In loco parentis

An Alberta court has awarded custody of a nine year-old child to the biological father’s former same-sex partner:

In a precedent-setting case, a Calgary judge has granted custody of an eight-year-old girl to a gay man over his former partner and biological father of the child.

The two men had shared parenting duties of the girl for three years before they split in 2006.

However, Court of Queen’s Justice Suzanne Bensler ruled that the parental and guardian responsibilities will remain the same while R., the biological father of baby S., pursues parental rights under the Amended Act of the Family Law Act.


The judge said she accepted earlier findings of the court, by Justice Kristine Eidsvik, that both during the planning for conception and after the birth of the child S., there was an understanding that R. and H. would have the primary parenting responsibilities over S. and that D. would carry the baby for them in return for the opportunity to have and to raise baby N., also using assisted conception, along with her lesbian partner.

“It is contrary to the best interests of the child S. to be limited to the legal recognition of a sole parent, Ms. D.,” the judge wrote. “There is no other methods of correcting for this deprivation . . . I thus declare Mr. H. to be a legal parent of S.”

The judge said, though, R. has been granted a declaration of guardianship and has all the rights and responsibilities that accompany such status.


Bensler said even though the biological mother had not resided with the child for the first three years, she never did relinquish her parental or guardianship status and she and R. entered into a new parenting agreement which named each of them as guardians.

Following the separation of the two men, however, relations soured and became quite acrimonious and the two biological parents “denied any meaningful access” to H, claiming it was not in the best interests of the child.

The court, though, granted H. reasonable access pending trial or a further court order, and he began to exercise his access rights.

That further deteriorated the relationship between H. and R. and a parenting assessment was performed. Following that, an order in November 2007 discontinued contact between H. and S. and H.’s relationship with the child became virtually non-existent, said the judge.

H. then brought an application for access on the basis that he was a person standing in the place of a parent, or that he was a person who could be considered a parent in law.

Once you get past this case involving a same-sex couple – and the court’s finding that there are three individuals who have an interest in parenting this child – it seems like a relatively straightforward application of the in loco parentis principle.

In loco parentis literally means “in the place of a parent,” and it is applied in situations where a non-biological or non-adoptive parent has taken on a parenting role substantial enough that access or even custody is in the child’s best interests.  (That’s a double-edged sword: the in loco parentis parent may also have to pay child support.)

It doesn’t appear that the written decision is available online, but the biological parents’ denial of access to H. may have also been a factor.  When determining what is in the best interests of a child, the courts will consider the parties’ willingness to allow a relationship with the other parent.  Or, in this case, parents.

Kids caught in the middle

It can’t be said often enough: involving your children in your family law case, and trying to turn them against the other parent, will have disastrous consequences.    Psychotherapist Allan Schwartz explains:

Perhaps the worst case situation is the one in which the divorce takes place, the mother gains custody, the father moves away and a curtain of silence falls between the children and the absent father. While this is less likely to occur today in the age of equally shard custody, it does happen and with tragic consequences for the children. What are these tragic consequences?

First, children identify with each of their parents. If they are made to believe that one parent is evil they will come to believe that this is true of them, as well. How can it not be so? If that is my father or mother and I have been told that he or she is a bad person then it must be true of me as well since I am their child.

Second, it is common for children to misunderstand what is happening between alienated parents and to blame themselves for their troubles. They are also quick to believe that one or both parents are leaving home because he, the child, is not loved. In some cases, a child who witnesses a parent packing and moving may fear that he, the child will be told to leave home forever. Young children, with fragile emotions and dependent upon nurturing and love may pretend that they do not care that the one parent has left and throw themselves even more upon the parent who is present.

For the child who experiences the loss of a parent because that parent has been successfully blocked from participation in the child’s life the consequences are worst. Most frequently but no always the parent who vanishes is the father. The child is left to imagine what became of the missing parent.

In fact, many studies show that divorce can result in children growing into adults who have low self esteem and more depression and anxiety compared to those who were raised by both parents whether the marriage remained intact or there was shared custody.

It is really important that divorcing parents communicate with the children that they are loved by both Mom and Dad and that the divorce is not caused by the children. It is also important to communicate confidence in the other parent and that Mom and Dad just cannot get along together and that these things happen but that they are safe with and loved by each parent.

Divorce is difficult enough for everyone without embroiling the kids in the angry politics of the adults.


Just because you can say something doesn’t mean you should

Case in point: a Pennsylvania man embroiled in a bitter child-custody dispute started a blog about his experiences, called The Psycho Ex-Wife.  I think you get the gist of it.

