Category: Blog

March 28, 2019 by Robert Franklin, Member, National Board of Directors, National Parents Organization

Anne Stuhldreher gets it (Los Angeles Times, 3/27/19).

She’s something called the director of financial justice for the City of San Francisco.  I have no idea what that position’s job description is, but Stuhldreher’s writing about child support and specifically that paid to mothers who’ve received some form of public assistance such as Temporary Assistance for Needy Families.  As we all know, when Dad pays child support to Mom who’s received public assistance, the money goes, not to her but to the state to reimburse it for the money it paid her.

I’ve never understood the connection.  Why does Dad’s money go to the state that paid, not him, but Mom?  He owes the state nothing, but pays it back anyway.  My guess is that federal and state governments noticed a source of funds and decided to grab them, sidelining in the process all their solemn comments about children’s need for support.  If public assistance were even close to sufficient to support a family, then I could see a dollar-for-dollar reimbursement scheme.  But in most states, it’s nothing like what’s required for families to make ends meet, so the only person deprived by the scheme is little Andy or Jenny.

In my first year as the director of financial justice for the city of San Francisco, I got asked one question over and over: “Can you please do something about child-support debt?”…

The child-support question at first had me puzzled. Why would government want to wipe out such debts? Wouldn’t that take money away from kids?

Of course it does exactly that.  But it does worse too.  Fathers who know their money isn’t going to their kids are far less likely to pay what they owe.  And needless to say, the payback program only harms the poor.

But 70% of outstanding child-support debt in California is owed to the government, not to kids. That’s because three-quarters of California child-support cases involve low-income families — disproportionately families of color — currently or previously on public assistance. Of the parents who owe payback debt, most earn less than $10,000 a year.

That’s not just true in California, but nationwide.  Indeed, almost 70% of child support debtors earn less than $10k per year.  But California is uniquely bad in that it still charges stratospheric interest rates on what’s owed.

California charges 10% interest on missed child-support payments, one of the highest interest rates in the country.  

Most states dialed back those rates years ago, but some haven’t.  Even most of those that did still charge in the 5% – 6% range, far in excess of rates paid by even chancy debt instruments, but 10% is outrageous.  It’s purely punitive and aimed directly at the poorest members of society.  Charles Dickens and Victor Hugo would understand completely.

Stuhldreher notes the consequences.

In California, a parent with $36,000 in public assistance payback debt can pay $50 every two weeks for 30 years and still end up owing the government more than $400,000. 

Does anyone anywhere believe that encourages a parent to pay?  Or does it encourage him to hide out, make payments under the table to his ex or simply abandon the whole enterprise and hope he doesn’t get caught?

And let’s not forget that child support that goes to the state is treated just like child support that goes to the child.

Most California counties also may send people to jail who cannot pay back public assistance, and the state can suspend the driver’s licenses of those whose payments are more than 30 days late. None of this makes it easy for parents who owe child support to get or keep a job.

Yes Dad, Mom got money from the state, you failed to repay it, so you got to jail.  Make sense?

Fortunately, there are a couple of bills before the California Legislature that would fix some of the worst aspects of the payback scheme.

State Sen. Nancy Skinner (D-Berkeley) introduced Senate Bill 337, which would require that 100% of parents’ payments go to their children and would end public-assistance payback requirements in California. When Colorado enacted this reform, child-support payments in the state jumped 63%. Families’ reliance on welfare and food stamps went down too.

Another bill put forward by Assembly member Reggie Jones-Sawyer (D-Los Angeles) would end the 10% interest rate on public-assistance debt. Jones-Sawyer is also introducing a bill that would extend a law that prevents public-assistance payback debt from growing while parents are incarcerated and cannot pay.

Thanks to Anne Stuhldreher for an informative piece.

March 26, 2019 by Robert Franklin, Member, National Board of Directors, National Parents Organization

Recently, I reported that a judge in New Jersey had declared unconstitutional its child support enforcement scheme that automatically suspended the driver’s license of anyone owing back child support in a given amount.  Now it appears Missouri is doing much the same thing.

