Author: Judith G. McMullen

The New York Times has been abuzz of late with articles suggesting that a long-ago missing child case may have finally been solved. Thirty-three years ago, six-year-old Etan Patz disappeared while walking the 1½ blocks to his school bus stop. Acting on a tip in this now cold case, police investigators recently dug up a basement located on Etan’s route, looking for a body. They did not find one, but another tip led them to Pedro Hernandez, who has confessed to the boy’s killing, claiming he lured Etan into a bodega basement, strangled him, and put the body in a bag that he placed curbside with other trash. Mr. Hernandez has not been charged: his story is convincing, but he seems to have neither a motive nor a history of violence or pedophilia. It is well-known that some people will confess to horrible crimes that they did not commit, and indeed there have been other false “confessions” in this very case. Why is it that there is such intense interest in such an old case?

Missing child cases are undeniably tragic, and every decent citizen wants to see a world where things like this do not happen. We lawyers, though, especially those of us concerned with child protection, are charged with coming up with sensible policies to keep kids safe, and it is no easy task. Etan’s case is remembered and pursued more than three decades after his disappearance precisely because the case touched a nerve with the populace and led to policy and behavior changes both large and small. Some of these changes have been good, others are more questionable.

It is important to remember that most kids who are missing from home have not been abducted and harmed by strangers as Etan apparently was. The vast majority of missing juveniles were taken by other family members, often in conjunction with disputes over child custody after a parental divorce or separation. Other cases, especially those involving older juveniles, may involve a child running away or voluntarily leaving in the company of someone the parents consider risky or even dangerous (such as an older, drug-using friend). Reliable statistics are hard to come by, but one set of FBI statistics from the year 2000 indicated that only approximately 5% of child disappearances were likely stranger abductions or kidnappings.

Of course, even five percent is too many abducted children, and nightmare cases like Etan’s have led to prompt public notifications of missing children on radio and television, pictures of missing kids on milk cartons, and organizations devoted to helping missing kids and their families, such as the National Center for Missing and Exploited Children. These are all good changes and, indeed, most children are eventually reunited with their families largely as a result of public awareness and coordinated law enforcement efforts.

There have been other changes in individual behavior, though, that have produced more mixed results. Parents have become much more fearful in the past few decades, and more watchful parenting is only sometimes a good thing. On the one hand, it is much less likely that a child will be abducted by a malevolent stranger if said child never leaves the house unattended by mom or dad. On the other hand, these same children will get less fresh air, exercise and peer social interaction than did children of prior times. While my similarly middle-aged friends and I remember walking home from school and riding bikes far and wide when we were kids, few parents today accord those privileges to their own offspring. If parents are at work during their children’s after school hours, kids either go to structured programs or remain at home doing homework, watching TV and playing video games. This introduces dangers of a different sort. Sedentary lifestyles and excessive screen time may be related to increasing rates of childhood obesity and its attendant health problems. Indeed, recent news reports have also discussed higher rates of diabetes in children and adolescents, a trend almost certainly due in part to changes in diet and exercise patterns among kids. It seems we have exchanged one dire risk for another.

Ultimately, we need to face the fact that there are oh-so-many things from which children need protection, and that neither laws nor individual parents can infallibly guarantee child safety in our dangerous world. It is hard being a parent, hard being a child, and impossible to come up with perfect child protection strategies. But of course, it is important that we all keep trying.

Every few years, we can count on hearing social commentary on the alleged erosion of American values.  Predictably, marriage is part of the discussion, and inevitably, the American divorce rate is cited as a cause for concern.  The figure usually cited is that 50% of marriages in the U.S. end in divorce, although the true figure is somewhere between 40% and 50% overall, with higher rates among couples who married at younger ages and lower rates for couples who married at older ages. 

The usual trajectory of this discussion is for someone to claim that we have made divorce “too easy,” that marriages are viewed as throwaway commodities, and that the whole mess started in the 1970s when American states began to adopt no fault statutes.  Prior to that time, one spouse had to claim total innocence in the marital breakdown while proving “fault” by the other party in one of several designated categories – typically adultery, desertion, or physical or mental cruelty. This proof was a painful and distasteful process, and it could both lengthen the divorce process and make it more expensive. 

