In recent years there have been several cases with same-sex partners who seek visitation with children with whom they have no biological connection. One of them, Alison D. v. Virginia M., can be seen here. In essence the State's highest court, the New York Court of Appeals has declined to recognize same-sex partners as parents and thereby denies them legal standing (capacity) to seek a right of visitation.
It is, to be sure, a perplexing position which makes little to no practical sense. Children, after all, do not consider biological attachments. Rather, they are attached to people who are both present and important in their lives. Those roles can be played by relatives other than the parents, and certainly by same-sex partners. Where the courts seek to penalize the lack of biological connection, the also reward the parent with the biological connection with the right to allow and/or encourage the relationship and then withdraw it arbitrarily.
While it remains a bleak outlook for same-sex partners, the law will eventually evolve as more and more people press their interests.
Saturday, October 23, 2010
Thursday, October 21, 2010
Parental Alienation - A Mental Disorder?
I recently came across an interesting article on NPR's website regarding whether or not Parental Alienation should be classified as a mental health disorder. The article can be seen in its entirety here. The debate is taking place at the American Psychiatry Association. On the one side are advocates of domestic violence victims (mostly women) who believe the entire notion of parental alienation is a fabricated pseudo-science created by abusive partners (mostly men) who are trying to deflect attention away from their own behavior which, ostensibly, is the more likely cause of the estrangement between the child and father. On the other side of the debate are numerous mental health professionals who hope to see parental alientation classified as a verifiable diagnosis so that the issue can be dealt with more forthrightly in Family Court.
As stated in a previous post, it is my firm belief that parental alienation is not only real, but devastating to families. I have seen firsthand the traumatic effect that this insidious problem inflicts on children. Specifically, I have seen children reject any and all benevolent advances by the estranged parent for reasons that border on the ludicrous. It is not necessary to revisit the issue here other than to say that there are forceful and persuasive forces on both sides of this debate. However, I think most would agree that any attempt at undermining the bond between a child and parent should not be tolerated. Whether or not we classify parental alienation as a specific disorder has obvious implications to the Family Court, but is ultimately secondary to the emotional damage caused to families by parents who engage in perpetual battles with one another.
As stated in a previous post, it is my firm belief that parental alienation is not only real, but devastating to families. I have seen firsthand the traumatic effect that this insidious problem inflicts on children. Specifically, I have seen children reject any and all benevolent advances by the estranged parent for reasons that border on the ludicrous. It is not necessary to revisit the issue here other than to say that there are forceful and persuasive forces on both sides of this debate. However, I think most would agree that any attempt at undermining the bond between a child and parent should not be tolerated. Whether or not we classify parental alienation as a specific disorder has obvious implications to the Family Court, but is ultimately secondary to the emotional damage caused to families by parents who engage in perpetual battles with one another.
Tuesday, October 19, 2010
Shaken Baby Syndrome
These are among the most emotionally charged cases the Family Court confronts. Often, Shaken Baby Syndrome (S.B.S.) renders a child significantly impaired, depending on the severity of the traumatic event(s). It can even be lethal. For a more detailed discussion of the S.B.S. from a medical standpoint click here and/or here. The most confounding question posed by these cases is who the culprit is. The agencies charged with prosecuting child abuse/neglect cases will usually take the broad view and name as respondents just about everyone who had sole access to the child within the timeframe that they believe that the child was injured. Therefore, it is very common to see parents and extended family named as respondents in these cases. The sad truth, however, is that generally speaking the wide net that child protective services agencies cast usually ensnares innocent parties who find it next to impossible to defend against these cases.
The first priority in defending against these cases is to determine whether the diagnosis of S.B.S. is even appropriate. While many experts will look for the telltale signs of S.B.S. (bilateral retinal hemorrhaging, subdural hematomas, hydrocephalus, fractured ribs, brain injuries, etc.) these signs can sometimes be attributed to non-abusive causes such as meningitis (bacterial or viral), increased intracranial pressure or some other underlying medical condition. The important part is to look at the history provided by the parents or custodians, the constellation of symptoms that the child presented with when he or she was first seen by medical personnel, how quickly the child's symptoms resolved (if they did), and what was revealed by the various diagnostic and/or clinical tests performed on the child.
Obviously, the average person and the attorney who represents a client facing a charge of abuse are not qualified to make these determinations without the assistance of an expert. Thus, while it is usually a costly affair, the retention of an expert is absolutely vital to defend these cases. Without an expert, a respondent stands little to no chance of successfully defending an abuse charge.
The reason for this grim outlook is that all the prosecuting agency needs to do is two things. The first is prove the child was the victim of a shaking event. This would be done through an expert who has either treated the child or reviewed the medical records. The second thing is to prove that, essentially, a respondent was a person who was legally responsible for the child (which could encompass day care providers, and hence, extended family members) and that the respondent had an opportunity to shake the child. Once these two facts are proved, the burden of proof shifts to the respondent to either disprove the diagnosis or the fact that they had access to the child. Without an expert, a respondent is basically before the court empty handed and a finding of abuse is a virtual foregone conclusion.
The first priority in defending against these cases is to determine whether the diagnosis of S.B.S. is even appropriate. While many experts will look for the telltale signs of S.B.S. (bilateral retinal hemorrhaging, subdural hematomas, hydrocephalus, fractured ribs, brain injuries, etc.) these signs can sometimes be attributed to non-abusive causes such as meningitis (bacterial or viral), increased intracranial pressure or some other underlying medical condition. The important part is to look at the history provided by the parents or custodians, the constellation of symptoms that the child presented with when he or she was first seen by medical personnel, how quickly the child's symptoms resolved (if they did), and what was revealed by the various diagnostic and/or clinical tests performed on the child.
