Child Abuse

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While Alex Jones was the most recent high-profile example of a controversial public persona creating very personal and private problems, he is certainly not alone. Similar in theme, but not in execution is the case of the Michael and Heather Martin who are described as “YouTube stars” and post to a channel with over 760,000 subscribers.

Their shtick is to torment their five children (three together; two are Michael’s kids from another relationship) by, “verbally [berating them], frequently to the point of tears, while performing stunts like appearing to destroy an Xbox video game system and accusing the children of making messes they had not made.” However, one of the aspects of fame is that when the number of people watching you increases, so to does the likelihood that someone may not share your idea of “fun” and, instead, question whether you are actually physically and emotionally abusing your children.  Such is the situation the Martins find themselves.

Recently, the Martins lost custody of Michael’s oldest two children after their biological mother petitioned in Fredrick County, Maryland for an emergency order for custody. Undoubtedly, the apparently 300 plus videos (since removed) they posted to their channel will be used in some form or fashion in a future custody case(s).

Not unlike the Alex Jones situation, the Martins refer to themselves as being “characters,” the videos are entertainment and scripted, and that the children were often in on the pranks and interested in how many hits the videos receive. Maybe the entire family fell into the wormhole of internet fame and the kids equated the validation of a popular video as the quid pro quo for being emotionally manipulated, screamed at, and exposed to violent situations.

Regardless of the motivations, it is indisputable that the videos are valuable evidence. They either depict physical and emotionally abuse by the parents, or they record a pair of amateur entertainers whose actors (their children) perform under unsafe working conditions and seemingly without the benefit of knowing what is real and what is “part of the show.”

The parents admit in their apology video to being seduced by the fame and upping the shock value for the sake of more attention and, presumably, financial benefit. They certainly imply that the success of the stunts lead to significant financial gain and their hiring of a reputable family law attorney and crisis management public relations firm certainly seems to corroborate that.

The Martins said that having “stepped away” from their “characters,” they now understand the criticism directed at them and that they made some bad decisions and let things get out of control. People lose their kids over one or two bad decisions. Imagine if someone publicly displayed hundreds of such examples.

This is the reality of today’s social media and non-traditional entertainment platforms. Essentially, anyone can produce and disseminate media on multiple platforms instead of the old system of television, radio, and movies. The line between actor or character and who you are in “real life” gets blurred. And as the Martin and Jones cases demonstrate, the more “authentic” you try to be for entertainment purposes, the more difficult it can be to separate yourself from the actions of your “character.”

Leslie Spoltore in our Wilmington office recently wrote about Delaware’s passing a children’s “Bill of Rights” into law.  This law specifically addressed what children are to receive while under the care of the Department of Services for Children, Youth, and Their Families.  I suspect that many of these rights already exist in whole or part in other sections of Delaware Code, but by condensing them down to a single law and, perhaps more importantly, allow the child the right to address any violation of these rights through equitable relief with the court.

Pennsylvania revamped its Child Protective Services Law effective January 1 of this year in a reaction to the administrative and functional vulnerabilities and ambiguities cases like that of convicted abuser Jerry Sandusky exposed in the existing code.

There cannot be too many checks and balances in place when it comes to the care of children.  I think Delaware’s Bill of Rights for children is good law combining the symbolic act of distilling protective service concepts into a “bill of rights” along with some functional, helpful methods for a child to obtain relief when those rights are violated.

In February we mentioned the introduction of a bill in the Pennsylvania state Senate which would allow the termination of a rapist’s parental rights, but preserve the victim’s (and state’s) ability to seek child support. The bill progressed through the Senate by unanimous vote recently and is now headed to the state House of Representatives for consideration. This was introduced by Republican Senator Randy Vulakovich of the 38th District (Allegheny Co.; Pittsburgh area) and is an important bill to protect the rights and dignity of rape survivors and their children. Though the number of cases this law impacts may be few in number, it should never be a possibility for even a single case. I expect this bill will be passed by the House and signed into law by Governor Wolf later this year.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

Pennsylvania’s child custody code requires the submission of a criminal record and abuse history affidavit which is designed to identify whether a party to a custody action or a member of their household has been accused or convicted of a criminal offense. The crimes are almost all violent crimes or crimes of a sexual nature such as rape, luring, exploitation and other offenses. Obviously, the existence of these crimes in a parent’s background can have a significant effect on their custodial situation.

