In a previous essay I outlined the history of changes to family law in America.Ã‚Â Both that essay and this are based on the assumption that right in the United States are unalienable, inviolable Constitutional guarantees. Ã‚Â Many would disagree with this assumption.
The counter to this view is despite written constitutions to the contrary, rights are subject to whims of the state.Ã‚Â The argument goes that failure to actively participate in government can result in the loss of rights by those in government willing to usurp right in exchange for money and power.Ã‚Â Rights, agency, personal sovereignty are lost.Ã‚Â Ã‚Â Cooperation replaced with coercion.Ã‚Â Sociopathic collectivism replaces God given Constitutional Rights.
Regardless of the claims of how these rights were lost, they are lost.Ã‚Â These essays attempt to show the difference between the historical rights and the modern lie which violates supposed unalienable, inviolable Constitutional guarantees.
The issue raised is absolute verses relative rules.Ã‚Â Absolute rules are based on some underlying truth, e.g., the US Constitution being based on the laws of nature and nature’s God.Ã‚Â Relativism denies absolute rights.Ã‚Â Relativism denies right and wrong.Ã‚Â Relativism denies good and bad.Ã‚Â Relativism devolves to ‘might makes right.’Ã‚Â Relativism leads to regimes under tyrants like Hitler, Stalin, Mao, or Pol Pot.Ã‚Â Collectivism or relativism is contrary to the concept of a Constitutional Republic or the concept of unalienable or inviolable rights.Ã‚Â Relativism is treason in a Constitutional Republic.
The basic premise is that people expect decisions which express right and wrong.Ã‚Â This is what the Common Law trial by jury protected.Ã‚Â Instead of cooperation via trial by jury people get coercive government.Ã‚Â Government is forcing relativistic, ideological decisions on people which often offend the general populationÃ¢â‚¬â„¢s notion of right or wrong.
Adultery or infidelity rewarded under the guise of Ã¢â‚¬Å“best interest of the child.Ã¢â‚¬ÂÃ‚Â Redress of grievances are denied.Ã‚Â Remedy denied because it is contrary to state ideology.Ã‚Â Crimes which historically were punished are now rewarded and peonage has become standard practice.Ã‚Â Coercive power of the state, not the cooperative, voluntary participation of citizens acting as sovereign moral agents.
It is clear that there has been a loss of fundamental rights going from Common Law matters to equity in family law.Ã‚Â Underlying this change is the question of the nature and intent of the law in a social compact.Ã‚Â The change from Common Law to equity has allowed the state to mimic socialist regimes which administer administrative law.Ã‚Â Administrative laws are contrary to ordered liberty in a Constitutional Republic.
Fundamentally the Common Law is designed to protect rights.Ã‚Â A person protecting their own rights by participating in adjudication of cases as part of a jury is the Common Law goal.Ã‚Â A jury of one’s peers determines not only the facts but the validity of the laws.Ã‚Â Loss of the Common Law means loss of rights.
Common Law actions could not be brought without the petitioner proving some wrong.Ã‚Â Lacking wrong, not action was permissible under Common Law.Ã‚Â Contrast that to a petitioner asking that the power of the state back their decision to inflict harm on another in modern no-fault divorce.
Just because a jury is deciding a case does not make it a Common Law matter.Ã‚Â If the jury is not empowered to first determine harm (and not act in the absence of harm) then it is not a Common Law jury.Ã‚Â Ã‚Â Remedy for the identified and proven harm was the jury’s responsibility.
All ‘Family Law’ is derived from the English Common Law.Ã‚Â The usurpation of ‘Family Law’ in courts of equity has permitted one of the boldest and most brazen usurpation of rights and the creation of the largest group of second class citizens in the history of the world.Ã‚Â The tyranny and treason used to create this deprived class of citizens have been done under the guise of creating a kinder and gentler society.
The separate and distinct Common Law matters of:
- Best Interest of the Child (BIC), and
- Child Support (i.e., court ordered providing necessities for a child)
have unlawfully become merged intoÃ‚Â a court of equity as a single matter.Ã‚Â This fundamental violation of law is supported by lies and police power.Ã‚Â There is absolutely no foundation for these separate and distinct Common Law matters to be decided under any jurisdiction other than Common Law.