And the organization Equal Justice Under Law doesn’t like it one bit.  It’s suing the state for suspending the license to drive of anyone owing $2,500 in child support or who’s been in arrears for three months, whichever amount is less.  This article makes some telling points about the advisability of doing so (Liberty Unyielding, 3/22/19).

Low-income people with cars have access to 30 times as many jobs as low-income people dependent on public transit, notes transportation expert Randal O’Toole of the Cato Institute: “Transit speeds average just 15 mph while average auto speeds in most cities are twice that.”  Moreover, “autos allow users to go where and when they want to go, while transit riders must go where and when the transit goes, which often means less direct routes than they could drive.”

I and others have said it many times.  Driver’s license suspension makes getting and retaining a job difficult.  A person who can drive can get to and from work.  A person who can drive can get a job operating a motor vehicle.  He/she can drive a taxi, a truck, work for a delivery service, Lyft, Uber, etc.  A person with no license can’t.  States that suspend drivers’ licenses make paying child support harder, not easier.  That means kids go without.  You remember kids.  They’re the ones states are supposedly helping when they enforce child support orders.

Why don’t people pay their child support?  It’s mostly for two reasons.  The first is that states set support levels too high for obligors to pay.  It’s a fact long admitted by the Office of Child Support Enforcement.  And,

When California commissioned the Urban Institute to investigate why parents were often behind on their child support, it reported that the number one reason for arrearages was that “orders are set too high relative to ability to pay.”

Then there’s the fact that, when an obligor loses his/her job, becomes disabled or otherwise isn’t earning the usual wage, it’s all but impossible to get a downward modification of the child support order.

The Urban Institute noted years ago that only 4% of noncustodial parents manage to get their monthly child support payments reduced when they lose their job, even though jobless people can’t afford to pay as much as people with jobs. Their unpaid child support just grows and grows, leading to them losing their driver’s license and access to most potential jobs.

The reason for all of this is that, back in the 80s, the myth of the “deadbeat dad” was born and rocketed to popularity.  State legislatures grew convinced that, if Dad was behind on his child support payments, it was only because he didn’t care about his kids and preferred to live a feckless existence.  That there was essentially no evidence for that proposition and much that refuted it mattered little.  Laws were passed to punish non-custodial parents, the great majority of whom were fathers, and regulations put in place to punish those in arrears in the most draconian ways.  Until comparatively recently, states routinely charged obligors 10% and 12% interest on unpaid balances, rates seen elsewhere only for the junkiest of junk bonds.

Then of course the federal government stepped in and offered states financial incentives that made those draconian enforcement methods all but inevitable.  Paying states for what they collect was part of that plus a budget of $5 billion annually for child support enforcement.  No one is surprised at the outcome.

The few people who argue in favor of those draconian enforcement mechanisms often point to the fact that sometimes they actually work.  Sometimes money is forthcoming when the obligor goes to jail.  It’s true.  The problem being that the money usually comes, not from the obligor, but from his relatives or friends – you know, people who owe no obligation of support to the child.

In the lawsuit, the State of Missouri will likely point to the fact that, unlike New Jersey’s, its law doesn’t automatically suspend the licenses of those in arrears, but only allows the state to do so.  It will claim that, in accordance with U.S. Supreme Court precedent, it conducts hearings to ascertain a person’s ability to pay.  Don’t believe it.  We’ve been to that rodeo before.  Parents in arrears are overwhelmingly poor and uneducated and have little way of knowing what evidence of inability to pay they have to produce for the judge or how to produce it.  Given that those “hearings” generally last about five minutes, the reality is that driver’s license suspension comes perilously close to being automatic.

OCSE data reveal unpaid child support levels that increase every single year.  Today, there is absolutely no chance that those balances will ever be paid off, a fact candidly admitted by the OCSE.  As of 2016, the unpaid balance was over $116 billion and climbing.  In 2007, the Office of the Assistant Secretary for Planning and Evaluation of the Department of Health and Human Services reported that 70% of arrears were due from obligors who had either zero income or reported earning less than $10,000 per year.  The same office reported that it expected to collect just 40% of arrears over a ten-year period, during which time of course, the total amount owed would keep climbing.  Here’s my post from last year on the matter.

