Posts Tagged ‘children’
I wish I was making that up.
When I was a kid, I don’t think our parents used the phrase “play date.” I think we just went over to one another’s houses. I’m almost positive that no waivers and indemnifications were involved. I blame us lawyers for this, alas.
Will using smoking as a factor in child custody decisions lead family courts to regulate what children can eat, etc.?
A parent who smokes can pose a health risk to a child. Can anyone honestly dispute that premise? I know a parent’s smoking can be a factor in a custody decision because I have seen it happen. A child with some fairly serious respiratory issues would tend to come home from the non-custodial parent’s house with ailments ranging from the sniffles to bronchitis, and we had the medical records to prove it. I represented the custodial parent, obviously. The parent’s defense, in essense, was that no one was allowed to smoke in the house when the child was visiting. They smoked in the house when the child wasn’t around, and they smoked outside when the child was there. The parent did not seem to understand the tendency of the particulate matter put off by cigarettes to hang around an enclosed space long after the cigarette goes out. That would be what was making the child sick. The judge, in ruling in our favor, noted that the non-custodial parent did not seem to have much understanding of, or concern for, the child’s health.
It brings up a sort of interesring question: if courts can consider smoking as a factor in determining custody, how much further can they go in making decisions for the child’s health. Can one parent use the court to dictate everything the other parent feeds the child? Attorney Myra Fleischer, writing at the Washington Times last month, describes these concerns and pretty much dismisses them, which I think is correct:
Civil libertarians and parents may argue that the state may expand its intrusion into other family affairs if it is allowed to limit the right of a private citizen to smoke as a condition of being a parent. What if the child drinks too many sugary sodas, or plays violent video games? Most people bristle at the thought the state can monitor what a child eats, even though most people understand that a high fat, high sugar diet can lead to serious medical problems such as obesity and diabetes. If the state can control smoking by parents, couldn’t the state also control the type of diet a parent provides their children? It’s doubtful we will slide down this slippery slope, since the consequences of second hand smoke are well documented scientifically, giving the state an interest.
But this argument might as well be saved. Many courts have already decided that smoking should be a factor in custody decisions. Judge William F. Chinnock, visiting Judge to the Ohio Supreme Court, said in a law review article that a “considered analysis of family law across the United States leads to this inescapable conclusion: a family court that does not issue court orders restraining persons from smoking in the presence of children under the court’s care fails those children whom the law has entrusted to its care.”
The difference between smoking and the examples cited is that smoking has no benefits whatsoever for a child. Video games are fun and fatty foods are yummy, and in moderation neither is necessarily harmful. Particularly in the case of video games, there is nowhere near the body of scientific evidence demonstrating harm like there is with smoking. Prohibitions on smoking are nothing new in society. Restaurants maintained non-smoking sections long before cities and states enacted smoking bans. To my knowledge, no one has created a non-fatty food section in a restaurant (i.e. a place where fatty foods are banned). I suppose it’s possible, but it’s hard to imagine and relatively easy to guard against.
If a parent is feeding a child nothing but hot dogs, soft drinks, and ice cream, then that is a specific problem a parent can take to a family judge. If a child, with either the permission or acquiescence of a parent, plays “Call of Duty” to the exclusion of school and other responsibilities, that is also a significant impact on the child’s welfare. Most states’ family codes empower family judges to make orders that protect the “best interest of the child.” This tends to be a maddeningly ill-defined phrase, but caselaw offers a guide to what a court can and cannot consider.
Considering smoking as a factor in child custody makes sense from a health standpoint. It makes sense from a practical standpoint because, unlike video games or fatty foods, it is not taking something away from a child that the child wants (and if the child wants cigarettes, there is another problem). Finally, existing law already allows it. This should not be a serious issue of civil liberties. Adults ought to have the right to abuse their own bodies as they see fit, for the most part. When science clearly shows a harm that is not mitigated by any benefit to a child, then the law begins to take an interest in a parent’s activities as they pertain to a specific child (bolded because this is not about trying to stop people from smoking, eating ice cream, etc. in a general sense).
The interesting part is when people start to debate what activities of the parents directly harm the children. I happen to think very few of a parent’s activities done well out of the presence of their children directly harm them (particularly ones that do not produce secondhand smoke), provided the parent does a good job of keeping them separate.
Photo credit: By Opa (Own work) [Public domain], via Wikimedia Commons.
I feel comfortable calling it for the year with these two cases. The fact that I learned about them within a space of just over twelve hours just makes it that much odder.
