Consistency is Key

     

     Last week in Family Law we covered the case of Adoption of Baby Girl, the 2013 South Carolina case that pitted the tribal rights of Native Americans to restore their families against adoptive parents.  In an opinion returning the 4 year old back to the adoptive parents after living for 2 years with her father on his tribe's reservation, Justice Sonya Sotomayor dissented to that ruling with a thorough analysis of why children need to be connected to their natural parents. 

     This summer in Obergefell v. Hodges, however, Justice Sotomayor found with the majority that natural parents of a child are not as important as she so eloquently stated in 2013, but that rights of individual parents seem to trump a child's best interests in having a relationship with her biological parents.  This week, Professor Adam MacLeod discussed this at Public Discourse. Prof. MacLeod recently published an article on Obergefell v. Hodges with the Regent University Law Review and has recorded a Video Law Review on that piece.

     Justice Sotomayor understands the importance of the best interests of the child in one context, but not necessarily in the context of marriage expansion.  There she seems to prefer what’s best for adults’ individual choices in marriage, and the kids will be better for that.  Children thrive when they are raised by their mom and dad. This concrete foundation for children restores families.  Will the real Justice Sotomayor please stand up?

Very Ill Teen Removed to Foster Care Against Parents' Wishes - Family Deconstruction By Diagnosis

This week, a disturbing story hit the news, as a judge in Massachusetts refused to return an ill teenage girl to her parents, instead ordering her to remain in state custody. The reason for removing the girl from her parents in the first place? The parents challenged a new doctor's conclusion that the illness literally crippling their daughter was a mental rather than physical disorder (another doctor had previously diagnosed a physical ailment).

Parents have a legal right to direct the upbringing of their children, but the state has a duty to intervene to protect children when necessary. These interests often conflict, as they did here, and when each is not appropriately assessed, children suffer.

You can read a news article on the story here, and an insightful perspective from CitizenLink below.

Also, for advice from Focus on the Family on choosing a child's health care provider, see this link.



February 25, 2014 Print from CitizenLink.com

Parental Rights at Stake in Case of Ailing Teen

by Kim Trobee

Justina Pelletier has been at Boston Children’s Hospital for more than a year now.  No, it’s not her illness that is keeping her there.  Justina has been removed from her parent’s custody because doctors say her mother and father are guilty of medical child abuse.
For several years Justina received treatment for mitochondrial disease after Dr. Mark Korson, a specialist at Tufts, diagnosed her illness.  But last February, her condition worsened and she was taken to Boston Children’s Hospital because the gastroenterologist she had been seeing had recently moved there.
What happened next is a parent’s nightmare.
Lou and Linda Pelletier never did consult with the gastroenterologist.  Instead, Children’s doctors examined Justina and formed their own plan of action, which included discontinuing the medication she was on and diagnosing her with somatoform disorder.  The treatment?  Psychiatric care.
Lou and Linda objected strenuously.  And when they did, Children’s Hospital contacted DCF, the state’s child welfare department and alleged abuse.
This week a judge ruled that Justina would be placed in the foster care system and will be transferred to a non-medical facility.  Linda fainted outside the courtroom and was taken to a hospital.
“I was nearby when Linda collapsed, and it was heartbreaking,” said Keith Mason, president of Personhood USA.  “No parent should suffer as the Pelletiers are suffering.  Knowing that their daughter will be cruelly and intentionally transferred to a facility that is unable to care for her medical needs is devastating.”
Mat Staver with Liberty Counsel is defending the family.
“The story of Justina Pelletier is like a horror movie,” he said. “The very purpose of the First Amendment’s protections is to protect citizens against this kind of governmental oppression.”
Child welfare representatives asked a judge to intervene, alleging Lou Pelletier violated a gag order about the case, but no such order was ever put in writing.
“The DCF’s motion for contempt is nothing more than an attempt to prevent the public from gaining access to information concerning the State’s unconstitutional intrusion into the fundamental parental rights of the Pelletiers,” said Staver, “and to extend the secrecy of these proceedings.”
Rev. Patrick Mahoney announced that a national coalition to Free Justina would be holding a prayer vigil and public witness at noon on Saturday, March 1 at the facility where Justina is being held.
As for Justina’s physical condition – she is now confined to a wheelchair.
FOR MORE INFORMATION
Learn more about the Pelletier’s and their case.

Protecting Children from Pornography Online

Parents can help to protect their children from the dangers of living in a sexualized culture, something which can become particularly apparent when viewing websites online.  Family restoration can happen when parents get involved with protecting their children.

The executive director of Parenting at Focus on the Family, Leon Wirth, recently hosted a webinar for Net Nanny, a software program company dedicated to keeping families safe online.  The program, entitled, "What If My Child Viewed Porn and How Do I Handle This?" was the result of collaboration between Focus and Net Nanny to produce a series of webinars on pornography, online predators, and cyber-bullying.  Wirth is a co-author of the book "One Year Father-Daughter Devotions" for Tyndale House Publishers. Read the entire article here. 

Some helpful advice for parents includes:

1. Know the shows, know the movies, know the books in pop culture today.

2. Don’t assume the best or the worst, but get into your child’s world. Spend time with your kids.

3. Don’t be afraid to set some standards for your family and explain those standards to your family.

4.  Know the devices in your home. A lot of parents make the mistake of thinking, “Well, it’s just an iPod; it’s just an MP3 player; it’s just a TV; it’s just a DVD player.” There are so many devices now where outbound or inbound content can be reached. TV’s have YouTube access and Web browsers on them now.  Video game systems, for a long time, have had Web browsers on them. Get to know those devices.

5. Find the parental controls on devices and wrestle with how to work them. Contact the manufacturer online or by phone if you need help.

