Woman who killed child denied new attorney
Sentencing is set to go ahead as planned next week for a Santa Maria woman who murdered her 3-year-old foster son, after a Superior Court judge denied her request for a new attorney.
Sylvia Dominguez, 30, and her attorney, Senior Deputy Public Defender David Ogren, took part Friday in a closed hearing with Judge Edward Bullard in which they apparently discussed Dominguez’s concerns over her legal representation.
When a defendant indicates he or she wants a new lawyer, the judge must hold a “Marsden hearing” if the attorney is court-appointed. A hearing on a Marsden motion is what transpired Friday.
Isabella Brooke Knightly and Austin Gamez-Knightly
In Memory of my Loving Husband, William F. Knightly Jr. Murdered by ILLEGAL Palliative Care at a Nashua, NH Hospital
Saturday, January 22, 2011
Grandparent's Right's Bill in South Carolina
News
News
News about any new happenings or events related to Grandparents raising their grandchildren will be placed here as soon as we are informed and confirm the event.
Top Stories
JANUARY 3, 2011 TOP NEWS STORY: Grandparents Rights Bill has been introduced in South Carolina. House Bill H.3225 reads as follows:
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 63-15-35 SO AS TO PROVIDE THAT IN DETERMINING THE BEST INTERESTS OF A MINOR CHILD FOR AN AWARD OF CHILD CUSTODY, THE FAMILY COURT SHALL CONSIDER THE GRANDPARENTS AND IMMEDIATE FAMILY MEMBERS OF THE CHILD FOR CUSTODY AND GIVE PRIORITY FOR CUSTODY TO A GRANDPARENT OR IMMEDIATE FAMILY MEMBER EXCEPT OVER A PARENT OF THE CHILD, AND TO PROVIDE THAT IN CONSIDERING PLACEMENT OF A CHILD WITH A GRANDPARENT OR IMMEDIATE FAMILY MEMBER, THE COURT MUST CONSIDER THE RELATIVE CAPABILITY OF THE INDIVIDUAL TO CARE FOR THE CHILD, INCLUDING THE CHARACTER, FITNESS, ATTITUDE, AND INCLINATIONS OF THE INDIVIDUAL AS THEY WOULD IMPACT THE CHILD, IN ADDITION TO THE TOTALITY OF THE CIRCUMSTANCES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 1, Chapter 15, Title 63 of the 1976 Code is amended by adding:
"Section 63-15-35. In determining the best interests of the child, the family court shall consider the grandparents and immediate family members of the child for custody and give priority for custody to a grandparent or immediate family member except over a parent of the child. In considering placement of a child with a grandparent or immediate family member, the court must consider the relative capability of the individual to care for the child, including the character, fitness, attitude, and inclinations of the individual as they would impact the child, in addition to the totality of the circumstances."
SECTION 2. This act takes effect upon approval by the Governor.
----XX----
We have had numerous requests for signs to advertise this new bill. In response, here is a link to a file you can download and print:
Click HERE
NOVEMBER 2010
Election Results are in and Grandparents have some NEW friends in the State House of Representatives. See the results HERE
GREAT NEWS for GRANDPARENTS:
The following legislation was passed in June 2010 and signed by the governor, therefore it is now law:
Passed by the General Assembly on June 15, 2010
Summary: Grandparents visitation
6/24/2010 Signed By Governor
AN ACT TO AMEND SECTION 63‑3‑530, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE JURISDICTION OF THE FAMILY COURT, INCLUDING JURISDICTION TO ORDER VISITATION FOR GRANDPARENTS, SO AS TO PROVIDE THAT THE COURT MAY ORDER GRANDPARENT VISITATION IF THE COURT FINDS THAT THE CHILD'S PARENTS ARE UNREASONABLY DEPRIVING THE GRANDPARENT VISITATION WITH THE CHILD AND HAVE DENIED VISITATION FOR MORE THAN NINETY DAYS, THAT THE GRANDPARENT MAINTAINED A RELATIONSHIP WITH THE CHILD SIMILAR TO A PARENT‑CHILD RELATIONSHIP, THAT AWARDING VISITATION WOULD NOT INTERFERE WITH THE PARENT‑CHILD RELATIONSHIP, AND THAT THE PARENTS ARE UNFIT OR THAT THERE ARE COMPELLING CIRCUMSTANCES TO OVERCOME THE PRESUMPTION THAT THE PARENTAL DECISION IS IN THE CHILD'S BEST INTEREST; TO AUTHORIZE THE JUDGE TO AWARD ATTORNEY'S FEES TO THE PREVAILING PARTY; AND TO DEFINE “GRANDPARENT".
Be it enacted by the General Assembly of the State of South Carolina:
Grandparent visitation revised
SECTION 1. Section 63‑3‑530(A)(33) of the 1976 Code, as added by Act 361 of 2008, is amended to read:
“(33) to order visitation for the grandparent of a minor child where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats, if the court finds that:
(1) the child’s parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child, including denying visitation of the minor child to the grandparent for a period exceeding ninety days; and
(2) the grandparent maintained a relationship similar to a parent‑child relationship with the minor child; and
(3) that awarding grandparent visitation would not interfere with the parent‑child relationship; and:
(a) the court finds by clear and convincing evidence that the child's parents or guardians are unfit; or
(b) the court finds by clear and convincing evidence that there are compelling circumstances to overcome the presumption that the parental decision is in the child's best interest.
The judge presiding over this matter may award attorney's fees and costs to the prevailing party.
For purposes of this item, ‘grandparent’ means the natural or adoptive parent of any parent to a minor child;”
Time effective
SECTION 2. This act takes effect upon approval by the Governor.
Ratified the 21st day of June, 2010.
Approved the 24th day of June, 2010.
As reported in the Greenville News:
The former finance director of South Carolina's social services agency was sentenced Monday to 10 years in prison for stealing more than $5 million from the agency, money he has admitted spending on strippers, alcohol and gambling. Read the complete story published by The Greenville News website by clicking the link on the right side of this page.
We will be watching the progress of this case closely as it apparently reflects the general attitude of DSS towards the families of South Carolina. GRASC advocated a SLED investigation of the intire DSS system to insure there are no other breaches of the public trust by this agency.