From the “Didn’t we bring something else with us?” category, we have the parents who forgot their kid at Chuck-E-Cheese, then didn’t realize they forgot:
Parents of a 3-year-old girl had some explaining to do after they forgot their daughter at a Chuck E Cheese and did not realize it until they saw her picture on the evening news.
The girl, named Harmony, was left behind at the theme restaurant in Bel Air, Md., after she attended a large party with her parents. According to a report from the Harford County Sheriff’s Office, both of Harmony’s parents, who share custody, assumed the girl had gone home with other relatives.
A restaurant manager alerted sheriff’s deputies around 8 p.m. that the girl had been left alone after Harmony approached a staff member to say she was thirsty.
Unable to locate the 3-year-old girl’s parents, the deputies asked local news media to put Harmony’s picture on the evening news.
Shortly after Harmony’s picture showed up on the 11 p.m. newscast, multiple phone calls came into the Sheriff’s Office, including calls from the girl’s parents. After police determined that Harmony’s abandonment was inadvertent, Child Protective Services released her to her mother, and no charges are expected to be filed.
I’m glad everything worked out okay. Harmony may never want to go to Chuck-E-Cheese again, though.
A broken-down school bus on a garbage-strewn lot in Montgomery County was home until Wednesday for two children whose parents apparently are in prison.
A postal worker discovered a girl, 11, and her 5-year-old brother about 10 a.m. while making rounds along Three S Street near Circle H, officials said.
“They appeared to be unsupervised,” said Jamie Nash with the Montgomery County Precinct 4 Constable’s Office.
The bus had been converted into quarters for the children, with bunk beds and a window-mounted air conditioner. But shocked local officials said the youngsters’ living conditions were deplorable. What little food they could get at was in another building on the lot.
“Everyone who was on the scene talked about the odor – there was a lot of trash on the property,” Nash said.
Hayden found a woman on the property who is believed to be the children’s great-aunt. The woman said she works a 12-hour shift Monday through Friday, but was always with the children at night.
“Whether she was there or not, they were being unsupervised for extended periods. It’s not acceptable,” Nash said.
The children said they were home-schooled and are not listed on the rolls at the Splendora Independent School District, officials said.
Again, sounds like everything worked out okay, or at least things potentially could work out okay. The article also mentions that the parents are in prison for defrauding Hurricane Ike victims in 2008. Times are tough, but damn, that is very not okay.
Losing Their Immunity (Paul Krugman, New York Times)
Student loan debts crush an entire generation (Salon)
Republicans Channel Their Inner David Cronenberg (Open Salon)
The liberal class has become a useless and despised appendage of corporate power and all hope lies now with those in the street (And, yes, I DO take it personally)
They always whine when they see the pitchforks (Brilliant at Breakfast)
Police: Teen girl forced to wear armor, swordfight stepfather (MSNBC, in today’s WTF? entry)
I have long suspected that I hated dubstep, but I was never quite sure. Now that I have seen the video below, I can say with absolute certainty that I hate dubstep. I hate it to the point that, if I were ever trapped in a room with dubstep music on a loop, I would seriously consider chewing off my own leg (even if it was not strictly required in order to escape).
If dubstep can give a child the power to bring an all-powerful beat-down on a seemingly dangerous predator, as shown in the video for “First Of The Year” by Skrillex, then maybe it does have a use.
Of course, you can’t actually conjure demons with dubstep. Listen to this song enough times, though, and you will wish you could. Also, you know, the guy deserved his day in court, blah blah blah.
Honestly, if you want a good example of child-turns-the-tables-on-pedophile torture porn, check out “Hard Candy” with Ellen Page and Patrick Wilson. It’s not fun to watch. At all.
Now I have to go wash my brain again.
A judge in Connecticut has denied visitation rights to a man who served two years in prison due to a murder/suicide plot involving his child.
Judge Frank D’Addabbo Jr. ruled against Daniel Swoverland, who served just under two years for the plot to kill his daughter and himself. Swoverland had laid out funeral clothes, wrote a note saying where the bodies could be found, armed himself with a gun and took his daughter to Halls Pond in Ashford. State police found father and daughter, unharmed, in his car after the two had left the pond.
I now present my reasoned, detailed legal analysis of the judge’s ruling in this case:
I believe in second chances (I think I probably say that a lot on this blog). It is entirely possible that Swoverland has fully paid his debt to society and is truly reformed. But this is not about his rights.
