Critics Call For New Legislation Protecting Child’s Rights, and the Overhaul of the Family Court System
Last week, longtime Davis resident Fraser Schilling wrote a letter the Davis Enterprise depicting a scene where four Davis police officers “were…dragging a 14-year-old girl to the airport because Yolo County Superior Court Judge Kathy White and the DA’s Office had ordered her forced emigration to Washington, even though the decision was under appeal.”
At the time, he questioned the use of police resources and the show of force, writing, “The two-day drama did answer the question of how many Davis PD officers, judges and attorneys it takes to screw up a 14-year-old girl – at least a dozen.”
Unfortunately, the problem goes much deeper than this, and is all too typical of custody disputes and the operations of family courts.
The 14-year-old was forcibly removed from the custody of her stepfather through what Mr. Shilling calls “a combination of threats and manipulation over 2 days to persuade the 14-year-old girl…to finally come with them in the back of a police car.”
It is a sad story. Her mother died a few months ago and she wanted to stay in Davis with her stepfather rather than go to Washington with her dad, whom she previously had only seen occasionally.
She has consistently maintained the position that she did not want to go to Washington to live with her father. She maintained this position throughout the guardianship trial, which her stepfather would ultimately lose.
According to Mr. Shilling, however, the police threatened her that her stepfather would go to jail if she did not come with them.
It took two days of these threats. The police said that there was nowhere that this 14-year-old could go in Davis, without an adult being legally in trouble or her being picked up as a runaway.
So, after two days, she gave in. The court and her father’s attorney characterized this as a child not knowing what was good for her, not realizing that her father had the right to take her, still dealing with her mom’s death, and 14-year-old girl hysterics.
The Vanguard spoke to Paul Doroshov of the Davis Police Department, who told us that the situation involves a child custody order.
Judge Kathleen White, who made the order, was consulted during the police’s lawful carrying out of that order.
The department maintains that they have no discretion in enforcing the court order, particularly when the judge is verbally confirming the contents of the order.
Connie Valentine is a local advocate who works with families who get caught up in the family court system.
She wrote in a letter to the Davis Enterprise, “I read with shock Fraser Shilling’s August 15, 2012 letter to the editor. Police priorities are wrong. His daughter’s 14-year-old friend was dragged away by the Davis police to be shipped to her father in another state.”
“The ink was barely dry on the court order uprooting this child from her town, her friends, her stepfather, and the memories of her deceased mother. The time frame for an appeal had not even expired. Most importantly, she did not want to go,” she added.
San Francisco Assembly Member Fiona Ma authored Assembly Bill 1050.
Under previous law, the family court was required, “if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, to consider and give due weight to the wishes of the child in making an order granting or modifying custody.”
Under this bill, after January 1, 2012, the law would “require the family court to consider and give due weight to the wishes of a child in making an order granting or modifying custody or visitation, if the child is of sufficient age and capacity to form an intelligent preference as to custody or visitation. The bill would require the court to permit a child who is 14 years of age or older to address the court regarding custody or visitation, unless the court determines that doing so is not in the child’s best interests, and, in that case, the bill would require the court to state its reasons for that finding on the record.”
Connie Valentine questions whether this law was appropriately applied in this case.
“Did Judge Kathy White abide by this law? Did she speak with this young woman? Did she ask the teenager why she had concerns about living with her biological father? Did she respect the teenager’s wishes?” she asks.
She continues, “We asked Assemblymember Mariko Yamada to assist us in making family court safer for children of divorce, who are often placed with abusive or pedophilic parents. Assemblymember Yamada is a champion for vulnerable people. We are ever so hopeful she will choose to assist us in making family court a sanctuary for children, rather than a haven for abusers.”
However, Ms. Valentine reports that after initial enthusiasm, Assemblymember Yamada’s office has no interest in changing existing law.
According to a statement from Mariko Yamada’s office, “A legislative aide met twice with Ms. Valentine and also had a follow-up phone call with her. After researching her legislative ideas, he advised that for a variety of reasons, her proposals did not require legislation.”
A couple of years ago, the Vanguard first met Connie Valentine, and Kathleen Russell who heads the Center for Judicial Evidence, a community-based organization that, since their establishment in 2008, has made a special commitment to protecting the rights of children and vulnerable populations in the courts.
