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Turning Points Blog

A family law blog about tying and untying knots and other common threads


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Posts filed under Children

How Ohio courts can help children in danger

August 2010

An aunt comes to visit her 3 year-old niece and finds her wandering through her father’s apartment with dad and friends passed out amid liquor bottles and drug paraphernalia. It’s not the first time.

Grandparents discover that their son, who has a warrant out for his arrest, has fled their home, taking his 18-month old child out of state.

How to rescue these endangered children? Get Children’s Services involved? Those overtaxed wheels turn slowly and can leave loving families feeling shut out and helpless.

There’s a better answer. A private action in abuse, neglect and dependency in Juvenile Court, asking for an order for immediate temporary custody, brings fast action to help a child in danger.

Not only is the initial action for temporary custody handled by the court quickly –often in a few hours—but the whole matter is generally resolved within about four months, on a timetable imposed by law. All that time, the child is safe with familiar caregivers. And the parent is notified and brought into the process so that their legal rights are protected.

Private court action on behalf of a child in danger should not be undertaken lightly. It can’t be driven by a strong difference of opinion about childrearing or simple disapproval of a parent. It’s a way to rescue a child, not a weapon in a battle.

Make sure to consult an attorney well-versed in the legal understanding of abused, neglected and endangered children, who is also experienced in pursuing this kind of legal action.

When do courts set aside parental rights?

April 2010

In 2000, the United States Supreme Court decided that parents’ interest in ‘the care, custody, and control of their children… is perhaps the oldest of the fundamental liberty interests.’ (Here is a short summary of the case, Troxel v Granville.)

This decision stands on a presumption that all parents are fit parents with a constitutionally protected right to make decisions about their children without interference from others. Many lawyers, including myself, believe this is proper.

But a question remains: Can anything override that right? Yes, in some cases, when one or both of these requirements are met:

     –Clear and convincing proof that a parent is not fit
     –Clear evidence of harm or a risk of harm to the child

A couple of examples will clarify what these statements mean in a practical sense.

Example 1: A parent with a long history of drug abuse, and seeking to evade criminal charges, flees to another state and takes along his/her infant, who has been cared for by others most of the time. Can the person who has been the primary caregiver hope to get custody of the child? Yes.

Common sense tells us that this situation may meet both requirements above. Legally, the Ohio Revised Code tends to support that view with its definitions of the neglected child, abused child or dependent child. A child who can be described under any of these three definitions is likely to be deemed at risk. Thus, the established caregiver in this situation may make a good case for custody. Most courts will take their argument seriously.  

Example 2:  A young child has bonded with a grandparent and is attached to that grandparent as a regular caregiver from infancy. After a family dispute, the child’s parents decide the grandparent can no longer see the child. In this case, everyone thinks the parents are fit parents. Can the grandparent win a court case for companionship rights? Many courts will say no: the parents are simply exercising their right to make decisions about their child.

Can the grandparent ever win? Possibly, if counsel can show convincingly that the sudden absence of the caring grandparent to whom the child is attached risks psychological harm to the child. It can be fairly expensive to make the case (potentially requiring expert witnesses, for instance) but it is not impossible.

The key here is making sure your legal representative

is versed in the technicalities of the ORC sections on neglected, abused, dependent children
is up-to-date on current understandings of child developmental/psychological needs
can realistically analyze the potential for a win
is able to identify the most practical legal strategy.

Parental rights are favored, as they should be. But in some circumstances, courts decide that the wellbeing of a child outweighs parental rights.

What are the rights of unmarried parents?

March 2010

In Ohio, the unmarried parents of a child do not automatically have equal rights. By statute, an unmarried mother is the ‘natural legal custodian’ of her child, with the right to make all the decisions. The father has no active parental rights at all.

Can unmarried fathers get parental rights? Absolutely. In order to activate their rights, single fathers can seek an order from an appropriate court. That means filing a complaint that asks the court to

1)      determine paternity

2)      allocate parental rights (shared parenting or visitation)

3)      set a proper level of child support.

Once the case is in court, both unmarried parents are taken to have parental rights and parental responsibilities: participation in parenting activities plus financial support. The only question is how the rights and responsibilities get allocated.

One rule of thumb for a single dad who wants to activate his right to be a father: do it as soon as possible. Go to court right away. Begin defining and fulfilling your financial responsibilities as early in your child’s life as you can. Do the same with your parenting time and rights.  

The longer an unmarried father waits to pursue his legal rights and responsibilities, the more likely a court is to allocate rights in favor of the primary caregiver– the mother. And that’s not because of her gender. It’s because she is already a constant, consistent presence in the child’s life.

