Author: Lianna

December 10, 2020 by Robert Franklin, JD, Member, National Board of Directors

In Ireland, there’s currently a plaintive call for the reform of spousal maintenance and, if this article’s accurate, it can’t come any too soon (Irish Times, 11/28/20).

It was just 25 years ago that the Irish Constitution was amended to permit divorce and since then divorce has been pretty rare.  In a population of about five million, Ireland had only about 3,500 divorces.  That’s less than one-third the divorce rate of the U.S.

Still, the Irish system of divorce is not only out of step with the times, it’s out of step with itself.  That’s nowhere as apparent as in its approach to spousal maintenance.  The law on maintenance was passed 20 years before the constitutional amendment allowing divorce and hasn’t changed since.  That law presumes that one spouse will indefinitely support the other regardless of the status of their marriage.

“In the context of divorce, what you have is the marriage ceases, but your obligations continue indefinitely,” [solicitor Geoffrey Shannon] says. “No single concept alone can govern the system of maintenance, yet we have a system where the focus is on lifelong spousal maintenance.”

Now, in a country that frowns on divorce, encouraging lower-earning spouses to divorce doesn’t make much sense.  That’s what I meant by the system being out of step with itself.  It’s also out of step with common sense.  Married adults make the societies in which they live generally healthier, happier, more productive, more law-abiding, etc.  So healthy public policy discourages divorce.  But offering lifetime financial incentives to divorce does the opposite.  It’s not sensible public policy.  And of course the awareness of the possibility of having to pay spousal maintenance in the event of divorce tends to discourage marriage in the first place, again, not a sensible policy.

As to being out of step with the times, Shannon has this to say:

“Really what I am saying is that the payment of maintenance between former spouses should facilitate a smooth transition from dependence to economic independence, ensuring that the dependent spouse is provided for until he or she is self-sufficient.”

Right.  I’ve made the same point many times.  This is the 21st century.  There is no impediment in Ireland to any adult’s supporting themselves and, where possible, they should do so.  No healthy adult should be able to permanently depend on another person for support.  Yes, there are exceptions.  Some people are severely disabled or too elderly to work at gainful employment.  In those situations, some spousal maintenance can be said to be fair.

But Irish law contains no restrictions on who must pay or for how long.

A couple might only be married for four or five years, and have no children, yet the Irish system presumes the possibility of one spouse having a lifelong financial obligation towards the other.

In that, the state systems governing alimony in the U.S. are a cut above the Irish one, but we needn’t be smug.  Our laws governing spousal maintenance need a complete overhaul to reflect much of what Shannon described.  Alimony should be the rare exception.  Healthy adults need to support themselves, their children and, if necessary, their parents in old age, but not an ex-spouse who doesn’t like them enough to live with them.  Again, it’s the 21st century; adults need to start acting like adults and sensible alimony reform would encourage them to do so.

November 25, 2020 by Robert Franklin, JD, Member, National Board of Directors

The U.S. Supreme Court recently heard arguments in the case of Fulton vs. City of Philadelphia.  It’s a case with the potential to significantly impact the provision of foster care to children at risk of abuse or neglect.

Now, on the surface, it’s a First Amendment free exercise of religion case, or at least the plaintiffs hope so.  The factual background is this: Catholic Social Services and its predecessors provide numerous services to the community and have for over two centuries.  Among those are the recruitment and vetting of foster parents.  The City of Philadelphia identifies children at risk of abuse or neglect and, in some cases, seeks foster parents for them.  When they do, they contact any of several private agencies like CSS who maintain lists of foster carers and, if a match for a child is found, then he/she will be placed with one of those families.  In short, CSS contracts for the provision of those services with the City of Philadelphia.

Or did, until recently.  That’s when the city discovered that CSS, being a Catholic organization, rejected all same-sex couples as possible foster parents.  The city claimed that violated city policies on same-sex marriage and so terminated CSS as one of its contractors for foster care services. 

CSS sued claiming that the city’s action violated its free exercise rights under the First Amendment.  The city seems to have advanced a variety of justifications for its stance against CSS, but eventually simply inserted into its regulations governing contracting with foster care providers a requirement that none discriminate on the basis of sexual preference.

I’m the furthest thing from an expert on the Free Exercise Clause, but I can certainly see that there’s no requirement anywhere that cities contract for services with any group or organization, religious or otherwise.  I can also see that governmental entities are constitutionally prohibited from discriminating on the basis of religion and, in the process chilling the free exercise thereof.  That’s particularly true in a situation such as foster care, in which the state has a monopoly on the provision of services.  If it doesn’t contract with you, no one does.  I can also see that the Free Exercise Clause was probably originally meant to be an individual right, not one of any religion generally.  That is, the framers of the Constitution surely intended the Free Exercise Clause to permit individual people to practice any religion they saw fit.  The distance between that and requiring a state to hire a Catholic organization to provide services to it is, to say the least, great.