While Ms. Russell did not return the Vanguard‘s request for comment, the Vanguard during its radio show in 2009 learned of many concerning ways that the family court system operates – often not to the benefits of the most vulnerable populations.
“Lawyers, judges, psychologists and representatives of women’s groups interviewed by The Crime Report describe a broken family court system that is already burdened with a heavy caseload and too few judges – and in which serious criminal allegations of domestic or sexual abuse are routinely ignored,” said a 2010 study by the Crime Report. “The system has particularly failed parents – usually mothers – whose efforts to protect their children collide with an approach to custody issues that is based on narrow legal concepts of balance and fair treatment rather than psychological or medical evidence.”
Unfortunately, any legislative reform will come too late to keep this young lady from remaining in the comfort of the community and home that her mother raised her in.
—David M. Greenwald reporting
This is truly a heart breaking story. Yes, Jeff there you have it….pure emotion. Which I do believe in some instances should be given greater consideration than purely logic and following the law.
Full disclosure. I am biased on this subject, because of both my personal and professional circumstances.
Our family justice system as it is currently constructed is based on the concept of parental rights. It is not based on what is best for the child. Often, this is not even considered. This is basically because the lawyers and courts found it too difficult to sort out conflicting parental claims and therefore decided that it would be most expeditious to go with no fault divorce ( regardless of whether or not fault was obvious and admitted) and 50/50 custody regardless of whether or not it was apparent that either parent was capable of providing the far better option. At the time of my divorce 13 years ago, I was informed by several lawyers that even though my soon to be ex was demonstrably less capable as a parent, it would take something overt such as doing drugs with the children present or provable child abuse or neglect to break the 50/50 provision of
California law. In my case, my ex to his credit recognized that he was psychologically not capable or willing to take on the raising of our children 1/2 time and allowed them to stay with me with reasonable visitation rights for him which I honored. Not all children are so fortunate and tend to become pawns in a vicious game between parents whose main objective is to ensure that their own selfish needs are met because they truly believe that their child is their possession and not a human being with his/her own individual needs.
What is needed in these instances is a strong and impartial advocate for the child. When the child is of an age at which s/he can reasonably determine what is in his or her own best interest, that should be the deciding factor.
There are several good child custody attorneys in Sacramento. The one that helped me used to work for CPS. He was so disgusted, he went to law school….After the police harrassed me for no reason whatsoever, he took my case pro bono. Luckily, it only took an hour or two of his time & I was able to file the proper papers to get it resolved.
This story is so sad on so many levels, especially since the young woman just lost her mother.
It appears, bottom line, that if “official action” was inappropriate, it was the Court, and NOT the police who are to blame. Anyone in PD who did not obey the order could have been charged with “contempt”. Now if the judge had ordered the young woman to be “pepper-sprayed”, I might feel differently.
“Lawyers, judges, psychologists and representatives of women’s groups interviewed by The Crime Report describe a broken family court system that is already burdened with a heavy caseload and too few judges – and in which serious criminal allegations of domestic or sexual abuse are routinely ignored,’ said a 2010 study by the Crime Report. “
But are there such allegations in this case?
This reminds me of Elian Gonzales.
Obviously, children should be placed with their parents when possible. The father is possibly doing what he thinks is best for the child. The child, at 14, is close to the age where she can seek emancipation if she remains unhappy. Its a sad story with no easy solution, and, without all the facts its hard to second guess the courts. The death of a parent is so traumatic and then to be removed from the supportive home environment to go with the father in another state is truly sad. At least this child has the problem of having too many people who care about her instead of kids in the foster program who have too few.
I agree with Toad, we don’t know everything about this case.
[quote]This reminds me of Elian Gonzales.
[/quote]Not sure I’d compare Washington with Cuba, nor a blood relative (uncle, as I recall) with a step-parent who apparently took no action to adopt the child. To each, their own. However, I agree that the young lady is a pawn in a game of chess.
medwoman: This crusty old conservative is heart-broken too. I mostly agree with you on this. Frankly, I think there is more heart and mind going into SPA adoption decisions than there are for child custody decisions.
Nevertheless, I understand the difficulty here developing and executing laws that effectively deal with matters of the heart. What is in the best interests of the child? Answering that honestly and factually might mean someone gets hurt emotionally.