A judge ordered the site shut down, and now he’s appealing this apparent violation of his First Amendment rights.   Pennsylvania Law Monitor agrees that the order to take down the site might be unconstitutional, but its contents can certainly be taken into consideration by the family court judge:

Whether or not the judge’s order violates father’s right to free speech is a separate issue from whether the judge can use the website information and blogs as evidence in the custody case.

Pennsylvania has recently detailed the factors a judge must consider in awarding custody. The relevant factors in this case include:

  • The level of conflict between the parties and the willingness and ability of the parties to cooperate together.
  • The attempts of a parent to turn the child against the other parent
  • Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
  • The present and past abuse committed by a party or member of the party’s household.

Additionally, research is conclusive across the board and child custody experts are unanimous: the more animosity displayed between parents, the greater the negative impact on the children.

While the father can proudly, and in all likelihood legally, stand up and champion his First Amendment rights – he does it with a price. While he may win in his appeal, he will lose in  custody and, most importantly, in his relationship with his children.

When a family court judge decides who should have primary care of a child, she will consider each party’s willingness to cooperate with the other parent, avoid denigrating him or her in the presence of the child, and respect the court’s decision.  If one of the parents is savaging the other party and the court online, that makes the judge’s decision a little easier, doesn’t it?

Making divorce easier on children

A top-ten list from Bay Area family lawyer Gina Mariani:

1)    Do not, under any circumstances, discuss the legal proceeding with your children, regardless of their age. Your matter deals with adult issues that are for adult ears only.

“Don’t do it because I told you or because the judge told you-do it for the sake of your children. They do not need to know about how much money a parent pays or doesn’t pay for support, or what you think lead to the break-up of the family,” says Mariani. This is sensitive information that will make your children feel bad or sad.


3)    Never speak poorly about the other parent. You liked the other parent at one point in your life, so try to focus on the other parent’s positive characteristics. Be supportive of that parent’s role and periods of custody, regardless of how excruciating it might be. Never force a child into a position where they feel they must choose sides; your child may end up resenting you.


8)    Consistency is your child’s source of stability during this emotional time. Do not disrupt your child’s routine by removing them from any activities that make them happy. Don’t tell your child that they can’t go to karate class because the other parent won’t pay half the bill. If the other parent refuses to pay for an activity that is maintaining your child’s well being, be creative. Don’t be afraid to ask if there is a scholarship available or ask if you can volunteer or barter for the activity. During this time, your child’s weekly dance class is far more important than you ever thought it would be.

Via South Carolina Family Law Blog.


Further to my post from earlier this week, about Japan possibly signing the Hague Convention on International Child Abduction, a recent court decision has led to calls for India to sign on as well:

It is reported in India that demands have been raised with the government for it to accede to the Hague Convention on the Civil Aspects of International Child Abduction in order to protect the rights of non-resident Indians. The calls follow a Supreme Court judgment which has affirmed the jurisdiction of Indian courts to deal with disputes of children’s custody even if they are foreign citizens.

The Supreme Court ruled that simply because a foreign court had made an order, it did not mean that Indian courts should put off deciding on the issue. It is said that the judgment has far-reaching implications for Indians living abroad.

The Supreme Court said that the interest and welfare of the child was of primary concern and required a competent court in India to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication. [via Family Lore News]

Meanwhile, in the world of Formula One racing, the great Lotus-Renault vs. Lotus-Renault court battle has been decided in favor of Lotus-Renault.

Japan to sign the Hague Convention (finally)

It’s every non-custodial parent’s nightmare: your child is taken to another country, where your access rights are not enforced and where the authorities will do nothing to return the child home, regardless of what the courts in your own country have ordered.

It’s a nightmare come true for people whose children have been surreptitiously taken to states which have not signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction, most notoriously Japan.  One American father resorted to particularly desperate measures:

A Tennessee man who was arrested after trying to ‘snatch’ his own abducted children back from Japan has been awarded  $6.1 million from his ex-wife.

Christopher Savoie, 40, now faces an up hill battle with Japanese authorities to enforce the judgement and actually get the money on behalf of his children, 10-year-old Isaac and 8-year-old Rebecca.

Mr Savoie’s Japanese ex-wife, Noriko Esaki Savoie, fled with the children in 2009.

The desperate father drew international attention after he tried unsuccessfully to snatch them back they walked to school – resulting in a three week stint in a Japanese prison.

