Anyway… recently, I ran into an old friend, Joey, from high school and we ended up talking about his life since I last saw him.  Joey was a pretty popular kid when we were in school together.  Despite the fact that our school didn’t have very strong sports teams, Joey was a star-player on our school’s basketball team nonetheless, which is why he was also popular among a lot of the female students.  And in our senior year, Joey hooked up with Deborah, a shy, yet nice girl from our school.  Everyone thought they were the cutest couple and that they were headed to good successful places.  So when Joey told me that he was getting divorced, I was shocked.  Even more surprising was when he told me how things between he and Deborah had soured to the point where they were no longer talking and that he was locked in a bitter custody battle with her.

I was shocked, even more shocked than when I discovered the drying power of ShamWow!

Joey wanted to have primary custody of the children.  He told me how other divorced guys he knew all either lost complete custody of their children or were limited only to visitations rights.  Joey didn’t want to keep Deborah from seeing their children.  In fact, he wanted her to be a very active part in their lives.  But what he didn’t want was to become like all the other divorced dads he knew.  He didn’t want to be limited to only visiting his children because he was worried that it’d make his children distant.  He wanted to know what his options were.

Well, I didn’t know what to tell him since anyone in or heading toward a career in lawyering knows that the answer to every legal question is that “it all depends.”  Laws can be ambiguous and outcomes vary all the time and are dependent on a number of things as facts can always be distinguished to appear different from other cases tried before it.

Generally, in California and most states, courts usually award custody to the primary caregiver, meaning the person who spends the most time with the child.  Usually that translates to the person who doesn’t hold paid employment and raises the child, but when both parents work, like in Joey’s case, it comes down to fitness and a calculation of time spent with the child.

Joey isn’t alone in his predicament.  A vast majority of family law cases received by LegalMatch are about child custody battles.

The best advice I could give to my friend was to seek the counsel of a qualified family law lawyer.  Because regardless of the legal situation, case outcomes are not always predictable.

Child Custody Battles In My Own Backyard is a post from: LegalMatch Law Blog

However, this post from the Wall Street Journal Law Blog shows what can happen when the legitimate mission of state Child Protective Services agencies can become sidetracked by puritanical hysteria.

According to the post, parents took innocent pictures of their children in the bathtub. When they went to a local Wal-Mart to have the pictures printed, an employee decided that these pictures constituted child pornography, and turned them over to the police.

The parents were arrested, and their daughters were taken away from them for over a year. During that time, they were required to register as sex offenders. The couple spent $75,000 in legal fees, and the mother was suspended from her job. According to recent interviews with the parents, it took a long time before they were comfortable taking any pictures of their children again, regardless of the setting.

In the end, they were cleared of all wrongdoing, the charges were dropped, and their children were returned after a year living away from their parents.

All sane people recognize that sexual exploitation of children is one of the most evil and disgusting things that human beings are capable of. I don’t know exactly how pervasive the problem is, but one instance of it is one too many. I also don’t know what has happened to our society that people would consider innocent pictures of children, the type which the vast majority of parents take, could be construed as child pornography by any person capable of obtaining employment (even if it is a job at Wal-Mart’s photo department) as child pornography.

Furthermore, this case used up limited resources that could have been used to investigate and prosecute actual instances of child sexual abuse. An argument could be made that, because of the actions of this employee, and the decision of the police and CPS to pursue this frivolous investigation for so long, real cases of abuse went unpunished, and children suffered as a result.

According to recent LegalMatch statistics from the last 12 months, reports of child abuse continue to be common. In most of the cases, the alleged abuser was a parent or someone else who had a confidential relationship with the child, such as a teacher or coach. This demonstrates the need for a robust system that protects children from abuse, and that any frivolous allegations should be dismissed, after being sufficiently investigated, lest real cases of child abuse go unpunished.

Better Safe than Sorry? When Puritanical Hysteria Harms Children is a post from: LegalMatch Law Blog

This case raises quite a few interesting legal issues, not the least of which being whether a Florida court even has the jurisdiction to rule on the parental rights of a family in Ohio.

However, it also raises other legal and practical issues: there does not appear to be much evidence supporting this girl’s claims. On the other hand, the allegations are extremely serious. What weight should be given to such allegations? In cases such as this, should there be some sort of sliding scale that decreases the standard of proof as the severity of the harm alleged increases? This may make logical sense, but raises many practical issues, as well.

This girl is 17 years old, meaning she will be 18 in less than a year, at which point she’ll be legally able to sever any relationship she has with her parents. Whatever the merits of her allegations (again, there does not appear to be any concrete evidence supporting them at this point), it is clear that her relationship with her parents is less than perfect. Would anybody’s interests be served if she were forced to return to her family, when she could legally move out in a matter of months? Given what we currently know about the facts of this case (not much, at this point), it seems that, whatever her reasons, she will probably choose to leave her family when she is legally free to do so.

On the other hand, if her testimony lacks any credibility, and she cannot articulate any other reasons that a court should terminate her parents’ custody over her, a court might reasonably conclude that this is simply a case of teenage angst taken to extremes.

If this girl is telling the truth, the sad fact is that her story would not be a new one, though the particular facts are unique. According to LegalMatch case data, the majority of recent cases with issues of child abuse involved alleged abuse by a parent or stepparent. While we don’t know if this girl’s allegations are true, if they do turn out to be true, it wouldn’t be the first nor the last time, unfortunately.

Religion and Child Custody is a post from: LegalMatch Law Blog

This case raises quite a few interesting legal issues, not the least of which being whether a Florida court even has the jurisdiction to rule on the parental rights of a family in Ohio.

However, it also raises other legal and practical issues: there does not appear to be much evidence supporting this girl’s claims. On the other hand, the allegations are extremely serious. What weight should be given to such allegations? In cases such as this, should there be some sort of sliding scale that decreases the standard of proof as the severity of the harm alleged increases? This may make logical sense, but raises many practical issues, as well.

This girl is 17 years old, meaning she will be 18 in less than a year, at which point she’ll be legally able to sever any relationship she has with her parents. Whatever the merits of her allegations (again, there does not appear to be any concrete evidence supporting them at this point), it is clear that her relationship with her parents is less than perfect. Would anybody’s interests be served if she were forced to return to her family, when she could legally move out in a matter of months? Given what we currently know about the facts of this case (not much, at this point), it seems that, whatever her reasons, she will probably choose to leave her family when she is legally free to do so.

On the other hand, if her testimony lacks any credibility, and she cannot articulate any other reasons that a court should terminate her parents’ custody over her, a court might reasonably conclude that this is simply a case of teenage angst taken to extremes.

If this girl is telling the truth, the sad fact is that her story would not be a new one, though the particular facts are unique. According to LegalMatch case data, the majority of recent cases with issues of child abuse involved alleged abuse by a parent or stepparent. While we don’t know if this girl’s allegations are true, if they do turn out to be true, it wouldn’t be the first nor the last time, unfortunately.

Religion and Child Custody is a post from: LegalMatch Law Blog

According to the U.S. Department of Health and Human Services (U.S.D.H.H.S.), during fiscal year 2007, an estimated 794,000 children were victims of child abuse or 10.6 children for every 1,000 children in the population nationally.[2]  Not surprisingly, during the past five years, over 3,500 customers have consulted LegalMatch in an effort to find an experienced personal injury attorney to help them bring suit against a child abuser.

Child abuse ranges from physical neglect (59%), physical abuse (10.8%), sexual abuse (7.6%), and psychological abuse (4.2%), to being medically neglected and multiple categories of neglect.[3]  While the majority of children abused were under age 11 (75%), 25% of children were age 11 to 17 and there was a near equal split of gender.  Slightly more female children (52%) were abused than male children (48%).[4]

But, just who are these perpetrators of child abuse? 

The majority of perpetrators of child abuse, according to U.S.D.H.H.S. were parents, step-parents or adopted parents, accounting for 86.5% of all child abusers.  While this may sound surprising, LegalMatch.com data bears this out (see Figure below) with about 62% of perpetrators reported as being “in the family.” 

The majority of family members reported are the biological parents; abusers are fathers and mother alike. This is no different than national data.[5]  Unlike national data, LegalMatch customers also report a high percentage of family friends or acquaintances (17%) being responsible for child abuse.   This is echoed in the story about Seth Ireland.  Despite movies like “Doubt,” priests/pastors, doctors and other professionals count among the smallest category of child abusers; but they still do count.  Moreover, there is no socio-economic level immune to child abuse.[6]

Makeup of Perpetrators of Child Abuse on LegalMatch.com

Victims of child abuse suffer life-long consequences from being substantially more likely to become abusers of drugs or alcohol than non-abused children, to suffering from depression and post-traumatic stress disorder to becoming perpetrators themselves.[7]  It takes considerable courage and a heavy emotional toll for the child-victim or the parent or guardian of the child to report abuse.  But, count on the toll being much heavier for all concerned if the abuse continues unspoken and unreported.  

To report child abuse, contact your state Department of Child Protective Services. LegalMatch can also help you find an experienced personal injury lawyer to assist you in bringing a private lawsuit against the individual being charged.  Or, if you, yourself, are being accused of child abuse, LegalMatch can help you find a seasoned criminal defense attorney to help. 

Related Links:

• Child Welfare Information Gateway
• Child Help National Abuse Hotline

[2] U.S. Dept. of Health & Human Services, Dept. of Children’s Services, Child Maltreatment 2007

[3] U.S. Dept. of Health & Human Services, Dept. of Children’s Services, Child Maltreatment 2007

[4] U.S. Dept. of Health & Human Services, Dept. of Children Services, Child Maltreatment

[5] U.S. Dept. of Health & Human Service, Dept. of Children Services, Child Maltreatment 2007

[6] Child Help National Abuse Hotline

[7] Child Help National Abuse Hotline

Child Abuse – The Unspoken Subject is a post from: LegalMatch Law Blog

• 48% were the child’s mother 
• 44% were their father
• 5% were grandparents
• 2% listed themselves as “other”
• Less than 1% were step-parents

Not too much of a surprise there: the vast majority of these people are the child’s parents.

These statistics also closely match a Census data footnote reporting that as of 2007, more than 6% of children were living with their grandparents. Hopefully the courts hearing these child custody cases from grandparents are not unfairly giving them less benefit of the doubt due to preconceptions of what a family is “supposed” to be. The rise in “grandfamilies” and grandparents contesting child custody may be based on the modern realities of single parent households according to the Wall Street Journal.

But wait a minute… are the WSJ’s terribly lit pictures and ominous statistics supposed to indicate that grandparents raising kids is some kind of bad development? (Not necessarily; the point instead seems to be bemoaning the economic hardships facing senior parents.) I would welcome more involvement of grandparents in child rearing. Half of my family is one generation removed from a non-western social model where this kind of family was the norm. The household was mom, dad, their mom and dad, maybe even their mom and dad, and the kids.

In my view it is unfortunate that the American nuclear family is a one generation family.  Will times like this make Americans reevaluate our own social engineering? Probably not, but it can’t hurt to establish a dialogue about it. Although the nuclear family encourages mobility and individualism, (and thus buying more stuff) creating cohesive family units and support structures may be more important now than it has been in a while. I’m not peddling some cryptically hidden “family values” social agenda, but if you’re a young professional or a young newly married couple thinking of making the big move away from mom and dad, give it a second thought. Extended family networks, rather than things like day care and babysitters, could come in handy.

Most Common Relationship to Children in Child Custody Disputes is a post from: LegalMatch Law Blog

Out-of-wedlock births have been on the rise since the late 1990s.  There were over 1.7 million households consisting of unmarried couples with children in 2004, compared with just 200,000 in 1970.  According to a report conducted by the Pew Research Center, almost 37% of children in the U.S. are born to unmarried women, and 47% of adults between the ages of 30-50 have cohabitated with a significant other at some point in their lives.  Currently, approximately 50% of children are born to unmarried, cohabitating couples, while in 1993, only about 33% were.

LegalMatch statistics, compiled from online intake reports completed by respondents across the nation, support these numbers.  According to 2008 LegalMatch case data, 40% of couples involved in child custody disputes are living together and have never been married to one another.  About 12% of respondents (comprised of men and women) chose “other” to describe their relationship status; a significant number of these “other” respondents stated that they are cohabitating or have cohabitated with their child’s other parent in the past, but never married him or her.  About 9.5% of respondents answered that they are separated and haven’t yet filed for divorce, while 7% stated that they are divorced and now married to someone else.  Finally, 6.7% stated that they are divorced and they, as well as their spouse, are living alone. 

Notably, fathers aren’t necessarily absent from the homes of unwed mothers.  A 2002 report conducted by the National Center for Health Statistics showed that about 20% of new mothers under age 20 were unmarried yet cohabitating with the father of their child at the time of birth. 

While younger adults have expressed less moral concern over out-of-wedlock children and cohabitation, many older adults have expressed significant concern over these trends.  Perhaps as part of a backlash, Arkansas and Utah have expressly barred unmarried couples from adopting, but these statutes may reflect a prejudice toward homosexual parents rather than any bias against unmarried couples in general.

LegalMatch Cases Prove Unwed Women Having More Children is a post from: LegalMatch Law Blog

The interview shows the boy changing stories, and talking calmly to investigators about the incident.  About forty-five minutes into the hour-long interview, he claims that an unidentified assailant shot both men, and that he later shot them in order to end their suffering.  

Child trauma experts have long-asserted that children are often unreliable witnesses: they may make up elaborate stories, confess to crimes they did not commit, or deny committing crimes when they are in fact guilty.  Children exhibit this behavior because their brains haven’t fully developed, they cannot make complete sense of questions, and they often feel pressured to answer in a way that they believe will please the adult interrogator.  When children are not accompanied by a parent or guardian, they are especially likely to give unreliable answers as they feel more vulnerable and less confident.

Under Arizona law, children are generally considered to lack the competency needed to be charged with homicide.  In this case, however, police are charging the boy with double homicide due to the exceptional facts and circumstances. 

In addition, it’s unclear whether the boy is legally competent to stand trial.  In order to be deemed competent, a child must be able to comprehend his rights and the consequences of his decisions; in addition, he must be able to participate meaningfully in his defense.  Given these criteria, are eight-year-olds ever competent to stand trial?

If a court-appointed psychologist finds that the boy is not competent, and he cannot be rehabilitated within nine months, Arizona law mandates that the charges must be dismissed.  The state would then have the option of seeking to have the boy committed in civil proceedings.

In this case, the prosecutor is attempting to put one of the homicide charges on hold until boy turns 15 and can be tried as an adult.  If this tactic works, instead of facing juvenile detention until age 18, the boy will face life in prison without the chance for parole. 

Given the severe consequences this boy may face, along with the unreliability of his confession and questionable ability to stand trial, the state should definitely be required to present more concrete evidence that he is indeed guilty.

Third-Grader May Face Life In Prison Without Parole is a post from: LegalMatch Law Blog

Nebraska’s amended law, which contains an age limit of 30 days old, now conforms to nationwide norms as well as the purpose behind safe haven laws.  Safe haven laws were enacted to protect young children from immediate danger, not as a way to deal with misbehaving or difficult children.

Questions have been raised as to what will happen to the 35 children who were abandoned during the time when LB 157 was in effect.  Under LB 157, parents cannot be prosecuted for abandonment by leaving their children at a licensed Nebraska hospital; yet, these parents could face other charges and consequences.

For example, if authorities discover that a child was subjected to abuse or neglect before being left with the state, County Attorneys have the choice to file charges.  Additionally, parents who abandoned their children will not be free from all parenting responsibility.  Courts regularly make parents to take parenting classes, participate in therapy, and engage in conflict resolution education – all in an effort to eventually reunite with their children.  Moreover, parents may need to pay child support while their children are in state custody. 

Although Nebraska’s simplest option (a.k.a. LB 157) is no longer available to parents, this is probably a good thing – so long as other resources are offered and made easily accessible.  If not, however, children face the very real prospect of neglect, abuse, or worse.  Some may claim that parents shouldn’t be able to hand off their parental responsibilities to the state, but if social services are not made available, innocent children – and ultimately society at large – suffers.  Therefore, authorities should make parents aware of their options, and not be judgmental when they seek help. 

For now, parents can get state assistance by calling social services, 211, or local United Way organizations.  Parents can also visit their local DHHS office online.  Various resources within the community, including parent support groups, crisis hotlines, faith-based organizations, and treatment centers, can be helpful.  Finally, parents may contact law enforcement after exhausting other options, or if other options are simply not feasible.

Fixed But Still Broken is a post from: LegalMatch Law Blog

A Florida couple sought to adopt two foster care children that had been in their foster care for four years. Even though adoption officials unanimously agreed they were qualified and excellent parents, state law compelled them to decline their application because they were gay. (The particularly alarming facts concerning the children’s prior neglect can be found in the opinion here.)

The couple challenged the law prohibiting their adoption as unconstitutional. They claimed it violated fundamental rights guaranteed to children by Florida law and state equal protection guarantees. The court agreed.

The court recognized that Florida guarantees children permanency in an adoptive home. Uprooting children from foster care parents seeking full adoption can only be done for the best interests of the children. In this instance, denying qualified, loving foster care parents seeking full adoption-for no reason other than their sexual orientation-was not narrowly tailored to serving the best interests of the children. (As opposed to, say, discovering that the foster care parents are actually convicted felons.)

Florida’s ban also lost on equal protection grounds. According to government attorneys, Florida prohibited homosexual adoption to promote the well being of children, lessen the stigmatization of children raised by gay parents, and to uphold society’s “moral interests.” The court made significant findings of fact that none of the government’s stated interests were furthered by banning homosexuals from being adoptive parents. The court furthermore held that legislating moral interests-absent some other legislative purpose-was outside the province of government regulation. (I suspect only the hardcore legal philosophers among you will find this at all controversial.)

The decision is significant for a variety of reasons. First, this comes on the heels of Florida’s recent gay marriage ban. Second, child rearing and the importance of having a “traditional family” is often one of the arguments advanced by those who seek to limit gay marriage. A holding that government discrimination against homosexual parents cannot even pass a rational basis analysis severely undercuts arguments advanced by anti-gay marriage advocates regarding the importance of maintaining the “sanctity of marriage.” On the whole, even though Florida was the sole remaining state prohibiting adoption based solely on sexual orientation, the decision is definitely a positive development in advancing the rights of gays and lesbians in America.

Florida Overturns Ban on Gay Adoption is a post from: LegalMatch Law Blog