Archive for the 'Family Law' Category

Parents Head to Court to Stop Transgender Teen from Receiving Hormone Treatment

A big assumption in family law is that the parents of a child will act in the child’s best interests. This is generally true, but there are corner cases that have grabbed national headlines. Parents that refuse to vaccinate their children, decline blood transfusions, and other medical decisions are controversial, especially if their child dies as a result of their decision. A new case in Ohio features another medical parental controversy, but with a culture war twist:

A 17 year old unnamed teen (unnamed for legal reasons) was hospitalized in 2016 for depression, anxiety disorder, and gender dysphoria. According to medical personal who examined the teen, he is suicidal because his father refuses to call him by his chosen name and his parent’s rejection of the teen’s gender identity. He is currently in the temporary legal custody of state family services and lives with his maternal grandparents, who are supportive of his gender identity. He has expressed a desire to stay with them.

transgender teen The medical team at the hospital recommends that the unnamed teen receive hormone therapy. His parents believe these hormone treatments would be pointless. The teen’s court appointed attorney and grandparents accept the recommendation of the hospital, which testifies that the hormone treatments are necessary to save the teen’s life.

Whose Best Interests?

There are two arguments in support of custody. Brinkman, the parent’s attorney, argued “it does not appear that this child is even close to being able to make such a life-altering decision at this time.” Brinkman has a point, since he is, according to the hospital, under severe medical distress. Making life-altering decisions while he is under such stress is not recommended. Calling him a child is disingenuous, since he is 17. However, given that he will soon be an adult anyway, it might be prudent to wait a year before making any major decisions. That year would also serve as a “cooling off” period so that he can think about his choice before making it.

There may be another reason the parents don’t want the teen to receive hormone treatment. The state alleges that the “Father testified that any kind of transition at all would go against his core beliefs and allowing the child to transition would be akin to him taking his heart out of his chest and placing it on the table.” The state is forbidden from restricting a person’s right to exercise their religion.

However, religious beliefs should not play a role when determining whether another person should receive medical treatment. The Father may have sincere religious beliefs, but if his almost adult child believes differently, the Father cannot justify his medical decisions based on his religious beliefs. This would effectively put the Father’s beliefs over the child’s best interests, a departure from the foundations of child custody.

How Will This Issue Play Out?

The parent’s attorney attempts to sidestep this issue by arguing about the rights of a parent. “If the maternal grandparents were to be given custody, it would simply be a way for the child to circumvent the necessity of parents’ consent.” This argument puts the cart before the horse. The parents act on behalf of the child because the child is not legally able to make his own decisions, but the child will be a person independent of his parents.

Parental consent is required only because the parent is the person who is able to make an informed decision for the child’s best interests. If the parent is not acting in the child’s best interests or is unable to make an informed decision, there’s no reason to obtain the parent’s consent.

Religious conservatives might see this case as a threat to the custody of their own children. The state can force them to inject their children with drugs and now it wants to change their genders. Even in this case though, there is plenty of due process. First, this was an extraordinary case where the child was diagnosed with depression, anxiety disorder, and gender dysphoria.

Most children will not suffer from this level of mental health issues. Second, the child has been examined by medical experts from the hospital and by court appointed attorneys. These types of decisions will not come down solely to a judge – there will be due process and experts who have examined the child.

Finally, the parents have an opportunity to present their side of the story. They were allowed to testify to the court and their own attorney is advocating on their behalf. At least one party will walk away unhappy, but their voice will be heard.

Pennsylvania Wants to Expand Grandparent Rights

The opioid epidemic in Pennsylvania has resulted in families without mothers and fathers to raise the children. Grandparents are often the only family members who can watch the children while their parents are in rehabilitation or in prison. However, most state laws make it difficult for anyone other than the other parent to obtain custody, even temporarily, of a child. Pennsylvania is no exception – but a new bill might change that.

Why Does PA Want to Change the Law?