A loophole, however, existed which will hopefully be put to an end by a bill introduced in the Pennsylvania state house and senate designed to prevent a rapist from ever seeking custody of the child conceived from a rape. While it may seem inconceivable that a rapist could ever obtain custody of a child, the fact remains that under the black letter of the law, the rapist would have both a support obligation and standing to seek custody of the child they fathered.

The affect such litigation would have on the victim must be devastating and no woman should have to endure confronting their rapists in family court, let alone work out custodial exchange times. So while the child custody code may be able to use the criminal record affidavit to help justify precluding the rapist from having custody, nothing presently exists which precludes him from bringing the action and dragging his victim to court.

The Rape Survivor Child Custody and Support Act is being introduced by State Senator Randy Vulakovich (R-Allegheny) and Representative Joe Hackett (R-Delaware).  The new law would allow for the termination of the rapists parental rights, but preserve the obligation to pay support. Under the current law, the only way to sever a rapist’s parental rights would be through the adoption of the child. Doing so, however, would also alleviate any support obligation by the rapist.

As quoted by Kaye Burnet of Pittsburgh’s National Public Radio, Kristin Houser of Pennsylvania Coalition Against Rape admits that the number of women effected by this law may be small, but it is nevertheless a worthwhile and necessary piece of legislation: “[this] isn’t necessarily the result of egregious things happening on a regular basis here in Pennsylvania, but it doesn’t matter if it’s happening to a lot of people or just a few. It shouldn’t be happening at all.”

Copyright: 123RF Stock Photo
Copyright: 123RF Stock Photo

We’ve written about the process of terminating a parent’s custodial rights to their child an different cases presenting unique and unusual circumstances. In some instances, the process is almost rote due to parental ambivalence to the situation; the parent has made no real effort to be a parent to the child and allows the process of termination and adoption by a step-parent or third party to move forward unimpeded.

There are other times when a parent fights the termination and desperately tries to retain their custodial rights under any number of challenging and difficult circumstances. There may be legitimate justifications for the termination, or there may be zealous advocates unwilling to give a parent a chance to reassert themselves in the parental role. The decision is made based on the child’s best interests and appealing the trial court’s decision to terminate parental rights is difficult due to the deference to the trial court’s discretion and determinations of credibility.

A recent Pennsylvania case, however, highlights that despite the best efforts of the parents, the Court, Children and Youth Services, and other members of the support system, it is still in the best interests of a child to terminate the parents’ rights. Such is the case of In the interest of: M.T. et. al., 2014 Pa.Super. 223.

This case involves parents who consented to the removal of their two young children. Abuse and neglect had occurred resulting in significant injuries the kids. The parents acquiesced to the removal of the children and to undertake a structured reunification plan. Unfortunately, this couple simply could not get themselves sufficiently together – even allowing for being intellectually deficient – despite what appears to be an understanding by those agencies and third parties involved that they were making efforts to follow the plan.

The appeal is derived from the trial court’s decision to change the case goal for the children from reunification with their biological parents to placement and adoption by third parties. The parents appealed the decision to change the goal on the basis that it was improperly modified and that they had met all the requirements of the unification. They argued that there was insufficient evidence to show the children’s best interests were met by terminating their parental rights.

The Superior Court was unable to re-weigh the evidence and had to accept the trial court’s decision as to the credibility of witnesses. The trial court offered a well-reasoned and well-support justification for the goal change, including, the county agency’s demonstration that the conditions requiring the children’s placement persisted in the household, as well as a lack of acknowledgment that abuse occurred, and reliance on the grandparents (who perpetrated some of the abuse) for support.

In short, despite the combined efforts of the service providers, seventeen months had passed and the parents were unable to complete their reunification plan. At that point, it was in the children’s best interests to change the goal from reunification to adoption.