Unmarried fathers who have not been involved with their kids generally don’t get equal time with them right off the bat. So get involved, stay involved, and seek an appropriate court order as soon as possible. That’s how you establish single fathers’ rights.

Does divorce automatically damage kids?

February 2010

Yesterday, I commented on psychologist Ruth Bettelheim’s take on child custody and support child custody and support reform and how Ohio measures up. What I didn’t emphasize was her challenge to the notion that divorce per se damages kids.

The idea that ending a marriage is automatically ‘destroying the family’ is a familiar one. But the fact is that many families endure quite well despite divorce. Mom remains Mom and Dad remains Dad, even if they are no longer married and do not live in the same residence.

Bettelheim –and others such as E. M. Hetherington– argue that most adult children from divorced parents ‘are no worse off than their peers whose parents remained married.’ In fact, Bettelheim proposes that children of divorce are often more ‘resilient, self-reliant, adaptable and independent’ adults.

But there’s a big qualifier here: high-conflict divorce, and the stress generated from it, does wreak lasting damage on children. That’s why it’s called toxic stress.

The point is inescapable: do not let the idea that one parent or the other is destroying the family become a self-fulfilling prophecy. If one or both parents allow themselves to slip into recrimination and escalating levels of conflict, the family –and kids’ lives– can very well be destroyed.

Divorce assures neither family destruction nor family bliss. Like marriage, divorce is what you make it. So the key to coming out on the positive side for kids is to continue to function as a family, that is,

–keep the relationship between parents cordial and well intentioned

–approach parenting in a unified, cooperative manner

–keep the children insulated from involvement in any conflict between parents.

You don’t have to be married or living together in one household to do that.

Ohio on the cutting edge of child custody and support reform

February 2010

Psychologist Ruth Bettelheim brought some well-deserved attention to child custody and child support reform in a recent op ed in the New York Times. She advocates for two changes in New York. First, no-fault custody proceedings that include fixed formulas for child support to avoid conflict on financial issues of parenting. Second, mediation procedures to lessen conflict over custody issues.

Unlike New York, Ohio is ahead of the curve on no-fault custody, which is now standard practice. It means that lifestyle attacks on one parent or the other are not favored; they have little impact on the allocation of parental rights, absent very specific evidence of a harmful effect on the children. In other words, shared parenting is now Ohio’s default arrangement.

When it comes to child support, on the other hand, we’re not quite on the cutting edge. Ohio does have a fixed formula for child support contributions, to ensure that, as Bettelheim says, ‘children are well taken care of in both homes, regardless of the number of days they spend in each.’

In theory, that precludes contests between parents trying to trade off days and hours of possession against dollars. The wrench in the works is that Ohio still permits deviation from the guideline amounts for a number of statutorily enumerated reasons—one of them being the amount of time the children spend in each household! So fights about time and money re-enter through the back door.

Fortunately, most courts decline to grant deviations from the formula, especially when the wealthier parent argues that equal time of possession should permit them to reduce their child support obligation.

These parents misunderstand the principle behind the formula: child support is meant to approximate the standard of living the children would have enjoyed had no divorce taken place.  Even when time of possession is evenly split, the children deserve to have an appropriate standard of living in both households. So the formula usually survives the challenge in court.

Still, the child support deviation for amount of time spent in each household needs to be removed from the statute in those cases where there is a significant income difference between parents. In these cases, delinking time spent in each household from child support paid will eliminate the need to adjudicate these manufactured conflicts. And that, as Bettelheim observes, would promote ‘the one thing that children of divorce need most: peace between their parents.’ Amen.

As to mediation for custody and other parenting issues, Ohio courts are again way ahead of New York. They routinely recognize mediation as a useful tool in finding ways for parents to communicate and to lessen conflict and its impact on children. Most courts require mediation of parenting issues and keep an experienced mediator on staff to provide litigants with a low cost alternative.

So, if you’re dealing with the allocation of parental rights, look for the processes that best serve the kids. Look into mediation and its benefits. Fight downward deviations in child support when one parent earns substantially more than the other parent. And keep the dispute on the high road, dealing only with those issues that directly impact the children.

By the way, Bettelheim also has some good news about kids of divorced parents. More about that in the next post.

Parenting plans: for everyone

January 2010

Many people think parenting plans only make sense for shared parenting, where both parents retain custodial rights to children– not just one parent who is designated residential parent and legal custodian. In those cases, the Ohio Revised Code requires a written shared parenting plan to spell out all the details of how parents will work together to raise their children.