This is about his daughter’s right to not be around people who have tried to kill her. The key consideration in any child custody determination is the “best interest of the child.” It is an ill-defined, subjective concept almost entirely left to the discretion of the trial judge, but it is also the best standard anyone has been able to come up with.
By all accounts, the Judge D’Addabbo looked at every possible perspective and did not just railroad Swoverland. Swoverland and his attorney also only asked for highly-supervised visitations. Still, it seems hard to argue that the child’s best interests are served by some time away from dad. The door is open for future visitation, but only when the child is ready.
The judge adopted the position of the sentencing judge, Superior Court Judge Joan Alexander, who held open the prospect of visitation at some future time, but only when the daughter, 8 at the time of the crime and now 12, was old enough to protect herself and seek help if she felt threatened or uncomfortable. D’Addabbo noted that Alexander envisioned that the child would be at least 18 before any visits occurred.
Even the mom agrees that some visitation should occur someday. But not now. This case is a good, albeit extreme, example of when a parent’s rights to their child are secondary to a child’s “best interest.”
I’m no stranger to saying dumb things without thinking. Mine usually come in the form of trying to make a joke too soon, as opposed to today’s story. Let me switch from snark to outrage.
An unbelievably tragic situation in California has bizarrely led to the threat of an ethics complaint against Sacramento lawyer Nabil Samaan. In short, after a bitter custody battle, it appears Mourad “Moni” Samaan and his 2-year-old daughter, Madeline, died in a murder-suicide from carbon monoxide poisoning. As of August 21, police are officially still investigating the cause of death, but murder-suicide is the prevailing theory. This occurred shortly after a court awarded the child’s mother, Marcia Fay, full custody of Madeline.
Marcos Breton at the Sacramento Bee said it best:
It doesn’t matter if husband and wife are bickering and fundamentally divided.
It doesn’t matter if the court system is a terrible arbiter for family disputes.
It doesn’t matter if one side is right and one side is wrong or both sides are right and both sides are wrong.
It doesn’t matter if you feel cheated and betrayed.
There is no justification for taking the life of a child – for taking any life.
One would hope that this is an axiomatic concept in this day and age. Perhaps Samaan was angry at the court system or his ex-wife. What would possibly lead to what he did? It’s a mystery to me, but apparently it’s not to to Samaan’s brother, Nabil Samaan, who had this to say:
I think he did the right thing. I’m proud of my brother and now he’s in a better place. He’s at peace. His daughter’s at peace. She’ll have one name now, and we can move on. And hopefully the court will learn a little thing about justice.
I take issue with words like “right” and “peace” in this instance, but the Center for Judicial Excellence has taken it a few steps further by stating they intend to file an ethics complaint against Nabil Samaan over his statement.
I have to say that, while such statements certainly “shock the conscience,” I’m not sure I see where disbarment would come in. He didn’t say anything that specifically affects an ongoing case in which he is counsel, and he could plausibly claim that his statement is protected by the First Amendment (it’s always the statements we deplore that test First Amendment protections.) It is also entirely possible that he spoke mostly out of grief or shock. I am not aware of any specific rule of attorney conduct that says a lawyer cannot be a complete and total jerk (hypothetically, of course). If there were such a rule, I suspect a great many lawyers would be in trouble.
That said, it’s not like there will not be any repercussions for the guy. I leave the final thought on the matter to ethics attorney Jerome Fiskin, who had this to say: “What kind of people search out an attorney who, um … yeah.”
Could not have said it better myself.
NOTE: I seem to be writing about ethics a fair amount, so I decided to create a new category for ethics. Now I have to go back and edit all my earlier ethics-related posts. Ugh.
The world is full of bad parents. Some parents give their daughters a new car that’s the wrong color. Others lock them in the basement and father multiple children by them over decades. There is obviously a vast, yawning gulf between those two examples, but I think it is fair to say that the legal system only needs to intervene in cases closer to that utter waste of genetic code from Austria.
Others may disagree with me.
Others like Steven A. Miner II and Kathryn R. Miner, feeling dissatisfied with a childhood free of basement imprisonment but also devoid of clever birthday cards, may decide to sue their mother, Kimberly A. Garrity, for the emotional distress caused by such omissions (h/t Geri Dreiling).
What horrible acts gave rise to their claim? The Chicago Bar Tender blog reported at the time the suit was filed:
- Garrity will invite one child to an event without inviting the other.
- Garrity would purchase things for Kathryn without purchasing anything for Steven.
- Garrity offered to provide college financial assistence to Steven and not Kathryn.
- Garrity did not provide Christmas or birthday gifts to Steven from 1996 through 2005 or Kathryn in 2007.