But the kicker for me has nothing to do with either religion or the Constitution.  It has to do with kids.

Specifically, every state in the nation suffers a shortage – and in some cases as severe shortage – of qualified foster parents.  CSS has always done a good-enough job or finding, vetting and training foster parents whom it then provides to children in need.  Faced with a shortage of qualified foster parents, what does the City of Philadelphia do?  It reduces the number of foster parents available to it for placement of children in need.  Make sense?

After all, CSS is far from the only private provider of foster care services.  There are numerous others.  It’s the only one of those that doesn’t include same-sex couples on its list of appropriate families.  So, if a same-sex couple wants to foster kids, they can simply go to one of the other agencies.  And that appears to be what they have done.  No same-sex couple has ever approached CSS for certification as foster-care providers.

The simple fact is that there are more children in need of foster care than adults willing to provide it.  So, as a practical matter, it makes no sense for the City of Brotherly Love to reduce its supply of foster parents.  The city terminated its contract with CSS in March of 2018.  A matter of days later, it issued what it termed an “urgent plea” for 300 more foster homes.  At the time, CSS had a dozen such homes all vetted and ready to receive kids, but the city that had such an urgent need, used none of them, not because they weren’t appropriate homes, but because the agency offering them holds views on homosexuality that are rejected by the city.

Remember that the next time a state tells you how passionately devoted to children’s welfare it is.When it came to Kids vs. Political Posturing, the City of Philadelphia never hesitated.

November 23, 2020 by Robert Franklin, JD, Member, National Board of Directors

At first glance, it’s hard to say whether this article is simply a puff piece for Ontario lawyer Richard Gordner or information about an important issue (Windsor Star, 11/17/20).  Truth to tell, it looks like both.  After all, the piece features not one, not two, but three photos of Gordner preening for the camera and begins thus:

Windsor lawyer Richard Gordner beat the odds when the Supreme Court of Canada agreed to hear arguments on a child support case that could be precedent setting across the country.

As some criminal lawyers I know often say, “Good ad.”

But, if one slogs beyond the breathless references to the lawyer, it turns out the case he’s involved in actually is quite important.  It’s about child support arrears and under what circumstances they can be reduced or negated entirely due to the loss of income on the part of the non-custodial parent.

Gordner represents Felice Colucci, Lina’s ex-husband, who was ordered in 1996 to pay his former wife $115 a week per child in support for their two daughters.

“By about 1999, his income had changed dramatically,” Gordner said. “He was laid off from his job so his income dropped.”

Colucci says he asked his wife for a decrease to those payments but she declined his request.

That’s not surprising because Canadian law makes it quite difficult for a child support obligor to get a downward modification of an existing order or a reduction of arrears.  Most importantly, the entire child support system assumes that a person like Colucci, who’s just lost his job and can’t pay $230 per week, simultaneously can pay huge sums to a lawyer to file the appropriate proceeding in court, dicker with the other lawyer, make appearances in court and possibly get the contested amount reduced.  For example, Colucci is now a general laborer about whom his lawyer says this:

“My guy’s 64 years old. He works in a greenhouse for minimum wage,” Gordner said. “How’s he going to pay? He’s got nothing. How’s he ever going to pay $175,000? It’s absurd. He can never pay it. It’s impossible. He’ll be long dead before that’s ever paid.”

That $175,000 is the amount the Province of Ontario claims Colucci owes his ex-wife (not his two children who are now adults) as back child support.

So the first problem with this case and others like it is that the law engages in a fiction – that the obligor, who can’t pay the small amounts he periodically owes, can nevertheless pay large sums to a lawyer.  Gordner, to his great credit, is handling this case pro bono, but, needless to say, that’s far from the norm.

Meanwhile, this article and the case it describes give an idea of just what’s expected of a person seeking downward modification or reduction in arrears (Feigenbaum Law, 5/2/19).

However, the court found that the accumulation of arrears without evidence of a past inability to pay did not constitute a change in circumstances. Additionally, a present inability to pay did not by itself justify a change order. The court explained: 

“Such an order should only be granted if the payor can also prove a future (emphasis added) inability to pay.”

In short, a person in Colucci’s position is required to produce evidence in court sufficient to convince a judge that he/she suffers under a past, present and future inability to pay.  Needless to say, that takes a lawyer and probably an accountant to accomplish.  How’s a guy like Colucci going to afford that?

