Despite DNA, Dad’s Paternity Denied

By Michael Lindenberger Tuesday, Apr. 29, 2008
For nearly two years, James Rhoades, a university librarian in Tallahassee, has been fighting to establish in law what science and fact already have shown beyond any doubt: He is the biological father of the boy dubbed J.A.R. He’s got DNA tests to prove it, and videos and loads of pictures of him with the boy. In the photos too are the boy’s mother, J.N.R., whom Rhoades met while taking an online graduate course. She was — and still is — married to another man, who was stationed at a Pensacola-area Air Force base during their affair in 2005. And that’s the problem.

Last week, in a decision that underscores the tense relationship between science and law, a divided Kentucky Supreme Court told Rhoades that he could not press his paternity claim, no matter what evidence of fatherhood he might have, because J.N.R. was, and remains, a married woman. When it comes to defining fatherhood in the Bluegrass State, where Ricketts and her husband now live, the marital “I do” mean a lot more than DNA.

The 4-3 decision splintered the court, which issued five separate opinions. The majority was itself divided evenly among two camps, one that said Rhoades might have prevailed had he been able to show the J.N.R.’s “marital relationship had ceased at least 10 months” prior to the boy’s birth, and another that said no “stranger to the marriage” can ever attack the legitimacy of a child’s birth. “As long as marriage is on the books, it must mean something,” wrote Justice Bill Cunningham in one of two concurring opinions. “… We are in need of a bold declaration that the marriage circle, even one with an errant partner, will be invaded at one’s own legal risk.” He added: “While the legal status of marriage in this early 21st century appears to be on life support, it is not dead.”

The decision has left Rhoades devastated. “What I wanted was not just to see my son but to participate in his life,” Rhoades told TIME. “He is my son and I love him.” Kentucky’s ruling is firmly grounded in the history of the law, however. In fact, the so-called marital presumption has barred attacks on the legitimacy of children for centuries. Courts have forever held that allegations of fatherhood by third parties can only disrupt the family, confuse or embarrass the child, and unsettle the social order.

But unlike the past, such allegations these days are often backed by science, introducing certainty where none before existed. As of a result, the prohibition on third-party challenges to paternity has begun to weaken. By 2000, at least 33 states had adopted rules that allowed challenges by fathers with genetic proof of their paternity, usually restricting such efforts to the first two years of a child’s life. The advent of DNA testing has tread a similarly disruptive course in other areas of law, including criminal cases where exonerations once thought impossible are becoming routine. A few states have even begun allowing ex-husbands to present DNA evidence that they were duped by cheating spouses to avoid child support obligations.

For Rhoades, the changes are coming too slow, however. Unable to present proof of his paternity, he won’t be able to seek custody or visitation rights. As a result, he’ll be a stranger to his son until such a time as the boy’s legal parents decide to tell him, if ever. “My son is going to find out the truth eventually,” he said. “Is he going to find out when he is 13, 14 that everybody in his life has lied to him?”

Justice Lisabeth Hughes Abramson raised just that point in a fiercely worded dissent attacking the majority’s notion that the boy will be better off not knowing the truth about his parentage. “Our world is full of inconvenient truths. We accomplish nothing for families, the broader community and our justice system when we deny those truths.” she wrote.

Rhoades said he plans to appeal to the U.S. Supreme Court on constitutional grounds. But he faces long odds there, given that the high court has already ruled once, in 1989, on the same issue, upholding California’s explicit bar against paternity challenges like his. That decision too was divided and contentious. The biological father in that case did not get to see his daughter till she had turned 21. “Well, obviously I am not going to give up and say, ‘Oh well I lost,'” Rhoades says. “I believe I have a fundamental right to be in my son’s life.” The trouble is: nature’s law isn’t the law of the land.

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Therapy Can Be an Important Part of the Divorce Process

One of the things that I have noticed over the course of my career as a family law attorney is that people going through the divorce process have an unwillingness to go to therapy even though they could benefit greatly from the process. “I don’t need help, I’m dealing with it” or “I need a divorce, not therapy” are refrains I have become used to hearing.

What seems counter intuitive to me, though, is that seeking counseling after the death of a loved one has no stigma attached, while many individuals going through divorce believe getting therapy after the death of a marriage does. The goals of the two are the same: To help people get on with their lives, and when children are involved, helping their children deal with these significant changes in their lives as well.

One shouldn’t have to feel embarrassed about getting help.

If you are having a difficult time coping with a divorce or with the changes in your life that are the result of a divorce, guess what. That’s normal. A divorce is a traumatic event in a person’s life and it takes time and often outside help to heal. The good news is that you’re not alone. It is natural in your position to need someone who will listen to you and help you adjust to your new life and the death of your old life. Seeking help in your time of emotional need from a professional is not only nothing to be ashamed about, but in a lot of cases, the most prudent step you can take. Even if your soon to be ex-spouse tries to make it an issue in a custody dispute, chances are that the court won’t see it as an issue, because the Judge gets that you are seeking help to better adjust, and that is something to be commended not condemned.

If children are involved, they need someone to talk to.

Children are not always “resilient” as is commonly claimed. They may try to act brave, but imagine how difficult and confusing it is for a child to be caught in a tug of war between two parents, going from one house to another, or not getting to wake up in the same bed every morning. Many parents think their children don’t need therapy because the child can talk to them, but seriously, if your parents were going through a divorce, would you want to talk to mom about dad and vice versa? Would you feel comfortable telling your parent you aren’t happy with him or her? Children of divorce have their own set of issues and you should be open to your child seeing a mental health professional.

Your actions affect your children.

Consider the harmful effect on the children when parents don’t communicate well. For example, something I’ve seen over and over again is the “I don’t even mention him/her” syndrome.

“My child is secretive about what happens when she is with my ex and whenever we discuss her feelings she tells me one thing and tells my ex something else. She can’t know how much I hate him because I never bad mouth him. In fact, I don’t mention him at all.”  

If you think not mentioning your ex is helping your child, you are wrong. This type of behavior teaches children that they can’t mention their other parent when they are with you because it is a taboo subject. They get that you don’t like your ex and your child is worried that if she takes your ex’s side not only will your feelings be hurt but that you will get angry as well. Not mentioning the other parent is the same as bad mouthing him or her.

Another trap that is easy to fall into is “I don’t interfere” disease.

“I’m not going to interfere. I’m not going to tell my children they have to abide by our parenting plan and go with their other parent because I’m not going to take sides.”

If you think this is not taking sides, you are mistaken. By not telling the children they have to go, you are telling them they don’t have to go. In most states, the parent with residential/physical custody is obligated to have children abide by the parenting plan and if they don’t obligate the children, the residential parent is in violation of the parenting time agreement.

You may not even realize that you’re placing your children smack in the middle of your divorce issues, but a therapist can help show you how to better handle these discussions with your children so that you do not transfer negative messages to them, however inadvertently.

Going to therapy will make your life easier.

So many of my clients have come into my office angry, and everything they do in the divorce process is motivated by that anger. There are others who are depressed and so crippled by it that they want other people to make their decisions for them. In both situations neither is happy with the final decisions/agreements. Some divorcing individuals have difficulty moving forward, and again the inability to move forward affects their ability to go through their divorce process. Most clients vent to their divorce attorney but really? Why are you paying your lawyer $250, $300, $400, $500 an hour to vent your anger when you could be paying the therapist for a hell of a lot less?

Whether it’s a mediation session or a settlement conference or your attorney is trying to have a meeting with you and you have all this anger, how can you reach a proper settlement? Or if you’re so depressed, how can you reach a settlement? If you are stuck in the mud because you can’t move forward, how can you make the best decisions for your future?

In my perfect world, both parties would seek therapy to guide them through the difficulties of divorce and help them learn how to deal with each other as divorced parents. lf divorcing clients could be more civil to each other and were able to think clearly while negotiating the issues, they would save so much time and money. In the Collaborative law process we have mental health professionals who are trained as coaches to help the parties deal with each other in a more civil manner. Even parties who are not divorcing through the collaborative process still can benefit from the training and experience of these individuals.

Almost all of the members of a divorcing family can benefit from therapy and depending upon the circumstances, insurance may cover some or all of it. From what I have seen in my practice, just having a professional there to listen to and talk you through what you’re feeling provides benefit. Don’t let your fear of being labeled prevent you from seeking the therapy you need.  


