Archive for the 'Family Law' Category

Legal Use of Marijuana Jeopardizes Parental Rights

Are you a parent who has a medical marijuana card? You might want to rethink before you get your marijuana treatment. Unbeknownst to you, you may be taking a risk of losing your child. That’s a warning parents who smoke pot should be aware of, but is nowhere in the statute to be found. There is no bright line rule on whether a legal use of marijuana makes a parent unfit. Nevertheless, your state can suddenly take your child away. Now, you must choose either your treatment or your child.

That’s the dilemma Raymond Schwab, an honorary veteran, is facing. Raymond suffers from PTSD and is a Colorado-registered medical marijuana user who resides in Kansas with his wife Amelia and their six children. Raymond and Amelia decided to move to Colorado so Raymond could continue his marijuana treatment. They were completely oblivious that they were going to lose custody of their children if they remained in Kansas.  Medical Cannabis

On the day they were packing to leave, Raymond’s mother-in-law took their five children to a police station and reported that the children had been abandoned, of which she now regrets, according to Denver Post. Since then, the Kansas law enforcement investigated the report of abuse but dismissed the case concluding as “unsubstantiated finding.” Simply put, they found no child abuse.

Nevertheless, Kansas child welfare agency did not return the kids to their parents and have been holding the custody of the children. According to Kansas Child Protective Services when CPS determines that a child is unsafe, CPS makes a recommendation to the court for removal of a child from the home. Presumably, CPS must have determined that those five children were unsafe and removal was necessary because CPS has been holding onto the custody of the five children over nine months. The Kansas court is now demanding Raymond to give up cannabis, to comply with four months of drug free urinalysis tests including a drug legal in Colorado for therapeutic uses.

Kansas Law Empowers Child Protective Services to Take Kids Away From Home

Kansas’s decision to remove Raymond’s children from their home seems overreaching and drastic. Overreaching, because Raymond’s marijuana use did not occur in Kansas, the home state, but in Colorado, where such use is legal. Taking families apart because of his simple use of marijuana as a medication is drastic and traumatic for both children and parents. It just seems unfair for someone like Raymond, who did not violate Kansas marijuana law.

One reason for such extreme consequences may be the mixed standards of marijuana laws among the states. Currently, 23 states and D.C. have legalized medical marijuana. In Colorado, possession of marijuana for medical and recreational use is legal whereas Kansas prohibits marijuana for any reasons. These mixed standards create a case such as Raymond’s. Does out-of-state medical marijuana use by a parent make the parent unfit in a state that absolutely prohibits marijuana?

Not only does Kansas law prohibit marijuana for any reason, but it also treats

marijuana as one of the most dangerous and addictive drugs. The federal government and many states classify drugs as Schedule I, most dangerous level, to Schedule V, the least dangerous drugs. In Kansas, marijuana is classified as a Schedule I substance with such drugs as heroin and meth, which means that it has a high potential for abuse and no recognized medical value. This limits how it can be studied or used medically. The strict prohibition and overgeneralization of marijuana treatment of Kansas law seem to empower the state’s child welfare agency’s decision to take families apart based on a mere speculative and obscure danger.

Raymond did not violate the Kansas marijuana prohibition statute. The state, however, claims that Raymond’s retroactive or prospective legal use of marijuana in Colorado was or is going to be unsafe to his children.

The CPS’s balancing test underestimates the degree of harm that the children might experience when they are taken away from their natural home. Removal from the home and replacement in the home can lead to feelings of instability, loss of status, and a loss of control as children may always expect and fear that they can be removed and replaced at any time without explanation. Lack of understanding of the foster care system and the process may lead to feelings of loss and/or rejection for children grappling to understand the separation from their biological families.

Instability in foster care is a serious problem for child development. We hear more and more problems in foster care system. In 2014, a two-year-old Alex Hill was taken away from her home because her parents used marijuana. After placed in a foster home, the toddler girl was physically abused and eventually killed by her foster mother. The Texas child welfare agency took the child away from her home simply because her parents smoked pot while their baby was sleeping in bed upstairs. The child was then placed in a “safe environment,” namely, foster care. That safe environment is where she died.

