6.27.2016

Women Left Unprotected by SCOTUS Decision

The U.S. Supreme Court today ruled 5-3 against the protection of women undergoing abortions, striking down health and safety protections put in place on Texas clinics for women undergoing abortion, stating those protections were an “undue burden” on a woman’s access to abortion as set forth in Planned Parenthood v. Casey which imposed the undue burden standard which was a pinnacle for abortion rights as well as abortion restrictions.  Learn more at The Rise and Fall of Women's Rights). 

While Casey, and not Roe v. Wade, is the current law on abortion, Roe's Effects on Family Law have nonetheless worked destruction on the American family.  The Texas case—Whole Woman’s Health v. Hellerstedt—was particularly important in that it was an opportunity for the Court to protect women from harm in surgical malpractice and Gosnell-like brutality in abortion clinics where women were not adequately cared for in abortion after-care, causing the death of some women undergoing abortions. 

Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the Justice Stephen Breyer majority opinion. Dissenting were Chief Justice John Roberts, Justices Samuel Alito and Clarence Thomas.  In dissent, Justice Thomas wrote, “Today the Court strikes down two state statutory provisions in all of their applications, at the behest of abortion clinics and doctors. That decision exemplifies the Court’s troubling tendency ‘to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.’” 

It is indeed a “troubling tendency” when the High Court does not see the protection of women as paramount in any abortion procedure, and does not see the pro-life position of young women who demand that protection as important to the debate.  Today the High Court has left women unprotected in the abortion procedure.

6.24.2016

EU Brexit & Families

After an all-nighter watching the EU referendum result, the UK headed for Brexit.  Many voters cited the economy, security, sovereignty, and even immigration failures as reasons for their decisions.  
 

 
Migration and assimilation or the lack thereof in English immigration may have come to a head with Brexit.  When nations struggle, families also struggle, and last night’s vote is evidence of that struggle in Great Britain.  Some UK families are finding themselves at odds with each other, according to  the UK Guardian
Indeed, The Challenges of Family Law and Policy in Immigration Regulation may account for some of the outcome.  Family restoration should somehow be a part of the Brexit result.  

6.07.2016

One Child Searching for Her Mother Touches an Entire City

One child can make all the difference.  This recent story from NPR tells the story of how one Chinese baby girl searched for her birth mother and brought love and healing to an entire city….. 
 
Her Search For Her Mother Touches An Entire Chinese City
April 12, 20164:51 AM ET
Heard on Morning Edition NPR Staff
i
Jenna Cook created this poster when she left her home in Massachusetts in 2012 to return to Wuhan, China, where she had been abandoned as a baby. She hoped a relative might see the poster. She ended up meeting with 50 families who thought she might be their daughter. Jenna Cook created this poster when she left her home in Massachusetts in 2012 to return to Wuhan, China, where she had been abandoned as a baby. She hoped a relative might see the poster. She ended up meeting with 50 families who thought she might be their daughter.
Jenna Cook was born in China and abandoned on a street in the huge city of Wuhan in 1992 when she was just a baby. Cook was adopted by a single American woman, a schoolteacher in Massachusetts, and later co-adopted by her godmother, who is her mother's partner. Cook was accepted at Yale University, and at 20, she decided to go back to Wuhan in search of her birth mother. A local newspaper in Wuhan wrote an article about her, touching off a strong response in the city and far beyond. Cook says she was contacted by people in every province in China. Some said they had given up children and others said they were simply taken by her quest.
Cook ultimately met with 50 families to see if she was their daughter. In those talks, she discovered many things, including the collective pain of Chinese families who had given up children. In most cases, the families had wanted a boy and decided to give up the child when it turned out to be a girl. Her efforts in China became her college thesis at Yale and an article in Foreign Policy. She spoke about her experience with Morning Edition host Steve Inskeep. To read that interview go here.
                                                                                  

One child searching for her mother indeed touched an entire city with hope for family restoration from the daughters they lost to national public policy limiting families.

6.02.2016

Can Fraud Bring Family Restoration?

When one parent defrauds the other by hiding the truth about their child, can that ever be good for a family? Even an adoptive family? An important family law case was decided by CO's Supreme Court earlier this year. Now on cert to the Supreme Court of the United States, the case In interest of Baby A, 363 P.3d 193 (2016) will have important implications for parental rights.
In Baby A mother lied to the father of her children when she told him she had a miscarriage, when instead she placed the children for adoption. The US Constitution protects the fundamental rights of parents to direct the upbringing of their children (Meyer, Pierce, Troxel, but see also the ICWA case of Adoption of Baby Girl, where SCOTUS did a similar bit of rule bending when a dad was not involved enough, according to the Court’s view, in the child’s life during gestation).  While the court in Baby A relied on a “presumption that biological parents have a first and prior right to custody of their children, but that presumption may be rebutted by clear and convincing evidence of certain statutory factors” (para 10) the court did not completely deal with the fundamental parental rights before it moved on to the statutory factors in determining custody.  This, however, has generally been the trend in how states have worked to expand parental rights to non-parents, or quasi parents. Rather than analyzing that fundamental parental right completely, the court moved on to the best interests of the child, and made a custody ruling. 
 
Tracing the Foundations of the Best Interest of the Child Standard in American Jurisprudence is very important, but parental rights prevail over any custody decision.  I’ve also written about that in an immigration context here The law presumes that a fit natural parent will act in the best interests of his or her child; that presumption can only be overcome by a showing of clear and convincing evidence of parental unfitness. (Also see the article on that concern here
 
A father who has no knowledge of his child’s existence can’t very well be involved in their lives, as custody standards require.  Here, a father was constricted by the mother’s fraudulent actions.  When a state court has muddled the two separate issues of parentage and custody, constitutional protections a washed away.  Parentage must be determined before custody rules can be applied.  And in every state an adoption cannot happen without a termination of the rights of the natural parents.  That never happened in Baby A, and without that, adoptive parents’ rights never vest.  The father lost opportunity for custody by fraud alone, and his parentage was never analyzed or terminated.
 
Finally, concerns here surround what a court might view as “bad parents.” The court in Baby A said that “none of them were bad parents,” which made the case so difficult in their view.  Anytime a court or a hearing officer or a CPS worker has discretion to determine who is the “bad parent” without any guidelines for that judgment (i.e. neglect, abandonment, abuse, which all traditionally equal unfitness, resulting in termination of parent rights) anything goes down that slippery slope.  Here, it seems the court applied the statutory factors without fully analyzing that a constitutionally protected fundamental right has been passed over in favor of state statutory factors in determining custody. 
 
Clear and convincing evidence must be required to limit parental rights.  Family restoration is strengthened when constitutional protections are offered to protect natural parents until clear and convincing evidence of their unfitness is proved.  Fraud should not be used to keep a parent from his or her children, and it can never be the basis for family restoration.