There are sensible ways of approaching child support.  Principally, that would mean setting support orders that parents can pay, reforming parenting time so each parent has as close to half the time with the child as possible, making downward modifications easier to obtain and enforcing visitation orders with the same vigor as we do child support orders. 

Needless to say, we’re lightyears away from taking such reasonable steps.  In the meantime, we’ll have to rely on organizations like Equal Justice Under Law to force a degree of sanity on states that still seem to believe that non-resident fathers don’t care about their kids and the way to squeeze money out of the poor is to treat them as harshly as possible.

March 25, 2019 by Robert Franklin, Member, National Board of Directors, National Parents Organization

Certain Mississippi lawmakers, one state Supreme Court justice and the commissioner of Child Protective Services are all going to bat to provide attorneys for parents who find themselves in juvenile court facing charges of parental unfitness, child abuse or neglect (News Observer, 3/10/19).  So far, in at least certain counties, those parents haven’t had access to state-supplied lawyers.

Of course, the vast majority of parents in juvenile court are poor and have attained only modest levels of education.  That means they’re the least able to defend themselves, understand the charges against them, produce evidence on their behalf or grasp the consequences of failure to do so.  Few people in any court need legal representation more than parents facing the loss of their kids.

And, as I’ve said many times before, for the most part, the best living arrangement for children is with their parents.  After that, the best is living with relatives, but all too often CPS agencies err on the side of taking kids out of their homes.  That alone traumatizes them and spending much time with a family of strangers just adds to the discomfort.  Needless to say, there are times that that’s necessary, but time and again, we see CPS agencies that seem to be unaware of their potential for harm.  At least one study shows that even moderately abusive parents are better for kids than foster care.

So it’s a step in the right direction for Mississippi to provide lawyers for parents in juvenile court.  Those arguing on parents’ behalf make an important point.

State Supreme Court Justice Dawn Beam said more lawyers will reduce children entering state custody. That keeps families together and saves the state money…

The Supreme Court Commission on Children’s Justice says numbers in those counties are down from nearly 2,800 in March 2017 to about 2,200 in late 2018. The commission says those 600 fewer children saved the state $3.5 million a year, even after federal aid.

In other words, a few dollars spent on lawyers at the beginning of the process saves the state many dollars in foster care expense.  For that matter, dollars spent on helping parents be better at that job would save the state money too, but that’s matter for another day.

The commission says parent lawyers can help parents find services and can hold Child Protective Services workers accountable. The commission also says courts conclude more quickly which parents aren’t going to work for reunification when they’re represented by lawyers, helping judges move more quickly toward putting a child in care of a relative or up for adoption.

Parents have rights to their kids, but, particularly if they’re poor and poorly educated, they don’t know how to assert them, rendering those rights mostly theoretical.  The well-established tendency of child welfare agencies to run roughshod over parents’ rights needs to be stopped and allowing parents to have legal representation is a good place to start.

March 22, 2019 by Robert Franklin, Member, National Board of Directors, National Parents Organization

Call it Everyman’s “Shawshank Redemption.”  Vladek Filler has won again (Bangor Daily News, 3/16/19).  His victory is now complete.  On March 12, federal Judge John Woodcock issued his ruling awarding Filler $1.77 million in damages for his illegal and immoral persecution by various authorities of the cities of Gouldsboro and Ellsworth, and Hancock and Washington counties.  (The award is against a single person, Linda Gleason.  Filler previously settled out of court with other defendants.)  Perhaps more important than that award though was this statement in open court by Judge Woodcock:

And this is really, from a judicial perspective, it’s just appalling. I can’t say how sorry I am to you that you had such a terrible experience with the criminal justice system in this country and in this state. There’s no excuse for what happened to you. I know that you were born in Kiev. Not far from Kiev is Prague. In Prague, there was an author named Franz Kafka, and he wrote a book called The Trial about a man who is subjected to a malicious and befuddling and horrific trial system, and, unfortunately, you’re a living embodiment of what Franz Kafka wrote about. And I’m just terribly sorry it happened to you; there is just absolutely no excuse.”