- When Steven took back a popsicle jewelry box he made Garrity, she called the police because she asserted there was a diamond necklace in it.
- Garrity told Steven that if he didn’t wear his seatbelt, she would drive to a local police station and tell the cops.
- Garrity smacked Steven on the head for no reason in 1994.
- Garrity did not provide “so much as a care package to Steven while he was away at college, while other parents send their children items and packages on a continuous basis.”
- Garrity “refused to assist Kathryn with the purchase of a dress but, provided Kathryn with the use of an automobile for homecoming; and then proceeded to contact her at midnight while she was with her friends and made her return the automobile.”
I read the complaint, and while it sounds like there was certainly a strained relationship between the children and their mother, nothing sounds too different from the thousands (if not millions) of other children of divorced parents around America. Some of the allegations relate to payment of child support and reimbursement of medical expenses, claims usually made by the other parent or the state (but maybe Illinois is different). Lest you wonder where their father has been through all of this, don’t worry. He’s one of the kids’ lawyers.
Maybe their childhood really was pretty awful. I know for a fact that it is hard to view one’s own childhood through a perfectly objective lens. We tend to remember our childhood with a child’s mind, not a rational adult mind, no matter how old we are. Still, once you are an adult, you are supposed to be able to deal with life on life’s terms, or to seek help from those qualified to offer it. A crappy childhood is not an excuse for misbehavior as an adult (except in some pretty extreme circumstances). The plaintiffs in this case are adults–barely adults, but adults nonetheless. They don’t need a lawyer to confront their maternal abandonment issues. They clearly need better therapists. However bad their childhood may have been, this is not the way to deal with it.
This is really, I suspect, just a case of a post-divorce parenting plan that did not work out very well. Happens all the time. It doesn’t sound like Garrity would have ever won any mothering awards, but that’s not exactly actionable. They allege some abuse by the mother but never really delve into it. Is this some contorted way of confronting real childhood demons, or a couple of teacup children acting out? I guess we’ll never know.
And what the H-E-double-hockey-sticks was their dad doing helping with this???
The case was dismissed, and the plaintiffs appealed. No, really.
An appellate court dismissed the appeal this week, renewing some semblance of my faith in our judicial system.
“Such alleged actions are unpleasant and perhaps insensitive, and some would arguably fall outside the realm of ‘good mothering,’ but they are not so shocking as to form a basis for a claim for intentional infliction of emotional distress,” said Judge Kathy Flanagan in a court statement, adding that ruling in favor of the children ”could potentially open the floodgates to subject family child rearing to … excessive judicial scrutiny and interference.”
Garrity’s lawyer had some choice words as well:
In court papers, Garrity’s attorney Shelley Smith said the “litany of childish complaints and ingratitude” in the lawsuit is nothing more than an attempt by Garrity’s ex-husband to “seek the ultimate revenge” of having her children accuse her of “being an inadequate mother.”
“It would be laughable that these children of privilege would sue their mother for emotional distress, if the consequences were not so deadly serious” for Garrity, Smith wrote. “There is no insurance for this claim, so (Garrity) must pay her legal fees, while (the children) have their father for free.”
On very rare occasions, “loser pays” doesn’t sound like such a bad idea.
A mother in Oregon, Trisha Conlon, recently lost a custody battle with her ex-husband, John P. Cushing Jr. The reason this has been news is because Cushing is now re-married to Kristine Cushing, whom he divorced after she murdered their two children in 1991. Kristine Cushing was found not guilty by reason of temporary insanity, and she attributed her actions to a bad reaction to Prozac. Conlon is understandably upset that she will now have an active role in raising Conlon’s two teenage sons.
This is a doozy of a case. What struck me, leaving aside the very pertinent issues of the safety of the children, is what the judge had to say after making his ruling:
Commissioner Leonid Ponomarchuk said that because the boys had been spending time with Kristine Cushing since 2008 with no problems — even if it was unknown to Conlon — there wasn’t evidence of a change in the situation that would warrant an alteration of the parenting plan.
“I have to look at this dispassionately,” Ponomarchuk said. “Would I ever want my children around her? I would say no. But that is an emotional reaction coming from a parent.”