The separate and distinct Common Law and criminal punishments no longer are based on identified and proven in each separate and distinct area.Ã‚Â Instead these once separate and distinct punishments are unconstitutionally amalgamated and punishment are based on unbounded judicial discretion, not harmful actions.Ã‚Â Given the effective loss of the right to appeal Ã¢â‚¬â€œ the Due Process loss of going from harm based verses discretion based legal decisions Ã¢â‚¬â€œ family courts have become unlawful administrative courts.
By merging these matters the state violated due process by eliminating the separate and distinct questions of harm and replaced them with unbounded judicial discretion.Ã‚Â Ã‚Â Give the loss of the ability to appeal judicial discretion the Probate and Family Courts are strictly Administrative Courts without proper judicial oversight.Ã‚Â The veneer of judicial oversight is transparent given the historical truth.
The Common Law protections inherent in each of these areas have been lost.Ã‚Â This fundamental area of rights has become lost to the whims of arbitrary ideology and lies.Ã‚Â Proving, at least in part, that we are no longer a nation of laws but of men.Ã‚Â Thus we are now ruled by men, not by mutual protection of God given rights.Ã‚Â Subjugation of man by men was something the founding fathers tried to prevent.
This conversion from separate and distinct Common Law matter to arbitrary state action has taken punishments and imposed them without wrongdoing.Ã‚Â For example, the Common Law rule regarding having to show harm before imposing child support was overturned by a statute in 1953 in Massachusetts.Ã‚Â This change was made without any regard for the Eighth Amendment or the right to a trial by jury over civil disputes of court ordered providing necessities, i.e., child support.
The Common Law
Contrary to what some people would have you believe the Common Law is not judge made law.Ã‚Â Such an assertion would mean that the Common Law is nothing but unbounded judicial discretion. The founding fathers, in the First Continental Congress, complained of the loss of the Common Law.Ã‚Â Ã‚Â It is hard to imagine these intellectual giants complaining of the loss of the right for judges to make arbitrary law.
The Common Law is a set of maxims and case law which bound judge to make decision according to precedent, e.g. you cannot be a judge in your own case or that rights and obligations are reciprocal.Ã‚Â New cases which differed from past cases relied on the same maxims to create new precedent, not unbounded judicial discretion.
The classic situation of subjective decision-making under uncertainty is where juries come in.Ã‚Â Decisions under uncertainty are not the properly the purview of subjective judicial decisions.Ã‚Â Juries provide the best mechanism for reasoning under uncertainly.Ã‚Â Removing juries and the rest of the Common Law from family law has resulted in stagnant law which honors ideology over rights and promoted financial profit and judicial power over rights.
Various claims have been made that the Common Law is based on the Bible.Ã‚Â Others would trace it to a specific English King.Ã‚Â Thomas Jefferson stated that the Common Law predated the introduction of Christianity to the British Isles.Ã‚Â There is even good evidence that parens patriae for infants is based on a printer error substituting the word Ã¢â‚¬ËœenfantÃ¢â‚¬â„¢ for Ã¢â‚¬ËœideotÃ¢â‚¬â„¢.Ã‚Â Regardless, parens patriae was a Common Law matter under English law at the signing of the Declaration of Independence.Ã‚Â Thus these matters should still be determined under Common Law jurisdiction.Ã‚Â The fact that they are not clearly shows the unconstitutional nature of Ã¢â‚¬ËœmodernÃ¢â‚¬â„¢ proceedings.
Arguably the Common Law not only had many things in common with scripture when Christianity was introduced into England, but osmosis of Judeo-Christian values over the centuries undeniably became part of the Common Law.Ã‚Â Many legal scholars during the Nineteenth Century stated that the Common Law reflected biblical values.
Common Law precedent in family law enforced reciprocal obligations and rights.Ã‚Â As long as obligations were met rights were absolute.Ã‚Â The social compact under which the Common Law operated did not provide for unbounded judicial discretion.
A social compact is formed to protect rights not to promote arbitrary state power.Ã‚Â Hence the Common Law only permitted the state as social compact intrusions to address harm such as abuse or abandonment.Ã‚Â Fellow citizens would enforce your obligations under law if you willfully failed to meet your natural law obligations.Ã‚Â If you were deprived of custody because of no wrongdoing your fellow citizens, via the social compact, could not enforce an obligation devoid of reciprocal rights.
