There have been questions about courts of equity and whether they have to follow the law. The following is a very simplified explanation of the function of courts of equity.

Equity courts were established when someone did you wrong and there was no law for it, so you went to a judge and he made a just and fair ruling on basic fairness. There are rules spelled out about how courts are to go about making equitable decisions.

Equity courts are basically common law courts and if a statute exists that covers an issue that statute overrides common law and equity concerns. Even under statutory law the laws don’t cover every nook and cranny. For instance, property division in divorce. Even though we have statutes, the statutes don’t cover every permeation of property ownership and potentials for divisions of property and property valuation, etc. So when the court gets down into those details it has to rely on equitable principles. So even when there are statutes the court may still use some equity if the issues are more complex than the statute covers.

Equity is a fallback position for any time there is a gap in statutory coverage. Courts always act under equity and statutes are really supposed to be written expression of equity. Statutes are supposed to be basically fair.

Where most people get confused is whether courts of equity must follow laws. Courts of equity do not have a free pass to ignore the law. The next time a judge tells you that they can ignore the law because they are a court of equity, now you can tell them the following:

The only time they can ignore a statute that covers an issue that they are dealing with is if they determine that statute violates the constitution of the state or of the country. And then the statute technically doesn’t exist because the legislature has no legitimate authority to pass a statute that violates the constitution. And if you prove a statute is unconstitutional, this still doesn’t leave a void where the judge gets to do whatever they want, they still have to apply the constitutional protections. Don’t let them make you think any differently. Just because they are a judge doesn’t mean that they get to ignore these rules.

Please keep in mind that when we state things like “the statute technically doesn’t exist” this doesn’t mean that you will be able to ignore the statute. You still have to prove your case and get a court to agree that the statute is unconstitutional before you can say the statute cannot affect you.

And if you were wondering, most family courts in the United States are combined courts of equity and courts of law. The judge is supposed to follow the statute first and use equity for the portions that are not covered in the statutes. This does not give the judge the authority to violate your fundamental constitutional rights.

What we see happen in many situations though is that what they are asking the court to do alludes to asking the court to interfere with your rights. When you ask the court to believe you over the other parent and try to prove to the court that you are a good parent or person and that they should see the lies of the other person, you are asking the judge to use their conscience and decide who is the better person.

If you want to know how to ask the court to provide you with proper due process protection then get the Equal Protection Motion.
This motion speaks in the language that the court should understand and tells the court that you are asking for protection of your fundamental parental rights. We know that most parents have fought using defensive strategies because they weren’t being told any other way and they weren’t being given any other option.

Many courts and judges will continue to do as they have been doing and will continue to follow the unconstitutional statute because they think they will continue to get away wit it as they have been. So you will need to be prepared to appeal them to challenge if they ignore your demands or deny them without proper cause.

DISCLAIMER: We are not attorneys, please seek the help of an attorney for your legal questions.