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Posts Tagged ‘Non-custodial fathers’

Ninth Circuit Gives Big Victory to Non-Custodial Father | Glenn Sacks on MND

In Alienation of Affection, Best Interest of the Child, Child Custody, Child Custody for fathers, Child Support, Children and Domestic Violence, children legal status, Civil Rights, CPS, cps fraud, custody, Divorce, Domestic Relations, Domestic Violence, False Allegations of Domestic Violence, Family Court Reform, Family Rights, fatherlessness, fathers rights, Glenn Sacks, Intentional Infliction of Emotional Distress, National Parents Day, Non-custodial fathers, Parental Kidnapping, Parental Relocation, Parental Rights Amendment, Protective Dads on November 18, 2009 at 8:21 pm
Wednesday, November 18, 2009

By Robert Franklin, Esq.

A case decided November 10, 2009 by the Ninth Circuit Court of Appeals could have an enormous impact on fathers’ rights to their children.  (Note: The case is not yet published, so I can’t provide a link to it.)  It holds that even a divorced father with no right of physical custody must be given the opportunity to have custody of his child before a child protective agency can place it in foster care.  Failure to do so by a county child protective agency can subject the county to a suit for damages by the father under the federal civil law governing deprivation of constitutional rights.

To put it bluntly, this is a huge win for non-custodial parents.

The opinion in Burke, et al vs. County of Alameda California, et al now governs everyone within the jurisdiction of the Ninth Circuit which encompasses California, Alaska, Washington, Oregon, Hawaii, Idaho, Arizona, Nevada, Montana and the territories of Guam and the Northern Marianna Islands.  Unless overturned by the United States Supreme Court, Burke is binding precedent throughout the Ninth Circuit.

The Ninth is the largest federal circuit and one of the most influential on the others.  Of course the opinion in Burke doesn’t govern cases in other circuits, but, given that it was a case of first impression (i.e. a similar case had never been decided before by that circuit) there, it may well be looked to by other circuits in deciding similar cases.  It may also be looked to by the Supreme Court should a similar case reach that level.

David and Melissa Burke lived together and apparently were married.  Melissa’s 14-year-old daughter “B.F.” lived with them.  She was the natural daughter of Melissa and Clifton Farina who had divorced some years before.  David was her stepfather and Clifton was a non-custodial dad.  Frustratingly enough, the opinion doesn’t tell us whether Clifton had an order of visitation, but it seems that he did not because the opinion says that he had no right of physical custody.  Nevertheless, he saw his daughter fairly often even though B.F. testified that his new wife didn’t like her and being around her was uncomfortable for the girl.  Melissa had sole physical custody of B.F.

When B.F. complained to an Alameda County Sheriff’s officer that David hit her repeatedly and often fondled her breasts, the officer, without a warrant, removed her from the Burke home and placed her with the county child protective services agency.  CPS in turn placed her in some form of protective care.

David, Melissa and Clifton Farina sued Alameda County and the sheriff’s deputy under federal statute 42 U.S.C. 1983 which allows civil suits against municipal and state entities which “under color of law” deprive someone of their constitutional rights.  The trial court granted the county’s motion for summary judgment, holding that neither the Burkes nor Farina had any claim against the county on which they could prevail at trial.  The Ninth Circuit agreed that the Burkes had no claim and that the sheriff’s deputy was immune from suit.

But the circuit court reversed the trial court as to Clifton Farina.  It said that, even though he had no right of physical custody, Alameda County could not lawfully ignore Clifton as a possible custodian of B.F.  Failure by the county to “explore the possibility of putting B.F. in his care” violated his constitutional right to a familial relationship and association with his daughter.  His case was returned to the trial court so a jury could hear and decide his claim for damages against the county.

