Assessing Social Science Research
Jeffrey L. Edleson, PhD
University of Minnesota
Dr Edleson examined four aspects of the research used in creating the studies such as those found in this report. His examination does not make an analysis of the information collected but instead assesses the methodology in which the data was collected.
What is the study about?
Divorce literature often varies on whether it is the divorce itself or parental conflict that is impacting child emotional health. Although battered mother’s mental health affects the children's mental health the intervening variable of father’s violence is often missing in studies.
How was the study conducted?
Dr Edleson asks participants to examine who was studied such as all families, high conflict, joint custody or sole custody. Where they were found is also an important element. If the study subjects were found through courts, family services or from the community could impact the results of the study.
How the subjects were selected, be it randomly or through other means, can affect the results. He noted that it is important to know how representative of the general population they are. He cautioned that different sources lead to different outcomes.
What research design was used can affect the results. Dr Edleson questioned whether the design of the study aimed to rule out other factors that may have actually caused the changes seen. Is there random assignment to differing conditions, comparisons or other controls? It is important to have controls to rule out other possible explanations.
How did participants provide information on measures by supplying records, answering questionnaires or participating in interviews by phone or in person. There should be room for unintended consequences in the study mechanisms.
What was found?
Dr Edleson first notes the importance of how the data were analyzed. Whether such things as an attempt by the authors to create a control for multiple factors was made or are there variations present in the study must be considered. For example, Joan Kelly (2007) argues that there is a continuum of need for child visitation arrangements.
Great variation among child experiences was noted. One area studied was DV research where differences within the group were noted. On average children exposed to DV showed more problems than those not exposed. However, within the exposed group, many children showed no greater problems than comparison children up to 50% in some samples. Clearly there should be a varied approach.
What do the results mean?
What the authors conclude as well as does the data support their conclusions must be examined. Within that it should be questioned whether there were alternative explanations to their conclusions and did the authors consider these alternatives.
Dr Edelson concludes by cautioning that no one study is definitive. That a valid study must be based on a representative sample and be capable of being replicated to be generalized. Finally, two stressed cautions; BE CAUTIOUS WITH CAUSAL CLAIMS (Ramsey & Kelly, 2006) and DO NOT EXPECT BLACK LETTER TRUTH FROM SOCIAL SCIENCE (Ramsey & Kelly, 2006)
Saturday, February 28, 2009
Assessing Social Science Research
Thursday, February 26, 2009
Judge Rebecca McClure has ruled that the trial of Elizabeth Fairfield, who has been charged with murder in the accidental poisoning of her daughter Brittany, will not start on March 31 as originally scheduled. The trial is now scheduled to start on May 4 2009 at 9:00a.m.after Boone County Prosecutor Todd Meyer sought to have the trial rescheduled to a later date.
Fairfield was offered a plea agreement that would have allowed her to go home and serve two years of house arrest but refused the offer, citing her innocence. Meyer's theory is that Fairfield intentionally poisoned her daughter, took her to the hospital to get a mis-diagnosis and then allowed her to die so a wrongful death suit could be filed against the hospital. However, since the June 2007 death no suit has been filed against the hospital or doctors involved.
Dr. Thomas Heniff, from Lafayette Medical, who treated Brittany at Witham Hospital the night of her death, testified at a bail hearing that she must have been poisoned after leaving the hospital because he made a correct diagnosis that her symptoms of poisoning was croup. Dr Czaja, the examiner who performed the autopsy on Brittany made the determination that she died from an overdose of Tramidol. Michal Evans, of AIT Laboratories in Indianapolis, told the police that Brittany must have ingested up to 100 pills but later back-peddled in testifying that it was as few as 35 pills. Evans determination was based upon the testing of blood which was later destroyed and not made available to the defense for collateral testing.
The defense team representing Fairfield intends to file a Motion to Suppress the blood evidence based upon the improper procedures used in the testing and the fact that the State had the remaining blood evidence destroyed instead of providing it to the defense as should have been done and is customary in criminal proceedings. McClure will be obligated to suppress the blood evidence as the defense has met the two conditions necessary for suppression of this type of purported evidence.
During the Bail hearing each of the approximately 30 witnesses who appeared for the State of Indiana testified that they had no evidence that Fairfield had committed murder. Police officers from the Lebanon Police Department have told Indiana Custodial Rights Advocates that Fairfield is innocent and Meyer has made up the entire story. Along with the evidence problems it is becoming clearer as this case goes on that it is true that Meyer is simply abusing the power granted to him as a prosecutor.
In 2005 Meyer falsely accused John Dixon of setting a building on fire where evidence of corruption by Meyer and former judge Steve David was kept. Two days earlier David had canceled the trial in which the evidence was going to be exposed after Meyer became aware of the plan. Dixon was held in jail for 52 days before being released and ultimately exonerated by a Grand Jury.
Meyer is again using his legal authority and delay tactics to try to impose a jail sentence upon someone who will ultimately be exonerated. The defense team representing Fairfield, led by Tom Farlow, will be presenting their evidence which supports the Motion to Dismiss to Judge Rebecca McClure at a hearing scheduled for Monday March 2 at 3:00pm in Boone Superior Court II. McClure, who is well known for her prejudicial rulings and violations of law, is going to rule that there is substantial preliminary evidence to support a conviction of murder and the Motion to Dismiss is denied.
Brittany's father, Paul Fairfield, stated, "I am extremely disappointed that Judge McClure would allow Todd to move the trial date so he could go on vacation. An innocent mother sits in jail another month when her family needs her. We are a family that depends on one another. We have been married 22 years and we feel the pain of separation exceptionally hard. " Todd Meyer did not respond to a request for comment made by Indiana Custodial Rights Advocates.
For more information visit www.InCRA.info
When I use the term Organic Web page I am not speaking of one where you will find fruits and vegetables. Instead, what I am referring to is a site where you own the name and control the content. Sure you can have your own page on a social networking site, and it is good to continue to do that, but if you are a social activist you need to have your own page. You also need to know that it will cost much less and is much easier to do than you may think. Hey mister, gotta dime? If you can spare 10 cents per day then read on.
It is important to have your own page for three very good reasons. First, the site that hosts your page may close down and you will be left without any page to display to the world. Next, you do not control the format of your Web page. Many pages start out with your profile and messages from other people. If you are wanting to spread the word about your cause then your Web page needs to scream that from the top. Finally, ask yourself if you would rather have a free Web page or a page that pays money to you.
We are in difficult economic times. Businesses are cutting back on hours, inventory, employees and advertising. The last is the one that is relevant to your Web page. If you have a free Web page on a social networking or other site look around at it for a moment. Do you see Google ads, banner ads or did you get a pop-up from NetFlix? The reason you get a free Web page is because these advertisers pay for it. What happens to the host of your site when the advertising stops; they stop hosting the site.
If you have a social cause you are promoting and are active in, then you must have a Web site for that. Most of you reading this are involved in some type of activism for changing family court laws. Getting more Web sites out there will help to accomplish this. When you create a site and then link to and have others link to you then both sites get raised in the search results.
You can get your own site for under 10 cents per day. Better yet, you can get paid to have a site. Have you ever clicked on one of those Google ads that appear around the borders of Web pages? The advertisers pay each time someone does that. It may be three cents or it could be a dollar. It all depends upon the popularity of and the relevance of the content on your site. Right now you may be putting content onto a free blog or Web page and those providers are collecting your pennies or dollars.
It is time to get your own Web site. Go to this page and read more about it. Use the search terms provided on those pages and you will get linked to services that, when last tested, provided links to Web page hosting for as little as $1 per month and domain name registration for only $2.
If you have used a word processing program to make a flyer, write a newsletter of design a greeting card then you have done what it takes to design a website. Social networking sites have templates that you can use to add your content. If you've done that then you can build your own Web site. Many providers also offer templates and if you are up to the limited challenge they also offer the tools that were used to make the template.
Once you get your page up and running send a link to me. You will be added to the Indiana Custodial Rights Advocates Web site and then you can add our banner to yours. So, don't delay. Get your own Web site, get it built and let's get working together to bring about much needed change.
Survey of States
The following is information taken directly from the Report.
