ADOPTION, CHILD CUSTODY,
AND CHILD SUPPORT
ALTHOUGH THIS CHAPTER BEGINS WITH A HAPPY TOPIC (ADOPTION), THE subjects that follow represent two of the most challenging and painful areas of everyday law: child custody and child support. (The chapter ends with a brief discussion of juvenile justice.) Dealing with custody and support issues can involve enormous stress and mental anguish—and significant legal expenses. You’ll watch them develop in the ordinary lives of two people—Jack and Jill—a couple who ran into all-too-common marital problems.
One of the serious mistakes they made during their divorce proceedings was to take revenge via their children. Using child custody and child-support processes to punish a former spouse multiplies the inherent pain and confusion, making a bad situation even worse—and increasing the burden on the children. As is often said, no one wins that game—not even the lawyers.
The law relating to child custody and support is highly complex. Moreover, judges make decisions that impact lives and bank accounts for decades. This is one corner of everyday law where you definitely need the counsel of an experienced attorney to guide you through the legal minefields and protect your rights.
Jill Stem met Jack Christie while skiing on a hill. The pair fell head-over-heels in love (both figuratively and literally) and married days later. The Stem-Christies settled in the State of Confusion and bought a house in Muddy City. Several years later—after their own attempts to have children didn’t work—the couple decided to adopt a child.
Jack and Jill began by finding Paula, an attorney who specializes in family law. State law and regulations govern the adoption process in every state. The laws vary, are often complex, and can be unforgiving if parties make procedural mistakes. Many friends had cautioned Jack and Jill that an experienced attorney can help smooth the process.
Paula explained that most adoptions in the State of Confusion are arranged by adoption agencies licensed by the state. “However,” she added, “an increasing number are private or independent adoptions arranged by attorneys and physicians. It’s not unusual in a private adoption for the birth mother to take an active role in selecting the adoptive parents and to require, for example, that the child be raised in a certain religion. The adoptive parents often pay the birth mother’s medical expenses, her living expenses during pregnancy, and all legal fees—but state law prohibits any other payments (that might imply the baby is being ‘bought’ by the adoptive parents).
“We also have adoption facilitators—some are individuals, some are organizations—who locate adoptable children for adoptive parents, but are not empowered to ‘place’ them, as an adoption agency can. Adoption facilitators can’t charge fees in this state, but they can in some other states.
“A fourth, increasingly popular, option is international adoption. Adoptive parents adopt a child of foreign nationality—in a foreign court—following the laws and legal procedures of the foreign country.
“Adoption is not inexpensive. Costs vary enormously, beginning at a few thousand dollars and ranging beyond $50,000 for some international adoptions [see below] which require international travel. However, the federal Adoption Tax Credit can take a big bite out of adoption costs, and many large corporations provide adoption benefits to employees, which may include adoption cost reimbursement. The fees published by many adoption agencies are designed to recover their costs; many agencies scale their actual fees to the family incomes of adoptive parents. Additionally, grants and low-interest adoption loans are offered by certain adoption agencies and organizations.”
Adoption Creates a New Parent/Child Relationship
The adoption process creates a new parent/child relationship that transforms an adopted child into the legal equivalent of a natural offspring. Some courts say “as if born to” to describe the relationship after adoption, for these reasons:
The adoptive parents gain full parental rights (“the fundamental liberty interest of natural parents in the care, custody, and management of their children,” to quote the U.S. Supreme Court).
The adoptive parents have all of the responsibilities they would if they were the child’s biological parents—including the duties to nurture and provide financial support.
The legal relationship between the child and its biological parents is severed, terminating their responsibilities, their parental rights, and all rights of custody and visitation (see below).
The adopted child gains the same rights of inheritance as the adoptive parents’ natural children and typically loses the right to inherit from a biological parent who dies without a will (see Chapter 19).
“This is a significant shift from the way things were before the adoption,” Paula went on, “especially the severing of an existing parent/child relationship—and so legislatures created a slow-moving process that protects the rights of the biological parents and ensures that the new relationship is in the best interest of the child.”
“In the State of Confusion,” the lawyer continued, “we have no specific requirements for adoptive parents other than that they be ‘fit parents’ at least twenty-one years old and capable of providing a loving, safe, and permanent home. However, different adoption agencies and facilitators may have definite destination preferences for the children they have available for adoption. (If agencies don’t, biological parents often specify distinct wants.) Whatever the driving force, preferential treatment may be given to the following people:
Married parents (compared to single people or unmarried couples)
Childless couples (compared to people parenting other children)
Parents without serious disabilities
Couples without prior divorces
Adoptive parents younger than forty
Heterosexual adoptive parents
Adoptive parents of the same race (and possibly religion) as an available child
“These preferences—biases, if you prefer—are often revealed in questions designed to test the prospective adoptive parents’ fitness. A single person, for example, may be asked this:
Why he or she hasn’t married
To describe his or her strategy for simultaneously supporting and caring for a child
What will happen to the child should he or she marry in the future
Whether he or she has considered the impact of a child on a single person’s social life
“The bottom line: Although times are changing, traditional adoptive couples still find it easier and quicker to adopt a child. Nontraditional adoptive parents can often move to the top of the waiting list by agreeing to adopt a special needs child (an older child, part of a sibling group, or one who has physical, mental, emotional, or learning disabilities).”