On this blog, both Glenn and I have written about the outrageous preference on the part of CPS agencies for foster care over father care.  Those agencies routinely bypass fathers altogther and place children in foster care.  I reported on an Urban Institute study that showed that, even though CPS agencies know who the father is in some 88% of cases that come before them, attempts to contact him are made in barely over half those cases.  Glenn has written about a girl to whom Orange County, California lied repeatedly over many years, solely to keep her from her father and in foster care.

In short, after this case, CPS agencies can no longer do that without getting sued.  The Burke opinion is not clear on exactly what a county must do to comply with it.  But as I see it, they’ll have to make diligent efforts to locate the father and assess whether his care would be superior to that of a foster home.  If it would be, he would get custody.  In short, when taking a child from its custodial parent due to abuse or neglect, a state within the Ninth Circuit’s jurisdiction may no longer simply ignore the non-custodial parent.

Thanks to Ned for the heads-up.

Lisa Scott’s RealFamilyLaw.com
Shared Parenting Advocate/Family Law Attorney Lisa Scott’s RealFamilyLaw.com exposes the truth about what is happening in our family law system. Lisa, the all-time leader in appearances on His Side with Glenn Sacks, says that she was “tired of having her stuff rejected by elitist bar publications and politically-correct newspapers” and decided to start her own website. RealFamilyLaw.com

Ninth Circuit Gives Big Victory to Non-Custodial Father | Glenn Sacks on MND.

The Truth About NonCustodial Parents: An Interview with Rebekah Spicuglia // Co-Parenting 101

In Alienation of Affection, Best Interest of the Child, Child Custody, Child Support, children legal status, children's behaviour, Childrens Rights, Civil Rights, custody, deadbeat dads, Department of Social Servies, Divorce, due process rights, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, Liberty, Marriage, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Kidnapping, Parental Relocation, parental rights, Parental Rights Amendment, Parentectomy, Parents rights, Restraining Orders, Sociopath, Torts on July 10, 2009 at 5:33 pm

On her blog, NonCustodial Parent Community, Rebekah Spicuglia captions the above picture of her and her son: “This is what ‘visitation’ looks like.”

Think you know what “noncustodial” really means?  Think again, and check out our interview with a woman whom MSN calls a “Mom Inspired to Change History”…

One of your goals in creating NCP Community is to raise awareness about the issues noncustodial parents face.  What are some of the key issues?

Noncustodial parents face many of the same challenges that custodial parents face.  We want to instill our values in our children, ensure they are doing their homework and studying for that big test tomorrow, treating others with respect .  But it is much harder to do when you aren’t in the same house as your children.

Parental disagreements are common, and a noncustodial parent can often feel helpless in decisions ranging from whether or not a child should have a cell phone to medical care.   But once you get past divorce and mediation issues and settle into everyday life, it’s engaging our children’s teachers, maintaining regular communication with our children, and arranging visitation that are the big issues.  Visitation in particular can be very difficult – there is scheduling with the custodial parent, figuring out childcare, trying to arrange playdates when you may not have much of a parenting community to speak of, and trying to make those visits really meaningful for our relationship with our children.

Yet, despite our best efforts and loving intentions, noncustodial parents often feel shut out from our children’s day-to-day life, academic progress, and major decisions.  In extreme cases, there might even be concern about child’s well-being, even child abuse, in the custodial parent’s home.   Societal misconceptions about what “noncustodial” means can wrongly limit a parent’s access to their children’s education/medical records, and parents often do not have access to legal resources or even understand their parental rights.  This can be discouraging for a parent who is truly striving to do the best s/he can.

What are some common misconceptions about noncustodial parents?

One of the biggest issues noncustodial parents face is a lack of understanding generally in society about what “noncustodial” means.  This leads to a great deal of frustration when dealing with authorities, and we regularly find ourselves explaining legalities to people to defend our right to be involved, our right-to-parent.