The final message of Filler’s story is that a person can, by being right, strong, calm and persistent, prevail over seemingly insuperable odds, over a system of state power that’s rigged against him.

I won’t reprise the facts of Filler’s case.  I’ve written about it numerous times before.  But here are a few of the people and “powers that be” over whom he prevailed:

His ex-wife who, fearing the loss of custody of their kids, leveled false allegations of sexual abuse and child abuse at him.  Filler proved her allegations to be false and won sole custody of the children.

One assistant district attorney who prosecuted him for rape knowing him to be innocent of the charge.  Filler proved himself to be innocent of the charge despite ADA Mary Kellett having lied to the police, lied to the judge, lied to the jury, lied to the press and violated the rules of procedure, the rules of evidence and at least seven ethical requirements for prosecutors.  Filler’s persistence caused Kellett to resign her job as ADA and become the first and only prosecutor in the history of the state to be disciplined by the state bar association.

Numerous police officers who worked hand-in-glove with Kellett to try to railroad an innocent man into prison.  Filler demonstrated their malfeasance in his civil suit against them.  Rather than face a jury, the police settled that case out of court.

Filler prevailed in two attempts to find him guilty of criminal wrongdoing.  He forced the state bar to discipline an assistant District Attorney and won significant money damages from numerous individuals and state entities.  He is completely exonerated and they are disgraced.  The only irony remaining is that the only person to yet apologize to Filler is Judge Woodcock, a man who’s never wronged him.

The criminal justice system is in many ways stacked against defendants.  Even the innocent sometimes go to prison.  But Vladek Filler proved that an innocent man can defeat the power of the state.

The family court system too is in many ways stacked against fathers, particularly when sexual assault allegations (i.e. the “silver bullet) are made against them.  But Vladek Filler has proven that being in the right plus strength and perseverance can win the day.

For all those things, he stands as a beacon of hope to every innocent person who must confront and fight judicial systems that sometimes seem Kafkaesque.

March 20, 2019 by Robert Franklin, Member, National Board of Directors, National Parents Organization

Robert Francis “Beto” O’Rourke put his foot in it the other day.  The former Texas Congressman who’s seeking  the Democratic Party’s presidential nomination was on a speaking tour during which he announced that his wife raises their children, “sometimes with my help.”

That set off a mini-firestorm of protest from some who argued that only “white male privilege” could allow such a casual approach to childrearing .  And indeed, O’Rourke is highly privileged.  Forbes figures he’s worth between $5 million and $10 million and his father-in-law’s net runs to the hundreds of millions.  So O’Rourke, unlike the vast majority of other dads has no pressing need to go to work every day to ensure the kids have food on the table and clothes on their backs.

That means that O’Rourke could have, if he’d wanted, been very much a hands-on dad.  But he’s chosen to let his wife do the heavy lifting of childcare while he ran for office.  (He’s been an El Paso city councilman and U.S. Congressman for three terms.)  As such, I have to join the criticism of him.  He’s had every opportunity to be there for his kids and he’s chosen his career over them to a degree even he seems to regret.  Will he step up his parental game?  We’ll see.

O’Rourke’s hasty apology was more about his words – that he characterized as “ham-handed” – than his failings as a father.  Perhaps he “misspoke,” but that’s not what his children will remember when they’re adults.  What they’ll remember is his absence, his choice of career over them.

Still, it’s a hopeful sign that O’Rourke’s small dish of crow can make the headlines. 

The National Parents Organization takes no position on O’Rourke’s or any other office-seeker’s qualifications or fitness for office.  But when the issue of fathers and their role in the family comes to such prominence, we can’t ignore it.

March 18, 2019 by Robert Franklin, Member, National Board of Directors, National Parents Organization

The Missouri Department of Social Services appears to be discriminating against non-custodial parents in its child support enforcement policies and, more important, violating federal and state laws and regulations regarding non-custodial parents’ access to downward modifications of child support orders.

That’s the message sent by NPO’s Linda Reutzel and three others in two letters to the DSS acting director and the director of its child support division.