Obviously, the average person and the attorney who represents a client facing a charge of abuse are not qualified to make these determinations without the assistance of an expert. Thus, while it is usually a costly affair, the retention of an expert is absolutely vital to defend these cases. Without an expert, a respondent stands little to no chance of successfully defending an abuse charge.
The reason for this grim outlook is that all the prosecuting agency needs to do is two things. The first is prove the child was the victim of a shaking event. This would be done through an expert who has either treated the child or reviewed the medical records. The second thing is to prove that, essentially, a respondent was a person who was legally responsible for the child (which could encompass day care providers, and hence, extended family members) and that the respondent had an opportunity to shake the child. Once these two facts are proved, the burden of proof shifts to the respondent to either disprove the diagnosis or the fact that they had access to the child. Without an expert, a respondent is basically before the court empty handed and a finding of abuse is a virtual foregone conclusion.
Equitable Estoppel - Who's The Daddy?
Ask anyone who practices in Family Court on a regular basis and they will tell you that the overriding concern in just about any proceeding is the best interests of the child. The basis of this, of course, is that children are the most vulnerable members of the family, in need of the most support, both financial and otherwise, to realize their full potential. However, when it comes to paternity proceedings, there are times when protecting the child's "best interests" can fly in the face of both fairness and common sense.
The doctrine of equitable estoppel provides such an example. The doctrine of equitable estoppel is invoked, usually by mothers (but not always) when a father seeks to have a DNA test to confirm that they are in fact, the father. Often these challenges to paternity come when the parents have separated and now the mother is seeking support. The father often wants to make sure that the child for whom he is going to be financially obligated to until the child turns 21 years old, is, in fact, his. To be sure, there are many times when these challenges are totally frivolous and made simply to exact some form of petty revenge against the mother. However, there are plenty of times when the concerns are sincere.
This is an issue that even the highest court in New York, The Court of Appeals, continues to grapple with. In a case in which I represented the mother before the Court of Appeals, a man who was not the biological father was nonetheless held to be the legal father because he had held himself out as the child's father for a period of 7 years. The case was Shondel J. v. Mark D.. The decision in its entirety can be seen here. More recent cases dealing with this issue and a further discussion of this issue can be seen in the recent New York Children's Lawyer by clicking here.
The issue in Shondel J. was similar to many cases I hd handled before and since. A father comes into court and asks for a DNA test. Before the Family Court agrees to give him that test the court must first determine if the father should be estopped from challenging paternity. What made Shondel J. unique was that the court did not do that, gave the father and child the DNA test and it was determined that he was not the father of the 7 year old girl who was the subject of the proceeding. The mother and child were then assigned attorneys (which should have happened inthe very onset of the case) and they challenged the father's right to a DNA test. The mother ultimately prevailed.
The fundamental goal of the decision in the Court of Appeals in Shondel J. was too preserve the child's right to a father. Clearly, the child had a right to expect the love and support of Mark D. (who in actuality severed his relationship with his "daughter" when he found out she was not his). But what the dissenting judges in that case could not accept was the palpable unfairness of imposing a false relationship on the father, rewarding the mother for essentially committing a fraud upon the father and
The doctrine of equitable estoppel provides such an example. The doctrine of equitable estoppel is invoked, usually by mothers (but not always) when a father seeks to have a DNA test to confirm that they are in fact, the father. Often these challenges to paternity come when the parents have separated and now the mother is seeking support. The father often wants to make sure that the child for whom he is going to be financially obligated to until the child turns 21 years old, is, in fact, his. To be sure, there are many times when these challenges are totally frivolous and made simply to exact some form of petty revenge against the mother. However, there are plenty of times when the concerns are sincere.
This is an issue that even the highest court in New York, The Court of Appeals, continues to grapple with. In a case in which I represented the mother before the Court of Appeals, a man who was not the biological father was nonetheless held to be the legal father because he had held himself out as the child's father for a period of 7 years. The case was Shondel J. v. Mark D.. The decision in its entirety can be seen here. More recent cases dealing with this issue and a further discussion of this issue can be seen in the recent New York Children's Lawyer by clicking here.
The issue in Shondel J. was similar to many cases I hd handled before and since. A father comes into court and asks for a DNA test. Before the Family Court agrees to give him that test the court must first determine if the father should be estopped from challenging paternity. What made Shondel J. unique was that the court did not do that, gave the father and child the DNA test and it was determined that he was not the father of the 7 year old girl who was the subject of the proceeding. The mother and child were then assigned attorneys (which should have happened inthe very onset of the case) and they challenged the father's right to a DNA test. The mother ultimately prevailed.
The fundamental goal of the decision in the Court of Appeals in Shondel J. was too preserve the child's right to a father. Clearly, the child had a right to expect the love and support of Mark D. (who in actuality severed his relationship with his "daughter" when he found out she was not his). But what the dissenting judges in that case could not accept was the palpable unfairness of imposing a false relationship on the father, rewarding the mother for essentially committing a fraud upon the father and
Monday, October 18, 2010
Who's The Daddy?: The Doctrine of Equitable Estoppel
Whether or not a man is determined to be the legal father of a child has enormous implications which range from the emotional to the financial. A recent decision by the New York Court of Appeals (Matter of Juanita A. v. Kenneth Mark N.) highlights some of the problems with this still evolving area of the law. For a full discussion of the facts of the case click here. As the attorney who was assigned to represent the mother the last time the Court of Appeals took up this case, I have had considerable experience confronting this highly complicated issue. The decision in its entirety can be seen here.
