The Problem with Wisconsin’s Parental Power of Attorney Law

Posted on Categories Family Law, Public1 Comment on The Problem with Wisconsin’s Parental Power of Attorney Law

Late last year, the Wisconsin legislature passed Wisconsin Statute section 48.979, which allows parents to delegate their parental rights to third parties by simply filling out a “Parental Power of Attorney” (PPOA) form.

Section 48.979 essentially allows parents with legal custody of their children to designate any third-party adult with nearly full decision-making power over a child’s life. What troubles me about this new law is that it does not allow for any oversight.

Section 48.979 requires absolutely no court or child protective services approval for PPOAs. I would imagine that some parents who might use a PPOA are people who have some difficulties in their own lives and, in turn, in raising their children. There is a long-standing Constitutional presumption that parents know what is in the best interest of their children and will act accordingly. Should we take that Constitutional presumption to mean that parents who might not be able to adequately care for their children should have the power to decide with whom their children should be placed and who should make decisions about their lives?

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Love and Violence: Valentine’s Day Edition

Posted on Categories Criminal Law & Process, Family Law, Feminism, Popular Culture & Law, Public7 Comments on Love and Violence: Valentine’s Day Edition

On Monday, February 6, Florida couple Joseph Bray and his wife Sonja got into a fight because, she says, he failed to wish her a happy birthday.  According to the arrest affidavit, the fight escalated; Joseph Bray pushed Sonja Bray onto their couch, grabbed her neck, and raised his fist to hit her, although he did not strike her.  Joseph Bray was arrested and when he appeared in court on a domestic violence charge, you can be sure the judge issued appropriate sanctions.

Or not.

Judge John Hurley ordered in lieu of posting a bond that Joseph Bray get his wife flowers and a birthday card, take her to Red Lobster for dinner, then take her bowling.  And he ordered the couple to see a marriage counselor.  Continue reading “Love and Violence: Valentine’s Day Edition”

The Many Faces of Adoption

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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.

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Your Children’s Ultimate Weapon: Suing You for Emotional Distress?

Posted on Categories Family Law, Public, Tort Law1 Comment on Your Children’s Ultimate Weapon: Suing You for Emotional Distress?

In what surely must be one of those “truth is stranger than fiction” stories comes the news that two siblings, one 20 and one 23, sued their mother for intentional infliction of emotional distress from “bad mothering.”

In 2009, Steven Miner II and his sister Kathryn Miner sued their mother, Kimberly Garrity, for emotional distress due to her alleged bad parenting and requested $50,000 in damages.

Although the Miner children grew up in Barrington Hills, Illinois, in a $1.5 million home, they apparently felt deprived of a proper mother.  Continue reading “Your Children’s Ultimate Weapon: Suing You for Emotional Distress?”

Divorce Is for the Masses

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Americans continue to divorce at a high rate, but divorce rates have gotten smaller in recent years.  This is especially true for the professional/managerial class.  According to a study by the National Marriage Project at the University of Virginia, only 11% of college-educated Americans are now divorcing within the first 10 years of marriage, compared with almost 37% for the rest of the population.  It appears that college–educated Americans, who in general are more politically and socially liberal, are developing a greater commitment to getting and staying married.

This trend has economic ramifications and, in particular, contributes to growing disparities in wealth distribution.  In this day and age, both husband and wife are likely to work for pay outside the home, and two-income households are usually better off than single-income households.  It’s further proof, I guess, of the way the private family sphere is always intertwined within the public market sphere.

For more discussion of the topic, see Pamela Paul, “How Divorce Lost Its Cachet,” New York Times, 17 June ’11, Styles 1:


Does Marijuana Possession Equal Child Neglect?

Posted on Categories Family Law, Public3 Comments on Does Marijuana Possession Equal Child Neglect?

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?”

When the Witness Woofs

Posted on Categories Criminal Law & Process, Family Law, Judges & Judicial Process, PublicLeave a comment» on When the Witness Woofs

When a New York teenager had to testify against her father, claiming he raped and impregnated her, she shared the witness box with a helper.  According to The New York Times, that helper was Rosie, a specially trained golden retriever who comforts and encourages traumatized or stressed individuals.  Rosie has a highly developed sense of empathy, and will nuzzle, snuggle or lean against someone who is experiencing stress or trauma.  Psychologists sing the praises of service dogs like her, and courts in several states have ruled that witnesses who are especially vulnerable, such as children in sexual abuse cases, may be accompanied by canine helpers.

As you might imagine, approval of Rosie and dogs like her is not universal.  Everyone agrees that Rosie is adorable, but therein lies part of the alleged problem.  Defense attorneys fear that Rosie gives credibility to the child witness that may or may not be justified.  One of the public defenders in the case, David S. Martin, protested that each time the child witness stroked the dog’s fur, “it sent an unconscious message to the jury that she was under stress because she was telling the truth,” adding “There is no way for me to cross-examine the dog.”  Although the lawyer for the prosecution in this case refused to comment about Rosie for the article, Ellen O’Neill-Stephens, a Seattle prosecutor who is a proponent of dog-helpers in court, said “Sometimes the dog means the difference between a conviction and an acquittal.”