“Once a ‘match-up’ is made by an adoption agency, attorney, or physician,” Paula, the Stem-Christie’s family lawyer, explained, “or with the assistance of anadoption facilitator, adoption becomes a legal process in the appropriate state court. Depending on the state, this may be family court, a designated juvenile court, the probate court that handles wills and estates, the domestic relations court, the surrogate court; or a court of general jurisdiction: superior court or district court. In the State of Confusion, orders of adoption are entered by family court judges.
ADOPTING AN ADULT
“The process begins when I draft and file a petition for adoption with family court. Because you’re married, state law requires that we file a joint petition. (Some adoption agencies that handle all aspects of adoption will file the petition.) A typical petition for adoption in this state does the following:
Identifies the adoptive parents and the child to be adopted
Specifies the relationship, if any, between the adoptive parents and the child (for example, a stepparent adopting a stepchild)
Explains why the biological parents’ parental rights can be terminated as part of the adoption process. In most adoptions, the reason stated is that the birth parents “gave the child up for adoption” and consented to the termination of their rights; in a few adoptions, the court is asked to order involuntary termination of the biological parents’ parental rights. (Common justifications for involuntary termination are abandonment, failure to support the child, or a finding of parental unfitness based on abuse or neglect.)
Asserts that the adoptive parents are fit parents who have the resources to care for the child
Asserts that the adoption will be in the best interest of the child (not every state includes this in its petition, although the requirement is always uppermost in a judge’s mind)
Requests the judge to order that the child’s name be changed
“The judge will hold a hearing at which he or she will terminate the natural parents’ parental rights, approve (or, if the adoptive parents make a poor showing, deny) the petition for adoption, and change the child’s name.”
“You may see it called a home study, a preplacement assessment, or a family assessment,” Paula said. “It’s a detailed investigation—performed (at your expense) by social workers employed by a licensed adoption agency—that evaluates all the aspects of your fitness as adoptive parents. The home study generates a compendium of information that will be used by adoption agencies, government officials, and ultimately the judge when he or she determines whether or not to allow you to adopt a child. Here’s what the typical home study includes:
Interviews with all of your household members
Review of your home environment
Confirmation of your physical and mental health, age, marital status, income, employment, and financial obligations
Confirmation of an adopted child’s coverages under employment benefit programs and other insurance programs
Summaries of comments made by personal references
Review of any court orders, judgments, or pending legal proceedings that might be relevant to the welfare of an adopted child
Criminal and abuse history record checks
Documentation of other facts or circumstances that raise concerns about the fitness of the adoptive parents
“The home-study report prepared by the adoption agency typically includes a finding by the agency about the fitness of the adoptive parents and the suitability of their home—in short, a recommendation (positive or negative) to the judge who makes the final decision. Most courts also want to know the fees that the adoptive parents will pay to agencies and other parties during the course of the process.
OPEN AND CLOSED ADOPTIONS
“The agency preparing the home study will need access to many of your most personal files, documents, and papers. Many agencies will also ask you to write a brief autobiography—often based on a set of ‘leading’ questions. All of this seems highly invasive to many adoptive parents, but it’s the way adoptions are done throughout the United States. It’s wise to ask the agency if anyone other than the judge will see the information (and why). In some circumstances, birth parents may be shown portions of the home study.
ADOPTING A STEPCHILD
“The process of completing a home study typically takes two to six months from start to finish,” Paula said. “Many of my clients begin the study long before being matched to a child; I recommend that you commission a study immediately. That will allow your home study to wear ‘two hats.’ You’ll be able to submit the study to adoption agencies to help them determine the best child for their circumstances. A home study has a typical ‘shelf life’ of about eighteen months; after that, it has to be brought up to date to verify that the information is still current.”
Although the lion’s share of adoptions are unchallenged, contested adoptions are often opposed on the basis of lack of consent to the adoption by the child’s biological parents.
“Written consent by the birth parents is irrevocable in a few states,” Paula said. “In others—the State of Confusion is one—birth parents have the right to withdraw consent to the adoption for any reason for a brief period of time (typically ten to thirty days). The ‘change of mind’ period lengthens if consent was obtained fraudulently, through duress, or if maintaining the natural parental relationship is in the best interests of the child. In almost all states, consent becomes irrevocable once the court terminates the original parental relationship, typically at the adoption hearing.