The social compact gradually adopted a paid police force.Ã‚Â It is interesting to note that professional, paid police force came into being around the same time as the Tender Years Doctrine via collectivist Benthamism and Socialism.Ã‚Â The changes over time of increased state presence in Family Law seem to coincide with the expanding powers of the professional police force.Ã‚Â Benthamism, or the proper subset call Socialism, is a proper subsets of Relativistic ideology.
Separate and distinct proportionate response to a specific injury is the cornerstone of the Common Law. Proportionality is the notion of Ã¢â‚¬Ëœno more than an eye for an eye and no more than a tooth for a tooth.Ã¢â‚¬â„¢Ã‚Â The principle of proportionality has been lost in modern Probate and Family Courts in favor of ideology and money.
Creely v. Creely, 258 MA 460 (1927) is an example of Common Law child support prior to the statute in 1953 which eliminated harm before awarding child support.Ã‚Â The court in this case was asked by the mother for child support.Ã‚Â The court said, Ã¢â‚¬Å“No.Ã¢â‚¬Â
The reason is that there was no harm to the child.Ã‚Â Divorce was not sufficient reason to provide the remedy of child support.Ã‚Â Under the Common Law the remedy of child support was reserved as a punishment for not providing for one’s child, i.e., abuse or abandonment,
The court reasoned that when the child is with Parent A, that parent enjoys the company of the child, the obedience of the child, and exercises all rights with respect to the child.Ã‚Â As a result there is the reciprocal obligation to support the child during that time.Ã‚Â The same holds when the child is with Parent B.Ã‚Â Lacking harm, there is no transfer of wealth between parents under the Common Law.Ã‚Â No abandonment or abuse means no child support, i.e., providing necessities for a child under court order, under the Common Law.
Transferring one personÃ¢â‚¬â„¢s wealth to another without a proximate, proportional injury is an illegal transfer of wealth scheme and is unlawful under both the Common Law and Constitution. Ã‚Â Both parents are independent entities post-divorce.Ã‚Â One parent cannot be penalized without some wrongdoing under the Common Law.Ã‚Â Post-divorce, the court in Creely recognized that both parents have to feed, cloth, and shelter the child.Ã‚Â At best, any disputes on common expenses would be settled by a jury – in a less complicated setting than in todayÃ¢â‚¬â„¢s courts.
Additionally if the root of child support is the Common Law right to a trial by jury over court ordered providing necessities then citizens have lost the right to a trial by jury.Ã‚Â A Ã¢â‚¬ËœmodernÃ¢â‚¬â„¢ child support Ã¢â‚¬ËœawardÃ¢â‚¬â„¢ is a civil dispute over providing necessities.Ã‚Â But, no trial by jury exists anymore under the stateÃ¢â‚¬â„¢s ideology.Ã‚Â Given that court ordered providing necessities always had the right to a trial by jury, the current statist system is clearly wrong in repeated judicial dicta regarding no such right existed.
In Kirby v. Kirby, 338 MA 263 (1959) the Massachusetts Supreme Judicial court was asked the question, what happened to the Common Law rule Ã¢â‚¬Å“that a father who is deprived of the custody of his child by court order has no common law duty to support?Ã¢â‚¬ÂÃ‚Â The answer is that the Common Law rule was Ã¢â‚¬Å“amended by St. 1953, c. 505.Ã¢â‚¬ÂÃ‚Â Proportionality is lost when imposing child support under Ã¢â‚¬ËœBest InterestÃ¢â‚¬Â as opposed for the direct injury of abuse, abandonment, or neglect under the Common Law.Ã‚Â Given the imposition of a Common Law punishment without identifying any wrongdoing this is also a clear violation of the Eighth Amendment.
Going from Common Law divorce to no-fault or unilateral divorce the state has allowed one party to automatically be granted remedy without any identifying harm.Ã‚Â A remedy that divests one party of property and even personal liberties at the request of another Ã¢â‚¬â€œ lacking a proximate harm Ã¢â‚¬â€œ is an illegal transfer of wealth scheme under color of law.Ã‚Â There is no proportionality without a harm to justify a remedy.Ã‚Â Assuming the Eighth Amendment is still alive and well, these restrictions on personal liberties and loss of property without proven wrongdoing falls under cruel and unusual punishment.
