Parenting Disaster

The tables were sadly turned on a well-meaning former Pennsylvania prosecutor and his wife when they were charged with child abuse. The couple, Douglas and Kristen Barbour, thought they were doing the right thing in adopting two children from Ethiopia, but soon learned they were not equipped to parent these children with special needs.

The Barbour’s adopted a 6-year-old boy and an 18-month-old girl in March of 2012. They believed if they raised the children as they had raised their two biological children, they would fare well in raising four well-adjusted children. Unfortunately, the children did not adjust as well as the parents had hoped and the Barbour’s soon recognized they needed help. They sought the advice of an expert in foreign adoptions but refused to follow his recommendations to be more flexible with their parenting style. They wanted to parent the way they saw fit.

Small Girl

The Barbour’s made sure to bring the children to the doctors when the children were ill and tried their best to handle the children’s behavioral issues. However, it was soon clear the parents could not meet the children’s needs and the children suffered as a result. Although the boy was six, he went to the bathroom in his pants. The parents attempted to discipline him by forcing him to eat in the bathroom or stand alone in the dark. The girl had multiple head fractures – though the parents allege it was because she was clumsy – the doctors who examined her were doubtful of that conclusion. As a result, the boy was malnourished and ended up losing 10 pounds in the Barbour’s custody and the girl was healing from multiple fractures.

Similar situations have happened in Phoenix, Arizona and Birmingham, Alabama in recent years, where excessive punishment lead to criminal charges that made national news. Clearly they were lacking parenting skills that would enable them to cope with behavioral issues. Arguably, none of these parents intended to hurt their children. In fact, several sought help from experts, but in the end were painfully unsuccessful in their parenting attempts.

Click here for more on this story.

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Implications of Protective Orders

Orders of Protection are not to be taken lightly. There are many ways an Order of Protection can affect your life.

In Arizona, Orders of Protection are governed by the Arizona Rules of Protective Order Procedures. An Order of Protection is sought when someone feels they are in danger of being physically harmed or have been physically harmed by another person. The other person must have had some type of relationship with the person they are seeking the order against. There are many relationships the parties could share or have shared in the past giving rise to a need for an Order. These relationships could include former lovers, relationship through marriage or blood, residing together or having a child in common.

Confrontation

In order to get an Order of Protection, the Plaintiff (requesting party) needs to go to Court and file a Petition for the Order of Protection.  The Petition could be filed with a municipal or justice courts in places like Mesa, Glendale or Scottsdale or in the Superior Court in Phoenix.  The Court will consider the Petition for Order of Protection and can grant the Order based solely upon what the Plaintiff says.

Once the Order is granted, it is served upon the defendant (other party).  At that point, the Defendant has the right to contest the Order of Protection.  If a hearing is requested, both parties need to appear in the Court it was requested from and the Court will decide whether the Order should be kept in place, modified or dismissed. This is a crucial point in the case. If an Order is not defended or contested properly, it could have lasting implications on you.

What could that mean for you if the Order is issued against you, or upheld against you after a hearing?

Orders of Protection are likely to show up on background checks run by potential employers preventing you from obtaining certain jobs. An Order of Protection could also get you terminated from your current position or reassigned to other duties within a company or government. Orders of Protection prevent you from possessing a firearm and if you already own one, forces you to relinquish it. The Court could also order the exclusive use of residence to the Plaintiff which could be problematic if the two parties are residing together.

Gated Patio

The Order may also limit your ability to see or communicate with common children, and that could also have an effect on any other pending family court cases.  Fortunately, according to 17 Rules Protect. Ord. Proc., Rule 1, Orders of Protection cannot list a child unless the judicial officer believes that “physical harm has resulted or may result to the child, or the alleged acts of domestic violence involved the child.” Under emergency circumstances, a judge may err on the side of caution and enter a child on a temporary basis, but unless it can be proven that the child is in danger they are not likely to keep the child listed on the order if the Order is contested. This is a small consolation because in the end an Order of Protection could affect overall parenting time and legal decision-making.

