Kim and Dave Hodgin became the foster parents of Sonya before she was two. She was adopted by them in 2008. Before the adoption was finalized, Sonya’s birth father, John McCaul pled guilty to transporting firearms and was sentenced to 15 years in federal prison. Under Tennessee law, parents who are incarcerated for more than ten years do not have any rights to a child under the age of 8, so McCaul’s custody rights to Sonya were terminated. McCaul later cut a deal by providing information that he had about a homicide and his sentence was reduced to 7 ½ years which allowed him to assert his parental rights and fight to reverse the adoption.
http://www.cnn.com/2014/05/15/us/tennessee-adoption-battle/
In November 2009, the adoption was reversed but Sonya continued to live with the Hodgins while both sides disputed custody. In January 2014, a judge returned Sonya, now 9 years old, to McCaul’s custody. Sonya has moved from the Hodgins’ home in Tennessee and now lives in Omaha, Nebraska with McCaul. According to the Hodgins, Sonya has been begging to come home. The Hodgins have filed a petition in Tennessee requesting that Sonya be returned to their custody.
http://www.nydailynews.com/news/national/girl-begs-adoptive-parents-retrieve-biological-dad-custody-article-1.1795109
Both these article imply that there were no visits between Sonya and her biological father during his incarceration, so she essentially has no memories of him and as the Hodgins state, he is a stranger to her. It is surprising to me that custody was changed so drastically and so suddenly. I am not implying that this was the wrong decision, only that I am surprised that the judge ordered Sonya to live with essentially a stranger without some type of transitional period. While McCaul will remember Sonya, the reverse isn’t true and I would imagine there would be a slightly less traumatic way to transition Sonya into McCaul’s custody gradually.
Showing posts with label children and law. Show all posts
Showing posts with label children and law. Show all posts
Wednesday, May 28, 2014
Tuesday, April 1, 2014
Update on the Pelletier Case
This is a follow up to one of my older blogs about Justina Pelletier, the 15 year old Connecticut teenager who suffers from some psychiatric and physical medical issues. Justina was removed from her parents’ custody while receiving medical treatment at a Boston area hospital and temporarily placed in the custody of the state.
Last week, Massachusetts Juvenile Court JudgeJoseph Johnston awarded "permanent" custody of Justina to the state. Her parents are not allowed to appeal the decision until summer.
According to the Boston Globe, the Judge found there was sufficient evidence to find that Justina’s parents "were unfit to care for the complex medical and psychiatric needs of their daughter." The state has no immediate plans to return Justina to Connecticut or to the custody of her parents.
http://www.boston.com/news/local/massachusetts/2014/03/25/justina-pelletier-placed-permanent-custody-massachusetts/lMO3EJpwPOfiVJWu06IY5K/story.html
Last week, Massachusetts Juvenile Court JudgeJoseph Johnston awarded "permanent" custody of Justina to the state. Her parents are not allowed to appeal the decision until summer.
According to the Boston Globe, the Judge found there was sufficient evidence to find that Justina’s parents "were unfit to care for the complex medical and psychiatric needs of their daughter." The state has no immediate plans to return Justina to Connecticut or to the custody of her parents.
http://www.boston.com/news/local/massachusetts/2014/03/25/justina-pelletier-placed-permanent-custody-massachusetts/lMO3EJpwPOfiVJWu06IY5K/story.html
Wednesday, March 26, 2014
Recovery under the Hague Convention
Christian Nørgaard, a Danish computer science engineer was working in California when he met and married Tammy Zied, a software engineer. They married in Redwood City, California and had two daughters, Mia and Sarah, both born in California. The family moved to Germany then Denmark for Christian’s employment.
While living in Denmark, the couple separated and in 2012, the Danish courts granted sole custody of both children to Christian. Tammy accused Christian of violence against her and the daughters. Mia began running away from Christian’s home, according to Tammy, to "escape the violence". Last May, Mia arrived in the United States and Sarah was left in Denmark with Christian. It is unclear whether Mia came to the United States with permission of Christian and was never returned, or whether Mia went to the United States without the consent of Christian and against the court order.
According to an article published in the Copenhagen Post in August 19, 2013, Mia was reported as kidnapped to Interpol after Tammy failed to return her to Christian after an Easter visit. Tammy had told the police that Mia had run away and she didn’t know where she was. Police suspected that Tammy was hiding Mia and held her in custody for five days. When she was released, Tammy disappeared.
http://cphpost.dk/news/american-mother-suspected-of-kidnapping-her-daughter.6461.html
Mia and Tammy were living in Laguna Niguel. On January 31, 2014, the local authorities took Mia to a youth facility. Christian returned to California and Mia was returned to him a few days later. It appears that Mia is now with Christian and Sarah in Denmark.
Christian filed a Petition in Orange County under the Hague Convention and received assistance from the United States in the return of Mia to his custody.
http://www.ocregister.com/articles/mia-604827-denmark-danish.html
Generally, exercising self-help in custody cases is not a good option. If faced with a similar situation or if you don't like the orders that are in place, the remedy would be to petition the court that made the orders, in this case Denmark, for a modification. Orders are binding and disobeying a court order or using self-help will make it more difficult to obtain custody or visitation in the future.
While living in Denmark, the couple separated and in 2012, the Danish courts granted sole custody of both children to Christian. Tammy accused Christian of violence against her and the daughters. Mia began running away from Christian’s home, according to Tammy, to "escape the violence". Last May, Mia arrived in the United States and Sarah was left in Denmark with Christian. It is unclear whether Mia came to the United States with permission of Christian and was never returned, or whether Mia went to the United States without the consent of Christian and against the court order.
