Unwed biological fathers are often told they have no rights when it comes to their infant children when placed for adoption. The fact they fathered their child is not considered important when the mother decides, on her own, to give the infant child up for adoption in certain circumstances.
But, this gender disparity in equal protection and due process in parental rights is changing.
Recently, the State of Utah adopted House Bill 308 that is designed to safeguard unwed paternal rights in regards to children six months or younger from being adopted. This law would require unwed fathers to be issued official notification of the mother’s intention to give their infant child up for adoption in certain circumstances. Once received, the father would then have 30 days to assert his rights as a parent and petition the court for custody. This closes a loophole which had allowed mothers to circumvent notifying the biological father and thus committing the ultimate act of parental alienation – terminating the father-child relationship forever.
Common sense and fair play would argue that if an unwed mother decides to give up her rights to a child, then the biological father would automatically be given the opportunity to take custody of his child. Instead, a stranger can be given the right to adopt the child, often without the father even knowing he will never see his child again.
I wanted to take some time out of my schedule to discuss Turner v. Rogers while it’s still recent and I remember my thoughts on the matter. First, I will provide some basic background on the case. Then, I will discuss the basic legal and policy arguments of the case. Finally, I will turn attention to my predictions and the importance of this case for indigent advocacy in general.
I. HISTORY OF THE CASE
What is this Turner v. Rogers case I’m talking about? The answer, thankfully, is rather straightforward. This case involves two indigent parents involved in a dispute over child support. The mother, Ms. Rogers, brought a straightforward court claim against Mr. Turner for child support he owed to their daughter. So far, nothing out of the ordinary.
The noteworthy aspect of the case is that Mr. Turner is indigent, a formal term for a person who is poor; presumably below the poverty line. In terms of full disclosure, both Ms. Rogers and Mr. Turner were indigent parents.
The court in this case held Mr. Turner in contempt for failing to pay for his child support obligations. A proper defense to this failure is an inability to pay based upon lack of necessary income. If that’s the case, why did the judge hold Mr. Turner in contempt? There is both a broad and specific answer. The broad one is that the poverty defense is an affirmative one — one that a defendant must prove in order to avoid being held in contempt. The specific answer is that Mr. Turner lacked an attorney, who would have certainly asserted this defense.
In these situations, a person can typically be held in either civil or criminal contempt, the specifics of which vary by jurisdiction. This case occurred in South Carolina, where a person facing civil contempt may be incarcerated as a result. That’s what occurred with Mr. Turner, who was sentenced to serve jail time for being what most us know in lay terms as being “a deadbeat dad.”
Mr. Turner appealed his case all the way up to the South Carolina Supreme Court on the grounds that he was entitled to have an attorney appointed for him since he could not pay for one on his own. The South Carolina Supreme Court disagreed with his claim and, as a result, he petitioned the US Supreme Court to hear his case.
Family law is not for the faint of heart, and institute teaches best principles and methods ~ Tulsa World
Family law is a tough practice.
Children’s futures are at stake. Homes and any monies involved are being divided. Cases turn ugly in a moment, and attorneys representing their clients must be prepared for these sometimes unexpected mood shifts.
Some Tulsa attorneys admit they would rather try a number of heinous murder cases rather than one family law case.
The researchers predicted that, after the children whose parents weren’t divorced, the children who lived with one parent would exhibit the fewest issues. However, these children were actually significantly more likely to experience various health problems
Judges have been heard to say they dread the controversial and contested family law cases because no one clearly is the winner and everyone loses when all cards have been played.
Even attorneys involved in a family law practice have difficult times because of the twists and turns a case might have. Shane Henry, who practices family law with the Fry and Elder Law Firm, said he consistently lost cases during his first three years in practice and knew he needed additional training.
This means, if the state-as in a judge- wants to infringe or terminate this fundamental liberty interest, he or she had better apply the process due to a parent first. Otherwise, its action is explicitly forbidden. Id. at 721. If the state cannot show that it has a narrowly tailored compelling interest, then the state cannot touch the fit parent’s right at all. Ibid. No other avenue is constitutionally available to accomplish state action, which will adversely affect a parent’s fundamental liberty interest.