6.  Be lovingly vigilant about the fact that there are way more access points than there used to be.  If it’s electronic, you need to understand how it works. 

FOR MORE INFORMATION
Watch Leon Wirth’s Net Nanny webinar, “What If My Child Viewed Porn?”

View other Focus webinars on Net Nanny.

Who has Rights to Your Children?

Families are the best, safest, and most efficient environment for child rearing. Yet the national mindset on parenting as portrayed by popular news media is that somehow your children don't belong to you, the parents. Rather, they belong to the community.

A recent MSNBC Promo says, "...we have to break out of our private idea that kids belong to their parents or kids belong to their families and recognize that kids belong to whole communities."



The media is confused as to what parenting is -- in that aggregate mind parenting is done either by a single parent, a community, or two parents, and particularly favored in this paradigm are same-sex parents. Yet research continues to prove that children raised in a stable, married family with a mother and a father are the most likely to thrive.

Parents have a constitutionally protected right to direct the upbringing of their children. They also have a duty to protect the best interests of their children. If the community or government has a perspective that infringes on those fundamentally protected rights, that interference is only legally possible if the parents are judicially ruled to be "unfit," acting to the harm and detriment of their children.

So who has rights to your children? Neither the government, the community, nor MSNBC has any legal right to your children. Simultaneously, you have a duty to protect your children's best interests, even to the foregoing of your own autonomy as an adult. Keep your children first, and the community will have no need, and certainly no right, to intervene into your family.

Supreme Court of Virginia Recognizes that Children Need a Mother AND a Father

The Center for Global Justice, Human Rights, and the Rule of Law filed an amicus brief in August on behalf of the best interests of a child caught in the middle of her parents assisted reproduction parentage dispute.  Children resulting from assisted reproductive techniques (ART) are extremely vulnerable, and absolutely require their parents to protect their interests.  When that doesn’t happen, the child is irreparably harmed.  In this case, a court was asked to intervene to remedy this family breakdown, and the Center for Global Justice participated in that litigation. Our work in this area has made a tremendous difference in that child’s life – she will now be able to know her father, as well as her mother. 

The Center argued that a child should not be deprived of a parent, in this case her father, when her other parent (in this case her mother) argued that her father was simply a sperm donor rather than an intended parent.  In the case of L.F. v. Mason v. Breit  we saw an opportunity for a child to be deprived forever of one of her intended parents, something certainly not in her best interests.  Our brief focused on the injustice in that scenario for any child, arguing that a child has an interest in knowing her parents that should be protected by federal constitutional law, Virginia law, and good public policy on families.   The Court adopted concepts set forth in our brief (and used some of our research verbatim) regarding the best interests of a child resting in the opportunity to have both a father and a mother involved in her life; and the duty of the State to protect those interests when parents do not. The Supreme Court of Virginia recognized that children need a mother AND a father, and should be able to know and have a relationship with both parents. 

Here is an excerpt from pages 25-26 of the opinion, which is available for full review at http://www.courts.state.va.us/opinions/opnscvwp/1120158.pdf.

“…[W]e reject the notion that children have a purported right or interest in not having a father. To the contrary, Virginia case law makes clear that it is in a child’s best interests to have the support and involvement of both a mother and a father, even if they are unmarried. See Copeland, 282 Va. at 194-95, 715 S.E.2d at 17; Wilkerson v. Wilkerson, 214 Va. 395, 397-98, 200 S.E.2d 581, 583 (1973) (recognizing that one parent cannot arbitrarily deprive a child of a relationship with the other parent); see also June Carbone, Which Ties Bind? Redefining the Parent-Child Relationship in an Age of Genetic Certainty, 11 Wm. & Mary Bill Rts. J. 1011, 1023-24 (2003) (discussing children’s interests in the continuing involvement of both parents in the child’s life). Although our analysis in this case rests on Breit’s constitutionally protected rights as a parent, we recognize that children also have a liberty interest in establishing relationships with their parents. Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 622, 376 S.E.2d 787, 791 (1989). Consequently, it is incumbent on courts to see that the best interests of a child prevail, particularly when one parent intends to deprive the child of a relationship with the other parent. "The preservation of the family, and in particular the parent-child relationship, is an important goal for not only the parents but also government itself . . . . Statutes terminating the legal relationship between [a] parent and child should be interpreted consistently with the governmental objective of preserving, when possible, the parent-child relationship." Weaver v. Roanoke Dep’t of Human Res., 220 Va. 921, 926, 265 S.E.2d 692, 695 (1980). Here, L.F. faces a potential loss of liberty in the form of deprivation of a relationship with her biological father, solely because she was conceived through assisted conception by unmarried parents. Virginia’s marital preference in assisted conception protects an intact family from intervention from third-party strangers, but it was not intended to deprive a child of a responsible, involved parent.

The Virginia-Pilot discussed the case at http://hamptonroads.com/2012/01/va-court-overturns-denial-donors-parental-rights.

This case is most significant because it is the first time that any court has recognized a child’s interest in knowing and having a relationship with her parents.  It is particularly important because this interest is recognized not in a rights framework, but in a best interests framework.  Parents have a duty to protect the best interests of their children.  I have written on this before in my piece called Tracing the Foundations of the Best Interests of the Child Standard in American Jurisprudence, 10 J. L. Fam. Stud. 337(2008) which can be downloaded at the Social Science Research Network at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1957143.  I have also discussed the problem that children’s rights do not protect children in my piece entitled Suffer the Children: How the United Nations Convention on the Rights of the Child Has Not Supported Children, 22 N.Y. Int’l. L. Rev. 57 (Summer 2009), also downloadable at the Social Science Research Network at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1962681.