Just to clarify, there are two kinds of child custody, legal and physical, and there are varied combinations, which can even include a noncustodial parent sharing joint legal AND physical custody.  I do not have physical custody, but I share joint legal custody with my son’s father, which gives me full parental authority under the law.  But someone has to move out of the house, right?   Every divorce naturally creates custodial and noncustodial parents, but the stereotypes of the deadbeat dad/disappearing mom leave a stigma that noncustodial parents are irresponsible or don’t want their children, or worse – that they are dangerous and should be viewed with suspicion.  I have written about this many times on my sit, two examples here and hereIn fact, the majority of noncustodial parents are law-abiding citizens and loving parents who want to be involved as much as possible in our children’s lives.

Recently on your blog, you posted a Globe and Mail article about “parental alienation syndrome”.  The article noted: “Court proceedings are not conducive to peacemaking; they tend to increase acrimony between parents, which is bad for children. Many non-custodial parents simply walk away from an impossible situation, devastated to lose contact with their children, but consoled to know that their children’s exposure to a toxic tug-of-war is over.”  What support is available to parents in these situations?  What resources can they find at NCP Community or elsewhere?

What I loved about that article was the focus on the best interests of the child, which often gets lost in discussions of Parental Alienation Syndrome.  Sadly, many of us have seen how a parent might bad-mouth or poisoning a child against the other parent.  Whether or not people agree on the definition of “parental alienation” or that PAS exists as a “syndrome,” few people would disagree that the problem exists.   Even if both parents have legal custody, the custodial parent is in a position of greater power than the noncustodial parent.  It is much easier to interfere with visitation as the custodial parent – it is unfortunate that withholding visitation is a tactic often used, but when was the last time you saw an amber alert for “child abducted by custodial parent”?

Ideally, parents should be able to find ways to work together to prevent or manage these negative situations by bringing in mediators or planning ahead and building in very specific parenting plans into their custody agreements to prevent disputes.  However, if the situation is very bad, legal counsel may be needed.  NCP Community is a place for sharing strategies and solutions that will help everyone work together for the best interests of our children.

What are some of the unique challenges for co-parents who live a far distance from their children?  What are some ways they “stay close” when they don’t live close by?

There are many reasons a parent might live far away from his/her child – living near family, finding work, or to start a new life – and while it is hard, families can make it work.  In fact it has become easier to keep in touch long-distance, with visitation via skype and flying our kids unaccompanied to visit us.

Most importantly, no matter the distance, children should be able to continue the same quality of relationship with each parent that they enjoyed prior to the separation.  Here are some suggestions for noncustodial parents:

  • Regular phone calls, scheduled & unscheduled, helps keep the lines of communication open and ensure that you are kept in the loop of your chidren’s lives.
  • In conversation, asking specific questions shows that you care and are paying attention, and I find that those are easier questions for children to answer (“how did you do on your test?” vs “how was school today?”)
  • Be creative in your communications and demonstration of your love.  Text messages, emails, cards, care packages…  Keep a stack of cute cards at the ready to send.  Buy things that remind our children how special they are (magnets, pictures, ID-sized notes to fit into a wallet).
  • Communicate with the custodial parent. Again, the more specific the questions, the better.  The custodial parent is a goldmine of information about your child and main decision-maker in your child’s life, so open communication should always be a priority.
  • Don’t be discouraged. Keep trying, and try not to place the burden of your frustration onto your children.  Remember that despite the challenges you face, you are ultimately responsible for your involvement in your children’s lives.

You’ve noted the growing voice of noncustodial mothers, including Karen Murphy in her Motherhood from Afar column at LiteraryMama.  What are some special concerns that noncustodial moms face that noncustodial dads do not (or do to a lesser degree)?

Society can be harsh towards moms who don’t fit a traditional mold.  The assumption that mothers will retain custody of their children after a divorce is so strong that if she does not take custody, her fitness or attachment to her child comes into question in a way that it does not for men.  People wonder if she had her children taken away from her, or maybe she just didn’t want her kids.  These are assumptions that often have no basis in reality.  It may come down to which parent has more resources to offer the children, or which parent has the better lawyer.