Custody under the Common Law was reciprocal to the obligation of support.Ã‚Â The right to the services and companionship of the child was part of this reciprocal arrangement.Ã‚Â The state could interfere in the parent child relationship only to rescue the child.Ã‚Â BIC actions required harm.Ã‚Â More on that point below.Ã‚Â Sufficient to say unbounded judicial discretion in a court of equity violated the proportionality between remedy for harm under the Common Law.
Now the state receives Title IV-D money when it imposes child support as part of the BIC decision.Ã‚Â This financial conflict of interest under equity retard the progression of the law toward a fair and proportional system.
Divorce, child support, and custody were separate actions.Ã‚Â For example, under the Common Law, adultery permits divorce, it does not trigger a custody determination or court ordered child support.Ã‚Â Lacking harm in those specific areas there was no corresponding, proportionate remedy.Ã‚Â There was no remedy where there is no proximal proven and identified injury.Ã‚Â Ã‚Â Arbitrary remedy where there is no injury is unlawful punishment. Proportionality has been lost in modern family law.
Parens Patriae verses the Best Interest of the Child
The history of the state acting as parent, called parens patriae, goes back to Roman times.Ã‚Â Parens patriae has a murky past to include a history of enriching the state.Ã‚Â Today that pattern of enrichment continues with Federal Title IV-D grants to state for destroying families.
When you read about the King acting as parens patriae for lunatics et. al., you should think of Bedlam Hospital and the workhouses of old England.Ã‚Â Bedlam Hospital is such a failure that the very name, Bedlam, has become synonymous with chaos and ill treatment.Ã‚Â The horrible conditions of the English debtor’s prisons, workhouses, and poor houses lead to the concept of no debtorÃ¢â‚¬â„¢s prison in America. (Debtor prisons are however alive and well in the USA ).
Equity custody determinations are void of any and all of the Common Law protections.Ã‚Â Without identified and proven harm the state routinely strips a fit parent of the right to the companionship and custody of their child(ren).Ã‚Â Additionally, a child is deprived of the right to express where they want to live.Ã‚Â Statist nanny state decisions colored by federal Title IVD money determine court’s decisions, not rights or liberty interests.Ã‚Â Today, children’s liberty interests are not respected in equity courts.Ã‚Â Money trumps both rights and liberty interests in the nanny state.
These examples of parens patriae are now mirrored in modern family court actions across this country.Ã‚Â Parents are being stripped of rights without any wrongdoing under color of law.Ã‚Â Percentage of income being stolen based on unlawful intrusions of custody.Ã‚Â Peonage imposed under state ideology, pure and simple.Ã‚Â If you cannot pay, off to debtor’s prison, or in jail for contempt of court – same thing.Ã‚Â Twisting language to achieve the same ends, i.e., Orwellian Newspeak.
In custody cases which arose in Common Law divorce actions there was the implementation of the laws of nature.Ã‚Â As long as a parent met their obligations there an assumption that the best interest of the child was with their parent.Ã‚Â The Tender Years Doctrine determined the parent with the custody right based on the age of the child.Ã‚Â Intrusion into this presumption of natural right required proof of unfitness.
Even Habeas Corpus custody actions were actions involving harm.Ã‚Â A Common Law Habeas Corpus action involved the claim that a child was unlawfully held or there were illegal restraints on the child’s liberty.
Judicial acceptance of Benthamite Utilitarianism sans Common Law constraints has allowed for fundamental violations of liberties and justice.Ã‚Â Equity courts operating as administrative courts given the improbable appeal of unbounded judicial discretion.
The transfer of Common Law concept of parens patriae into courts of equity is a violation of fundamental laws of jurisprudence.
The Jury in Family Law
By moving family law under courts of equity the government has not only deprived people of the right to a Common Law trial by jury, it has deprived fellow citizens of the fundamental right of self-rule.Ã‚Â Instead people are forced to adhere to arbitrary, administrative laws and procedures.Ã‚Â Thus, contrary to assertions in Marbury v. Madison, 5 US 137 (1803), we have become a nation of men, not of laws.