The only real solution to problems like this is to strengthen the traditional family unit. Parenting requires a level of selflessness, but it has been supplanted by an increasing level of individual selfishness. Had this young girl been in the care of her original mother and father in a loving household, there should be no extra conflict and no extra heartache.
[quote]The only real solution to problems like this is to strengthen the traditional family unit.[/quote]True, but I wouldn’t want government to attempt this. On the other had, I would not want government to make it more difficult.
I want to be clear, we don’t know the full story. And we can’t. I think we can surmise what happened here. A biological parent gets priority and the question is whether there are circumstances where they should not particularly over a child’s objection
Where did the information come from for this article?
Which info?
Actually, as I understand it, Fraser Schilling’s letter to the editor was a histrionic lie (which should have been obvious to all given the tone of it). No one was dragged anywhere. Kicking, screaming, or otherwise. You didn’t think maybe his characterization of Washington state as a faraway land suggested he was somewhat less than objective about this??
Was it a difficult and emotional situation? Of course. That couldn’t be avoided given the circumstances.
Not to mention the rights of her father. Would you quickly and summarily dismiss this father and yank his child away from him, stripping him of his rights?
Schilling’s only involvement in this incident seems to be his own ego and talent for exaggeration. Would be nice if he stuck more to facts and less to melodramatization.
It seems like this article was written from an editorial and a meeting held three years ago and a conversation with one police LT. It’s bluntly obvious we aren’t getting the whole story again, it didn’t need to be said. Why is the fact that the whole story is not represented not present in the story? I think there are more than a few followers of the vanguard that are not aware that they are not receiving the full story.
Sorry I’m coming so late to this discussion (had morning meetings). I would guess the biological father in this case filed for custody of his daughter upon the mother’s death. The father probably was able to obtain a child custody order in the state in which he lived, which was delivered to the state/county in which the child lived, CA/Yolo County. The state of CA must honor any other state’s court orders that have to do with child custody. I also assume the stepfather, on behalf of the child, tried to fight the custody order from the other state, and was denied. Therefore the state of CA would have almost no power to overturn another state’s child custody order, but must honor it by [u][b]federal law[/b][/u].
There does not appear to be any accusations of sexual abuse. This was simply a child who appears to have had a close bond with her stepfather and ties to the community. If the stepfather never bothered to adopt this child, or was never permitted to adopt her, he has no parental rights. The biological father is the one who has the right to custody of this child. The court deems this to be in the best interests of the child – to be with a biological father rather than with a stepfather who has no legal rights to the child.
I know this sounds very legalistic and cold, but there is good reason behind these types of laws/policies. For instance, if the stepfather has no legal right to custody, he also has no legal responsibility for this child. Suppose he remarried, and his new wife didn’t want the child? The child could be left out in the cold at the stepfather’s whim. However, the biological father does have legal responsibility for this child, and I would guess has made many a child support payments over the years.
What would have been better is if both men could have been more adult about the situation, and worked out a transition for the child. But if the stepfather’s position was that this was “his” child, when he had no legal rights, and the biological father had no choice but to file for custody, then it is perfectly understandable how this happened. A 14 year old child generally does not get to decide who has custody of her. A 14 year old child can decide who she will live with, as between two parents who both have genuine legal custody. But that is not the case here.
Hope that clarifies the legal end of things a bit, if I have understood the fact pattern of the case properly. My children went through a custody battle. They are almost always ugly, and detrimental to the child.
Okay, I have to back the legal truck up. I am assuming in the above scenario that the state the father was in was where the jurisdiction was for child custody was. In other words the divorce occurred there, that state retained jurisdiction over the child, and mom and child moved away. That may not be the case, bc the fact pattern does not address that point.
So it is not clear which state had jurisdiction over this child from the above article. Even if it was CA that had jurisdiction, the biological father would still have preference over a stepfather who did not adopt this child. It has to do with legal “standing”. See [url]http://www.attorneys.com/child-custody/rights-of-step-parents-in-custody-and-visitation/[/url]
[quote]What is “Standing”?
