Author Archive for Jason Cheung

Preventing Rapists from Obtaining Child Custody

Many child custody cases are heart-breaking, but the most horrific cases involve children who were forcibly conceived. The law struggles with what appears to be the easiest of questions: do rapists have child custody rights?

The Horrific Case of Tiffany and Christopher Mirasolo

In September 2008, 12 year old Tiffany and her sister slipped out at night to meet a boy. The boy’s older friend, 18 year old Christopher Mirasolo, offered to take the girls on a car ride. Instead, Mirasolo held them captive in a vacant house for two days. After raping Tiffany, he released the girls, but threatened to kill them if the girls reported him.

When Tiffany became pregnant, Mirasolo was arrested. He was sentenced to a year in county jail, but only served half a year, to look after his sick mother. Mirasolo was arrested for a second sex assault on a teenage victim two years later. He only served 4 years in prison.

Meanwhile, Tiffany struggled to support the son she gave birth to as a pre-teen. She skipped high school and went straight to work to support her boy. Unfortunately, Tiffany did not make enough money to support her child, so she applied for welfare. Shockingly, state welfare services would not help her unless she named who the father was. When Tiffany named Christopher Mirasolo as the father, state support service filed a support claim on Tiffany’s behalf. The support claim resulted in Tiffany sharing joint child custody with her rapist.

child custodyWhy Would the Judge Grant Joint Legal Custody?

Many states have guidelines and/or laws limiting how welfare is distributed. When Tiffany applied for welfare as a single mother, the state likely has an automatic process whereby it attempts to obtain child support from the father before providing welfare. The goal of course is to save taxpayer money and to transfer the obligation of supporting the child to the responsible party, the other parent.

In order for the state to order a man to pay child support, he must be proven to be the father of the child. Ordinarily, this would be a reasonable policy. The state cannot force people to be couples, but it can try to force people to be responsible for the offspring they create. However, all these reasonable policies and assumptions break down when it is obvious that the mother and father should not be in the same room. Judges have discretion to determine custody arrangements, but judges are bound by state law. Unless there is a statute that prohibits a judge from granting joint custody, most judges will err on the side of joint custody.

However, states vary in how they approach rape and child custody. In 20 states and the District of Columbia, a rape conviction is required before termination of parental rights is allowed.  Five states, Wyoming, North Dakota, Minnesota, Alabama and Maryland, do not have any laws prohibiting rapists from obtaining child custody. Since criminals are primarily state laws, the most the federal government can do is encourage states to enact laws barring child custody to rapists. The Rape Survivor Child Custody Act, signed by President Obama in 2015, gives states funds for passing laws that prevent convicted rapists from obtaining child custody. That’s the extent of the federal government’s involvement in custody and criminal cases though.

How Can We Change Course?

According to the American Journal of Obstetrics and Gynecology, about 5% of rape victims become pregnant as a result of rape; that’s about 32, 101 pregnancies per year. In percentages, the number is not high. However, each pregnancy because of rape brings out legal and ethical issues that impact both the mother and the child.

First, raising a child together is arguably a more intimate relationship than sex itself.  I have sat through custody hearings where the judge reminds young parents that “you will likely see each other at your child’s teacher-parent meeting, soccer games, college admission tours, wedding, and the birth of your grandchildren. The commitment you made when you decided to have a child together is not a commitment that ends in 18 years; it is a lifetime commitment.” Normally these are words of wisdom. Forcing a rape victim to forge this daily and emotional relationship with the rapist would only lead to more traumas and would likely reduce the victim’s ability to take care of herself, let alone her child.

Second, forcing the child to spend time with the rapist/father would endanger the child. If someone like Mirasolo was willing to kidnap and rape a 12 year old, there is no guarantee that he would not rape his child. Although the child in the Michigan case is a boy, rape is about power. Endangering the child’s life or threatening to do so would allow someone like Mirasolo to further control his victim. Even if professional supervised visitation is an option, it would not prevent the “father” from using the legal system to further exploit his control over the victim and the child.

If the father is convicted of raping the mother in a criminal court, it is imperative that the law extinguish the father’s custody rights. The risk to both mother and child are too great. Arguably, it might be in the best interests of the child to know where he or she came from. However, if the child wants to undertake that journey, they can do so when they are an older and independent adult, able to understand what rape is and why the man who conceived his or her existence is not a good person. If the judge does believe the child might have an interest in being raised by both the victim and the rapist, the judge should at least appoint an independent counsel for the child so that rapist’s arguments do not just outweigh the victim’s interests.

