NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission. All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.
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Here's an interesting development. It's a link to a bill that's before the Illinois Senate, having passed the House by a vote of 78-36. The bill is entitled the Steven Watkins Memorial Act. I've written before about Steven Watkins. He was an Illinois man who was shot to death as he arrived to pick up his daughter for his court-ordered visitation one day in 2008. The shooter was his ex-wife's mother. Last year she was convicted of first degree murder and sentenced to 55 years in prison. She was 75 years old at the time of sentencing. Since then, the big news about the case has involved the efforts of Watkins' parents to get a court to order visitation with their granddaughter. They've been successful at getting the order, but not the visitation. That's because Watkins' ex has fled the state for parts unknown. She is now under several indictment for violations of the visitation order. So House Bill 1604 is an effort to put some teeth into visitation orders. Not coincidentally, it amends the state law providing for the suspension of the drivers' license of parents who don't pay child support. If the bill passes, Illinois parents who don't comply with visitation orders can have their drivers license suspended until they come into compliance. On the surface, the bill makes about as much sense as suspending the license of someone who doesn't pay child support. The question arises, "how does drivers' license suspension promote compliance?" The answer is that usually it doesn't. Still, you've got to like HB 1604. Countless advocates for parental equality in family courts have remarked on the fact that states use huge amounts of resources and the most draconian laws to force non-custodial parents to pay child support, but almost none to enforce visitation orders. Not long ago I did this piece on Texas Attorney General Greg Abbott's crowing about all his office was doing to enforce visitation orders. He was all puffed up about the state's getting $500,000 in federal money to supposedly promote visitation enforcement in Texas counties with well over 5 million people. Trifling as that sum is, it was directed at organizations whose missions are mainly the collection of child support, not enforcing child access. So in fact very little of the already paltry sum was going to promote fathers' access to their children. And, based on the AG's own figures, I calculated that Texas spends at least $257 million per year on child support enforcement. Compare that with the $500,000 for visitation (even though it's actually not that much) and you have a fair assessment of what value Texas places on each activity. The ratio's about 500:1. The law says the two are separate. Every divorce lawyer has explained to a client, "just because she doesn't allow you to see the child doesn't mean you can quit paying." Legally, the same is true for the custodial parent; failure to pay doesn't absolve her of allowing him to see the child. But what's true in law may not always be true in fact. Whether courts and lawyers like it or not, parents see a connection between child access and child support. For a dad, paying every month or two weeks is a lot easier if he sees little Andy or Jenny regularly and without complaint. For Mom, allowing visitation is less onerous if the check's there on time every time. And that's not just anecdotal evidence or shoot-from-the-hip common sense; social science bears it out. Sanford Braver's studies in the 90s showed that dads are more likely to pay fully and on time if they get to see their children. So once again, there's a real disconnect between the law and the way people actually behave. The law says visitation and child support have nothing to do with each other. The actual behavior of divorced parents says otherwise. That's why, to me, Illinois HB 1604 is interesting. On its face it doesn't accomplish a lot, but what it suggests is important. Its clear subtext is that there's a connection between visitation and support; that's why it moves in the direction of treating them the same. Fail to pay, lose your license; interfere with visitation, lose your license. If they care to notice, it's also a clear rebuke to family court judges who, even though they're equipped with the power to enforce their visitation orders, routinely fail to do so. It's one of the quiet scandals of family courts. It's quiet because the press rarely notices it; it's a scandal because it constitutes clear discrimination against non-custodial parents, about 84% of whom are fathers. And it's no less a scandal because the failure to ensure healthy relationships with both parents post divorce is terribly hurtful to children. Again, the same family courts that never cease intoning the mantra of the "best interests of the child" seem to have little or no information about the social science on what promotes child well-being. So whatever the fate of Illinois HB 1604, it's good to see legislators who are aware of the disgraceful failure of family courts to enforce fathers' access to their kids post-divorce and are moving, even tentatively, to do something about it. Thanks to Jim for the heads-up.
This is another example and it comes from the State of California that is one of the major offenders when it comes to depriving fathers of their children via adoption (Leagle.com, 4/15/11). There are some 29 states with Putative Father Registries whose frank purpose is to deny to fathers notice of judicial proceedings to terminate their rights. But California is not one of those states. Its discrimination against unmarried fathers is, if anything, even more blatant than that of PFR states.
here, two gay men in Australia wanted children, so they recruited an anonymous egg-donor, a surrogate to carry and bear the twins (Adelaide Now, 1/22/11). One of the men provided the sperm.
The 20-month-old girls were born in Mumbai to an Indian woman who carried eggs from an anonymous donor impregnated with sperm from one of the Melbourne men.
The couple went to the Family Court seeking full parental status for the non-genetic male partner.And that has been granted, presumably on the basis of his hands-on fatherhood. As the judge said at trial,
"As a matter of law, the word 'parent' tends to suggest some biological connection, but ... biology does not really matter; it is all about parental responsibility."Hmm. I know he was speaking just about the particular case, but biology matters in family law in all sorts of ways. Indeed, in Australia as well as in many other places, maternal biology alone is sufficient to confer parental rights. Fathers, particularly unmarried ones aren't so fortunate. In their case, in many jurisdictions, the judge is correct. And of course biology was vitally important to at least one of the men in the case. After all, gay men and lesbian women adopt children all the time, but that's not what the Australian pair did. They went to a lot more trouble and expense for one reason - to ensure that the DNA of one of the men was present in the children. To them, biology was important, whatever the judge thinks about it. Then of course there's the biological mother. She's apparently agreed to stay out of the family, but what if she changed her mind? In England only last year, a gay man who provided sperm for two lesbian partners to conceive a child ended up with equal parenting rights. Admittedly, they agreed that he should have a role in caring for the children, but it was his biological connection that encouraged him to do so. What would be the biological mothers' rights if she wanted to assert them? For that matter, what if the Indian woman decided she'd bonded with the kids during pregnancy - as she likely did - and wished to claim parental rights? Would the judge say that, in some mysterious way, her carrying them for nine months didn't constitute nurturing or responsible parenting? That would be a stretch. With a little effort, those twins could have four parents. Let's be clear; I'm all for the rights of gay men and lesbian women to be parents. What evidence we have indicates that they're every bit as capable and loving as straight parents, so I'm glad to support their parental rights. And I agree with the judge that if a man has acted the part of father, he should have the rights of one. But surrogacy is one of the most tangled webs there is and the possibilities are so varied that a single rule on parental rights would be hard to craft. Surrogacy usually includes at least one agreement among all the parties that the surrogate mom won't have any parental rights once the child is born. But, depending on the jurisdiction, those agreements may or may not be enforceable. That's part of the reason this case came out the way it did (Daily Mail, 4/12/11). In England, a married couple, Mr. and Ms. W, was desperate to have a child. They'd suffered no fewer than six late-stage miscarriages due to her surgery for uterine cancer. The pair despaired of ever having a child of their own. So they hit upon the idea of a surrogate. They found a willing woman, Miss N, who seems to have been all too willing to accept the £10,000 they offered for her medical and other expenses. The three agreed that she would give up the child and all her rights once the child was born. But six months into her pregnancy, Miss N changed her mind and, in violation of the agreement she'd signed, decided to keep the child for herself. And British courts backed her up. It seems that in England, the surrogacy agreement is not binding, at least on the surrogate. (I wonder what would have happened if she had turned the child over to the couple and they had refused to pay.) So with the agreement invalid, and the surrogate claiming parental rights a custody battle was inevitable. It lasted six months and Miss N prevailed. Why? Well, students of U.S. family law won't be surprised to learn that it's in large part because she'd kept and raised the child during the term of the custody dispute.