According to an article published in the Copenhagen Post in August 19, 2013, Mia was reported as kidnapped to Interpol after Tammy failed to return her to Christian after an Easter visit. Tammy had told the police that Mia had run away and she didn’t know where she was. Police suspected that Tammy was hiding Mia and held her in custody for five days. When she was released, Tammy disappeared.
http://cphpost.dk/news/american-mother-suspected-of-kidnapping-her-daughter.6461.html
Mia and Tammy were living in Laguna Niguel. On January 31, 2014, the local authorities took Mia to a youth facility. Christian returned to California and Mia was returned to him a few days later. It appears that Mia is now with Christian and Sarah in Denmark.
Christian filed a Petition in Orange County under the Hague Convention and received assistance from the United States in the return of Mia to his custody.
http://www.ocregister.com/articles/mia-604827-denmark-danish.html
Generally, exercising self-help in custody cases is not a good option. If faced with a similar situation or if you don't like the orders that are in place, the remedy would be to petition the court that made the orders, in this case Denmark, for a modification. Orders are binding and disobeying a court order or using self-help will make it more difficult to obtain custody or visitation in the future.
Monday, March 17, 2014
Demographics of Reported Cases of Child Maltreatment
The Centers for Disease Control and Prevention (CDC) has released statistics and demographic data regarding the victims and perpetrators of child maltreatment. It appears that most of the data was obtained and processed through information that was provided by state child protective services agencies, so this might be only data of reported child maltreatment cases.
Of the victims, 79% were the victims of neglect, 18% of physical abuse, 9% of sexual abuse and 10% of other maltreatment such as threatened abuse, parent’s drug/alcohol abuse or lack of supervision. In 2011, 35% of the victims were younger than 3 and children younger than 1 have the highest rate of victimization (21.2 per 1,000 children). In 2011, 80.8% of the abuse was by a parent, 5.9% was by relatives other than parents, 4.4% by unmarried partners of parents and 2.9% by other unrelated adults. Again, in 2011, 45.1% of perpetrators were men and 53.6% were women.
http://www.cdc.gov/violenceprevention/pdf/cm-data-sheet--2013.pdf
Of the victims, 79% were the victims of neglect, 18% of physical abuse, 9% of sexual abuse and 10% of other maltreatment such as threatened abuse, parent’s drug/alcohol abuse or lack of supervision. In 2011, 35% of the victims were younger than 3 and children younger than 1 have the highest rate of victimization (21.2 per 1,000 children). In 2011, 80.8% of the abuse was by a parent, 5.9% was by relatives other than parents, 4.4% by unmarried partners of parents and 2.9% by other unrelated adults. Again, in 2011, 45.1% of perpetrators were men and 53.6% were women.
http://www.cdc.gov/violenceprevention/pdf/cm-data-sheet--2013.pdf
Thursday, March 6, 2014
Permissive Parenting: Best Interest of the Children?
A British court removed two boys, ages 11 and 14 from their 41 year old mother’s custody and placed them in the custody of their 43 year old father. Judge Laura Harris ruled that the mother had "significantly failed" the boys by her permissive parenting. She would sleep, use her Ipad or phone for hours at a time while her children would care for themselves. This caused issues for the children who were frequently late or would miss school. Additionally, mother was found to be systematically "poisoning" the children against their father.
http://www.telegraph.co.uk/news/uknews/law-and-order/10643643/Mother-loses-custody-battle-over-permissive-parenting-style.html
In California, similar to Judge Laura Harris in this case, courts will be reluctant to tell parents how to parent their children and will be tolerant of various parenting styles. If, however, the parenting is not in the best interest of the children or is causing the children harm, then courts will intervene. Also, "poisoning" or alienating the children against the other parent is also not in the best interest of the children and courts will tend to favor the parent they believe will foster the relationship between the children and the other parent.
http://www.telegraph.co.uk/news/uknews/law-and-order/10643643/Mother-loses-custody-battle-over-permissive-parenting-style.html
In California, similar to Judge Laura Harris in this case, courts will be reluctant to tell parents how to parent their children and will be tolerant of various parenting styles. If, however, the parenting is not in the best interest of the children or is causing the children harm, then courts will intervene. Also, "poisoning" or alienating the children against the other parent is also not in the best interest of the children and courts will tend to favor the parent they believe will foster the relationship between the children and the other parent.
Wednesday, January 15, 2014
Medical Treatment and Best Interest of a Child
Linda and Lou Pelletier from West Hartford, Connecticut are the parents of 15 year old Justina. Justina was originally diagnosed with a rare, genetic mitochondrial disease. She was being treated at Boston’s Tufts Medical Center. In February 2013, Justina was barely able to walk and virtually stopped eating so her parents took her to Tufts. She was sent to Boston Children’s Hospital because her Tufts gastroenterologist had recently transferred there. At Children’s Hospital, the doctors disputed the diagnosis and began to suspect that there was a psychological issue and that her parents were blocking the psychiatric care that she needed.
The parents complained of the change in treatment without involving Justina’s gastroneterologist. They then threatened to take Justin from Children’s hospital and back to Tufts. At this point, the doctors reported their suspicions of medical child abuse to the state and the child protective agency took emergency custody of Justina.
Justina has been in Boston Children’s Hospital for the last ten months, mostly in the psychiatric ward. The state has had difficulty placing Justina in foster care or a residential center due to her complicated case. Justina’s parents have been trying, over the last ten months, to regain custody of their daughter.
Their last court date was at the end of December, 2013. They had been hoping that Justina could return by Christmas. The Judge ruled that Justina would remain in the custody of hte state but that a court investigator should look at the case and set a new hearing for January 10.
