Roots & Branches: Estate file adds some spice to family history

You've got to watch your cousins.

Especially when one marries your sister.

That's the "moral of the story" that I got from reading an estate.

I was at the Berks County Register of Wills office and had pulled the file of Philip Himmelberger of Centre Township, primarily with the aim of proving his ownership of a particular property that was referenced in a research project on which I was working.

But what I saw after my primary aim was completed made for even better reading.

Philip Himmelberger died early in 1847 and left as heirs one son, David, and five daughters, including Maria, who was married to John Himmelberger, a first cousin to Maria's father.

Now, such a "cousin marriage" wasn't that unusual in the closed society of the 19th-century Pennsylvania Germans, but what happened next was out of the ordinary.

John petitioned the county Orphan's Court for an "inquest" by a sheriff's jury to set a value for Philip's real estate, and David (who apparently was living on the land and working the valuable grist mill there) was unhappy with price set by the inquest for him to buy the property.

He was so unhappy that he filed an "exception" to the appraisal and offered a deposition from one Jacob Stamm that David's cousin and brother-in-law met with one of the jurors before the inquest and influenced him to have it valued too high.

Stamm's deposition notes: "The conversation took place at Gicker tavern in Centre Township" - a great piece of information to spice up the family history!

What resulted was a second inquest with an appraisal that was accepted by David, who lived there until his death in 1889. The property would stay in the hands of his descendants for another 80 years.

* * *

Remember when Ancestry.com became "The Generations Network," presumably because Ancestry.com was just one of its websites? And less than 3 years later changed the corporate name back to Ancestry.com since that's what everyone continued to call it?

Well, they're doing that stuff again. Less than a year after acquiring Footnote.com, they've decided now that it should be known as Fold3.com.Here's the official line of reasoning for those of you saying "Huh?"

According to Ancestry.com, "As we refocus our efforts on gathering the best online collection of military records and stories we wanted a name that would reflect military history and honor. Traditionally, the third fold in a flag-folding ceremony honors and remembers veterans for their sacrifice in defending their country and promoting peace in the world."

Footnote.com, excuse me, Fold3.com is still priced at $79.95 a year. Monthly subscriptions are also available for $11.95 and access to its indexes remains free.

Fold3 currently has 74 million images of historical documents and photos, include collections from the Revolutionary War, War of 1812, Civil War, World Wars I and II and America's more recent engagements in Vietnam and elsewhere.

 

By JAMES M. BEIDLER

 

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Divorce Advice: Back-To-School Tips For Divorced Parents

Co-parenting during the summer can be hellish (ever tried coordinating vacation schedules with your ex? It can require strategic abilities Napoleon would have admired). But if there's anything more crazy-making for divorced parents, it's sending kids back to school post-split. Whether the divorce happened long ago or since the school year wrapped last spring, the abrupt end to the lazy days of summer and the onset of stricter schedules, coupled with kids' often complicated school-year routines, is enough to make divorced parents' heads spin.

Instead of trying to solve the myriad challenges that might arise on our own, we asked our HuffPost Divorce experts--co-parents, psychologists, lawyers, educators--to share their best advice on how to handle sending children of divorce back-to-school. Below, check out what they told us, and add your own tips in the comments.

Plan The Year Out To A Tee

Have a summit meeting. Sit down in the late summer with all the key adult players in your family with calendars, get all the school schedules out (schools should have these online), and plan the year from September to June. Everything -- school breaks, weekends, etc. Then you have a basic overview of where everyone will be and when. Less confusion leads to less misunderstanding leads to more clarity leads to happier people. Things may change as the year progresses but at least everyone has a general understanding and agreement of how the year will play out from the start. 

Master the Backpack

It's all about the backpack. Kids with two homes need a space that's uniquely "theirs," even if it's portable. Every September, we spend time making my daughter's new backpack into her personal universe that she keeps with her, no matter whose apartment she's staying in. Small consistencies like that really matter. 
--Debra Goldstein, writer and IndieMom

If There's Only One Active Parent, Speak Up

If one of the parents has moved away and is not actively involved in the child's life, be sure to let the new teachers know. This avoids embarrassment to the child and school administration, for example if there is a "Dad's Day" and no one to attend. Your kid won't be alone in this. I let my boys' teachers know that they lived with me, that they still loved their dad very much, but he had moved away and wouldn't be able to attend routine school functions. 
--D A Wolf, freelance writer and single mother of two teen sons

Tell Kids To Keep it Simple

Kids may be uncertain about how to explain their living situation to classmates. Tell them to keep it simple: "I live with my Mom some days and with my Dad the other days." Also, don't erase the other parent from school records. In most cases, list you ex as the emergency contact. Your new husband is not the children's father and should not be listed as such on school forms. 
--Richard Warshak

