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Inherent and Civil Parental Law vs. Civil Custody Law
By Renee’ F. Brissette
The natural, Divine, and even governmental laws of parenting have been thrown into a dangerous quandary by the perplexing family court rulings throughout this country that are forcing many to ask, who knows what is in the best interest of our children? As a parent, I strive to love, care for, protect, and teach my children well with the hope that they will become the best person they can be—leading happy, healthy, and productive lives. I think it is safe to say that this is what most parents try to do for their children. These desires and tendencies may stem from an inner maternal/paternal instinct coupled with a moral and spiritual compass.
So, when children are young, to protect them from harm, we teach them how to tie their shoes, to not touch hot stoves, to not talk to strangers, and look before they cross the street. As they get older we teach them lessons of right and wrong, kindness and cooperation, to not hang with the “wrong” crowds, to “say no to drugs,” and to never stay anywhere or go with anyone who they are not safe with. It is not only natural and/or Divine law that leads parents to protect, care, and provide for their children — it is the law of this country.
Yet, parents across the states are being faced with a legal and moral conundrum. While the government laws require parents to care for and protect their children on the one hand, family court systems, in case after case, are ordering them to place their children in harms way. The latest case making news headlines just this past week involves a mother in Mecklenburg County, North Carolina who had to choose to do what she knows is in the best interest of her children, or complying with a court order.
This mother of two children, a 7 and 4 year old, in Charlotte, NC, faced possible imprisonment last week for refusing to send her children to court-ordered custody visits with their father. Their father, David Edward Kennedy, is a proven drug abuser and federally indicted drug trafficker who has submitted a signed confession to the charges. In November, upon his indictment, the mother petitioned the court for emergency custody indicating that, considering Kennedy’s drug use and trafficking, she was worried about her children’s safety.
The Court denied her petition. WCNC 36 News in North Carolina quotes the judge’s reason, “Even if he was indicted with 20 kilos of cocaine…there has to be some danger to the child. If the child was in the car with him while he was making a drug deal or subjecting a child to maybe guns, then I could see the emergency.” Believing that her children’s safety and wellbeing are more important than her freedom, this mother refused to comply with the Court’s order to leave her children in a situation she believed was dangerous.
Last Thursday the mother appeared for a Contempt of Court hearing facing the threat of imprisonment; however, the judge in the case held making a ruling and, although not stopping visitation completely, made provisions for supervised visitation for the time being. The irony in this case, as in many cases, is that state agencies remove children regularly from the custody of parents such as Kennedy for being unfit and putting their child in potential danger, while the family court systems are forcing parents to put their children in situations and with people that are unsafe.
Cases like this one in North Carolina are more common than thought to be, and are not limited to cases involving drugs, but also issues of physical and sexual abuse of children, domestic violence, etc. Speculation of reasons as to how this happens is vast, whether it be a judges “personal bias” as suggested by the mother’s attorney in this case, lack of sufficient evidence, or limitations set forth by existing laws and court procedures.
Realizing that there is no single, simple reason for this, nor a single, simple solution, a Rhode Island group determined the cause to be systemic. In 2007, the group, SOAR (Sisters Overcoming Abusive Relationships), a taskforce of the RI Coalition Against Domestic Violence, is an organization of survivors of Domestic Violence, began to take a closer look at the RI family court system specifically focusing on custody and visitation cases involving domestic violence through the Child Custody and Visitation Solutions Project.
Through a collaboration of lawyers, advocates, Roger Williams University, court representatives, judges, and survivors of domestic violence, the project culminated in 2010 with the publishing of Safety for Children; A report on the impact of Rhode Island’s custody system on victims of domestic violence and their children. (The full report with all of its findings can be viewed at http://soarinri.org/.)
The report not only looked at the physical, emotional, and financial impact the family court system has on victims and children of domestic violence, but sets forth constructive, viable solutions to minimize its harmful impact and keep children safe.
The Child Custody and Visitation Solutions Project found that “children continue to suffer violence and abuse during the child custody and visitation process.” It found that:
“Violence continued to be a part of children’s lives, even as their victimized parent sought safety, in an overwhelming majority of the cases reviewed, 89% of the survey respondents stated that their children witnessed domestic violence before and/or during the custody and visitation process.
According to survey respondents, 71% of their children were also abused by the abusive parent, and many of these children suffered from more than one type of abuse.
Moreover, 53% of the survey respondents reported that the child abuse occurred during visitation.
Despite this, 58% of the participants’ cases where abuse was present were decided in favor of joint custody.
According to these survey results, the majority of children suffered some negative emotional and/or psychological consequences from the process. At least two parents in the survey commented on suicidal behavior by their children: "My five-year-old said she didn’t want to live, life was ‘too difficult’.”
Cases like this one in North Carolina again brings attention to the wide-spread, systematic problems that exist relating to child custody and visitation in America. Through court decisions like that in Kennedy’s case, and the hundreds involved in the Safety for Children report, parents are forced to make heart-wrenching decisions — be a law-abiding citizen by turning their children over to a dangerous individual and/or situation, or refuse and face imprisonment. In efforts to keep their children safe, parents have been forced to take serious actions including leaving their homes, jobs, friends, and families and to go into hiding with their children or stay and face jail and the possibility of their children being taken away from them by the court; neither choice a positive option.
Many states are working at solutions to prevent such situation, and some are making great strides. A key is to keep dialogue open and awareness high while working together for viable solutions such as the revision of custody and visitation laws, policies, and procedures within the systems. This case is a reminder of the work still left to be done. We can fly rockets to the moon — a once thought to be impossible feat. Surely, together, we can formulate and implement successful solutions in their best interest to keep our children safe.