While I myself have been too busy to post this past week, a few of my clients have found themselves quoted in the news. There's only one I can mention here. Cheryl Hayes, my former client, has authorized me to discuss her case after she thanked me for directing Associated Press reporter Steve LeBlanc to her this past Tuesday, thus resulting in her interview an hour later and a photo session that resulted in the following Associated Press article, AP IMPACT: Stimulus checks boost child support - washingtonpost.com, immediately published and picked up by some 300 news outlets around the world.
I find it a bit ironic that I had a hand in having my client pictured in this article, as she is a woman owed lots of child support by her exhusband and she is arguing that it is absolutely correct that the federal stimulus checks should be intercepted to pay down child support arrears. Well, I agree with her. However, up until just five or six years ago I was predominantly representing men in divorce actions. I have probably had more than my fair share of male clients who were the victims of child support orders that were too high. Indeed, I have long been both personally and professionally aware of the recent history of unfairness toward men in the Massachusetts family courts, both in custody and visitation matters and in child support determinations.
But what I now understand much better - now that I represent a larger, more representative sample of family law clients, including many more women now than before - is that family law victims are not of one gender. Too often irresponsible and even abusive individuals, whether male or female, are able to "win" in court, at least in some respects, even when the facts are against them.
When the reporter contacted me on Tuesday, and was seeking clients or previous clients who could speak to him about the issue of stimulus checks being intercepted to pay child support obligations, I immediately told him to speak with the Fathers and Families organization here in Massachusetts, and was told that he had already done so. The reporter needed, instead, somebody who was in favor of the interception of stimulus checks to pay child support arrears. Well, I certainly had someone for him. After calling Cheryl Hayes to get her approval to give her name and phone number to the reporter, I helped the reporter to make contact.
Cheryl Hayes wants even more publicity for her case, and wants me to tell even more of her story here, because it is so illustrative of the fact that there are indeed deadbeat dads out there. And boy, if there ever was one, her exhusband fits the bill. (Of course, there are deadbeat moms as well, and there are misguided, mistaken, and sometimes even incompetent court officials, and thus there exist numerous types of miscarriages of justice, leading to suffering by men, women, and children.)
The man who owes Cheryl Hayes some $30,000 somehow had the gall and the wherewithal to hire expensive attorneys to fight for the right to see his children, despite the fact that he had abused them and they were terrified of him. But this man failed to show up in court when the children's therapist and another mental health professional testified in court that the children suffered from quite egregious abuse by him while they were with him in North Dakota, and before the children moved with their mother to Massachusetts. This man has since left North Dakota and now lives in Minnesota, where he has managed to pay next to nothing in child support in the past three years, while the children have continued to struggle with therapy, and even institutionalization, as a result of his unspeakable abuse.
This man has failed to show up personally in Massachusetts to court for either of his family law cases - his visitation case (which led to a trial in which we won a ruling, after the above-described testimony, that he would have no contact with the children) and his child support case. This man has been able to avoid, halt, or otherwise dodge investigation by social service agencies and the police by moving from one state to another, and has avoided paying child support by perjuring himself in courts of at least two states, and by hiring attorneys in this state while achieving some degree of success in manipulating the court systems in at least two, and possibly three, states.
It is "men" like this who give all of us fathers a bad name and truly deserve to be called deadbeats. And it is cases like his - no less than the cases of fathers who are paying too much child support - that point up the fact that our courts are falling far short of their responsibility to find facts and dispense true justice.
We should not demonize all men who owe child support, as most of them are good people, even many of those who fall far behind in their support. (See my previous post Deadly Delinquents, Deadbeat Dads, and the Dangers of Demonization.)
Nor should we demonize men simply because they are accused of abuse. Men are more likely to be accused of abuse, but not really that much more likely actually to be guilty of abuse (physical or mental) than women, according to the available evidence. Because men are less likely to have custody of their children, and because men are still more likely to have greater expectations for financial contributions to their families, men are also more likely to be required to pay child support than women, and there is a greater number of men than women who fall behind in their support. However, men with child support obligations are more likely than women with child support obligations to actually pay those awards, according to the evidence.
These real statistics, often covered up by feminist groups and trumpeted by fathers' advocates, point out not only the inequality, unfairness, and gender bias in our expectations of both mothers and fathers that have resulted in numerous injustices in our family courts. These statistics also point to the sad reality that the facts of individual cases often do not matter: that family law conflicts too often lead to the wrong results (too much child support, not enough child support, custody to the wrong parent, etc.) because of the unfair procedures, bias, incompetence, and other failings in the judicial system.
Each case should be judged on its own facts. Far too often, because of the problems with our court system, the facts do not determine the outcome of cases. And irresponsible and abusive individuals too often are permitted to harm others with seeming impunity. And that's just sad. And wrong.
I have faith that our courts will improve. But we need more people who have suffered injustice in the family law arena to take the time to get involved and try to change the system. People like Cheryl Hayes. And people like the good men and women at Fathers & Families.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Showing posts with label Child Abuse and Neglect. Show all posts
Showing posts with label Child Abuse and Neglect. Show all posts
New Massachusetts Law on Child Passenger Safety
Recently, and as previously noted by Massachusetts Law Updates Massachusetts has passed a new child passenger safety bill. The new law provides: "No child under the age of eight and measuring less than fifty-seven inches in height shall ride as a passenger in a motor vehicle on any way unless such child is properly fastened and secured, according to the manufacturer’s instructions, by a child passenger restraint."