News
News about any new happenings or events related to Grandparents raising their grandchildren will be placed here as soon as we are informed and confirm the event.
Top Stories
JANUARY 3, 2011 TOP NEWS STORY: Grandparents Rights Bill has been introduced in South Carolina. House Bill H.3225 reads as follows:
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 63-15-35 SO AS TO PROVIDE THAT IN DETERMINING THE BEST INTERESTS OF A MINOR CHILD FOR AN AWARD OF CHILD CUSTODY, THE FAMILY COURT SHALL CONSIDER THE GRANDPARENTS AND IMMEDIATE FAMILY MEMBERS OF THE CHILD FOR CUSTODY AND GIVE PRIORITY FOR CUSTODY TO A GRANDPARENT OR IMMEDIATE FAMILY MEMBER EXCEPT OVER A PARENT OF THE CHILD, AND TO PROVIDE THAT IN CONSIDERING PLACEMENT OF A CHILD WITH A GRANDPARENT OR IMMEDIATE FAMILY MEMBER, THE COURT MUST CONSIDER THE RELATIVE CAPABILITY OF THE INDIVIDUAL TO CARE FOR THE CHILD, INCLUDING THE CHARACTER, FITNESS, ATTITUDE, AND INCLINATIONS OF THE INDIVIDUAL AS THEY WOULD IMPACT THE CHILD, IN ADDITION TO THE TOTALITY OF THE CIRCUMSTANCES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 1, Chapter 15, Title 63 of the 1976 Code is amended by adding:
"Section 63-15-35. In determining the best interests of the child, the family court shall consider the grandparents and immediate family members of the child for custody and give priority for custody to a grandparent or immediate family member except over a parent of the child. In considering placement of a child with a grandparent or immediate family member, the court must consider the relative capability of the individual to care for the child, including the character, fitness, attitude, and inclinations of the individual as they would impact the child, in addition to the totality of the circumstances."
SECTION 2. This act takes effect upon approval by the Governor.
----XX----
We have had numerous requests for signs to advertise this new bill. In response, here is a link to a file you can download and print:
Click HERE
NOVEMBER 2010
Election Results are in and Grandparents have some NEW friends in the State House of Representatives. See the results HERE
GREAT NEWS for GRANDPARENTS:
The following legislation was passed in June 2010 and signed by the governor, therefore it is now law:
Passed by the General Assembly on June 15, 2010
Summary: Grandparents visitation
6/24/2010 Signed By Governor
AN ACT TO AMEND SECTION 63‑3‑530, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE JURISDICTION OF THE FAMILY COURT, INCLUDING JURISDICTION TO ORDER VISITATION FOR GRANDPARENTS, SO AS TO PROVIDE THAT THE COURT MAY ORDER GRANDPARENT VISITATION IF THE COURT FINDS THAT THE CHILD'S PARENTS ARE UNREASONABLY DEPRIVING THE GRANDPARENT VISITATION WITH THE CHILD AND HAVE DENIED VISITATION FOR MORE THAN NINETY DAYS, THAT THE GRANDPARENT MAINTAINED A RELATIONSHIP WITH THE CHILD SIMILAR TO A PARENT‑CHILD RELATIONSHIP, THAT AWARDING VISITATION WOULD NOT INTERFERE WITH THE PARENT‑CHILD RELATIONSHIP, AND THAT THE PARENTS ARE UNFIT OR THAT THERE ARE COMPELLING CIRCUMSTANCES TO OVERCOME THE PRESUMPTION THAT THE PARENTAL DECISION IS IN THE CHILD'S BEST INTEREST; TO AUTHORIZE THE JUDGE TO AWARD ATTORNEY'S FEES TO THE PREVAILING PARTY; AND TO DEFINE “GRANDPARENT".
Be it enacted by the General Assembly of the State of South Carolina:
Grandparent visitation revised
SECTION 1. Section 63‑3‑530(A)(33) of the 1976 Code, as added by Act 361 of 2008, is amended to read:
“(33) to order visitation for the grandparent of a minor child where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats, if the court finds that:
(1) the child’s parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child, including denying visitation of the minor child to the grandparent for a period exceeding ninety days; and
(2) the grandparent maintained a relationship similar to a parent‑child relationship with the minor child; and
(3) that awarding grandparent visitation would not interfere with the parent‑child relationship; and:
(a) the court finds by clear and convincing evidence that the child's parents or guardians are unfit; or
(b) the court finds by clear and convincing evidence that there are compelling circumstances to overcome the presumption that the parental decision is in the child's best interest.
The judge presiding over this matter may award attorney's fees and costs to the prevailing party.
For purposes of this item, ‘grandparent’ means the natural or adoptive parent of any parent to a minor child;”
Time effective
SECTION 2. This act takes effect upon approval by the Governor.
Ratified the 21st day of June, 2010.
Approved the 24th day of June, 2010.
As reported in the Greenville News:
The former finance director of South Carolina's social services agency was sentenced Monday to 10 years in prison for stealing more than $5 million from the agency, money he has admitted spending on strippers, alcohol and gambling. Read the complete story published by The Greenville News website by clicking the link on the right side of this page.
We will be watching the progress of this case closely as it apparently reflects the general attitude of DSS towards the families of South Carolina. GRASC advocated a SLED investigation of the intire DSS system to insure there are no other breaches of the public trust by this agency.
Serious problems with Custody Evaluators, 730 Evaluators, Child Custody Evaluators, Bad Custody Evaluations » THE PUBLIC COURT
Serious problems with Custody Evaluators, 730 Evaluators, Child Custody Evaluators, Bad Custody Evaluations » THE PUBLIC COURT
What do Custody Evaluators Steven Adam and Stephen Doyne have in common?
“A Los Angeles Times news item from 1992 states that court justices reverse a decision which dropped Adam from a lawsuit brought by a woman who sued him for approving unmonitored visits to her daughter by her ex-husband.. The appeal justices’ ruling stated court-appointed evaluators such as Adam do not get “blanket immunity for all negligenct conduct.” Mark I. Pinsky, “Court of Appeal Reverses Verdict in Murder Case, Los Angeles Times, June 2, 1992.” This case answers the question for so many families caught in the family court trap, “Can I sue my custody evaluator?” The answer in California is, “Yes, you can, in particularly, for negligence.”