The work of this brief on behalf of the Center for Global Justice was done by students and faculty together as part of the Child Advocacy Practicum, a curricular component of the Center for Global Justice.  These efforts made it possible for the Center to submit a brief that made a tremendous difference in the life of a child, restoring her to her father, as well as to her mother, constitutionally guaranteeing her both parents. 

Millenials and Regent Law Alums Protecting Life

An increasing number of young people who strongly support pro-life causes has prompted the current president, Nancy Keenan, of the National Abortion Rights Action League (NARAL) Pro-Choice America to resign at the end of 2012. Keenan cited NARAL's own data in telling The Washington Post that "new and younger leadership" is needed to reach Millennials — people between the ages of 18 and 34.

Janice Crouse, Ph.D., a senior fellow at the Beverly LaHaye Institute, noted that Keenan's resignation acknowledges that the pro abortion movement in American is losing the new generation of young women.

Meanwhile, Regent Law alums are making a difference for life on several fronts. Benjamin DuPré (1999) with Personhood Alabama (http://www.personhoodalabama.com/) recently appeared on CNN Newsroom to discuss the expose of unborn children to drugs, which in Alabama is a crime called "chemical endangerment of a minor." DuPré claimed that just as pregnant women do not drink alone, they don't abuse drugs alone either, arguing that States should give equal protection of the law to born and unborn children, Read the New York Times Magazine article on this topic, and see the CNN interview here: http://www.cnn.com/video/#/video/crime/2012/05/08/nr-felon-moms-in-alabama.cnn.

Meanwhile, Regent Law alums Greg Terra and Stephen Casey of the Texas Center for Defense of Life are training other lawyers, with the assistance of the Alliance Defense Fund (ADF), through webinars on how to protect girls and women from coerced abortions.

Do your kids have a vibrant spiritual heritage?

Family restoration keeps the best interests of children in focus. Helping those children to grow spiritually is one of the greatest joys of parenting. Consider these tips from Focus on the Family for giving your children a vibrant spiritual heritage.

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Build strong spiritual values in your kids.

Struggling to instill spiritual values in your kids? Here are a few things to keep in mind as you approach this critical task:

1. Make sure you know what you believe and why. Without a clear understanding of your own beliefs about God and your relationship with Him, you won't be able to pass along anything to anyone.

2. Are you and your spouse on the same page spiritually? Communicating regularly about your individual and mutual spiritual journeys is vital if you want to give your kids the gift of a vibrant spiritual heritage.

3. Immerse your family in Scripture. In addition to your own personal study, read with your kids, and help them gain a love for the Bible.

4. Pray regularly for each of your children. Acknowledging our lack of control over their physical and spiritual future, and our dependence upon the One who holds it in His hands, is the beginning of wisdom.

5. Stay flexible and open to the daily guidance of God's Spirit. There's no "one size fits all" approach to raising children to love the Lord.

For more on this topic, be sure to visit FocusOnTheFamily.com.

Parental Tug-a-War Over a Child

Court room drama that places a child squarely in the middle of his or her parents cannot be good for that child. In "Tug-A-War: Protecting the Best Interest of the Child in Light of AB 1050" by Rachel Toberty, Regent Juris Doctor Candidate 2013, this problem is tackled in the context of California custody law.

The dilemma is clear, as Toberty writes, "A child age 14 sits on the witness stand, the subject of his parents’ custody dispute. His father questions him about whether he would prefer to live with his father or his mother. This seems like something no child should ever have to deal with. As a result of Senate Bill AB 1050, however, this very situation may not be an unfamiliar setting in California Family Courts. Child custody disputes are some of the uglier and more emotional cases that take place in California courtrooms; they can strain even an adult’s tolerance. So why would it ever be a good idea for a child to be invited into this often times hostile environment? The California Legislature, under AB1050, has decided that this a proper place for a child, if that child wishes that his desires in a custody dispute be heard. This article will examine whether changes in the California Family Code Section 3042 are really in the best interest of the child while presenting some useful tips for practitioners to uphold the best interest of the child in light of AB 1050."

Toberty researched changes to the California code on children testifying in their parents' custody battle. Her work considers the potential consequences to children as a result of these recently enacted changes to the Family Code Section 3042 because of AB 1050. Then her article discusses possible solutions for the Califorina Legislature to consider to protect children during a contested divorce proceeding, particularly if a child will be testifying, while also providing practical tips to practitioners to help them work with their clients to protect the best interest of the child. Read her entire article here.

Family restoration begins with parents who understand that placing their child in a court room to choose between mom or dad is never good for the child.

For more resources see the pages atop this blog entitled "UpToParents," "Proud to Parent," and "Spare the Child."

Follow me on Twitter to get up-to-the-minute facts on family restoration

Libraries, Parents and the Protection of Children

"Fear Paradigms in the Electronic Age: How Focusing on Privacy Rights from Government Intrusion Overlooks the Best Interests of the Child" by Elizabeth Kowal, Regent Law J.D. 2012 discusses California's new privacy laws that prohibit parents from monitoring their children's library reading material. She writes,

"In this time of Facebook, Twitter, and e-books, privacy is a popular, frequently discussed issue. In January of 2012, two new privacy laws were enacted in California. Both laws address privacy in the electronic age, and responses to both show that Californians are appraising these new laws from positions of fear of the government. Unfortunately, the narrow focus of a fear paradigm makes it difficult to realize when there may be other important issues implied in new laws. Although California’s new laws address privacy in the electronic age, they may be harming families. This article examines whether California ignores the best interests of the child and creates liability without authority under the new privacy rules for libraries."