Don't Be Afraid to Call Grandma and Grandpa

Avoid using school activities as a place to exchange the child. Since exchanges are often underscored by arguing and conflicted parents, children are entitled to participate in their school activities free of any worries associated with their parents' conduct. Also, grandparents are a great substitute when working parents cannot attend school functions. Grandparents can offer relief for parents whose schedules interfere with being present at school activities -- especially those occurring during the workday. Newly separated parents are encouraged to ask for help from close family members or trusted family friends. 
--Claire N. Barnes

Get Involved In Homework

Try to have your kids do homework with you, even if you are not the custodial parent. Helping them with their homework is a primary parental responsibility -- and a joy. But it's easy to consider that the exclusive role of the guardian parent. If there are two homes -- and there are -- then homework can be done in either one. Try to see your kids on homework nights and ask them often if there are any big projects you can help with. 
--Joel Schwarzberg, author of The 40-Year-Old Version

Communicate Directly With Your Ex

Never use your child as a messenger to inform your ex about school and extra-curricular activities, such as "mom says you should attend teacher conferences next week." It's awful for the child, and it's highly unreliable. Communicate directly with your ex. Email is great for this because you have a written record. Your ex can't later claim, "but I didn't know."
--Lynn Maier, Partner at Kurzman Eisenberg Corbin & Lever, LLP

Double Up

Buy duplicate used school books for your household. It's not worth the drama with your ex-spouse or your child having a "built in" excuse not doing homework. Go to www.Textboooks.com and have a separate set at your home. 
--Richard "RJ" Jaramillo, founder of SingleDad.com

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Second marriages and estate planning

Losing a parent is devastating. It is said this experience begins the next chapter in our life and that of the surviving parent.

When the surviving parent finds a new special someone, it can create mixed emotions for the family. On the one hand, you are happy to see dad or mom finally getting on with life, experiencing a second bite of the apple, with a fresh taste for life.

At the same time, you're suspicious of this new friend. Acceptance of the relationship brings a feeling of disloyalty to the deceased parent. All of these emotions are common and normal.

With second marriages and estate planning, staying actively engaged with your parent will minimize incidents of fraud or undue influence by third parties.

Everyone has the ability to protect their own assets through proper estate planning.

Frequently, married couples will sign reciprocal wills. Generally, this means the assets of the couple will pass to the surviving spouse, then, on the death of the surviving spouse, the assets should be distributed among all their children.

What sometimes happens is that a second marriage surviving spouse will change the reciprocal will to disinherit the children of the deceased spouse, instead, leaving all remaining assets to only the children of the surviving spouse.

However, there may be ways to prevent this occurrence, simply by discussing the following as listed below with your estate planning attorney.

Prenuptial/Ante-nuptial Agreements

A prenuptial agreement is signed prior to marriage while an ante-nuptial is signed after marriage. Both agreements define how each spouse's property shall be divided in the event of death, separation or divorce.

The thinking in this instance is that spouses cannot bequest to heirs what is not theirs to give.

When there is a likelihood of a serious illness which may require nursing home care, it would be important to consider that Medicaid may ignore such agreements, possibly making the assets of both spouses available for each other's care.

Contract

In this instance, husband and wife make a contract to create reciprocal wills. Further, and this is the essential part, each spouse agrees not to change or revoke said will after the death of the first spouse under any circumstances. This serves to protect the wishes of the deceased spouse.

Deed Transfer

In rare instances, it may be appropriate to transfer a marital home from parents into the names of parents and their children. There are risks and tax consequences as with any transfer.

A deed transfer will at least allow the children from the first marriage or whoever is named on the deed to receive a share of the assets.

This is because when the first spouse dies the ownership interest cannot be changed without the consent of all the owners, which would include the named children on the deed.

Trusts

Perhaps the best way to preserve assets for your heirs is to create a trust. Since there are many different types of trusts, having the sound advice of an attorney is very important.

A trust can be designed to provide income for a remaining spouse during his or her lifetime, then upon death, the funds will be distributed to the designated beneficiaries. A trust can be revocable or irrevocable, depending on the goals of the grantor.

By Victoria M. Dalton

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Greece Abandons Sharia Law Resolution of Muslim Family Law Disputes

On August 21st, Greek Newspapers reported that new Family Law reforms jettison the practice of allowing Sharía Law to govern family matters for a Muslim enclave of over 110,000 living in Western Thrace. This is a good thing (as I argue in a new chapter entitled "The Perils of Privatized Marriage, forthcoming in Marriage and Divorce in a Multicultural Context: Multi-Tiered Marriage and the Boundaries of Civil Law and Religion (Joel A. Nichols, ed., Cambridge University Press, 2011) because women in systems of religious deference frequently get a raw deal.