In January, in a rare case, Miss N was awarded custody after a judge deemed it was in the child"s best interests because there was a ‘clear attachment" between the mother and daughter.I should make it clear here that the judge didn't think much of any of the three. All seem to have lied under oath several times. And none of the three look like very promising parents. So there were competing claims about who could do the best job of parenting. But what seems clear is that Miss N kept the child and bonded with her and vice versa. That allowed the child's court-appointed guardian to testify in court about their good relationship. Had Miss N kept her promise for which she'd been paid so well, none of that would have happened. If that looks to you a lot like many U.S. adoption cases, you're right. In those cases, it's possession that seems to count most to courts. Possession leads to bonding which leads to custody. As I've written before, in those cases, if adoptive parents can just get possession of a child and keep it during the pendency of litigation (usually several years), then - voila! - it's theirs irrespective of the fact that it was all done in violation of the fathers' rights. The same is true in the W's case. Miss N had possession of the child and naturally the child has become attached to her. Again, never mind that she did so in violation of her agreement for which she'd already been given a hefty sum of money. I've likened a few U.S. adoption cases to child theft. This looks the same. Indeed, it's fascinating how similar the case is to so many others we've discussed. It even includes allegations by Miss N of domestic abuse by Mr. W against his wife - allegations that both Mr. and Mrs. W denied in court, even though they were disbelieved by the judge. In any case, I guess Ms. W now has some idea of what it's like to be a father in a custody case. You have your child taken from you (in this case by a surrogate) for no good cause and that taking is then used to justify your secondary status as parent. And just in case you think you have a chance, there are those allegations of DV to make sure you don't. Just to add insult to injury, the court also ordered Mr. W to pay child support in the sum of £568 per month. That's right, it's Mr. W who has to pay. They both agreed to hire the surrogate, but it's his sperm, his kid, don't you know. That of course brings us back full circle to the Australian judge's remark that "biology does not really matter." Oh. But to sum up the way the British courts have botched this whole case, I'll leave it to Mr. W.
She has taken away our baby and now she is taking our money. To me, that is completely wrong.Thanks to John for the second piece.
This article is interesting for several reasons (The Independent, 4/19/11). What's perhaps most interesting is its headline - "Shared Parenting: A Disastrous Double Act." Needless to say, as someone who relentlessly promotes greater parental equality, that grabbed my attention. After all, the Guardian/Independent has never been what you'd call father friendly, so what would it find to be "disastrous" about shared parenting. Readers may be disappointed to learn that the headline has little to do with the article.
this breaking story (ABC News, 4/14/11). It all started some five years ago. That's when 30-year-old Anne Lynn Montgomery started having sex with 15-year-old Bradman Moore. She was a teacher at his school. A year later, she gave birth to his daughter. A year or so after that, she gave birth to another daughter, also his. My arithmetic tells me the girls are now three and four years old, so why is this just now becoming an issue? It's hard to tell at this point. The facts of the case remain murky. What seems to have happened is that Montgomery went to court to get a TRO against Moore based on alleged threats he made against either her or the kids. He denies doing any such thing, but whatever actually happened, the TRO was issued. That might not have been the brightest move she could have made though, because once a court was involved, certain facts came to light. And those facts don't exactly paint Anne Lynn Montgomery in the most favorable light. Slapped with a TRO, young Mr. Moore, who is now 20, slapped back, asking the court for an order granting him parenting time with his kids. That too was granted, which would seem to cast doubt on Montgomery's claims that led to the TRO. After all, how dangerous is Moore likely to be if the judge gives him parenting time? And since this has all hit the courts and the press, the police seem to have taken note of the fact that, five years ago, an adult teacher had a lengthy sexual relationship with an underage boy. That of course violated the state's laws on what used to be called statutory rape. But it's not just the police who have noticed Anne Lynn Montgomery's wrongdoing; the school district has too. It apparently fired her because she's alleged to have committed multiple felonies as well as violated school policy. So among other things, the teacher is getting an education: when you commit crimes, don't go to court and tell everyone about it. Where this will end up is anyone's guess, but it should be interesting to follow. In the meantime, I'll engage in a bit of speculation. My guess is that what led up to the TRO goes something like this: over the years, Moore matures and becomes more and more interested in his kids; Montgomery resists his efforts at involvement with his children; he threatens to report her to the police if she doesn't allow him more time with the girls; it is this threat or one like it that forms the basis of her complaint against him. We'll see about that. What we'll also see is the weight given by the family court judge to the fact that the mother took advantage of the youth and immaturity of a 15-year-old boy to have sex with and have children by him. Whatever the police decide to do, Anne Lynn Montgomery committed a felony every time the two had sex. And while I'm on that topic, Moore claims he's not the only one. He says there were a total of six boys with whom Montgomery had sex back when she was still a teacher. She and her lawyer have no comment about that charge, but my guess is that Moore knows at least some of the young men to whom he was referring. So I expect we'll be hearing from them soon and then we'll know if we can call Anne Lynn Montgomery a serial rapist or not. Whatever the case, we now have a mother who looks like a criminal and a young father who wants greater contact with his daughters than he's so far had. In short, we've got a custody battle that's just begun. As it unfolds, it'll be fascinating to see how the judge weighs all the various factors and what the outcome is. Does Montgomery go to prison? Is her contact with her kids sharply limited due to her previous child abuse? What provision can Bradman Moore make for his daughters? Does he get primary custody? Does she pay him child support? The answers to those and many other questions will tell us something about where we stand as a society regarding fathers' rights. To what extent do old, inaccurate narratives of maternal goodness and paternal corruption still hold sway in the decisions judges make even in cases like this one? Stay tuned.
this is a good article on the misuse of temporary restraining orders in custody cases (Huffington Post, 4/13/11). It's far from perfect, but it's a step in the right direction. The author, Liz Mandarano, is a lawyer in family court and knows whereof she speaks. Importantly, she goes further than most others (me included). She doesn't just kvetch about the many wrongs of the TRO system, but she provides some worthwhile suggestions for change. Some of those require changes to existing laws that only state legislatures can enact, but others can be done by individuals in individual cases. Mandarano isn't anti-woman; quite the contrary. She sees TROs as valuable legal instruments that can save people from serious injury or even death, and of course in some instances, she's right about that.
