Author: Joomlafreaks

January 5th, 2012 by Robert Franklin, Esq.
I’ve written a fair amount about child welfare agencies and their caseworkers.  Everything about the subject seems vexed and contradictory.  It’s true that many children are abused and/or neglected in this country.  The Administration for Children and Families collects data on child abuse and neglect and found that, for the last year of available data, there were about 900,000 such cases.

Of course, not all of those cases required intervention by child welfare authorities.  But clearly, there’s enough abuse and neglect of children that someone needs to intervene in the best way possible.

That’s meant the government in the form of child welfare agencies and, not surprisingly, those agencies are underfunded for the job they’re tasked with doing.  Caseworkers often deal with 50% more cases than industry protocols allow, and they’re not very well paid.  The turnover of caseworkers is therefore high meaning that continuity of attention to individual children and their families is often lacking.

Then there’s the fact that, because child welfare agencies are creatures of government, caseworkers have de facto power over families and children that no one else has.  That means that every contact with CPS, regardless of how minor, comes pre-packaged with the understanding that the caseworker can take the child from the parents.  She (the vast majority of caseworkers are women) can do that any time for virtually any reason including her perception that the parents don’t pay her the proper respect.

CPS tends to dramatically overreach by taking children who aren’t at risk or do the opposite – ignoring children who are the victims of horrific abuse.  Whatever the case, parents often view CPS with fear and resentment; they fear the power the caseworker wields and resent being made to kowtow to what often seems its arbitrary exercise.

Some knowledgeable critics of CPS argue that the money we spend on foster care could be better spent in many cases by providing needed services to parents.  That could, in all but the most severe cases of abuse and dsyfunction, keep parents and children together and reduce the distrust with which parents approach caseworkers.

As I said, child welfare agencies present a confused picture, and this article muddles it a bit more (Houston Chronicle, 12/26/11).  It seems that a fair number of CPS caseworkers come from “the system.”  That is, children who’ve been through foster care often gravitate toward jobs with CPS.  Without knowing the minutiae of that situation, it strikes me, as so much about CPS does, as both good and bad.

Obviously, children who were taken from their parents and placed in foster care grow up to be adults with an intimate knowledge of the system, whether for good or ill.

“I do what I do because of what happened to me,” said 23-year-old Megan Davis, a CPS caseworker in the intensive investigations unit in Harris County.

Davis said she and her twin sister were placed into CPS custody at age 7 after suffering physical abuse by their stepfather.

She recalls at least three caseworkers coming to her home to investigate her parents when she was a girl. The caseworker she remembers most is the one who made a second visit and finally removed the twins from the home.

Davis and her sister were fortunate enough to be placed in the same foster care home, and by the time they were 14, both had been adopted by the same family.

“I can honestly say she (the caseworker) saved me and my sister’s life,” Davis said. “It was the fact that she didn’t forget us. It was nice to finally be remembered.”

That experience not only led Davis to become a CPS caseworker herself but also shaped the way she works with the children assigned to her. For one thing, she says, it has taught her to spend time building a rapport with each child and to look for the same signs of abuse that she herself exhibited.

“It also always reminds me not to remove (children from parents’ custody) too quickly,” she said.

Davis, it turns out, is one of many.

It is not uncommon for people who went through the system to find careers as adults in the agency or with other social service organizations, said Estella Olguin, CPS spokeswoman for the county.

Written as it was during Christmas season, the article isn’t unduly inquisitive about the potential downsides of packing CPS with former foster kids, and there may not be any.  But I do have concerns about the prospect of staffing CPS with the children of our most broken and dysfunctional homes.  Those homes aren’t known for producing the best outcomes for children, and foster care is probably worse as a general rule.  None of that means that individual children raised by the system can’t turn out perfectly well; of course they can.  But are they the exception or the rule?

Certainly the statements made by the young women interviewed for the article suggest a strong interest in improving CPS practices to reflect their own experiences in the system.  I certainly won’t argue with that, but they’re far from the only ones filling the ranks of caseworkers nationwide.

I’d like to know how many CPS employees were once themselves in foster care and how that colors their approach to the children they’re now tasked with serving.  I’d like to know as well if those employees go about their jobs in substantially different ways from the ones who never lived in foster care.  Do their childhood experiences have a beneficial effect on the system generally or do they tend to perpetuate the same practices and preconceptions that made up so much of their early lives?

January 6th, 2012 by Robert Franklin, Esq.
When the Office of Child Support Enforcement tells us that 63% of those behind on paying their support obligations are the poorest of the poor – those who report earnings of less than $10,000 – it comes as no surprise.  Of course it’s the poor who fall behind and who can’t afford a lawyer to go to court to try to modify the order.  In fact, that’s so much to be expected that it’s a surprise when the guy fighting for his life was once pretty well off and who has the education to fight the system.

That looks to be the case described in OC Judge Reversed For Cruel Treatment of Ex-Husband in Child Support Case (OC Weekly, 12/30/11).

It seems that James Lockington was doing fairly well for himself before the housing bubble burst.  He was a home-building executive in California who, when his divorce was finalized, was making almost $15,000 a month.  That’s not fabulous wealth, but it’s a good income.  His ex-wife Tricia was bringing in about half that, so his monthly child support obligation was set at $2,074.  Fair enough.

But the housing bubble popped and it blew up Lockington’s livelihood in the process.  By the time he got to court to request a modification, he was hauling in a grand total of $300 a month.  He’d sold his house at a loss, maxxed out his credit cards, and was living with his sister to avoid becoming homeless.

