Archive for the 'Family Law' CategoryPage 2 of 26

Michigan Approves Law Preventing Rapists from Obtaining Child Custody

It is the stuff nightmares are made of: the victim of a rape being traumatized all over again by being forced to do battle with her rapist over custody of the child born of the rape. This issue motivated the Rape Survivor Custody Act, which was passed by Congress in May 2015. Disturbingly, it is not uncommon for rapists to seek custody of their children conceived from rape, even while awaiting trial for the assault on the child’s mother.

In fact, before he committed suicide in prison, kidnapper Ariel Castro sought visitation with the child he fathered with Amanda Berry, one of the women he held captive and raped for years. Judge Michael Russo denied the request, stating “I just think that would be inappropriate.” However, at that time, Ohio had no laws which would deny Castro’s parental rights because of his assault on the mother of child.

It is understandable that such indignities would cause outcry and a call for change. However, well-intentioned laws aiming at preventing rapists from obtaining custody of children may wrongly deprive some defendants of due process and keep some children from knowing their fathers.

The Rape Survivor Custody Act and the Origin of Senate Bill 629

Last year, Congress approved the Rape Survivor Custody Act, which provides money to states to pass laws denying parental rights to the fathers of children conceived as a result of rape. Recently, with overwhelming support, Michigan passed just such a law. In December 2015, the Michigan Senate unanimously approved Senate Bill 629, which was introduced by Republican Senator Rick Jones.

Jones, who spent 31 years in law enforcement, called upon his own experience working with victims of sexual assault in introducing the bill. “Sometimes it’s an acquaintance rape, they don’t wish to bring charges and put the person in prison; sometimes the victim simply doesn’t want to go through the criminal trial.” Child

A reading of the text of Senate Bill 629 reflects the specific outcome it aims to prevent. The bill states that, when the mother of a child conceived of rape applies for public aid, a claim for child support from the biological father is triggered. This then presents an opportunity for the rapist to manipulate his victim by using the support dispute to pressure the victim to drop criminal claims against him. Or, he may use the dispute as an opportunity to assault and traumatize the victim all over again.

The decision of a rape victim to carry a baby to term, or choose to have an abortion, is also inextricably linked to this debate. In his support of the bill, Jones said, “I’ve actually heard of horrible cases where the rapist contacted the victim after they heard that a child had been conceived and said: ‘Get an abortion, and if you don’t, I will be going for custody.’”

How Senate Bill 629 Lowers the Evidentiary Standard

Previously, under Michigan state law, a court could terminate parental rights only once the father was convicted of sexual assault in criminal court. Senate Bill 629, by contrast, allows the family court to terminate parental rights upon petition by the victim to the family court.

A notable change that Senate Bill 629 implements is the lowering of the evidentiary standard. Previously, a conviction of sexual assault required that the prosecutor show guilt “beyond a reasonable doubt.” This means that there is a great likelihood that the accused committed the crime. While courts are hesitant to attach percentages to this standard, many believe that “beyond a reasonable doubt” means 90%, 95%, or even 99% confidence that the accused committed the crime.

Senate Bill 629 lowers the evidentiary standard to “clear and convincing evidence.” Under this legal standard, the evidence must be substantially more probable to be true rather than to be untrue (51% to 60%). This is a significantly lower standard of evidence, especially considering that the stakes, loss of parental rights, are high.

Will this Law Have Unintended Consequences?

While the motivation for laws like Senate Bill 629 are understandable, there may be unintended consequences as a result of this law and those like it.

Lowering the evidence standard means that a person accused of rape may have his parental rights terminated without being convicted of a crime, or without the benefit of a trial. That being said, rape is a notoriously under-reported crime, and the procedure surrounding rape trials is known to be extremely difficult on the victim of the crime. For this and other reasons, it is estimated that only 1 in 5 rapes are reported. However, an attempt to circumvent and alleviate a difficult criminal process for the victim of the crime may threaten the procedural safeguards put in place for the criminal defendant by the Constitution.

For example, if proceedings are held in family court, it is unlikely the accused will be provided free representation by an attorney, a right only guaranteed in criminal court. A lowered standard of proof may also run the risk of misuse or abuse by the accuser, which could result in a father losing parental rights as a result of the mere allegation of rape—which perhaps he did not commit. It is also unclear if this law applies in the case of statutory rape, which could lead to inequitable results.