However, it is also an unfortunate truth that because they are incredibly easy to obtain, orders of protection are misused, often against men. And this false practice clogs the system unnecessarily, preventing true victims from having their cases thoroughly examined and depleting victim-assistance resources.She goes on to recite what most of us know - that TROs require little or no evidence of little or no harm to the "victim." A vague fear of future harm based on no objective threat is sufficient. And the consequences for the target of the TRO are draconian. He (it's usually a man) can be tossed out of his house, taken away from his kids and his belongings, and denied access to important information he needs to defend himself. Is he entirely innocent? Does he have no record of abuse? Are the allegations fabricated to gain the upper hand in a custody battle? All that is his tough luck. Mandarano recites the famous David Letterman case of 2005 in which a New Mexico woman got a judge to issue a TRO against the comedian whom she'd never met and who lived many states away. And she mentions a pithy little fact that so many overlook about that case - "the issuing judge stood by his ruling." What? How could that be? How could he defend an order that was so flagrantly wrong? The answer is simple - he complied with the law. It's an important point. Many people conclude that the judge was nuts to issue such an order. On the contrary, he did his job correctly; it was the law that was nuts. Mandarano hits all the high points about TROs. There are as many as three million of them issued each year in the United States. They're easy to get, tough to overturn, used as a tactic in custody cases, often baseless, but usually effective to establish who is the "primary parent." That last of course is one of the main reasons for their use in custody cases. TROs keep Dad out of his kids' lives for as long as six months and after that may restrict him to only supervised visitation for a longer time. All that can add up to persuasive evidence that Mom is the primary parent and therefore should be the custodial one post-divorce. But, in the eyes of the divorce establishment, there are other positives to wholesale issuance of TROs. They serve as bargaining chips that force dads to accept less in custody and more in spousal support; they line attorney's pockets; they drain the man's resources and place him on the defensive emotionally. Mandarano goes on:
Given the foregoing, this problem is certainly one that our judicial system should address and remedy.And that's where Mandarano goes off the rails a bit. Amazingly, she lays the failure of the legislative and judicial systems to remedy the misuse of TROs at the feet of men's and fathers' rights organizations. Why? We're too strident, that's why. We use "vitriolic language" and "bombastic rhetoric." Well, I agree that websites supporting men's and fathers' rights often use intemperate language. They also sometimes play fast and loose with facts. I approve of neither and always try to be fact and logic-based and to avoid inflammatory words. I do that because I think it's the right way to persuade people who haven't already made up their minds about the subjects discussed on this site. But the notion that state legislatures would have done the right thing by now if MRAs and FRAs had just played more nicely is (a) unsupported by any evidence (and Mandarano offers none), (b) highly unlikely and (c) contradicted by the last 40 years of feminism that have seen, among many other things, rape laws altered drastically to the tune of feminists singing "all men are rapists." If vitriolic rhetoric is so counterproductive, how'd that happen? No, state legislatures' failure to change TRO laws isn't because those arguing for gender equality in family courts sometimes heat their rhetoric to the boiling point. Those laws remain because organizations that perceive a benefit from them threaten dire consequences if they do change. Those organizations include associations of family attorneys and feminist organizations that loudly proclaim their support for gender equality while opposing essentially every move toward parental equality in family courts. Still, Mandarano offers some good - and some not so good - advice about how to attack the TRO system. She again counsels toning down the rhetoric. I agree. The TRO situation is outrageous, but it's possible to convey outrage without alienating the person you're talking to. When MRA and FRA organizations lobby state legislature, they must assume that the people they're addressing have an open mind on the subject. They must address them in a calm voice using facts and logic to support their arguments. Most importantly, they must make clear to each legislator their understanding that evidence-based TROs are sometimes necessary to protect people who need protecting. Absent that clear message, they've lost their audience from the outset. On the other hand, Mandarano's call for studies to assess the extent of the problem is odd given the fact that she cited several such studies in her own article. Is there a need for more? Probably so, but activism against TROs doesn't need to wait for them to be done and published. Likewise, she encourages judges to sanction parties who perjure themselves. Again, I couldn't agree more, but my guess is that, if judges were going to do that, they'd have done so by now. Their refusal to punish perjurers has always been a mystery to me, but there it is, and I don't see it changing. One of Mandarano's good suggestions is one that's slipped my mind in the past, but no more. Targets of TROs issued on false or non-existent evidence can always sue their accusers. The common-law torts of false arrest, false imprisonment, abuse of process, etc. are available and can dampen the enthusiasm of the false accuser. Also, they're tried in different courts than the custody case, so the typical family court prejudice against dads may not apply. All in all, Mandarano's piece is pretty good. It has its misconceptions, but the gist is right - TRO laws need to be changed for everyone's sake. Thanks to Edward for the heads-up.
this article (Detroit News, 4/23/11). While you're at it, see if the question "why didn't this happen in the first place?" doesn't occur to you. I know it did to me. Godboldo is the Detroit single mother who thought she actually knew best how to raise her 13-year-old daughter. As it turns out, she's probably right. But in the meantime, she was faced with a decision about whether to continue giving the girl Risperdal which is a medication to treat schizophrenia. Now, every article that comes out about this case adds new information about what led up to the child being taken by the state from her Godboldo's care. At first we were told Godboldo refused to give the medication. Then we were told she had given it but believed it made the girl's condition worse. Now we're told that she was weaning her off the medication in consultation with her daughter's psychiatrist who agreed in writing that Godboldo could stop the medication any time she wanted. But we knew little of that when Child Protective Services went to court without Godboldo's knowledge and obtained an order for the mother to turn over the child because of her refusal to give her Risperdal. CPS then showed up at Godboldo's door with the surprise order with which she understandably refused to comply. So CPS called the police who sent the SWAT team replete with a tank, all because a mother, with the approval of her daughter's psychiatrist, didn't want the girl taking a particular psychotropic medication. As if all that weren't enough, once the police had wrested the girl from her mother, she was sent to a psychiatric facility where, two weeks later, she still hadn't received the medication and doctors said her condition was stable. That's why I said earlier that it looks like Godboldo was not only within her rights, but had actually made the right decision. That brings us up to date. The article informs us that now,
A judge announced a plan Friday to get a Detroit girl back into the care of relatives and out of a state mental health facility after a dispute over her mother's refusal to keep giving her prescribed drugs.
Judge Lynne Pierce of the Wayne County Circuit Court Juvenile Division gave doctors representing the state and the family of the 13-year-old two weeks to work out a treatment plan for her...
"I am assuming the doctors will be able to reach a joint treatment program where (the teen) will be able to receive treatment in a home setting," Pierce said after a lengthy private meeting in her chambers with lawyers representing the state and the girl's parents, Godboldo and Mubarak Hakim...
Under Friday's order, the doctors representing the state and the girl's family were ordered to meet within a week to begin work on a treatment plan. The doctors are George Mellos, director of a state facility for mentally ill youths, and family physician Margaret Betts, who had been helping wean the girl from the anti-psychotic drug Risperdal.In other words, two sets of doctors will get together and agree on a plan for the girl's care to be followed while she's at home with her mother or another relative. So we're back to my original question, "why didn't this happen in the first place?" Would it have been so hard for CPS, instead of rushing to court for an ex parte order to take the girl from her parent and her home, to have told Godboldo that they thought she should give the girl Risperdal? When Mom disagreed, they could have gone to court and asked the same doctors who are now involved to come up with a plan for the girl's care. Simple. At least compared to what actually happened it's simple. No ex parte orders, no police, no SWAT team, no felony charges against the mother, no community outrage, no wrenching a child with psychiatric problems from her mother and home would have occurred. One court hearing - maybe two - would have solved the whole thing. Here's a wild guess on my part: that question - "why didn't this happen in the first place?" - will be the core of a civil suit filed against CPS by Godboldo. I've said it before; this is what so often happens when individuals confront state power - all hell breaks loose. And it seems to matter little what the simple, sensible thing to do might be. Even now, Godboldo doesn't have her daughter back. She's to stay with an aunt for the time being although no one seems to know why Mom doesn't have custody. What's she done wrong? Yes, there's an allegation that she discharged a pistol while the SWAT team was breaking down her door. That would be a serious issue if it happened and not to be taken lightly. But so far it's nothing more than an allegation and is presumed innocent. Other charges against her stem mostly from her assertion of her parental rights. My guess is that those will be dismissed soon enough. I've said it before: the breakdown of the family has opened the door to state intervention in what once were considered family matters and parental decisions. This case shows it about as well as any. A mother, along with her daughter's psychiatrist, decides how best to treat her daughter's mental condition. The state disagrees and takes the child by force, parental rights be damned. CPS was wrong about the medication, but the far greater wrong was its decision to rush to court without notice to the parent. But states give child welfare agencies those powers and, once given, you can count on them being used. 'Twas ever thus.