Now, in case you’re weak in math, you can’t pay $2,074 a month with earnings of $300 a month.  But neither Tricia nor Superior Court Judge Ronald Kreber cared about that.  They cared about money.  Specifically, they cared about squeezing as much money out of James Lockington as possible, reality be damned.

Showing no sympathy, Tricia said her ex-husband should get multiple jobs at places like Starbucks or Target to continue to supply her the money. She also accused him of a pornography addiction, according to court records.

During an August 2010 hearing about Lockington’s request, Kreber acknowledged the man’s dire financial shape, but stated he thinks “the children are entitled to the same lifestyle that they had before.”

He told the man to get a job a Starbucks and didn’t care that he’d strenuously tried to get another high-paying job.

Kreber added that he didn’t think it would be “right” to calculate into the child support equation the fact that Lockington had lost his income.

Of course working 40 hours a week at Starbucks wouldn’t have gotten Lockington anywhere near the magic number of $2,074, but apparently Kreber didn’t think of that.  No, Judge Kreber’s attitude is the one so common in child support cases.  That attitude is that under no circumstances must the children’s lifestyles be altered in the slightest, regardless of what may be happening in the world at large.  So if non-custodial Dad gets injured on the job and can’t work, he has to figure out a way to keep paying.  If he loses his job and can’t find another, well, the children can’t be made to feel the change even slightly.

Needless to say, if Dad and Mom were still married and one of them were laid off, the family’s income would drop and all belts, including the children’s, would be tightened.  It’s a common occurrence that children deal with successfully.  But let Mom and Dad divorce and all of a sudden the rules change.  More importantly our notions of what children can and can’t handle change as well.  Once the divorce decree is signed, the children become fragile beings whose every need must be met the same way as when their parents were married.

Such, at any rate, is the strange notion of many family court judges – judges like Ronald Kreber.

Well, it took almost two years, but a California appellate court explained the basics to Kreber.

Lockington appealed the ruling and, in a 15-page, Dec. 27 decision, a California Court of Appeal based in Santa Ana determined that Judge Kreber “abused his discretion” by relying on an “erroneous” understanding of the law.

Yes, it seems there are limits to a family judge’s power to abuse a noncustodial father.  Who knew?

“A trial court must evaluate a request to modify child support based on the parent’s current financial circumstances, not the financial circumstances that existed during the marriage,” wrote Justice Richard Aronson on behalf of a three-justice panel that included justices William Bedsworth and Kathleen O’Leary. “The court cannot require James to pay an amount in child support he clearly has no ability to pay.”

As it turns out, that’s a concept the Office of Child Support Enforcement has been trying to get family courts to heed for many years now.  The OCSE has encouraged judges to pay attention to the basic idea, “don’t order more than the non-custodial parent can pay,”  but the federal government encourages the opposite.  Because it pays states for child support collected, the obvious reaction is to order child support levels as high as possible.  After all, if you don’t order it, he certainly won’t pay it and if you do, maybe he will.

I’m sure Kreber understood the law perfectly well; he was just doing his part to get as much money from Washington for the Golden State as possible, and what matter if a few fathers get driven into the street as a consequence?

January 8th, 2012 by Robert Franklin, Esq.
A Georgia court has approved class action status to a lawsuit seeking to force the state to provide attorneys for indigent parents in child support cases.  Prior to the ruling, there were five plaintiffs; Judge Jerry Baxter’s order opens the door for thousands of other indigent parents to join the case.  Read about it here (Atlanta Journal Constitution, 1/3/12).

The lawsuit was brought by Sarah Geraghty of the Southern Center for Human Rights, which specializes in cases involving incarcerated people.
  It comes in the wake of a United States Supreme Court decision last year holding that an indigent South Carolina man didn’t have the right to an attorney in his hearing for failure to pay child support, even though he was unable to pay.

In that case, Justice Stephen Breyer’s majority opinion held that the Due Process Clause of the Fourteenth Amendment doesn’t require states to appoint counsel for indigent parents in such cases. The Atlanta Journal Constitution explains:

In June, the U.S. Supreme Court ruled that a South Carolina man jailed for failing to pay child support was not entitled to have a lawyer appointed to represent him. In that case, the child’s mother was not represented by a state attorney and the state’s social services agency was not a party in the case. The high court noted it was not deciding whether counsel should be provided when state social services agencies are involved and represented by lawyers.

The State of Georgia has indicated it will appeal Judge Baxter’s ruling on class certification to the state Supreme Court.

As of October, Baxter noted, about 845 parents were incarcerated in Georgia for child-support debt in cases filed by lawyers on behalf of the state Department of Human Services. More than 3,500 parents have been jailed, without legal representation, since the beginning of last year, the order said…

The Supreme Court also said that 70 percent of child-support delinquency cases nationwide involve parents with either no reported income or income of less than $10,000 a year.

Baxter’s ruling cited an affidavit from Oswaldo Vicente, a Gordon County man who is a native of Guatemala with limited understanding of the English language. After losing his job at a carpet mill, Vicente said, he was jailed twice last year after attending hearings in which he was provided neither an interpreter nor a lawyer to represent him and where the state was represented by counsel.

Georgia is one of only six states in the nation that doesn’t provide legal counsel to indigent parents facing prison for contempt of court for failure to pay child support.  The Supreme Court’s South Carolina decision clearly opened the door to more to put budgetary considerations ahead of the due process rights of its citizens.  To date, none has followed the “lead” of states like Georgia and South Carolina.