As explained on the Massachusetts government website, the new Massachusetts Child Safety Passenger Law, as of July 10, 2008, will
The federal regulations for child safety seats can be found at 49 CFR 571.213. For comprehensive information on passenger safety for children of all sizes, see the following from the website of the American Academy of Pediatrics: Car Safety Seats: A Guide for Families 2008.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
As explained on the Massachusetts government website, the new Massachusetts Child Safety Passenger Law, as of July 10, 2008, will
require children to ride as passengers motor vehicles in a federally approved child passenger restraint that is properly fastened and secured until they are 8 years old OR over 57" tall. The expanded law will require a booster seat/safety belt combination for children who have outgrown a child safety seat - typically when they are above age five or 40 pounds - until they are 8 years old OR over 57" tall. The Massachusetts Safety Belt Law requires safety belt use by those 13 years of age and older.
The federal regulations for child safety seats can be found at 49 CFR 571.213. For comprehensive information on passenger safety for children of all sizes, see the following from the website of the American Academy of Pediatrics: Car Safety Seats: A Guide for Families 2008.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Massachusetts Legislature Acts to Reform Child Abuse Laws, Prevention Measures, and Bureaucracy
Here's the best article I could find on the very important bill passed by the Massachusetts House and Senate on Tuesday, reforming child abuse laws and prevention within this state: Worcester Telegram and Gazette, by John Monahan: Child abuse protections approved/Legislature redefines laws, intervention. (It is interesting that when both the Boston Globe and the Worcester Telegram and Gazette - the New York Times-owned newspapers of our two biggest cities - run similar legal stories about a development in family law or crime, it is often the considerably smaller Worcester paper which has the more comprehensive and better article.)
The bill, which is expected to be signed by Governor Patrick, will among other things formally establish the Office of the Child Advocate in the governor's office (this office was actually already created by Governor Patrick by executive order as earlier discussed on this blog), give college benefits to children in foster care, and make many other changes designed to improve the Department of Social Services (DSS) - which the law will in fact rename "Department of Children and Families."
Unfortunately, as State Rep. James J. O’Day, himself a former DSS social worker, points out in the article (see the end of the excerpt below), the bill doesn't exactly put its money where its mouth is. The overburdened and often incompetent DSS will now be mandated, as the newly named DCF, to improve its performance, raise its standards, and do more work. But how exactly will that be possible if we do not also pay for more, and better, social workers to do the extra work? New rules and new methods of oversight can only do so much.
It's certainly hard to ask for more tax money for abused children, especially in a down economy, even here in Massachusetts. After all, it's been a long time since Bill Clinton declared that the era of Big Government is over. (And of course, the era of Big Government is indeed still over, at least for welfare and social services, though not for corporate welfare and federal war spending... but I digress.)
I am afraid this new law will prove far less effective than it promises to be, much like other unfunded, or underfunded mandates, such as No Child Left Behind. But I sincerely hope I am wrong about that.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
The bill, which is expected to be signed by Governor Patrick, will among other things formally establish the Office of the Child Advocate in the governor's office (this office was actually already created by Governor Patrick by executive order as earlier discussed on this blog), give college benefits to children in foster care, and make many other changes designed to improve the Department of Social Services (DSS) - which the law will in fact rename "Department of Children and Families."
Unfortunately, as State Rep. James J. O’Day, himself a former DSS social worker, points out in the article (see the end of the excerpt below), the bill doesn't exactly put its money where its mouth is. The overburdened and often incompetent DSS will now be mandated, as the newly named DCF, to improve its performance, raise its standards, and do more work. But how exactly will that be possible if we do not also pay for more, and better, social workers to do the extra work? New rules and new methods of oversight can only do so much.
It's certainly hard to ask for more tax money for abused children, especially in a down economy, even here in Massachusetts. After all, it's been a long time since Bill Clinton declared that the era of Big Government is over. (And of course, the era of Big Government is indeed still over, at least for welfare and social services, though not for corporate welfare and federal war spending... but I digress.)
I am afraid this new law will prove far less effective than it promises to be, much like other unfunded, or underfunded mandates, such as No Child Left Behind. But I sincerely hope I am wrong about that.
EXCERPT FROM TELEGRAM AND GAZETTE ARTICLE, BY JOHN MONAHAN:
BOSTON— The Legislature yesterday adopted broad changes in child abuse laws and prevention measures, beefing up police and social worker intervention programs, requiring closer monitoring of child abuse cases and more certain investigation requirements in cases of injured children.
Perhaps the largest change calls for the establishment of a powerful new Office of the Child Advocate in the governor’s office, independent of the state Department of Social Services, whose name is being changed by the bill to the Department of Children and Families.
Sections of the bill require the independent advocate’s office to investigate all critical incidents, receive and investigate complaints, and staff a 24-hour hot line for children in foster care. It also grants the office subpoena power to acquire witness statements and documents needed in child abuse investigations from private nonprofit agencies.
The bill is a compromise between two versions approved earlier in the House and Senate; it was adopted on unanimous votes in both chambers and sent to the governor yesterday for his review.