this case will be a harbinger of things to come. Here's an article about the case (The West Virginia Record, 4/24/11). By itself, it's not definitive regarding fathers' rights in custody matters, but it points a direction in which I suspect courts will go more and more in future cases. In a nutshell, the Supreme Court of West Virginia ruled that false allegations of child abuse can be used to terminate custodial rights. Now, the reasons the decision doesn't control fathers' rights is that it involves grandparents. Likewise, it's based only in part on their false allegations of abuse. Still, the reasoning is there to give falsely accused parents a leg up in custody cases. Melissa Arnold was married to Jonathan, apparently back in the 90s. They had a son they named Jon and divorced at some point that's not stated by the court. In 2000, after their divorce, Jonathan was killed in a car accident. In 2003, Melissa remarried and her new husband, Warren Lee Arnold adopted Jon. But Melissa's parents opposed Jon's adoption by Warren. According to the court, they did so "viciously." The adoption was approved by the court, but the grandparents didn't let up. At some point in 2007, Jon's grandfather noticed a bruise on the boy's stomach. He decided this indicated child abuse and asked for and received an order of protection keeping Warren out of Jon's life for a period of 90 days. That apparently required some vigorous coaching of Jon by his grandparents. The allegations were investigated and found to be baseless. Jon, who has some form of cognitive impairment, said he got the bruise playing air hockey in a particularly strenuous way. Other than the bruise there was no evidence of abuse. More importantly, Dr. Timothy Saar, a psychologist, examined Jon on four separate occasions, on every one of which, Jon said he'd been coached and intimidated by his grandfather into lying to the police and others about how the bruise occurred. Dr. Saar further stated that being forced to lie about his stepfather placed Jon in a difficult emotional position.
However, Dr. Saar also reiterated that the false abuse allegations by the grandparents resulted in Jon being alienated from his father, which resulted in Jon feeling emotions of self-blame that were psychologically damaging to him.Further,
Jon was coached by his grandparents into accusing his father of abusing him. The manipulation of this cognitively impaired child by his grandparents should be considered emotional abuse and should call into question the [grandparents"] ability to care for this child.Based on the continuing conflict between, on one hand, Melissa and Warren and the grandparents on the other, Jon's parents went to court to terminate the grandparent's visitation rights. The trial court denied the request but the Supreme Court overruled it and rendered judgment for the parents. So what we have is the assertion of rights by parties who aren't the child's parents, i.e. the grandparents. Opposing them are the child's biological mother and stepfather, i.e. a man with no biological connection to the child. In West Virginia, the only consideration in deciding the custodial rights of grandparents is the best interests of the child. And it was on that basis that the court decided that these particular grandparents should no longer associate with their grandson, not even with third-party supervision. The Supreme Court made its decision based on two factors only.
The particular facts of this case, including the vicious nature of the grandparents" actions to forestall Jon"s adoption proceedings, as well as their baseless pursuit of abuse allegations against Jon"s adoptive father, illustrate a relationship in constant conflict with that of Jon"s parents.When the court refers to the "particular facts of this case," it's saying that its opinion does not mean that false abuse allegations prohibit grandparent visitation rights as a matter of law. But what it does mean is that false allegations of child abuse can be used as a factor in the termination of those rights. Parental rights to children are more serious matters than those of grandparents and so we're still a long way from a ruling that any false allegation of abuse must result in a change of custodial rights. But where we are is the clear acknowledgement by the highest court in a state that false allegations of abuse can be damaging to the child caught between two loved relatives. Those allegations can be alienating and can cause psychological harm. As such, courts will in future consider them as factors militating against the parental rights of false accusers. That's well within established law; it's also well within established social science. As such, it should send a message to parents who might be inclined to make false allegations in order to achieve an advantage in custody decisions. If this case is any indication, false allegations of abuse made solely for the sake of gaining an advantage in custody cases will no longer be a free shot, devoid of adverse consequences for the accuser. For reasons I've never understood, courts have always been loath to punish these exercises in blatant perjury. Well, now they don't have to. Simple recognition that false allegations that tend to separate a child from a loving and fit parent themselves constitute a form of child abuse will go a long way toward better custody decisions and in the end fewer false allegations of abuse.
SB 481, a California bill to curb the common family court practice of issuing "double dipping" spousal support orders. SB 481 will correct an inequity in California law wherein the same stream of income is counted twice in a family law action -- once for purposes of valuing that income stream as a division of property, then again for spousal/partner support purposes when the spouse/partner receives the income in the future. Under this bill, family law courts would have to consider the impact of double counting of income when making a spousal/partner support order. SB 481 comes on the heels of SB 1482, an alimony reform bill we helped pass last year. SB 1482 allows some alimony obligors to obtain court orders requiring vocational examinations for their exes and mandates that judges follow the exams" findings when determining spousal support levels. Both SB 481 and SB 1482 are sponsored by Senator Roderick Wright (D-Inglewood), who F & F named its California Senator of the Year for 2010. Below is the text of Rod Wright's SB 481 Fact Sheet:
THIS BILL: Corrects an inequity in California law, known as double dipping, where the same stream of income is counted twice in a family law action -- once for purposes of valuing that income stream as a division of property, then again for spousal/partner support purposes when the spouse/partner receives the income in the future. Under this bill, family law courts would have to consider the impact of double counting of income when making a spousal/partner support order. NEED FOR THE BILL: Double dipping, or the double counting of income, occurs when divorcing couples have income-producing assets, such as a pension, annuity, or a small family business, which is community property. Such assets are to a great extent valued based on the income which the asset produces or which is expected to be produced in the future. A spouse/partner who wishes to keep the asset must purchase the other party"s share by paying that party one-half of the present value of the future stream of income. That same stream of income is often counted again for purposes of spousal/partner support. In other words, when the court determines each party"s ability to pay spousal/partner support, it will include the full stream of income which the other party has already purchased from the other party. Many believe that this is an inherently unfair situation which can result in the loss of a small businesses or a retired person being unable to rely on the pension he or she thought was owned free-and-clear of the other party"s claims. Many states, such as New York, have acted to prohibit such double counting. EXISTING LAW: There is little controlling California law on this topic, but the Supreme Court did approve of the practice, in dicta, in 1979. See In re Marriage of Epstein (1979) 24 Cal.3d 76. Appellate cases have also approved of double counting income in cases involving retirement accounts that were divided. See, e.g., In re Marriage of White (1987) 192 Cal.App.3d 1022. In light of these cases, trial courts" hands are tied with respect to avoiding the inequities of double dipping. This demands a legislative solution. SOLUTION: Double counting is a complex issue with many experts having different opinions as to how best to fix it. This bill would avoid imposing a "one size fits all' approach. It would express the legislative intent that the inequity created by double dipping should be avoided, and provide discretion to the courts to deal with the issue on a case-by-case basis. This is done by adding a new provision to the 12 circumstances set forth in Family Code section 4320 that courts must consider when setting spousal/partner support: (n) The extent to which income for support was already capitalized and paid to the other spouse in the division of community property, to avoid double counting the income when the result would be inequitable, based on all of the circumstances presented.