The notion that states would prefer to jail parents who truly have no resources to pay rather than allowing them the freedom to seek and possibly find gainful employment is nonsensical.  It can’t help children get the support they need and, as the ACLU argued in its brief to the Supreme Court, and serves no coherent public policy.  Still, six states deny counsel to indigent child support obligors, and the U.S. Supreme Court has encouraged others to do the same.

Likewise, the idea that the Fourteenth Amendment that says in so many words that no person shall be deprived of liberty without due process of law, in some way permits states to deny counsel to the poor when they seek to imprison them defies belief, logic and the dictionary definition of words.

As things stand, however, it’s the law of the land.  Perhaps in time, if Sarah Geraghty is successful, it won’t be the law of the State of Georgia.

January 9th, 2012 by Robert Franklin, Esq.
A Nebraska judge has declared unconsitutional two state laws because they fail to require the state to notify non-custodial parents when their children are taken into foster care.  Here is an article on the case (Omaha World Herald, 6/13/11).

Back in 2003, Micheal Eggleston had a brief affair with a woman.  They split up, but she soon informed him she was pregnant and he was the father.  Paternity testing proved he was and an order was issued for him to pay child support.

He was ordered to pay child support. But, according to Eggleston, the girl’s mother didn’t want him around, and had “sworn up and down that I would never see” the child.

A judge backed up Eggleston’s version, noting that the woman gave him only a post office box address and that she sent him two letters that constituted “a complete rejection” of Eggleston’s request to become a part of the child’s life.

So Eggleston got on with his life.  He married another woman who had two children whom Eggleston moved to adopt.  But unknown to him, the woman who’d cut him out of his daughter’s life turned out to be emotionally unstable and a poor  mother.  She tried suicide once in April, 2005.  Nebraska’s child welfare agency, the Department of Health Human Services, did nothing in that case to protect Eggleston’s daughter, but when Mom tried suicide again in September of the same year, caseworkers took the girl into foster care.

It should come as no surprise to readers of this blog that, when DHHS took the girl, it kept Eggleston completely in the dark.  Indeed, from September to May of 2006, its sole intention was to place his daughter temporarily with her maternal grandmother with an eye toward returning her to her suicidal mother.  In exact accord with the findings of the Urban Institute’s study entitled “What About the Dads?”, Nebraska DHHS ignored Micheal Eggleston completely.

More exactly still, it did so despite the fact that it had ready access to his identity and whereabouts.  That’s because he’d been paying child support for his daughter to the state agency that receives and disburses same.  That too is one of the major findings of the Urban Institute Study.  According to it, state child welfare agencies routinely refuse to check child support records to locate non-custodial fathers of children being taken from their mothers.

Now, in Eggleston’s case, DHHS says its failure to contact him was all one big mistake.

“We certainly made a mistake in this case — absolutely,” Todd Landry told a television reporter. “We’ve made improvements in our practice and are making sure that our staff are following our policy.”

But was it a mistake or was it de facto agency policy?  Oh, I’m sure they have written protocols for finding fathers, but do they follow them?  The Urban institute study suggests they probably don’t.  So do the many fathers who’ve come forward since Eggleston’s case first went public in 2008.

[Attorney Amy] Sherman and Eggleston both said they have heard from at least a dozen parents, mostly fathers, who have had to battle to get notice that their children were in need.

So DHHS had easy access to Eggleston’s whereabouts, but made no effort to contact him.  The same held true for a dozen other dads and the Urban Institute says it’s a pattern nationwide.  Then there are those two statutes saying notice to non-custodial parents wasn’t required.  Top it off with the fact that the court’s opiniron invalidating those statutes contains citations to cases dating back to 1993 in which the exact same thing happened.  All that means that refusing to contact fathers is less a mistake than a policy.  It’s a policy of keeping fathers out of children’s lives when mothers prove to be unfit.  It’s a policy of prefering foster care to father care.

Moreover, it’s a policy that contradicts the very mission of the agency, family reunification.  As on Nebraska court wrote in 2004 and the judge in Eggleston’s case quoted, “What better and more straightforward method of preserving families could there be … than placement of the children with a fit and willing parent..?”  Good question.  It’s one CPS agencies across the country routinely fail to ask or answer.

As far as I can see, DHHS never did notify Eggleston that his child had been taken into foster care.  That fell to an entity called the Foster Care Review Board that sent him a letter in May of 2006, nine months after his daughter had been removed from her mother.  Astonished, Eggleston got to work gaining custody of the girl.  It took him three years, dozens of court appearances and $50,000 in legal fees to do the job, but he finally succeeded.

Late last year, Fathers and Families went to bat for Washington State dad Solomon Metalwala, another fit father who was battling the state’s child welfare agency for custody of his daughter when she was taken into foster care.  Metalwala was fortunate where Eggleston was less so.  Metalwala got custody of his daughter just weeks after she was taken from her mother.  Why did it take Eggleston so long and cost him so much?  Why should it take a man, against whom there was no claim of unfitness and who had been found fit enough to adopt his wife’s two children, three years to get custody of his own daughter?

Those questions aren’t answered by the article about Eggleston.  But the questions alone stand as a stark reminder of the many ways in which states come between fathers and their children.  The simple fact is that few fathers have the type of resources to battle a state agency for three years in a custody case.  That means that as a matter of fact if not a matter of law, state child welfare agencies can and do take children from fathers at the same time they take them from mothers, irrespective of the fathers’ fitness as parents.

It’s morally wrong, it’s bad for children and it’s fantastically expensive.  When they take children from unfit mothers, child welfare agencies must be required to notify fathers and involve them in children’s lives if possible.

