When Visitation May Not Be in the Best Interests of the Child

Here in Florida (and many states), the law presumes that frequent contact with both parents is in a child’s best interests. Normally, of course, that is true. Unfortunately, in some cases, it really isn’t.

In the article below, the Charleston (WV) Gazette spotlights an important point: a parent who does not threaten his child’s physical safety may nonetheless damage the child, in ways that are not always readily apparent to others. The article below refers to such abuse as a “silent form of abuse”. It is also often referred to as “hidden abuse”.

Who are the victims of the featured father’s alleged non-violent abuse of his son? The article makes it clear that both the son and the mother are victims, in different ways, of course.

But, on a deeper level, every girl/woman in the son’s present and future life may also be victims of this father’s alleged influence on his son. And the relationships they might otherwise have had. Because of visitation.

Charleston Gazette (West Virginia) – December 4, 2005, Sunday

EDITORIAL; Pg. P1E

Visits to abusive parent can harm innocent child

Kari Major, For the Sunday Gazette-Mail

I was sitting on my front porch having coffee with my neighbor Melanie. She moved her leg to the side, revealing an angry-looking, softball-sized bruise.

“Isn’t this lovely?” she asked. She told me how her 8-year-old son had kicked and punched her when she asked him to come to the table for dinner. This really surprised me. Brian is a friendly, easygoing kid with no history of behavior problems. When I asked her why on earth he would ever do such a thing, she replied, “Because his daddy told him he could hit me all he wants, because I’m nothing, and I don’t have any feelings.”

Although Melanie obtained a divorce and moved away from her abusive ex-husband five years ago, the family court in the county she lived in granted him “shared parenting” rights. Melanie noticed early on that Brian’s behavior would deteriorate after returning from his father’s house. Complaints to her attorney and the family court system were met with accusations of fabrication. Her ex-husband’s attorney threatened to take Brian away if she didn’t stop “harassing him about his parenting style.” She now takes Brian to weekly counseling sessions, to try to undo at least some of the damage.

Melanie’s situation is common. Even though she was able to cut all ties to her ex-husband, the laws that were designed to help battered women offer inadequate protection for her children. This flaw in the system places them in situations that are at best unhealthy, and at the very worst, terrifyingly dangerous.

Domestic violence is a pattern of coercive behavior used by one person to maintain power and control in a relationship. When the victim is able to break free from the cycle, the children rapidly become the abuser’s most effective weapon to control, harass, and ultimately harm the actual target – the other parent. Although most often identified with fathers, mothers are equally able to use their children as inanimate pieces of property, to financially drain the other parent, or simply to inflict emotional pain.

What does this teach children about domestic violence? It teaches by example that domestic violence is to a great degree acceptable. If one is assaulted by a stranger, there would be very little, if any, further contact with that person. But when that person is a parent, spending time with them is not optional. When visitation is forced upon the child, it teaches the child that the abuser continues to be dominant, that they are less important, and that their needs don’t matter. It simply renders them powerless.

Our family court system needs to develop new guidelines to protect children from this insidious, often silent form of abuse. Under the current statute, children are required by law to spend time with the noncustodial parent until the age of 14. Custodial parents who do not comply with the court’s ruling can face fines, court costs, and even incarceration. In Melanie’s situation, the fear of losing custody of her child to the abuser is so intense, she feels she has no choice but to continue to return him to his father as ordered. Children like Brian desperately need the protection of the courts.

Physical violence and emotional abuse are not isolated behaviors directed at only one victim. As long as our system continues to place the children of abuse in the hands of the abusers, we will continue to sow the seeds of abuse for generations to come.

For educational purposes only and not intended to infringe on Copyright 2005 Charleston Newspapers

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Should a stepparent have any parental rights?

Where there is no living legal parent, should a stepfather be allowed to decide to continue extraordinary measures to maintain the life of a child reportedly in a persistent vegetative state? That is the question pending before the highest court in Massachusetts.

In a prime example of how the complex and messy factual details of a case may sometimes clash with the pristine logic of pure legal theory – or simple common sense, consider that the stepfather reportedly may be charged with the child’s murder if the social services agency having legal custody of the child is allowed to terminate her life support.

The entire sad article is below.

Mass. High Court Hears Life Support Case

by Adam Gorlick
Associated Press
Dec. 7, 2005

A man accused of beating his stepdaughter tried to convince a skeptical Supreme Judicial Court on Tuesday that he should have a say in whether the 11-year-old is removed from life support.
Jason Strickland, who could face a murder charge if Haleigh Poutre dies, wants the state’s highest court to overturn a juvenile court judge’s decision that he has no parental rights over the girl, who is now in state custody.

