CHILD ABUSE
By Murray Steinberg
Noted author and child Psychologist Dr. Richard Gardner described child
abuse as being
the third wave of mass hysteria in this country behind the Salem witch
hunts and the McCarthy
era of communism. One of the quickest ways to remove a child from a
parent is to accuse that
parent of child abuse. 80% of all child abuse accusations reported to
social services (S/S) are
determined to be UNFOUNDED. When investigators mark an accusation
founded, the mother
is the perpetrator 40% of the time, while the father is the guilty party
in 19% of the founded
cases. Accusations are often made for leverage or for money in custody
disputes.
Accusations can be made in most states anonymously and the accused is
assumed guilty
until proven innocent. Investigators are in reality validators. Social
Services has more power
than a judge: a child can be taken away from either or both parents for
up to 72 hours without
an indictment, arraignment, or court order. Record all conversations
with investigators.
Just remember the constitution has not been repealed but is for the
most part ignored.
Polygraph test are not admissible in most courts, can be used to
establish you guilt, seldom help
you to prove your innocence and are only 70% accurate. Firm denial with
cooperative resistance
will get you farther than anger and outright defiance. It is important
that you appear the rational
parent so you may discredit the accuser.
Civil action may be taken against the accuser, in most states, for a
person making a false
accusation in bad faith and with malicious intent, however this claim is
one easy to make and
hard to prove. The mere filing of such a claim may provide you with some
leverage and
credibility of your own, however.
No one can condone or mediate child abuse of any kind. Look at the
definition of "abuse
and neglect" in your state. Putting a child at risk of physical or
emotional harm can constitute
abuse.
If you suspect abuse, a physician or psychiatrist can make your
case. Pictures, witnesses,
clothing, doctors reports, and etc. are all important to substantiate
your claim. Remember
children do tell lies and will manipulate parents to get what they want.
CAUTION: The worst thing you can do is NOTHING! By doing nothing,
you condone
what ever you are dished out. Be careful what you sign. A signature may
waive your rights and
become an admission of guilt. An attorney with "power of attorney" can
sign on your behalf.
Some attorneys assume they have power of attorney unless you tell them
they do not.
Some social workers will put pressure on you to voluntarily give up
seeing your children
while the investigation is taking place. This can also be seen as an
admission of guilt.
Temporary orders become permanent orders and can lead to "supervised
visitation" from here
out.
Even though the Constitution is ignored, you can raise the issue of
no due process, no
equal protection of law, no trial by jury, illegal search and sesure, and
invasion of privacy. Who
knows maybe someone will listen. Be firm without being defiant!
DO'S AND DON'TS
Contact your local chapter of Children's Rights Council and other
advocacy groups.
Consider alternative dispute resolution first! "MEDIATE DON'T
LITIGATE" where possible.
Attend divorce education, alternative dispute resolution and parent
education classes.
Keep good records including a diary and copies of all correspondence,
and court documents.
Maintain stability and continuity in the child(ren)s lives. The
children need you plus you're
setting precedent.
Keep direct communications open with the other parent/spouse even if
your lawyer says
otherwise without good cause.
Learn your constitutional rights and stand up for them. Read the
domestic section of law in
your state (check your public library).
Interview at least three attorneys before hiring one.
Make a list of all assets that have been acquired by either party or
both parties during the
marriage or that have increased in value during the marriage. Assign a
current fair market value.
Keep a joint bank account open with a minimum $10 balance and close all
other joint bank
accounts, credit cards and change accounts. Checks written to either
party may be deposited in
a joint account without the others signature.
Reassure your children that they are not responsible.
Build your case with evidence, witnesses, etc. Don't expect your
lawyer to.
Record all relevant conversations that your are a party to unless
prohibited by state law. Label
and catalog all tapes.
Prepare for the worst and hope for the best.
Use the court as a last resort. Remember you don't go to court to get
your rights--but to lose
them.
Don't leave the marital home without a written agreement or court
order.
Don't hire an attorney who does not do at least 1/3 of his/her work in
domestic relations.
Don't divorce your children.
Don't waive any of your rights including power of attorney.
Don't agree to anything in the belief that he/she will change their
mind and come back.
Don't be naive thinking that all you have to do is tell the truth and
everything will be all right.
