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More
Case Law Showing That Massachusetts
(and many) Family Courts Operate Against
the U.S. Constitution |
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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. |
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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).
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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.
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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); State 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.”).
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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; (1816), (“... that
the mother of an illegitimate
child has a natural right to its
custody, and is bound to support
and maintain him.”).
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Heretofore, the 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.
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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
(1810);
Dalton v. Bernardston
, 9 Mass 201 (1812);
Shirley v. Watertown,
3 Mass. 322 (1807); Wightman
v. Coates, 15 Mass. 1 (1818);
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);
Bazeley,
supra; Rawlyns v. Vandyke,
3 Esp 252.
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The conclusion 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.
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For 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.
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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.
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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.
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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.
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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).
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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).
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Furthermore, it 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 litigants.
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