AND
“Adam is also the poster child for stepping out of the scope in the court orders for a custody evaluator. In the Seagondollar case, the appeal justices spanked Adam for not following the court orders that defined a custody evaluation. Adam, took it upon himself to follow his own rules. The court of appeal justices caught Adam stepping out of the scope in the well known California Family Law Appeal case known as The Seagondollar Case. This lead to mandated classes for all custody evaluators across the U.S. regarding how they must follow court orders in how a custody evaluation is to be conducted. In the courts terms and not dictated by the custody evaluator.” Seagondollar Appellate case opinion
What is of significant importance in regard to Adam and the Segondollar case is that in the entire San Diego County, prior to July 24, 2009, CA Rules of Court were never followed, never administered, when they are very clear that ‘each court must’ follow them. Well in the case of Tadros vs. Doyne this is highlighted by Emad Tadros and Chris Morris (Associate of Mike Aguirre) in that they had 20″ x 30″ inch poster boards showing the very forms having to do with the Rules that were violated in front of Judge Jay Bloom and he completely ignored the violations Stephen Doyne and Court itself had violated for years. Judge Bloom granted Doyne the Anti-Slapp and ordered Tadros MD to pay Doyne 80k for blowing the whistle on him and the Court.
Stephen Doyne and all of the rest of the Custody Evaluators in San Diego County as well as all of the Judges in San Diego County, NEVER used these forms (FL-327 and FL-326) as mandated by the Court.
Mr. Michael C. Roddy, Court Executive Officer of San Diego Superior Court participated in Judicial Counsel meetings where the Rules (CRC 5.225-5.230) pertaining to these forms were first introduced, and then he attended another JC meeting and voted on amending to them, continuing to make them more detailed and important in protecting the Public from fraudulent and unqualified Custody Evaluators. However, Mr. Roddy NEVER administered the Rules of Court he voted on to protect the Public! These Rules also protect Evaluators as well in substantiating their background training and qualifications in order to perform evaluations or serve as expert witness of the court, and they are to be signed under the penalty of perjury. Precisely, because these forms were never filled out and filed in the time sensitive, mandatory 10-day period they were to be completed by, NOT a single Evaluator in San Diego County over several years were NEVER qualified to serve as expert witness — They were UNQUALIFIED! Stephen Doyne should never have been granted the Anti-Slapp ruling precisely because he never legally attached to Tadros MD’s evaluation in the first place. The Rules are very clear, if you don’t complete the form FL-326 then you cannot serve as expert witness, but they all have been doing it anyway, committing to HIPAA violations in the act, denying litigants their due process, and well, essentially being illegal interlopers in the act of conducting 730 Custody Evaluations. These are just the broad sweeps of what is at issue, there are many more details to these Rules of Court known as CRC 5.225 – 5.230 and how San Diego’s Custody Evaluators are conducting themselves.
It is very clear that the precedents that the Segaondollar case went ignored by San Diego County and it’s corrupt team of so-called court professionals. Why did San Diego ignore these Rules of Court when every other county in the State of CA complied with them??? If you really want to know, follow the money…and good luck!
What do Custody Evaluators Steven Adam and Stephen Doyne have in common?
“A Los Angeles Times news item from 1992 states that court justices reverse a decision which dropped Adam from a lawsuit brought by a woman who sued him for approving unmonitored visits to her daughter by her ex-husband.. The appeal justices’ ruling stated court-appointed evaluators such as Adam do not get “blanket immunity for all negligenct conduct.” Mark I. Pinsky, “Court of Appeal Reverses Verdict in Murder Case, Los Angeles Times, June 2, 1992.” This case answers the question for so many families caught in the family court trap, “Can I sue my custody evaluator?” The answer in California is, “Yes, you can, in particularly, for negligence.”
AND
“Adam is also the poster child for stepping out of the scope in the court orders for a custody evaluator. In the Seagondollar case, the appeal justices spanked Adam for not following the court orders that defined a custody evaluation. Adam, took it upon himself to follow his own rules. The court of appeal justices caught Adam stepping out of the scope in the well known California Family Law Appeal case known as The Seagondollar Case. This lead to mandated classes for all custody evaluators across the U.S. regarding how they must follow court orders in how a custody evaluation is to be conducted. In the courts terms and not dictated by the custody evaluator.” Seagondollar Appellate case opinion
What is of significant importance in regard to Adam and the Segondollar case is that in the entire San Diego County, prior to July 24, 2009, CA Rules of Court were never followed, never administered, when they are very clear that ‘each court must’ follow them. Well in the case of Tadros vs. Doyne this is highlighted by Emad Tadros and Chris Morris (Associate of Mike Aguirre) in that they had 20″ x 30″ inch poster boards showing the very forms having to do with the Rules that were violated in front of Judge Jay Bloom and he completely ignored the violations Stephen Doyne and Court itself had violated for years. Judge Bloom granted Doyne the Anti-Slapp and ordered Tadros MD to pay Doyne 80k for blowing the whistle on him and the Court.
Stephen Doyne and all of the rest of the Custody Evaluators in San Diego County as well as all of the Judges in San Diego County, NEVER used these forms (FL-327 and FL-326) as mandated by the Court.
Mr. Michael C. Roddy, Court Executive Officer of San Diego Superior Court participated in Judicial Counsel meetings where the Rules (CRC 5.225-5.230) pertaining to these forms were first introduced, and then he attended another JC meeting and voted on amending to them, continuing to make them more detailed and important in protecting the Public from fraudulent and unqualified Custody Evaluators. However, Mr. Roddy NEVER administered the Rules of Court he voted on to protect the Public! These Rules also protect Evaluators as well in substantiating their background training and qualifications in order to perform evaluations or serve as expert witness of the court, and they are to be signed under the penalty of perjury. Precisely, because these forms were never filled out and filed in the time sensitive, mandatory 10-day period they were to be completed by, NOT a single Evaluator in San Diego County over several years were NEVER qualified to serve as expert witness — They were UNQUALIFIED! Stephen Doyne should never have been granted the Anti-Slapp ruling precisely because he never legally attached to Tadros MD’s evaluation in the first place. The Rules are very clear, if you don’t complete the form FL-326 then you cannot serve as expert witness, but they all have been doing it anyway, committing to HIPAA violations in the act, denying litigants their due process, and well, essentially being illegal interlopers in the act of conducting 730 Custody Evaluations. These are just the broad sweeps of what is at issue, there are many more details to these Rules of Court known as CRC 5.225 – 5.230 and how San Diego’s Custody Evaluators are conducting themselves.
