Leading child advocate calls for trained, respected, funded legal defenders for parents

The Importance of Family Defense  

By Martin Guggenheim,  ABA Family Law Quarterly Volume 48, No. 4 (Winter 2015) pp. 597-607

This article describes the growing field of “Family Defense,” which involves lawyers and other advocates working on behalf of parents or other family members whose children are at risk of being placed in court-ordered foster care. Although lawyers have been doing this work for several decades, a national movement to consolidate and enhance the field’s status in the legal profession is less than a decade old. Based in the American Bar Association’s Center on Children and the Law, this movement’s purpose is to achieve procedural and social justice for all families involved with child welfare systems, through legal, legislative, and policy advocacy. Above all else, it seeks to ensure that every parent who is in jeopardy of having a child removed from his or her care by a child welfare agency is able to secure excellent legal representation during the entire length of the court process. This article explains the importance of the field and how it differs from criminal defense. Finally, it offers some insight into why the field is relatively unknown in the legal profession despite the important work that it does.

Full text of article 


Shocked by cheerfully ignorant, arrogant decision-making? Not if you've seen a judge learn family law on the job.

There was a lot of interest on social media in 's analysis of how President Trump deals quickly and authoritatively with issues he admittedly knows nothing about.  was thunderstruck at how monstrously dangerous it was to have major decisions made in cheerfully-admitted ignorance, by what the decision-maker thinks is simple common sense. But as a family law attorney, I really couldn't tell any difference between the President's performance and watching a judge who's new to Family Law, trying to puzzle out why the law seems to want both parents involved in a child's life after a breakup, why unwed fathers have the few rights they do have, etc. Or what the Hague Convention on child abduction is for, and what in the world is wrong with a mom taking her children halfway around the world just to get them far away from the father. Or the times I've watched Supreme Court Justices do the same thing as they debate the Hague Convention, or paternity law, assume the validity of wildly wrong speculations about what happens in custody litigation, and snort with equal contempt at the parents in these cases and the Congress that passed such seemingly pointless laws and treaties. Even experienced trial judges sometimes just reinforce their bias and irrational rules-of-thumb over time. 

Here's the Trump version of this routine:

SHERIFF AUBREY: And the other thing is asset forfeiture. People want to say we’re taking money and without due process. That’s not true. We take money from dope dealers —

THE PRESIDENT: So you’re saying – okay, so you’re saying the asset-taking you used to do, and it had an impact, right? And you’re not allowed to do it now?

SHERIFF AUBREY: No, they have curtailed it a little bit. And I’m sure the folks are —

THE PRESIDENT: And that’s for legal reasons? Or just political reasons?

SHERIFF AUBREY: They make it political and they make it – they make up stories. All you’ve got to do —

THE PRESIDENT: I’d like to look into that, okay? There’s no reason for that. Dana, do you think there’s any reason for that? Are you aware of this?

[Then-acting Attorney General Dana Boente]: I am aware of that, Mr. President. And we have gotten a great deal of criticism for the asset forfeiture, which, as the sheriff said, frequently was taking narcotics proceeds and other proceeds of crime. But there has been a lot of pressure on the department to curtail some of that.

THE PRESIDENT: So what do you do? So in other words, they have a huge stash of drugs. So in the old days, you take it. Now we’re criticized if we take it. So who gets it? What happens to it? Tell them to keep it?

MR. BOENTE: Well, we have what is called equitable sharing, where we usually share it with the local police departments for whatever portion that they worked on the case. And it was a very successful program, very popular with the law enforcement community.

THE PRESIDENT: And now what happens?

MR. BOENTE: Well, now we’ve just been given – there’s been a lot of pressure not to forfeit, in some cases.

THE PRESIDENT: Who would want that pressure, other than, like, bad people, right? But who would want that pressure? You would think they’d want this stuff taken away.

SHERIFF AUBREY: You have to be careful how you speak, I guess. But a lot of pressure is coming out of – was coming out of Congress. I don’t know that that will continue now or not.

THE PRESIDENT: I think less so. I think Congress is going to get beat up really badly by the voters because they’ve let this happen. And I think badly. I think you’ll be back in shape. So, asset forfeiture, we’re going to go back on, okay? I mean, how simple can anything be? You all agree with that, I assume, right?

