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Archive for May, 2009|Monthly archive page

The Constitutionality of Child Support Guidelines

In Alienation of Affection, Best Interest of the Child, Child Custody, Child Support, child trafficking, children legal status, children's behaviour, Civil Rights, CPS, cps fraud, Domestic Relations, Domestic Violence, due process rights, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Freedom, judicial corruption, Liberty, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Kidnapping, Parental Rights Amendment, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes, Title Iv-D on May 31, 2009 at 9:00 pm

© 2003 National Legal Research Group, Inc.

This article updates a previous article dealing with the same subject. Laura W. Morgan, The Constitutionality of Child Support Guidelines, 14 Divorce Litigation 117 (2002).

I. New Decisions

On April 29, 2003, the Supreme Court of Georgia decided Georgia Department of Human Resources v. Sweat, 2003 WL 1960012 (Ga. 2003). This case reviewed a trial court’s decision declaring the Georgia child support guidelines unconstitutional as a violation of the guarantees of due process, equal protection, and privacy, and as an unconstitutional taking of property. The Georgia Supreme Court concluded that the trial court employed “incorrect constitutional standards” and “unsound constitutional analyses,” and reversed.

The Georgia Supreme Court first concluded that the guidelines do not violate the Georgia and United States Constitutions’ guarantees of due process for two reasons. First, the statute need only meet the rational basis test, i.e., it is reasonably related to the public health, safety, or general welfare, and not a more exacting constitutional standard, because the statute does not infringe on a fundamental right and the complaining party is not a member of a suspect class. The trial court thus erred by applying an intermediate scrutiny analysis. Second, the statute meets the rational basis test as it furthers the important and reasonable objective of ensuring adequate support for Georgia’s children whose parents have divorced. The distinction between custodial and non-custodial parents is required to ensure that each parent contributes his or her fair share.

The court next concluded that the guidelines do not violate the Georgia and United States Constitutions’ guarantee of equal protection. Again, because no fundamental right or suspect class is involved, the statute need only meet the rational basis test. Custodial and non-custodial parents are not, by definition, similarly situated, and it is not true that only non-custodial parents are affected by support orders. The guidelines thus draw permissible distinctions without discriminating.

The court further concluded that the guidelines do not violate the constitutional right of privacy. The state has a sufficient interest in ensuring adequate support for its children, and child support has never been a private function.

Finally, the guidelines do not effect an illegal taking. The guidelines are not a governmental taking of money for a public purpose, but are an effort to ensure payment of support from one parent to another.

On May 2, 2003, the Tennessee Supreme Court decided Gallaher v. Elam, 2003 WL 2010731 (Tenn. 2003). This decision reviewed a Tennessee Court of Appeals’ decision that held that Tennessee Child Support Guidelines ch. 1240-2-4-.03(4) violated the Equal Protection and Due Process Clauses of the Tennessee and United States Constitutions. This provision of the guidelines states: “Children of the obligor who are not included in a decree of child support shall not be considered for the purposes of reducing the obligor’s net income or in calculating the guideline amount. In addition, these children should not be considered by the court as a reason for deviation unless they meet the requirements of rule 1240-2-4-.04(4).” The court of appeals also held that Tennessee’s guidelines, by taking into consideration only the obligor’s income, also violated equal protection and due process.

The Tennessee Supreme Court began its analysis with the appropriate level of constitutional scrutiny and concluded that the guidelines need only meet the rational basis test. The lower court thus erred by applying heightened scrutiny.

Next, the court stated that the guidelines treat obligors who have children for whom there are no orders of support differently from obligors who have children subject to court-ordered support. This distinction meets the rational basis test because children who are subject to court orders and those who are not enjoy different benefits from the obligor.

The court then held that the state’s formula for computing child support, which is based solely on a percentage of the obligor’s income, does not result in any constitutional violation per se. This is because the guidelines presume (and it is true) that the obligee will be expending at least an equal percentage of net income as that of the obligor for the support of the children for whom support is sought. Moreover, the guidelines permit a deviation from the amount calculated if the presumptions underlying the guidelines are not present in the particular case. Thus, a parent can present evidence to the court regarding his or her case that will result in the fairest possible award.

Finally, the court concluded that there was no violation of separation of powers for the Department of Human Services to enact child support guidelines. The Department was clearly carrying out the legislature’s intent embodied in Tenn. Code Ann. 71-1-132(a)(1), which directed the Department to enact guidelines consistent with the federal mandate at 45 C.F.R. 302.56. The delegation of power was thus constitutional.

II. Analysis

The law is clear that child support guidelines need only meet the rational basis test in order to pass constitutional scrutiny. In case after case, the courts have held that child support guidelines must meet this test. Yet, non-custodial parents continue to press in state after state the same arguments: that child support guidelines violate due process, equal protection, the right of privacy, the separation of powers, First Amendment rights, etc. Why?

There is a persistent view that child support guidelines treat non-custodial parents unfairly, that the amount they pay is simply too much. This view persists even though study after study has shown that (a) non-custodial parents’ standard of living goes up after divorce, while custodial parents’ standard of living goes down; and (b) child support does not reach even the basic levels of expenditures on children in intact families as determined by the United States Department of Agriculture.

One reason for this persistent view may be the percentage of income model itself. Both of these recent challenges came from states, Georgia and Tennessee, that use the percentage of income model. Although this model presumes that the custodial parent is contributing to the support of the child(ren) in the same percentage as the non-custodial parent, this presumption is not as explicit in the method of calculating support as it is in income shares model states. Where the perception of fairness is as important as fairness itself, it may be a good idea for percentage of income model states to switch to the income shares model.

Another reason may be non-custodial parents’ frustration with an inability to obtain custody/visitation in an amount they desire. When a parent does not see a child as much as he or she wishes, that parent is less likely to pay support or view support as fair.

There should be no battle on this topic. All parents should agree that children are entitled to a “fair” amount of support, and all parents should agree that both parents, in the absence of domestic violence or other vitiating factors, should have as much access to the child as is in the best interests of the child. Fairness can be ensured by a child support guideline model that takes into consideration as many factors as possible, including both parents’ incomes, and access to the child should be a priority with the courts. If both these goals are realized, the constitutional challenges will diminish.

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The Macabre Dance of Family Law Court, Abnormal Psychology, and Parental Alienation Syndrome – Summary

In Alienation of Affection, Best Interest of the Child, California Parental Rights Amendment, Child Custody, Child Support, child trafficking, children legal status, children's behaviour, Childrens Rights, Civil Rights, deadbeat dads, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, due process rights, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Freedom, Intentional Infliction of Emotional Distress, Jayne Major, judicial corruption, Liberty, MMPI, MMPI 2, motherlessness, mothers rights, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Kidnapping, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes, Title Iv-D, Torts on May 31, 2009 at 5:15 pm

by Jayne A. Major, Ph.D. http://www.breakthroughparentingservices.org/index.htm
Copyright 2009: Jayne Major. All rights reserved.

Dr. Major attended the latests Symposium For Parental Alienation Syndrome during March 27-29, 2009 in Toronto, Canada and gave this speech reprinted here:

“Our litigation system is too costly, too painful, too destructive,
and too inefficient for civilized people.”
~ Justice Warren Burger

If we accept that Family Law courts have a moral imperative to seek truth and to do as little harm as
possible, our Family Court system is failing miserably. Too often what prevails in court is not the truth, but the illusion of truth. The current litigation system is not capable of protecting children from the horrendous damage inflicted by those parents who are disturbed. Children lose critical thinking ability, incur the devastating loss of one-half of their heritage and a lifetime doomed for failed social relationships and
psychiatric disorders.

Few lawyers, judges, nor laypersons are able to recognize seriously disturbed people who look and often act
“normal.” Yet, their numbers are large and the damage they do to other parents, their children, and society is
staggering. Sociopaths are cruel—without moral conscience, empathy, sympathy, or compassion. Their purpose is to win by domination. Harvard psychologist Martha Stout, in her book The Sociopath Next Door, states that one in twenty-five people is a sociopath. Furthermore, there is an estimated 20% of the general population with personality disorders. Those individuals who are the most dangerous are described in the DSM IV, Axis II Cluster B. The descriptive labels of these disorders are borderline, narcissistic, histrionic, and anti-social.

We can assume that a much higher percentage of these disturbed people can be found in Family Law courts
because they are unable to compromise or to work out family solutions without conflict. They lack insight, are unable to realize how they contribute to the problem, want their way, blame others, can’t self-correct, have difficulty forming trusting relationships, are unreasonable and demanding, create upset and distress with people around them, and justify inappropriate behavior. They have a “my way or the highway” mindset. Their behavior is not episodic but a pervasive character flaw that has always been present.

Therapy is of little help to these individuals, as their disorder is not fixable. The reason is that you can’t have a conversation about a problem when the problem is answering the question. Thus, the cure-all of sending such people to therapy is of little value. In fact, because sociopaths have no moral conscience, therapy gives them the language and skills to manipulate others more effectively; it helps them become better at being sociopaths. And they often get the upper hand in court by diverting attention off of themselves and onto the targeted parent by making numerous false allegations.

Often judges order a psychological evaluation to help them decide what would be the best orders for a
family. The evaluation is intended to curb the dysfunctional parent from doing more damage; however, this
is often not the outcome. When only one professional evaluates a family, the chance for error is high.
Personal bias is one problem.

Psychologists are not immune to being unduly influenced by a cunning and persuasive sociopath. Another problem is a policy followed by most evaluators to routinely offer a middleof-the-road recommendation rather than address the psychiatric problems directly. A third problem is that evaluators are unwilling to use labels that would identify these disorders. While there are many valid reasons to not label people, the end result is that the psychologists’ report does not provide a clear and accurate picture of the underlying dynamics of the family and causes of the dysfunction.

Imagine a parent who has to deal with the other parent’s crazy-making behavior day in and day out as they watch his or her child deteriorate under the disturbed parent’s care. They do not understand why the alienating person is so difficult and irrational. Most of all, the targeted parent wants to know what they can do to make the situation better. Without clarity, truth is hard to distinguish. The unfortunate outcome of too many psychological evaluations is that hard decisions to protect a child are not made early, which necessitates more litigation and future evaluations… in the mean time, more damage is done.

Furthermore, in litigation, lawyers are supposed to advocate for their clients, not for their clients’ children or
the well-being of the family. It is very easy for a lawyer to manipulate situations to make the healthier parent
look disturbed and their own disturbed client appear superior. For those lawyers who hold litigation as a
sport of winning and losing combatants, the principle of “the best interest of the child” is used as a slogan to
justify what is not in a child’s best interest. The result is often disastrous. The parent who will do the most damage to a child ends up with substantial legal and physical custody. In terms of preserving the mental health of all concerned, litigation of these cases causes profound and permanent damage, a loss of family assets, and untold suffering. The dance between Family Law courts and those who are psychologically abnormal is macabre indeed.

Do we really want to continue to let mentally unstable people get the upper hand and create mayhem? We are the professionals, the leaders, the creative thinkers who have the responsibility to implement a better way of handling family reorganization. The destruction of our families, our children, our wealth, has a horrific ripple effect into all of society.

Following is a paradigm that will not only stop parental alienation syndrome but preserve the well-being of
all members of separating families. The plan relies on mediation, education, and prompt legal intervention.
Highly trained professionals who understand family systems and are able to recognize mentally disturbed
parents work as a team. Families are tracked by a Case Manager.

A 6-week Divorce Education course provides a foundation of knowledge that creates understanding and enhances positive adjustment in the reorganizing family. Financial issues are worked out by professionals who also educate parents about how to manage their money. Parents pay for the services they receive according to their ability to pay. Most of all, parents always have a place to go when they see that the family plan is not working. The cost of this method of resolving family dissolution is minimal compared to the cost of maintaining an elaborate Family Law court system. High-conflict disputes are minimized or eliminated. The result of using this method would have a healthy impact on society as we would not be passing on from one generation to the next abusive practices that carry mental instability to the next generation.

To read more of the article see: http://www.breakthroughparentingservices.org/3-09_Summary_of_Presentation.pdf

Parental Alienation Syndrome in Court Referred Custody Cases by Janelle Burrill

In Best Interest of the Child, Child Custody, Family Rights, fatherlessness, fathers rights, kidnapped children, mothers rights, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Kidnapping, Parental Rights Amendment on May 31, 2009 at 3:13 pm

Book review from Amazon.com

This dissertation summarizes the research of 30 court referred, custody dispute cases assessing the behaviors of the parents and their children to determine the presence or absence of Parental Alienation Syndrome (PAS). The criteria to determine the parent and their children’s behaviors is Dr. Gardner’s definition of Parental Alienation Syndrome.

The parents were placed in three categories (mild, moderate or severe) based on their symptoms and behaviors. Their children (59) were then categorized into three groups (mild, moderate, severe). This investigation seeks to determine additional information regarding the presence or absence of PAS.Reluctance by the courts and mental health community to accept the validity of PAS probably contributes to the perpetuation of the disruption of parent-child relations in custody disputes. Findings and Conclusions:

It appears the data from this study corroborates observations and definitions of Parental Alienation Syndrome. The data from this study indicates that the parents in the mild PAS category have children who exhibit fewer negative behaviors toward the alienated parents whereas children whose parents are in the severe category exhibit more negative behaviors towards the alienated parents.

This study found that the more negative behaviors a child exhibits towards an alienated parent, the more severe their parent’s symptoms and behaviors.
Consequently, there is more severe alienation from the alienated parent and the more disruption to that parent-child relation.

PAS is a distinctive form of child abuse generally found in intractable custody disputes.

Parental Rights – Analysis by Article of the UNCRC – Part 7 of 9

In adoption abuse, Autism, Best Interest of the Child, California Parental Rights Amendment, Child Support, child trafficking, children criminals, children legal status, children's behaviour, Childrens Rights, Christian, Civil Rights, CPS, cps fraud, deadbeat dads, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, due process rights, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Freedom, HIPAA Law, Homeschool, Indians, judicial corruption, kidnapped children, Liberty, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Rights Amendment, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes on May 30, 2009 at 10:18 pm

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that continuing analysis:

Article 16: Privacy From Parents

During our series on the UN Convention on the Rights of the Child, a constant theme has been the recurring intervention of government power in the relationship between children and their parents. Broad discretion for the state is particularly prevalent in the Convention’s “freedom” provisions, which guarantee choices to children when it comes to expression, information, religion, and association.

Perhaps the most troubling of these “freedom” provisions is article 16, which stipulates that “no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence.” More so than any other section of the Convention, article 16 invokes the power of the government in ways previously unseen and untested in America’s legal and political history.

Paradigm Shift

The key to understanding article 16 is found in its absolute language: no child is to have his or her right to privacy violated. According to American law professor Cynthia Price Cohen, article 16 “uses the strongest obligatory language in the human rights lexicon to protect the child’s privacy rights.”

This is a strong break from American law. According to Catherine Ross, writing in the University of Pennsylvania Journal of Constitutional Law, the concept of a “right to privacy” has been used within the American context to support limited reproductive freedom for children, including the right to receive information, counseling, and contraceptives without parental consent or notification. But even in such cases, the Supreme Court has attempted to draw some sort of balance between the privacy rights of the child and the role of parents in raising and directing their children: never has the Court stated that children have an absolute right to privacy even from their parents.

Displacing Parents

In contrast, the “right to privacy” within the Convention is far broader than anything contemplated in American law or jurisprudence, bestowing an absolute right to privacy which, according to the UN Committee on the Rights of the Child in their 2004 report on Japan, includes privacy in “personal correspondence and searching of personal affects.” This includes more than just a child’s diary or letters to a pen pal: it includes e-mails composed, websites visited, and a growing plethora of other means of communication with the outside world.

Law professor Bruce Hafen notes that this strong language makes little allowance for the role of adults who are unavoidably involved in a child’s private world – namely, the child’s parents. Scholar Barbara Nauck adds that when the responsibility of parents to “guide and direct” their children comes into conflict with the right of children to have privacy, it is highly questionable whether parents will have the lawful authority to interfere with the child’s privacy.

Only the First Step

On this basis alone, law professor Richard Wilkins has warned that Article 16 has the potential to place the basic ability to discipline and monitor children – activities necessary for effective parenting – into serious doubt. In addition, the provision’s absolute guarantees could also be extended through state laws or the decisions of judges to include other “rights” guaranteed by the Convention – such as the freedom of religion, expression, or information – with devastating consequences to the authority and effectiveness of parents. It is the absolute, all-encompassing nature of article 16 that poses the real danger to both children and parents.

Please forward this message on to your friends and urge them to sign the Petition to Protect Parental Rights at http://www.parentalrights.org/join-the-fight.

Article written for ParentalRights.org by Peter Kamakawiwoole, May 12, 2008.

Sources

Cynthia Price Cohen, The Role of the United States in Drafting the Convention on the Rights of the Child (1998): 34.

Catherine Ross, An Emerging Right for Mature Minors to Receive Information (1999): 261.

UN Committee on the Rights of the Child, Concluding Observations: Japan, CRC/C/15/Add.231 (2004)

Bruce Hafen and Jonathan Hafen, Abandoning Children to their Autonomy (1996): 472.

Barbara Nauck, Implications of the United States Ratification of the UN Convention on the Rights of the Child (1994): 700.

Richard Wilkins, et. al., Why the United States Should Not Ratify the Convention on the Rights of the Child (2003): 421.

Best Interests of the Child

In Alienation of Affection, Best Interest of the Child, Child Support, child trafficking, children criminals, children legal status, children's behaviour, Childrens Rights, Civil Rights, CPS, cps fraud, deadbeat dads, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, Freedom, Homeschool, Indians, Intentional Infliction of Emotional Distress, judicial corruption, kidnapped children, Liberty, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Kidnapping, Parental Rights Amendment, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes, Title Iv-D on May 30, 2009 at 3:00 pm

“The best interests of the child,” a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion-much less the sole constitutional criterion-for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others.

“The best interests of the child” is not the legal standard that governs parents’ or guardians’ exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves.
– Reno v. Flores, 507 U.S. 292 (1993) – United States Supreme Court

It is time we remove this nonsense from state legislatures and codify parental rights and do away with “best interest of the child” in the same way, “tender year’s doctrine” was done away. It is time to make a stand on civil rights of parents and children.

Parental Rights – Analysis by Article of the UNCRC – Part 6 of 9

In adoption abuse, Autism, Best Interest of the Child, California Parental Rights Amendment, Child Support, child trafficking, children criminals, children legal status, children's behaviour, Childrens Rights, Civil Rights, CPS, cps fraud, deadbeat dads, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, DSM-IV, due process rights, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Freedom, Homeschool, judicial corruption, kidnapped children, Liberty, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Rights Amendment, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes, Title Iv-D on May 30, 2009 at 5:00 am

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that continuing analysis:

Article 14: Religion Is Child Abuse?

This week, we continue our series on the UN Convention on the Rights of the Child with Article 14, which says that the government shall “respect the right of the child to freedom of thought, conscience and religion,” and shall also “respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.”

Proponents of the CRC, such as law professor Jonathan Todres, has commented that Article 14 “provides for the role of parents in teaching religion to their children, while ensuring that the government does not impose restrictions on any child’s right to freedom of religion.” Nevertheless, a deeper understanding of this provision reveals that the purportedly “pro-parent” language is really another avenue for government power, not a shield to protect parental rights.

How much “direction” is too much direction?

On its face, this article may seem to support the role of parents, but such a position is merely wishful thinking. The Convention merely recognizes the parents’ primary role to “provide direction” to the child, and there is considerable disagreement on what this “direction” should entail. For example, according to Faulkner University law professor John Garman, Article 14 is one of the few clauses in the CRC that “actually brings the parents into play to ‘provide direction to the child.’”

But another CRC proponent, law professor Cynthia Price Cohen, disagrees. According to Cohen, one of the earliest drafts of Article 14 included “two paragraphs that protected the right of parents to guide the exercise of this right and to ‘respect the liberty of the child and his parents’ with regard to the child’s religious education.” When the final text was adopted, however, all language protecting the rights of parents to “ensure the religious and moral education of the child” was omitted. This omission makes no sense if the purpose of Article 14 was to protect the rights of parents to instruct their children.