Judge Joseph Troia helped that process along by declaring unconstitutional two statutes that failed to require notification of non-custodial parents when their children are taken from the custodial parent.  Nebraska and federal law require notice and an opportunity to be heard to anyone whose rights may be affected by a court’s action.  Non-custodial parents clearly have a right to assert their claim to custody of their own children when they’re taken into care by the state.  Therefore, any law denying the opportunity to be heard is unconstitutional.  Such was the judge’s unimpeachable reasoning.

And so it goes.  It’s a win for non-custodial parents in Nebraska, and of course the overwhelming majority of those parents are fathers.

January 9th, 2012 by Robert Franklin, Esq.
By such insignificant things is progress measured.

Here’s a letter to that everlasting doyenne of taste, manners and everything that is right and proper in middle-America, Dear Abby (Sun Journal, 10/19/11).  The Dear Abby column, along with that of sister Ann Landers, has been around since before most of us were born.  It’s taken on every imaginable topic in the realm of the mundane from the accepted way to install a roll of toilet paper (I’m not making that up), to significant issues about marriage, divorce and children.

But the linked-to letter is perhaps a first in the annals of the column that was first penned by Abigail Van Buren.  It’s about domestic violence and it was written by a male victim.

DEAR ABBY: I have been dating “Carmen” for a few years, but in the last year she has started becoming violent when we are having an argument. I think this is domestic abuse, but she claims it isn’t because I’m a man.

I’m not someone who can take abuse without repercussions. I’m like a mirror. If someone brings violence into my life, I reflect it back on them. So far, I have restrained my instincts — but eventually I know Carmen will cross the line and I’m going to snap. I have the potential to hurt her badly.

I have tried everything to make Carmen understand how I feel, but she continues to insist it doesn’t matter because I’m so much bigger and stronger than she is. When she hits me, it doesn’t hurt physically, but the anger I feel is indescribable. I’m at the end of my rope and considering breaking up with her before I hurt her.

I don’t want to end the relationship, but I think it’s the only way to make her see things from my perspective. Or should I call the cops the next time she hits me? — BRUISED AND ABUSED BOYFRIEND

Now, anyone who’s reasonably aware of the facts about domestic violence knows that the point ”Bruised and Abused” raises is an important one.  Beyond the facts that (a) it’s a man writing to Dear Abby, (b) he’s the victim of DV and (c) Abby doesn’t question his status as victim, all of which are important, “B and A” describes his emotional reaction to “Carmen’s” physical violence.  It’s clear that, as was established in a study done for the Centers for Disease Control, it’s Carmen who hits first, and it’s Carmen who’s in danger of serious injury.

I’ve cited that study time and again for the proposition that, if the DV establishment were really serious about protecting women from injury, it would never stop publicizing the study’s findings.  The DV establishment should be telling women and girls “don’t hit first.”  My guess is that and that alone could save more injury to women than all of the Duluth Model Aggression Wheels ever printed.  But of course, in the minds of DV advocates, doing a simple, obvious thing that would protect women, constitutes “blaming the victim.”  No, actually it gives her information she can use to avoid becoming one.  Apparently they don’t want to do that.

Anyway, Abby’s advice to Bruised and Abused is acceptable, albeit not long on information.  It says nothing about how common female-on-male violence is; it offers no sympathy of the “you are not alone” type.  The response is more concerned with the welfare of children who “B and A” and “Carmen” don’t even have than it is with the man writing.  Maybe that’s because he says she doesn’t really hurt him. 

On the plus side, the response correctly points out that he’s the one who’ll land in jail if the violence escalates.  He describes himself as larger and stronger than his girlfriend, so, even though she starts it, if he responds in kind, he’ll be the one in jail with the restraining order lodged against him.

“Abby’s” last word is “Run!” and I hope he takes the advice.

But readers didn’t let that advice stand, and “Abby,” to her credit, published their responses both to her and to “B and A.”  Here’s the follow-up (SAVE Services, 12/22/11).

The letters responding to” Bruised and Abused” aren’t as knowledgeable as I’d like, but many make good points.  They say that much abuse is committed by women; they say that men are raised to never hit a woman and are therefore likely to suffer abuse; they emphasize that what he’s experiencing is domestic abuse, something Abby neglected to mention.  The talk about TROs and the need for him to get out while he can.

My point is that this is now part of mainstream public discourse.  Dear Abby is read by millions of people.  Indeed, it’s about as mainstream as it gets in American life.  I’m here to tell everyone that ten years ago or even less, the type of information provided by Abby and her readers would never have appeared.  I’ve tracked public perceptions of DV since about 1998 and I can’t overstate how much has changed in public awareness of the reality of DV.  Slowly, but inexorably, the nonsense peddled by the DV establishment is being supplanted by both solid science and the type of personal stories that “B and A” and Abby’s readers tell.

As is so often the case, the great mass of people are ahead of policy-making elites.  Those elites are the ones who lobby Congress and state legislatures and the ones in office who hear what they have to say.  They’re the elected officials who budget money, the bureaucrats who spend it and the countless organizations that live off of federal largess.  They’re the foundations like the Verizon Foundation and the Liz Claiborne Institute.  Those elites have been wrong and in power for so long that they’re not about to let go of either their precious false notions about DV or their funding.  Don’t look for Vice President Biden to call a press conference and say “I got it wrong on DV.”

But the far broader base of people generally, standing on the shoulders of the scientific community are coming to know the truth about DV.  And that means, in the not too distant future, the worm will turn.

Thanks to Teri for the heads-up.

January 11th, 2012 by Robert Franklin, Esq.
The United Kingdom’s coalition government has done an about-face and is now aimed at improving children’s rights to a relationship with their father post-divorce.  Read about it here (Daily Mail, 1/6/12).