No state (nor D.C.) has a presumption of equal physical custody. As set out below, eight states and the District of Columbia have a presumption in favor of joint custody (i.e. legal custody). This includes Minnesota. Another three states have laws that require courts to “consider” joint custody in making an award of custody. Nine states require the parties to agree on joint custody before a presumption applies. Of the remaining states, 26 have a best interest of the child standard for determining custody and five have neither a presumption, nor a best interest standard. Twenty-two States have presumptions against joint custody where there is a history of domestic violence, child abuse, sexual abuse, and/or where a parent has been convicted of certain crimes. Another 18 states require courts to consider evidence of domestic violence, child abuse, etc. as part of the “best interest” analysis. At least four states have laws that give a parent that has the child less than half the time a presumptive amount of time with the child: Delaware (standard visitation order), Minnesota (25% presumption of parenting time), Oklahoma (standard visitation order) and Texas (standard possession order).
States with a statutory “joint custody” presumption
Florida* 61.13(c) 1 The court shall determine all matters related to parenting and time-sharing of each minor child in accordance with the best interests of the child…2. The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child (2b of this same law says the court shall order sole parental responsibility for a minor child to one parent, with or without time-sharing with the other parent when it is in the best interests of the child)
Idaho 32-717B(4) presumption that joint custody is in the best interest of the child (definition of joint custody says the court may award either joint physical or joint legal or both)
Louisiana* Section 3, Article 131 the court shall award custody in accordance with the best
interests of the child. Article 132 In the absence of an agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly. (Joint custody is where an order allocates time periods each parent will have physical custody of the child, there may be a domiciliary parent with whom the child shall primarily reside – that parent also makes all decisions affecting the child.)
Minnesota* 518.17, subd. 2 the court shall use a rebuttable presumption that upon the request of either or both parents joint legal custody is in the best interests of the child (Presumption of 25% parenting time.)
New Mexico* 40-4-9.1 presumption that joint custody is in the best interest of the child in an
initial custody determination (an award of joint custody means that each parent shall have
significant, well-defined periods of responsibility for the child. Joint custody does not imply an
equal division of the child’s time between the parents or an equal division of financial
responsibility for the child.)
1. In determining custody the sole consideration is the best interest of the child.
3. The court shall award custody in the following order of preference (unless best interests
require otherwise) (a) to both of the parents jointly pursuant to 125.490 or to either parent
125.490 – presumption if parents agree to joint custody (where parents have agreed to joint legal custody the court can award joint legal custody without awarding joint physical custody.)
Texas* §153.131 (b) rebuttable presumption that the appointment of the parents of the child as joint managing conservators is in the best interest of the child. (§153.135 says Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child…) Standard provisions for possessory conservatorship.
Wisconsin* 767.41 the court shall presume that joint legal custody is in the best interest of the child
Washington D.C. rebuttable presumption that joint custody is in the child’s best interest (joint
custody is not defined, looks like it could be joint legal only)
States that require the court to consider joint custody
Alabama* Section 30-3-152 requires court to consider joint custody in every case, but may
award any form of custody in the child’s best interest (joint custody not defined, specifically says joint physical is not necessarily equal durations of time)
Iowa* Section 598-41 On the application of either parent, the court shall consider granting
joint custody. If the court does not grant joint custody, the court shall cite clear and convincing
evidence that joint custody is unreasonable (joint custody is defined as joint legal custody)
Missouri* Section 452.375
1. Joint Custody awards each parent significant, but not necessarily equal time
2. The court shall determine custody in accordance with the best interests of the child
5. Prior to awarding the appropriate custody arrangement in the best interest of the child, the
court shall consider the following as follows: (1) Joint physical and joint legal custody; (2) Joint physical with one party granted sole legal custody; (3) Joint legal custody with one party
granted sole physical custody; (4) sole custody to either parent or (5) third-party custody.
States with a statutory presumption of joint custody (if parents agree)
California* Section 3080 presumption – if parents agree to joint custody, it is presumed to be in the best interest of the child (joint custody is not defined, sounds like it could be joint legal only)
Connecticut Chapter 815j 46b-56a same presumption as California (says joint custody means awarding joint legal custody to both parents and providing the physical custody be shared in a way that assures the child continuing contact with both parents)
Maine Section 1653 2 A presumption that when parents have agreed to shared parental rights and responsibilities the court shall make that award unless there is substantial evidence that it should not be ordered.
Michigan* Section 722.26a (2) “If the parents agree on joint custody, the court shall award joint custody unless the court determines…that joint custody is not in the best interests of the child.”
(1) “…At the request of either parent, the court shall consider an award of joint custody and shall state on the record the reasons for granting or denying a request.” (7) “Joint custody” means an order of the court in which 1 or both of the following is specified: (a) That the child shall reside alternately for specific periods with each of the parents (b) That the parents shall share decision making authority as to the important decisions affecting the welfare of the child.”
Mississippi Section 95-3-24(4) presumption applies when both parties have agreed to joint
custody (joint custody means joint legal and joint physical custody – joint physical custody
means that each parent will have significant periods of physical custody)
New Hampshire* 461-A:5 presumption that joint decision-making responsibility (i.e. legal
custody) is in the best interest of the child where the parents agree to it SCAO - Joint Physical Custody Study Group September 22, 2008 Page 4
Oregon* 107.169 subd. 4 When parents have agreed to joint custody in an order or judgment, the court may not overrule that agreement by ordering sole custody to one parent. Subd. 3 (immediately preceding the language above) says “The court shall not order joint custody, unless both parents agree to the terms and conditions of the order.”
Tennessee 36-6-101(2)(A) presumption where parents have agreed to joint custody, otherwise specifically states that neither a preference nor a presumption for or against joint legal, joint physical or sole custody is established.
Vermont* Section 666 presumption – any agreement between the parents which divides or
shares parental responsibilities shall be presumed to be in the best interests of the child.
States with a “best interest of the child” standard*
*Some of the states listed above also use a best interest standard – where there is no agreement, or as a basis for deciding whether joint custody is appropriate. They are marked with an asterisk
Delaware (Standard visitation order)
Oklahoma (standard visitation order)
States that did not have a presumption or a best interest standard
Representative F Dale Grubb introduced a bill this year that would provide for more accurate, timely and less costly payments of child support. The synopsis of the bill is as follows:
Child support payments. Provides that a court may permit child support payments to be made directly to the person entitled to receive payments if the court finds that the person entitled to receive payments and the payor agree that support payments should be made directly to the person entitled to receive payments. Prohibits the clerk of the circuit court or the state central collection unit from charging any fees for any services concerning child support. Makes a technical correction.
The significant portion of this bill is an amendment to I.C. 31-16-9-1 which is shown below.
(d) The court may permit child support payments to be madedirectly to the person entitled to receive child support payments if the court finds that the:
(1) person entitled to receive payments; and
agree that support payments should be made directly to the personentitled to receive payments.
(e) If the court permits child support payments to be madedirectly to the person entitled to receive payments under subsection (d), neither the person paying the payments nor the person entitledto receive payments may be charged any fee by the clerk of the circuit court or the state central collection unit for any servicesconcerning child support.
(f) If the court permits child support payments to be madedirectly to the person entitled to receive child support payments under subsection (d), the:
(1) person entitled to receive payments; or
may petition the court to order the payor to make child supportpayments through the clerk of the circuit court or the state centralcollection unit.
This amendment would allow for parents, by agreement, to have child support payments made directly between the parties. Considering the speed and accuracy by which the state central collection unit handles support payments this could be a big benefit. Members of our organization regularly refuse to pay the annual state child support administration fee. The bill would allow the parties to not pay that fee and instead the money could be used for their family instead of lining the pockets of government bureaucrats.
Expect intense opposition to this bill from the judges and prosecutors who receive incentive payments from the Social Security Administration. Without the state being involved in the collection of support payments the judges and prosecutors will not longer receive their incentive payments.
During a time when many people are losing their jobs and incomes are falling everyone needs a break from having to pay more money to the government.
I have posted each of the Groups six recommendations in their entirety with my commentary following. The Group states that the recommendations are not comprehensive and they do not represent the unanimous opinion of all Study Group members.
1. We recommend that the Minnesota Legislature fund the collection and integration of data over several years, either statewide or in several representative counties, that can identify basic demographic information (including whether the parties were divorced, never married or are third party custodians), the current ordering of sole physical custody with the mother, sole physical custody with the father, joint physical custody, the percentage parenting time awarded to both parents, the award of child support, and the use of agreed upon parenting time plans. This information would be gathered at the conclusion of each paternity, marriage dissolution or post decree proceeding through the filing of a form by the parties or their attorneys. It is hoped that much of this data collection and integration could be done by interested volunteers.
