FAMILY LAW

CURRENT AFFAIRS

POLL RESULTS

FAMILY LAW

Couples should be required to live together for six months before getting married.

Women who take illegal drugs during pregnancy should be prosecuted for child abuse.

If two people of the same sex want to get married and raise a child, they should be allowed to do so.

Children should be required to support elderly parents who are in nursing homes and receiving government aid,

such as Medicaid.

If a woman wishes to have an abortion, she should be able to do so without the consent of the father.

A husband who physically abuses his wife should be prosecuted for criminal assault, even if the wife is

unwilling to testify against him.

Parents who do not pay child support should have their names and photographs included on a web site list of those “most

wanted” for late child support payments.

High school students should be able to obtain contraceptives at school without their parents’ knowledge

or consent.

“PARENTS CAN ONLY GIVE [CHILDREN] GOOD ADVICE OR PUT THEM ON THEIR RIGHT PATHS, BUT THE FINAL FORMING OF A PERSON LIES IN THEIR

OWN HANDS.”- ANNE FRANK, DIARY OF A YOUNG GIRL

FAMILY LAW: Parent-Child Relationship

OVERVIEW

Parent and child relationshipResponsibilities between parents and childChild abuse and neglectFoster careAdoption Child custody Child abuse and neglectStepparents

PARENT AND CHILD RELATION

States are generally in favor of supporting/doing what is in the best interest of the child.

Issues in parent-child relations: Paternity Support Family responsibility Education Care and supervision

Paternity

Paternity tests: Family Support Act of 1988 requires all states to

assist mothers and children in obtaining paternity. State lawyers must assist in finding missing parents and to help mothers and fathers prove paternity - Blood samples- DNA

QUESTION: If Martha, 15, becomes pregnant; she claims that

Michael, 17 is the father, but Michael denies it and refuses to marry her or support the child. Does the law require Michael to marry Martha? Does the law require unmarried teenagers to provide support for their child?

Support

A parent’s most basic responsibility is to provide – food, clothing, shelter, education, and medical care.

All parents are expected to support their minor children.

The law makes parents responsible for child support. pay by ability

Family responsibility

Family responsibility law: some states have a law that require adult children to care for elderly parents.

ORS 109.010: : “Parents are bound to maintain their children who are poor and unable to work themselves; and children are bound to maintain their parents in like circumstances.”

QUESTION: Rose has a successful business; her

mother will retire at the end of the year. Her mother’s meager savings and Social Security is not enough to pay for rent. Does Rose have a legal obligation to support her mother. Should the law require adult children to support their parents when they are in need? Do they have a moral obligation to support their needy parents?

Education

All children have a right to free public education through 12th grade. Each state has different standards for public school.

School attendance is generally required for children ages 7-16, although state laws vary.

A child who misses school without justification is considered a truant.

States generally hold parents responsible for their children’s welfare and education, parents who fail to send their children to school may be fined or arrested.

Care and supervision

Parents may decide what is best for their children as long as they do not abuse or neglect their children.

No minimum requirement for number of hours parents must spend with their children.

Children may be left alone at home at the age of 10 however Under ORS 163.545: Child neglect in the second degree. (1) A person having

custody or control of a child under 10 years of age commits the crime of child neglect in the second degree if, with criminal negligence, the person leaves the child unattended in or at any place for such period of time as may be likely to endanger the health or welfare of such child.

RESPONSIBILI-TIES BETWEEN PARENT AND CHILD

“Parents who fail to exercise proper supervision and control over their children may be held legally responsible for their children’s acts. “

Almost all states hold parents civilly liable for certain acts of their minor children such as property damage, theft or vandalism.

Sometimes called...Contributing to the delinquency of a minor

Oregon Laws holding parents responsible: ORS 30.765: Liability of parents for

tort by child: Parents of a minor child will be held liable

for actual damages to person or property caused either intentionally or recklessly by that child. A parent may be liable for up to $7,500 in damages.

ORS 163.577: Failing to supervise a child: A parent, guardian or other person lawfully

charged with the care or custody of a child under fifteen years of age could be charged with failing to supervise a child if the child commits an act that is referred to juvenile court.

CHILD ABUSE AND NEGLECT

Child abuse: occurs whenever an adult or older child inflicts or threatens to inflict intentional physical, emotional or sexual harm on a child Child neglect occurs more often: involves failure to

properly feed, clothe, shelter, educate, supervise, or tend to the medical needs of a child.

Abuse and neglect are among the leading causes of death of children in the US

Some states have laws that require doctors, nurses, teachers, social workers and others to report suspected case of abuse or neglect.