If a parent appeals an adverse action by a state which has affected his or her fundamental liberty interest, the reviewing Court must apply the Strict Scrutiny standard of review, to determine whether the state action was indeed achieved without the state showing that it had a narrowly tailored compelling interest to take the action it did. Id. This is a compulsory standard. It’s not an option. Nowhere does it say that if the reviewing Court has sat down and collectively decided, for whatever arbitrary reasoning, that it should apply a lesser standard, that it can do so.
That being said, tell me. Where exactly do Grandparents’ “Rights”, come from? When a parent is brought before a Court and his or her fundamental liberty interest is at stake, there are only TWO competing interests here- the parent’s and the state’s. Santosky v. Kramer, 455 U.S. 745, 759-60 (U.S.N.Y., 1982). If the parent is fit, then the child’s interest, coincides with his or her fit parent’s. Id. at 745, 748, 760-761 (1982). The child’s interest does not stand alone. As such is the case, where exactly-constitutionally- does the Grandparent’s so called “interest” fit into the equation? I can tell you where-nowhere- because they don’t have any “rights”- not under these United States’ Constitution..
The Justices who decided Troxel v. Granville, 530 U.S. 57 (2000), deliberately failed to apply the Strict Scrutiny standard of review, to the threatened fundamental liberty interest of the mother in that case for this precise reason.
Instead, it applied a less stringent standard, having nothing to do with the 14th Amendment, so that it could leave room for the individual states, to concoct their own particular processes by which each could infringe or even, as in my case, terminate the liberty interests of fit parents, by averting the Due Process Clause. In other words, applying the wrong standard gave state legislatures the power to enact laws granting such “rights” to grandparents to intervene into divorce and custody disputes. Under the Due Process Clause of the 14th Amendment to the United States Constitution, this “standing” does not exist.
Because of the Troxel Court’s “instructions” as the state of Georgia refers to the case, Clark v. Wade, 273 Ga. 587, 603-604 (2001), this state claimed that it had the power to sever my custodial relationship with my child, remove her from my home, terminate my legal rights to her and “award” “custody”, to her paternal grandparents- all without finding me unfit. Isn’t that something? After serving my country and vowing to die if need be, to defend the United States Constitution, my own rights were snatched right from under me. It said that it had the parens patriae power to do what it thought was “best” for my child. It had and has, no such power. Neither does any other state.
Number 1., Washington, 521 U.S. at 721 says the state can’t do anything with a child without first proving that it has a narrowly tailored compelling interest.
2. The state can’t achieve such interest without following the bifurcated steps established in Santosky, 455 U.S. at 745, 748, 760-761 .
3. Before we even get to any of all this, the state is explicitly prohibited from applying the best interest standard between a parent and a third party to begin with. Reno v. Flores, 507 U.S. 292, 303-304 (1993).
Nevertheless, there are parents across America whose constitutional rights to their children have been deprived by state action, under color of law. This has been a collective, nationwide violation, extending from the top of our judicial system, to the bottom. This is the state of America today.
But for the United States Supreme Court’s decision in 2000, I would not have been robbed of my right to continue to have the home that I had established for my child, or my right to continue to raise her, so long as I was fit.
I know that such willful deprivation is actionable under federal civil and criminal law against state officials. I also know that one must request relief from the very defendants and perpetrators who have violated him or her- a futile effort that I learned the hard way. My question is, what happens when the willful deprivation comes from the top?
***I am a paralegal. I am not a licensed attorney. Anything I’ve posted here or on this site, may not and should not be construed as legal advice. If you are in need of legal advice, please consult with a licensed attorney. If you are in Cobb County, Georgia, good luck.
The prospect of Joseph P. Carson securing the support of our national grassroots legal/judicial reform community transforms his 25 year long quest for OSC and MSPB accountability into a potential judicial accountability coup d’etat in America.
This note is to encourage some very practical steps in mobilizing to address human rights violations through U.S. legal system abuse as part of Opt IN USA and its coalition partners. Please accept our apology if you receive this message via multiple communication channels. We want it to reach as many people as possible contending with U.S. legal system abuse and related judicial misconduct. Some d…… See More
Again, Opt IN USA attributes the ineffectiveness of America’s legal system in redressing entrenched legal system abuse to a synergy of:quiescent lawyers and judges, subdued by the prospect of retaliatory professional discipline;ineffective federal agencies such as the U.S. Equal Employment Opportunity Commission (EEOC) and the Office of Special Counsel;…See More
Here are four of the most critical flaws of the current child-support system.