Watching Donald Trump Try to Puzzle Out What ‘Asset Forfeiture’ Means Is Deeply Discomfiting

By  in New York Magazine

See also, for example,


Bills would let unregulated gov't non-lawyers file serious court cases against parents, without a lawyer's signature

A bill now in Virginia's  Senate and House of Delegates would let Virginia welfare agencies file court cases against parents without a lawyer signing off on the case -- fundamentally changing the traditional role of law practice as a regulated, accountable profession bound by ethics rules. These are very serious cases that can take apart families, destroy parents' finances and livelihoods, and lead to their being jailed for contempt.

Currently, legal ethics rules, court rules, and the Sanctions statute require all lawsuits to be signed by a lawyer (except for people who represent themselves), and require the lawyer to believe, after due investigation, that the suit is well-founded in the facts and the law and not filed simply to harass, impoverish or delay the other party. They also require lawyers to be truthful to courts, opponents and others involved.  The bill, and the statutes it amends, do not do anything to make these new case-filers subject to those rules. And even if it did, that would not be the same as requiring a lawyer to put her credibility and hard-earned license on the line every time she signs a court filing. 

Welfare agencies do great work but like anyone, they do get things wrong, out of negligence or simply normal human imperfection, not malevolence or corruption. Requiring a lawyer to sign off on these case filings is an important protection for the public, reducing the chances of a completely groundless prosecution, ensuring due process of law, and providing accountability when things go wrong. An example, where a judge felt strongly that sanctions and lawyers' fees should be awarded to the victim of a groundless civil child-abuse suit, is FAIRFAX COUNTY DEPT. OF HUMAN DEV. V. DONALD, 251 Va. 227 (Va. 1996). 

The drafters seem to think that providing standard, foolproof check-box forms (which already exist) removes the need for lawyers. But having non-lawyers draft the forms is never a problem and is not the issue. The issue is protecting citizens and courts, by holding even the do-goodingest government agencies to the same basic rules that govern any other person, corporation or agency that takes someone else to court.

The bill adds to Code § 16.1-260 on Juvenile Court filings:

"designated nonattorney employees of a local department of social services may complete, sign, and file with the clerk, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, and motions for a rule to show cause;"

[Note: "Motions to amend or review" includes modification of any existing child custody, visitation or placement order. "Rule to show cause" means contempt of court, including up to a year in jail and setting amounts of support arrears to be paid in order to get out of jail.]

It adds to § 54.1-3900, on who can practice law:

Nothing herein shall prohibit designated nonattorney employees of a local department of social services from appearing before an intake officer to initiate a case in accordance with subsection A of § 16.1-260 on behalf of the local department of social services.

Nothing herein shall prohibit designated nonattorney employees of a local department of social services from completing, signing, and filing with the clerk of the juvenile and domestic relations district court, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, or motions for a rule to show cause.

And it adds to Code § 63.2-332, "The local director shall designate nonattorney employees who are authorized to (i) initiate a case on behalf of the local department by appearing before an intake officer or (ii) complete, sign, and file with the clerk of the juvenile and domestic relations district court, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, or motions for a rule to show cause."

The proposal is in two bills which appear identical: House Bill 589 and SB 417SB 417 passed the State Senate 20 to 17, with three Senators not voting. I'm proud to say my William & Mary law classmates Jennifer Wexton and Ryan McDougle, Fairfax Senators Chap Petersen and Scott Surovell, my old Senator Tommy Norment, and Donald McEachin all voted Nay. It is now in the House Courts of Justice - Civil Law Subcommittee. It is on the Committee's agenda for this coming Monday, Feb. 22. The subcommittee's members are Delegates Habeeb (Chairman), Kilgore, Loupassi, Minchew, Leftwich, Campbell, Miyares, Toscano, McClellan,  and Krizek. The full Courts committee's members are Delegates Albo (Chairman), Kilgore, Bell, Robert B., Cline, Gilbert, Miller, Loupassi, Habeeb, Minchew, Morris, Leftwich, Adams,Campbell, Collins, Miyares, Watts, Toscano, Herring, McClellan, Hope, Mason, and Krizek.

HBl 589 passed the House almost unanimously and is now in the Senate Courts of Justice Committee, which also meets this coming Monday.

Almost as bad, I see that Code § 54.1-3900 already has existing language allowing this practice for child-support filings. Even though Social Services already has its own internal administrative tribunals that can make and review child support orders without lawyers. It reads:

Nothing herein shall prohibit designated nonattorney employees of the Department of Social Services from completing, signing and filing petitions and motions relating to the establishment, modification, or enforcement of support on forms approved by the Supreme Court of Virginia in Department cases in the juvenile and domestic relations district courts. 