Cases like Bigelow is used by the state to prove you are not entitled to a trial by jury.Ã‚Â Nowhere in colonial laws or charters is there an statute overturning the Common Law trial by jury over providing necessities to a child.Ã‚Â From the Common Law concept of providing necessities the law with the right to a trial by jury has twisted into child support under equity without the right to a trial by jury.
Bigelow, for example, states that since the Governor and his Council (G&C) determined divorce in Massachusetts prior to 1785 there is no right to a trial by jury over child support.Ã‚Â However, 1) the G&C were common law courts per the Privy Council (see above) 2) there is no example of the G&C ordering necessities for a child, and 3) (stated again) there is no charter or colonial law transferring such power to the G&C or doing away with the right to a trial by jury over necessities for a child.Ã‚Â As a matter of fact there are cases of trials by jury of providing necessities for a child with a trial by jury but these cases are ignored because they do not meet the agenda of the ‘rulers’.
Additionally, Governor Hutchinson sent a letter to Lord Hillsborough (November 5th, 1771) not only asking about the G&C acting as a Common Law court but stating that divorce did not properly fall under the acts of government.Ã‚Â It turns out that the G&C had jurisdiction over divorce since 1640.Ã‚Â The G&C were the major components of the Court of Assistants.Ã‚Â This court exercised Common Law jurisdiction including empanelling juries.
Modern courts also claim that there was never any example of trial by jury over providing necessities to a child under Common Law jurisdiction.Ã‚Â Actually, the courts claim there is no example of a trial by jury over child support.Ã‚Â The distinction is that child support is a modern concoction.Ã‚Â This sleight of hand, new-speak confuses the Common Law roots of child support, i.e., court ordered providing necessities for a child under Common Law jurisdiction.
There are many example of trial by jury court ordered providing necessities for a child.Ã‚Â There are plenty of cases where lacking harm the court could not order providing necessities for a child.Ã‚Â Divorce was a punishment.Ã‚Â Interference with custody was a punishment.Ã‚Â The Common Law kept government intrusions to remedy for injury.Ã‚Â Equity determinations are nothing more than the administrative law imposing punishment without proving harm.
Common Law verses Equity
The People, ex rel. I. Nickerson, v., 19 Wend. 16 (1837), Ã¢â‚¬Å“… absence of ill usage, grossly immoral principles or habits, or want of ability to provide for his children, [the parent] is entitled to their custody, care and education; and cannot, at common law, be controlled by the courts in the exercise of his paternal rights, except as above, or for an abuse of the trust confided to him by law.Ã¢â‚¬Â
The Common Law did not permit arbitrary actions, especially in the arena of family law.Ã‚Â Intrusions required clear and convincing evidence, not preponderance of evidence.Ã‚Â More importantly, equity actions were for areas of law that the Common Law failed to provide remedy.Ã‚Â But all areas of family law had full and complete remedy under Common Law.
Regarding the concept of not converting common law matters to equity the case E.N.O. v. L.M.M., 429 Mass. 824 (1999) makes an interesting claim regarding non-parental visitation.Ã‚Â It seems that since the Common Law does not provide for court ordered visitation from non-parents equity courts cannot act.Ã‚Â Here is one quote from the case:
Ã¢â‚¬Å“The court acknowledged that the statute itself did not limit the scope of equity jurisdiction, but rejected the plaintiff’s claim because he had not alleged biological paternity and therefore “did not assert a ground on which relief could be granted.” See Enos v. Correia, 38 Mass.App.Ct. 318, 323 n. 11 (1995), quoting R.W. Bishop, Prima Facie Case, Proof and Defense Section 1262 (3d ed.1987) (refusing to grant visitation to grandparents under general equity principles because “matters of equity jurisprudence include ‘cases in which the subject matter of the controversy is one recognized by the courts at common law, but in which the remedy at law is not plain, adequate and complete’” and because “[t]here is no common law right to grandparent visitation”). As in C.M. v. P.R., supra, the plaintiff here has stated no theory recognized under current Massachusetts law that justified the court in awarding visitation rights.Ã¢â‚¬Â
Problem is this same logic should be used to keep equity decisions out of divorce, state ordered custody determinations, or state ordered necessities for a child.Ã‚Â The state has created statutes overriding the plain, adequate, and complete remedy under the Common Law for these matters with arbitrary rulings in a court of equity.Ã‚Â Thus going from a plain, adequate, and complete remedy based on harm to state discretion has violated most of the fundamental social compact and constitutional precepts.