Due to the gag order placed on this case preventing the release of information, we don’t know most of the details of this case or facts. It does appear that based on an evaluation, there was some determination of "medical child abuse" which, according to this article, is "applied to parents suspected of interfering with their child’s medical care of pushing for unnecessary and even harmful treatments." The Pelletiers are still attempting to regain custody of Justina.
http://www.bostonglobe.com/lifestyle/health-wellness/2013/12/21/state-retains-custody-teen-limbo-children-hospital-for-months/5TGcy5X8IxQusdtXgRmXdK/story.html
In California, the standard is the best interest of the child(ren). A determination would be made whether withholding treatment is in the best interest of the child(ren). In an instance where withholding or refusing medical treatment would result in the death or series injury in a minor child, it is likely that a judge would appoint a guardian ad litem for the minor who would then authorize the medical treatment, even if it is against the wishes of the parents.
The parents complained of the change in treatment without involving Justina’s gastroneterologist. They then threatened to take Justin from Children’s hospital and back to Tufts. At this point, the doctors reported their suspicions of medical child abuse to the state and the child protective agency took emergency custody of Justina.
Justina has been in Boston Children’s Hospital for the last ten months, mostly in the psychiatric ward. The state has had difficulty placing Justina in foster care or a residential center due to her complicated case. Justina’s parents have been trying, over the last ten months, to regain custody of their daughter.
Their last court date was at the end of December, 2013. They had been hoping that Justina could return by Christmas. The Judge ruled that Justina would remain in the custody of hte state but that a court investigator should look at the case and set a new hearing for January 10.
Due to the gag order placed on this case preventing the release of information, we don’t know most of the details of this case or facts. It does appear that based on an evaluation, there was some determination of "medical child abuse" which, according to this article, is "applied to parents suspected of interfering with their child’s medical care of pushing for unnecessary and even harmful treatments." The Pelletiers are still attempting to regain custody of Justina.
http://www.bostonglobe.com/lifestyle/health-wellness/2013/12/21/state-retains-custody-teen-limbo-children-hospital-for-months/5TGcy5X8IxQusdtXgRmXdK/story.html
In California, the standard is the best interest of the child(ren). A determination would be made whether withholding treatment is in the best interest of the child(ren). In an instance where withholding or refusing medical treatment would result in the death or series injury in a minor child, it is likely that a judge would appoint a guardian ad litem for the minor who would then authorize the medical treatment, even if it is against the wishes of the parents.
Monday, December 2, 2013
Believe Half of What You See*: The "Skier's Fetus Custody Case", And Other Internet Rumors
To say that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) isn't usually the stuff of the internet tabloids, and the "entertainment news" shows and sites is an understatement. So when it does make an appearance, it's frankly not horribly surprising when the tabloids, reputable online news outlets, and even the "Grey Lady" of American news media, don't get the details exactly right.
The short version of the story (and I haven't read the full trial court record either in New York or in California) seems to be that in May, a New York judicial officer made an odd, and fairly clearly wrong-headed decision on the issue of custody jurisdiction, kicking the case back to California. A judge in California, faced with an apparent "we don't want it!" from the New York court, then decided to act, since, at that point, no other court was willing to do so. Several months later, the appellate court in New York, in what is characterized as a "scathing" opinion, reversed the New York trial court's mistake.
Is any of this really news? Judges (and other judicial officers) sometimes make wrong decisions. Sometimes, they even make stupidly wrong decisions. That's what the appellate process is about.
*"People say believe half of what you see, and none of what you hear." Norman Whitfield and Barrett Strong: Heard It Through the Grapevine
The short version of the story (and I haven't read the full trial court record either in New York or in California) seems to be that in May, a New York judicial officer made an odd, and fairly clearly wrong-headed decision on the issue of custody jurisdiction, kicking the case back to California. A judge in California, faced with an apparent "we don't want it!" from the New York court, then decided to act, since, at that point, no other court was willing to do so. Several months later, the appellate court in New York, in what is characterized as a "scathing" opinion, reversed the New York trial court's mistake.
Is any of this really news? Judges (and other judicial officers) sometimes make wrong decisions. Sometimes, they even make stupidly wrong decisions. That's what the appellate process is about.
*"People say believe half of what you see, and none of what you hear." Norman Whitfield and Barrett Strong: Heard It Through the Grapevine
Monday, November 25, 2013
Demographics of Child Support Collection
According to the U.S. Census, of the $37.9 billion owed in child support, only $14.4 million was paid in 2011. Where the child had contact with the non-custodial parent, the full amount was received 49.1 percent of the cases. Where the child did not have contact with the non-custodial parent, the full amount of child support was only received 30.7 percent of the time.
Most custodial parents (81.7%) are mothers. According to the Census study, the more contact a child has with the non-custodial parent, the more likely the custodial parent will receive the full amount of child support. Other factors which were found to be associated with a higher likelihood of receiving the full amount of child support, according to the Census study, were the custodial parent having at least a bachelor’s degree (50.6%), being divorced (48.4) and being age 40 or older (48.4). 56.3 percent of parents sharing joint physical or legal custody received/paid the full amount of child support. This was the highest observed rate in the study.
Factors associated with a lower likelihood of receiving the full amount of child support, according to the study, were being under 30 years old (36.6%), having less than a high school education (36.4%) and never having been married (35.1%).
http://www.census.gov/newsroom/releases/archives/children/cb13-191.html
Most custodial parents (81.7%) are mothers. According to the Census study, the more contact a child has with the non-custodial parent, the more likely the custodial parent will receive the full amount of child support. Other factors which were found to be associated with a higher likelihood of receiving the full amount of child support, according to the Census study, were the custodial parent having at least a bachelor’s degree (50.6%), being divorced (48.4) and being age 40 or older (48.4). 56.3 percent of parents sharing joint physical or legal custody received/paid the full amount of child support. This was the highest observed rate in the study.
