CHILD ABUSE

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Just remember the constitution has not been repealed but is for the most part ignored.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

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!

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

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.