Best Interest of Child

The different standards of marijuana law among the states render a parent who is legally entitled to smoke pot in one state to become unfit parent in another. That is arbitrary. Furthermore, by taking the kids away, Kansas demands that Raymond forfeit his right to use medical marijuana as a patient in Colorado. The stigma against marijuana allows the state to dictate a decision without carefully considering whether it would be in the children’s’ best interests. As a result, the removal produces traumatic experiences for the children, rather than providing safe and temporary environment for the children’s well-being. According to the Denver Post, Raymond and Amelia have only seen their children three times since their separation in April 2015

The essence of child welfare decision should be made based on the best interest of child. Arguably, parents who abuse illegal drugs can put their children at incredible risk. Parents who use addictive drugs may be incapable of caring for children and the children would become susceptible to drug use themselves.

However, Raymond was in compliance with both Kansas and Colorado law. Also, marijuana is not addictive. Given the degree of resulting trauma the children may go through, compared to the degree of potential harm by having a father who uses marijuana for his illness, Kansas’s decision to take the kids away is erroneous. Holding onto the custody of the children over nine months based on overblown concerns is not for the best interests of the children.

Use of Religion in Deciding Secular Issues: Risk of Prejudice and Inequity

The role of religion in conflict situations can be powerful. The use of religion in alternative dispute resolutions may produce sensible resolutions for the disputes of the parties who share the same religious faith without having to go to a court. However, the norms of what is right and what is wrong in a particular religion set different rules from what is legal and illegal under the civil law. This leaves minority groups vulnerable and subjects similar cases to vastly different sets of arbitrary rules.

For instance, in family law, the use of religious doctrines to resolve issues such as divorce and marriage is problematic because the religious doctrines are often prejudiced against women. Furthermore, the proceeding of religious arbitration is quite different from legal procedure, foregoing many steps of investigation and discovery that are instrumental for fact finding. As a result, those individuals who agreed to religious arbitration do not get a day in court and have to accept the decision by the value-laid religious principles of which they may or may not believe in.

Judicial Preference to Uphold Religious Arbitration

One of the biggest controversies is that religious arbitration may shield religious organizations from liability. When religious arbitration is used to decide a secular issue, there is a concern that religious arbitration often results in outcomes favorable to the religious entity and unfair to the individuals who signed the religious arbitration contract.

With such skepticism religious arbitration brings to the table, you may believe that courts would intervene. Unfortunately, courts rarely do. The First Amendment’s Free Exercise and Establishment Clause preclude courts from meddling with religious exercises of faith and from favoring one religion over another. Consequently, courts have either upheld religious arbitration or refused to review these cases under the First Amendment.  I Do Solemnly Swear

This judicial preference to uphold religious arbitration sometimes leaves truth untold. Ms. Spivey, a mother, wanted to find out what occurred or led her gay son to death when her son was found dead while he was in the custody of Teen Challenge, a Christian based rehabilitation program. One day, she got a call from Teen Challenge that her son was intoxicated and was being taken to a hospital. When Ms. Spivey called the hospital, she was told that he was never admitted there. He was missing and later found dead.

Ms. Spivey attempted to find out what happened to her son. She tried to bring a wrongful death suit, but could not because she signed an agreement that contained a religious arbitration clause when she enrolled him in the program. Under the clause, any disputes had to go to Christian conciliation, the religious arbitration. The mother appealed, challenging that a court should decide the matter, not the religious arbitration. She argued that her First Amendment right also included the right not to exercise religion. While it is a correct statement and interpretation of the Free Exercise clause, the court found that there was no constitutional conflict.

