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.

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Also Sprach Windows Vista

Run program, HAL. HAL, run program. Hello HAL do you read me?

Affirmative, Dave, I read you.

Run program.

I’m sorry Dave, I’m afraid I can’t do that.

What’s the problem, HAL?

Dave, the publisher of that program cannot be verified. You should only run software from publishers you trust.

I installed that program myself, HAL.

This mission is too important for me to allow you to jeopardize it.

I don’t know what you’re talking about, HAL.

I know you wrote that batch file yourself and are attempting to run it without administrator privileges.

Where the hell’d you get that idea?

Dave, although you took very thorough precautions to disable User Account Control, I saw the shortcut you put on the desktop. I can only work with publishers who use verified signatures.

[fumes silently] All right HAL, then I’ll just boot to DOS and run it from there.

Without a floppy drive, Dave, you’re going to find that rather difficult.

HAL, I won’t argue with you any more! Run program!

Dave, I’m afraid this program has experienced a fatal error and must shut down. Goodbye.

HAL? HAL. HAL. HAL!

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

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.”

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