With presumption being nothing more than a procedure for due process I find it very interesting that the Group would want to have studying done on the outcomes of the proceedings. It is really quite irrelevant what the ultimate outcome of a proceeding is to the due process requirement. Put another way, if a study determined that more females who were accused of shoplifting were found guilty would it be appropriate to consider that when deciding if shoplifting defendants have the right to a speedy trial? Absolutely not. Due process requirements are specifically tailored to address the process not a desired outcome. The Group has shown that it has an obvious desire to affect the outcomes by continuing a discriminatory process.
2. We recommend that any statutory changes enacted by the Minnesota Legislature affecting the custody or parenting of minor children increasingly promote and allow for the cooperative agreements between the parties.
I applaud efforts that seek to have parents cooperating in the rearing of their children. Children can sense the animosity and friction between parents which is not good for them. In this situation I suspect that the recommendation is that the status quo remain in effect. This, as used, has been the basis of denying fathers custody of their children based upon disagreement between the parents regardless of who is the unreasonable one.
3. We recommend that any statutory changes enacted by the Minnesota Legislature affecting the custody or parenting of minor children continue to provide the ability for the court to consider the individual needs of children and families, including the child’s support system of extended family members, friends, and community.
Well even in the so-called $800 billion stimulus plan I am sure I could find $10 billion that will actually go towards benefiting ordinary citizens. Here I have found the recommendation that I agree with. Due process provisions should only relate to the process and should not attempt to predict or affect the outcome. This is the problem I have with things like three strikes laws or mandatory minimums; thy take discretion away from judges to consider the evidence and make a decision.
4. We recommend that any statutory changes enacted by the Minnesota Legislature affecting the custody or parenting of minor children consider the essential importance of the safety of children and parents.
This is a great recommendation. As I go on I find more that I like here. That is upon first impression though. In carefully reading this recommendation it becomes apparent that the Group simply euphonized the description for using Domestic Violence allegations as a factor. Within that I would like to see two recommendations that we have discussed in committee in Indiana; that a petition for a Domestic Violence protection order be completed with the assistance of a victims advocate from the prosecutor's office, and; that criminal penalties be imposed for providing false information on the petition. Additionally, a specific consideration I want to see in custody proceedings is an evaluation of the parents' mental stability. In Indiana the mental health of the parents is already to be considered during custody proceedings. However, evaluations are rarely ordered.
5. We recommend amending current statutes to make it clear that current law provides no presumption for or against joint physical custody, except in cases of domestic abuse, in which case there would be a rebuttable presumption against joint physical custody.
As in Indiana, numerous states have a statutory provision that provides that there is no presumption favoring either parent. However, this is overcome by the prejudices and practices of the unchecked judiciary. A meaningful presumption must require specific findings and conclusions to justify any deviation from the presumption. Both parents should enter the courtroom considered equal partners in raising a child. Then the details can be worked out from there. Any condition, be it Domestic Violence or excessive parking tickets, negates a presumption and thus, there is no presumption.
6. We recommend that, if the Legislature chooses to enact a presumption of joint physical custody, it include a clear definition of the term and how it relates to a determination of parenting time.
You can't nail it anymore than this. A presumption of joint physical custody should be clearly defined as an equal amount of time with each parent. Both parents begin the proceeding entitled to an equal share of time with the child.
I can see that I am gifted in a way that few are but it has long not been obvious to me. From a very young age I was told that my reading comprehension problem was effort based, not dyslexia. So, it was implanted in my mind by parents and teachers that I didn't understand what I read because I was lazy. Applying that principle universally I saw people who were not good at mathematics, physics or any other of the natural studies as being lazy.
As part of the course, Strategies for Success, weekly video presentations on success behaviours were to be viewed as part of the study materials. There was not one thing that was content based in the Tice video series that I gained great insight from, but, rather, it was my observations of the participants demeanor, statements and questions or body language overall that I learned from. These were people who were engaged in active participation based, presumably, on a voluntary effort to be there and do so. The laziness variable could not be wholly applied to this group of students in that situation. Yet, there did appear to be the absence of an understanding of the subject matter that, to me, is innate.
One example is belief structure. To me it has always been obvious that if you will something it shall be. Those who climb a tree and say "oh, I'm going to fall" will. I hop from limb to limb saying, "I won't fall. I have an inner ear capable of producing impulses to my brain that will help me maintain balance and the synapses in my brain can fire so rapidly that if my foot misses a branch my body will instantly know it and make adjustments to keep me from falling". I always thought people chose to have catastrophe strike them because they like the attention from playing victim.
Through experience and, I suppose, some innate preconceptions I believe I have always had a critical thinking mindset that is reflective of the Paul-Elder Model. If there is one element that I feel may not have been fully integrated into my pattern that would be fairness. I can be empathetic with others and do not believe I would be dedicating my life to the work I do unless I was. However, I also strongly believe in survival of the fittest. Fair is a place with toothless carnies, greasy food and stinky animals. I do not consider it my place to advocate for the viewpoint of others whom I may oppose. However, I often do this during trial preparation. I attack my client from the viewpoint of opposing counsel. On some levels I suppose I practice this subconsciously. It may be rightfully stated then that in analyzing an issue I will make a concerted effort to include the viewpoint of others.
As I start classes now, for the first time in 20+ years, my approach to school work and school in general has changed little but I am detecting a degree of acceptance. The rebel in me will certainly fight to overcome this!! The reason I sought to pursue a degree on-line was purely based upon logistics. I do not have a set sleep schedule, work schedule or anything else that could be considered routine. I could decide to take a trip to Florida tonight and be on the road in the morning without consequence. So, requiring me to meet a daily schedule would be certain failure.
I started out thinking school is all a waste of time and I am not going to do anything I don't want to. This on-line forum is very unlike the compulsorily attended institutions of my youth. Although the modeling and social agenda of managed education are still apparent I do find a more pleasing atmosphere in that I can do as I wish without direct consequence. Now I find myself more willing to do an assignment because it is time that I can use to relax, not because I am being forced to.
I think that I will find that my overall on-line educational experience is going to improve as a result of taking the Strategies for Success class, but not that class, per se. That is to say that having the experience of this class, my first on-line course, has acclimated me to the process. Although I am not comfortable with the navigation or functionality of the website I am learning to adapt to it. I am confident that future classes will have formulated tests, such as those using numbered problems and multiple choice answers. This class didn't provide that opportunity but did address issues faced by some when taking tests. Many of those suggestions affirmed what I already do which leaves me confident that I will have successes in those areas.
At my age and level of experience there is little one can do to teach this old dog new tricks. So, the most important thing I learned from this course is not reflective of any particular lesson but more an overall observation. That is if I want to subject myself to meeting the expectations of a system designed around an artificial structure of what defines success and accomplishment then I can easily do that. It will not be so much of a struggle for me to complete the task because, ultimately, I am just doing this for kicks. The result of pursuing my law degree will not affect who I am as a person or my success.
I can see the much larger picture and am immune to the marketing forces and other outside influences that define success. Success was achieved during the past three days as my son enjoyed each moment that we spent together without a care in the world but doing what we felt like doing. In thinking back on this class there are strategies that can be used in applying teaching to my child which will ensure that we will continue to enjoy each moment we spend together.
WILKES-BARRE, Pa - In what many see as a shocking aberration, two Pennsylvania judges are accused of judicial corruption by taking millions of dollars in kickbacks for abusing children. The judges, Mark Ciavarella and Michael Conahan are alleged to have taken $2.6 million in payoffs to fill two juvenile detention centers, run by PA Child Care LLC and a sister company, Western PA Child Care LLC, with area children.
The judges were charged on January 26 and removed from the bench by the Pennsylvania Supreme Court shortly afterward. Many juveniles were made to appear without lawyers, despite the U.S. Supreme Court’s landmark 1967 ruling that children have a constitutional right to counsel, during hearings that lasted only a minute or two, and then sent off to juvenile prison for months for minor offenses.
“I’ve never encountered, and I don’t think that we will in our lifetimes, a case where literally thousands of kids’ lives were just tossed aside in order for a couple of judges to make some money,” said Marsha Levick, an attorney with the Philadelphia-based Juvenile Law Center, which is representing hundreds of youths sentenced in Wilkes-Barre.
