Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Saturday, April 13, 2013

Guest Post by King: Incarcerated Parents in Department of Social Services Court

By Brian King, King Law Offices

In our years working with the Department of Social Services, both as an attorney for the Department and representing parents, we have often had respondent parents whom have found themselves incarcerated.

In these types of cases, the situation is dire but not impossible. The key is to make reasonable arrangements for child care while in prison. A parent in this situation must make reasonable efforts while incarcerated to protect their constitutionally protected status as a parent.

In In re P.M., 169 N.C.App. 423, 427, 610 S.E.2d 403, 406 (2005), the Court held, “N.C. Gen.Stat. § 7B–101(9) (2009) defines a “[d]ependent juvenile” as “[a] juvenile in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement.” In determining whether a juvenile is dependent, the trial court “must address both (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements.”

In In re L.H., 708 S.E.2d 191, (N.C.App., 2011), the Court held, “Respondent father does not dispute that he is unable to parent, but contends that the trial court erred in finding that DSS, and not he, placed Luke with the maternal grandmother. Respondent father further argues that, in any event, the trial court's finding that “neither parent has offered an alternative placement for the juvenile” is not sufficient to establish that he lacks an appropriate alternative child care arrangement. According to respondent father, whether DSS arranged the placement of Luke with his maternal grandmother “should not have a bearing on whether there was an appropriate, alternative child care arrangement.”

In re P.L.P., 618 S.E.2d 241 (NC, 2005) is the leading case on incarcerated parents. In that case, the court held that "Incarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision." In re Yocum, 158 N.C.App. 198, 207-08, 580 S.E.2d 399, 405 (2003). "The key to a valid termination of parental rights on neglect grounds where a prior adjudication of neglect is considered is that the court must make an independent determination of whether neglect authorizing the termination of parental rights existed at the time of the hearing." In re McDonald, 72 N.C.App. 234, 241, 324 S.E.2d 847, 851 (1984). Where "a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect[,] . . . because requiring the petitioner in such circumstances to show that the child is currently neglected by the parent would make termination of parental rights impossible." In re Pierce, 146 N.C.App. 641, 651, 554 S.E.2d 25, 31 (2001). "The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding." In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984).

Essentially, the court has made it clear that the respondent parent who is incarcerated in the State of North Carolina can protect themselves, even in times where they are incarcerated. A parent should (and should be encouraged) to attend parenting classes while in the Department of Corrections, send letters to the children, and most importantly make arrangements for the care of the children. The arrangements for care must be made and present even if the child is in foster care.

Having an attorney that understands this important case law and argument is vital, as the Department of Social Services will often move to terminate the rights of parents in this situation. While difficult, a parent can prevail even in these circumstances.


April 13, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, April 12, 2013

“Baby Veronica” Forum

An announcement from Professor Cynthia Godsoe of Brooklyn Law School:

We are excited to let you know about an online forum about the ICWA “Baby Veronica” case, before the Supreme Court next Tuesday.  It can be found here:

The forum is a discussion among experts on family law, Indian law and adoption including Barbara Atwood; Elizabeth Bartholet;  James Dwyer; Joan Hollinger; Kevin Noble Maillard; Solangel Maldonado; Barbara Bennett Woodhouse.

We hope you enjoy it, and feel free to add a comment (at the bottom). Also, check in again on Tuesday for more discussion.

April 12, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Divorce Causes

From the Huffington Post:

A growing number of Brits are citing alcohol as a contributing factor in their divorces -- and it's the wives who have the drinking problem in the majority of the cases, according to one divorce attorney.

Read more here.


April 12, 2013 in Divorce (grounds) | Permalink | Comments (0) | TrackBack (0)

Thursday, April 11, 2013

CA Litigation

Litigants in the family law context in California are challenging the Vexatious Litigant Statute (VLS).  Read the federal court complaint here.


April 11, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

New Cohabitation Law in British Columbia

From CTV News:

Cohabitating couples in British Columbia should start thinking about splitting debt and property and potentially paying out spousal support as the province rolls out new family laws.

The updated legislation, which takes effect Monday, erases the line between marriage and common law partnerships in B.C.

Read more here.

April 11, 2013 in Cohabitation (live-ins) | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 10, 2013

Florida's Alimony Law

Proposed changes to Florida's alimony law are discussed here.


April 10, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 9, 2013

Same-Sex Marriage in France

From Jurist:

France's Senate [official website, in French] on Thursday commenced debate of a bill [text, in French] that would legalize same-sex marriage [JURIST backgrounder] and allow same-sex couples to adopt children.

Read more here.


Hat Tip: Angelique Devaux

April 9, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, April 8, 2013

Guest Post by Jennifer Smith--Family Law: In the Event of an UnSafe Parent

A divorce is an unforgettable event to a child as they will feel pain and emotional conflict having to choose which parent they to whom they side and the idea that the individuals that pronounce their undying love will no longer stay present in their daily lives. The child will feel as if they are stuck between the conflict, and may see the event as a result of their doing which creates deep psychological imprints on the child.

The child, however, may not realize that the divorce is due to the result of an unfit parent. One of the parents may not provide adequate safety and security to the child which puts them at risk.

This break in safety could be the result of any number of factors:

  • Inadequate home security to defend the child from home intrusion (read more about these items and how to protect on
  • A parent that has little or no self-control due to addictions
  • An unfit environment from the friends and relatives of the parent

Family law had been a streamlined process that allowed either parent to make their case and the result being some or no visitation rights but this is beginning to change and become difficult to conduct.

The child will generally be placed under temporary custody to one of the parents or a third-party within the family unit during the divorce process.

The custody of the child will result in the four following arrangements:

  • Legal – A parent is given the responsibility for a child’s health and welfare.
  • Physical – The child will go with one of the parents and may have an option for joint custody or visitation rights.
  • Joint – The child has the opportunity to interact with both parents because they share custody.
  • Sole – A child goes to one of the parents that makes the daily decisions of the child (but may still have joint legal custody).

The court will use a number of factors to determine which type of arrangement will come to process based on many factors such as the financial stability of a parent, location, general well-being, and safety.

Safety can be show through a variety of actions:

  • Being consistent in emotions and physical contact
  • Showing patience with the child
  • Avoiding acquisitions and blaming
  • Being forgiving
  • Not being a victim of one’s lifestyle

The most important factors a family court will use in the case greatly rely on the history of violence, destructive behavior, drug/alcohol use, mental issues, or neglect. It’s unfortunate but many parents will use minor faults, or even the child, to gain custody when it’s apparent that both are fit for the job; it’s generally the result of a bitter breakup.

The child, too, may come as a factor within the decision for which parent gains custody; these factors will be taken into account and used to determine the best outcome for the child.

In all, the legal ramifications of a divorce will ripple through the lives of each individual involved and the children caught between the conflicts. The end result will find closure based on the cases presented by both sides and the history of each individual involved. A child’s well-being and mental stability should become one of the main aspects to cater throughout the process as it will have a profound impact on the child throughout their later years.

April 8, 2013 in Current Affairs, Custody (parenting plans) | Permalink | Comments (6) | TrackBack (0)