Parents With Disabilities Have Greater Risk of Losing Custody of Their Children

A report from the National Council on Disability finds that parents with physical or mental disabilities have a greater risk of losing custody of their children. The study says that the U.S. legal system needs to provide more support for these parents. National Public Radio recently discussed the study in detail.

Click here to listen to the National Public Radio broadcast from “Talk of the Nation.” If you prefer to read it, the transcript appears below.


This is TALK OF THE NATION. I’m Neal Conan in Washington. Raising a family can be difficult at times, but parents with disabilities face additional challenges. A new study from the National Council on Disability finds they face discrimination at any number of levels. They are much more likely to losecustody of their children. They are more often denied adoption, and women with disabilities may be denied fertility treatments.

Authors of the report argue that parents with disabilities don’t get the legal protection or support they need, but there are cases where removing a child from a parent’s custody may be the only option.

If you have personal insight as a child, as a social worker or as a parent with a disability, call and tell us your story, our phone number 800-989-8255. Email us, You can also join the conversation on our website. That’s at Click on TALK OF THE NATION.

Later in the program, Robert Lipsyte on the legacy of baseball union chief Marvin Miller. But we begin with Ella Callow, a lawyer who works with parents with disabilities and their families. She joins us now from a studio in Berkeley, California. Good to have you with us today.

ELLA CALLOW: Hi Neal, thank you for having me.

CONAN: And reports like this one, instructive but necessarily about broad strokes. Can you tell us about one family and what happened that kind of encapsulates these findings?

CALLOW: Yeah absolutely. This report is really – you know, I say it’s more like a compendium. It has so many examples and so many families. But I think that one family that I’ve worked with for a number of years sort of from the beginning of the process through hopefully soon completion really encapsulates the issue for me.

These are two parents who both have intellectual disabilities and are in a Midwestern area where there are not a great deal of resources available to them as people with disabilities. However, their child was removed from them at birth, basically, or just soon thereafter.

There was no abuse, there was no neglect, there was simply speculation that based on their disability and, you know, based on their IQ that they would be unfit to parent at some point, that their disability in and of itself posed a danger to their infant child.

I those are the most troubling types of cases because the people making the decisions often are not terrible well-versed in parenting with a disability. They don’t know, for example, that we have 20 years of research that shows that IQ is not predictive of parenting capacity in and of itself, and yet IQ testing is heavily relied on quite frequently to justify removals.

This family went to great efforts with support people to reach out and find resources. They contacted us, and we were able to ourselves – you cold-call universities in the state and find a psychologist who had familiarity with this population. She came, did a full assessment, came up with an excellent plan to safely reunify the child with her family over time.

And the plan was refused. The state refused to pick it up. They really didn’t want to deal with it, didn’t want to engage it. They just saw the alternative of this child remaining with her foster parent or being adopted as superior as an option to returning to her family.

They moved forward to have the parents’ rights terminated. Fortunately in this particular state, and very unusually child welfare cases are heard by juries. And so the jury found that the state had not met its obligation and had to try to work the plan or try to work with the family towards reunification, and they’re still in that process at this point.

We, you know, were unable to trigger findings by either Health and Human Services or involvement by the Department of Justice in the case. The Department of Justice doesn’t have the clearest jurisdiction over these types of issues, that’s Health and Human Services. But we were never able to get anyone to really find that this was discrimination.

And that’s sort of the problem, that after 25 years of working on this issue, very clear legal constitutional strategies to question the laws that make removal so easy has not emerged.

CONAN: This goes state by state, and you were talking about parents with cognitive disabilities. How old is the child now?

CALLOW: She’s four years old, and they’ve been in contact with her, and she is in their area, and they’re lucky because in many of these cases, the children, they really have no contact, or they’re moved quite a distance out of either necessity, there’s no one locally, or because the child – and many children in the child welfare system have disabilities themselves.

The child needs some sort of special care, and so they’re removed to a further location.

CONAN: Joining us now is Robyn Powell, who is an attorney advisor at the National Council on Disability and co-author of the study “Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and their Children,” joins us from Cambridge, Massachusetts. Good of you to be with us today.

ROBYN POWELL: Thank you for having me.

CONAN: And we’re talking not just about people with cognitive disabilities but people with physical disabilities, too.

POWELL: Absolutely. This covers people with varying disabilities: people who are blind, people who are deaf, people who have psychiatric disabilities, people who have mobility disabilities. It’s an issue across disability.

CONAN: And as I’m sure you know better than I do, some of those people would say wait a minute, we don’t have disabilities.

POWELL: Oh absolutely, and so the estimates that currently 4.1 million disabled parents exist in the United States is certainly an underestimate, by and far.

CONAN: And you’ll forgive me, but why isn’t this covered under the Americans With Disabilities Act?

POWELL: Well, that’s an interesting question, and in the report, we argue that it is. Here we are 22 years after the passage of the ADA, and we have state laws that state that disability can be ground for termination of parental rights. I believe, the National Council on Disability believes, that this is in clear violation of the ADA.

CONAN: And I guess that remains to be – you remain to find a judge that will agree with you.

POWELL: Absolutely, and unfortunately it’s probably going to have to go to the Supreme Court to have that decided.

CONAN: In the meantime, we have stories like these, and the story that Ella Callow was telling us, that can be replicated for people who are blind, for people who are deaf.

POWELL: Yes absolutely. In Missouri back in 2010, we had a blind couple who lost custody of their child two days after she was born simply because a nurse oversaw that the mother was having trouble breastfeeding, which many new mothers do, and she reported it to Social Services that she thought that these parents were going to be unfit because they were blind.

The couple then had to endure a long fight. It was 57 days of not having their newborn with them. So this happens often, and it happens, again, across all disabilities.

CONAN: Let’s get some callers in on the conversation. We want to hear from those of you with insight into this, as parents with disabilities, as children of those parents or social workers yourselves, 800-989-8255. Email us, And Scott’s(ph) on the line with us from Pleasant Hill in California.

SCOTT: Yeah Neal, thank you for taking the call. I can’t believe how timely this is. My name is Scott, and I graduated Yale in ’91, and I have no cognitive problems, but I’ve had Hodgkin’s lymphoma four times. I was a Wall Street whistleblower, and currently I’m in – I spent about $40,000 that I don’t have, I’m permanently disabled, from bone marrow transplant, toxic treatments, et cetera.

But I’m OK now, and my twin daughters that we had through fertility treatments are about to be ruled through a public mediator that spent – went way over the allocated two-hour time limit. She spent four hours with us, but the entire – and I really try to be accurate with my statements – the – almost the entire four hours was spent where the mother of our girls and the court mediator, who is I think a social worker, a licensed clinical social worker, were on the offensive, asking me as sweat was pouring down my face because – and I was wearing a jacket and tie, and I tried so hard – that what was my team to support me.

And then, you know, as far as if I couldn’t walk that day, and I can get through taking care of my girls on a day or two, and I’ll rest on the third when they go back to their mom, that wasn’t even an issue. The mom painted a picture that wasn’t accurate.

And then finally, and I’ll try to be brief here, when the report came out, the judge even said that after reading the mediator’s report, which they accept because of the caseloads, they accept about nine out of 10, and the lawyer in Berkeley can correct me, but about 90 percent are accepted by the judges almost verbatim because they have to look at other factors in the divorce, separation case.

The judge ruled that this – it looked like a reunification plan, as if I were a felon getting out of jail after five years. And I just, I was shaking in the courtroom. I couldn’t believe what I was hearing. So but anyway, I’m still about to lose custody, and I’ll need supervised visits, and I’m a perfectly capable father and want to be.

CONAN: Ella Callow, there are divorce cases, it would seem, and child custody cases stemming from them, I guess just on the basis of the statistics, there’s a lot of people in Scott’s situation.

CALLOW: Wow yeah, Scott brought up so many issues, and first of all, I’m so sorry for him that he’s dealing with this. It’s so difficult to be going through a custody battle in and of itself and then facing sort of discriminatory treatment at the same time is – just makes it unbearable for many people.

A couple of things he mentioned, you know, I would like to speak to. One yes, this is very common. And what people don’t realize is that while termination of parental rights, the jurisprudence involves the 14th Amendment, and so there’s a bit of a higher standard for the state to remove a child, that they have to show theoretically that a parent is unfit.