Instead the state by not understanding the Common Law remedies and limitations on the state has created an illegal equity/administrative courts.Ã‚Â Under the Common Law the state could not interfere with custody sans some harm as stated above.Ã‚Â Now the state creates the lie of parens patriae under equity and arbitrarily interferes with custody.Ã‚Â The state creates divorce where overwhelmingly one gender must endure the Common Law punishment of divorce without wrongdoing.
So the question is, Ã¢â‚¬Å“Can the state complicate a Common Law matter and then transfer it into equity?Ã¢â‚¬ÂÃ‚Â The answer under absolute rules in a Constitutional Republic is, Ã¢â‚¬Å“No.Ã¢â‚¬Â.Ã‚Â But in a police state with administrative laws the answer is. Ã¢â‚¬Å“Yes.Ã¢â‚¬Â
The jury under the Common Law was empowered to ‘nullify’ laws.Ã‚Â Jury nullification provided the people with the ability to compare their social norms to the laws the government was trying to impose on fellow citizens.
For example, the Massachusetts Body of Liberties punished adultery with death. Historians seem to speculate that no one was ever was put to death over adultery.Ã‚Â Jury nullification seems to have mitigated this law.Ã‚Â Juries would instead return with a verdict of ‘lewd and immoral conduct’.Ã‚Â By Statutes 1692-3 adultery had the same penalty as ‘lewd and immoral conduct’.Ã‚Â Ã‚Â A clear victory for jury nullification.
Despite this and other examples, modern courts decry jury nullification.Ã‚Â The courts do not want citizens determining for themselves what laws are applicable to their fellow citizens.Ã‚Â Instead the judiciary wants neutered juries to only do as they are told.Ã‚Â Put another way:
“If a juror accepts as the law that which the judge states then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen’s safeguard of liberty, — For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time.”, Theophilus Parsons Chief Justice of the Massachusetts Supreme Judicial Court from 1806 till 1813 (2 Elliot’s Debates, 94; 2 Bancroft’s History of the Constitution, p. 267)
As a Common Law matter the state does not have the right to adjudicate these matters in a court of equity with unbounded judicial discretion, especially given that a court order for ‘providing necessities for a child’, i.e., transformed into modern ‘child support’, always had the right to a trial by jury.Ã‚Â Juries have the right to nullify laws, especially when they violate the constitution.
Divorces around the time of the Declaration of Independence and the US Constitution were adjudicated under criminal jurisdiction. In the colonies and England divorces were determined in Common Law courts.Ã‚Â Divorce in the colonies was a punishment.Ã‚Â The guilty party of the divorce could never remarry.
Later divorces could also be adjudicated in Common Law courts as a civil matter, hereafter referred to as civil divorce.Ã‚Â In both the case of criminal and civil divorces harm had to be shown for a couple to be granted a divorce.Ã‚Â No-fault divorce was supposed to be about ending a divorce without requiring proving harm in a court of law.Ã‚Â No-fault divorce with any restraining order or claim of abuse against a spouse or child is not in fact a no-fault divorce.Ã‚Â It is a criminal matter that requires protections offered to the accused in a criminal, not an unbounded, unaccountable court of equity.
Divorce involving any type of claims of abuse or harm requires the more stringent rules that once existed in criminal or civil divorce cases because the decision impacts so many fundamental rights.Ã‚Â Because the state allows claims of harm to be introduced in no-fault divorce, civil and criminal punishments are being imposed that once were adjudicated in criminal divorces and in civil divorces.Ã‚Â The adjudication of harm in equity, no-fault divorce disregards a whole host of Constitutional protections. Ã‚Â The lower (almost non-existent) proof of harm can unconstitutional deprive one party in a no-fault divorce of personal liberties, happiness, and the First, Second, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments to the US Constitution.Ã‚Â Ã‚Â This list of impacted rights is taken from a variety of Federal rulings regarding the family constitutional rights.