Factors associated with a lower likelihood of receiving the full amount of child support, according to the study, were being under 30 years old (36.6%), having less than a high school education (36.4%) and never having been married (35.1%).
http://www.census.gov/newsroom/releases/archives/children/cb13-191.html
Wednesday, November 20, 2013
Custody while Incarcerated
Dorothy Maraglino, 38, was pregnant when she was put in jail in May 2012 and charged with the murder of Brittany Killgore, a 22 year old marine’s wife whose husband was stationed in Afghanistan at the time of the murder. The child, a girl, was born in July 2012. Louis Ray Perez, 47, also a marine, is the father of the child. Perez is also charged with the murder, conspiracy, kidnapping, torture and attempted sexual battery of Killgore.
Maraglino gave custody of her child to Becky Zagha, 38. She says that she didn’t know Zagha well, but Perez asked her to give custody to her. Problems arose when, according to Maraglino, Zagha broke her promise to live in San Diego County and bring the child to weekly visits. Zagha moved to central California soon after the child was born. Zagha apparently also visited Perez and Maraglino frequently before the baby was born, but visits significantly decreased after she took custody.
Last month, Maraglino attempted, in a Fresno Court, to remove the child from Zagha and place her with Maraglino’s sister in South Carolina. The Court declined the request. Maraglino is now appealing that decision.
http://www.utsandiego.com/news/2013/Nov/02/marine-wife-accused-killer-custody/
A parent that is incarcerated doesn’t necessarily immediately lose their parental rights. Depending on their crime, and assuming that it doesn’t involve violence towards the other parent or the children, the incarcerated parent may retain, at least legal custody (decision-making) rights. Visitation can be more complicated and, obviously, overnight visits cannot typically happen. If both parents are incarcerated, in the absence of other arrangements regarding the custody of the children, the state will take custody of the child(ren) and they will be placed in foster care. Similar to any other custody dispute, unless there are written court orders for visitation, there won’t necessarily be visitation unless the custodial parent/guardian chooses voluntarily, to bring the child to the incarcerated parent.
While Zagha may have "promised" to bring the child to Maraglino every week, if there weren’t court orders, then there is no remedy if she doesn’t do that. Once Marglino and Perez gave Zagha custody without any other orders, Zagha was not obligated to bring the child to either parent for visits.
Maraglino gave custody of her child to Becky Zagha, 38. She says that she didn’t know Zagha well, but Perez asked her to give custody to her. Problems arose when, according to Maraglino, Zagha broke her promise to live in San Diego County and bring the child to weekly visits. Zagha moved to central California soon after the child was born. Zagha apparently also visited Perez and Maraglino frequently before the baby was born, but visits significantly decreased after she took custody.
Last month, Maraglino attempted, in a Fresno Court, to remove the child from Zagha and place her with Maraglino’s sister in South Carolina. The Court declined the request. Maraglino is now appealing that decision.
http://www.utsandiego.com/news/2013/Nov/02/marine-wife-accused-killer-custody/
A parent that is incarcerated doesn’t necessarily immediately lose their parental rights. Depending on their crime, and assuming that it doesn’t involve violence towards the other parent or the children, the incarcerated parent may retain, at least legal custody (decision-making) rights. Visitation can be more complicated and, obviously, overnight visits cannot typically happen. If both parents are incarcerated, in the absence of other arrangements regarding the custody of the children, the state will take custody of the child(ren) and they will be placed in foster care. Similar to any other custody dispute, unless there are written court orders for visitation, there won’t necessarily be visitation unless the custodial parent/guardian chooses voluntarily, to bring the child to the incarcerated parent.
While Zagha may have "promised" to bring the child to Maraglino every week, if there weren’t court orders, then there is no remedy if she doesn’t do that. Once Marglino and Perez gave Zagha custody without any other orders, Zagha was not obligated to bring the child to either parent for visits.
Wednesday, October 23, 2013
Legal Parents
In June 2008, in Carson City, Nevada, partners Sha’Kayla St. Mary and Veronica Lynn Damon had a child. Damon’s egg was used with donor sperm. St. Mary carried the child. St. Mary was listed on the child’s birth certificate on the mother and a year later, she signed an affidavit naming Damon as the biological mother.
The mothers had a co-parenting agreement and broke up when the child was about a year. St. Mary petitioned for custodial rights. A lower court judge ruled that St. Mary had no biological or custody rights since she was only the surrogate and they refused to consider a joint parenting agreement both mothers signed before the child was born. The Nevada Supreme Court disagreed. The Court ruled that the joint parenting agreement was more than a surrogacy agreement and St. Mary assets that she is the legal mother of the child in addition to Damon, not instead of Damon. Nevada’s Parentage Act does not prevent a child from having two legal mothers.
http://www.ajc.com/news/ap/nevada/surrogate-mom-can-seek-child-custody/nbFSj/
In California, Jerry Brown just recently signed a bill that allows a child to have more than two legal parents. This bill is in response to the changing family structure and the increasing number of same sex couples having children. The bill is to allow a courts to recognize the roles of all parents and to not separate a child from a figure that he/she knows as a parent.
http://www.latimes.com/local/la-me-brown-bills-parents-20131005,0,7226241.story
The mothers had a co-parenting agreement and broke up when the child was about a year. St. Mary petitioned for custodial rights. A lower court judge ruled that St. Mary had no biological or custody rights since she was only the surrogate and they refused to consider a joint parenting agreement both mothers signed before the child was born. The Nevada Supreme Court disagreed. The Court ruled that the joint parenting agreement was more than a surrogacy agreement and St. Mary assets that she is the legal mother of the child in addition to Damon, not instead of Damon. Nevada’s Parentage Act does not prevent a child from having two legal mothers.
http://www.ajc.com/news/ap/nevada/surrogate-mom-can-seek-child-custody/nbFSj/
In California, Jerry Brown just recently signed a bill that allows a child to have more than two legal parents. This bill is in response to the changing family structure and the increasing number of same sex couples having children. The bill is to allow a courts to recognize the roles of all parents and to not separate a child from a figure that he/she knows as a parent.
http://www.latimes.com/local/la-me-brown-bills-parents-20131005,0,7226241.story
Friday, October 11, 2013
Medical Marijuana and Custody
With medical marijuana becoming more common, both in growing and in prescriptions, it has raised the issue of the effect of medical marijuana and child custody. The general rule in California is the best interest of the child(ren). Despite having a valid prescription/license, there are an increasing number of custody disputes involving medical marijuana. This does not appear to be state specific and is becoming an issue in many states.