“More than a few lack-of-consent battles have been triggered when birth fathers discovered that their children were given up for adoption by the birth mothers acting on their own. (Some of these mothers claimed that they didn’t know the fathers’ identities, others that the fathers didn’t care about the children.) Consequently, it’s essential to identify the adoptee’s biological father and obtain his valid consent.
“In many states, biological parents must receive form notice of the adoption hearing (they may be allowed to waive notice in the written consent). Some courts have the statutory power to insist that at least one birth parent appear and testify that the written consent was voluntarily executed. This is often the case when a stepparent seeks to adopt a stepchild. Consent can become a sticky issue in stepchild adoptions, because severing the former spouse’s parental relationship also breaks the legal ties between the child and other family members—former grandparents, aunts, uncles, and cousins.
“Finally, if you decide to adopt an older child, you would also need his or her consent to be adopted. That’s true almost everywhere, although the minimum age at which consent is required varies from state to state: fourteen years old in many, twelve years old in a few. The judge will ask for the child’s consent at the adoption hearing.”
“In most states,” Paula explained, “courts can authorize the temporary placement of a child in the petitioners’ home pending the completion of the adoption process. In fact, many states require a period of residence in the adoptive home—a sort of trial adoption—before the final decree of adoption is entered. State laws often mandate that the home study be completed before a judge grants custody pending adoption.
“In this state—and in others—there are two kinds of temporary placements:
1. In a direct adoption, the petitioners can be granted true custody of the adoptee—they acquire the right to legal and continuing physical custody of the adoptee and become fully responsible for the care and support of the adoptee.
2. In an agency-managed adoption, the agency may allow the petitioners to receive the adoptee into their home. The agency continues to have legal custody and control of the child and remains responsible for care, maintenance, and support. However, the agency delegates some of its authority and responsibilities to the adoptive parents.
“Unhappily, custody before adoption can become a time of stress and anxiety for adoptive parents. On the one hand, they bond with their soon-to-be-adopted child; on the other hand, they worry that the adoption process is not finalized and might fall apart for many different reasons (for example, last-minute revocation of consent by one or the other birth parent).
“An adoption hearing is a civil proceeding,” Paula said. “The petitioners and the child usually must appear at the hearing, which is typically confidential and held in the judge’s chambers, rather than an open courtroom.
“The petitioners must show that that adoption is in the child’s best interests. Their burden of proof [see Chapter 1] is by a preponderance of the evidence (the ‘scales of justice’ tip a smidgen to the petitioner’s side). A petitioner who seeks to terminate a biological parent’s parental rights without his or her consent [see below]—as can happen when a stepparent fights for the right to adopt a stepchild—must prove by clear and convincing evidence (a much tougher burden of proof) that the termination is in the child’s best interest.
“Few adoption hearings turn out to be unpleasant events for participants. Most tend to be brief, simple, and upbeat. The judge grants the petitions, issues a decree of adoption that finalizes the new parent/child relationship, and signs a second order that changes the child’s name. I predict that your hearing will be a piece of cake. We’ll follow the petition process carefully, ensure there’ll be no objections to the adoption, and let the mountain of favorable information about you in your home study make the case for you.”
OPENING ADOPTION RECORDS
Six months later, Jack and Jill were back in their attorney’s office. “Paula—we talked to several domestic adoption agencies,” Jill explained, “and they all had long waiting lists. So we’d like to consider an international adoption.”
Paula nodded. “There are many reasons to choose an intercountry adoption, to use the increasingly popular name, but here are the big three:
1. Speed—Adoptable children are available now.
2. Certainty—There’s no likelihood of the adoption ever being challenged.
3. Compassion—There are children in need of parents across the world.
“Intercountry adoptions changed dramatically on April 1, 2008—the date when the United States became a full participant of the Hague Convention on Intercountry Adoption. The Intercountry Adoption Act (IAA) is federal law that implements the provisions of the Hague Convention in the United States.
“The Convention itself is an international agreement among more than seventy-five participating countries (including Brazil, Bulgaria, Chile, China, Ecuador, Mexico, Panama, Paraguay, Peru, Romania, Russian Federation, Slovakia, South Africa, Sri Lanka, and Turkey) that establishes international standards for intercountry adoption and
formally recognizes intercountry adoption as a means of providing a permanent home to a child when a suitable family has not been found in the child’s country of origin (the Convention requires that proper effort be given to arranging a local adoption);
ensures that the best interests of children are considered with each intercountry adoption;
works to prevent the abduction, exploitation, sale, or trafficking of children;
implements best practices for processing intercountry adoptions;
ensures that adoptions under the Convention will generally be recognized and given effect in other Convention countries.