Those are just some of the many potential problems that could result from an Order of Protection being entered against you, and upheld after a hearing. Having an attorney could mean the difference between an Order being quashed and an Order being upheld against you.

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What Happens to Children When Parent’s Split?

There is a growing trend in divorce cases to award equal parenting time to both parents. Several states including Arizona have joined this trend and modified their statutes to reflect this.  Parents in Phoenix, Arizona have seen this trend through the change laws enacted in the beginning of 2013. Specifically, the language in the statutes changed from “custody” to “legal decision making,” signifying a change in the attitude towards parents’ rights and responsibilities for their child(ren).

Dad with kids

From a historical standpoint, the trend in parenting time arrangements has dramatically changed over the years. In the beginning, women were free to leave men, but the children stayed with their father – as the children were considered more akin to property. The trend slowly moved towards a court system that favored mothers – as the belief was that mothers provided a more nurturing environment, especially for younger children (also called the tender years doctrine).

All that may be history now. Though there are exceptions (which may include domestic violence, substance abuse, mental health issues, and other safety concerns), Courts have recognized the need for both parents to have a loving and healthy relationship with their children.

This also means that Arizona now sets out to “maximize” each parents’ parenting time with the child(ren). To further illustrate the importance of this trend and policy, Arizona legislature has addressed the issue in its statutes. Specifically, the best interest statute, ARS § 25-403(A)(6), states that the Courts must consider “which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent.”

Mother with child

If the Court finds that a parent is constantly trying to play “keep away” with the children or is constantly putting the other parent down in front of the children, it will likely have a negative impact to that parent’s time with the children. Courts are reluctant to tear children away from either parent and courts want each parent to foster a healthy relationship with their child(ren).

An important point to consider during a divorce or custody proceeding, is that it’s more than likely you will be sharing parenting time for the children. If you do not encourage a healthy bond with the other parent, it is possible that you will be the one to lose parenting time.

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Do Grandparents Have Rights When it Comes to their Grandchildren?

We have all had family fights. Disagreed with our parents or rebelled when we were teens and thought we knew everything, but what happens when that fight leaves the family in pieces?

Family Picnic

When adults have disagreements, they are often caught up in the heat of the moment. They say things they don’t mean and they do things they would not otherwise have done. Sometimes this means parents deny grandparents’ access to their grandchildren. Unfortunately, parents are not often thinking of the effects that this denial may have on their children. Grandparents today are often very involved in the upbringing of their grandchildren. This begs the question; do grandparents have the right to fight for time with their grandchildren?

In Arizona, there are circumstances in which grandparents have standing to fight for legal decision-making rights and placement of, or visitation with their grandchildren. However, it is difficult to meet the standards of the court.  According to the U.S. Supreme court, parents have a fundamental right to raise their children as they see fit. What this translates to is that there are a number of legal hurdles that grandparents must overcome before they are granted any rights with respect to their grandchildren.

According to A.R.S. § 25-409(A), to gain legal decision-making rights and placement for a grandchild over the objection of the parents, the grandparents would have to meet a number of prerequisites. First, the grandparents have to prove that they have been treated as a parent by the child and have formed a meaningful relationship with the child for a substantial period of time.

After jumping that hurdle, the grandparents must show, that it would be significantly detrimental to have the child remain in the parents’ home; and that is just the beginning. Those requirements are just a part of the bigger picture a grandparent must paint in order to gain legal decision-making rights and placement of their grandchildren. The State has adopted these measures to afford parents protection of their fundamental rights to parent.

Grandparents

States must balance the delicate interests of parents and grandparents at stake and try not to infringe on the parent-child relationship, if it is not necessary. This is because courts are under the general assumption that a parent is fit; and a fit parent is able to make all necessary decisions for their children without intervention. Any case made to the contrary, has a heavy burden to bear in proving otherwise. Having an attorney experienced in these matters can be crucial for a grandparent fighting for legal decision-making rights and placement of grandchildren.

Alternatively, grandparents can file for visitation under A.R.S. § 25-409(C) (rather than trying to remove the child from the parents’ care). The hurdles grandparents must overcome for visitation are slightly lowered compared to that of legal decision-making/placement rights; however, there is still a substantial amount of proof needed to prove it is in the child’s best interest to have visitation with the grandparents.