And in any case, what does a “future inability to pay” have to do with past arrears?  Yes, it’s possible that an obligor who lost his job has, on the eve of the trial, just acquired a new one that pays enough to meet his child support obligations, but I suspect that rarely happens.  And if it has happened, why not place the onus on the recipient to simply ask the obligor a question or two the answers to which will provide the court the necessary information?  Why should every obligor face the virtually impossible burden of in some way “proving” that, at no time in the conceivable future will he/she be offered a well-paying job, will a rich uncle die or will other possible sources of income miraculously become available?

In the previous case, the court went on to state the variables to be considered by courts in these cases:

1. The nature of the obligation to support, whether contractual, statutory or judicial;

2. The ongoing needs of the support recipient and the child;

3. Whether there is a reasonable excuse for the payor’s delay in applying for relief;

4. The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;

5. The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient;

6. Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears; and

7. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears.

In short, essentially every one of those considerations fairly shouts “No reduction!”  Does the child have an “ongoing need” of support?  Of course he/she does.  Could a reduction in support occasion a hardship to the child or the custodial parent?  Of course it could.  And of naturally, while any delay – in payment, cooperation with child support authorities, provision of financial information, etc. – by the payor is held against him, delay on the part of the recipient “even a long delay” will have no effect.

According to the provincial court, the deck is clearly stacked against the obligor.

And it is that stacked deck that attorney Gordner wants the Supreme Court of Canada to set right.  And the fact that the Supreme Court has agreed to hear the case is why it’s such an important one.  Supreme Court decisions are binding on all the courts in the country, so whatever the high court decides in this case will have far-reaching consequences.

Let’s hope the justices are as impressed with Richard Gordner as is the Windsor Star.

November 18, 2020 by Robert Franklin, JD, Member, National Board of Directors

The Office of Child Support Enforcement has come up with another process for getting child support obligors to pay what they owe.  It’s formally called Procedural Justice-informed Alternatives to Contempt (PJAC).  In fact, it’s mediation and, like mediation, it has its benefits, but also suffers from its drawbacks.  PJAC is a relatively new program, but, if this report is any indication, it won’t do much to make the child support system what it should be – for the support of the child and fair to both parents.

The linked-to report describes PJAC as a system in which custodial parents and non-custodial parents who don’t pay are contacted by a PJAC-trained individual with an eye toward facilitating an agreement with which each agrees and that increases the likelihood of payment.  The report accurately points out that,

Research has shown that if people perceive a process to be fair, they will be more likely to comply with the outcome of that process, whether or not the outcome is favorable to them.

But the process referred to isn’t the original process that established child custody, parenting time and child support, it’s the PJAC process that seeks an amicable agreement between the two parents to either enforce or modify the original order.

And therein lies the problem that’s true of all forms of mediation – the parent whose position has the power of the court behind it is not strongly encouraged to negotiate and compromise.  Why would they?  If Mom knows that the court is going to issue an order sending Dad to jail or suspending his license to drive or an occupational license, what impetus does she have to make a deal?

The report informs us that, in 94% of the cases in which PJAC was used, some sort of a deal was struck between the parents modifying the original court order.  But it also admits that

When assigned a new case, the PJAC case manager thoroughly reviews the history of each parent’s case (or cases) before making contact with the parents to assess their willingness to participate in a case conference.

In other words, the project being reported on consists solely of parents who were willing to participate in the program.  It’s therefore unsurprising that a high level of agreement was obtained, given that only parents who thought they could come to an agreement were part of the project.  Tellingly, only 47% of the parents initially referred to the program ended up participating.

Then there’s this:

The PJAC demonstration project aims to address parents’ reasons for nonpayment, improve the consistency of their payments, and promote their positive engagement with the child support program and the other parent.

And this:

During a case conference, a PJAC case manager facilitates a back-and-forth exchange between parents to identify reasons for nonpayment, come to a preliminary agreement about how to address these reasons for nonpayment, and develop a plan to achieve payment compliance.

Yes, let no one be confused about the purpose of the exercise – getting the non-custodial parent to pay, or, in the parlance of the report “achieve payment compliance.”  And in that regard, we all know who has the whip hand – the custodial parent who’s backed up by the court and its power of contempt and the entire apparatus of the state child support enforcement authority that’s funded in large part by federal money.  The non-custodial parent?  He’s supported, if at all, by a badly-paid and overworked lawyer who knows from the outset that his client isn’t holding any cards.  This, as I understand it, is called “fairness.”

Into the bargain, the message conveyed to the NC parent is, once again, that his main (only?) value to the system is the money he/she pays.  Is it any wonder those parents refuse to pay?