Don't sign any agreement thinking it is only temporary. Temporary
agreements can become
permanent court orders.
Don't believe everything a friend or lawyer tells you. Educate
yourself about the laws in your
state.
Don't procrastinate! By doing nothing, you condone the situation.
Don't have sex with a spouse after you have proof of adultery. In
doing so you condone the
act and it may become a moot point.
Don't use your children or put them in the position of taking sides.
Don't say anything
negative about the other parent in front of them; they think they are
part of both of you and a
negative comment about a parent is saying to them that they must be part
bad.
Don't voluntarily pay money to the other spouse.
Don't believe anything not in writing, including a lawyer-client
agreement or what a judge may
say in court and especially what a spouse may say she/he will agree to.
Don't agree to pay spousal support.
Don't ever give up or ever give in. Your children are not for sale!
MEDIATE DON'T LITIGATE
If you think you will win in court you are wrong! You don't go to
court to get your
rights, you go to court to loose them. Before entering a courthouse you
are a whole parent;
when you leave, you will only have those rights and privileges the judge
gives each of you. One
judge said "if either party is happy when they leave my courtroom, I
haven't done my job".
You and your children will lose if you litigate, emotionally and
financially.
We are all taught that we have the greatest judicial system in the
world; you know
"liberty and justice for all". You remember the Constitution and all
those rights we cherish;
right of due process and equal protection of law, to access the court,
speedy public trial by an
impartial jury. Well forget it! Once you enter the courthouse you'll
think you're in a different
country, and if you have an attorney you can't even speak in the
courtroom unless you are asked
a question.
The only sensible approach to settling your dispute is MEDIATION!
Mediation is a
voluntary, confidential process whereby you both control the outcome.
There are usually only
a few ground rules:
1) you are not there to find fault or place blame,
but to find solutions,
2) you can say anything you want but one at a time and no profanity,
3) the
only words to leave
will be in writing and by agreement of both parties, all else is
confidential and may not be used
against either party,
4) you must be honest, giving full disclosure on
financial matters, and
5) you make the rules so they can change by agreement of both parties. The
neutral mediators job
is to facilitate and agreement by the parties by asking questions and
helping you to focus on the
issues. Don't expect the mediator to come up with the answers or to
choose sides. Children can
be brought in to state their feelings about what is important to them;
their friends, their extra-
curricular activities and how they will fit into this new situation.
Mediation, it has been said is
therapeutic though not therapy. Hopefully everybody wins!
Once you reach an agreement, the mediator will draft the written
agreement and you may
each take it to an attorney to advise you on any legal or tax maters. A
final written agreement,
once signed can be presented to the court as a consent agreement and
entered as a Court Order
if you wish or incorporated into the Final Decree of divorce if that
should happen. Regardless,
once you both sign the agreement it is binding under the contract laws of
your state. Of course
any agreement that is negotiated in bad faith, under duress, with fraud,
or that is unconscionable
may later be ruled invalid by a court.
Although not essential, a class on dispute resolution and a class
on children coping with
divorce taken prior to mediation will help you to see the issues more
clearly and help you in
determining the best parenting arrangement for your children.
Don't forget, the truth seldom comes out in court. Only impersonal
twisted facts, not
feelings are heard there. One judge put it this way: "I don't know your
children, I don't love
your children, I don't know what is best for your children, you do, so
mediate, stay out of
court". Your children were born of two parents, stay out of court and
help keep it that way.
CHILD SUPPORT
"At common law, a parent has the right to maintain his (or her)
children in his own
house, and cannot be compelled against his will to do so elsewhere,
unless he has refused or
failed to provide for them where he lives." Supreme Court decisions
support the requirement
of parents to provide economic support for our children "to the extent of
their actual needs".
Where then did the state get the right to invade our rights of privacy
and primacy to order us to
pay an amount of money to the other parent based upon our incomes rather
than the childs needs
and even when we are willing to pay for those needs voluntarily? They
didn't! Absent a abuse,
neglect, or a refusal to support the child, the state has NO COMPELLING
STATE INTEREST.
We naively allow our lawyers and the state courts to order us to pay
"under the color of state
law", and the guise of "best interest of the child" because that is the
way it's done and we don't
know better. CAUTION: If you petition a state court for a determination
of custody, visitation,
or support you may be waiving your First Amendment right to privacy.