Standing refers to the rights of a party to be heard by courts on a particular issue. The determination of standing involves consideration of several factors:
*degree of the step-parent’s participation at a significant level in the child’s life
*length of time the step-parent participated as an actual parent for the child in place of the child’s natural parent
*existence of any relationship and emotional ties between step-parent and child
*amount of financial support and assistance provided by the step-parent
*degree of detriment to the child if the step-parent is denied visitation
[b]In most cases, step-parents are deemed not to have access to the divorce proceeding in court.[/b] Instead, courts hold that divorce laws, which establish their jurisdiction to adjudicate custody matters within the divorce, [b]do not grant further jurisdiction to hear cases between parents and step-parents over custody.[/b] Occasionally, a court will decide such disputes, but with rarity.[/quote]
Elaine,
Thanks for this explanation.
I have a relative that had almost this exact situation. In this case, after his wife left him for another man, he capitulated allowing the wife to move to the other end of the country with his two young kids while he continued to pay the same child support he would have had he had regular visitation. The wife remarried into a large family, then suddenly got ill and died. The two kids were young teens at this point and didn’t want to leave their friends, school and new family. Since their biological dad was so far away, he could not visit them but a couple times a year. Their relationship grew weaker. He is just now reconnecting with his kids who are now in their late 20s.
He sees his mistakes as follows:
1. Marrying the wrong woman.
2. Allowing her to move away with his kids.
However, he does not regret not trying to get custody of his kids after their mother died because of the impact it would have caused them.
That is what I find interesting in this story. It seems the biological father is selfish in this case. I get the parental liability issue. What if the court gave the option of adoption from the stepfather, or joint custody between both fathers?
To Jeff Boone: It sounds like your relative learned something from his mistake of allowing the mother to move away w the kids. I think it is wonderful he is reconnecting with these children – most kids want to know their father/mother, whatever the case may be, even if there has been a turbulent past or acrimony. Look at the number of adopted kids who want to seek out their biological parents, even if the adoptive parents have been wonderful over the years.
As to your other point, I disagree that the biological father is being selfish. We don’t know all the facts. If he has been paying child support regularly, seeing the child for visitation, truly loves his child and does not want to risk the child’s future on a stepfather that has no real responsibility for her, if the stepfather has only been in this child’s life for a short while, etc., then it makes perfect sense for the child to go with her biological father. Remember, this may be more about the 14 year old not wanting to leave her friends, than it is about wanting to be with her stepfather. This is why we don’t let 14 year olds decide this type of custody issue. I know of many a teen who will run away and stay with friends, rather than go with mom and dad to a new place. Kids don’t always understand that they will make new friends in another place, and will flourish just fine.
I am going to change the subject a bit, while remaining relevant I hope.
I see an irony in the laws that are being put forward in many states now, and the rights of biologic parents over children as they exist now at least apparently in California and Sacramento.
In many states, there are what are essentially personhood laws which are being advocated by those who are against abortion in under any circumstances including rape, incest, or to protect the life of the mother, presumably because of the belief that human life begins at conception. So, we would essentially have a set of laws which claim that the fetus takes legal priority over the will of, and even the life of the mother. But once the child is born, its fate is determined by the will of the biologic parents. I would be very interested to hear the thoughts of others about this seeming discrepancy in priorities.
Elaine
I also want to thank you for taking the time to provide a legal perspective. I also am aware that 14 year olds may not have the maturity to fully understand the concerns of the adults who are responsible for them.
However, I would like to add another perspective, not with regard to this particular case in which I agree there is not enough information, but to this topic in general.
Early in my career one of my assignments was to sit on a board which provided feedback to and worked in conjunction with Child Protective Services in Southern California. I actually only lasted two years because I could not stand what would happen over and over in the name of family reunification. The story would go like this….a female child’s case ( always since I am an ob/gyn), I am sure it happened to boys as well, would be brought before the board because of child abuse, sexual abuse or severe neglect. The child usually would have spent some time with relatives or in foster care because their biologic parent was the abuser. The parent would have made an effort to comply with the conditions specified to regain custody of the child. Reunification of the family would occur, and within weeks or months, the case would be before the board again with essentially the same situation. Yes, this occurred even in cases of sexual abuse. This happened over and over again because unless there was the most egregious evidence possible such as a parent being caught
physically in the act, the biological rights of the parent would trump almost any other circumstance. Now the last time I sat on one of these boards was roughly 20 years ago, so things may have changed, but I do not think that a strictly legalistic approach in favor of the biologic parent is necessarily the best policy.
I think that too often, people who believe that the right of biologic parents should always be observed may be making the assumption that what they have experienced in their own lives and families can be applied to our society in general. I would point out that this is not the case more often than we would like to believe.
