Archive | Parental Rights

Adoption by Close Friend (and Not Romantic Partner) of the Child’s Parent

An “intimate partners without benefits” case, from In re Adoption of G., N.Y. Slip Op. 23454 (Surr. Ct. Dec. 27, 2013):

In this uncontested second-parent adoption proceeding, the court is faced with an interesting question: may two close personal friends, who together decided to adopt and have jointly participated in all aspects of the adoption process, and have been, in fact, raising a child together, be her joint, legal adoptive parents? For the reasons to follow, the answer is yes….

KAL and LEL met in 2000 and quickly became friends. They worked together for a number of years and their friendship deepened with time. Because LEL was a very close friend, KAL confided in him, telling him of her plans to become a mother using artificial insemination. LEL offered to be the father, rather than having KAL use an anonymous sperm donor and then be a single parent. KAL agreed. After two years of trying to conceive a child, including a round of unsuccessful in-vitro fertilization, KAL and LEL decided to instead adopt a child together.

KAL and LEL researched adoption options and together selected Ethiopia as the country of origin for their child. They spent years planning and hoping, when they finally received the call in 2011 that a child was waiting to be adopted. KAL and LEL traveled together to Ethiopia to meet G. for the first time. They then made a second trip to bring G. home to New York. Because KAL and LEL were not married to each other, they could not adopt G. together in Ethiopia, so KAL alone adopted her.

Upon returning to the United States, KAL registered the foreign adoption in Family Court in Kings County, New York. LEL then petitioned this court to adopt G. and become her second legal

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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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“Messiah” Returns

A month ago, a Tennessee judge ordered that a child’s first name be changed from “Messiah,” reasoning:

“The word Messiah is a title and it’s a title that has only been earned by one person and that one person is Jesus Christ,” Judge Ballew said….

According to Judge Ballew, it is the first time she has ordered a first name change. She said the decision is best for the child, especially while growing up in a county with a large Christian population.

“It could put him at odds with a lot of people and at this point he has had no choice in what his name is,” Judge Ballew said.

Back then, I argued that this decision was unconstitutional, and I’m happy to report that a higher court has indeed reversed it:

Chancellor Telford E. Forgety Jr. overturned Ballew’s decision, ruling that the lower court acted unconstitutionally. He said the lower court violated the establishment clause of the U.S. Constitution, and added that the court’s purpose was to determine the last name of the child, not his first name.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer. [...]

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State Takes Baby for First 75 Days of the Baby’s Life, Because of Mother’s Use of Poppy Seed Dressing

A federal district court has found that this happened, and that this violated the Constitution. From Bower v. Lawrence County Children and Youth Services (W.D. Pa. Aug. 12, 2013) (some paragraph breaks added):

In July 2009, Bower was a twenty years old resident of Lawrence County, Pennsylvania. On July 12, 2009 at approximately 7:00 p.m., Bower hosted a barbecue dinner at her new home. As part of the meal, Bower consumed linguini salad with McCormick Foods Supreme Pasta salad dressing which contained poppy seeds. Bower used two bottles of the salad dressing with one pound of pasta. Bower Deposition at 127. Shortly after dinner, Bower went into labor. During her pregnancy, Bower had received necessary and appropriate prenatal care and had passed every drug screen that had been administered, including a drug test taken approximately three weeks earlier, on June 22, 2009. At 9:20 p.m., Bower was admitted to Jameson for the birth of her second child.

At that time, Jameson had a written drug testing policy (the “Policy”) by which all obstetrical patients were administered a urine drug screen in order to identify newborns who may demonstrate symptoms of drug withdrawal and require special observation and treatment…. The hospital laboratory detection level for opiate metabolites is 300 nanograms/mL, which is far lower than the 2000 nanograms/mL level set by the federal government for federal workplace testing programs. Jameson’s Policy further required that if a mother tested positive, a drug test be performed on the newborn’s urine and meconium. The Policy required Jameson to notify its social service department whenever a maternity patient’s initial drug screen was positive. In July 2009, every initial positive drug screen result was reported by Jameson’s social services staff to LCCYS.

Even though the mother noted the possibility that the positive test result came from [...]

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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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“Woman Sues [Massachusetts] Over Required Contact With Rapist”

A reader e-mailed me about this incident and asked how it could be possible; for some sample coverage, see this WBUR story:

A 19-year-old Massachusetts woman is suing the state for requiring her to attend family court with the man who raped and impregnated her.

In court filings, the victim, whom WBUR is not naming, says she and her mother repeatedly told state officials that they “wanted no contact with [Jamie] Melendez for any purpose and that they did not want the child born of the crime to have a relationship with Melendez.”

Melendez pleaded guilty in September 2011 to a rape charge and was sentenced to 16 years probation, including regular visits to family court….

H.T. says Melendez was ordered to pay $110 a week in child support and then, in 2012, went to court seeking visitation. He offered to withdraw his request if the order for child support was voided….

I’m not an expert on this aspect of family law, but I’m pretty sure that even the distant possibility of visitation is present only because of a fact that the WBUR story doesn’t mention, though the criminal sentence (probation only) hints at it: this is a statutory rape case, not a forcible rape case. To quote the Massachusetts high court, which had decided an earlier aspect of the litigation, “A judge in the Superior Court found that when Melendez was nineteen years of age and the victim fourteen, the two were in a relationship and engaged in sexual relations. There was no evidence of force or coercion, and Melendez was not charged with forcible rape of a child.” (An ABC News story from last year adds that “According to the victim’s attorney, Melendez went to the girl’s house when he knew her mother would not be [...]

