Courts of Equity Versus Common Law
Some claim divorce courts may have been illegally converted from common law, which requires jury trial, to equity law, which does not?
This transference to equity, along with the "best interest" (which could be instructions to a jury even in common law) are the central issues that allow the courts to conspire with the mother to fraudulently redistribute wealth in the form of child support and redistribute children in the form of "custody".If you read enough of these case cites you'll see that juries were always in these matters to provide determinations regarding question of facts. Did he/she commit adultery or was he/she cruel and abusive or did he/she leave for 'justifiable cause'. Questions reserved for the jury. Juries determine facts and the law in our system. Oliver W. Holmes had a quote that said almost exactly this.
I disagree with the concept of best interest and taking a child from a fit parent that has not caused the child harm but if the best interest determination is a question of fact, not of law., why aren't juries determining the best interest? But one question that remains is how would equal parenting work outside marriage. Certainly should not have government making the calls.
Until Statutes 1953, Chapter 505 (which I've now read) the only way the state could impose child support obligation without the corresponding reciprocal natural right to the care, custody, companionship and guardianship was in a criminal trial where the jury found neglect, abandonment, or abuse. The blending into equity means a severe lack of due process.
The current system is not derivable under rules of law from where it started. It is a Leninist Socialist system that is designed to destroy the family.
Kirby v. Kirby, 338 Mass 263 (1959) “The respondent cites certain cases for the proposition that a father who is deprived of the custody of his child by order of court has no common law duty of support. Creeley v. Creeley, 258 Mass. 460, 463, 155 N.E. 424, 52 A.L.R. 285; Barry v. Sparks, 306 Mass. 80, 82-83, 27 N.E.2d 728, 128 A.L.R. 983; Hathaway v. Rickard, 323 Mass. 501, 502-503, 82 N.E.2d 881. While there is nothing to show that the respondent has been deprived of such custody, it should be noted that the rule now is otherwise under G.L. c. 273, § 8, as amended by St.1953, c. 505, which provides, ‘The legal duty of the parent or parents to support a minor child shall continue * * * notwithstanding any court decree granting custody of such child to another.’ Keene v. Toth, 335 Mass. 591, 594-595, 141 N.E.2d 509.”