House Speaker Salvatore F. DiMasi said the bill followed up on findings from a House task force set up to investigate flaws in state child protection services and foster care, after revelations in the case of Haleigh Poutre, an 11-year-old foster child from Westfield.
In 2005, she was hospitalized in a coma from severe brain injuries allegedly suffered in beatings by a foster parent.
The bill would offer state assistance to pay not only tuition, but also college fees for state foster children and children adopted through the state Department of Families and Children, preventing an interruption of public services when they turn 18 as required under the existing system.
It also calls for social workers to have at least a bachelor’s degree and for supervisors to hold master’s degrees, and calls for police to investigate all cases of child injuries from the outset, and would bring police in to investigate situations that result in three child abuse complaints against a family.
Other provisions exempt information obtained by the Office of the Child Advocate from public records, and require more police training on handling minors when parents and guardians are arrested.
....
State Rep. James J. O’Day, D-West Boylston, a former DSS social worker, said while the bill improves child protection oversight and extends services past age 18 for foster children, it fails to invest in an expansion of the state’s social worker staff to provide better services and protective programs for children.
“This is not a panacea. There is always going to be, regrettably, child abuse,” he said.
“Oversight is oversight, but we need bodies out on the street dealing with families and helping families,” which is not accomplished in the bill, Mr. O’Day said.
“Without the workers to actually go out and do all the new work they are asked to do, it’s going to be an additional burden, to do more with less — the same old story,” Mr. O’Day said. “I would like to see more workers, more staffing, more services and the ability for workers to really do the work they are supposed to do with families. You can do that with 12 or 13 cases. You can’t do that with upwards of 22 cases.”
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Getting Tough On Child Rape
Soon after the Massachusetts House passed a bill earlier this month that would be tougher on the crime of child rape, the US Supreme Court set a limit on just how tough any state can be, when on Wednesday it held capital punishment for child rape to be unconstitutional. For further background on the case, see my previous post: Supreme Court to Consider Whether Death Penalty Can Be Imposed for Child Rape.
For information about Massachusetts criminal law, see the criminal law page of my law firm website.
EXCERPT FROM NEW YORK TIMES ARTICLE, BY LINDA GREENHOUSE, JUNE 26, 2008:
WASHINGTON — The death penalty is unconstitutional as a punishment for the rape of a child, a sharply divided Supreme Court ruled Wednesday.
The 5-to-4 decision overturned death penalty laws in Louisiana and five other states. The only two men in the country who have been sentenced to death for the crime of child rape, both in Louisiana, will receive new sentences of life without parole.
The court went beyond the question in the case to rule out the death penalty for any individual crime — as opposed to “offenses against the state,” such as treason or espionage — “where the victim’s life was not taken.”
Justice Anthony M. Kennedy, writing for the majority, said there was “a distinction between intentional first-degree murder on the one hand and non-homicide crimes against individual persons,” even such “devastating” crimes as the rape of a child, on the other.
The decision was the third in the last six years to place a categorical limitation on capital punishment. In 2002, the court barred the execution of mentally retarded defendants. In 2005, it ruled that the Constitution bars the death penalty for crimes committed before the age of 18.
....
For information about Massachusetts criminal law, see the criminal law page of my law firm website.
Texas Appellate Court Rules Against Government's Illegal Raid on FLDS
This just in from the Associated Press: Texas Appellate Court rules Texas wrongly seized FLDS sect children.
With no thanks to the national ACLU, and other suddenly silent, supposed defenders of civil liberties, the Third Court of Appeals in Texas just did the right thing in denouncing the outrageous government raid on the FLDS sect, and reversing the boneheaded trial court ruling. The appellate court's opinion is here. The appellate court, to its great credit, has echoed the concerns raised by those of us who are truly concerned about civil liberties, no matter whose liberties they are, and who are not afraid to say so publicly.
I have previously denounced the actions of the Texas authorities in unnecessarily and wrongly wreaking havoc upon hundreds of families, and I have joined a few others in criticizing the dishonest way in which the Texas government has done so, in what has become the biggest custody case in this country. But I say again: Shame, shame on the Texas authorities for their damn lies and statistics, their false pretexts, all leading to their illegal raid on an unpopular religious community, and traumatization of hundreds of families. Hopefully the court's ruling will not be too little, too late, for the hundreds of completely innocent individuals, and especially their victimized children, the vast majority of whom can only be proven to have been mistreated by the government that presumes to protect them.
And shame, shame on the media for covering this story in a politically correct fashion, and thereby misleading the public by easily succumbing to the government's obvious media manipulation. For more on this, see my three previous posts on this, Destroying the Polygamist Village to Save It, From Aluminum Tubes to Broken Bones: Texans, Lies and Statistics, and More On The Texas Polygamy Scare and The Civil Liberties Non-Scare, linking to previous stories and blog posts from Grits for Breakfast, and The Volokh Conspiracy, Wendy Kaminer, The Polygamy Files, and the few other voices around the country who have courageously come out in favor of the law, the constitution, civil liberties, and sanity, while they have also simultaneously, and virtually alone, reported accurately on this story to fill in for the most prominent national reporters and commentators who have cowardly gone AWOL. OK, rant over.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
With no thanks to the national ACLU, and other suddenly silent, supposed defenders of civil liberties, the Third Court of Appeals in Texas just did the right thing in denouncing the outrageous government raid on the FLDS sect, and reversing the boneheaded trial court ruling. The appellate court's opinion is here. The appellate court, to its great credit, has echoed the concerns raised by those of us who are truly concerned about civil liberties, no matter whose liberties they are, and who are not afraid to say so publicly.
