Archive | Children’s Rights

When Can Custodial Parent’s Terminal Illness Justify Change of Custody?

Not until the parent becomes unable to care for the children, holds the New Jersey Superior Court in A.W. v. T.D. (N.J. Super. Ct. Ch. Div. Nov. 19, 2013). (Note that this relates to a change in custody, and does not necessarily govern an initial custody decision.) [UPDATE: I now include a link to the opinion, thanks to a commenter who passed it along.]

This case presents a serious issue of first impression regarding the impact a terminal cancer diagnosis may have on an existing custody arrangement. Plaintiff-father, who is the non-custodial parent, seeks an order granting emergency transfer of residential custody of the parties’ three minor children [ages twelve to fourteen] from defendant-mother, on the grounds that she now has incurable stage IV breast cancer requiring various medical interventions….

[Mother] … acknowledges … that, at some point in the future, her condition may deteriorate to the point where she can no longer physically care for the children. She further notes that under the circumstances, a transfer of custody to [father] may ultimately be inevitable and necessary. However, [mother] also contends that such a transfer of custody is premature at this time, and that at least presently, she is still able to care for the children. She stresses that her multiple family members who live nearby can all help provide her with physical, financial, and emotional assistance as necessary.

[Mother]’s two treating physicians, Dr. Paul Fowler and Dr. Charles Padgett, both confirm that [mother]’s cancer is, in fact, incurable and terminal. However, each doctor further opines that [mother] is presently stable and fully functional. They advise that while [mother] takes prescribed medication for her condition, her judgment is unimpaired. Most significantly, each physician concludes that that [mother] is able to continue caring for the children at this time….


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“No … Rule Required [Mother to Comply with Social Services Orders] with a Smile on Her Face”

From In re D.R. (Wash. Ct. App. Oct. 15, 2013) (nonprecedential) (some paragraph breaks added, some removed):

B.R. gave birth to a son, D.R., on December 10, 2006. Just before D.R.’s second birthday, Department of Social and Health Services (DSHS) removed him from B.R.’s care and initiated a dependency proceeding after a neighbor reported seeing the child’s uncle dangle him by the leg over a second story balcony. [Footnote: The uncle is the brother of Ms. B.R.’s eldest child’s father, and not actually related by blood or marriage to Ms. B.R. or D.R.]

The incident happened while B.R. was in the kitchen cooking and asked the uncle to hold D.R. so he would stop crying. When B.R. saw the uncle holding her son over the balcony, she ran over, grabbed D.R., and severely scolded the uncle.

Despite the uncle’s egregious conduct, and despite an agreement with DSHS to remove the uncle, B.R. did not ask him to move out. The uncle did move out for a time, but B.R. let him return not long after he moved out. B.R. explained that she did not force the uncle out because she did not believe that he posed an ongoing risk to D.R…. The situation resolved itself during the dependency when the uncle moved out and B.R. cut off all contact with him.

B.R. was required, as a condition of getting her child back, that she complete various evaluations, classes, and counseling sessions, all of which she completed successfully….

Despite this success, the trial court found that B.R. still remained unfit because:

The mother is currently unfit to parent this child because she continues to minimize the dangerous behavior of the uncle that was the reason that brought the child into foster care.

Even though the mother has complied with all services

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Hitting 12-Year-Old Child with Wooden Spoon Need Not Be “Child Abuse,” Even If It Leaves Bruises

So holds the California Court of Appeal in Gonzalez v. Santa Clara County Dep’t of Social Servs. (Cal. Ct. App. Oct. 8, 2013). The court does not holds that such behavior can never be child abuse, but it concludes that the Department of Social Services and the court below didn’t sufficiently consider the possibility that such behavior was permissible in this case. The key excerpt (some paragraph breaks added):

[A] successful assertion of the parental disciplinary privilege requires three elements: (1) a genuine disciplinary motive; (2) a reasonable occasion for discipline; and (3) a disciplinary measure reasonable in kind and degree.

Here there is no room for serious debate about the first and second elements. The social worker characterized Mother’s actions as born out of “frustrat[ion],” apparently meaning to imply that she was acting irrationally, in desperation. Nothing in the record supports such a view, or otherwise supports a rejection of the parents’ and Daughter’s consistent reports that the spanking was entirely the product of a genuine and deliberate disciplinary purpose, i.e., to arrest troubling behavior patterns exhibited by Daughter. There was no evidence of any other reason for Mother’s actions. The social worker failed to uncover evidence of any more general tendency toward violence in the home. There was no hint of eagerness or self-gratification in the parents’ resort to spanking. On the contrary, Mother testified without contradiction that she acted with great reluctance and regret.