Let’s look at an example. If a Tempe grandmother wanted to petition for visitation rights with her grandson, she would have to file a petition with the Maricopa County Superior Court.  She would first have to establish that either one of the parents was deceased, of that the child was born out-of-wedlock and the parents are not married, or that the parents are divorced.  After meeting this initial requirement, she then has to prove her relationship with the child and why it is in the child’s best interest to have her continued presence in his life. She would have to offer evidence of her historical relationship with him and establish his reliance on her presence, explain her motivation for the request for visitation, and how the requested visitation may impact the child’s customary activities, among other best interests’ factors.

If she can show that she has been a substantial part of the child’s life and the child would suffer if she were no longer able to see them, the court may decide that it would be in the child’s best interest to have continued visitation. Though this may not seem like a substantial burden, proving the best interest of the child can be a tricky topic to maneuver around, especially since courts are hesitant to step on a parents’ right to raise their child as they see fit – even if that means alienating grandparents.  Again, having an attorney experienced in these matters can be crucial for a grandparent fighting for visitation with their grandchildren.

Grandparent with Mother and ChildrenSo, while Arizona does provide some options for grandparents seeking time with their grandchildren who have been cut off from them, it does not and cannot afford the rights some grandparents wish to have. Sometimes the best option is to seek mediation or family counseling and try to reconcile the situation, though sadly, in such instances, mediation may not be an agreed upon option, leaving grandparents with the difficult decision as to whether to fight for their legal rights.

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Munchausen by Proxy?

It’s a tragic story. Garnett Spears, a 5-year-old boy, was given deadly amounts of sodium through his feeding bag, allegedly by his mother.

After beginning treatment, hospital tests revealed unusually high amounts of sodium in the boy’s body, which accounted for his neurological symptoms. With this bizarre finding, the doctors at the hospital immediately notified CPS, who began an investigation into the matter.

Children at hospital

In Arizona, according to A.R.S. § 13-3620, it is mandatory for treating physicians to report any reasonable belief that a minor is a victim of physical injury or child abuse. For instance, if a Mesa mother brought her son to Cardon Children’s Medical Center with burn marks that appeared to be caused by a cigarette, they would likely contact CPS to investigate the incident.

New York has a similar law, NY SOC SERV § 413, which states that physicians are required to report if a child has been maltreated or abused and has come to them in their official capacity. The doctors in this matter saw a red flag in the unusual test results and knew they must report the incident immediately.

While the boy was in the hospital, his mother called a neighbor to dispose of his feeding bag. The neighbor, suspicious of the odd request, decided to retrieve the bag but instead of disposing of it, turned it over to investigators looking into Garnett’s death.

Mother and ChildWhen the authorities received the feeding bag from the neighbor it was tested to determine if he was being fed the high amounts of sodium through the feeding bag inserted into his abdomen. Tests revealed the bag indeed contained high levels of sodium that accounted for the dangerous levels of the chemical that killed him. Unfortunately, it was too already late for Garnett.

Through investigation, authorities found that the mother had been documenting the son’s multiple illnesses through social media. They believe Spears may suffer from Munchausen by proxy and caused her son’s illness, and ultimately death, for attention. It is likely she did not intend to cause the untimely death of her son but that was the regrettable result.

Family and friends gathered in support of Spears through her posts regarding her son’s illness and his stay at the hospital was no different. Spears denies giving her son the excess amount of sodium, but authorities are still investigating the matter and will likely charge her with the crime.

Posted in Brad TenBrook, Gregg R. Woodnick, Leslie A. Satterlee, Muchausen By Proxy, Parenting Plan | Tagged , , , | Leave a comment

Can Refusing Your Kid McDonald’s Make You Unfit to Parent?

Attorney David Schorr was accused of being an unfit parent by a psychologist in New York because he refused his 4-year-old child McDonald’s. The New York father currently has visitation time with his son every Tuesday. Mr. Schorr asked his son what he wanted for dinner and the son replied with the typical child response… McDonald’s!

