Family Law Prof Blog

Parents Denied Visitation Rights in Japan to Keep Fighting Government in Court

From New York Times 

Lawyers for parents separated from their children in Japan said on Monday they would appeal a court decision that the government was not responsible for enforcing visitation rights.

Fourteen parents had sued the government claiming damages of 9 million yen ($80,000), arguing there was no legal framework in Japan to ensure they get proper access to their children. The Tokyo District Court dismissed the claim last week.

Parental alienation is a chronic problem in Japan, with children often losing contact with the non-custodial parent after an acrimonious split. Unlike most developed countries, Japan has no joint-custody system after divorce, and court-ordered visitation rights  are often ignored with impunity. The police are reluctant to get involved.

Read more here 

Proposed Bill in Japan to Ban Parents from Physically Punishing Children

From The Japan Times:

A bill banning parents and guardians from physically punishing children is set to pass the Diet during the current session, after the ruling and opposition parties agreed on some modifications, lawmakers have said.

The bill is more or less the same as the original one submitted by the government. But it has been modified and will also urge local governments and child welfare centers to offer guidance to parents who have abused children, based on medical and psychological expertise, to prevent the abuse from happening again.

Read more here.

Proposed Law to Allow Contact between Parents and Children After Termination of Parental Rights

From New York Law Journal:

State law in New York prevents family court judges from allowing any kind of contact between a parent and their child after parental rights have been terminated, but lawmakers are renewing a push to change that in the final weeks of this year’s legislative session.

Sponsors of a bill that would allow family court judges to grant contact between children and their parents after termination are pushing their colleagues to support the legislation before they’re scheduled to leave Albany for the year in June.

Read more here.

Significant DCS Failures Made Termination of Parental Rights Erroneous

From The Indiana Lawyer:

A mother won her appeal to reverse an erroneous order terminating her parental rights when the Indiana Court of Appeals found the Department of Child Services committed ‘significant procedural irregularities’ in her case.

Mother L.H. remained in and out of a repeatedly physically abusive relationship with the father of her children, D.H., K.H., and E.H., for nearly 15 years. Domestic violence was often committed against L.H. by Father, and often in the presence of the children.

In 2016, the parents admitted D.H., K.H. and E.H. were children in need of services, thus leading to their removal from the home. Both L.H. and Father were ordered to engage in services and over the next several years, the two separated, participated in services and found stable housing and employment.

Read more here.

Countries That Guarantee Paid Paternity Leave

 

From NPR:

What do China, India, South Sudan and the United States have in common?

They are among the 92 countries where there is no national policy that allow dads to take paid time off work to care for their newborns.

According to a data analysis released on Thursday by UNICEF, the U.N. children's agency, almost two-thirds of the world's children under age 1 — nearly 90 million — live in countries where dads are not entitled by law to take paid paternity leave. In these countries, this policy is typically decided by employers.

The data, mapped in an interactive chart produced by World Policy Analysis Center at UCLA's Fielding School of Public Health, allows users to scroll over a country to see its policy on paid paternity leave: no paid leave, less than three weeks (for most countries, that means one week or less), three to 13 weeks or 14 weeks or more. Users can also compare this data with paid maternity leave around the world. According to the center, 185 countries guarantee paid leave for mothers, with at least 14 weeks of leave in 106 countries.

Read more here.

 

 

COA Discourages Interlocutory Appeals of CHINS Status Changes

From The Indiana Lawyer:

The Indiana Court of Appeals affirmed on interlocutory appeal a change in the permanency plan for two children from reunification to termination of parental rights while also cautioning that such trial court rulings are “generally not suitable for interlocutory review.”

The appeal pertains to a children in need of services case involving a “nontraditional couple” who have a long history with the Department of Child Services. In 2006, DCS brought sexual misconduct claims against C.Q., now 79, involving R.O., now 27, when R.O. was 15 years old. Since then, however, R.O. and C.Q. have continued their relationship and have three children together: A.Q., K.Q., and R.Q.