I have previously denounced the actions of the Texas authorities in unnecessarily and wrongly wreaking havoc upon hundreds of families, and I have joined a few others in criticizing the dishonest way in which the Texas government has done so, in what has become the biggest custody case in this country. But I say again: Shame, shame on the Texas authorities for their damn lies and statistics, their false pretexts, all leading to their illegal raid on an unpopular religious community, and traumatization of hundreds of families. Hopefully the court's ruling will not be too little, too late, for the hundreds of completely innocent individuals, and especially their victimized children, the vast majority of whom can only be proven to have been mistreated by the government that presumes to protect them.
And shame, shame on the media for covering this story in a politically correct fashion, and thereby misleading the public by easily succumbing to the government's obvious media manipulation. For more on this, see my three previous posts on this, Destroying the Polygamist Village to Save It, From Aluminum Tubes to Broken Bones: Texans, Lies and Statistics, and More On The Texas Polygamy Scare and The Civil Liberties Non-Scare, linking to previous stories and blog posts from Grits for Breakfast, and The Volokh Conspiracy, Wendy Kaminer, The Polygamy Files, and the few other voices around the country who have courageously come out in favor of the law, the constitution, civil liberties, and sanity, while they have also simultaneously, and virtually alone, reported accurately on this story to fill in for the most prominent national reporters and commentators who have cowardly gone AWOL. OK, rant over.
ASSOCIATED PRESS:
SAN ANGELO, Texas - In a ruling that could torpedo the case against the West Texas polygamist sect, a state appeals court Thursday said authorities had no right to seize more than 440 children in a raid on the splinter group's ranch last month.
It was unclear how many children were affected by the ruling. The state took 464 children into custody in April, but Thursday's ruling directly applied to the children of 48 sect mothers represented by the Texas Rio Grande Legal Aide, said Cynthia Martinez of the agency. About 200 parents are involved in the polygamy case.
The Third Court of Appeals in Austin ruled that the state offered "legally and factually insufficient" grounds for the "extreme" measure of removing all children from the ranch, from babies to teenagers.
The state never provided evidence that the children were in any immediate danger, the only grounds in Texas law for taking children from their parents without court approval, the appeals court said.
It also failed to show evidence that more than five of the teenage girls were being sexually abused, and never alleged any sexual or physical abuse against the other children, the court said.
It was not immediately clear whether the children scattered across foster facilities statewide might soon be reunited with parents. The ruling gave Texas District Judge Barbara Walther 10 days to vacate her custody order, and the state could appeal.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Michael Jackson Just Needed A Sheet
And you thought Michael Jackson was crazy when many years ago he dangled his baby from a hotel window? Maybe he just needed a sheet below, onto which he could have dropped Prince Michael II. Don't get it? Then see the YouTube video below, for a bizarre ritual that provides a good example of when state intervention in a religious community is truly necessary to protect children. Hat tip to Family Lore.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Lawyers Are Good Doobies
Legal Blog Watch recently took note of the fact that about 350 lawyers, a majority of them family law attorneys, in West Texas have volunteered to represent, without any compensation, the 400 children taken by the state in its raid on the polygamist religious sect. Yes, it's true. Many lawyers are good doobies.
More On The Texas Polygamy Scare and The Civil Liberties Non-Scare
I have recently compared the troubling invasion by the Texas government of the polygamist sect near Eldorado, Texas, to our federal government's invasion of, and war on, the country of Iraq. I have yet another analogy. Yes, at the risk of creating confusion by making yet another comparison, sort of like mixing my metaphors, or similes, or whatever they are, I must say that this other related comparison comes to mind: Our relative silence and seeming disgregard or lack of concern for civil liberties, in the face of this polygamy and child abuse scare, reminds me of how our national fear of terrorism earlier permitted most of us to stand idly by while our Congress cowardly enacted the Patriot Act.
Thus I was rather encouraged upon finding, and listening to, the following, enlightening Lawyer to Lawyer radio show, hosted by Massachusetts lawyer, journalist and blogger Bob Ambrogi:
LegalTalkNetwork - Religion, Polygamy & the Law
In this discussion, it was great to hear the voice of lawyer and social critic Wendy Kaminer, and also that of a Texas lawyer involved in this case, Betsy Branch, who is one of a number of lawyers who has volunteered to represent, pro bono, some of the many adversely affected children. I'm glad to discover from this broadcast that Wendy Kaminer had already said, well before and much better than I did, in her April 21 blog post, The Free For All - Defending Mormon Polygamists: The ACLU Squeaks Up, that the ACLU really needs to speak up loudly and clearly, and that we all should be concerned about the huge civil liberties issues raised by this troubling case in Texas.
But in the radio interview, Wendy Kaminer goes even further. She says much more than the limited space permitted her to say on her blog, and she very well articulates many of the civil liberties concerns I think we all should have. It's really worth a listen, especially if, like me, you are not yet resigned to defeat in the never-ending struggle for restoration or preservation, if not expansion, of civil liberties and constitutional rights, even in this dark, post-Patriot Act era.