DSS regulations routinely refer to the parent owing child support as the “absent” parent or the “non-custodial parent.”  Both suggest a state of affairs that’s generally untrue in child custody cases.  The notion that the payer of child support is in any way “absent” from his child’s life is almost always untrue.

Plus, the DSS refers to the parent receiving child support as its “client.”  And what of the obligor parent?  The clear implication is that that person is of no interest to DSS.  That’s probably true, but the fact remains that the federal government parcels out meager amounts to states to help enforce orders of visitation.  Missouri receives some of those funds and presumably spends them in accordance with federal law and regulations, i.e. to help parents enforce those access orders.  That makes those parents the “clients” of DSS, but nowhere in DSS statements does it acknowledge the fact.

Worse, Missouri regulations require an obligor parent to prove three things in order to receive a downward modification of child support based on a loss of income.  First, the loss of income must have been in place for at least three consecutive months.  Second, there must be at least a 50% loss of income and finally, the obligor must in some way prove that the loss will continue for at least six additional months into the future.  How he’s supposed to do that is anyone’s guess.

But it gets worse still.  DSS won’t even consider a downward modification of a child support order unless it’s been in effect for at least three years.  Any obligor parent who loses his job six months or a year after the issuance of the order is out of luck, regardless of everything else.

Co-author of the letters, Ken Goins of Protecting American Families, put the matter best: “[The rules] often hurt the very children they are intended to help because they very often destroy the financial well-being of the obligor-parent who is struggling to make it through unemployment, under-employment, layoffs, furloughs, reduction in work-force, restructured wage-agreements etc.”

We’ll see how the state officials respond.  But however they do, the state of child support policy in the Show Me State looks to violate not only federal law and regulations, but common sense as well.

March 17, 2019 by Robert Franklin, Member, National Board of Directors, National Parents Organization

We’ve seen effort to discredit both the very idea of parental alienation and efforts to help alienated children and their targeted parents before.  And it looks like we’ll be seeing them again.  Here’s another, this time courtesy of “Reveal” for the Center for Investigative Reporting (Reveal News, 3/9/19).  But if this is investigative reporting, I’ll eat my hat.

The program that was aired by, among others, National Public Radio, runs to type.  Its message is that (a) the idea of parental alienation is “controversial,” (b) that if a kid says he/she despises one parent, there’s a good reason, (c) the idea of parental alienation is nothing but a legal “strategy” with which an abusive parent can gain custody and (d) programs to help alienated kids don’t work.

The program, entitled “Bitter Custody” uses the usual tactics to get those points across.  First, the reporters only interviewed kids who were found by a court to have been alienated but who swear they weren’t.  Second, they assiduously avoided the science on parental alienation.  Third, they assiduously avoided the science on the program Family Bridges.  And last, they assiduously avoided the evidence produced in court that made judges rule that one parent was alienating the kids from the other parent. 

That may be reporting, but it’s certainly not investigative.  After all, how hard could it have been to have picked up the phone and called Dr. Richard Warshak?  How hard could it have been to have read his studies of Family Bridges?

“Bitter Custody” interviews two sets of children, all of whom are now either in their early 20s or late teens.  All were found to have been alienated by the judges hearing their custody case and all were ordered to take part in a program aimed at helping them deal with their alienation.  One program was Family Bridges; another was Transitioning Families.

Among the strangest of Reveal’s take on the two cases is that the reporters never entertained the notion that the judges might have been right.  To do that they managed to introduce listeners to essentially none of evidence on which the findings of alienation were made.  Oh, there are lengthy portions of trial transcripts, but nothing about the behavior on which the mental health experts made their diagnoses.  Indeed, one reporter, Trey Bundy dismissed all that as “noise.”  Really.

“Bitter Custody’s” take on the matter of parental alienation is that courts don’t listen to the children who say they don’t want to spend time with one parent and that the kids should be believed and mental health experts (apparently) should not be.  I’m all for listening to children, particularly older ones, but it apparently never occurred to the reporters that alienated kids are the last people who should be unquestioningly believed when they talk about their parents.  It’s the whole point of alienation that kids turn on a parent who’s perfectly fit and caring.

