Are family law attorneys violating their ethical requirements when they refuse to protect your constitutional rights? Can they be punished or sued for this? The American Bar Association provides a set of rules for attorney professional conduct. In its preamble it lists a lawyer’s responsibilities that says. “… As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications.”
Are judges violating their oaths to the Constitution when they deprive you of your rights as a fit parent? All judges are required to take an oath of office and swear to place the Constitution above everything else [i]. This oath makes it a legal obligation of every judge to place the U.S. Constitution over any and every state statute.
The Supreme Court said over 200 years ago in Marbury v. Madison that the Constitution is the supreme law of the land and any law that violates the constitution is void, “Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.” The Supreme Court in this same opinion said that the judge’s oath of office gives them, all judges, authority and a legal duty to declare any state statute void where it violates the Constitution. In fact, the court in Marbury says that it would be a crime for a judge to be barred from acting on this oath [ii].
Many judges and attorneys will tell you that only Appellate Courts can declare a statute void as being unconstitutional but they are either ignorant of this case—one of the most important cases in our country’s history—or they are intentionally misleading you to protect their own interests. Where they place their interests over your constitutional rights they are violating their ethics as an attorney and their oath as a judge.
When your rights are violated by a judge, the appellate courts will first look to see if you raised an objection to the violation in the hearing. In some cases, they may refuse to hear your appeal if you did not object properly in the hearing. Where your attorney tells you that you should not raise constitutional rights at the trial court, they are placing you at some extra risk of not being able to appeal your constitutional rights.
Why do the appellate courts do this? They do it because they say the trial court must be given the opportunity to rule on the violations before they are appealed. If the trial court did not have authority to declare a statute void as unconstitutional then why would the appellate court have these rules?
If your attorney refuses to make your constitutional objections at the trial court, not only are they violating their ethical duty to inform you of your rights but they are also potentially providing ineffective assistance of counsel. This gives you a difficult but possible avenue for appeal. It also gives you a potential avenue to sue your attorney for malpractice. However, it is incredibly difficult to find an attorney who will sue another attorney.
If your attorney tells you that you do not have parental rights, respond with this. “The United States Supreme Court said in Troxel v. Granville, 530 US 57 – Supreme Court 2000, “In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” What exactly is it that takes this right away from me in divorce? What exactly is the due process that allows the court to violate my rights? Why will you not protect my right to due process? These rights have been well established at least since 2000. Why are you allowing the other side and the court to violate my well established rights?
Look to further posts to provide additional arguments of this type.
[i] Article VI of the U.S. Constitution: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
[ii] Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or, to take this oath, becomes equally a crime.