This case just goes on and on (Daily Mail, 4/23/11). Glenn's written several pieces about it over the years, the first as early as 2006. But as Yogi once said, "it ain't over till it's over," and this one still ain't over. 'This one' is the Janet Jenkins/Lisa Miller custody battle over their daughter, Isabella. Years ago, Jenkins and Miller were a couple. Both wanted a child, so they found a sperm donor and Miller became pregnant and gave birth to a little girl. For her part, Jenkins was there every step of the way, supporting Miller during her pregnancy, waiting with her during labor and at the hospital. She was a hands-on mom who did the majority of the breadwinning for the couple and their child. In short, she was the "father" and Miller was the mother. Not surprisingly, when the two split up, the court treated Jenkins and Miller exactly that way. It gave Miller primary custody and Jenkins visitation. All that would have been unfair to Jenkins, just as it's unfair to the millions of fathers who get the same short shrift every year, but the matter didn't end there. That's because Miller not only didn't want to maintain a relationship with Jenkins, she didn't consider herself a lesbian anymore. Plus, she had come to believe that lesbianism was morally wrong. That in turn led her to do what we so often see mothers doing - trying to cut the father out of his child's life. Only in this case, the "father" was Janet Jenkins. So, just as in so many cases, the mother moved out of state (from Vermont to Virginia) and refused to allow any contact between Jenkins and the child they'd both helped raise. Several years and numerous court hearings later, the judge finally transferred custody to Jenkins, but it was too late. That was early last year and Miller was nowhere to be found and she still isn't. No one seems to know where she or the little girl are. But I suspect we may be about to find out. The linked-to article tells us that the FBI has arrested a Tennessee pastor named Timothy Miller in connection with the disappearance of Lisa Miller and the child. (It's currently unknown if the pastor is related to Lisa Miller.) The FBI believes that he facilitated Lisa's international flight with the child, apparently to Nicaragua. His telephone calls and emails reveal his contact with the Nicaraguan airline, TACA, to arrange a flight from Canada to the Central American country for two people that could not be routed through the United States. Into the bargain, it's thought that the two may be hiding out in a beach house owned by Jerry Falwell's Liberty University. With any luck, Timothy Miller will soon become acquainted with the importance of cooperating with authorities and spilling the beans about where Lisa Miller and Isabella are. Of course, he may see assisting the kidnapping as his moral duty to keep the child out of the hands of her lesbian parent. So he may keep mum and do his time, which would be up to three years if he's convicted. In the meantime, Jenkins' lawyer thinks the pastor's arrest is a big break in the case and I hope she's right. Child kidnapping and Miller's other forms of alienating Isabella from Jenkins are clearly forms of child abuse and should not be rewarded. Specifically, Isabella should be turned over to Jenkins and Lisa Miller should spend some time in jail. And if Falwell or his university have taken any part in this abusive affair, Jenkins should bring a civil suit against them. So that's the latest, and it may be an important development. Whatever may come of it, the case still dramatically reinforces the treatment dads receive by family courts and the mothers of their children. With more and more same-sex couples having children, these types of child custody battles are increasingly common. To learn more, see F & F's MSN.com column With Gay Marriage Comes Gay Divorce: The Rise of Lesbian Custody Battles (10/15/09).
this article that spells out some amendments to the bill and also starts to sketch its opposition (Twin Cities Daily Planet, 4/14/11).
But Rep. Melissa Hortman (DFL-Brooklyn Park) raised concerns about this bill's possible effect on child support.
Molly Olson, founder of the Center for Parental Responsibility, said the intent of the bill is to only address parenting time.
However, Michael Dittberner, legislative chair of the Minnesota Chapter of the American Academy of Matrimonial Lawyers, said that until a few years ago, custody and child support were linked. He said the proposed 45-plus percent parenting time could change the new child support formulas. "I think there was an intent to effect child support."Well, the truth of the matter is that, if it's enacted into law, the bill should have an impact on child support. That only makes sense. The bill's presumption is for each parent to get at least 45.1% parenting time with the child. That's compared to 30% or less under current custody arrangements that are usually ordered. So increased parenting time by Dad should lower child support levels for the good and sufficient reason that, because the child spends more time with him, his costs go up while hers go down. So it's interesting that that's what opponents are hanging their hats on. To paraphrase their opposition, "We're against dads having equal contact with their children because moms might not get as much money." That's their position even though, as I showed earlier, more time with Dad should mean lower support levels. But just because we're dealing with what they did say, let's not forget what they didn't say. What they didn't say is anything about child abuse or spousal abuse or domestic violence or bad dads or brutal dads or careless dads. I don't know why that is. Maybe they're keeping their powder dry or maybe the emperor's clothes are wearing a bit thin. Usually the anti-dad crowd makes those misleading claims as mechanically as flipping a switch. So I've got to wonder why they're not singing the same sad old tune. Could it be that legislatures have had enough of the false claims that dads - but not moms - hurt their kids? Could it be that elected officials now know the truth - that moms do twice the abuse and neglect of children that dads do and about 75% more of the child homicide? After all, they'd have to do nothing more than go to the website for the Department of Health and Human Services' Administration for Children and Families to find out the up-to-date facts. I'd like to think so, but I've got my doubts. Still, the argument that children should continue to lose their dads via divorce because if they didn't, Mom wouldn't get paid as much is a pretty remarkable stance to take. Let's just say I'm glad it's them making the argument and not me. Interestingly, it vaguely echoes what North Dakota state senators gave as their reason for voting down that state's recent equally-shared parenting bill. It seems that, shortly before the vote, they were deluged with calls from family court lawyers and judges saying the bill would make custody decisions more complicated. I've got my doubts about that; it would seem to have made them easier since the presumption would have applied in most cases. But it was interesting that, as in Minnesota, the objection was administrative, not substantive. Again, gone were the complaints by feminist groups about domestic violence . They were replaced by an altogether new and entirely uninspiring plea that judges and family lawyers shouldn't be inconvenienced. This is thin gruel indeed. The old DV claims, however wrong, at least offered a compelling drama. What'll they come up with next? Maybe "we can't let dads have access to their children because we'd have to reword the standard order forms." Whatever the case, it's beginning to look like the anti-dad forces are running out of excuses to keep children from having fully-involved fathers in their lives.
With Gay Marriage Comes Gay Divorce: The Rise of Lesbian Custody Battles (10/15/09). As Fathers and Families Board Member Robert Franklin, Esq. recently explained in his blog post Break in Jenkins/Miller Case: Pastor Arrested, Charged with Abetting Kidnapping, it now appears that authorities may have the leads they need to locate the girl and, hopefully, reunite her with Jenkins. Child custody disputes involving homosexual couples are becoming increasingly common and are often contentiously litigated. Unlike many groups focusing on LGBT issues, we do not see these disputes as centering on primarily gay/lesbian rights. Instead, we see them as family court issues comparable to those involving disputes between married heterosexual couples where the man is infertile and children are conceived through the recruitment of a sperm donor. Such children are considered the children of the marriage, and are raised by both the mother and father. When a couple divorces, one parent should not be able to decide that, because he or she is the only biological parent, he or she can drive the ex out of their child"s life. Both parents agreed to have a child together, and they both have a parent-child relationship with their child. The child"s right to a relationship with both parents must be protected. While F & F does not take any official position on gay marriage or gay rights issues, we do defend the rights of all parents--male or female, biological or adoptive, gay or straight. Jenkins has for many years been represented in court and in the media by the Boston-based advocacy group Gay & Lesbian Advocate Defenders. GLAD has been very effective, repeatedly winning in court, but the court"s orders have not been effectively enforced. F & F spoke with a GLAD representative today, commended the organization for its good work, and offered our support.
