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DNA New Law Can End Child Support Payments Francisco Rodriguez thought he had
all the proof he needed to get out of his child support payments:
DNA evidence proving he's not the father and a signed affidavit from
the child's mother asking he be relieved of the payments.
Smith ended up taking his case to the U.S. Supreme Court, and
eventually the laws in Georgia were changed. Florida, Maryland,
Ohio, Alabama, Indiana, Virginia, Arizona and Wyoming followed suit.
It wasn't until 2000, when she applied for public assistance, that Alvarez and the Florida Department of Revenue tried to collect child support from Rodriguez. Problems began when Rodriguez didn't respond to four requests from the court to take a DNA test in 2000. He said he didn't get the notices, but court documents show they were sent to an address listed for him. The same year, a judge granted a petition filed by the state on behalf of Alvarez to name him the father. Under Florida statute, the state can establish a man is the father in a child support case if the man doesn't respond to notices to take a DNA test. In 2003, when the state attempted to garnishee his wages, Rodriguez obtained a DNA test proving he wasn't the child's biological dad. Alvarez signed an affidavit in 2004 supporting his attempt to end the payments. But that didn't help. "I'm so sick of it. I've had my credit ruined," said Rodriguez, who near Thanksgiving last November was arrested and jailed for not paying. Alvarez could not be reached for comment, but her mother, Geraldine Murray, of Miramar, said they thought the whole thing would end once they agreed in writing Rodriguez wasn't the father. Murray has temporary custody of Alvarez's children. "I don't think it's fair for Frankie," Murray said. "But it's not my daughter's fault. She went to court and did everything she was supposed to do." Court
Panel Upholds Custody Rights By Asher Hawkins A Superior Court panel has affirmed a Bucks County judge's decision to award primary custody of twin boys to the nonbiological parent half of a lesbian couple whose relationship ended. In Jones v. Jones[Boring], the partner who was the biological mother -- she was artificially inseminated after the couple had been together for a number of years -- had originally been given primary physical custody, and her ex was granted partial physical custody and ordered to pay child support. The boys were 4 years old when the couple split. According to a March opinion from Bucks County Judge Susan Devlin Scott, biological mother Ellen Boring married a man shortly after her relationship with Patricia Jones ended and ultimately moved to Indiana. Boring would tell her sons to call their stepfather "dad" and sought to downplay Jones' role in their upbringing, according to the opinion. Jones filed a number of contempt petitions in which she argued Boring was not complying with the custody order. Following evaluation by a court-appointed therapist, Scott found in January that it would be in the best interests of the boys if Jones were awarded primary physical custody, and Boring partial. Boring appealed to the Superior Court. The panel in Jones filed its memorandum opinion affirming Scott's order less than a month after oral arguments in the matter were held in Philadelphia. "Once it is established that someone who is not the biological parent is in loco parentis, that person does not need to establish that the biological parent is unfit, but instead must establish by clear and convincing evidence that it is in the best interests of the children to maintain that relationship or be with that person," the panel's opinion states, citing relevant Pennsylvania case precedent. The panel in Jones consisted of Judges Jack A. Panella and Richard B. Klein and Senior Judge John T.J. Kelly Jr. In reaching their decision, the judges declined to address Jones' argument that Pennsylvania should adopt a simple "best interests" test, and that both the presumption in favor of biological parents and the "clear and convincing evidence" standard should be left behind. "Jones asserts that the law is changing," the opinion states. "As the concept of family evolves the law will evolve along with it. "Since the judge determined, and we agree, that there was 'clear and convincing evidence' in this case, we do not reach [Jones' argument] today," it states later. The judges noted that in its 2000 decision in Charles v. Stehlik, the Pennsylvania Supreme Court affirmed the awarding of primary custody to a child's stepfather, rather than natural father, following the death of the mother. "While the scale was tipped in favor of Boring, Jones produced clear and convincing reasons to even the scale and then tip it on her side," the opinion says. "Jones did not establish that Boring was unfit, and was not required to do so, but Jones did clearly and convincingly establish that the children would be better off with her as the primary custodian and that the children's relationship with both parties would be better fostered if custody were awarded to Jones." Arguing on Jones' behalf before the panel earlier this month was Alphonso David, a New York- based Lambda staff attorney. Maureen Gatto of Dorian Goldstein Wisniewski & Orchinik in Bensalem, who handled the case at the trial level, joined David at the appellee's table. The Center for Lesbian and Gay Civil Rights served as co-counsel. Stacey Sobel, executive director of the center, said a key aspect of the decision is "that it clearly shows that courts are going to look at the rights of in loco parents in a very similar way to biological parents in custody matters." Boring's attorney, Kenneth Williams of Eastburn & Gray in Doylestown, did not immediately respond to a call seeking comment.