If I understand correctly, this was added a few years ago to protect the validity of existing support orders after it was discovered that some non-lawyer social services employees were already doing this. But they could have done that without allowing the practice to continue and be authorized by the state. The existing language is bad enough but the new version would cover many more kinds of cases. Ideally, an amendment-as substitute should delete that existing language and drop all the new language currently in SB417

If you want to see what protections this bill takes away from parents, Here is Code § 8.01-271.1:

§ 8.01-271.1. Signing of pleadings, motions, and other papers; oral motions; sanctions.

Except as otherwise provided in §§ 16.1-260 and 63.2-1901, every pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, and the attorney's address shall be stated on the first pleading filed by that attorney in the action. A party who is not represented by an attorney, including a person confined in a state or local correctional facility proceeding pro se, shall sign his pleading, motion, or other paper and state his address.

The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, written motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.

An oral motion made by an attorney or party in any court of the Commonwealth constitutes a representation by him that (i) to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and (ii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

If a pleading, motion, or other paper is signed or made in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed the paper or made the motion, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper or making of the motion, including a reasonable attorney's fee.


Supreme Court silently ignores clear text of Indian Child Welfare Act, "needlessly demeans parenthood"

The majority opinion in Adoptive Couple v. Baby Girl (U.S. S.Ct. June 25, 2013) displays a disturbingly dismissive attitude towards unwed fathers, and indeed all non-custodial parents, and toward the purposes of the  Indian Child Welfare Act, while making a textually decent case that three particular pieces of ICWA do not apply to the case: 25 USC § 1912 (d) and (f), which appear to be written primarily for children removed from Indian homes and put in foster care, which sound like good, safe rules to apply to adoptions in order to protect parents' and children's basic constitutional rights, but which may not literally apply to adoptions the way they are written; and 25 USC § 1915 (a), which clearly comes into play only AFTER a decision that a child will be put up for adoption, giving preference to extended family, other members of the tribe, and then Indians from other tribes.  But those statutes are not the primary ones covering this case. The clearly stated, fundamental rule covering this case is the rule on voluntary consents to adoption:

"25 USC § 1913 - Parental rights; voluntary termination. (c) Voluntary termination of parental rights or adoptive placement; withdrawal of consent; return of custody. In any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent."

This provision is the clearest and simplest basis for dismissing the adoption and immediately returning the child to the father. It makes it unnecessary to consider the other ICWA provisions, which gave the Court so much difficulty and dissension.  It was cited in the South Carolina Supreme Court opinion below, Adoptive Couple v. Baby Girl, 398 S.C. 625 (2012), and I cannot imagine why it is mentioned not at all in the majority opinions, and only once, briefly, in the otherwise-awesome dissents. That lower-court opinion also contains several key facts of the case, conveniently omitted from the majority opinion. Such as that the father had filed a paternity suit.
What is truly scary about this case is the way it talks about non-custodial parents and unwed fathers, echoing some of the justices' comments in the oral arguments of Abbott v. Abbot, about the Hague Convention on international child abduction. The majority justices equate being a non-custodial parent with complete abandonment of any role as a parent, as if they were personally unfamiliar with the widespread realities of family breakdown and non-marital pregnancy, and had made no effort to investigate how these things work in contemporary society and law. They are extremely skeptical that the Act could have been intended to be used by unwed fathers who have not already had custody, and that skepticism colors their textual interpretation. On the other hand they gush about the adoptive parents, and how the adoptive father cut the umbliical cord himself -- even though the actual father was not invited to do so and it makes no difference whatever to the child. As Justice Scalia, dissenting, sums it up:
"The Court’s opinion … needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is “in the best interest of the child.”"
In this case the father had earlier agreed to the mother keeping the child, which is not the same as agreeing to adoption. It did not seem like the same thing to the father, nor does it to most people, nor does the law treat it that way, but the majority opinion sees it as the moral equivalent of "abandoning" a child. He later signed something which would count as a proper consent to adoption, but claimed he didn't understand that the mother was putting the chld up for adoption by third parties -- which is certainly believable given that everyone from young unwed fathers to the Chief Justice of the U.S. Supreme Court has a lot of difficulty understanding basic concepts and distinctions in family law. But anyhow, the federal Indian Child Welfare Act gave him the right to revoke that consent at any time up until the final adoption order was issued, and he did that within that time limit -- in fact, the very next day.  That should have been the end of it, and the baby, then four months old, was supposed to have been returned to him immediately at that point under the Act.
Adoption is wonderful, of course, but at that point the child was not up for adoption. “We must remember that the purpose of an adop­tion is to provide a home for a child, not a child for a home.” In re Petition of Doe, 159 Ill. 2d, at 368, 638 N. E. 2d, at 190, quoted by Justice Sotomayor, dissenting.
 Now, I can't do justice to the dissents. They are splendid. They are required reading for anyone interested in family law or constitutional law. Including those of us who are forced to become interested in family law only when family law becomes interested in us. And Justice Sotomayor seems to be the one Justice who accepts that family breakdown is not a stigmatized aberration, but a widespread fact of life that should be dealt with in a way that respects everyone's dignity, i.e., that non-custodial parents have valuable roles, responsibilities and rights; who believes that if the Court gets involved in family law it should educate itself about family law, about what statutes and case law are in force and are followed in practice; and who looks back to the last era when the Court got involved in family law and defined parents' constitutional rights in family law cases. (Although I guess the same care and values should be attributed to the justices who joined her dissent, Scalia, Ginsburg and Kagan.) Here is just one out of many extremely quotable passages:
“The majority’s focus on “intact” families … begs the question of what Congress set out to accomplish with ICWA. In an ideal world, perhaps all parents would be perfect. They would live up to their parental responsibilities by providing the fullest possible financial and emotional support to their children. They would never suffer mental health problems, lose their jobs, struggle with substance dependency, or encounter any of the other multitudinous personal crises that can make it difficult to meet these responsibilities. In an ideal world parents would never become estranged and leave their children caught in the middle. But we do not live in such a world. Even happy families do not always fit the custodial-parent mold for which the majority would reserve IWCA’s substantive protections; unhappy families all too often do not. They are families nonetheless. Congress understood as much. ICWA’s definitions of “parent” and “termination of parental rights” provided in §1903 sweep broadly. They should be honored.” -- Justice Sotomayor, dissenting.
Here are the statutes discussed by the majority opinion:
25 USC § 1912 (d) Remedial services and rehabilitative programs; preventive measures. Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.
25 USC § 1912 (f) Parental rights termination orders; evidence; determination of damage to child. No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
25 USC § 1915 (a) Adoptive placements; preferences. In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with
(1) a member of the child’s extended family;
(2) other members of the Indian child’s tribe; or
(3) other Indian families.