Here's Barbara Kay writing in the National Post last November. She's discussing the comments a judge made after a jury convicted a mother, Elaine Campione of drowning her two daughters because she wanted to take revenge against her ex-husband for leaving her.
He said, "It is more than disconcerting to think that if Campione had not been so abused, so used and discarded as a person, her two daughters could still be alive…' Judge Stong was determined that even if it is Campione that gets locked up, Canadians would know that the real villain, morally speaking, is Leo Campione, the father of the dead girls (even though his alleged abusiveness was entirely based on his wife"s allegations and never proved), and it is actually the "discarded' Elaine Campione who is the victim.
Judge Stong felt such personal animus against the grieving father that he wanted to deny Mr. Campione and his parents their opportunity to read a victim-impact statement, standard practice even with mandatory- sentencing cases. He only relented under strong pressure from the prosecutor, who reminded the judge that the murdered girls had been "an extremely important part of [Mr. Campione's] life.'That was last year, so why do I bring it up now? Because of its striking similarity to the Lashanda Armstrong case. Armstrong of course is the New York woman who drove herself and her four children into the Hudson River telling them all that if she was going to die then they must die as well. The oldest, ten-year-old La'Shaun was the only one to manage to get free. He says his mother attempted to hold all the children in the car as it sank into the 45-degree water, but he squirmed away and swam to safety. So that's one major difference between the Armstrong and Campione cases; Armstrong is no longer alive. But the headlong dash to find the children's father responsible for their deaths is essentially identical. The children's eyes had barely closed before news accounts breathlessly reported that Armstrong and Jean Pierre, father of the three dead children, but not of La'Shaun, had argued about his "cheating." Since then we've been told that he had been charged with child neglect when a toddler under his care was found wandering unattended. The fact that he was never convicted or punished for the incident came out only later. At the time of the incident no one paused to ask what it might mean to "cheat" on a person to whom you're not married and who doesn't allow you to live with her and seeks to keep you out of the lives of your children as Armstrong did to Pierre. But to rational beings, cheating, even if it occurred, doesn't justify the intentional killing of small children. The mere fact that I have to say that speaks volumes about the type of culture we live in. But read the articles about the Armstrong killings and Barbara Kay's piece about the inexcusable behavior of Judge Stong in the Campione murders and it's hard to deny that, when mothers kill their children, people reflexively look for a father to blame. That's the nut of this article (Salon.com, 4/27/11). It's at pains to remind us that it was Armstrong, not Pierre, who killed the kids. Why did we have to be told? Because, with all the vilification of the dad, it might be hard to keep the fact in mind. It also reminds us that Pierre is one of the victims. He's not dead, but he's still a father whose three little children were killed by their mother. Anyone with an ounce of sensitivity would empathize with Pierre who's endured one of the most terrible shocks imaginable. But those folks seem to be in short supply among the stampede to find something - anything - with which to blame the dad for something he objectively did not do.
"He's in shock that his children died," said the lawyer, Stephen J. Powers. "He's not looking to accuse anybody of anything but everybody wants to put the blame on him."That's not unusual.
"It's really good to have someone to blame," said Dr. Philip R. Muskin, professor of clinical psychiatry at Columbia University. "Appropriately or not, having someone to blame gives us an answer, and we like answers."
A tendency to blame the victim is not unheard of, said psychologist David Palmiter, public education coordinator for the American Psychological Association
"In this case, one of the victims is the living spouse," Palmiter said. "His children were killed."All of that is sensible enough - blatantly unfair to Pierre, but at least understandable - except for one thing. When the sexes are reversed, do people blame the mother? When a father takes the life of a child, do the media and assorted opiners and hangers-on turn their accusing fingers towards her? If the do, I've never seen it. Maybe someone can remind us of a single instance in which that happened. That's the first problem with the opinions of the "experts" in this case. They phrase their opinions in gender-neutral ways, but the phenomenon they describe is anything but that. The simple fact is that fathers receive blame from the talking heads while mothers receive understanding. Until the experts notice that glaring fact, their opinions will continue to have only limited utility. The second problem is that these same experts who dispassionately describe people's tendency to look for a scapegoat, do precisely that themselves.
However, the experts do not find Pierre blameless. If his relationship with Armstrong had been healthy, they said, she probably would have had one less stress factor. In addition, said Gerald Mallon, a professor at Hunter College's School of Social Work, "a good partner might have picked out the signs of mental illness."Yes, she had stress in her life, just like 100% of all other adults - those who drown their helpless children and those who don't. And of course there's the "mental illness" angle that Mallon and many other commenters take for granted. The problem with that is that, apart from the incident itself, there's not the least evidence that Armstrong was mentally ill. One lay person one time said Armstrong seemed to be acting in a "paranoid" way. Beyond that single statement, there's nothing. There has been no report of behavior that would lead anyone to believe that Armstrong didn't appreciate the wrongness of what she was doing. She hadn't consulted a mental health expert, wasn't on medication and seemed to be living a normal, if conflicted, life. Meanwhile, the same "experts" seem not to know basic facts about the case or others to which they compare it. One suggests that Pierre and Armstrong were married. They weren't. Another believes that the husband of Andrea Yates didn't know she was mentally ill, when in fact he had been deeply involved in her treatment for months before she killed their five children. The vilification of Jean Pierre is disgraceful. Yes, it seems that the man must plead guilty to being a flawed human being. Yes, his partner did what she could to keep him out of his children's lives and yes, he seems to have had sex with at least one woman other than Armstrong. For all that, let him prostrate himself at our feet don a hair shirt and cry "Mea culpa!" But let us be clear about two things. First, Jean Pierre is no worse than countless people, male and female, and he's better than many. More importantly, nothing he's said, done, or left undone, justifies the intentional killing of three small children. Nothing. Blame for that rests at the feet of one person and one person only - Lashanda Armstrong. Until we get that straight, this society will be in no position to pretend that we treat the sexes equally. Until we stop reserving our condemnation for men and our forgiveness for women, the sexes will not be equal. That's a wrong that hurts everyone.
this article says, Liberty officials are fairly shouting that they had nothing to do with helping Miller kidnap the child (The Advocate, 4/27/11).
Mathew Staver, dean of Liberty University's School of Law and chairman of Liberty Counsel, called the accusations "absurd." He said the organization's relationship with Miller ended when she stopped communicating with it via e-mail and phone. He added, "None of us would be stupid enough to place our careers and our futures and our law licenses on the table to try to help someone violate the law."That's not surprising, but the whole truth about this one won't be known for some time. Meanwhile in Scotland, Theresa Riggi has been sentenced to 16 years behind bars for stabbing her three children to death. Read about it here (Fox News, 4/27/11). Embroiled in a custody battle with her husband Pasquale, the American mother stabbed each of the 8-year-old twin boys and 5-year-old girl eight times with a kitchen knife, inflicted minor wounds on herself and jumped off the balcony of her third-floor apartment. Early this year she had pleaded guilty to causing the children's death but with diminished capacity, the equivalent of a manslaughter charge in the United States.