Mr. Schorr was not enthused about the thought of having fast food for dinner and offered several other options. The son refused all other options and proceeded to throw a fit to get his way. The exasperated father finally “put his foot down” and said if his son did not choose something other than McDonald’s, they would have nothing. To his dismay, the son chose nothing. Mr. Schorr returned his son to his mother without getting him their Tuesday night dinner.

French Fries

This all happened in the midst of a bitter custody battle. Sometimes in Arizona, when custody battles become a convoluted mess of “he said-she said,” courts appoint a forensic psychologist to speak with the family and make recommendations about the best interest of the children involved.  If a Scottsdale father is alleged to be unfit for refusing to take his spoiled kid to Sapporo, there are numerous psychologists and family interventionists in Maricopa County who may be asked to step in. That was likely the case in this custody battle. Though the courts are not required to follow the recommendations of the psychologist, they often put a lot of weight on the recommendations. Mr. Schorr was outraged by the accusations and recommendations in the psychologists report and brought a defamation suit against the psychologist.

To read more about the “unfit” McDonald’s denier, click here.

Posted in Brad TenBrook, Divorce, Gregg R. Woodnick, Leslie A. Satterlee, Parenting Plan | Tagged , , , , | Leave a comment

Jersey Girl Sues Parents: What to Make of the Rachel Canning Case

The nation has been swept into a furor in the past few days over a New Jersey girl suing her parents.

Rachel Canning, 18, filed a complaint against her parents, alleging that they abused and mistreated her before kicking her out of the house, stopping payment of her private high school tuition, and “redirecting” her college fund.

Sean and Elizabeth Canning, Rachel’s parents, counter that she left of her own volition because she did not like house rules (e.g. curfew) and refused to dump a bad-influence boyfriend after being given an ultimatum.  Moreover, Sean and Elizabeth indicate that Rachel was disrespectful to them and was repeatedly disciplined at home and school for bullying her younger sister.

School Grounds

More troublesome allegations include that Elizabeth psychologically abused Rachel, calling her disparaging names and destroying her self-image to the extent that Rachel developed an eating disorder.  The eating disorder, Rachel claims, made her too weak to continue playing basketball (a sport for which she would likely have earned a college scholarship).

Rachel also contends that her father has an inappropriately affectionate relationship with her, having provided alcohol on numerous occasions and treating Rachel as “more than” a daughter.  A cursory investigation by New Jersey officials did not reveal abuse, but the findings were far from substantial.  Sean and Elizabeth countered with a disturbing voicemail in which Rachel berated her mother.

Rachel has been living with a friend whose father, an attorney, supports the lawsuit and has paid Rachel’s legal fees to this point.  The parents of Rachel’s boyfriend have also made statements defending their son and simultaneously indicating that Rachel’s alleged misbehavior began before her son was involved and that Rachel’s allegations of abuse are true.

The courts have also been dragged into the dispute: yesterday, a New Jersey judge denied Rachel’s petition for her parents to pay her outstanding school tuition and living expenses until the case is resolved.

Meanwhile, commentators both amateur and professional have taken to television, radio, and social media around the country to express their opinions of the case, Rachel, her family, and the state of parenting in the 21st century.

Amid the chaos, however, are some real legal issues (and misunderstandings) to consider:

1.      What is Rachel’s case?

Part of Rachel’s suit against her parents rests on the assertion that she was abused and subsequently abandoned during the school year.  Although the Canning case is in New Jersey, Arizona law provides a similar basis for the idea that parents must support children while they remain in school:  “Except [in cases of sexual conduct with a minor or sexual assault], every person has the duty to provide all reasonable support for that person’s natural and adopted minor, unemancipated children … the court may order support to continue past the age of majority.  If a child reaches the age of majority while the child is attending high school or a certified high school equivalency program, support shall continue to be provided while the child is actually attending high school or the equivalency program but only until the child reaches nineteen years of age unless the court [orders that the obligation continue].” Ariz. Rev. Stat. § 25-501.