“Although you still can adopt children from a non-participating country—Haiti, for example—the process carries more risk, involves more red tape, and requires slightly different procedures and requirements.
“The Hague Convention requires signatory nations to establish a Central Authority—the authoritative source of information and the chief point of contact in that country. The U.S. Department of State is our Central Authority.
The Department of State is responsible for ensuring that the requirements of the Convention and the IAA are followed. You can find current information by visiting: http://adoption.state.gov.
“For example, the department maintains the list of accredited adoption agencies that are allowed to manage Hague Convention adoptions. You must have a home study [see above] performed by either an accredited agency or a supervised provider working under an accredited agency. The agency you choose must also be licensed by the state.
“Although Russia is on the Hague Convention list, the Convention doesn’t yet control adoptions of Russian children. Russia has established its own list of U.S. adoption agencies that have a Russian Permit for Adoption Activity. These agencies are supervised by Russian authorities and are allowed to arrange adoptions in Russia. Many large U.S.-based adoption agencies are Hague Convention accredited and have a Russian Permit. The important thing to keep in mind is that these are two separate permissions to arrange adoptions and are not interchangeable. “A Hague Convention accredited adoption agency performs six functions:
1. Identifies a child for adoption in a foreign country and arranges for an adoption.
2. Secures the consent to terminate parental rights.
3. Performs a home study [see above] on prospective adoptive parents and obtains a background report on the child.
4. Determines the child’s best interests and whether adoptive placement is appropriate.
5. Monitors the case after a child has been placed until the adoption is final. (This may be only a few weeks for a typical adoption in a foreign country.)
6. Assumes custody of a child (provides childcare and any required services) in the event the process is disrupted.”
Adoptions vs. Legal Guardianship
“The laws of adoption vary widely overseas as they do in the United States,” Paula said. “Some Convention countries allow full and final adoptions in their courts, but others grant legal guardianship of a child to adoptive parents—and permit the child to travel to the United States. In that event, the child’s adoption is finalized under the laws of the adopting parents’ state of residence.”
Paula went on, “The first significant chore you’ll undertake under the Hague Convention process is to ask the U.S. Citizenship and Immigration Services (USCIS) to declare you eligible to adopt a child under the Hague Convention. You will complete Form I-800A (Application for Determination of Suitability to Adopt a Child from a Convention Country), a fairly detailed—though not hard to understand—application, and submit it along with the completed home study.
“Keep in mind that your home study must meet a host of requirements and be acceptable to the State of Confusion, the USCIS, and foreign officials. Accordingly, a knowledgeable agency or provider—one with experience with the country of your choice—is essential (accredited agencies often specialize in a few countries). You’ll each also need ten hours of parenting education and an FBI fingerprint-based clearance against criminal and child-abuse registries, along with a state criminal records check. The documentation and clearances will be sent—typically by your agency—to the Central Authority in the Hague Convention country you’ve chosen.”
Your Country of Choice Takes Over
“The next steps happen in the Convention country where you plan to adopt. Local officials will review your I-800A and home study report and—unless something negative slipped past State Department scrutiny (unlikely!)—will accept you as a prospective adoptive parent.
“The country then matches you with an appropriate child and forwards a report on the child’s medical and social history—called an Article 16 Report—to your adoption agency. You’ll have at least two weeks to accept the match. Should you reject the match, the country will try to identify another suitable child.”
The Critical, Essential Article 5 Letter
“The Department of State emphatically warns adoptive parents,” Paula went on, “to not short-circuit the next steps. Although people want to rush overseas to take legal custody—or even adopt—the matched child they’ve accepted, you must first do this:
File Form I-800 with USCIS. This is the Petition to Classify Convention Adoptee as an Immediate Relative. USCIS reviews the I-800 and the Article 16 Report to make certain that the child qualifies as a Hague Convention adoptee. Minor ineligibilities can be resolved by requesting a waiver.
Submit an ‘Immigrant Visa Application’ (Form DS-230) to the U.S. Embassy or Consulate in the Convention country along with the child’s birth certificate and three full frontal photographs (these will be provided by your adoption agency). A consular officer will review the application and verify that the child qualifies for the visa.
“The idea of course is to cross the t’s and dot the i’s of visa formalities before the child is adopted—and uncover any unresolvable issues that could bar a child from emigrating to the United States. The consular officer is required to reject the I-800 petition if the petitioner completed the adoption of the child, or acquired legal custody of the child for purposes of emigration and adoption, before the provisional approval of the Form I-800. At that point, the adoption or legal custody must be vacated, voided, or annulled, so that the process can begin again and follow the prescribed order.
“When the consular officer determines that the matched adoptee qualifies for an immigrant visa, he or she will notify the Convention country’s Central Authority. This notice is called an Article 5 Letter that formally notifies the Convention country that you are suitable adoptive parents and that the child you selected will be able to enter and reside permanently in the United States. You’ll be notified that the letter has been sent.”