It is very clear that the precedents that the Segaondollar case went ignored by San Diego County and it’s corrupt team of so-called court professionals. Why did San Diego ignore these Rules of Court when every other county in the State of CA complied with them??? If you really want to know, follow the money…and good luck!
Family Law Audit Finds Sloppy Record-Keeping
Family Law Audit Finds Sloppy Record-Keeping
SACRAMENTO — Family courts in Marin and Sacramento counties can't prove that many of the professionals they hire to sort out emotionally charged custody cases have the required training and experience to do their jobs, according to a state auditor's report released Thursday.
In Sacramento, seven of 20 court-employed mediators and evaluators couldn't show the auditor's staff that they had met qualification and training standards set by state law and the California Rules of Court, the report found. The same was true for seven mediators in Marin County Superior Court, according to the auditor.
That lack of documentation means court leaders can't evaluate whether family court professionals have the skills "to guide the parties through mediation effectively or to assess properly a family's condition and ensure that the outcome is in the best interests of the children," the auditor concluded.
The report also faulted the courts for poor tracking of complaints against evaluators and mediators and for weak policies regarding conflicts of interest among family court officials.
The 113-page report, commissioned by the Legislature in 2009, cites shoddy record-keeping and a failure by court officials to strictly adhere to policies of the state and sometimes their own courts. It does not, however, link any lack of training to a child being harmed. And it does not address the more hot-button allegations made by some court critics of chummy relationships between judges and family court staff.
"The scope of the audit was rather limited but what they did uncover was, I think, fairly scathing," said Kathleen Russell, executive director of the Center for Judicial Excellence, a Mill Valley-based parents group that has been critical of family court operations statewide.
"This document clearly delivers the proof that unqualified court employees are making these decisions that affect thousands of children," Russell said.
While leaders of both courts generally welcomed the auditor's recommendations for better documentation, they also challenged a number of the report's findings.
"All Family Court Services mediators and evaluators currently meet the minimum qualifications and training requirements under the law," Sacramento County Superior Court Presiding Judge Steve White wrote in response to the report. "The court will not assign any matter to a FCS mediator/evaluator who fails to meet the mandatory qualification or training requirements."
Marin Presiding Judge Terrence Boren questioned whether the auditor was nit-picking.
"While the court intends to implement the recommended changes … it is questionable as to whether some of the recommendations actually enhance internal controls and accountability. Frankly, some of them fail the test of materiality from the court's perspective," Boren wrote.
State law requires a family court mediator to have a master's degree and at least two years experience in counseling or psychotherapy when they are hired. They must also complete 40 hours of initial training in mediation plus at least 12 hours a year of ongoing education. Evaluators have to meet certain licensure or court-certification requirements as well as continuing training requirements.
For years, family court critics have lobbied lawmakers to overhaul what they say is an insular judicial system that favors wealthy parents and has little accountability. Court leaders counter that much of the criticism is brought by disgruntled parents angry with their experiences in the heated arena of child-custody battles.
State Sen. Mark Leno, D-San Francisco, led efforts to secure the state audit of the two family law courts. He called the auditor's findings "disturbing."
"In the private sector, if I hang a shingle on my door and declare myself a psychiatrist … and I can't [prove that] I am, I don't get to call it a book-keeping error. I get called a fraud and probably get taken to court," Leno said.
The family courts "are making immensely important decisions and these courts can't even prove that these employees should be in their jobs," he said.
Leno said state Auditor Elaine Howle told him Thursday that she would be reviewing the courts' progress on making the recommended changes over the next year.
"We will give them time to self-correct, but if there's need for legislative action, there will be," Leno said.
SACRAMENTO — Family courts in Marin and Sacramento counties can't prove that many of the professionals they hire to sort out emotionally charged custody cases have the required training and experience to do their jobs, according to a state auditor's report released Thursday.
In Sacramento, seven of 20 court-employed mediators and evaluators couldn't show the auditor's staff that they had met qualification and training standards set by state law and the California Rules of Court, the report found. The same was true for seven mediators in Marin County Superior Court, according to the auditor.
That lack of documentation means court leaders can't evaluate whether family court professionals have the skills "to guide the parties through mediation effectively or to assess properly a family's condition and ensure that the outcome is in the best interests of the children," the auditor concluded.
The report also faulted the courts for poor tracking of complaints against evaluators and mediators and for weak policies regarding conflicts of interest among family court officials.
The 113-page report, commissioned by the Legislature in 2009, cites shoddy record-keeping and a failure by court officials to strictly adhere to policies of the state and sometimes their own courts. It does not, however, link any lack of training to a child being harmed. And it does not address the more hot-button allegations made by some court critics of chummy relationships between judges and family court staff.
"The scope of the audit was rather limited but what they did uncover was, I think, fairly scathing," said Kathleen Russell, executive director of the Center for Judicial Excellence, a Mill Valley-based parents group that has been critical of family court operations statewide.
"This document clearly delivers the proof that unqualified court employees are making these decisions that affect thousands of children," Russell said.
While leaders of both courts generally welcomed the auditor's recommendations for better documentation, they also challenged a number of the report's findings.
"All Family Court Services mediators and evaluators currently meet the minimum qualifications and training requirements under the law," Sacramento County Superior Court Presiding Judge Steve White wrote in response to the report. "The court will not assign any matter to a FCS mediator/evaluator who fails to meet the mandatory qualification or training requirements."
Marin Presiding Judge Terrence Boren questioned whether the auditor was nit-picking.
"While the court intends to implement the recommended changes … it is questionable as to whether some of the recommendations actually enhance internal controls and accountability. Frankly, some of them fail the test of materiality from the court's perspective," Boren wrote.