Religious “indoctrination” as abuse?

The danger to parents is compounded by a growing movement among American and international academics to prevent parents from “indoctrinating” their children with religious beliefs. For example, British scientist and bestselling author Richard Dawkins recently described religious “indoctrination” of young children as a form of child abuse. “Odious as the physical abuse of children by priests undoubtedly is,” Dawkins writes, “I suspect that it may do them less lasting damage than the mental abuse of bringing them up Catholic in the first place.”

Dawkins is not alone in his analysis. In 1998, bestselling author and professor of psychology Nicholas Humphrey, teaching at New York University at the time, argued for “censorship” of parents, who have “no right to limit the horizons of their children’s knowledge, to bring them up in an atmosphere of dogma and superstition, or to insist they follow the straight and narrow paths of their own faith.”

Both authors advocate an outside solution to “protect” children from indoctrination: intervention by the government. In The God Delusion, Dawkins quotes from Humphrey, who writes that “children have a right not to have their minds addled by nonsense, and we as a society have a duty to protect them from it.” Humphrey bluntly adds that “parents’ rights have no status in ethics and should have none in law” – parenting is a “privilege” that operates within parameters set by society to protect the child’s “fundamental rights to self determination.” If parents step beyond these boundaries by indoctrinating their children, “the contract lapses – and it is then the duty of those who granted the privilege to intervene.” (emphasis added)

Some have called for international talks on whether children should be involved in religion. Innaiah Narisetti of the Center for Inquiry (a U.N. NGO) said, “The time has come to debate the participation of children in religious institutions,” continues Narisetti. “While some might see it as a matter better left to parents, the negative influence of religion and its subsequent contribution to child abuse from religious beliefs and practices requires us to ask whether organized religion is an institution that needs limits set on how early it should have access to children.” Narisetti also said that “The UN must then take a clear stand on the issue of the forced involvement of children in religious practices; it must speak up for the rights of children and not the automatic right of parents and societies to pass on religious beliefs, and it must reexamine whether an organization like the Vatican should belong to the UN”

The “fundamental interest of parents”

This aggressive censorship of parents captures the true spirit of Article 14. According to law professor Bruce Hafen, the language of Article 14 views “parents as trustees of the state who have only such authority and discretion as the state may grant in order to protect the child’s independent rights,” and is consistent with what the state deems as the child’s “evolving capacities.” Such a calloused view of parents stands in stark contrast to our own legal tradition, which has long upheld “the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children.”

America’s legal heritage has consistently held that parents have a fundamental right to teach their children about religion, shielded from well-intentioned but intrusive interference from the state. The danger of Article 14 is that it disrupts this crucial balance, tipping the scales in favor of the government and those who claim to “know better” in our society. If we wish to secure these freedoms, we must act now to place parental rights into the text of our Constitution.

Please forward this message onto your friends and urge them to sign the Petition to Protect Parental Rights.

Article written by Peter Kamakawiwoole, May 5, 2008.

Sources

Jonathan Todres, “Analyzing the Opposition to the U.S. Ratification of the U.N. Convention on the Rights of the Child,” in The U.N. Convention on the Rights of the Child (2006): 24.

Cynthia Price Cohen, “Role of the United States in Drafting the Convention on the Rights of the Child,” Loyola Poverty Law Journal (1998): 30-31.

Bruce Hafen, “Abandoning Children to their Autonomy,” Harvard International Law Journal (1996): 470.

Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).

INTERSPOUSAL TORT CLAIMS – JURY TRIAL

In Best Interest of the Child, Child Support, child trafficking, children criminals, children legal status, children's behaviour, Childrens Rights, Civil Rights, CPS, deadbeat dads, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, DSM-IV, due process rights, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Freedom, Intentional Infliction of Emotional Distress, judicial corruption, kidnapped children, Liberty, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Kidnapping, Parental Rights Amendment, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes, Title Iv-D, Torts on May 29, 2009 at 6:00 pm

© 1996 National Legal Research Group, Inc.

NEW JERSEY: Brennan v. Orban, 145 N.J. 282, 678 A.2d 667 (1996).

Family courts have discretion to decide whether or not the victim of a marital tort will receive a jury trial on her tort claim that is joined with a divorce action.

In New Jersey, a spouse who files for divorce must bring a tort action arising out of the marital relationship as part of the divorce complaint. Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979). In Brennan v. Orban, the state’s high court addressed the question whether the tort claimant in a divorce action is entitled to a jury trial. The court did not answer with a definitive “yes” or “no” for all cases, but instead declared that “when vindication of the public policy against domestic violence outweighs in its significance to the family the other matters awaiting disposition, the tort claim should, at the request of a victim, be tried by a civil jury.” 678 A.2d at 669. The dissent criticized the majority for leaving the question up to the family courts and not adopting a straightforward rule requiring jury trials for domestic violence victims who are seeking a divorce.

After reviewing the scope of the domestic violence problem and the legislative reaction to it by the United States Congress and the New Jersey Legislature, the court noted that in every family court action involving children, a paramount concern of the courts remains the best interests of the children, who may be affected by the outcome or by a delay in the resolution of the controversy. “Hence, we believe that a major factor deciding the question whether jury trials will be given for a marital tort action should be the divisibility of the tort claim from the other matters in controversy between the parties.” Id. at 677. When issues of child welfare, child support, and child parenting are intertwined with the dissolution of the marriage and the resolution of the marital tort, the family court may conclude that the marital tort should be resolved as part of the overall dispute between the parties. In such a case, the family court should retain jurisdiction over the marital tort and try that cause of action without a jury in the same proceedings.

On the other hand, the court held, when the family court is convinced that society’s interest in vindicating a marital tort through the jury process is the dominant part of the matter, it may order that the marital tort be tried by a jury. Where the jury trial takes place is a matter within the discretion of the family court judge, the court decided. It acknowledged, however, the difficulty of empaneling juries in family court to decide the marital tort. Consequently, the court ruled that when family court judges exercise their discretion to have marital torts tried separately, they may order that the marital tort action be severed and that the tort claims be transferred to a law court for trial in accordance with the regular procedures for civil cases.

The court raised but did not decide the question whether, in divorce cases where a tort claim is severed, the remaining marital issues should be deferred or resolved subject to reopening. A recent report recommended that the tort claims should be tried prior to the dissolution action, so as to enable the family court to consider the tort award when rendering its decision concerning equitable distribution, child support, spousal support, and the parties’ method of payment, the court noted. According to the report, resolving the divorce action first might lead to an increase in postdivorce applications for relief because parties against whom a tort judgment is entered would seek to reopen their economic divorce settlements based on a change of circumstances. Jury Trial Subcommittee on Family Practice, Report Concerning Jury Trial When a Marital Tort Is Joined in a Dissolution Action at 40 (1996).

On the other hand, the court noted, the report acknowledged that the delay in resolving the divorce proceeding might have a negative psychological impact on spouses by prolonging the uncertainty of their marital status. Moreover, another commentator observed that a jury hearing the tort action cannot assess a defendant’s assets properly to determine punitive damages without knowledge of the tortfeasor’s net worth, which is an open question until after equitable distribution. Wildstein, “The Application of the Entire Controversy Doctrine to Family Part Actions,” 16 N.J. Fam. Law. 69, 77 (1996).

In any event, the court said, most matters will benefit from single-case management by the family court judge. All issues, including the marital tort, should be submitted to the available processes of mediation and nonbinding arbitration. Failing resolution of all issues, the family court should decide whether, on balance, the interests in vindicating the marital tort outweigh the interests of a unitary disposition of the family dispute and thus warrant a jury trial.

Summarizing, the court stated that, consistent with the state Prevention of Domestic Violence Act, courts should strive to afford abused people the maximum protection from abuse that the law can provide. In some cases, the maximum protection will be in the form of a jury trial; in other cases, where other legal interests converge, the maximum protection of the law will be in the form of a nonjury trial. “We invest the Family Part with discretion to make an appropriate judgment concerning the type of trial to be afforded, with special emphasis placed on the severability of the tort claim from the other matters in controversy between the parties.” Brennan v. Orban, supra, 678 A.2d at 679. The court decided that in the case before it, which involved a short marriage and no children, a sufficient divisibility among the claims existed to warrant a jury trial on the tort claim.

Dissent. The dissent found unacceptable the broad discretion that the majority conferred on family court judges to decide whether or not the victim of a marital tort is entitled to a jury trial on the tort claim. Under the majority opinion, the dissent contended, family court judges may deny a jury trial in nearly every marital tort claim on the basis that the potential monetary award by a jury necessarily is intertwined with issues of alimony, child support, and equitable distribution. Courts should provide the fullest measure of vindication authorized by law to compensate victims of domestic violence, the dissent declared. Accordingly, all victims of marital torts who seek a jury trial should be entitled to one, whether or not the marital tort claim is joined with a claim for divorce. There should be only a narrow exception for cases where the marital tort action involves an obviously insignificant claim that has been asserted primarily for strategic reasons and is designed to influence the outcome of the divorce action, the dissent said.

Torts Arising Out of Interference with Custody and Visitation

In adoption abuse, Alienation of Affection, Best Interest of the Child, California Parental Rights Amendment, Child Support, children legal status, children's behaviour, Civil Rights, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, due process rights, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Intentional Infliction of Emotional Distress, judicial corruption, Liberty, motherlessness, mothers rights, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Kidnapping, Parental Rights Amendment, Parents rights, Rooker-Feldman Doctrine, state crimes, Torts on May 29, 2009 at 3:41 pm

© 1995 National Legal Research Group, Inc.

I. INTRODUCTION

In the United States, between 25,000 and 100,000 children are kidnapped each year. See generally Proposed Federal Parental Kidnapping Prevention Act: Hearings on S. 105 Before the Subcomm. on Child and Human Development of the Senate Comm. on Labor and Human Resources, 96th Cong., 1st Sess. 1 (1970) (statement of Senator Alan Cranston). As a result, “[s]tates have applied various legislative and judicial remedies to the parental kidnapping problem. These remedies include uniform laws concerning child custody jurisdiction, tougher criminal sanctions against parental kidnapping, and traditional civil remedies.” Campbell, “The Tort of Custodial Interference Toward a More Complete Remedy to Parental Kidnappings,” 1983 U. Ill. L. Rev. 229.

In addition, the federal government has added its legislative efforts to the cause of prevention of kidnapping by enacting the Parental Kidnapping Prevention Act, 28 U.S.C. 1738 (A).

Rather than focusing on the jurisdictional aspects of parental kidnapping, this article focuses on tort remedies that are available to parents when other parents or third parties interfere with custodial or visitation rights. The article begins with a discussion of the remedy that is nearly universally available, the tort of intentional infliction of emotional distress resulting from the denial of custody. Next, the article discusses the somewhat less popular but easier to prove tort of custodial interference. In the subsequent section, the article takes a detour by focusing on the rights of parents who have been awarded visitation, not custody. In some jurisdictions, parents have been awarded damages when the custodial parents or others deny the noncustodial parents their right to visitation, or otherwise cause the children to reject the noncustodial parents.

The next section discusses the tort of alienation of affections in the context of child custody and visitation. Although this tort continues to thrive in some states, many states have statutorily abolished it.

Finally, the article concludes with a general discussion of tort law in the area of child custody and visitation, and the author makes two recommendations for changes.

II. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The most well recognized tort arising out of custodial interference is intentional infliction of emotional distress. The Restatement (Second) of Torts 46(1) (1977) provides the nearly universally adopted definition of intentional infliction of emotional distress:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Thus, pursuant to this definition, a person would be liable for damages if he intentionally or recklessly commits extreme and outrageous acts that cause emotional distress. As noted by comment d to 46, this tort has severe limitations:

The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

As this comment indicates, in order for a plaintiff to recover for intentional infliction of emotional distress, the defendant’s actions must not merely be “tortious or criminal” or characterized by “malice.” Id. Rather, the defendant’s conduct must “go beyond all possible bounds of decency” and cause the typical member of the community to exclaim, “Outrageous!” Id.

Because a defendant may only be held liable for intentional infliction of emotional distress if his conduct is outrageous, it is extremely difficult for a plaintiff to recover under this theory. Nonetheless, in some circumstances, where the noncustodial parent or some other third party interferes with the right to custody of the custodial parent, a claim for intentional infliction of emotional distress will be recognized. For example, in Zaharias v. Gammill, 844 P.2d 137 (Okla. 1992), the wife, who was the mother of the children, removed the children from the husband’s home. Several days later, the husband filed an action for legal separation. The court awarded the husband custody of the children. Nonetheless, the husband alleged that the wife’s parents aided the wife in concealing the children from the husband, even after the wife’s parents had become aware of the husband’s court-ordered right to custody. For this reason, the husband filed a claim for intentional infliction of emotional distress. The trial court dismissed the claim, and the husband appealed. On appeal to the Supreme Court of Oklahoma, the court reversed the decision of the trial court, finding that if the husband could prove that the wife’s parents’ acts were “extreme” or “outrageous,” the husband could be awarded damages for intentional infliction of emotional distress. Id. at 141.

Likewise, the court determined that the noncustodial parent had committed acts which permitted a recovery for intentional infliction of emotional distress in Kajtazi v. Kajtazi, 488 F. Supp. 15 (E.D.N.Y. 1978). In Kajtazi, the husband and wife separated in 1977. Subsequently, the wife commenced an action for divorce. During the pendency of the action, the wife was awarded custody of the child. Soon after this award, however, the husband, the husband’s brother, and the husband’s father informed the wife that they would defy the order and take custody of the child. Subsequently, the husband visited the wife and abducted the child. At the time of the abduction, the child was in need of surgery. The wife filed a habeas corpus petition. The husband’s brother and father appeared at the habeas corpus proceeding, but the husband did not appear. The husband’s brother and father informed the court that they did not know the whereabouts of the husband. In fact, the husband’s brother and father did know that the husband had spirited the child away to Yugoslavia. In a later proceeding, the husband’s brother and father informed the court that the husband and the child would never return to the United States. Id.at 18. For this reason, the wife commenced an action for, among other claims, intentional infliction of emotional distress against the husband, the husband’s brother, and the husband’s father.

In determining whether the defendants’ acts were sufficiently outrageous to permit recovery, the court first noted that “intentional infliction of serious mental distress without physical impact can constitute an independent tort which is actionable per se.” Id. at 20 (emphasis added). Hence, in order for a plaintiff to recover, although the defendant’s actions must be outrageous, the plaintiff need only have suffered mental distress, and a physical impact upon the plaintiff is not necessary.

Further, the court held that the defendant’s actions in abducting the child and spiriting him away to a foreign country allowed recovery for intentional infliction of emotional distress:

It is difficult to conceive of intentional conduct more calculated to cause severe emotional distress than the outrageous conduct of the defendant [husband] in surreptitiously abducting the infant, from his mother who had legal custody, and falsely imprisoning him in Yugoslavia. This outrageous conduct constitutes the distinct tort of intentional infliction of mental suffering under New York decisional law.

Id. Hence, if the noncustodial parent abducts the child from the custodial parent and spirits the child away to a foreign country, the noncustodial parent could be held liable for intentional infliction of emotional distress. The noncustodial parent would be well advised to avoid such actions, as the court in Kajtazi held in 1978 that the abducting parent was liable in the amount of $50 for each day that the child was missing.

The court reached a similar conclusion in Bartanus v. Lis, 332 Pa. Super. 48, 480 A.2d 1178 (1984). In Bartanus, a child was born to the husband and wife in 1961. In 1963, the husband and wife divorced, and the wife moved to Germany. Apparently, the wife ceased having any relationship with the husband or the child. From 1964 until 1972, the husband, who was employed by the United States government, was assigned to various posts. During this time, the husband’s sister and brother-in-law raised the child. In 1972, the husband retired. From 1972 until 1977, the husband began to spend much time with the child, although the child continued to reside with his aunt and uncle. In 1977, the husband proposed to the aunt and uncle that the child begin to reside with the husband. This suggestion caused the aunt and uncle to fly into a rage. The aunt and uncle began to prevent the child from visiting with his father. Furthermore, they told the child that the husband did not love the child and that the husband’s house had rats and was dirty. In spite of the actions of the aunt and uncle, the child accompanied his father on a trip to Germany. The aunt and uncle wrote letters to the child that described the husband as “a whoremaster, liar and con artist who did not love his son.” 480 A.2d at 1183. Eventually, the aunt and uncle persuaded the child to stay away from his father. Because of these actions, the husband sued the aunt and uncle on the grounds of intentional infliction of emotional distress.

The court held that the husband had stated a claim for intentional infliction of emotional distress. In reaching this conclusion, the court focused on the fact that the aunt and uncle intentionally manipulated the child in order to specifically cause distress to the husband:

The complaint alleges intentional misrepresentations made to an adolescent by his aunt and uncle concerning the morals and behavior of his father. The actions outlined in the complaint may be of the extreme and outrageous nature contemplated by Comment d to RESTATEMENT 46. Accepting [the husband’s] version of the facts as true, as we must at this time, it appears that [the aunt and uncle] intentionally manipulated [the husband’s] son in a manner “peculiarly calculated” to cause [the husband] serious mental or emotional distress. Id. If [the aunt and uncle] did act intentionally, there need not be a showing that they were aware of the natural and probable consequences of their actions. Rather, it is enough that [the husband] was substantially certain to suffer severe mental or emotional distress as a result of their alleged tortious conduct.

Id. at 1185. Thus, if third parties manipulate the child in order to cause the parent distress, the parent has a claim for intentional infliction of emotional distress.

Although most courts that have considered the issue have determined that the custodial parent may state a claim for intentional infliction of emotional distress when the noncustodial parent or some other third party interferes with the custodial parent’s right to custody, some courts have refused to recognize this claim. The Fourth District Court of Appeals of Illinois refused to recognize the claim, even though the circumstances were severe, in the case of Whitehorse v. Critchfield, 144 Ill. App. 3d 192, 494 N.E.2d 743 (4th Dist. 1986). In Whitehorse, the father was a member of an Indian tribe in Utah. The daughter was 17 years old and attended school in Utah. The defendants were teachers in the daughter’s school. In 1982, the defendants purchased a one-way ticket for the child and placed the child on a plane that was bound for Illinois. The defendants knew that the father did not desire that the child leave his home. Upon the child’s arrival in Illinois, the defendants “counseled, compelled, and induced her not to return to plaintiff’s home or reveal her location to him.” 494 N.E.2d at 744. The defendants also caused the daughter to write fictitious letters to themselves, in order to mislead the father about the whereabouts of the child. Also, the defendants lied to the police, the F.B.I., and school officials about the child’s location. In addition, the defendants attempted to convert the child to their religion. Subsequently, the defendants attempted to adopt the child, but ultimately returned the child to the parents.

The father filed an action in Illinois against the defendants for intentional infliction of emotional distress. The trial court dismissed the claim for failure to state a cause of action. Even though the acts committed by the defendants were most outrageous, the decision by the trial court was upheld on appeal. The court believed that a recognition of this tort in the area of child custody would have “the potential for abuse.” Id. The court failed to consider whether the deterrence value of the recognition of the claim would outweigh the alleged “potential for abuse.” See also Curtis v. State Department for Children & Their Families, 522 A.2d 203 (R.I. 1987) (no claim for intentional infliction of emotional distress where the defendants, who were employed by the state, restricted access to the child from the parents for three days because the defendants suspected that the child was a victim of child abuse); Settle v. Settle, 858 F. Supp. 610 (S.D. W.Va. 1994) (mother was not liable for intentional infliction of emotional distress where she moved the children from Florida to West Virginia and then demanded that the husband post a $5,000 bond before she would allow him to visit with the children).

III. TORTIOUS INTERFERENCE WITH PARENTAL RIGHTS

A related tort that has been recognized by some courts is the tort of interference with the parent-child relationship. This tort is distinct from the tort of intentional infliction of emotional distress. Plante v. Engel, 124 N.H. 213, 469 A.2d 1299 (1983). Section 700 of the Restatement (Second) of Torts (1977) states:

One who, with the knowledge that the parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent legally entitled to its custody or not to return to the parent after it has been left him, is subject to liability to the parent.