In a nutshell, the problem is a doctrine called "equitable estoppel". This doctrine is used to prevent potential fathers from securing a DNA test to confirm or rebut any presumption of paternity if they have held themselves out as the father of the child and the child recognizes the man to be his or her father. As is often the case, the mother seeks child support but must first file a paternity proceeding to secure an order of filiation (an order legally determining who the father is). This is the point where the potential father will request a DNA test if there is a shred of doubt as to his biological paternity. However, timing, in this instance, is absolutely critical.
If the child is already of an advanced age (say 3 years and older), and the child recognizes the man to be the father, the chances of getting a DNA are slim. The child will be assigned an attorney and in many cases that attorney, along with the mother and her counsel will argue that the father should not be permitted to scientifically challenge paternity because to do so would cause irreparable harm to the child. If the Family Court agrees, the father can and will be equitably estopped from requesting a DNA test and legally determined to be the father, and, ostensibly, left in the dark for all time as to whether he is or is not the father of the child.
The rule has its benefits but with significant drawbacks. The obvious benefits are that a person who willingly holds himself out to be the father and enjoys all the benefits of fatherhood for years and has been a source of support for the child, should not be allowed to withdraw that support in the eleventh hour simply because the relationship with the mother has soured. However, where the mother had good reason to believe that the man acting as the father was not the father, are we not rewarding the mother for an act of fraud? Is this fair to the father? The child? These are vexing questions which the Court of Appeals is still wrestling with as their split decision in the case I argued evidenced. The dissenters in that case simply could not get past the palpable unfairness of rewarding the fraud. Nonetheless, as the United States Supreme Court declined to hear an appeal on this case, the majority's view remains the law in the State of New York.
From a practical standpoint, my advice to any man whose paternity is in doubt is to find out as soon as humanly possible. By that I emphatically do not mean once litigation has already started. I mean as soon as possible after the child is born.
In a nutshell, the problem is a doctrine called "equitable estoppel". This doctrine is used to prevent potential fathers from securing a DNA test to confirm or rebut any presumption of paternity if they have held themselves out as the father of the child and the child recognizes the man to be his or her father. As is often the case, the mother seeks child support but must first file a paternity proceeding to secure an order of filiation (an order legally determining who the father is). This is the point where the potential father will request a DNA test if there is a shred of doubt as to his biological paternity. However, timing, in this instance, is absolutely critical.
If the child is already of an advanced age (say 3 years and older), and the child recognizes the man to be the father, the chances of getting a DNA are slim. The child will be assigned an attorney and in many cases that attorney, along with the mother and her counsel will argue that the father should not be permitted to scientifically challenge paternity because to do so would cause irreparable harm to the child. If the Family Court agrees, the father can and will be equitably estopped from requesting a DNA test and legally determined to be the father, and, ostensibly, left in the dark for all time as to whether he is or is not the father of the child.
The rule has its benefits but with significant drawbacks. The obvious benefits are that a person who willingly holds himself out to be the father and enjoys all the benefits of fatherhood for years and has been a source of support for the child, should not be allowed to withdraw that support in the eleventh hour simply because the relationship with the mother has soured. However, where the mother had good reason to believe that the man acting as the father was not the father, are we not rewarding the mother for an act of fraud? Is this fair to the father? The child? These are vexing questions which the Court of Appeals is still wrestling with as their split decision in the case I argued evidenced. The dissenters in that case simply could not get past the palpable unfairness of rewarding the fraud. Nonetheless, as the United States Supreme Court declined to hear an appeal on this case, the majority's view remains the law in the State of New York.
From a practical standpoint, my advice to any man whose paternity is in doubt is to find out as soon as humanly possible. By that I emphatically do not mean once litigation has already started. I mean as soon as possible after the child is born.
Saturday, October 16, 2010
Parental Alienation - A Thorny Judical Thicket
One of the most vexing problems facing the Family Court and the practitioners who work there is the claim of parental alienation. A thorough, though not exhaustive, treatment of its legal history is set forth in a recent edition of New York Children's Lawyer (formerly called the Law Guardian Reporter). The article can be seen in its entirety here. A detailed explanation as to what parental alienation is can be seen here. Indeed, the problem is so prevalent that entire websites have been created to discuss its myriad implications. One example can be seen here.
In short, parental alienation manifests itself when a child, without proper cause (such as long term abuse or neglect) arbitrarily decides to cut off his or her relationshiip with a parent. As one would expect, the child's decision is usually anything but arbitrary, but the byproduct of a course of conduct by another parent who is actively trying to undermine the relationship between the child and the other parent. The motives for this destructive conduct vary but the results often do not.
I have interviewed hundreds of children over the years who have been victimized in varying degrees by this insidious affliction. Their lives and emotional well being have been utterly traumatized and yet, in many cases, they feel paralyzed. The have been so completely conditioned to reject one parent that they are literally afraid (in some cases terrified) to even engage the alienated parent. The alienated parent, of course, is understandibly frustrated, depressed and angry.