Attorney General Sessions Argues Civils Rights Act Doesn’t Bar Discrimination against Transgender Persons

Earlier this October, Attorney General Jefferson Beauregard Sessions III ordered the Justice Department to argue in court that transgender people are not protected by the Civil Rights Act. The Civil Rights Act protects employees from discrimination based on gender. The Obama Administration had argued, often successfully, that “gender” included gender identity. Under Sessions, “sex” and “gender” would mean biological sex and gender only.

Session’s new policy faces an uphill battle, and potentially a losing war. The Equal Employment Opportunity Commission (EEOC) has continued to support transgender employees, as recently as this summer. Additionally, there are a number of cases where the courts have ruled in favor of the Obama Administration’s position. Court precedents stretching back to the 1980’s support the argument that illegal discrimination against gender can include discrimination against gender stereotypes.

What is the Difference Between Gender Stereotypes and Gender Identity?

The greatest challenge Jeff Sessions will have is explaining how gender stereotypes and gender identity are different. If discrimination based on gender stereotypes is illegal, how is discrimination based on gender identity legal?

Under judicial precedent, employers cannot punish female employees for not being feminine enough. Employers cannot demand individual women to speak or dress more femininely to succeed in the business world. The general idea is that punishing a person for not conforming to a gender stereotype would mean penalizing a person for being the “right kind” of woman.

Session’s new policy will have to untie the Gordian knot that gender stereotypes are linked with gender identity. If a man behaves more femininely or if a woman is more masculine than her co-workers, employers have no right to punish that employee for not conforming to what the employer believes to be appropriate gender boundaries.

transgenderOf course, feminine men or masculine women are not always transgender. Transgender persons might not see themselves as feminine men or masculine women. However, employers and laypeople might see transgender men as masculine women or transgender women as feminine men. The two are inseparable and enforcing a policy that allows for discrimination against transgender while the law prohibits gender stereotyping will be virtually impossible.

Comparable Evils

Jeff Sessions’s biggest defense for his reversal in transgender protections is that he is merely enforcing the law. It was the Obama administration that violated the Civil Rights Act by expanding the meaning of “gender” beyond what Congress intended.

There are two problems with this argument. First, Congress has never stated that gender only means biological sex of the person. Congress has largely been silent on the matter. Republicans have had control of Congress for the last several years and have yet to even hold hearings on the interpretation of gender in the Civil Rights Act (in contrast with 56+ attempts to repeal Obamacare while President Obama was in office). If Congress really had an issue with the President Obama’s interpretation of gender, one assumes Congress would have at least passed a bill objecting to it.

Second, the Supreme Court has ruled on whether the Civil Rights Act can be interpreted beyond the original intent of Congress. In 1998, the late Justice Scalia wrote, in a unanimous ruling about male and male sexual harassment:

“Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

When even the father of Originalism says that the Civil Rights can reach beyond the original understanding of the Congress that enacted it, Attorney General Sessions is clearly in the wrong.

Alternative Means

Of course, it is unlikely that Jeff Sessions will change his mind. It might be best for transgender persons to use other legal provisions to protect themselves from discrimination. This might require some creative lawyering:

These arguments are probably trending on thin ice. With an administration that seems hell-bent on demolishing LGBT protections though, desperate times might require creative measures.

Child Pleads to Save Toys R Us from Bankruptcy

Growing up, my family would often spend Saturday mornings just visiting our local Toys R Us. If we couldn’t convince our parents to buy the latest Transformers or Game Boys, we’d hide them in the back shelves until we could return for them. Twenty years later though, Toys R Us has filed for Chapter 11 bankruptcy to resolve its $5 billion debt.

I wasn’t the only one who was unhappy to hear the bad news. One young boy, Andrew, went so far as to file a pleading with the bankruptcy court.

Andrew gives three persuasive reasons:

  1. It would be bad for kids
  2. They would be very unhappy
  3. And they would be rather promised a trip toys r us than any other store

Andrew’s pleadings were entered into the docket like all other documents.

bankruptcyAndrew may get his wish. Chapter 7 is liquidation bankruptcy, whereby the company is dissolved and its assets sold. Chapter 7 will likely be death for most companies. In contrast, Chapter 11, while a severe wound, is not fatal. Chapter 11 is akin to cutting off one’s infected arm to save the rest of the body.