 


China notes US "Fatherhood gap" between lower, upper middle class

China Radio International June 20 - "Modern Fatherhood.The US is facing a growing "fatherhood gap", with children in wealthy families spending substantially more time with their fathers. Changes in the expectations for fathers are creating new challenges, sometimes leading to depression."
Guests: Paul Schenk, Clinical psychologist; Will CourtenayPhD, LCSW, "The Men's Doc", McLean Hospital, Harvard Medical School, Author of Dying to Be Men.
I listened to this and it was thoughtful and insightful - we hear about the class-based marriage gap but it may take a foreign power to point out that cultural developments in modern fatherhood also vary dramatically by economic class, education etc. It also looks at the dynamics of child-raising in an intact family and how some fathers, too, can develop a form of post-partum depression.


Can't have three parents when mom left wife for dad, Calif. Ct. says

A child cannot have three legal parents under the Uniform Parentage Act, a California appeals court ruled May 6 in “In Re M.C.”  — remanding the case to the Los Angeles trial court which must pick two of the three as legal parents before proceeding with the further question of where to place the child.

 

Although in the abstract, it pits gay rights against parents’ rights, this is the kind of case that ought to be decided based on its particular factual situation. This is not the case of an ideal, cute couple and their cool, adorable sperm-donor friend, which the TV version would be. The opinion says the mother had a “stormy relationship” with her domestic partner, with “several episodes of domestic violence.” The mother left her, met the father, got pregnant by him, and then lived with the father for a few weeks. She left him to reconcile with her partner, and they married before the child was born. Three or four weeks later, she left again. The father, meanwhile, had supported the mother when she lived together, and later sent money and a signed paternity declaration. When a new boyfriend attacked her wife with a knife, the baby ended up in state custody, the mother went to jail, and the father asked for custody.

 

The appeals court said that all three were “presumed parents” under the UPA, but only two could be the actual parents, and that the lower court should now apply the test from the case of “Kelsey S.” 4 Cal. Rptr. 2d 615 (1992) to see if we was a “constitutionally presumed father” -- one who “comes forward at the first opportunity to assert his parental rights after learning of the child’s existence, but has been prevented from becoming a statutorily presumed father under [UPA] Sec. 7611 by the unilateral conduct of the child’s mother or a third party’s interference.” Section 7611 requires the father to have “received the child into his home” -- something that many unwed fathers might not have occasion to do even if they are available and involved parents.