Child-custody Case Pits Two States' Laws MONTPELIER, Vt. - Battles over the custody of children between estranged spouses are nothing new. But this one involves a child born to a lesbian couple in a since-dissolved civil union. And the case might end up in the U.S. Supreme Court because it produced dueling court rulings in Vermont, the first state to legally recognize same-sex relationships, and Virginia, which has a law saying neither same-sex marriages nor civil unions carry the force of law in that state. The case comes up for argument before the Vermont Supreme Court on Wednesday and before the Virginia Court of Appeals a week later. Both supporters and detractors of same-sex marriage and civil unions say whatever the outcome, it may become a landmark in the debate over what laws should govern same-sex relationships and the children born to them. ''This case has significant implications for a number of reasons,'' said Mathew Staver, a lawyer with Florida-based Liberty Counsel, which opposes same-sex unions. He said there have been other cases in which out-of-state courts have been asked to grant dissolution of Vermont civil unions, and refused because their states don't honor such unions. In this case, however, ``You have two state laws clashing for the very first time.'' If the fight goes to the U.S. Supreme Court, ''This would have major precedential value,'' Staver said. Jennifer Levi, a lawyer with Gay and Lesbian Advocates and Defenders who will represent Janet Jenkins at Wednesday's hearing, called that kind of speculation premature. She hopes that both courts will allow her client visitation with the 3-year-old girl at the center of the controversy. Jenkins, now 40, and Lisa Miller, 36, both Virginia natives, fell in love in their home state, came to Vermont in 2001 just long enough to get a civil union and returned home. In Virginia, Miller got pregnant by artificial insemination and gave birth in April 2002 to a girl they named Isabella. They later returned to Vermont, where they lived for a little more than a year before breaking up. In filing for dissolution, Miller filled out paperwork indicating that Isabella was the child of the civil union, a fact that Jenkins' team is using to argue that under Vermont law Jenkins is a parent of Isabella. Miller later changed her mind and asked Rutland Family Court Judge William Cohen to find that she was Isabella's sole parent. The judge denied her request and granted Jenkins visitation, even though she never formally adopted Isabella. Miller appealed to the Vermont Supreme Court. She also moved back to Virginia and won a declaration in that state's courts that she was Isabella's sole parent, with no obligation to Jenkins for visitation or anything else. Federal law, particularly the Parental Kidnapping Prevention Act, is set up to block a parent unhappy with one state's custody order from taking a child to another state's court. It says the second state must honor the first state's ruling on custody and visitation, and Jenkins' team is relying on this law in arguing that Virginia should let the Vermont ruling stand. Miller said she does not dwell on the outcome. ''I don't think about it one way or another,'' she said. ``It's in God's hands.''
By Leslie Kaufman  Donald
Gardner owes $119,846 in back child support to his former wife, but
there is little chance he will pay it soon - or ever.
After failing to pay support for his two children for much of the early 1990's because he felt the payments were too high, Mr. Gardner broke 27 bones in a car accident in 1997. Being in and out of hospitals for three years left him penniless, and when he tried to return to work he Donald Gardner found that the state had suspended his driver's license because of his accumulated child support debt. That prevented him from going back to work as an interstate truck driver. "I've decided that I'd like to get this behind me and pay the support," said Mr. Gardner, 47, who now lives in a homeless shelter in Harlem, "but if I can't drive I can't pay. It is like a Catch-22." Everybody loves to hate the so-called deadbeat dads. After a spate of press accounts of a few flagrant shirkers in the mid-1990's, civic fury rose to a boil. Legislators in many states across the country passed tough measures that allowed for, among other things, revocation of any state license and direct access to bank accounts of men not meeting their payments. Child support collections skyrocketed. But because the laws made little effort to differentiate between the wealthy and the out-of-work and incarcerated, the laws have produced consequences for poor men that are vexing local and national policy makers. Around the country, child support arrears have been piling up at a staggering rate since the enactment of these laws. A decade ago the federal government said fathers owed $31 billion in back child support; as of 2003, the last year for which data was available, the total had more than triple that to reach $96 billion. Changes in reporting may account for a portion of the increase. About 70 percent of the debt is owed by men who earn $10,000 a year or less, or have no recorded wage earnings at all, according to the Federal Office of Child Support Enforcement. Less than 4 percent is owed by men with incomes of more than $40,000. And the poorer men are getting caught in a vicious circle. Their debts have become obstacles to getting licenses for jobs to help them produce