Prior to this change, fundamentalist religious understandings were given the force of law by delegating jurisdiction to religious groups to decide family disputes, with nominal State oversight. As a result of the Treaty of Lausanne, signed by Turkey and Greece in 1923, Muslims in Greece enjoyed unique independence from the Greek government. They maintained their own religious and legal institutions, headed by three Muftis who "conduct[ed] all matters related to civil law" using Sharía law, specifically Hanafi law.

As I document here, Hanafi law departs significantly from the Greek civil law that would otherwise protect Muslim women upon divorce in a number of important ways. A 2008 study of divorce within Western Thrace explained that

[U]nder Islamic law the wife must compensate her husband for the termination of the marriage ... by returning the dower (mahr) ... [and] by waiving her right to alimony or even her right to the custody of the children."

If the husband did not agree to the divorce, the wife could terminate the marriage only for important reasons pertaining to the husband's fault. While the Greek Muftis sometimes accepted a fault-based reason, like a husband's violence, "the Mufti[s] often rejected divorce applications filed by women, who thus remain[ed] trapped in non-functioning marriages."

Prior to the new Greek reforms, Muslim women could seek to divorce through the Greek courts, but almost no one disputed the authority of the Muftis, even when facing an unfavorable outcome. On the rare occasion that someone did dispute a Mufti's decision, Greek courts routinely found it enforceable. One study found that Greek civil courts denied enforceability in less than one-half of one percent of cases. That low rate is not surprising since civil review of the Muftis' judgments was limited to "whether the Mufti re¬mained within his field of competence and whether the law applied contravenes the [Greek] Constitution."

A number of problems followed from this lack of review. A Muslim woman who was disadvantaged by it effectively had no recourse from the Mufti's judgment, nor was there any guarantee that like cases would be treated alike.

As I argued in a 2007 Washington & Lee Law Review Symposium, in some instances, the harsh consequences to a woman of divorcing, including "the prospect of certain poverty ... will surely ... force [some women] to stay in an abusive relationship."

Ironically, however, a movement has gained momentum in pockets across the world to allow the harsh religious norms rejected by Greece to govern family matters not only upon divorce, but also upon death. In 2008, the British government "quietly sanctioned the powers for Sharía judges to rule on cases ranging from divorce and financial disputes to those involving domestic violence." This system of religious arbitration took root despite a fire¬storm of controversy that erupted in early 2008 when the Archbishop of Canterbury called for a "plural jurisdiction" in which Muslims could choose to resolve family disputes in religious tribunals or in British courts. The Bishop of Rochester predicted that "[i]t would be impossible to introduce a tradition like Sharía into [the] corpus [of British law] without fundamentally affecting its integrity." Nick Clegg, Britain's Liberal Democrat leader, stated that "[e]quality before the law is part of the glue that binds our society together. We cannot have a situation where there is one law for one person and different laws for another."

Despite the controversy, eighty-five Sharía courts now operate in Great Britain, serving a Muslim population of more than 1.5 million people. These Islamic tribunals capitalize on Great Britain's Arbitration Act, pursuant to which the judgments reached in binding arbitration are civilly enforced. And like in Western Thrace, the effect of such arbitrations is to leave women significantly worse off than they would have been under British law.

Since the Archbishop of Canterbury's call for a "plural jurisdiction," I have argued that courts should refuse to enforce any ruling from a religious tribunal that leaves a woman worse off than she would have been in a conventional divorce. On June 7, 2011, proposed legislation introduced in the British House of Lords by Baroness Cox would force Islamic courts to acknowledge the primacy of British law.

While some U.S. academics are a lot less concerned about the risks to women and children than I am, I believe states should weigh carefully the risks to vulnerable groups before ceding jurisdiction over family matters to bodies that may be unwilling or unable to vindicate their rights. The movement to introduce religious fundamentalism into the family can have dire consequences for women and children who are deserving of the State's protection, as Greece recognized this week.

By, Eugene Volokh

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What does Australian family law recognise as domestic violence?

Divorce and separation can be emotionally difficult. Add domestic violence allegations into the mix, and the situation can become even more distressing. All Australian states have their own laws that provide for the safety and protection from domestic violence. But how is domestic violence dealt with when it comes to issues of family law and parenting arrangements following a divorce?

Domestic violence allegations during the divorce process have been in the media spotlight recently with recent proposed changes to the Family Law Act to include a wider definition of family violence. The core difference of the definition is its expansion to include behaviour that coerces, controls or makes someone fearful.

