Limits on recording child cellphone

It used to be that parents had the authority to act on behalf of their underage kids. Now they can be second-guessed by judges who might have other opinions about the child's best interests.

The NY Daily News reports:

Parents can legally eavesdrop on young children if they reasonably believe it would be in the child's best interest, the state's highest court ruled Tuesday, establishing an exception to New York law against wiretaps without the consent of at least one person on a call.

The 4-3 ruling by the Court of Appeals involved a cellphone recording of a man threatening to beat the 5-year-old son of his live-in girlfriend. The boy's father recorded the conversation.

"The father had a good faith, objectively reasonable basis to believe that it was necessary for the welfare of his son to record the violent conversation he found himself listening to," Judge Eugene Fahey wrote for the majority.

He cautioned that the ruling shouldn't be interpreted as a way to avoid criminal liability for wiretaps "when a parent acts in bad faith."

The live-in boyfriend, Anthony Badalamenti, was later convicted of child endangerment, assault and weapon possession. His attorney challenged the tape as inadmissible evidence from illegal eavesdropping.

Fahey cautioned that courts must consider the age and maturity of the child in considering parental eavesdropping. He didn't specify an age.

A key question "is whether the child is capable of formulating well-reasoned judgments of his or her own," he wrote.

So I guess a New Yorker can eavesdrop on a 5-year-old who is being threatened with a beating. In any other case, I have no idea.

I think that it is crazy that a father has to make a legalistic best-interests analysis to record his 5-year-old son in a potentially dangerous situation. But that is the society we now live in, and the dad only won by a 4-3 vote in a NY appeals court.

Free speech: I'm gonna get you

I am all in favor of holding public officials accountable for how they do their jobs, but sometimes there is a fine line between exercising one's civic responsibility and saying something that someone else might perceive as a threat. I have posted about the case of Dan Brewington, who spent a couple of years in prison before being largely exonerated. Here is another case.

A man was being prosecuted for some crime, and he got upset when his own lawyer said that she uncovered incriminating evidence that she was giving to the prosecution. He had good reason to be upset, as it is not the job of his defense lawyer to go fishing for incriminating evidence. He must have gotten even more upset when she called police, pressed charges for threatening her, and got him convicted and sentenced to 3 years in prison.

From an Illinois appeals court decision:

On the record before us, we do not see how it would be possible for any rational trier of fact to infer, beyond a reasonable doubt, that when defendant told Lacy, “‘I’m gonna get you,’“ he meant violent retribution as opposed to these forms of nonviolent retribution — one of which he had just got done discussing with her. In the absence of any evidence that could justify a finding, beyond a reasonable doubt, that defendant’s threat was a “true threat,” we reverse his conviction on the ground that it violates the first amendment, made applicable to the states by the fourteenth amendment.

So you are entirely within your Constitutional rights to say “I’m gonna get you“ if you intended to hold someone accountable in some lawful way. But you might spend some time in jail before you get the attention of a sympathetic judge.

My suggestion is to say something like "I'm gonna hold you accountable for this" or something like that. But maybe even that is dangerous when dealing with backstabbing govt agents who have friends who are prosecutors and judges.

More on forced paternity

I mentioned an Illinois case of forced paternity via IVF. Robert Franklin attacks the decision here and http://www.nationalparentsorganization.org/blog/22450-szafranski-part-two-a-court-ruling-in-search-of-law-to-support-it.

The whole IVF (ie, ART, test tube baby) industry is based on consenting adults signing binding contracts regarding the creation and disposition of zygotes. This decision says that a judge can override those written contract based on his perceptions of pre-contract intentions and post-contract needs.

This is just another example of judges choosing to micro-manage people's lives in the most far-reaching ways.

Here is a news account:

Jacob Szafranski will ask the Illinois Supreme Court to overturn their landmark decision granting his ex-girlfriend Karla Dunston custody of their frozen embryos. Dunston, 43, of Chicago, froze the three embryos five years ago, and an Illinois appellate court awarded her custody Friday despite objections from Szafranski, 33, who says the decision amounts to forced procreation.

Dunston, a physician, was diagnosed with lymphoma in 2010. Worried that chemotherapy would make her infertile, she asked Szafranski, with whom she'd just begun a relationship, to donate his sperm to create the embryos. Their conversation took place on the phone, and he agreed, Dunston testified. Both signed an informed consent form with a fertility lab before Dunston's eggs were harvested. They broke up months later, and Szafranski changed his mind about the frozen embryos.

"I don't think anyone should ever have their right to decide when and how they become a parent decided for them, and this is exactly what this is doing," Szafranski told WMAQ-TV, Chicago, Friday.

Dunston, whose cancer is now in remission, doesn't want money or support from Szafranski, her attorney told WMAQ. But the three embryos represent what her attorney, Abram Moore, said is her "last chance to have children that share her genetic material."

She is a 43-year-old physician. Cancer or no cancer, she had to know that the optimal time for having babies was about 20 years ago.

She also had to know that a relationship from a casual phone call to a man 10 years younger was not going anywhere. If she wanted a sperm donor, then I am sure she knows how to get one. They are not that expensive.

Update: A reader points out a similar California case, in the news today:

Stephen Findley and Mimi Lee were quite a couple. He was a Harvard-educated executive at a Bay Area global wealth management firm, worth millions. She studied piano at Julliard, earned degrees from Harvard and became a doctor specializing in neuroscience.

But on the eve of their September 2010 wedding, Lee was diagnosed with cancer, casting a cloud over their dreams of having children. With aggressive treatment expected to render Lee infertile, the couple rushed to UCSF's fertility center, where five of Lee's embryos -- fertilized by Findley -- were cryogenically frozen and preserved for a possible future with offspring.

Now, the couple is in the midst of a bitter divorce -- and those embryos, still stored at UCSF, are at the heart of an unprecedented legal battle that could determine how California deals with such conflicts as fertility technology becomes an increasingly common part of everyday life.

The drama is expected to unfold this week in San Francisco Superior Court, where a judge is conducting a trial set to begin Monday that pits Findley's wish to have the embryos destroyed against Lee's quest to preserve them as her only way to bear a child.

I heard this on the radio this morning, but I assumed that it was another similar case, the Sofía Vergara Nick Loeb case, on which I commented before.

If the moms-to-be win any of these cases, it will complicate the work of the IVF clinics, because then they can no longer rely on the written contracts for authority over the zygotes. I suppose every zygote could get a guardian ad litem to get a court order for whose custody would be in the BIOTCh, possibly after a psychological evaluation.