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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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Judge Orders That Child’s Name Be Changed from “Messiah”

So reports The Tennesseean; the parents came before the court because of a dispute over what the child’s last name should be, but the judge changed the child’s first name as well, giving two reasons:

“The word Messiah is a title and it’s a title that has only been earned by one person and that one person is Jesus Christ,” Judge Ballew said….

According to Judge Ballew, it is the first time she has ordered a first name change. She said the decision is best for the child, especially while growing up in a county with a large Christian population.

“It could put him at odds with a lot of people and at this point he has had no choice in what his name is,” Judge Ballew said.

The first reason strikes me as clearly unconstitutional under the Establishment Clause. A judge may not reject parents’ decisions based on her view of the messianic status of Jesus — that is a theological question that cannot be used as the basis of government decisionmaking about people’s rights. This principle most often arises in church property disputes, where the Supreme Court has held that courts may not decide which faction in a church is the more religiously orthodox, but it also applies more broadly to prohibit the government from adjudicating people’s rights based on theological judgments (see, e.g., United States v. Ballard). But beyond this constitutional question, I quite doubt that Tennessee law authorizes judges to make decisions based on their theological judgments.

The second reason is theoretically more defensible; some courts have indeed barred adults from officially adopting names that seem likely to cause fights (see, e.g., this article, and in particular the Misteri Nigger case plus possibly the Fuck Censorship! case, both cited by the article). [...]

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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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Foreign Child Custody Disputes Involving People Coming from Countries That Apply Islamic Family Law

I blogged about Souratgar v. Fair when the district court decision came down, but now there’s a Second Circuit opinion. Here are the key facts:

The boy at the center of this case, now four-year-old Shayan, was born in Singapore in January 2009 to [Lee Jen Fair] and [Abdollah Naghash] Souratgar, who are both residents of that country. Souratgar is an Iranian national who has owned a business in Singapore since 1989. Lee is a Malaysian national who worked as an airline attendant, saleswoman, and retail manager in Singapore. She converted to Islam, Souratgar’s faith, just prior to their marriage in Singapore in 2007. Shayan is a citizen of Malaysia with Malaysian and Iranian passports….

In April 2011, when Shayan was two, Lee filed an ex parte application in the Singapore High Court for sole custody. She cited concern that Souratgar would take Shayan from the country and cut her off from the boy. On May 16, the Subordinate Court of Singapore issued an ex parte order directing Souratgar to hand over Shayan’s passports and personal documents to Lee and barring Souratgar from removing the child from Singapore without court approval and Lee’s knowledge or consent. Souratgar complied with the order, denied Lee’s charges, and cross-applied for sole custody.

While the custody proceedings were pending in Singapore, Lee moved out of the marital home with Shayan and refused to disclose their whereabouts to Souratgar. He eventually found them in Malaysia, where Lee denied him access to the boy. Souratgar then filed a custody application in the Syariah Court of Malaysia, which granted joint custody to the couple in early July. Thereafter, Lee succeeded in obtaining a dismissal of that order from the Malaysian Syariah Court for lack of jurisdiction.

After Lee and Shayan returned to Singapore, the custody proceedings

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Tennessee Child Custody Law Favoring Parents Who Can Best Prepare Child for “a Life of Service”

I just ran across the Tennessee statute, Tenn Code Ann. § 36-6-404, that provides the factors that courts are to consider in determining physical custody as between two parents. Many states have such lists of factors, but the bold text seems to me to be unique to Tennessee:

(b) … The court shall make residential provisions for each child, consistent with the child’s developmental level and the family’s social and economic circumstances, which encourage each parent to maintain a loving, stable, and nurturing relationship with the child. The child’s residential schedule shall be consistent with this part. If the limitations of § 36-6-406 [which basically deal with abusive, neglectful, criminal, or otherwise unfit parents] are not dispositive of the child’s residential schedule, the court shall consider the following factors:

(1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult;

(2) The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;

(3) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child;

[Other factors, which are much more common in such statutes than factor 1 is, omitted. -EV]

(16) Any other factors deemed relevant by the court.

Now I know that Tennessee is the Volunteer State, but preferring parents who can inspire and encourage the child “to prepare for a life of service” strikes me as an improper judgment on the government’s part, and an interference with the parental rights [...]

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Asylum and Homeschoolers

Jonathan posted earlier today about Romeike v. Holder (6th Cir. May 14, 2013), which reject German homeschoolers’ asylum claim. The opinion is quite readable and persuasive, and I recommend it to those interested in the subject. But here’s my general thinking (reprised from 2010 post on the original immigration judge decision in the case), and stressing that I’m not an expert on asylum law:

It’s not clear that homeschooling (as opposed to private schooling) is constitutionally protected in the U.S. There appears to be no such general constitutional right, though there might be such a right under the Free Exercise Clause, at least as to children 14 and above, if the parents feel a religious obligation not to send their children to any school, private or public.

But even if the U.S. Constitution is read as securing such a right, can that be enough to secure asylum to everyone who wants to exercise the right, and can’t do so in their home country? Everyone who wants to own a handgun, but can’t do so under his or her home country’s law? Everyone who wants the ability to have an abortion should she get pregnant, but is not allowed to do so under her home country’s law? If the U.S. Constitution is read as recognizing a right to same-sex marriage, everyone who wants the ability to live in a recognized same-sex marriage, but is not allowed to do so under his or her home country’s law? That seems like an odd way of rationing the right to come to the U.S. (whatever one may think more generally about how open or closed our borders ought to be).

I should note that my family and I did come here as refugees from the Soviet Union. But whether or not [...]

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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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