Among the offenders was a teenager who was locked up for months for writing a prank note. Many of the incarcerated children had never been in trouble before. Some were imprisoned even after probation officers recommended against it. Now it is the judges who will be imprisoned. Pursuant to a plea agreement entered into on January 13, both judges could serve 87 months in federal prison and will resign from the bench and bar. Lawyers for both men declined to comment.
According to MSNBC, Ciavarella, 58, who presided over Luzerne County’s juvenile court for 12 years, acknowledged last week in a letter to his former colleagues, “I have disgraced my judgeship. My actions have destroyed everything I worked to accomplish and I have only myself to blame.”
Many Pennsylvania counties contract with privately run juvenile detention centers, paying them either a fixed overall fee or a certain amount per youth, per day. In Luzerne County, prosecutors say, Conahan shut down the county-run juvenile prison in 2002 and helped the two companies secure rich contracts worth tens of millions of dollars, at least some of that dependent on how many juveniles were locked up.
For years, youth advocacy groups complained that Ciavarella was ridiculously harsh and ran roughshod over youngsters’ constitutional rights. Ciavarella sent a quarter of his juvenile defendants to detention centers from 2002 to 2006, compared with a statewide rate of 10 percent.
I have long complained that the proliferation of privately run prisons would be subject to possible corruption in incarceration for kickback schemes. It now appears that what was obvious from the outset of creating for-profit incarcerations, that those who held the keys to filling those privately run facilities with taxpayer funded customers would be involved in a compensation plan.
In 2004 I started an investigation of cash payoffs to judges in Boone County Indiana to fix cases. A few months later I was falsely accused of a crime and jailed in a scheme involving the Boone County Prosecutor Todd Meyer and Boone County Juvenile Court Judge Steve David. I had flyers distributed throughout the county inviting the public to come see the corruption involving Meyer and David exposed at my trial. Upon receiving one on August 17, 2005, according to courthouse personnel, David became enraged and canceled my trial.
Two days later the building where some of the evidence of corruption was held, which was located on the courthouse square, was burnt to the ground in an arson fire. Though I repeatedly sought to have a jury trial in which I could present the evidence of corruption David would not allow it. Multiple courthouse players who had been subpoenaed to testify sought to have their subpoenas quashed stating that their testimony would "embarrass" them. Judge David eventually denied my final plea, a motion to reinstate the felony charge against me, keeping he and his co-conspirators from being exposed during the defense portion of a criminal trial.
Judge David's connection to sending juveniles to a privately run detention facility was captured on some of the audio tapes kept in the building that was burnt to the ground. Fortunately they were recovered by someone who crossed a police line and preserved them before the building was razed.
The tapes reveal former Western Boone High School Assistant Principal Jerry Taylor discussing a scheme in which he has Judge David send students to a lock-up facility in Muncie, Indiana, the Henry County Youth Center [HCYC], for "special punishment". Taylor, who was secretly recorded by an associate of mine, also admitted to a sexual battery and lustfully discussed coaching girls on the high school tennis team.
Prosecutor Meyer, with the tapes in his possession and a signed complaint from the victim, refused to charge Taylor. Taylor abruptly resigned in May 2005 and left the county. Five weeks after the August 2005 arson fire Judge David issued a No Contact Order against a Western Boone High School female student, who lived in Thorntown and was age 15 at the time, barring her from providing any information to me. She had alleged to me after her detention at the Boone County Jail that she had been molested.
When I filed a public records request seeking access to the records related to the September 2005 detention of the girl at the Boone County Jail I found myself under attack by Judge David and the Prosecutor's Office. Juvenile prosecutor Bruce Petit asked David to order that I could not use the Indiana Access to Public Records Act. I then filed a lawsuit to compel disclosure of the records. Judge David dismissed the suit and ordered me to pay $4,000 which I have never done. In February 2006 Judge David, Todd Meyer and Donna Hankins, a probation officer whose son is the Town Marshal where I live, Thorntown, schemed to have me falsely charged with a crime and jailed again.
In September 2007, the day before I was to have a hearing in his court, Judge David left Boone County and has not returned. He was supposedly going to be gone less than a year to work as a JAG for the Guantanamo detainees. He now works in private practice in Washington, D.C.
Boone Superior Court II Judge Rebecca McClure has now continued the scheme. In September 2006 I was accused of violating a Thorntown ordinance prohibiting unapproved political signs. This was after I placed a sign in the window of my home that asked people to guess who was involved in a child molestation ring. Town Council President Gary Jones demanded that the sign be removed. His son, Caleb, currently faces a battery charge for cutting his mother with a knife during a fit of rage after she would not let him shower with one of his younger sisters.
In a public access moment of deja vu Judge McClure, in violation of Indiana law, had ordered me not to use Indiana Access to Public Records Act when I was seeking records of complaints made against the officer who had taken the young girl to the Boone County Jail. Numerous women had publicly declared that he had stalked or observed them. He was previously ordered by the Town Council to stay away from the home of my female neighbor. McClure has also ordered my to pay a hefty fine for seeking public disclosure of child molesters. This time amounting to about $25,000.
A worker at the Indiana United Methodists Children's Home in Lebanon, Indiana, where the Thorntown girl was once held, was convicted last year of sexual misconduct for having a sexual relationship with a girl, age 15, there. I had also received complaints back to 2006 that there were molestations occurring there. McClure, who lives just a few blocks from IUMCH, was never directly implicated in the molestations. However, her insistence that this issue may not be raised publicly and her attempts to silence those who want it investigated clearly reveals that she must be involved.
Fiscal Impact of Adopting a Joint Physical Child Custody Presumption
Today's presentation brings us to what will be the most relevant consideration to whether presumptive joint physical custody has any chance of becoming law. Those of us who advocate for and love children will find the answer to what is most relevant to be easily answered; that is, what is best for the children and their parents. When we enter the realm of government policy we will find that what we consider relevant gets pushed far down the ladder and something else will be paramount. Specifically, that issue will become what will be the financial impact. A committee was appointed to compile information concerning potential financial impacts of adopting a joint physical custody presumption.
The committee report was prepared by Melissa Froehle, J.D., Jill Olson, J.D., and James Street, J.D. It specifically addresses fiscal impacts for families, the Department of Human Resources, and Minnesota Courts. There are two very important findings in this section of the report. One is that joint physical custody of children is in their best interest and the other is that it will cost taxpayers more money. Legislators will be faced with making the decision or what is in children's best interest of what will cost taxpayers more money.
The report opens by stating that many of the financial impacts would be lessened if the status quo was maintained, that is, if a presumption of joint physical custody avoids an exact division of parenting time with each parent.
The first scare tactic used was to say that the presumption has the potential of decreasing child support awards to families and children potentially in need. If child support is calculated using a presumption of equal or nearly equal time, both parties are given a significant credit. This credit is based on parenting time they are presumed to be exercising and expenses they are presumed to be incurring while exercising that parenting time, thus reducing the amount of child support paid by the obligor. Although not explicitly stated what this report is saying is that one parent who would have received a high support award will no longer be receiving that and will have to start contributing to paying for the care and support of the children as an equal partner rather than a lottery winner.
In general, the current income shares child support model presumes that regardless of the custodial label, unless the parties have equal time, equal incomes and are sharing expenses equally, there will be an award of child support from one party to the other. The guidelines are applied with the purported goal of getting the same proportion of parental income to the child that he/she would have received if his/her parents lived together. However, as applied, the child support guidelines have never closely sought to achieve hat goal but have instead been used to create a financial windfall for the custodial parent. Opponents of ensuring children their right to access to both parents state that this goal may not be attained and necessary support may not get to children if a presumption of joint custody is created and defined in a manner that is not compatible with the current guidelines. Specifically, they want one parent to still be labeled a NCP and forced to pay support.
A parent who gets more parenting time due to implementation of a presumption of joint physical custody could have increased costs such as food and transportation, while the parent who has less parenting time due to a presumption of joint physical custody could have decreased costs for food and transportation. This would be offset by the NCP paying less in support and the CP having less to pay in expenses. If child support payments truly reflect the cost of providing support to a child then neither parent would notice a difference in their income and expenses applied to supporting the children.