Okay, I am exaggerating a little bit, but legal uncertainty can screw up the industry. I understand that it is nearly impossible to get a sperm donor in England, because laws have retroactively abolished anonymity.

A comment says:

Legally he would be obligated to pay support for the children even if she signs an agreement not to seek support. The right to support belongs to the children, not her. She can't waive their rights, because the future is unpredictable and no one knows what their future needs might be. If she dies or becomes incapacitated or ends up on welfare, he can be compelled to pay support. If any of the children are disabled or need special and highly expensive care, he can be made to contribute. So what he has going isn't just revenge. It is the potential liability for years of support.

That is true, except that it may be possible, in a separation action, to convince a judge that the man is effectively just a sperm donor, and terminate his parental rights and responsibilities. But there is no guarantee that the judge will do it, and he may say that having a legal father is in the BIOTCh.

Gay marriage is based on therapy

The US Supreme Court decision in favor of same-sex marriage was quite different from all the other court decisions in its reasoning. The others had long discussions of the state's compelling interest, or the social science research, or whether laws regarding sex or sex orientation deserve strict scrutiny, or whether gays and lesbians should be a protected class, or whether marriage laws were driven by anti-gay animus. The Kennedy opinion drops all of that nonsense.

The Supreme Court decided that marriage laws must be changed in order to force others to give equal dignity to gays and lesbians. This essay explains how it is all about feelings:

The argument in favour of gay marriage is based on therapy. It is based on an approach that seeks to reorder public policy in line with the subjective desires of individuals. This approach is profound because it talks a language alien to traditional public-policy formation.

The modern therapeutic discourse has three key features: it focuses on personal want; it sees individuals as vulnerable; and it is underpinned by emotional appeals. All of these features are at the forefront of the Supreme Court ruling.

Personal want

The first element of the therapeutic discourse, a focus on personal want, is apparent in the concluding paragraph of the Supreme Court’s judgement that made much of the petitioners’ case: ‘Their plea is that they do respect [marriage], respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilisation’s oldest institutions.’

The focus of this concluding passage is on personal want, hence the language of ‘their plea’ and ‘their hope’. Or as Chief Justice Roberts put it in his dissent: ‘The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to.’ Justice Alito, who also dissented, observed how the majority’s understanding of marriage ‘focuses almost entirely on the happiness of persons who choose to marry’. Within a therapeutic discourse, ‘I want’ can readily be translated into a legal right ‘to have’.

Individuals are vulnerable

However, a focus on personal want will only be persuasive if the individuals involved are portrayed as vulnerable. This second element of the therapeutic discourse is hinted at in the majority’s concluding paragraph, quoted above, which describes gays and lesbians as ‘condemned to live in loneliness’ if denied the right to marry.

The Supreme Court developed the theme of vulnerability by focusing on children. Children are always a good constituency for recognising therapeutic claims, because, in certain contexts, juveniles do have objective needs. So the majority claimed that the ‘marriage laws at issue here thus harm and humiliate the children of same-sex couples’. Without reform ‘children [would] suffer the stigma of knowing their families are somehow lesser’, apparently. By associating ‘children’ with the words ‘harm’, ‘humiliate’, ‘suffer’ and ‘stigma’, the majority were able to ally a child’s supposed vulnerability to the cause of gay marriage. This role was recognised by President Obama when he declared the court’s decision a victory for America. He said the judgement was ‘a victory for gay and lesbian couples… [and] for their children, whose families will now be recognised as equal to any other’.

Emotion

At a rational level, none of the above arguments makes much sense. ‘I want’ does not normally, in the public-policy context, equate to a legal right ‘to have’; gay and lesbian couples denied a right to marry are not ‘condemned to live in loneliness’; and the children of same-sex couples are neither harmed and humiliated nor stigmatised because their parents are not permitted to marry. But then the therapeutic discourse is not grounded in reason. Of course, the third element of this discourse, its emotional appeal, enables logical weaknesses to be overlooked.

This summarizes many things wrong with our society.

As goofy as this decision is, it is now a binding precedent on the federal courts. Maybe the men's rights activists should try using arguments like this. Don't fathers deserve equal dignity also?

The whole idea is crazy, that one man's opinion on the Supreme Court can cause "gay and lesbian couples… [and] for their children, whose families will now be recognised as equal to any other". No one gets any dignity from a court order.

I will leave it to others to make these arguments. I do not believe in therapism, or any of this nonsense.

Court orders Moslem visitation to Christian

Often family courts take the position that divorcing parents must agree on all child-related matters, and judges send them to psychologists to force agreement. Or the judges force agreement.

This case is the opposite. The judge forced a disagreement on religion, and the Mass. supreme court upheld it.

UCLA law professor Eugene Volokh writes:

Father and mother split when their daughter Odetta (a pseudonym) was an infant. Father was born in West Africa, and was apparently a nonpracticing Muslim; mother was born in Haiti, and was a Seventh Day Adventist. “Upon her birth, Odetta was given a Muslim name, and the family took part in a ceremony in which she was formally recognized into the Muslim faith.”

The daughter lived with the mother, but the father helped raise the daughter, with his brother’s help, until the daughter was age three. During that time, “Odetta attended the same mosque as the paternal uncle,” and “sporadically attended a Christian church with her mother and, on occasion, with her father as well.”

Then the father murdered the mother. The mother’s Adventist family got custody. Should the father’s Muslim brother get visitation, on the theory that continued exposure “to both parents’ religions and cultures” “be in [the] child’s best interests”? (Odetta is now almost 10; the father supported the paternal uncle’s petition.)

Yes, said the trial court and Friday the Massachusetts Appellate Court affirmed, in Adoption of Odetta. An excerpt from the trial court’s decision:

Odetta’s best interests will be served by allowing “her to have some contact with her father’s family, the tenets and practices of Islam which are part of her family heritage and which the adoptive family, who are not Islamic, cannot or will not provide for her.”

Here the judge is forcing disagreement on religion.

There are many things wrong with this. Why are we even letting all these people from Haiti and West Africa into the country? We should prefer people from less murderous cultures.

No judge should be interjecting himself into a religious dispute. I thought that the First Amendment prohibited that.

The case is also a gross attack on parental rights. It gives a non-parent court-ordered visitation for the express purpose of undermining the legal parent's Christian values. This is a recipe for disaster.

I am afraid that this is a sign of many bad things to come. Parents will no longer have the right to teach their values to their kids. If the authorities do not like what you are teaching, some judge will order visitation with someone having the opposite view. The only justification with be the BIOTCh. And that can be just an opinion, not backed by any evidence. In this case, there is no evidence that an Adventist-Islam combination is good for 10yo girls.