Library privacy policies are good and important; but how those law and policies work together to harm or protect children and their protection is explored in the first section of the article. Section II examines reactions to the new privacy laws and explains the narrow viewpoint of fear paradigms. Section III illuminates and contrasts the interplay of family privacy and children’s rights. Section IV analyzes the new privacy standards under the best interests of the child standard and suggests solutions to these concerns.

Analyzing the fear paradigms in which privacy laws are established is an important task. A narrow focus on individual rights violates the best interests of the child when parents are prohibited from protecting their own children. Parental liability without legal authority does not work toward family restoration, but rather preys on vulnerable children without their parents' protection.

Murder, Money, Mommy's Boyfriend, and the Need for Marriage to Protect Children

Las Vegas recently commended a new child welfare campaign to confront "[t]he maddening, tragic trend of children being murdered by the abusive boyfriends of their single mothers has the full attention of valley law enforcement, social workers and researchers. On Wednesday, as part of National Child Abuse Prevention Month, a coalition led by UNLV's Nevada Institute for Children's Research and Policy launched the "Choose Your Partner Carefully" campaign. The drive, which already is under way in other communities across the country, attempts to educate parents about qualities in a partner/caregiver that officials say can put a child at risk for abuse." Glenn Cook's article, A New Child Welfare Campaign, can be found at the Las Vegas Review-Journal in its April 4, 2012 edition.

"The state-funded campaign will place posters at bus stop shelters and fliers and brochures at community centers, medical offices, schools, child care providers, domestic violence shelters and government offices." (You can download the posters and literature at the Internet links listed with this column. [pdf])

Cook first wrote about this issue in January 2011 in a column headlined "Single moms, boyfriends and dead kids." He states, "Las Vegas police reviewed child abuse and neglect homicides between 2005 and 2010 for me and found they were most often carried out by the mother's boyfriend, with 11 such cases in those six years in Metro's jurisdiction. I also learned that the FBI's national homicide data list 17 categories for a homicide victim's relationship to the killer, and "mother's boyfriend" isn't one of them. It's a crime in need of deeper examination."

Last week the Nevada Institute for Children's Research and Policy reported that "in almost half of abuse and neglect homicides reported by all Clark County jurisdictions over the past two years, the perpetrator or suspect charged in the crime was the mother's boyfriend."

The "Choose Your Partner Carefully" campaign, however, has an overall message that's good advice to anyone on the dating scene, regardless of whether they have kids. Its literature is long-winded with an occasional lecturing tone, covering not only undesirable personality traits, but infant-care basics and phone numbers to report child abuse. Some of the campaign's targets might not be able to read. Previous successful child welfare campaigns have had far simpler messages that were relevant to far more parents. For example, installing child safety seats in cars; telling parents not to leave their children alone in a vehicle; locking access points to swimming pools and never letting kids swim alone to prevent drownings. Elected officials created laws mandating car seat usage, establishing penalties for leaving a child alone in a car and, in some cases, mandating the installation of alarms and special gates to create protective barriers to swimming pools. ... Phebus noted that agencies involved in the campaign have seen untold numbers of cases in which a child has survived the severe abuse of mom's boyfriend -- cases that don't usually make the news."

This issue of indiscriminate choices in child welfare was taken up by a Regent Law student in a Juvenile Law class this spring. In his article, For Richer, Not Poorer: A Marriage Proposal Through the Welfare System, Justin M. Coretti, J.D. Candidate 2012 presents a solution for states to consider in reducing the harm to children of cohabitation, but he focuses on state economic welfare costs.

Coretti notes, "A 2010 study by the Citizens Budget Commission, an objective and independent leader in “advocating for government reform,” strongly recommended New York State cut $20 billion from its budget in order to help decrease the state’s outstanding $120 billion debt. Andrew Cuomo, New York’s governor, laid out an emergency budget plan which should reduce the $9 billion budget gap during the 2012 fiscal year. Cuomo acknowledged the dire need for the State of New York to modify its budget quickly while refraining from raising the tax rates in one of the highest taxed states in the country; additionally, the brunt of the problem, as Cuomo explained it, is simply that New York spends too much money."

The article examines whether the current state of New York’s welfare laws encourages non-marital births to families on state social assistance, fostering further family fragmentation and generating greater costs to the New York taxpayers. Section I briefly discusses the cost of the welfare program to the State of New York, offering an overview of the rules and regulations of New York’s welfare program. Section II examines how two states, Oklahoma and Florida, have strengthened families through state-wide marriage promotion and preservation programs, including through the use of state assistance programs for those below the poverty level. Then section III presents possible measures which the State of New York could implement to better serve the welfare beneficiaries, their families, and family and financial strength throughout the State of New York.

His article offers solutions for New York State to encourage marriage in fostering family strength, thus providing for the best interests of children in any state social assistance program, protecting the child with marriage that fosters personal responsibility, and protecting the state taxpayer with fiscal responsibility. The complete article can be viewed here.

Family restoration requires protection of children by their parents, and state economic responsibility that fosters that family strength with the stability afforded by marriage. Mommie's boyfriend will have no place or opportunity to harm the children when marriage is encouraged, and cohabitation is not subsidized.

The War on Women is a War on Family

When Ann Romney became the target of Democratic Strategist Hilary Rosen for "not working a day in her life" the war on women began in earnest, sparking a firestorm on not only women, but their families as well. See http://politicalticker.blogs.cnn.com/2012/04/12/democrat-defends-ann-romney-comments-amid-firestorm/?hpt=hp_t2.