The changes are intended to prioritise the safety of a child when parenting arrangements are made following a divorce.

Behaviour such as stalking, the placement of financial restrictions, animal abuse, and physical destruction of property (amongst other activities) will now be recognised by the law as a form of domestic violence. Furthermore, the changes remove the previous deterrent for raising the issue of family violence in the courtroom, such as the penalty fees for false allegations.

A number of issues concerning these domestic violence laws have been in the public spotlight recently. When a Sydney man climbed to the top of the Harbour Bridge, he closed the bridge down during peak hour traffic to get his message out about the rights of fathers after divorce. His actions both reflected and sparked further debate around the ramifications that the changes to domestic violence definitions might have for the rights of fathers and children after divorce. Fathers' groups are concerned that the changes will make it even more difficult for fathers to get time with children and make it easier for false allegations to surface in messy divorce cases.

On the other side of the story, there have been a number of cases of domestic violence in the news recently that report fathers going to extreme violent measures (including suicide and death) following a divorce. Headlines such as 'Obsessive Love Lost: Why some fathers kill' have given weight to the new laws that protect children.

Allegations and incidences of domestic violence, therefore, are an important consideration when it comes to divorce and legally binding parenting arrangements. Domestic violence – from physical harm to aggressive or controlling behaviour – are now an important factor when considering the best interests of a child.

By, Missouri

 

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Judge to Gay Father: Kids Can't Stay With Your Husband

By Trudy Ring
Some family law experts are astounded by a Houston judge's order in a custody case — it forbids a gay man to leave his children alone with his husband.

Harris County associate judge Charley E. Prine Jr. issued the order in June, but it's been spotlighted more recently in a column by Geoff Berg for aHouston Chronicle blog. In the column, published Monday, Berg notes that Prine's directive prevents William Flowers from leaving his children alone with any man not related to them by blood or adoption — including his husband, Jim Evans, whom he married last year in Connecticut.

The order came after Flowers sued for custody of the three children he fathered with his former wife. The couple divorced in 2004, and they agreed at that time that she should have custody. Flowers changed his mind and took the matter to court; a jury decided that custody should remain with his ex-wife, but he could continue his regular visits with the children. Prine then issued his order, which Flowers plans to appeal.

"Because there was no allegation of abuse in the case, family law practitioners say the order is an unheard of infringement on the rights of parents and a judicial condemnation of the fact that the man, William Flowers, is not only gay but married to his partner, Jim Evans," Berg wrote. 

He wondered if the order was motivated by "utterly false" beliefs about gay people, saying, "Is it possible that Judge Prine believes that the children's step-father or another gay man is more likely than a heterosexual to molest the kids or turn them into brainwashed zombie drag queens? Because the case is still pending and citing the Texas Code of Judicial Conduct, Judge Prine declined to comment. But lawyers who practice family law in Houston (and requested anonymity) described the order as patently anti-gay."

An Austin family law attorney, Jennifer Cochran, was willing to be quoted, and she concurred. She told Berg the order is "just not reasonable" and "strikes at the very heart of the fact that [Flowers is] gay ... it's judicial activism, legislating from the bench."

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Conducting Hearings and Trials in Family Court

If a complete resolution on every issue in dispute cannot be reached, then a trial becomes necessary. Trial requires intense planning and preparation, commencing months in advance. And trials involve risk — the parties surrender their decision-making authority to the judge. There is no way to predict how a judge will decide certain issues in a case.

To avoid confusion later, let us take a moment to discuss the distinction between a "hearing" and a "trial" — as they are not the same thing. A trial is a specific proceeding with trial court rules. An appeal is also a specific proceeding with appellate court rules. Both trials and appeals involve hearings. A hearing, then, may mean any number of things. Sometimes a hearing involves the presentation of evidence by the parties. In that sense, the evidentiary hearing may be commonly referred to as a trial — but it is really more of a mini-trial. If a hearing is conducted, and neither party presents evidence, then the hearing does not resemble a real trial at all. In the family law context, many, if not most, hearings are held on motions that raise issues of law, not fact, and so do not involve the presentation of evidence.

Regardless of whether the case involves one non-evidentiary hearing, a number of preliminary hearings, or a single full-blown trial, every family law case in Arizona is heard and tried by a Superior Court judge.

The Judge's Calendar.

The time at which the judge is present for a hearing is set by the court's calendar, which is the judge's case schedule and there are a lot of cases on the docket. Calendaring cases simply refers to the scheduling of events before the judge. With very congested family court dockets, the wait for a trial date can be many months. Even after you wait through the inevitable delay of getting a spot on the court calendar, there may be other delays. Therefore, the calendar is in constant flux, delays are inevitable, and patience is required.

