Incarcerated Birth Parents' Rights to Their Children

    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.

Why "Self Help" In Child Custody Cases Is a Bad Idea

    Kelly Cooney, 35 of Lee’s Summit, Missouri has been charged, in Iowa with conspiracy to commit first degree burglary, conspiracy to go armed with intent, and child endangerment.  Kevin Carter, 50, from Raytown, Missouri has also been charged, in Iowa, with first degree burglary, going armed with intent, assault while causing serious injury and carrying weapons.

    Apparently, Cooney and Carter broke into the house of Cooney’s son’s father.  Carter used a stun gun on the father while he was holding the child and Cooney took the child from the father.  Cooney and Carter attempted to flee with the child.  The ex-husband of a neighbor saw what happened and had a valid weapon permit.  He retrieved his gun and fired several shots to deflate the tires of the Cooney and Carter’s vehicle.

    Cooney and Carter are being held in Boone County Jail in Iowa.

    There are some reported custody issues between Cooney and the boy’s father.  It is unclear whether there are existing orders, or whether there are legal proceedings in Missouri or Iowa. 

http://www.lsjournal.com/2014/04/16/114117/lees-summit-woman-arrested-in.html

    There are limited, if any, instances in which exercising self help in a family law matter is appropriate.  Even if one party may not be doing anything technically against any rules, self help typically implies a lack of communication and cooperation.  Using the example from above, even though it’s an extreme one, let’s assume there were no custody orders in place and there wasn’t even a case filed.  It would be true that the father had no more custodial rights to the child than Cooney.  Even if she is a perfectly competent mother, she would be hard pressed to find a judge that would be able to overlook the facts (assuming they are true), that she broke into the house, used a stun gun on the child's father, then tried to forcibly remove the child from the father.  At this point, she may be hard pressed to find a judge that will give her anything other than monitored visitation with her child, and that’s after she’s released from jail.

Child Support Obligation After Death of the Child

David A. Shane, now 47 years old, was convicted in 1997 of the 1994 murder and feticide of 23 year old Nicole Lynn Koontz who was seven months pregnant with Shane’s co-defendant’s, Robert L. Hicks’, child. Shane is serving a 60 year sentence for the crime.

Shane and his ex-wife divorced in 1990 and have a daughter Ashlie born in 1988. He was ordered to pay $67 per week in child support. Ashlie died in a house fire in April 2006 when she was 18 years old. At the time of her death, Shane was not current on his child support payments and owed some child support arrears. In December 2012, Delaware County child support obtained an income withholding order to recover some of the child support arrears.

Shane earns $0.95 per hour working in the prison laundry and works about 37 hours per week. The Delaware Circuit Court ruled that Shane must continue to pay 55% of his prison wages to pay off the child support arrears because the child support arrears don’t terminate with the death of the child. The Indiana Court of Appeals upheld this ruling and found that Shane missed the deadline to appeal the decision by nine days.
 
http://www.usatoday.com/story/news/nation/2014/03/31/convicted-murderer-must-pay-child-support/7118465/

In California, the obligation to financially support your children is taken seriously. Failure to pay child support can result in revocation of the driver’s license, or any other licenses or permits issued by the state of California, or even potential jail time. Child support arrears can’t be discharged during bankruptcy and if the paying parent dies, if there are child support arrears, the receiving parent becomes a creditor against paying parent’s estate for repayment of the arrears. While the death of the child would have terminated the current child support order, the arrears were incurred while the child was still alive and the arrears don’t get discharged because the child is no longer living. The receiving parent is still owed the money that he/she should have received as financial assistance from the other parent during that period. 

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

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.

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.

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.

Health Care and Child Support

To follow up on my post from last week about health insurance, there are other options other than allowing coverage to lapse. There are assistance programs available at low cost.  Health care does have an effect on child support. One or both parents are often required to maintain heath insurance coverage for any minor children as long at it’s available at no or little cost through their employer. "Available at no or little cost" is loosely interpreted and essentially any out of pocket expenses will be considered reasonable under this definition. Through the Affordable Health Care Act, various options may be available to parents who need assistance for health insurance coverage for minor children.

Starting as early October 1, 2013, parents can choose new insurance options through Covered California. (See http://www.coveredca.com/). This will be for coverage that will start January 1, 2014. The program shall allow financial assistance for qualifying families including Medicaid, Children’s Health Insurance Program (CHIP) and through tax credits that will help pay the premiums.

http://www.acf.hhs.gov/programs/css/resource/june-2013-child-support-report

Some Additional Ideas About Maximizing Your Success In Custody Cases

From Joseph Cordell on HuffPo

Very similar to, although not as detailed, as my California-specific advice:

WHAT SHOULD I DO TO “MAXIMIZE” MY PARENTING?

1.   Exercise all your time, plus more

If you go to court for a review of your custodial situation, the Court will be more interested in what the parents actually are doing, than in what any prior court orders say they should or must be doing.  Use all your custodial time that you are financially,  physically, and logistically able to use.    If you can accommodate the other parent's scheduling by offering to have the child(ren) with you, more than the order says you “must”, do so.   This is not “baby-sitting”, it is spending time with your kid(s), i.e., parenting.   Some of the time may not necessarily be spent going to Disneyland.  