Unlike other situations, the biological parents had contact with the children – they would not have their rights terminated using the six month threshold for contact with the children. Instead, the trial court relied upon the testimony and evidence from the county agency and others to determine that despite being actively in a reunification plan that the children’s interests were best served by terminating that plan and moving the children toward adoption. Though they were bonded with their parents, the termination and adoption of the children by others served their interests more than to continue to hope that the parents would break through and fulfill the reunification requirements.

This is not to say the parents are sympathetic figures – the physical abuse the children experienced is horrible and included broken bones and burns. What this case highlights is that even those people working within the process of reunification will continue to be viewed against the standard of the children’s best interests and that those interests can run contrary to the desires, efforts, and wishes of the parents. Revising the plan goals and pursuing termination was firmly rooted in examining the efforts and progress of the parents over seventeen months and determining that the children’s best interests were served by ending the reunification process and allowing the children to move forward with adopted parents who offered the safety and stability they need to thrive.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.

Though I could count the instances on one hand, I have had a few cases in my career where a client had a legitimate concern about their former spouse or their child’s parent attempting to abduct the child. Usually this fear stems from long-standing threats designed to leverage access to the child against some financial demand. In those instances, the demand related to issues surrounding child support: either the filing for it or expenses related to the child. Fortunately, nothing ever happened and the fear subsided.

Based on data from the FBI, 76% of kidnappings are perpetrated by a family member or acquaintance. When you consider that the majority of kidnappings are by someone known to the child, however, it is not an unreasonable fear and one justifiably addressed by the state through specific laws to deal with the person the child knows best: their parent.

In 2010 (and updated and expanded in 2014), Pennsylvania enacted the Uniform Child Abduction Prevention Act to codify measures to identify and address parent abductions. This act is found within larger Domestic Relations Code and is part of the custody statutes (23 Pa.C.S.A. 5201 et al.). The act provides emergency, ex parte relief to a party whose child has been abducted and helps identify at risk cases.

It also offers specific factors which support the risk of abduction. Previous attempts are obviously a good indicator of the likelihood of a future attempt, but the statute also identifies behavior such as abandoning employment, selling a residence or terminating a lease, closing bank accounts or otherwise behaving like someone about to leave the area. It also cites the risk posed by a parent who has few ties to Pennsylvania or the United States. The latter being particularly important because a citizen of a country which is not a signatory state to the Hague Convention on the Civil Aspects of International Child Abduction or the other Hague Conventions addressing international child custody can be shielded from U.S. court orders or attempts to seek recognition of the U.S. custody order in that country. Consequently, the local judiciary, laws, and customs can make retrieving a child extremely difficult, if not nearly impossible.

Utilizing this statute will allow a party to obtain very specific abduction prevention conditions, restrictions on the other party, and limitations on custody and visitation. It is a powerful piece of legislation, and one not lightly entered into. In short, a parent has a tough burden to have this statute applied to their case, but if the facts justify it, they will have strong safeguards against abduction.

There are some other, non-Act measures that parents can use to limit the risk of parental abduction, particularly where the other parent is a citizen of another country or holds a foreign passport:

1.         The State Department’s Children’s Passport Issuance Alert Program. If a parent tries to obtain a passport for their child, the program will notify the other parent and they have the opportunity of preventing the international travel.

2.         Bonds. Requiring that the other parent post a bond prior to their custodial time with the children will serve as a preventative measure, financial leverage against withholding the child, and, if the parent does not return the child, financial resources to pursue litigation in the foreign country. Again, this measure contemplates international travel, but it could be applied for domestic travel, too, if the geographic difference is great enough or the facts justify it. I have had it successfully applied to international cases, particularly a case involving a Russian national. Russia was not a signatory to the child custody Hague Conventions for a long time, thus making a bond a valuable deterrent and possible source of funds for my client if the children’s father did not return the children after his custodial time in Russia. Considering the international state of affairs between the U.S. and Russia, Russia’s subsequent adoption of the Hague Conventions does not alleviate the need for this bond for the foreseeable future. The source of the bond needs to be readily accessible and releasable to the parent.