For example, your case is on the court's calendar, but the opposing side did not get proper notice of the hearing, so the judge agrees to continue, or postpone, the hearing until a later date which will be set on the calendar. Or your case is first on the calendar, but the judge is out sick, so your case is rescheduled. Or the judge is ready to hear the case, but the opposing party's most important witness is unavoidably unavailable on the day of trial, so the trial is postponed and rescheduled.

Preparation for Trial.

A trial may involve a determination of child custody or parenting time, child support, an equitable division of community property and the division of community debts, and even the award of attorney's fees. When you walk into the courtroom, the judge is going to observe your demeanor and how you present yourself. When you arrive at court, be dressed appropriately. Dress for this special occasion, as you would for any important event in your life. You want to impress upon the judge your seriousness about the proceedings and your respect for the court's authority. Trial is all about preparation, so take a little time and put some thought into your proposed courtroom attire.

Trial Procedure.

There is a specific procedure that is followed in a trial. First, your attorney and opposing counsel will outline the parties' respective positions for the judge, with the Petitioner proceeding first. Each party carries the burden of proving their respective claims by a preponderance of the evidence. The rules of evidence are too complex for the purposes of this discussion, but do understand that evidence is admitted and witnesses are called.

Witness Testimony and Submission of Evidence.

Each party will present witnesses and evidence. Witnesses are questioned on direct, first, and then cross-examined by the opposing party. When the attorney for the Petitioner is finished questioning a witness, the Respondent's attorney has the opportunity to cross-examine the witness on the testimony he or she just gave. The Petitioner examines witnesses directly, presents other evidence, and then "rests." It is then the Respondent's attorney who presents witnesses and evidence, asking questions on direct examination. Petitioner's attorney has an opportunity to cross-examine those witnesses. After which the Respondent's attorney, finished with examination of witnesses and presentation of evidence, also rests.

The evidence, in both oral and non-oral forms, is presented through witnesses who are put under oath. The attorneys representing the parties do not testify in a case, the lawyers merely facilitate the presentation of testimony from the witnesses. If deemed necessary to assure the presence of a witness or to compel the production of documents at trial, subpoenas are issued to procure witnesses' appearances in court and, if applicable, the production of documentary evidence by use of a subpoena duces tecum. Any person who fails to obey a subpoena that has been served on him or her may be punished, or sanctioned, by the court.

During your testimony, when either attorney "objects" to a question posed to you, then immediately stop speaking until the judge has ruled on the objection. On the one hand, if the judge says "sustained," then the judge agrees with the objection and the question is not allowed — you do not have to answer the question. On the other hand, if the judge says "overruled," then the judge disagrees with the objection and the question is permitted — you must answer the question. The judge may also ask questions of you directly, so be prepared for that as well.

When you are called as a witness, listen carefully to the questions, do not argue or debate, and speak clearly and loud enough for the court microphone to pick up your voice.  When opposing counsel asks you questions, be truthful and honest in your answer. You may dislike the other attorney, but do not project your animosity by being an obnoxious, rude, or stubborn witness. The judge will observe this happening and it may be detrimental to your testimony. The best way to avoid the problem is to directly, honestly, answer the question asked and nothing more. Opposing counsel may also limit your ability to explain your answers, asking you for a simple "yes" or "no" answer without explanation, context, or additional detail. Answer the questions you are asked. Be assured that your attorney will have the opportunity to ask you important follow up questions, so you may elaborate on answers that you already gave.

Closing Arguments and Final Decision.

Once all the witnesses have testified and the evidence has been submitted, each attorney will provide a brief closing argument to the judge. The closing arguments organize the admitted evidence into an understandable persuasive summary, to help the judge make a decision. The judge will ask the attorneys legal questions applicable to the case. Once closing arguments are in, that concludes the presentation from the parties and the case is submitted to the judge for a decision. The judge's ruling may come at the conclusion of the trial, but more often than not the judge will take more time to review all the evidence in chambers before rendering a final decision. In custody cases and complex property, asset, and alimony cases, it is not unusual for the judge to take the case under advisement and issue a ruling at a later time.

Appealing the Court's Final Decision.

If a party disagrees with the judge's trial decision, then the party may exercise the right to appeal that decision. Success on appeal, however, is usually limited to cases in which the judge clearly reached a decision that was not supported by the evidence adduced at trial, or when there is newly discovered evidence. The judge's trial decision will not be overturned unless it can be clearly shown that an abuse of judicial discretion occurred. Consequently, most trial decisions are final.