For example:
In Michigan, after deeming their home unsafe for a child because both parents are medical marijuana patients and marijuana growers, the state removed six month old Brielle from her parents' custody.
http://www.wlns.com/story/23486257/state-takes-medical-marijuana-caregivers-child-away
http://www.mlive.com/lansing-news/index.ssf/2013/09/lansing_marijuana_caregiver_fi.html
In San Diego County, California, two children were removed from the home of Michael Lewis and Lauren Taylor. Lewis, a Gulf war veteran was exposed to chemicals that cause debilitating migraines has a prescription for medical marijuana. Taylor tested negative in every drug test given and there was no evidence of neglect or abuse.
http://www.courthousenews.com/2013/08/12/60182.htm
In Colorado, a couple claims that were denied custody and were not allowed to adopt their ten month old great-granddaughter because both are medical marijuana patients. The child lived with them for five months before being removed by her mother. The state intervened and placed the child in foster care.
http://www.koaa.com/news/couple-claims-they-were-denied-custody-because-of-medical-marijuana-use/#_
Since this is a relatively new change, even though there is a steadily increasing number of medical marijuana patients and growers, there isn’t a law in California that addresses medical marijuana specifically. While there is no set definition of "best interest of the child", a court uses a set of factors to make this determination, as well as any other information it deems relevant. One of the factors used in deciding the best interest of the child(ren) is the "habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent" (Family Code 3011(d)). For now, it’s best to treat medical marijuana use like any other prescription medication. The general "rules" for prescription medication apply here, such as do not smoke in front of the children, keep it in a safe place out of reach of the children, do not ingest so much that you will be unable to properly care for the children, do not drive the children while under the influence, and so on.
For example:
In Michigan, after deeming their home unsafe for a child because both parents are medical marijuana patients and marijuana growers, the state removed six month old Brielle from her parents' custody.
http://www.wlns.com/story/23486257/state-takes-medical-marijuana-caregivers-child-away
http://www.mlive.com/lansing-news/index.ssf/2013/09/lansing_marijuana_caregiver_fi.html
In San Diego County, California, two children were removed from the home of Michael Lewis and Lauren Taylor. Lewis, a Gulf war veteran was exposed to chemicals that cause debilitating migraines has a prescription for medical marijuana. Taylor tested negative in every drug test given and there was no evidence of neglect or abuse.
http://www.courthousenews.com/2013/08/12/60182.htm
In Colorado, a couple claims that were denied custody and were not allowed to adopt their ten month old great-granddaughter because both are medical marijuana patients. The child lived with them for five months before being removed by her mother. The state intervened and placed the child in foster care.
http://www.koaa.com/news/couple-claims-they-were-denied-custody-because-of-medical-marijuana-use/#_
Since this is a relatively new change, even though there is a steadily increasing number of medical marijuana patients and growers, there isn’t a law in California that addresses medical marijuana specifically. While there is no set definition of "best interest of the child", a court uses a set of factors to make this determination, as well as any other information it deems relevant. One of the factors used in deciding the best interest of the child(ren) is the "habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent" (Family Code 3011(d)). For now, it’s best to treat medical marijuana use like any other prescription medication. The general "rules" for prescription medication apply here, such as do not smoke in front of the children, keep it in a safe place out of reach of the children, do not ingest so much that you will be unable to properly care for the children, do not drive the children while under the influence, and so on.
Wednesday, October 9, 2013
Choose your Monitor Wisely!
A Maine woman is charged with endangering the life of a child in a child abduction case. Jennifer Dore from Maine was supervising a visit between BethMarie Retamozzo and her children last month. Retamozzo drove away with the children and was lost in traffic. Dore did not report the incident to the authorities and spoke with them more than five hours later when the police contacted her.
The children were reported missing by their grandmother on August 15. Retamozzo and the children were found more than 1,100 miles away sleeping in their car at a rest stop on Interstate 95 in South Carolina. The police went to South Carolina and returned the children to Maine on August 26.
Dore was not a professional monitor, she was an acquaintance of the family and was selected by the parties to monitor the visits. She was not paid for her services. She is scheduled to appear in court on November 5.
http://www.pressherald.com/news/child-visitation-supervisor-charged-in-abduction-case_2013-08-29.html
In California, you also have an option to select a non-professional monitor to supervise visits. There can be a number of benefits in selecting a family friend or relative to monitor visits: it’s cheaper, there can more flexibility in time and locations of visits, the children may be more at ease in front of people they already know just to name a few. That said, be careful in selecting a monitor. If supervised visits are appropriate, then there are concerns about the children’s safety while with that parent. In selecting a monitor, the person must be someone you trust and that will protect the children, even if that requires preventing the supervised parent from doing or not doing something. Especially with family friends and/or relatives of the supervised parent, this can be difficult to do since they may feel loyalty to that parent.
Being a monitor is a big responsibility and it’s important that you explain their duties and responsibilities. If they are unwilling to perform those duties, then you’re better off selecting a different monitor or paying a professional monitor.
The children were reported missing by their grandmother on August 15. Retamozzo and the children were found more than 1,100 miles away sleeping in their car at a rest stop on Interstate 95 in South Carolina. The police went to South Carolina and returned the children to Maine on August 26.