The eligibility for public benefits would need to be adjusted for the parenting time situations in equal joint custody. In general, the benefits system is not set-up to accommodate both parents in low-income families where the parents live apart but each is significantly involved in parenting the child and providing a home for the child. Currently the parent that applies first for public assistance is the eligible parent. The system may need to be changed to where benefits are pro rated to the amount of time a parent has custody. That is, a parent with the child 50% of the time would receive 50% of the eligible food stamps while the other parent would get the other 50% instead of whomever applies first getting 100%. The same could be done for public benefits such as housing, child care and Had Start. Similar adjustments may need to be made for income tax deductions and the Earned Income Tax Credit (EITC). This could easily be accomplished through assignment years such as the mother gets credits on odd numbered years and father gets even numbered years.
The report states that "Increased costs to the Department of Human Services is a major concern" but that the emotional well-being of children is not a major concern. To be eligible for public assistance recipients must assign their right to child support payments to the State which provides the assistance. The State of Minnesota, as Indiana and many other states do, opposes a presumption of equal Shared Parenting. In those instances in which there is a presumption of joint physical custody, that requires the parties to share parenting time equally, the amount of child support ordered in these cases would drop dramatically. Because receipt of child support results in a dollar for dollar offset in public assistance payments, lower child support payments will result in higher assistance payments from the State, and a heavier burden on taxpayers.
The report also indicates that the state would see a reduced rate of public assistance arrears collection owed to the State. When establishing a child support order on behalf of a public assistance recipient, the State, through the County and County Attorney, can also seek reimbursement for periods of time public assistance was furnished by the State for the benefit of a child. The report claims that a parent, not both parents, of a child is liable for the amount of public assistance furnished to and for the benefit of the child, which the parent has the ability to pay, for two years immediately proceeding the commencement of the action.
Under current Minnesota law the Recognition of Parentage does not give any custody or parenting time rights to the father as the rights of the child guaranteed through the United States Constitution require. Therefore, the custodial mother has property rights to the child and becomes sole legal and sole physical custodian until a court orders otherwise. Thus, currently, in such cases, an order is issued and the custodial mother receives a child support award under the guidelines as a sole physical custodian.
However, no such mandate is applied to married parents. Thus, the State , in order to get reimbursed for public funds expended on welfare assistance, seeks to completely separate the child from one or his or her parents so that parent can be ordered to pay the maximum child support allowable which the State can then intercept and keep. The report cautions legislators that if they allow a presumption of equal Shared Parenting then child support orders will be lower and the rate of collection will also be lower as the State’s collection is limited to 20% of a smaller amount. This will presumably result in a cash flow issue for the State.
The report cautions that the courts may face a challenge by the strategy I have developed and have been pushing parents to use as a tool to achieve the rights for their children that they deserve. The Report specifically states that, as is in my plan, the Courts would have an increased burden from unrepresented parties who may dispute custody if a presumption is enacted. With significant numbers of unrepresented parents and decreasing court resources available to help set a parenting time schedule, the judge may need to step in and use hearing time to assist the parties in presenting evidence or testimony to accomplish a schedule. As a result, an increase of custody cases in district court, coupled with significant numbers of unrepresented parties and decreasing court resources, could result in increased costs to the court system.
This is a very important observation and admission in the Report. I am currently in school seeking a law degree as are other members of our organization. It is our goal to teach law to the masses of parents whose children are being denied access to their parents. Once we have enough litigators organized in a common plan we can control the courts. In Boone County Indiana we have already managed to get criminal cases dismissed by demanding jury trials and filling the courts with other civil litigation. The Court's simply do not have the resources. This is how we will win this battle.
The Report concludes by stating that there is no reason to believe that a Joint Physical Custody presumption would create more thoughtful orders. Without specific intervention by the court, or more available court resources, we could expect orders to include such phrases as “joint physical custody as the parties agree.” The consequences to children and parties of such vague language when it relates to custody arrangements are more significant than when it relates to parenting time, and more likely will result with increased motions to court to sort it out later.
Therefore, any presumption of Shared Parenting law needs to clearly define what that presumption is. Not forcing judges to adhere to the due process rights of all parties will result in increased litigation and court costs as the Report has indicated. We have seen from this section of the Report that if a presumption of Shared Parenting is passed then more children will be in equal joint custody living arrangements based upon their best interest. But also, that the State will not be able to intercept and retain child support payments in as great of an amount as has been done in the past. A very important admission that was made in the Report is that self-represented litigants can overburden the courts by paperstorm. That is the filing of continuous motions and seeking hearings on them.
Wednesday, February 11, 2009
If you are reading this you are likely one of the millions of people who feel that the courts are out of control and the laws need to be changed. Many of you have joined discussion boards, various groups, argued in court to no avail or complained ad nauseum to anyone who will listen. Hell, you may have done all and still feel you are getting nowhere. Some have even gone so far as to file lawsuits, but what have those results been?
While I understand the frustration of what we have gone through, as I have gone through it all myself, no amount of ineffective advocacy is going to bring about the change we need. I am not saying that having discussion groups is not necessary or important. They do serve a vital niche in that an outlet is needed for the frustration and expression of ideas or thoughts. The same is said for just complaining and hopefully there is someone to listen to each of us who needs to vent.
However, there are two ways that I believe have the greatest impact in bringing about effective change. One is in lobbying for a change in statutory law and the other is to attack the implementation of the law in the courtroom. I want you to first watch the video at the bottom of this page.
Today the first effective way in making a difference in the law I want to discuss is litigation. Effective litigation that creates binding case law can have far reaching impact for many of us. One of the major problems we face is a near complete lack of effective litigating. Many of us have had to face our legal challenges on our own because of financial limitations but that should not be an excuse to not effectively advocate for ourselves. Ineffective litigating actually does us more harm.
So, studying the law is not optional and is not something to be undertaken after the need arises. There is no difference in I am sure you are aware that lawyers have little success advocating for us in the courtroom. There is one primary reason for that. It is not in their interest. No one has the passion for your case that you do and they make more money from operating within the system and perpetuating your misery. So, whether you have an attorney involved, you should be involved.
You may not feel that you have what it takes to go into a courtroom and tell the prosecutor and judge what you are going to do and what they will not do. Think about the reason that attorney's become prosecutor's and judges. It is usually because they can't get work elsewhere. Understanding that these are the people who are at the bottom of the legal pool will help you in attacking them. Do not be intimidated. If you have an attorney do not let him or her be intimidated or passive about advocating for your rights. Just as it is important to watch over your doctor and challenge his or her recommendation that you have surgery to remove your head, you need to do the same thing if you have an attorney.
Now I want for you to read the argument I presented on that page where you watched Joe tell the prosecutor and judge how it was going to be.
After I was arrested and jailed for alleged non support of a dependent for not paying court ordered child support I interviewed three attorneys. They ranged from family law to criminal defense and all had the same opinion; if I hadn't paid the support then there is little I can do and nothing they can do to defend against it. I had to tell each that they were wrong which was based upon my simple reading of the law.
The problem with each of them was that they had been trained by and were entrenched in the system. They were so close to it and so brainwashed that they couldn't see the truth. What I showed to the prosecutor and judge is that they do not know the law and I do. I know that Indiana has no law making non payment of court ordered support a crime. The charge was dismissed although I fought for two years to get a trial. I even went so far as to file this Motion to Reinstate the charge so I could establish case law proving my argument.
I am currently pursuing a law degree as are some others in our group. This was not a coordinated effort and I have just been learning of this. The important point to be made here is not that we are seeking to become lawyers. Interestingly we all have the same agenda; to obtain law degrees and then teach others how to effectively advocate for themselves in court proceedings.
So what I want to stress in this posting is that if you can possibly undertake pursuing a law degree then do it. Not only will you be able to better advocate for yourself but you will also be able to assist others facing the same challenges. There are many legitimate colleges offering on-line degrees. With a unified force I believe we can all bring about changes in the court system whether it be actually obtaining favorable rulings or just overloading the court with cases.
Next, I will give to you my opinions and sage advice about lobbying for change to the family law statutes.
Monday, February 9, 2009
Todays analysis begins with the testimony of three Minnesota practitioners who were invited to make brief presentations to the Study Group concerning the potential impact of a joint physical custody presumption on children, fathers, mothers, parents from diverse communities and socio-economic status, and families who have experienced domestic violence. However, it is apparent that this selection was made with the intent of convincing the Study Group to oppose the presumption.
Impact of Joint Physical Custody Presumption on Children
Mindy F. Mitnick in her testimony attempted to cast presumptive joint custody in a bad light by saying that the one-size-fits-all nature of joint physical custody presumptions is detrimental to children for three reasons. However, her testimony missed the obvious and glaring reality which I will point out.