From Aluminum Tubes to Broken Bones: Texans, Lies and Statistics
Remember the Aluminum Tubes, Niger, and The Big Nuclear Threat from Iraq? These themes were brought to you by the Texan in the White House.
Well, now welcome to some new theatrical themes coming directly from Texas: Broken Bones and Teen Pregnancy Statistics. Texas officials are trying to put the spin on another questionable invasion, this invasion being merely that of an unpopular, religious sect rather than of a country.
For more on lies and statistics, media manipulation, and the current FLDS case in Texas, see the following:
Scott Henson, Dallas Morning News op-ed: Where's the evidence of abuse?
Grits for Breakfast: Lies and Statistics
The Volokh Conspiracy: More Statistics
Grits for Breakfast: Misleading PR initiative by DFPS muddies YFZ Ranch debate.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Well, now welcome to some new theatrical themes coming directly from Texas: Broken Bones and Teen Pregnancy Statistics. Texas officials are trying to put the spin on another questionable invasion, this invasion being merely that of an unpopular, religious sect rather than of a country.
For more on lies and statistics, media manipulation, and the current FLDS case in Texas, see the following:
Scott Henson, Dallas Morning News op-ed: Where's the evidence of abuse?
Grits for Breakfast: Lies and Statistics
The Volokh Conspiracy: More Statistics
Grits for Breakfast: Misleading PR initiative by DFPS muddies YFZ Ranch debate.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Destroying the Polygamist Village to Save It
I, like Robert Ambrogi at Legal Blog Watch, have been amazed to see such silence in the legal blogging community after the Texas raid on the polygamist sect in Eldorado, in which hundreds of children were taken away from their parents, in what has been appropriately called the biggest custody case in Texas, if not national, history. Despite claims that this is simply a case of the government's stepping in to protect children from abuse, this case strikes me to be just as much An Unusual Prosecution of a Way of Life, to use the precise words of the headline from the Washington Post article of a few days ago.
There are many obvious problems, constitutional and otherwise, with the Texas government's abrupt dismantling of hundreds of families, but I have seen precious little protest in the legal blogosphere, or elsewhere even. In fact, I've only found the posts of David Bernstein and Eugene Volokh at The Volokh Conspiracy to be seriously critical of this troubling state action, even though they seem, to me at least, just to be stating the obvious.
And so basically, like Katie Granju, in Knoxville, Tennessee, I wonder Where is the ACLU? Although the Texas ACLU initially expressed some concerns, we have lately heard nothing further from them, and, to my knowledge, nary a peep from the national headquarters of the ACLU. Perhaps this silence is somewhat understandable, as we may certainly find the idea of state intervention justifiable in order to protect children from abusive cultures.
But we should not be so quick to judge and condemn, and jump to conclusions about issues of freedom and abuse, at the expense of the Constitution, as the very good posts from the Texas blog Grits for Breakfast have indicated. Interestingly, as Ambrogi pointed out in his Legal Blog Watch post, there is more of substance to be found from this Texas journalist at Grits for Breakfast, and from the Salt Lake City reporter at The Polygamy Files than from either the major media sources or the legal blogosphere.
Well, it certainly doesn't take a lawyer to figure out that there are problems with the law having been interpreted and applied in such a way as to permit the round up of a whole group of individuals, based on the fraudulent word of one alleged informant, followed by the forced separation of a multitude of children from their parents, without a showing of any particularized threats of harm to those individual children. As a result, hundreds of small children will most surely be harmed in a very real way (and indeed that is already happening right now!) on account of the abrupt separation, at the hands of the state, of these children from their parents. Until recently, the judge even had ordered the separation of babies from mothers who were nursing them.
The state says: "Gee, we got a report of abuse, and it looks like the whole sect has children who may have been, or may be, subject to abuse by their parents, i.e. the girls as teenagers might be brainwashed or forced into sexual relations and marriage with older men." But is it really that simple, though? Are all of these children truly at risk? Will all of them be involuntarily forced into unions with older men? Are all of them in immediate risk of abuse? Can the government legitimately step in? So far the evidence provided by the state, for such a broad, sweeping action, has been pretty lame.
There appear to have been Fourth Amendment problems, and there probably will be Fifth Amendment problems as well, depending on how this sweeping DNA testing order is used. There was likely no probable cause for the warrant to issue, and both the arrest and resulting detentions were and are seriously constitutionally suspect. Of course, if individual crimes were committed, then individuals should be apprehended and charged. If children were abused, and crimes committed, the parents or others responsible should be charged. But how can the state round up a whole religious community, take all the children from their parents, take every one's DNA, and then try to make their case or cases after the fact?
I guess what I am trying to say is: What the hell?!
The "answer" to that question is just as lame as one might expect in response to such a question that is hardly ever asked: Oh, well. What's done is done. Now, we will just have to try to make everything right, now that we've broken up these families in order to protect them. Just trust our government to make the right choices in placing these traumatized children with appropriate foster parents, while we try to figure out what to do next.
This Texas case reminds me of our federal government's move in claiming there were weapons of mass destruction in Iraq, followed by its invasion and occupation of that country, against the will of the UN Security Council, after which it was then revealed that the justification for the invasion had been flawed and dishonest, but our government then shrugged its shoulders and claimed that "we can't get out now - we have to finish the job."