wages to pay down the debts. Recent research by the Urban Institute, a think tank in Washington, found that aggressive collection of debts played a crucial role in pushing low-income black men ages 25 to 34 out of lawful employment, the opposite effect policy makers might have desired. "Child support enforcement has a lot of powerful tools at its disposal and tends to assume the ability of the men to pay," said Elaine Sorensen, a senior researcher at the Urban Institute. "But sometimes men can't pay because they are in prison or don't have the money. Child support policies need to be more flexible to distinguish between those who won't pay and those who can't." New York has gentler policies than many states in demanding child support from poor men. The state allows men to go to court when child support is first determined, offer tax records showing that they have no income and no assets, and receive a cap of $500 on the total amount they can owe. Men who apply to the court after the arrears have started adding up can get their monthly payments reduced to as little as $25. But reductions are not automatic. They are largely at the discretion of the family court magistrate, and can take months to put in place even when they are granted. Many states do not allow judges leeway, automatically assigning men a child support figure equal to the amount the mother may receive from welfare, or hundreds a month - regardless of ability to pay. That is the case in Texas, where unpaid child support amounts have grown by $2.5 billion in the last four years, to $9.1 billion. In California, where interest is charged on support owed, amounts have grown to $18.4 billion. But even in a system like New York's, so few low-income men know of the court option that many do not go to plead for leniency. Others are leery of dealing with the court system. As a result, child support owed in New York has jumped $800 million in the last five years, and at least 35 percent is owed by men with income of $12,500 or less, according to state officials. Earlier this month Gov. George E. Pataki proposed a tax credit for parents who do not have custody of their children - mostly fathers - and who have incomes under $12,000 and who are current on their child support payments. The idea behind the credit was to reward the roughly 10,000 low-income men who are paying their support and to entice men who have ducked their responsibilities to go to court and work out a deal. But as state officials acknowledge, there are thousands of men who will not benefit because their arrears are formidable. Policies of forgiving or reducing child support arrears are unpopular, even in New York. Governor Pataki's tax credit proposal did include a provision for suspending the collection of child support arrears for men who marry the mother of their children. But Robert Doar, commissioner of the state's Office of Temporary and Disability Assistance, said that the state should not go further in reducing arrears. Mr. Doar said that he doubted that aggressive child support collection is the primary reason that poor fathers leave the work force, noting that many low-income men without child support debt do not work legally. But he said the law had increased collections and reduced out-of-wedlock births, and had enough bend in it for those who really cannot afford to pay. "The system is pretty forgiving to those who make an effort to pay something," Mr. Doar said, "but if they do not even make an effort to start making payments on a regular basis we will pursue child support mechanisms very aggressively. We don't want to send a signal that if you just wait long enough all will be forgiven." Still, many of those who help poor men get back into the work force insist that the courts are not always reliable. Even when men go to court to have their payments reduced, the decisions of judges vary widely, said Bonnie Holtzman, senior manager for job development for the Doe Fund, which operates shelters and work training programs for homeless men. Mr. Gardner, for example, said he had been to court to get his driver's license back on the condition that he started paying his former wife. But the court would not agree to the arrangement, he said, because it could not locate his wife. "In theory you are supposed to be able to go into court and you are supposed to be able to get modifications," Ms. Holtzman said. "But in reality, there are a lot of judges who are sick and tired of dads who haven't paid child support. They don't want to hear you had a drug problem or were in prison. They just want the money and they don't even care if you can't pay it." City Often Took Children Without Consulting Court By Leslie Kaufman For years, child welfare officials in New York City have relied heavily on a section of state law that was meant to be used only in extreme emergencies - the power to remove children from possibly dangerous homes and place them in foster care without first seeking court permission. Although no one keeps precise records, city officials estimate that going back at least through the 1990's, when the number of children in foster care peaked at nearly 50,000, about a third of those taken into city custody came by way of what is known as an emergency removal. Throughout, city officials have defended this policy as the result of its determination to err on the side of caution, to prevent real harm to children at risk and to avoid the kind of