Massachusetts finds right to spank

Eugene Volokh reports:

Parents have a right to reasonably spank their children, says Massachusetts high court

Such a right has been recognized throughout American history, as a defense against a charge of battery (under criminal law or tort law). In this case, the state trial judge seemed to conclude no such right existed, at least in public, saying,

If you’re in public with your kids, it’s not appropriate to discipline in this fashion.

But yesterday, the Massachusetts high court unanimously reversed, in Commonwealth v. Dorvil, concluding that there was indeed a common-law right to spank:

[A] parent or guardian may not be subjected to criminal liability for the use of force against a minor child under the care and supervision of the parent or guardian, provided that (1) the force used against the minor child is reasonable; (2) the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor’s misconduct; and (3) the force used neither causes, nor creates a substantial risk of causing, physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress….

Part of why this dad was prosecuted was because he appeared to be angry. The incident was quite trivial, but many so-called experts say that discipline should not be done in anger.

As far as I know, there is no legal doctrine that you are certain rights as long as you are not angry.

If you spank in public, you are always subject to some jerk calling 911 just because he or she does not approve of spanking.

I am skeptical that observers or cops can even tell whether a parent is angry. Often a parent pretends to be angry as a way of impressing seriousness on the child.

People who are truly angry can make bad judgments, but the law should apply to what they do, not their emotional states.

Justice Kennedy's silly third argument

You are probably sick of hearing commentary on the new Supreme Court same-sex marriage mandate, but I want to point out that the opinions completely ignore the downstream consequences in family court: divorce, alimony, child custody disputes, child support, paternity disputes, etc.

In the majority opinion, Justice Kennedy gives three arguments:

A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See Pierce v. Society of Sisters, 268 U. S. 510 (1925); Meyer, 262 U. S., at 399. The Court has recognized these connections by describing the varied rights as a unified whole: “[T]he right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Due Process Clause.” Zablocki, 434 U. S., at 384 (quoting Meyer, supra, at 399). Under the laws of the several States, some of marriage’s protections for children and families are material. But marriage also confers more profound benefits. By giving recognition and legal structure to their parents’ relationship, marriage allows children “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Windsor, supra, at ___ (slip op., at 23). Marriage also affords the permanency and stability important to children’s best interests. See Brief for Scholars of the Constitutional Rights of Children as Amici Curiae 22–27.

As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples. See Brief for Gary J. Gates as Amicus Curiae 4. Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents, see id., at 5. This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families.
Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents,relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___ (slip op., at 23).

I don't see how anyone can believe any of this nonsense if he has spent a couple of hours in family court. The idea that this sort of abstract reasoning can be the interest of the kids is craziness.

Suppose your mom divorces your kids, wins sole custody in family court, and moves in with a lesbian. How is a lesbian marriage going to save the kids from harm and humiliation? How is it going to allow children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.?

More importantly, there are millions of good dads who are reduced to supervised visitation of their own kids, just because someone made an unverified allegation and some psychologist cannot make up his mind, or similar such reasoning. Who is going to shelter them from their humiliation?

Why is the desires of a few thousand gays and lesbians getting the Supreme Court to try to improve their dignity, but millions of alienated parents never get any attention?

Kennedy concludes:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Again, if he spent a day in family court he would see that other laws have reduced marriage to a financial arrangement that either can terminate at any time. Child custody and support have been removed, and replaced with the most leftist socialist scheme.

This paragraph might make more sense as one striking down no-fault divorce, or child support.

Love? Fidelity? Devotion? Family law has backed out of these concepts long ago. Kennedy acts as if marriage is a lifelong commitment. Legally, it is not.

And unmarried are "condemned to live in loneliness"? That is maybe the weirdest phrase. Earlier Kennedy says:

Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.

Really? Are there people who say, "I got married because I was lonely and I had a fear that I would call out and and find that no one was there and I wanted someone to care for me for the rest of my life."?

There are many people who achieve lifelong companionship and devotion, but not because of any legally binding document. Kennedy seems to be living in some imaginary universe with little relation to how marriage works today in family courts. Marriage is not even that important anymore. See the chart at this site:

Looking to more recent history, there has been a steady decline in marriage rates (and consequently, divorce rates) since the 1980s, with no sign of slowing down. In fact, when taking population into account, marriage rates in the U.S. are now at the lowest they’ve ever been in recorded U.S. history — even lower than during The Great Depression!

With lower marriage rates, that's a lot of people condemned to a life of loneliness.

Free speech to rap about harm to ex-wife

I mentioned this case in June and Oct. 2014, and now we have a decision:

The Supreme Court has reversed the conviction of a Pennsylvania man who said violent messages he posted on Facebook were therapeutic, not true threats. Anthony Elonis was arrested by the FBI, which had been monitoring his posts.

At issue is the standard by which a lower court viewed rap lyrics and messages from Elonis, who often posted graphically violent language along with disclaimers that he was merely asserting his First Amendment rights. ...

Here's one example of Elonis' Facebook postings, quoted by the Supreme Court on Monday:

"Fold up your [protection-from-abuse order] and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order that was improperly granted in the first place
Me thinks the Judge needs an education on true threat jurisprudence
And prison time'll add zeros to my settlement . . .
And if worse comes to worse
I've got enough explosives
to take care of the State Police and the Sheriff 's Department."

This seems much more threatening that of fellow angry dad Dan Brewington, who served 3 years in prison for blogging about holding public officials accountable.

The decision did not resolve some of the technical legal issues.

I do not approve of threatening to kill people, but rap lyrics on Facebook are unlikely to be followed by violence, AFAIK.

I am glad to see the Supreme Court side with free speech. Because prosecutors have shown their willingness to quote opinions out of context to intimidate citizens into silence, I want broader free speech protections.

Baby Veronica dad speaks out

I posted about Baby Veronica, and the London Daily Mail reports:

A father who lost custody of his biological daughter after a controversial Supreme Court ruling is speaking out for the first time since the incident.

Dusten Brown has remained silent since 2013 when he lost his fight to keep custody of Baby Veronica, the daughter his ex gave up for adoption without his knowledge while he was serving in Iraq.

Now he has come forward to talk about the need for adoption reform.

Brown, who recently welcomed a baby boy with his wife Robin, said in a statement; 'Nothing will ever replace her presence in our home. Veronica has a new little brother that we hope she will meet one day and have a relationship with.'

A Cherokee Nation citizen, Brown had used the Indian Child Welfare Act to try to regain custody of Veronica.