To be sure, these families are in a state of acute crisis. And from what I have seen in the past 15 years, the Family Court is ill-prepared to deal with this issue. Some judges openly reject the whole idea of parental alienation. Others throw up their hands and wonder aloud what they can do when a child refuses to visit with another parent for no apparent reason. Indeed, even the psychologists and other mental health professionals charged with evaluating the families (and, ostensibly, crafting viable lifestyle plans for them) often do not offer anything beyond the bland recommendation of family therapy. However, these family therapy sessions often offer little beyond perfunctory, short -lived and ultimately ineffective assistance.
The crux of the problem from the Family Court's perspective is how to deal with a child who will not comply with a court order regarding visitation. We cannot arrest children who are technically in violation of a court order any more than it makes sense to attempt to drag a child, kicking and screaming, to a visit with a parent. And so, faced with this this conundrum, Family Court judges will often shrug their shoulders and move on to the next case, thereby awarding the offending parent, and, more importantly, ignoring their commitment to protect the best interests of the child.
In the New York Children's Report cited above, some interesting proposals from various sources are being discussed and worthy of mention. The first is to have a judge specifically assigned to these types of cases. This would be of invaluable assistance since the patterns of behavior in these cases are so similar and the ability to identify them and snuff them out as early as possible is the key to maintaining the integrity of the parent-child relationship. A second proposal, involving situations where the parental alienation is already quite acute, involves sending the parent and child to intensive "camps" where mental health professionals with experience dealing with these issues can address the problem in a more thoughtful, creative and effective fashion.
Clearly, it is time to move beyond the existing parameters of the Family Court if we, as a society, are to take seriously the overwhelming and tragic impact that parental alienation has on families. The proposals discussed above are a good start and I'm sure to revisit this issue in the future as more innovative solutions are conceived.
In short, parental alienation manifests itself when a child, without proper cause (such as long term abuse or neglect) arbitrarily decides to cut off his or her relationshiip with a parent. As one would expect, the child's decision is usually anything but arbitrary, but the byproduct of a course of conduct by another parent who is actively trying to undermine the relationship between the child and the other parent. The motives for this destructive conduct vary but the results often do not.
I have interviewed hundreds of children over the years who have been victimized in varying degrees by this insidious affliction. Their lives and emotional well being have been utterly traumatized and yet, in many cases, they feel paralyzed. The have been so completely conditioned to reject one parent that they are literally afraid (in some cases terrified) to even engage the alienated parent. The alienated parent, of course, is understandibly frustrated, depressed and angry.
To be sure, these families are in a state of acute crisis. And from what I have seen in the past 15 years, the Family Court is ill-prepared to deal with this issue. Some judges openly reject the whole idea of parental alienation. Others throw up their hands and wonder aloud what they can do when a child refuses to visit with another parent for no apparent reason. Indeed, even the psychologists and other mental health professionals charged with evaluating the families (and, ostensibly, crafting viable lifestyle plans for them) often do not offer anything beyond the bland recommendation of family therapy. However, these family therapy sessions often offer little beyond perfunctory, short -lived and ultimately ineffective assistance.
The crux of the problem from the Family Court's perspective is how to deal with a child who will not comply with a court order regarding visitation. We cannot arrest children who are technically in violation of a court order any more than it makes sense to attempt to drag a child, kicking and screaming, to a visit with a parent. And so, faced with this this conundrum, Family Court judges will often shrug their shoulders and move on to the next case, thereby awarding the offending parent, and, more importantly, ignoring their commitment to protect the best interests of the child.
In the New York Children's Report cited above, some interesting proposals from various sources are being discussed and worthy of mention. The first is to have a judge specifically assigned to these types of cases. This would be of invaluable assistance since the patterns of behavior in these cases are so similar and the ability to identify them and snuff them out as early as possible is the key to maintaining the integrity of the parent-child relationship. A second proposal, involving situations where the parental alienation is already quite acute, involves sending the parent and child to intensive "camps" where mental health professionals with experience dealing with these issues can address the problem in a more thoughtful, creative and effective fashion.
Clearly, it is time to move beyond the existing parameters of the Family Court if we, as a society, are to take seriously the overwhelming and tragic impact that parental alienation has on families. The proposals discussed above are a good start and I'm sure to revisit this issue in the future as more innovative solutions are conceived.
Friday, October 15, 2010
Expanded Access to Family Court - "Intimate Relationships"
For many people seeking orders of protection, the Family Court may now be a possible resource. Previously, the Family Court was limited to hearing cases between spouses, people with a child in common or some form of blood relationship. However, the Famil Court can now hear cases involving issues between two people who are or have been in an "intimate relationship". You can review the specific language of the statute and about some of its implications here.
The question remains. . .what is an "intimate" relationship? Unfortunately, so far, not even the judges and referees have demonstrated a particularly strong understanding of the breadth of this expansion. As a result, in several counties, litigants must be prepared to prove to a designated J.H.O. (judicial hearing officer - generally former judges who now work part time) whether or not they have had an intimate relationship with the person against whom they are now seeking an order of protection.
As there is not much in the way of precedent on this issue, I can only offer my own experience since the law was enacted to give potential parties some guidance. Clearly, couples who lived together, both heterosexual and gay, and never had a child together would qualify, particularly if they had a sexual relationship. And while it is not specifically required that the parties live together or had a sexual relationship, it is unclear whether mere roommates qualify however, as one J.H.O. has ruled that they do have standing to seek an order of protection while another has ruled they have not. The distinguishing factor in these two cases was the length of time they had lived together, the shared nature of their finances, etc. However, absent the usual circumstances of people living together in a sexual relationship, the waters for would-be litigants get pretty murky. This is no doubt complicated by the fact that the last thing the Family Court needs is an onslaught of new litigants further congesting the court's already ridiculously bloated dockets.