What’s most important is that custody arrangements are made in the best interests of the children, and although a child might reside with one parent, that should not reflect badly on the noncustodial mom or dad.  At the end of the day, noncustodial moms and dads have more in common than not– we are just trying to stay involved in our children’s lives in meaningful ways.

The Truth About NonCustodial Parents: An Interview with Rebekah Spicuglia // Co-Parenting 101.

Divorce: The Impact on our Children

In Alienation of Affection, Best Interest of the Child, Child Custody, Child Support, child trafficking, children legal status, children's behaviour, Childrens Rights, Civil Rights, CPS, cps fraud, custody, deadbeat dads, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, due process rights, family court, Family Court Reform, Family Rights, fatherlessness, federal crimes, Freedom, Intentional Infliction of Emotional Distress, Liberty, Marriage, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Kidnapping, Parental Relocation, state crimes, Title Iv-D, Torts on July 8, 2009 at 12:30 am

The Impact on our Children

Inter-spousal violence perpetrated by men is only a small aspect of family violence. False abuse allegations are only a small tile in the mosaic of vilifying the men in our society. They serve well in successful attempts to remove fathers from the lives of our children. Here are some statistics resulting from that which show more of the whole picture.

  • 79.6% of custodial mothers receive a support award
  • 29.9% of custodial fathers receive a support award.
  • 46.9% of non-custodial mothers totally default on support.
  • 26.9% of non-custodial fathers totally default on support.
  • 20.0% of non-custodial mothers pay support at some level
  • 61.0% of non-custodial fathers pay support at some level
  • 66.2% of single custodial mothers work less than full time.
  • 10.2% of single custodial fathers work less than full time.
  • 7.0% of single custodial mothers work more than 44 hours weekly.
  • 24.5% of single custodial fathers work more that 44 hours weekly.
  • 46.2% of single custodial mothers receive public assistance.
  • 20.8% of single custodial fathers receive public assistance.

[Technical Analysis Paper No. 42 - U.S. Dept. of Health and Human Services - Office of Income Security Policy]

  • 40% of mothers reported that they had interfered with the fathers visitation to punish their ex-spouse.

["Frequency of Visitation" by Sanford Braver, American Journal of Orthopsychiatry]

  • 50% of mothers see no value in the fathers continued contact with his children.

["Surviving the Breakup" by Joan Berlin Kelly]

  • 90.2% of fathers with joint custody pay the support due.
  • 79.1% of fathers with visitation privileges pay the support due.
  • 44.5% of fathers with no visitation pay the support due.
  • 37.9% of fathers are denied any visitation.
  • 66% of all support not paid by non-custodial fathers is due to the inability to pay.

[1988 Census "Child Support and Alimony: 1989 Series" P-60, No. 173 p.6-7, and "U.S. General Accounting Office Report" GAO/HRD-92-39FS January 1992]

[U. S. D.H.H.S. Bureau of the Census]

  • 90% of all homeless and runaway children are from fatherless homes.
  • 85% of all children that exhibit behavioral disorders come from fatherless homes.

[Center for Disease Control]

  • 80% of rapists motivated with displaced anger come from fatherless homes.

[Criminal Justice and Behavior, Vol. 14 p. 403-26]

  • 71% of all high school dropouts come from fatherless homes.

[National Principals Association Report on the State of High Schools]

  • 70% of juveniles in state operated institutions come from fatherless homes

[U.S. Dept. of Justice, Special Report, Sept., 1988]

  • 85% of all youths sitting in prisons grew up in a fatherless home.

[Fulton County Georgia Jail Populations and Texas Dept. of Corrections, 1992]

  • Nearly 2 of every 5 children in America do not live with their fathers.