Senate Bill 629 also raises questions whether the family court is the appropriate forum for these decisions. The roles of the criminal and family courts are vastly different. Family court does not consider guilt or innocence, and is not intended to be a penal system.

Also notably absent is the voice of the minor child. Disputes in family court involving child custody are held to the “best interests of the child standard.” This standard prioritizes the wellbeing and development of the minor child over the parent’s desires. Arguably, it may be in the best interest of a child to be protected from a father who seeks to victimize his mother.

However, an unintended result of Senate Bill 629 and similar laws may be that children conceived of rape are denied the future ability to decide to have a relationship with his or her own father—however difficult that decision may one day be.

Removing Permanent Alimony for Divorcing Floridians a No Go

A previous blog discussed Florida’s child custody bill that would have started divorcing parents on equal ground in a custody battle with a presumption of 50/50 custody. Governor Rick Scott, who expressed creating a promise of equal custody would put the needs of the parents before the child, vetoed the bill.  The equal custody provision of the bill got more media attention. However, an even bigger portion of the bill was aimed at removing Florida’s current law regarding alimony.

Currently, Florida allows permanent lifetime alimony. Supporters of the alimony reform want to replace permanent alimony with formulas to calculate an award that would result in a fixed end date based off the length of the marriage and the spouses’ respective incomes.

Florida Judges Have Broad Discretion to Determine Who is Entitled to Alimony, the Amount, and For How Long the Alimony Can Last.

When determining whether to award alimony, the court will consider:

  • the standard of living during the marriage,
  • the duration of the marriage,
  • the age and the physical and emotional state of each party,
  • the financial resources of each party, including the nonmarital and marital assets and liabilities distributed to each,
  • the earning capacities, educational levels, vocational skills, and employability of the parties,
  • the contribution of each party to the marriage, including services rendered in homemaking child care education and career building of the other party,
  • the responsibilities each party will have with regard to any minor children they have in common,
  • the tax treatment and consequences to both parties of any alimony award, and
  • all sources of income available to the party.

Sounds fair, right? Well, the presumption for long-term marriages, 17 years or more, is that any determined award of alimony is permanent. It’s a rebuttable presumption, so the court can disregard the presumption. Nonetheless, that’s not a burden the breadwinning spouse should have to endure. Alimony

Under the vetoed alimony reform, alimony would have had an end date, rather than an indefinite time frame. Although the current law already requires judges to take the above factors into consideration when considering an award of alimony, the reform would have taken away the discretional decision-making component and required the number to be calculated based off the formula, and thus, resulting with a fixed end date.

Current Law Allowing Lifetime Alimony Is Unfairly Applied

It’s geared at stay-at-home parents, usually the mother, who could not easily re-enter the workforce. Florida’s rationale behind alimony is that they, as a state, don’t want to support the impecunious spouse. Instead of forking up the money via welfare and food stamps, legislative intent is to look to the breadwinning spouse to provide for the non-breadwinning spouse.

Spouses are expected to maintain the same standard of living that was held during the marriage, but, in reality, that’s an insane standard. That assumes divorcing spouses will not remarry and will not inevitably have to support another spouse or 2 separate households. Had a stay-at-home spouse never gotten married and had kids, that spouse would have had to learn to support themselves. Marriage ending in divorce should not be an equivalent to a lifetime financial contract.

Additionally, many spouses are forced to work longer than they normally would have, not being able to retire, because they can’t afford to make alimony payments otherwise. How is that fair?  Current law allows spouses to ask for reductions in their alimony payment for retirement purposes, but it’s often overlooked.

Is There a Better System?

A parent that sacrifices their ability to have a career to stay at home and take care of their kids is great and, don’t get me wrong, should be given an award of alimony, but requiring an indefinite award seems excessive.

Using a formula to calculate an amount with a fixed end date seems like a more reasonable system than a permanent award, as it allows the spouse time to get back on their feet without forcing a breadwinning spouse to work beyond retirement age just to afford alimony payments. While I agree with the intent of the alimony reform bill, how the formula plays out in actual divorces may be a different story and I think there’s room for improvement.

Other than lengthy marriages that involve a stay-at-home spouse taking care of children, I don’t see a useful purpose for including length of marriage as a hard factor into the formula. While it should be considered, especially if the couple had only been married for a short amount of time, 17 years of marriage shouldn’t automatically equate to an alimony award—the length of the marriage shouldn’t be weighed as heavily in calculating a figure.