Soon after the abduction in January 2009, a Tennessee court issued a warrant for her arrest and gave the father full custody.

But the order had no effect because Japan hasn’t signed an international treaty governing child abduction.

After years of international pressure, however, Japan is finally moving toward signing the Hague Convention, closing this loophole for people who try to keep their children away from their other parents:

Japan moved closer Friday to joining an international child-custody agreement that would give rights to non-Japanese parents involved in disputes with Japanese citizens.

The Japanese cabinet said it approved a plan to submit legislation to Parliament by the end of the year to ratify the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

“It is desirable for our country to be consistent with international standards,” Yukio Edano, the government’s chief cabinet secretary, said at a news conference.

The only Group of 7 nation that has yet to sign the convention, Japan has come under increasing criticism by the Unites States, Canada and several European nations for refusing to join the agreement. In most cases of child abduction involving a Japanese parent and a foreign parent, Japanese mothers married to foreigners have returned to Japan with their children, denying the fathers access to their children.

The ambassadors of the United States and 11 other nations released a joint statement last year pressing Japan to join the agreement. “Currently the left-behind parents of children abducted to or from Japan have little hope of having their children returned and encounter great difficulties in obtaining access to their children and exercising their parental rights and responsibilities,” they said.

In Japan, custody is usually given to the mother in the case of a divorce. Many fathers never see their children again, at least until adulthood, because the courts do not recognize joint custody.

Interestingly, in the recent case of Y.N. v. D.M., the Supreme Court of Nova Scotia (Family Division) ruled that a mother could move to Japan with a minor child, over the (incarcerated) father’s objections.   Even if a custodial parent plans to move to a country which has not signed the Hague Convention, that may still be in the best interests of the child.

A list of signatories to the Convention can be found here.  (Russia is also conspicuous by its absence.)

This isn’t helping

A reader pointed me to the blog of Alaina Giordano, a North Carolina woman who lost custody of her children partly because of her breast cancer. (I’d rather not link to it, but a Google search should find it for you.)  I can understand why Giordano is upset, but blogging about your case (or tweeting about it, or commenting about it on Facebook) is always – always –  a terrible idea.

In custody and access cases, judges want to know which parent is more likely to cooperate with and show respect to the other.  That’s why, if I were representing the father in this case, I’d make sure the court knows about Giordano’s posts publicly denouncing him as a “weekend dad” and explicitly saying the trial judge had no right to rule on the matter because she is childless and unmarried.

Her blog breaks three of my most important rules for family law clients: do not personally insult or unfairly impugn the motives of the other parent, and show nothing less than the utmost respect for the justice system.  Getting your complaints off your chest may be satisfying in the short term, but it will blow up in your face.

And don’t forget: once something is posted on the internet, it’s there for good.  (Two words: Wayback Machine.)   If you insist on blogging about your case, you’d better think about how to explain your posts to your children when they inevitably find them.

Illness and child custody

This North Carolina decision is generating a lot of outrage, and I can understand why:

In a bitter child custody battle, Alaina Giordano’s terminal breast cancer has been a strike against her in court. A North Carolina judge denied Giordano primary custody of her two children in part because “the course of her disease is unknown” and “children who have a parent with cancer need more contact with the non-ill parent.”

Giordano’s unemployment was also cited as a factor in the April 25th District Court ruling that her two children must move from their home in Durham, N.C., to live primarily with their father, Kane Snyder in Chicago as of June 17.

“It makes no sense to take them away from me because you don’t know how long I’m going to live,” Giordano says. “Everybody dies and none of us knows when. Some of us have a diagnosis of cancer, or diabetes, or asthma. This is a particularly dangerous ruling to base a custody case on a diagnosis.”

Giordano and Snyder will share custody of Bud, 5, and Sofia, 11, but if Giordano continues to live in Durham, where she is treated by a team of doctors at Duke Cancer Institute, her custody will be limited to holiday and weekend visitation, the airfare for which, she says she cannot afford.

Giordano has stage 4 breast cancer. Though it has metastasized to her bones, she receives monthly treatment and her medical records list her cancer as stable and not progressing. “I’m fully functional and my kids are thriving here in Durham,” she says.

The state of a parent’s health is one of the many factors that should be considered when determining the best interests of a child.  (Once again, it is the rights of the children, not the parents, which governs family law cases.)  That said, it can be fairly argued that the Judge in this case went too far.  (Certainly, Giordano’s case can be distinguished from this one, which involved a “minimally conscious” mother.)