It was only a matter of a couple of months ago that the recommendations of the Norgrove Commission were met with a firestorm of outrage from advocates for children and fathers.  That’s because, leading up to their release, many commentators, including some insiders, speculated that the Commission would come out in favor of either shared parenting or a requirement of ongoing access by both parents to children after a divorce or separation. 
But when the recommendations finally came to light, they urged none of the above.  The refusal even to give children the right to a continuing relationship with their fathers was immediately and angrily denounced across the political spectrum.

Within the coalition government, Work and Pensions Secretary Iain Duncan Smith vowed not to be deterred from asserting children’s and fathers’ rights in the laws of the U.K.  Apparently he’s gotten the agreement of Deputy Prime Minister Nicholas Clegg to toss out the dead-on-arrival Norgrove Report in favor of improving children’s ability to remain connected to their fathers after their parents divorce.

Exactly what the changes would consist of seems unclear at this point.  The linked-to article indicates three possibilities.

Ministers are drawing up new rules to put courts under a legal duty to ensure divorced parents are guaranteed access to their children.

Parents who refuse to accept the orders will be in contempt of court and risk serious penalties or even jail.

That suggests the coalition intends to alter rules under which judges adjudicate custody cases.  On another hand, Children’s Minister Tim Loughton said that all options for promoting shared parenting are open.

Last night children’s minister Tim Loughton said: ‘Our vision is to establish that, under normal circumstances, a child will have a relationship with both his or her parents, regardless of their relationship with each other.

‘We must do everything we can to improve the system so that it gives children the best chance of growing up under the guidance of two loving parents.

‘All the evidence tells us that children genuinely benefit from a relationship with both parents, with the potential to make different contributions to their child’s development.

‘The culture has shifted away from the traditional view that mothers are primarily responsible for the care of children. Increasingly society recognises the valuable and distinct role of both parents.

‘We are looking closely at all the options for promoting shared parenting through possible legislative and non-legislative means.’

I’m not sure what “non-legislative means” refers to.  Maybe it suggests changing the rules under which family court judges decide cases; maybe it means something else.  I guess we’ll find out in due time.

Finally, there’s a bill before Parliament.

Another option would be for the Government to support a backbench bill by Tory MP Charlie Elphicke, which will be debated later this month.

The bill requires courts and councils which are enforcing contact orders for children ‘to operate under the presumption that the rights of a child include growing up knowing and having access to and contact with both parents involved’. 

Whatever comes out of this, it’s good to know that the Norgrove Report has found its rightful place in the dumpster in the alley.  It’s still better to know that the coalition government seems dedicated to doing something to improve children’s relationships with their dads post-divorce.

The devil, as always, is in the details.  What limitations will be placed on children’s rights to their fathers will let us know if the governement is serious or simply trying to buy off fathers and children with words and good intentions.  We’ll see.

What we’ll also see is whether, once the new rules/regulations/laws are in place, family court judges use them in the spirit of keeping fathers and children together, or whether they use the restrictions on children’s rights to separate them as they’ve pretty much always done.

But whatever happens, this is one genie that won’t go back in the bottle.

Thanks to Paul for the heads-up.

January 12th, 2012 by Robert Franklin, Esq.
Virginian John Wyatt has asked the United States Supreme Court to rule on the constitutionality of Utah’s adoption statutes and whether rulings in his case conflict with federal law.  Read about it here (Salt Lake Tribune, 1/1/12).

I’ve written before about Wyatt.  His is one of the many cases that show the way in which state adoption laws place all power over fathers’ parental rights in the hands of mothers.  Particularly in states with putative father registries,
all a mother has to do is conceal her pregnancy or lie to him about who the father is or tell the hospital or the court she doesn’t know who the father is.  In most states, those actions will be sufficient to terminate the father’s rights without notice to him.

John Wyatt, however, was more assiduous than many dads in trying to establish and maintain his rights.  But Wyatt was dealing with the state of Utah, and the mother of his child who went to some pretty remarkable ends to keep him out of his daughter’s life.  Those two were more than enough to finalize the adoption of a little girl who didn’t need to be adopted.  The article linked to gives a good summary of what happened.

Wyatt learned in May 2008 that Emily Colleen Fahland, his then-19-year-old girlfriend, was pregnant. According to court documents, on Feb. 4, 2009, Fahland informed Wyatt by telephone that she had spoken with A Act of Love Adoption Agency, based in Utah. She sent a text message the next day that said: “Do you understand that I’m receiving information from a Utah agency for proceeding with an adoption.”

But Wyatt said he thought Fahland was just gathering information and that their co-parenting plan was still in place.

Unbeknownst to Wyatt, Fahland gave birth on Feb. 10, 2009, and a day later signed a document agreeing to waive Virginia law and proceed with an adoption in Utah. Wyatt learned of the birth on Feb. 11 but was initially unable to locate Fahland, who had checked out of the hospital and into a hotel under an assumed name.

A Utah couple flew to Virginia on Feb. 12 to pick up the infant. That same day, Fahland relinquished her parental rights. Wyatt hand-delivered a letter to the adoption agency’s Virginia attorney on Feb. 12 requesting to see his daughter and take her home. Wyatt said he was told he could see the infant only if he consented to the adoption. He refused.

Eight days after Baby Emma’s birth, Wyatt filed a custody action in Virginia. By then, the adoptive parents had returned to Utah with the baby and, on Feb. 23, began adoption proceedings here.

