Archive for the 'Family Law' Category

Should Leaving Children in Cars Lead to Jail Time or Loss of Custody?

A lot can happen in five minutes. Consider this scenario: A toddler is sleeping in the back seat. Her mother runs off to the store for five minutes. The car is parked in the shade and it’s a cool day.

child neglect left in a carThe child wakes up and finds a small crowd gathered around the vehicle. Strange people are taking pictures with their phones. Mommy tries to save her, but a man in a blue uniform takes Mommy away. The toddler screams and cries as strangers open the car and kidnap her. The toddler is taken to offices and daycares. The little girl is frightened and just wants to go home with her mom.

Most good Samaritans who see children left alone in vehicles take down the license number, call the police, and drive away after the officer arrives. They usually don’t see what happens after the arrest is made and the child is taken. So let me fill in the blanks:

If the parent is charged with child neglect or one of the numerous variations, the parent will be in jail until bail is posted. Depending on the state and county, the case might be heard in juvenile or criminal court. The child is either taken home if there is a caretaker or to protective services. If the parent has the money, the parent can hire a criminal defense attorney. If not, the parent risks significant jail time and losing custody of the child.

Let that sink in for a second. Leaving your child in the car could result in losing custody of the child. Most comments online are along the lines of “Good. Doesn’t deserve to be a parent.” Obviously there isn’t a lot of sympathy for the parents of these children, but I urge readers to consider the children inside the system.

A young child doesn’t know anything about the risks of a hot car or abductions. The toddler is probably sleeping in the back seat or playing with a toy. The toddler only knows her parents were taken away. Removing a toddler from the custody of her parents will mentally and emotionally scar a child for life. Being dragged through the system, even briefly, can emotionally harm a child.

In some cases, removing a child from the custody of a parent is the correct answer. But those situations should be rare. In benign situations like leaving a child in a car, the process and the end game will psychologically damage the children. It is extremely ironic that we protect children from potential physical harm by inflicting emotional pain on them.

What’s Best for the Child Is What’s Best for Society

Leaving a child alone in a car can be dangerous. Children have died when left unattended in an overheated car. And there have been a few cases where parents intentionally leave their children in the car to die. It’s good that we live in a world where people are watching out for kids. However, sending all children and harmless parents through the criminal justice does not help the children. Like the “war on drugs,” society cannot use criminal sanctions to punish otherwise harmless behavior. The results will be horrifying and will have a long impact on society.

Children can be removed from the custody of parents if the parent leaves the child unattended in a car because of prosecutors’ discretion. Prosecutors have the authority to decide what type of crime they can charge defendants with. If a parent leaves a child in a car unattended, the prosecutor can bring a charge of child endangerment. In many states, child endangerment can be a misdemeanor or a felony. If the charge is a felony, the child can be removed from the defendant’s custody.

The problem is that that kind of punishment for a minor incident is absolutely absurd. A small fine or an order to attend parenting classes should be sufficient. There should be enough punishment to send a message that children can die if left unattended, but not so severe that the family itself is threatened. Children can and do die if left unattended in a car. However, going over the speed limit could also potentially put the child’s life in danger. Yet nobody in their right mind would approve of removing child custody over a speeding ticket.

If hardened criminals deserve proportional justice, then new parents should also have punishments that fit the crime. Instead of treating these cases like child molestation, these cases should be at the level of traffic tickets.

Embryonic Custody: An Emerging Legal Battlefield Featuring Sofia Vergara

One of the stars of Modern Family, Sofia Vergara, is currently in a custody dispute with her ex-fiancé, despite the fact that the two have never had any children together. Her ex-fiancé, Nick Loeb, wrote an op-ed featured in the New York Times that brought attention to a fairly new kind of custody battle: embryonic custody.

Sofia Vergara Embryo Custody DisputeThe frozen embryos, technically known as pre-embryos until their implantation in the uterus, were created in 2013. The medical directive signed by both parties states, “We understand and are aware that we may change this Directive. However, any and all changes must be mutually agreed to between both named partners. One person cannot use the Cryopreserved Material to create a child…without explicit written consent of the other person…”

Custody battles over embryos are the result of the rising popularity of in vitro fertilization (IVF). As stated in Loeb’s article, there are ten similar cases in the U.S. where one parent wants to take the embryo to term while the other parent opposes the action. Out of the ten cases, only the Pennsylvania (Reber v. Reiss) and Illinois (Szafranski v. Dunston) courts ruled in favor of the party who wished to bring the embryo to term.

How Do Courts Decide Embryonic Custody?