Claims of neglect of A.Q. and K.Q. were filed after a domestic-violence incident between the mother and father in 2013. Two months later, A.Q. and K.Q. both presented with injuries, and DCS again substantiated claims of neglect against mother and father. The two children were later removed from the home and adjudicated as CHINS. But after engaging in services with DCS, the parents regained care of the children.

Read more here.

Mothers of Babies Born Addicted to Drugs Could Lose Parental Rights

From Newsweek:

A change in Kentucky law could mean that children born addicted to drugs would be labeled as neglected and abused at birth. In addition, mothers could have their parental rights terminated and lose their children if they are not enrolled in a drug-treatment program. State lawmakers say the change is meant to address the increasing number of drug-addicted babies born in the Bluegrass state.

The new bill aims to “amend the definition of an 'abused or neglected child' to specify that it relates to a child diagnosed with neonatal abstinence syndrome.” This refers to children born addicted to drugs as a result of having mothers who consistently used drugs during their pregnancy. Under the new bill, the state would need to begin processing the termination of parental rights to these children within 60 days of birth, the Associated Press reported.

Read more here.

Sperm Donor Denied Parental Rights

From USA Today:

BINGHAMTON, N.Y. — A married same-sex Chemung County couple can rebuff an effort by a sperm donor to exert parental rights on the daughter born as a result of the arrangement.

A midlevel New York appeals court ruled in favor of the couple, suspending a decision by the Chemung County Family Court that originally ordered a paternity test to determine the donor's parental rights.

In a 19-page decision released Thursday, the New York Appellate Division, Third Judicial Department, said the lesbian couple has the same parental rights as a traditional couple in a sperm donor arrangement. The mother and wife are the presumed natural parents, the court ruled, and the donor has no specific legal right to be a part of the rearing of the child no matter how the child was conceived.

Read more here.

Court of Appeals finds parents unfit, affirms termination of parental rights

From The Indiana Lawyer:

The Indiana Court of Appeals affirmed Monday a decision to terminate parental rights after both parents failed to show evidence that allowing them to maintain their rights would be in the best interest of the children.

T.B. was born to the mother and father in 2009, then the mother gave birth to a second child, R.K., who had a different father who is now deceased, in 2010. After being convicted of multiple drug charges, the mother was incarcerated in 2013 and has not seen the children since. T.B. and R.K. were placed in the father’s care shortly thereafter.

After father reached out to the Department of Child Services for help in 2014, the department filed a children in need of services petition on behalf of T.B. and R.K. — as well as the father’s two older children — and the court found that the children could remain in the father’s care as long as a safety plan was developed.

A well-child check in May 2014 found R.K. with second-degree burns on his feet, which prompted his and T.B.’s removal from the home and placement in foster care. The children were subsequently adjudicated CHINS, and the father was ordered to participate in visitation, Fatherhood Engagement and individual therapy.

However, father was often vocal about his distrust of DCS and refused to participate in the department’s services. The mother was limited in her ability to participate in DCS services due to her incarceration.

In February 2016, the Tippecanoe Superior Court entered an order terminating the mother’ s parental rights to T.B. and R.K. and the father’s parental rights to T.B., prompting both parents to appeal.

Read more here.

Child Maltreatment History Should Be a Bar to Being a Foster Parent

 From Youth Today:

It’s just common sense: An adult's past criminal history or history of child maltreatment is not to be balanced against the safety of a child. This is not to say a person with any criminal record should be barred as a foster parent, but certainly an applicant with a substantiated history of child maltreatment, no matter how far in the distant past, should be permanently barred.

Foster care agencies have a legitimate reason to inquire about a prospective foster parent’s criminal and child maltreatment history, be it an inquiry, arrest, charge or conviction. Why? Quite simply, the agency seeks to maximize child safety.

In addition, a good background check helps identify a superior applicant while simultaneously reducing the agency’s potential liability. In many states, the agency responsible for approving foster parent licenses is permitted to waive or not even take into account an applicant's child maltreatment or criminal history if the offense happened many years ago or if the agency's internal risk analysis indicates no cause for concern.