State law requires a family court mediator to have a master's degree and at least two years experience in counseling or psychotherapy when they are hired. They must also complete 40 hours of initial training in mediation plus at least 12 hours a year of ongoing education. Evaluators have to meet certain licensure or court-certification requirements as well as continuing training requirements.
For years, family court critics have lobbied lawmakers to overhaul what they say is an insular judicial system that favors wealthy parents and has little accountability. Court leaders counter that much of the criticism is brought by disgruntled parents angry with their experiences in the heated arena of child-custody battles.
State Sen. Mark Leno, D-San Francisco, led efforts to secure the state audit of the two family law courts. He called the auditor's findings "disturbing."
"In the private sector, if I hang a shingle on my door and declare myself a psychiatrist … and I can't [prove that] I am, I don't get to call it a book-keeping error. I get called a fraud and probably get taken to court," Leno said.
The family courts "are making immensely important decisions and these courts can't even prove that these employees should be in their jobs," he said.
Leno said state Auditor Elaine Howle told him Thursday that she would be reviewing the courts' progress on making the recommended changes over the next year.
"We will give them time to self-correct, but if there's need for legislative action, there will be," Leno said.
Luke's Army Newsletter No 3 | lukesarmy.com
Luke's Army Newsletter No 3 | lukesarmy.com
Please say a prayer for Luke Borusiewicz on the second anniversary of his death at two years old in foster care.
Unfortunately there is still no word from the coroner regarding the circumstances surrounding the death of Luke Borusiewicz.
3 Angels. Welcome to the Luke's Army newsletter no. 3. It accompanies the 3 angels as they travel across the world to the people they are meant for.
3 angels, this means a lot to me. It is the most art pieces I have ever had at once, I think. I am hopeless with my art. I love the fact that people genuinely love what I have created. I can't wait to give it away. Sometimes giving the ones I have already promised to others, away. Out of the many I have done, never have I taken money in exchange for a drawing. I am thankful that I have survived while keeping this part of my life sacred, and not influenced by financial gain. Finally, I feel a bit proud, this is admittedly a commendable attribute of anyone's persona.
Please say a prayer for Luke Borusiewicz on the second anniversary of his death at two years old in foster care.
Unfortunately there is still no word from the coroner regarding the circumstances surrounding the death of Luke Borusiewicz.
3 Angels. Welcome to the Luke's Army newsletter no. 3. It accompanies the 3 angels as they travel across the world to the people they are meant for.
3 angels, this means a lot to me. It is the most art pieces I have ever had at once, I think. I am hopeless with my art. I love the fact that people genuinely love what I have created. I can't wait to give it away. Sometimes giving the ones I have already promised to others, away. Out of the many I have done, never have I taken money in exchange for a drawing. I am thankful that I have survived while keeping this part of my life sacred, and not influenced by financial gain. Finally, I feel a bit proud, this is admittedly a commendable attribute of anyone's persona.
Civil RICO: AManual for Federal Attorneys
Civil RICO:
A Manual for
Federal Attorneys
October 2007
RICO ManForFedAtt Cover 10/11/07 2:08 PM Page 1Civil RICO:
18 U.S.C. §§ 1961-1968
A Manual for
Federal Attorneys
October 2007
Prepared by the Staff of the Organized Crime and Racketeering Section
United States Department of Justice, Washington, DC 20005
Douglas E. Crow, Principal Deputy Chief
Amy Chang Lee, Assistant Chief
(202) 514-3594
Written By:
Frank J. Marine, Consultant
Patrice M. Mulkern
The assistance of the following is acknowledged and greatly appreciated:
David M. Brink
Gregory C.J. Lisa
James Francis McKenzie
Melissa Marquez-Oliver
Melvin Otey
Gerald Toner
Catherine M. Weinstock
Cover Design by Linda M. Baer
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/civrico.pdf
Read More:
A Manual for
Federal Attorneys
October 2007
RICO ManForFedAtt Cover 10/11/07 2:08 PM Page 1Civil RICO:
18 U.S.C. §§ 1961-1968
A Manual for
Federal Attorneys
October 2007
Prepared by the Staff of the Organized Crime and Racketeering Section
United States Department of Justice, Washington, DC 20005
Douglas E. Crow, Principal Deputy Chief
Amy Chang Lee, Assistant Chief
(202) 514-3594
Written By:
Frank J. Marine, Consultant
Patrice M. Mulkern
The assistance of the following is acknowledged and greatly appreciated:
David M. Brink
Gregory C.J. Lisa
James Francis McKenzie
Melissa Marquez-Oliver
Melvin Otey
Gerald Toner
Catherine M. Weinstock
Cover Design by Linda M. Baer
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/civrico.pdf
Read More:
PARENTING AS A PROTECTED CONSTITUTIONAL RIGHT
PARENTING AS A PROTECTED CONSTITUTIONAL RIGHT
Argument
Does "The Best Interest of the Child" standard exceed the limits of the Due Process and the
Equal Protection Clauses of the 14th Amendment?
This brief questions if the State has abrogated the U.S. Constitution in it's parens patriae
authority by applying the best interest of the child standard in child custody determinations.
Troubling , the "best interest of the child" gives no special weight to a parent's fundamental right
when the court is determining the best interest of the child. Instead the "best interest of the child"
lies within the discretion of the trial court, thus, the parents are at the tender mercy of the court.
This legal principal, without constitutional protection derived from the Bill of Rights, we believe
exceeds the bounds of the Due Process and the Equal Protection Clauses of the 14th
Amendment!
The United States Supreme Court in several context has consistently upheld the
importance of the parent child relationship: "A state needs at least clear and convincing evidence
in order to sever a parental relationship". (Santosky v. Kramer, 455 U.S. (1982). It is cardinal
with us that the custody, care and nurture of the child reside first in the parents, whose primary
function and freedom include preparation for obligations the state can neither supply nor hinder.
( Prince V. Massachusetts, 321 U.S. 158 (1944) And it is in recognition of this that [our]
decisions have respected the private realm of family life which the state cannot enter." ( Pierce v.