Paralleling that is the program’s interview with Joan Meier who’s never made a secret of her antipathy for fathers.  Meier first describes claims of parental alienation as a “strategy” employed by fathers only.  She never mentions that mothers can do the same thing or that fathers can utilize parental alienation against mothers as well as vice versa.

More remarkably, Meier points to a study she conducted that found that fathers who claim their kids have been alienated from them are three times as likely to win custody as are other fathers.  “Bitter Custody” takes that at face value, but neither the reporters nor Meier stop to wonder why that might be.  Both assume it’s evidence that PA is a nefarious business conducted by nefarious parents.  But of course what also might be true – Occam’s Razor-wise – is that those fathers who claimed alienation might have been right and that judges who found Mom to have alienated the kids rightly concluded that maternal custody wasn’t such a good idea.  It’s an amazing failure of basic common sense to have never considered that possibility, a failure only made by those with pre-conceived notions about the matter under discussion.

And of course “Bitter Custody” never managed to address the studies of the Family Bridges program conducted by Warshak that find a high degree of success.  In a prime example of journalistic legerdemain, the reporters accomplish that feat thus:

Are you aware of any research or evidence that says that family reunification programs are effective, that they actually work in terms of healing relationships between parents and kids who do not wanna see them?

They asked that question, not of a mental health expert, but of Florida judge Leon Firtel who, unsurprisingly had read none of the literature on the subject.  Refusing to ask someone who probably does know about the scientific support for Family Bridges in favor of someone who doesn’t is a clever way of insinuating that there is no such research and of avoiding its findings.

About other matters, the reporters simply ignore what people say.  About PA, for example, Firtel said

Until you come to court and see one of these deals and see the people and talk to the mother and talk to the father and talk to the children, don’t tell me that it doesn’t exist. It exists, period.

And psychologist Dr. Abe Worenklein had this to say:

I am speaking about the phenomenon of parental alienation. I believe that nobody denies the fact that parental alienation does exist, it has always existed since the beginning of custody disputes.

Against emphatic statements like those, against the hundreds of scientific papers from all over the world written on the subject of PA over several decades and against the DSM – V that includes the concept under different names, “Bitter Custody” can only come up with four kids who claim they weren’t alienated and a single word – controversial.

The only things controversial are publications and programs like “Bitter Custody” that seek to cast doubt on the phenomenon of parental alienation and genuine efforts to reverse the damage done by it.  To the extent they’re successful at either (and so far they haven’t been), they tend to lend support for one of the most destructive of all parental behaviors.  Parental alienation is well understood to be a form of child abuse.  That’s what “Bitter Custody” went to bat for.

The program was underwritten by several foundations.  Everyone who cares about the truth about PA should write to those foundations and let them in on the facts of PA, the facts about Family Bridges and the scurrilous dissembling of the reporters whose work they paid for.

March 15, 2019 by Robert Franklin, Member, National Board of Directors, National Parents Organization

One of the common rejoinders from anti-shared parenting advocates to the call for equal parenting is that judges pretty much order shared parenting anyway, so there’s no reason to pass a law establishing a presumption of equality.  That would be a cheerful thought if it were true, but, whenever we see an analysis of actual custody outcomes, the claim is never borne out.

The Dads’ Resource Center, a non-profit in Pennsylvania devoted to ensuring the meaningful involvement of both parents in children’s lives, studied 700 cases in the Keystone State and, sadly but predictably, the results are much what we’d expect (WTAJ, 3/13/19).

Out of 700 cases that were looked at, the average custody time per week to the mother was 116 hours and 52 hours to the father. Mothers received full or primary custody in 496 cases while fathers had full or primary custody in 100 cases. There were 104 cases where the parents had joint custody…

Of the 700 cases that were determined. 343 of them were awarded 132 hours a week to one parent and 36 hours a week to the other. The mother received the primary custody in 291 cases and the father 52. This is roughly represents every other weekend and one night a week in custody time.

That’s an average of 69/31 parenting time, i.e. not enough for the benefits of shared parenting to be felt by the child.  That generally takes at least a 65/35 split of time with benefits rising as the split nears 50/50.