Judge Alastair Campbell told Riggi that "while your responsibility is diminished, you are still responsible for your actions." "It is clear that any degree of responsibility for such ghastly and grotesque acts must be visited with a lengthy sentence of imprisonment," the judge said... Her lawyer, Donald Findlay, said she was suffering from narcissistic, paranoid and hysterical personality disorders and acute stress.No word as yet on the father's reaction to his ex-wife's sentencing. Finally, there's this development in the William McCormick III case (Brown Daily Herald, 4/27/11). The article is long - far longer than necessary. It's about the differing standards used by, on one hand universities and on the other hand the police, when dealing with rape allegations against students. That's interesting enough, but a good bit simpler than the writer would like to think. Briefly, colleges and universities, when faced with a sexual assault claim by one student against another, have fairly abbreviated procedures for hearing and deciding them. Some would argue that those hearing give short shrift to the due process rights of the accused. By contrast, the police have much more stringent requirements for gathering evidence, presenting it to a grand jury, the rights of the accused, etc. Now, the short answer to why there's a difference is that the consequences are different depending on who's deciding. If the college or university finds the young man "guilty," the consequence is that he gets tossed out of school with a nasty notation on his record. If he's found guilty in a court of law, he probably goes to prison, has his name placed on a sex offender registry and is kept out of a vast array of occupations when he gets out. So, different consequences, different procedures. But that's not what's interesting about the article. No, that comes from something else entirely. Readers will recall that the woman accusing McCormick has a very wealthy and powerful former Brown alumnus for a dad. He also donates lavishly to the school. It is McCormick's contention in his lawsuit against Brown that the school failed to adequately investigate the woman's claims and essentially railroaded him out of the school. It did that, he maintains, in large part because the allegations were made by the daughter of an alumnus that the school didn't want to displease. McCormick has always denied the original allegations. Into the bargain, McCormick's wrestling coach at Brown agrees with him, saying the college played fast and loose with even its scanty due process rules for accused students. Now it turns out that a week before the woman's allegations, a counsellor in her dorm, one Shane Reil (class of '09) had asked the woman's father for some career "guidance." The English translation of that term is "he was hustling him for a job or for a connection to one." The dad responded cordially saying he'd be happy to meet with Reil. Then, shortly after the woman leveled her accusations of the incident she alleged had occurred a week previously, the same Shane Reil provided a report to the campus investigators saying some pointedly unpleasant things about McCormick. What a coincidence! And what an opportunity for Reil. Opportunities to scratch the back of the wealthy and influential don't come along every day for college students, particularly not those who've just asked the same heavy-hitter for a favor. And of course, that's exactly what McCormick has been saying all along - that Brown rolled over for its powerful alum, so it's scarcely a surprise that a young man, not yet out of college and still looking for a real job did too. I shouldn't have to add that Brown was likely pleased enough to get Reil's report that it wouldn't have scrutinized its accuracy or veracity too closely. That's corroborated by the fact that Reil's criticisms of McCormick were nothing but opinions about his character and almost entirely lacking in factual support. In the final analysis, that's just what the Daily Heraldarticle is saying - that the college's procedure for handling that type of serious allegation is quick and slipshod. The absence of rigorous standards of due process allows plainly biased "evidence' like Reil's to become part of the record against the accused. In short, it's a kangaroo court. That's what William McCormick III has been saying all along.
Here's a story with a happy ending (KWGN, 4/12/11). Back last June, Robin Siler, mother of four-year-old Megan Richard, sold all her belongings and moved out of her residence in Littleton, Colorado. Then, during one of her visitation periods with Megan, she absconded with the little girl to Germany. That was a violation of the custody order governing her relationship with Megan and that of her custodial dad, Bijan Richard. It was also a violation of Colorado criminal law. So Bijan Richard turned to the Littleton police who determined that the child and her mother were no longer in the country. Prosecutors filed charges against Siler in absentia. Meanwhile, due to an informant's tip, Bijan thought he knew where Siler had gone and traveled to Germany to try to find her, but to no avail. He did however employ an attorney there. That attorney plus the efforts of German police and Interpol eventually were able to locate Siler and Megan. Siler had cut the girl's hair in an apparent effort to alter her appearance to avoid identification. That took ten months, but once the two were found, German authorities arrested Siler and placed Megan in temporary foster care.
Richard had just returned to Colorado from Germany empty-handed, after an informant tipped him off to his abducted daughter's location. "It was very difficult. I was pretty much at wits end," he says. "All hope was lost..."
Richard was feeling blue after his return home--thinking he might never see his daughter. "Then, I got a phone call last Wednesday," he says.
It was from his attorney in Germany, calling to tell Richard that his daughter had been located. Megan and her mother had been separated, and Megan was staying with a foster family until Richard could get there.Richard flew immediately back to Germany and was reunited with his little girl who was much changed since he'd last seen her. Her hair was shorter and her vocabulary larger.
"As soon as Megan saw me, she jumped into my arms and yelled 'Daddy,' says Richard. "We hugged for a good two-and-a-half, three minutes, and then she just talked and talked. It was a happy reunion."
Richard says it was like the day Megan was born. "It was almost like rebirth. It's holding your child in your hand," he says, "It's something I had not done for ten months."Meanwhile, Siler faces extradition from Germany to Colorado where felony charges of custody interference await her. Just how long it will take for her return and trial seems to be anyone's guess. Interestingly, there's not a word in the article about the Hague Convention on the Civil Aspects of International Child Abduction. The reason for that I can only guess at. After all, the usual issues that arise in litigation under the treaty could all have come up in this case. But it's not clear that Richard even filed a claim under the Convention. According to the article, it was all handled as a police matter. Whatever the case, this is how cases of parental child abduction across international borders should be handled. The Hague Convention makes it clear that child abduction is injurious to children and against the public policies of the signatory nations. It also states that the prompt return of children to their countries of residence is one of the main objectives of the treaty. Even though it took ten months to locate Megan, once she was, things proceeded very quickly and she was reunited with her dad and returned to her familiar surroundings. That's the way it's supposed to work. Unfortunately, it rarely does. The video that accompanies the article says that in some 75% of international child abduction cases, the child is never returned. Of course some of those countries haven't signed the Hague Convention, but in many cases they have. In the next couple of days, I'll report on cases in which the plain language of the Hague Convention seems to have been ignored in favor of pre-decided results. In the meantime, congratualations to Bijan Richard. I know he's overjoyed and relieved to have Megan back.
here (Business Week, 4/12/11). Oh, I know what you're thinking. "He's been holding out on her. He's received income from one of those movies and isn't paying her what she's entitled to."