But what about when only one parent has custodial rights? Technically, that means the other parent has only residual parental rights that come into play if something happens to the custodial parent. Typically, the non-custodial parent simply gets a schedule of parenting time (visitation). In theory, the custodial parent makes all the decisions.

So why bother with a parenting plan?

Because real life is not very neat. A child may have health issues or special needs that require both parents to agree on how they will conduct certain aspects of childrearing. A non-custodial parent may feel that his or her legitimate interests in children’s wellbeing are simply ignored, that they’ve lost the right to have an opinion. That can lead to arguments, strife and court. Not to mention the decidedly negative impact on children.

The fact is, a parenting plan anticipates and solves many problems no matter what the custodial arrangement. Here are four positive things a parenting plan will do:

SPELL IT OUT. Does a child have a special diet that both parents need to follow? Do both parents need to get specialized knowledge or training to deal with a health or developmental matter? A parenting agreement spells out important things each parent must do for their child’s wellbeing. Does it actually make sense for both parents to participate in crucial medical decisions and emergency situations? Think about it and set  it out in the plan.

ANTICIPATE ISSUES. Here’s an example—Custodial parent: ‘I won’t allow him to spend too much time with my ex’s family during visitation.’ Other parent: ‘You can’t tell me what to do when he’s with me.’ A parenting agreement brings this issue out from the start and lets parents air their viewpoints, consider what their child wants, agree on something fair, and put it in writing.

BE CLEAR. In the example above, exactly what is ‘too much time?’ An hour? A day? Or how about—‘He calls our daughter too often when she’s home with me.’ What’s too often? Three times a day? Twice a week? Or—‘She showed up at her teacher conference. That’s what I do.’ Again, the process of making the agreement puts a finger on possible grey areas, so the parties can clarify them and reach agreement.

AVOID COURT. That’s not a 100 percent guarantee. But spelling things out, facing the issues and clarifying the fuzzy areas at the outset goes a long way to reducing the likelihood of having to resort to the expense and stress of court. Many parenting agreements, by the way, specify how parties will resolve disputes—through mediation, for instance, another way to avoid costly court battles.

A parenting plan doesn’t have to spell out every last thing in detail. But the process of creating the plan makes you think about what you assume and why (and the same for your ex). It helps you sort out what’s important and what’s not, what level of participation really is fair for both parties. And it keeps the focus on the best way to get to what’s good for your children when you do disagree. That’s especially important for pre-school kids, as developmental psychologist Jean Mercer writes.

Parenting agreements prepare you both to make a challenging transition a little smoother for you and the kids you love.

Children, divorce and toxic stress, part 2– The signs

January 2010

The first post on toxic stress in children talked about how it can:

 impair development of brain circuits;

suppress the body’s immune system, rendering a child vulnerable to disease

cause cognitive deficiencies in learning and memory centers in the brain;

cause children to become unable to deal with stress in the future.

Toxic stress affects kids for a lifetime. According to a recent paper from the National Scientific Council on the Developing Child (NSCDC), toxic stress early in life can lead to lifelong anxiety disorders, depression and substance abuse, as well as physical problems including diabetes, stroke and cardiovascular disease.

Can a divorce really lead to such drastic consequences? Better question: Why wouldn’t it? To put it bluntly, high-conflict divorce with parents openly fighting can create an environment characterized by violence and neglect— whether parents and families intend it or not. As NSCDC makes clear, violence and neglect are two producers of toxic stress in kids.

It takes a very skilled professional to diagnose childhood toxic stress. But there’s reason to think about seeking help for a child who:

generally over-reacts to events and stimuli

does not make eye contact or show empathy

is anxious and hyper-vigilant

has unusual trouble remembering things

has a strong aversion to certain stimuli— lights or sounds, for instance

regularly engages in repetitious, automatic behavior

appears insensitive to social surroundings and cues

noticeably tunes out information that is not immediately important

shows a level of thinking low for their age

seems to be behind in language development

There’s no set pattern of signs but several of these behaviors persisting over many weeks suggests that professional evaluation would be worthwhile.

Next time: Avoiding toxic stress.

Children, divorce and toxic stress

December 2009

We often don’t think of children as being stressed. That’s an adult thing. But anyone contemplating an end to marriage, either a divorce or a dissolution, when there are minor children involved might want to tune in to stress in kids.

One place to start is ‘The Effects of Childhood Stress on Health Across the Lifespan’ published by the U.S. Department of Health and Human Services Centers for Disease Control and Prevention (CDC). Read it here. The implications are chilling, to say the least.