As stated in the Restatement, if a defendant abducts or causes a minor child to leave the custody of a parent, the defendant is subject to liability to that parent. Unlike the tort of intentional infliction of emotional distress, however, there is no requirement that the plaintiff demonstrate outrageous conduct.

Several jurisdictions have adopted the tort of parental interference as written in the Restatement. See, e.g., Lloyd v. Loeffler, 694 F.2d 489 (7th Cir. 1982) (Wisconsin law); Bennett v. Bennett, 682 F.2d 1039 (2d Cir. 1982) (District of Columbia law); Ruffalo v. United States, 590 F. Supp. 706 (W.D. Mo. 1984); Plante v. Engel, 124 N.H. 213, 469 A.2d 1299 (1983); Kramer v. Leineweber, 642 S.W.2d 364 (Mo. Ct. App. 1982); LaGrenade v. Gordon, 46 N.C. App. 329, 264 S.E.2d 757 (1980); Spencer v. Terebelo, 373 So. 2d 200 (La. Ct. App.), writ refused, 376 So. 2d 960 (La. 1979); McBride v. Magnuson, 282 Or. 433, 578 P.2d 1259 (1978); Lisker v. City of New York, 72 Misc. 2d 85, 338 N.Y.S.2d 359 (Sup. Ct., Queens County 1972); Rosefield v. Rosefield, 221 Cal. 2d 431, 34 Cal. Rptr. 479 (1963).

For example, in Lloyd v. Loeffler, 694 F.2d 489 (7th Cir. 1982), the court held in an opinion by Judge Posner that the father stated a claim for custodial interference. In Lloyd, the child was born in 1978 in Washington, D.C. The parents were not married. In 1979, a court in Maryland awarded custody of the child to the father. The mother was awarded visitation rights. The mother subsequently married a man named Earl McMahan.

In July 1979, the mother and Earl went to the child’s babysitter’s house in order to pick up the child for a visitation and take the child to the mother’s parents’ house in Wisconsin. The mother was required to return the child on August 5, 1979. Nonetheless, the child was never returned. The father hired private detectives in attempts to locate the child, but the detectives failed. In 1980, the father filed an action against the mother, Earl, and the mother’s parents in federal district court in Wisconsin, alleging that the defendants had interfered with his right to custody. The trial court awarded judgment for the father, and the grandparents appealed. The wife and Earl did not appeal, as they had disappeared with the child.

On appeal, the Seventh Circuit Court of Appeals held that, pursuant to the law of Wisconsin, the trial court rightfully awarded judgment to the father for his claim of interference with his custodial rights. The grandparents attempted to argue that because there was no physical injury to the father, he could not bring a claim for interference with his custodial rights. Judge Posner did not agree:

The only question therefore is whether it would draw the line at physical injury and refuse to recognize any tort liability for abduction even though the effect on the parent’s interest in the companionship of the child is the same. This would be an arbitrary distinction, and we doubt very much that Wisconsin would make it. We know of no state that, having swallowed the camel of allowing parents to sue for intangible loss of companionship as well as pecuniary loss, has strained at the gnat of allowing that loss to be recovered when it is caused by abduction rather than physical injury. Moreover, since abductions are always deliberate and physical injuries usually, as in [Shockley v. Prier, 66 Wis. 2d 394, 225 N.W.2d 495 (1975)], merely negligent, it would be anomalous to allow liability only in the latter case.

Lloyd v. Loeffler, supra, 694 F.2d at 496. Hence, regardless of whether physical injury results, if the noncustodial parent or some third party abducts a child from the rightful custody of a parent, the defendant is liable for damages to the custodial parent.

Of course, since the tort of custodial interference is actionable even without proof of physical injury, it may be difficult to quantify damages. The court addressed this particular but important issue in Plante v. Engel, 124 N.H. 213, 469 A.2d 1299 (1983). In Plante, the plaintiff was the father of the children. The father was awarded custody of the children pursuant to a divorce decree. Contrary to the terms of the decree, the mother moved to Texas with the children, without the consent of the father. The father alleged that the mother’s parents interfered with his custodial rights by defying the order of custody and assisting the mother’s attempt to spirit the children away to Texas. For this reason, the father sought damages against the wife’s parents. Nonetheless, the trial court dismissed the father’s claim for failure to state a cognizable cause of action, and the father appealed.

On appeal to the Supreme Court of New Hampshire, the court reversed the trial court’s decision to dismiss the father’s claim. The court first noted that in New Hampshire, parental rights were considered fundamental:

The high place accorded filiation stems not from the material bond whereby services are provided to each other by parent and child but from a recognition that there is a sanctity in the union of parent and child that transcends economies and deserves the utmost respect. Because this relationship is so intimately connected with the parent’s person, we hold that where there is an intentional interference with a person’s custody of his or her child, an injured parent is entitled to a remedy that completely compensates him or her.

469 A.2d at 1301-02. Thus, because of the “sanctity in the union of parent and child,” where a person interferes with the parent-child relationship, that person should be held liable in damages.

The court next addressed the issue of damages. The court held that there were two elements of damages that could be awarded to the plaintiff, including (1) “expenses incurred in recovering the child, including legal fees,” and (2) “compensation for the loss of the child’s services and/or his care, comfort and companionship.” Id. at 1302. Thus, a parent may recover all out-of-pocket costs associated with reobtaining custody, as well as any damages for the loss of the parent-child relationship.

Although most courts that have considered the issue have recognized the tort of custodial interference, some courts have refused to recognize this tort. See, e.g., Whitehorse v. Critchfield, 144 Ill. App. 3d 192, 494 N.E.2d 743 (1986) (no civil cause of action for tortious interference with custodial parent’s right to custody in Illinois); Zaharias v. Gammill, 844 P.2d 137 (Okla. 1992) (no tort of intentional interference with custodial rights in Oklahoma).

IV. INTERFERENCE WITH VISITATION

Following a divorce, it is often the case that the noncustodial parent’s only connection with his or her child is the right to visitation. Thus, a denial of visitation for any substantial period of time could work to remove the noncustodial parent from even the memory of the young child. For this and other reasons, some courts have recognized the tort of interference with visitation rights, or intentional infliction of emotional distress, when the custodial parent or others interfere with the noncustodial parent’s right to visitation.

One court held that the defendants could be held liable for the tort of interference with visitation and intentional infliction of emotional distress in Brown v. Denny, 72 Ohio App. 3d 417, 594 N.E.2d 1008 (1991). In Brown, the husband and wife divorced in 1985. Pursuant to the divorce decree, the wife was awarded custody of the children, and the husband was awarded supervised visitation. In 1987, the court ordered the wife to allow the children to visit with the husband from August 10, 1987 until August 14, 1987. Instead of allowing the children to attend their visitation, the wife’s parents took the wife and the children to the wife’s parents’ home in Tennessee. The husband filed a claim against the maternal grandparents, alleging that the maternal grandparents had interfered with the husband’s visitation rights and committed intentional infliction of emotional distress. The trial court granted the maternal grandparents a directed verdict, and the husband appealed.

The Ohio Court of Appeals first held that, pursuant to a statute in Ohio, the defendants could be held liable for interference with visitation. 594 N.E.2d at 1011-12. Next, the court held that the maternal grandparents could be held liable for the common-law tort of intentional infliction of emotional distress for their interference with the husband’s custody rights. Interestingly, the only fact cited by the court for its decision that the maternal grandparents could be held liable by a jury for intentional infliction of emotional distress was that the grandparents “decided to support their daughter in her decision to violate a visitation order issued by a domestic relations court, and thereby to frustrate [the husband’s] desire to enjoy his visitation rights.” Id. at 1012. Thus, even without other facts that indicate “outrageousness,” if a person simply promotes the violation of a visitation order, he may be held liable for intentional infliction of emotional distress in Ohio. See also Ruffalo v. United States, 590 F. Supp. 70 (W.D. Mo. 1984) (federal government was liable for interfering with the mother’s visitation rights by discouraging the father, who was in the federal Witness Protection Program, from allowing the mother to visit with the child). But see R.J. v. S.L.J., 810 S.W.2d 608 (Mo. Ct. App. 1991) (father could maintain no action for intentional infliction of emotional distress against the wife).

In contrast to the decision in Ohio, most other courts that have determined that the defendant could be held liable for violating the noncustodial parent’s right to visitation have determined that the defendant could only be subject to liability if he has concealed the child for a long period of time or has committed some other egregious act. For example, the maternal grandparents were held liable for intentional infliction of emotional distress after they assisted their daughter’s attempt to completely disappear with the child in Pankratz v. Willis, 155 Ariz. 8, 744 P.2d 1182 (1987). In Pankratz, the wife married the husband in 1979. Shortly thereafter, the marriage produced a daughter. In 1981 and 1982, the husband and wife engaged in a protracted custody battle. In December 1982, the wife was awarded custody of the minor child, and the husband was awarded visitation. However, the tensions between the former spouses continued. In 1983, while the wife and the child were at a motel near Disneyland, the wife called her parents and informed them that she would not return home. Subsequently, the wife and the child disappeared, and had not been located at the time the husband filed a civil action against the maternal grandparents. In his complaint, the husband alleged that the wife was financially and emotionally dependent on her parents, and that the parents had enabled the wife and child to completely disappear, causing him extreme emotional distress. The husband noted that the wife had never supported herself, the grandparents paid the wife’s attorney’s fees for the divorce proceeding, the wife resided with the grandparents during the separation, the wife deposited all of her funds into her parents’ checking account, and the wife had called her parents from Geneva, Switzerland around the time that she disappeared. In fact, the wife had called her parents seven times since the day she disappeared with the child. In addition, the husband presented evidence that he had suffered emotional distress following the disappearance. 744 P.2d at 1186. Based upon this evidence, the trial court let stand a jury award of $125,000 against the maternal grandparents, and the grandparents appealed.

On appeal to the Court of Appeals of Arizona, the grandparents alleged that they had not intentionally or recklessly committed outrageous acts, and that the husband had not suffered distress. However, the court of appeals held that the jury could have reasonably found the defendants liable. The wife was completely dependent upon her parents for financial resources, and, thus, the jury could have concluded that the grandparents financially assisted in the disappearance. Also, the evidence indicated that the grandfather was hostile to the husband and encouraged the wife to disappear. The court concluded that these facts indicated that the grandparents had intentionally committed outrageous acts. Id.at 1189. Because the evidence also indicated that the husband had suffered emotional distress as a result of the grandparents’ conduct, the decision by the trial court to award damages to the husband was affirmed. Thus, if a defendant assists in the complete disappearance of the child, he may be held liable to a parent who has visitation rights for intentional infliction of emotional distress.

In addition, a custodial parent could be held liable for the creation of a negative relationship between the noncustodial parent and the child. The court reached this conclusion in Bhama v. Bhama, 169 Mich. App. 73, 425 N.W.2d 733 (1988). In Bhama, the parties were divorced in 1977. The wife was awarded custody of the parties’ children. In 1982, this decree was modified, and the court awarded custody to the husband. In 1986, the wife filed a claim for intentional infliction of emotional distress, alleging that the husband had used his psychiatric training in order to “`systematically manipulate, instigate, involuntarily convert, intimidate, indoctrinate and brainwash the minor children into totally rejecting’ her to `the point of extreme antagonism and instilled hatred.'” 425 N.W.2d at 734. The trial court ruled for the husband, concluding that “the creation of negative relationships does not amount to outrageous conduct.” Id. The wife appealed.

On appeal, the decision by the trial court to summarily dismiss the wife’s claim for intentional infliction of emotional distress was overruled. In entering this decision, the Court of Appeals of Michigan concluded that the “abuse of a relationship” could be considered outrageous conduct which would justify an award to the wife. Id. at 736. Thus, if the custodial parent manipulates a child in order to create a negative relationship between the noncustodial parent and the child, the custodial parent could be held liable for intentional infliction of emotional distress. See also Raferty v. Scott, 756 F.2d 335 (4th Cir. 1985) (wife was liable for intentional infliction of emotional distress where she successfully destroyed the relationship between the husband and the child); Hershey v. Hershey, 467 N.W.2d 484 (S.D. 1991) (custodial parent could be held liable where she prevented the father from visiting with the child for many years).

Although some courts have held that defendants could be held liable for interfering with visitation or creating a negative relationship between the noncustodial parent and the child, other courts have simply refused to recognize claims by parents who only have rights to visitation. One recent case where the court refused to recognize any claim by the noncustodial parent was Cosner v. Ridinger, 882 P.2d 1243 (Wyo. 1994). In Cosner, the wife gave birth to a child in 1980. The husband and wife divorced in 1982. Pursuant to the divorce decree, the wife was awarded custody of the child, and the husband was granted visitation rights. In March 1993, the husband filed a claim against the wife and other third parties, alleging that they had intentionally interfered with his parental rights. Furthermore, the husband alleged intentional infliction of emotional distress because the defendants had concealed his daughter and prevented his visitation. The trial court dismissed the husband’s complaint for failure to state a cause of action, and the husband appealed. Id. at 1246.

The decision by the trial court to dismiss the husband’s claims was affirmed by the Supreme Court of Wyoming. First, the court specifically limited the application of the tort of interference with parental rights to cases where the plaintiff has the right to custody, not merely the right to visitation. In reaching this conclusion, the court stated that it believed that it was in the best interests of children to promote harmony and discourage “intrafamily warfare.” Id. at 1247. Furthermore, “[c]reating this tort would create a new wrong. It would place innocent children in the middle of a vigorous, probably vicious, lawsuit between their parents.” Id. (emphasis in original).

Second, the court affirmed the dismissal of the husband’s claim for intentional infliction of emotional distress. The court noted that the allegations of conduct were identical to the conduct alleged with respect to the claim for interference with visitation. Because the court believed that no facts presented supported an allegation of outrageousness by the defendants, the husband could not recover under a theory of intentional infliction of emotional distress.

Another court also clearly held that the noncustodial parent could not recover damages from the custodial parent for the custodial parent’s violation of a visitation order in Owens v. Owens, 471 So. 2d 920 (La. Ct. App. 1985). In Owens, the marriage of the parties produced one child in 1981. In 1982, the parties were judicially separated. The judgment of separation awarded custody of the parties’ child to the wife, subject to the visitation rights of the husband. After the date of the judgment of separation, the wife “consistently” prevented the husband from exercising his visitation rights. Id. at 921. Accordingly, the husband filed a claim against the wife for damages, alleging that the wife should be held liable since she repeatedly violated the husband’s right to visitation. The trial court dismissed the husband’s complaint, concluding that the husband failed to state a claim upon which the court could grant relief. The husband appealed.

The Court of Appeal of Louisiana, Second Circuit, agreed with the trial court that the husband’s claim should be dismissed. In reaching this conclusion, the court reasoned that other remedies were available to the husband; therefore, the husband did not need damages:

The plaintiff has several remedies available to him here. He may institute proceedings to enforce his visitation rights and he may obtain attorney’s fees for the pursuit of such actions. . . . He may institute contempt proceedings or he may institute proceedings to obtain custody of the child for himself. There is evidence in the record that he has pursued these other remedies simultaneously with this suit for damages for which he has no cause of action.

Id. at 922. Thus, according to the analysis by the court in Owens, because the husband could file an action for contempt or an action to seek custody, he should not be able to file a private action for damages against the wife for her denial of visitation. See also McGrady v. Rosenbaum, 62 Misc. 2d 182, 308 N.Y.S.2d 181 (Sup. Ct., New York County 1970) (remedy against spouse who violates order respecting visitation rights is by way of contempt, not by an action for damages); Gleiss v. Newman, 141 Wis. 2d 379, 415 N.W.2d 845 (Ct. App. 1987) (noncustodial parent does not have a cause of action in tort to recover damages against custodial parent for interfering with noncustodial parent’s visitation rights).

While courts have argued that damages for contempt will tend to deter violations of visitation decrees, in reality it appears that no damages actually deter abductions. Also, damages for contempt may not compensate the noncustodial parent if the parent suffers extreme mental anguish from the loss of the relationship with his child. Furthermore, the noncustodial parent may have to undergo psychiatric treatment, and he should not bear the burden of these costs when the damage was proximately caused by the denial of visitation by the custodial parent. Also, suppose, for example, that the noncustodial parent suffers physical ailments as a result of the custodial parents’ intentional tort. Contempt damages will not compensate him for these injuries.

In addition, fairness dictates a different result than that reached by the court in Owens. A custodial parent in Louisiana may recover damages against the noncustodial parent if the noncustodial parent interferes with the custodial parent’s custody rights. Spencer v. Terebelo, 373 So. 2d 200 (La. Ct. App.), writ refused, 376 So. 2d 960 (La. 1979). The court in Spencer reached this conclusion even though the remedy of contempt was available to the custodial parent. Therefore, where either the noncustodial parent or the custodial parent suffers damages as a result of the interference with the parent-child relationship, either parent should be able to recover damages.

V. ALIENATION OF AFFECTIONS

Unlike the torts of intentional infliction of emotional distress and interference with custody or visitation, courts are most reluctant to award damages on a theory of alienation of affections when a party interferes with the other party’s right to custody or visitation.

Essentially, there are three elements to the claim of alienation of affections. First, the plaintiff must prove wrongful conduct by the defendant. Second, the plaintiff must prove a loss of consortium. Third, the plaintiff must prove that the defendant’s actions caused the loss of consortium. Hunt v. Hunt, 309 N.W.2d 818 (S.D. 1981).

The courts’ reluctance to consider claims of alienation of affections is partly due to the fact that some states have, by statute, eliminated the tort of alienation of affections. See Hyman v. Moldovan, 166 Ga. App. 891, 305 S.E.2d 648 (1983); Raferty v. Scott, 756 F.2d 335 (4th Cir. 1985) (Virginia law).

Other courts have concluded that, regardless of the statutory authority, a parent should not be able to recover damages for alienation of a child’s affections. See, e.g., R.J. v. S.L.J., 810 S.W.2d 608 (Mo. Ct. App. 1991); Hester v. Barnett, 723 S.W.2d 544 (Mo. Ct. App. 1987); Bock v. Lindquist, 278 N.W.2d 326 (Minn. 1979); Bartanus v. Lis, 332 Pa. Super. 48, 480 A.2d 1178 (1984).

Nonetheless, in some unusual circumstances, in jurisdictions that have not completely eliminated this tort, a parent may be able to recover damages under the theory of alienation of a child’s affections. For example, in Hershey v. Hershey, 467 N.W.2d 484 (S.D. 1991), the parties were divorced in 1968. Pursuant to the divorce decree, the wife was awarded custody of the parties’ son. From 1968 to 1971, however, the parties continued to litigate the issues of custody and visitation. In 1971, during a battle over custody and visitation, the wife took the son and left the parties’ home state. The husband did not see the child at any time after this incident. The wife and son had moved to Oregon and the son was registered in a school under an assumed name. From 1971 until 1985, the wife prevented the husband from having any contact with the child. In 1988, the wife filed a claim to collect child support arrearages. The husband counterclaimed, alleging tortious interference with the father-son relationship. The trial court dismissed the husband’s counterclaim on the basis that the husband had failed to state a cognizable claim under the law of South Dakota. Id. at 486. The husband appealed.

On appeal to the Supreme Court of South Dakota, the husband argued that he had stated a claim under the doctrine of alienation of affections. The court agreed that the husband had stated such a claim. In reaching this conclusion, the court did acknowledge, however, that many states had abolished the claim of alienation of affections. Id. at 488. Nonetheless, South Dakota had not abolished this claim, and the facts indicated that the husband had a viable claim against the wife for alienation of his child’s affections:

In the present case, Mother kept Son’s whereabouts secret from Father for some fourteen years. Son is now an adult. That fact eliminates the three policy considerations usually advanced for refusing to recognize the cause of action: best interests of the child; availability of other remedies; and opening the floodgates to ongoing custody and visitation battles. Therefore, we hold that Father states a cause of action in tort against Mother for alienation of Son’s affections.