awful deaths that have occasionally exposed the child welfare system's persistent problems. But the use of emergency removals has also periodically earned the city sharp criticism. In 1999, most notably, a federal court chastised the city for too often violating the due process rights of families and for needlessly traumatizing children by removing them without warning from the only homes they had ever known. In fact, in deciding a lawsuit brought by a family against the city, the United States Court of Appeals for the Second Circuit effectively put the city on notice: Emergency removals were only for cases where the life and health of the child was in imminent danger. The city, though, stood fast. City lawyers reassured top officials at the Administration for Children's Services that their workers should continue to use their judgment in making emergency removals, and that they would be vigorously defended in court for doing so. "A.C.S. staff,'' a top city lawyer wrote to the agency, "should go about their normal jobs as they always have, secure in the knowledge that the city stands behind them and will back that up.'' As a result, the numbers of children being brought into foster care by this most extreme of measures have remained significant. Since 1999, in part because of the city's desire to keep families together whenever possible, the total number of children entering foster care has dropped drastically. But the percentage of those placed through emergency removals remains very high. From Jan. 1 to Sept. 30, the city's child welfare agency says it put 2,651 children in foster care because of worries over their safety and welfare. Of those children, 54 percent were placed without a court order. Such statistics inflame the city's critics. "It shows clear and deliberate indifference by city officials to the rights of children and to the authority of the federal court,'' said David J. Lansner, who was one of the lawyers who sued the city in federal court in 1999. But some lawyers who represent children in foster care and their parents said a powerful ruling made by the state's highest court on Tuesday had given them new ammunition to again take on the city over the practice of emergency removals. The decision by the Court of Appeals, which laid out the conditions under which children living in homes with domestic violence can be placed in foster care, dealt at some length with the question of emergency removals, and when they might be legally permissible. "Emergency removal is appropriate where the danger is so immediate, so urgent that the child's life or safety will be at risk,'' the court wrote. It added that it thought such circumstances would be "rare.'' Karen Freedman, a lawyer involved in the case that prompted the ruling, said such a standard could and should be applied much more widely. "Emergency removals are the most traumatic to the child,'' she said. "Often they happen with police officers in the middle of the night. And I would say that in a very large portion of the cases I see, they were not warranted.'' City officials, however, maintain that they already follow strict standards for removal and that the 1,400 or so children who have come into foster care through emergency removals so far in 2004 were all serious cases. The court ruling "affirms the practice we are already have,'' said Zeinab Chahine, deputy commissioner for child protection. "If you realize we've investigated 55,000 allegations of abuse and neglect, the same as we did four years ago when there were so many more removals, then you see that these children were really so threatened.'' City officials also point out that the parents who lose their children through an emergency removal have the right to go before a judge and plead their case. Indeed, a judge is required by law to review such cases within three days. But lawyers, Family Court judges and experts who serve on special advisory panels overseeing the city's child welfare system have argued that there is an enormous gulf between what Family Court judges are supposed to do and what really happens. A 2000 special advisory panel report to the city's child welfare agency, for instance, found that in many cases Family Court judges simply rubber-stamped decisions to remove children from their families made by caseworkers in the field. Joseph M. Lauria, administrative judge of the city's family courts, rejected that finding. He said that by and large, judges took the time to evaluate seriously the city's arguments for removing children. But Judge Lauria did acknowledge one criticism of the Family Court system as it pertained to emergency removals. Many families agree to delay an immediate hearing to challenge the city's decision to take their child because they often have little time to meet and confer with the lawyers assigned to help them in their cases. Agreeing to postpone a hearing, though, has serious consequences, lawyers, judges and court administrators concede. Because of the Family Court's extraordinarily large caseload, it can take weeks or months for a family to get to ask a judge to return a child from foster care. "Once a child is in care, the chances they will stay there are great because of the structural way the Family Court system works,'' said Liberty Aldrich, director of the domestic violence and family court program at the Center for Court Innovation, the independent research arm of the state's unified court system.