“Without intervention from this court, this child will die,” said John Egan, one of Strickland’s lawyers.

Haleigh was hospitalized in September with severe brain injuries. Police say she had been beaten by Strickland and his wife, Holli, who was Haleigh’s adoptive mother.

Within two weeks of being charged with assault and battery, Holli Strickland, who was also Haleigh’s aunt, was found dead alongside her grandmother in a possible murder-suicide. Jason Strickland, a 31-year-old auto mechanic, is free on bail while awaiting trial on assault charges.

In September, a juvenile court judge granted a request from the state Department of Social Services to disconnect Haleigh’s ventilator and feeding tube. Strickland is trying to fight that ruling by arguing he should be designated as the girl’s de facto parent because he lived with her for four years.

But that argument didn’t fly with some of the justices. “That’s not going to do it,” Chief Justice Margaret Marshall said.

Both she and Justice John Greaney indicated they are unlikely to give Strickland what he wants.

“He has no standing,” Marshall said.

She said de facto parenthood is typically reserved for someone being prevented from having a relationship with a child by the child’s biological parent.

Greaney expressed concern about putting the girl in the custody of her alleged abuser.

Strickland’s lawyers say the state has pushed for removal of Haleigh’s life support, but no one has argued that the girl should live.

“There should always be someone who will argue for life,” Egan said.

Strickland has been denied access to the juvenile court proceedings because he is not a parent. His lawyers also argued Tuesday for those records to be unsealed.

Virginia Peel, a lawyer for DSS, which has legal custody of the girl, said Haleigh’s doctors have agreed she will not come out of her vegetative state.

“This is not about the right to life,” Peel said. “This is about the circumstance under which this person is allowed to die.”

Both of Haleigh’s doctors agree she should be removed from the ventilator, but they are split over whether her feeding tube should be disconnected.

They have said that with her feeding tube alone, Haleigh could live as long as two months. Without any life support assistance, she would die much sooner, the doctors said.

Egan said Strickland should be allowed to have another doctor examine the girl, but Peel said that isn’t necessary.

“When you have consistent medical opinions, why do you have to find a doctor who might – who might – challenge that,” she said.

Haleigh was adopted by her aunt about five years ago after her biological mother moved to Virginia with a new boyfriend. Jason Strickland never formally adopted the girl, but is arguing that as the stepfather, he should be considered a de facto parent and allowed to have a say in whether she lives or dies.

A baby sitter for Haleigh testified last week in Westfield District Court that she had watched Holli Strickland repeatedly kick Haleigh down a flight of stairs and beat her with a baseball bat. She also said Jason Strickland had hit Haleigh with an open hand and a plastic stick.

For educational purposes only and not intended to infringe on Copyright 2005 Associated Press

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Private Finances and Corporate Records: Should They Go Public in Divorce?

As I’ve posted previously, a divorce is a lawsuit. In many states, that means the lives of the divorcing parties are an open book. Needless to say, most of those books are not the stuff of best-sellers.

But, in one sense or another, some of them are.

Many states, including Florida, now require detailed financial disclosures from divorcing parties, to promote fairness in the division of marital property. Where a divorcing party is a principal or high level executive in a corporation, the the result of such disclosures is that a corporation becomes, in effect (and sometimes literally), a party to a divorce.

In this way, divorce may make wealthy parties and certain businesses vulnerable to becoming the unwitting stars in future best-sellers. Similar publicity can threaten the viability of certain businesses.

For these reasons, wealthy parties and privately-owned corporations alike have been fiercely fighting to evade these public disclosures, to keep what they view as private information, private.

The local Broward Daily Business Review recently ran the article below to spotlight this conflict between privacy protections one the one hand and sunshine (open public records) laws on the other hand.

Broward Daily Business Review

November 18, 2005 Friday

PUBLIC RECORDS; Pg. 12 Vol. 62 No. 32

1708 words

Business and divorce;
PUBLIC RECORDS;
Corporations seek to seal family files to protect trade secrets, salary information, share prices

Tresa Baldas

The nation’s courts are getting hit with a growing number of requests to seal divorce records but not by squabbling couples.

Divorce lawyers say corporations ? along with the rich and powerful ? are increasingly asking judges to seal the divorce records of top executives to protect trade secrets or crucial financial information from leaking out, or simply to avoid embarrassment.