Id. at 489. Thus, as the court stated, where a custodial parent prevents the noncustodial parent from having a relationship with his child for many years, if the jurisdiction has not eliminated the cause of action for alienation of affections, the noncustodial parent may recover under a theory of alienation of affections. See also Strode v. Gleason, 9 Wash. App. 13, 510 P.2d 250 (1973) (parent has cause of action against a third party who maliciously alienates the affections of a minor child).

VI. CONCLUSION

As the above authority indicates, most jurisdictions have made efforts to deter interference with custody by providing tort remedies to injured parents. Nonetheless, parental kidnapping is a tremendous problem in this country, as one author noted:

Parental kidnapping has become a major problem in the United States in the last decade. The battle between divorced or separated parents for custody of their children often escalates into guerilla warfare. Frequently, the parent who lost custody of the children in a divorce proceeding steals the children from the custodial parent and establishes a new identity in a distant part of the country. This struggle between parents for their children can cause severe emotional problems in the children. Various reports estimate that up to 100,000 parental kidnappings occur each year. Moreover, the rising divorce rate suggests that parental kidnapping will continue to increase in coming years. The harm to both parents and children caused by parental kidnapping requires that courts and legislatures deal with this problem, yet the complexity and personal nature of the parental kidnapping make formulating a solution difficult.

Campbell, “The Tort of Custodial Interference Toward a More Complete Remedy to Parental Kidnappings,” 1983 U. Ill. L. Rev. 229. As this passage notes, because of the rise in divorce rates, and the “guerilla warfare” of modern divorces, parents frequently spirit children away from their “opponent” in divorce matters. By providing a variety of civil and criminal remedies, states have attempted, with little success, to deter these kidnappings.

As long as the divorce rate remains high and divorce proceedings are conducted in accordance with the traditional American advocacy system, Americans will continue to battle over children and prevent parents from exercising their parental rights. Civil remedies have, in fact, had little deterrent value. Nonetheless, civil damages do help compensate injured parents. As one author has noted, because victims need to be compensated and because justice requires that tort feasors be held accountable, courts should recognize torts that arise out of custodial relationships:

Courts should adjudicate these claims because of the lack of other adequate remedies. The Restatement of Torts’ remedy allows a custodial parent to receive damages but offers no compensation to the noncustodial parent. Also, the possibility exists that the harm could come to a custodial parent without that parent actually losing custody. Thus, courts should not dismiss the action on the premise that it is derivative of other torts. Intentional infliction of emotional distress is merely the application of an existing tort to a new area. A court should award damages to a parent for intentional infliction of emotional distress in the child custody context. This application is necessary to compensate legitimate injuries and to hold tortfeasors accountable for their acts.

Bargamian, “Intentional Infliction of Emotional Distress in the Child Custody Contest: Proposed Guidelines,” 36 Wayne L. Rev. 124, 142 (1989). Thus, because all other remedies are inadequate, victims of intentional infliction of emotional distress in the child custody or visitation context should be able to recover damages against the tort feasor. For this reason, tort remedies should be expanded in two ways.

First, jurisdictions that have not already done so should adopt the tort of parental interference. Because it requires proof of “outrageous” conduct, the tort of intentional infliction of emotional distress is generally an inadequate remedy. Apparently, with a few exceptions, because of the popularity of denials of custody and visitation, it is difficult to prove that such denials are outrageous in modern society.

Second, states should provide remedies for parents who have been denied visitation. The only explanation that courts have provided for refusing to grant remedies for interference with visitation is that this tort would “encourage claims for petty infractions.” Gleiss v. Newman, 141 Wis. 2d 379, 415 N.W.2d 845, 846 (Ct. App. 1987). The courts present no evidence that this evil has occurred in any state that has adopted remedies for parents who only have visitation rights. In fact, in the states that have adopted torts resulting from denials of visitation, it is rare to find more than one appellate case where this tort was an issue.

In addition, jurisdictions that have provided damage remedies only to custodial parents have raised serious equal protection questions. Why should the parent who won the custody battle have a right to recover damages, but not the other parent? Since women are usually the custodial parents, does the failure to provide equal remedies to noncustodial parents unfairly discriminate against men? While these questions are beyond the scope of this article, it is difficult to imagine how a jurisdiction could award damages only to custodial parents yet provide satisfactory answers to these two questions. The better approach is to allow a cause of action in tort for deprivation of either custody or visitation.

Parental Rights – Analysis by Article of the UNCRC – Part 5 of 9

In Autism, Best Interest of the Child, California Parental Rights Amendment, Child Support, child trafficking, children criminals, children legal status, children's behaviour, Childrens Rights, Civil Rights, CPS, cps fraud, deadbeat dads, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, DSM-IV, due process rights, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Freedom, Homeschool, judicial corruption, kidnapped children, Liberty, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Rights Amendment, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes on May 29, 2009 at 5:00 am

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that continuing analysis:

Article 13, part 2: No, Thank You, Mom and Dad

In an age where information is becoming easier to access every day, children face new and uncharted risks. Our American heritage has long honored the right of parents to direct their child’s access to information, recognizing that in the vast majority of circumstances, parents are best situated to monitor their child’s activities and to provide necessary guidance during the transition from childhood to adulthood. Unfortunately, this vital role is being undermined by the rising tide of international thought, far removed from our own tradition and championed by international agreements like the UN Convention on the Rights of the Child (UNCRC).

Last week, we began our discussion of Article 13 of the UNCRC by looking at its impact on what children are taught. This week, we return to Article 13 to examine the right of the child “to seek information,” and the impact this guarantee has on the relationship between children, their parents, and the state.

Article 13 is divided into two sections. The first states that “The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.” The remainder of the article clarifies that this right be restricted, but these restrictions must be provided by law and necessary to “respect the rights or reputations of others” or for “the protection of national security or of public order, or of public health or morals.”

This article focuses on the implications of a child’s “right to information.” Although our Constitution does not expressly grant such a right, there is a growing trend – both within our boarders and abroad – to grant children such rights.

Setting Children Free

Article 13 begins by guaranteeing to all children the right to seek, receive and impart all kinds of information and ideas. Although some proponents of the Convention allege that article 13 is particularly important for children who are seeking to discover more of their identities after spending years of their lives in the care of the state, there is nothing in the text which limits this provision to such a narrow meaning.

According to advocates of the CRC, such as Marian Koren, international author for the UN at the Hague, a more acceptable interpretation of article 13 would require the government to establish and support a whole host of government programs aimed at educating children, such as “advice and information services for children, free access to libraries and loans, workshops for children on topics of their interest,” and so on. According to law professor Bruce Hafen, such a “right” is a broad departure from current US law, and not only poses difficulties for parents, but also for schools, teachers, and educational administrators who have to make difficult decisions about what they teach the children entrusted to their care.

No Thank You, Mom and Dad

While article 13 allows the right of information to be restrained in order to “respect the rights or reputations of others,” this respect does not extend to the decisions of parents. As Koren writes, whenever the state feels that parents are “failing” to protect their child’s rights, “it is the duty of the state to control parents to take their responsibilities and to fulfill their tasks towards their children.” (emphasis added)

American law has long recognized the importance of parents in guiding their children to make good decisions. In 1979, for example, the U.S. Supreme Court ruled in Parham v. J.R. that “most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments.”

The UNCRC shifts this recognized balance in favor of increased autonomy for the child. According to Barbara Nauck, writing in the Cleveland State Law Review, “the more assertive language of Article 13 presumably means that Article 13 would prevail where there is a conflict between the child’s desire to freely express herself and the parent’s interest in curbing that expression.” Given the arguments advanced by many of today’s child advocates, “the interpretation of the Convention that will be argued in the courts is that the parent may act as counselor, suggesting the pros and cons and possible consequences, but the final choice would be in the hands of the child.” (emphasis added)

Our Children in Harm’s Way

It does not take a parent long to imagine the Pandora’s box that would be unleashed if the final choice is placed in the hands of the child. With television and the internet opening up an almost infinite number of avenues for children to seek information, it is more important than ever for parents to have the freedom to guide their children through the journey to adulthood. Article 13, and the autonomous ideology that it perpetuates, undermines these vital efforts.

Please forward this message onto your friends and urge them to sign the Petition to Protect Parental Rights.

Article written by Peter Kamakawiwoole, April 25, 2008.

Sources

UN Convention on the Rights of the Child

Marian Koren, “The Right to Information: Too Vague to Be True?” in Monitoring Children’s Rights, Eugeen Verhellen, ed. (The Hague, 1996): 675.

Bruce & Jonathan Hafen, “Abandoning Children to Their Autonomy: The United Nations Convention on the Rights of the Child,” Harvard International Law Review (1996): 468

Parham v. J.R., 442 U.S. 584 (1979): 603.

Barbara J. Nauck, “Implications of the United States Ratification of the United Nations Convention on the Rights of the Child: Civil Rights, the Constitution and the Family,” Cleveland State Law Review (1994): 693.

Richard G. Wilkins, “Why the United States Should not Ratify the Convention on the Rights of the Child,” Saint Louis University Law Review (2003): 420-421.

Parental Rights – Analysis by Article of the UNCRC – Part 4 of 9

In adoption abuse, Autism, Best Interest of the Child, California Parental Rights Amendment, Child Support, child trafficking, children criminals, children legal status, children's behaviour, Childrens Rights, Civil Rights, CPS, cps fraud, deadbeat dads, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, DSM-IV, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Foster CAre Abuse, Freedom, Homeschool, judicial corruption, kidnapped children, Liberty, motherlessness, mothers rights, National Parents Day, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Rights Amendment, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes, Title Iv-D on May 28, 2009 at 4:00 am

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that continuing analysis:

Article 13, part 1: Homeschooling Illegal?

This week, we continue our series on the UN Convention on the Rights of the Child by considering Article 13, which states that “the child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.”

The crux of this article is the child’s “right to information.” Children access information through what they are taught and what they discover on their own. This week, we will consider the Convention’s implications on what children are taught.

Homeschooling

Article 13 is far more sweeping than any right articulated by our Constitution or Supreme Court, guaranteeing all children the right to seek information of all kinds. International author and commentator Marian Koren explains that although the state should generally refrain from interfering in the family, “the State also has a positive obligation in supporting the possibilities for children to seek information or to express their views.” Ultimately, “it is the duty of the State to respect the rights of the child and his freedom to thought, conscience, belief, expression and opinion.” (emphasis in original)

Although the United States has not yet ratified the CRC, there is a growing sentiment that the state should bear the responsibility for ensuring that children are “properly educated,” instead of parents. A striking example occurred this past February, when a California court declared in In Re Rachel L. that “parents do not have a constitutional right to home school their children,” unless they are certified by the state to teach. In so ruling, the court declined to follow the Supreme Court’s 1972 decision in Wisconsin v. Yoder and its 2000 ruling in Troxel v. Granville, which guarantee parents the fundamental right to direct the upbringing and education of their children.

Whose Responsibility?

Rachel L., like Article 13, presumes that it is ultimately the state’s duty to ensure that the child’s right to information is respected. The California court quoted repeatedly from an earlier California decision in 1952, which concluded that children must be educated in traditional public or private schools, subject to state standards and regulations: anything less would “take from the state all-efficient authority to regulate the education of the prospective voting population.” (emphasis added)

The language of “all-efficient authority” is not the language of liberty. According to Dr. Martin Guggenheim, Professor of Law at New York University, “our future as a democracy depends on nurturing diversity of minds. The legal system’s insistence on private ordering of familial life ultimately guards against state control of its citizens.” There may be questions over the “best way” to educate children, but according to Guggenheim, the American answer is that “unless the answers are so clear that there is no room to disagree, parents are free to decide for themselves what they believe will best serve their children.”

Thankfully, the public outcry to this decision led California courts to decide to rehear the Rachel L. decision this summer, allowing parents – at least for the moment – to continue teaching their children at home. But only time will tell whether the California courts will have a change of heart, or whether the damaging decision will simply be repeated. The strong words of the first Rachel L. decision suggest that this is a real possibility.

America’s legal heritage has consistently held that parents, not the state, have the right to decide whether their children would best benefit from public schooling, a private school, or even learning at home, but this recent decision from California highlights just how tenuous this freedom can be. If we wish to secure these freedoms, we must act now to place parental rights beyond the reach of judges</U? by protecting them within the Constitution.

Article written for ParentalRights.org by Peter Kamakawiwoole, April 21, 2008.

Sources

Marian Koren, “The Right to Information: Too Vague to Be True?” in Monitoring Children’s Rights, Eugeen Verhellen, ed. (The Hague: Martinus Nijhoff Publishers, 1996): 675.

In Re Rachel L., 73 Cal.Rptr.3d 77 (Ca.App. 2008)(VACATED)

Martin Guggenheim, What’s Wrong with Children’s Rights (2005): 24-27, 43.

Parental Rights – Analysis by Article of the UNCRC – Part 3 of 9

In Best Interest of the Child, California Parental Rights Amendment, Child Support, child trafficking, children criminals, children legal status, children's behaviour, Childrens Rights, Civil Rights, CPS, cps fraud, deadbeat dads, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, DSM-IV, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, Foster CAre Abuse, Freedom, judicial corruption, kidnapped children, Liberty, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Rights Amendment, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes, Title Iv-D on May 27, 2009 at 12:00 pm

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that continuing analysis:

Article 12: Suing Mom and Dad?

Last week, we looked at how Article 9 of the UN Convention on the Rights of the Child gives the government authority to intervene in the decisions of parents simply by appealing to the child’s “best interests.” This week, we continue our in-depth analysis of the CRC by examining Article 12, which says: “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”

Which Children?

At the outset, three key observations are readily apparent. First, this right protects a child who is “capable of forming his or her own view,” which must be given “due weight,” in accordance with his or her age and maturity. Second, our government (“States Parties”) would be responsible for ensuring that this right is respected, both in public places and in private realms, such as the home. Finally, this responsibility extends to “all matters affecting the child.” These three tenets place incredible discretion in the hands of the government to challenge – and even reverse – the decisions of parents.

Although the Convention claims to protect children who are “capable of forming their own views,” this phrase is incredibly ambiguous. Indeed, the United Nations Committee on the Rights of the Child recognized this ambiguity in 2006, when it asked for input from all UN member-states on the meaning of Article 12. A report by India’s Committee for Legal Aid to Poor suggested that the right to be heard extends to “the decision of the families and should not be restricted to Judicial and administrative proceedings only.” That same year, the Canadian Child Care Federation asserted that “Children need to be ‘heard’ during all stages of development, beginning in infanthood.” (emphasis in original)

“Suing” Your Parents?

In addition, Article 12 applies not only to legal and judicial proceedings involving a child, but also to decisions made within the privacy of a family. According to Dr. Geraldine van Bueren, Professor of International Law at the University of London and a lead-drafter of the CRC, “the duty on the State Party is to assure the right to freedom of expression in ‘all matters affecting the child’ and as a result places duties on the state in relation to matters traditionally relegated to the private sphere.” By referencing “all matters affecting the child,” van Bueren writes, “there is no longer a traditional area of exclusive parental or family decision-making.”

Although the CRC has not been ratified by the United States, our own courts have nevertheless begun to allow children to actively assert their “right to be heard.” The Florida State Supreme Court ruled in 2000 that a fifteen-year-old boy in foster care was entitled to a judicial hearing and a lawyer to contest his placement in a mental health institution. It makes sense to grant such a right to a fifteen-year-old who does not have parents and is in the custody of the state, but in 2003, the Florida court extended its ruling to say that children in foster care were entitled to legal hearings and appointment of a lawyer, in order to give the child a “meaningful opportunity to be heard.” Although the court did not say “all children,” it seems reasonable to infer that this legal standard could be applied to children well under fifteen years old.

The result of this and similar rulings has been children – some far younger than fifteen – who are successfully suing their own parents under the direction of a relative or government worker. As recently as June 2007, a nine-year-old boy in Minnesota sued both his parents through a government-appointed guardian ad litem and won $100,000 from their insurance company for injuries due to the “faulty installation” of his car seat. Children and even infants in states like Kansas, Florida, and New Hampshire have also successfully sued their parents for being involved in automobile accidents, being hit by a car in a parking lot, and even for prenatal injuries suffered when the mother was hit by an oncoming vehicle because she did not use a crosswalk.

Children in Harm’s Way

These cases illustrate the danger that “right to be heard” poses to children, especially to infants and young children, who are often completely unaware of what they are doing when they “sue” a parent. According to Dr. Martin Guggenheim, Professor of Law at New York University and President of the National Coalition for Child Protection Reform (NCCPR), the modern “children’s rights movement” encourages litigation to enforce children’s rights, but fails to recognize that such litigation is “used more often than not as an opportunity to ‘take it to the judge,’” rather than to protect children. Thus, “more children are enmeshed in legal proceedings than would have been imaginable a generation ago,” as adults seek to invoke their children’s rights to “gain the upper hand” against an ex-wife, corporation, or auto insurance company.

The danger of Article 12 is that it grants the government broad, discretionary legal authority, to protect the child’s nebulous “right to be heard” at all times when the child’s interests are involved.
Thankfully, our courts have not yet adopted this philosophy in “all matters affecting the child,” but if the CRC is ratified or imposed on the United States through customary international law, that will change.

America’s experience has opened parents up to extensive litigation, while often using the child’s “interests” as a way to claim a sort of “moral high ground” in disputes that are really between adults. When the bonds between children and their families are tried in the fires of litigation, they are often scorched in the process. Whenever we empower the government to be the arbiter, we are risking the welfare of our children and families.

Please forward this message to your friends and urge them to sign the Petition to Protect Parental Rights at http://www.parentalrights.org/join-the-fight.

Article written for ParentalRights.org by Peter Kamakawiwoole, March 5, 2008.

The original article can be found here: http://www.parentalrights.org/index.asp?Type=B_BASIC&SEC={29FA17E8-B22C-461E-9B69-DEAA49DA0B9D}

Sources

UN Convention on the Rights of the Child
http://www.unhchr.ch/html/menu3/b/k2crc.htm

Florida Supreme Court gives “silenced” children the right to be heard

http://www.floridasupremecourt.org/decisions/pre2004/bin/sc00-2044.pdf

Committee for Legal Aid to Poor, “The Right of the Child to be Heard” (India)
http://www.crin.org/docs/GDD_2006_CLAP.doc

Canadian Child Care Federation, “To Speak, Participate and Decide” (Canada)
http://www.cccf-fcsge.ca/pdf/Right_to_be_Heard.pdf

Geraldine van Bueren, The International Law of Children’s Rights (1995): 137.

Harrison v. Harrison, 733 N.W.2d 451 (Minn. S.C. 2007); for additional cases involving children suing parents, see Nocktonick v. Nocktonick, 227 Kan. 758 (Kan. S.C. 1980) and Bonte for Bonte v. Bonte, 616 A.2d 464 (New Hamp. S.C. 1992).

Martin Guggenheim, What’s Wrong with Children’s Rights (2005): 245.

Deadbeat Social Scientists – Child Support Myths Debunked

In Best Interest of the Child, California Parental Rights Amendment, Child Support, child trafficking, children criminals, children legal status, children's behaviour, Childrens Rights, Civil Rights, deadbeat dads, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, due process rights, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Freedom, judicial corruption, kidnapped children, Liberty, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Rights Amendment, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes, Title Iv-D on May 27, 2009 at 12:30 am

By Robert Locke
Monday, July 02, 2001

EVERYBODY HATES DEADBEAT DADS. They are excoriated from the feminist Left to the familyvalues Right. This has resulted in a national frenzy of efforts to tighten up childsupport enforcement, beginning with the Child Support Enforcement Act of 1975 (amended in 1984) and including numerous state statutes. Unfortunately, as a new book persuasively argues, they are largely a myth. In fact, they are frequently victims in their own right. Dr. Braver began his research intending only to refine the received wisdom, but his empirical findings changed his own mind. The prevalence of the myths he has exploded raises serious questions about the entire structure of liberal social science, on which our nation’s public policies are based, and the susceptibility of statistics to manipulation by liberal academics.