Brown also commented on a proposed federal regulation set to end adoption disputes like the one he went through with Veronica,

'Hopefully, these regulations keep other Indian children, families and tribes from suffering the heartbreak that we experienced over the last five and a half years,' said Brown according to Tulsa World.

Men are sometimes deluded into thinking that if they get a full airing of their case before a sufficiently high authority, then no one could endorse the system.

This guy got his case all the way to the US Supreme Court, but still had to give up his biological daughter to adoptive parents because of a twisted anti-parent reading of the law, and a peculiar BIOTCh analysis.

Some day that girl will learn that she was reared by child stealers.

Safe to leave kid in car

The NJ supreme court has agreed to hear a case where a mom was accused of doing something unsafe, but the court refused to look at safety evidence. The Free Range Mom reports:

A mom left her son in the car for what everyone agrees was under 10 minutes to run an errand. The toddler slept through the whole “ordeal,” but the mom was found guilty of neglect, even upon appeal, when the three appellate judges ruled that they didn’t have to list the “parade of horribles” that COULD have happened to the child.
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Which is, of course, fantasy as policy again: Just because the judges could imagine a kidnapping, or carjacking, or a big bad wolf, doesn’t mean that these are at all likely. They aren’t. As the Washington Post just wrote: There’s never been a safer time to be a kid in America. What’s more, my own book cites the stat that if for some reason you WANTED your kid to be abducted by a stranger, the amount of time you’d have to leave him outside, unattended, for this to be statistically likely to happen is 600,000 years.

A lawyer explains in a newspaper op-ed:

Child-safety orthodoxy ignores the fact that protecting your child from one risk almost always exposes him to another. Keeping children safely indoors promotes inactivity and obesity. Taking them with you to the store, instead of leaving them home alone, exposes them to accidents, the No. 1 cause of death of American children. “Free-range” parents argue that coddling and overprotecting children interferes with development and their ability to become responsible and self-sufficient.

Most disturbing about the New Jersey case, however, is that the court condemned the mother’s action without ever weighing the actual risk of genuine harm. The court ruled the mother wasn’t entitled to present evidence on either the likelihood or severity of harm to the child. The court said the imagined dangers spoke for themselves: “We need not describe at any length the parade of horribles that could have attended (this) neglect.”

Judges, social workers, and psychologists talk about safety a lot, but they almost never consider realistic data on what is safe or risky. Safety is just a buzzword for their superstitions and prejudices.

This NJ case is unusual because the appeals court considered behavior that was obviously safe, and claimed that it was unsafe with no evidence required. It was as stupid as saying, "you can tell the defendant is guilty by just looking at him."

I assume that the NJ supreme court will say that some evidence is required, unless the legislature has passed a law against the behavior.

Today has a Cracked article on 5 Things Your Parents Did (They'd Be Arrested For Today). Yes, leaving a kid in a car in one of them, along with letting your kid walk places alone, play outside, hear swearing, and go naked.

Judge ships kid to out-of-state boarding school

Law prof. E. Volokh writes:

Many parents are reluctant to send their children to boarding schools, because they think that spending more time with their children is good for the children (as well as good for the parent). But what if the parents have split up, and one wants to send the child to boarding school and the other doesn’t? That’s the subject of an interesting decision from the Arizona Court of Appeals last week, in Baker v. Meyer:

The dad persuaded a family court judge to break the shared parenting agreement and send the kid to an out-of-state boarding school. The appeals court reversed, saying that the mom's central concerns were ignored.

There are lawyers who love to gloat about cases like this, because they say that shared parenting can never work unless it is supervised by a judge.

The unfortunate fact is that it is impossible to agree to a binding parenting plan because one side can always break it later if he convinces a meddlesome judge. And that it exactly what happened here, until the appeals court stopped it.

I wish I could say that the appellate decision upheld parental rights, but the judge can just make the same decision anyway, and explain the reasoning a little differently.

One commenter argues that the dad's choice of school is a "better school", and adds:

I have complete respect for parental rights; ...

And I would have a lot more respect for all parties if they would just agree on something and get it out of the court system. They are wasting their time and money.

That said, you are right about one thing; the world would be a better place if I was the dictator. ...

"You side with the judge because of your own opinion about the better school."

I side with no one. My opinion in these matters is always the same- people need to settle their issues. 99.99% of the time, it isn't worth the time and money. It is a waste of the family's resources to bring this before the court, and the only people to benefit are the attorneys. More often than not, it is a continuation of a dysfunctional dynamic- often, the same one that made the divorce. Get over it. Nobody- not you, not the other person, and certainly not the child, wins in family court.

"You are like a medieval serf who cannot imagine life without a king."

I appreciate the sentiment, but I am closer to the King than the serf.

The family court is infested with worms like this guy. He has contempt for parents and likes dictating their lives. He claims to believe that people are better off outside family court, but he strenuously argues for the policies that bring them into court. That is, he wants one parent to be able to break an agreement by appealing to the prejudices of a judge.

If it is really true, as he says, that the child never benefits from these legal actions, then the logical conclusion is for the court to refuse to hear them. The court has no business holding a hearing on which school is better.

Thomas Paine wrote a book in 1776 called Common Sense that convinced the American colonists that they did not need a king. Is there anyone today who can convince Americans that we do not need judges and experts micro-managing our families? Can that lawyer quoted above be convinced?

Hillary Clinton is announcing her candidacy for President, and her most famous book is It Takes a Village. It advocated government control of child rearing, and an end to family autonomy. Barack Obama campaigned on The Life Of Julia, and incorrect portrayal of government dependence and male elimination. No self-respecting man would vote for either one of these creeps.

We had more common sense in 1776.

What family court judges do

A legal blog drew this comment:

This means that while our legislatures pass one set of rules and regulations for citizens, family court judges are free to just make up their own rules that have nothing to do with law or reason.

That's what family court judges do. It doesn't have anything to do with guns per se. Could be religion or schooling or health care or parental dating or anything else you can think of. These are decisions in equity, and the judges frequently apply no particular set of principles beyond their own whims.

That's right, and it is completely opposite what 3 millennia of legal theory says judges are supposed to do.

The case involved a dad who won sole custody of a child, but then was ordered to get rid of his guns until the kid is 18yo. The appeals knocked out the gun condition:

In its letter opinion, the trial court noted that extensive testimony was given regarding Kurt’s collection of guns. It acknowledged that Kurt, Andrea, and both of Andrea’s parents testified that the guns were kept in a locked safe in a closet located behind a locked door to Kurt’s bedroom. ... Nevertheless, the court went on to find that it was not in the child’s best interests to have multiple guns and ammunition in a home.