For example, should a girlfriend who is being relentlessly harassed by an ex-wife of her new boyfriend have the right to go to Family Court? Should a mother who is assaulted by her former son-in-law have the right? Each case is different and needs to be examined independently. As a general rule, I would suggest that the more substantial and long lasting the connections between the parties, the more likely the Family Court is going permit the alleged victim to seek an order of protection.
The question remains. . .what is an "intimate" relationship? Unfortunately, so far, not even the judges and referees have demonstrated a particularly strong understanding of the breadth of this expansion. As a result, in several counties, litigants must be prepared to prove to a designated J.H.O. (judicial hearing officer - generally former judges who now work part time) whether or not they have had an intimate relationship with the person against whom they are now seeking an order of protection.
As there is not much in the way of precedent on this issue, I can only offer my own experience since the law was enacted to give potential parties some guidance. Clearly, couples who lived together, both heterosexual and gay, and never had a child together would qualify, particularly if they had a sexual relationship. And while it is not specifically required that the parties live together or had a sexual relationship, it is unclear whether mere roommates qualify however, as one J.H.O. has ruled that they do have standing to seek an order of protection while another has ruled they have not. The distinguishing factor in these two cases was the length of time they had lived together, the shared nature of their finances, etc. However, absent the usual circumstances of people living together in a sexual relationship, the waters for would-be litigants get pretty murky. This is no doubt complicated by the fact that the last thing the Family Court needs is an onslaught of new litigants further congesting the court's already ridiculously bloated dockets.
For example, should a girlfriend who is being relentlessly harassed by an ex-wife of her new boyfriend have the right to go to Family Court? Should a mother who is assaulted by her former son-in-law have the right? Each case is different and needs to be examined independently. As a general rule, I would suggest that the more substantial and long lasting the connections between the parties, the more likely the Family Court is going permit the alleged victim to seek an order of protection.
Thursday, October 14, 2010
New York's No Fault Divorce Law
Effective this week, New Yorkers seeking a divorce, no longer have to deal with the cumbersome and awkward causes of action for divorce such as abandonment, constructive abandonment, adultery or cruel and inhuman treatment. The statement from Governor Patterson can be viewed here. These antiquated causes of action imposed costly litigation on a spouse whose partner refused to accede to an amicable divorce. It also placed litigants in the awkward position of having to lie under oath, when the divorce was amicable, that one party had abandoned the other, even when that was not the case. It is clearly refreshing to see the legislature taken a more civilized view of divorce so that the painful process of separation need not be further complicated.
Monday, October 11, 2010
The Limits of Child Protective Services
An article appeared in the New York Times today which reported on a study done to determine the relative effectiveness of Child Protective Services investigating a home where abuse and/or maltreatment of children is suspected. The article can be read here. The text of the study itself can be seen here. In the study, the evaluators compared several hundred families who had been investigated against families who had not been investigated. Their determination was all too sobering, if not utterly depressing. In essence, the study found that the intervention of Child Protective Services had virtually no beneficial effect on these families.
Does the finding of this study serve to undermine the entire purpose of Child Protective Services? Should we as a society simply give up trying to help families where children are being abused? Obviously, the answer is a resounding no. Moreover, as a practititioner in New York's Family Court for many years, I find the conclusion of this study perplexing, to say the least. To be sure, there are families beyond the help of anyone. Ultimately, these families are headed by parents whose interpersonal lives are riddled with problems across a wide spectrum including poverty, drug abuse, prior histories of abuse themselves (both as perpetrators and victims), mental illness and so on. Sometimes, there is simply too much for any agency to correct. Still, that is not to suggest that the situation is hopeless.
If the reality of a particular family cannot be sufficiently adjusted to permit a child to remain in the home safely, then there are alternatives, specifically, adoption. Removing a child permanently and placing the child with a new family is clearly an option of last resort. But it is a viable option nonetheless. Similarly, long term placement (via adoption or an order of custody) may serve to preserve the safety of the child without necessarily severing the tie to the biological parents for good. I have represented countless parents and children who have gone on to have meaningful and fulfilling relationships with each other long after the legal ties that bind them have been severed.
So while it may not always be possible to rid an entire family of the various afflictions that confront it, it is still very possible to rescue a child from having to endure the full brunt of those afflictions. To the extent that it remains possible to do that, Child Protective Services will always serve a vital role.
Does the finding of this study serve to undermine the entire purpose of Child Protective Services? Should we as a society simply give up trying to help families where children are being abused? Obviously, the answer is a resounding no. Moreover, as a practititioner in New York's Family Court for many years, I find the conclusion of this study perplexing, to say the least. To be sure, there are families beyond the help of anyone. Ultimately, these families are headed by parents whose interpersonal lives are riddled with problems across a wide spectrum including poverty, drug abuse, prior histories of abuse themselves (both as perpetrators and victims), mental illness and so on. Sometimes, there is simply too much for any agency to correct. Still, that is not to suggest that the situation is hopeless.