The federal government used fear to promote its aims, and the Texas state officials have done the same. In both cases the public was swept up in fear - in the first place, by fear of "terrorism" and in the second, by fear of "abuse." But in both cases, it seems these fears were and are overblown, and that such fears have been accompanied by, and intimately related to, quite a huge dose of government ignorance and incompetence. And it is quite certain that these fears projected upon the public - of "terrorism" and "abuse" - are also very tightly bound up in a distasteful, prejudicial fear of The Other.
All of this further reminds me of that famous line of the American officer who was quoted as saying, of the town of Ben Tre, Vietnam, that "it became necessary to destroy the town to save it." But did we need to destroy Iraq in order to save it? And must we now destroy the families in this polygamist sect in order to save them? Call me crazy, but I think the answer to both questions is no. I think we have already been tragically trigger-happy and foolish in both cases.
Now, don't get me wrong. I'm no fan of polygamy, or of the pressuring of 16-year-old teenage girls into marriage with older men; heck, I'm no fan of organized religion of any kind. What I have heard about this, and other, cults is none too attractive to me. Nor was I a fan of Saddam Hussein.
But I'm no more a fan of ignorant, incompetent government action that violates individual rights to life or liberty and that leads to certain harm, in the name of protection against uncertain harm.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
There are many obvious problems, constitutional and otherwise, with the Texas government's abrupt dismantling of hundreds of families, but I have seen precious little protest in the legal blogosphere, or elsewhere even. In fact, I've only found the posts of David Bernstein and Eugene Volokh at The Volokh Conspiracy to be seriously critical of this troubling state action, even though they seem, to me at least, just to be stating the obvious.
And so basically, like Katie Granju, in Knoxville, Tennessee, I wonder Where is the ACLU? Although the Texas ACLU initially expressed some concerns, we have lately heard nothing further from them, and, to my knowledge, nary a peep from the national headquarters of the ACLU. Perhaps this silence is somewhat understandable, as we may certainly find the idea of state intervention justifiable in order to protect children from abusive cultures.
But we should not be so quick to judge and condemn, and jump to conclusions about issues of freedom and abuse, at the expense of the Constitution, as the very good posts from the Texas blog Grits for Breakfast have indicated. Interestingly, as Ambrogi pointed out in his Legal Blog Watch post, there is more of substance to be found from this Texas journalist at Grits for Breakfast, and from the Salt Lake City reporter at The Polygamy Files than from either the major media sources or the legal blogosphere.
Well, it certainly doesn't take a lawyer to figure out that there are problems with the law having been interpreted and applied in such a way as to permit the round up of a whole group of individuals, based on the fraudulent word of one alleged informant, followed by the forced separation of a multitude of children from their parents, without a showing of any particularized threats of harm to those individual children. As a result, hundreds of small children will most surely be harmed in a very real way (and indeed that is already happening right now!) on account of the abrupt separation, at the hands of the state, of these children from their parents. Until recently, the judge even had ordered the separation of babies from mothers who were nursing them.
The state says: "Gee, we got a report of abuse, and it looks like the whole sect has children who may have been, or may be, subject to abuse by their parents, i.e. the girls as teenagers might be brainwashed or forced into sexual relations and marriage with older men." But is it really that simple, though? Are all of these children truly at risk? Will all of them be involuntarily forced into unions with older men? Are all of them in immediate risk of abuse? Can the government legitimately step in? So far the evidence provided by the state, for such a broad, sweeping action, has been pretty lame.
There appear to have been Fourth Amendment problems, and there probably will be Fifth Amendment problems as well, depending on how this sweeping DNA testing order is used. There was likely no probable cause for the warrant to issue, and both the arrest and resulting detentions were and are seriously constitutionally suspect. Of course, if individual crimes were committed, then individuals should be apprehended and charged. If children were abused, and crimes committed, the parents or others responsible should be charged. But how can the state round up a whole religious community, take all the children from their parents, take every one's DNA, and then try to make their case or cases after the fact?
I guess what I am trying to say is: What the hell?!
The "answer" to that question is just as lame as one might expect in response to such a question that is hardly ever asked: Oh, well. What's done is done. Now, we will just have to try to make everything right, now that we've broken up these families in order to protect them. Just trust our government to make the right choices in placing these traumatized children with appropriate foster parents, while we try to figure out what to do next.
This Texas case reminds me of our federal government's move in claiming there were weapons of mass destruction in Iraq, followed by its invasion and occupation of that country, against the will of the UN Security Council, after which it was then revealed that the justification for the invasion had been flawed and dishonest, but our government then shrugged its shoulders and claimed that "we can't get out now - we have to finish the job."
The federal government used fear to promote its aims, and the Texas state officials have done the same. In both cases the public was swept up in fear - in the first place, by fear of "terrorism" and in the second, by fear of "abuse." But in both cases, it seems these fears were and are overblown, and that such fears have been accompanied by, and intimately related to, quite a huge dose of government ignorance and incompetence. And it is quite certain that these fears projected upon the public - of "terrorism" and "abuse" - are also very tightly bound up in a distasteful, prejudicial fear of The Other.