Need should be the #1 factor in the formula, as using a basic pre-determined formula may unfairly hurt the paying spouse. Earning potential, education, children, cohabitation or re-marriage, among other factors, should all definitely be considered. An exacting formula may not be the best answer and that’s why allowing judicial discretion is important, but there definitely needs to be some hardline rules or ways to incorporate formulas that won’t unfairly punish the paying spouse by requiring lifetime alimony.

Florida’s current guidelines aren’t bad; it’s more the execution of allowing lifetime alimony awards that’s hurting breadwinning spouses. With the veto of the bill, it’s unclear whether any kind of alimony reform will happen in the foreseeable future.

San Francisco Now Leading Country in Paid Family Leave

In a unanimous vote, the San Francisco Board of Supervisors passed a law mandating up to 6 weeks of fully paid family leave for new parents. Not only does this new legislation provide much needed support for mothers, but it applies to fathers and, as the icing on the cake, same-sex couples as well!  I wouldn’t really call it progressive, as U.S. policy on paid family leave is pretty much non-existent compared to other countries around the world, but it’s definitely an advanced step in the right direction for the U.S.

The State of California currently has a Paid Family Leave Program that pays up to 55% of an employee’s salary for up to 6 weeks, but on the heels of the Board’s legislation, Governor Jerry Brown signed a bill expanding that benefit to up to 70% of an employee’s salary. The programs expansion will take effect in 2018.

Who’s Eligible?

The legislation applies to all covered employees, which is defined as:

  1. Someone who is eligible for a Paid Family Leave claim,
  2. Someone who started with a covered employer at least 90 days prior to the start of the leave period,
  3. Someone who performs at least 8 hours of work per week for the employer within the city (you must work in the city, but you are not required to live within the city),
  4. Someone who works at least 40% of their total weekly hours for that covered employer within the city.

That’s right folks—in the midst of recent anti-LGBT laws throughout the country, this legislation doesn’t discriminate. Anyone who meets the above criteria will be covered.  Being eligible for a Paid Family Leave claim falls under California’s disability insurance laws, but basically you have to have been employed prior to the leave period and would suffer a loss of wages when you need to take time off work to bond with a new child. This includes any new child, biological or adopted.

Very Few Employers Exempt

Government entities and employers with less than 20 employees are exempt, which means any private or non-profit business with 20 or more employees anywhere in the world will be considered “covered Paid Family Leaveemployers” and required to fork up the additional amount not covered by the State’s disability insurance program. Companies with less than 50 employees will be required to implement the legislation starting in 2018, while companies with more than 50 employees are required to begin January 1, 2017.

Where’s the Money Coming From?

The Paid Family Leave program is an extension of the State’s disability insurance program, which means 55% of the money comes from a tax on employees. Almost all private, and many government and non-profit employees, contribute to the states disability insurance program.  In fact, in order to be eligible to apply for paid family leave, the employee must have paid at least $300 worth of withheld taxes to the program (or if unemployed, you had to be looking for work). Until the Board passed this legislation, new parents were out the remaining 45% of their income.

Under the new expanded Paid Family Leave coverage that will take effect in 2018, workers making minimum wage will be eligible for 70% of their pay while on leave; employees making more than minimum wage will be eligible for up to 60% of their pay.

This means the remaining 30-40% will come from the covered employers. The Board’s bill is currently awaiting Governor Brown’s approval, but it’s expected he’ll sign.

There’s a Downside, but the Benefits Outweigh the Negatives

The biggest downside is the increased responsibility on behalf of the businesses, especially small businesses that may already be struggling. According to the Office of Economic Analysis Impact Report, the law increases the cost of hiring, increases employer compensation by close to $16 million (at a minimum), will reduce the cities jobs, will cause slow job creation and replacement, and would create negative multiplier effects on the local economy.

Only 55% of employees that claim assistance under the Paid Family Leave program actually live within San Francisco, which means the remaining 45% of non-resident employees will inevitably be spending, at least some of, the extra income outside of the city, which, in turn, negatively impacts those small businesses within the city that are footing the bill.

On the plus side, the law would create an additional $26.5 million in household income for San Francisco employees, which is much needed in an area where the cost of living is ever increasing. Although a broad step in the right direction for the U.S., it’s a modest one by global standards.

The U.S. is the only developed country in the world that doesn’t guarantee paid leave to new parents. The Family and Medical Leave Act only covers 12 weeks of unpaid leave. With New York recently mandating 12 weeks of paid leave for parents at 50% of their income, California is among only 2 other states offering paid family medical leave.