Dr. Braver refutes six key antifather myths one by one. He writes:

“1. Divorced dads are not overwhelmingly deadbeats in terms of child support compliance. They actually pay far better than assumed, especially if they remain fully employed.”

The horrifying figures for nonpayment of child support that are usually quoted are wrong for a number of reasons. First, they are based solely on maternal reporting. Second, they are based on lumping together divorcees with nevermarrieds, who pay at a lower rate. Third, some studies of the problem record only payments made through court clerks, not all payments. Fourth, most of the remaining deadbeats are in jail, unemployed, in poverty, or otherwise unable to pay for understandable reasons.

“2. Divorced dads are not overwhelmingly disappearing or runaway dads. Most continue a surprisingly high amount of contact with their children, and much of whatever disconnection does occur can be attributed directly to mothers impeding or interfering with visitation.”

Myth holds that divorced men are generally uninterested in their children, a view that derives mainly from a single inaccurate study and from the popculture stereotype of the divorced father with sports car and girlfriend in tow. But, in reality, roughly threequarters of divorced fathers who live in the same town as their children see them regularly, according to Dr. Braver’s own research. And they would frequently see them even more often if it were not illegal for them to do so under the visitation rules to which they are legally subject. Not to mention maternal denial of these visitation privileges, which is a serious and underappreciated issue in its own right.

“3. Divorced fathers do not end up noticeably more economically advantaged by divorce than mothers… in the long run, many divorced mothers will surpass divorced fathers in economic well being. Divorced mothers and children do not disproportionately end up in poverty, and those few who do almost without exception would continue to be in that state whether or not their ex-husbands paid full child support.”

An entire feminist obsession, which many nonfeminists have been taken in by, has been erected upon the so-called “feminization of poverty.” This turns out to be a statistical mirage generated by biased studies. Those divorced mothers who end up in longterm poverty turn out to be (surprise, surprise) those who were from poor backgrounds in the first place, even when they were married. In only 2% of divorces would full payment of alimony and child support lift a poor mother out of poverty who is now in it.

“4. Divorced fathers are not far better satisfied or advantaged in the negotiations leading to their divorce settlements. In fact, fathers are significantly disadvantaged and dissatisfied compared to mothers, who feel more in control of the settlement process than fathers.”

A substantial feminist inspired mythology claims that because the judicial system is run mainly by men, it favors fathers at every step in the divorce process. Despite the fact that every major feminist demand (starting with abortion and running right down the list) has been passed by maledominated legislatures and courts, this men vs. women mythology is emotionally satisfying and therefore believed in. But in fact, the court system has a demonstrable maternalist bias in custody awards and other issues which can be traced in the history of legislation and court decisions.

“5. Divorced fathers are not more content and better emotionally adjusted after divorce than mothers. In fact, overwhelming evidence suggests that they are far more emotionally devastated by divorce than mothers. Only with respect to calming their anger more quickly than their exspouse do fathers have an emotional advantage over mothers.”

The myth holds that divorced dads don’t have a care in the world, with the possible exception of their new, younger, girlfriends. In fact, they tend to be less well adjusted emotionally than their exwives by standard measures of psychological well being. According to a 1985 USA Today poll believed to be valid, 85% of divorced women claim to be happier postdivorce, compared to only 58% of men. Divorced women still usually have their children; divorced men often end up with nothing, relationshipwise.

“6. Fathers do not generally trigger the marriage’s demise by abandoning their wives and families.”

The myth holds that women are devotedly maternal while contemporary American men are too immature to “commit” enough to make their marriages work and are therefore responsible for most divorces. In fact, 2/3 of all divorces are initiated by the woman. And women tend to initiate divorces not because they are abused or otherwise objectively illtreated, but for emotional reasons like “my husband doesn’t communicate with me.”

Not only does Dr. Braver exonerate deadbeat dads, but he documents a number of ways in which postdivorce custodial mothers misbehave. The big thing mothers do is deprive fathers of their lawful visitation rights. The courts are set up to take very seriously the enforcement of childsupport payments by fathers, but they assign little seriousness to the issue of visitation rights. Mothers in most jurisdictions can arbitrarily deny courtordered visitation rights without fear of sanction from police or the judicial system. It would seem that one appropriate reform is to enable fathers to withhold childsupport payments when visitation rights have not been honored.

Mothers routinely practice more subtle forms of aggression. Because they have custody of the children most of the time, they are well placed to poison their minds against their fathers. They are particularly prone to do this if they remarry and wish to “reprogram” the kids to accept their new spouse as their father. They also have a tendency to do it simply out of spite at their ex-husband. Some mothers cynically exploit the police to falsely claim harassment or domestic violence to keep their ex-husband away, a tactic that the law stupidly encourages in a number of ways. It seems that the maternal instinct may not always be the good thing it is usually depicted as, if it drives women to behave like enraged shebears and clutch their children at the expense of their fathers’ legitimate rights.

So where did these myths come from, if untrue? Basically, our society developed a massive emotional desire to believe the worst of divorced fathers. Then social scientists, despite their pretensions to objectivity and hard statistics, lamely translated these biases into research findings. The negative stereotyping of divorced fathers that routinely appears would get people arrested by the PC police if it were applied to minorities, women, or any other category of person. Dr. Braver suggests that our society is experiencing a great deal of stress over the ongoing decay of the traditional family and needed to find a scapegoat. Deadbeat dads conveniently appealed as villains to both feminists and family values types, guaranteeing political support and ideological cover on both sides of the aisle. Conservatives also sought to cultivate respectability with the liberal bestowers of moral respectability by endorsing the liberal line (a classic case of the negative consequences of allowing the Left the moral high ground.) There was also an appeal to a pseudoscientific version of sociobiology, which claimed that it is the nature of males to seek polygamous or serialmonogamous relationships because of an evolutionary incentive to spread their DNA around. This has been called the “Darwin made me do it” defense and raises obvious questions on its own that this is not the place for. Once again, truth was intimidated out of people by the sheer selfassertion of liberals who arrogated to themselves the right to decide which ideas are “offensive.” We have got to learn to simply ignore them, and to use their mistakes on issues like this one as a battering ram to destroy their credibility. Fortunately, and partly due to Dr. Braver’s research, which was expressed in a Presidential commission in 1996, the political system is starting to recognize the necessity of fathers again. For example, more states are establishing joint custody as the norm.

But the most disturbing thing Dr. Braver shows has nothing to do with divorced families per se, but pertains to the shabby standards of social science research. This research, which forms the picture of society on which government policy is based, is conducted almost entirely by liberal academics, and yet is taken by legislatures and courts, not to mention the general public, as being simply objective truth. He documents in devastating detail the degree to which sloppy research standards have opened the door to liberal bias. Properly disciplined research has epistemological safeguards built in to protect it from the biases of the researchers. Naturally, this makes one wonder what other received truths of our society are myths generated by biased research.

Liberal social scientists have mangled their research on divorce in a number of ways. Here are a few:

1. Almost all studies have been based on what people report to be true, not on verified tax returns or bank statements.

2. This reporting hasn’t even included the father most of the time.

3. One notorious study that claimed to show a 73% decrease in maternal incomes after divorce used incomeadjustment figures based on Labor Department raw data gathered in… 1961!

4. This same study also measured pretax income, not aftertax, ignoring the fact that childsupport is taxfree. (There is also a tax credit for child care.) Headofhousehold mothers are taxed at a lower rate than nowsingle divorced fathers, and can claim their children as exemptions.

5. Divorced fathers spend substantial amounts of money on their children beyond simple child support. They spend significant undocumented amounts on visitation and buying necessities and other items for their children. They must maintain larger residences than they would without children visiting now and then. They bear most visitational transportation costs.

6. Divorced fathers are often ordered to pay for their children’s medical insurance over and above child support. Not only do most studies not count this, some even falsely assume the mother is paying.

7. Divorced fathers and nevermarried fathers behave very differently, the nevermarrieds being consistently worse in almost every way. Studies tend to lump them together.

8. Studies of the decline in maternal standardofliving tend to ignore the fact that after divorce, mothers tend to upgrade their job skills and otherwise move up the economic ladder, as is the general pattern over time of the whole population.

9. In the reams of studies being done about divorced fathers, almost none of the studies ever asked these fathers why they were abandoning their children, which the received wisdom claimed they were doing. Naturally, if they had, they might have found there was no reason, because they weren’t.

No one on the peer review committees that oversee the publication of this research in academic journals, or the giving of grants to fund it, ever blew the whistle on these errors. The system failed.

But it gets worse. Many of the bad figures and illogical analyses are from the Census Bureau reinforcing the view that, like the National Endowment for the Arts, the Census Bureau and its budget should be ruthlessly gutted as soon as possible to restrict it to the narrow duty prescribed to it by the Constitution and keep it from spouting liberal nonsense by collecting figures the Constitution does not authorize it to.

The second great intellectual villain of divorce mythology is one Prof. Lenore Weitzman of Harvard University. She was the author of an immensely influential 1985 study that claimed that after divorce, mothers experience a 73% drop in their standard of living and fathers a 42% rise. This study was the basis for several pieces of legislation. It turns out that her finding was based on a simple misprogramming of the computer analyzing the data which reveal that mothers end up with 73% of their former standard of living, (a 27% drop) not 73% less.

This was not an innocent “computer error.” The computer did what it was supposed to do; the investigator mangled the result. The idea that vast policy changes can come from such incompetence is nothing less than mind boggling. This incident needs to be treated as the My Lai of academic social science, which needs to be dethroned from its privileged position in policy disputes. Dr. Braver, who investigated this error and gave Prof. Weitzman a chance to respond, documents her mendacity and evasive behavior throughout this episode, which ended in her admitting the charges against her, for which she has never been disciplined.

The Left has chased conservative social scientists who could have blown the whistle on these shenanigans out of the academy. When will people learn that having a conservative presence in academia really does matter? If there had been an adequate number of conservative sociologists in the academy, someone could have critiqued these figures when they came out and before they had the chance to mislead the public and influence policy. Frankly, it is time to start pruning government funding for sociological research, which always seems to just prove we need more government spending, and to start cutting back sociology departments at the universities.

Dr. Braver’s Deadbeat Dads is thus probably the most important work of conservative social science in a decade, easily in a class with Charles Murray’s “Losing Ground”

The original article can be found on Frontpage Magazine: http://www.frontpagemag.com/Printable.aspx?ArtId=24190

Parental Rights – Involuntary Divorce and Child Support

In Best Interest of the Child, Child Support, child trafficking, children legal status, children's behaviour, Childrens Rights, Civil Rights, deadbeat dads, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, due process rights, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Freedom, judicial corruption, kidnapped children, Liberty, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes, Title Iv-D on May 26, 2009 at 6:18 pm

Fueling the Machinery: The Role of Child Support
By Stephen Baskerville
The Howard Center for Family, Religion, and Society
May/June 2006

The other dilemma raised by involuntary divorce — also now manifest in today’s marriage controversies — was how to finance the increased costs it inevitably brought. The solution was child support, which provides financial incentives to weaken marriage and sever the ties between children and parents, particularly fathers.

Like most of the government machinery now used to administer divorce, child support grew directly out of welfare. It was designed not for middle-class divorced families, but for welfare families that had never been formed through marriage in the first place. Its justification was to recover welfare costs and save public revenue. (In fact, it has consistently lost money, with a current annual deficit approaching $3 billion.)[113] In fact, the subsequent experience might well be seen as a vindication of prophecies that a quasi-socialistic welfare state would inevitably create a “road to serfdom.”

Though the social consequences of mass fatherlessness have been apparent for decades in welfare-dependent communities, thanks to the 1965 Moynihan Report, the political implications for freedom were not as apparent as they are now becoming with middle-class divorce. Because most low-income parents were not living together (which welfare discouraged), there was seldom a need to forcibly evict the father. Employing law-enforcement methods to coerce him to provide for the family was also readily justified, both because his children were receiving welfare and because he was not residing in the home where he could provide for his children as he saw fit. The fact that often he had not made a formal lifetime commitment to the family through marriage no doubt also contributed to the moral case for coercive action against him. No distinction was recognized between fathers who shirked their responsibilities and those who accepted them. Similar to the status later afforded to involuntarily divorced spouses, the unmarried father was treated as “guilty” of paternity and subject to the penal system.

Having erected this machinery to coerce relatively small sums from low-income fathers, where marriage had not taken place, the welfare agencies then extended their jurisdiction to middle-class fathers, whose marriages had to be — and because of no-fault divorce, now could be — forcibly dissolved by court action and where much more substantial sums were available. As with no-fault divorce, no public debate preceded a massive expansion in the scope of state power over family finances and private family life.[114]

It was already known that welfare payments to low-income mothers result in increased divorce (before it led them to forego marriage altogether).[115] Child support added a dimension of law enforcement and forced the middle-class father, as Jed Abraham puts it, “to finance the filching of his own children.”[116] Child support thus became an “unintended economic incentive for middle-class women to seek divorce”: “Strong enforcement…may, in fact, lead to…the unintended consequence of increasing the likelihood of divorce.”[117]

“Deadbeat dads” are another of those public malefactors whose crimes are so repugnant that innocence is no excuse. Yet no government agency has ever produced any scientific evidence that there is, or ever has been, a problem of parents not supporting their children other than that created by the government. Psychologist Sanford Braver, in the largest federally funded study ever undertaken on the subject, conclusively demonstrated that the “deadbeat dad” is largely a government creation. Described by FrontPageMagazine as “the most important work of conservative social science in a decade,”[118] Braver’s study showed that the child support “crisis” consists of little more than the government separating children from their fathers, imposing patently impossible debts on fathers who have done nothing to incur those debts, and then arresting those who, quite predictably, cannot pay. His research undermined every justification for the multi-billion dollar criminal enforcement machinery. Yet eight years after Braver’s book, no enforcement agency has responded to his findings.

Others have confirmed them. William Comanor and a team of scholars have documented the faulty economics. Ronald Henry calls the system and its rationalization “an obvious sham,” “the most onerous form of debt collection practiced in the United States,” and one “that is matched nowhere else in [the] legal system.”[119]

The consequences are corrosive of not only family stability, but constitutional protections. Bryce Christensen argues for a “linkage between aggressive child-support policies and the erosion of wedlock” and writes, “the advocates of ever-more-aggressive measures for collecting child support have trampled on the prerogatives of local government, have moved us a dangerous step closer to a police state, and have violated the rights of innocent and often impoverished fathers.”[120] Abraham writes that “the government commands an extensive enforcement apparatus, a veritable gulag, complete with sophisticated surveillance and compliance capabilities such as computer-based tracing, license revocation, asset confiscation, and incarceration. The face of this regime is decidedly Orwellian.”[121]

Like domestic violence and child abuse measures, child support enforcement is governed by an explicit presumption of guilt, wherein the accused must prove his innocence. “The burden of proof may be shifted to the defendant,” according to an approving legal analysis by the National Conference of State Legislatures (NCSL). Further, “not all child support contempt proceedings classified as criminal are entitled to a jury trial,” and “even indigent obligors are not necessarily entitled to a lawyer.”[122] A father who has lost his children through literally “no fault” of his own must prove his innocence without a formal charge, without counsel, and without facing a jury of his peers.

Child support enforcement further blurs the distinction between guilt and innocence, since officials monitor parents with arrearages, those whose payments are current, and even citizens who are not under an order. The presumption of guilt against those obeying the law was revealed by one official who boasted that “we don’t give them an opportunity to become deadbeats” and by former Attorney General Janet Reno, who referred to current payments “collected from deadbeat parents,” branding as criminals parents who do pay.[123] The presumption that not only all parents under child support orders are already quasi-criminals, but all citizens are potential criminals against whom pre-emptive enforcement measures must be initiated now in anticipation of their future criminality, is revealed by NCSL, which justifies collecting names from the general population by saying, “At one point or another, many people will either be obligated to pay or eligible to receive child support.”[124]

The role of child support in undermining marriage also explains why the fatherhood and marriage promotion measures of the last two administrations have achieved little and why they may be exacerbating the problem.

During the 1990s, the Clinton administration and other governments initiated programs to “promote fatherhood.” Despite the professed (and possibly quite sincere) aim of extolling the importance of fathers and the need to reconnect them with their children, in practice these programs themselves often ended up serving as justifications for collecting child support. The result, therefore, was somewhat opposite of what was advertised, since the federal government was promoting fatherhood with one hand while subsidizing divorce and fatherless homes financially with the other.

Under the Bush administration, the emphasis shifted from fatherhood to marriage. Yet the substance remained similar. While the initiative seems likewise to have proceeded from a genuine desire to redirect priorities toward programs that enhance marriage, with funds devoted to marriage counseling, in practice it has also been compromised by political pressure to continue the essentially punitive approach to family dissolution dominated by the child support system. Since January 2003, some substantial grants announced by HHS under the Healthy Marriage initiative have gone to child support enforcement agencies and private groups involved in collection.[125]

In short, the debate about the desirability of the government promoting marriage and fatherhood may be rendered irrelevant by the fact that the programs are not always what they appear. Whatever the merits of programs encouraging marriage formation, it is not clear that these disbursements even can achieve the desired goal. It is more likely that by expanding programs that are predicated on the removal of the father from the home, the federal funds are undermining marriage rather than encouraging it. Whatever one’s sympathies, on both sides the public debate over government marriage programs has been somewhat beside the point.

113 Child Support Enforcement (CSE) FY 2002 Preliminary Data Report, 29 April 2003, figures 1 and 2 (http://www.acf.hhs.gov/programs/cse/pubs/2003/reports/prelim_datareport/).

114 See “Statement of Leslie L. Frye, Chief, Office of Child Support California Department of Social Services Testimony…on the Administration’s Child Support Enforcement Incentive Payment Proposal, March 20, 1997” (http://waysandmeans.house.gov/legacy/humres/105cong/3-20-97/3-20frye.htm), 1-2.

115 Saul Hoffman and Greg Duncan, “The Effects of Incomes, Wages, and AFDC Benefits on Marital Disruption,” Journal of Human Resources 30 (1995), 19-41.

116 Jed Abraham, From Courtship to Courtroom: What Divorce Law Is Doing to Marriage (New York: Bloch, 1999), 151.

117 Kimberly Folse and Hugo Varela-Alvarez, “Long-Run Economic Consequences of Child Support Enforcement,” Journal of Socio-Economics, vol. 31, issue 3 (2002), 274, 283, 284.

118 Sanford L. Braver, Divorced Dads: Shattering the Myths (New York: Tarcher/Putnam, 1998); Robert Locke, “Deadbeat Social Scientists,” FrontPageMagazine.com, 2 July 2001 (http://frontpagemag.com/columnists/ locke/2001/locke06-29-01.htm).

119 Ronald Henry, “Child Support Policy and the Unintended Consequences of Good Intentions,” in W.S. Comanor (ed.), The Law and Economics of Child Support Payments (Edward Elgar Publishing, 2004), 130, 135, 139.

120 Bryce Christensen, “The Strange Politics of Child Support,” Society, vol. 39, no. 1 (Nov.-Dec. 2001), p. 63.

121 Jed Abraham, From Courtship to Courtroom: What Divorce Law Is Doing to Marriage (New York: Bloch, 1999), pp. 154-155.

122 NCSL Internet site: http://www.ncsl.org/programs/cyf/Criminalnon.htm (accessed 28 August 2001).

123 Robert O’Harrow, “Uncle Sam Has All Your Numbers,” Washington Post, 27 June 1999, A1; “Attorney General Reno Announces Plan to Crack Down on Dead-Beat Parents Who Fail to Pay Child Support,” Department of Justice press release, 22 December 1994.

124 NCSL Internet site: http://www.ncsl.org/programs/cyf/csissue.htm (accessed 24 January 2000).

125 “ACF Approves Child Support Demonstrations in Four States,” Administration for Children and Families press release, 29 April 2004.

