Child Support Not Required When Custody Denied
In the case Kirby v. Kirby, 338 Mass 263 (1959) and in Keene v. Toth, 335 Mass. 591(1957), the Massachusetts Supreme Judicial Court notes that prior to the St. 1953, Chapter 505, the common law rule that should a parent be deprived of the custody of his/her child they could not be charged with support:
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. Kirby v. Kirby, 338 Mass 263 (1959) [Emphasis and date of cases added]
It should be noted that in 1950s, divorces were still done in Superior Court with at least the option for a trial by jury. Note the dates on the cases above. Clearly, the Common Law rule regarding support post dates Bigelow, supra.
Also what Kirby, supra, fails to point out is that for the state to heretofore and prior to St 1953 Chapter 505, impose child support there had to be a criminal finding of criminal abuse, neglect, or abandonment. This criminal abuse, neglect, or abandonment allowed the state to break the reciprocal natural right between supporting a child and custody. Kirby, supra, does not explain how or if the the state, required per the Preamble of the Constitution to protect natural rights and not empowered to abolish them, addressed with this natural right. And again, the right of property per Purinton, supra, is not explained.
But now contrast the state's claim that Bigelow, supra, decided in 1876 give the state the right to decide child support under equity. But Bigelow, supra, was clearly done (77 years!) prior to St. 1953, Chapter 505, and hence the state would have had to criminally convicted the parent of abuse, abandonment or neglect at the time of Bigelow, supra, in order for a parent to be charged with child support and be deprived of the reciprocal natural right to the custody of the child.
Therefore, Bigelow, supra, cannot be used to support the fiction of equity determinations of child support whereas Kirby, supra, does show that child support was done under Common Law rules until 1953.
Also note that civil liabilities for child support by a third party for providing necessities for a child, always had the right to a trial by jury, see Baldwin v. Foster, 138 Mass. 449 (1885); another case post-Bigelow, supra. Hence, the state in converting child support into a civil matters failed to acknowledge that heretofore the Common Law right to a trial by jury was a 'sacred' right in all civil child support disputes.
It should be obvious that the two Common Law rules for providing support were not done under equity in either the civil and criminal case, see Smith's Case, 322 Mass. 186 (1947) (...the general principles governing the civil liability of a father to furnish support to a minor child who is living apart from him. We have not discussed the somewhat different and more drastic principles governing the criminal liability of a father to support a minor child ...)