I am the stepfather in this matter. Yes, it is a heart-rending tale and a traumatic conclusion to a months-long battle for her to able to stay here in Davis.
As is often the case, not all the facts are public – the simple truth is that legally, her father had legal custody at that time, something that was not made clear to us until this week. Judge White acted in harmony with the law, and the Davis Police were obligated to act (and they did so professionally and with great courtesy).
Yes, things could have been handled better by all concerned. Twenty-twenty vision is a great and terrible thing, but it is now done.
She is now settling in to her new home, I am hoping to make arrangements for her to visit in the school vacations.
I do hope that there will come a time when such matters are worked out not by the courts following an imperfect law, but by mediation and discussion. That day is a long way off, and for now, DNA determines the fate of most children in these circumstances.
I read your comments with great interest, and ask that you, along with me and all of her friends and family, wish her well. If she shows the same courage and strength there as she did in her fight to stay in Davis, she will eventually adapt, settle and thrive.
wertperch, if your stepdaughter’s biologocal father is half the person you seem to be based on your comments, she is a very luckly young lady. She would seem blessed despite this setback. I wish both of you well.
wertperch: What Jeff said… God bless the young lady, you, and her biological father.. you all will be in my prayers. Best wishes…
wertperch
Thank you for letting us know that she is settling in. I know that this must have been a terribly difficult situation for all involved and wish you all the best.
I wish the young woman all the best this life has to offer. Stay strong, and I hope and pray that happy memories of your mother help to sustain you during this period of your life. Anyone who has lost a parent can tell you it takes a long time to heal, but things will get better over time.
Marie makes an interesting comment… loss of a parent is indeed difficult… loss of a parent, from whom one was estranged, with no chance to reconcile, can be much, much worse. Been there.
To medwoman: There was no suggestion of child abuse in this case, so while I appreciate the discussion, it was not germane to this particular situation.
[quote]I am the stepfather in this matter. Yes, it is a heart-rending tale and a traumatic conclusion to a months-long battle for her to able to stay here in Davis.
As is often the case, not all the facts are public – the simple truth is that legally, her father had legal custody at that time, something that was not made clear to us until this week. Judge White acted in harmony with the law, and the Davis Police were obligated to act (and they did so professionally and with great courtesy).
Yes, things could have been handled better by all concerned. Twenty-twenty vision is a great and terrible thing, but it is now done.
She is now settling in to her new home, I am hoping to make arrangements for her to visit in the school vacations. [/quote]
As I thought, the biological father had custody, which the courts of CA were required to honor. I want to commend you, as a stepfather, for caring about this child. Yes, in hindsight perhaps things could have been worked out in a better way, but don’t concern yourself with the past. Look to the future, and keep participating in this child’s life, as you plan to do. I think it is wonderful you and the father are working out arrangements so the child can visit you and her friends on vacation. That means you both (father and stepfather) are doing what is in the best interests of the child. And both of you will reap rewards in the coming years for doing the right thing. I suspect the child will return the love and caring she has been shown by both of you a thousands times over as the years go by. Best of luck to all three of you, father, stepfather, and daughter/stepdaughter…
To medwoman: The issue of family reunification in regard to a biological parent who has lost custody for drug use or for whatever other reason is a whole other can of worms. I, like you, have serious problems with the way the law works in this arena. If it were up to me, the biological parent would get one year to get their act together to be reunified with their child, and that would be it. If they did not have the discipline to clean up their act within the one year probationary period, let a loving family adopt the child. That way the child would have a chance at a normal, stable life…
There is a danger in being too ‘legalistic’, ERM…. I hope the young woman reconciles with her biological father, no matter who she ends up living with…
[quote]There is a danger in being too ‘legalistic’, ERM…. I hope the young woman reconciles with her biological father, no matter who she ends up living with…[/quote]
I have no doubt she will, especially if she is allowed to go back and visit occasionally her stepfather/friends/old neighborhood. My guess is that eventually she will bond with her father/make new friends where she is living now; it appears her stepfather wants visitation to keep that connection going. I see a real win-win here, even though getting to the final solution was painful. But the biological father had legal custody, and the state had no choice but to honor that biological father’s rights to his child. The danger in not being “legalistic” is that the child and others think the child can make the decision, when in fact she cannot…