Dore was not a professional monitor, she was an acquaintance of the family and was selected by the parties to monitor the visits. She was not paid for her services. She is scheduled to appear in court on November 5.
http://www.pressherald.com/news/child-visitation-supervisor-charged-in-abduction-case_2013-08-29.html
In California, you also have an option to select a non-professional monitor to supervise visits. There can be a number of benefits in selecting a family friend or relative to monitor visits: it’s cheaper, there can more flexibility in time and locations of visits, the children may be more at ease in front of people they already know just to name a few. That said, be careful in selecting a monitor. If supervised visits are appropriate, then there are concerns about the children’s safety while with that parent. In selecting a monitor, the person must be someone you trust and that will protect the children, even if that requires preventing the supervised parent from doing or not doing something. Especially with family friends and/or relatives of the supervised parent, this can be difficult to do since they may feel loyalty to that parent.
Being a monitor is a big responsibility and it’s important that you explain their duties and responsibilities. If they are unwilling to perform those duties, then you’re better off selecting a different monitor or paying a professional monitor.
Wednesday, October 2, 2013
Parents: your legal guide to Kids and The Law: (free from the California State Bar!)
Just in time for school! Here it is!
Thursday, September 26, 2013
Visitation Rights with Children Conceived by Rape
In Massachusetts, a rape victim became pregnant from the rape and gave birth a child in 2009. She was 14 years old at the time, the father, Jamie Melendez, was 20 at the time she got pregnant. Melendez was convicted of rape in 2011 and sentenced to 16 years of probation. One of the conditions of his probation was that he had to initiate proceedings in family court and comply with the court orders until the child becomes an adult. One of the orders made by the court was that Melendez pay $110 per week in child support.
Once he was ordered to pay child support, Melendez requested visitation rights with the child. He offered to withdraw the request for child support if he did not have to pay the support.
Massachusetts, along with 30 other states currently have no laws preventing fathers being given parental rights to children they fathered through a rape. California is not one of the 31 states and has a specific statute that restricts the visitation rights of pedophiles, convicted rapists, and also denies visitation rights to people convicted of rape with any children conceived from that rape. Federal legislation, the Rape Survivor Child Custody Act, was introduced in July 2013, encourages the states to adopt a judicial mechanism to terminate specific parental rights of fathers with their children conceived through rape.
Once he was ordered to pay child support, Melendez requested visitation rights with the child. He offered to withdraw the request for child support if he did not have to pay the support.
Massachusetts, along with 30 other states currently have no laws preventing fathers being given parental rights to children they fathered through a rape. California is not one of the 31 states and has a specific statute that restricts the visitation rights of pedophiles, convicted rapists, and also denies visitation rights to people convicted of rape with any children conceived from that rape. Federal legislation, the Rape Survivor Child Custody Act, was introduced in July 2013, encourages the states to adopt a judicial mechanism to terminate specific parental rights of fathers with their children conceived through rape.
Tuesday, September 3, 2013
Poor Parenting Choices: This Just in From Minnesota
If your 12 year old daughter gets poor grades, it's probably a bad parenting idea to shave her head, and make her run around outside in a diaper, as a means of disciplining her.
Friday, March 4, 2011
California Child Custody: What's Going On? Is It Broken? How?
"Believe half of what you see, and none of what you hear. "*
Last week, a Northern California newspaper published an extended piece, asserting, yet again, that the family law system is (quoting the cover headline) "helping pedophiles, batterers get child
custody".
While buried in the body of the piece was an acknowledgment that " it is impossible to say how common such cases are", that isn't exactly the same impression conveyed by the headline.
The same week, the Los Angeles Times ran a story regarding a psychiatrist/child custody evaluator in Los Angeles**. While that story was less obviously agenda-driven than the Northern California piece, it seemed short on well-verified facts, and long on "it is alleged, in documents filed with the court". Again, those authors implied that the problems that they referenced were systemic and pervasive. They offered no evidence for that implication.
There's little to offer.
The "studies" and "research" on the issues of the adequacy of the child custody/family court system in protecting children and victims of domestic violence, including those cited by outlets as reputable as Newsweek, are, if cited in support of any generalization about the system, are thin soup, perilously close to scientific junk.***
It may be that these problems are grossly under-reported, and systemic; my thirty-two years of practice makes me think otherwise, and leads me to conclude that the California system is actually quite child-centered, and victim-protective. I'm certainly unconvinced by the "studies", and by the information in the two articles. While I've railed about the lack of real objective information for nearly a decade, since the last such "scandal' erupted, the quality of the information has not yet noticeably improved.
The problems with the family law system are not, as far as I can tell, mostly the result of some system-wide bias or agenda; they're mostly from (a) the lack of adequate financial resources for the system to address these issues, and (b) the gross mis-allocation of resources within the judicial system. As I've said before, nobody ever successfully ran for statewide office in California on the platform: "I promise to spend more of your tax money on divorce court!"
* Ben Franklin, or E.A. Poe, or Marvin Gaye.
** Note that I have not provided links to the pieces above; they're here: "Helping" "Evaluator"
*** "That's not 'thin soup'. It's rat pee." Prof. Michael Shapiro.
"The plural of 'anecdotes' isn't 'data.' " Frank Kotsonis.
Last week, a Northern California newspaper published an extended piece, asserting, yet again, that the family law system is (quoting the cover headline) "helping pedophiles, batterers get child
custody".
While buried in the body of the piece was an acknowledgment that " it is impossible to say how common such cases are", that isn't exactly the same impression conveyed by the headline.
The same week, the Los Angeles Times ran a story regarding a psychiatrist/child custody evaluator in Los Angeles**. While that story was less obviously agenda-driven than the Northern California piece, it seemed short on well-verified facts, and long on "it is alleged, in documents filed with the court". Again, those authors implied that the problems that they referenced were systemic and pervasive. They offered no evidence for that implication.
There's little to offer.