Experts generally see three kinds of stress in children. Positive stress is from relatively short term adverse experiences that are usually predictable—things like going to a new day-care center or a new school or visiting the doctor for a shot. The process of learning to cope with this kind of stress is an essential part of normal childhood development. With the parents’ caring support, the stressful period is usually short.

Tolerable stress describes more intense life experiences– the death of a loved one or family disruption, such as a divorce. Again, Tolerable Stress is relatively short-lived and kids will usually overcome its effects with parents’ help. In these situations, tolerable stress morphs into positive stress, where children learn ways to cope and suffer few lasting adverse effects.

The killer is Toxic Stress. It comes from very intense adverse experiences over a long period of time— weeks, months or even years. Exactly the kind of stress that comes from high-conflict divorces, where parents are openly doing non-stop battle over many weeks and months.

Under that kind of continuing stress, a child’s physical stress response system is constantly activated. The resulting prolonged high levels of stress hormones, says the CDC, can have some very negative effects. It may:

impair development of brain circuits;
suppress the body’s immune system, rendering a child vulnerable to disease
cause cognitive deficiencies in learning and memory centers in the brain;
cause children to become unable to deal with stress in the future.

That’s food for thought for any divorcing parent feeling the urge to fight a battle that will defeat their spouse. When that spouse is also a parent, the question is: where’s the victory if the children suffer the effects of toxic stress?

Next time: How toxic stress affects kids’ behavior.

Companionship and visitation: who knows what’s best for children?

November 2009

This is a troubled question in family law. It mostly arises in cases where a parent objects to a non-parent maintaining or creating an ongoing relationship with a child. For instance, in Ohio, statutes permit just about anyone to request companionship or visitation time with a minor child. The request is generally granted when the court determines that such companionship is in the child’s best interests.

Not all courts agree. In 2000, the United States Supreme Court decided a case known as Troxel v. Granville. In the original case in the State of Washington, the parents of a deceased father requested companionship with their grandchildren; the mother had remarried. The trial court granted companionship based on a ‘best interests’ standard. The Supreme Court of Washington later upheld an appeals court decision that reversed the trial court. The mother’s right to decide trumped the state’s right to substitute its judgment under the guise of best interests.

The case went all the way to the U S Supreme Court. The Court’s decision said that the state could not use its best interest standard for children to overrule the objection of a parent without proof of harm to the child. In other words, the ‘best interests’ standard is not sufficient for a court to substitute its judgment for parental judgment about what is good for children. The Supreme Court affirmed parents’ constitutionally protected right to make decisions regarding their children.

The Supreme Court of Ohio has ruled that Ohio companionship statutes meet Constitutional muster. Many practitioners, myself included, believe that federal courts will disagree if the issue comes before them on appeal. They will be inclined to take the view that the Supreme Court took on Troxel, upholding parental rights guaranteed by the U.S. Constitution.

Does this mean that the parent’s rights triumph in every case? No. In some cases, courts rule against parents in order to prevent harm to children.

Divorce and parenting: Marriages end. Families don’t.

November 2009

A friend of mine told me about a friend of hers, a child of divorce who said, ‘I don’t come from a broken home. I come from two wonderful homes.’ She grew up feeling that things were better, not worse, after her parents divorced. She had a strong family, not a damaged one.

Those parents knew that ending a marriage does not end a family. It takes time and work but it is possible for parents to raise kids who come from two great families. Here are a few thoughts to consider:

Give your kids credit. Children are amazingly resilient and fully capable of perceiving their families as intact— even if their mothers and fathers are no longer married and do not live in the same household. The important thing is that kids see their mother and their father still being their parents and working together for their wellbeing.

Give yourself credit. When you think about it, you know you can consider your child’s need for the other parent without thinking it means she needs you less. Likewise, you can get through the difficult moments of change that arise as you rearrange schedules and responsibilities. Many parents find that their relationships with children keep changing anyway as kids grow. Parents who can roll with those punches can also grow into the adjustments that the end of marriage brings.

Give your spouse credit. If your spouse has been an involved, loving parent, don’t get amnesia. If your children value their relationships with their other parent, respect their feelings. Understand also that Ohio law favors two engaged and participating parents. Courts view shared parenting as in the best interests of children— unless there is very convincing evidence that one parent has genuinely negative impact on the children.

Use resources. You are not alone. There are professional parenting experts in Northeast Ohio who have a lot of practical wisdom about developing workable parenting plans that make sense to parents and courts, and serve the best interests of children. Experienced counselors who understand the impact of divorce on child development can help kids deal with the ongoing stresses of divorce. These resources can help you soften the difficulties of divorce for children.

In other words: The extent to which parents can continue to fulfill their roles as parents has the most to do with children’s sense of strong family security.

 
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