Archive for the 'Family Law' Category

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.

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 You Access Your Spouse’s Electronic Information During a Divorce?

During a divorce, ex-spouses will be tempted to use every advantage to “win” the case. Since spouses were often intimate during their marriage – even sharing private information with one another – fights between spouses can be nasty, brutal, and long. Many spouses will use passwords to access personal accounts to look for proof of wrongdoing. The Electronic Communications Privacy Act (ECPA) was enacted in 1986 to protect against such digital intrusion. Unauthorized access to email may carry severe penalties – in both divorce and criminal court.

Can I Record Phone Calls?

The answer will differ wildly depending on each state. Some jurisdictions, like North Carolina and Virigina, permit one party recordings. It is permissible to record a phone conversation as long as one of the parties knows and consents to being recorded. Other states, like California, require two party consent; both parties must know and consent to their conversation being recorded.

However, almost all states require a warrant before recording phone conservations in which the recorder is not one of the parties. If you plan to record your spouse and his or her suspected lover, think twice – you will almost certainly be breaking the law.

What If My Spouse Is Saying Nasty Things About Me on Social Media?

It is not uncommon for ex-spouses to say terrible things about the other on Facebook or Twitter to their friends and family. Obviously, any one-sided Facebook statues will likely result in the other spouse being alienated from his or her social circle.

Courts do have the power to order spouses to “add” their spouse to social media as a means of monitoring any potential libel. However, this only comes up if the couple has minor children. Children should not have to see their mother attacking their father’s character on social media. In that instance, the Court can require that the mother “add” the father to social media to ensure that the other parent does not derail normal parent-child relationships.

divorce_loginWhat If My Spouse Gave Me Their Passwords While We Were Still Together?

The ECPA prohibits “unauthorized” access or use of private information. However, if a spouse voluntarily provides the password, then you would have implicit consent. This implicit consent only goes so far though – if you use the password to access accounts other than the email it was meant for, there would likely be no consent granted. If a wife gives her husband a password to check her Gmail, but that same password works for her Wells Fargo account, implicit consent would only exist for the Gmail but not for the Wells Fargo account.

We Separated. Can I Still Read My Spouse’s E-mail with the Password They Gave Me?

When spouses give their passwords to one another, the law assumes that the password was for a specific purpose. If you have your spouse’s email password, it’s probably to check e-mail that the two of you received as a couple while you were married. If the marriage has ended, then the reason your spouse has given you the e-mail has likely ended to.

Divorcing a Spouse with a Mental Illness

“I, take you, for my lawful wife/husband, to have and to hold from this day forward, for better, for worse…in sickness and health, until death do us part.”

Most people want to believe that they can stand by their marriage vows no matter what happens. However, some people may discover that the new Mr. or Mrs. has a severe mental illness. In other cases, you or your spouse may develop a mental illness later in life. Many people will stand by their husband or wife “in sickness,” but time may bring greater and greater stress to the marriage with no respite in sight. If you or your spouse has a mental disorder that is breaking down the marriage, is there an exit ramp?

mental illnessCan I Divorce My Spouse If They are Mentally Ill?

Generally, an individual has capacity to divorce if that individual understands the nature of a divorce and the legal and financial consequences of being divorced. A mental illness may impair mental or emotional function, but as long as the person understands what a divorce is and how it will affect his or legal and financial status, the person can still divorce or be divorced.

Example #1 – A spouse with bipolar disorder may go through “manic” episodes where the person stays up all night and spends thousands of dollars in a month and then pivots to extreme depression where the person refuses to get out of bed and might physically hurt themselves if they do. Legally, it would be possible to obtain a divorce, even if doing so might trigger a depression episode.

Example #2 – A spouse is diagnosed with paranoid schizophrenia and believes that an old employer is blackmailing his wife and the family court judge into divorcing him. Legally, it would be possible for the wife to obtain a divorce, although a guardian might be appointed to manage the husband’s interests (for example, to prevent the husband from filing a frivolous appeal which would further exhaust his financial resources).

Example #3 – A spouse with Alzheimer’s Disease forgets that she was married and cannot remember she jointly owns a vacation home and two joint bank accounts with her husband. In this case, a court could rule that the spouse lacks capacity to divorce and the ruling would likely be affirmed on appeal.

Note that these are only examples and that courts determine capacity on a case by case basis. Consult an attorney to determine whether you or your spouse has capacity to marry or divorce.

Is It Moral to Divorce My Spouse If They’re Ill?

Some parties may worry about the moral or social effects of divorcing a spouse with mental illness. After all, marriage vows state that couples will support each other “in sickness or in health.” Many divorcees may feel guilty about leaving a lover in his or her time of need.