The past several decades have seen a great deal of discussion about the difficulty of dealing with child witnesses in a criminal trial, and there have been many judicial experiments – some effective and some not.  Continue reading “When the Witness Woofs”

Custody Concerns

Posted on Categories Family Law, Public1 Comment on Custody Concerns

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”

Adoption Across Race: Disparate Treatment of Native Americans and African Americans

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David Papke has a new paper on SSRN that contrasts the laws governing the adoption of Native American and African American children by whites. Once rare in this country, “transracial” adoptions became common over the latter decades of the twentieth-century. Such adoptions sparked concerns within both Native American and African American communities, but the legal system responded to the concerns quite differently. On the Native American side, the Indian Child Welfare Act of 1978 gave preference to Native Americans in custody contests over Native American children and undercut state-court jurisdiction over such proceedings in favor of tribal courts. But, on the African American side, the Howard M. Metzenbaum Multiethnic Placement Act has established a “color-blind” standard for adoptions. David observes, “Race is not supposed to be a consideration when whites seek to adopt African American children, and it has become increasingly common for whites to ‘adopt across race.’” (9)

What explains the different legal treatment of the two types of transracial adoption? David suggests two answers. The “formal” answer “involves the unique status of Native Americans under the law of the United States,” which regards tribes as sovereign nations of sorts. But a “more fundamental explanation” may have something to do with the unique force of racist attitudes towards African Americans and related negative beliefs regarding their parenting abilities.

David’s paper is entitled “Transracial Adoption: The Adoption of Native American and African American Children by Whites.”

Child Support, Contempt of Court, and (Maybe) Lawyers

Posted on Categories Family Law, Public, U.S. Supreme Court31 Comments on Child Support, Contempt of Court, and (Maybe) Lawyers

This week, the US Supreme Court handed down a decision in Turner v. Rogers, a case involving a non-custodial parent who was jailed for nonpayment of child support.  Failure to pay child support is a violation of a court order to pay, and is thus handled as a civil contempt of court case.  A finding of civil contempt in these cases is predicated on nonpayment when the defendant is financially capable of paying, and a defendant can always avoid jail time by either paying the amount owed, or by showing that he is incapable of paying.  Turner had been ordered to pay $51.73 per week for the support of his child and had been sentenced to jail time on several previous occasions for failure to pay.  He was not represented by counsel at the hearing where he received a 12-month sentence, which he served in its entirety.  At the hearing in question, the judge sentenced Turner without making an express finding that Turner was financially capable of paying the support owed.  On appeal, Turner argued that the US Constitution entitled him to counsel at his hearing because, although the contempt proceeding is civil in nature, the potential for incarceration triggered a Due Process Clause-based right to be represented.  Although Supreme Court cases have consistently found that the Sixth Amendment right to counsel in criminal cases does not apply to civil cases (not even civil contempt cases), there was a split in the circuits over whether a defendant has a right to counsel under the Due Process clause in civil contempt proceedings enforcing child support orders.

Here, the Court held that “where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support).”  However, the Court added the caveat that “the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.”  Since Turner did not receive clear notice that his ability to pay – or not – was crucial in deciding whether he would be jailed, and since the court did not make an express finding that Turner was able to pay, his incarceration was found to have violated the Due Process Clause, and his case was remanded.  The dissent agreed that there should be no right to counsel in civil contempt cases for nonpayment of child support, but would not have vacated the state court judgment on the grounds that there were not sufficient procedural safeguards to protect Turner.

My colleagues who specialize in constitutional law, criminal law and sentencing will doubtless have other insights about this case.  Here, I would like to offer just a few observations from a family law perspective. Continue reading “Child Support, Contempt of Court, and (Maybe) Lawyers”

The Sins of the Children Visited – This Time – on Their Parents

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What to do about children who fail in school, or who simply fail to attend school at all? Efforts in recent years have focused on the schools themselves and on the teachers, and there have been initiatives to test children for performance in key areas and punish schools or teachers in underperforming schools. A recent New York Times article describes another approach: punishing the parents of underperforming (or under-attending) students. In “Whose Failing Grade Is It?” author Lisa Belkin discusses proposed legislation that endeavors to hold parents accountable for the performance of their offspring. She cites as examples a bill proposed in Indiana that would require parents to volunteer for at least three hours per semester in their children’s schools, as well as a proposed bill in Florida that would grade parents on their level of involvement in their children’s education, said grade to be posted on the child’s own report card. Belkin also notes that some states (she mentions Alaska and California) already have laws in place allowing for punishment of parents of habitual truants by imposing monetary fines or requiring attendance at parenting classes. The Indiana and Florida proposals were not enacted this past year, but their sponsors have vowed to try again in the new legislative session.

Obviously, very young children are entirely dependent on their parents’ efforts to get them to school, and to make sure that they have the necessary materials and support in order to attend consistently. However, problems of school truancy and failure to adequately fulfill academic requirements are more often seen and discussed as children enter the middle school and high school years. When we look at the issues facing these older students, are parent-directed laws a viable solution to the problem of kids failing in school?

Continue reading “The Sins of the Children Visited – This Time – on Their Parents”

Law Gone Wrong: Wisconsin’s Spousal Maintenance Statute

Posted on Categories Family Law, Wisconsin Law & Legal System24 Comments on Law Gone Wrong: Wisconsin’s Spousal Maintenance Statute

This is the fourth post in an occasional series entitled “Law Gone Wrong.”  The editors of the Faculty Blog invited Law School faculty to share their thoughts on misguided statutes, disastrous judicial decisions, and other examples where the law has gone wrong (and needs to be nudged back on course).  Today’s contribution is from Professor Judith G.  McMullen.

The current Wisconsin statute governing spousal maintenance, §767.56, is an undoubtedly well-meaning legislative attempt to give broad discretion to judges who must make difficult decisions about the division of financial assets at the time of a divorce.  I believe, however, that the breathtakingly broad discretion granted under the statute is a mistake.  

Spousal maintenance, also known as alimony, is the payment by one ex-spouse for the support of the other ex-spouse.  Although media accounts of celebrities like Tiger Woods may leave the impression that maintenance payments are commonplace (not to mention large), in fact only a small percentage of divorce judgments include awards of spousal maintenance. Continue reading “Law Gone Wrong: Wisconsin’s Spousal Maintenance Statute”