Nor does the record suggest any reason to doubt that the circumstances furnished a reasonable occasion for discipline. All family members reported that Daughter’s conduct gave great cause for concern over the months preceding the spanking. Academically her grades were declining, she was failing to complete her homework, she was failing to arrive in class on time, and she was making false

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Parent Convicted for Publicly Humiliating 12-Year-Old as Punishment for Getting an “F”

From State v. Broten (Minn. Ct. App. Sept. 3, 2013) (some paragraph breaks added), which upholds the conviction:

In May 2012, officers from the Fridley Police Department were dispatched to a townhome in Fridley to investigate a report of a girl with a shaved head being forced to run outside wearing a diaper. An individual had called 911 to report that S.C.C., who was twelve years old, had been outside for over 30 minutes wearing only a diaper and a tank top. The individual also reported that S.C.C. was being disciplined for receiving an “F” on her report card and that her parents had shaved her head as part of the punishment.

When officers arrived at the townhome, approximately 30 to 50 people, including several adult men and teenage boys, had gathered to watch S.C.C. S.C.C.’s head had been shaved recently, and she was crying hysterically.

S.C.C.’s mother, appellant Stephanie Ann Broten, told officers that she did not understand what the problem was and that she was simply disciplining her child by embarrassing her. Appellant’s husband stated that S.C.C. had been warned several times that she would be forced to shave her head and wear a diaper if she did not start listening in school and getting better grades.

S.C.C. explained that appellant had shaved her head and that appellant’s husband had forced her to put on the diaper. S.C.C. also stated that she had been forced to go outside and run to the basketball court and back; that she had done that five times before the officers arrived; that one of her classmates from school had seen her and was calling her name while she was running; and that she told her classmate to leave her alone….

“A parent, legal guardian, or caretaker who, by an intentional act or

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No Presumption in Favor of Custodial Parent as to Changing a Child’s Last Name

An interesting opinion today from the New Jersey Supreme Court, Emma v. Evans (N.J. Aug. 12, 2013). In Gubernat v. Deremer, 140 N.J. 120 (1995), a case involving a dispute over a name chosen by the mother at birth (when the parents weren’t living together), the court concluded that,

[I]n contested cases the surname selected by the custodial parent –- the parent primarily charged with making custodial decisions in the child’s best interest –- shall be presumed to be consistent with that child’s best interests, a presumption rebuttable by evidence that a different surname would better serve those interests.”

But in Emma, the court concluded that this presumption in favor of the custodial parent (in this context, referring to the parent with whom the child lives most of the time) should not apply to renaming decisions:

When parents have agreed on a name at birth, the parent seeking the name change in a subsequent dispute must bear the burden of showing by a preponderance of the evidence that the name change is in the child’s best interest.

Seems right to me. [...]

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Poverty and Child Custody

An interesting Appellate Court of Illinois decision, Cole v. Johnson (Ill. App. Ct. July 23, 2013) (some paragraph breaks rearranged); see, in particular, the last three paragraphs:

The petitioner is Cody Cole, and the respondent is Kathryn Anne Johnson. They live in Paris, Illinois, and have a two-year-old son, L.C. They were engaged to be married, but they broke off the engagement and ended their relationship, and now they live apart. Neither earns enough to support a household.

[Mother], who has custody of L.C., met an oilfield engineer from Albany, Texas, Steven Sutton, who is about her age and earns $130,000 a year. He can earn this kind of money only in the oilfields of Texas. As of the date of trial, he and [mother] were engaged to be married ….

Pursuant to section 609 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/609 (West 2010)), [mother] filed a petition to remove L.C. from Illinois to Texas, so that she and L.C. could live with her soon-to-be husband, in Albany. After hearing evidence, the trial court denied the petition, finding that the proposed removal would not be in L.C.’s best interest. [Mother] appeals.

The best-interest finding is against the manifest weight of the evidence, considering the extent to which the proposed removal would improve the quality of life for both [mother] and L.C. Therefore, we reverse the trial court’s judgment and remand this case with directions to (1) grant the petition for removal and (2) craft a reasonable and realistic visitation schedule based on L.C.’s residence in Texas….

[Father], who is 23 years old, lives with his mother, stepfather, brother, and sister in a house in Paris, Illinois….