As a key voting block, women are imporant to the upcoming November 2012 Presidential election, and political strategists generally know that. See http://www.cnn.com/2012/04/12/politics/campaign-wrap/index.html?hpt=hp_t2. Now an apology has been issued by Rosen, understanding the potentially deep divide those remarks have created. See http://www.cnn.com/2012/04/12/politics/campaign-wrap/index.html?npt=NP1.

Ann Romney represents women who have placed a high value on parenting and family. To be derided for that is to target the entire institution of the family. See remarks about this on CBN Newswatch on Thursday, April 12:



The real "war on women" is a war on marriage, family, parenting priorities, and gender equality in the context of a struggling economy and a divisive political landscape. Women's voices in November could make all the difference to the future of America, and to the future of family strength.

How the Louisiana Code Protects the Best Interests of In Vitro Fertilized Human Ovum

Family Law students at Regent University School of Law research state codes on myriad topics, among which is current statutes on assisted reproductive technology. The Louisiana Code Section entitled "Human Embryos" codified in part at LSA-R.S. 9:131 requires that all outcomes for embryos be resolved in their "best interests."

The Tennessee case of Davis v. Davis, 842 S.W.2d 588, 590 n.1 (Tenn. 1992) cites to this Louisiana code to determine the most appropriate outcome for the fate of seven frozen embryos of a divorcing couple. ("At the time of trial, only one state had enacted pertinent legislation. A Louisiana statute entitled 'Human Embryos,' among other things, forbids the intentional destruction of a cryopreserved IVF embryo and declares that disputes between parties should be resolved in the “best interest” of the embryo. 1986 La.Acts R.S. 9:121 et seq. Under the Louisiana statute, unwanted embryos must be made available for 'adoptive implantation.'")

Louisiana, through these statutory provisions, affords an incredible amount of legal power to, and protection over, the in vitro fertilized human ovum. Additional sections of that state's code protect embryos:

LSA-R.S. 9:123 ("An in vitro fertilized human ovum exists as a juridical person . . . .").

LSA-R.S. 9:124 ("As a juridical person, the in vitro fertilized human ovum shall be given an identification by the medical facility for use within the medical facility which entitles such ovum to sue or be sued. The confidentiality of the in vitro fertilization patient shall be maintained.").

LSA-R.S. 9:126 ("A court in the parish where the in vitro fertilized ovum is located may appoint a curator, upon motion of the in vitro fertilization patients, their heirs, or physicians who caused in vitro fertilization to be performed, to protect the in vitro fertilized human ovum's rights.").

LSA-R.S. 9:131 ("In disputes arising between any parties regarding the in vitro fertilized ovum, the judicial standard for resolving such disputes is to be in the best interest of the in vitro fertilized ovum.").

What Louisiana has done through these statutes is significant because it shows that states can enforce greater legal protection for the in vitro fertilized human ovum than can be afforded for the gestating unborn child under the landmark Supreme Court cases on abortion, Roe and Casey. This is cruelly ironic, because the ability to afford varying levels of legal protection for the unborn child (from in vitro fertilized human ovums to viable gestating unborn children) is grossly disproportionate to biological development. In effect, greater protection can be afforded for the in vitro fertilized human ovum than can be afforded to the gestating human child (at least prior to "viability").

Louisiana has further moved to foster "embryo adoption."

When states move to statutorily protect human embryos, they do so in the best interests of the child, the legal standard which protects all children, a major key to family restoration. Irony in that application, however, is only available in an abortion context. Louisiana sets the example for how states can legally protect children's best interests from fertilization.

Thanks to current Family Law student Paul Morin, Regent J.D. Candidate 2013 for this excellent post.

Best Interests of the Child When Parent is a Medical Marijuana Patient?

California estimates the state has 750,000-1,125,000 medical marijuana users residing within its jurisdiction. According to the California Judicial Report in 2011 there were 452,671 family law filings and 383,547 family law dispositions in that state. How does the use of marijuana medicinally, a legal prescription drug in California, affect a parent's ability to act in the best interests of his or her child?

This is not just an issue for California. Estimates based on a Colorado registry reveal that about 1-3% of the population are registered medical marijuana users. Currently 16 states hold favorable laws for medical marijuana, and 18 states have proposals for similar programs. Marijuana is still illegal according to the federal government, but its usage by parents in states that have nonetheless legalized its usage is becoming a concern in custody dispositions.

Rachel Toberty, Regent Law J.D. Candidate 2013, provided a detailed review of this area of law to Family Law students last week. In noting California's statutory code setting forth the factors for determination of the best interests of a child

California Family Law Code Section 3011 is clear:

• In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:

(a) the health, safety, and welfare of the child.

(b) any history of abuse by one parent or any other person seeking custody against any of the following…

(c) the nature and amount of contact with both parents, except as provided in Section 3046.

(d) the habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services…

As a controlled substance, medical marijuana falls within the language in italics above that would protect the best interests of children when their parents might be medical marijuana patients. In an age of parental autonomy, discerning what is best for the child can be easily overshadowed by how an adult/parent may wish to live his or her life.

Children are afforded protection by the law, particularly in custody disputes, when parents have requested judicial intervention into the family in a situation of breakdown. When parents place their liberty interests above the best interests of their child, a judge will intervene to reorder the parenting plan to provide for the child's best as a paramount objective.

Family restoration is well served by parents who understand that providing for their child's best interests may often be in direct conflict to their own self interest, though worth the sacrifice. But when the child's well being is clearly at stake, courts will always act to protect the child, even when a parent chooses his own way, rather than what is best for the child.