Attorneys note that while the courts have long protected children in divorce cases by sealing records, they are now doing the same for companies, treating trade secrets, assets, stock values and executive salaries as valuable, sensitive information that needs special protection.

And with state court records now available on the Internet in 30 states, fears of data theft or data leaks are at an all-time high among businesses.

“This has become an increasingly prevalent issue,” said attorney James Feldman, head of the family law practice at Chicago’s Jenner & Block, who in recent years has seen a notable increase in companies intervening in divorce cases. “This year alone I’ve represented several key executives in divorce cases where a protective order or a confidentiality agreement had to be obtained in order to prevent information from getting out.”

Feldman noted that companies fighting disclosure of financial data in divorce cases has become more popular in recent years.

“It seems like in the old days it wasn’t done that often. And in the new days, it happens all the time,” Feldman said, adding that judges have become more sensitive to corporate concerns, especially “if you can show that disclosure will harm the business.”

Meanwhile, attempts to restrict or limit access to divorce records have kept divorce lawyers and corporate counsel busy in the courtroom.

Most recently in California, on Oct. 17, investment giant Capital Group Cos. convinced a California judge to limit access and seal secret company information in the divorce trial of one of its executives.

Also in California, billionaire investor Ron Burkle is seeking to keep his financial records sealed in his divorce, and is appealing a March court ruling that struck down a California law allowing financial data in divorce records to be sealed. A group of newspapers is challenging that year-old law on constitutional grounds.

In New Hampshire, a new law that seals financial statements in divorce and child support cases is being challenged before the state Supreme Court by five newspapers. The case isAssociated Press v. State of New Hampshire.

In Connecticut, the sealing of divorce records triggered a major controversy in 2003 when the Connecticut Law Tribune, a sister publication of the National Law Journal and the Daily Business Review, discovered a “super-secret docketing system” that allowed special treatment for prominent divorce cases and other civil matters. The Connecticut judiciary passed new rules that set standards for the closing of courtrooms and sealing of materials, among them a rule requiring a judge to articulate the reasons for the closure or sealing and why they override the right of access.

Family lawyers irked

On the legislative front, several states have introduced legislation in recent years to restrict public access to divorce records. California, New Hampshire and Virginia successfully passed bills limiting access. Colorado and Kentucky tried but failed to pass similar laws. And Utah and South Dakota are considering measures to limit access.

Such attempts to restrict public access to divorce documents have irked First Amendment lawyers and many family law practitioners, who argue that the proceedings are too secretive and foster the perception that the rich and powerful get special treatment in the courts.

“The desire for corporate secrecy is outweighing the public’s right to know,” said First Amendment attorney Susan Seager, who argued against the sealing of records in the recent California case involving Capital Group Cos.,Armour v. Ritter. “When courts conduct private proceedings behind closed doors it creates public mistrust and suspicion.”

That is what she claims happened in the divorce trial of 45-year-old Timothy Armour, an executive with Capital Group, which last month convinced a judge to partially close the divorce trial to the public and seal various exhibits and transcripts. According to court documents, attorneys for Capital Group argued that certain information, such as executive pay levels and stock awards, would hurt the company if made public.

“CGC strongly believes that it is absolutely vital to its competitive position and business interests, as well as the privacy interests of its associates and employees, that its confidential information be protected from disclosure to the public,” attorney Pamela Palmer of Latham & Watkins’ Los Angeles office, who is representing Capital Group, stated in court documents.

Palmer declined to comment.

Philip De Toledo, chief financial officer for Capital Group, stated in court records that disclosure of his company’s financial position, stock ownership and employee compensation “would be an informational windfall” to competitors. He also argued that disclosure “would be very harmful to CGC’s corporate culture and the morale of its employees.”

Those claims outraged Seager, who in arguing against Capital Group on behalf of the Los Angeles Times, the Associated Press and a newspaper group, claimed that the company had no grounds to close the trial.

“An executive salary is a trade secret? I’ve never heard of that before. And they argued that [disclosure] would hurt company morale. That doesn’t seem to be a basis for shutting down a trial,” Seager said. “It’s one thing to ask that part of a deposition be sealed, or a part of a record that reveals an honest-to-God trade secret … but that doesn’t mean that the guts of the trial ? the testimony, the opening statements ? are done behind closed doors.”

Only for the rich?

Several divorce attorneys across the country echoed Seager’s sentiments, maintaining that the public’s right to know how divorce proceedings are conducted outweighs privacy rights. Several also expressed concern that public access to divorce records is increasingly becoming threatened.