In family law cases, the standard is much lower. It’s the best interest of the child standard, and you’re not having the state intervene and take a child, it’s between two equally situated parents. So these parents sometimes face an even greater uphill battle, and they have no right to counsel, whereas in most termination of parental rights, child welfare cases, they do have counsel, even if they’re overwhelmed counsel.

The second thing is that he’s correct. Mediators are – the decisions of mediators on custody are followed in the state of California, where he’s located, upwards of 90 percent of the time. So if you lose in mediation, you’re going to have a very difficult time moving the case in the other direction. And social workers, and I have a social welfare degree from UC Berkeley, and there are wonderful social workers out there, but I’ll tell you that in my training and my experience, they don’t get much education on this topic despite the high number of parents they will encounter, especially if they’re working in child welfare.

But in either family or child welfare courts, they will be dealing with parental disability, and they’re not provided the education around what are best practices of these parents, what are assumptions and attitudinal biases you need to be aware of when working with them, when do you need to reach out for consultation or put into your reports that you don’t have expertise in this area. So it is problematic.

CONAN: And he also mentioned that his wife, or ex-wife I guess, was misrepresenting the facts, and obviously we don’t know the facts in this particular case, but that’s hardly unusual in some – in divorce cases.

CALLOW: Yeah, it’s – you know, I think we all understand as a society that it’s a time no one plans to be in, and emotions run very high, and everything tends to look more awful, and so paint worse pictures of one another, and disability can be mud they throw at the wall, seeing if it sticks.

CONAN: Scott, thank you very much for the call, and we’re sorry for your situation. We hope things work out.

SCOTT: How can I get a transcript? Thank you, Neal.

CONAN: Go to after the show is off the air, and we can help you out with that. Scott joined us from Pleasantville – Pleasant Hill, California. Stay with us. We’re talking about the rights of parents with disabilities. It’s the TALK OF THE NATION from NPR News.


CONAN: This is TALK OF THE NATION from NPR News. I’m Neal Conan. A new study from the National Council on Disability estimates that more than six million children in the U.S. have parents with disabilities, and those with psychiatric or intellectual disabilities lose custody of their children at an incredible rate, as much as 80 percent of the time.

Clearly there are some cases where removing a child is necessary for the child’s health and safety, but the report’s authors believe that’s not the story here, that discrimination is at the root of these numbers. The Americans With Disabilities Act is supposed to protect those parents, but the report finds it’s not working out that way.

If this is your story, if you’ve been part of it as a child, a social worker or a parent, we’d like to hear from you, 800-989-8255. Email us, You can also join the conversation on our website. That’s at Click on TALK OF THE NATION.

Robyn Powell, co-author of the National Council on Disability study, and Ella Callow of the National Center for Parents with Disabilities and Their Families, are our guests. And let’s see if we can get another call in. This is Leila(ph), Leila with us from Spring Harbor in Michigan.



LEILA: Hi, Neal.

CONAN: Go ahead, please.

LEILA: Well, I’m a licensed clinical social worker, and I actually practice in Indiana, and I’m really proud of our state. I don’t feel at all like we discriminate individuals with disabilities. I’ve worked with, you know, parents on both ends of the spectrum where I felt like I was placed in a home where it wasn’t safe, and we made every attempt to unify the parent with the children.

And then on the other end I’ve had a quadriplegic, you know, family that wants to have children, and we’ve helped to facilitate adoption to make that possible for that family. One family in particular where it was unfortunate, you know, we had two parents with intellectual disabilities, and the mom kept having multiple miscarriages, she didn’t know she was pregnant.

When I actually came into the home to work with the family and provide wraparound services, I mean she had a five-year-old, a three-year-old, a one-year-old, and then she had twins. She didn’t know she was pregnant, ended up actually losing one of the twins and the other baby was a high medical needs situation.

So I feel like – I don’t know what states this study included, but I feel in Indiana we really try to make every effort to provide services to families with special needs.

CONAN: And that decisions are made on a case-by-case basis and not reflexively saying if you’ve got disabilities, you’re disqualified.

LEILA: Absolutely, and we have great judges in our community that really work hard to make it possible to give supports to these types of families. But again, you know, in all reality it’s been my experience when you have families with some medical issues or high special needs, oftentimes the children have high special needs that require, you know, extra services that maybe some parents aren’t able to provide.

And if they don’t have family support, there has to be an alternative plan.

CONAN: Robyn Powell, did you look at Indiana?

POWELL: We looked across the country, and in our report we do show that over two-thirds of the states in the United States, their child welfare laws allow courts to reach the determination that a parent is unfit on the basis of the parent’s disability. I’m not sure at the moment whether Indiana is one of those states.

CALLOW: Indiana is not.

POWELL: Indiana is not. Okay.

CALLOW: No, so that is a difference.

POWELL: Right, absolutely, as Ella said, it’s absolutely the difference there.

CONAN: Well, Leila, thanks very much for the call.

LEILA: …to Indiana and see what we’re doing different.

CONAN: Thank you very much.

CALLOW: You know, and I also want to add that, you know, she touched on something really important, which is that families where the parents have greater needs themselves, sometimes the children do as well. The problem is that because the discrimination has been so incredibly pervasive over so many decades, and these parents face so much discrimination in their day-to-day lives, they’re often fearful of reaching out for any help because they understand that it renders them overexposed.

And once they become involved with that system, they don’t trust that their disability will not be used as something that grounds a removal as opposed to something that secures services for them. And that’s very frightening to us.

CONAN: Joining us now is Linda Spears, vice president of policy and public affairs at the Child Welfare League of America, joining us from her home in Upper Marlboro, Maryland. Thanks very much for being with us.

LINDA SPEARS: Good afternoon, thank you, Neal.

CONAN: And I knew these stories speak powerfully to you. I’m sure you have experience where these are awful decisions, sometimes difficult to make.

SPEARS: They are difficult decisions to make, and I think that there are a variety of factors that contribute and that say that I think everyone is right in this scenario, that there are lots of good workers out there trying to do the right thing, and at the same time there is an awful lot of discrimination and bias.

And I would differentiate between bias at the worker level and bias at the systemic level that affects these families, and I think even when workers try hard, there’s often bias at the systemic level – a lack of resources targeted to these families, a lack of policy that supports getting families preventive services before a child welfare intervention is needed.

The nation is replete with a lack of prevention and early intervention services for all kinds of families in the child welfare system. But I think that the impact on very vulnerable adults with disabilities, children with disabilities, can be very disproportionate. So it’s a complicated question.

CONAN: You raise an interesting point, though, about resources. There are situations where either through interventions of one sort of another, early intervention, as you mentioned, but also either physical or having somebody come by the house every once in a while, where that might make it possible for people to keep their children.

SPEARS: Uh-huh. Uh-huh. I mean we’ve – you know, exactly. I look at the system – I have elderly parents. I look at the system we have in our country, which is woefully inadequate but still exists, that provides elderly folks with in-home aid, with support services, where the variety of things to enable them to maintain their independent functioning for as long as they are health-wise able to.

We don’t have such a thing for people with disabilities who are parenting. We may have some things for them as disabled individuals that function well, but as parents, in their role as parents, there’s not a lot out there that really targets this population of families, provides them with supports so that they’re not at risk of getting into trouble and so that they’re not afraid to go and access the service, as Robyn just mentioned.

Families are often fearful to go to the child welfare system for preventive or early intervention services, and that’s with good reason. The child welfare system is designed in a way that is really oriented towards punitive measures, toward deficit functioning. Many child welfare systems are trying to switch that orientation, but we have a statutory framework in this country that says failing to parent gets you support and not desiring to parent.

CONAN: That’s interesting.

SPEARS: And I think that’s a really fundamental problem in the way that we provide our services. Now, that said, we don’t want, you know, sort of a policy and government overreach in the families’ lives. But at the same time, when families struggle, when families need support and don’t have any place to go, and then you set up an intervention so that it punishes them for seeking or needing help, it seems unreasonable.

CONAN: Here’s – I just wanted to get to this email from Diane(ph) in Battle Creek in Michigan: My husband’s aunt is intellectually challenged and is married to a man also intellectually challenged. They both hold jobs and own their home. Before they got married, however, my husband’s grandmother, the mother of the aunt, had her daughter, the aunt, sterilized so she could not have any children.

The rationale was the couple would not have been able to care for the child. And Ella Callow, does that sort of thing go on?

CALLOW: Yeah, I mean we have 100 years of really bad policy around parenting with this population, sadly. You know, sterilization, which render people physically unable to have children, and institutionalization, which segregated them out of society so they didn’t have opportunity to become parents, were the way this population was dealt with.

Eugenics is based largely on concerns that they would reproduce and that it would be bad for children and bad for society. After de-institutionalization and this sort of – the disability self-determination movement, disability rights movement, they went out into the world and the mantra became not it’s bad for society but it’s bad for children, for them to have children.

And there are still states with laws on the book that allow for sterilization, though it’s very few, and it’s through judicial process at this point. But people are talked into it. And I think, you know, Robyn can speak to the issue that women with disabilities face when they’re interfacing with the medical community, the assumptions that are made about whether they should have children and what are the proper choices for them.

CONAN: And Robyn, I wanted to ask you particularly about fertility treatments.

POWELL: Absolutely, well, first back to what Ella had mentioned. I’m a woman with a physical disability, and I can’t tell you how many times I’ve been offered a hysterectomy.

So it was not even through just sterilization, through traditional systems. But every time I go to the doctors, they suggest that for me. I don’t have a medical reason to have one. I’m only 31 years old. I’d like to have children. And so there is this belief among society – and the health care profession, as well – that people with disabilities do not want to have children or cannot – want – have children, and so that carries on to the fertility treatment. Providers of assisted reproductive technologies are often discriminating against prospective parents who have disabilities based solely on their presumption that this individual should not have a child.

CONAN: Let’s see if we get another caller in. This is Rachel, Rachel with us from Hampton in South Dakota.

RACHEL: Yes. Thank you. I’m coming from being a children’s advocate in the hospital setting. I’m actually a child life specialist, which is not the same as a social worker. We work with children and families to promote ideal development, and also to try and prevent unnecessary stress and trauma and to facilitate coping for families. However, often, I came across – I don’t want to say battles, but maybe a battle of wills with sometimes social work staff, sometimes physicians, when they would realize that one of the kids – when a child was sent home, and perhaps they were being sent home with a medication regimen, or if they had a chronic illness, that when the parents were illiterate, that meant they were unable to care for their children.

CONAN: Illiterate?

RACHEL: And I thought…


RACHEL: Yes. And I thought…

CONAN: There were several thousand, tens of thousands of years of human history where all parents were illiterate.


RACHEL: Well, that’s…

POWELL: Right.

RACHEL: …the whole thing, and I would then – you know, well, they have to give the medicine and they have to give it at the right time. And I, you know, constantly set up charts and show them how I – you know, we can make a chart, and this parent – you know, these parents would show unbelievable care for their children in the hospital. And then suddenly, it was, oh, my gosh. This mom can’t read, and this kid has sickle cell disease. Well, this kid has been coming to us for 12 years, and no one’s ever noticed that before? Because I know I’ve made charts for her for 10 years.

And so it’s been really – that, to me, was one of the things that was most difficult, is when kids come into the hospital, people haven’t recognize it or acknowledge it or had a problem with it yet. But if some child came in, let’s say, because she had a serious infection and said she had to go home on an antibiotic regimen, or maybe a parent had to be taught how to clean a child’s central line, but these parents showed all of – they were doing all of that in the hospital. And then we would get recommendations that, you know, perhaps this child should go to foster care because for whatever reason, whatever the disability be – and I’d tell you illiteracy is a big one. But that, you know, they just may not be able to do this, even though they’ve proven themselves. And so fortunately, I am a strong will and…


CONAN: Sounds like it.


RACHEL: …and a very strong advocate because most of the time, I was able to prove that, no, I think we’re absolutely wrong and documenting them. You have to document, document, document in the hospital what you’ve seen this parent do so that people know, because that’s the other thing. When people come in and parents are – who had disabilities and they’re noticeable, instantly, they are labeled by many people in a hospital setting.


RACHEL: And right away, discharge to foster care is being considered from almost the day they come into the hospital.

CONAN: Rachel, thank you very much. That’s an alarming story…


CONAN: …but thank you.


RACHEL: It is, but it’s something for people to be aware and to help these parents.

CONAN: Thank you again. We’re talking…

CALLOW: You know – I’m sorry, Neal. I just wanted to interject. You know, between the first caller, Neal, who’s in our area didn’t contact us, and Rachel who’s out there fighting battles in South Dakota on her own, I do want to mention that the National Center, which I direct legal programs for, is Through the Looking Glass. Our agency, we’re a local agency in Berkeley. We serve about 400 families a year doing preventative services, assessments of parents so that we have generated evidence that parents can or cannot safely parent.

We work with children with disabilities, as well. And, you know, if people like Rachel feel like they’re isolated and they want some help, we have free legal technical assistance and, you know, can provide a lot of information to them, and people like, Neal, you know, contact us.

CONAN: Ella Callow is legal program director at the National Center for Parents with Disabilities. Also with us, Robyn Powell, attorney adviser at the National Council on Disability, and Linda Spears, vice president of policy and public affairs at the Child Welfare League of America. You’re listening to TALK OF THE NATION, from NPR News. And, Robyn Powell, let me turn back to you for a moment. Is inability to read defined as a disability?

POWELL: It can be, actually, yes. If it is really to an intellectual disability, I undoubtedly think it could be. And it’s that – what she brought up is a huge issue. When parents with disabilities bring their children either into the hospital or even to the pediatrician, they’re facing health care providers that have these biases. We spoke with parents who had their child’s pediatrician report them to child welfare for no reason. The investigation was completely unfounded, but they believe it was really to their disability.

And again, this is happening often, and this is a detriment not only to the parent, but it’s a detriment to the child. It’s very stressful to have your parents being investigated. It has huge cost to both the parent and the child.

CONAN: There is another, I guess, definition of disability. To include the deaf would be – many would find offensive. They have, obviously, their own language, their own culture. This is an entire community.

POWELL: Yes. That’s a great point, and some deaf folks do not consider themselves disabled. Nonetheless, we did talk with many deaf parents when we were writing this report, and they have similar issues. They’ve also encountered bias and discrimination within the child welfare system, where they bring up language issues. They state that the children are not learning a language because sign language is their first language at home. And so the deaf community is experiencing similar issues, absolutely.

CONAN: And we’re talking about legal recourse on the federal level, or is this going to be a battle that worked out state by state?

POWELL: Well, I think it’s going to have to involve both state level and federal level mediation. We really need to change the law federally. I mean, it’s certainly the best and most comprehensive way to approach this. But nonetheless, states need to also look at their child welfare centers, look at theirfamily law statutes and change how disability is included – remove disability as a ground for termination of parental rights. In our report, we offer model legislation, which we urge both the states and the national government to really adopt as soon as possible, urging Congress to look at this issue, similarly to how they looked at the Indian Child Welfare Act. When that was adopted, that was adopted because Native American families were encountering similar barriers.

CONAN: Robyn Powell, coauthor of the study “Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and their Children.” Thank you very much for your time.

POWELL: Thank you.

CONAN: Ella Callow, thank you for your time, as well.

CALLOW: Thank you, Neal.

CONAN: And we’d also like to thank Linda Spears of the policy and Public Affairs Center at the Child Welfare League of America. Coming up next: the legacy of Marvin Miller. This is NPR News.


‘Divorce from hell’ began with $5,400 monthly alimony offer, ended with $1,500 installments

A month after their 2008 divorce case was filed in Pinellas County, Fla., Terry Power offered to pay his wife of nearly 20 years $5,400 per month in alimony until he retired, and $50,000 in cash.

He also was willing to give Murielle Marie Helene Fournier half of the contents of their opulent home; it was upside down, so they had no equity in it, the Tampa Bay Times reports.

Both in their 50s, the two were used to living an upscale lifestyle. But Power’s $250,000-a-year business wasn’t doing well, and while he and Fournier spent nearly five years litigating what the newspaper describes as a “divorce from hell,” some $400,000 went to attorney and expert fees.

Initially cooperative, Power became more angry and resistant the longer the process continued. After enduring the litigation tactics employed by his wife’s lawyers and watching the costs of the case mount, he began representing himself and used some of the same tactics. He also went further, defying court orders and refused to pay bills he said he didn’t have the money to satisfy. At one point, Fournier told a Times reporter, she went for weeks without running water at home, because it had been shut off.

Judges in theory had the power to enforce their orders, but often didn’t take decisive action as the hard-fought case dragged on, the newspaper recounts. (Threatened at one point with a 30-day jail term if he didn’t ante up, Power paid what was required.) The court system also appeared unable to deal effectively with a situation in which much the same arguments were, seemingly, made again and again without resolution.

“I’m trapped in the system, I can never break out. It’s like Groundhog Day,” Power told the newspaper at one point, referring to the movie in which Bill Murray’s character relives the same 24-hour period again and again.

In November, a decision arrived in Power’s mail from the judge—the fourth to preside over the case. It awarded Fournier $1,500 per month in permanent alimony. However, Fournier would have to make a $525 per month child support payment to Power, resulting in an effective alimony amount of just under $1,000, in the immediate future.

Both Fournier and Power told the newspaper the legal system had failed them. Power, saying he was working to get his business back in the black, planned to contest the $87,000 he owed in back alimony. Fournier, who reportedly had turned down his initial $5,400-a-month alimony offer because her legal counsel had told her she could do better, was bitter.

“The thing is, right now Terry’s living very, very well, and I have no money,” she told the newspaper. “He was able to do whatever he wanted with this system…he got angrier and angrier, and it got out of control. If you look at Terry, he didn’t follow I don’t know how many orders, and he was never held accountable.”



Adoption Case Brings Rare Family Law Dispute To High Court

Take the usual agony of an adoption dispute. Add in the disgraceful U.S. history of ripping Indian children from their Native American families. Mix in a dose of initial fatherly abandonment. And there you have it — a poisonous and painful legal cocktail that goes before the U.S. Supreme Court on Tuesday.

At issue is the reach of the Indian Child Welfare Act, known as ICWA. The law was enacted in 1978 to protect Native American tribes from having their children almost literally stolen away and given to non-Indian adoptive or foster parents.

Two of the justices likely have a special interest in the case: Chief Justice John Roberts and Justice Clarence Thomas both have adopted children.

The case before them and the other justices is a tragic saga. Christy Maldonado, an Oklahoma resident of primarily Hispanic heritage, was engaged to be married to Dusten Brown, a member of the Cherokee Nation, who is technically about 2 percent Native American. In 2009, Christy, a casino worker and single mother of two, told Dusten she was pregnant. But the relationship deteriorated and she broke off the engagement.

Beyond these facts, the protagonists in this story agree on little. One fact, though, is beyond dispute: Whatever happened in the first few months of the pregnancy, Dusten eventually texted Christy that he was giving up his parental rights and would not support the child.

“It punched me in the gut, knowing that the father of my child did not want her at all,” Christy says. “That’s when I pretty much decided I had to do something because I could barely even put food on the table for the kids at that time.”

An Adoption, And A Legal Challenge

Christy decided to put her child up for adoption. Through an agency, she found a couple in South Carolina she liked, Matt and Melanie Capobianco, and the three agreed to an open adoption. The Capobiancos helped support Christy in the last months of the pregnancy and were in the delivery room for the birth. Matt cut the umbilical cord.

A month prior to the birth, Christy, through her lawyer, sent a letter notifying the Cherokee Nation of her adoption plans, giving them a chance to intervene under the Indian Child Welfare Act. The tribe said it had no record of Dusten Brown as a tribal member. So the adoption went forward.

Four months after the birth of the baby girl — as Dusten was about to deploy to Iraq, and as the adoption was about to become final — he was served with papers notifying him of the adoption. Dusten signed off on them, inadvertently, he says. But within days he filed a formal objection, invoking the Indian Child Welfare Act. He says that in agreeing to give up his parental rights, he thought he was relinquishing his parental rights to Christy.

“I just figured the best interest would be … for [Christy] to have the full custody of her, but for me to still be in the picture — be able to come visit and stuff,” he says.

But after learning about the adoption, he sought full custody of his daughter. While there is no doubt that he would have had no leg to stand on under state law, by the time the case went to court, the Cherokee Nation had located him in its records. And the South Carolina courts ruled that the Indian Child Welfare Act trumped state law. In December 2011, the South Carolina Supreme Court ordered the Capobiancos to give their then-2-year-old daughter to her biological father, a man she had never met.

“It was by far the worst day of our lives and I’m sure of hers,” says Matt Capobianco. “She cried after us,” Melanie adds.

The adoptive parents appealed to the U.S. Supreme Court, backed by the birth mother and the guardian ad litem, appointed by the South Carolina family court to represent the best interests of the child.

Normally, the Supreme Court does not hear such family law disputes, but this case is a test of the Indian Child Welfare Act.

Competing Views

The law was enacted after extensive congressional investigations and hearings revealed that 35 to 40 percent of Native American children were being improperly removed from their families and given to white adoptive and foster parents. Charles Rothfeld, Dusten Brown’s lawyer, notes that these abuses were “catastrophic” for the tribes, which “were at risk of becoming extinct because their children were literally being taken away from them.”

To combat the dire situation, ICWA established a chain of adoptive preferences for children with Indian heritage. In the event that neither parent could take custody, other Indian family members were to have priority, and after that, tribal adoptive parents.

Just how you see this case is something of a Rorschach test, with the adoptive parents seeing it one way, the father another, the mother yet another, and the court-appointed guardian still another.

As the adoptive parents see it, they were not stealing a child from an Indian parent because the only parent with Indian heritage had already given up his parental rights. And as the Capobiancos’ lawyer, Lisa Blatt, puts it, the federal law was meant to protect Indian children from being snatched from their existing Indian families.

Even if Dusten qualifies as “a parent” under the law, “the Indian Child Welfare Act only protects those parents who already have a prior custodial relationship,” she argues.

Not so, say the tribes. They see the case as an attempt to undo the protections that Congress established in the face of evidence that states were trampling on the rights of Native American parents. “Congress decided it had to step in,” says Rothfeld, and it did so by creating “special federal rules superseding state custody rules that would govern where Indian child custody was at stake.”

The case also is about the autonomy of a non-Indian mother. The birth mother’s lawyer, Lori Alvino McGill, contends that if Indian fathers can sweep in this way, based only on biology, and override the birth mother’s decision, why couldn’t sperm donors or rapists who are Indian do the same? “No other set of men can choose to kind of sit back, renounce all responsibility but hold a back-pocket veto to an adoption choice,” she says.

The guardian ad litem, represented by lawyer Paul Clement, scathingly says there is “no box” like the one Dusten Brown is seeking to check.

“Generally you’re not allowed to say, ‘Well, look, I don’t really want to give you any financial support, I don’t really want to have much to do with this child, but I do really want you, person I’ve just gotten pregnant, I want you to take care of this child, and I don’t want you to do something like give up this child for adoption,’ ” he says.

What’s more, he adds, under state law, it is the best interests of the child that prevail. “Except if this federal statute applies and applies only on the basis of her Indian heritage, well, then everything changes. … It just completely shifts the focus of the whole proceeding around based on race,” says Clement, and “that’s something that we generally wouldn’t think the Constitution allows.”

A Heartbreaking Case

Native Americans bristle at the charge of racial classification. Indian tribes, they note, are quasi-sovereign nations recognized by the U.S. Constitution.

“This law does not apply because of race,” says Chrissi Nimmo, assistant attorney general of the Cherokee Nation. “This father was a citizen of the [Cherokee Nation’s] government; it’s not just if you have Indian in your background.”

Whichever way the Supreme Court rules in June, the case of “Baby Girl,” as she is referred to in the briefs, is heartbreaking. No one disputes that she was sublimely happy with her adoptive parents, and videos of her with her father, now married, seem to show a little girl equally happy.

Her birth mother says that while she spent time with her child at the adoptive parents’ home in South Carolina and listened to her child on the phone regularly, she now does not even know where her daughter lives. Neither do the adoptive parents. Dusten Brown says he has kept his daughter apart for the past 16 months to allow her to become used to her new home, away from the chaos and bitterness of the legal fight.


10 Top Ways to Fight Parental Alienation

There is much debate as to whether or not parental alienation rises to the level of a definable mental illness often referred to as “parental alienation syndrome.”  At Mr. Custody Coach, we don’t much care about that part of the argument.  Reasonably intelligent individuals are aware that people of all ages can be taught to hate, love, learn, etc. on any number of topics.  When a malicious parent chooses to teach their children to hate the targeted parent – that’s parental alienation.  (Referred to as “PA” throughout the rest of this article.)

It’s real.  It exists.  Despite all of the fear-mongering and hysteria, particularly by women’s groups – it’s not simply a “tactic to gain the upper hand” in a custody proceeding.  A mother can do it.  A father can do it.  It makes one wonder why anyone would be against anything that shines a spotlight on parental alienation.  We have our suspicions, but that isn’t the point of this article.  We want to share with you some ways to combat it when it is happening to you.  Please also see our Parental Alienation Teleconference – available on-demand with over 3-hours of extremely detailed and helpful discussion with our special guest expert.

#1 – Don’t become an alienator! Regardless of the order of the rest of the tips we present, this is the most important one.  When you’re experiencing PA, you will have a natural tendency to become defensive and explain yourself to death.  Worse, you may want to counter and talk about what horrible things your ex has done.  This is alienation, too!  Don’t get suckered by your natural desire to defend yourself against false accusations.

#2 – “I love you” always! Any time you do manage to gain contact with your children, regardless of the method, tell them that you love them.  Tell them that you care for them.  Tell them that they’re often in your heart and mind.

#3 – Positive language, always! Avoid the use of negative language.  This is one parents often overlook.  It’s simple and it’s subtle, that’s why it’s missed.  Sometimes we’ll call it “think like the child.”  Examples include:

Instead of, “I miss you…” Use, “I look forward to the next time I see you!” I miss you can put the child in a position to feel guilt or upset.  The second effort is upbeat and positive.

Instead of, “I wish I could have seen that…” Use, “Wow, that’s great to hear and must have been very exciting!” The former conveys a lost opportunity or a regret.  The latter conveys excitement, support, and positive reinforcement regarding whatever experience is the topic.

Find your opportunities to turn a potentially negative message into a positive communication.

#4 – Never stop contact efforts! Even if you know that your cards, letters, gifts, emails, voice-mails, etc. are being intercepted or are otherwise never delivered – don’t give up the effort.  Change may not come in the short-term, so keeping a diary or journal of your contact efforts as well as writing to your children as if they were going to read it – SOME DAY – will prove helpful both for you and, hopefully your children if they have the opportunity to find out the truth.

#5 – Control yourself! Manage your emotions. Follow your court orders and agreements.  Avoid giving your high-conflict ex-partner any reason to vilify  you to the children more than they already have.  Frankly, they don’t need an excuse, they can just make them up.  Made up ones, you are much more likely to overcome in the long run.  Provable mis-steps, not quite so easy to overcome.

#6 – Avoid blaming the children! Try to remember that they are victims in this mess, too.  You will be challenged on this one, as along with the general bad-mouthing about you that is a common part of the PA experience, your children may spy on you, talk about every move you make, every purchase you do, who you talk to or spend time with, and if you don’t remember that it is a part of the alienator’s arsenal, you could become agitated towards the children.  Don’t let it happen.

#7 – Be yourself! Don’t overcompensate, though.  If you just act as you always do, you can’t possibly be appearing to your children as your ex is portraying you.  Avoid overdoing it because of your desire to be “extra-special” as a means of countering your ex’s false allegations. Just be your usual loving, caring, nurturing self.  Always remember that your actions will forever speak louder than your ex-partner’s words.

#8 – Keep your plans, always! That is to say, if you’ve made special plans or arrangements which involve your children, leave them in place even if you fear that your ex-partner will not relinquish the children for your custodial time(custodial interference).  If you’re late or fail to show one time, it will be twisted into “proof” of your lack of caring for the children and give them the power to further alienate the children.

#9 – Build the relationship with memorable moments! We are not suggesting that memorable moments = become the Disneyland parent!  Quite the opposite.  Long talks while canoeing on the lake or during long walks, a nice vacation, having a catch with the ball, sharing a professional sporting event… for younger children – book reading, movie watching, this list is endless.  It’s not about “fun and games all the time” – it’s about memories that will forever be etched in their brains for all time.

#10 – Create the best team of professionals you can afford! Legal professionals, mental health professionals, therapists, articles, scholarly studies with solid data – all of that needs to be readily available to make your case the strongest it can possibly be.  Be sure they are knowledgeable and experienced with parental alienation and can advocate for the appropriate changes that will benefit your family.

Conclusion: Parental alienation of children, regardless of severity, will very likely affect them well into adulthood.  It is vitally important that you avoid, at all costs, directing your rage, frustration, or disappointment at the children. The high-conflict, vindictive ex-spouse is the root of the problem no matter how much the actions and words of the child are what becomes your immediate torment.  The children are caught in the middle of a terrible struggle and doesn’t really mean the terrible things they’re saying about you or doing to you.

Hang in there!


The Latest iPhone and iPad Apps to Help Lawyers

Scroll the Smarter Way: The Latest iPhone and iPad Apps to Help Lawyers Work More Efficiently

cloud_insetThe most downloaded iPhone and iPad applications may be the hit cartoon game Angry Birds, the popular social network Facebook and the Internet radio service Pandora, but among the one million different apps are some useful tools for lawyers on the go who crave organization, easy access and synchronization between their office and everywhere else. In a recent continuing legal education course, “iPhone and iPad Apps for Lawyers,” experts hand-picked apps in a variety of categories deemed most valuable for legal professionals.

Tech-savvy panelists Jim Calloway, director of theOklahoma Bar Association Management Assistance Program, and Tom Mighell, a senior consultant at Contoural, Inc., a provider of information governance consulting services, presented the most exciting applications for iPhone and iPad users that can make these devices the Swiss Army knife of successful lawyers.

An over-arching theme is the concept of a “mobile office” that provides tools away from your desk. Rather than a static paper calendar, apps such as Fantastical and Pocket Informant Pro can be accessed from a mobile device. For Internet searches, Calloway identified the Atomic Web Browser app as ideal for the iPhone and iPad because it “has the ability to remember your settings … so the next time you go to the site you won’t have to zoom in and out.” Google’s Chrome browser app allows users to access sites saved on a computer at work via their touch-screen devices.

“If you are a Chrome user on your desktop, you can synchronize all of your bookmarks back and forth (between your iPad and desktop),” said Mighell. Calloway reiterated that point, admitting that “many times that’s bailed me out where I had a bookmark I wanted to get back to.”

The panelists said that the question lawyers asked most about when using iPhones and iPads was: “How do I use Microsoft Word?” Document creation, revision and annotation are critical to many in the legal profession to access important attachments and make changes. As of now, there is no official app made for Microsoft Office.

Documents To Go® and Quickoffice Pro HD are popular tools for editing and manipulating documents, but experts shared that lawyers who crave consistency should download the app CloudOn to enjoy the entire suite of Microsoft Word features.

“With CloudOn, you are actually accessing Microsoft Office in the cloud,” explained Mighell. “It will load the document into a full version of Microsoft Word.” Mighell noted that CloudOn does have a limitation since it requires an Internet connection.

Panelists said another important task for legal professionals is note taking. Notability is a versatile app that lets users log information through handwriting, typing and audio. But Evernote, a popular new player in the app world, was labeled the “most valuable player” of iPhone and iPad apps based on its ability to allow users to log information as they find it, and search for it later.

“Evernote is just, in my view, a must-have app,” said Calloway. “It has a great web-capturing ability.”

As a cloud-based service, Evernote is a tool for tracking information and making it accessible by organizing the information with “tags” and storing those details in different “notebooks.” Users cannot only store their own notes and lists, but also articles they find and pictures they take while out and about. For instance, if a lawyer sees a street sign that needs to be documented for a particular case, a lawyer can snap a photo of it in Evernote, tag the photo with the case name, and find the photo later by searching for that case name.

“Evernote will use optical character recognition technology to be able to read the text in any image that you upload,” said Mighell. “You can easily read it and that makes it searchable.”

Experts stressed that lawyers also focus on security, especially because client-privileged information and personal information should be confidential. Mighell and Calloway recommended locking a device and instituting 12-character passwords rather than using the previous 8-character standard. An easy way to store these passwords is through password manager apps LastPass or 1 Password, said Mighell.

“A password manager is something you should have on your iPhone or your iPad,” advised Mighell. “Keeping track of passwords is just not easy to do and shouldn’t be done anymore on a notepad or sticky note.”

Experts also discussed how to digitally sign documents; how to use accessories to film witness testimonies with an iPad; how to scan documents with Scanner Pro; and ways to use an iPhone or iPad as a remote for presentations, such as through KeynoteRemote.

The panelists said legal professionals should download carefully; advising that they check with their IT department to verify if one app is preferred over another and to build a “support network” of friends and co-workers who also use the same apps. Several apps come in both free and paid versions, and experts recommend paying if a user enjoys the app enough or will frequently use it.

More information can be found in Tom Mighell’s book, iPad Apps in One Hour for Lawyers.  The CLE was presented by the ABA Law Practice Management SectionSolo, Small Firm and General Practice DivisionSection of Intellectual Property LawYoung Lawyers Division and the Center for Professional Development.

Top Ten Reasons to Hire a Lawyer

Not every legal matter requires the use of an attorney. Fighting a speeding ticket and going to small claims courts are two examples. However, in many other situations involving a legal dispute, challenge, or deal, you may not wish to chance the risks of going it alone without the advice of an experienced lawyer who can help you out. In fact, while good legal representation may not be cheap, it can help get you out of a number of sticky situations – such as a bad divorce, lost job, or DUI violation – not to mention the potential alternatives for not using an attorney — including broken agreements, lost claims, or worse, jail time.

While each person’s legal situation is different, there are times when you really should hire a lawyer. Below are the top ten reasons.

1. The law is complicated. If you are not a lawyer you probably have no business acting like one in certain instances. Even experienced lawyers typically do not represent themselves in court. A solid case can quickly unravel without the help of a trained and emotionally detached attorney. Similarly, failing to hire a lawyer when starting a business, reviewing a contract or embarking on other endeavors with potential legal ramifications can result in otherwise avoidable pitfalls.

2. Not having a lawyer may actually cost you more. What is at stake? A criminal case may determine whether or not you spend time behind bars, while a civil case could hurt you financially. Besides, many civil attorneys don’t collect a dime unless they win your case. Also, you may be able to claim legal fees as a plaintiff in a civil case, so hiring a lawyer can actually save or make you money.

3. Lawyers know how to challenge (and sometimes suppress) evidence. You may not even know that a key piece of evidence against you was improperly obtained or that the testimony of a witness contradicts an earlier statement. And did the crime lab properly handle the evidence every step of the way? Your attorney will find out.

4. Attorneys understand how to properly file court documents and handle other legal procedures. If you’re not an attorney, you may struggle with the deadlines and protocol for properly filling out and filing certain legal documents. One late or incorrect filing could derail your case, delay a given legal procedure or worse – have the case thrown out altogether (and not in your favor).

5. Because you don’t know any expert witnesses or private detectives. Attorneys depend on an extended network of professionals to help their clients’ cases. Most non-attorneys do not personally know the types of professionals who can help with discovery or challenge evidence or testimony by the opposing party.

6. You’re not sure how to plead — or what a ‘pleading’ is? Pleading guilty is not the only choice, even if there is evidence pointing directly at you. An attorney who understands the law will be best situated to explain your options and can help you avoid potentially severe penalties even before a criminal trial begins.

7. Because it is probably better to avoid problems in the first place rather than try to fix them once they arise. You may have heard the saying “an ounce of prevention is worth a pound of cure?” Well, hiring a lawyer in many instances will help you avoid potential legal headaches down the road. Do you really understand the fine print of that contract you are signing? A lawyer will.

8. A good lawyer can strike up a good settlement offer or plea bargain, if necessary. An experienced lawyer probably has seen cases similar to yours or at least knows enough to make a calculated guess about how it might resolve at trial. Sometimes a settlement is the best choice, while other times it makes more sense to see your case through to trial. An attorney also can help negotiate a fair settlement with the opposing party.

9. The other party has legal representation. Non-attorneys are generally at a disadvantage when squaring off against opposing counsel or doing business with another party that has legal counsel. As explained above, the law is complicated and an attorney representing your adversary (or even a non-adversarial party entering into a legal agreement with you) will take advantage of this inequity.

10. Lawyers often provide a free initial consultation. Since many attorneys will meet with you for free during a face-to-face consultation, there is really no harm in talking with one. Not only will a free consultation give you an idea of the type of case you have, it will help you decide whether you actually need to hire a lawyer.


Boosting Parent/Child Communication After Your Divorce

Boosting Parent/Child Communication After Your Divorce

It’s no secret that one of the biggest challenges a parent faces after divorce is communicating with your children. All parents struggle with communication issues as their children grow, but children who have had their lives dramatically altered by separation or divorce need even more attention and diligent observation by their parents.

Children tend not to tell you when they are angry, resentful, confused, hurt or depressed. Instead, they reflect their problems through their behavior — acting out or perhaps turning inward in ways that you have not experienced prior to the divorce.

Here are some tips on ways to encourage positive and productive communication between you and your children. Many of these are obvious or innate behaviors. Some can easily be forgotten amid the challenges you are juggling in your own life on a daily basis.

Take time to see the world through your children’s eyes and you will be better able to meet their needs, understand their confusion or aggression and find appropriate ways to dissolve tension through your conversation and caring behaviors.

  • Be available and attentive when your child comes to you to talk or ask questions. That means turning off the TV, putting down the newspaper, not answering the phone and giving them eye-contact and a welcoming smile. Sometimes attempting to talk to you is the result of considerable thought and risk on their part. Encourage these conversations when they happen.
  • It is helpful to sit, kneel or in other ways get down closer to your child’s level when you talk. Towering over them is a form of intimidation that does not translate into safety or trust.
  • Keep your conversations private unless they want to include others. Let them know they are safe in confiding to you and that you are interested and care about matters that concern them.
  • Don’t dismiss a subject lightly if it is one bothering your child. Laughing, joking or teasing will create alienation that ultimately will discourage your child from sharing what is bothering them. This is a dangerous road to travel, especially as your children develop into their teen years.
  • Equally important is to never embarrass your children or put them on the spot in front of others. This will immediately close the door to honest, trustworthy communication.
  • Avoid talking to your child when you are angry or upset with them or others. Promise to talk in a half-hour or hour at a specific place after you’ve had a chance to settle down and regain your objectivity.
  • Be an active listener. Don’t interrupt while your child is talking. Listen carefully and then paraphrase back what you heard them say. Ask if you’re right in your interpretation. They’ll tell you. This give-and-take will help you understand what is really at issue.
  • Children who feel safe talking to their parents grow up as better communicators overall. They will be more likely to have healthy communication in their own adult relationships, with their spouses and children.

Families that keep feelings repressed and don’t discuss issues that come up send the message that it’s not all right to talk about things that bother us. The consequences of this can be seen in our nightly news headlines every day.

You can open the doors to caring communication in your home by starting today. Your children may be a little resistant at first as they test the waters, but they will surely appreciate this opportunity once they know you are sincere. Start the process yourself and see how valuable it is to hear what your children have to say.

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Rosalind Sedacca, CCT is a Divorce & Parenting Coach and author of How Do I Tell the Kids about the Divorce? A Create-a-Storybook Guide to Preparing Your Children — with Love! For her free ebook on Post-Divorce Parenting, coaching services and valuable resources on divorce and parenting, go to


Special Needs Children and Divorce

Special Needs Children and Divorce

By Sherri Donovan

(published in the New York Law Journal, November 15, 2012)

Sherri Donovan is owner of Sherri Donovan & Associates and professor at the Gordon F. Derner Institute of Advanced Psychological Studies at Adelphi University.

While every divorce is difficult, divorce for parents with a special needs child can be even more so. Advances in treatment of newborns have dramatically increased the number of families that include a special needs child. ³Special needs² can include life-threatening illnesses (such as severe asthma, food allergies and Type I diabetes), chronic and/or physical disabilities (such as cognitive or language delays, learning disabilities, attention deficit hyperactivity disorder, autism and Asperger¹s Syndrome), and mental and/or behavioral disabilities (such as anxiety, conduct or depressive disorders, and difficult temperament or emotional disturbance).

Caring for a special needs child is demanding and introduces an added strain to the parents¹ own relationship, which based on my experience, increases the likelihood of divorce. Divorcing parents of a special needs child face additional challenges throughout the divorce process and after, especially when their child requires lifelong care and support.

Divorce agreements address child custody, visitation and support, as well as spousal maintenance and property division issues. The resolution of these matters is inevitably more complex when special needs children are involved. The uncertainty about the nature and cost of the child¹s future needs and expenses makes it more challenging to arrive at a consensus and draft a divorce agreement that will serve the parties well into the future.

In determining custody and access issues, parties and the court must address the particular needs of the child and these may be difficult to determine with a special needs child. To further complicate matters, parents of special needs children often suffer through the classic stages of grief (i.e., denial, anger, guilt, bargaining, depression and acceptance) and as a result, they often differ with respect to their own perceptions of their child¹s diagnosis and needs.

Parents may become obsessive and controlling with respect to the child, or remain in denial about their child¹s diagnosis. Making decisions about educational, health and treatment options is already complex as no one clear path is likely to emerge at each stage of development.

Decision-making becomes even harder when parents maintain conflicting views of their child¹s needs. Further, special needs children often need consistent home environments, parenting styles, transitions, routines, care and treatment in order to thrive. Parents who are unable to cooperate may inadvertently undermine their child¹s care.

A court will often appoint a forensic psychologist in addition to the attorney for the child when there is a custody dispute. Reports submitted after consultation with those professionals involved in the child¹s care will be invaluable when helping parties arrive at an agreement that serves the child¹s best interests.

Post-divorce, joint decision-making regarding the child¹s care and education continues to require frequent and in-depth communication between co-parents. Adapting access schedules to best serve the child¹s needs as they change over time also requires cooperation and flexibility. Further, selecting and working with medical, therapeutic, benefits and education professionals can be a time consuming, ongoing task without any clear choices.

Parents must take care to assess the particular needs of their child when constructing their parenting plans, thoroughly tailor their plans to accommodate these needs, and be willing and able to adapt their plans accordingly over time as their child develops. Parents of a special needs child need to become skilled at specialized caretaking, and may also need to ensure that both parents¹ homes are equipped to meet their child¹s needs. Parenting plans should be detailed and spell out essential information and instructions to ensure that both parents agree as to the methods of managing the child¹s behaviors, treatments, diet, environmental needs or preferences.

Therapy or parenting classes may be helpful to parents of a special needs child, as may be the ongoing utilization of a neutral such as a parenting coordinator. A neutral familiar with the parenting agreement, the family dynamics and needs, and the other professionals involved can reduce the potential for conflict between parents and resolve conflict more efficiently when it does arise. A parenting coordinator can be kept on standby to help with decision-making and communication, to help manage developments, modifications and agreements, and to serve as a ³hub² for the various professionals involved in the child¹s life.

Financial Support

A child with special needs will require an extraordinary amount of financial support as well, the amount of which may not be predictable at the time of divorce. Many children leave home at 18, but a child with a disability or chronic illness may not follow this life course. Government benefits and legal child support obligations may terminate at this crucial age, while the custodial parent¹s need to support their adult child may continue.

If one parent is carrying the bulk of the caretaking burden, this parent¹s diminished capacity for earning income and contributing to retirement and investment accounts should also be considered when determining spousal support and property division issues. Further, how does a custodial parent obtain support from the other parent to help with the expenses of a special needs child who is beyond the state cutoff age for child support?

As stated above, often parents of special needs children do not agree on the severity of the child¹s disability or the reality of the child¹s need for support, and often one parent is less involved in the child¹s life.

When determining child support for the benefit of a special needs child, a court will likely need to deviate from standardized calculations and consider anticipated costs for medical care, prescriptions, therapy, special education, tutoring, medical and other equipment, adapted furniture, other treatments and supplemental needs.

The public benefits available to the child, both before and after the child reaches the age of majority, must also be examined. Four relevant government benefits programs exist, including means-based Supplemental Security Income (SSI) and Medicaid, and non-means-based Social Security Disability Insurance (SSDI) and Medicare. It is possible for a special needs child to receive all four benefits at the same time.

SSI allows eligibility for food stamps, while Medicaid pays for medical and mental health services, as well as drug therapy and home and institutional services. Medicare is a form of sponsored health insurance available for the disabled, and SSDI is available to special needs children of an individual who has died, retired or become disabled. A special needs child who is under age 22 and who is not working can obtain SSDI benefits based on his or her parents¹ prior earnings.

With means-based aid, eligibility is based on financial need and, in the context of a divorce, it is critical to understand how in-kind versus cash support affects a child¹s eligibility. For children under the age of 18, income and assets held in the parent¹s name are relevant to determining whether a child is eligible to receive means-based benefits. Cash and certain in-kind payments to a custodial parent can reduce a child¹s SSI benefit. Once a child is over the age of 18, assets held in the parents¹ name no longer affect the child¹s eligibility for means-based benefits; however, assets held by the adult child in excess of $2,000 will disqualify him or her from SSI, and cash child support paid to the custodial parent will result in a dollar for dollar loss of SSI. It may also risk disqualifying the adult child from Medicaid at 18, and from Medicare at 20.

Planning Issues

Special educational services may be mandated by federal or state law and provided to a family at no cost. If a school system does not pay for all costs in connection with special education, parents must address how such out-of-pocket educational expenses will be paid for in the divorce agreement or parenting plan. Tuition, evaluations, tutoring, consultation fees and other expenses must be contemplated. The need for vocational, social, and adult living skills training, as well as the potential need for custodial care or guardianship, should also be discussed by divorcing parents in anticipation of the child¹s needs as he or she transitions from school age into adulthood and ages out of the educational system.

Parents may wish to set up a trust for the child during the divorce process or in their estate plans. A divorce financial planner can help project the cost of the child¹s future needs and provide advice as to how to fund and manage the trust so that the child¹s eligibility for public benefits is not impaired. Special needs trusts enable disabled persons to have an unlimited amount of assets set aside for their needs without disqualifying them from government benefits. Retirement plans, life insurance or other financial accounts, as well as lifetime gifts, can be directed to a special needs trust. Assets that flow directly to a disabled individual, e.g., if a parent dies intestate, could put eligibility for government benefits at risk.

Many states in the United States have laws that obligate parents to provide financial support for their child only until the child reaches the age of 18 or 21 or until the child graduates from school. Yet individuals with special needs often require financial support throughout their lives for expenses such as tutoring and private education, medical care and therapy, testing and assessments, vocational training, assisted living arrangements and supplemental income for basic living expenses.

Twenty-nine states have enacted legislation that requires parental support for special needs children to continue past the age of majority.1 The custodial parent may be able to get help via spousal support, which may not have a set termination point yet which is intended to provide for the needs of a former spouse only. Still, never-married parents cannot seek such support from each other through the court system. Further, while spousal maintenance may help, it is not always adequate to account for decreased earning capacity, the burden of the custodial parent¹s extraordinary responsibilities, or the impossibility of this parent ³catching up² should he or she reenter the workplace.


While the ultimate responsibility for addressing the issue of support for disabled individuals beyond the age of majority lies with the legislature, courts should recognize the increased expenses of custodial parents and diminished earnings capacity when making final determinations in connection with spousal maintenance and property division. However, many parents of special needs children will continue to negotiate or mediate their own solutions without legislative backing or judicial recourse.

Family lawyers must take into account the added complexities involved when their clients are co-parenting a special needs child. Each party¹s (including the child¹s) financial situation and future earnings capacity must be thoroughly and realistically considered at the time of divorce.

Agreements must be detailed and tailored, with processes for dispute resolution and modifications outlined within. Above all, destructive and inflammatory adversarial practice must be kept to a minimum. It is critical for parents of special needs children to emerge from their divorce with the ability to communicate in a healthy and cooperative manner so as to prepare them for a potentially lifelong co-parenting relationship.

1. Examples of such state legislation include the following: California Family Code §3910 states: ³The father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.² Iowa Code §252A.3(3) states: ³The parents are severally liable for the support of a dependent child eighteen years of age or older, whenever such child is unable to maintain the child¹s self and is likely to become a public charge.² Virginia Code §16.1-278.15 states, ³The court may order the continuation of support for any child over the age of 18 who is severely and permanently, mentally or physically disabled, unable to live independently and support himself and resides in the home of the parent seeking support.²