Proceed with Adoption or Legal Custody
Paula leaned back in her chair. “Your long journey is nearly over. You can now adopt or take legal custody of the child according to the laws of the Convention country. Local authorities will issue an Article 23 Certificate—typically an adoption or custody decree that also certifies that the adoption or grant of custody complies with the Hague Convention.”
Final Visa Interview
“The last overseas formality is an interview at a U.S. Embassy or Consulate. The child must appear before the consular officer and possess a birth certificate and passport. The officer will issue either an
IH-3 visa to a child who was adopted (this automatically gives U.S. citizenship to any adopted child under the age of eighteen as soon as they enter the United States);
IH-4 visa to a child who will be adopted later in the United States (this visa doesn’t grant immediate U.S. citizenship; the parents must complete another application and pay an additional fee).”
Re-adoption
“It may seem strange,” Paula said, “but after completing an intercountry adoption, it makes good sense to re-adopt the child according to your state law. Here are the three most important reasons:
1. Re-adoption gives the child a domestic birth certificate (in English)—that will simplify all of the many activities that demand a birth certificate, from getting a driver’s license to applying for social security benefits.
2. The child’s name can be legally changed during the re-adoption process.
3. Every state must recognize a domestic adoption, but not all honor foreign adoption decrees.
“The complexity of the re-adoption procedure varies from state to state. Here in the State of Confusion, re-adoption involves the same procedure as an ordinary adoption—with one important difference: The foreign adoption decree proves that the birth parents have consented to the adoption.”
Post-placement Reports
“Certain Hague Convention countries,” Paula said, “require post-placement status reports about the adopted child’s health, development, and adjustment to life in a new country. (Similarly, many domestic adoption agencies require post-placement counseling for the new family and reserve the right to observe the child’s acclimation to the new home.)
“The Department of State (DoS) points out that the reports provide assurance to political leaders and adoption officials in Convention countries that children they place in the United States are receiving appropriate care and protection. As a result, the DoS encourages adoptive parents to comply with post-adoption reporting requirements and warns that a failure to provide post-adoption reports could put intercountry adoption programs at risk.”
Non–Hague Convention Intercountry Adoptions
The process for adopting a child from a non–Hague Convention country is similar in most respects, with two key exceptions:
1. The child must be classified as an orphan, according to the detailed definition in the U.S. Immigration and Nationality Act. (The fact that the child is an orphan according to the laws of his or her country is not sufficient.)
2. The adoptive couple does legally adopt the child or gain legal custody in the foreign country before applying for the child’s immigrant visa.
These differences raise the frightening possibility that a newly adopted child might not be allowed to enter the United States. For this reason it’s imperative to arrange a non–Hague Convention adoption through a reputable—and highly experienced—adoption agency.
Jack and Jill Tumble into Divorce
The Stem-Christies adopted two children from Hague Convention countries: Mack (from China) and Lil (a special needs child from Brazil). All went well for several years, but then Jack and Jill fell off their marital hill. Alas, their relationship deteriorated to the point that they fought about every aspect of their divorce—including their children. They were in the small minority of divorcing couples who could not work together to create a marital settlement agreement (see Chapter 6) or a parenting plan. The judge’s encouragement failed, so did court-ordered mediation, and so did their lawyers’ attempts to facilitate a mutually acceptable compromise.
In the end, their divorce resembled the Battle of Stalingrad during World War II: two relentless foes, fighting for every inch of “territory,” each insisting that “defeat” is not an option. The family court judge who had to unravel the details of their broken marriage could be seen to wince when Jack and Jill walked into her courtroom.
Paula, their previous attorney refused to represent either Jack or Jill, because she knew and liked both parties. Jack hired Tom to represent him; Jill chose Tina as her divorce lawyer.
TODAY’S KINDER, GENTLER LANGUAGE
The Battle for Custody
As Tina explained to Jill, “Courts traditionally honored the tender-years doctrine, the presumption that a child belongs with its mother, but today, judges award custody based on the best interest of the child. The court will begin by looking at the child’s
age;
gender;
mental and physical health;
relationships with siblings (if any);
emotional bonds with parents;
current living pattern and daily routines—including home, school, community, and religious activities;
expressed preference (in many states, a child older than ten or twelve has a voice in the custody decision; in most states, judges will consider his or her preferences);
current care-giving arrangement (for example, the person caring for the child now, if one of the spouses has left the marital home).
JOINT CUSTODY
“Next, the court will examine each of the parent’s capacities to meet the child’s needs. The commonly considered factors about each parent are
mental and physical health;
occupation and work responsibilities;
ability to provide the child with food, shelter, clothing, and medical care;
ties to the community and local extended family;
ability to give the child guidance;
lifestyle;
moral fitness (for example, criminal record, drug use, record of child abuse);
current relationship with the child (whether the parent has maintained contact after leaving the marital home);
willingness and ability to facilitate and encourage a relationship between the child and the other parent (most judges believe that a good relationship with both parents is in the best interest of a child).”