Society of Sisters, 268 US 510, 534-535 (1925) A parent's right to "the companionship, care,
custody, and management of his or her children" is an interest "far more precious" than any
property right. ( May v. Anderson, 345 U.S. 528 (1952). The parent-child relationship "is an
important interest that 'undeniably warrants deference and absent a powerful countervailing
interest, protection.'" Stanley v. Illinois, 405 U.S. 645 (1972)
In Troxel v. Granville, 530 U.S. 57 (2000) Justice O'Conner speaking for the Court
stated, "The Fourteenth Amendment provides that no State shall 'deprive any person of life,
liberty, or property, without due process of the law.' "We have long recognized that the
[Fourteenth] Amendment's Due Process Clause, like its Fifth Amendment counterpart,
'guarantees more than fair process.' . . . . "The Clause also includes a substantive component
that 'provides heightened protection against government interference with certain
fundamental rights and liberty interest.'" and "the liberty interest of parents in the care ,
custody, and control of their children-is perhaps the oldest of the fundamental liberty interest
recognized by this Court."
Justice Thomas in concurring in the judgment stated, " The opinion of the plurality,
Justice Kennedy, and Justice Souter recognize such a right, but curiously none of them
articulates the appropriate standard of review. I would apply strict scrutiny to infringements of
fundamental rights."
The Troxel Court had difficulty accepting the Washington State's broad application of the
child's best interest standard, "Once the visitation petition has been filed in court and the matter
is placed before a judge, a parent's decision that visitation would not be in the child's best interest
is accorded no deference" ..."Instead, ....places the best-interest determination solely in the hands
of the judge. Should the judge disagree with the parent's estimation of the child's best interest,
the judge's view necessarily prevails." Id. The Court stated this "exceeded the bounds of the Due
Process Clause." Not that the Court intervened, "but failed to accord the determination of Granville, a fit custodial parent, any material weight." Id. The Court further explained, "the Due
Process Clause does not permit a State to infringe on the fundamental right of parents to make
child rearing decisions simply because a state judge believes a 'better decision could be made"
The Court further stated, "In light of this extensive precedent, it cannot be doubted that the
Due Process Clause of the Fourteenth Amendment protects the fundamental right of
parents to make decisions concerning the care, custody, and control of their children". Id. And
that a fit parent is an "important" "aspect" of the case, "for there is a presumption that fit parents
act in the best interest of their children". Id.
Justice Stevens, in his dissent, raises a very important point cautioning that the best
interest of the child would have limits under the Federal Constitution:
The phrase 'best interest of the child' appears in no less than 10 current
Washington state statutory provisions governing determinations from
guardianship to termination to adoption. . . . More broadly, a search of current
state custody and visitation laws reveals fully 698 separate references to the 'best
interest of the child' standard, a number that, at minimum, should give the Court
some pause before it upholds a decision implying that those words, on their face,
may be too boundless to pass muster under the Federal Constitution. Id at footnote
#5
Similarly, in Ohio as in Washington State the child's best interest is applied in deciding
child custody disputes. The CRC believes the child's best interest standard as applied in Ohio and
in most states "sweeps too broadly" and exceeds the Due Process and Equal Protection Clause.
The best interest of the child is not a magic wand for the State to unnecessarily restrict the
parent-child relationship. As a matter of constitutional law the best interest of the child must be
balanced with the parents liberty interest. If the court is unable to find a Nexus of harm or
potential harm between the parent and the child than the court must place an order that
maximizes participation of both parents with their children.
The CRC is convinced how the child's best interest as applied does not comply with the
federal Constitution. The CRC does not reject that such a standard should be done away with, the
CRC believes that parents' fundamental rights in rearing their children is subsumed within the
child's best interest standard.
The other half of the equation is the state must show harm or potential harm to the child
before restricting a fit parent from the "care, custody, and management of his or her children".
When the parent-child relationship is restricted by a family Court Order such restrictions must be
done in the least restrictive means.
The above U.S. Supreme Court cases illustrate that the parent-child relationship is
protected by the equal protection and due process clauses of the Constitution and is now beyond
debate. However, divorced or separated parents currently do not enjoy this heightened
protection.
In 1978, the Supreme Court clearly indicated that only the relationships of those parents
who from the time of conception of the child, never establish custody and who fail to support or
visit their child(ren) are unprotected by the equal protection and due process clauses of the
Constitution. Quilloin v. Walcott, 434 U.S. 246, 255 (1978). Divorced parents must then enjoy
the same rights and obligations of their children as if still married. The state can impair a parentchild relationship through issuance of a limited visitation order, however, it must make a determination that it has a compelling interest in doing so. Trial courts must as a matter of
constitutional law, fashion orders which will maximize the time children spend with each parent.
Maximizing time with each parent is the only constitutional manner by which a parent is
able to maintain a meaningful parent-child relationship after divorce. While geographic distance,
school schedules and the like must be factored into the custody and visitation calculus, trial
courts faced with a custody and visitation decision must accord appropriate constitutional respect
to maintain a healthy parent child relationship by granting each parent as much responsibility and
time as possible with the child.
The federal Due Process and Equal Protection rights extend to both parents equally, for
example, in adoption proceedings. In Caban v. Mohammed, 441 U.S. 380, (1979) the Supreme
Court found that a biological father who had for two years, but no longer, lived with his children
and their mother was denied equal protection of the law under a New York statute which
permitted the mother, but not the father, to veto an adoption. In Lehr v. Robinson (1983) 463
U.S. 248, the Supreme Court held that:
When an unwed father demonstrates a full commitment to the responsibilities of
parenthood by 'com[ing] forward to participate in the rearing of his child,' Caban,
[citations omitted], his interest in personal contact with his child acquires
substantial protection under the Due Process Clause." (Id. at 261-262)
The key factor in the Due Process and Equal Protection analysis is the fitness of the
parents.
The natural father's federal constitutional rights do not depend on the identity of the
person attempting to infringe upon them. That is the threshold showing required to impinge upon
a parent's relationship with one's children should not be less when married than when unmarried.
One's rights should not be less when the biological mother seeks to attack the constitutionally
protected relationship than when a potential adopter/third party seeks to attack that relationship.