Whether your state's guideline is based upon income shares of the
parents, percentage of
net or gross income of the non-custodial or some other complex formula,
what you are ordered
to pay is paid from your after tax income and the recipient receives "tax
free alimony".
Additionally, she or he will get all the tax advantages [i.e. exemption,
day care credit, single
head of household, and earned income credit] unless otherwise ordered by
the court.
All states are under federal mandate requiring a formula using a
"rebuttable presumption".
It is wise to check the factors in your state which can be used to reduce
(rebut) the amount
calculated by the court, administrative agency, or lawyer before you
agree to pay that amount.
Once the Order is signed by the judge or administrative officer you may
only ask for a change
upon a showing by the moving party of a "material change in
circumstances" which usually
means factors resulting in a change of 10% or more.
If you become involuntarily unemployed you had better notify the
court, administrative
collection agency, and the recipient immediately for if you fail to pay
even one payment or if
you are late paying even a few days, you may wind up in court on a charge
of being in
"contempt of court". Debtors prison was not abolished, in so far as
child support is concerned.
You can not even bankrupt a child support obligation! If your change of
employment is not
temporary and is not voluntary you may and should petition the court or
administrative agency
at once to request a modification in your child support order. A
modification can normally only
be made retroactive to the date you petition the court and the other
party is legally notified.
BEWARE: In some states child support does not automatically
terminate upon
emancipation of the child or even death of the child. You must petition
the court.
In most states an agreement by the parents to pay zero child
support will not be accepted
by the court. If the parents live in two different states the child
support guidelines of the payor
are sometimes used but there are federal Acts such as the Uniform Child
Custody Act; Uniform
Reciprocal Interstate Federal Support Act; and the Parental Kidnaping
Prevention Act which may
help if you live in the original home state of the child. Yes you do
have to pay child support
even if you are being denied access to your child or children.
CHILD SUPPORT.
"At common law, a parent has the right to maintain his (or her)
children in his own
home, and cannot be compelled against his will to do so elsewhere, unless
he has refused or
failed to provide for them where he lives." Supreme Court decisions
support the requirement
of parents to provide economic support for our children "to the extent of
their actual needs".
Absent a abuse, neglect, or a refusal to support the child, the state has
NO COMPELLING
STATE INTEREST! We naively allow our lawyers and the state courts to
order us to pay
"under the color of state law", and the guise of "best interest of the
child" because that is the
way it's done and we don't know better. CAUTION: If you petition a state
court for a
determination of custody, visitation, or support you may be waiving your
First Amendment right
to privacy.
Whether your state's guideline is based upon income shares of the
parents, percentage of
net or gross income of the non-custodial or some other complex formula,
what you are ordered
to pay is paid from your after tax income and the recipient receives "tax
free alimony".
Additionally, she or he will get all the tax advantages [i.e. exemption,
day care credit, single
head of household, and earned income credit] unless otherwise ordered by
the court.
All states are under federal mandate requiring a formula using a
"rebuttable presumption".
It is wise to check the factors in your state which can be used to reduce
(rebut) the amount
calculated by the court, administrative agency, or lawyer before you
agree to pay that amount.
Once the Order is signed by the judge or administrative officer you may
only ask for a change
upon a showing by the moving party of a "material change in
circumstances" which usually
means factors resulting in a change of 10% or more.
If you become involuntarily unemployed you had better notify the
court, administrative
collection agency, and the recipient immediately for if you fail to pay
even one payment or if
you are late paying even a few days, you may wind up in court on a charge
of being in
"contempt of court". Debtors prison was not abolished, in so far as
child support is concerned.
You can not even bankrupt a child support obligation! If your change of
employment is not
temporary and is not voluntary you may and should petition the court or
administrative agency
at once to request a modification in your child support order. A
modification can normally only
be made retroactive to the date you petition the court and the other
party is legally notified.
BEWARE: In some states child support does not automatically
terminate upon
emancipation of the child or even death of the child. You must petition
the court.
In most states an agreement by the parents to pay zero child
support will not be accepted
by the court. If the parents live in two different states the child
support guidelines of the payor
are sometimes used but there are federal acts such as the U. C. C. J. A.;
U. R. I. F. S. A.; and
the P. K. P. A., which may help if you live in the original home state of
the child. Yes you do
have to pay child support even if you are being denied access to your
child or children.