Courts take one of three approaches in deciding custody of a pre-embryo: a balance of interests test, a contracts approach or the mutual consent approach. In deciding traditional child custody cases, courts look to the best interests of the child. The juxtaposition between the two balancing of interests methods is a gray area for the courts because in the traditional custody cases, courts base custody on the best interests of the child and look at a variety of factors. In the balance of interests test for embryos, the court only looks at one factor: one party’s desire to use the embryos against the other party’s desire not to.

The courts believe there is a special interest when the embryos are a parties’ last chance to have a biological child, which tends to result in the case being decided in favor of the party who wishes to bring the embryo to term. The reasoning for both the Pennsylvania and Illinois courts were near identical: both women underwent chemotherapy and the embryos were their last chance to have biological children. The judges ruled that their interest in becoming a parent to biological children outweighed the opposing party’s interest in not bringing the embryos to term.

Loeb v. Vergara – Who Will Win?

There are many parallels with the IVF cases and the abortion cases heard by the Supreme Court, the most prominent is raising the question of “When does life begin?” Loeb believes that the embryos he created with Vergara should be brought to term because he says, “Lives were already created.”

Under the approach of the best interests’ of the parties, Loeb is likely to lose because there are no indications that the pre-embryos he created with Vergara are his last chance at a biological child. Under the traditional contracts approach, favored by the American Medical Association, Loeb also is likely to lose because the two parties signed a medical directive that requires the consent of both parties to bring the embryos to term.

It remains a likely possibility that the  Supreme Court will rule on a case regarding IVF custody (the only IVF related ruling the Court has issued is on IVF and social security in Astrue v. Capato) due to the complex moral, legal and ethical complications that arise with cases similar to Loebs’ and the growing popularity of the procedure.

Bruce Jenner Highlights the Legal Struggles of Transgender People

Bruce Jenner has become the most famous American to date to come out as a transgender woman. Last week, the Olympic gold medalist and star of the show Keeping up with the Kardashians appeared for a groundbreaking interview with Diane Sawyer. During the interview, Jenner shed light on a few of the many legal struggles that transgender people in the U.S. face.

Bruce Jenner Transgender RightsGender identity discrimination is prevalent in the United States. In South Carolina, the motor vehicle agency has a new policy in place after a transgender teenager sued the state for discrimination and violation of her freedom of speech in a September lawsuit. Agency workers did not allow the teen, Chase Culpepper, to be photographed for their license photo wearing makeup. The agency supported its stance with a 2009 agency rule that did not allow license photos to be taken when a person is “purposely altering his or her appearance so that the photo would misrepresent his or her identity.” Culpepper’s victory will result in license applicants to be photographed as they usually present themselves even if their daily appearance does not “match traditional expectations of an applicant’s gender,” according to court documents.

Despite eighteen states plus the District of Columbia having laws that prohibit discrimination against transgender people, most of the protection available for transgender people has resulted from court decisions that stem from Title VII of the Civil Rights Act and the Constitution’s equal protection clause. The American Civil Liberties Union believes that the First Amendment, which protects the censoring of speech by the government, “should also protect individuals’ right to wear clothes or groom themselves in ways that express their personal sense of gender.

Updating Identity Documents

Jenner has decided not to share his new name with the public yet. In order to legally change one’s name, a court ordered name change is usually necessary.

During his interview, Jenner mentioned that he plans on changing his gender marker on his driver’s license. Changing the gender marker on a driver’s license is a process that varies by state. In some states a court order is required and a letter signed by a physician stating that the person has or is currently undergoing gender transition.  A similar process is necessary for changing birth certificates and passports. However, four states (Idaho, Ohio, Tennessee and Kansas) do not allow the changing of gender markers on birth certificates.

Unanimous Supreme Court Ruling on Same-Sex Marriage Would Be the Best Thing That Could Happen for Conservatives

“It’s happening, whether you like it or not!” – Lieutenant Governor Gavin Newsom

The big news this week is that the Supreme Court is hearing legal arguments on whether states can ban same-sex marriage. The lawyers have been chosen and a two hour argument has been allocated.

SCOTUS Gay Marriage DebateAt this point, the legalization of same-sex marriage is a foregone conclusion. The Court is split between 4 liberals and 4 conservatives, with Justice Kennedy serving as the “swing” vote. However, anyone who has been paying attention to same-sex marriage knows that Justice Kennedy wrote the previous Court cases decriminalizing homosexuality and overturning the federal Defense Against Marriage Act. Justice Kennedy wrote in broad, grand, sweeping language, and recognized same-sex marriage on the federal level using every legal theory possible.

Based on precedent, Justice Kennedy would rule against same-sex marriage when hell freezes over.

The Third Path

If the Court ruled in favor of same-sex marriage 5-4, Justice Kennedy would almost certainly write the opinion. If he did, he would probably copy and paste his opinion from the case regarding same-sex marriage on the federal level and give homosexuals broad protection.