Now, it must be admitted that the linked-to report does mention the possibility that the reason the NC parent isn’t paying is that his/her parenting time is being denied by the custodial parent.  And occasionally, the PJAC caseworker encourages the custodial parent to agree to stop impeding the NC parent’s access to the child.  No word on whether those agreements actually have the desired result.

Way back in 1998, Sanford Braver and others did research revealing the Number One reason why non-custodial fathers don’t pay what they owe to be the denial of access by the custodial mother.  Any program that fails to correct that will never do much toward fixing the child support system.

But far more importantly, courts that recognize the value of fathers to children and that demonstrate the fact by ordering equal parenting as their default parenting arrangement will do more than anything to ensure that kids are adequately cared for when their parents split up.  Not only will the amount of child support ordered come down dramatically, but whoever’s charged with paying it will be more willing to do so because he/she perceives the system that produced the order as fair.

It’s the sine qua non of the entire child custody/child support system.  Period.

November 17, 2020 by Robert Franklin, JD, Member, National Board of Directors

In Scotland, national health services make a strong effort to see to and help with parents’ mental problems that often attend pregnancy and the birth of a child.  Now, when I say “parents,” I actually mean “mothers.”  The program, Perinatal and Infant Mental Health was established last May and announced it would be making £1 million in grants to non-profit organizations working in perinatal mental health.  So hundreds of organizations that try to help new fathers with the mental/emotional challenges of paternity applied for a share of the funding.  All were denied (Edinburgh News, 11/4/20).  Not a single fathers’ group received so much as a brass farthing.

The government defended its decision saying that four (out of 15) organizations that received funding include fathers in their services.  What that amounts to of course is that, since fathers aren’t explicitly excluded from those services, well, they must be included. 

The reality appears to be quite different.

As part of their ‘How Are You Dad’ project training health professionals to ask dads about mental health, the charity found that a quarter of fathers said they feel like they can’t cope and around half sought help – but more than 80 per cent of those who looked for professional help found it hard to access services…

Thomas Lynch, service manager at Dads Rock, said the charity has seen a massive increase in calls for help from dads: “When there’s a new baby that can be a real crisis point for the whole family. But health visitors are so stretched, so they often focus on mums…

After his son Malcolm was born in January Seamus Skinner, from Edinburgh, struggled with mental health but felt he couldn’t talk to health services.

“I was suffering from depression and anxiety before and have taken medication for it for years. It definitely got so much worse after our son was born. I felt so isolated and there was so much uncertainty. I’d asked for counselling in the past and was told my problem wasn’t ‘severe enough’ so it’s not something I felt I could push for.

Little noted by public health services and mental health professionals, fathers often suffer from post-natal depression (PND) just like mothers do.  The science on that is pretty well established and why wouldn’t it be?  The almost-certain cause of PND is the extreme fluctuations in hormone levels women undergo during pregnancy and shortly after birth.  Of course fathers undergo their own hormonal changes, sometimes mirroring those of their partner.  Plus, the challenges of caring for a newborn are, by themselves, daunting.  Add parental depression to that mix and parents can often need outside help just to keep moving forward.  So it’s no surprise that fathers may battle mental health issues before and after the birth of their children.

But state-provided services continue to focus almost exclusively on mothers.  That’s bad enough simply because fathers tend to be left out of the picture.  But it’s doubly so because the single greatest risk factor for paternal PND is the mother’s PND.  Stated another way, if the health system is treating a mother for PND, it should probably be treating her partner as well.  But it tends strongly not to.

That information comes to us courtesy of the excellent Dr. Anna Machin whose book “The Life of Dad” I’ve reviewed and referred to many times.  Machin also points out that inattention to the mental health of parents has profound effects on the mental health and social functioning of their children.  Children whose parents suffer PND tend to have poorer outcomes on a range of psychological and behavioral measures than other kids.  Examples include social withdrawal, autism spectrum disorder, PTSD and attachment disorder.  Those have all been correlated specifically with mental problems in fathers.

And poor social functioning in kids impacts the national treasury since they require greater mental health support, educational support, tend more toward crime and incarceration, drug and alcohol abuse than other kids, etc.

So you’d think that governments everywhere would be attending to the mental health of fathers, but, as Machin rather exhaustively reports, they don’t.  The failure of the Scottish government to provide any money at all specifically for fathers’ perinatal mental health is, sadly, more of the same. 

Kudos to Fathers Network Scotland for raising hell about the issue.

November 2, 2020 by Robert Franklin, JD, Member, National Board of Directors

The movement toward shared parenting in Japan may be gaining steam, albeit slowly (Washington Post, 10/18/20).  Interestingly, that’s true more due to international pressure than support for reform inside Japan.