The protections inherent in a criminal or civil divorce have been lost in no-fault divorce.Ã‚Â The problem is the state has misinterpreted the meaning of “no-fault divorce.”Ã‚Â If it is truly a no-fault divorce then the parties should not need the arbitrary state intrusions into the divorcing couple’s lives.Ã‚Â It should be about ending the marriage, not about the state imposing punishment without proving harm.Ã‚Â As stated above, “The classic situation of subjective decision-making under uncertainty is where juries come in.”Ã‚Â Juries should determine any issues in dispute between parties, not biased judges or state ideology.
The fact that divorce, custody and court ordered providing necessities for a child (i.e., modern child support) are separate and distinct Common Law concepts is undeniable.Ã‚Â The merging of these separate and distinct areas has violated a fundamental rule of law, destroyed Due Process, and natural and civil rights in family law.Ã‚Â The resulting administrative laws enforced in courts of equity has merged these actions and removed the requirements of harm.Ã‚Â Harm was the essential element in laws designed to provide justice, protect right, and fundamentally provide remedy for injury.
Absent harm the state has no right to arbitrarily intrude into the private realm of family life.Ã‚Â Claims of harm without the protection inherent in the Common Law and in criminal proceedings violate Due Process.
When the state tries to level the financial playing field post-divorce under the collectivist guise of social justice it is overstepping multiple constitutional provisions and creating slaves. The attempt to level the financial playing-field is a socialist/collectivist concept.Ã‚Â Lacking some harm, the state has no right to level any playing field or involve itself in someoneÃ¢â‚¬â„¢s life, period.
Under the Common Law, each person leads their own life with shared custody.Ã‚Â If adultery or some other harm then the injured person can make a claim that they are due a remedy for the injury.Ã‚Â No injury, no remedy.
Instead the state ignores harm, even creates harms by incentivizing destroying the family.Ã‚Â Since the family is the safest and most secure place for children, harm to the family harms children and hence should requires remedy.Ã‚Â Hypocrisy upon hypocrisy in a system that should be evolving according to societies need to punish harm.Ã‚Â Instead stagnate, stunted administrative law, driven by profits, replaces Common Law protections.Ã‚Â Societal morals in social compact replace with Stalinist administrative law.
Under a Constitutional Republic people have God given rights.Ã‚Â Interfering with those rights requires strict scrutiny, not blithely via state collectivist ideology.Ã‚Â Each person has the right to enjoy their life, liberty and to their happiness independent of other person’s whims.
But for the state to mandate one parent maintain a certain standard of living at the expense of another is nothing more than an illegal transfer of wealth scheme.Ã‚Â The right to the fruit of your labor is a natural right.Ã‚Â The object of the law is not to impose the wishes of one party over another but to provide remedy for harm.
Fundamentally, by removing the right to a trial by jury and other Common Law protections the state has usurped the law.Ã‚Â Although the law changes over time, the Common Law was supposed to be the mechanism in this country for social change, not unbounded judicial discretion.
Presumptive equal shared parenting is arguably the best option.Ã‚Â Common Law trial by juries with courts providing a structured procedural venue to protect the fundamental liberty interest, natural and constitutional rights of those involved.Ã‚Â Family law issues should be judged according to the highest standard.Ã‚Â Those standards are best judged under Common Law rules with a trial by jury, not judicial discretion colored by Title IV money.
Change requires ousting those in power from power.Ã‚Â The Tea Party movement is the best mechanism to level the playing field between citizens and the government.Ã‚Â The courts are too steeped in their collectivist lies and Benthamistic Utilitarianism to be concerned with rights.
 Ã¢â‚¬Å“[N]o theft can be committed in an empty pocket,Ã¢â‚¬Â O. W. Holmes, Ã¢â‚¬Å“The Common LawÃ¢â‚¬Â
 Appeals of the Privy Council, Vol V, Page 366 (Colonial governments had to adjudicate divorce in either Common Law or Ecclesiastical courts, not equity courts); Barber v. Root, 10 MA 260 (1813) (Divorce adjudicated solely under criminal jurisdiction of SJC.); Pidge v. Pidge, 44 Mass. 257 (1841) (Until 1838 all divorce was done under criminal jurisdiction and divorces in England were also done under Common Law jurisdiction.);
 In re Barry, 42 F. Cas. 945 (1844); Barry v. Mercein, 46 US 103 (1847); In re Burrus, 136 US 586 (1890); Ex Parte Barry, 43 U.S. 65 (1844).Ã‚Â All of these case discussing parens patriae requiring Common Law jurisdiction.