[Father] has a high-school diploma and one year of community college. He would like to attend a

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“Mature Minors” and Refusal of Likely Life-Saving Treatment

In re Sheila W. (Wisc. July 10, 2013) involves this issue, though the court declines to reach the question on grounds of mootness:

The petitioner, Sheila W., is a minor who was diagnosed with aplastic anemia. She opposed on religious grounds any life-saving blood transfusions and her parents supported her position. [Sheila W. is a Jehovah’s Witness. -EV]

The circuit court appointed a temporary guardian under Wis. Stat. § 54.50 for the purpose of deciding whether to consent to medical treatment. Sheila W. appealed, but the order appointing a temporary guardian expired while the case was pending before the court of appeals. The court of appeals then dismissed the appeal, concluding that the issues presented are moot and that the appeal does not sufficiently satisfy the criteria to address the merits regardless of mootness. Four issues are presented for our review:

First, notwithstanding mootness, should this court decide this case on the merits because it involves matters of statewide importance that are capable of repetition yet evade appellate review? Second, does Wisconsin recognize the mature minor doctrine, which may permit a minor to give or refuse consent to medical treatment after a finding that she is sufficiently mature and competent to make the treatment decision? Third, does a mature, competent minor have an enforceable due process right to refuse unwanted medical treatment? Fourth, did the circuit court violate Sheila W.’s common law and constitutional right to refuse unwanted medical treatment by appointing a temporary guardian to determine whether to give consent to medical treatment over her objections?

The court concluded the issue was moot because a transfusion was indeed ordered and performed, the guardianship then expired, and there was no plan to require further transfusions. And the court declined (by a 4-3 vote) to use the “capable of repetition yet [...]

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Can You Get a Restraining Order Against Someone’s Having Sex with Your Daughter (Who Is Above the Age of Consent But Under 18)?

From today’s Massachusetts Supreme Judicial Court decision in E.C.O. v. Compton:

This case concerns whether a parent may seek an extension of an abuse prevention order under G.L. c. 209A to prevent his daughter, who was sixteen years of age [and thus above the age of consent in Massachusetts] from voluntarily engaging in a sexual relationship with an adult.

The answer, the court said, was “no,” reversing such an order that had indeed been issued:

General Laws c. 209A enables a person “suffering from abuse from an adult or minor family or household member” to obtain a protective order directing the defendant, among other things, to refrain from abuse or contact…. [F]amily or household members include persons who “are or have been in a substantive dating or engagement relationship.” “Abuse” is defined as “the occurrence of one or more of the following acts between family or household members: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; (c) causing another to engage involuntarily in sexual relations by force, threat or duress.” The issuance of an abuse prevention order is a civil procedure, and abuse need only be proved by a preponderance of the evidence. A violation of an order to refrain from abuse or contact, however, is a crime, punishable by a fine or imprisonment in a house of correction, or both.

Here, as conceded by the father, the defendant has neither physically harmed nor attempted physically to harm the daughter. In addition, because she is over the age of sixteen, she is legally capable of “consenting” to sexual intercourse, and as admitted by the father, the defendant has not caused the daughter to engage involuntarily in sexual relations by force, threat, or duress. Thus, there was no basis for

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District Judges Split on Whether California Ban on Sexual Orientation Change Therapy for Minors Is Constitutional

I was too swamped yesterday to blog about this, but Prof. Howard Friedman (Religion Clause) has a characteristically excellent summary:

This week, two federal district court judges in the Eastern District of California, in two separate cases, reached opposite conclusions about the constitutionality of California’s new law (effective Jan. 1, 2013) totally banning mental health care providers from engaging in efforts to change the sexual orientation of anyone under under 18 years of age. In Welch v. Brown (ED CA, Dec. 3, 2012), Judge William Shubb entered a preliminary injunction barring enforcement of the Sexual Orientation Change Efforts legislation against the three plaintiffs who were challenging it in that case. He concluded that the law is a content-based regulation of speech subject to strict scrutiny:

Especially with plaintiffs in this case, it is … difficult to conclude that just because SOCE utilizing speech is a type of treatment, that the treatment can be separated from a mental health provider’s viewpoint or message…. Duk is a Catholic and, with patients that share his faith, he discusses [tenets] of the Catholic faith, including that “homosexuality is not a natural variant of human sexuality, it is changeable, and it is not predominantly determined by genetics.” … Similarly, Welch has explained that he shares the views of his church that homosexual behavior is a sin and that SB 1172 will “disallow [his] clients from choosing to execute biblical truths as a foundation for their beliefs about their sexual orientation.”

However, in Pickup v. Brown (ED CA, Dec. 4, 2012), Judge Kimberly J. Mueller refused to grant a preliminary injunction to prevent the law from taking effect. She wrote in part:

Courts reaching the question have found that the provision of healthcare and other forms of treatment is not expressive conduct…. As SOCE therapy is

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English Court Lets 10-Year-Old Girl Choose to Be Baptised, Over Jewish Mother’s Objections (but with Christian Father’s Permission)

There’s been some recent buzz about this court decision, In the Matter of C (Romford County Ct. May 11, 2012); see, for instance, here, here, and here. I tend to think the court decision is correct, and here’s why.