If the reality of a particular family cannot be sufficiently adjusted to permit a child to remain in the home safely, then there are alternatives, specifically, adoption. Removing a child permanently and placing the child with a new family is clearly an option of last resort. But it is a viable option nonetheless. Similarly, long term placement (via adoption or an order of custody) may serve to preserve the safety of the child without necessarily severing the tie to the biological parents for good. I have represented countless parents and children who have gone on to have meaningful and fulfilling relationships with each other long after the legal ties that bind them have been severed.
So while it may not always be possible to rid an entire family of the various afflictions that confront it, it is still very possible to rescue a child from having to endure the full brunt of those afflictions. To the extent that it remains possible to do that, Child Protective Services will always serve a vital role.
The Chorus Against Juvenile Detention Facilities Is Getting Louder
In yesterday's New York Times, an editorial lambasting the pathetic state of New York's juvenile detention facilities makes a convincing argument for the utter ineffectiveness of these facilities. The full article can be read here. More and more, people are coming to realize that separating children from their families is, more often than not, a grossly ill-conceived manner to deal with the problems posed by juvenile delinquency. Treatment (in its many forms), community based programs and the love and support of friends, families and people in the community with a vested interest in how a young person turns out are almost always offer a better solution for a troubled child. And as stated in a previous post (10/6/10), the best way to prevent your child from falling victim to these deplorable facilities is to prepare and find appropriate resources in the community yourself and with the help of an attorney experienced in handling cases involving children adjudicated to be juvenile delinquents.
Thursday, October 7, 2010
Another Child Slips Through the Cracks. . .And Dies
The New York Times ran a story yesterday of the tragic fate of 4 year old girl, Marchella Price, whose emaciated and bruised body was found dead on September 2nd. The article can be seen in its entirety here. At the time of her death, Marchella weighed a mere 18 pounds. She had been routinely tied to her bed by her mother in order to prevent her from getting out of bed to make something to eat, ostensibly to prevent her from making a mess. The mother is now facing criminal charges.
But the real story here is how did a family that was supposedly being monitored by the Administration for Children's Services (A.C.S.) slip through the cracks like this? It's a complicated story. And rather than joining the ranks of those who are screaming for blood at A.C.S., it might be helpful to understand that the caseworkers at A.C.S. have enormously challenging jobs. They handle hundreds of cases a year and are responsible for many, many families. Put simply, the caseworkers are grossly overworked. Also, keep in mind that it is the goal of both A.C.S. and the Family Court to reunite families whenever possible, not allow children to languish in foster care indefinitely. Enough studies have been done to demonstrate that extended stays in foster care have long term adverse and traumatic effects on children who remain in foster care. Click here if you're interested in seeing one study cataloguing what some of those effects are.
In this particular case the mother had tested positive for drugs when Marchella was born. The child had been returned home, presumably because the mother was compliant with her treatment plan at some point. A.C.S. (in this case through a contract agency) was supposed to continue to monitor the family after the return of the child to make sure they were doing okay. Clearly, they did not. But I cannot help but wonder why no report was called into the police or A.C.S. by neighbors, friends, other family members, strangers, day care providers (if they were any) or other people who may have encountered this family. After all, an 18 pound 4 year old is quite obviously, even to a lay person, suffering. So before we race to condemn A.C.S. we should ask ourselves, what can we do in similar circumstances when we suspect the abuse or maltreatment of a child.
The easiest thing is to call the police, 311 (in N.Y.C.) or A.C.S. directly. These calls can and often do remain (when the reporter requests anonymity) anonymous and the city agencies are nonetheless obligated to investigate this calls. Many, many children have been spared needless suffering as a result of the intervention of a concerned neighbor or friend.
But the real story here is how did a family that was supposedly being monitored by the Administration for Children's Services (A.C.S.) slip through the cracks like this? It's a complicated story. And rather than joining the ranks of those who are screaming for blood at A.C.S., it might be helpful to understand that the caseworkers at A.C.S. have enormously challenging jobs. They handle hundreds of cases a year and are responsible for many, many families. Put simply, the caseworkers are grossly overworked. Also, keep in mind that it is the goal of both A.C.S. and the Family Court to reunite families whenever possible, not allow children to languish in foster care indefinitely. Enough studies have been done to demonstrate that extended stays in foster care have long term adverse and traumatic effects on children who remain in foster care. Click here if you're interested in seeing one study cataloguing what some of those effects are.
In this particular case the mother had tested positive for drugs when Marchella was born. The child had been returned home, presumably because the mother was compliant with her treatment plan at some point. A.C.S. (in this case through a contract agency) was supposed to continue to monitor the family after the return of the child to make sure they were doing okay. Clearly, they did not. But I cannot help but wonder why no report was called into the police or A.C.S. by neighbors, friends, other family members, strangers, day care providers (if they were any) or other people who may have encountered this family. After all, an 18 pound 4 year old is quite obviously, even to a lay person, suffering. So before we race to condemn A.C.S. we should ask ourselves, what can we do in similar circumstances when we suspect the abuse or maltreatment of a child.
The easiest thing is to call the police, 311 (in N.Y.C.) or A.C.S. directly. These calls can and often do remain (when the reporter requests anonymity) anonymous and the city agencies are nonetheless obligated to investigate this calls. Many, many children have been spared needless suffering as a result of the intervention of a concerned neighbor or friend.