The original article can be found here: The Real Danger of Same-Sex Marriage http://www.profam.org/pub/fia/fia.2005.6.htm#Fueling_the_Machinery:_The_Role_of_Child_Support

Parental Rights – Analysis by Article of the UNCRC – Part 2 of 9

In Best Interest of the Child, California Parental Rights Amendment, Child Support, child trafficking, children criminals, children legal status, children's behaviour, Childrens Rights, Civil Rights, CPS, cps fraud, deadbeat dads, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Freedom, Homeschool, judicial corruption, kidnapped children, Liberty, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Rights Amendment, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes, Title Iv-D on May 26, 2009 at 5:00 am

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that continuing analysis:

Article 9: A Child’s Right to a Family — Almost

Last week, we began our series on the UN Convention on the Rights of the Child (UNCRC) by looking at the Convention’s central focus on the “best interests of the child,” which allows the government to substitute its will for that of the parents. This principle is significant as we turn our attention to one of the first rights that the CRC grants to children: the right to remain in their family.

THE RIGHT TO A FAMILY… ALMOST

At first glance, Article 9 of the CRC may appear harmless and even idyllic: “a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.” But despite references to “competent authorities” and “judicial review,” a closer examination quickly reveals that the emphasis on the child’s “best interests” grants the government broad latitude to intervene in the family.

There are many broad and diverse opinions when it comes to what makes a “good parent.” Parents may read a popular parenting book, attend a parenting class, or turn to their own parents or a trusted mentor for advice. Likewise, there is also a broad range of opinions when it comes to when a child should be removed from the home. Clearly a child who is being sexually or physically abused should be saved from that circumstance, but what about more complex issues? Should children be separated from their parents if they are spanked? What about parents who are disabled or have a physical handicap? What about families who are too poor to provide the best quality of living for their children? There are many answers that could be given about what is in the “best interests of the child,” depending on the person who is being asked.

This is why the Supreme Court ruled in 1993 that the “best interests” test could only be applied when a family is broken, such as in divorce proceedings when the dispute is between two parents. When the family is intact, however, courts are required to prove that a parent is “unfit” to raise the children, which requires a state to satisfy a much higher burden of proof. Article 9 destroys this distinction and uses the same test for families that are broken and families that are intact. By analogy, the “best interests” standard treats the government as if it were the other parent in a divorce-proceeding, placed on the same footing as the child’s natural parents in a battle for custody of the child.

TRAMPLING ON PARENTAL RIGHTS

In 1980, the Supreme Court of Washington heard the case of a fifteen-year-old girl who had enlisted state social workers in her quest to live separately from her parents. The girl had resisted her parents’ efforts to discipline her through grounding, and claimed that there was “conflict within her home,” though when asked by a judge about the nature of this conflict, the girl simply replied: “I just feel that there’s a communication gap there.” In an imposing display of judicial power, the court ruled that the conflict between the parents and the child was so severe that it justified the child being placed under the custody of the state, even though the parents were fit and their behavioral standards were not unreasonable.

Twenty-eight years later, families in the United States are still at risk of losing their children if the government believes it can do a better job. In 2004, a social worker hastily accused the parents of one-year-old Julia of child abuse after learning that she had suffered fifteen bone fractures in a period of five months. The parents had no previous record of abuse, the government never presented evidence that they had ever harmed their daughter, and several medical experts testified that the little girl had a brittle bone disease that was responsible for the fractures. But despite the evidence, the family court took little Julia away from her family and placed her in a foster home, citing her “best interests.” Julia remained in foster care until this past December, when her family finally won her back. She is now four-years-old, and has spent the last three years living with strangers in a foster home, but her family is overjoyed to finally welcome her home.

More recently an autistic boy was forcibly removed from his home despite the evidence being “clear that the parents have always stood by and tried to help their son.” Read about this tragic story on our blog here.

WHO DECIDES?

Julia’s happy ending was three long years in the coming – all because of government officials who claimed to act in the “best interests of the child,” without bothering to prove that Julia’s parents were unfit to raise her. Her story is a warning of the insidious sub-plot that runs through Article 9 of the CRC, which grants the government a dangerous power over the lives of its citizens.

But Julila’s story is more than just a warning. It is also a reminder that the battle for parental rights is more than just a battle to change the Constitution: it is a battle to protect real people, to save young lives that are in no danger, except from the government that claims to protect them. Innocent children and loving parents deserve far better than justice that comes three years too late.

Please forward this message onto your friends and urge them to sign the Petition to Protect Parental Rights.

Article written by Peter Kamakawiwoole, Feb.25, 2008.

The original article can be found here: http://www.parentalrights.org/index.asp?Type=B_BASIC&SEC={2169B234-8F84-4613-92AE-579B56A0BE77}
Sources


In Re Sumey, 94 Wash. 2d 757 (Wash. S.C. 1980)

UN Convention on the Rights of the Child
http://www.unhchr.ch/html/menu3/b/k2crc.htm

Family wins custody battle in court

http://www.timesunion.com/AspStories/story.asp?storyID=647184&category=REGION&newsdate=12/14/2007

Autistic Boy Removed from his Home Because the Government Disagreed with the Parents

Parental Rights – Analysis by Article of the UNCRC – Part 1 of 9

In Best Interest of the Child, Child Support, child trafficking, children criminals, children legal status, children's behaviour, Childrens Rights, Civil Rights, CPS, cps fraud, deadbeat dads, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Freedom, Homeschool, judicial corruption, kidnapped children, Liberty, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Rights Amendment, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes on May 25, 2009 at 4:23 pm

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that analysis:

Article 3: The “Best Interest” Principle

It’s usually looked upon as a positive means of holding countries accountable to protect children. But the United Nations Convention on the Rights of the Child (UNCRC) is so much more than that.

When the UNCRC was brought up for ratification in 1995, the core group of Senators in opposition concluded that this treaty marked a significant departure from the originally constituted relationship between state and child. They found, in fact, that it was literally incompatible with the right of parents to raise their children as well as a wholesale giveaway of U.S. sovereignty.

But why?

Widespread concerns about the UNCRC stem from the treaty’s repeated emphasis on one key principle used to guide all decisions affecting children: consideration of the “best interests of the child.” This principle underlies all of the rights found in the Convention.

Article 3 of the CRC provides that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

In other words, policies affecting children at all levels of society and government should have the child’s best interest as the primary concern.

The trouble occurs when this principle appears as a guiding principle for parents in article 18(1), which states that “Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”

Who knows best?

The Convention’s emphasis on the “best interests” principle is a sharp break from American law.

In the 1993 case of Reno v. Flores, the U.S. Supreme Court held that “the ‘best interests of the child’ is not the legal standard that governs parents’ or guardians’ exercise of their custody.” In the 2000 case of Troxel v. Granville, the Court struck down a grandparent visitation statute because decisions about the child were made “solely on the judge’s determination of the child’s best interests,” without regard to the wishes of the parent.

The Court’s decisions in Reno and Troxel reflect a fundamental tenet of American family law, which recognizes that parents typically act in the best interests of their children. Indeed, “United States case law is replete with examples of parents fighting for the best interests of their children,” ranging from a child’s right to an education to the right of personal injury compensation. Except in cases where a parent has been proven to be “unfit,” American law presumes that the parent is acting in the best interests of the child, and defers to that parent’s decision.

The UNCRC’s Brave New World

But the UN Convention on the Rights of the Child changes all of that. The treaty supplants this traditional presumption in favor of parents with a new presumption in favor of the state.

According to Geraldine van Bueren, an international scholar who assisted in the drafting of the CRC, the language of “best interests provides decision and policy makers with the authority to substitute their own decisions for either the child’s or the parents’, providing it is based on considerations of the best interests of the child.”

So instead of placing the burden of proof on the government to prove that a parent is unfit, the Convention places the burden of proof on – yes, parents. Any parent who claims that other interests might just be more important than the state’s characterization of the “best interest” of the child could end up battling the state to protect their rights as a parent.

Where do we go from here?

There is a solution to this dilemma. The strongest, most effective way of protecting children and parents from an alarming state-based agenda is to amend the Constitution to protect parental rights. This can only take place through the concerted efforts of millions of dedicated parents across the United States.


Two immediate action items

Maybe you’ve already signed the petition to protect parental rights. If so, we encourage you to take the next step of telling your friends about this important issue. And if you haven’t yet joined the campaign, consider joining today.

Article written for ParentalRights.org by Peter Kamakawiwoole, Feb. 12, 2008.

The original article can be found here: http://www.parentalrights.org/index.asp?Type=B_BASIC&SEC={1655E4C8-EF5D-4222-9F97-558DBDB04D25}

Why Marriage Matters

In Best Interest of the Child, Child Support, child trafficking, children legal status, children's behaviour, Childrens Rights, Civil Rights, CPS, cps fraud, deadbeat dads, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Foster CAre Abuse, Freedom, judicial corruption, kidnapped children, Liberty, motherlessness, mothers rights, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Rights Amendment, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes on May 25, 2009 at 1:47 am

Why Marriage Matters, Second Edition:
Twenty-Six Conclusions from the Social Sciences

Sixteen of the top scholars on family life have re-issued a joint report on the importance of marriage. First released in 2002, the newly revised edition highlights five new themes in marriage-related research.

Why Marriage Matters, Second Edition: 26 Conclusions from the Social Sciences was produced by a politically diverse and interdisciplinary group of leading family scholars, chaired by W. Bradford Wilcox of the University of Virginia and includes psychologist John Gottman, best selling author of books about marriage and relationships, Linda Waite, coauthor of The Case for Marriage, Norval Glenn and Steven Nock, two of the top family social scientists in the country, William Galston, a Clinton Administration domestic policy advisor, and Judith Wallerstein, author of the national bestseller The Unexpected Legacy of Divorce.

Since 1960, the proportion of children who do not live with their own two parents has risen sharply—from 19.4% to 42.3% in the Nineties. This change has been caused, first, by large increases in divorce, and more recently, by a big jump in single mothers and cohabiting couples who have children but don’t marry. For several decades the impact of this dramatic change in family structure has been the subject of vigorous debate among scholars. No longer. These 26 findings are now widely agreed upon.

Five New Themes

In addition to reviewing research on family topics covered in the first edition of the report, Why Marriage Matters, Second Edition highlights five new themes in marriage-related research.

1. Even though marriage has lost ground in the minority communities in recent years, marriage has not lost its value in these communities.
2. An emerging line of research indicates that marriage benefits poor Americans, and Americans from disadvantaged backgrounds, even though these Americans are now less likely to get and stay married.
3. Marriage seems to be particularly important in civilizing men, turning their attention away from dangerous, antisocial, or self-centered activities and towards the needs of a family.
4. Beyond its well-known contributions to adult health, marriage influences the biological functioning of adults and children in ways that can have important social consequences.
5. The relationship quality of intimate partners is related to both their marital status and, for married adults, to the degree to which these partners are committed to marriage.

Update Research Findings

Among the research findings summarized by the report are:

About Children

* Parental divorce reduces the likelihood that children will graduate from college, and achieve high-status jobs.
* Children who live with their own two married parents enjoy better physical health, on average, than children in other family forms. The health advantages of married homes remain even after taking into account socioeconomic status.
* Parental divorce approximately doubles the odds that adult children will end up divorced.

About Men

* Married men earn between 10 and 40 percent more than single men with similar education and job histories.
* Married people, especially married men, have longer life expectancies than otherwise similar singles.
* Marriage increases the likelihood fathers will have good relationships with children. Sixty-five percent of young adults whose parents divorced had poor relationships with their fathers (compared to 29% from non-divorced families).

About Women

* Divorce and unmarried childbearing significantly increases poverty rates of both mothers and children. Between one-fifth and one-third of divorcing women end up in poverty as a result of divorce.
* Married mothers have lower rates of depression than single or cohabiting mothers.
* Married women appear to have a lower risk of domestic violence than cohabiting or dating women. Even after controlling for race, age, and education, people who live together are still three times more likely to report violent arguments than married people.

About Society

* Adults who live together but do not marry—cohabitors—are more similar to singles than to married couples in terms of physical health and disability, emotional well-being and mental health, as well as assets and earnings. Their children more closely resemble the children of single people than the children of married people.
* Marriage appears to reduce the risk that children and adults will be either perpetrators or victims of crime. Single and divorced women are four to five times more likely to be victims of violent crime in any given year than married women. Boys raised in single-parent homes are about twice as likely (and boys raised in stepfamilies three times as likely) to have committed a crime that leads to incarceration by the time they reach their early thirties, even after controlling for factors such as race, mother’s education, neighborhood quality and cognitive ability.


Fundamental Conclusions

The authors conclude with three fundamental conclusions:

1. Marriage is an important social good, associated with an impressively broad array of positive outcomes for children and adults alike.
2. Marriage is an important public good, associated with a range of economic, health, educational, and safety benefits that help local, state, and federal governments serve the common good.
3. The benefits of marriage extend to poor and minority communities, despite the fact that marriage is particularly fragile in these communities.

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The original article can be found here: http://www.americanvalues.org/html/r-wmm.html

IMMUNITY BROKEN – Children Not Protected by Legal System

In Best Interest of the Child, Child Support, child trafficking, children legal status, children's behaviour, Childrens Rights, Civil Rights, deadbeat dads, Department of Social Servies, Domestic Relations, Domestic Violence, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Freedom, judicial corruption, Liberty, motherlessness, mothers rights, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Rights Amendment, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes on May 24, 2009 at 5:08 pm

by Demosthenes Lorandos, Ph.D., J.D.

ABSTRACT

This article was written to address the immunity claims made by those hired, elected or appointed to serve children in our legal system when they are sued for outrageous acts. This article argues that since the passage of the Child Abuse Prevention and Treatment Act (“The Mondale Act”) false claims of child abuse have wrecked havoc on American families. In order to understand the claims for immunity made by doctors, social workers and attorneys who mis-serve children, this article provides a discussion of immunity and its operation in our law. Following a historical overview, this article describes the various claims to immunity from suit made by government officials, prosecutors, law enforcement personnel, guardians, appointed counsel, social workers and various private parties. For the purpose of illustrating how immunity claims may be addressed, this article presents an actual account of a Michigan case concerning issues of Guardian ad Litem immunity. It is the express position of this author that people who chose to aide or represent children must do so competently and professionally or not at all.

_________________________________________________

Since the passage of the Child Abuse Prevention and Treatment Act (“The Mondale Act”) false claims of child abuse have wrecked havoc on American families.

Certainly it is true that children are starved, beaten, raped and killed every day. They deserve protection. The purpose of this article is to address the immunity claims made by those hired, elected or appointed to serve children in our legal system. In order to understand the claims for immunity made by doctors, social workers and attorneys who mis-serve children, this article will begin with a brief discussion of immunity and its operation in our law.

The second part of this article will focus on the various claims to immunity from suit made by government officials, prosecutors, law enforcement personnel, guardians, appointed counsel, social workers and various private parties. The last portion of this work will present an actual account of a ground breaking case being fought through the courts of Michigan on the issue of Guardian ad Litem immunity from suit for negligence, incompetence and intentional torts. It is the express position of this author that people who chose to aide or represent children must do so competently and professionally or not at all.

A. JUDICIAL IMMUNITY
EARLY FORMULATIONS:

The concept of judicial immunity developed in our law from early Anglo-Saxon origins. As Professor Block informs:

“Under Anglo-Saxon law of the tenth and eleventh centuries, a judgment (doom) could be impeached by charging the official proposing the judgment (the doomsman) with falsehood. This proceeding, known as “forsaking the doom”, developed into the complaint of “false judgment”, whereby a dissatisfied litigant obtained a writ commanding the challenged court to cause a record of its proceedings to be made and brought before the court of the litigant’s superior lord. The complainant could accept the court’s record and thus confine the issues to errors of law. But this record could be challenged by anyone willing to engage in physical combat with the champions of the challenged court. If the challenge succeeded, the lower court’s judgment was annulled and the court was amerced.” Block, Stump v Sparkman and the History of Judicial Immunity, 4980 Duke L.J. 879, 881 (l980).

Displeased with trial by combat, law evolved in England, and in the early l7th century Sir Edward Coke in Floyd and Barker, 77 Eng. Rep. 1305 (Star Chamber l607), and The Case of the Marshalsea, 77 Eng. Rep. 1027 (Star Chamber l6l2), laid out the foundation for the doctrine of judicial immunity. In Barker, Coke established the immunity of a judge “for anything done by him as a judge” 77 Eng. Rep. at l307. It seems that Judge Barker convicted William Price of murder and sentenced him to death. After the sheriff executed Mr. Price, one Mr. Floyd brought charges against Judge Barker for conspiracy. Sir Edward Coke’s decision gave immunity from suit to all of those involved in the prosecution of Price, made it quite clear that Judge Barker’s immunity was absolute. In so doing, Coke identified four (4) grounds in public policy for judicial immunity. First, he indicated a necessity for a finality of judgment. Second, Coke offered that immunity is necessary to maintain judicial independence. Third, Coke held for the independence of thought and freedom from manipulation that immunity would provide, and lastly, Coke offered that in order to engender respect and confidence in the judiciary and the government, immunity for judicial acts was necessary.

Some five years after declaring immunity for judicial acts, Lord Coke modified his doctrine in The Case of the Marshalsea, 77 Eng. Rep. 1027 (Star Chambers l6l2). In Marshalsea, Coke set forth a jurisdictional limitation on the doctrine of judicial immunity. For immunity to apply said Coke, not only did the act have to be judicial in nature, but the judge must have had subject matter jurisdiction over the cause for which he acted. In Marshalsea, a judge presiding over a case in assumpsit found against the defendant. This defendant’s surety was jailed until the judgment was paid. The surety brought an action against the judge for his imprisonment and the judge defended by claiming immunity. Rejecting the immunity claim, Coke held that the judge had no jurisdiction over actions in assumpsit and thus the proceedings were void. As Coke described it:

“[W]hen a Court has (a) jurisdiction of the cause, and proceeds inverso ordine or erroneously, there the party who sues, or the officer or minister of the Court who executes the precept or process of the Court, no action lies against them. But (b) when the Court has not jurisdiction of the cause, there the whole proceeding is [before a person who is not a judge], and actions will lie against them without any regard of the precept or process…” 77 Eng. Rep. at 1038-41.

Clearly, this laid the foundation for judicial immunity. Coke established requirements for its application, restricting immunity to judicial acts made within the judge’s jurisdiction. In addition, he set forth a policy underlying the doctrine: (1) insuring the finality of judgment; (2) protecting judicial independence; (3) avoiding continuous attacks on sincere and conscientious judges; and (4) maintaining respect for the judiciary and the government.

To read the remaining portion of this article on http://familyrights.us/bin/white_papers-articles/immunity_broken.htm

Indentured Families – Social conservatives and the GOP: Can this marriage be saved?

In Best Interest of the Child, Child Support, child trafficking, children criminals, children legal status, children's behaviour, Childrens Rights, Civil Rights, CPS, cps fraud, deadbeat dads, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, DSM-IV, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Freedom, Homeschool, judicial corruption, kidnapped children, Liberty, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Rights Amendment, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes, Title Iv-D on May 24, 2009 at 12:30 am

by Allan Carlson
03/27/2006, Volume 011, Issue 26

IN THE INTERNAL POLITICS OF the Republican coalition, some members are consistently more equal than others. In particular, where the interests of the proverbial “Sam’s Club Republicans” collide with the interests of the great banks, the Sam’s Club set might as well pile into the family car and go home.

Consider, to take one recent instance, the Bankruptcy Abuse Prevention and Consumer Protection Act, enacted last year, after a long delay, with support from congressional Republicans. A controversial clause that would have prevented abortion protesters from filing for bankruptcy to avoid paying court-ordered fines had stalled the measure. After the Senate rejected this provision, GOP leaders drove the bill through both houses of Congress and gained an enthusiastic signature from President George W. Bush.

In a nutshell, the new law makes a “clean start” after filing for bankruptcy much more difficult for families with at least one wage earner. Instead, most affected households will find themselves essentially indentured to a bank or credit card bureau, paying off their debt for years to come. “A new form of feudalism,” one critic calls it.

