equal protection and due process clauses of the Constitution. Quilloin v. Walcott, 434 U.S. 246, 255 (1978). Clearly, divorced parents enjoy the same rights and obligations to their children as if still married. The state through its family law courts, can impair a parent-child relationship through issuance of a limited visitation order, however, it must make a determination that it has a compelling interest in doing so. Trial courts must, as a matter of constitutional law, fashion orders which will maximize the time children spend with each parent unless the court determines that there are compelling justifications for not maximizing time with each parent. Throughout this century, the Supreme Court also has held that the fundamental right to privacy protects citizens against unwarranted governmental intrusion into such intimate family matters as procreation, child-rearing, marriage, and contraceptive choice. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 926-927 (1992).

195)          Contrary to the state court's consistent disregard for the equal right of this (male) Defendant to care, custody, control, and management of his natural minor children, and its corresponding continuum of sole custody in favor of the (female) Plaintiff, the federal Due Process and Equal Protection rights extend to both parents equally. In Caban v. Mohammed, 441 U.S. 380, (1979) the Supreme Court found that a biological father who had for two years, but no longer, lived with his children and their mother was denied equal protection of the law under a New York statute which permitted the mother, but not the father, to veto an adoption. In Lehr v. Robinson, 463 U.S. 248 (1983), the Supreme Court held that “[w]hen an unwed father demonstrates a full commitment to the responsibilities of parenthood by 'com[ing] forward to participate in the rearing of his child,' Caban, [citations omitted], his interest in personal contact with his child acquires substantial protection under the Due Process Clause." (Id. at 261-262). To further underscore the need for courts to consider the constitutional protections which attach in family law matters, one need only look to recent civil rights decisions. In Smith v. City of Fontana, 818 f. 2d 1411 (9th Cir. 1987), the court of appeals held that in a civil rights action under 42 U.S.C. section 1983 where police had killed a detainee, the children had a cognizable liberty interest under the due process clause. The analysis of the court included a finding that "a parent has a constitutionally protected liberty interest in the companionship and society of his or her child.” Id. at 1418, citing Kelson v. City of Springfield, 767 F. 2d 651 (9th Cir. 1985). In Smith the court stated "We now hold that this constitutional interest in familial companionship and society logically extends to protect children from unwarranted state interference with their relationships with their parents." Id. In essence, the Supreme Court has held that a fit parent may not be denied equal legal and physical custody of a minor child without a finding by clear and convincing evidence of parental unfitness and substantial harm to the child, when it ruled in Santosky v. Kramer, 455 U.S. 745, 753 (1982), that “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the Fourteenth Amendment.”

196)          In the instant state proceedings, Defendant has been continually deprived of the full right to equal care, custody, control, and management of the minor children, and the same approaching seven years and one month going, without any requisite showing of past or potential harm – of any kind – upon the minor child(ren), while, instead and contrarily, Petitioner has been consistently documented in acts of minor to medium abuse towards the children, long-ranging neglect of several important matters regarding the children, numerous criminal acts of a dishonest nature, serious domestic violence attacks against this Defendant – even in the presence of the children – and, a general haphazard disdain for the minor children’s welfare, needs, and emotional stability… yet, the state court essentially coddles her behavior against the best interests of the children, and even has gone to certain extraordinary lengths to shelter and assist some of these egregious manifestations.

197)          Defendant also wishes respectfully to demand mandatory judicial notice, pursuant to Rule 201(d) of the Federal Rules of Evidence, and pursuant to the Full Faith and Credit Clause, of the following related cases supporting and documenting some of the above allegations, to wit:

198)          “The Court has held that the deprivation of fundamental liberty rights ‘for even minimal periods of time’, unquestionably constitutes irreparable injury.” Elrod v. Burns, 96 S.Ct. 2673; 427 U.S. 347, (1976).

199)          "The statist notion that government may supercede parental authority in order to ensure bureaucratically or judicially determined "best interests" of children has been rejected as repugnant to American traditions.  Judges and state officials are ill-equipped to second guess parents and are precluded from intervening in absence of powerful countervailing interests."   Zummo v. Zummo, 574 A.2d 1130, 1138 (Pa. Super. 1990) TA \l "Zummo v. Zummo, 574 A.2d 1130, 1138 (Pa. Super. 1990)" \s "Zummo v. Zummo, 574 A.2d 1130, 1138 (Pa. Super. 1990)" \c 1 , citing Lehr v. Robertson, 463 U.S. 248, 257-61, 103 S.Ct. 2985, 2991-93, 77 L.Ed. 2d 614, 623-29 (1982 TA \l "Lehr v. Robertson, 463 U.S. 248, 257-61, 103 S.Ct. 2985, 2991-93, 77 L.Ed. 2d 614, 623-29 (1982" \s "Lehr v. Robertson, 463 U.S. 248, 257-61, 103 S.Ct. 2985, 2991-93, 77 L.Ed. 2d 614, 623-29 (1982" \c 1 ).