Current Pennsylvania guardianship law assumes that both the mother and father are capable of taking care of the children. In order to establish even a temporary guardianship, both parents, if alive, must consent. Few parents want to admit they are incapable of taking care of their children, so obtaining consent from both parents is often a challenge. A court can order a guardianship in lieu of parental consent, but most judges are very hesitant to take such drastic action without clear and convincing evidence. As a result, the current grandchild custody process in Pennsylvania is very expensive and many grandparents cannot afford the legal fees necessary to obtain guardianship of their grandchildren. Still, approximately 90,000 grandparents are raising more than 195,000 grandchildren in Pennsylvania.

Rep. Eddie Pashinski and Wilkes Barre have proposed a state bill that would facilitate temporary guardianship of grandchildren while the parents are in a patient institution or having a medical emergency. The bill would give grandparents legal standing to bring a petition for guardianship, whereas previously only the other parent had standing to do so. The bill would also allow the court to waive filing fees if such fees would be a financial burden on the petitioner.

grandparentsRep. Pashinski has stressed that background checks and a court hearing would still be part of the process. The court would still be required to consider the child’s best interests. Guardianships would be for sixty (60) days unless a court approved an extension for up to a year. The grandparent could then access the child’s medical information or enroll the child in a school while the parent is recovering or rehabilitating. The bill is still in committee and would likely be voted on next year.

Can Custody Really Be Temporary?

Pashinski’s bill is commendable, but its structure leaves some questions. Opioid treatment can take up to a year, but some people who go through drug addiction can take a long time to recover. 91% who go through treatment relapse into old habits, prolonging the time it may take to completely treat the addiction.

If opioid addiction is potentially a long-term issue, it makes little sense to restrict guardianship to a year. Children would be endangered if custody were given back a parent who relapses into opioid usage. In those cases, it would advantageous if the grandparent were outright given custody with visitation rights to the addicted parent until the court is satisfied that the threat of addiction is over. Instead of a temporary guardianship, or a series of temporary guardianships because of relapse, a grandparent should be able to fight for custody if necessary.

Giving grandparents custody would potentially make it difficult for a parent to recover custody. If the grandparents agree, that would make it easier, but a protracted legal battle would be difficult for all involved. Young children need household stability and a custody dispute would endanger that. As with custody disputes between parents, a custody fight between a parent and grandparents might lead a child to believe that he or she needs to pick a “side.”

What is Better for the Children?

Although custody battles would lead to emotional stress for many children, that stress would be omnipresent in any family law case. A seven year old doesn’t see the distinction between a temporary guardianship and custody. The child will only see that he or she is spending more time with Grandma and Grandpa instead of Mom or Dad. If the side effects are the same, we should at least prescribe a legal procedure that gives Grandma and Grandpa the best chance to succeed when Mom or Dad are having issues.

After Divorce: Mandatory Shared Child Custody Could be the Future

Divorces today are very different from the divorces available to your parents and grandparents. If your grandparents wanted a divorce, they had to explain to a judge why a divorce was necessary and who caused the split. If your parents want to end their marriage, the court would assume that Mom would raise the kids while Dad would provide her the money she needs.

Today, no-fault divorce is the norm. Instead of blaming one spouse for alcohol abuse, spouses can just check off a box on their dissolution petition called “irreconcilable differences.” The assumption that women are the primary caregiver has waned over the last few decades, but state laws are just now catching up to this reality.

What States Apply Mandatory Shared Custody?

Throughout 2017, twenty states, including Virginia, Kentucky, Texas, and Oregon, have considered laws promoting shared custody among parents. State laws may change so that instead of giving one parent physical custody and both parents legal custody, both parents maintain physical and legal custody after the child custody order is signed.

Proponents of mandatory shared custody laws believe that changing custody structures post-divorce would be in the children’s best interest and help remove decade old stereotypes that women are only caregivers. Mandatory shared custody would require that fathers play a greater role in their child (ren)’s life. The wisdom that children who grow up with two parents are better off than children who only grow up with one is still true. Mandatory shared custody would lift the burden of parenthood from single mothers and provide more stability for children.

child custodyOpponents argue that mandatory shared custody laws are unnecessary. Most couples today agree on some form of shared custody. The 10 percent of parents who don’t agree on shared custody usually have a good reason: abusive spouses are always a concern. Many state laws that require joint physical custody also end child support. Overcoming sexism is an important state goal, but the reality is that many women still make twenty cents less for every dollar a man earns. Child support often bridges the income gap between Mom and Dad. States shouldn’t ignore such realities.