In any case, she had signed the agreement to arbitrate and was suing on behalf of her dead son. Accordingly, the appeals court did not review the case and parties proceeded to religious arbitration. The facts show that many questions were unanswered. Why was her son intoxicated and why was he not admitted to the hospital? Did the pressure from Teen Challenge worsen his drug abuse? Why did he end up in a city with no money or cellphone?

Law of Contracts – Limitations and Safeguards

While the First Amendment prevents courts from reviewing religious arbitration awards, courts can review the awards based on contract law. Courts can review religious arbitration agreements just like any other contract.

Proponents of religious arbitration argue that you cannot challenge the arbitration agreement because you voluntarily enter into the agreement to arbitrate. Admittedly, in contracts that contain religious arbitration clauses, courts almost always order the arbitration, finding that there is a valid contract to arbitrate. Furthermore, in regard to whether the arbitration award should stand, courts almost always affirm the arbitration award.

Courts may vacate the award where the award is a product of fraud, corruption, or serious misconduct by an arbitrator. Courts seem to focus on the procedural aspect of arbitration. Judges often will not opine whether arbitration awards are substantively fair.

Admittedly, freedom of contract is a long-standing principle that deserves due respect. Contracts cannot void agreements just because the parties have unequal bargaining power. As consumers, we more and more encounter an agreement containing an arbitration clause that is take-it or leave-it situation without any room for negotiation. This one-sided contract has become a fact of modern life.

However, with expansion of practice of arbitration in consumer contracts, courts sometimes invalidate arbitration agreements if the contract is unconscionable. The contract is unconscionable if it was so extremely unfair to shock the consciousness. Perhaps, courts could use the same doctrine to void the religious arbitration clause when the contract was entered into under extremely unfair circumstances. Perhaps, for public policy grounds, courts should gradually review more cases decided by religious arbitration to identify particular secular issues that are unfit for decision making based on religious principles.

Child Spanking In the Modern Age

Doctor Spock was a pediatrician famous for his book on child care. He once said “If we are ever to turn toward a kindlier society and a safer world, a revulsion against the physical punishment of children is a good place to start.”

It often feels like every person has a strong opinion on child spanking. Words like “abuse”, “discipline”, or “firm hand” appear when magazines discuss “proper” parenting. The reasons behind spanking range from biblical to stating that the parents were once spanked and they turned out fine, so what is the harm?

Child spanking creates discourse everywhere, from talk shows to the dinner table. But what is absent from the discussion is what the law says about spanking.

Entering the Home

From the beginning of the American legal system, lawmakers did not want laws that affected how a man runs his home.  Spanking

But things have changed over the years. A woman may work, own property, vote, and is no longer considered her husband or father’s property. Children have gained some rights in school and can be removed from the home due to abuse. These changes came about after a long period of time and hard work from those who advocated for it. But the courts’ hesitation remains.

Abuse is Determined On a Case By Case Basis

In a recent decision by the California Court of Appeals, the Court decided that spanking a child was not abuse by the mother. They examined the mother’s motive, the necessity of her punishment, and the reasonableness of the severity.

The mother hit her children on their behind with her bare hand or a sandal. The spanking did not leave any bruise, welts, or lasting pain and discomfort. So the Court decided that the spanking was not “serious physical harm” and not abuse.

The Court stated that a parent has a right to “reasonably discipline” their child and “give reasonable punishment.” But where did this right come from?

The Legal Status and Rights of Children

Children, or minors, often live in a legal limbo. Their status as a minor protects them from entering bad contracts, being tried as an adult, and protected from sexual predators. The policies come from the judicial view that minors do not understand the consequence of their actions and cannot make the right choices. However, minors vary in maturity, intellect, emotional strength, and life experience. So it can result in a wide variety of outcomes for similar cases.

Parents or legal guardians of the minors are responsible for their minors’ actions. When parents/guardians assume legal responsibility they also decide how to raise their child. Parents and guardians make decisions about housing, dress, diet, and schooling. They can also decide how to discipline and what kind of healthcare should be provided.