Understanding Chapter 11 and Chapter 7 Bankruptcy

Gruesome metaphors aside, Chapter 11 can be a great tool for struggling businesses. In Chapter 11, the business is reorganized, hopefully into a stronger entity. Like Chapter 13 for individuals, businesses going through Chapter 11 are required to come up with a plan for restructuring. This may require repaying some creditors, selling off unprofitable portions of the company, and investing in parts of the company that are making money. In rare instances, the Chapter 11 may be converted into a Chapter 7 bankruptcy if the company cannot be salvaged through the restructuring plan.

Toys R Us owes $7.5 billion total to almost every major toymaker in the country: Crayola ($2.6 million), Hasbro ($59 million), Lego ($32 million), Mattel (owed $136 million), Radio Flyer ($12 million), and Spin Master ($33 million). Toys R Us is determined to keep its doors open as it goes through bankruptcy, but the decision may ultimately be out of the retail’s hands. If suppliers lose confidence in Toys R Us’s ability to repay them, they might decide not to ship their products to Toys R Us. With Black Friday and Christmas approaching, that would almost certainly put Toys R Us out of business for good.

Fortunately, Chapter 11 bankruptcy itself provides a way for Toys R Us to stabilize itself. When a business is under Chapter 11 bankruptcy, the business has the power to assume or reject executory contracts. An executory contract is a contract where both parties have yet to fulfill the material terms of the contract. For example, suppose that Toys R Us and Hasbro have a contract whereby Toys R Us agrees to buy 500 units of beanie babies for $1 million. Due to Toys R Us’s debt problems, the retail has yet to pay the order and Hasbro has yet to deliver the beanie babies. Since neither company has fulfilled its end of the bargain, Toys R Us can choose to assume or reject the agreement.

If the contract is assumed, then the parties will maintain the deal and the debtor can seek a court order to enforce it, if necessary. If the contract is rejected, then the contract will be null and void. For a struggling debtor like Toys R Us, the power to bind its creditors to contracts previously made can be a lifesaver. Young children like Andrew may have a few more years to enjoy their favorite toy store.

Can You Refuse To Vaccinate Your Child During a Divorce?

Rebecca Bredow was sentenced to a week in jail after she refused a court order to vaccinate her nine year old son. Bredow and her ex-husband had initially agreed to vaccinate their nine year old son, but Bredow later decided against it. Bredow argues that the parents had initially agreed not to give their child a vaccination and that it was her husband who changed his mind, in order to obtain leverage over their custody dispute. Their son will be in the care of Mr. Bredow until Ms. Bredow is released from jail.

Michigan allows parents of public school children to waive vaccination for their child, but the parents have to attend an education seminar on the benefits of vaccination first.  Health officials are worried that if children are not vaccinated, diseases such as measles will return. The reappearance of diseases that Americans have not been exposed to in a generation would result in a devastating outbreak. On the other hand, the parents want to waive vaccination are worried that the vaccines will give their children autism. However, scientific studies have largely debunked such claims.

vaccinateAlthough the medical benefits outweigh the falsely reported disadvantages of vaccinations, Bredow was not sentenced because of her opinions on vaccines; the legal facts determined her conviction.

Avoiding Confrontation with the Judge

The default in child custody is joint custody for both parents. People often mistake “joint custody” for “50/50%,” but family law judges will discourage parents from thinking about child custody in percentages. Children are not sacks of flour to be divided between disputing parties. Joint custody is the default child custody because the law presumes that it is in the best interests of the children to have both parents in their lives, not because it is fair to the parents. However, judges can deviate from the default joint custody if joint custody stops being in the best interests of the children.

Ms. Bredow made two mistakes that led to her week long jail sentence. First, she told the judge that it was against her beliefs to give her children vaccines. In a child custody case, the beliefs of the parents are not the deciding factor. In fact, asserting a personal belief in a custody battle can be harmful, since the judge might interpret that statement to mean that the parent is more concerned about his or her personal beliefs than the well-being of the children. In a child custody case, it is always preferable to relate the case back to the best interests of the children instead of arguing about other factors. Instead of saying that vaccines are against her beliefs, Bredow should have argued that the vaccines were potentially harmful to the children.