Moral considerations are ultimately up to each individual. However, if a mentally ill spouse is draining you for years on end, it may be imperative to your own health and mental/emotional well-being to at least separate from the other spouse, at least for a little while.

Annulment

Just as a party must have capacity to divorce, parties must have capacity to marry before getting married in the first place. Capacity to marry is similar to the capacity to divorce: an individual has capacity as long as he or she understands what a marriage is and how marriage would impact his or her legal and financial standing.

In some cases, it may be easier for a newly married couple to file for annulment due to mental incapacity to marry instead of trying to go through a divorce. If one of the parties didn’t understand that he or she was getting married, annulment will be a valid option.

On the other hand, annulment will be more difficult to prove. Unlike divorce, the party seeking annulment must actually prove that one of the parties lacked capacity to marry, while divorces today are typically no-fault divorces and no offer of proof is required.

Child Custody and Visitation

Although a spouse with a mental illness may have the capacity to be divorced, the mental illness may present obstacles to child custody. The Court will have two competing obligations. In all child custody cases, a judge must act in the child’s best interests. A judge must put the well-being of the children ahead of any other considerations. On the other hand, federal law requires that courts reframe from discriminating against mentally disabled individuals.

The compromise against these two competing interests is to determine whether a mentally disabled individual would be able to care for the children without endangering them. Judges cannot assume that a parent is unfit merely because he or she has a disorder. Parties must actually prove that the parent with mental disorder is unable to serve as a parent. And even if a disability might interfere with a parent’s ability to care for children, certain accommodations such as medication or supervision should be considered before visitation is reduced or custody removed.

Child Custody Dropoffs: Coming Halfway When Negotiating Meeting Points

One of the most common disagreements when parents share child custody, but live in separate households, is when and where to drop-off the kids. At first glance, it seems simple: just pick a halfway point between where the parents live. However, there are often logistical and emotional issues that make drop off times and locations more difficult.

Choosing the Best Location

Ideally, the best drop off and pick up zones will be safe locations where the child (ren) can safely leave one parent’s side and stay with the other parent. Many police stations offer parking spots where parents can transfer children in front of a security camera. Other good locations would be highly public and visible areas, such as a local Starbucks. The most common pickup times are afterschool. The custodial parent can pick up the child (ren) after school without seeing the other parent. Parks are often chosen because of their public accessibility and wide open spaces, but ideally the parents should pick a location where other people can intervene or report if a situation arises.

child custodyVehicle Issues

Sometimes, one parent doesn’t have access to a car. Or the parent doesn’t have a license. If transportation is an issue, the parties have a few options. If public transportation is accessible, the exchange point can be at a train or bus station. Bonus points if the station is protected by security guards. Alternatively, the parents could drop off at the other parents home. This is not always an option though; one parent might have been abusive towards the other or because it would be cost prohibitive for one parent to constantly be driving to the other’s residence.

Of the two, the cost prohibition would be the easiest to overcome. The other parent can pay additional child support to make up for the price of gas. Spousal or partner abuse is a bigger problem, but neither parent has to speak or interact with each other when the child(ren) leaves the car.

One last issue: if the children are young, each parent should purchase a child seat, booster or restraint for their vehicle. Even if neither parent thinks it’s necessary, a judge will likely bring it up and inquire about it. Purchasing that car seat can save your child’s life and save you a lot of grief from the court.

Tardiness or Abstinence

Another recurring issue might be if a parent is late or doesn’t show up at all. If the pick-up parent is late or absent, this would place a bigger strain on the custodial parent as it would change the custodial parent’s schedule or plans. However, it is a bigger issue if the custodial parent is late or absent.

First, always keep a calendar of such incidents. Mark down which days the other parent is late and for how long, and/or which days the other parent fails to show up. Second, if a parent fails to appear, try to call or text the parent. If the parent is excessively late (more than half an hour), you should also call or text the other parent letting them know you are leaving. You should always make an effort to communicate with the other parent before taking the child (ren) elsewhere. If the other parent is the custodial parent, you should contact the other parent immediately about where the parent and the child(ren) are. If there is no response, contact the police immediately; this situation is parental kidnapping.

Air Travel

In some cases, one of the parents moves out of state. If the children are young, be prepared to accompany them. As they become older, the parents and/or the children might wish to travel alone. Maturity will obviously be a big factor in whether that’s a good idea, but courts will give more weight to a child’s wishes as they grow older.

The elephant on the plane with air travel is money. Flying will be more expensive than driving around and there’s no way around it. The parents can agree to split the costs of flying, alternate paying for tickets, or have the price of tickets included in one parent’s child support or back pay.