Now, the linked-to article is from the Washington Post.  That of course means that the spin given to the movement toward shared parenting suggests that the current system in Japan particularly benefits fathers and harms mothers.  So we’re treated to iterations like this:

When Izumi finally tired of her husband’s affairs, she decided it was time to separate and made plans to take their three young children with her.

But her husband was one step ahead.  He prevented her from taking the children and soon denied her the right to even see them after the divorce.

Now, the reason Japan’s system is such a dysfunctional one is that it almost invariably grants sole custody to one parent or the other.  It does so on the basis of the principle of “continuity,” i.e. that the parent who’s been the primary caregiver up to the time of separation should be the parent with sole custody.  According to that theory, the children will be less stressed by the divorce because their care remains roughly the same as ever.

That of course is (a) pretty much the message delivered by the long-discredited book “Beyond the Best Interests of the Child,” by Goldstein, Solnit and Freud, (b) the de facto behavior of countless courts in the U.S. and the rest of the English-speaking world and (c) the exact opposite of what’s in children’s best interests.

But notice that, according to the Post, Izumi’s husband’s deed was a dastardly one, not because it harms the children (which it surely does), but because he prevented Izumi from doing exactly the same thing.

Throughout the article, it’s mothers who complain about the system (and we’re all glad they do), but, in reality, it’s overwhelmingly fathers who lose contact with their children.  In Japan, the overarching rule is that divorce causes kids to lose their fathers, not their mothers.  Nowhere is that simple fact acknowledged by the Post.

Indeed, the article doesn’t get around to acknowledging that some 90% of custodial parents in Japan are mothers.  And when it does, it strongly suggests the practice is a thing of the past.

In previous decades, men worked long hours and women looked after children.  Courts awarded custody to women in about 90 percent of cases. Today, more Japanese men are seeking custody after divorce — and more women are finding themselves denied access to their children.

It would have been more accurate to say that, although work/parenting time ratios may have changed, Japanese courts are still extremely biased in favor of maternal custody, it’s mostly fathers who lose contact with their kids and kids with their fathers.

Plus, the Post article compares Japan (mostly unfavorably) to other countries that, readers are told, have systems of joint parenting.  That of course is technically true.  Western nations mostly have laws that are written in scrupulously gender-neutral language, suggesting that fathers and mothers get equal treatment in family courts and kids maintain meaningful relationships with both parents following divorce. 

The reality is quite different.  Yes, according to court orders governing their cases, children generally have the right to see both parents post-divorce, but in fact, those courts typically fail to enforce orders of visitation that, in any case, provide such limited time for the non-custodial parent to see his/her children as to negate any potential benefit to the kids.  The simple facts are that 80% of custodial parents in the U.S. are mothers, that most orders for visitation are for every other weekend, plus a couple of hours during the week, it’s extremely difficult to have those orders enforced and that a whopping one-third of the children of divorce have no contact with their fathers.

To the Washington Post, that’s something for which Japan should strive.  It’s not.

Of course, how the Washington Post chooses to express itself is important to public discourse around the issues of family courts and children’s well-being, but not very much so regarding what’s happening in Japan.  There, international pressure is, to a significant extent, responsible for the continuing attention paid to custody and parenting time reforms by the Japanese government.

For many years now (as reported by yours truly), Japan has made an international name for itself by protecting Japanese mothers who marry non-Japanese men abroad and later kidnap their children to Japan where they’re shielded from any form of responsibility by Japanese laws, customs and courts. 

Many of those fathers and the governments of their countries are now urging change in Japan.  Three years ago, the government appointed a commission to look into the matter.  No word on its findings or on the possibility of reform.

Still, the scent of change is on the breeze in Japan.  No one seriously expects radical change, but any at all would be an improvement and that seems likely to occur.

October 29, 2020 by Robert Franklin, JD, Member, National Board of Directors

As I mentioned last time, Naomi Schaeffer Riley’s article “Fixing the Foster Care System,” isn’t about, well, fixing the foster care system.  That’s because, as she strongly suggests, there is no fix.

I’ve said it many times before, trying to protect children from abusive or neglectful adults is difficult to the point of impossibility.  Even under ideal circumstances, knowing the difference between a lack of resources and child neglect can be a crap shoot.  Likewise, knowing what sort of abuse is sufficient for a parent to lose a child isn’t always easy.  Should spanking be all it takes?  Some people think so, but, whatever your particular take on the matter, abuse meted out by a parent must be considered against the trauma of separation from that parent.

And that’s if the circumstances are ideal, which they literally never are.  Invariably it seems, case workers are overworked and underpaid.  They have too many cases and are paid less than others similarly educated and experienced who don’t work for state CPS agencies.  Paperwork requirements pile more work on caseworkers who have too little time as it is.  Time and again, we see them filling out forms rather than visiting the homes of children who may or may not be at risk of harm.  Riley gets that.

 The truth is that there is a shortage of good foster homes, public and private caseworkers are overworked and undertrained, and many foster parents are viewed as glorified babysitters, undeserving of information about allergies, abuse histories, or other vital information in caring for children. The result is a system that takes shortcuts when it comes to children’s safety and well-being…

Of course, money plays a role in all this. There are those who argue that because the federal government pays states when kids are in foster care or group homes but does not do as much to compensate them for the preventive services that keep kids out of those situations, we are effectively incentivizing states to warehouse children. But caseworkers also have plenty of incentive to leave children in their homes—removing kids is a bureaucratic morass, requiring court hearings and more paperwork, not to mention the need to find a place for the child besides the caseworker’s cubicle. 

All true, but…

What’s also true is that we often see CPS agencies bending over backward to do more work, expend more money, use more resources, etc., all to hound perfectly fit parents.  How many times have we seen agencies throw multiple caseworkers, managers, lawyers and more at parents only to eventually learn that no abuse had occurred and that the agency had ignored clear signs indicating that, for example, a medical condition had caused a child’s bruising or bone fracture.  If caseworkers are overworked, and they are, how to explain their threats against parents who did nothing more than allow a fully capable child to go to a park alone?  Don’t they have better things to do?

In short, what Riley neglects in her sole focus on money is that governmental agencies have a way of arrogating power to themselves.  CPS agencies are often guilty of running roughshod over the rights of parents and children alike and for the purpose of taking children from their homes.  Doing so may be a “bureaucratic morass,” but if it is, why are caseworkers so enthusiastic about diving in?

As state senators and veteran CPS managers have told us, the flow of federal money to the states occasioned by the 1998 Adoption and Safe Families Act radically altered the behavior of child welfare agencies.  After the ASFA’s effective date, states were far more likely to take children from parents, push them into foster care and then into adoption for the simple reason that Washington was paying them to.  That’s one thing that’s got to change and preferably stop altogether.  Why does the national government have to stick its paws into what is a quintessentially state matter?

Now, I’m sure Riley would respond that taking federal money out of the process wouldn’t remove all money from the process and therefore monetary incentives for particular behaviors.  She’s right.  But then the question would become what incentives states would be offering, i.e. what actions by state agencies would be rewarded.  It’s a fair question.  What metrics would be applied to CPS?  More children taken from parents?  Fewer?

But what if states focused on providing services to parents?  Numerous veteran CPS workers have begged for exactly that over the years.  Why not put the “Services” back into Child Protective Services?  A lot of parents simply don’t know what’s available to them for children in need.  Why not make CPS their go-to agency for information on healthcare, education, psychological counselling, etc.?  Instead of being terrorized by the very thought of CPS, what if parents felt confident that the state would actually help them?

Some kids need to have different homes, but many parents just need assistance to care for their children properly. 

October 26, 2020 by Robert Franklin, JD, Member, National Parents Organization

I was very pleased at the headline on this article – “Fixing the Foster Care System” – and powerfully disappointed after I read it (Institute for Family Studies, 10/14/20).  I was disappointed because the author, Naomi Shaeffer Riley, who is highly knowledgeable about child welfare issues, never suggests a way to, well, fix the foster care system.  Still, the piece is a good read, mostly because it informs us of a potentially dangerous and hitherto unseen trend.  And, after all, the title can be read tongue-in-cheek.

The bulk of Riley’s piece is about the movie Foster Boy that makes that most dubious of cinematic claims – to be “based on true events.”  That of course can mean anything and much of the movie, I suspect, is about as much based on true events as, say, Little Shop of Horrors. 

So, what’s important about another mediocre movie?  Maybe nothing, but what’s worrisome is the narrative the film promotes.  In a nutshell, it wants viewers to believe that the abuse and neglect to which children are often subjected in foster care is all the result of private contractors that provide services to state CPS agencies.  In short, it’s another attack on corporate America with the none-too-subtle corollary that the state is preferable to the private sector.

Perhaps worse is the fact that the movie has the abused black former foster child, Jamal, saved by a white lawyer who sees the light and sets aside his evil ways (representing corporations, being a conservative)

In short, the film uses the real issue of child welfare agencies and foster care as a sort of prop to promote a “woke” frame of mind in its viewers.

Riley has a few facts to offer in rebuttal.

This is bonkers. For-profit foster care companies represent a small fraction of the organizations—both public and private—that certify foster homes and place children in them. Forty-three states don’t use for-profit companies at all. In states that do, like Massachusetts, they account for 4.42% of placements. The idea that the problems of our child welfare system are driven in any way by greedy foster care magnates drinking expensive champagne and flying on private jets is laughable.