From that point on, court proceedings unfolded in both Utah and Virginia. In Virginia, a judge confirmed Wyatt’s rights to his child. In Utah, a judge ruled Wyatt acted too late to protect his rights since he filed a custody action in Virginia after Fahland consented to the adoption and did not file with putative-father registries in Virginia or Utah until April. The judge also said she saw “no legal basis for deferring” to the Virginia court’s decision that it had jurisdiction in the case.

What the article omits is the fact that Wyatt had made it clear to Fahland from the start that he wanted to parent his child.  She said she agreed and he thought they had a plan in place to keep their daughter.  Unknown to him, Fahland changed her mind and once she did, it was a simple matter of cutting him out of his daughter’s life.

Due solely to the lies Fahland told, Wyatt was a step late at every juncture in the proceedings.  She checked out of the hospital just before he figured out where she’d given birth.  (The hospital refused to tell him it had a patient under her name.)  She fled to a hotel where she checked in under an assumed name, handed the child off to infamous Utah adoption attorney Larry Jenkins and the adoption agency, and relinquished her rights.  And that, according to Utah law, is about all it takes to filch a child from its father.

Wyatt is asking the Supreme Court to rule on the constitutionality of that as well as whether the process conflicts with the federal Parental Kidnapping Prevention Act.  Amazingly, in Utah, as long as a father doesn’t contest an adoption before a the mother relinquishes her rights, he’s out of luck.  That makes his parental rights little more than a race to the courthouse that he’s bound to lose.  After all, when the woman, but not the man, knows she’s going to give up her parental rights, how is he supposed to win that race?

The answer of course is that he can’t, and that, as we’ve come to learn about adoption law, is the point.  States, particularly those with putative father registries, make no secret of the fact that getting the father out of the way of the adoption is the game being played.  Those states frankly place finalizing the adoption ahead of the father’s rights.  They do that by denying him notice of the adoption and the opportunity to contest it.

Of course, for every child taken in that way from a fit father, there’s another child somewhere in the world who needs adoptive parents, but who goes without.  It’s the peculiar genius of the adoptive system to force adoption on children who don’t need it and deny parents to those who do.  Utah is particularly bad about doing so, but it is far from alone.

The Utah Supreme Court upheld the adoption of Wyatt’s child and said he couldn’t raise the issue of the Parental Kidnapping Prevention Act because he hadn’t done so in the trial court.  That’s an odd holding since Wyatt had been entirely prevented from appearing in the adoption matter to contest anything at all.

Perhaps worse, Utah imposed requirements on Wyatt in Virginia that Virginia laws did not.  Wyatt’s attorney explained:

“Utah law required that he fulfill Virginia’s requirements more quickly than Virginia itself requires — in this case, before the baby was born and before he knew there would be any contest over his custodial rights, let alone a contest in Utah,” the petition states. The Utah law also “fosters fraud and deception on an unmarried father by the mother or unscrupulous adoption agencies” but then burdens the victim with anticipating such acts, which raises “troubling due-process questions.”

In fact, Wyatt said he did timely assert his rights under Virginia law, as acknowledged by a judge in that state. The petition also argues that Virginia requires a birth mother to identify and provide notice of a pending adoption to a “reasonably ascertained” father and to wait three days before consenting to an adoption, which are rules Wyatt says Fahland violated.

But in Utah, the laws of other states are nullities, at least those relating to adoption.  When it comes to adoption, Utah operates far outside the boundaries of due process of law and the U.S. Superme Court should say so.  As more and more  mothers are learning, even the most persistent father can be beaten easily by the Beehive State’s adoption laws.  That may be good for unscrupulous mothers and Utah’s adoption industry, but it’s bad for everyone else, particularly fathers and their children.

January 12th, 2012 by Robert Franklin, Esq.
A Tennessee court has refused to reimburse child support paid by a man who was induced to pay it by the child’s mother’s fraud and by the State of Tennessee.  Here’s the ruling of the Court of Appeals.

Christopher Childers and Alexandria Price apparently had a sexual relationship in 2007.  She gave birth to a child on an unstated date. 
She sought child support from Childers, telling the state’s Attorney General’s Office that he was the child’s father.  She neglected to tell either Childers, the AG’s Office or the court that there was at least one other man who might be the father.

So the Attorney General’s Office sent a notice to Childers that there would be a hearing to determine paternity and establish child support if he turned out to be the father.  But there was a problem; it sent the notice to his parents’ house and Childers wasn’t there.  He was in the U.S. Armed Services, stationed in Iraq.  Moreover, according to a later court’s explicit finding, the Attorney General’s Office knew he was serving in the military.

Needless to say, Childers didn’t receive the notice and didn’t show up in court.  As we see so often, a default judgment was entered against him finding him to be the father of the child and ordering him to pay accrued child support as well as monthly amounts in the future.  The state began garnishing his military wages to pay the support.  That means it obviously knew he was serving in the Armed Forces.

When Childers got back from Baghdad in January of 2009, he went to court to contest the default judgment.  DNA testing was performed that proved he was not the father of Price’s child.  But he’d already paid almost $3,000 to support the child, so he asked the court to reimburse the amounts he’d paid.  The Juvenile Court agreed and entered an order for the state to reimburse Childers and stating that it could in turn seek reimbursement from Price.

But the Court of Appeals struck down that order saying the Juvenile Court had no power to order reimbursement.

 The Court stated that while the juvenile courts have broad statutory authority to establish a child’s paternity under Tenn.Code Ann. § 37-1-103(a)(2) and to issue orders setting, modifying, or even terminating child support under Tenn.Code Ann. §§ 36-5-401, -701, -2101, 37-1-104(d), the Court did not find any statute giving the juvenile courts authority, expressly or by implication, to order the State to reimburse a person who has paid child support based on the mistaken belief that he was the child’s biological father.