The "studies" and "research" on the issues of the adequacy of the child custody/family court system in protecting children and victims of domestic violence, including those cited by outlets as reputable as Newsweek, are, if cited in support of any generalization about the system, are thin soup, perilously close to scientific junk.***
It may be that these problems are grossly under-reported, and systemic; my thirty-two years of practice makes me think otherwise, and leads me to conclude that the California system is actually quite child-centered, and victim-protective. I'm certainly unconvinced by the "studies", and by the information in the two articles. While I've railed about the lack of real objective information for nearly a decade, since the last such "scandal' erupted, the quality of the information has not yet noticeably improved.
The problems with the family law system are not, as far as I can tell, mostly the result of some system-wide bias or agenda; they're mostly from (a) the lack of adequate financial resources for the system to address these issues, and (b) the gross mis-allocation of resources within the judicial system. As I've said before, nobody ever successfully ran for statewide office in California on the platform: "I promise to spend more of your tax money on divorce court!"
* Ben Franklin, or E.A. Poe, or Marvin Gaye.
** Note that I have not provided links to the pieces above; they're here: "Helping" "Evaluator"
*** "That's not 'thin soup'. It's rat pee." Prof. Michael Shapiro.
"The plural of 'anecdotes' isn't 'data.' " Frank Kotsonis.
Wednesday, December 30, 2009
The Year's Most Interesting Custody Cases Wind Up!
Sean Goldman has been returned to the United States, after many months, and many tens of thousands of dollars, of litigation by his father to get him back from Brazil. His Brazilian "step-father"* was able to delay the return to the United States seemingly required by the Hague Convention, and a last-minute review by the Brazilian Supreme Court threatened to delay the final order being carried out until well into 2010. Others, including some on my blogroll** have discussed both the unwillingness of the Brazilian authorities to meet their obligations under the Convention, and the media sideshow which followed the final order, at length.
The willingness or unwillingness of countries to "sign on" to the Hague Convention and, once on, to comply with its terms, does not seem to correlate in a clear way with the degree of "modernity" of the country and government in question; the Japanese legislature is still vigorously debating whether Japan will sign on at all, and some western European signers are notably uncooperative in returning children.
Rifqa Barry is in foster care in Ohio; the Ohio court is attempting to facilitate some kind of dialogue between her and her parents, while the clock ticks by to her 18th birthday, at which time the law says she's an adult, and can go live with whomever she pleases. Based on the facts as I know them, it seems far less likely that her father will hunt her down for an "honor killing" than that she's easily swayed and influenced by others generally, and may find others who are all too willing, for good or ill, to make decisions for her.
Parents: Cherish your children. Children: cherish your parents.
Have a happy, and maybe even more prosperous, new year.
*There now seems to be at least some question as to whether deceased Mom was divorced from Sean's father at the date she remarried, and thus the quotes.
** In particular, Family Law News Blog and
The willingness or unwillingness of countries to "sign on" to the Hague Convention and, once on, to comply with its terms, does not seem to correlate in a clear way with the degree of "modernity" of the country and government in question; the Japanese legislature is still vigorously debating whether Japan will sign on at all, and some western European signers are notably uncooperative in returning children.
Rifqa Barry is in foster care in Ohio; the Ohio court is attempting to facilitate some kind of dialogue between her and her parents, while the clock ticks by to her 18th birthday, at which time the law says she's an adult, and can go live with whomever she pleases. Based on the facts as I know them, it seems far less likely that her father will hunt her down for an "honor killing" than that she's easily swayed and influenced by others generally, and may find others who are all too willing, for good or ill, to make decisions for her.
Parents: Cherish your children. Children: cherish your parents.
Have a happy, and maybe even more prosperous, new year.
*There now seems to be at least some question as to whether deceased Mom was divorced from Sean's father at the date she remarried, and thus the quotes.
** In particular, Family Law News Blog and
Sunday, September 20, 2009
Tuesday, August 25, 2009
Teenagers, the State and Religion: do hard cases make bad law?
Rifqa Bary, who's seventeen, ran away from her parents in Columbus, Ohio, and turned up in Orlando, Florida, under the "care"of a pastor whom she met over the internet. The pastor held a press conference in which Rifqa announced, under the pastor's eye (or more exactly, under his arm) that she had run away because she had converted to Christianity, and that she was afraid that her Muslim parents would either kill her, or "send her back" to Sri Lanka, from where the family had come in the last decade, and that she would be killed there by Dad's family as an "honor killing".
Working only from the newspaper accounts, a number of things immediately struck me as troubling: first, how do you "send" a seventeen-year-old on a series of overseas flights against her will, if you are evidently unable to keep her from walking out of the house, hitchhiking to a bus station, and taking a Greyhound bus to Florida? Rifqa doesn't seem to have been kept in purdah; she apparently attended public school, where she participated in cheer-leading and tumbling, and had a Myspace page. Although she'd apparently converted a while ago, she hadn't reported her fears to anyone she dealt with in Ohio.
Even if she really was legitimately afraid of Dad, why the run across several states? Last time I looked, the city of Columbus, Ohio (where I went to school, and where my son goes to school now) was not an Islamic republic under Sharia law; it's the state Capitol. Thenotable religious fanatics in Columbus are the ones who worship at the altar of Brutus Buckeye..
What dog does Florida have in this fight, and does Florida have enough extra resources in their "social safety net" that they, rather than Ohio, should be dealing with this? (Florida has placed her in foster care in Florida pending more investigation.)
The bigger question, however, is, absent a real plausible showing of danger, what's the state's job in intervening between teenagers and their parents when a minor child, even a 17 year old, says "I've decided X" and one or both parents say "You're a minor, and I'm still supporting you. I say 'Not X, Y!', and as long as you're a minor, you're under my legal control."
Except in unusual cases, the state doesn't intervene in these disputes in intact families. Where the PARENTS disagree, and are going through a divorce, or a custody dispute, the State is much more willing to say that one parent's (or both parents') choices are not in the child's best interest, and is more willing to intervene.