The adoption of no fault provisions made it possible for one party to obtain a divorce by alleging a ground such as “irretrievable breakdown” of the marriage without specifically attributing the blame to either partner.  Since U.S. divorce rates peaked in the early 1980s after the adoption of no-fault laws, social critics periodically argue that we should return to fault-based statutes to make divorce hard to obtain.

Continue reading “Divorce Is Never Easy”

Recent news reports describe a new twist in adoption practice. According to the reports John Goodman, a wealthy Florida man, has adopted his 42 year old girlfriend, apparently in an attempt to protect some of his assets against possible losses in a wrongful death action filed against him. Goodman is alleged to have been drunk at the time he ran a stop sign, resulting in an accident that killed another man. Prior to the adoption of his girlfriend, Goodman had set up a trust for his two minor children, which the girlfriend may now share in as an adopted child, and news reports say that, under Florida law, the parents of the deceased man could not claim wrongful death damages from that trust.

When most people hear the word “adoption,” they picture what I often call the “Little Orphan Annie” model. You will recall in the Broadway play “Annie,” and before that in the “Little Orphan Annie” comic strip, Annie was only an infant when she was abandoned on the orphanage steps by her poor parents. After many adventures, Annie was adopted by Daddy Warbucks, a kind man with the emotional and economic resources to provide Annie with a real, forever home. Similarly, many people think of adoption mainly as a procedure for bringing babies and young children into forever families who will love and protect them. Although adoption takes that form for many people, in fact adoptions of older children and of stepchildren (adopted by second spouses to one of the children’s birth parents) are becoming more and more common.

Continue reading “The Many Faces of Adoption”

According to a recent NewYork Times article, many New York parents who have been caught with marijuana or who have admitted using it have found themselves charged with child neglect and have even, in some cases, lost custody of their children.  In many of these cases, the amounts of marijuana in question have been too small to bring even misdemeanor charges against the parents for possession.  Nevertheless, the parents have been deemed neglectful and their children have been removed by child protective services, which have placed the kids in foster care for days, weeks or months.

These cases illustrate one of the most difficult problems in child protection law: how do we define what is “good enough” parenting, and what is child abuse or child neglect? Continue reading “Does Marijuana Possession Equal Child Neglect?”

A custody dispute that has recently been in the national news illustrates the convoluted nature of custody law which has led in this particular case to a very troubling outcome.  (I submit that this case is also Exhibit A as to why the public has such a bad impression of law and lawyers, but that is a topic for another day).

The New York Times reports that mother Trisha Conlon was thwarted in her efforts to obtain a custody order keeping her 13 and 14-year-old boys out of the home of her ex-husband and his current wife Kristine.  Why did Ms. Conlon request this order?  Because the current wife, Kristine Cushing, killed the two daughters she had with the father (and Trisha’s ex-husband), John Cushing Jr.  The killings occurred in 1991.  Mrs. Cushing was found not guilty by reason of insanity allegedly caused by an adverse reaction to Prozac.  She was hospitalized in a mental facility for four years, and was monitored for almost ten years after that.  In 2005, the state of California gave her an unconditional release.

Ms. Conlon learned that her boys were in the same household with Mrs. Cushing in 2007, but her ex said not to worry, he and Mrs. Cushing were splitting up.  They didn’t.  She recently discovered (with the help of a lawyer and a private investigator) that the boys have been in the home with Mrs. Cushing since 2008 – hence her request for a new custody order.

The Court Commissioner deciding the case declined to alter the existing order, which places one boy with each parent during the school year, and keeps them together in one or the other household for holidays and vacations.  The Commissioner’s reasoning was that, since the boys had been spending time with Mrs. Cushing since 2007 (even though their mother did not know of it), there is not now any significant change in circumstances that would warrant a change in physical placement.  Mrs. Conlon is appealing the decision. Continue reading “Custody Concerns”