Based upon the evidence presented at trial, as well as the trial court’s own specific findings, it was not reasonable for the court to place such a restriction on Kurt’s lawful possession of ammunition or guns without any evidence of danger to the child. Accordingly, we reverse the trial court’s ruling on this issue …

Of course the family court judge could still retaliate by taking away his custody.

Why men vanished from grade schools

You don't see many men working for elementary schools anymore. All men are suspected child abusers. The schools don't want to hire men, and the men don't like being suspects all the time.

Here is a case of an elementary school counselor and child behavioral specialist whose career was ruined by a false accusation. He tried to take precautions; he never had a child in his office with the door closed. He would only see a kid with the door open and everyone in plain view of a secretary and other passersby.

Nevertheless some 7yo kid accused him of repeated anal sodomy. Based on that, CPS made a finding of substantiated abuse. And the police arrested him after a 3-month investigation. This was despite the fact that the kid told inconsistent stories, the medical exam was negative, and there was no corroborating evidence of any kind. They believed the kid and were over-eager to prevent abuse.

Does anyone seriously think that this ever happens? If it did, the kid could walk out the door, scream, get a medial exam, and the man would spend the rest of his life in prison. At it would be a short life, because he would get killed in prison.

You might say, "Why would a kid ever invent a story like that if it were not true?" He did not, originally. He had a minor complaint about being touched with his clothes on. It was only after CPS interrogation and manipulation that the story escalated.

He somehow got it the case to a federal appeals court, where he finally found a judge with some common sense:

Indeed, it appears that no federal court of appeals has ever found probable cause based on a child’s allegations absent some other evidence to corroborate the child’s story…. Indeed, some cases have expressed heightened concerns about the reliability of child-witnesses’ allegations when, as here, there are other indicia of unreliability.
We are, of course, all too aware of the difficulties facing police investigations into child sexual abuse. We recognize that a child-victim’s testimony often plays an important role in prosecuting the perpetrators of this serious and disturbing crime. Nevertheless, we conclude that J.S.’s young age is a factor bearing on the reliability of his accusations and that Rigney (and the district court) should have given it appropriate weight.
Second, we note that the implausibility of a witness’s accusations is also germane to determining the existence of probable cause…. Without question, J.S.’s allegations against Wesley were facially implausible.

Indeed, it appears that no federal court of appeals has ever found probable cause based on a child’s allegations absent some other evidence to corroborate the child’s story…. Indeed, some cases have expressed heightened concerns about the reliability of child-witnesses’ allegations when, as here, there are other indicia of unreliability.
We are, of course, all too aware of the difficulties facing police investigations into child sexual abuse. We recognize that a child-victim’s testimony often plays an important role in prosecuting the perpetrators of this serious and disturbing crime. Nevertheless, we conclude that J.S.’s young age is a factor bearing on the reliability of his accusations and that Rigney (and the district court) should have given it appropriate weight.
Second, we note that the implausibility of a witness’s accusations is also germane to determining the existence of probable cause…. Without question, J.S.’s allegations against Wesley were facially implausible.

I conclude that there are horrible systemic problems with the authorities on child abuse. It has been well known for decades how easily kids can be manipulated into saying bogus things like this. I must have watched 5 TV documentaries on the subject. If CPS were at all fair or honest, they would have training programs in place to prevent this sort of thing from happening.

But I am afraid that is not the conclusion that most people will draw. This case will not even make the news. People will just assume that an isolated agent used bad judgment, or that more money needs to be spent on CPS and police, or that such agressive prosecution is necessary to root out the real abusers, or even that the man probably really was an abuser who just hasn't been caught in the act yet. They may even say that only the rights of the kids should be considered, or that there must be something wrong with a man who wants to work in an elementary school anyway.

I have posted many of these stories, and it is useless. If these don't convince you that the system is broken, and that there is a CPS war on the innocent, then nothing will.

3 bad trends in the British nanny state

The UK is way ahead of us with the nanny state, and with various leftoid forces that are ruining the country. The London Telegraph explains:

Among the many serious puzzles raised by the peculiar workings of our “child protection” system, three continually recur. One is a huge increase in the number of children now being removed from their parents on grounds of “emotional abuse”. This has been by far the biggest contributor to the explosion in the numbers of children taken into care since the “Baby P” scandal in 2008, rising by 92 per cent. And most have not been for actual emotional abuse but simply for the possible “risk” of such abuse happening in the future. A second charge against parents which comes up too often is their failure to “co-operate with professionals”, such as the social workers who are tearing their family apart. A third, used to justify 90 per cent of child removals, is the role of those “independent” psychologists hired by social workers to report that the parents suffer from such vague conditions as “borderline personality disorder”, or “narcissism”, leading them to “put their own interests above those of the children”.

Yes, those are three horrible anti-parent trends, and an appeal just upheld all three.

Everyone agreed, as an earlier judge found, that the children were “thriving”, that the parents were devoted to them and had done them no harm. But the same psychologist again found the mother not fully fit to look after her boys and said there might therefore be a “risk” of future harm. When the social workers removed the children, relations between them and the father grew so fraught that, when he accused one of them outside a courtroom of lying, and the social worker pushed him, he took a defensive swing at the man’s head and was fined £430 for assault. The father then refused to allow his baby to go through a traditional temple naming ceremony because, in defiance of Hindu rules, the social workers insisted on being present. ...

Anyway, the father had already abused his children, both by hitting a social worker in his older son’s presence (even though the boy had been yards away at the time), and then by refusing to allow the younger boy to be named.

The social worker probably deserved to be punched. But whether he did or not, punching a social worker should not be consider child abuse.

The way we are going, any sub-optimal behavior will be considered child abuse. If you are rude to a stranger, CPS might claim that you are setting a bad example for your kid, and hence call it child abuse.

It was a mere oversight that this woman had been described in council documents as “Dr”, when she was nothing of the kind.

Yes, here in the USA we have clowns with mail-order degrees that get called "Doctor" by the court.

I used to respect the British system of justice, since we got ours from them. However it is absurd to punish parents for risk of future emotional abuse. That is what CPS did to me. It is arbitrary and capricious. In the British system of centuries ago that still gets taught in American law schools, no such charge is legitimate.

Another problem that we also now have is psychologists claiming that some parents have a problem leading them to “put their own interests above those of the children”. The opposite would be a mental illness. That is, all normal parents put their own interests above those of the children, for some of the time at least. You can't be babying your kid all the time. This is just some stupid psychologist buzz phrase that was invented to blame parents when there is no substantial complaint.