In short, child support is a one-way street.  A man, having once paid support can never get it back even though (a) the order to do so was brought about by the fraud of the mother and (b) the order to do so was brought about by the fraud of the Attorney General’s Office and (c) since he was serving overseas in the military he was unable to assert his non-paternity in court and (d) he was unable to stop the garnishment of his wages for the same reason.

In short, Alexandria Price knew that there was at least one other man who might be the father of her child, but she didn’t give that information to anyone.  The Attorney General’s Office knew Childers was serving overseas, but didn’t tell the court that or that it had sent notice of the suit against him to an address at which he didn’t live.  The court’s order that Childers was the child’s father and for him to pay support for it was therefore brought about by multiple fraudulent actions by parties to the suit.  The only party who played it straight was Childers and he’s the only party to suffer any ill consequences.

But that’s not all.  Since the state AG’s Office knew Childers was serving in the military, it had an obligation to tell the court that fact.  That’s because the Servicemembers Civil Relief Act, a federal law, prohibits any court from proceeding civilly against a person as long as that person is in the Armed Forces.  Indeed, every civil petition I’ve ever seen involving an individual defendant has a mandatory allegation that the person isn’t serving in the military.

But, in addition to its other misrepresentations to the court, the Attorney General’s Office refused to state whether or not the defendant Childers was serving in the military or not.  As stated, it knew he was in the military, but proceeded against him anyway.  Had it obeyed federal law, it could not have gotten a judgment against Childers, so it disobeyed the law, and the court let the violation pass.

And what were the legal consequences to the Attorney General’s Office for violating a federal law that is designed specifically to avoid exactly what happened in the case of Price vs. Childers?  None.  The Juvenile Court thought that the violation rendered the judgment void, but the Court of Appeals disagreed saying simply that the judgment was “voidable.”

Stated another way, Childers, like all other men, was supposedly protected by a variety of laws and constitutional provisions such as due process of law.  But, according to the ruling of the Court of Appeals, all of those “protections” fall in the face of the multiple frauds committed by Alexandria Price and the Tennessee Attorney General’s Office.

And before anyone shouts “yes, but the child needs support,” let’s not forget that that child does have a father.  Somewhere there’s a man who actually did father Alexandria Price’s child.  So far that father has paid not a dime to support the child he helped bring into the world.  All Alexandria Price had to do was tell the truth – “the father may be Christopher Childers or it may be …” – and the child would have gotten support from the correct man.  Into the bargain, Christopher Childers wouldn’t have been defrauded of almost $3,000 and the State of Tennessee wouldn’t have spent countless thousands of dollars in attorney fees and legal costs.

And of course, the child and its real father might well have a healthy relationship right now.

But no; all of that is too reasonable, too sane.  Such an approach to the questions of paternity and child support must stand aside so that states can abet fraud and lying to courts.  It’s all perfectly OK as long as someone ends up holding the bag, and we know who that is.  If we don’t, Christopher Childers can certainly tell us.

January 13th, 2012 by Robert Franklin, Esq.
A major study by researchers at the University of Chicago has found that boys’ educational outcomes suffer more than girls’ from single-parent upbringing.  Read about it here (The Telegraph, 1/3/12).  The effects of single-mother households on boys exceeded expectations and were found to be greater than those of other factors such as the sex of teachers or the type of school attended.

It found that boys were much more likely to misbehave, be excluded from school and go on to achieve low grades after rebelling against “emotionally distant” parents.

The pattern is particularly marked in single-parent families where mothers “invest disproportionately less in their sons or feel less warm toward them” than daughters…

Researchers in the United States tested various theories to explain bad behaviour and low standards among boys and concluded that “home-based” influences played a much bigger part than biological differences, the style of early education, teacher gender or peer pressure.

“Boys’ likelihood to ‘act out’ is sharply reduced when faced with larger and better parental inputs,” said the study.

“As these parental inputs are typically higher and of better quality in intact families, this largely contributes to why boys with single mothers are so much more disruptive and eventually face school suspension.”

It’s no surprise that intact families raise children whose educational outcomes are better on average than those of single-parent families.  We’ve known that for decades.  What’s new about the Chicago study is that it specifically targets the bad effects on boys and their cause – being raised by single mothers. 

But why would boys suffer more than girls when brought up by single mothers?  It turns out the study answers that as well.

The study found that indiscipline reduced among boys brought up by two parents and increased sharply among those raised by single-mothers.

Researchers said a “higher levels of parental investment may prevent more of these at-risk boys from developing [behaviour] problems”, adding that this was much more likely to occur in traditional families.

The relationship between family structure and behaviour appeared to be “much weaker” for girls, it was claimed.

“It is possible that single mothers invest disproportionately less in their sons, or feel less warm toward them,” said the study. “Indeed, we show that single mothers seem relatively more emotionally distant from their sons and are also more likely to have reported spanking their sons.” 

For about two decades, we’ve watched as boys fell further and further behind girls in school.  A large number of influences have been posited as contributing to boys’ decline.  Teaching methods, the way classes are run, the overabundance of female teachers and more have been suggested to explain boys poor performance in school.  But the Chicago study looks like a landmark.  Many of us intuited that single-parent families were at fault but were unable to explain why they disproportionately affected boys.  Now we may be on the path to certainty.

Over 40% of children in the United States are born to single mothers; that’s over 1.6 million each year.  Of course not all of those will be raised in single-parent households, but research clearly shows that unmarried childbearing is a major factor in relationship breakdown among adults.  Put simply, if a man and woman aren’t married when they have a child, they’re much more likely to part ways than if they are.  That means the child will likely be brought up by a single mother.