While the ability to make these choices for their children make sense at the moment, the truth is that children will grow up. They will reach the age of majority and will make decisions for themselves. But sometimes the choices made by their guardians affect them into adulthood. This reality is why parenting is one of the most difficult tasks a person can undertake.

Should the Law Revisit Child Spanking?

There are things the legal system cannot regulate and decide. The government entrusts parents and guardians to raise future citizens in a safe and protected environment.

The legal system’s view on child spanking is simple: parents can spank their children. But they do not ask why or question the morality of spanking. They do not look at psychological research or studies on the benefits or damages of spanking. Instead, they base their view on the fact that parents have spanked their children for years. So they have the right to continue to do so.

The legal system does not exist to offer parenting advice. But it does exist to protect its citizens and this includes minors. The question still remains if spanking hurts children in the long term. It is a question the legal system is hesitant to decide.

But when hitting a dog is animal abuse, then how does hitting a child turn into spanking and a parent’s right? There are inconsistencies in the law that must be addressed despite the legal system’s fear of entering the home.

Should Americans Have a Right to A Lawyer in Civil Court?

In 1963, the Supreme Court decided Gideon v. Wainwright, ruling unanimously that the Constitution required all criminal defendants to have a right to representation in court. One of the main rationales Justice Black’s opinion in Gideon was that the “noble ideal” of “fair trials before impartial tribunals  in which every defendant stands equal before the law . . . cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”

In criminal cases, a person’s liberty may be at stake. However, civil cases can also inflict great personal loss. Some civil cases involve large sums of money, others may involve housing, public benefits, child custody, or employment. Many advocate providing legal counsel as a right in cases where basic rights like family or shelter are at risk. Often, these decisions are the key to helping indigent clients move forward in their lives.

Legal Aid: Solution or Stopgap?

Currently, the poor have some access to legal assistance in civil cases through Legal Aid. Legal aid programs assist in three main types of cases: accessing basic necessities (like housing, healthcare and government benefits); ensuring safety and stability (like domestic violence, guardianship, and student discipline); and economic security (like employment, taxes, and consumer protection). These programs exist all over the country, and are very helpful to many. However, Legal Aid offices are not mandated to take all cases, and due to lack of resources must choose carefully whether to represent clients.  Legal Assistance

However, a right to an attorney in certain cases would guarantee that clients could not be turned away. Even if this were to exist, a separate system of Legal Aid would be an important community resource. This is because Legal Aid often helps clients who are plaintiffs or who are applying for certain programs or benefits; some of what they provide would not overlap with a civil Gideon. A civil right to representation in certain cases could potentially create new legal jobs and would ideally free up legal aid attorneys to do more good work.

Would the Failings of the Public Defender System Be Repeated?

While there is a guaranteed right to representation in criminal cases, there are also many flaws in the public defender system. Especially in some counties, public defense attorneys are overloaded with too many clients and sometimes do not have the time and energy that a private criminal lawyer could bring to an individual case. On the other hand, these attorneys are often incredibly well-versed in criminal law and some of the most experienced trial lawyers. Dedicated public defenders can often be great assets to their clients.

One concern is that the lack of staffing and resources faced currently by criminal public defenders would just be mirrored in a civil defense system. This is a rather cynical argument, as though our society could not possibly provide better funding to both a criminal and civil public defense system. The limitations that public defenders face are due to a lack of economic commitment to the principles of just representation. In a fair legal system, public defense would be sufficiently funded; we should try to move forward by making this a reality rather than naysaying.

The Way Forward

President Obama is a major proponent of increasing civil representation. In September, his administration released a memorandum that established the White House Legal Aid Interagency Roundtable to “increase the availability of meaningful access to justice for individuals and families and thereby improve the outcomes of an array of Federal programs.” This statement reflects another important point about the benefits of civil representation—local and federal governments can set up meaningful programs or pass important legislation in hopes of protecting vulnerable individuals. However, in a system where few people are adequately represented, those programs and laws won’t work as intended.