The Importance of Judicial Discretion in Child Custody

One of the biggest debate points of mandatory laws is the loss of judicial discretion. When the legislature mandates certain outcomes in a one size fits all approach, there will often be cases where that approach is wrong and judicial decision making would have been preferable.

Criminal law provides a roadmap of what mandatory laws can do. Mandatory minimum sentencing laws for drug crimes have been decried as cruel and unusual punishment. Regardless of background, facts, or mitigating factors, criminal law judges are often compelled to gives harsh sentences for drug crimes that the public are increasingly seeing as light offenses. On the other hand, judicial discretion can open the door for equally unpopular sentences. The Brock Turner case illustrates that individual judges can frustrate the public by being too lenient.

A mandatory law would likely punish a percentage of spouses who need to be protected from abusers, but achieve a degree of equity for everyone else. Leaving the decision to judges might protect potential victims, but there is a possibility that a judge might make the bad ruling for a bad case.

Since the laws are still being shaped, this need not be a binary choice. States can have a system where shared custody is the default, but there should be greater protections for those who may be victimized by an abusive spouse. Child support has traditionally favored women because women were the primary caregivers. However, this cuts both ways. If men are called upon to be better fathers, they must also have time to raise their kids. As women have known for centuries, balancing one’s career with one’s parental duties may require a sacrifice from the former. In that case, both sexes should be expected to pay child support if the other parent is in the home instead of the office.

Who is to Blame When a Child Commits Suicide?

Ashawnty Davis, age 10, died December 1, 2017 after being taken off life support at a children’s hospital. She died two weeks after she was found hanging in a closet at home.

Her parents claim their daughter was bullied after a video of a fight she was in at school in Aurora, CO, in October was posted online. Ashawnty confronted a girl who had bullied her and the fight was recorded and posted on an app called Ashawnty is allegedly the latest victim of “bullycide,” suicide by bullying.

Who is Liable?

Ashawnty’s parents are obviously in pain and blaming multiple parties. Liability for such a tragic death would be difficult to prove though. In personal injury cases, the defendant’s actions must have at least a causal link to the alleged injury. If the defendant’s acted intentionally, the petitioner only has to show proximate causation. If the defendant acted neglectedly, the lawsuit must prove that the defendant’s negligence was a direct cause of the injury.

childrenMoreover, they must be foreseeable. A reasonable person should be able to look at the circumstances and conclude that a person in this condition would kill him/herself.

School Officials

Ashawnty’s parents claim that Cherry Creek School District should have done more to stop the bullying that drove their daughter to hang herself. The Cherry Creek School District says that the students were talked to about the fight, the parents were called and the cellphone video was sent to the Aurora Police Department. The School District also claims that the school didn’t know about the bullying because the fight took place after school hours.

Ashawnty’s parents believe those steps weren’t enough: “There was nothing done about it. When I got the call telling me that my daughter had been in a fight, they never gave me the opportunity to meet with the other parents to come to the bottom of the line.”

The School is arguing about school hours because they are trying to argue they did not have the legal duty to prevent such harm. This strategy is flawed from the start because case law has put the burden on school officials and those with a special relationship to the child to prevent a death if possible. Even if the fight had taken place after school hours, the contributing bullying likely took place during school hours.

Cherry Creek’s defenses are contradictory. Assuming that the fight itself was considering bullying, and then the school took steps to prevent further bullying, including talking to the students, calling parents, and contacting local police. It cannot turn around and claim they didn’t know there was bullying occurring.

Suing the school would be tough since there would be too many superseding events to hold the school accountable. It’s not clear that the school didn’t do everything possible to protect the children.

The parents might also consider suing After all, it was their platform that drove the publicity which caused the girl to commit suicide.

