Saturday, June 4, 2011
Bowing to intense international pressure, Japan has taken a step closer to changing its international child custody policies.
The Japanese Cabinet on Friday approved a plan that would bring the country's laws in line with the Hague convention on international child abduction, according to Prime Minister Naoto Kan's office.
The plan basically requires an overhaul of Japan's family law system. It would put the Foreign Ministry in charge of the cases related to international child abduction, including finding abducted children, taking measures to prevent child abuse and advising parents on the voluntary return of children, according to a statement from Chief Cabinet Secretary Yukio Edano.
Read more here.
Sunday, March 13, 2011
SD Senate kills joint custody bill:
The South Dakota Senate rejected a measure Tuesday to encourage more divorced parents to equally share custody of their children, despite months of campaigning by a political action group established to get such a law passed.
The bill would have required judges in a custody dispute to presume that both parents should get equal time with their children, unless one parent waives joint custody or proves the other parent shouldn't have the same amount of time.
Supporters said it would protect the rights of fathers and ensure that children have access to both parents after a divorce. "The bill helps ensure both parents are equal in the eyes of the court," said Sen. Dan Lederman, R-Dakota Dunes.
But others argued the bill would restrict the ability of judges to decide custody disputes and would cause more strife between parents. Sen. Joni Cutler, R-Sioux Falls, said Tuesday that the bill would unfairly treat children as "property to be equally divided."
The Senate voted 20-13 to reject the bill. The South Dakota House had already passed it.
Major bill supporters included two lobbyists from a new group, the Children Need Parents PAC, founded to advocate a change to state custody laws.
Cutler argued Tuesday that the bill would set South Dakota's custody laws apart from other states with joint custody.
"Why would we want a standard less than the best interests of the children of South Dakota?" she said. "There's a reason no other state has done this, and we shouldn't either.
Senators made at least three references to the actor Charlie Sheen — an example, they said, of parents who don't deserve joint custody. "Under this bill, Charlie Sheen has immediate physical custody half of the time of his children," Cutler said.
Read more here.
Sunday, February 20, 2011
Arenas, acquired this season by Orlando from the Washington Wizards in a three-team trade, was walking to the locker room when a process server handed him the court documents, copies of which were attained by the Associated Press, on behalf of California resident Laura Mendoza Govan, who identifies herself as his former girlfriend and mother of three children he fathered.
Read more here.
Friday, October 8, 2010
These custody battles are most unfortunate:
From the Chicago Tribune:
NEW ALBANY, Ind. — The lawyer for a southern Indiana couple trying to adopt a 3-year-old boy who they've raised since birth says they've agreed to mediation with the child's biological father from Ohio who's trying to gain custody.
Attorney Tom Hectus declined to elaborate after a closed Floyd County court hearing Tuesday involving Christy and Jason Vaughn of Sellersburg and Benjamin Wyrembek of Swanton, Ohio.
The Courier-Journal of Louisville, Ky., reports a statement signed by the Vaughns and Wyrembek says they are trying to resolve their dispute in the boy's best interests.
The Ohio Supreme Court on Tuesday stopped action on Ohio adoption and custody proceedings while it considers an appeal of a ruling in Wyrembek's favor.
Read the article here.
Hat Tip: ER
Thursday, August 26, 2010
An interesting family law case coming down from the Abu Dhabi Supreme Court:
From The National:
The ruling is the latest in a number of decisions by the country’s highest court that experts say will influence the continuing reform of the family law system, under way since 2005.
Under current law, a divorced mother’s custody ends when a boy turns 11 and a girl turns 13. Judges can also follow the Islamic school of thought adopted by the UAE, Al Maliki, under which custody may be extended until a boy reaches puberty or a girl is married.
However, the Federal Supreme Court has now ruled that a court should look into the interests of the child before deciding on custody, regardless of the child’s age.
Read more here.
Wednesday, June 30, 2010
The Associated Press reports on recent cases denying custody and/or visitation to a parent making use of medical marijuana:
More than a decade after states began approving marijuana for medical use, its role in custody disputes remains a little-known side effect.
While those laws can protect patients from criminal charges, they typically haven't prevented judges, court commissioners or guardians ad litem from considering a parent's marijuana use in custody matters — even in states such as Washington, where complying patients "shall not be penalized in any manner, or denied any right or privilege," according to the law.
Arbiters often side with parents who try to keep their children away from pot. Medical marijuana activists in several states, including Washington, California and Colorado, say they've been getting more inquiries from patients wrapped up in custody-divorce cases in recent years as the ranks of patients who use marijuana swell.
Lauren Payne, legal services coordinator with a California marijuana law reform group called Americans for Safe Access, said that since mid-2006 her organization has received calls about 61 such cases.
In Colorado last month, an appeals court ruled that medical marijuana use is not necessarily a reason to restrict a parent's visitation. Washington courts have held otherwise.
"The court cannot countenance a situation where a person is using marijuana, under the influence of marijuana and is caring for children," an Island County, Wash., judge ordered in one such dispute. "There's nothing in the medical marijuana law that deprives the court of its responsibility and legal authority to provide for proper care of children so that people aren't caring for children who are under the influence of alcohol or drugs."
In that case, the medical marijuana patient, Cameron Wieldraayer, was granted only supervised visits with his two young daughters — a decision upheld by an appeals court.
Many patients insist that using pot makes them no less fit as parents, and that they shouldn't lose custody or visitation rights if there's no evidence they're abusing the drug.
According to the Washington, D.C.-based Marijuana Policy Project, two of the 14 states with medical marijuana laws — Michigan and Maine — specify that patients won't lose custody or visitation rights unless the patient's actions endanger the child or are contrary to the child's best interests.
Pouch, who grows marijuana in an old chicken coop, smokes a few puffs three or four times every day, and says he doesn't get high the way he did when he used marijuana recreationally in his younger days. He said he uses it to treat pain from carpal tunnel syndrome aggravated by glassblowing, as well as a shoulder that frequently pops out of its socket due to old sports injuries.
"I'm an outgoing, upstanding person. I do three different farmers markets and I'm a member of the Mason County Chamber of Commerce," said Pouch, 37. "I am not an activist at all, but I have the right to use this. It aids my pain, and it allows me to function in my everyday activities, where pills and opiates don't."
Opposing spouses often argue that they have a right to keep their children away from illegal substances, and marijuana remains illegal under federal law.
With some other medications, such as narcotic painkillers or bipolar medications, judges can require tests to establish how much of the drug a parent has in his or her system, said Eleanor Couto, a family law attorney in Longview, Wash.
But treatment providers can't prescribe specific amounts of marijuana without running afoul of federal law, so it isn't always clear what constitutes an appropriate level of the drug.
"How do you monitor how much someone can smoke?" Couto asked. "How do know they're able to adequately care for that child? I think it's got to be a case-by-case basis."
Seattle lawyer Sharon Blackford noted that urine tests can establish how much marijuana is in a patient's system based on current use, and that monitoring is "as easy to do for medical marijuana as it is for alcohol."
Early this year, a judge who called Washington's medical marijuana law "an absolute joke" and "an excuse to be loaded all the time" ordered that stepfather, Julian Robinson, to keep at least a quarter-mile from the teenagers because of his marijuana use, according to a transcript of the hearing.
That means Robinson can't be around the children he has raised for the past 13 years, even though they live in his home near Castle Rock, with his wife and their four younger children.
Read the full story here.
Tuesday, June 1, 2010
From Fox News:
A father is behind bars, arrested for allegedly kidnapped his own children from California 14 years ago, and bringing them to Central Florida to live.
For years, investigators have been searching for him, but it was the social networking website Facebook that delivered the break it took more than a decade to get, MyFoxOrlando reports.
Faustino Utrera is now charged with two counts of kidnapping, and two counts of violating child custody orders.
According to the Osceola County Sheriff's Office, Utrera was at a bus stop on Wednesday at about 2:30 in the afternoon, waiting to pick up his 16-year-old son from school, when he was taken into custody.
Faustino's 16-year-old son and 17-year-old daughter had been attending celebration high school. Investigators said the family of three had actually been living in the palm key mobile home park in Polk County.Investigators said that in 1995, Utrera took his two kids from the family's San Bernardino, California home and disappeared.
Then just last march, investigators said the mother of the children was on Facebook and found her daughter. When she began conversing online, her very own daughter, who hadn't seen her since she was 3 years old, told her mom she wanted nothing to do with her and deleted her Facebook page.
Read the full story here.
Tuesday, May 18, 2010
From the Associated Press:
The Supreme Court ruled Monday that a Texas mother illegally moved her son from Chile to the United States during a custody dispute with the boy's British father in the first test of the boundaries of an international child custody treaty.
The high court ruled that the Hague Convention on child abduction — aimed at preventing a parent from taking children to other countries without the other parent's permission — demands that the child goes back to the South American country.
However, Justice Anthony Kennedy, who wrote the 6-3 decision, said Jacquelyn Abbott can argue in lower courts in the United States for an exception to the international treaty that could allow her son to stay in the U.S.
The child, born in Hawaii, is a U.S. citizen.
Timothy Abbott accused his estranged wife of violating a court order in Chile by taking their 10-year-old son to Texas without the father's consent.
Timothy Abbott asked an American court to order the child returned to Chile, based on the treaty. The Chilean courts had given him visitation rights and the authority to consent before the other parent takes the child to another country, known as "ne exeat rights".
The mother argued that she has exclusive custody of the boy, and that U.S. courts are powerless under the treaty to order his return.
A federal judge acknowledged that taking the son to the United States violated the Chilean court order but sided with the mother, and the New Orleans-based 5th U.S. Circuit Court of Appeals agreed.
The Supreme Court reversed the appeals court decision.
"To interpret the Convention to permit an abducting parent to avoid a return remedy, even when the other parent holds a ne exeat right, would run counter to the Convention's purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes," Kennedy said.
Justices John Paul Stevens, Clarence Thomas and Stephen Breyer dissented from the court's opinion.
Stevens said the boy's father never had custody rights, only visitation rights. That means that the father cannot determine where the boy lives, he said.
"A parent without 'rights of custody,' therefore, does not have the power granted by (the treaty) to compel the child's return to his or her country of habitual residence," Stevens said.
Kennedy said that an exception to the Hague Convention deals with the safety of the parent.
"If, for example, Ms. Abbott could demonstrate that returning to Chile would put her own safety at risk, the court could consider whether this is sufficient to show that the child too would suffer 'psychological harm' or be placed in an intolerable situation," Kennedy said.
Lower courts can also take into account the child's wishes if he is mature enough to express them, Kennedy said.
Thursday, May 6, 2010
The Nebraska Court of Appeals has overturned a trial court decision to remove a child from the home based on his father's arrest for posession of crack cocaine.
Mere possession of an illegal drug does not mean the state can take custody of a child, according to a Nebraska Court of Appeals decision.
The father, whose full name is not used in the opinion, was picked up with a small amount of crack cocaine in March 2009.
That summer the Douglas County Juvenile Court determined that his infant son lacked proper parental care and supervision and took custody of the child.
The Appellate Court, in a split decision released Tuesday, overturned that ruling .
Juvenile Judge Donna Taylor based her decision that the child faced potential harm because the father might be incarcerated on a drug conviction.
However there was no evidence that the father was actually charged with any crime.
And if he were charged, he could get probation rather than a prison sentence, according to the Appellate Court decision.
Basing a decision on whether a parent might be incarcerated could apply to someone who got a number of speeding tickets or who wrote a bad check, said Stephen Kraft, a Douglas County public defender who represented the father.
In addition, the Appellate Court decision noted that there was no evidence that the father had a history of drug use.
The majority of the Appellate Court panel which heard the case also responded to a dissenting opinion that used information about drug addiction and abuse from government reports on websites.
"We strongly believe that we are limited to the evidence in the record," they wrote.
The Illinois Supreme Court recently amended its rules to allow immediate appeals of child custody judgments, overruling In re Marriage of Leopando, 96 Ill 2d 114 (Ill. 1983). The change aims to bring stability to children subject to custody disputes, so that they no longer have to wait while all other legal issues are being resolved.
Tuesday, March 30, 2010
A bill pending in the Tennessee legislature to mandate equal sharing of a child's time with each parent (with few exceptions) is sparking serious debate between women's advocacy groups and fathers' rights groups.
On one side is an alliance of women's groups, some judges and the Tennessee Bar Association, who say the change would make divorces tougher to settle and give abusive ex-husbands leverage they shouldn't have. Spending half of the time with each parent would also impose impractical schedules on kids, they say.
On the other side are fathers' rights groups who say kids get deprived of full relationships with both parents. Courts have too long ignored laws calling for custody decisions to be made in children's best interests, they say, and judges are overly influenced by notions about the mother-child bond.
The state's House Children and Family Affairs' Family Justice Subcommittee is scheduled to meet today to review divorce-related data it requested from the Tennessee Bar Association, as it works to determine whether to send the bill to a second committee that could send it to the full House.
Other states, including Missouri, start from a presumption of an even custodial split unless there has been abuse, said Janet Richards, a law professor at the University of Memphis who specializes in child custody matters. Tennessee would be alone in requiring clear, convincing evidence that one parent is unfit before dividing custody unequally, she said.
"This law sets up a standard of proof that's just short of the criminal standard of beyond a reasonable doubt," Richards said.
Committee hearings on the bill have drawn standing-room-only crowds full of mothers wearing saucer-size lapel stickers that read "Vote no on HB 2916" and fathers wearing everything from military fatigues to business suits.
Tuesday, February 23, 2010
A Canadian judge has ruled that two children of a father with white supremacist beliefes will remain permanent words of Child and Family Services.
The children were first apprehended by CFS after white supremacist markings were found drawn on the girl's body when she went to school in March 2008.
In the judge's decision, she says that drawing slogans on the daughter does not justify a permanent removal. But during the trial a social worker testified the daughter said black people need to die. The judge said the children have a right to be protected from the wilful promotion of hatred against specific groups.
Read the full story here.
Wednesday, January 13, 2010
In answering a question certified for interlocutory appeal, an Illinois Appellate Court determined that the Mental Health Confidentiality Act does not protect communications with Section 604(b) court-appointed psychiatrist in custody-visitation evaluation. The party did no receive mental health services under the Act and the relationship was not therapeutic. Here, the party also had no expectation of the confidentiality of the communications.
Tuesday, January 5, 2010
With the Brazilian custody dispute recently resolved (see here), the media has been focusing on another one that has been ratcheting up, with the child recently gone missing.
From the Associated Press:
MONTPELIER, Vt. – A Vermont woman locked in a child custody battle with a former partner who has since renounced homosexuality asked a judge Monday to hold her ex in contempt and help find her and their 7-year-old daughter.
A lawyer for Janet Jenkins filed an emergency motion for contempt for not surrendering the couple's daughter, Isabella Miller-Jenkins, on Friday.
The motion seeks court sanctions and the assistance of law enforcement in locating Lisa Miller, whose last known address was Forest, Va., but whose whereabouts are now unknown.
Read more here.
Hat Tip: Elizabeth MacDowell
Wednesday, December 30, 2009
A quadriplegic mother is fighting her ex-boyfriend in court to retain custody of their son. The ex-boyfriend claims she cannot be a competent mother because of her disability. It is a case that touches on important questions about the rights of the disabled.
Kaney O'Neill, 31, lost the use of her legs and much of the use of her arms 10 years ago when she fell from a balcony in Newport News, Va. Now, as she tries to raise her 5-month-old son, Aidan, she is locked in a court battle with her ex-boyfriend, David Trais, over custody rights.
That disability says little about ability to parent, said Tuleja, the disability advocate.
"Even if someone is helping a parent who has a disability, the parent can orchestrate so they remain central," she said, explaining that the child understands that the disabled parent is directing their upbringing. "It's the richest part of parenting…that psychological and emotional connection to the child."
While disability itself does not have much, if any, bearing on a parent's fitness, in O'Neill's case, other factors may be at work. O'Neill sustained her injuries when she was knocked off a balcony during Hurricane Floyd. The balcony was lower than regulations dictated, but she was found to be partially negligent, possibly owing to alcohol, according to the Virginia court ruling on her lawsuit against the housing company, meaning she could not collect damages from the housing company under Virginia law.
Experts say the incident itself does not bear on her ability to raise a child, or how a court will judge her.
"The fact that she was injured, perhaps doing something irresponsible, will weigh, but not greatly," said Caplan. "Courts can be relatively forgiving…if it's a single incident."
"She may have been in the past irresponsible in some way," said Allen. "Those kinds of things are way less extreme than things which parents are accused of every day which never lead to the loss of a child."
Read the full ABC News story here.
Monday, December 28, 2009
This article explains why the child welfare process was used in the 2008 San Angelo, Texas raid on the FLDS community which resulted in the removal of more than 400 children from their families. It argues that the criminal justice system, not the child welfare system, should be the preferred means by which state officials attempt to prevent the practice of polygamy. The criminal justice system contains many more time honored protections of civil liberties than the child welfare system. In addition, using the child welfare system contains one additional danger: the contamination and expansion of child welfare law to permit coercive intervention, authorizing state officials to remove children from families based on notions of morality. The article suggests that the ultimate danger of the San Angelo raid is that child welfare interventions will become too much about the (mis)behavior of parents, with a particular emphasis on conduct that is criminal or "immoral," and too little about what should always remain the central inquiry: whether children are in danger.
Friday, December 18, 2009
A New Jersey man embroiled in a long custody battle over his 9-year-old son living in Brazil has won custody of the child.
A Brazilian federal court, in a closed session, ruled Wednesday that Sean Goldman should be returned to his father, David, at a U.S. Embassy on Friday.
Goldman has been working tirelessly for the past five years to get Sean returned to the United States. Bruna Bianchi, Goldman's ex-wife, took the child to her native Brazil in 2004 on what was supposed to be a two-week vacation.
She later remarried and died during child birth last year. Her Brazilian husband argued that he should have custody of Sean.
Over the summer, the boy's Brazilian family said Sean met with a psychologist and stated he wanted to stay there. Sean told the psychologist that if he was sent back to live with his father in New Jersey, he will "break down totally," according to a transcript of the interview with the child.
Over the summer, a lower court in Brazil had ruled that Sean be returned to the U.S. However, that decision was later put on hold by a Supreme Court justice based on a petition that argued removing Sean from his current family environment would hurt him.
However, during Wednesday's ruling the court agreed with Goldman that the boy belongs in New Jersey under an international treaty governing cross-border child abductions.
Read the full story here.
But see this CNN report on how the father's celebration was short-lived. Just hours after the appellate decree was entered, Brazil's high court issued an order prohibiting the father from removing his child back to the U.S. More on this case to come . . .
Monday, December 7, 2009
A mother's hiding of her son for nearly two years in his grandmother's home, often in a crawl space behind a wall, amounted to neglect, a judge ruled Friday.
Franklin County Circuit Judge Melissa Drew's ruling was based partly on her agreement with a counselor's belief that the seclusion left the boy, now 7, with post-traumatic stress disorder.
Authorities have said the child's mother, Shannon Wilfong, began hiding him in 2007 during a custody dispute with his father, Michael Chekevdia. Wilfong and her mother, Diane Dobbs, kept the windows of Dobbs' house near Royalton blocked off with shades or other items and deprived the boy of contact with peers, medical care and education, Drew said.
Testimony showed the boy was allowed outside only at night or in a fenced-in area not visible to passers-by.
The crawl space was roughly 5 feet by 12 feet and about the height of a washing machine, hidden behind what Drew said was "nothing more than a hole in the wall" concealed by a bookcase.
Wilfong's attorney, Susan Burger, argued there was no neglect during the boy's time in seclusion. He was home-schooled, had no issues requiring a trip to the doctor, and was allowed to play outside, she said.
"This was not a case where the child was locked up, put in a crawl space, behind walls," Burger said.
The child at issue is currently in the temporary custody of a relative, while his parents battle for custody. Mom can't expect to fare too well when the court issues its ruling, expected in early January.
Read the full story here.
Friday, November 27, 2009
The Wisconsin Law Journal reports on a movement to bring the Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet, used in many criminal cases, into family court to provide evidence pertaining to allegations of alcohol abuse.
Read the full story here.
Wednesday, November 18, 2009
The NY Times reports on the impact more women in the work force is having on child custody rulings.
There are now 2.2 million divorced women in the United States who do not have primary physical custody of their children, and an estimated 50 percent of fathers who seek such custody in a disputed divorce are granted it.
“Men are now able to argue that they spend more time with the kids than their working wives do,” says the veteran New York City divorce attorney Raoul Felder. “This is one of the dark sides of women’s accomplishments in the workplace — they’re getting a raw deal in custody cases, while men are being viewed more favorably.”
Or is it a raw deal? Is it not, in effect, the same presumption — the parent who works harder, parents less — that men have faced for years? You could make that argument, Abrahms says. You could also argue that working women are held to a higher parenting standard than working men, paying a price for not conforming to the cultural expectation that mothers be more hands-on than fathers.
Read the full article here.