3.         Local Police Department. Custody orders are Court Orders, but do not expect a local police force to enforce your custody schedule. There is a huge difference between contempt of a Custody Order and parent abduction and the police will expect you to use the judicial system to deal with contempt. That said, IF there is a legitimate concern about the health and well-being of the child or the location of the child, the local police can be a resource to do a spot check to ensure the other parent is residing where she claims to reside and the child with is with her. I cannot stress enough how the police should be judiciously and cautiously used; if you are ready to use the police, you should have already talked to an attorney and in the process of pursuing a court action based on the facts of situation.

Parent abductions are a scary thought, but despite how remote they may seem, a reality. The Uniform Child Abduction Prevention Act provides the mechanism for minimizing that risk for those most extreme of cases.

(Photo Credit: www.yoursdp.org)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

 

 

Welcome Gift for Coming to PA and Violating a Restraining Order
Welcome Gift for Coming to PA and Violating a Restraining Order

Like many border areas of states, living in eastern Pennsylvania commonly results in legal issues which “span the river” into New Jersey, New York, Maryland, or Delaware (for our colleagues in the central and western part of the state, you can add West Virginia and Ohio); states with distinct laws and procedures from each other. Jurisdictional issues, choice of law issues, and standing can become important considerations for cases. For an action like a Protection from Abuse (“PFA”) or, in New Jersey, a Final Restraining Order (“FRO”), it is not uncommon for parties to live in each state and for incidents to occur in each jurisdiction.

Such is the recent Bucks County case on appeal to the Pennsylvania Superior Court. In this case, the issue arose as to whether Pennsylvania Courts had jurisdiction to enforce a New Jersey FRO. The FRO was entered against two individuals in New Jersey in 2009. Later, in 2012 and 2013, the protected party had interactions with the defendants which rose to violations of the FRO. He brought contempt actions in Bucks County after a series of incidents with the defendants in Pennsylvania.

The Bucks County wrote this opinion after the defendants sought appeal on three different grounds based on a due process claim, insufficiency of evidence, and, the one relevant for this discussion, that Bucks County did not have jurisdiction to adjudicate the contempt action against the defendants.

The Bucks County court relies on 23 Pa.C.S. § 6114.1 of the PFA Act which allows a plaintiff to file a petition for civil contempt with the issuing court or on a foreign protection order. As defined by 18 U.S.C. § 2266, a foreign protection order covers any order or injunction in civil or criminal court which prevents violent or threatening acts or harassment against sexual violence, contact or communication with or physical proximity to the protected person. In other words, if any jurisdiction issues a restraining order or something comparable, Pennsylvania will enforce it provided the violating act occurred in Pennsylvania.

The logic behind this section of the PFA code is obvious: what good does a restraining order do if its effectiveness stops at the state line? By allowing for the enforcement of the order in Pennsylvania’s courts, the goal – the protection of an individual from harm by others – is accomplished. Furthermore, by limiting the enforcement to incidents happening in Pennsylvania, there is no opportunity for forum shopping or abuse of the system by plaintiffs looking for a favorable jurisdiction.

The Bucks County opinion strongly argues that jurisdiction exists to consider the Pennsylvania incidents for contempt of the New Jersey FRO. What this cases serves to demonstrate, however, is that restraining orders travel in Pennsylvania; the Courts will not deny someone an opportunity to enforce that protection simply because the restraining order was issued by a court in another state. The emphasis should be on the protection of the individual.

Smithers v. Stanton, C.P. Bucks County, Family Division, No. A06-09-61861-A-36; 2014 BCBA, 87 Bucks Co. L. Rep. 286 (2013).

(Image: www.wisegeek.com)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

A recent New Hampshire criminal case is extremely sad: a mother left her child in a bathtub unsupervised and the child drowned. She was convicted of manslaughter, in part, due to electronic evidence in the form of her web history. The prosecution used a forensic computer analysis to determine that after running the bath and leaving her 1 year old and another child she spent FORTY-TWO minutes on the internet, reading and writing blog posts on a website devoted to women trying to raise money to have breast implants.

She appealed her conviction on basis that the information – specifically the content she was viewing – was not relevant. The disclosure, she argued to New Hampshire’s Supreme Court, of the information that she trying to raise money for breast augmentation instead of supervising her children in a bathtub might lead the jurors to form “negative ‘moral conclusions’” about her. The Court, seeing right through this argument, identified that it was the duration not the content that was an indication of guilt.  Moreover, the Court found the impact of the content of the website, compared to the rest of the state’s evidence, was relatively inconsequential.