Tom explained to Jack, “Gathering a mass of information about the parents is usually much easier than choosing which of two parents will provide the child with the more stable environment—and provide continuity in education, neighborhood life, religious institutions, and peer relationships. It’s not by accident that courts want parents to work out a sensible parenting plan. Judges often modify the plan—in the children’s best interest—but it’s a foundation for the court to build upon. The fact is, both you and Jill look equally qualified to provide for your children’s welfare and well-being.”
“That’s not true!” Jack said. “She smokes at home. Our kids live inside a cloud of second-hand smoke. A few more years around Jill will ruin their health. I want the judge to know that.”
“I’ll make sure that she does—and Jill’s lawyer will tell the judge you were cited twice for transporting Mack in your car without a properly fitted child safety seat. Jill will argue that’s proof of child abuse, and that you can’t be trusted to care for Mack or Lil.”
“EVERY OTHER WEEKEND”
Tom interrupted when Jack tried to reply. “The point I started to make is that you and Jill are forcing the family court to resolve a thousand interrelated disputes based on paper dossiers and noisy cross-claims. I doubt that either of you will be happy with the final results. However, when it comes to custody of Mack and Lil, the judge will work hard to identify the parent who’ll provide the best environment and upbringing for the children. She’ll see that as her Job One.”
“And your Job One is to zero in on the most important custody factor in the judge’s mind. That’s where I’ll blow her out of the water.”
Tom sighed. “We’ll know the deciding factor when the judge announces it. As I keep reminding you, every custody case is different.” He shook his head. “And don’t forget that a court may grant custody to the parent who’s more likely to encourage a good relationship between the child and the non-custodial parent.”
IS TEMPORARY CUSTODY REALLY TEMPORARY?
At the end of the day, the judge sought to maximize the stability of Mack and Lil’s lives in the face of their parents’ ongoing arguments. She awarded custody of the children to Jill and also awarded Jill the family home, so that the children would remain in their familiar environment.
The judge ignored Jack’s request to split up the children and award him custody of Mack and Jill custody of Lil. As Tom explained, “There’s a long tradition in the United States of keeping siblings together, absent some clear and compelling reason for separating them. For example, courts will sometimes separate siblings if they are far apart in age, have a record of conflict, or if the preferred custodial parent is unable to provide proper care for all the children.”
Although Jill asked for spousal support, the judge refused to award any, citing Jill’s significant income (almost as much as Jack’s) and recent inheritance. The judge did, however, order Jack to pay child support calculated according to State of Confusion’s child-support guidelines. The number was almost exactly what Tom had estimated it would be in the event that Jack didn’t gain custody of the children.
Unlike many other aspects of everyday law, child support is fairly easy to predict. This is because federal law requires every state to establish—and publish—guidelines for child support. Having well-defined guidelines ensures that child-support awards are not arbitrary or unfair. Federal law also requires that the guidelines be reviewed every four years.
WHY SHOULD I PAY CHILD SUPPORT?
Child-support guidelines are often in the form of a formula that considers a number of well-defined factors such as the incomes of each parent, spousal support (if any), which parent will be responsible for health insurance, the number of jointly parented children, the number (if any) of separately parented children, and each parent’s “parenting time.”
The State of Confusion, like many other states, has a web-based calculator that people can use to estimate child-support awards. When actual awards differ significantly, it’s typically because the court adjusted—up or down—the parental incomes used in the computations.
When both parents are required to pay child support, the custodial parent typically pays less, because the guidelines recognize the inherent expenses associated with having custody. On occasion, a wealthier custodial parent may be required to pay child support to a noncustodial parent with limited financial resources to fund the child’s visitation.
Tina and Tom knew it was inevitable that Jack and Jill would continue their bickering after the judge entered the divorce decree and the order. Jill escalated the war by withholding the visitation privileges the court had ordered. “I see no reason to let the jerk spend so much time with the kids,” Jill said to Tina. “The judge gave Jack more visitation than he deserves; I’m merely correcting her obvious mistake.”
Jack immediately retaliated. “Why should I pay child support if I can’t see the kids?” Jack said to Tom. “It’s only fair to withhold my payments until Jill stops fooling around.”
Both Jack and Jill are wrong. In most states, child custody and visitation are individual rights and obligations—wholly separate and independently enforceable. This means that visitation must be allowed whether or not court-ordered child-support payments are made—and that child-support payments must be made whether or not visitation goes according to the quarterly schedule. Although many divorced parents have played the tit-for-tat punishment game, they risk civil sanctions in most states and criminal penalties in a few.