Court Limits Removing Child By Leslie Kaufman New York State's highest court ruled yesterday that child welfare authorities cannot take children from parents and place them in foster care merely because they have been exposed to domestic abuse at home. The court formalized specific standards for removing children from homes where domestic abuse occurs, requiring that authorities exhaust alternatives and insisting that the possible threat to the child's health or welfare be imminent. The seven-member New York State Court of Appeals, in a unanimous decision, said it simply was not acceptable to take children out of their homes solely because they had seen the mother being beaten, suggesting that it would unfairly punish innocent women and even harm the children themselves. Instead, it said the authorities would have to show that the mother was indifferent to the psychological harm that repeated exposure to beatings caused the child in order to justify asking the courts to consider a removal. Further, it ruled that removing children from such homes without prior court approval - emergency actions that a federal court found the city had used for years - should be contemplated only in the rarest of instances. City child welfare officials called yesterday's ruling thoughtful, but said it would have little effect on day-to-day practice. John B. Mattingly, the city's commissioner for children's services, said the city stuck by the argument it had made in federal court - that its practice for dealing with children in violent households was already "nuanced and very sound," and already met the standards set by the court. City officials said they regarded the court's determination that, at least in some domestic violence cases, emotional trauma could be severe enough to warrant removal of children as a validation of the city's position. But some child welfare experts, as well as many lawyers with experience in the state's Family Court system, quickly predicted that the ruling could have profound implications for how the city handles the full range of child welfare cases, even those not directly involving domestic violence. They said that the court's standard for when children can be taken into foster care, as laid out in its decision, might be applied in a wide array of other instances. In particular, they pointed to language in the ruling saying that child welfare officials would have to balance the risk of leaving children in potentially dangerous homes with the possible trauma caused by being separated from their parents. Many said it was the first time such a standard had been spelled out by a court. "I definitely think this will go beyond the context of domestic violence," said Karen Freedman, executive director of Lawyers for Children, a local nonprofit group that represents children in foster care. A spokesman for the Court of Appeals would not comment on whether the ruling might be applied in cases not involving domestic violence. The ruling, written by Chief Judge Judith S. Kaye, grew out of a federal class action suit, Nicholson v. Scoppetta, that has challenged the city's practice of removing children from homes where there is domestic violence. A district court found in 2002 that the city, by placing children in foster care, routinely violated the rights of mothers whose only crime had been to be beaten by their husband or lover. Judge Jack B. Weinstein wrote that the city's failure to train its child welfare caseworkers in domestic violence matters, and the inappropriate placements in foster care that resulted, amounted to "widespread and unnecessary cruelty by agencies of the city." The city appealed to the United States Court of Appeals for the Second Circuit. Before ruling, the circuit court asked the state's top court to clarify New York law on removing children from possibly dangerous homes, especially as it pertained to witnessing domestic violence. The question of how to deal with children in homes where domestic violence exists has bedeviled experts, social workers and city officials for years. And the Court of Appeals decision broadly acknowledged that caring for children who live in homes with domestic violence is fraught with perils; such homes are extremely volatile and children in such homes can wind up being killed. But in yesterday's decision, the court spelled out what child welfare workers and the state's family courts must do in deciding whether to remove children from such homes. In response to the request from the circuit court, the Court of Appeals ruled that a parent's inability to prevent a child from witnessing domestic abuse did not amount to formal neglect, a standard used for taking a child into foster care. To conclude that a mother had been neglectful, the court held, the authorities would have to prove that the mother had failed to exercise a basic level of care in shielding the child as best she could from the scenes of abuse. The court ruled that there could be no "blanket presumption" favoring removing a child who had merely witnessed a parent being abused. The court did say there could be instances in which city officials could seek to remove a child from an abusive household. But it listed specific stages that would have to be followed before the removal was allowed, including seeking approval of a family court judge. The judge "must do more than identify the existence of risk of serious harm," the decision said, adding that the court "must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interest." "Additionally, the court must specifically consider whether imminent risk to the child might be eliminated by other means, such as issuing a temporary order of protection or providing security services to the victim." As for the city, the court said, it could remove a child without a court order only in circumstances so dire they were hard to imagine. "While we cannot say, for all future time, that the possibility can never exist, in the case of emotional injury caused by witnessing domestic violence," the court wrote, "it must be a rare circumstance." Lawyers who represent children in foster cases said that they would use the court's language dealing with emergency removals to mount challenges in cases not involving domestic violence where children had been removed. Of the 2,651 child removals the city says it did in the first nine months of the year, 54 percent were done on an emergency basis without a court order, something the lawyers say they would like to stop. "It is now routine practice to do emergency field removals," said Ms. Freedman, "and that practice needs to change to be consistent with this ruling." Now that the Court of Appeals has answered its inquiries, the Second Circuit is expected to swiftly formulate its own decision on the federal lawsuit. Potentially, the court could find a constitutional violation in New York's practices that would immediately affect cases involving domestic violence in other states, including Vermont and Connecticut. But Jill Zuccardy, a lawyer involved in the suit against the city, said progress for victims of domestic violence and their children had already been achieved. She said the federal lawsuit, and yesterday's state ruling, amounted to a wake-up call for child welfare agencies across the country. "It says you'd better listen to domestic violence agencies or you will wind up being sued," she said. |
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A Feast
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