Devaluing Children Contributes Dramatically to Family Breakdown

A 25 year old mother in Canada convicted of killing her newborn son at his birth was given a three-year suspended sentence Friday by an Edmonton Court of Queen's Bench judge. "Katrina Effert was 19 on April 13, 2005, when she secretly gave birth in her parents' home, strangled the baby boy with her underwear and threw the body over a fence into a neighbor's yard.  She silently wept as Justice Joanne Veit outlined the reasons for the suspended sentence. Effert will have to abide by conditions for the next three years but she won't spend time behind bars for strangling her newborn son."  Read the entire story here: http://www.cbc.ca/news/canada/edmonton/story/2011/09/09/edmonton-effert-infanticide-suspended-sentence.html. 

Many are outraged at this legal result. "Mark Steyn hit the nail on the head when he accused a Canadian appeals court of allowing for a 'fourth-trimester abortion' — that's right, the killing of a baby that is already born."  Read more of that opinion here: http://www.albertmohler.com/2011/09/16/thrown-over-the-fence-infanticide-canadian-style/.  Others further suggest that abortion legal theory offers a foundation to such rulings.  "Justice Veit did not invent a right to kill infants – she merely acted upon established academic reasoning."  See that opinion here: http://cmc.rodparsley.com/News.aspx?nid=4196.

How we value or devalue our children, in their lives and in their deaths, reveals a great deal about the crumbling foundations of families.

We have discussed this previously in this Blog at http://www.regentfamilyrestoration.blogspot.com/search?q=casey+anthony. Professor Kohm and Regent Alumni Professor Scott Liverman wrote about this phenomena nearly a decade ago in an article published by the William and Mary Journal of Women and the Law.  [See Prom Mom Killers: Distorted Statistics, Blame Shift, and Their Impact on Punishment for Neonaticide, 9 Wm & Mary J. Women & L. 43 (Fall 2002), cited in Amy D. Wills,  Neonaticide: The Necessity of Syndrome Evidence When Safe Haven Legislation Falls Short,  77 Temp. L. Rev. 1001 (Winter 2004); Jennifer R. Racine, A Dangerous Place for Society and its Troubled Young Women, A Call for an End to Newborn Safe Haven Laws in Wisconsin and Beyond, 20 Wis. Women's L.J. 243 (2005); Susan Ayres, Who is to Shame? Narratives of Neonaticide, 14 Wm. & Mary J. Women & L. 55 (2007).] 

Family restoration means nothing if we devalue the crime of a parent killing his or her child to a suspended sentence.  The person a child most relies on ought to be the same person to be the most protective of that child.

[Thanks to Shawn Clauther for the research contributing to this post.]    

Cohabitation Harms Children - and Future Family Strength

The University of Virginia's National Marriage Project and the Institute for American Values, directed by Professor Brad Wilcox, issued a report in August week titled "Why Marriage Matters." This report determines that children living in cohabiting households don't do as well socially, educationally or psychologically as children living in intact married households. The study says that based on empirical evidence, cohabitation harms children. See the full article by Rob Hagy at http://www.virginia.edu/marriageproject/pdfs/WMM_summary.pdf.

The research specifically revealed that "the children of cohabiting parents are at risk for a broad range of problems, from trouble in school to psychological stress, physical abuse and poverty, reported NPR's Jennifer Ludden. "Wilcox says the children of the divorce revolution grew up to be understandably gun shy about marriage. Many are putting it off, even after they have kids. But research shows such couples are twice as likely to split. 'Ironically,' he says, 'they're likely to experience even more instability than they would [have] if they had taken the time and effort to move forward slowly and get married before starting a family'." Read or listen to the full National Public Radio report at: http://www.npr.org/2011/08/16/139651077/study-are-cohabiting-parents-bad-for-kids.

Cohabitation may also be making marriage an imperiled institution, according to a July 3 New York Times article, as "marriage today reflects several 20th century shifts of extraordinary implications," detailing how children are not necessarily part of the American family assumption - a "colossal shift." (You can read that entire piece by Mark Regnerus at http://www.nytimes.com/roomfordebate/2011/07/03/marriage-the-next-chapter/marriage-an-imperiled-institution.) These factors may also be contributing to plummeting US birthrates. According to a USA Today analysis of the 2010 Census, the "share of the population under age 18 dropped in 95% of U.S. counties since 2000... despite a 9.7% growth in the U.S. population." (You can read that article at http://www.usatoday.com/news/nation/census/2011-06-03-fewer-children-census-suburbs_n.htm.)

Kids seem to pay the price for the cohabiting revolution. A good summary of these facts by Chuck Colson can be found at http://www.lifesitenews.com/news/the-cohabitation-revolution-kids-pay-the-price/. He makes some strong arguments for the reasons for family instability, and how they harm kids.

"...[A]bout 24 percent of children are born to cohabiting couples today. Meanwhile, another 20 percent are part of a cohabiting household at some point during their growing-up years. That means nearly half of all American children have lived in a home where the adults are merely living together rather than married.

Today's advocates of "modern family structure" will tell you that this is no big deal, that having a wedding ring is overrated. The kids, they say, will do fine either way. Well, the fact is, an intact marriage puts children way ahead of children in other types of households. National Review editor Rich Lowry, who labels the current trend a "cohabitation revolution," notes, "Children in cohabiting households tend to lag children in intact married families on key social indicators and are not much better off than children in single-parent families."

Those who are part of cohabiting households, according to the study, report "more conflict, more violence, and lower levels of satisfaction and commitment." Children in such situations face real emotional and physical risks.

Jennifer Roback Morse of the National Organization for Marriage reports that children living with their mother and a live-in boyfriend are 33 times more likely to be abused than those living with their biological married parents. Also, children in households with unrelated adults are 50 times more likely to die from inflicted injuries, compared with children living with both biological parents.