Second, Bredow publicly stated that she would refuse to obey the court order. There are many legal ways to challenge a court order. Bredow could have appealed the order. She could have filed a motion to reconsider the matter. Or Bredow could have chosen not to stipulate to an agreement in the first place. The worst thing to do though would be to agree to certain terms and then violate the court order to enforce the agreement that the parties made.

Can “No Trespass” Signs Keep You Out of Jail?

An upcoming Supreme Court may render “No Trespass” signs useful. Normally, signs forbidding trespassing are useless because the Jehovah’s Witness or salesperson will ignore the sign and knock on your door anyway. In the future though, hanging a “No Trespass” sign outside could keep you out of jail.

In 2013, James Christensen Jr. of Tennessee encountered a pair of local officers in civilian clothing. The officers had just seen James’s girlfriend, because they had received a tip that someone in the neighborhood was creating methamphetamine. James has two “No Trespass” signs, one on his driveway and another outside his house. A third “Private Property” sign lived next to the second “No Trespass” sign. When James saw the officers, he stepped onto his front porch to confront them. James locked the door behind him as he did so. As James spoke with the officers, one of them noticed the smell of meth.

police searchWhen the officers asked for permission to search the house, James told them to leave. Instead of leaving, the officers arrested him and then kicked down the locked front door. After a search revealed several meth labs in his house, James was arrest and charged with resisting arrest, promoting meth manufacturing, and possession of firearms while committing felonies. James was convicted by the trial court and lost his appeal to the Supreme Court of Tennessee. His lawyers have appealed to the U.S. Supreme Court because other states have ruled that “No Trespass” signs are enough to protect a right of privacy against warrantless searches.

The World at Arm’s Length

The 4th amendment prohibits the government from searching a home without a warrant. However, the government can still search a property if the owner gives his or her consent. Courts were divided on exactly how that consent should be given. The Supreme Court ruled in previous cases that police could enter private property and knock on the door to speak with the residents, in the same manner a private citizen could. This “knock and talk” doctrine effectively became an implied consent, whereby the police could assume that they had the owner’s consent to walk up to their front door. In cases like this one though, police have used this implied consent to find probable cause to conduct a search without a warrant. The implied consent to walk up to the door often results in the police finding reasons to break down the door.

This kind of “search” by police destroys the 4th amendment. Police should not be able to legally walk up to a door and then illegally smash it down based on the flimsiest evidence.  Since police can always pursue extrinsic evidence to conduct a search, the best way to prevent this kind of abuse would be to tell ALL visitors to stay away. If a private citizen cannot legally knock on your door, neither can a police officer. This would effectively remove the officer’s implied consent. How can an average American tell the whole world to keep all her lawn?

The easiest way of keeping out any and all visitors is to throw up “no trespass” signs. Most courts agree that this is some evidence that the homeowner doesn’t want to be disturbed, but there is significant disagreement about whether “no trespass” signs alone are enough to withdraw implied consent. Some judges believe a sign is enough to keep the world away; other judges believe that there must be more.

The Ability to Knock On Front Doors Does Not Give Police the Power to Kick Them Down

“Knock and Talk” is entirely built on two assumptions. First, that the public can knock on each other’s door. Second, the police have the same right to knock on doors and talk with people as other private citizens. This doctrine is fine, since police work may often rely on speaking with those who live in the area.

What is not fine though, is if the police take this license to speak with the neighbor to bypass the 4th amendment altogether. The right of the people to be secure in their houses against unreasonable warrantless searches would be irreverent if the police could just walk up to a door and find any reason to tear open the door.  Judges should always ask officers conducting these types of searches: “why couldn’t you just get a warrant and come back?” It is the officer who must respect the citizen’s right to privacy; the citizen has no responsibility to lay out a welcome mat for the police. If we are really “secure in our houses,” the police cannot break down the door just because they think something is wrong while speaking with someone on the front door. The Constitution requires a warrant.

The only exception that should exist is if there is a real emergency. Danger to human life must be a priority. If the officer hears a scream or a plea for help from inside the house that would be sufficient cause to charge the door and search the building. However, the smell of drugs cannot be considered an emergency. Even if the officer fears the suspect could destroy the evidence, he can always radio his department and wait for another officer to obtain the warrant while he watches the house from outside.  Christensen’s case is another example of how the war on drugs is eroding our constitutional rights and the line must be drawn to ensure that “knock and talk” doesn’t become more than that.