All of this further reminds me of that famous line of the American officer who was quoted as saying, of the town of Ben Tre, Vietnam, that "it became necessary to destroy the town to save it." But did we need to destroy Iraq in order to save it? And must we now destroy the families in this polygamist sect in order to save them? Call me crazy, but I think the answer to both questions is no. I think we have already been tragically trigger-happy and foolish in both cases.
Now, don't get me wrong. I'm no fan of polygamy, or of the pressuring of 16-year-old teenage girls into marriage with older men; heck, I'm no fan of organized religion of any kind. What I have heard about this, and other, cults is none too attractive to me. Nor was I a fan of Saddam Hussein.
But I'm no more a fan of ignorant, incompetent government action that violates individual rights to life or liberty and that leads to certain harm, in the name of protection against uncertain harm.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Massachusetts and New England Tops for Children
More evidence that Massachusetts, and its sister New England states, are great places for children has just been released by the Every Child Matters Education Fund. Susan Scully Petroni, editor of the Bay State Parent magazine, reports on the good news at the Bay State Parent Blog here. The full report itself: Geography Matters: Child Well-Being in the States.
Excerpt from the Bay State Parent Blog:
"Massachusetts is the second best state in the nation for U.S. children, based on a diverse set of 10 child well-being standards, including lack of access to prenatal care, premature deaths, malnutrition, poverty, child abuse and teen incarceration, according to a major new report released by the non-profit and non-partisan Every Child Matters Education Fund.
In revealing a nation that is starkly divided with what are often 'deadly differences' in how it treats its youths, the report shows 'geography matters' greatly when it comes to the ability of U.S. children to be healthy and survive to adulthood.
For example, children in the bottom of all the states are three times more likely to die before the age of 14; five times more likely to be uninsured; and eight times more likely to be incarcerated as teens.
The states with the best performance for children are (in order) Vermont, Massachusetts, Connecticut, Rhode Island, New Hampshire, Hawaii, Iowa, Minnesota, Washington, & Maine. In fact, all 6 New England states made the top 10, making it the best region in America for children....."
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Guardian ad Litem or Attorney for the Child?
The Family Law Prof Blog yesterday issued the following post, which in discussing a recent Iowa appellate case also pointed to several other useful sources that explore some issues regarding the appropriate roles of, and distinctions that should be made between, guardians ad litem, appointed by courts to investigate issues in custody and abuse and neglect cases, and lawyers appointed to represent children:
Family Law Prof Blog: Case Law Development: Attorney for Child May Not Act as GAL
"The confusion between the status of attorney for the child and guardian ad litem was the target of appeal in Marriage of Anderson, an Iowa Court of Appeals decision. In this case, Mother requested appointment of a guardian ad litem in a custody case. However, the trial court's response was to appoint an attorney under the Iowa statute allowing appointment of an attorney for the child. The court then rejected the attorney's report and request to testify, finding that the attorney had not been appointed as a guardian ad litem.
Read In Re Marriage of Anderson (Iowa Court of Appeals, Dec. 28, 2007) (Last visited January 7, 2008 bgf)
The case is a fine example of the continuing debate regarding the role of attorney representatives for children. The Standards of Practice for Lawyers Representing Children in Custody Cases require that a judge appointing a lawyer for a child specify whether the attorney is a “Child’s Attorney” or a “Best Interests Attorney.” The ABA’s Standards of Practice for Attorneys Who Represent Children in Abuse and Neglect Cases, while recognizing the hybrid attorney/guardian ad litem role for lawyers under certain circumstances, expresses a clear preference for the attorney for the child model. Based in part on these standards, the National Conference of Commissioners on Uniform State Laws is preparing a Uniform Representation of Children in Abuse and Neglect and Custody Proceedings Act. Professor Atwood's fine article exploring the policy choices in the uniform act can be accessed from her SSRN page: Atwood, Barbara Ann, "The New Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act: Bridging the Divide Between Pragmatism and Idealism" . Family Law Quarterly, 2007 Available at SSRN: http://ssrn.com/abstract=938211
...."
For information about Massachusetts divorce and family law, see Law Offices of Steven Ballard.
Governor Patrick Issues Executive Order Creating Watchdog Child Advocate Office
Gov. Patrick is to create an Office of the Child Advocate that will track cases of child abuse and neglect, and that will oversee the Department of Social Services, Department of Youth Services, and other agencies with responsibilities relating to children. This is a good idea, especially given the problems we have had with the performance of our state agencies. Such oversight authorities have already been set up in some other states. There is justified hope that this new office may improve the competence and effectiveness of our state agencies. See today's Boston Globe article on this news by Andrea Estes: Patrick order will create watchdog child advocate office - The Boston Globe, December 20, 2007, by Andrea Estes
"Governor Deval Patrick today will create the state's first Office of the Child Advocate, a watchdog with power to investigate allegations of child abuse and neglect and to monitor state agencies that provide services to children, state officials said yesterday.
The office will not have the broad powers of child advocates in some other states, who can issue subpoenas, hold public hearings, and even sue state agencies.
Nonetheless, Massachusetts child welfare advocates said it was an important move after a spate of high-profile abuse and neglect cases in recent years.
'Finally,' said MaryLou Sudders, president of the Massachusetts Society for the Prevention of Cruelty to Children. 'You need someone who can ask tough questions and has the backing of the governor. The office of child advocate is in response to a series of tragedies and legislative oversight hearings. There's no question about it.'