The system is outdated.
The child-support system was originally a bipartisan policy reform designed to serve divorced parents who were steadily employed. But the system was established nearly 40 years ago, and is based on outdated stereotypes that viewed Mom as a housewife and Dad as the sole breadwinner.
29 percent of families in the system live below the federal poverty line. Many fathers sincerely want to do right by their children, but simply don’t have the means to do so. That becomes a very slippery slope for a lot of dads.
When unpaid child-support payments accumulate, this often snowballs into another issue: parental alienation. Research has shown that men with outstanding child-support debts tend to be less involved in their children’s lives. Some even find themselves incarcerated over unpaid payments.
This is a repost of the following Facebook Memo I posted on 8/28/12:
Memo To Followers:
Federal Title IVD Payments and Bonuses to States For the Collection and Administration of Child Support Payments.
Recently, I’ve been getting some queries about why I’ve been hammering so much on the issue of child support payments. And, I suspect, we’ve lost a follower or two because I’ve sort of ratcheted up the rhetoric on this topic a bit lately.
In fact, a couple of weeks a ago, we were having a discussion on this page in which I was asserting that States can receive anywhere from $1 to $2 in Federal subsidy payments for every dollar they collect and administer in child support payments. And it was during one of this discussion that one of our followers asked the simple question, “Do you have any documentation on this?”.
Well, at the time, the only information I had available was budget information from the Office of Child Support Enforcement from 2009. So I contacted Michael McKormick at the American Coalition for Fathers and Children and he confirmed that my information was also the most recent published data he had as well (He also noted that Obama administration has been highly resistant to publishing any current budget data on this matter….).
In any case, enter my new best friend, Rita Fuerst Adams from Fathers and Families (Fathersandfamilies.org).
Because Rita was able to track down for me the actual act that describes exactly how these payments and bonuses are calculated.
I’ve Attached The Link For You Below. But Here Is The Short Story Version: *The program is administered by the Office of Child Support Enforcement within the Administration of Children and Families; which is governed by the Department of Health and Human Services.
* The Act governing the program is known as the `Child Support Performance and Incentive Act of 1998′.
* There are bonus and penalty measures that determine the funding.
(A) IN GENERAL- In paragraph (1), the term `incentive payment pool’ means–
(i) $422,000,000 for fiscal year 2000;
(ii) $429,000,000 for fiscal year 2001;
(iii) $450,000,000 for fiscal year 2002;
(iv) $461,000,000 for fiscal year 2003;
(v) $454,000,000 for fiscal year 2004;
(vi) $446,000,000 for fiscal year 2005;
(vii) $458,000,000 for fiscal year 2006;
(viii) $471,000,000 for fiscal year 2007;
(ix) $483,000,000 for fiscal year 2008; and
(x) for any succeeding fiscal year, the amount of the incentive payment pool for the fiscal year that precedes such succeeding fiscal year, multiplied by the percentage (if any) by which the CPI for such preceding fiscal year exceeds the CPI for the second preceding fiscal year.
(B) CPI- For purposes of subparagraph (A), the CPI for a fiscal year is the average of the Consumer Price Index for the 12-month period ending on September 30 of the fiscal year. As used in the preceding sentence, the term `Consumer Price Index’ means the last Consumer Price Index for all-urban consumers published by the Department of Labor.
*** So essentially, the pool value increases every year at growth rate equal to the consumer price index. Which for 2012, would put the incentive pool at a little over 530,000,000****
(3) STATE INCENTIVE PAYMENT SHARE- In paragraph (1), the term `State incentive payment share’ means, with respect to a fiscal year–
(A) the incentive base amount for the State for the fiscal year; divided by
(B) the sum of the incentive base amounts for all of the States for the fiscal year.
Now, here’s where it gets important, because this is where the base value figures are established:
(4) INCENTIVE BASE AMOUNT- In paragraph (3), the term incentive base amount’ means, with respect to a State and a fiscal year, the sum of the applicable percentages (determined in accordance with paragraph (6)) multiplied by the corresponding maximum incentive base amounts for the State for the fiscal year, with respect to each of the following measures of State performance for the fiscal year:
(5) MAXIMUM INCENTIVE BASE AMOUNT-
(A) IN GENERAL- For purposes of paragraph (4), the maximum incentive base amount for a State for a fiscal year is–
(i) with respect to the performance measures described in subparagraphs (A), (B), and (C) of paragraph (4), the State collections base for the fiscal year; and
(ii) with respect to the performance measures described in subparagraphs (D) and (E) of paragraph (4), 75 percent of the State collections base for the fiscal year.