 

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The Economist Suggests Western-Style Family Law as Solution to Asian Marriage Crisis

By W.F. Price

In one of the most insane suggestions to appear in the press in recent years, a writer for The Economist argues that the solution to plummeting marriage rates in Asia is to introduce Western-style divorce and family law. The writer points to trends that have been ongoing in Asia for some time now as it develops, but comes to the wrong conclusion about how to solve them.

In most of Asia, marriage is widespread and illegitimacy almost unknown. In contrast, half of marriages in some Western countries end in divorce, and half of all children are born outside wedlock. The recent riots across Britain, whose origins many believe lie in an absence of either parental guidance or filial respect, seem to underline a profound difference between East and West.

Yet marriage is changing fast in East, South-East and South Asia, even though each region has different traditions. The changes are different from those that took place in the West in the second half of the 20th century. Divorce, though rising in some countries, remains comparatively rare. What's happening in Asia is a flight from marriage.

Marriage rates are falling partly because people are postponing getting hitched. Marriage ages have risen all over the world, but the increase is particularly marked in Asia. People there now marry even later than they do in the West. The mean age of marriage in the richest places—Japan, Taiwan, South Korea and Hong Kong—has risen sharply in the past few decades, to reach 29-30 for women and 31-33 for men.

A lot of Asians are not marrying later. They are not marrying at all. Almost a third of Japanese women in their early 30s are unmarried; probably half of those will always be. Over one-fifth of Taiwanese women in their late 30s are single; most will never marry. In some places, rates of non-marriage are especially striking: in Bangkok, 20% of 40-44-year old women are not married; in Tokyo, 21%; among university graduates of that age in Singapore, 27%…

Asian studies departments in the West have become bifurcated, with one faction following the traditional historical, political and economic course of study, and the other the anthropological, artistic, religious and, yes, gender course. The former is still a fairly comfortable place for a young man, but the latter has become the typical neo-Marxist feminist domain. The writer of this article has most likely studied anthropology in the context of Asia, which has become stuffed full of genderist garbage, and is probably a committed feminist (who else would advocate Western-style divorce as a "solution?").

According to the article, women won't marry because work is a better alternative:

At the same time as employment makes marriage tougher for women, it offers them an alternative. More women are financially independent, so more of them can pursue a single life that may appeal more than the drudgery of a traditional marriage. More education has also contributed to the decline of marriage, because Asian women with the most education have always been the most reluctant to wed—and there are now many more highly educated women.

The author is incorrect. What we are seeing here is not women fleeing the drudgery of domestic life, but rather plain old hypergamy at work. In many parts of Asia, young women now earn more than young men. Asian women are as happy as ever to marry up, but that's becoming increasingly difficult as men no longer have an advantage as providers. In fact, in a return to tradition, Chinese women are now increasingly turning to polygamous arrangements as disparities in wealth become wider. It's better for them to share a rich man than to have a poor man all to themselves.

In addition to the marginalization of young men, property prices have gone through the roof in Asia. Young couples – especially more modern-minded ones – tend to delay marriage until they can afford a place of their own.

However, rather than address the issue of the declining status of the average male in Asian society, the author argues that the solution is to further empower women relative to men by introducing Western family law:

Can marriage be revived in Asia? Maybe, if expectations of those roles of both sexes change; but shifting traditional attitudes is hard. Governments cannot legislate away popular prejudices. They can, though, encourage change. Relaxing divorce laws might, paradoxically, boost marriage. Women who now steer clear of wedlock might be more willing to tie the knot if they know it can be untied—not just because they can get out of the marriage if it doesn't work, but also because their freedom to leave might keep their husbands on their toes. Family law should give divorced women a more generous share of the couple's assets. Governments should also legislate to get employers to offer both maternal and paternal leave, and provide or subsidise child care. If taking on such expenses helped promote family life, it might reduce the burden on the state of looking after the old.

All one has to do to see that this arrangement won't work is take a look at what happened to marriage in the West following the implementation of these "reforms." Giving Asian women the legal upper hand over husbands would have roughly the same effect it has in the West: illegitimacy would skyrocket, and it would no longer be only women who were skeptical about marriage, but men as well. A further exacerbating factor in Asia is that prostitution is culturally tolerated to a degree unknown in the West. Men who felt that a wife was too much of a risk or bother would simply hang out with their friends and use hookers for sex. If marriage is made riskier and more expensive, the prostitution industry will grow to monstrous proportions.

If there is anything about Western society not to emulate, it is our insane divorce laws. The solution to the marriage crisis in Asia is not to legally castrate men, but rather to restructure the economy so that they have more opportunities to provide for a family. It's quite disappointing to see The Economist taking such a wrong-headed approach to this problem, but I suppose this is the result we ought to expect from our feminized universities and the vapid pundits they promote.