Likewise, over one million divorces are finalized in this country each year.  Even after decades of research showing the benefits of fathers to children, family courts still haven’t gotten the message.  They still overwhelmingly grant primary custody to mothers and give fathers only minimal visitation.  They then refuse to enforce that visitation.  The result?  The children are brought up almost exclusively by single mothers.

Of course some of those mothers remarry, but the pattern is clear; more and more children are being brought up by single mothers than ever before.  That pattern started in the 60s among African-American families and began to be adopted by others in the 70s.  Boys’ educational performance started to decline and studies started showing it in the mid-80s.  By the mid-90s, there was no longer any doubt that girls were outstripping boys in school, but even at present, there’s little or no interest among policy makers in addressing the problem.

That mindset closely mirrors that of feminist groups like the American Association of University Women, who, as late as 2009, were still doggedly spinning statistics in a vain effort to convince themselves, if no one else, that boys needed no special attention in school.

Now it turns out that school is only part of the problem, and maybe not the biggest one at that.  The more we know about the pernicious effects of single-parent upbringing on children, the worse single-parenting looks.  The Chicago study indicates that single mothers are uniquely bad at raising boys.  That’s something that demands changes in public policy, and family courts lead the pack of those in need of change.

January 13th, 2012 by Robert Franklin, Esq.
As I’ve said many times, American family law has a genius for placing fathers’ rights in mothers’ hands.  More accurately stated, it’s the exercise of fathers’ rights that the law allows mothers to control.  I know of no law that specifically states that Mom decides whether Dad has rights.  But when it comes to actually exercising them, fathers often seem to find themselves second in line behind mothers.

It’s true in a variety of situations if Mom and Dad aren’t married.  Adoption and paternity fraud are the obvious culprits, but visitation is another.  And here, it turns out, is yet another (Leagle, 12/28/11).

As readers of this blog know, several states have recognized the injustice of allowing mothers to choose who they want to be the father of their children if he’s not actually the dad.  They’ve taken steps to remove one of the more odious consequences of paternity fraud – paying child support for a child who isn’t his.  So states like Texas and Florida have passed laws allowing fathers to have genetic testing of a child performed at any time.  If the man turns out not to be the father, he no longer has to pay child support.  Any accrued arrearages must be paid, but no future support will be ordered.

It’s a significant step in the direction of simple justice.  But…

The case linked to shows that, once again, the devil is in the details and the details protect, not the defrauded dad, but the mom who defrauded him.

It seems that the father, G.A.T. and the mother, M.J.W., had a child, J.L.T.  The dad somehow got wind that all was not right in his world, so he filed suit to disestablish paternity and be relieved of his child support obligation.

In the petition and his affidavit, G.A.T. denied that he is the father of the minor child and that fraud and duress by the mother and his own family induced him to acknowledge paternity. He further alleged that the mother has told him that he is not the biological father of the child.

In short, he claimed she defrauded him and later admitted the fact.

So G.A.T. knew just what to do; the law now protects him, right?  And sure enough, the trial court in which he’d filed his claim ordered everyone to show up, have the inside of their mouths swabbed and the specimens tested to see if he’s the dad and needed to continue paying support or not.

But Mom had an answer for that; she just didn’t show up with the child at the time and place the court ordered.  Now, you’d think that her refusal to do what the court had ordered would mean that G.A.T. would win.  That’s what usually happens when a litigant fails to appear for a hearing or trial.  They can’t very well present the evidence required to prevail if they don’t show up in court.

That’s what the trial judge thought too.  He/she issued an order finding that G.A.T.’s paternity of J.L.T. had been disestablished and that he should cease paying support.  That all made perfect sense to everyone but the appellate court.

The state Department of Revenue, who was of course acting as Mom’s attorney free of charge to her, appealed the ruling and won.  The appellate court reversed the ruling and remanded the case to the trial court.  Why?  Well, it seems that the trial court didn’t make a finding that M.J.W. had acted “willfully” in failing to show up for the collection of tissue.

Now, it’s true that the statute requires such a finding, so the court seems to have acted correctly.  But here’s the rub:  how can the trial court make a finding that her non-appearance was “willful?”  She’s not there, so who’s to say?  Maybe she was in a car wreck, forgot about the hearing or was temporarily insane.  These things happen, and in her absence, who can produce evidence of willfulness?  The appellate court offered no guidance on that subject.  If she’s present, the whole issue is moot.

It’s taken two years for the appeal to be decided.  Now that the trial court has been reversed, does G.A.T. all of a sudden owe the two years of child support that accrued in that time?  My guess is he probably does although I can’t say for certain.

What if the trial court sets another date for Mom and the child to give specimens and they once again fail to appear?  Does G.A.T. have to keep on paying until she decides to put in an appearance?

I’d say it’s a distinct possibility.  But whatever the case, the mother in this case has at the very least bought herself a couple of years of child support and thwarted the plain intent of a state statute into the bargain.

Then there’s the fairly obvious fact that, if she really thought G.A.T. were the father, wouldn’t she have come to court with the child to prove it?  It doesn’t take a rocket scientist to figure out what she’s up to.

As a sidelight, let’s not overlook the fact that, once again, the state agency that enforces child support chose to litigate against a man who apparently isn’t the child’s father rather than finding out who is and going after him.  It’s typical behavior.  Often enough it seems that those state agencies, like the moms who defraud men about paternity, don’t much care who the dad is just as long as the money keeps flowing.  Great minds think alike.