As emotional as the case is, I agree with the judge here. I cannot say for certain if I agree with the ruling itself, but he is right about his duty to be dispassionate. Kristine Cushing was ruled temporarily insane, was treated at a psychiatric hospital and released, and has by all accounts “paid her debt to society.” If her actions (which technically do not constitute a crime) really were caused by an adverse reaction to Prozac (which, while controversial, is not unheard of), then she should not be a danger to the children as long as her psychiatric condition is monitored and she stays away from drugs like Prozac. It is difficult, if not impossible, to make that kind of analysis if you view the situation emotionally. Emotionally, the notion that CHILDREN ARE IN DANGER overshadows all other considerations, even when the evidence suggests that the danger is unlikely. It is an uncomfortable situation, but I cannot say the judge was wrong in his decision. I know he was right in his duty.
This case also led me to wonder what might happen if, instead of a woman who had killed her children, it was a man on the sex offender registry at the center of the story. Obviously the public outcry would likely be the same or greater, but how a judge might rule is an interesting question. Something somewhat like this is going on in Florida. In the case of Miranda Wilkerson, Donald Coleman has been awarded custody of his 4 year-old daughter Miranda. Coleman is on the sex offender registry for impregnating the child’s mother, whom he later married despite a 24-year age difference. The child’s mother died shortly after she was born, and the child went to live with her maternal grandmother, Rita Manning. Manning is now fighting to regain custody. An interesting tidbit here is that Coleman is the legal father of the child, since he was married to the mother when she was born, but he is not the biological father.
In many circumstances, it might seem noble for a man to fight for the right, and obligation, to care for a child who is not biologically related to him, as opposed to rejecting any responsibility. This is not one of those cases, unless it is. It appears that everyone in this case has some baggage: Coleman has a history of domestic violence (according to local news) and is on the sex offender registry, while Manning has received probation for child neglect. If the only things you hear are SEX OFFENDER and CHILD IN DANGER then it is easy to conclude that the judge made a colossal error. Court documents show, however, that this is indeed a complicated case:
Court documents released Friday afternoon detail how, after First Coast News started asking questions about why Coleman was fighting to get custody of another man’s child, his attorney filed a motion to get Miranda.
The motion said the woman who has been caring for Miranda since birth, her grandmother Rita Manning, was keeping him from the child and that Miranda was in danger.
The motion said Manning has a history of arrests: In 1995, she was charged with contributing to the delinquency of a child, but the case was later dropped.
In 1997, Manning was charged with child neglect. Around the same time, Manning’s then 14-year-old daughter, who is Miranda’s mother, got pregnant by Coleman who was 38-years-old. Manning got probation.
Coleman was sentenced to register as a sex offender for the rest of his life.
Perhaps Coleman was the best of some bad options. His status as a sex offender creates some automatic negative associations that must have weighed against him in court. He broke the law and did something many find both abhorrent and creepy, but it is a fair question whether his status as a sex offender by itself proves that he poses any ongoing danger. The same can be said for Manning and her history. It takes quite a bit of dispassion to slog through this mess of facts, arguments and innuendos.
We may not always like the way judges rule. We may suspect the impartiality of judges at times, and we are right to always demand adherence to the rules of judicial conduct. What we should never do is demand that judges use emotion to determine their rulings.
Here’s an interesting case that was discussed at the Family Law CLE last week. In In re: J.A.S., a case in the Texas 11th District Court of Appeals, a mother appealed the trial court’s ruling that the father be named the parent with the exclusive right to establish the child’s residence (in English, the court said the child could live with the father instead of the mother). The trial court based its decision in part on testimony and evidence that the mother had posted photos of an erotic nature of herself on AdultFriendFinder.com, and that the child’s best interest would not be served by remaining with the mother. The appeals court ruled that there was no abuse of discretion in considering evidence of the photos:
There was no evidence that [the child] had seen or was otherwise aware of any of the photos. But the fact that someone would post photographs like these of oneself on an internet website has some relevance because it bears upon their character. The trial court could, therefore, consider the photographs when making its best interest determination.
The court noted that there were other factors introduced that were relevant to the question of the mother’s character, including claims of fraud and attempts to alienate the child from the father. The issue on appeal was the pictures, though. Lawyers, divorce lawyers in particular, have been hearing about the dangers of social media for as long as there has been social media. Perhaps this is just an extreme example of how the things you do online can come back to haunt you.
I am curious, in a purely hypothetical way, about whether the online photos by themselves would have raised sufficient character issues for the trial court, or if they only worked in conjunction with the fraud issues to convince the court. The court acknowledged that tghere was no evidence of any harm to the child, and I’m not sure what potential harm could be alleged. Personally, I think a person can have unusual hobbies and still be a very good parent, but it’s still probably not a good idea in general to post nude pictures online. Be warned, dear reader(s).