200)          “Wife was not entitled to vested interest in husband’s education or professional productivity, either past or future; such an award would transmute the bonds of marriage into the bonds of involuntary servitude.” Severs v Severs, (1983) 426 So.2d 992

201)          “By the civil law, the child of parents divorced is to be brought up by the innocent party, at the expense of the guilty party.”, Bouvier’s Law Dictionary, 1876 ed.

202)          “Hence, any act of the legislature which violates any of these asserted rights of which entrenches on any of these great principles of Civil Liberty, or inherent rights of man, shall be void.”, In re Dorsey, 7 Porter (Ala.) 293, 377-378 (1883)

203)          “The State cannot diminish the rights of the people.”, Hurado v. California, 110 U.S. 516.

204)          “If the legislature clearly misrepresents a constitutional provision, the frequent repetition of the wrong will not create a right.”, Amos v Mosley, 74 Fla. 555; 77 S0. 619

205)          “To be that statues which would deprive a citizen of the rights of person or property without a regular trial, according to the course and usage of common law, would not be the law of the land.”, Hoke v. Henderson, 15, N.C. 15, 25 AN Dec 677.

206)          “A court faced with a motion to dismiss a pro se complaint must read the complaint's allegations expansively, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972), and take them as true for purposes of deciding whether they state a claim.” Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972).

207)          “The doctrine [of unclean hands] promotes justice by making a [respondent] answer for his own misconduct in the action. It prevents "a wrongdoer from enjoying the fruits of his transgression." [Respondent’s] must come into court with clean hands, and keep them clean, or he will be denied relief, regardless of the merits of his claim.” Kendall-Jackson Winery, Ltd. v. Superior Court (E. & J. Gallo Winery) (1999) 76 Cal.App.4th 970 TA \l "Kendall-Jackson Winery, Ltd. v. Superior Court (E. & J. Gallo Winery) (1999) 76 Cal.App.4th 970" \s "Kendall-Jackson Winery, Ltd. v. Superior Court (E. & J. Gallo Winery) (1999) 76 Cal.App.4th 970" \c 1 .

208)          Massachusetts Constitution, Article XV. In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practiced, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners' wages, the legislature shall hereafter find it necessary to alter it.

209)          “It is, that the law is always approaching, and never reaching, consistency.”, The Common Law, Oliver Wendell Holmes, Jr., Dover Publications, Inc., NY, 1991, Page 36.

210)          Defendant has a federal question right, under the guarantees of 42 USC § 2000a, to full and equal lawful treatment in a state court of law, and according to the various protections under not only the Massachusetts Constitution, but more importantly under those of the U.S. Constitution.

211)          Defendant has a federal question right, under the protections of the Civil Rights Act of 1964, 42 USC § 2000d, et seq., and as interpreted by the U.S. Supreme Court to include prohibitions against discrimination based on sex or gender, to now remove the instant state proceedings, under 28 USC §§ 1441 and 1443, in order to be free from the denial of such equal civil rights and treatment established by the above allegations. See also 42 USC § 2000d-7.

212)          Defendant has a federal question right, under the protections of 42 USC §§ 3617 and 3631, which include prohibitions against discrimination based on sex or gender, to remove the instant state proceedings, under 28 USC §§ 1441 and 1443, in order to be free from the denial of such equal civil rights and treatment established by the above allegations. See also 42 USC § 2000d-7.

213)          Defendant has a further federal question right, under the protections of 42 USC § 5891, which include prohibitions against discrimination based on sex or gender regarding other matters and allegations expressed supra, to remove the instant state proceedings, under 28 USC §§ 1441 and 1443, in order to be free from the denial of such equal civil rights and treatment established by the above allegations. See also 42 USC §§ 5106a, 5106c, 10406, 10420, 10701, and etc.