Now, it’s true that most of those cases weren’t decided by a judge.  As in all jurisdictions throughout the English-speaking world, the great majority of these were agreed to by the parents.  But, as I never tire of saying, that’s because both parents know, prior to the divorce that Mom is highly likely to get primary or sole custody.  That was demonstrated by what’s still the most authoritative study to date – Dividing the Child, by Maccoby and Mnookin.  Given that, why should Dad spend his hard-earned money in a fight he probably won’t win?  Dads sensibly tend to take what they think they can get when faced with the sometimes astonishingly high cost of custody cases.

There is no presumption in favor of joint custody in Pennsylvania. The Superior Court has maintained that a presumption-free law allows lower courts to engage in full, fair and comprehensive examinations of the best interests of the child, without burdening the custodial parent with defending the status quo.

It does indeed allow that.  The question though is whether lower courts do in fact “engage in full, fair and comprehensive examinations of the best interests of the child.”  We hear that claim whenever the subject of equal parenting comes up, but if that were true, how is it that the overwhelming weight of social science is on the side of equal parenting but the courts so seldom get around to ordering it?  Since 1993, the Census Bureau has kept records of child custody and they essentially haven’t changed in all that time.  In 1993, 84% of parents with custody were mothers; today it’s a little under 82%.  In the DRC study, 104 cases out of 700 resulted in shared custody.  That’s under 15%.

If states really wanted judges to act in the “best interests of children,” as they invariably say they do, every one of them would enact a presumption of equal parenting as Kentucky did last year.  Indeed, Pennsylvania will be considering a shared parenting bill this legislative session initiated and backed by our NPO affiliate there. The chances are good in other states this legislative season and the move toward shared parenting can’t come too soon.  Our children need it, our fathers need it, our mothers need it and so does society generally.

Thanks to the DRC for letting us know about the status quo in Pennsylvania.  It looks like another battlefield on which we’ll have to fight.

March 13, 2019 by Robert Franklin, Member, National Board of Directors, National Parents Organization

This case is a couple of years old, but offers a view of the adoption industry that we often get glimpses of but rarely see at such close range.  In re Sanford P. Krigel is a review of disciplinary action taken against adoption lawyer Krigel.  It’s amazing because the Missouri Supreme Court gives Krigel little more than a tap on the wrist for conduct that the dissent in the case argues merits disbarment.

Krigel is suspended from the practice of law for six months, with execution of such suspension stayed, subject to Krigel’s completion of a two-year term of probation in accordance with conditions imposed by this Court.

In other words, Krigel was allowed to continue practicing law as if nothing had happened.  If he received no other complaints within two years, he would be out from under the watchful eye of Missouri’s disciplinary authority.

So what had Krigel done?

It seems two young people, about 18 years old had an affair and the young woman had become pregnant.  She wanted to place the child for adoption but he wanted to keep and raise it.  His desire to do so made her break off their relationship and turn to adoption agency operator Hillary Merryfield for assistance.  She then turned to Krigel, with whom she’d had an ongoing business relationship for 20 years.

The father had also consulted attorney Jeff Zimmerman who unfortunately had little experience in adoption cases.

Eventually, Merryfield got the two estranged parents-to-be together at which time Dad told her he intended to raise the child in his parents’ house and with their help.  Merryfield duly reported same to Krigel along with her opinion that he didn’t really mean it, that, when push came to shove, he’d consent to the adoption.

Krigel opted for a strategy designed to remove Dad from the adoption process.  That included having Mom lie to Dad.  She told him that the doctors had said her due date had changed from April 8 to May 1.  That threw Dad off the scent.  Meanwhile,

Krigel employed a “passive strategy” in his representation of Birth Mother. Accordingly, Krigel and Birth Mother would “actively do nothing” to communicate with Birth Father or his counsel; they would not advise Birth Father or his counsel of the adoption plans, the birth of the child, and the instigation of any legal proceedings.