Wednesday, October 6, 2010
The Comparative Injustice of the Juvenile Justice System
Over the weekend, the New York Daily News posted an article about a girl who'd been raped who was also facing a minor juvenile delinquency charge herself in Manhattan Family Court. The complete article can be read here. In essence, it involves a young woman, 15 years old, named Ashley, who was in court for filing a false police report. Before she was scheduled to appear in court, she was raped in the courthouse by a counselor who was supposed to escort her. That day she was sentenced to 12 months detention while her assailant, who later pleaded guilty in criminal court, received 12 months probation.
Without going further into the details of this apparent miscarriage of justice, it is enough to say that the discrepancies between the sentences of these two people is not unusual. Criminal Court deals with adult criminals whereas Family Court deals with children who commit crimes and are under the age of 16 when they commit the crimes. When juveniles are found guilty of committing crimes they are deemed to be juvenile delinquents and their cases are scheduled for disposition (sentencing).
However, because of their age, juveniles are supposed to be sentenced in the least restrictive alternative to meet the safety requirements of the community and the needs of the juvenile. In other words, punishment for the sake of punishment is not supposed to be the overriding goal. In theory, the Family Court judges charged with sentencing juveniles are supposed to be sensitive to the fact that depriving a child of his or her liberty is an option of absolute last resort. Unfortunately, that is often not the case.
It is therefore incumbent upon the juvenile, his parents and counsel to offer viable alternatives to detention that meet the needs of the community and the child. And again, like in every other case, this involves preparation and research. Every community has therapeutic centers and mental health professionals that offer counseling and/or therapy. Most communities have youth centers where children can seek educational assistance, play sports, obtain part-time employment and, most importantly, use their time productively and avoid tempting situations that can get them in further trouble. If drug treatment is needed, such facilities can be found almost everywhere. The probation department offers a variety of services for youths facing detention as do a significant number of community organizations. Serious engagement in these types of services can be the difference between a judge placing a child in detention and forcing those services upon a child and permitting the child to remain in the community where they are comfortable and more likely to succeed and be happy.
As a society, we often read articles about serious criminals who get a proverbial slap on the wrist and we scratch our heads and wonder how it happened. Suffice to say, the criminal courts are places that deal with the competing goals of safeguarding the community and preventing the overcrowding of prisons. As a result, many who should be in jail are not. In the Family Court environment, it is my personal view, that children should not be in detention whenever possible. Whether they end up there or not will depend in significant part on you, your child and your attorney's preparation to offer acceptable alternatives.
Without going further into the details of this apparent miscarriage of justice, it is enough to say that the discrepancies between the sentences of these two people is not unusual. Criminal Court deals with adult criminals whereas Family Court deals with children who commit crimes and are under the age of 16 when they commit the crimes. When juveniles are found guilty of committing crimes they are deemed to be juvenile delinquents and their cases are scheduled for disposition (sentencing).
However, because of their age, juveniles are supposed to be sentenced in the least restrictive alternative to meet the safety requirements of the community and the needs of the juvenile. In other words, punishment for the sake of punishment is not supposed to be the overriding goal. In theory, the Family Court judges charged with sentencing juveniles are supposed to be sensitive to the fact that depriving a child of his or her liberty is an option of absolute last resort. Unfortunately, that is often not the case.
It is therefore incumbent upon the juvenile, his parents and counsel to offer viable alternatives to detention that meet the needs of the community and the child. And again, like in every other case, this involves preparation and research. Every community has therapeutic centers and mental health professionals that offer counseling and/or therapy. Most communities have youth centers where children can seek educational assistance, play sports, obtain part-time employment and, most importantly, use their time productively and avoid tempting situations that can get them in further trouble. If drug treatment is needed, such facilities can be found almost everywhere. The probation department offers a variety of services for youths facing detention as do a significant number of community organizations. Serious engagement in these types of services can be the difference between a judge placing a child in detention and forcing those services upon a child and permitting the child to remain in the community where they are comfortable and more likely to succeed and be happy.
As a society, we often read articles about serious criminals who get a proverbial slap on the wrist and we scratch our heads and wonder how it happened. Suffice to say, the criminal courts are places that deal with the competing goals of safeguarding the community and preventing the overcrowding of prisons. As a result, many who should be in jail are not. In the Family Court environment, it is my personal view, that children should not be in detention whenever possible. Whether they end up there or not will depend in significant part on you, your child and your attorney's preparation to offer acceptable alternatives.
An Odd Side Effect of Family Court - Sleepless Nights
I came across an article in the New York Daily News yesterday that reported that a woman who spent the day at the Bronx County Family Court, returned home with bedbugs. The complete article can be read here. It's kind of scary that on top of the difficulties confronting families embroiled in the family court system that they'd have to deal with something as insidious as bedbugs.
Saturday, October 2, 2010
The Lesson We Can Learn From K-Rod
Most of the time, the troubles of the rich seem ludicrous, self-imposed or simply beyond our comprehension. But if the plethora of tabloids and celebrity magazines assaulting our sensibilities at the checkout lines of supermarkets are any indication, as a society, we can't seem to get enough of witnessing the mighty fall, the harder the better. It entices us with a disturbing, dirty little pleasure - consuming the gory details of the problems of the well off. But rather than get fixated on the misfortunes of these people, we can take the opportunity to learn valuable lessons.
For example, not long ago, the New York Post, among others, ran a story about K-Rod, the emotionally explosive closing pitcher for the New York Mets. The story in its entirety can be read by clicking here.