This case suggests one reason for that. In Mr. Bumble's timeless statement, "the law is a ass." But again, it may be less the law than the judges. Consider this: A man and a woman, both from Nigeria met and married in the United States in 2000. He had dual American and Nigerian citizenship and she apparently had Nigerian only. In 2003 they had a child and in 2005 they had another. In February of 2009, the mother took the children to Nigeria and informed the father that they were staying there for good. In April 2009, the father contacted the United States Department of State and "a child abduction case was opened on April 22, 2009." What the opinion doesn't mention is that the "case" was not one under the Hague Convention because Nigeria is not a signatory to that treaty. My guess is that the "case" consisted of diplomatic overtures to the appropriate Nigerian agency to try to get the children returned. Whatever the case, it wasn't successful. Then on July 3, 2010, the mother brought the children to England to visit her brother. The father learned of her presence in a country that has signed the Convention, alerted the State Department and, on July 22, 2010 filed an action in England under the Convention. She and the children were forced to remain in England during the pendency of the Convention case there. I probably don't have to tell you that the learned English judges decided that the mother's abduction of the children is perfectly alright under the Convention. To say the least, their "reasoning" is remarkable. There are two "reasons" for their conclusion. The first is that the father didn't file his case under the Hague Convention for more than a year after the children were abducted. The reason that's important is that, once a year has passed, a judge can find an abduction to have been unlawfully done, but still not order the children returned to the non-abducting parent if they are "settled" in the new country. So it's interesting that not once during the entirety of a long and tedious opinion does it occur to any of the judges why the dad didn't file a Hague Convention case within a year - the mother was in Nigeria. Nigeria has never signed the Convention. Trying to file a Convention case there would have been utterly fruitless; Nigeria has no courts to deal with Convention cases and no reason to enforce a treaty it hasn't signed. Into the bargain, everything the father could do, he did well within a year. He opened a case with the State Department within two months of learning of the abduction. He filed a Hague Convention case within three weeks of learning of the children's presence in England. In short, once there was a Convention case to file, he filed it promptly. But the learned judges noticed none of that. They were in a hurry to get to the second "reason" for denying this father his rights under the Convention - that the children were "settled" in Nigeria. Under the Convention, if over a year has passed and the children have become "settled" in their new country, a court need not return them to their country of origin. To the learned judges, the children were settled in Nigeria. And that must be called an odd conclusion since the court's decision was handed down on February 16, 2011 by which date they hadn't been in Nigeria for over six months. The older child was five years, 2 1/2 months old when he/she was abducted. The younger was three years, 5 months old. After their abduction, they spent one year and 4 months in Nigeria before going to England where they spent 6 1/2 months awaiting the outcome of the court decision. Somehow, to the learned judges, that all means that the children are "settled" in Nigeria even though they haven't set foot in the place for over six months and have spent the great majority of their young lives in the U.S. The judges have read the Convention. I know this to be a fact because they quote parts of it. They've read it; they just don't know what it means. That too is odd because its language is pretty plain. Here's part of the preamble:
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access...Here's what that means. The interests of children are most important in abduction cases. Abduction harms children, so we're trying to protect them from the harmful effects of that. We also want to protect the rights of access of the non-abducting parent. The learned judges did neither. They rewarded the abduction by the mother thereby continuing the "harmful effects of their wrongful removal." They also failed to protect the father's "rights of access" to the children. The Convention goes on to say that it has two objectives:
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.Again, the judges accomplished neither; the children will never be returned to their country of origin or to their father. And the father's rights of custody and access in the United States have not been respected by England. It's a poor record by any measure. The Convention clearly sets out two overarching goals and two objectives with which to meet them. The judges failed on all four. They were able to do so only by ignoring what must be clear to anyone with the ability to read - the father filed suit as soon as he could and well within a year; if the children were "settled" anywhere, it was with him in the United States. It's almost as if the judges had a pre-conceived goal of keeping the father out of the lives of his children. But surely that couldn't be true. Only an ass would do that.
In Protecting parents who serve (Las Vegas Review-Journal, 5/1/11), Fathers and Families Executive Director Glenn Sacks lays out the case for AB 313 and SB 284, bills to address many of the problems faced by Nevada's active duty and reserve service members. The bills, sponsored by Assemblywoman Irene Bustamante Adams, D-Las Vegas, and Senator Don Gustavson, R-Sparks, are modeled in part on AB 2416, which we helped pass in California last year, and we worked with a Department of Defense Liaisons Office legislative representative on the bills prior to their introduction. To comment on the piece, click here. In the Review-Journal, Sacks writes:
There are six central reforms which advocates for military parents have been working to implement legislatively since 2005: prohibiting permanent custody orders for deployed parents; making temporary orders revert back after deployment; prohibiting deployment from being used as a factor in custody determination; allowing guardianship or visitation to be delegated when appropriate; holding expedited and/or electronic hearings for deployed parents; and extending military parent protections to National Guard and Reserves. AB313 and SB284 achieve all six of these objectives. Since 2005, more than three dozen states have passed military parent child custody legislation. Nevada is not one of them. No mother or father should ever be disadvantaged in a child custody or Family Court proceeding because they serve. With America fighting two wars and the divorce rate among military families running high, Nevada's service members need AB313 and SB284.Read Sacks' full piece here.
This article tells us that five of the six defendants have agreed with prosecutors to plead guilty to a single misdemeanor in exchange for having all other charges dropped (Boston Globe, 4/26/11). Those charges consisted of a variety of felonies and misdemeanors. If the deal is accepted by the judge, the kids will likely serve short periods of probation and then be free. In other words, the prosecution caved. There was never much of a case there and the single misdemeanor pleas are nothing but face-saving for the DA's office. They couldn't walk away with nothing, so they walked away with the next worst (for them) thing. One defendant, Austin Renaud, remains charged with statutory rape. That too is an exceptional charge. Yes, it's true that Phoebe Prince was under the age of consent at the time the two had sex, if they did. But so was Renaud. In those cases, most prosecutors understand that teenagers sometimes have sex with each other and treating the event as a crime is pointless and a waste of public resources. Statutory rape is intended to punish adults who have sex with children, not children who do. So Scheibel's letting the current DA clean up that mess too. The linked-to article lets us know that Renaud's lawyer isn't talking to the DA about any deal. My guess is that he doesn't think there's any way they can convict his client. After all, what's the evidence against Renaud that's not hearsay? We'll find out about that in time. Meanwhile, this is yet another sorry chapter in what sometimes looks like the criminalization of everything. If you're a girl and you send your boyfriend a photo of yourself topless, look out; the police may come knocking on your door. If you're the boyfriend and you show the photo to someone else, you can count on being charged, likely with a felony. It's high time prosecutors started exercising some of the discretion about who to charge, why and when, that used to be routine. Criminal law is a blunt instrument. It was never intended to right the type of wrongs committed by the kids of South Hadley High against Phoebe Prince. That should have been dealt with by parents, school teachers and administrators. They failed to do so, and they're the ones who should be disciplined for their failure. But the District Attorney's Office should have stayed out of it. By the recent announcements, they're doing just that - finally.
The outrageous Peter Spitz case is, in a nutshell, as follows:
- Mother shoots and kills mother-in-law and shoots sleeping husband, permanently disabling him.
- Mother is acquitted by reason of insanity
- Mother is being released from custody and can now spend time with their son but father, who has never been found culpable of any wrongdoing, cannot.
North Carolina radio host Curtis Wright, a longtime friend and supporter of Fathers and Families, hosted F & F Board Member Robert Franklin, Esq. on The Curtis Wright Show on April 20. Wright began the show with a devastating critique of the family court system, declaring "I am a single father...I [am] a survivor of the legal system."Wright (pictured) said:
The decision to be a single father and to raise my children after my divorce was a decision made by three of us--my two children and myself. We took on that fight together and we were able to win that fight against a prejudiced legal system. It's a sad situation that takes place every day in America...I was lucky to survive and escape. My children were lucky to survive and escape, and their lives...were forever changed. We shared a life together that the prejudiced court did not want us to share together, and we will share the rest of our lives and memories together...we were survivors...[In family court] for nothing they have done, fathers are the villain, the three headed monster... [The courts] are not looking out for the best interests of a child. The best interests of a child are to have both parents actively involved in their lives forever... It breaks my heart, and I have worked with people like [Fathers and Families Executive Director] Glenn Sacks and others to expose and bring awareness to these sad stories...[it's about] the rights of children to have access to their fathers and have lives with their fathers...Fathers and Families [is] a wonderful organization...To listen to the show, click here.