Here are some of the online comments:

FOLLOW THE MONEY:- Judges, Lawyers, Court Guardians, all making their fortunes, carers being paid £400/week for "each" child tax free - more than most families have to feed their entire families'. £5000 for a hired gun Psychiatrist for making a report favourable to the Social Workers.
The so called Child Protection Agency aka the Child Cruelty Agency, labelled in the Daily telegraph Callous, Cruel and Corrupt. They purger themselves in the secret family courts with impunity. The most absurd accusations are made and accepted by judges. Of a case in Enfield which unusually was given publicity; the Judge said that of a dozen accusations made, every accusation was false or misleading. Yet not a single Enfield employee was punished or named.
There is no defence against an accusation of Emotional Abuse or Potential Emotional Abuse, it is a trick learnt in the Witch trials, the accused can not win.
Social Workers are Nazis and re-incarnated Witch Finder Generals as are those who are happy to support and work for them.
It is time for justice and for these people to be named and put in the stocks, their day of judgement is at hand.

My long held view: There is no situation so dire that it cannot be made worse by the intervention of a social worker.

The solution is so simple,so simple ! No child should be taken from a parent unless that parent has been charged and subsequently convicted of a crime against children.Criminal courts replace family courts,innocent until proved guilty and no children ever removed for "risk".
We have laws in uk and those who break them are rightly punished;How can it make any sense if we punish those who do NOT break any laws by removing their children? The President of the family court Sir James Munby recently stated quite rightly that to remove a baby at birth from a mother was the worst punishment that could be given since the abolition of capital punishment ! Who can argue with that?

My Name is Bhupeshkumar Patel
I am the Daddy of Baby no name.
The point you are all missing is these people steal children for a living.

This is disgusting. When can we have the revolution? Who judges the judges?

Aren't we always being told that the English legal system is so much superior than the systems of those dastardly foreigners?
These star chamber like proceedings of the English courts make these claims extremely dubious.

Which is the greater danger to children, 'emotional abuse' or a psychologist?

The rationale of the state -- judge, social workers, psychologists et al -- make perfect sense if one becomes acquainted (as I have recently) with the phenomenon of "collectivism" -- a euphemism for socialism, communism, fascism, et al. Essentially, it is an ideology of totalitarian control, where the state knows best, and the individual is expected to submit willingly and happily to the interests of the group for the betterment of society.

Collectivism is the ideology that has taken hold of our democracies, both here and in America. It has been brought in by stealth, without consulting the electorate, and it functions by coercion. Things such as the taking away of children against the wishes of their parents because the authorities think it best is an example of collectivism in action.

G. Edward Griffin explains it well in laymen's terms in various videos on YouTube, although he is based in America. "Collectivism" is the new tyranny, and the direction our government is taking in Britain, secretly, whilst pretending to advocate democracy and government via elections. Just thought you might like to know .....

Mom is free after murder conviction of son

Cases where a mom murders her own child are especially creepy. Here is a conviction that got reversed:

In a scathing critique of Arizona's criminal justice system, a state appeals court on Thursday ordered the dismissal of murder charges against a woman who spent 22 years on death row for the killing of her 4-year-old son.

The Arizona Court of Appeals leveled harsh criticism against prosecutors over their failure to turn over evidence during Debra Jean Milke's trial about a detective with a long history of misconduct and lying. The court called prosecutors' actions "a severe stain on the Arizona justice system."

A three-judge panel of the appeals court said it agreed with Milke's argument that a retrial would amount to double jeopardy.

They did not prove her innocence. They just showed that the main police witness had credibility problems tainting the trial.

Authorities say Milke dressed her son in his favorite outfit and told him he was going to see Santa Claus at a mall in December 1989. He was then taken into the desert near Phoenix by two men and shot in the back of the head.

Prosecutors claimed Milke's motive was that she didn't want the child anymore and didn't want him to live with his father.

She was convicted in 1990 and sentenced to death. The case rested largely on her purported confession to Phoenix police Detective Armando Saldate, which he did not record. ...

Milke has maintained her innocence and denied she ever confessed to the killing. The two men who led her child to his death in the desert were convicted of murder but refused to testify against Milke. ...

Prosecutors insist Milke is guilty, but their ability to try her again was limited by the fact that Saldate said he wouldn't testify. He fears potential federal charges based on the 9th Circuit's accusations of misconduct.

In December, Superior Court Judge Rosa Mroz granted Saldate's request to assert his Fifth Amendment right, allowing him to refuse to take the stand.

This is weird. Who shoots a 4-year-old, gangster execution style? Who gets a confession without recording it?

Maybe the cop was genuinely convinced that she did it, but confessions need to be recorded. If I were on the jury, I would be very suspicious of an unrecorded confession.

Parents should be given the benefit of the doubt with their own kids. If she is truly innocent, then the prosecutors just double the tragedy when they prosecute. They should only prosecute when they have an airtight case against the parent.

Foster parents do bad things, but that is different, as in this recent Canadian conviction.

Of course this may have never happened if the dad had joint custody in the first place.

Marriage intent, commitment, and animus

The fix is in for same-sex marriage, and most judges seem to have gotten the memo that we are getting it regardless of the law and the voters. But gay law professor Dale Carpenter complains about a judge not on board:

Yet Judge Sutton does not even feel the need to cite a single study to support the view that it’s commitment, not sexual orientation, that matters in relationships and child-rearing. What a remarkable, rather matter-of-fact claim for a court that in the same breath treats constitutional rights as if they were set in stone by men who lived 150 years ago, never to be enforced beyond their narrow understanding by anyone but the very state legislators they distrusted.

The Sixth Circuit fully agrees that the earth has moved under our feet on the subjects of homosexuality, same-sex relationships, and gay parenting. What a shame that it does not honor the framers of the amendment by acknowledging that they might have had the insight to know that their own human understanding might be fallible.

I am pretty sure that those framers knew about homosexuality.

The judge did not cite any studies on homosexual commitment to child-rearing, because they are worthless. People have to say that stuff, or else they will be accused of being bigots.

My concern here is not with the few (less than 1% of the population) who want to have same-sex marriages. I am wondering why this minority gets all the constitutional rights, while millions of fathers cannot see their kids.

There are legitimate social science studies showing that kids do better with dads and joint custody. Those constitutional framers really did believe that parents had rights to their kids. And yet family courts routine deny those rights, and higher courts refuse to hear appeals.

Carpenter's main argument for same-sex marriage is that the laws against it are based on unconstitutional animus. I cannot find the word "animus" in my dictionary. The evidence for animus is usually stories like this:

Tight trousers and other skin-tight clothes are not ‘appropriate’, according to a member of the Jehovah’s Witness governing body.