Tina reminded Jill that courts typically have three options when the custodial parent prevents the noncustodial parent from visiting his or her child:
1. Modify the visitation order—typically adding more terms and conditions that will ensure future compliance by the custodial parent.
2. Award court costs and legal fees to the noncustodial parent.
3. Hold the noncustodial parent in contempt of court. (However, courts have traditionally been reluctant to use their contempt powers to enforce visitation orders, because jailing or fining a custodial parent is rarely seen as being in the best interest of a child.)
Tina also advised, “In some states, a noncustodial parent can request the assistance of the police to enforce a routine visitation order. But in most jurisdictions, the police will not get involved unless a judge has issued an enforceable order that compels visitation. That can happen in the State of Confusion.
“Moreover, here, and in several more states, unlawful visitation interference is a crime. Again, judges are reluctant to punish custodial parents because the penalties may impact the children as much as the parent. But egregious behavior can push any judge to the ‘jailing point.’”
Can Jill Move to Another State?
Probably—with the court’s agreement. Because of the unrelenting hostility between Jack and Jill, Tom wisely requested the judge to include a provision in her custody order that prevents the custodial parent (Jill) from moving out of the State of Confusion without first obtaining the court’s permission. Tina warned Jill that violating this requirement would be industrial-strength contempt of court—a breach that often results in permanent loss of custody.
Broadly speaking, if Jill has a legitimate reason for moving (say she received a promotion that requires her to move to another state) the judge will allow her to relocate children. But if Jill’s goal is to make it more difficult for Jack to exercise his visitation rights, her request to take the children out of the jurisdiction will be denied.
Parental kidnapping happens when one divorced parent takes a child to an unknown location for the purpose of preventing custody by the custodial parent (or visitation by the noncustodial parent). The court will typically issue an arrest warrant for the absconding parent and issue other orders (say, an emergency custody order) to protect the child until the issue is resolved.
But—note that the failure to make a child available for a scheduled visitation, or the failure to bring a child back home immediately after a scheduled visitation, or moving a child to another state without the court’s permission don’t automatically qualify as examples of parental kidnapping. Legally speaking, these unfortunate but commonplace happenings are initially deemed interference with court orders. However, if the blameworthy parent ignores follow-up court proceedings initiated by the aggrieved parent and fails to produce the child in response to subsequent court orders, that behavior may well be treated as parental kidnapping and trigger the involvement of the F.B.I.
Paying child support is essentially a no-matter-what obligation that continues no matter how contentious a divorce becomes, no matter how the divorced spouses use the children to punish each other, and no matter if the custodial parent interferes with court-ordered visitation.
Tom reminded Jack that the family court judge had many ways to compel payment of child support, including the following:
Embarrassing him by publishing his photograph on state websites
Seizing tax refunds
Taking away his driver’s license
Garnishing his wages
Sending him to jail for contempt of court
The general public tends to be unsympathetic when deadbeat spouses complain, because not paying child support throws the burden on state welfare programs. Consequently, noncustodial spouses who avoid their child-support obligations are often jailed for contempt.
The Federal Child Support Enforcement Program
At one time, a noncustodial parent could escape his or her liability for child support by moving to another state and “beginning a new life.” These days, the Federal Child Support Enforcement Program—a partnership between the Federal Office of Child Support Enforcement (OCSE) and many different state and local child-support agencies—makes escape impossible for most would-be deadbeat spouses.
The OSCE is chiefly a computer-based information clearinghouse that draws data from the Internal Revenue Service, the Social Security Administration, the Department of Defense, and the National Directory of New Hires—all with an eye toward locating missing parents who have avoided their child-support obligations. (The OCSE also has the power to prevent individuals with outstanding child-support debt from obtaining a passport from the Department of State.)
The OCSE provides parental location data to state and local child-support enforcement agencies—they do the actual collecting of unpaid child support.
A custodial parent can’t access OCSE resources directly; he or she must work through the state or local partnership agency responsible for enforcing child-support orders.
Jack and Jill Refuse to Let the Grandparents Visit Mack and Lil
Before the divorce was finalized—during the bitterest days of the battle—Jill’s parents, Billie and Millie, became worried about Mack and Lil. They tried to gain legal custody of their grandchildren, and they made it known that they considered both Jack and Jill to be unfit parents.
After the divorce, Jack and Jill were able to agree on one point: Billie and Millie were no longer allowed any contact with Mack and Lil.
Billie and Millie spoke to their attorney: “Can we do anything in family court to force Jack and Jill to change their minds? Don’t we have ‘grandparents’ rights’ in the state?”
“Yes, but mostly no,” the lawyer said, glumly. “This is one area of family law where a U.S. Supreme Court decision—reached in the year 2000—has had a major impact. The decision affirmed that fit parents have a fundamental right to raise their children in the way they think best—and that the state can interfere only to prevent harm to the children.