State child welfare agencies and foster care could indeed be a worthy subject for a well-done film.  After all, in those systems there are villains galore and victims aplenty.  What viewer wouldn’t root for a little kid caught between an uncaring and incompetent state agency, a well-meaning but stuck-behind-the-8-ball foster family and a biological family that may or may not be able to give him/her the needed care and love?

But what we don’t need is Hollywood once again peddling a narrative that gets both the problem and the solution wrong.  The very idea that private providers are what plagues foster care and the children that system so often abuses is, as Riley points out, just flat wrong.  For one thing, those private service providers are relative newcomers to the system.  Meanwhile, state agencies have been demonstrating their incompetence all across the nation and beyond for decades now.  If the solution to child abuse and neglect in foster care were simply to return all services to the state, why don’t states just do that?  For that matter, why did they turn to private providers in the first place?  If private contractors are the problem, what does that say about the states that hire them?

The countless problems that beset state child welfare agencies won’t be solved by Hollywood.  Indeed, relying on “wokeness” to do so absolutely guarantees failure.  To coin a phrase, it’s a physician that knows neither the disease nor the patient.

October 22, 2020 by Robert Franklin, JD, Member, National Board of Directors

At least one New York Assemblyman has a good idea (Post-Journal, 10/15/20). 

Legislation (A.11038) has been introduced in the state Assembly, sponsored by Assemblyman Harvey Epstein, D-New York City, to amend the state Family Court Act to eliminate the court’s ability to send a anyone to jail for violating a support order. 

It’s a sensible bill that deserves support and passage.  Why?  The simplest of reasons: jailing child support obligors behind on their payments does no one any good.  It doesn’t help the obligor pay what he/she owes and in fact makes doing so harder.  It doesn’t help the child who ends up getting less financial support and less time with his/her non-custodial parent.  And of course it also makes it that much harder for the obligor to retain whatever job he/she has or find another one.

Assemblyman Epstein made many of those same points.

“If a non-custodial parent is sentenced to jail due to nonpayment of support, they may lose a job or be unable to seek employment, if they are out of work,” Epstein wrote in his legislative justification. “While it is important for both parents to emotionally and financially support their child, jailing a parent has negative consequences on both parent and child. The parent forgoes the child’s school and social events and the child misses the bonding relationship to their incarcerated parent. The relationship is forever altered, sometimes permanently damaged. People get sick or lose their jobs and thrown in jail for not paying their child support obligations, then debts add up while incarcerated and they are returned to jail so it can be a never-ending cycle.”

Now, I’ve seen it argued that, when faced with jail, child support obligors often come up with the money when before they didn’t.  That is, the threat of jail works.  And indeed, it often does produce money, but very often not from the person who owes it.  Commonly enough, friends and relatives chip in because they don’t want to see the non-custodial parent behind bars.  So yes, sometimes the money appears, but the ones paying have no obligation in the matter.  Effectively, the system punishes those who don’t owe.

The very idea that non-custodial parents and child support obligors (the great majority of whom are fathers) are simply deadbeats who will look for any way possible to avoid supporting their kids is an artifact of days long gone by.  It was a false notion then and it’s a false one now.  Back in 1998, Arizona State University researcher, Sanford Braver, discovered that the primary reason non-custodial parents who can pay but don’t is that they’re denied access to their children by the custodial parent. 

The conclusion to draw from that is that courts should punish custodial parents who interfere with access by their ex.  Enforcing access would promote meaningful relationships between fathers and their children and increase the amount of support paid, a win-win.  But that’s rarely done.  In Texas, for example, interference with custody is a crime, but neither the police nor district attorneys enforce it, falsely claiming it to be a civil matter only.  And family courts have a very poor track record of enforcing access orders.

The rest of those parents who don’t pay everything they owe, for the most part, can’t.  This is hardly a secret.  The Administration for Children and Families has, since at least 2008, admitted that over 40% of all outstanding child support debt will never be paid.  Year after year, the total amount due and owing increases despite the well-financed efforts of state attorneys general.

The linked-to article cites figures from New York State.

New York state collected $1,718,403,812 in child support payments in 2018, according to the Federal Office of Child Support Enforcement, with roughly $7.2 billion in child support owed going unpaid. The state oversaw 794,956 child support cases in 2018.

Needless to say, all of those arrears have accumulated with the threat of jail hanging over every non-payor.  The point being, jail doesn’t work to increase payments. 

What does work are common-sense things like (a) issuing original orders within the payor’s ability to pay, (b) enforcing visitation orders, (c) cancelling interest on arrears that still run as high as 10% per annum in some states and (d) offer job training to help non-custodial parents find and keep jobs. 