[US News and World Report, February 27, 1995, p.39]

There are:

  • 11,268,000 total custodial mothers
  • 2,907,000 total custodial fathers

[Current Populations Reports, US Bureau of the Census, Series P-20, No. 458, 1991]

What does this mean? Children from fatherless homes are:

  • 4.6 times more likely to commit suicide,

  • 6.6 times to become teenaged mothers (if they are girls, of course),
  • 24.3 times more likely to run away,
  • 15.3 times more likely to have behavioral disorders,
  • 6.3 times more likely to be in a state-operated institutions,
  • 10.8 times more likely to commit rape,
  • 6.6 times more likely to drop out of school,
  • 15.3 times more likely to end up in prison while a teenager.

(The calculation of the relative risks shown in the preceding list is based on 27% of children being in the care of single mothers.)

and — compared to children who are in the care of two biological, married parents — children who are in the care of single mothers are:

  • 33 times more likely to be seriously abused (so that they will require medical attention), and
  • 73 times more likely to be killed.

["Marriage: The Safest Place for Women and Children", by Patrick F. Fagan and Kirk A. Johnson, Ph.D. Backgrounder #1535.]

COMMON SENSE & DOMESTIC VIOLENCE, #3.

Supreme Court takes on international child custody case – BostonHerald.com

In Best Interest of the Child, Child Custody, Child Support, child trafficking, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, kidnapped children, Marriage, mothers rights, Non-custodial fathers, parental alienation, Parental Alienation Syndrome, Parental Kidnapping, Parental Relocation, parental rights, Parental Rights Amendment, Parentectomy, Parents rights, Restraining Orders, Rooker-Feldman Doctrine, Sociopath on July 3, 2009 at 2:53 pm

By Associated Press

Monday, June 29, 2009

WASHINGTON — The Supreme Court agreed today to hear arguments in a child custody dispute between a Texas mother and a British father that tests the boundaries of an international treaty.

The court will take its first look at how American authorities handle the Hague Convention on child abduction, aimed at preventing one parent from taking children to other countries without the other’s permission.

Adding to the case’s interest, the Obama administration joined the call for court review by approvingly citing a dissenting appeals court opinion by Supreme Court nominee Sonia Sotomayor in a similar case.

If confirmed, Sotomayor would sit on the court that hears the case next term.

The United States is among more than 80 countries that follow the treaty.

In this case, Timothy Abbott accused his estranged wife, Jacquelyn Abbott, of violating a court order in Chile by taking their 10-year-old son to Texas without his consent. The child, born in Hawaii, is a U.S. citizen.

Timothy Abbott asked an American court to order the child returned to Chile, based on the treaty. The mother argued that she has exclusive custody of the boy and that U.S. courts are powerless under the treaty to order his return.

A federal judge acknowledged that taking the son to the United States violated the Chilean court order, but sided with the mother and the New Orleans-based 5th U.S. Circuit Court of Appeals agreed.

Only a parent who has custodial rights can invoke the treaty to try to get the child returned, the appeals court said.

Federal appeals courts in New York, Richmond, Va., and San Francisco have ruled the same way, but the appeals court in Atlanta has disagreed.

The issue for the justices is whether a foreign court order like the one issued in Chile conveys a right of custody to the parent who has been left behind.

The administration sided with Timothy Abbott in saying it does. A parent like Timothy Abbott “has the ability to decide whether or not the child may be taken outside of the country of habitual residence, and thus the right to share in the decision as to where the child will reside,” Solicitor General Elena Kagan wrote.

Kagan’s brief quotes from Sotomayor’s dissent in a case over a mother’s decision to move with her daughter from Hong Kong to New York without either a court’s permission or the father’s consent and in violation of a Hong Kong judge’s order.

A divided panel of the 2nd U.S. Circuit Court of Appeals ruled in favor of the mother. Sotomayor said such court orders limit a parent’s custodial rights to the country where the parents and child live.

Taking the child out of the country without the other parent’s consent is the situation the treaty was designed to prevent, she said.

The case is Abbott v. Abbott, 08-645

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