Although 12 weeks of paid leave for fathers ranks fairly well among paternity leave in other countries, the average number of weeks offered for maternity leave in countries around the world is 54. That’s 54 paid weeks for mothers.

Mississippi Adoption Agencies May be Able to Deny Placement of Child Based on Premarital Sex

Remember when businesses could refuse service to African-Americans? Mississippi has just passed a religious freedom bill that puts a halt to any progression made in the LGBT community since Obergrfell v. Hodges and it sure reminds me of when blacks were segregated from whites. Will we ever learn from past mistakes?

The bill, known as the “Protecting Freedom of Conscience from Government Discrimination Act”, essentially allows both public and state employees to discriminate against anyone they believe doesn’t align with their religious beliefs. House Speaker Phillip Gunn stated he wrote the bill in response to the jailing of Kim Davis for refusing to issue marriage licenses to same-sex couples after Obergrfell.

Upon signing the bill, Governor Phil Bryant stated it was, “to protect sincerely held religious beliefs and moral convictions…from discriminatory action by state government,” and that the bill “merely reinforces” existing religious freedom rights without limiting any constitutional rights.

The LGBT community will take the biggest hit from this bill, but many are overlooking an even smaller portion of the bill that focuses on adoption agencies. Essentially, adoption agencies, whether public or private, will be able to discriminate against potential adopting parents if they believe those parents are having premarital sex. Say what?

A Closer Look at the Bill

The actual text of the bill states:

“Section 2. The Sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that:

(a) Marriage is or should be recognized as the union of one man and one woman;

(b) Sexual relations are properly reserved to such a marriage; and

(c) Male (man) and female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

Now on it’s face, it looks like the State of Mississippi is promoting, or rather supporting, this belief. What the bill actually says is that the “state government shall not take any discriminatory action against a religious organization…” that promotes or does business based upon personal and religious beliefs.

Discriminatory action on behalf of the government means the government cannot change tax treatment, take away previously allowed rights, contracts and benefits, fine, charge fees, or refuse to hire, among many others, anyone that refuses service based upon their religious beliefs. The bill isn’t necessarily promoting this belief so much as they are granting protection from governmental backlash.

Still seems a bit backwards though doesn’t it? The bill further reads:

“Section 3. (2) The state government shall not take any discriminatory action against a religious organization that advertises, provides or facilitates adoption or foster care, wholly or partially on the basis that such organization has provided or declined to provide any adoption or foster care service, or related service, based upon or in a manner consistent with a sincerely held religious belief or moral conviction…”

It’s broadly written, which means adoption agencies could essentially deny placement of a child on the basis of the agencies religious beliefs that sex is reserved for married couples. Is this going to be on a pre-adoption questionnaire?  Asking whether someone is having sex outside of marriage would be a violation of the right to privacy, but the agencies could just assume certain people are engaging in premarital sex.  Sounds a whole lot like religious discrimination, doesn’t it? Let’s look at an example to see how this could actually play out.

  • Bill and Cindy want to adopt a child. Both have good jobs and would be excellent parents, however they don’t believe in marriage and, instead, live together as domestic partners.

A “religious organization” under the bill includes a “religious group, corporation, association, school or educational institution, ministry, order, society or similar entity…” Adoption agencies are run by either public (state) or private entities, which means privately held companies run by religious organizations could refuse their services to anyone they want under the freedom of religion umbrella.

  • An adoption agency with firmly religious roots finds out that Bill and Cindy are not married and since they strongly believe sexual relations are reserved for married couples, they choose to deny placing a child with them.

The Bill Might Not Actually Violate Any Rights

The Federal Civil Rights Act of 1964 prohibits discrimination by privately owned places of public accommodation on the basis of race, color, religion or national origin.

A couple’s ability to parent should not rest solely on the basis of religion or marriage. However, while the act itself of discriminating based upon religious beliefs is a violation of the Act, maybe even a violation of the right to privacy, the text of the bill itself may not be violating any rights because it only prohibits the government from taking governmental action against those that choose to discriminate, rather than having the government itself be the discriminating party.

Whether the application of the bill plays out as written is a different story. If applied discriminatorily, it won’t matter how the text of the bill is written.  That’s going to be a key distinction when this bill is inevitably challenged.  Those that the bill affects will have to take suit up with the individuals discriminating, rather than with the government.

Native American Heritage Over the Best Interests of a 6-Year Old?

A 6-year old was removed from her foster family after living with them for nearly 4 years because she is 1.5% Choctaw.

Alexandria, nicknamed “Lexi”, was removed from the custody of her biological parents at the age of 17-months. Her mother had substance abuse problems, while her father has an extensive criminal history. Both have lost custody of other children.

Since her father is an enrolled member of the Choctaw tribe, the tribe gets a say in where Lexi is placed. The Choctaw tribe agreed to send her into foster care in order to “facilitate efforts to reunify the girl with her father.” Reunification attempts with the father ultimately failed and the tribe recommended Lexi be placed with a family in Utah who has custody of Lexi’s half-sister.

Lexi ended up in the care of the Page family. The 2-year old bonded with the Pages and quickly became a member of the family. Although aware that Lexi was always meant to be a temporary foster child, the Pages fell in love with Lexi and quickly tried to adopt her, which triggered a legal battle.

A Los Angeles County Superior Court ruled Lexi be placed with the Utah relatives. Lexi would have originally been 3 or 4 when placed with the Utah family, but

the Pages made attempts to appeal the decision. By the time an Appellate Court stay preventing Lexi’s removal from the Pages was lifted, Lexi had already turned 6.

What is the ICWA?

The Indian Child Welfare Act is a federal law enacted to promote keeping American Indian children with American Indian families. The purpose is to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” Lexi Page

A high number of Indian children were being removed from their families and being placed in non-Indian families with zero Indian culture and, thus, tribal survival was threatened. Congress recognized that what’s in the best interests of a non-Indian child is not necessarily what’s in the best interests of an Indian child. As a result, Congress enacted the legislation on the basis that the interests of tribal stability are just as important as the best interests of the child.

The kicker here is that the Utah relatives are not American Indian and are only related to Lexi through the father’s step-grandfather. That doesn’t seem to effectuate the purpose and intent of the law in the first place.

Wait a Minute…

Something seems wrong here. Isn’t the purpose of all custody cases to keep families together if possible?  Don’t get me wrong, keeping culture and heritage alive is important, but, the entire purpose of creating the best interest standard is to do what’s actually best for the child, not necessarily what’s best for the family or its heritage.

Sometimes, keeping families together isn’t always possible and certainly isn’t always what’s in the child’s best interest. Had Lexi been placed with her relatives at the time she was removed from the custody of her parents, then I’m all for it.  Removing Lexi after 4 years from the only family she ever knew does not seem to be in her best interests. The LA court stated that Lexi was not likely to suffer emotional harm after being taken away from her foster family.

Don’t let them take me. I’m scared.  I’m scared.  Don’t let me go.”

Those were the words Lexi spoke to her foster father and those don’t sound like the words of a child not suffering emotional harm. Clearly, Lexi had some awareness of what was happening and the fact she was able to recognize she was going to be taken away from her family seems counterintuitive to the court’s reasoning.

There’s Probably No Solution That Will Make Everyone Happy

A child’s cultural identity should not play a factor into a custody decision. Period.

However, this law is in place and because the purpose of the law is to preserve tribal culture, I want to reiterate the fact Lexi’s extended relatives have nothing to do with American Indian culture. Once the reunification attempts with the father failed, the best interests of the child standard should have taken control, not the ICWA law.

Although support and opportunity for interaction with extended family members is a factor, the best interests of a child also includes a need for continuation of a stable home environment, the interaction and interrelationship with members of the household, and an adjustment to school and community.

Despite the fact the Utah family made monthly visits to California to spend time with Lexi, she had become a part of the Page family, had grown close to her new brother and sisters, and had become a part of the community. She became attached to the Pages.

Page Family to Continue to Appeal

The Page family plans to exhaust all possible avenues at the state level, including appealing to the California Supreme Court.

The case is similar to a 2013 United States Supreme Court case involving the same ICWA law. The Capobianco family adopted a child at birth with the mother’s consent. Unbeknownst to the family, the father was unaware of the adoption. When the biological father learned of the adoption, he tried to assert his custody rights under the ICWA. The Supreme Court sided with the adoptive family, stating the biological father could not rely on the ICWA when he never had legal or physical custody at the time of the adoption proceedings.

In Lexi’s case, the father once have custody, and all reunification attempts had failed, which means the Pages may have a chance in a reversal of the LA court decision.



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