She first expressed that parents in low conflict custody litigation who are best suited for sharing joint physical custody will do so without need of a legal presumption. These are parents with good communication skills, flexible styles of decision making, and the ability to put the needs of children first, and who also live in geographic proximity to each other. She feels that parental conflict levels are the best predictor of children’s post-divorce adjustment. She then makes the jump beyond a logical connection to say that adoption of a joint physical presumption would increase the number of children exposed to high and moderate conflicts. She states that high conflict parents are not suited for joint physical custody because of the results on children; heightened aggression, impulsiveness, and anxiety, poor social skills and other emotional problems.
Mitnick's fundamental error in her analysis is a failure to accept or understand what a joint physical custody presumption is. Mitnick portrays a due process requirement that requires a court to view litigants as possessing the same rights regardless of gender as being a final decree awarding custody. There is a great danger in the misdirection of people like Mitnick, who are advancing a an anti-family agenda, in that they use actual results and fear to speak to an issue which a joint physical custody presumption does not apply. Specifically, a joint physical custody presumption does not mandate any custody decisions. It is only a due process first step. The courts may still make custody decisions as has been done in the past but with an equally evidenciary burden on each parent.
Impact of Joint Physical Custody Presumption on Fathers
Melissa Froehle analyzed the implications of adopting a joint physical custody presumption for custodial and noncustodial fathers. Historically proponents urged creation of a joint physical custody presumption in part because the label carried implications for calculation of child support and the ability of the physical custodian to relocate. However, both of these issues have been addressed through recent statutory changes and are not applicable here.
Froehle feels that it is difficult to predict how adoption of a joint physical custody presumption would affect the amount of parenting time fathers receive because under current law, which presumes 25% parenting time for fathers, the label of joint physical custody is not tied to a set amount of parenting time. Thus, with a presumption, the amount of parenting time could increase, remain the same, or perhaps decrease if heightened conflict causes fathers to “drop out.” This testimony directly contradicted Mitnick who felt that the due process presumption results in mandatory equal parenting time.
Froehle made some additional points about father's parenting time which included.
• The “type” of time a father spends with his children. The “type” of parenting time has significance for creating a meaningful father-child relationship. While research shows that the quality of time fathers spend with children is more important for child well-being than the quantity of time, fathers may have more overnight parenting time under a joint physical custody arrangement and this could help fathers maintain a meaningful ongoing role.
• Future modification of parenting time. With joint physical custody, parenting time could more easily be modified.
• Compliance with parenting time. It is difficult to predict whether mothers (who might otherwise be sole custodial parents) would be more likely to comply with parenting time after an award of joint physical custody. One theory holds that with shared physical custody, power differentials are equalized and that non-compliance may decrease.
• Psychological status of the parents if one is considered to be a “visitor.” Creation of a presumption of joint physical custody could have a positive psychological impact on fathers in that it might encourage them to stay involved with their children and to pay child support. Adoption of a presumption of joint physical custody would impact fathers who are or would otherwise be sole physical custodians in the same way it would impact similarly situated mothers.
Like Mitnick though, Froehle misses the point of a joint physical custody presumption. That is, unless shown otherwise through the normal course of custody proceedings, both parents are entitled to maintain custody of their children that they possess by virtue of being the natural parents of a child. Although these points may be relevant to actual custody decisions I do not believe they are relevant to a due process presumption.
Impact of Joint Physical Custody Presumption on Primary Caregivers
Loretta Frederick discussed the historical trend away from use of presumptions and toward individualized child custody decision making. Fredrick admits that joint physical custody works in limited circumstances where the parties are committed to it and the logistics are workable but counters that by saying research shows that when parents have the option, eighty percent do not choose joint physical custody.
Fredrick cites that 30 years ago California adopted a joint physical custody presumption but changed to a system of awarding joint physical custody in cases of agreement. California judges cited lack of parental cooperation, continuing parental conflict, instability, and logistical difficulties as major problems. Frederick claims that research also indicates that joint physical custody arrangements are not stable and they increase litigation. Frederick, in an attempt to dissuade a presumption, then went on to talk about the scope of actual joint physical custody arrangements that are not relevant to a presumption.
Impact of Joint Physical Custody Presumptions in Cases involving Domestic Violence
Loretta Frederick presented information concerning the impact of joint physical custody in cases involving domestic violence. Research shows that contested custody cases frequently involve allegations of domestic violence (50% to 77%). Allegations of Domestic Violence have long been considered a woman's "silver bullet" in gaining child custody. Often times, without any evidence or past history, judges will order a man out of the family home, away from the children and then grant permanent custody without any finding that DV has ever been committed.
Although Frederick felt such cases require a differentiated response including consideration of the severity and frequency of the violence, the pattern of the violence, identification of the primary perpetrator, investigation of parenting capacity, and analysis from the perspective of the child she did not feel that false allegations should be considered a factor. Few people would disagree that protecting children should be the highest priority. In cases involving coercive controlling violence, the abuser often threatens to harm the children in order to control or punish the victim. This behavior continues after separation or divorce.
That is exactly the type of situation I faced. Prior to Elica Talbot abandoning our family she did point a gun at my toddler son and threaten to kill him because "You care more for him that you do me". She also returned to the house armed once again and started making threats. That time I did call the police and she fled as they arrived.
Frederick believes that statutory exceptions to joint legal and physical custody presumptions for cases involving Domestic Violence are ineffective because: (1) victim parents may not understand that the presumption can be rebutted or how to do it; (2) victims fear retaliatory violence for attempting to rebut the presumption; (3) victims may not immediately understand the dynamics of domestic violence and its impact on children; (4) victims may lack evidence of the violence; (5) victims may be unable to afford litigation; (6) victims may be unrepresented; (7) family law professionals frequently fail to identify domestic violence; and (8) there are no proven models for screening and assessing domestic violence in the court context.
Frederick has made it clear that the due process requirements of a presumption of joint physical custody would go against her agenda of depriving children of access to both parents and increasing conflict in their lives.
Impact of Joint Physical Custody Presumption on Non-marital Families and Parents from Diverse Communities and Different Socio-Economic Status
Melissa Froehle also presented information on unmarried families and single-father headed households. Almost 40% of births are non-marital and the increase in non-marital births is largely the result of births to cohabiting couples. Most non-marital children are born to romantically involved parents who desire father involvement. However, cohabiting and visiting relationships tend to disintegrate over time. Yet, in terms of household composition, children born into cohabiting households may not be so dissimilar from children born into married households. Research shows that children born into cohabiting families spend 74% of their childhood years in a two-parent household, as opposed to 88% of children born into married households and 51% born into single-parent households. Rates of cohabitation, as well as non-marital birth, vary significantly by race and ethnicity.
Some barriers to father involvement include poverty, lack of education, and multiple partner fertility. Research shows that low income fathers are initially highly involved with children born outside of marriage but contact with nonresident fathers tends to decline over time. Rates of paternity establishment have soared and 64% of open Minnesota child support cases currently involve children of unmarried parents. Single-father headed households are the fastest growing household type in Minnesota.
Social Science and Related Literature
Jeffrey L. Edleson made a presentation to the Study Group entitled “Assessing Social Science Research.” He discussed evidence-based decision making and suggested four questions to consider when evaluating studies.
First, identify the purpose and specific aims of the study.
Second, ask how the study was conducted, specifically who was studied, how the people were found, what research design was used, and how participants provided information.
Third, determine what was found including how data was analyzed, the general findings, and how variation was dealt with.
Finally analyze the meaning of the results and the extent to which the data support the conclusions and whether alternative explanations are considered.
Dr. Edleson made an important caution in that no one study is definitive and readers should be cautious about causal claims. This is the type of "evidence" that those with anti-family agendas like Frederick and Mitnick make. Throughout their testimony they would site a specific finding from a particular study that is not generally applicable and apply it in a context that was not relevant to the current study. Dr. Edleson further cautioned that only studies based on representative samples with replicated findings can be generalized.
He urged Study Group members not to expect “black letter truth” from social science. Members of the Study Group submitted articles for consideration that were distributed at and between meetings. Those can be found in the Appendix of the Study.
Study Group Discussion of the Impact of a Presumption of Joint Physical Custody
Based on oral and written testimony, social science and related literature, and professional and personal experience, Study Group members identified potential problems and benefits associated with adoption of a joint physical custody presumption. Study Group members did not reach agreement about the list and it is not necessarily comprehensive.