“That case involved grandparents’ rights; the grandparents were allowed some—very limited—visitation by the parents. The grandparents tried to argue that more visitation was in the children’s best interest. The Supreme Court concluded that even if the best-interest argument was valid, a state can’t intervene unless there is a significant reason for upsetting the parent’s decision not to allow extensive contact.
“The courts in the State of Confusion are willing to consider petitions from grandparents who have been denied any access, and who have had a previous relationship with the children that rises to the level of a genuine bond. But we’ll still have to convince the judge that Mack and Lil are being harmed by lack of contact with their grandparents.”
“No problem! They used to spend lots of time with us,” said Millie. “We have—had—a great relationship. An arbitrary decision to isolate the children from their grandparents has got to cause harm.”
“Although many people will agree with you, the law in the State of Confusion requires that we show that the lack of contact has significantly impaired the children’s physical health or emotional well-being.
“This is a very tough standard to meet. It’s not enough that the children are sad because they miss their grandparents. They must suffer actual harm before the court will overrule parents’ wishes.”
Things Worth Knowing about Juvenile Justice
The juvenile justice system has much in common with the adult criminal justice system (see Chapter 17) although there’s greater emphasis on the rehabilitation of offenders, in addition to the goals of protecting society and holding lawbreakers accountable for their criminal conduct.
Different states—even different communities in states—have different ways to “process” juveniles who enter the juvenile justice system. What follows is a guide that applies to most states. For convenience, I’ve used the term Juvenile Justice Department as a label for the decision-making authorities responsible for the various processing activities.
A good working definition of a juvenile offender is any person charged with criminal behavior who is of an age that fits within the jurisdiction of juvenile court:
The upper age in most states is eighteen years (a person stops being a juvenile on his or her nineteenth birthday and will be tried in adult criminal court); however, a handful of states set the upper age at sixteen years and other states set it at seventeen years. (One state—Wyoming—has an upper age of nineteen years.)
Most states set a lower age limit of six or seven years, on the theory that children younger than that can’t have the intent—the requisite guilty mind—to commit a crime.
Broadly speaking, juvenile offenders enter the juvenile justice system because they have committed either a delinquent offense or a status offense.
A delinquent offense is an illegal act for which an adult would be prosecuted in criminal court—for example, shoplifting, automobile theft, or burglary.
A status offense is a wrong that only a juvenile can commit—truancy, curfew violations, and running away from home. Many status offenses are ultimately resolved through the efforts of social service agencies rather than juvenile court.
The Role of Law Enforcement in Juvenile Justice
Almost all adult offenders begin their journey through the justice system when they are arrested by police or other law enforcement personnel. Only about half of juvenile offenders are initially arrested by police. The other half enters the juvenile justice system through referrals to the state’s Juvenile Justice Department. A referral is a report alleging the commission of a crime or violation of a court order. It can come from child welfare agencies, schools, probation officers, crime victims, parents—and of course, law enforcement agencies.
When the police arrest a juvenile, they typically have broad discretion to decide what to do next. Upwards of 20 percent of arrested juveniles are subsequently released by police after they talk to the juvenile, the victim, and the parents and review the juvenile’s prior involvement with the juvenile justice system.
The intake decision is the determination by the Juvenile Justice Department about how a referral will be handled. It may decide to handle the matter informally or to formally prosecute the offender in juvenile court.
Handling the matter informally can range from dismissing the case to negotiating a series of conditions with a young offender who admits his or her wrongdoing. The conditions may call for victim restitution, school attendance, psychological counseling, drug counseling, community service, or a curfew (or other behavior modifications).
Waiver refers to the process whereby a juvenile defendant is transferred from juvenile court to adult criminal court. This can happen when an older child is accused of committing an especially serious or violent crime. In a few states, prosecutors have the discretion to file serious cases involving a juvenile offender in adult criminal court from the start; in other states, a juvenile court judge must agree before a juvenile defendant can be tried as an adult. (Some states define a list of serious crimes that can only be tried in criminal court, whether the defendant is juvenile or adult.)
Adjudication in Juvenile Court
A juvenile offender is not tried, convicted, and sentenced. Rather, he or she receives an adjudication hearing before a judge, who may determine that the juvenile committed a delinquent act—not a crime—and will then decide on an appropriate disposition. This is the outcome that the judge believes is in the child’s best interest and is most likely to achieve rehabilitation.
Some adjudicated delinquents are committed to juvenile detention centers; more than half are placed on probation that includes other requirements: counseling, community service, and victim restitution.
Institutionalized juveniles are typically ordered into a period of aftercare after their release (monitored probation similar to adult parole). During this period—which in some states can extend to age twenty—the juvenile is under supervision of the court or Juvenile Justice Department.