Skipping some stuff here…
(C) STATE COLLECTIONS BASE- For purposes of subparagraph (A), the State collections base for a fiscal year is equal to the sum of–
(i) 2 times the sum of–
(I) the total amount of support collected during the fiscal year under the State plan approved under this part in cases in which the support obligation involved is required to be assigned to the State pursuant to part A or E of this title or title XIX; and
(II) the total amount of support collected during the fiscal year under the State plan approved under this part in cases in which the support obligation involved was so assigned but, at the time of collection, is not required to be so assigned; and
(ii) the total amount of support collected during the fiscal year under the State plan approved under this part in all other cases.
(A) The paternity establishment performance level.
(B) The support order performance level.
(C) The current payment performance level.
(D) The arrearage payment performance level.
(E) The cost-effectiveness performance level.
**So, you can see two important things here.
First, the reimbursements, payments, and bonuses are NOT determined by a reimbursement of State expenses incurred. In fact, the minimization of State Collection Costs is a bonus item.
Secondly, and this is really important, the figures used are the child support funds that States have under administration.
*** See the link for the actual tables for calculating bonuses, etc****
And here is something I found interesting. Check this out:
(c) TREATMENT OF INTERSTATE COLLECTIONS- In computing incentive payments under this section, support which is collected by a State at the request of another State shall be treated as having been collected in full by both States, and any amounts expended by a State in carrying out a special project assisted under section 455(e) shall be excluded.
***i.e. If two States are working together to collect funds, they both get credit for the purposes of establishing bonuses – this is pure gravy.
Note a couple of things here.
First, the bonus values are doubled for the categories of paternity test performance and cost performance.
So why would the Feds care about State costs? Because this is the bonus and incentive program, and States already receive a 66% dollar for dollar reimbursement for administrative costs (and I’m not sure, I’ll have to check, but i think there is a way they can finagle the remaining 34% to get even dollar for dollar match) under a different section of the Social Security Act.
So, there you have it.
States can get up to 100% reimbursement for administrative costs plus up to two times the bonus pool share for two categories along with the rest of it.
Now add to this, the fact that Courts often charge fees for posting these certified payments, and may assess additional fees and fines for enforcement, and you’ve got a very lucrative incentive for States and Courts to maximize child support payments.
In Other Words, It Should Be No Surprise That: _
(1) Child Support payments are maximized, regardless of whether the NCP can afford them. States and Courts don’t care; the debt can’t go way or be retroactively reduced.
(2) Equal and Shared parenting is disincented – this will reduce revenue to the States and Courts.
(3) More and more States are requiring mandatory garnishments and payment administration. People who are already paying on time will improve their performance ratings for bonus calculations.
(4) States like TX make it difficult for non-paternal parents relieve themselves of child support burdens.
(5) Why States and Courts are not persuaded by reasonable and humane arguments for shared parenting reforms.
The system has been corrupted by money and the Feds are driving this corruption.
You might have noticed that the common theme of our most recent publicity messages center around “sharing the truth”.
And there’s a reason for this: we’ve been seeing a rather active effort on the part of our opposition to blatantly lie to the Public in an attempt to thwart Family Law reform.
In reality, this is not new. Because they’ve been doing this for the last forty years or so.
Never the less, you’re probably seeing a ridiculous talking point come up a lot lately. I’ve seen it all over, and it’s probably best described by a Facebook post is saw in the Love and Iron newsfeed from NC Fathers. Here is the opening post:
“In speaking w/ a NC Legislator yesterday, she exclaimed that in many cases the only reason a non-custodial parent would want shared parenting or joint custody is so that they could lower child support payments.”
Award-Winning and Prize-Winning Author of Access Denied, The Wretched, The Roots of Evil, The Ghost of Clothes, Omonolidee, First Words and Unzipped: The Mind of a Madman, The Deeper Roots of Evil, along with numerous short stories, poems and articles.