New Jersey Supreme Court Decision May be a Step in the Right Direction
June 3rd, 2009 by Robert Franklin, Esq.At first blush, this story looks like an outrage, but "after further review," it might just indicate a step in the right direction (Star-Ledger, 4/28/09). (Note: My apologies for the Star-Ledger article; it's archived, so you only get to read the first page.) This blog post gives a little more detail.
In New Jersey, two children lived with their mother who had custody of them. Their father lived in Florida. One night one of the children texted him saying her mother was drunk - again. He called the police who called the Department of Youth and Family Services. They took the kids and placed them temporarily with a neighbor. Eventually, DYFS sent them to live with their father in Florida, where they remained for eight months. Mom went to alcohol rehab. At some point she asked a court to return the children to her and the court refused, apparently relying on the children's desires. It did not hold a hearing in doing so.
The New Jersey Appellate Court ruled that the court should have held a hearing, taken evidence and then issued its order. The New Jersey Supreme Court agreed.
One problem with this case is that everyone is anonymous in the media reporting of it. We don't know the ages of the kids, and that is important in deciding how much value to place on their desires. But as I say, at first blush, you've got an alcoholic mother (the children said she drank every night) whose children are taken from her and placed with their father. After eight months, they're happy enough with him to want to stay. DYFS seems to think that's a good arrangement too. So isn't it outrageous that the court should say no?
In the first place, that's not what the court said. It said the trial court has to give everyone his/her day in court. All parties get a chance to prove what they want to prove, including the children who have a law guardian appointed for them. And before anyone gets too impressed with what CPS decided, it's worth remembering that CPS agencies nationwide don't have exactly unalloyed records in custody matters.
But the most important thing is that this ruling has the potential to be a big boon to non-custodial fathers. We've seen many times that state CPS workers routinely ignore non-custodial fathers in favor of foster care when they take children from a custodial mother. The Urban Institute study that I've cited before shows that, even though the father is known in almost 90% of cases, CPS workers contact him as a possible placement for the child barely half the time (Urban Institute, 5/6/06).
What this New Jersey case strongly suggest is that not only will he be contacted, he'll have an opportunity to make his case for custody in court. After all, if CPS has his name in the file, he'll have to be given notice of the hearing. And having a clear opportunity to make your case for custody is what the New Jersey Supreme Court's decision is all about.
Thanks to Ken for the heads-up.
"));
19 queries. 0.473 seconds.
June 4th, 2009 at 1:58 am
Before anybody considers this a step in the right direction, remember this was
a ruling in favor of the mother/woman. Does anyone here really think the same
consideration will be given for a father/man? I think this has more to do with
a mother’s rights than fairness to all involved.
Sharon
June 4th, 2009 at 8:28 am
And when do the family and divorce courts follow the law and the constitution? Unless the courts uphold a man's constitutional rights, nothing has changed.
June 4th, 2009 at 9:22 am
They didn't factor in gender-meaning she is a poor female not responsible for her behavior.
And he is an opressive male not fit to raise children. Sarcasm intended.
Looks like the court might have gotten it right for a change. Whoo Hooo!
June 4th, 2009 at 5:32 pm
I say the court got it wrong... if we are for equality for women.
June 4th, 2009 at 6:31 pm
"Before anybody considers this a step in the right direction, remember this was
a ruling in favor of the mother/woman. Does anyone here really think the same
consideration will be given for a father/man?"
All true, but precedent is precedent, and mosyly men are going to be able to use this one now. So that's progress to an extent.
June 9th, 2009 at 8:16 am
In my experience, the Family Court often doesn't have any kind of hearing to determine the mythical "best ineterest of the child". During my divorce and custody "hearings", and also the following motions I filed in a (futile) attempt to get visitation orders enforced, I was never allowed to speak to the judge or show any of my evidence. The judge never said a word directly to me and on a couple of occasions I never even saw the judge at all.
I begged for a chance to go before the judge face to face, and also produce to them the solid evidence I had pertaining to why my son would be much better off in my custody, including constant denial of any contact with him by his mother.
The judges would only meet with the attorneys in chambers or at the bench, and made decisions on what the attorneys could say within just a few minutes time allottted them. On two occasions I sat outside chambers while all I heard was joking around and laughing within.
Very discouraging and infuriating when such an important matter as my child's life is at stake.
I didn't agree with most things in my final divorce decree, and it didn't even contain what had been previously agreed on at one of the attorney/judge chamber meetings. My attorney immediately informed the judge of this but the judge signed it anyway.
The judge and my exes attorney signed the decree under protest by me and my attorney (we refused to sign it) and now my son and I must live with the one-sided "agreement".
I really didn't have ANY rights recognized at all, and my ex has been in contempt of my visitation for years. The motions I filed were all ignored and nothing is ever done to enforce my rights, or my child's.
June 9th, 2009 at 8:21 am
There are no rights for fathers in NJ whatsoever, the family courts there are a complete sham act that would make a great spin-off of the Sopranos.
June 9th, 2009 at 10:16 am
In a way its good that the supreme court ruled that a hearing must take place first. One would like to think that it would give fathers a chance to present a valid case in court and "be heard". One has to be suspect that if a hearing took place that the court would just give custody back to the alcoholic mother anyway. In my case my childs mother filed petitions to relocate with a finance then husband. After only a few months he saw her for who she really was and they were separated. Cross petitions were filed for parenting time violations and lack of phone contact. Surprisingly enoungh the court discouraged a hearing and acussed me of trying to kick a women when she was down. Even though there has been a revolving door of men in a out of the ex's life , I'm not sure a hearing would have made a difference.
June 13th, 2009 at 12:55 am
My successful appeal (issued 5/06) from the Orange County, CA court says the same thing as this NY appeal. I was denied due process in a move away. The lower court ignored my rights to proper service, a hearing, to present witnesses, and receive an independent (uncorrupted) opinion from the court appointed psychologist. It’s nice to win the appeal but all that happens is you get to go back down to same lower court that screwed it up in the first place and retry everything before the same flawed system. They are now out to get you because you have embarrassed their buddies. They pay lip service to the appeal decision, make a bunch of new errors and ignore more law. When it’s all done it’s a $200,000 legal bill and your kids are all grown up having spent two years, 2,500 miles away from you, ruined by their mother. I believe could have been successful in another appeal. I only pray that when this insane family law system finally dies the death it has earned I can claim to have had a small part in that death.
June 14th, 2009 at 7:29 pm
Here in the UK, the family courts are not open to the general public. They are the only type of court you can't just walk into and watch the "justice" at work.
Who remembers Bob Geldof? He mobilised the world with Band Aid, and was the single biggest force behind the prevention of millions of deaths in the Ethiopian famines of the mid-80's, and continues to work hard for the third world debt to be dropped. He's known affectionately over here as "Saint Bob". His one lapse of judgement was to marry Paula Yates, a heroin addict who ended up dead of an overdose several years ago, with whom he had 2 kids.
Guess who got custody of their kids when they divorced?