…the determination that it may be in Sofia and Bud’s best interest to have limited contact with their mother merely because she is ill has some cancer and legal experts concerned.

In her ruling, Judge Nancy Gordon cited forensic psychologist Dr. Helen Brantley: “The more contact [the children] have with the non-ill parent, the better they do. They divide their world into the cancer world and a free of cancer world. Children want a normal childhood, and it is not normal with an ill parent.”

“Cancer is not leprosy…young children want to be with their parents, even if ill,” says Holly Prigerson, director of Center for Psycho-oncology & Palliative Care Research, Dana-Farber Cancer Institute. “That’s not to say that seeing a parent so ill will not be upsetting for children — it will be frightening — but not seeing a mother and not receiving honest answers about why mommy is not there may be more detrimental to the child’s mental health and functioning than the reverse,” she adds.

From a legal standpoint, making custody decisions based, even in part, on this concept of “protecting” children from an ill parent is troubling for some.

[T]he fact that a parent is seriously impaired or likely to die in the imminent future is the kind of thing a judge could legitimately take into account in the analysis,” says Glenn Cohen, co-director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard University.

“By contrast, it seems unusual to me and I would worry that it is potentially discriminatory for a court to say that the mere fact that an otherwise healthy parent at no imminent risk of death or serious impairment has been diagnosed with cancer should be per se exclude them from custody,” he adds.

I’d like to read the full decision before commenting further.  If anyone knows where it can be found online, please let me know.

The NFL lockout explained

The BlackBook Legal Blog explains the NFL labour situation more succinctly than anything else I’ve seen.  (via Instapundit)

Related (and further to this post): at the Huffington Post, “Celebrity Divorce Attorney” Doug Kepanis explains how the lockout has affected some players’ child support and access visits.  There are lessons here for anyone who suddenly finds him- or herself without a regular income:

When an NFL player is ordered to pay child support during his tenure as an active player, such support is commensurate with his high earner status. (The NFL league minimum salary in 2010 was $310,000.00 per annum). However, the average NFL player salary in 2010 hovers around the $1,000,000.00 per annum mark. During a lockout, however, there is no salary. This means that all of those child support orders or agreements, entered into while the NFL athlete was earning a considerable salary, become ripe for modification.

In most states, child support orders may be modified upon a showing of a “change in circumstances” or a “substantial change in circumstances”.  [“Material change of circumstances” in Nova Scotia – DJP]  When the salary of an NFL player, an average of almost $1,000,000.00 is reduced to zero through no fault of the player himself, as is the case of the lockout, this will surely qualify as a change in circumstances of substantial change in circumstances in almost every state.

There have been recent instances of players’ support check bouncing. Without a salary coming in, unless you are one of the superstar players in the NFL who get paid handsomely for endorsements, your support checks will soon bounce as well. Whether it is a temporary reduction in support or a more long-term reduction, when you have no income, you must seek to reduce your child support payments or risk losing your license, passport, or end up behind bars.

Moreover, if there is no NFL season, players may also seek to have their visitation with their child(ren) modified so that, while they are not traveling for six to eight months, they can enjoy watching their child(ren) grow up and be a more active parent in their lives.

Not all of these types of modifications require a trial in the courts. The parties can voluntarily agree to modify their child support and/or visitation agreements, execute them, and file them with the court. However, it must be stressed that each State has different child support and visitation laws and an attorney expert in this area of the law should be sought out for legal advice.

Considering how much money even the lowest-paid NFL players earn, I doubt a locked-out player would be ordered to pay no child support at all.  Applying Canadian law, a lower level of income (and therefore support) would be imputed until the labour dispute is over, at which point the matter could be reviewed once again.

Father of the year

This is why Theodore Dalrymple will never run out of things to write about:

As Britain’s most feckless father, Keith MacDonald has done almost everything he can to escape responsibility for his eight children by eight women.

But just when many thought the jobless layabout could stoop no lower, he posed as a friend to announce his own death by text.

With a ninth child on the way, the binman’s son was desperate to avoid paying out any more than the £5 a week he currently gives towards each of his other children.

He sent a text message to his pregnant former girlfriend Clare Bryant, 22, telling her: ‘Keith is dead.’


MacDonald, who is paid £44 a week in income support and has never held down a permanent job, denies fathering all but one of his children on the grounds that they have different hair colour from him.

It is claimed that he may have fathered up to 15 children, by 14 mothers. MacDonald, who met the majority of his conquests at bus stops, currently spends most of his benefits on lager and fruit machines.

Not unrelated: