Law Blog

In the past 12 months LegalMatch.com has received tens of thousands of customers seeking child custody attorneys. I was curious how the majority of these customers were related to the children involved in these custody disputes. After looking into our database, this is what I found:

• 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.

Traditionally, it was assumed that teens accounted for most out-of-wedlock births.  However, the National Center for Health Statistics reports that the teen birth rate in the U.S. has declined to an all-time low, while unwed women in their 20s are increasingly having children.  These figures reflect the fact that more people in America marry later in life or cohabitate with their significant other without taking marriage vows at all.

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.

In early November, Vincent Romero and his roommate Timothy Romans were found shot to death in Romero’s Arizona home.  Police have charged Romero’s eight-year-old son with two counts of first-degree murder, and are relying heavily on a videotape in which the boy confessed to the homicides without his mother or lawyer present.  The boy’s attorney argues that the confession was coaxed, and a number of child psychology experts have questioned its reliability as well. 

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.

Recently Nebraska amended its controversial Safe Haven Law, after it led to alarming consequences reflecting a shortcoming in social services resources.  The law at issue (Legislative Bill 157 or LB 157) permitted parents to leave children up to 17 years old with a state hospital without facing criminal liability.  Since the law went into effect in September 2008, 35 children were abandoned at hospitals across the state:  the majority of them were at least 11 years old, and many of them were afflicted with substantial behavioral conditions.  Furthermore, parents from outside the state traveled to Nebraska to leave their children in the state’s care. 

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.

A Florida Circuit Court has ruled that homosexuals can now legally adopt children in the state of Florida. (Thanks to How Appealing for the story). Florida was the only remaining state in America that banned people from being adoptive parents based solely on their sexual orientation. The court’s historic decision overturned the law on state equal protection and substantive due process grounds.

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.