It worked.  Dad and his lawyer believed that the adoption plans had stopped and that he’d be able to get custody of his child.  But Mom gave birth in April, plenty of time in which to turn the baby over to the adoptive parents and hold a hearing on the termination of parental rights.  Krigel told Dad and his lawyer nothing about the hearing and of course they didn’t attend.   At that hearing, it was necessary to lie to the court, which Krigel adroitly did.

In response to a question by Krigel, Birth Mother agreed that Birth Father “had been consulted at length about the matter.” Birth Mother also agreed when Krigel asked “even though you’ve talked to him and his family at some length, he has not stepped forward since the birth of the child claiming any rights to the child.” Birth Mother’s parental rights were terminated. Immediately thereafter, a “Motion to Transfer Custody and for Adoption” was heard. The custody of the child was transferred to the prospective adoptive parents.

But apparently Mom posted something to Facebook about the adoption that Dad happened to see.

On May 6, 2011, the trial court entered its judgment in the adoption proceedings, denying the petition of the adoptive parents and awarding legal and physical custody of the child to Birth Father.

Only through dumb luck was Dad able to circumvent the ruse Krigel had so carefully planned and executed.  The accident of viewing a Facebook posting was the only thing that preserved his parental rights and possibly allowed two perfectly fit parents to adopt some child somewhere who truly needs to be adopted.

The Office of Chief Disciplinary Counsel was less than pleased with Krigel’s conduct and brought an action against him for violations of numerous ethical rules.  He was found by the OCDC to have violated four and the Supreme Court agreed on all those findings.

Rule 4-3.3(a)(3) requires a lawyer shall not knowing “offer evidence that the lawyer knows to be false ….”

Rule 4-4.1(a) specifies that when representing a client, a lawyer shall not knowingly “make a false statement of material fact or law to a third person ….”

Rule 4-4.4(a) requires that in representing a client, a lawyer “shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person ….”

Rule 4-8.4(d) provides that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice ….”

In short, he intentionally misled the court hearing the termination matter and lied to Zimmerman and possibly Merryfield.  It can’t have helped Krigel’s cause that he charged the adoptive parents an astonishing $22,000 for doing what he admitted was less than 10 hours of billable work.  Greed like that rarely wins friends.

Nor did it help that his actions caused Dad to incur between $30,000 and $50,000 in legal expenses.

Still, the Supreme Court winked at all that and I think I can see why.  I think the Court believed that what Krigel did simply wasn’t terribly important.  Now, it’s true that he’d never had a finding of unethical conduct before in some 30 years of law practice.  Of course, given his conduct in this case, one wonders whether he simply hadn’t been caught, but who knows?  We certainly see adoption attorneys in other cases behaving in the most outrageous of ways, and always in the interest of removing a father from the adoption process and forcing adoption on a child who doesn’t need it to enhance the cash flow for the lawyer and the adoption agency.  Needless to say, that means nothing about Krigel.

Still, the Supreme Court described Krigel’s behavior this way:

Krigel’s most egregious act of misconduct was lack of candor toward the tribunal.

Say what?  A more accurate description would be that he engaged in a months-long pattern of intentional deception of the father, Zimmerman, the court and possibly Merryfield, and fleeced the adoptive parents of money to the tune of 10 times what they should have paid.  Lack of candor indeed.

And here’s something that not one of the judges (one majority opinion, one concurrence and one dissent) mentioned: what Krigel’s fraud took aim at was not only a father’s parental rights but a child’s best interests and that of the adoption system as a whole.

I fully understand that technically the OCDC and the court had only to look at the various ethical violations.  But is it really their belief that an attorney who violates ethical precept A commits the same violation in a traffic ticket case as one who commits the same violation in a murder case?  Does the underlying legal case mean nothing?  The U.S. Supreme Court has called parental rights “far more precious than property rights,” but those very rights don’t merit a mention by the Missouri Supreme Court.

 Despite the majority of adoption agencies and lawyers who are surely ethical and provide a much-needed service to parents and children, there is far, far too much about the adoption industry that fairly reeks of moral and legal wrongdoing for the sake of filthy lucre.  Nothing about the Court’s decision will clear the air.  Indeed, it tells lawyers tempted by big paydays that even intentional wrongdoing will barely get them a tap on the wrist.