2.    Exercise your rights (and responsibilities) beyond the custodial time-share.

Parenting is different from running a dormitory.  There is more to parenting than whose house your child sleeps, on which nights of the week: 

    A.    Education:  Request scheduling information about all your child's pre-school/ school functions, and attend them whenever possible.  Whether or not the other parent provides you with copies, take independent steps to arrange with your children's schools to receive scheduling information, report cards, etc.   If you get any of this information, and have any reason to think the other parent did not, send a copy.

Know your kids’ teachers.  Make sure that your kids' teachers, and school personnel, know you. 

Make sure you are on all parental notification, and emergency notification cards. Keep your notification information on those records absolutely current.

If your child is having any sort of trouble in school, find out from the school (not just from your child or the other parent) what is going on, why it is happening, and what can, or must,  be done to fix it. 

The days (in California) when you could deliver your child to a public school, starting in September, do nothing besides going  to two parent-teacher conferences during the year, and expect to have your child pop out in June with another year’s worth of education, are long gone.  Both public and private schools are now hands-on efforts for parents. 

The more time you spend volunteering in your child’s classroom, fund-raising for your child’s school, running computer cables through the walls at your kid’s school, coaching soccer or helping to build sets for the school play, the better the education your child will get, and the more you will know about what kind of education she is getting, and how.  Incidentally, your community will also be better off.

    B.     Health care:  When (not if) your child needs health care, find out what is going on, whether it is a regular dental check up or physical exam, the treatment of a cold or earache, or an ongoing course of treatment for a serious chronic condition.  There is no better way to stay informed than to take your child to the doctor yourself.   If you can’t, ask the other parent regularly for information.   Again, if you get any of this information, and have any reason to think the other parent did not, send a copy.

If you have any questions or concerns, discuss them directly with the health care provider.    Medical school studies reveal that the doctors’ advice that patients hear and understand is significantly different from what doctors think they have said.  The other parent is not your best source of this information; the child is an even poorer one.

"Health care" does not just mean your child’s pediatrician.  It includes the dentist, the orthodontist, the chiropractor, and any psychotherapist or counselor.

Know who is paying for health care, who’s carrying the insurance, and who is entitled to reimbursement.   Keep records.

    REMEMBER:  Even if you do not have joint legal custody, under California law you are entitled to information about your child's education and health.  As a joint legal custodian, you have both a right and a responsibility to keep informed and to be involved in decision-making.   If you don’t participate in decision-making, the Court may conclude that you have no further interest in having a hand in decision-making.
   
3.    Behave, in all of your transactions with the other parent, as if everyone was watching you; ultimately, they are.
   
Assume that at some point in the future the Court, and any Court evaluator, will consider both the content and tone of all your communications with the other parent, and the other parent’s new spouse or significant other.   

So:

Be appropriate.  Not only shouldn’t you use your child as a telephone (“Tell your mother you can’t spend the whole weekend next weekend....”)  you shouldn’t use your child as a mail-carrier, or send messages to the other parent via your child’s e-mail, or telephone.

Be polite.  Send and say nothing to the other parent you wouldn't want the judge in your case to read now.   Send nothing to the other parent that you wouldn't want your children to read, twenty years from now.    Even if the other parent is acting like a jerk, don’t act that way.

If scheduling changes need to be made, give more notice than the minimum amount required, whenever it is possible.   If you are running late, even a little bit, call.

If you need to make logistic arrangements (different clothing, school books and materials, sports gear, etc.)  communicate with the other parent the need for those arrangements.

Confirm your conversations with the other parent by short, polite notes, or the electronic equivalent.  Do not include in any such note any discussion of the other issues of the case, discussion as to why the relationship or marriage failed, blame for any events which have happened in the past, etc.  Like a telegram for which you are charged by the word, these notes should be the bare minimum number of words necessary to convey the information, plus "Please", "Thank you", and "You're welcome".  Even if the other parent is acting like a jerk, don’t act that way.

4.   Your children are not the parents/litigants, you are; don't treat them as if this is THEIR case

It is appropriate to discuss resolving your case with  the other parent, or between the attorneys.  Children, however, are not  litigants: they have no obligation to settle their parents’ cases. 

    Children should not be burdened with any discussion of the financial aspects of the case,  ever.    Your financial responsibility to your kids is yours; it is not dependent upon the other parent’s, or how well the other parent meets that responsibility.

Your children have no obligation to tell you, or discuss with you, their preferences regarding custodial arrangements.  They do not even have an obligation to have such a preference.  Your children should never be obliged or expected to decide their own custody arrangements, although you should consider their wishes.

5.   Remember: this is your custody case, not everyone else's.

Unless there is no other appropriate way to communicate directly with the other parent, don't use anyone else as a messenger. (Except in an emergency, this will almost never be the case.)  Your relatives, your new spouse or significant other, the other parent's relatives, your friends (mutual or otherwise) and your child's friends are not obliged to take sides, or act as tie-breakers.  Don't ask them to.  Don't expect them to.


   
                

The President Has a Family Law Agenda

and it's on the White House agenda website.