Read more here.

Senate Passes Bill Allowing Termination of Rapist's Parental Rights

From Michigan Radio:

A new law would protect rape victims from a custody battle with their rapists when a child is conceived.

The Michigan Senate unanimously passed legislation this week that would allow courts to terminate a rapist's parental rights to a child conceived by the rape of the mother.

Senate Bill 629 was introduced by Republican Sen. Rick Jones earlier this month.

"I want to ensure that victims of rape are not faced with a custody battle from their rapist," Jones said.

Current state law allows a court to terminate parental rights once a rapist is criminally convicted.

SB 629 would allow courts to terminate all rights upon the victim petitioning before a family court judge, requiring a lower burden of proof.

Read more here.

Rape Survivor Child Custody Act

From LifeNews.com:

A new federal law, the Rape Survivor Child Custody Act, will protect women who are victims of rape and decide to keep their baby. Shauna Prewitt, an attorney who co-founded Hope After Rape Conception, first spearheaded the idea along with rape survivor Analyn Megison.

Rebecca Kiessling, who has been working to protect mothers across the country who decide against having an abortion after they were victimized, has helped pushed the legislation on a state level. Kiessling tells LifeNews that the new law “provides an incentive to states to pass legislation providing for a means to terminate the parental rights of rapists, using the “clear and convincing evidence” standard from the U.S Supreme Court case of Santosky v Kramer.”

Read more here.

North Dakota's Attempts at Foster Care Reform

A description of a North Dakota "family preservation initiative" that seeks to reform the foster care system:

North Dakota is at the forefront of a new trend in the way foster care is administered: Don't put children in foster care.

The idea is to help families help themselves so they can keep their children, rather than having a judge order them into the foster care system.

When children stay with their families, they typically do better in school, and the odds of them aging out of the foster care system and struggling with adult life free of the assistance they received before are diminished, said Gary Wolsky, president and CEO of The Village Family Service Center in Fargo.

"The problems get costlier to fix if left untended," Wolsky said. "Prevention is always cheaper."

The effort could save taxpayers a bundle because it's more expensive to put a child through foster care than it is to help the whole family, Wolsky said.

The family preservation initiative has also grabbed the attention of some North Dakota lawmakers, who say they hope to see the idea take off in the state.

"In the long run, I think it will cost us less money," said Sen. Judy Lee, R-West Fargo.

North Dakota lawmakers have had an eye on early family intervention since 2006, when a pilot family empowerment program the Family Group Decision Making Program was started.

This puts an emphasis on child safety, permanency, and placing foster children in adoption as soon as necessary, which may include terminating parental rights of biological parents. There are still times when, for a variety of reasons and despite additional help, parents are not able to adequately care for a child.

It costs an estimated $3,000 to $4,000 for one family to participate in family preservation programs. This method tends to cost less over the long term because foster children usually spend an average of a year in foster care, said Sandi Zaleski, who works for The Village and is the director for these programs.

On the flip side, a foster family with a 10-year-old could get up to $752 a month, which adds up to $9,024 a year, not including other expenses.

Read more here.

AC

Recordings Evidence in IL Fitness Hearing

An Illinois appellate court recently reversed and remanded a case on the basis that the trial court erred in admitting recordings of vulgar telephone conversations between parents in a hearing determining a mother’s fitness.  The appellate court noted that the recording lacked proper foundation and were not authenticated.  The dissent, however, underscored that no objection as to foundation was made at the trial level.  The case is In  re C.H., L.H., and W.H., Minors, Nos. 3-08-0529, 3-08-0534 & 3-08-0535 (Ill.Ct. App. March 18, 2010).  Read the full opinion here.

MR 

 

Recent Case on Parental Rights in IL

An Illinois trial court recently found a Respondent father unfit, detemining that the child’s best interests required the termination of Respondent’s parental rights.  The appellate court affirmed, determining, first, that the trial court was not prohibited from finding the Respondent an unfit father because of his minority at age 15.  Second, Respondent was not denied due process rights because Section 1 of the Adoption Act did not list protected parental rights, but grounds for parental unfitness.  Finally, the trial court’s best interest finding was not against the manifest weight of the evidence, which showed the infant already bonded with foster parents and was maltreated by the father.  The case is In re I.B., No. 3-09-0547 (Ill. Ct. App., 3d Dist. Dec. 30, 2009).  Read the full opinion here.