Back in the 1970's, a group of Wisconsin Amish parents objected to the mandatory school attendance laws in effect at the time, and asserted that it interfered with their, and their children's, rights of free exercise of religion. The Supreme Court, in Yoder, agreed. Justice Douglas, always a trouble-maker, raised a thorny question: what's the State to do when a seventeen-year-old, who's clearly a "minor child' for some purposes, but a "person" under the Bill of Rights, says "Here I stand; I cannot do otherwise!" to one or both parents?
Can I say to my child "You'll go to the church [mosque, temple, Kingdom Hall] I say you go to, or you don't get [a driver's license/an I-phone/to go out Friday night/me to pay for college]"? Short of a threat of physical harm, when is it, and when isn't it, the State's business?
Working only from the newspaper accounts, a number of things immediately struck me as troubling: first, how do you "send" a seventeen-year-old on a series of overseas flights against her will, if you are evidently unable to keep her from walking out of the house, hitchhiking to a bus station, and taking a Greyhound bus to Florida? Rifqa doesn't seem to have been kept in purdah; she apparently attended public school, where she participated in cheer-leading and tumbling, and had a Myspace page. Although she'd apparently converted a while ago, she hadn't reported her fears to anyone she dealt with in Ohio.
Even if she really was legitimately afraid of Dad, why the run across several states? Last time I looked, the city of Columbus, Ohio (where I went to school, and where my son goes to school now) was not an Islamic republic under Sharia law; it's the state Capitol. Thenotable religious fanatics in Columbus are the ones who worship at the altar of Brutus Buckeye..
What dog does Florida have in this fight, and does Florida have enough extra resources in their "social safety net" that they, rather than Ohio, should be dealing with this? (Florida has placed her in foster care in Florida pending more investigation.)
The bigger question, however, is, absent a real plausible showing of danger, what's the state's job in intervening between teenagers and their parents when a minor child, even a 17 year old, says "I've decided X" and one or both parents say "You're a minor, and I'm still supporting you. I say 'Not X, Y!', and as long as you're a minor, you're under my legal control."
Except in unusual cases, the state doesn't intervene in these disputes in intact families. Where the PARENTS disagree, and are going through a divorce, or a custody dispute, the State is much more willing to say that one parent's (or both parents') choices are not in the child's best interest, and is more willing to intervene.
Back in the 1970's, a group of Wisconsin Amish parents objected to the mandatory school attendance laws in effect at the time, and asserted that it interfered with their, and their children's, rights of free exercise of religion. The Supreme Court, in Yoder, agreed. Justice Douglas, always a trouble-maker, raised a thorny question: what's the State to do when a seventeen-year-old, who's clearly a "minor child' for some purposes, but a "person" under the Bill of Rights, says "Here I stand; I cannot do otherwise!" to one or both parents?
Can I say to my child "You'll go to the church [mosque, temple, Kingdom Hall] I say you go to, or you don't get [a driver's license/an I-phone/to go out Friday night/me to pay for college]"? Short of a threat of physical harm, when is it, and when isn't it, the State's business?
Thursday, May 21, 2009
Now They're Chopping Down The Totem Pole We're the Low Guy On...
In the wake of the vote-down of the Governor's various last-ditch "budget-rescue" bills, the Los Angeles Superior Court has announced that they will be closing all courtrooms one Wednesday per month, commencing in July, and continuing for the next fiscal year.
This is, in a word, not likely to improve the functioning of the family court system, and not likely to make it more responsive to the needs of the public.
As I've noted in these pages earlier, the system is already working short-handed and short-budgeted.
This change will mean that family law court calendars will be, on average, five percent longer, or one or two extra cases, per day, per judge. That may not seem like much, until you consider that family law judges are often already hearing fifteen to twenty cases per day. Assuming a judge is on the bench hearing testimony, or calling calendar, six hours per day (the rest of the time is to READ the reams of stuff) that's a total of 24 minutes per hearing per case. . . . whether or not anyone involved in the matter speaks English, or has brought along a real interpreter. . . . . .and whether or not anyone can coherently explain why they're in court, or what they want the court to do about it...
It means that the time before someone can get into court to address what they, at least, regard as important issues (where their kids stay, with whom; who pays to feed the kids; who stays in the house, when there's been domestic violence etc.) will be on average, five percent longer (custody hearings are already being set two months plus from the date of filing, with support hearings often following along with that delay).
It means, unfortunately, that the job of being a family law judicial officer, already generally recognized as a high-burnout judicial assignment, will be regarded as even less of a "plum", and even more of a "lemon".
This is, in a word, not likely to improve the functioning of the family court system, and not likely to make it more responsive to the needs of the public.
As I've noted in these pages earlier, the system is already working short-handed and short-budgeted.
This change will mean that family law court calendars will be, on average, five percent longer, or one or two extra cases, per day, per judge. That may not seem like much, until you consider that family law judges are often already hearing fifteen to twenty cases per day. Assuming a judge is on the bench hearing testimony, or calling calendar, six hours per day (the rest of the time is to READ the reams of stuff) that's a total of 24 minutes per hearing per case. . . . whether or not anyone involved in the matter speaks English, or has brought along a real interpreter. . . . . .and whether or not anyone can coherently explain why they're in court, or what they want the court to do about it...
It means that the time before someone can get into court to address what they, at least, regard as important issues (where their kids stay, with whom; who pays to feed the kids; who stays in the house, when there's been domestic violence etc.) will be on average, five percent longer (custody hearings are already being set two months plus from the date of filing, with support hearings often following along with that delay).
It means, unfortunately, that the job of being a family law judicial officer, already generally recognized as a high-burnout judicial assignment, will be regarded as even less of a "plum", and even more of a "lemon".
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