Simply stated, protected fundamental rights do not evaporate in a child custody/visitation
proceeding.
In every circumstance under which a parental right to physical custody may be
terminated in which the courts have spoken on the standard of proof to be applied, the holding
has been that the proof must be by "clear and convincing" evidence.
In cases where joint physical custody is not ordered in a divorce setting, the parent
without custody has been deprived of physical custody, just as in any other setting. The identity
of the person who has custody of the child is irrelevant to the requisite proof required to deprive
one parent of physical custody. Surely an action to determine whether a parental right should be
retained is as fundamental to the parent child relationship as an action to terminate that
relationship.
Holly Robinson has spelled out this argument in detail:
It is accepted constitutional doctrine that the due process clause of the fourteenth
amendment protects interests that are recognized as constituting "life" or
Property". In a number of decisions, the Supreme Court has recognized that
individuals possess a fundamental liberty interest -- entitled to constitutional
protection -- regarding such matters as the decisions whether to have children,
decisions concerning the upbringing of children, and the retention of theirchildren through exercise of custody. Read together, the cases clearly establish a
zone of privacy around the parent-child relationship, which only can be invaded
by the state when the state possesses a sufficiently compelling reason to do so. As
a result, when the marital breakdown occurs, both parents are entitled to
constitutional protection of their right to continue to direct the upbringing of their
children through the exercise of custody. Adequate protection of this parental
right requires that parents be awarded joint custody [or expansive
visitation]...unless a compelling state interest directs otherwise.
H.L. Robinson, "Joint Custody: Constitutional Imperatives", 54 Cinn. L. Rev. 27, 40-41 (1985)
See also, Ellen Cancakos: "Joint Custody as a Fundamental Right". Arizona Law Review, Vol.
23, No. 2 (Tucson, Az: University of Arizona Law College), Tuscon, 95721. Also, Cynthia A.
McNeely: "Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family
Court", 25 Fla. St. U.L. Rev. 335, 342+ (1998)
CONCLUSION
Custody orders must bear sufficient respect for the constitutional protections inherent in
the parent-child relationship regardless of whom is attacking the parent-child relationship. Given
the long history of cases by the Supreme Court it can no longer be doubted that the best interest
of the child must be coupled with harm to the child before restricting a parent's fundamental
liberty interest in parenting his or her child. Trial courts therefore must consider equal time with
both parents and deviate from that starting point as circumstances warrant.
__________________________________
David L. Levy, Esq.
President and CEO of the Children's Rights Council
Argument
Does "The Best Interest of the Child" standard exceed the limits of the Due Process and the
Equal Protection Clauses of the 14th Amendment?
This brief questions if the State has abrogated the U.S. Constitution in it's parens patriae
authority by applying the best interest of the child standard in child custody determinations.
Troubling , the "best interest of the child" gives no special weight to a parent's fundamental right
when the court is determining the best interest of the child. Instead the "best interest of the child"
lies within the discretion of the trial court, thus, the parents are at the tender mercy of the court.
This legal principal, without constitutional protection derived from the Bill of Rights, we believe
exceeds the bounds of the Due Process and the Equal Protection Clauses of the 14th
Amendment!
The United States Supreme Court in several context has consistently upheld the
importance of the parent child relationship: "A state needs at least clear and convincing evidence
in order to sever a parental relationship". (Santosky v. Kramer, 455 U.S. (1982). It is cardinal
with us that the custody, care and nurture of the child reside first in the parents, whose primary
function and freedom include preparation for obligations the state can neither supply nor hinder.
( Prince V. Massachusetts, 321 U.S. 158 (1944) And it is in recognition of this that [our]
decisions have respected the private realm of family life which the state cannot enter." ( Pierce v.
Society of Sisters, 268 US 510, 534-535 (1925) A parent's right to "the companionship, care,
custody, and management of his or her children" is an interest "far more precious" than any
property right. ( May v. Anderson, 345 U.S. 528 (1952). The parent-child relationship "is an
important interest that 'undeniably warrants deference and absent a powerful countervailing
interest, protection.'" Stanley v. Illinois, 405 U.S. 645 (1972)
In Troxel v. Granville, 530 U.S. 57 (2000) Justice O'Conner speaking for the Court
stated, "The Fourteenth Amendment provides that no State shall 'deprive any person of life,
liberty, or property, without due process of the law.' "We have long recognized that the
[Fourteenth] Amendment's Due Process Clause, like its Fifth Amendment counterpart,
'guarantees more than fair process.' . . . . "The Clause also includes a substantive component
that 'provides heightened protection against government interference with certain
fundamental rights and liberty interest.'" and "the liberty interest of parents in the care ,
custody, and control of their children-is perhaps the oldest of the fundamental liberty interest
recognized by this Court."
Justice Thomas in concurring in the judgment stated, " The opinion of the plurality,
Justice Kennedy, and Justice Souter recognize such a right, but curiously none of them
articulates the appropriate standard of review. I would apply strict scrutiny to infringements of
fundamental rights."
The Troxel Court had difficulty accepting the Washington State's broad application of the
child's best interest standard, "Once the visitation petition has been filed in court and the matter
is placed before a judge, a parent's decision that visitation would not be in the child's best interest
is accorded no deference" ..."Instead, ....places the best-interest determination solely in the hands
of the judge. Should the judge disagree with the parent's estimation of the child's best interest,
the judge's view necessarily prevails." Id. The Court stated this "exceeded the bounds of the Due
Process Clause." Not that the Court intervened, "but failed to accord the determination of Granville, a fit custodial parent, any material weight." Id. The Court further explained, "the Due
Process Clause does not permit a State to infringe on the fundamental right of parents to make
child rearing decisions simply because a state judge believes a 'better decision could be made"
The Court further stated, "In light of this extensive precedent, it cannot be doubted that the
Due Process Clause of the Fourteenth Amendment protects the fundamental right of
parents to make decisions concerning the care, custody, and control of their children". Id. And
that a fit parent is an "important" "aspect" of the case, "for there is a presumption that fit parents
act in the best interest of their children". Id.