In truth, some had abused the old law, turning repeated bankruptcy filings into a kind of circus. A tightening on this side probably made sense. Significantly, though, the new law made no real changes on the lenders’ side, measures that might have reined in an increasingly predatory credit industry. It is common knowledge, for example, that credit card companies intentionally urge financially troubled families to borrow still more money, because they can charge these households exorbitant interest rates. As one Citibank executive has candidly observed, “They are the ones who provide most of our profit.” Late payment fees, another favored industry device, reportedly deliver over 30 percent of credit card financing revenue. Assurances by lawmakers that the new law will bring credit card interest rates down fly in the face of these more fundamental corporate strategies.

True, in the context of America’s new debt-driven economy, this treatment of financially troubled families may constitute “good business” (even if under older ethical standards it’s the equivalent of offering a barrel of whiskey to an alcoholic). More fundamentally, though, the GOP’s opting for an outcome that’s good for Citibank’s profits while disregarding the effects on families should cause no surprise.

SOME HISTORY may help here. The modern “family issues” are actually about a century old. The first openly “pro-family” president was a Republican, Theodore Roosevelt. Between 1900 and about 1912, he wrote and spoke often, and eloquently, about the dangers of a rising divorce rate and a falling birth rate. He celebrated motherhood and fatherhood as the most important human tasks, and described the true marriage as “a partnership of the soul, the spirit and the mind, no less than of the body.” He blasted as “foes of our household” the birth control movement, equity feminism, eugenics, and liberal Christianity.

However, the Rough Rider was the only prominent Republican of his time to think and talk this way. The dominant wing of the GOP tilted in favor of the banks, the great industries, and–perhaps more surprisingly–the feminist movement. Indeed, as early as 1904, the National Association of Manufacturers had formed an alliance with the feminists, for they shared an interest in moving women out of their homes and into the paid labor market. When the feminists reorganized as the National Woman’s party in 1917, the manufacturers’ association apparently provided secret financial support. More openly, Republican leaders embraced the feminists’ proposed Equal Rights Amendment, first advanced in Congress in 1923. The GOP was also the first major party to endorse the ERA in its platform.

Meanwhile, the Democrats consolidated their 19th-century legacy of “Rum, Romanism, and Rebellion”: that is, as the party favoring beer halls, the new immigrants from Eastern and Southern Europe, southern agrarians, northern Catholics, small property, the trade unions, and–importantly–the “family wage” for male workers. This cultural and legal device sought to deliver a single wage to fathers sufficient to support a wife and children at home. The Democrats also welcomed the “Maternalists” into their ranks, female activists who–while believing strongly in equal legal and political rights for women–also emphasized the natural differences between the sexes when it came to childbirth and child care. They favored federal programs for the training of girls in home economics and for “baby saving,” meaning efforts to reduce infant and maternal mortality. They fiercely opposed working mothers and day care. Under this Maternalist influence, every New Deal domestic program openly assumed or quietly reinforced the goal of a “family wage” and the model American family of a breadwinning father, a homemaking mother, and an average of three or four children.

In short, from 1912 until 1964, the Democrats were–on balance–the pro-family party. The Republicans, on balance, were the party of business interests and the feminists.

All this changed between 1964 and 1980 with the emergence of the “Reagan Democrats.” This radical reorientation of American domestic politics began with debate about adding “sex” to the list of prohibited discriminations under Title VII (employment issues) of the proposed Civil Rights Act of 1964, a fascinating event that ended with the addition of “sex” and the ensuing legal destruction of the “family wage” regime. The broad transformation continued with the rise of the “pro-family movement” during the 1970s, behind early leaders such as Phyllis Schlafly and Paul Weyrich. It ended in 1980 with the solid movement of northern Catholics and southern evangelicals into the Republican party, and the counter-movement of feminists and the new sexual revolutionaries into the Democratic fold. Ronald Reagan, a proud four-time voter for Franklin D. Roosevelt and a lifelong admirer of the New Deal, explained his 1980 victory to a group of Catholic voters this way:

The secret is that when the left took over the Democratic party we [former Democrats] took over the Republican party. We made the Republican party into the party of the working people, the family, the neighborhood, the defense of freedom. And yes, the American Flag and the Pledge of Allegiance to One Nation Under God. So, you see, the party that so many of us grew up with still exists except that today it’s called the Republican party.

In fact, this was only partly true. For the Republican party as reshaped by Reagan now saw pro-family social conservatives in political alliance with the interests of the banks and the large corporations. Main Street and Wall Street were under the same tent, which was a very new development.

SO, HOW WELL has the Republican party performed as the party of the traditional family? At the level of the party platform, it has done fairly well. Since 1980, pro-family activists have successfully shaped Republican platforms that oppose ratification of the Equal Rights Amendment, endorse a constitutional amendment to overturn Roe v. Wade and protect pre-born infant life, and call for pro-family tax measures.

And there have been concrete wins. Regarding taxation, for example, the Tax Reform Act of 1986 doubled the value of the child-friendly personal exemption and indexed it to inflation. Ten years later, another tax bill created a new Child Tax Credit. George Bush’s 2001 tax cut raised this credit to $1,000 per child and began to eliminate the tax code’s notorious marriage penalty.

There have been other gains. Congress approved and President Bush signed a ban on partial-birth abortion. The welfare reform of 1996 eliminated perverse incentives to out-of-wedlock births. Under the current President Bush, the Administration on Children, Youth, and Families and the Office of Population Affairs, important branches of the Department of Health and Human Services, are in pro-family hands. As of last month, so is the State Department’s Bureau of Population, Refugees, and Migration. Judges with pro-family records have won presidential appointment to federal courts, most recently Samuel Alito. Especially with the current administration, social conservatives have sometimes felt that they actually hold a true seat at the table.

Even so, all is not well within the existing Republican coalition. Indeed, there are other indicators that the Republican party has done relatively little to help traditional families, and may in fact be contributing to their new indentured status. Certainly at the level of net incomes, the one-earner family today is worse off than it was thirty years ago, when the GOP began to claim the pro-family banner. Specifically, the median income of married-couple families, with the wife not in the paid labor force, was $40,100 in 2002, less than it had been in 1970 ($40,785) when inflation is taken into account. In contrast, the real earnings of two-income married couple families rose by 35 percent over the same years (to nearly $73,000). Put another way, families have been able to get ahead only by becoming “nontraditional” and sending mother to work or forgoing children altogether. As the Maternalists had warned, eliminating America’s “family wage” system would drive male wages down and severely handicap the one-income home. So it has happened.

Despite the economic pressures, though, such families are not extinct. They still form core social conservative constituencies such as home schooling families and families with four or more children. But again, they have little to show from the years of the Republican alliance. Indeed, the GOP has done absolutely nothing to curb the egalitarian frenzy and the gender-role engineering set off by Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972 and enshrined at the Pentagon. Equity feminism still rules these roosts.

Or consider child care. A timely veto by Richard Nixon stopped the government’s day care juggernaut in 1971, but only for a few months. The same year, Nixon signed a Republican-designed measure also backed by the National Organization for Women (heir to the GOP-favored National Woman’s party). This law allowed families to deduct day care costs from their income tax, cleverly labeling them “business expenses.” This has since grown into a credit worth between $1,500 and $2,100 in reduced taxes for households using day care. Even the wealthiest qualify.

Meanwhile, families that sacrifice a second income to keep a mother or father at home receive nothing except a higher net tax. Bills to correct this gross inequity have been regularly introduced in Congress since 1996, most recently the Parents’ Tax Relief Act of 2006 (H.R. 3080). However, the Republican leadership has ignored them. To underscore the lost opportunity here, note that conservatives in Canada rode to victory just a few weeks ago by embracing a plan to extend that nation’s day care benefit to stay-at-home parents; not a whiff of this, though, in the recent State of the Union address.

Add to these examples the bankruptcy reform measure discussed earlier, and ask: What do these issues have in common? All three are matters where the interests of big business and the interests of traditional, one-breadwinner families have collided, and in each case the Republican party has sided in the end with business. Concerning one-income families, the great corporations continue to view them as a waste of human resources, artificially raising labor costs by holding adults at home. Judging by its inaction and results, the GOP agrees. For the same reason, large businesses generally favor federally subsidized day care, for it creates incentives for mothers to work rather than care for their children. Existing Republican policy strongly favors this social parenting. And the credit industry has every interest in creating a new, indentured debtor class annually sending 20 percent of its income to the banks. The Republicans concur.

OTHER DEBT-DRIVEN FAMILY ISSUES are looming, with little indication of a Republican willingness to tackle them in a pro-family way. Consider the Federal Student Loan program, launched in the mid-1960s as a modest supplement to means-tested federal education grants. The system has since morphed into a massive debt machine, lending out $58 billion in 2005 alone and fueling a huge increase in college and university costs. The average bachelor’s degree recipient currently graduates with $20,000 in debt; students having attended graduate school report another $50,000 to $100,000 in debt, creating in one commentator’s words “the most indebted generation of young Americans ever.”

Here we find another newly indentured class of Americans, also paying about 20 percent of their incomes to the banks for decades to come. Disturbingly, over 20 percent of these borrowers report that they have delayed having children because of their debt, while 15 percent say they have delayed marriage. These are not pro-family outcomes. The most recent Republican response to the borrowers’ plight–undertaken in early February in the name of fiscal responsibility–was to pass a measure whose net effect will be to raise the long-term debt facing young adults.

Another troubling new issue is Title IV-D of the Social Security Act, the federal government’s child support collection and enforcement program. Originally designed to track down the welfare fathers of illegitimate children, the measure has increasingly targeted middle income households affected by divorce. There is mounting evidence that the system now encourages marital breakup and exacerbates fatherlessness by creating a winner-take-all game, where the losing parent–commonly a father wanting to save the marriage–is unfairly penalized by the loss of his children and by a federally enforced child support obligation. Here we find objectively false feminist views–the assumption that men are always the abusers and women are always the victims–driving public policy. And here we find still another newly indentured class of citizens–noncustodial parents–being squeezed financially by the state. If you think this an exaggeration,

I refer you to no less an authority than Phyllis Schlafly, who calls this runaway federal law the most serious danger facing American families today.

Democrats often dream of wooing the “Reagan Democrats” back into the fold. Bill Clinton, who could speak “evangelical” and who embraced pro-family tax and welfare reforms, succeeded to some degree. Democratic strategist Stanley Greenberg, who actually coined the phrase “Reagan Democrats,” argues that “a new, family-centered politics can define and revitalize the Democratic party.” Its message should highlight “family integrity and parental responsibility” and offer a “progressive vision of family support.” Greenberg even theorizes that “Roman Catholics would [again] rally to a Democratic party respectful of family and committed to defending government’s unique role in supporting it.”

If the Democratic party remains the party of the sexual revolution, as its open yearning for same-sex marriage suggests it may, such dreams will remain just that. However, if a Democratic leader can ever shake that monkey off his–or her–back, and if this occurs in conjunction with an economic downturn, the prospects for another broad political realignment are fairly high. A new economic populism, delivering child-sensitive benefits and skewering predatory banks and bureaucrats, could work politically for a clever Democrat.

Moreover, when push comes to shove, social conservatives remain second class citizens under the Republican tent. During the 2004 Republican convention, they were virtually confined to the party’s attic, kept off the main stage, treated like slightly lunatic children. Republican lobbyist Michael Scanlon’s infamous candid comment–“The wackos get their information [from] the Christian right [and] Christian radio”–suggests a common opinion among the dominant “K Street” Republicans toward their coalition allies.

Contemporary Republican leaders need to do better–much better–toward social conservatives. They must creatively address pressing new family issues centered on debt burden. And they must learn to say “no” sometimes to Wall Street, lest they squander the revolutionary political legacy of Ronald Reagan.

Allan Carlson is president of the Howard Center for Family, Religion, and Society in Rockford, Illinois.
© Copyright 2005, News Corporation, Weekly Standard, All Rights Reserved.

The Criminalization of Parents – Parental Rights Under Assault!

In Best Interest of the Child, Child Support, child trafficking, children legal status, children's behaviour, Childrens Rights, Civil Rights, CPS, cps fraud, deadbeat dads, Divorce, Domestic Relations, Domestic Violence, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Freedom, judicial corruption, kidnapped children, Liberty, motherlessness, mothers rights, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Rights Amendment, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes on May 23, 2009 at 3:00 pm

By Stephen Baskerville
© 2009

The California appeals court decision criminalizing parents who homeschool their children is only the tip of an iceberg. Nationwide, parents are already being criminalized in huge numbers, and it is not limited to homeschoolers.

During the Clinton years, the trend toward turning children into tools for expanding government power increased rapidly. Otherwise indefensible programs and regulations are now rationalized as “for the children.”

As a result, government now has so many ways to incarcerate parents that hardly a family in America has not been touched. The criminalization of parents is highly bureaucratic, effected through a bureaucratic judiciary and supported by a vast “social services” machinery that few understand until it strikes them. They then find themselves against a faceless government behemoth from which they are powerless to protect their children or defend themselves.

Homeschoolers are usually accused of “educational neglect,” a form of child abuse. Like other child abuse accusations, it does not usually involve a formal charge, uniformed police, or a jury trial. Instead the accusations are leveled by social workers, whose subjective judgment is minimally restrained by due-process protections. As Susan Orr, head of the federal Children’s Bureau points out, these social workers are in effect plainclothes police – but they are not trained or restricted like regular police.

Homeschoolers are not alone. Any parents can be charged with “child abuse” on the flimsiest of pretexts, because child abuse has no definition. Because of our presumption of innocence, crimes are generally defined as they are adjudicated: A crime has been committed if a jury convicts. But the roughly 1 million cases of child abuse annually (out of 3 million accusations) are “confirmed” or “substantiated” not by jury trials but by social workers or (sometimes) judges.

Most such parents are not imprisoned. They merely lose their children.

Virtually every American can now tell of a relative or friend visited by the feared Child Protective Services because of a playground injury or a routine bruise.
Too many dismiss these frightening ordeals as aberrations. In fact, they proceed from a bureaucratic logic that is driven by federal funding. The more “abuse” the social workers find, the more money they get to combat it.

But serious as this is, it is still mild compared to the largest sector of semi-criminalized parents: the involuntarily divorced. The moment one parent files for divorce, even when no grounds are evinced, the government automatically and immediately seizes control of the children, who become effectively wards of the state. Astoundingly, they are then almost always placed in the “custody” of the parent that initiates the divorce, placing the divorcing parent and the state in collusion against the parent that is faithful to the marriage and family. The non-divorcing parent, even if legally unimpeachable, can then be arrested for unauthorized contact with his or her own children. Here too abuse accusations can be readily fabricated out of thin air, further criminalizing the innocent parent. He (it is usually, though not always, the father) can then be arrested, even without a shred of evidence that any abuse has occurred. He can also be arrested if he cannot pay child support that may consume most or even all his income. He can even be arrested for not paying a lawyer or psychotherapist he has not hired.

But what is most striking here – in contrast to homeschoolers – is the absence of opposition. The genius of the feminists is to vilify fathers in terms designed to incur the revulsion of decent people“pedophiles,” “batterers,” “deadbeat dads” – and too many conservatives and Christians are fooled.

In fact, the social science data are clear that these alleged malefactors are rare among biological fathers and almost entirely the creation of feminist propaganda. Accused fathers are no more likely to be criminals or child abusers than are homeschooling parents. They have merely fallen into the clutches of another sector of the child exploitation bureaucracy.

Indeed, it is well-known among scholars that true child abuse takes place overwhelmingly in single parent homes – homes without fathers. By removing fathers under trumped-up abuse accusations, the child abuse apparatchiks create the environment for real abuse, further expanding their business.

Campaigns against homeschoolers and fathers are only the extreme manifestations of the larger attack on all parents. They indicate where we all may be headed if we do not take a united stand for parental rights against a judicial-bureaucratic machine that is not only destroying families but justifying its own expansion in the process.

Though conservatives often misuse the term, two features used by scholars to define totalitarian government were its highly bureaucratic methods and its willingness to invade and destroy the private sphere of life, particularly family life.

Both these tendencies come together in the governmental leviathan that now administers our children: the education establishments, family courts, child protective services, child support enforcement agents, “human services” agencies, counseling services, domestic violence programs and much more.

The very idea that the criminal justice system has been diverted from its role of protecting society from dangerous criminals and instead used to threaten law-abiding parents with jail for educating or raising or simply being with their children should be seen by all Americans as a serious threat to our families and our freedom.

Stephen Baskerville is associate professor of government at Patrick Henry College and author of “Taken Into Custody: The War Against Fathers, Marriage, and the Family” (Cumberland House, 2007).

The original article can be found on World Net Daily: http://www.worldnetdaily.com/index.php?fa=PAGE.view&pageId=58963

Parental Alienation Syndrome: A Lost Parent’s Perspective – Chapter 5 of 5

In child trafficking, children legal status, children's behaviour, Childrens Rights, Civil Rights, cps fraud, deadbeat dads, Department of Social Servies, Divorce, DSM-IV, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Freedom, judicial corruption, Liberty, MMPI, MMPI 2, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Rights Amendment, Parentectomy, Parents rights, state crimes on May 23, 2009 at 1:00 am

by Despina Vassiliou
Department of Educational Psychology and Counselling, McGill University
3700 McTavish, Montreal, QC, Canada H3A 1Y2
CHAPTER 5

SUMMARY AND CONCLUSIONS

The present qualitative study examined lost parents’ perceptions of the alienating circumstances they and their families experienced in an attempt to gain a better understanding of the nature of Parental Alienation Syndrome and its consequences. The participants included five fathers and one mother who perceived themselves as having experienced PAS. The data were collected via semi-structured, open-ended interview questionnaires. The results consisted of verbatim data transcribed from participants’ tape recorded responses. A qualitative analysis of the compiled data was performed for each participant. This section presents a summary and discussion of all the results. The four previously outlined study objectives are addressed with respect to the findings of the present study.

Question 1: Are there characteristics (e.g., number of children, number of marriages, etc.) common to alienated families?

Previous studies on alienation that have examined the role of family characteristics as possible factors in the occurrence of the alienation have found differing results. For instance, in the study conducted by Dunne and Hedrick (1994) family characteristics were not found to be a factor of PAS, whereas a study conducted by Calabrese et al., (1987) found that characteristics of individuals were better predictors of alienation than family characteristics. Specifically, high levels of alienation were found to be associated with unemployed, single mothers with a daughter. Further, the daughter was found to have had few friends. Although a number of the participants in the present study had tended to only one PAS child, the lost parents tended to remarry after the alienation, and the alienators had tended to relocate with the PAS child. These results were found to be weak indicators of PAS as they were not reported by a majority of the participants (i.e., greater than 50%). Supporting the results of Dunne and Hedrick (1994), it appears that family characteristics such as number of children, number of marriages, and number of relocations are weak indicators in the occurrence of PAS. Though these findings contradict those of Calabrese et al., (1987), they examined different family characteristics reported by the alienator and found that individual family members characteristics, such as the alienator’s employment and the gender of PAS and non-PAS children were relevant in the occurrence of PAS. Further study is required with a larger sample and more detailed questions concerning the number and gender of PAS children and non-PAS children, the number of marriages by both alienator and lost parent, the current marital status and employment of each parent, and the number and reasons for relocations. With these specific questions, a larger sample, and a comparison group of non-PAS divorced families, more light might be shed on the role of family characteristics in the occurrence of PAS.

Question 2: Are there common themes or issues among the conflicts within couples that contribute to marriage dissolution?

