EXTREME JUDICIAL FAILURE: MARYLAND – Appellate Court Wrong about Parental Rights

When it comes to family law, state court judges seem to simply lose their minds. The garbage they spew to justify their illegal actions is legend. This article exposes the shame of the Maryland Court of Appeals, the highest state court in Maryland.

Maryland Court of Appeals

As recently as 2005, this court made one of the most absurd statements imaginable. The court claims that when two fit parents are in a custody dispute that they both have equal constitutional rights and because they both have equal constitutional rights protecting them from government infringement of those rights that the rights cancel out and the government is free to invade those rights based on nothing more than the mere viewpoint of a sole government official regarding First Amendment speech, association, and worship rights:

McDermott v. Dougherty, 869 A. 2d 751, 770 (Md: Court of Appeals 2005), (Effectively, then, each fit parent’s constitutional right neutralizes the other parent’s constitutional right, leaving, generally, the best interests of the child as the sole standard to apply to these types of custody decisions. Thus, in evaluating each parent’s request for custody, the parents commence as presumptive equals and a trial court undertakes a balancing of each parent’s relative merits to serve as the primary custodial parent; the child’s best interests tips the scale in favor of an award of custody to one parent or the other.)

Maryland Appellate Court gets Parental Rights Wrong.

There are so many problems with this holding that it is hard to know where to start.

  • First, the court unconstitutionally presumes that it has the power to award custody to parents who already have full and equal custody rights and that parents are “requesting” custody of their child.

This is an absolutely flawed and unconstitutional statement. Both parents enter the child custody proceedings with full and equal custody rights to their child. Neither parent is requesting custody from the state because they both already have custody.

Parental rights do not cancel each other out.

What is happening is that one or both parents is requesting the state to infringe the custody rights of the other parent. They are asking the court to violate a parent’s constitutional right that is well-established and they are asking the court to do so using an unconstitutional process. This action, as our book “Oath Breakers: The Lies Family Courts Tell” begins to explain, invokes the state action doctrine which potentially opens that parent to a civil rights suit for damages in a federal court. It is very possible that you can sue the other parent for asking the court to violate your civil rights using an unconstitutional process.

  • Second, the court unconstitutionally presumes that only one parent can have custody.

The Court undertakes “a balancing of each parent’s relative merits to serve as the primary custodial parent” using nothing more than the best interest of the child (BIC). The Supreme Court has already determined that BIC is not a compelling state interest and is not sufficient to invade fundamental rights.

  • Third, the court presumes that the best interest of the child standard is the only standard that can address this issue where the best interest of the child standard is only about 50 years old, how was it handled prior to that?

Best interest of the child is not sufficient to infringe rights of a fit parent.

The Supreme Court has held that the best interest of the child standard is not a sufficient standard to infringe the rights of a fit parent in a child custody dispute.

The Supreme Court has held that in civil cases generally, including family law cases, that when rights are in conflict those rights must be balanced using the test established in Mathews v. Eldridge. This is clearly an alternative to the best interest standard (BIS).

A best interest determination is nothing more than viewpoint discrimination.

A judicial best interest determination as we have previously discussed is nothing more than viewpoint discrimination where a judge uses their personal viewpoint on matters of conscience in child-rearing to restrict parent-child speech, association, and worship that is protected by the First Amendment through the Fourteenth Amendment.

The Constitution Removes the Judge’s Power to Take Your Child without Due Process of Law.

  • Fourth, the court ignores the nature of the rights that are in conflict and the powers that are forbidden to the states.

Why is this important? Because a right that is expressed in negative form—power removed from government authority—cannot possibly be “neutralized” because two people are entitled to the same constitutional protection from government exercise of power. The government cannot under any circumstances deny these two parents due process of law simply because the state is required to protect each parent’s right to due process of law. These negative rights are absolute in the sense that the government does not have the power to infringe the right unless the government establishes that a constitutionally recognized exception exists to this limitation on government power. The US Supreme Court has never ever held that custody disputes between fit parents can be resolved absent due process. 

So, the shame of the Maryland Court of Appeals is that they make pathetically absurd unconstitutional presumptions and fail to see that a procedural due process balancing test supported by a substantive rights analysis is not only a viable alternative to the best interest joke of a standard but is the constitutionally mandated alternative to the best interest non-standard.

Courts exist and survive only on our acceptance of them as a fair and legitimate authority. The Maryland Court of Appeals has demonstrated itself to be the opposite of a fair and legitimate authority. The way to defeat crooked courts like the Maryland Court of Appeals is to call them out publicly for their criminality.

I use the word criminality in its original sense, in the way Chief Justice Marshall used it in Marbury v. Madison where he called compelling an official to violate the constitution to be a crime. The courts have bastardized the term so that it now is only used with specifically criminal statutes. But I agree with Marshall that violating the constitution is a crime and that the justices on the Maryland Court of Appeals are in fact criminals. (If you do not understand these concepts, become a member where we teach you them. The courts count on you not learning this.)

The Constitution does not protect an affirmative “grant” of parental rights but instead creates a negative right through both the First and Fourteenth Amendments. A negative right is a right that is protected by specifically removing power from the state.

As an example, the Texas constitution creates an affirmative grant of free speech with the words, “Every person shall be at liberty to speak, write or publish his opinions on any subject…” This affirmative right stands in contrast to the First Amendment’s negative right, “Congress shall make no law … abridging the freedom of speech…” and the Fourteenth Amendment’s negative right, “nor shall any state deprive any person of life, liberty, or property, without due process of law…” In the first case, the person has a specific liberty, in the second case the government is prohibited from restricting speech or denying due process.

Due process under First Amendment analysis demands that viewpoint discrimination survive strict scrutiny constitutional review before the judge can exercise that power. Strict scrutiny is an extremely difficult—close to impossible—standard that the state has to meet before the state may intervene. Not only that but the court’s orders must be demonstrated by the judge to be the least restrictive means available to the judge to meet the compelling state interest which is at the heart of strict scrutiny.