214)          Defendant has a further federal question right not to be discriminated as articulated according to the above allegations, under the expressed public policy of the United States of America, by and through certain Acts of Congress strictly specifying the critical value of protecting children, youth, and family bonds, and the joint responsibilities of federal courts therein. See 42 USC §§ 12301, 12351, 12352, 12371, 12635, and etc.

215)          Defendant has a further federal question right to ensure that his minor children are free from experiencing abuse and/or neglect, due to unlawful sex or gender discrimination in awards of child custody, and to ensure that any involved state judicial systems meet or exceed their required corresponding duties under 42 USC §§ 13001, 13003, 13021, 13031, and etc.

216)          Defendant has a further federal question right, under 42 USC §14141, to be free from unlawful violations of civil rights committed by the parties involved in the state proceedings.

217)          "The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed .. An unconstitutional law is void." 16AmJur 2nd, Sec. 178

218)          Since the constitution for the United States is the supreme law of the land and superior to any ordinary act of the legislature, any law repugnant to the constitution is null and void", Marbury vs. Madison, 5 (Cranch) U.S.137,174,176 (1803)

219)          "An unconstitutional act is not law, it confers no rights, imposes no duties, affords no protections, creates no office. It is, in legal interpretation, as inoperative as if it had never been passed", Norton vs. Shelby County 118 US 425 (1886)

220)          The above numerous and various rights will, in fact, be consistently violated if these proceedings were ever to be remanded back to said state court, and manifest injury would accrue upon not only this Defendant , but also against the obvious best interests of the minor child.

221)          The plaintiff, Plaintiff, has allowed Jonathan to be abused in her care and that the state has failed to act in a timely manner because of the profits derived from these illegal schemes.

222)          Jonathan, for many months has said to all parties the he wishes to live with me and ‘visit’ his mother.  This fact has not been disputed and can be corroborated by Jonathan’s psychologist Dr. Stephen Chapin.

223)          The courts Probate and Family Court decide cases - not based on the natural rights of man but by specifically by trampling these rights without recourse to remedy - by the whims of judges.  This is the very definition of a krytocracy (a despotic oligarchy where the subjects are ruled by the boundless opinion of judges).  Even courts of Equity are supposed to follow the law (“Equity follows the law”).

224)          The court must answer the jurisdiction challenge as a matter of Due Process.

225)          If the state does not provide remedy for the loss of rights or cannot define a fair and just, open forum to determine remedy for intrusions into rights, then this court should state this fact.

226)          Address all the Due Process issues raised herein.

227)          Address the conversion of Common Law to Equity.

228)          Address the conversion from the Common Law to the socialist “Best Interest” determination models.

229)          Address the heretofore arguments.

230)          Address the Invidious Discrimination issues.

231)          Address the issues of Fraud.

232)          Address the various violations of both the state and Federal Constitution issues raised herein.

233)          Address the right to a trial by jury taking into account the various arguments raised herein.

234)          Address the socialist “Best Interest” against the backdrop of the US Supreme Court rulings which deal with parental rights.

235)          As a fit parents who’s child has been removed from their child’s life by the state, for the state’s enrichment, and under the state’s authority, this parent must be provided remedy, especially given right of property and the strict clause of just compensation in both the state and Federal Constitutions.  The requirement for remedy is that it must leave the parent no poorer that without the right.

236)          A trial by jury be commenced immediately within a court of competent subject matter jurisdiction.

237)          All of the issues contained in the Default filed in Federal Court must be addressed.

238)          Have Jonathan be immediately returned to my care per his wishes and the mandates of Common Law.

239)          Defendant reiterates that he fully expects the state court to ignore the Constitutional issues, including providing Due Process, which will be a manifest deprivation of his various civil rights within said state court, but also that such a deliberately unlawful pattern of the same will be well established for return to Federal Court.

NOTICE TO PARTIES

240)          Defendant now and hereby provide his formal Notice of the above to all interested parties, of record or otherwise, within and surrounding the above-encaptioned state court proceedings.

VERIFICATION

I hereby declare, verify, certify and state, pursuant to the penalties of perjury under the laws of the United States, and by the provisions of 28 USC § 1746, that all of the above and foregoing representations are true and correct to the best of my knowledge, information, and belief.

Executed at _____________________, MA, this _____ day of November, 2005.

CERTIFICATE OF SERVICE

I hereby certify that, on this _____ day of November, 2005, a true and complete copy of the foregoing petition for removal, by depositing the same in the United States mail, postage prepaid, has been duly served upon all parties of record in the lower state proceedings, to-wit: