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.
Tuesday, November 10, 2009
An Ohio Court of Appeals has affirmed a district court judgment banning a mother from smoking in the presence of her ten year-old daughter.
In the Warren County case, even with no evidence that Victoria suffers specific reactions or health issues from exposure to smoke, the court ruled that a smoking ban was in the child's best interest.
To reach that conclusion, the court did something unusual. It "took judicial notice" - without anyone presenting proof in court - of an "avalanche of authoritative scientific studies" that say second-hand smoking poses risks to children.
Tuesday, November 3, 2009
Campbell: "Exploring Judicial Appreciations of Parental Addiction in Child Custody and Access Decisions: Quebec as a Case Study"
Angela Campbell (McGill University) has posted Exploring Judicial Appreciations of Parental Addiction in Child Custody and Access Decisions: Quebec as a Case Study, Windsor Review of Legal and Social Issues (forthcoming), on SSRN. Here is the abstract:
In all decisions that affect children, courts in Quebec, as in many other jurisdictions, are instructed to give preeminent weight to the “best interests of the child.” Courts have applied and discussed this standard most frequently in cases where child custody and access matters must be settled as corollary issues to a couple’s divorce or separation. While these cases have generated extensive discussion about how parents’ conduct and characteristics should be factored into the best interests inquiry, little attention has been given to questions about how parental substance dependence should affect custody and access outcomes. The lack of discussion on this issue is conspicuous, given the relative frequency with which custody issues involving addicted parents arise before Quebec courts.
This paper seeks to make a contribution to filling this gap in the family law scholarship within Quebec civil law. It examines how courts in Quebec factor a parent’s alcohol or drug misuse into the best interests analysis when called upon to settle custody or access matters, and questions whether greater openness should be shown to custody and access claims advanced by addicted parents. To this end, the paper begins by contrasting the way that the medical community understands and evaluates addiction with the approach to this issue undertaken by family law courts. Juridical - specifically, judicial - perceptions of addiction are then explored through an analysis of Quebec family law cases that have considered this issue in the context of custody and access claims. The judicial analysis and discourse emerging in these cases reveals an appreciation of substance dependency differs considerably from that presented in the medical literature. Last, this paper questions whether legal outcomes might benefit by relying more fully on medical interpretations of addiction. It considers whether it is possible to recognize addiction’s physiological aspects in deciding custody and access claims, in particular, by acknowledging the necessity of rehabilitative treatment for this condition. Accordingly, it explores the relevance, and practical and moral implications, of treatment orders for parents coping with addiction who seek custody or contact with their children. This analysis ultimately concludes that such orders are feasible, yet would only be appropriate once a court has sufficient awareness of the accessibility of appropriate treatment resources in each case and for the particular parties concerns.
Friday, October 30, 2009
A recent case out of the U.K. has brought renewed attention to the issue of whether morbid obesity in children is a sign of abuse and neglect, such that the parents of those children should lose custody.
The latest case to make headlines concerns a Scottish couple who lost custody of two of their six children on the basis of what was, their lawyer claims, a failure to reduce the kids' weight following warnings from Scottish social services. The couple lost their Oct. 14 appeal in a case that is far from clear-cut — representatives of Dundee City say they would never remove children "just because of a weight issue." But obesity appears to be the primary reason South Carolina mom Jerri Gray lost custody of her 14-year-old, 555-lb. son in May. She was arrested after missing a court date to examine whether she should retain custody after doctors had expressed concern about her son's weight to social services. The boy is currently living with his aunt, and his mother is facing criminal child-neglect charges.
Several other cases in recent years — in California, New Mexico, Texas and New York, as well as Canada — have garnered attention because a child's obesity resulted in loss of custody. "It's happening more than the public is aware of, but because these cases are usually kept quiet [as a result of child-privacy laws], we have no record," says Dr. Matt Capehorn, who sits on the board of the U.K.'s National Obesity Forum. The issue of whether parents should lose custody of their obese children took center stage two years ago with a British television documentary about Connor McCreaddie, an 8-year-old who weighed more than 200 lbs. and was at risk of being taken from his mother by authorities. She eventually weaned him off processed foods and retained custody.
Read the Time story here.
Wednesday, October 21, 2009
In Kulstad v. Maniaci, the Montana Supreme Court recognized a parental interest, and thus upheld visitation, in a non-biological former lesbian partner (Kulstad) over the objection of the children's adoptive mother (Maniaci). The court ruled that Kulstad established a long-term de facto status as parent to the six and ten year-old children adopted by Maniaci when Kulstad and Maniaci were involved in a live-in relationship. The relationship created between Kulstad and the children was held to outweigh Maniaci's Troxel-recognized fundamental right to make decisions for her children.
Monday, October 12, 2009
Courts and legislatures have rejected the presumption that mothers should win custody of their young children in the case of divorce. Such a presumption, the tender years’ presumption, has been determined to be against public policy that strives to treat the genders equally, as well as in conflict the equal protection clause embedded in the fourteenth amendment. In practice, however, courts still often treat women more favorably than men in custody disputes. In the court of public opinion as well, mothers are still often viewed as victims of divorce and are therefore treated with more sympathy and favor—as Jon and Kate (of plus eight fame) seem to continually illustrate.
Wednesday, July 1, 2009
University of Dayton Family Law Prof Pamela Laufer-Ukeles contends the nanny of Michael Jackson's children ought to have a legal claim for visitation or custodial rights to the pop star's children, but Grace Rwaramba's status as a paid caregiver will likely squash any chance of that. Her article, "Money, Caregiving and Kinship: Should Paid Caretakers Be Allowed to Obtain De Facto Parental Status?" published in the spring edition of the Missouri Law Review and available at SSRN, explains that state laws and the American Law Institute principles almost always exclude caretakers who receive compensation — foster parents, paid childcare providers and surrogate mothers — from the categories of psychological parents or de facto parents to whom courts may grant such rights. Her article contends that paid childcare providers should not automatically be disqualified from obtaining custodial rights in certain cases.
"Had Rwaramba been unpaid, or Jackson's live-in girlfriend or domestic partner of 10 years, she would have a good case for custody. But, add in some financial compensation and she becomes irrelevant," Laufer-Ukeles said. "This is despite everyone's acknowledgement that Rwaramba loves the children, has raised them their whole lives and is the only mother figure they know. The children have no relationship with their legal mother and their grandmother is almost 80 years old and not in the prime of her life to care for young children." Yet, as a paid nanny, the value of her bond with the children and her status as a functional caregiver, become legally irrelevant. This case is an excellent example of how society's disdain for paid caregivers hurts children." Her article cites some attempts by paid or unpaid caregivers, but all of those failed. She argues that excluding those who receive compensation for the care they give denigrates the value of care given by paid caregivers, misjudges the strength of the psychological bond between paid caregivers and children and discriminates against the poor and racial minorities. Although Laufer-Ukeles believes Rwaramba should receive some consideration as a de facto parent, her prediction is that Rwaramba and Michael Jackson's mother, Katherine, who now has temporary custody, would likely lose out to Debbie Rowe, mother to Michael Jackson's two oldest children, if Rowe chooses to pursue custody.
Monday, April 27, 2009
The Iowa Supreme Court recently held that a parent’s statutory right to access to her child’s mental health records could be limited by the child’s best interest. In that case, Mother had pled guilty to assaulting one of the children and, after custody was transferred to Father and Mother was denied further contact until 2012, Mother sought the mental health records of the children from the social worker who had been their therapist prior to the custody modification. The court held that Iowa statues prohibited licensed social workers from disclosing information acquired from a client without his or her consent. In interpreting that statute, the court found that “the legislature did not exclude minors from the physician-patient privileges established under [the act].” While the court acknowledged that parents normally can consent to the release of their child's mental health records,” and that Iowa statutes appear to provide parents a right to these records, the court found that neither the statutes nor the common law “does not give either parent an absolute right to those records. . . . the best interests of the child always prevail. … Similarly, the rights given to parents under [the Iowa code] are tempered by the overriding principle that when dealing with a matter concerning a child whose custody was determined by a court decree in a dissolution-of-marriage action, the first and governing consideration a court must apply is the best interest of the child.”
The court agreed that the release of the records was not in the children’s best interests.
Harder v. Anderson, Arnold, Dickey, Jensen, Gullickson and Sanger, L.L.P., Iowa , No. 08-0475, 4/17/09). (last visited April 27, 2009) bgf
In the continuing battle over the role of psychological experts in custody actions, courts have been called upon to examine the balance between the broad scope of discovery in these actions and the right of privacy in mental health records. In a case in which a Father sought Mother's mental health records in order to support his claim for modification of custody, the Pennsylvania Superior Court held that, even though a court has statutory authority to order a parent to submit to a mental health evaluation does not mean that it may require the parent to disclose existing privileged mental health records. While the court did not find these records to be covered by physician/patient privilege because the records were not confined to communications for the purposes of treatment, the court did find that the broader privacy provisions of the state Mental Health Procedures Act did cover the records. Moreover, the court concluded that “less intrusive means exist for the trial court to make a determination as to Mother's suitability as a custodial parent, rather than releasing Mother's privileged mental-health records … and vitiating her statutory right of confidentiality.”
Gates v. Gates, 2009 Pa Super 40 (March 10, 2009) (last visited April 27, 2009 bgf)
Thursday, March 26, 2009
As NY 1, among others, reported:
Married lesbian couples in the city can now be listed as parents on their children’s birth certificates.
The city Board of Health voted in favor of the change yesterday.
Previously, women would have to go through an adoption process to be listed as the official parents.
state made a similar move in December, after a court ruling and an
order from Governor David Paterson that state agencies respect
out-of-state gay marriages. But the city DOH operates independently of
the state, and made its own decision.
Married male couples still will need to adopt their children in order to be officially listed as their parents.
New York does not permit same-sex couples to marry, so the reference is to couples married in other states or Canada.
Friday, January 30, 2009
Drugs, Pregnancy and Parenting:
What the Experts in Medicine, Social Work and the Law Have to Say
Wednesday, February 11, 2009, New York City
People working in the field of criminal law, family law, and child welfare often have cases that involve issues of drug use. These lawyers, social workers, counselors, advocates and investigators, however, are often trying to do their jobs without the benefit of evidence-based research or access to experts knowledgeable about drugs, drug treatment and the relationship between drug use, pregnancy and parenting. Drugs, Pregnancy and Parenting: What the Experts in Medicine, Social Work and the Law Have to Say will provide a unique opportunity to meet and learn from the experts. Register at: http://napwtraining.eventbrite.com/
This dynamic program features nationally and internationally renowned medical, social work, and legal experts as well as people with direct experience who will help distinguish myth from fact, evidence-based information from media hype and provide meaningful tools for improved advocacy, representation, care and treatment. Panelists will discuss current research on marijuana, cocaine, methamphetamine, as well as other areas of research regarding drug use, prenatal exposure to drugs, recovery, treatment and parenting. This research is critical for effective representation and care.
Discussion points will include:
• What does a positive drug test predict about future neglect and abuse?
• What tools can I use to distinguish between myth and fact regarding the effect of drugs and other claims made about drug use and drug users? Is there such a thing as a "crack baby"?
• Is there a difference between drug use and abuse? Can a person parent and be a drug user?
• How should social workers, lawyers, counselors, advocates and judges use and interpret drug tests?
• How do we determine what, if any, treatment should be required and how do we measure its success?
• What is the relationship between drug use, abstinence, relapse and recovery?
• What does evidence-based research tell us about the effectiveness of different kinds of drug treatment?
• How can we implement safety plans that keep families together?
• How can I best advocate for/ help my client when drug use is an issue?
No matter what kind of work you do or practice you have, this course will challenge your assumptions, identify valuable resources and generate hope about families where drug use is an issue.
When: Wednesday, February 11, 2009, 9am to 6pm.
Where: NYU School of Law, 40 Washington Square South, Manhattan
Registration: The fee is $20 in advance or $25 at the door. Breakfast, lunch and beverages will be provided. Financial aid is available. Please register at: http://napwtraining.eventbrite.com/
This program was developed in consultation with representatives from all aspects of New York City 's child welfare system. It is co-sponsored by National Advocates for Pregnant Women, New York University School of Law, and the New York University Silver School of Social Work.
Continuing Legal Education, (7 NY-CLE Credits: 5 Areas of Professional Practice, 2 Skills), Social Work (8 Credits) and CASAC (NYS OASAS 7.5 clock hours approved for CASAC, CPP and/or CPS initial credentialing and/or renewal credits) for full or partial day program available for New York. This program is appropriate for practitioners at all levels. Students are welcome.
For more information, contact Allison Guttu, NAPW Equal Justice Works Staff Attorney, at 212-255-9252 or email@example.com.
RR (thanks to Maria Arias)
Saturday, October 4, 2008
According to the Washington Blade, attorneys for both sides call it the first same-sex parental rights trial in Montana:
A district judge on Monday ruled in favor of a Turah woman who sought parental rights to children adopted by her former same-sex partner. Michelle Kulstad sought joint custody of two children - an 8-year-old boy and a 5-year-old girl - adopted by Barbara Maniaci. "To discriminate further against Ms. Kulstad because of her sexual preference in this day and age is no different than telling a person to go to the back of the bus because of her skin color," Judge Ed McLean wrote. . . . McLean said Kulstad was a legal parent, even though Maniaci adopted the two children - the boy in 2004 and the girl in 2006. The judge also ruled that Kulstad must receive joint decision-making authority in the children's lives, including their "education, activities, health care and spiritual upbringing."
Link to full story in Washington Blade here.
(RR last visited October 4, 2008)
Saturday, September 27, 2008
The Center for Children, Law & Policy announces
Child Centered Jurisprudence and Feminist Jurisprudence: Exploring The Connections And The Tensions
Friday, November 14, 2008 @ the University of Houston Law Center
§ Prof. Annette Ruth Appell, Associate Dean of Clinical Affairs and Professor of Law, Washington University School of Law
§ Prof. Martha Albertson Fineman, Robert W. Woodruff Professor of Law, Emory University School of Law
§ Prof. Martin Guggenheim, Fiorello LaGuardia Professor of Clinical Law, New York University School of Law
§ Prof. Angela P. Harris, Professor of Law; Executive Committee Member, Center for Social Justice, Boalt Hall, UC Berkeley
§ Prof. Barbara Bennett Woodhouse, David H. Levin Chair in Family Law and Director of the Center on Children and Families at Levin College of Law, University of Florida
§ With Commentary by Prof. Ellen Marrus, Co-Director, Center for Children, Law & Policy, George Butler Research Professor of Law, University of Houston Law Center, Prof. Laura Oren, Co-Director, Center for Children, Law & Policy, Law Foundation Professor of Law, University of Houston Law Center
§ Date: Friday, November 14th, 2008
§ Location: University of Houston Law Center
§ Event Time: 8:30 a.m. to 12:30 p.m.
§ Registration Cost: Pre-Registration $25, after November 1st increased to $50.
§ CLE: 2.75 Hours
More details at website here.
(RR September 27, 2008).
Thursday, May 8, 2008
"For children of divorce, what happens after their parents split up may be just as important to their long-term well-being as the divorce itself.
A new study found that children who lived in unstable family situations after their parents divorced fared much worse as adults on a variety of measures compared to children who had stable post-divorce family situations.
“For many children with divorced parents, particularly young ones, the divorce does not mark the end of family structure changes – it marks the beginning,” said Yongmin Sun, co-author of the study and associate professor of sociology at Ohio State University’s Mansfield campus.
“A stable family situation after divorce does not erase the negative effects of a divorce, but children in this situation fare much better than do those who experience chronic instability”
The study appears in a recent issue of the Journal of Marriage and Family. Sun conducted the study with Yuanzhang Li of the Allied Technology Group." by Newswise, Ohio State University
Link to Article (last visited 5-8-08 NVS)
Monday, February 11, 2008
The Alabama Supreme Court has reversed two of its previous decisions regarding the standard for change of child custody, emphasizing that the standard under Alabama law requires a party seeking a change in custody to show that the change "will materially promote [the] child's welfare." Previous appellate courts had additionally required that the movant prove an "overwhelming necessity for a modification of custody." The court noted that its original standard is "typically a heavy one, recognizing the importance of stability" but found the "overwhelming-necessity requirement places a nearly insurmountable burden on the party seeking a modification of custody, and in doing so, elevates stability above the best interests of the child."
Ex parte Cleghorn, 2008 Ala. LEXIS 26, Alabama Supreme Court (February 8, 2008) bgf
Case Law Development: Child's Opinion Should Be Considered in Custody Battle over Circumcision of Adolescent
The Oregon Supreme Court held that a custodial father’s decision to have his 12-year-old son circumcised so the child can convert to Judaism may provide a basis for a change in circumstances allowing a custody modification if the boy opposes the circumcision. The child had been raised as Russian Orthodox, his mother’s religion. His father began studying Judaism at about the time of the divorce, at which time he also was awarded custody of then 4-year-old boy. When father informed mother that the child (then age 9) would be converting and would need to be circumcised, mother petitioned for a change in custody or for an order preventing the circumcision.
The supreme court noted that “the decision to circumcise a male child is one that generally falls within a custodial parent's authority, unfettered by a noncustodial parent's concerns or beliefs--medical, religious or otherwise." However, the court concluded that "at age 12, [the child's] attitude regarding circumcision, though not conclusive of the custody issue presented here, is a fact necessary to the determination of whether mother has asserted a colorable claim of change of circumstances sufficient to warrant a hearing concerning whether to change custody….because forcing [the child] at age 12 to undergo the circumcision against his will could seriously affect the relationship between [him] and father, and could have a pronounced effect on father's capability to properly care for [him]." Thus, the court remanded to the trial court for factual findings regarding the child’s attitude toward the circumcision and how that might affect the parent-child relationship.
Friday, January 11, 2008
The Maine Supreme Court disagreed over whether a default judgment was appropriate for a father's failure to appear at a Magistrate's status conference. The majority affirmed the trial court's entry of default judgment awarding mother custody based on father's failure to appear at the status conference. The court noted that father's excuse that he was confused about the hearing was not credible. The dissent used the case as an opportunity to criticize the practice of Magistrate's scheduling of repeated status conferences, noting that the scheduling order in this case provided little notice regarding what issues would be determined at the hearing. The dissent commented:
This pre-trial conference scheduling order was not an aberration. It reflected a widespread practice of Family Law Magistrates scheduling repetitive pre-trial status conferences, requiring parties to appear at court, but without any specific objective to be achieved in the court appearance. In a November 2006 report, our Family Division Task Force expressed concern about "too many case management conferences at which little is accomplished." Family Division Task Force Report at 3 (2006). The Task Force noted that "some current scheduling practices indiscriminately promote numerous conferences in pre-and post-judgment family matters." The Task Force report also stated a goal "to reduce the number of magistrate events that do not address substantive issues.
The majority had agreed that there was cause for concern regarding magistrate practices, but concluded that:
While the scheduling of repetitive case management conferences could lead to confusion or frustration on the part of litigants, this matter is hardly a case study in injustice....While critical review of scheduling practices is generally a worthwhile undertaking, the instant matter is not a productive forum for this discussion.
Conrad v. Swan, 2008 ME 2 (January 8, 2008)
Opinion online (last visited January 10, 2008 bgf)
Tuesday, January 8, 2008
Case Law Development: Temporary Custody Change During Parent's Deployment Becomes Permanent Custody Change
Mother and Father had a joint custody arrangement regarding their child from ages 2 to 10, with child living primarily with Mother in New York with her husband and their child and having substantial visitation with Father in Virginia. When Mother was deployed to Iraq in 2004, Mother sought to have their nine-year-old child live with her husband and son. Father moved for a change of custody. While that action was stayed pursuant to the Service Members Civil Relief Act, the court awarded Father temporary custody. Diffin v. Towne, 787 N.Y.S.2d 677 (N.Y. Fam. Ct. 2004).
When Mother returned from Iraq, the court concluded after trial that primary physical custody should be transferred to Father. While noting that Mother's deployment was not, in itself, a change in circumstances, the fact that the child had adjusted well to living with Father, and that Mother had since divorced, were all factors that made a change in custody in the best interests of the child. Finding no abuse of discretion in this ruling, the New York Supreme Court, Appellate Division affirmed.
Matter of Diffin v. Towne, 2008 NY Slip Op 21 (January 3, 2008)
Opinion online (last visited January 8, 2008 bgf)
For more information on the Service Members Civil Relief Act, see the ABA Family Law Section guide by Mark E. Sullivan, A Judge's Guide to the Service Members Civil Relief Act
Monday, January 7, 2008
The confusion between the status of attorney for the child and guardian ad litem was the target of appeal in Marriage of Anderson, an Iowa Court of Appeals decision. In this case, Mother requested appointment of a guardian ad litem in a custody case. However, the trial court's response was to appoint an attorney under the Iowa statute allowing appointment of an attorney for the child. The court then rejected the attorney's report and request to testify, finding that the attorney had not been appointed as a guardian ad litem.
Read In Re Marriage of Anderson (Iowa Court of Appeals, Dec. 28, 2007) (Last visited January 7, 2008 bgf)
The case is a fine example of the continuing debate regarding the role of attorney representatives for children. The Standards of Practice for Lawyers Representing Children in Custody Cases require that a judge appointing a lawyer for a child specify whether the attorney is a “Child’s Attorney” or a “Best Interests Attorney.” The ABA’s Standards of Practice for Attorneys Who Represent Children in Abuse and Neglect Cases, while recognizing the hybrid attorney/guardian ad litem role for lawyers under certain circumstances, expresses a clear preference for the attorney for the child model. Based in part on these standards, the National Conference of Commissioners on Uniform State Laws is preparing a Uniform Representation of Children in Abuse and Neglect and Custody Proceedings Act. Professor Atwood's fine article exploring the policy choices in the uniform act can be accessed from her SSRN page: Atwood, Barbara Ann, "The New Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act: Bridging the Divide Between Pragmatism and Idealism" . Family Law Quarterly, 2007 Available at SSRN: http://ssrn.com/abstract=938211
For tables reflecting a 51-state analysis of the standards of representation of children in adoption and guardianship, see 41 Family Law Quarterly (Summer 2007) article "Hearing Children's Voices and Interests in Adoption and Guardianship Proceedings" of the American Bar Association Child Custody and Adoption Pro Bono Project.
- Appendix A—Appointment Provisions in Adoption Cases
- Appendix B—Appointment Provisions for Guardianship Cases
(last visited Jan 7, 2008 bgf)