In essence, as a result of an altercation with his wife's father, an order of protection (from the Criminal Court) was issued which prevented K-Rod (whose actual name is Francisco Rodriguez) from having any contact whatsoever with his wife. In direct violation of that order, K-Rod sent text messages to his wife. The content of the texts appear to have been innocuous enough (statements of love, apology, etc.) but that did not stop the police from arresting him for violating the order of protection. So now, instead of one legal battle on his hands, K-Rod has two: one for the original assault charge and a second for a charge of criminal contempt of a court order.
Family Court orders of protection are given the same weight as those from the Criminal Court. Moreover, police no longer have discretion about whether to arrest a subject of an order of protection once a violation is alleged (or they're not supposed to). The lesson here is obvious: if you are directed to comply with certain conditions as a result of an order of protection you absolutely must honor those conditions. Violations, even mild ones engaged in with the best of intentions, can land you in deeper trouble than you imagined.
For example, not long ago, the New York Post, among others, ran a story about K-Rod, the emotionally explosive closing pitcher for the New York Mets. The story in its entirety can be read by clicking here.
In essence, as a result of an altercation with his wife's father, an order of protection (from the Criminal Court) was issued which prevented K-Rod (whose actual name is Francisco Rodriguez) from having any contact whatsoever with his wife. In direct violation of that order, K-Rod sent text messages to his wife. The content of the texts appear to have been innocuous enough (statements of love, apology, etc.) but that did not stop the police from arresting him for violating the order of protection. So now, instead of one legal battle on his hands, K-Rod has two: one for the original assault charge and a second for a charge of criminal contempt of a court order.
Family Court orders of protection are given the same weight as those from the Criminal Court. Moreover, police no longer have discretion about whether to arrest a subject of an order of protection once a violation is alleged (or they're not supposed to). The lesson here is obvious: if you are directed to comply with certain conditions as a result of an order of protection you absolutely must honor those conditions. Violations, even mild ones engaged in with the best of intentions, can land you in deeper trouble than you imagined.
Friday, October 1, 2010
Child Support
Upon any separation between two parents, often the first question a parent left with the child will ask is how they are going to pay the bills on their own. Similarly, a parent who has left the home will often wonder how much they will have to pay for the support of their child(ren). Many of these questions can be answered by reviewing the controlling law in the State of New York which is the Child Support Standards Act (C.S.S.A.). (The Act in its entirety can be viewed at https://newyorkchildsupport.com/pdfs/cssa_2010.pdf).
The C.S.S.A. is merely a starting point since the act only concerns itself with basic child support amounts. There are other considerations and collateral expenses (i.e., health insurance, education, child care, life insurance, unreimbursed medical expenses, etc.) which are not contemplated by the act and which can be added to an order of support. The burden of proving these expense rests with the parent seeking support. The percentage that each parent will be responsible for these added expenses will depend on their relative incomes. For example, if one parent earns $100,000 and the other $50,000, the combined income is $150,000. The parent earning $100,000 makes up 2/3 of the total income and will generally be required to pay 2/3 of the total amount of those other expenses.
Each case is different, however, and support magistrates (the people who hear these cases in Family Court) have some discretion to deviate from these formulas (and the C.S.S.A. guidelines as well) provided there is good cause to do so, such as the existence of prior orders of support.
Generally, in the case of a W2 employee, the amount of support is a relatively straight forward calculation depending on the number of children. These cases get considerably more complicated (and difficult to prove) where the parent who is responsible for paying support actively hides assets and/or income, is working "off the books" or denies employment. In these cases, the litigation is vastly more arduous and it is often worthwhile to retain the services of an attorney, and a private investigator. The latter is an invaluable asset (though sometimes cost prohibitive) which can help unearth the true nature of a parent's income and/or assets. Whether a private investigator is needed is something you will need to discuss with your attorney.
As is the case with any litigation, preparation before going to court is vital. There is no reason a parent seeking support for a child should be short changed. It is, after all, the child's right to support that you are seeking to enforce.
The C.S.S.A. is merely a starting point since the act only concerns itself with basic child support amounts. There are other considerations and collateral expenses (i.e., health insurance, education, child care, life insurance, unreimbursed medical expenses, etc.) which are not contemplated by the act and which can be added to an order of support. The burden of proving these expense rests with the parent seeking support. The percentage that each parent will be responsible for these added expenses will depend on their relative incomes. For example, if one parent earns $100,000 and the other $50,000, the combined income is $150,000. The parent earning $100,000 makes up 2/3 of the total income and will generally be required to pay 2/3 of the total amount of those other expenses.
Each case is different, however, and support magistrates (the people who hear these cases in Family Court) have some discretion to deviate from these formulas (and the C.S.S.A. guidelines as well) provided there is good cause to do so, such as the existence of prior orders of support.
Generally, in the case of a W2 employee, the amount of support is a relatively straight forward calculation depending on the number of children. These cases get considerably more complicated (and difficult to prove) where the parent who is responsible for paying support actively hides assets and/or income, is working "off the books" or denies employment. In these cases, the litigation is vastly more arduous and it is often worthwhile to retain the services of an attorney, and a private investigator. The latter is an invaluable asset (though sometimes cost prohibitive) which can help unearth the true nature of a parent's income and/or assets. Whether a private investigator is needed is something you will need to discuss with your attorney.
As is the case with any litigation, preparation before going to court is vital. There is no reason a parent seeking support for a child should be short changed. It is, after all, the child's right to support that you are seeking to enforce.
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