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Incarceration and Childsupport

When the custodial parent who receives child support is incarcerated, then the person who is actually caring for the children, such as a grandparent or other relative, should request that the child support payments be temporarily redirected to that caregiver. Before any child support will be sent to someone other than the custodial parent, a redirect order must be issued by the Court (note that a redirection of support payments doesn't modify the underlying support order). 

Here at the Law Offices of Scott David Stewart, we are frequently asked to explain what happens to the child support obligation when the non-custodial, obligor parent is imprisoned.Such an event can be catastrophic for a family, both emotionally and financially. If the jailed individual is able to earn any money in jail or in prison, it may not be much unless outside interests like a business continue to generate income. This is a legitimate concern for the other parent, grandparent, or caregiver with physical custody of the child. We'll limit today's discussion to those parents who were charged and convicted of a crime and who are serving a sentence (not the parent who is jailed for contempt for nonpayment of child support). 


Can a jailed non-custodial parent be ordered to pay child support?

The question is whether the Court can order an imprisoned parent to pay child support. The answer is Yes -- the Court will order child support even when the non-custodial parent is imprisoned and has little, if any, income. The legal papers in the divorce or family law case are served on the parent in the local, state, or federal facility.

If the parents were married when the child was born, then there is a presumption of paternity. If the parents were unmarried when the child was born, however, then paternity must be established or acknowledged before the Court will issue a child support order. Oncepaternity is legally established following acknowledgement or DNA test evidence, the issue of child support will go forward even though a party is incarcerated. 


Does the non-custodial parent have to pay child support while he or she is incarcerated?

"I'm in prison and can't work. Why doesn't my child support order change? -- Your child's needs don't change just because you are incarcerated. In fact, they are probably greater." From Incarcerated Parents and Child Support -- The Handbook for Incarcerated Parents, Attorney General of Texas. The fact is, child support is not automatically suspended while the obligor parent rides out a jail sentence.

If the non-custodial parent has the financial resources to continue paying child support while serving a prison sentence, then it is in the child's best interests that the money continue to be paid under the existing support order. If the obligor parent does not have the resources to make support payments from jail, then he or she should request a modification of the support order. That request should come as early as possible, before the obligor parent falls into substantial arrears. 


Can the child support order be modified while the obligor parent is incarcerated?

In general, child support may be modified when circumstances have substantially changed. Under A.R.S. § 25-503(E): 

"E. Any order for child support may be modified or terminated on a showing of changed circumstance that is substantial and continuing, except as to any amount that may have accrued as an arrearage before the date of notice of the motion or order to show cause to modify or terminate..."

The incarcerated parent needs to take action and file a petition requesting child support modification based upon a substantial and continuing change of circumstances. Without a Court order modifying support, the obligation continues and any arrearages will be waiting for the parent upon release from jail or prison. 

In Arizona, imprisonment would rebut the statutory presumption that every non-custodial parent obligated to pay child support can earn minimum wage. Furthermore, incarceration of the obligor parent doesn't mean that a reduction of the amount of support will occur, but it is a factor that the Court will consider when presented with a petition to modify.

By Scott David Stewart

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Domestic revisions designed to ease fears over Hague Convention could actually encourage parental abduction

Domestic revisions designed to ease fears over Hague Convention could actually encourage parental abduction

By COLIN P. A. JONES

Those focused on the government's stumbling efforts to protect the children of Fukushima from radioactive contamination may find this hard to believe, but Japanese family law just got more child-friendly — maybe. If Japan finally signs the Hague Convention on child abduction, as it appears it will, it could become even more so. There is a big "maybe" here too, so it remains to be seen whether these two steps taken by the Diet will steer the country away from its status as a black hole for parental abduction or leave it treading the same sorry path.

On May 27 a law was passed amending a number of provisions in the Civil Code relating to children and their parents. First, Article 766 of the code was revised to require parents seeking a cooperative (i.e., nonlitigated) divorce to decide upon visitation, child support payments and other matters relevant to their children's upbringing after divorce. Furthermore, the new provision says that the welfare of the children must be the primary consideration when these matters are decided.

This may not seem particularly revolutionary, but in the Japanese context it is: This is the first time visitation or other forms of postseparation contact between parent and child have ever been mentioned in legislation (unless you include the U.N. Convention on the Rights of the Child, to which Japan is a signatory, but which doesn't seem to count for very much in this context).

Similarly, the seemingly basic notion that the best interests of children should be a primary consideration in divorce is also new to Japanese law. Before these amendments, the welfare of children had never been at issue in the vast majority of divorces as far as the law was concerned.