If that happens, the only way to overturn Kennedy would be to pass a Constitutional amendment or wait for another Supreme Court to take up a similar case.

For conservatives to avoid the judicial landslide, the conservative Justices on the Court would have to rule in favor of same-sex marriage and make the decision a 9-0. Why? If the Court was unanimous, then the Chief Justice could decide who writes the opinion. Chief Justice Roberts could designate another Justice to write the opinion, like Justice Scalia or Justice Thomas.

The benefit of having a conservative Justice write the opinion legalizing same-sex marriage nationwide would be that the Justice could control what rights are established. Currently, Justice Kennedy and proponents of the LGBT movement are arguing that gays should have the right to marriage. A conservative justice could write that everyone has the right to same-sex marriage.

The difference is that the LGBT approach would create a protected class of persons based on sexual orientation. This protected class could pass laws protecting other rights, like forcing pizza parlors to serve them even if it violates the business owner’s religious rights. If everyone has a right to same-sex marriage though, then no protected classes are created. Instead, same-sex couples could get married, but nothing more. Business owners would still be free to discriminate because the foundation for civil rights of LGBT would not exist.

If the Supreme Court made a unanimous ruling for same-sex marriage, the rights from that case would be as narrow as possible for all nine justices to sign off on it. Although same-sex marriage is guaranteed to happen, the Supreme Court could still shape the outcome so that the conservatives would still have a chance to win a debate.

Should Rapists Have Parental Rights?

The Daily Show did a segment on rapists and parental rights last week. Samantha Bee hugged adorable animals while dealing with the reality that women cannot terminate their rapist’s parental rights. Even though proposed laws terminating rapist’s parental rights have bipartisan support, about twenty states have yet to pass any laws regarding the parental rights of rapists.

RapeDisturbingly, many of these rapists will use child custody battles in family court as a means to drop the rape charges against them in criminal court. Many mothers will elect not to testify against the rapists rather than go through a soul-numbing child custody battle. As a result, many rapists walk out of criminal court free. The rapists don’t leave because they’re innocent though; they’re free because they used the family court to blackmail the victim.

This isn’t a small issue. According to Shauna Prewitt, an attorney who personally experienced this vicious system, about 32,000 women each year become pregnant after being raped. At least a third of them give birth and raise the child.

The Child’s Best Interest Are Not Served by Rush of Judgment

The parental rights of rapists are one of the toughest issues a family law court will face. It’s important that we have this debate. But this debate is ending in the wrong direction. The focus of a child custody dispute is, and always should be, about the child.

All press is focused on the mother. Congresswoman Schultz’s description of a nightmare scenario placed the listener in the mother’s head. “Every other weekend, you have to meet your rapist in a Denny’s parking lot and hand over your child? No, that can’t be real.” Congresswoman Schultz believed the solution was obvious. “If you’re the victim of rape, and you conceive a child, then you should be able to terminate your rapist’s parental rights.” Once again, the focus is on what the woman should be able to do, rather than what the child’s prospects could be.

Congresswoman Schultz means well, but “conception by rapist” is an emotional rallying cry for women’s rights rather than a real thoughtful assert of a child’s future. If we give a kneejerk reaction, we may miss certain problems.

The most obvious problem is that we are assuming the father is guilty. Unless the father pleads guilty or is convicted of rape, the father is not a rapist. In rape cases, one of the strongest defenses is that the woman consented to sex. Evidence is hard to come by in those cases, so it comes down to a “he said, she said” battle. In child custody cases, the parents may be so focused on fighting each other that they cannot make good decisions for the child.

Family courts use the child’s best interest standard because parents often need reminders that their fight is about their child, not each other. There are plenty of child custody cases where the mother falsely accuses the father of hitting her or stealing from her or abusing her, in the hopes that the court will give her sole custody. Family law judges and lawyers wouldn’t be surprised if a mother lies about being raped in order to gain sole custody.

I’m not saying that all women who accuse the father of rape are lying. I’m certainly not suggesting that fathers should use child custody as leverage to get out of criminal court. But rape and child custody are highly emotional topics where evidence may be hard to come by. If the mother is lying about the rape and the state terminates the father’s parental rights, it is the child who will suffer.

Instead of a unilateral termination of parental rights if the mother accuses the father of raping her, states could enact a law prohibiting parents from dropping criminal charges in exchange for child custody. It would not be in a child’s best interest to have a parent sacrifice the child so that the parent can remain out of prison. Prohibiting child custody settlements from dropping criminal charges is a solution that would protect the defendant’s criminal rights, the mother’s rights, and the child’s best interests.