Justice Stevens, in his dissent, raises a very important point cautioning that the best
interest of the child would have limits under the Federal Constitution:
The phrase 'best interest of the child' appears in no less than 10 current
Washington state statutory provisions governing determinations from
guardianship to termination to adoption. . . . More broadly, a search of current
state custody and visitation laws reveals fully 698 separate references to the 'best
interest of the child' standard, a number that, at minimum, should give the Court
some pause before it upholds a decision implying that those words, on their face,
may be too boundless to pass muster under the Federal Constitution. Id at footnote
#5
Similarly, in Ohio as in Washington State the child's best interest is applied in deciding
child custody disputes. The CRC believes the child's best interest standard as applied in Ohio and
in most states "sweeps too broadly" and exceeds the Due Process and Equal Protection Clause.
The best interest of the child is not a magic wand for the State to unnecessarily restrict the
parent-child relationship. As a matter of constitutional law the best interest of the child must be
balanced with the parents liberty interest. If the court is unable to find a Nexus of harm or
potential harm between the parent and the child than the court must place an order that
maximizes participation of both parents with their children.
The CRC is convinced how the child's best interest as applied does not comply with the
federal Constitution. The CRC does not reject that such a standard should be done away with, the
CRC believes that parents' fundamental rights in rearing their children is subsumed within the
child's best interest standard.
The other half of the equation is the state must show harm or potential harm to the child
before restricting a fit parent from the "care, custody, and management of his or her children".
When the parent-child relationship is restricted by a family Court Order such restrictions must be
done in the least restrictive means.
The above U.S. Supreme Court cases illustrate that the parent-child relationship is
protected by the equal protection and due process clauses of the Constitution and is now beyond
debate. However, divorced or separated parents currently do not enjoy this heightened
protection.
In 1978, the Supreme Court clearly indicated that only the relationships of those parents
who from the time of conception of the child, never establish custody and who fail to support or
visit their child(ren) are unprotected by the equal protection and due process clauses of the
Constitution. Quilloin v. Walcott, 434 U.S. 246, 255 (1978). Divorced parents must then enjoy
the same rights and obligations of their children as if still married. The state can impair a parentchild relationship through issuance of a limited visitation order, however, it must make a determination that it has a compelling interest in doing so. Trial courts must as a matter of
constitutional law, fashion orders which will maximize the time children spend with each parent.
Maximizing time with each parent is the only constitutional manner by which a parent is
able to maintain a meaningful parent-child relationship after divorce. While geographic distance,
school schedules and the like must be factored into the custody and visitation calculus, trial
courts faced with a custody and visitation decision must accord appropriate constitutional respect
to maintain a healthy parent child relationship by granting each parent as much responsibility and
time as possible with the child.
The federal Due Process and Equal Protection rights extend to both parents equally, for
example, in adoption proceedings. In Caban v. Mohammed, 441 U.S. 380, (1979) the Supreme
Court found that a biological father who had for two years, but no longer, lived with his children
and their mother was denied equal protection of the law under a New York statute which
permitted the mother, but not the father, to veto an adoption. In Lehr v. Robinson (1983) 463
U.S. 248, the Supreme Court held that:
When an unwed father demonstrates a full commitment to the responsibilities of
parenthood by 'com[ing] forward to participate in the rearing of his child,' Caban,
[citations omitted], his interest in personal contact with his child acquires
substantial protection under the Due Process Clause." (Id. at 261-262)
The key factor in the Due Process and Equal Protection analysis is the fitness of the
parents.
The natural father's federal constitutional rights do not depend on the identity of the
person attempting to infringe upon them. That is the threshold showing required to impinge upon
a parent's relationship with one's children should not be less when married than when unmarried.
One's rights should not be less when the biological mother seeks to attack the constitutionally
protected relationship than when a potential adopter/third party seeks to attack that relationship.
Simply stated, protected fundamental rights do not evaporate in a child custody/visitation
proceeding.
In every circumstance under which a parental right to physical custody may be
terminated in which the courts have spoken on the standard of proof to be applied, the holding
has been that the proof must be by "clear and convincing" evidence.
In cases where joint physical custody is not ordered in a divorce setting, the parent
without custody has been deprived of physical custody, just as in any other setting. The identity
of the person who has custody of the child is irrelevant to the requisite proof required to deprive
one parent of physical custody. Surely an action to determine whether a parental right should be
retained is as fundamental to the parent child relationship as an action to terminate that
relationship.
Holly Robinson has spelled out this argument in detail:
It is accepted constitutional doctrine that the due process clause of the fourteenth
amendment protects interests that are recognized as constituting "life" or
Property". In a number of decisions, the Supreme Court has recognized that
individuals possess a fundamental liberty interest -- entitled to constitutional
protection -- regarding such matters as the decisions whether to have children,
decisions concerning the upbringing of children, and the retention of theirchildren through exercise of custody. Read together, the cases clearly establish a
zone of privacy around the parent-child relationship, which only can be invaded
by the state when the state possesses a sufficiently compelling reason to do so. As
a result, when the marital breakdown occurs, both parents are entitled to
constitutional protection of their right to continue to direct the upbringing of their
children through the exercise of custody. Adequate protection of this parental
right requires that parents be awarded joint custody [or expansive
visitation]...unless a compelling state interest directs otherwise.
H.L. Robinson, "Joint Custody: Constitutional Imperatives", 54 Cinn. L. Rev. 27, 40-41 (1985)
See also, Ellen Cancakos: "Joint Custody as a Fundamental Right". Arizona Law Review, Vol.
23, No. 2 (Tucson, Az: University of Arizona Law College), Tuscon, 95721. Also, Cynthia A.
McNeely: "Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family
Court", 25 Fla. St. U.L. Rev. 335, 342+ (1998)
CONCLUSION
Custody orders must bear sufficient respect for the constitutional protections inherent in
the parent-child relationship regardless of whom is attacking the parent-child relationship. Given
the long history of cases by the Supreme Court it can no longer be doubted that the best interest
of the child must be coupled with harm to the child before restricting a parent's fundamental
liberty interest in parenting his or her child. Trial courts therefore must consider equal time with
both parents and deviate from that starting point as circumstances warrant.
__________________________________
David L. Levy, Esq.
President and CEO of the Children's Rights Council
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