The relevance of this case to family law is that the criminal courts continue to be the vanguard for the use of electronic and computer evidence as evidence at trial. Despite the pervasive nature of computers, smartphones, and mobile devices, some courts still tread lightly on allowing for the discovery of social media accounts in family law cases; there seems to be a greater threshold to demonstrate it is relevant than for more traditional discovery. It runs somewhat counter-intuitive that family law cases are not more prevalent in creating the law on social and electronic media evidence, but the “discovery labs” of the criminal dockets and personal injury litigation (i.e. the “injured back” litigant who posts a Facebook video of himself bungee jumping) are making the template for custody, support, and equitable distribution cases.

The New Hampshire case is another example of how our time is now tracked and measured by our online lives without our even being aware of it happening. We are more “trackable” now through EZ-Pass, twitter feeds, and Facebook “check-ins,” all of which can all show were we were and when. This information can be invaluable to a case and serve as fodder on cross-examination or to corroborate a fact. The use of this information at trial will only increase, as will the requests for discovery from become more standardized, tailored for specific purposes, and less prone to objection.

Consider this as you prepare for New Year’s: you may not remember a year from now “checking-in” at your favorite bar at 1 a.m. on your custodial, holiday night with your kids, but your Twitter account will.

On December 18th, Governor Corbett signed into law a bill updating Pennsylvania’s child abuse laws. When the abuses perpetrated by Jerry Sandusky were exposed, Pennsylvania’s child abuse statutes were scrutinized and found lacking in many respects. Sara Ganim of the Harriburg area Patriot-News wrote an excellent summary of these criticisms in November 2012. The investigation and arrest of Jerry Sandusky led to the creation in December 2011 by Pennsylvania’s General Assembly of the bi-partisan Taskforce on Child Protection.  This taskforce was asked to study child abuse protection and develop some meaningful reforms. It issued its final report and recommendations in November 2012.

The updated law is a considerable improvement from the previous law, noteably, expanding the definition of child abuse to include, simply, “bodily injury” (a lower standard than the previous “serious bodily injury”) and knowingly, recklessly, or intentionally committing acts of child abuse or failing to act when child abuse is being committed (emphasis added). It also proviodes immunity from liability for reporters, as well as an improved appeals process. Believe it or not, trying to lure a child into a vehicle or structure was not a specific offense, but that major oversight has finally been rectifified, as well, with the new law.

The definition of “perpetrator” has also been expanded to include family members of the child, as well as employees, volunteers, school teachers, and employees that have regular contact with the child. Previously, it was essentially limited to a parent, parent’s boyfriend/girlfriend, an individual over 14 living in the same house, or a person “responsible for the welfare of the welfare of the child.” Based on the Sandusky case, the latter part of the definition caused more questions and inaction than serving as what I interpret to be the intended “catch-all” language to cover anyone who was involved in the care of children. The Sandusky case started the discussion as to who exactly fell under the definition of being “responsible for the welfare” of a child? It was simply too broad and, as we saw in that case, too easy to justify inaction on the basis that a potential reporter had insufficient contact with the child.

As of 2010, Pennsylvania reported the lowest substantiated abuse rate in the country: 1.3 per 1,000 children (compared to the national average of 9.2 per 1,000 children). These updates, however, demonstrate how the old law hamstrung Pennsylvania’s child abuse investigative units by narrowing the definitions of abuse and perpetrator, and forcing them to reach the higher threshold of proving “serious bodily injury” to constitute abuse. Consequently, if an allegation of abuse was “unfounded” simply because the police or Children and Youth Services could not reach their evidentiary thresholds under the old law compared to the new law, then that statistic is illegitimate.

The influence of the Sandusky crimes on this law are apparent; the impact of the grand jury investigation and alleged cover-up by Penn State employees and administrators is clear. It may have taken three years since the creation of the Taskforce on Child Protection to bring about some reform, but they necessary improvements.  For a more complete summary of the changes to the law, read James Boyles’ article in the Newtown (PA) Patch.