“I think that perhaps we’re seeing a lot more of this coming to light now. I also think that more people are becoming aware that divorce records are public records. And people are much more sensitive to wanting more records sealed,” said divorce attorney Sharyn Sooho, founder of DivorceNet, a 10-year-old divorce consulting Web site.

Sooho believes that the public is best served with open divorce records, not closed ones.

“It should be well known to the litigants that the records are not sealed. It begins that slippery slope: ‘What’s too private? What’s not?’ We don’t have to tell everything to the public to be discreet,” Sooho said.

Albert Momjian of Philadelphia-based Schnader Harrison Segal & Lewis said that his concern with sealing divorce records is that only the rich and powerful who can afford attorneys will have access to such privileges.

“When they’re sealed, they’re going to be sealed for the high-profile cases. And I don’t think it’s fair when people who don’t have that kind of wealth can have their smut exposed,” Momjian said. “Why should wealthy people get the protection that other people should get?”

Momjian noted, however, that the courts aren’t always willing to help the rich. Ten years ago, when he handled the divorce of Larry King, he requested that court proceedings remain closed. The judge said no and allowed 16 reporters to come in.

“The judge said, ‘This is a public forum and a public courtroom. There’s no reason to do that,’ ” Momjian recalled.

Faster settlements

From a strategic standpoint, divorce attorney Steven Lake of Chicago-based Lake Toback & D’Arco believes that an open-records policy helps divorce lawyers secure settlements faster.

He noted that when company executives know that information in court proceedings could be made public, they’re more likely to settle with a spouse than risk possible embarrassment or disclosure of sensitive company information.

“I’ve got a woman whose husband’s family is worth a billion dollars. And the fact that we’re going after them and that some of this stuff may become uncomfortable is exactly the leverage I need for them to sit down at the table with us and settle the case instead of screwing around with it,” Lake said.

On the other hand, Lake, who also represents companies that get tangled in divorce cases, acknowledges that not everything should be made public in divorce litigation. He said that there are ways for attorneys to get around open-records laws so that sensitive corporate material remains out of the court file.

For example, he said, divorce settlements can be drafted in a way that they don’t have to be filed with the court.

“We strongly recommend that when a company receives a subpoena in a divorce case that they maintain their own counsel and come in and try to protect themselves. And I think the judges are sensitive to that,” Lake said.

“I don’t think it should be a secret system, but you should have the opportunity to protect children and protect people from needless public exposure, companies too,” he said.

Atlanta divorce attorney John Mayoue, who has handled the divorce cases of Jane Fonda, Newt Gingrich and Halle Berry, believes that there should be a limit on the public’s right to know.

Given the rise of the Internet and the looming threat of identity theft, he said that open divorce-records policies should be limited to facts of public interest and not include any personal finances or personal matters.

“I think it’s stretching the First Amendment to say that the public needs to know the balance ‘John Q’ has on his MasterCard,” said Mayoue of Warner Mayoue Bates & Nolen in Atlanta.

Mayoue currently is handling several divorce cases in which he is seeking to have financial information sealed.

“My biggest concern is having persons with access to personal information that they will misuse,” Mayoue said.

“A lot of courts don’t like to seal. But courts will find ways to provide protection for confidential information,” he added. u

Tresa Baldas reports for the National Law Journal, an affiliate of the Daily Business Review.

For educational purposes only and not intended to infringe on Copyright 2005 ALM Properties, Inc.

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GA: Marry a Child Victim to Get Out of Jail, Freed of Statutory Rape Charges

According to the article below, in some states, including Georgia, a child can marry at any age – sometimes without parental consent – if the bride is pregant.

In such states, the policy favoring legitimizing children born out-of-wedlock has spawned an unintended byproduct: adults can evade prosecution or conviction for child molestation or statutory rape by marrying their child victims.

Under spousal privilege, prosecutors cannot compel one spouse to offer certain types of evidence against the other spouse in certain types of criminal proceedings.

A local Broward County woman has turned activist to try to change this Georgia law, which resulted in her niece marrying at age 13.

Georgia Examines Law That Allows Kids To Wed

by Greg Bluestein
Associated Press

Nov. 16, 2005

Ever since her 13-year-old niece wed a 14-year-old boy last year, Sharon Cline has sent lawmakers a slew of letters begging them to change a Georgia law that allows children of any age to marry – without parental consent – as long as the bride-to-be is pregnant.