The parents were nonobservant Jews for most of their marriage, but at the very end of the marriage, the father converted to Christianity (Anglicanism, specifically). The parents seem to have what in America would be treated as joint physical and legal custody, with the daughter spending roughly equal time with each, and with each having equal authority over the daughter’s upbringing. The daughter, who is apparently a quite intelligent 10½-year-old, decided she wanted to get baptised, which in the Anglican church involves taking baptism classes as well as going through the baptism ritual. The father had encouraged the daughter’s interest in Christianity, but the court concluded that the daughter genuinely did want to go through the baptism, and had been seeking to do so for about ten months; nor did the court note anything that it saw as undue pressure by the father that would bring this about (though of course it’s very hard to figure out what counts as undue pressure in such a situation).

It seems to me that there are four key facts here:

(1) The court had to decide whether to forbid father from taking the daughter to baptism classes and letting her go through the baptism ritual. The question wasn’t whether the mother could, during her parenting time, continue to expose the daughter to Jewish rituals (which she had started doing in some measure following the breakup, though only by “lighting a candle in the home on Friday nights and explaining its significance to the children,” and which she seemed to want [...]

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California Bill Would Ban Psychotherapy Aimed at Changing Under-18-Year-Olds’ Same-Sex “Desires, Attraction, or Conduct”

The bill is SB 1172, and it bans “psychotherapy” of under-18-year-olds “aimed at altering the sexual or romantic desires, attractions, or conduct of a person toward people of the same sex so that the desire, attraction, or conduct is eliminated or reduced or might instead be directed toward people of a different sex.” This so regardless of whether the patient or the patient’s parents want the therapy to take place.

The bill also regulates such psychotherapy for adults, but the outright prohibition applies only to under-18-year-olds. [...]

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Foster Parenting and Religion

From BK v. New Hampshire Dep’t of Health and Human Services (D.N.H. Mar. 7, 2012):

This case raises the potentially important issue of whether state authorities violate the free exercise rights of children, or their parents, under the First Amendment by placing the children with foster families who subject them to practices abhorrent to their faiths. In this case, the plaintiffs are Hindi who allege that the foster families fed the children beef and took them to Christian religious services.

The court, however, has not yet dealt with this issue; the March 7 decision deals only with the state sovereign immunity question, and concludes that some defendants are entitled to such immunity and others aren’t. [...]

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Children’s Immunizations, and Disputes Between Divorced Parents

What happens when divorced parents with joint legal custody disagree about whether their child should be given the routine childhood immunizations? That’s the issue in Grzyb v. Grzyb (Va. Cir. Ct.), decided in mid-2009 but just uploaded to Westlaw a day or two ago.

The Grzybs were the divorced parents of a 3-year-old girl, with “joint legal custody of the child, which implicitly included joint decision-making regarding the child’s medical and health care.” The father wanted the daughter immunized, but the mother had a religious objection to the immunization:

Mrs. Grzyb … testified that she first formed a religious objection to vaccinations when she was pregnant with the child, that she “prayed about it a lot,” and felt “led by the Holy Spirit” to the conclusion that the child should not receive routine immunizations. She testified that “I never felt so strong about anything outside of faith as I do about vaccination.” … Ms. Grzyb’s pastor, the Reverend Scott Mauer, … [testified] that it was not a tenet of his religion that children remain unvaccinated. Rather, he testified that “this falls into an area that we would consider to be what the Bible often refers to as disputable matters, which are areas that the Bible does not necessarily address directly.” He continues:

in those cases, historically the position that the Baptist Church has taken is that a person should apply the best understandings of our truth of the scripture and also the sensitivities believing as the Holy Spirit and come to a conviction about it. And that furthermore if they do come to a conviction based upon those things, that they are then to be obedient to that conviction because the Bible is clear that, if a person has come to a conviction that they do believe is from

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Constitutional Right to Moderately Corporally Punish One’s Child

So held the Hawaii Supreme Court, in Hamilton ex rel. Lethem v. Lethem (Haw. Feb. 7, 2012), interpreting the Hawaii Constitution, though in reasoning that could be seen as applicable to the federal Constitution and to other state constitutions. And the court concluded that even a noncustodial parent retains this right “with respect to that child’s conduct during the visitation period.”

Based on this constitutional right, the court concluded that, to warrant the issuance of a domestic restraining order based on alleged child abuse, there must be (1) a finding that “the parent’s discipline is [not] reasonably related to the purpose of safeguarding or promoting the welfare of the minor,” (2) taking into account “factors such as [a] the nature of the misbehavior, [b] the child’s age and size, and [c] the nature and propriety of the force used.”

The court left it for a lower court to apply this standard to the facts of the case. Here, though, are the facts as alleged by the child (a 15-year-old girl), which led to the issuance of a restraining order against the father: [...]

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