Previous studies examined the effects of conflict involved in separation and/or divorce on individual family members. For instance, Johnston, Gonzalez, and Campbell (1987) examined the behaviour of children from separated and/or divorced families who were subjected to “entrenched” parental conflict regarding their custody. It was postulated, in the current study, that an elevated level of conflict contributed to the occurrence of PAS. However, the results suggest that the dissolution of the PAS marriages occurred with varying degrees of conflict, from high levels of conflict including physical aggression, to situations with absolutely no conflict. The current study also found that with time, the majority of the participants reported strained relationships with their ex-spouses, where most had little or no contact with their ex-spouses due to a degradation of communication between the parents. These results suggest that there may be other factors aside from initial marital conflict that contributes to the occurrence of PAS. Lund’s (1995) findings indicated that a heightened number of conflicts occurring during the divorce, not during the marriage, may contribute to the occurrence of PAS. Again, further study of separating families is necessary to determine whether it is other factors that occur during the dissolution of the marriage and subsequent custody proceedings or if it is the time of the conflicts with respect to the divorce that plays a more significant role in PAS. Such studies should consist of a long-term examination of the situations that occur in separating families and the family member’s responses to them. For instance, a future study may have participants maintain daily journals that chronicle the events of the separation and these journals may later be analyzed qualitatively in order to determine whether any similarities exist across different families.

Question 3: Are there common themes in the participants’ experience of the alienation process?

Several common themes among the cases were found in the present study. Interestingly, these commonalties spanned the continent; they were not focused geographically. One commonality was that the PAS children were “enlisted” by the alienating parent as secondary alienators to them (i.e., to the primary alienator) to contribute to the alienation. This finding is consistent with the characteristics of PAS children described by Gardner (1992). Also described by Gardner (1992) and Cartwright (1993), others such as grandparents participated and contributed to the alienation. The reasons for which extended family members participate in that alienation remains unclear. Although there is some support for the notion that the closeness of these other alienators to the alienating parent may play a role, the results were inconclusive. A future study could contribute to the knowledge of PAS by examining the roles of the extended family members of PAS children.

A second commonality was that the lost parents reported feeling powerless as a result of the alienating situation. Others, especially the children, appeared to have gained control of the lost parents’ behaviour. These children could determine when, if at all, they would see their lost parent under what circumstances, and particularly what the lost parent would do with the child. The lost parent had to be careful not to anger their child lest they not see the child again. The sense that power shifted from the parent to the child, although not previously examined in the field of PAS, remains a logical consequence of the custody proceedings. As Turkat (1994) noted, the family undergoes a shift from having two parents who make decisions for the child, to one parent becoming a “visitor” in the child’s life. The “visiting” parent then loses the influence that he or she had previously and is unable to make the same decisions as he or she once did.

Third, the results suggest a lack of satisfaction with the services rendered by both legal and mental health professionals. The participants perceived a lack of knowledge of PAS on the part of the professionals, as well as a failure at the professional level to gather pertinent information prior to drawing conclusions. Participants perceived the psychological services they received as not helping the alienating situation, and perceived the legal professionals as supporting and even contributing to the alienation. The sense of dissatisfaction toward mental health professionals may be merited. Currently, there is a minimal amount of research conducted on PAS by psychologists and psychiatrists. Consequently, the number of these professionals who have any knowledge and understanding of PAS may be limited. Further research and discussion of the topic is imperative in order to provide more mental health professionals with greater knowledge of PAS and the intervention techniques that may be useful.

Legal professionals appear to be more aware of PAS as more articles are published by lawyers. However, the dissatisfaction with the legal system appears to stem from lawyers contributing to the alienation. Many have postulated that the legal system contributes to the occurrence of PAS (Gardner, 1992; 1991; Clawar & Rivlin, 1991; Dunne & Hedrick, 1994; and Girdner 1985). For instance, Cartwright (1993) had noted that prolonged legal proceedings contribute to the occurrence of PAS. Much of the blame for the occurrence of PAS may be related to the dissatisfaction the lost parents experienced with the legal system. This dissatisfaction may be due to the lost parents losing primary custody of their children to alienators. As a result, it is imperative that indicators and precursors of PAS be established in order to better inform judges, lawyers, and mental health professionals about PAS. These professionals, working together, can influence the outcome for PAS families. Their influence is shown with the findings of Dunne and Hedrick (1994) who linked the termination of PAS to the legal enforcement of a change in custody from the alienators to the lost parents. This finding was the only one to suggest an effective intervention for PAS families. Specifically, a possible intervention includes mental health professionals identifying PAS families to the legal professionals, who can then legally enforce the necessary change in custody.

The role of these professionals is also to inform others of PAS and its consequences. Currently, Anita Woolfolk (1998), in her bestselling textbook Educational Psychology, provides some startling information to student teachers. In her note to be “sensitive” to the rights of information for both parents, she suggests the following:

1. “When parents have joint custody, both are entitled to receive information and attend parent-teacher conferences.”
2. “The noncustodial parent may still be concerned about the child’s school progress.” (emphasis added) (p. 96)

In her first point, she neglects to mention the rights of noncustodial parents and when she does so in her second point, she states that they “may still be concerned” about their child. Such remarks provide future teachers with the impression that once a parent loses custody they also lose their parental rights and feelings for their children. Under Quebec law, Article 648 stipulates that a parent retains parental authority even if that parent does not have physical custody of the child (as cited in Department of Justice Canada, 1993). Specifically, parental authority is elaborated in Article 647 of the Quebec Civil Code (as cited in Department of Justice Canada, 1993) is stated as follows:

The father and mother have the rights and duties of custody, supervision and education of their children. They must maintain their children.

Fourth, the results of the present study suggest that the lost parents attributed the cause of the alienation to the alienators’ feelings and desires. Specifically, they perceived the alienators’ actions as motivated by hate and anger, revenge or some combination of these. However, these results lack enough detail to determine whether these motivations may be influenced by the influences that Gardner (1992) had suggested, such as the alienators’ mental health and the legal system. Specifically, the motivations of hate and/or anger and revenge found in the present study may be mediated by the alienators’ mental health as well as the alienators’ reactions to the lengths, processes, and outcomes of their legal cases.

Fifth, the results suggest a change in the frequency of visitation and custody arrangements impact on the relationships between the lost parents and their children. The participants reported that primary custody was given to the mother at the onset of the divorce, regardless of who later became the alienator and who later became the lost parent. Further, the fathers all had a consistent visitation schedule at the beginning of the custody arrangements (e.g., one weekend every two weeks). The final custody arrangements resulted in the alienators receiving custody and the lost parents receiving a significant reduction in their visitation schedules from half the original plan to no contact at all. Of interest is the apparent gender bias in initial custody agreements; specifically, mothers received primary custody. However, following the alienation all the lost parents — even the mother with initial primary custody — had their visitation drastically reduced. Moreover, as expected with a reduction of visitation, the lost parents described limited relationships with their children to whom they often wrote without reply. The only exception were two fathers who related that they probably maintained a relatively steady relationship with their children because the PAS was mild and even one of these fathers was alienated from his eldest child and with whom he had a limited relationship.

Overall, these findings indicate that there are several possible factors, such as changes in relationships among family members, the roles of mental health and legal professionals, as well as custody arrangements, that may be indicators or precursors to PAS. All of these factors lend support to several of Lund’s (1995) findings. First, Lund’s (1995) identified separation difficulties that are developmentally inappropriate as a contribution to PAS. It is possible that the pattern of the change in custody arrangements (where the alienator received primary custody at the end of the custody dispute) may result in the separation difficulties described by Lund’s (1995). Second, a characteristic of PAS children is that they exhibit some form of “oppositional” behaviour at least to the lost parent, as supported in the present study. Third, Lund’s (1995) also found that the non-custodians’ parental skills deteriorated and contributed to the occurrence of PAS. Such deterioration of the parental skills may be a result of the lost parent’s sense of lost power over their situation and, as indicated in the present study, they did not exercise their usual parenting styles. The lost parents reported that they felt that disciplining the PAS child may result in the child becoming angry and retaliating by denying visits with the lost parent. Since there appears to be several factors that may influence the occurrence of PAS, a long-term study that examines these singly and in combination may provide a useful insight as to possible indicators.

Question 4: Given the opportunity, what are some things that the lost parents perceive they might do differently?

The results of the current study suggest that armed with the knowledge they have now, each participant would have taken other means in order to prevent the current alienated situation from ever occurring. Examples of the means they would take include never having married, taking different legal routes, or seeking psychological services at an earlier date. Few studies have addressed this issue, however, the importance of preventing PAS is evident in that all of the participant’s would never want to repeat the experience.

A summary of the findings of the present study is as follows:

(1) Family characteristics, such as number of children, number of marriages, and the alienators number of relocations were weak factors in the occurrence of PAS.
(2) Marital conflicts and their intensity were weak predictors in the occurrence of PAS.
(3) As expected, the relationship between the alienating and lost parents were strained after the onset of PAS.
(4) There was a general decrease in the frequency of visitation for the lost parent which may or may not have been due to PAS.
(5) There was a reduction of other contacts (aside from visitation) between the lost parents and their children that, as expected, limited their relationship.
(6) By the very nature of PAS, all of the participants perceived a general “sabotage” of their relationships with their children by the alienators. The findings confirmed that the alienators used denigrating techniques (e.g., implying that the lost parents were not good people).
(7) The children acted as secondary alienators.
(8) The alienator’s closer family members tended to also alienate.
(9) The participants perceived the underlying cause of the alienation as the hatred toward the lost parents, anger, or revenge, or some combination of these.
(10) The lost parents experienced a loss of parental role and power whether or not they had visitation with their children.
(11) Although the lost parents sought the assistance of both legal and mental health professionals, they remained dissatisfied with these services. Both the legal and mental health professionals have inadequately explored all the parameters implied in PAS.
(12) The participants, provided that they had the knowledge about PAS that they presently have, would have behaved differently towards their ex-spouse.
(13) As expected, the participants perceived the alienating circumstances as exerting serious negative emotional and financial consequences on their lives.
(14) They hoped to be able to be reunited with their children in the future. They would be able to do so by maintaining contact with the children (i.e., by sending letters and cards). These findings illustrate both the complexity and seriousness of PAS. Thus the ability to identify precursors, indicators, and effective interventions for these families is essential.

Limitations of the Study and Recommendations for Additional Research

The research conducted in the present study involved a small sample of participants who described themselves as victims of PAS and consequently, generalizations can only be made cautiously. Although some pre-defined criteria were given as a basis for choosing the participants, additional specific criteria are necessary. For instance, a useful future criterion may be that the participants be identified as PAS subjects by trained professionals. However, due to time limitations, a lack of resources and the difficulty of identifying cases of PAS when there were so few professionals who had any knowledge of PAS, it might be difficult for a researcher to include this criteria. Second, interviews were conducted by telephone due to the great distances involved. Such a means of interview may be prone to overlook or minimize important qualitative data from nonverbal cues. Ideally, with a larger sample size, possibly a random sample, and the inclusion of a comparison group (e.g., families involved in amicable divorces) greater generalizability may be attained in such a study. To date there is very little research specifically on PAS; much that is known remains tentative. Further building on the data base available to researchers to date can provide greater information upon which to base hypotheses for future research.

The importance of a greater wealth of knowledge on PAS is evident by examining the focus placed on problems encountered in custody disputes by the government. The Senate of Canada has debated drafts of legislation Bill-C41, whose principle is to have both spouses share the “financial obligation to maintain the children of the marriage in accordance with their relative abilities” (Chapter 1, article 11-2). As a result, the Senate of Canada and the House of Commons has created a Joint Committee on Custody and Access. The purpose of this committee is to “examine and analyze issues relating to parenting arrangements after separations and divorce” (Senate Debates, October 28, 1997, pp. 253). Senator Anne C. Cools presented a speech to amend certain aspects of the Joint Committee. The amendment passed and has been sent to the House of Commons for their approval. The amendment Senator Anne C. Cools proposed was to have the Joint Committee on Custody and Access examine important issues relating to separation and divorce. Specifically, she noted that issues such as Parental Alienation Syndrome and false allegations of sexual abuse are difficulties that non-custodial parents encounter. As a result the Committee will set out to:

assess the need for a more child-centred approach to family law policies and practices that would emphasize joint parental responsibilities and child-focused parenting arrangements based on children’s needs and best interests; (Senate Debates, p. 257)

The Committee will be examining issues related to custody and access to children after divorce and separation. Mental health professionals will likely be sources of information for this Committee, and Parental Alienation Syndrome will likely be a relevant issue to be examined. Consequently, mental health professionals need to examine PAS further in order to provide both pertinent information to the Committee and more importantly help for the families of PAS.

References

Arditti, J. A. (1992). Factors related to custody, visitation, and child support for divorced fathers: An exploratory analysis. Journal of Divorce and Remarriage, 17(3-4), 23-42.

BILL-C41, Chapter 1, Statutes of Canada (1997).

Calabrese, R. M., Miller, J. W., and Dooley, B. (1987). The identification of alienated parents and children: Implications for school psychologists. Psychology in the Schools, 24, 145-150.

Cartwright, G. F. (1993). Expanding the parameters of parental alienation syndrome. The American Journal of Family Therapy, 21(3), 205-215.

Child custody and access reform: Special joint committee established, Senate of Canada, Senate Debates, 1997.

Clawar, S. S., and Rivlin, B. V. (1991). Children Held Hostage: Dealing with Programmed and Brainwashed Children. Chicago: American Bar Association.

Demo, A. H. and Acock, A. C. (1988). The impact of divorce on children, Journal of Marriage and the Family, 50, 619-648.

Department of Justice Canada (1993). Custody and access: Public discussion. Canada, Ministry of Supply and Services Canada.

Dunne, J., and Hedrick, M. (1994). The parental alienation syndrome: An analysis of sixteen cases. Journal of Divorce and Remarriage, 21(3/4), 21-38.

Gardner, R. A. (1991). Psychotherapeutic and legal approaches to the three types of parental alienation syndrome families. In Family evaluation in child custody mediation, arbitration, and litigation. Cresskill, NJ: Creative Therapeutics.

Gardner, R. A. (1992). The Parental Alienation Syndrome: A Guide for Mental Health and Legal Professionals. Cresskill, NJ: Creative Therapeutics.

Girdner, L. K. (1985). Strategies of conflict: Custody litigation in the United States. Journal of Divorce and Remarriage, 9(1), 1-15.

Goldwater, A. (1991). Le syndrome d’alienation parentale[in English]. In Developments en droits familial (pp. 121-145) Cowansville, Quebec: Les Edition Yvons Blais.

Hoffman, M. L. (1971). Father absence and conscience development. Developmental Psychology, 4, 400-406.

Johnston, J.R., Gonzalez, R., and Campbell, L.E.G. (1987). Ongoing postdivorce conflict and child disturbance. Journal of Abnormal Psychology, 15(4), 493-509.

Kressel, K. (1985). The process of divorce. New York: Basic Books.

Kurdek, L. A. (1981). An integrative perspective on children’s divorce adjustment. American Psychologist, 36(8), 856-866.

Lund, M. (1995). A therapist’s view of parental alienation syndrome. Family and Conciliation Courts Review, 33(3), 308-316.

Palmer, N. K. (1988). Legal recognition of parental alienation syndrome. The American Journal of Family Therapy, 16(4), 360-363.

Slater, E. J., and Haber, J. D., (1984). Adolescent adjustment following divorce as a function of familial conflict. Journal of Consulting and Clinical Psychology, 52(5), 920-921.

Rand, D.C. (1997). The spectrum of parental alienation syndrome: Part I. American Journal of Forensic Psychology, 15(3), 23-52.

Turkat, I.D. (1994). Child visitation interference in divorce. Clinical Psychology Review, 14, 737-742.

Woolfolk, A. E. (1998). Educational psychology: Seventh edition (pp. 96). Toronto: Allyn and Bacon.

Yin, R. K. (1984). Case study research, designs and methods. Beverly Hills.

APPENDIX A

LETTERS TO PARTICIPANTS

PARENTAL ALIENATION STUDY

If you or someone you know has experienced Parental Alienation Syndrome (PAS) and are willing to participate in a study, please contact Despina at (514)-840-1159 or via e-mail at dvassi@PO-BOX.Mcgill.Ca.

*PAS is defined as a syndrome where one parent (usually the custodial parent) attempts to alienate the child or children from another parent. It includes a series of conscious and subconscious techniques, such as brainwashing, by the alienating parent, as well as the child or children’s own contributions for denigrating the allegedly hated parent (Cartwright, 1993, Gardner, 1992).

APPENDIX B

CONSENT FORMS

Note: All consent forms will be kept by the researcher (Despina Vassiliou) until the completion and acceptance of her thesis and graduation. After that time, the consent forms will be destroyed.

Consent Form
McGill University Research Project

The Effects of Parental Alienation Syndrome on Individual Family Members

Dear Sir/Madam,

We are presently conducting research that will examine the development of Parental Alienation Syndrome (PAS)* within the family unit. More specifically, we are interested in examining each of the family member’s role in the alienation process. Participants will be asked a series of questions pertaining to the alienating relationships within the family unit. The questions are straightforward and will take approximately one hour to discuss and will be tape recorded. Your responses will be kept completely confidential and anonymous. You are not under any obligation to participate, and you may choose to discontinue the study at any point. If you agree to participate in this research project, please sign the form below.

We greatly appreciate your consideration of this project. We would be delighted to provide more background information and answer any questions you might have. For more information, please do not hesitate to contact us. Thank you.

Sincerely,

Despina Vassiliou
MA student, School Psychology
McGill University
514-398-4257

Glenn F. Cartwright, Ph.D.
Associate Professor, Educational Psychology
McGill University
514-398-4240

I, ________________________, agree to participate in the McGill PAS study.
(Please print your name in full)

Participant’s Signature

Date

APPENDIX C

INTERVIEW QUESTIONNAIRES

Interview Questions

Current Status:
1. Describe to me your current family constellation?
· How many children do you have?
· Are they currently living with you?
· If no, how often do you get to see them if at all?
· Have you remarried?
2. Describe your current relationship with your ex-spouse.

Beginning of the Marital Dissolution:

3. When did the conflicts that lead to the dissolution of your marriage begin?
4. Did you see a common theme or issue in the conflicts?
5. How long did these conflicts before divorce became an option?
6. Who initiated the divorce and on what grounds?

Initiating and Proceedings of the Custody Case(s):
7. Describe the events that lead up to the custody proceedings?
8. How long was each of the legal cases (custody and divorce)?
9. Do you remember an occasion during the custody proceedings that lead to the delay of the case?
If yes,
· What effects did the delay have on the case?
· What effects did the delay have on your children and your relationship with them?

Contributions to P.A.S.:
10. Tell me some factors that contributed to the alienation in your case?
11. Do you believe that you had any role or make any contributions to the alienating situation?
12. What were your children’s role in the alienation? Describe some of their behaviours.
· Describe some of your behaviours or actions that contributed to the alienation?
13. Tell me about the effects of the alienation on your relationship with your children?
14. Describe for me your relationship with your children today?
15. Do you remember an occasion when other individuals contributed to the alienation? (How?)

Cause and Possible Termination of P.A.S.:
16. For how long did the alienation occur (in months)?
17. What do you believe was the underlying cause of the alienation?
18. How do you feel about the alienation now?
19. Has the alienation ceased? In your opinion, why is this so?
If the alienation has ceased:
· How long has it been since you have been removed from the alienated situation?
· Can you tell me about the circumstances that have made it possible for the alienation to have been terminated?
If the alienation has not ceased:
· Do you believe that there is a possibility of a reconciliation?
· If yes, what do you believe would make a reconciliation possible?

Looking Back:
20. When and how did you realize the implications of what was occurring, with regard to the alienation?
21. What do you feel is the impact of this whole experience on your life?
22. Had you or any of your family members sought out services for emotional assistance?
If yes,
· Who? And for what reasons?
· What was the outcome? (Were there any diagnoses made? Were you taking any medication?)
If not,
· How did you or they cope with the situation on your/their own?
23. How do you view the experience now as compared to how you viewed it then (while you were experiencing it)?
24. Has your opinion changed over time? How much time? How did it change?
25. Is there anything else that you would like to change or do over again?

APPENDIX D

SAMPLE PAGE OF TRANSCRIPT

APPENDIX E

CERTIFICATE OF ETHICAL RESPONSIBILITY

The original article can be found here: http://www.fact.on.ca/Info/pas/vassil98.htm#CHAPTER%205