MR

In Chambers Examination of Children in TPR Case Violates Due Process

A Michigan Court of Appeals recently ruled that an unrecorded in camera interview with 4 children involved in a proceeding to terminate their parents' rights resulted in a due process violation.

The family involved in these proceedings has a protracted history with protected services.Before the petition was filed in the instant matter, the family had been referred to protective services 24 times. These referrals concerned allegations of physical abuse, truancy, or physical and educational neglect. Physical abuse was suspected because the male children often had bruises, while physical neglect was suspected because the children often came to school improperly dressed or having poor hygiene. In addition, the children missed school often, approximately 20 to 30 days per year, and arrived to school late without excuses. There were also ongoing concerns regarding suspected medical and educational neglect of one child, S.H.C., who was deaf and had very little knowledge of American Sign Language (ASL).

A petition was filed to terminate parental rights based on allegations of sexual abuse, physical abuse, and educational neglect.  Before making the decision to terminate parental rights, the court conducted in camera interviews with all 4 children to determine whether the TPR would be in the children's best interests.  Distinguishing custody disputes and other family law matters in which in camera examinations are permitted, the court held that:

given the fundamental parental rights involved in termination proceedings, the risk of an erroneous deprivation of those rights given the in camera procedure, and the fact that the information is otherwise easily obtained, it is clear that the child’s interest in avoiding the discomfort caused by testifying in open court does not outweigh the parents’ interest in having the child testify on the record. Thus, it is our view that the use of an unrecorded and off the record in camera interview in the context of a juvenile proceeding, for whatever purpose, constitutes a violation of parents’ fundamental due process rights.

Read the opinion here.

AC

Conference - Drugs, Pregnancy and Parenting

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 protected].

RR (thanks to Maria Arias)

Conference Announcement

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

View Conference Announcement

Featured Speakers

§      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

Conference Details

§      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).

Case Law Development: Termination of Parental Rights Does not End Child Support Obligation

In an unpublished opinion, the Illinois Supreme Court has held that the termination of parental rights does not extinguish a child support obligation unless the child is being adopted.  The court relied on the language of the Illinois statute, which refers to termination of parental obligations as to “a child sought to be adopted.”   The court stated: "We conclude that, after the entry of an order terminating parental rights, where the child is not adopted, [the Act] applies as its plain language indicates, only where the child is 'sought to be adopted'…. To hold that this language is of no effect, as respondent urges, would render the language superfluous or meaningless."  The court rejected the appeals court’s  interpretation of the “sought to be adopted” language as including any child 'available for adoption', noting that the legislature could have specifically used this language.

Three judges dissented, arguing that the court’s interpretation created significant inconsistencies in the law, both between the termination statute and the juvenile code and between this holding and prior precedent.

Illinois DHFS v. Warner, Ill., Illinois Supreme Court, January 25, 2008
Opinion on the web (last visited February 9, 2008 bgf)

Case Law Development: Burden of Proof of Indian Child Welfare Act Element of "Active Efforts" to Reunite

The Nebraska Supreme Court joins those states that interpret the Indian Child Welfare Act to require only clear and convincing proof that "active efforts have been made to provide remedial services and rehabilitative programs" 25 U.S.C. 1912(d) in order to terminate parental rights.  Other states have held that this element must be proven beyond a reasonable doubt.  The Nebraska Supreme Court analyzes the language of the ICWA and concludes  that the higher standard, mandated by the act for other elements of the ICWA, is not required for this element.

In re Walter W., 274 Neb. 859 (January 18, 2008)
Opinion online (last visited January 21, 2008 bgf)
An outline of the provisions of the ICWA is available at the Indian Child Welfare Law Center.