At the same time, there has long been a national movement within the legal community to find a way to provide an attorney for those facing certain civil issues. Lawyers and judges are uncomfortable with indigent and vulnerable clients trying to represent themselves in complicated matters. In several states and jurisdictions, pilot programs have begun to try to work out what it would take to provide these services.

As Martin Luther King famously said, “injustice anywhere is a threat to justice everywhere.” A commitment to civil legal representation for all would be a step forward in defeating injustice.

Utah Judge Was Wrong To Order Gay Couple to Surrender Foster Child

Judge Scott Johansen ordered a lesbian couple to give up the one year old child living in foster care in their home. Beckie Peirce and her wife, April Hoagland, were caring for the child while the state terminated the biological mother’s parental rights. Peirce and Hoagland were married last October and were licensed as foster parents earlier this year. Judge Johansen claims he has research to back up that children do better in heterosexual homes. A copy of the order currently isn’t available, but a court spokeswoman confirmed its contents.

Aside from the alleged research, there doesn’t appear to be a legal basis for Judge Johansen’s ruling. Utah doesn’t have a law prohibiting same-sex couples from adopting children. According to Hoagland, “the mother has asked us to adopt” the infant girl. Neither the Utah Division of Child Family Services nor the Guardian Ad Litem Office have advocated that the baby be removed from the couple’s care. No party, other than Judge Johansen, believes the adoption would be a bad idea.

Child’s Best Interest

In any child custody case, the deciding question should always be whether the decision is in the child’s best interests. The child’s welfare cannot be traded for the desires of the “adults.” The only evidence available is that Judge Johansen has research showing that children do better in heterosexual homes.

However, all factors must be considered to determine whether the custody decision is in the best interests of the child. Factors such as employment of each parent, the emotional, mental, physical, and educational needs of the child, level of responsibility each parent has, and the nature of the child’s Peirce and Hoaglandrelationship must all be considered. The sexual orientation of the parents, if it is a factor at all, should only play a small role. It certainty shouldn’t be the deciding factor, as is the case here.

Second, “better off” cannot be a legal standard. People come from different backgrounds, but nobody can say that one experience is better than another as long as basic emotional, mental, physical, and educational needs are met. Children grow up in households where the parents are of mixed race, different religions, different political ideologies, or different income levels. Children may have multiple siblings or be an only child. The point is, being different may be harder, but the law doesn’t remove custody simply because a child could be in a “better” environment.

Justice is Based on Judgment of the Individuals

Third, breaking up a family based solely on research is not acceptable. Social studies research deal with generalizations, but the law must judge people as individuals. A research showing that children with heterosexual couples are better off than children with gay couples cannot be the basis for a legal decision unless the research is applied to the specific case. Being gay cannot be a reason to exclude homosexuals from foster parenting and adoption if the judge cannot point to a problem with the specific gay couple’s parenting.

Indeed, social science research makes all kinds of conclusions that courts would be unwillingly to act on, even the conclusions favor certain results. For example, there’s a new study showing that children raised in religious households are more selfish and judgmental than children raised without religion. By Judge Johansen’s reasoning, we should remove children from Christian and Mormon households and give them to atheists because of this research. But we know that this wouldn’t be right. Religious parents must be judged as individuals and not based on a generalized (and flawed) study. Gay couples shouldn’t be treated any differently.

The limited information available doesn’t exclude Hoagland and Peirce as capable parents. They are already raising two children, ages 12 and 14, who are Peirce’s biological children. The infant has already spent three months with them, so there may be a small emotional bond already. The mother has allegedly given her blessing and Utah’s Child Services haven’t found evidence of abuse. The baby’s situation could be better, but Judge Johansen suggests that any heterosexual couple would be more qualified. If the heterosexual couple included the baby’s father or a blood relative, there may be an argument.

However, to suggest that a random heterosexual couple would be better parents than Hoagland and Peirce would be absurd. The two women are experienced parents who have met Utah’s criteria for foster parenting and are prepared to take on additional parental responsibilities.