The issues of causation are present with as well. is merely one file-sharing company among many. Third parties used to cause pain to a little girl. The company would be held liable for the actions of two third parties: the bullies who uploaded their video to their website and the girl who killed herself. Blaming for the girl’s death would be like blaming the rope maker for providing the fabric that Ashawnty used to take her life. Ashawnty‘s death is tragic, but entirely unforeseeable by the music company.

The Bullies

Obviously, the party most guilty here would be the bullies themselves. Their actions were intentional and ultimately drove the girl to kill herself. Normally, a person is not responsible for the actions, thoughts, or emotions of another person. This wasn’t a case where a person was negligent and didn’t realize that the other person was contemplating suicide. The bullies were intentionally causing Ashawnty pain. Even if a child doesn’t fully understand the consequences of his or her actions, they should know that causing another person pain is wrong.

As said above though, holding someone liable for the suicide of another is difficult, even when there are explicit texts of the defendant encouraging the victim to kill himself.

Parents of the Bullying Children

Since the children are legally unable to understand the consequences of their actions, liability would fall on the parents. Parents can be held liable if their child commits a murder or other felony. If bullying another child to kill herself is a crime, then the parents should be liable for that as well. Financially, it’s not desirable since parents are unlikely to have the money to pay for a wrongful death suit; the school and the music company would be better targets if the goal is to collect a money judgment. For a bereaved parent though, justice might be all that is required.

New Jersey Might Require Equal Parenting Time in Child Custody Cases

One of the most controversial aspects of child custody is who has physical custody. Schedules can differ wildly from 90/10 (where one parent has custody 90% of the time and the other parent 10%) to 50/50 (50% time for each parent). Most judges and mediators will suggest an equal time split and then adjust the time allocated based on the case.

What is New Jersey’s Approach?

New Jersey state legislators have proposed bills that would make 50/50 custody the default child custody arrangement. The bills, S3479 and A5189, would make equal time between parents the default child custody arrangement, unless a parent can show that equal time would be harmful to the children. Currently, New Jersey courts do not presume equal parenting time. Instead, family law judges look to the best interests of the child. The “best interest” test involves a wide variety of factors, including but not limited to: stable environment, preference of the child, parents’ ability to agree and cooperate, and who had custody of the child(ren) prior to parental separation.

child custodyAt first glance, a law requiring equal time between parents doesn’t sound like a bad idea. If both parents have equal time with the children, there would be one less thing that parents fight over during a divorce. More importantly, the children would get to spend time with both parents and they wouldn’t feel cut out of one parent’s life.

Are There Any Downsides?

However, there are very real downsides to this approach. Making “equal time” the default prevents judges from making real decisions in cases where judicial discretion is most needed. In some cases, a parent cannot afford equal time. A parent with a busy work schedule needs to work more hours to pay for the child (and spousal) support. In other cases, a parent might be closer to a better school or have more options in education. Since the bill only allows parents to argue against equal time if there would be harm to the children, an automatic equal time schedule might actually cause more hardship on the family.

Mandatory equal time also puts domestic abuse victims at a significant disadvantage. The court would have to assume that equal time is best unless the victim can show that equal time would be harmful. Similarly, a parent with drug or alcohol problems would benefit from a default 50/50 custody schedule. Although the bill allows parents to argue against equal time if it would be harmful to the children, requiring a parent to overcome a legislative presumption creates an unnecessary uphill battle that shouldn’t exist in the first place.

Replacing child’s best interest with equal time for both parents also distorts the priorities family courts should have when determining child custody. The goal of child custody and child support is to ensure that the children are taken care of. Proponents of default equal time claim that changing the law will be a good thing because it will cut down on litigation and parental fighting. Child custody hearings should not consider these goals because it puts the parents’ money and feelings over the wellbeing of the children.

Making child custody automatically 50/50 between parents might sound like a good idea, but the plan is filled with hidden dangers. Default equal time puts greater emphasis on the parents’ needs over the children’s well-being. It would continue to victimize domestic violence victims. And it would standardize an area of law that often turns on individual circumstances and facts of the case.