 KentÃ¢â‚¬â„¢s Commentaries on American Law, Volume 2, Part IV, Lecture 29, First Edition, specifically, Ã¢â‚¬Å“It [providing necessities to the child] will always be a question for a jury, …Ã¢â‚¬Â; Kirby v. Kirby, 338 Mass 263 (1959); Hanover v. Turner, 14 MA 227 (1817), Ã¢â‚¬Â(Upon this evidence the judge instructed the jury, if they were satisfied by the evidence of the defendant’s gross abuse of his wife, Ã¢â‚¬Â¦); Burlen v. Shannon, 115 MA 438 (1874); Alley v. Winn, 134 MA 77 1883); Commonwealth v. Ham, 156 MA 485 (1892); Commonwealth v. Acker, 197 MA 91 (1908)
 Marbury v. Madison, 5 US 137 (1803)
 The Origins of the Doctrine of Parens Patriae, Lawrence B. Custer, 27 Emory L. J. 195 1978, Page 203
 Commonwealth v. Hammond, 27 Mass. 274 (1830) and Curtis v. Curtis, 71 Mass. 535 (1855); Ã¢â‚¬Å“Ã¢â‚¬Â¦ if the infant be of sufficient discretion it will also consult its personal wishes.Ã¢â‚¬Â, U.S. v. Green, 26 F. Cas. 30 (3 Mason, 482) (1824);
 Angel v. McLellan, 16 Mass. 28 (1819), Baldwin v. Foster, 138 Mass. 449 (1885), Creely v. Creely, 258 Mass. 460 (1925) All of these cases involve absolving (including overturning jury verdicts) the father of child support because harm had not been proven.
 “a court having jurisdiction in cases where a plain, adequate and complete remedy cannot be had at law.” Minturn v. Farmers’ Loan & Trust Co, 3 N.Y. 498 (1850); Ã¢â‚¬Å“The sixteenth section of the judiciary act of 1789 enacted that such suits ‘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;’Ã¢â‚¬Â Scott v. Neely, 140 U.S. 106 (1891); Georgia v. Brailsford, 2 U.S. 2 Dall. 415 415 (1793); Grand Chute v. Winegar, 82 U.S. 15 Wall. 373 (1872); McClaugherty v. McClaugherty, 180 Va. 51, 68-69, 21 S.E.2d 761, 768 (1942)
 Judge William Young, Boston Federal Court, http://volokh.com/posts/1218815216.shtml
 JOHN JAY (1794): Ã¢â‚¬Å“The jury has a right to judge both the law as well as the fact in controversy.Ã¢â‚¬Â For additional quotes see http://www.levellers.org/jrp/orig/jrp.jurquotes.htm
 Barber v. Root, 10 MA 260 (1813) (Divorce adjudicated solely under criminal jurisdiction of SJC.); Pidge v. Pidge, 44 Mass. 257 (1841) (Until 1838 all divorce was done under criminal jurisdiction.);
 Troxel v Granville, 530 U.S. 57 (2000); Brokaw v Mercer County, 235 F.3d 1000 (2000); Smith v Organization of Foster Families for Equality and Reform, 431 U.S. 816 (1977); Duchesne v Sugarman, 566 F.2d 817 (1977)
 E.N.O. v. L.M.M., 429 Mass. 824, 711 N.E.2d 886 (1999) makes an interesting claim regarding non-parental visitation because equity courts cannot tread on Common Law matters (“matters of equity jurisprudence include ‘cases in which the subject matter of the controversy is one recognized by the courts at common law, but in which the remedy at law is not plain, adequate and complete.’”).Ã‚Â And Legate v. Legate, 877 Tex. 248 (1894) Ã¢â‚¬Å“Ã¢â‚¬Â¦ [custody] presumption is overcome by plain and ample proof.Ã¢â‚¬Â