As happens throughout the advocacy world, the discussion was complicated by lack of consensus concerning the meaning and operation of a presumption of joint physical custody. Clearly Frederick sought to confuse the Study Group by presenting her agenda in which she claims that a due process presumption would harm children by requiring judges to force children to live with parents who have abused them. However, there is no language in any custody presumption bill that would require this.
Here is what the Study Group found to be benefits and concerns:
Potential Benefits of Adopting a Presumption of Joint Physical Custody
• A joint physical custody presumption would encourage children’s ongoing relationships with both parents, particularly fathers.
• A joint physical custody presumption would decrease perceived court system bias against fathers.
• A joint physical custody presumption would limit court discretion.
• A joint physical custody presumption might enhance predictability.
• A joint physical custody presumption might decrease perceived variability of outcomes from different jurisdictions.
• A joint physical custody presumption would change the “starting point” for
negotiations between parents because the burden of proof would shift to a parent
seeking sole physical custody.
• A joint physical custody presumption might decrease litigation.
• A joint physical custody presumption might decrease parental conflict by equalizing power between parents.
• A joint physical custody presumption might enhance children’s relationships with extended family members.
• A joint physical custody presumption might encourage development of a familial relationship when unmarried parents have not had a prior relationship.
• A joint physical custody presumption might increase efficiency and reduce some costs.
• A joint physical custody presumption might enhance parents’ rights.
Concerns about the Impact of a Joint Physical Custody Presumption
• A joint physical custody presumption would limit the ability of the court to consider the needs of individual children.
• Joint physical custody would be detrimental for children continuously exposed to high levels of parental conflict.
• Joint physical custody might heighten conflict between parents who, for a variety of reasons, are unable to effectively co-parent.
• A joint physical custody presumption would be dangerous for children and victims of domestic violence (battering) because even if exception is made for such cases, courts do not currently have the resources or ability to consistently identify battering or reliably assess risk.
• A joint physical custody presumption would create financial and procedural challenges for low income and unrepresented parents who would be required to carry the burden of proof if they, for any reason, object to joint physical custody.
• Joint physical custody would be impractical for some families such as those where parents live in geographically distant locations, children are very young, and/or parents are not married and have never had an ongoing relationship with each other.
• A joint physical custody presumption might primarily apply to the minority of parents who are unable to agree on parenting arrangements.
• A joint physical custody presumption might increase litigation.
• A joint physical custody presumption might create discontinuities and conflicts with other statutes and programs (private health insurance eligibility, child support “obligor,” Earned Income Tax Credit eligibility, MFIP eligibility, Head Start eligibility, etc.).
• A joint physical custody presumption might result in system-wide confusion stemming from disagreement over the definition and operation of a joint physical custody presumption.
• A joint physical custody presumption may not be an appropriately tailored solution for current problems --lack of Minnesota data makes it difficult to assess issues and generate helpful responses.
Be sure to check back for the next installment,
Minnesota Shared Parenting Report - Part VI
Fiscal Impact of Adopting a Joint Physical Child Custody Presumption
Saturday, February 7, 2009
You may not think that you will ever be involved with a CPS/DFS case but you should not let your innocence catch you off guard. If you are involved in any type of child custody action then you should expect this. Don't start to learn about this after it has begun. Read this now.
The stated purpose of child protective services is to protect children, to preserve families whenever possible, and to prevent further abuse and neglect. CPS is charged with investigating abuse and neglect reports, and to provide or arrange protection for children if protection is needed.
When the Department of Family Services receives a report about possible child abuse or neglect the law requires that a CPS worker investigate it. If this report deals with you and your child then you should expect a CPS worker to look into it. The caseworker is to decide whether services are needed, and to provide or arrange protective services if they are needed.
Knowing what is considered child abuse or neglect is helpful in determining what may trigger an investigation. Memorize this list so you can be on guard to ensure that any allegations could not be assumed to be true because of lack of mitigating evidence.
Under the law, an abused or neglected child is any child under 18 whose parent, or any other person responsible for the care of the child causes:
Physical abuse - deliberate physical injuries inflicted by parents, caretaker or baby-sitter or physical injuries resulting from indifference, negligence or improper supervision;
Medical care neglect - refusal or failure to obtain and maintain treatment services necessary for a child’s continued health;
Sexual abuse - any sexual exploitation of a child (molestation, exposure, masturbation, incest, oral-genital contact) by parents, caretakers or other persons living in the home;
Psychological abuse - child rearing procedures or an absence of them which results in the gross impairment of a child’s opportunity for normal psychological development;
Emotional abuse - continual scapegoating and rejection of a child resulting in behavior clearly indicative of pathologically disturbed emotional adjustment or behavior;
Abandonment - the child has been left with no obvious behavioral, verbal or written intentions of reclaiming the child;
Lack of supervision - when young children (generally under the age of 12) are left without an adult or baby-sitter in attendance for significant or unreasonable periods of time;
Negligent treatment - failing to provide adequate food, clothing, shelter, education, health care, supervision or guidance to a child.
During the investigation the CPS caseworker should routinely take the following actions:
Checks for other reports of abuse or neglect;
Talks face to face with the child involved;
Observes the child for injuries or signs of abuse or neglect;
Observes the child’s home and where the alleged abuse/neglect took place;
Talks face to face with the child’s parents;
Talks face to face with any other person alleged to have abused or neglected the child.
Sometimes the CPS worker may also:
Talk with other people who know about the child’s care, such as doctors, teachers, other relatives, etc. (you may help identify people who should be talked with);
Interview and observe other children in the home;
Arrange for a medical or psychological examination of the child.
Department of Family Services’ rules require that the CPS investigation be finished within 60 days from the date the report was received, unless there is good cause for extending the time. The subject of an investigation will be informed, in writing, of the results of the investigation. A caseworker will likely tell you that your cooperation means that the investigation will be finished as quickly as possible. It is important that you know and invoke your rights.
Sometimes a CPS caseworker does have the right to interview a child without parental consent. Typically, but not always, parental consent will be obtained before a child is interviewed. Under some circumstances, such as reports made by schools, medical professionals or law enforcement a child will be interviewed without parental consent. That is why it is important that your child know what to expect from a CPS interview and what not to do. If the CPS worker does talk with the child without having told the parent beforehand, the worker is to tell the parent as soon as possible that the discussion took place.
CPS caseworkers will typically observe the child for injuries or signs of abuse or neglect and may examine the child. If someone has reported physical abuse, the CPS caseworker may arrange for pictures or x-rays of the child. Normally parents are also asked to consent to such examinations. If parental consent is not given, the Department of Family Services may request legal assistance in obtaining protective custody or a court order allowing an examination.
In most cases, the family and the CPS worker cooperate during the investigation. But if you refuse to cooperate or to allow the CPS worker to enter your home, the CPS caseworker will continue to investigate. If the CPS worker believes the child is in danger, the worker can seek help from the police or the courts to enter the home and see the child, even if you do not give your permission. You will gain no favor by cooperating with CPS. If the caseworker threatens to call the police then instruct he or she to do so. Ever hear the phrase, "Anything you say can and will be used against you"? There is a reason for that. Make them go through the legal process.
CAUTION: CRIMINAL CHARGES CAN BE FILED BASED UPON INFORMATION YOU PROVIDE.
Someone making a report does not have to give his or her name. The name of the person making the report will be made known only if a court orders it, or if court testimony is involved. This is why it is important to make the CPS caseworker go through the legal process. This also helps to burden the courts and can potentially save another child from being abused by the court system. Every effort that each of us can take to help overburden the courts will help to ensure that only real cases of abuse are prosecuted.
Children have some basic rights that are nearly uniform throughout all jurisdictions. These are;
The right to physical care, with food, clothing, shelter, and education to meet basic needs;
The right to emotional security, the sense that he or she will not be abandoned or neglected;
The right to be with his or her parents and brothers and sisters, unless there are legal grounds for moving the child;
The right to diagnosis and treatment for medical and emotional problems;
The right to protection and freedom from harm, danger, injury, and neglect;
The right to be represented by his or her own court-appointed guardian during any court proceedings.
Removing children from the home should only take place in extreme cases. Unless your child is at risk of serious harm, the CPS caseworker should work with your family and provide or arrange for services to your family to keep your child at home. If the child must be temporarily removed for safety reasons, generally the goal is to return the child to the home if at all possible. It is very important to know that as a parent you have the right to come to the court hearing and ask a lawyer to represent you in explaining your situation to the judge.