Anthony Morris III told fellow church members: ‘They are tight all the way down to the ankles, it’s not appropriate, it’s not sound of mind.”

‘The homosexuals that are designing these clothes – they’d like you in tight pants.’

Maybe so, but there is 10x more animus towards fathers.

There is also animus towards moms also. I have heard stories of moms who somehow got on the bad side of some court official, and then got treated like children. There is animus towards homeschoolers or anyone doing anything out of the ordinary like that.

The whole doctrine of Best Interest of the Child (BIOTCh) is just a way for judges to apply their prejudices against those for whom they have animus.

Somehow some tiny percentage of the population has managed to reform all our marriage laws, and not done a thing to support the parental rights of real parents.

Here is an example of animus towards men:

Thousands of people have called on the Home Office to deny a visa to a controversial US “pick-up artist” who holds seminars that critics say teach men sexually abusive and racist tricks to attract women.

Julien Blanc was forced to cut short his Australian tour last week after his visa was cancelled in the wake of protests against his seminars. Police in Victoria confirmed that Blanc and his assistant, who had planned to stay in the country until December, had left. ...

“It is wrong on every level – it is promoting violence against women and girls, it takes advantage of men and it sends a message to survivors of sexual assault that they will not be listened to. To allow someone into the UK who is explicitly promoting these things is abysmal.”

He is just a dating coach. If a woman were giving lessons to women on dating more successfully, no one would take any offense. My local supermarket checkout counter has magazines with dating advice for women. But this guy gives a few flirting tips for men, and they deport him! (The dating seminars are similar to sales seminars. It is hard to see how one is more offensive than the other, as the message is about the same.)

Here is an attack on a Euro space scientist because his shirt is supposedly sexist! He had to apologize and change his shirt. I do not see any gays being deported because they wear tight pants or flowery bowling shirts.

Vote against bad judges

Patricia Bamattre-Manoukian is on the ballot for reelection as a California appeals court judge in San Jose. She is the worst, as reported by the San Jose newspaper:

Even in a district known for rejecting appeals by criminal defendants, Justice Patricia Bamattre-Manoukian stands apart.

In the history of the 6th District Court of Appeal, no justice has defended convictions more consistently. Bamattre-Manoukian votes for reversal only in about 1 percent of the cases she considers, a Mercury News analysis shows. In the opinions she has written, the reversal rate drops below 1 percent. ...

It is not just that Bamattre-Manoukian votes so often for convictions. Repeatedly, her opinions arouse controversy for the way she arrives at her conclusions. ...

I had her on an appeal, and I can personal attest for her being an evil witch, and is unfit to be a judge. I have criticized her here and previously.

I will vote against her. Most of the other judges on the ballot are pretty bad also. If in doubt, just vote against them all.

Unfortunately, judges almost always get re-elected. Rose Bird got kicked out in 1986, but that was possible because she made some high-profile unpopular decisions, and there was an organized campaign by political and business groups against.

New hearsay exception for CPS agents and teachers

The US Supreme Court rarely hears any case related to family law, parents rights, child abuse, or anything like that. It just agreed to hear a case related to CPS powers.

First some background. The 6th Amendment to the US Constitution says:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

In particular, you cannot be convicted on hearsay. If someone claims that you robbed a bank, then the actual witness with first-hand knowledge has to testify at your trial, and answer whatever questions you have about what he saw. A police report is second-hand info, and is considered inadmissible hearsay.

Here is the case:

The U.S. Supreme Court agreed Thursday to hear an appeal from Ohio in a case in which a Cleveland man's conviction for child abuse was overturned.

Prosecutors from Cuyahoga County appealed to the Supreme Court in May after the Ohio Supreme Court ruled against them in October 2013.

The case centers on whether a child's out-of-court statements to a teacher in response to the teacher's questions about potential child abuse qualify as statements subject to the Sixth Amendment's confrontation clause.

The case involved Darius Clark of Cleveland, who was convicted in 2010 of four counts of felonious assault, two counts of child endangering resulting in serious physical harm and two counts of domestic violence.

Prosecutors charged Clark in March 2010, saying he injured his girlfriend's 3-year-old boy and the boy's 22-month-old sister. Authorities were notified after teachers at the boy's day school saw his injuries and questioned him about who had hurt him.

At trial in Cuyahoga County Common Pleas Court, the young boy was found incompetent to testify, but the court permitted his statements to be admitted through testimony of the teachers.

Clark ultimately was sentenced to 28 years in prison.

The Ohio 8th District Court of Appeals overturned Clark's conviction, holding that the use of the boy's statements violated Clark's right to confront his accusers.

The Ohio Supreme Court, in a 4-3 ruling, agreed.

That seems right to me. If the only evidence is some teacher hearsay about the incoherent babbling of a 3yo child, then the man should go free.

In most real cases, there would be other evidence as well. Such as medical reports on the injuries, and testimony that the kid was in his care.

In recent years, there has been pressure to make exceptions to the 6A right. To make domestic violence convictions easier, 911 tapes have been admitted on the grounds that they are "nontestimonial", even tho they are hearsay. Apparently there are now at least 4 votes on the US Supreme Court to create another exception:

The 4-3 decision by the state supreme court prompted a sharp dissent from Chief Justice Maureen O’Connor who wrote that “the very people who have the expertise and opportunity to recognize child abuse are now prohibited in Ohio from testifying about any out-of-court statements that a child makes about abuse or neglect when the child, for whatever reason, is unable to testify,” adding that children in Ohio “will go unprotected.”

Occasionally a witness gets murdered and a gangster goes free. No 6A exception for that. But now an exception for teachers to give hearsay because they are child abuse experts? That's crazy. This is what we get from women judges.

I had a CPS child abuse expert testify at my trial that I repeatedly ran my car over a sleeping dog, without injuring the dog. No, she never saw it. No one ever saw it because it is impossible. Dogs don't do that. But she claimed to have confirmed it by asking a child.

She writes:

Child abusers often evade prosecution ... Children in Ohio will go unprotected. ... I can only hope that four justices [of the US Supreme Court] vote to accept that invitation [to reverse the Ohio decision, and allow kindergarten teacher hearsay].

She now has those 4 votes to consider the appeal, and I am all in favor of locking up child abusers, but I really don't think that we need kindergarten teacher hearsay and an exception to the Bill Of Rights to do it.

The 6A does not say:

the accused shall enjoy the right ... to be confronted with the witnesses against him, unless some recognized expert like a kindergarten teacher has hearsay to make it unnecessary.

