More Case Law
Showing That Massachusetts (and many) Family Courts Operate Against the U.S.
The Oath Judges
take requires them to uphold the constitution
Therefore Judges Break their oath and are considered to be guilty of treason
legally when they do each time they uphold state laws and procedures that
violate the constitution.
Main Case law on
Parents Rights Page
Divorce was a criminal action not a
civil one, Barber v. Root, 10 Mass. 260 (1813) (“Regulations
on the subject of marriage and divorce are rather parts of the criminal,
than of the civil, code; ...” and later
“A divorce, for example, in a
case of public scandal and reproach, is not a vindication of the contract of
marriage, or a remedy to enforce it; but a species of punishment, which the
public have placed in the hands of the injured party to inflict, under the
sanction, and with the aid, of the competent tribunal, operating as a
redress of the injury, when, the contract having been violated, the relation
of the parties, and their continuance in the marriage state, has become
intolerable or vexatious to them, and of evil example to others.”);
hence divorce could only be granted in response to a criminal action and the
father, by natural right was automatically given
custody, even if he had committed the
crime that ended the marriage
due to the obligation to support his children or otherwise stated and “the
duty which nature imposes upon him”, Commonwealth v. Briggs,
33 MA 203 (1834).; De
Manneville v. De Manneville, 10 Ves. 51 (1804); Rex v. De
Manneville, 5 East 222, (1804).
Heretofore, there custody was not a
civil matter. Custody was determined based on natural rights of one party
who had sole responsibility to support the child, heretofore, there
was no civil dispute regarding custody. Custody following divorce always
went to the father since he had the sole responsibility to support the
child. Custody could only be taken from a father should he commit a crime
against the child, e.g., abandonment, abuse, or neglect.
In this Commonwealth and throughout the
states it is clearly the case that the obligation to to support children
came with it rights or reciprocal rights or was coupled to or has a
corresponding right to the custody of the child(ren). See at least,
McNamara v. Logan,
100 Ala. 187; 14 So. 175 (1893); Ramsey v. Ramsey, 121 Ind.
215; 23 N.E. 69 (1889); Nugent v. Powell, 4 Wyo. 173; 33 P. 23
(1893); Directors of Poor v. Dungan, 64 Pa. 402 (1870);
Hornketh v. Barr, 8 Serg. & Rawle 36 (1822); Ex parte Boaz,
31 Ala. 425 (1858); Washaw v. Gimble, 50 Ark. 351; 7 S.W. 389;
(1887); In re Guardianship of Campbell, 130 Cal. 380; 62 P.
613 (1900); Amos v. Atlanta R. Co., 104 Ga. 809; 31 S.E. 42
(1898); Campbell v. Wright, 130 CA 380 (1900);
ex rel. Neider v. Reuff, 29 W. Va. 751; 2 S.E. 801 (1887),
(By the common law the natural right of the father to
the custody of his infant child arose out of his duty to maintain and
support it, ...”); Campbell v. Wright,
130 Cal. 380 (1900)
(“The father's right is, however, coupled with the obligation to
support and educate the child.”).
In Massachusetts, as
with the other states, child support entails a reciprocal natural right
to the care, guardianship, and companionship of ones children which, as a
natural right, falls under the protection under the state Constitution, see
at least Reidell v. Morse, 36 Mass. 358 (1837), (“As
the parent is bound by nature to support and educate his minor children,
so he has a natural right to their guardianship, their society and their
services.”) [Emphasis added] Also see,
Boylston v. Princeton,13 Mass. 381;
(“... that the mother of an illegitimate child has a natural right to its
custody, and is bound to support and maintain him.”).
father has a natural right to the children born of the marriage and this
absolute natural right was tied to the sole responsibility for the
obligation of support. Unmarried women had the identical obligation and
natural rights. Natural rights are immutable.
The conclusion the state purportedly
arrived at in Bigelow, supra, regarding the
heretofore clause and the sacred right to a trial by jury is
contradicted by at least: Hanover v. Turner,
14 Mass 227 (1817); Milford
v Worcester, 7 MA 48
Dalton v. Bernardston
, 9 Mass 201 (1812);
Shirley v. Watertown,
3 Mass. 322 (1807); Wightman v. Coates, 15 Mass. 1
Middleboroulh v Rochester, 12 MA 363 (1815);
Commonwealth v. Putnam 18 MA 136 (1822); Angel v. Mclellan,
16 Mass. 28 (1819); Baldwin v. Foster, 138 Mass. 449 (1885);
Foss v. Hartwell, 168 Mass 66 (1897);
supra; Rawlyns v. Vandyke,
3 Esp 252.
the state arrived at in Bigelow, supra, is also in direct
contrast to Kent's Commentaries (“It will always be a question for a jury,
...” referring to the question of providing child support.). It should be
noted that the right to a trial by jury noted by Kent was based on
Massachusetts case law.
example, in Hanover, supra, a trial by jury determined if the
husband had treated the wife cruelly and if the wife had left the husband
for “justifiable cause” and if support was permitted. This case, and the
others, directly contradict the findings of Bigelow, supra.
- In Burrus, supra, the US Supreme Court stated, relying
heavily on Barry, supra, that the Federal Courts did not have
Common Law jurisdiction; therefore, the Federal Courts, to include the
Supreme Court, could not intervene in custody or as parens patriae matters
since both of these required Common Law jurisdiction. The Federal decision
used Massachusetts case law to support its claim regarding Common Law
jurisdiction. Burrus relied so heavily on Barry
that Barry was appended to the Burrus decision.
- Now, however, Massachusetts practices custody and parens patriae under
Equity jurisdiction. This “blending” or conversion of law is unlawful
regardless of any supposed sanction by the legislature. Even if allowed,
such a change significantly changes the nature of divorce, custody and child
support issues and are not as heretofore practiced. Divorce, custody,
nor child support were heretofore practiced under equity jurisdiction.
The Best Interest of the Child determination is based
on an equity variant of parens patriae, see, at least E.N.O.
v. L.M.M., 429 Mass. 824 (1999),
which is in direct contradiction of In re Burrus, 136 US 586
(1890) and In re Barry, 42 F 113 (1844) where it was
explicitly stated that parens patriae requires Common Law jurisdiction.
- The distinction between law
and equity cannot be blended or obliterated by state legislation.
Thompson v. Railroad Companies, 73 U.S. (6 Wall.) 134 (1868).
- Federal statutes
prohibiting courts of the United States from sustaining suits in equity
where the remedy was complete at law served to guard the right of trial by
jury and were liberally construed. Schoenthal v. Irving Trust Co.,
287 U.S. 92, 94 (1932).
was heretofore practiced that the innocent party of a divorce had the right
to be free from any restraints on the natural right of personal liberty. Now
the state places arbitrary restraints on the personal liberty of both