If the child does need to be removed for a longer time, a CPS worker meets with the family to develop a plan that includes treatment for the child and family, visitation, and returning the child to the family when it is safe. You should demand that a caseplan be done as soon as possible if you are in this situation.
Within 60 days (unless extended with good cause) after the report is received, the CPS caseworker will make a finding of unsubstantiated or substantiated. If there is credible evidence that abuse or neglect occurred, the report is substantiated. Substantiated cases are classified as either low risk, moderate risk or high risk. Generally, a caseworker will issue a finding of substantiated based upon that credible standard. A written notice detailing the findings and specific rights should be issued.
If the investigation did not reveal that child abuse or neglect occurred the report is unsubstantiated. Unless you request services, the Department of Family Services will no longer be involved with the family. A record of the investigation will be kept for 5 years. If you believe the investigation had anything to do with an investigation then you will want a copy of this report.
THESE ARE YOUR RIGHTS
The right to be notified in writing of the nature of the report;
At your own expense, to talk with a lawyer and to have a lawyer with you at any time during the Investigation or during any court actions;
The right to have answered questions about the process of investigation and its results;
The right to fully understand the services the CPS caseworker thinks necessary for your family, and what you can expect the agency to provide or to arrange;
The right to an administrative appeal if you disagree with a finding of substantiated.
A request for an administrative hearing must be made in writing within 20 days of receiving notice of the findings.
When a written request is made, the Department will request that a hearing be scheduled. Agency rules require that the Department offer you an informal hearing, with the CPS Supervisor or Manager prior to a formal hearing. You have the right to refuse the informal meeting. If you are dissatisfied with the hearing officer’s decision, you may petition the Superior or Circuit Court for a judicial review.
HERE ARE SOME OF THE FAMILY SERVICES THAT CAN BE PROVIDED
If there is a need for services, the CPS worker will work out a plan with you, which will include:
Steps you can take to meet your child’s needs, such as making and keeping medical appointments for your child, making sure your child gets to school, learning new ways to discipline your child, etc.;
The services your family and child need;
How the services will be given and who will give them;
Your responsibilities, family services’ responsibilities, and the responsibilities of any others involved in the plan;
The date by which the needed steps are to be taken, and the length of time that services may be offered.
Some of the services that may be offered by the local department of family services and/or community agencies are:
Counseling for the child and family to improve their relationship;
Instruction on parenting methods and discipline;
Information about and referral to other helping agencies;
Family supervision provided by the CPS worker through home visits.
Portions of this document were provided by the Wyoming Department of Family Services.
Thursday, February 5, 2009
Legislators rarely do anything without seeing what others have done before them and what people think about it. Testing the waters as it is called. So it is no surprise that the Study Group would have to research what the results of presumptive joint custody in other jurisdictions was.
Jodie Metcalf, J.D., Manager, Child Support Magistrate Program reported to the Study Group concerning joint custody statutes in other jurisdictions. This Study Group was to focus and report on presumptions of joint physical custody which made studying other jurisdictions somewhat difficult as most presumptions are of joint legal custody.
The research is also complicated by the fact that jurisdictions use different terms for the concepts of joint legal and physical custody and they use graduated approaches. For example it is possible for a statute such as Indiana's to declare that there is no presumption either for or against joint physical custody. This one is about useless though because judges just require that fathers prove they are fit while no burden is placed on the mother. Unless specific findings and conclusions are requested then the judges are free to make a general determination without any showing as to why. Only where statutes provide for a rebuttable presumption or where both parents agree to it can joint physical custody data be comparable.
There is only one state that appears to have a presumption of joint physical custody. Idaho statutes contain a presumption that joint custody is in the best interests of children “absent a preponderance of evidence to the contrary” and except in cases involving domestic violence. However, physical custody is to be shared by parents “in such a way to assure the child frequent and continuing contact with both parents but does not necessarily mean the child's time with each parent should be exactly the same in length nor does it necessarily mean the child should be alternating back and forth over certain periods of time between each parent.” So even with that physical custody is not necessarily near 50/50 and may not provide accurate data for an equal Shared Parenting analysis. Approximately nine states have adopted presumptions of joint physical custody that apply only in cases where the parents have agreed to such an arrangement.
So what remains is that this presumption has not been adequately vetted to determine if it is in the children's best interest. What is left then is to study cases where joint custody has been ordered. All other bases for examination are really nothing more than speculation.
Be sure to check back for the next installment,
Minnesota Shared Parenting Report - Part V
Study Group Discussion of the Impact of a Presumption of Joint Physical Custody
Search from over 200 pages of content on Indiana Custodial Rights Advocates
Wednesday, February 4, 2009
Newly elected Senator Randy Head has decided to jump right out of the gate with one of Indiana's most offensive bills introduced this year. Senator head actually wants to make child molestation less of a crime than not buying designer clothing for the child. Senator Head has introduced a bill that would raise nonsupport of a dependent to a Class B felony as a second offense. Here is the Digest of Introduced Bill; Nonsupport of a dependent. Makes nonsupport of a child a Class B felony if the person owes at least $15,000 in unpaid support and has a prior unrelated conviction for nonsupport of a child as a Class C felony.
Citations affected: IC 35-46-1-5
There is still a common misconception in Indiana that the failure to pay money is not providing support to a child. Now Senator Head wants to make nonsupport of a dependent a Class B felony if certain conditions are met. Those are if the person owes at least $15,000 in unpaid support and has a prior unrelated conviction for nonsupport of a child as a Class C felony.
I was once charged with nonsupport of a dependent under IC 35-46-1-5(a). I fought for nearly two years to get a trial and even filed a motion to reinstate the charge after it was dismissed. My argument was that I was falsely charged for failing to make payments to the mother of my child which is NOT failing to provide support. Four different prosecutors from three counties all refused to take this to trial based upon me telling them the statute does not apply and why. Here is a complete explanation of how not paying support is not a crime in Indiana.
Beyond the statutory scheme is the pure logical ideas behind what is not providing support. There is a logical disconnect between non payment to a parent and not providing support. Imagine a child locked in a cold basement closet without food, clothing or medical care being provided but, instead, the money that could be used to purchase those being slid under the door each day. Do you think that if CPS found out about this after a few days and came there and found a naked, dehydrated, malnourished, scared child that they would not take that child into immediate custody and not seek to have the parent charged with neglect under IC 35-46-1-4? That is the companion statute to nonsupport. The difference is that neglect can also include failure to educate and the denial of support in neglect must be "necessary support".
So, onto this bill. The trouble with IC35-46-1-5 and this bill, first off, is in determining how this dollar level of of support, in this case $15,000 worth, is met. A law like this is just going to make trials go on longer and it will get rather difficult in deciding on how the $15,000 will be accounted for. Is someone going to provide receipts? How will the share of housing be determined? Is it only going to be based upon the cost of the government providing AFDC? If the child has extraordinary medical bills which exceed $15,000 and the parents are unable to pay will this then be charged as a crime? Would it have to be $30,000 if there were two parents? What if a prosecutor decides that the child should have been living in a $200,000 house instead of a $100,000 house and the child's portion of that home is 15%; would that $15,000 difference qualify under this bill? What about the US Constitution's prohibition against debtors prison?
These are not extreme or outrageous questions. Prosecutors are given great discretion in what to charge. In my case one of the prosecutors, Louis Evans, specifically told me that I could pay more to my son's mother than I am ordered to by the court and still be charged with criminal nonsupport if she didn't spend it on him.
On top of all of that, the one thing that most disturbs me about this is that the current statute, which makes failure to reimburse someone for providing food, clothing, shelter or medical care to a child a more significant crime than actually locking a child in a basement as described above or angrily driving over someone resulting in a death, will now have more crimes subordinate to it. Do we really want to live in a world where the government no longer provides support to children without jailing the parents? Do we really want to live in a world where repaying the government is of a higher priority than people losing their lives? Our current statute makes not buying designer clothing, an extravagant house or having cosmetic dentistry done on a child more of a crime than intentionally trying to run someone down with your car which results in a death? see IC 35-42-1-4(d)(3). Do we really want to live in a world where nonsupport will now be a greater crime than shooting someone with a gun and killing that person?
This bill should be opposed by anyone who feels that society as a whole has an obligation to care for all children and that our lives are of greater value than the government getting repaid $15,000.