States do little or none of that, with the result that kids often lack support, arrears go up and up and the amount we spend on “enforcing” unenforceable orders remains an unnecessary drain on the public purse.

Epstein’s bill won’t fix all of that, but it would be a start.

October 20, 2020 by Robert Franklin, JD, Member, National Board of Directors

Just last month I wrote a couple of pieces here and here about a particularly scurrilous article by one Natalie Patillo, that appeared, to its everlasting shame, in the New York Review of Books.  Readers may recall that, among the many low points of the article, perhaps the very lowest were the author’s references to one-time New Jersey lawyer Barry Goldstein and psychologist and fellow traveler Joyanna Silberg.

Goldstein actually managed to lose his law license due in large part to his outrageous conduct representing Yevgenia Shockome against her ex-husband Tim Shockome.  And, among other things, Silberg offered her generally worthless opinions in the same case. 

Now, what the illustrious Glenn Sacks found in researching the case was that Genia’s claims of abuse by Tim were entirely made up as part of her ongoing effort at parental alienation and, more generally, to deny their children any relationship with their father.  Goldstein and Silberg put their respective shoulders to the wheel along with Genia, but all three of them failed miserably.  As Sacks pointed out, the judge, mental health professionals and custody evaluators all found Tim to be a good and loving father and Genia to be an alienator.  Their children refused to corroborate Genia’s allegations against their father.  Custody was changed from her to Tim, the kids have been with him ever since and are doing quite well, thank you.

But it’s worth learning just what type of person Genia Shockome is.  That’s true, because, when we do so, we inevitably also learn something about the Barry Goldsteins and Joyanna Silbergs of the world.  Put simply, they’re the type of people who go to bat for the likes of Genia Shockome.  And, in the same process, we learn more about the utter lack of balance or professionalism of Natalie Patillo and the NY Review of Books.  When you make common cause with a liar and abuser like Genia Shockome, you can’t help but get dirty, if you weren’t already.

And that’s exactly what a Texas court has decided should never happen again.  On July 22nd of this year, Judge Catherine A. Mauzy of the 459th District Court of Travis County (Austin) ruled Yevgenia Shockome to be a “vexatious litigant” under applicable Texas law.  That means that she has been enjoined by the court from ever again bringing a civil suit of any sort, pro se (without a lawyer), without the prior approval of a senior judge.

The reason?  She seems to have made a career out of filing frivolous lawsuits against people she doesn’t like, including but not limited to, her ex-husband.  Those entirely innocent people are then required to hire lawyers and spend their time defending themselves against a malicious litigant.  Now, everyone agrees that the courts should be open to people attempting to obtain justice for legal wrongs.  And everyone understands that genuinely held convictions about injustice don’t always result in judicial determinations in one’s favor.  Sometimes people lose their lawsuits, but the courts should and do remain open to them.

But Genia Shockome is anything but a litigant who’s concerned about another’s behavior she genuinely believes to constitute a legal wrong.  Far from it.

So, for example, Judge Mauzy cited nine cases filed by Genia over a seven year period, all of which were decided against her.  That strongly suggests an abusive litigant.  But, in order to be found to be a “vexatious litigant” under Texas law, it’s not nearly enough to simply file suits that the litigant doesn’t win.  No, to be determined to be vexatious, a litigant must have filed at least five unmeritorious cases within a seven-year period that have been,

(A)   finally determined adversely to the plaintiff; (B) permitted to remain pending at least two years without having been brought to trial or hearing; or (C) determined by a trial or appellate court to be frivolous or groundless under state or federal laws or rules of procedure; (2) after a litigation has been finally determined against the plaintiff, the plaintiff repeatedly relitigates or attempts to relitigate, pro se, either: (A) the validity of the determination against the same defendant as to whom the litigation was finally determined; or (B) the cause of action, claim, controversy, or any of the issues of fact or law determined or concluded by the final determination against the same defendant as to whom the litigation was finally determined;

That is who Genia Shockome is and it is who Barry Goldstein and Joyanna Silberg supported in their efforts to deny a father to Tim Shockome’s children.  And in turn that is who Natalie Patillo stooped to cite in her NYRB article.

Judge Mauzy went on to require Genia to provide Tim monetary security against the attorney’s fees and costs he’s incurred in defending against her groundless claims.  She’s also prohibited from ever again filing a pro se lawsuit in any district or county court in the state without the prior approval of the administrative judge for the county in which she seeks to file.

In short, at long last, in at least one state, Yevgenia Shockome is persona non grata.  Will Natalie Patillo, Barry Goldstein or Joyanna Silberg take notice?  Don’t bet on it.