Despite all the well-reported problems of marriage these days, cohabiting relationships are frequently less stable, as well. Lowry says that cohabiting couples with a child are more than twice as likely to break up as married parents. That's a huge difference. Lowry says, "Children turn out to benefit from the structure, rituals, and identity that come with a lasting marriage between their parents. And the very act of committing to the norms of marriage makes adults better marital partners and parents."

So why is marriage held in such low regard today, to the point that some people are willing to sacrifice their children on the altar of convenience? Well, one reason might be is that they have not seen what a good marriage looks like. Defending marriage involves more than just talk. Are we Christians committed to showing our neighbors the love, fidelity, and joy that ought to accompany a marriage founded on God and His plan for human flourishing? ...when is the last time you heard your pastor give a sermon on the dangers of cohabitation? Is your church doing all it can to prepare young couples for marriage and to help struggling marriages?

If not, then all our advocacy for the importance of marriage is likely to fall on deaf ears. And our nation's children will be the losers for it."

In light of these facts, what should a pastor today do when a cohabitating couple asks him to perform their marriage ceremony?  See the answers and Professor Kohm's remarks to this at ChristianityToday.com.

Alarms are sounding on behalf of children over cohabitation and family instability. Family restoration is a great solution to provide kids with a safer and more stable childhood. Adults may want to think twice before sacrificing their children's best interests on the altar of convenient cohabitation.

[Special thanks to Regent alum Mr. Gilbert Berger, Esq., Berger Law Office, Culpeper, VA, for the research contributing to this post.]

Spare the Child Video Project Hailed by the ABA's Bar Leader to Educate Families in Dissolution

Family dissolution is all too common, and its effects on children can be devastating. In the Commonwealth
of Virginia alone, there are more than 30,000 divorces yearly, and that does not include nonmarried families in
transition. To fill the need in educational materials for the public, the Family Law Section of the Virginia State Bar created the video Spare the Child. It is an accessible, practical guide to the legal system aimed at the best possible results for children, and it introduces nonlitigious resolutions and positive parental roles and decisions that protect children.

The documentary-style video features judges, lawyers, guardians ad litem, counselors, teachers, and children
of divorce who relate their experiences. The video was first produced in 1997 in VHS format and has been used by churches and civic groups, family and juvenile courts, law firms, private homes, and law schools. A video redesign was initiated in 2007 and completed in 2010. During this time, the program underwent thorough review through surveys of family law professionals and the public before being rewritten and updated. Among these updates were greater diversity and representation of an increased variety of family structures, including unmarried unions and extended-family involvement in child rearing.

The video informs viewers of best practices and decisions while addressing the challenges that emotional actions have on children during and after family dissolution. It instructs viewers to focus on the needs of children and ends with a positive message to parents. Accounts from adult children of family dissolution - including two bar staff members-reveal firsthand expenences and reach viewers on an emotional level. Advice from family law professionals gives parents tangible tools to use in conunon situations, from preservation of schedules to custody disputes to interaction with extended families and family friends.

The project was funded by the Virginia Law Foundation and produced with Park Group of Richmond, Va.
The video is available in Spanish and closed captioning, both on DVD and on the Web. Former first lady of
Virginia and Juvenile and Domestic Relations Judge Anne B. Holton was involved in the making of the video
and helped to raise awareness of the program. It has been screened at continuing legal education programs
and family law seminars, with copies of the DVD distributed to participants.

DVDs were distributed to courts throughout Virginia for use in mandatory litigant-education and parent education programs required by Section 16.1-278.15 of the Code of Virginia, which requires parents and/ or all other parties involved in a contested custody, visitation, or child support petition to attend a parenting education class. DVDs are available to the public for a shipping fee, and the video is available online at www.vsb.org/site/publications/video.

The Virginia State Bar and its Family Law Section encourage other bars, practices, and groups to use it. DVDs may be ordered by contacting Shannon Quarles at quarles@vsb.org or (804) 775-0512.

-By Madonna Dersch, graphic designer and assistant webmaster at the Viginia State Bar.

Michele Bachmann, the United States and Family Restoration

As a mother of five and foster mom to 18 more children, Rep. Michele Bachmann (R-MN) understands what is needed to restore families - consistent loving parenting. Her visit to our Family Law class in November of 2009 confirmed that, as we met and spent some time with her and her husband, discussing some of the pressing issues faced by families in contemporary America.

Today Representative Bachmann has begun a new race for restoration, as she seeks to serve the American public from the most strategic post of President of the United States. She made the announcement today from her original home town of Waterloo, Iowa, home of the first Republican primary.

Over the next several months we will watch as her vision for America and her heart for children and families becomes better known to the American public. Efforts like those of Rep. Michele Bachmann can make a tremendous difference for family restoration, and maybe even for the restoration of America.

On Friday, November 20 Representative Michele Bachmann (Minn.) was welcomed to Professor Kohm's Family Law class (click here for more on her visit).

Can Families Rely on a Court to Protect Children From Strip Searches?

Parents and students do not check their constitutional rights at the school house door, yet the law in the area of student strip searches is not helpful to families, as Andrew Miles (Regent Law 2010) found in his research on this aspect of juvenile law. His article, Students Being Stripped of Their Rights at the Schoolhouse Gate, examines whether the best interests of the child are served when public school officials are permitted to strip search students in order to provide a safe educational environment. What he found would bring alarm to any parent.

In order to comprehend this problem, an understanding of the status of juveniles in the eyes of the law is important, and Miles provides a comprehensive overview while including a knowledge of how courts have dealt with students’ claims of unreasonable strip searches by school officials. Schools have indeed strip searched numerous students in numerous settings for an array of reasons in schools across America – yikes!