Sexual abuse

Examples of sexual abuse: sexual fondling, using a child in pornography, and making a child view pornography

QUESTIONS: (are the following situations child abuse or neglect) Theresa, 16, returns home late one evening. As punishment her

parents ground her for a week. Shauna, 18, and her son Jeffrey, 2, live with her mother. Shauna

has to be at work at 9p but her mother does not get home until 10p. Shauna feeds Jeffrey and puts him to bed. He sleeps alone for one our before Shauna’s mother returns home from work.

Parents make Erin (15) wear a sign for several days saying he is a liar.

A parent spanks Albert (4) for taking cookies out of the cupboard. The boy cries.

A father tells Whitney (14), his daughter, she can do anything she wants to do, including staying out as long as she wants so long as she doesn’t bother him.

Hypothetical Situation…

Jenna is the mother of Kimberly (6). The police recently searched their apartment for drugs and found it to be a “shooting gallery” for heroine. Numerous syringes and needles were found, and Jenna and others present were arrested. Kimberly sat on the living room couch during the raid.

There is no definite evidence that Jenna is using drugs, although she has a history and is current in rehab. She claims that her boyfriend comes to her apt. with his friends and they use drugs without her permission. Jenna has a fulltime job as a secretary and Kimberly is doing well in school. She loves her mother and does not want to be taken from her home.

Hypothetical situation continued…

The state law regarding child neglect reads:“Neglect means the negligent treatment or the maltreatment of a

child by a person responsible for the child’s welfare under circumstances indicating harm or threatened harm to the child’s health or welfare. The term includes both acts and omissions on the part of the responsible person.”

a. Assume that the state brings a negligent petition against Jenna. What are the arguments for/against finding Kimberly to be a neglected child?

b. If you were the judge, would you find neglect in this case? Explain.

c. If Kimberly is found to be neglected, would you terminate parental rights and remove her from the home? What other orders might you issue?

d. Do you think a parent who uses drugs is committing neglect? Does it make a difference if the child is aware of the drug use? What other factors should be considered before neglect is found?

FOSTER CARE

Adoption and Safe Families Act of 1997 require that the state make “reasonable efforts” to both prevent the removal of children from their homes and if children have been removed, to eventually return them. Goal is to keep children safe and also work towards family

reunification. In extreme cases of abuse, neglect or deaths in

family, courts may decide that parents are unable to care for their children. The state become the child’s legal temporary guardian—making most decisions about that child’s life while the child’s parents retain limited legal rights. The state must seek to terminate parental rights if a child has

been in placement for 15 of the previous 22 months OR if parents have killed or seriously injured another child in the family.

FOSTER CARE

Judges and social workers decide where and with whom the child will live. Every child must have a hearing

within 30 days of being removed from his or her home and then every 6 months after that.

Judges are required to make sure they are safe and that they have the best placement available.

Family foster care is a system of licensed families in each state who act as temporary parents for children who cannot live with their families.

Role of foster care family

Foster parents have temporary physical custody of children and care for them day to day.

They do not have legal custody of child

Children may also live in: Group homes Kinship care

Judges are supposed to regularly review cases and do everything they can to provide children with permanent home.

Those who aren’t adopted, become emancipated.

ADOPTION

The legal process by which an adult or adults become legal parent(s) of another.

Adults usually adopt children; however, most states allow adults to adopt other adults.

Most agencies are arranged through adoption agencies Go-between (pregnant women to

turn over babies) Adopt children in foreign countries

People wishing to adopt apply to an agency and are investigated and evaluated to determine whether they would be suitable parents.

ADOPTION

Adoption must be legally approved Consent required, but in some states, even if birth parents refuse

or cannot be found, courts may still grant adoptions that are in the best interest of the child.

Children over a certain age—often 12 or 14– must also consent to the adoption.

States usually regulate private adoptions with the following: Social evaluation before a child can be placed in any adoptive

home Criminal background check to see if there is a history of child

abuse Prohibition of advertising for birth mothers by nonlicensed

agencies.

Does 1, 2, 3, 4, 5, 6 and 7 v. State

Seven mothers gave up their children for adoption in Oregon between 1960 and 1994. In 1998, Oregon voters enacted Measure 58. Under Measure 58, adopted people over the age of 21 may gain access to their original birth certificates and thus may determine the identities of their birth mothers.

At the trial level, plaintiffs sought to prevent the disclosure of their children's birth certificates to the children they relinquished for adoption, arguing that Measure 58 violated the contracts clause of the state and federal constitutions and also unconstitutionally violated their rights to privacy under both constitutions. Ultimately, the trial court rejected plaintiffs' arguments and granted summary judgment in favor of defendants.

Scarpetta v. The Adoption Agency

Get into groups of 4-5, read the opinion and decide which one you agree with.

CHILD CUSTODY

Issues: Who will take care of the children? With whom will the children live? Who will have custody of the children?

Custody Temporary Permanent Visitation rights Joint custody Kinship care Once awarded, unless circumstances change

significantly, decision is rarely changed.