The state agency that handles foster care, the Department of Social Services, has come under fire for several high-profile tragedies in recent years. In 2005, 4-year-old Dontel Jeffers died at the hands of his foster mother. Haleigh Poutre was left comatose in 2005 after a beating by her adoptive mother, who was under DSS supervision. And 4-year-old Rebecca Riley of Hull died after being given an overdose of psychotropic medications in 2006 by her parents, who had been monitored by DSS...."
For information about Massachusetts divorce and family law, see the Massachusetts Divorce & Family Law Page of my law firm website.
"Governor Deval Patrick today will create the state's first Office of the Child Advocate, a watchdog with power to investigate allegations of child abuse and neglect and to monitor state agencies that provide services to children, state officials said yesterday.
The office will not have the broad powers of child advocates in some other states, who can issue subpoenas, hold public hearings, and even sue state agencies.
Nonetheless, Massachusetts child welfare advocates said it was an important move after a spate of high-profile abuse and neglect cases in recent years.
'Finally,' said MaryLou Sudders, president of the Massachusetts Society for the Prevention of Cruelty to Children. 'You need someone who can ask tough questions and has the backing of the governor. The office of child advocate is in response to a series of tragedies and legislative oversight hearings. There's no question about it.'
The state agency that handles foster care, the Department of Social Services, has come under fire for several high-profile tragedies in recent years. In 2005, 4-year-old Dontel Jeffers died at the hands of his foster mother. Haleigh Poutre was left comatose in 2005 after a beating by her adoptive mother, who was under DSS supervision. And 4-year-old Rebecca Riley of Hull died after being given an overdose of psychotropic medications in 2006 by her parents, who had been monitored by DSS...."
For information about Massachusetts divorce and family law, see the Massachusetts Divorce & Family Law Page of my law firm website.
To Spank or Not to Spank
The answer is no. Don't spank.
The trend, throughout the US, is away from corporal punishment, even if there is no trend to outlaw it explicitly. While spanking is not clearly outlawed in Massachusetts, our case law does not clearly condone it either. And there is currently proposed legislation here that would indeed explicitly outlaw it; if the legislation is passed, Massachusetts could become the first state to prohibit parents from using corporal punishment.
I just read an interesting post on the subject in today's Massachusetts Law Updates, the Massachusetts Trial Court Law Library's blog: Spanking and the Law. Although I'm not sure a law banning parents from spanking their children is necessary or even a good idea, I am sure myself that spanking itself is a bad idea. I believe parents should act as though such a law is already in effect.
I say don't spank, first of all, because as a parent I don't believe spanking is a good means of discipline, I have never used it myself, never needed it, and never would use it. (Of course, my current aversion to spanking may have something to do with the fact that my son is now old enough and big enough to spank me back...)
Second of all, I say don't spank, because I am a divorce and family law attorney. As such, my clients are by and large parents who are in the process of getting divorced, parents who are already divorced, or parents or other parental figures in divorce, guardianship or paternity disputes. Such parents in particular often have to worry about potential or ongoing disputes with other parents or other rivals in custody and visitation matters, and it's not generally a good idea to be giving your potential enemies ammunition to use against you.
But finally, and most importantly - and this is strongly related to my own personal objection to spanking - I say don't spank because there is a fine line between physical discipline and abuse. Where there are children, there are mandated reporters. In our schools and hospitals, and elsewhere, there are officials, teachers, counselors, medics, medical and psychological professionals, who are mandated to report any suspected neglect or abuse to the Department of Social Services.
Really, it's just better not to spank. There's a better way.
Massachusetts Law Updates: Spanking and the Law
The trend, throughout the US, is away from corporal punishment, even if there is no trend to outlaw it explicitly. While spanking is not clearly outlawed in Massachusetts, our case law does not clearly condone it either. And there is currently proposed legislation here that would indeed explicitly outlaw it; if the legislation is passed, Massachusetts could become the first state to prohibit parents from using corporal punishment.
I just read an interesting post on the subject in today's Massachusetts Law Updates, the Massachusetts Trial Court Law Library's blog: Spanking and the Law. Although I'm not sure a law banning parents from spanking their children is necessary or even a good idea, I am sure myself that spanking itself is a bad idea. I believe parents should act as though such a law is already in effect.
I say don't spank, first of all, because as a parent I don't believe spanking is a good means of discipline, I have never used it myself, never needed it, and never would use it. (Of course, my current aversion to spanking may have something to do with the fact that my son is now old enough and big enough to spank me back...)
Second of all, I say don't spank, because I am a divorce and family law attorney. As such, my clients are by and large parents who are in the process of getting divorced, parents who are already divorced, or parents or other parental figures in divorce, guardianship or paternity disputes. Such parents in particular often have to worry about potential or ongoing disputes with other parents or other rivals in custody and visitation matters, and it's not generally a good idea to be giving your potential enemies ammunition to use against you.
But finally, and most importantly - and this is strongly related to my own personal objection to spanking - I say don't spank because there is a fine line between physical discipline and abuse. Where there are children, there are mandated reporters. In our schools and hospitals, and elsewhere, there are officials, teachers, counselors, medics, medical and psychological professionals, who are mandated to report any suspected neglect or abuse to the Department of Social Services.
Really, it's just better not to spank. There's a better way.
Massachusetts Law Updates: Spanking and the Law
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