I have no confidence in our US Supreme Court. We now have three liberal women on it, and the next appointment might be from Hillary Clinton.

Here is the current version of the exception:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

This seems like an outrageous distinction to me, but it is even crazier to say that a kindergarten teacher interrogating a child is just like a policeman meeting an emergency.

The US Supreme Court briefs for this case are being posted.

Best interests of the dog

I frequently complain about the BIOTCh, but this case is so ridiculous it sounds like a joke. UCLA law prof. Eugene Volokh writes:

Generally speaking, family courts have been quite reluctant to consider “pet custody” arguments; they much prefer to treat pets as property, to be allocated as part of a property settlement (like a car or a house), than as akin to children, for whom a custody decision should be made. But Hamet v. Baker (Vt. Apr. 25, 2014), from the Vermont Supreme Court, essentially endorses a “best interests of the dog” standard, much like the best interests of the child standard used in custody cases, albeit in the context of a property division. (The court also endorses consideration of whether the dog was one spouse’s property before the marriage — mentioned in a passage that I exclude from the excerpt — and the emotional connection between the dog and each spouse, but those seemed to be equally applicable, or equally inapplicable, in this case, as they would be in many cases.)

I wonder, though, whether the court’s decision was really based on any objective evaluation of the dog’s best interests (or how that could be determined, short of cases of outright abuse or neglect), as opposed to the judge’s personal view of how he feels a dog should be treated. Read it yourself, and see what you think:

At the conclusion of the hearing, the court awarded the dog to husband. It found that either party would provide the dog with a good life. It gave a slight edge to husband because the dog is accustomed to the routine of going to the clinic every day. The court balanced that factor against the dog’s familiarity with the marital home, which the parties agreed wife would receive as part of the property settlement.

It found that husband “treats the dog like a dog,” while wife is more doting and treats the dog like a child. The court concluded that the dog would do better with husband’s balanced attitude towards the animal.

Of course the judge was applying his personal prejudices, with Vermont supreme court endorsement. It is like saying, "The boy is black, and the dad treats him more like a black boy while the mom treats him like a white boy, so I am giving custody to the dad."

The Vermont supreme court explains:

Because a pet is property, the family division must assign it to one party or the other. Like other aspects of the property division, the assignment is final and generally not subject to modification….

An order of property division is final and not subject to modification. In contrast to enforcement of other kinds of property division orders, enforcement of an order requiring ongoing sharing of a family companion animal would require the power of modification, since the animal’s well-being in the context of changing circumstances could be a substantial factor in the analysis.

Unlike child custody matters, there is no legislative authority for the court to play a continuing role in the supervision of the parties with respect to the care and sharing of a companion animal.

The term "sharing of a companion animal" is only used by the animal rights crowd. It sounds as if the court really wants the authority to take over the best interests of the dog as if it were a human child.

Under the law, the dog is just a piece of property. The usual way to divide an indivisible property in divorce court is to give each party an option to buy out the other's interest. They should also have the opportunity to agree to a contract to share the property if they wish, as presumably a contract to share a dog would be enforceable with the possibility of a civil lawsuit. But the judge did neither of those things. He quite literally ruled in the best interest of the bitch.

Notice especially the court complaint about a lack of "legislative authority for the court to play a continuing role in the supervision of the parties". I say that the court should have no such authority over parents, either. The way I read the law, the judge is supposed to make a final child custody determination, and then the parents are supposed to go about their lives with full authority as parents.

Apparently not. Parents under the jurisdiction of the family court are like prisoners on parole, with some bossy judge having a continuing role in their supervision. I am talking about supervision of the parents here, not the kids. The only free parents are the single parents with sole custody.

This case is very revealing for its attitudes towards parents and dogs. It also helps convince me that the system is not reformable. Do any politicians, judges, or other authority figures even object to the family court exercising a continuing role in the supervision of parents? We are doomed.

Appeal reverses anti-homeschooling opinion

UCLA law professor likes to post about child custody issues, and now he writes:

When parents split up, and there is a dispute over who is to get primary custody, judges generally decide this based on what they see as “the best interests of the child.” One recurring question is whether a judge may consider the ideology that a parent is teaching the child — for instance, may a judge say, “It’s in the child’s best interest to be raised by parent A, because parent B would raise the child to be racist / homophobic / pro-homosexuality / Communist / jihadist”? Another is whether a judge may prefer the parent who is more religious, on the theory that it’s better for a child to be raised with religious beliefs (or whether a judge may likewise prefer the parent who is less religious, on the opposite theory).

Some cases, though, ask whether a judge may prefer one parent over another because the preferred parent would send the child to a school (or perhaps even specifically to a public school), and the other parent would instead home-school them. I’ve blogged about this before; some cases have endorsed this non-home-school preference (see these cases from North Carolina and New Hampshire), one has expressly rejected it (this Pennsylvania case), and one is complicated (see the opinions in this Michigan case). I’ve just come across one more rejecting the non-home-school preference, Rocha v. Rocha (Kan. Ct. App. Aug. 8, 2014): ...

The trial judge also allegedly said — and this is the appellate court’s paraphrase — “that [the mother] is educating the girls for the Fifteenth Century, not the Twenty–First Century.” Here is the appellate court’s response:

The trial court’s statements that socialization and interaction with other students cannot be achieved by homeschooling are unsupported.

The judge's decision for giving one parent child custody is nearly always unsupported by the law and the facts.

In this case, the judge could have just omitted the anti-homeschooling opinion, and made the same decision, citing BIOTCh. This is a rare reversal that only happened because the judge said too much, and the homeschooling lobby wrote an appeal brief refuting his opinion.

The only sensible solution to this is to get judges out of the business of trying to decide a preference in religion, ideology, or any other routine parenting matter.

Volokh also cites a Florida case:

[W]e agree with the father that the trial court abused its discretion in granting [the mother] … ultimate authority over the children’s religious upbringing and in prohibiting the father from “doing anything in front of the children or around the children” that “conflicts with the Catholic religion.” …

Restrictions upon a noncustodial parent’s right to expose his or her child to his or her religious beliefs have consistently been overturned in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child…. “[A]lowing a court to choose one parent’s religious beliefs and practices over another’s, in the absence of a clear showing of harm to the child, would violate the [F]irst [A]mendment [of the United States Constitution].” …

[Footnote:] We find no error in the trial court’s directive that neither parent disparage the other parent’s religion in front of the children.

Again, these prejudicial ruling occur all the time, and no one can do anything about it, when the judge delegates to a so-called expert who keeps the unconstitutional reasoning off the record.