CHILD CUSTODY

Tender years doctrine: traditionally, the law presumed that young children were better off with their mothers. Today, most states have laws that require courts to treat men and women equally in custody disputes. Equality to:

Promote non-discrimination Encourage parental interest Punish mothers who do not fit “good mother” stereotype

Courts also have best interests of the child standard: Youth’s actions in home, school, and community Emotional and economic stability of parents Which parent has stronger bonds with the child Consider children’s decision (in many states, age 12)

Joint custody question

Wilma and Robert are getting divorced. They have a 4 year old child. Both are employed full-time, and they plan to live 10 miles apart after the divorce.

a.What are the (+) and (-) of a joint custody arrangement for Wilma and Robert?

b.What are the (+) and (-) of the custody with visitation awarded to the noncustodial parent?

c.What other info would you want to know before deciding the best custody arrangement?

d.If they choose joint custody, will both Wilma and Robert have to agree to the arrangement? What will happen if they do not agree?

The Two Fathers…

Carole and Gerald were married and lived in CA. While they were married, Carole became romantically involved with a neighbor, Jonas. She remained married to Gerald, and when her daughter Ella was born, Gerald was listed as the baby’s father on the birth certificate. Carole told Jonas, however, that she believed he was the biological father. Carole and Gerald later separated, and Carole and Ella went to live with Jonas, who acted as Ella’s father.

Later Carole reconciled with Gerald and she and Ella returned to live with him. A blood test showed that Jonas was Ella’s biological father. He went to court and sued to be declared Ella’s legal father and for visitation rights.

Gerald opposed this, claiming he was Ella’s legal father since he was married to her mother and was currently living with her and acting as her father.

a. What are the strongest arguments for Gerald?b. What are the strongest arguments for Michael?c. How should this case be decided? Explain.d. Do you think that a child should be allowed to have more than two

legal parents? Explain.

ALIMONY

Alimony: spousal support or maintenance; money paid to help support an ex-wife or ex-husband after a divorce

Covers: household and personal expenses, work-related costs, educational expenses and recreation

In 1980, Supreme Court ruled that state laws restricting alimony to women were unconstitutional.

Alimony based on need (duration is also a factor). Sometimes rehabilitative alimony award for temporary help for

one spouse to get a job/develop job skills.

Issue with alimony: Duration of payout

PROPERTY DIVISION

Different categories of property and state law indicates how marital property will be treated upon divorce. Community property “equitable and fair”

School Payment Problem

Roberto and Marta Flores sought a divorce to end their 11-year old marriage. The couple has no children, little property to divide, and CA has a no-fault divorce law. Roberto argues he deserves part of his ex-wife’s income as a physician because he had worked to support the family (and pay some of her tuition) while she went to school to earn her medical degree.

Roberto clamed that he was entitled to a share of Marta’s total projected lifetime income as a doctor. He estimated that Marta was likely to earn over $2M in 20 years of medical practice. She countered that while he might be entitled to reimbursement for part of the cost of her education, he is not entitled to share the potential future value of her degree. She argues that there is no way to reasonably predict what she will earn in her career. She may decide to go abroad and donate her services, or HMOs may reduce her income considerably. In either case, her income would be far less than what Roberto predicts.

a. What happened in this case? What is Roberto asking for?b. What is fair reimbursement the cost of Marta’s education or the

value in terms of her potential increased earnings? Explain.

CHILD SUPPORT

• Both parents still have a legal duty to support their children after divorce.

• Usually only one parent has to make payments– the other parent with physical custody supports the child b providing daily needs.

• Child support is usually paid out until the child becomes an adult or is emancipated.

• When one spouse fails to provide the agreed-upon financial support, the other may seek a court order requiring payment.

• The Family Support Act of 1998 (FSA) was passed by Congress to help enforce support orders .

Child support and alimony questions

Should either spouse pay alimony, child support or both? If so, which spouse should pay what? How much should be paid, and for how long?

1.Miguel, successful plumbing contractor, earns $75K per year. His wife, Carmen stays home and takes care of their 4 children. When Miguel and Carmen divorce, the two older children– a junior in high school and freshman in college—wish to stay with Miguel. The younger children prefer to stay with Carmen.

2.Angela, a government social worker, divorces her husband, Leroy an occasionally freelance writer. He has been staying home and taking care of their son (age 2). Angela’s yearly salary is $33K. Leroy has earned $6K in the past 12 months. The child will live with his mother.

STEPPARENTS

• States have different laws on stepparents. Oregon law:

• Some states require stepparents to support their stepchildren as long as they are living with them. This may continue even after stepchild moves out if the stepparent has acted in loco parentis if the marriage ends in divorce, stepparents usually cannot claim custody for the stepchild though they may be able to seek visitation rights

• Stepparents cannot be considered full parents unless they adopt their stepchildren. • Only possible if child’s noncustodial biological parent

consents to the adoption.