“Some of the lawmakers just didn’t believe this could happen,” said Cline, who lives in Weston, Fla. “It was very frustrating.”

They’re believers now.

Lisa Lynnette Clark, 37, was charged last week in Gainesville with child molestation for allegedly having a sexual relationship with a 15-year-old friend of her teenage son. Just days before her arrest, she wed the boy under a Georgia law that allows pregnant couples to marry regardless of age and without consent.

Disturbed by the child groom, Georgia lawmakers may soon debate changing a law that many didn’t know even existed. Geared toward preventing out-of-wedlock births, the law dates back to at least the early 1960s.

“I never knew it was in the code until this morning,” Jerry Keen, the state’s House Majority Leader, said Tuesday. “Our legislative counsel – the lawyers who draft the laws – even had to look it up.”

Most states require minors to get their parents’ permission before they marry. And if a person is 16 or under, many states require approval from parents and the court. But some states allow minors to marry without parental consent in the event of a pregnancy or birth of a child, although the couple may have to get permission from a court.

Still, Keen and other leaders in the Republican-controlled Georgia Legislature stopped short of endorsing a change to the state’s marital requirements.

“It’s very difficult to govern by exception. You have to govern by rule,” Keen said.

Instead, Keen and Senate Majority Leader Tommie Williams said the state’s GOP lawmakers will focus on passing stricter penalties for those convicted of child molestation. Keen said the legislation would require convicts to spend at least 25 years in prison and wear an electronic tracking device within the state’s borders after their release.

Democratic lawmakers, recently in the minority after more than a century in power, may hope a proposal to change the marriage standards will drive a wedge in the GOP majority.

State Rep. Karla Drenner said she plans to author a bill that would bar children under age 16 from marrying regardless of the circumstances or at least would require parental consent.

As the only openly gay elected official in Georgia’s state government, Drenner said the irony of the lax marriage standards for minors is not lost upon her – particularly a year after lawmakers passed a constitutional amendment banning gay marriage.

“We’re protecting society from the perceived threat of homosexual marriage, which was already illegal,” she said. “But yet if you’re pregnant, you can get married – and it doesn’t matter if you’re 9 years old or 10 years old.”

Meanwhile, Daniel Sammons, Clark’s court-appointed attorney, said he likely will use the marriage as a shield to prevent the boy from testifying against Clark.

Sammons said his defense is also bolstered by a 2004 U.S. Supreme Court ruling that restricted prosecutors from using a wife’s taped statement to police to try to undermine her husband at a trial. The ruling, he said, will make it difficult for prosecutors to rely on a witness statement that the boy gave detectives.

For educational purposes only and not intended to infringe on Copyright 2005 Associated Press

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Artificial Intelligence Previews Alternative Final Judgments Revisited

Back in September, I posted on the topic of Artificial Intelligence Previews Alternative Final Judgments. My post was totally inspired by an article I had read in the Sydney Morning Herald about a software project in Australia. You can read my original post with the text of the Herald article here.

One of the developers of the profiled software, Professor John Zeleznikow of the School of Information Systems at Victoria University, recently e-mailed me with some comments on my post. I thank Professor Zeleznikow for his readership, for sharing his insights and for granting me permission to post his comments below.

A very interesting article.

I think you have misunderstood some of our research. Reading a
newspaper article does not give the full details of our work.

First of all, we do not claim everything can be reduced to rules. In
some areas we use machine learning to try to understand patterns of
judicial decision making. And we accept there should be no
inferencing re child welfare or refugee law.

In Australia, child support is mandated – the court has no discretion.

We have learned how judges distribute property.

We do not argue that child custody should be awarded to a parent
simply because that parent wants it the most and allocates the most
points to it. In fact we explicitly say interest based negotiation is
more relevant to industrial relations than child welfare issues.

In Australia, parents do not have automatic rights to see for or care
for their children (the only test is the paramount interests of the
child). Nevertheless, some parents still negotiate as if they own
their children.

I stand by my original post, which, like my comments in this post, are about family law dispute resolution software generally and not about any specific piece of software in particular . As to the Victoria University software project, I have no specific firsthand knowledge or experience with it.

Still, I don’t think Professor Zeleznikow and I are in disagreement.

Rather, I think my original post focused on why I think the glass is half empty with respect to family law dispute resolution software in general. And Professor Zeleznikow’s comments focus on why he thinks the glass is half full.

I think we both agree on what it is that is in the glass though.

I look forward to following the progress, evolution and adoption of Professor Zeleznikow’s intriguing software in the field.

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