“The study of juvenile law presents two interrelated questions: what rights are recognized by the government for juveniles and how are those rights are treated under the law? Unlike animals, human children have a relatively long period during which they are vulnerable and completely dependent on adults.”

Miles expresses his dismay in what he characterizes as “the Supreme Court shirked its duties,” by opining that the law on student strip searches was not clearly defined at the time one student, Savana Redding, was searched, “instead of taking the opportunity to clarify the factors it had left unclear” in a previous similar case. Miles argues that the Supreme Court fails to protect young Americans who still have an interest in privacy, even if this interest is lessened by virtue of their juvenile status.

Parents seriously need to be informed on this area of law – for the sake of their children’s privacy and personhood. Read Andrew Miles' article here, and find out why every family should teach their children to request parental presence at ANY necessary opportunity – especially when that child is about to be subjected to a strip search!

"Sexting" Offenses and Family Restoration

Today, more and more children are participating in adult activities, specifically sexual activities, before they have the maturity to deal with all of adulthood’s harsh realities. This problem is magnified by today’s children’s knowledge of technology and their ready access to it. According to an editorial in the Baltimore Sun written in January of 2009, at least 40% of teens are sending sexually explicit messages by cell phone. This is called "sexting" - the act of sending sexually explicit messages or photos electronically, primarily between cell phones, a portmanteau of the words "sex" and "texting."  What kids don't consider is that this is a serious crime that will land an unwary teenager in jail and on the sex offender registry of his or her state should he or she be convicted of a child pornography offense.  Ashby Clark (Regent Law 2010) has written about these issues in her article "Children as Child Pornographers and the Problem with Sexting – Will the law ever catch up with technology?"

Kids are placing themselves at tremendous risk of being labeled as child pornographers for doing a foolish thing. Sexting is just part and parcel of the larger problem of child sexuality that faces our society today, but it calls our immediate attention because of the potential for serious criminal consequences resulting from it.  Wise parents are wise jurists are the key to change, and the only way to restore children and families devastated by sexting.

The article by Ashby Clark uses the example of Holly and Tommy highlight the problem:

Holly is fifteen years old. She is a cheerleader, an honor roll student, and generally speaking, an all-around good girl.  Her parents are so proud of her. She has a great shot at getting into college at the local state university – she wants to be a veterinarian. She even volunteers at the local animal shelter on the weekends. Holly is having a good time being a teenager; she has a boyfriend and they have been “going out” for two months now. Her boyfriend’s name is Tommy and he is sixteen years old. He is the quarterback of the football team and is a straight “A” student. If Tommy and Holly stay together through the holidays, he may even ask her to the prom.

One night, after Holly has gone to cheerleading practice, done her homework, and is getting ready for bed, she thinks about Tommy and how he is just the greatest guy she has ever met. She wants to let Tommy know how important he is to her – they just have to stay together, she cannot imagine her life without him. So, as she takes off her clothes and changes into her pajamas, she takes out her cell phone, equipped with a camera, and takes a picture of herself in the nude and sends it to Tommy’s cell phone.

Now, Holly has a big problem and so does Tommy. If any adults or the authorities find out about the nude picture, there will likely be felony criminal charges brought against both of them because Holly’s picture is classified as child pornography in most states.  Holly could be charged with producing or creating child pornography and Tommy could be charged with possession of child pornography. If Tommy sends the picture of Holly around to his buddies on the football team, then the young men will be in the same boat as Tommy. They are in possession of child pornography. Suddenly, Holly and Tommy’s blossoming futures just started to wilt.

Even though Holly, Tommy, and Tommy’s buddies on the football team are not real people, they are representative of a very real problem facing the criminal justice system today. The problem involves the premature but voluntary entrance of young people into the world of adulthood.

The problem with sexting calls lawyers, legislators and judges to reexamine whether the laws concerning child pornography and its distribution are appropriate when juveniles, who belong to the class of people that the statutes are designed to protect, are being prosecuted for, and convicted of, sex offenses for passing nude pictures of themselves via cell phone to other juveniles. This article highlights the areas of the law that need to be updated through a thorough explanation of the problem as well as an in-depth examination of the existing case law and statutes. In addition, it provides suggestions to help law makers and the criminal justice system grapple with the rising tide of juvenile offenses in this area of the law.

Read the entire article here.

Education, Parenting and Family Restoration

Ninomania, found at http://ninomania.blogspot.com, the preeminent Scalia blog (Nebraska Law Professor Richard Duncan at http://professorduncan.blogspot.com) by Regent Law Professor David Wagner, offers his (and Justice Clarence Thomas’) thoughts on education, particularly in light of a recent school speech case, Morse v. Frederick, 439 F.3d 1114 (2009) which Professor Wagner fondly euphemizes as “the Bong Hits case.”

Family restoration, I believe, can begin when parents take responsibility for their child’s education. Read what Wagner (and J. Thomas) have to say about in loco parentis and public education. I look forward to Professor Wagner’s essay….

“Many decisions worth commenting on are coming down right now, but I am currently crashing on an essay about education and the Constitution, and so will not be able to comment fully, if at all.

This is awkward for me, because on the off-chance that I have any readers, I owe it to them to comment case by case, and also because this essay is about the constitutional position of home-schooling, yet I am becoming increasingly convinced of the view of public schooling in America expressed -- solely -- by Justice Thomas in the Bong Hits case (available at http://www.law.cornel.edu/supct/html/06-278.ZC.html) Perhaps this helps, more than it hurts, any possible theory concerning home-schooling, but my larger point today is: I do not understand why Truth-Tellers on the Court are like Vampire-Slayers in the Buffyverse -- only one at a time.”

David Wagner 4:41 PM June 22, 2009,

http://ninomania.blogspot.com