CUSTODY OF A MINOR CHILD
As the parent, you know what your child needs far better than any
judge who in most
cases will not even see your child much less talk to him or her. Even
judges have said "STAY
OUT OF COURT"! Litigation will cost you and your children emotionally
and financially.
Only the lawyers will win, costing each parent $30,000 or more the first
year. Expect a three
to five year process if you follow through the appellate levels.
Absent clear and convincing evidence of abuse, neglect, or some
other criminal act,
children need both parents-- after all GOD made us that way. If you
focus on the childs needs
you must work out a parenting arrangement yourselves or via a facilitator
called a mediator, that
will support two parents, two sets of grandparents, extended family
members, and other
significant persons, remaining actively in the child's day to day life.
Sole Physical Custody: The traditional view today is that the
mother should have "sole
custody", responsibility for the care and control of the child, and the
father should get
"visitation", parenting time, every other weekend. Children need each
parent more than four
days a month and so this arrangement fails the child.
Joint Physical Custody: The preferred alternative is to work out a
joint parenting
arrangement, for care and control, whereby the child shall be with each
parent a significant
amount of time: 50/50; 70/30; 60/40. This can be every other week, every
other day, for
extended periods in the summer and of course distance between the parents
will be a factor.
Schedules can be established to minimize or even eliminate contact
between the two parents if
desired. It may not be as easy or convenient to share custody; it may
not be in the best interest
of the parents but it is in the best interest of the child.
Joint Legal Custody: Without physical custody or the cooperation of
the custodial parent,
"joint legal custody", giving both parents authority to make decisions
concerning the child, are
worthless. It is only a psychological, feel good thing, for the parent
having physical custody has
veto power.
Although the "tender years doctrine" accepted from the 40's through
the 70's has been
abolished, in practice it is alive and well in practice in most courts
today. Judges will listen to
the wishes of a child (usually over the age of twelve) but will look
closely to see if the child has
been coerced or bought. A child needs as much continuity and stability
in his or her life as
possible; school, friends, extra curricular activities, and etc. Of
course special medical needs
must be met.
Don't ever give up or give in -- your children are not for sale!
ATTORNEYS
Most of us feel helpless in this legal maze we are caught in. The
three P's that can
determine the outcome of your case are personalities, politics, and
perjury. Consider the first
two in selecting an attorney.
1. Pick a specialist. Don't select a real estate lawyer to do
domestic law. Make sure that
the person does no less than 1/3 of his/her practice in domestic work.
2. Pick an attorney who practices in the court system where your
case is to be heard
(jurisdiction). The "good old boy system" can be important, especially
in small towns.
3. Interview with at least three (ask first, some will not charge or will give a reduced
rate) and ask questions like:
a) What percentage of your work do you do in domestic law?
b) What percentage of your clients are male vs. female?
c) What percentage of your cases are settled out of court?
d) Do you believe in mediation?
e) Will you accept the help of an advocacy group?
f) How long have you been practicing family law?
g) Do you believe in "joint custody"?
h) What is your standard parenting arrangement?
i) How do you treat grandparents and other family members?
j) How do you feel about children testifying?
k) Do you use outside specialist like doctors, PI's, etc.?
l) Do you have a standard written lawyer/client contract?
m) Do you require a retainer and is it refundable?
n) Explain you rate structure: $/hour attorney; $/hour paralegal; copies; telephone calls;
travel; and any extras?
o) Estimated cost minimum/maximum?
p) What is your strategy in my case?
q) What is the probability I will get what I want?
r) Do you give out your home phone number?
4. Always enter into a written agreement which should cover what
the attorney will do
for you and not just the opposite. Make it clear what you want the
attorney to do for you
(custody, visitation, child support, divorce, property settlement,
spousal support or other)
5. Make sure the lawyer knows that you are not giving him/her
"power of attorney" and
that you want to be consulted prior to any agreement on your behalf and
you want to be copied
on all paperwork that is sent and received in your case.
6. Require itemized monthly statements and be clear on when and how payment will be
expected.
7. Avoid an attorney who tells you to cut off all communications with the other parent.
8. Require that he/she returns your phone calls promptly within 24 hours.
9. Call references given.
Although many men feel that a female attorney will give them an edge, there is no
evidence to support this belief.