Preventing Trial Counsel from Waiving Fundamental Parental Rights: Litigants in child custody litigation frequently forfeit constitutional protections when trial attorneys operate under local customary practices and fail to assert fundamental Fourteenth Amendment rights on the record. Fit parents must actively require counsel to enter written constitutional objections against discretionary best-interest standards, preserving trial errors for appellate review and holding trial courts strictly accountable to binding constitutional law.
Are family law attorneys violating ethics
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: “[2]… 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
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.
PSA: Is Your Attorney Lying Just to Get Your Money?
Are you being billed for motions that don't protect your rights? Watch Ron B. Palmer explain the warning signs of attorneys billing through unnecessary conflict.
The Constitution is the supreme law of the land
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].
JUDGES AND ATTORNEYS ARE LYING TO YOU
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.
Q: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?
A: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 U.S. 57 (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?
Evaluating Attorney & Judicial Misconduct Under ABA Codes of Conduct
When family law attorneys tell parents that constitutional rights do not apply, or when judges punish parents for asserting their constitutional rights, they are not simply expressing opinions. They are violating established codes of professional and judicial conduct. Understanding these specific violations gives parents the legal vocabulary to demand compliance and hold professionals accountable.
1. Rule 1.1: Competence
"A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
Violation in Family Court: Refusing to research, plead, or argue controlling federal constitutional precedents (such as Troxel v. Granville and Santosky v. Kramer), and falsely claiming that constitutional rights do not apply in domestic relations proceedings. Under the Supremacy Clause (Article VI, Clause 2), every licensed attorney is legally obligated to know that federal constitutional protections govern all state custody proceedings.
2. Rule 1.2(a): Allocation of Authority & Scope of Representation
"...A lawyer shall abide by a client's decisions concerning the objectives of representation and... shall consult with the client as to the means by which they are to be pursued."
Violation in Family Court: Overriding a client's explicit objective to protect their parental rights, demand strict scrutiny, and object to unconstitutional state interference. While the attorney manages technical procedure, the parent defines the fundamental objectives. When an attorney refuses a client's written demand to preserve fundamental constitutional rights, they violate Rule 1.2(a).
3. Rule 1.4: Communication & Informed Consent
"A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
Violation in Family Court: Concealing the fatal operation of the universal Appellate Waiver Doctrine. If an attorney fails to make constitutional objections on the record during trial, the client is permanently barred from raising those violations on appeal. Failing to inform a client of this consequence deprives them of informed consent.
4. Rule 2.1: Independent Professional Judgment
"In representing a client, a lawyer shall exercise independent professional judgment and render candid advice."
Violation in Family Court: Compromising the client's legal position to preserve cordial relations with the local trial judge or avoid friction within the local bar association. An attorney's ethical allegiance is strictly to the client and the rule of law, not to local courtroom camaraderie.
5. Rule 8.4(d): Misconduct & Conduct Prejudicial to Justice
"It is professional misconduct for a lawyer to... engage in conduct that is prejudicial to the administration of justice."
Violation in Family Court: Actively participating in or facilitating rubber-stamp custody deprivations, concealing material constitutional law from the court, engaging in off-the-record ex parte chambers conferences, or coercing clients into waiving their fundamental parental authority.
Canon 1, Rule 1.1: Compliance with the Law
"A judge shall comply with the law, including the Code of Judicial Conduct."
Violation in Family Court: Under Article VI, Clause 2 (the Supremacy Clause), the United States Constitution is the supreme law of the land. When a judge elevates a state domestic relations statute or local policy above controlling federal Supreme Court precedents, that judge acts in open violation of Rule 1.1.
Canon 2, Rule 2.2: Impartiality and Fairness
"A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially."
Violation in Family Court: Presuming that the state has an automatic interest in reallocating custody merely because parents are divorcing, rather than upholding the constitutional presumption that fit parents act in their children's best interests (Parham v. J.R., 442 U.S. 584 (1979); Troxel, 530 U.S. at 68).
Canon 2, Rule 2.6(A): Ensuring the Right to Be Heard
"A judge shall accord to every person who has a legal interest in a proceeding... the right to be heard according to law."
Violation in Family Court: Silencing parents who assert constitutional defenses, cutting off objections, refusing to allow written offers of proof, or threatening litigants and counsel with contempt or fee-shifting for making a constitutional record.
How Parents Can Find & Map State-Specific Disciplinary Rules
The American Bar Association rules are "model" rules. Each state adopts its own version. Fortunately, 49 out of 50 states adopt the exact ABA rule numbering system (e.g. Rule 1.1 is always Competence; Rule 1.2 is always Scope of Representation). California reorganized its rules in November 2018 to mirror the ABA numbering.
| ABA Model Rule | Texas (TDRPC) | California (CRPC) | New York (22 NYCRR) | Florida (Ch. 4) | Illinois (IRPC) |
|---|---|---|---|---|---|
| Rule 1.1 (Competence) | Rule 1.01 | Rule 1.1 | Rule 1.1 | Rule 4-1.1 | Rule 1.1 |
| Rule 1.2 (Scope & Objectives) | Rule 1.02 | Rule 1.2 | Rule 1.2 | Rule 4-1.2 | Rule 1.2 |
| Rule 1.4 (Communication) | Rule 1.03 | Rule 1.4 | Rule 1.4 | Rule 4-1.4 | Rule 1.4 |
| Rule 2.1 (Advisor & Candor) | Rule 2.01 | Rule 2.1 | Rule 2.1 | Rule 4-2.1 | Rule 2.1 |
| Rule 8.4 (Misconduct) | Rule 8.04 | Rule 8.4 | Rule 8.4 | Rule 4-8.4 | Rule 8.4 |
Step-by-Step Parent Lookup Guide
- Locate Your State's Disciplinary Code: Search Google for
"[Your State] Rules of Professional Conduct". Look for the official state court or state bar website (.gov or .org). - Identify the Disciplinary Body: Note the agency that prosecutes attorney misconduct in your state (e.g. the State Bar Disciplinary Board, Attorney Grievance Commission, or Board of Bar Overseers).
- For Judges: Search for
"[Your State] Code of Judicial Conduct"and identify the state agency overseeing judicial ethics (usually called the State Judicial Conduct Commission or Judicial Qualifications Commission). - Issue a Written Directive Before Court: Send your attorney a formal written letter titled "Directive of Representation & Scope of Objectives Under Rule 1.2" instructing them in writing to assert your Fourteenth Amendment fundamental rights, object to any best-interest reallocation without strict scrutiny, and preserve the appellate record. This written notice establishes an unmistakable record of duty and eliminates any defense of "client consent."
Look to further posts to provide additional arguments of this type.
Footnotes & Constitutional Authorities
- [i]Article VI, Clause 3 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."
↑ Back to text - [ii]Chief Justice John Marshall, Marbury v. Madison, 5 U.S. 137 (1803):
"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."
↑ Back to text
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