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Tremendous public confusion has resulted from Rachel’s attorney insisting that Rachel does not want to be emancipated from her parents, mostly because the common understanding of parental obligations is that the duty to provide support terminates automatically when a child turns 18.  As demonstrated in § 25-501, however, the obligation that every parent has to support children persists through high school (until age 19), or even longer if a court finds support necessary.

Rachel’s argument that her parents should pay her college tuition is more complicated because the law does not generally require parents to pay for post-secondary education.  Rachel’s attorney might argue that Rachel and her parents had a binding agreement that she would gain access to her college fund once her application to a university was accepted.  It is also possible that Rachel’s case will call on college tuition orders in divorces as precedent that parents are obligated to pay college tuition in some circumstances.

Notably, the U.S. Department of Education does not allow financial aid administrators at higher education institutions to grant need-based aid unless the parents are unable to pay.  A parent’s refusal to provide financial information for the student’s aid application or refusal to pay tuition does not create need sufficient to warrant financial aid.  Even if the parents do not claim the student as a dependent or the student is financially self-sufficient, the Department will not issue aid if the parent is capable of paying.  Accordingly, Rachel must win her argument or mend her relationship with her parents in order to attend one of the numerous universities that have accepted her applications without substantial loan debt, even if she becomes independent.

 2.      Why so much talk about precedent?

In the most recent hearing, the judge chided Rachel’s attorney for asking him to set a precedent that would give parents “constant fear” that their child could sue for cell phones, televisions, or simply to avoid obeying household rules.  Notwithstanding the fact that his rhetorical questions grossly minimize the abuse allegations, the judge’s concern with precedent may have merit.

Graduation (Woodnick)

In all types of law, case-by-case decisions change the landscape.  Because courts tend to follow the reasoning used to make earlier decisions, novel cases like Rachel’s lawsuit can have lasting effects on how judges resolve future disputes.  One New Jersey family court judge’s decision is not likely to have a significant impact on common law development in New Jersey – and has negligible persuasive value for courts in any other state – because trial-level decisions do not bind other courts.

If the New Jersey judge ultimately grants Rachel’s petition for college tuition, that decision would have persuasive value in other New Jersey courts, but would have almost no effect in Arizona.  If a Brophy or Xavier student decides to sue a Scottsdale parent in the Superior Court, they will face the same uphill battle.

The only “precedent” with which the judge should be worried is that media coverage will spread misunderstanding and create uncertainty among parents, but far-reaching policy concerns of that stature create bad court decisions and should be left to the legislature.

3.      Where did this case go wrong?

Serious family disputes occur every day, to the surprise of absolutely no one. Intrafamily lawsuits, however, are far less common.  Family courts focus substantial resources on mediation, coordination, and counseling to help families resolve problems.  Only when these remedial measures fail do courts resort to trials and orders, because those orders can have a tremendous negative impact on a family’s future.  Judges greatly prefer to avoid forcing families to act if voluntary resolution is possible.

In the Canning case, speculation is rampant that attempts to mediate between the parties either never occurred or were sabotaged by everyone from Rachel’s friends, the attorney bankrolling her case, the school, the attorneys representing the parties, Rachel’s boyfriend, and the list continues.  Many commentators suggest that Rachel feels so strongly entitled to her college fund that she simply can’t understand the gravity of the situation, while others believe she is being manipulated.  It may be that Rachel is an abuse victim and is terrified of the prospect of moving back into her parents’ home.

The national uproar over the case illustrates one key observation: children do not regularly sue their parents and have a lot to lose if they do.  With all of the contemporaneous mud-slinging at the parents and (mostly) Rachel, observers seem ready to level blame and offer their 140-characters-or-less solutions to all of the world’s parenting problems.  One commenter even suggested that Rachel “find a corner” and “work off her entitlement;” a despicable and naïve response to a sad situation.

Instead of trying to fit the case into a narrative agenda, parents, teachers, lawyers, practitioners, and policymakers should see the Canning case as a sobering example of how quickly a family can be derailed and ask tough questions about how we define adulthood, family support, and abuse.

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