Since the amendments have not yet taken effect, it is not clear how they will work in practice, a matter that will doubtless be resolved by implementing regulations. Currently, parents seeking a cooperative divorce simply fill in a form specifying which child ends up with which parent and file it with their local government office. Perhaps they will now need to check boxes showing that they have provided for visitation and so forth.

Another significant change in the law will make it possible for public authorities to suspend for up to two years the parental authority of those who abuse or neglect their children. The supposed inability of child welfare officials to act aggressively has been cited in recent high-profile child abuse cases. Under prior law the termination of parental authority was permanent, rendering it a very blunt instrument.

Of course, any change that clarifies the principles underlying the laws relating to children in Japan is certainly a welcome step forward. Yet at the same time, I believe that the character of these amendments reflects a continuation of what I see as the core problem with Japanese family law.

Both the amendments described above approach the problem by addressing deficiencies in Japanese parents. Other amendments to the Civil Code making it clear that even nondivorcing parents must exercise their parental rights and responsibilities for the benefit of their children further reinforce this impression.

The fact that there are now multiple statutory mandates commanding parents to act in the best interests of their own children suggests that the people who drafted the legislation have a pretty low opinion of the parenting skills of their fellow citizens. Those portions of the recent amendments making it easier to suspend parental authority make it clear that they are primarily concerned with protecting children from their parents, rather than protecting the parent-child relationship itself.

Of course, anyone who has ever tried to get an abducted child returned from Japan, or even used the nation's legal system to try and just see their children, is likely to feel that the real problem is with the courts, and arguably it is. After all, most child custody disputes that end up in court involve parents who have different views on what is best for their children. As I read them, however, the new provisions do not even make it clear that Japanese judges are also required by law to treat the welfare of the children as a primary consideration in resolving such disputes. Doubtless the judiciary already considers itself to be doing all it can for children of divorce — "the best interests of the child" is a phrase that has been used in internal court manuals for years before any similar language appeared in the Civil Code.

The problem is that a parent can already get away with a form of "murder" in Japan, insofar as they are often successful in abducting children and making the other parent disappear from their lives. Japanese courts either cannot do anything about this type of situation or sometimes even declare it to be in the best interests of the child. So adding a provision to the law saying, effectively, that "murder is bad" may have little merit if courts still have no power to enforce change or are allowed to keep resolving cases by absolving the murderers. But there is nothing in these amendments giving them greater enforcement powers or requiring them to change their ways.

Indeed, family court judges may simply regard these amendments as a codification of their existing practices. After all, the revisions even provide them with further grounds for telling parties why their parenting is defective. And while a Civil Code amendment is apparently required to tell average citizen parents the blindingly obvious, why should highly educated judges need a law to tell them to make decisions in the best interests of children when they already think that is what they are doing? That their decisions may involve decreeing a parent should receive three photographs a year of their child in lieu of actually seeing them after divorce (as still happens in some cases) is an example of the fundamentally upside-down logic of Japanese family court practice — a "logic" these amendments fail to address.

Meanwhile, on the Hague Convention front, a legislative committee appears to be considering domestic legislation that will ensure no abducted child ever has to be returned after Japan signs it. A basic premise of the convention is that judicial determinations about children after their parents separate should be made in the country where the children have been living. Children who are unilaterally removed to another country should thus promptly be located and returned to their country of habitual residence.

The convention does contain an exception that says a child does not have to be returned if there is a "grave risk" that doing so "would expose the child to physical or psychological harm or otherwise place him or her in an intolerable situation." The Japanese government appears poised to drive truckloads of abducted children through this very limited exception.

Based on current proposals that I have seen, Japanese authorities may be allowed to refuse to return a child if (a) either the child or taking parent have been subject to abuse (including "violent words"), (b) the taking parent cannot return to the child's home country because of fear of criminal prosecution upon return, (c) the taking parent is the primary caregiver but cannot raise the child in the home country for financial or other reasons, or (d) the helpfully vague "there are other circumstances" making return potentially harmful to the child.

This may seem well-intentioned, but it is important to understand that the Hague Convention is not about "keeping" children in their home countries. It is about parents respecting the law of the countries in which their children live before they unilaterally change their residence.

Furthermore, joining the convention implicitly involves accepting that other convention signatories are civilized nations whose legal systems are equally capable of dealing with problems such as domestic violence. Although the stance of judges on international relocation varies around the world, if a parent who is the child's primary caregiver applies to a court in the child's home country for permission to move overseas with the child, it may well be granted if the reasons for doing so are legitimate. A similar logic applies to seeking protection from domestic violence or financial support. All of these are matters that should be dealt with first by the courts in the place where the child has the deepest roots, not where they have just gotten off a plane with mum or dad.

In May of this year the Supreme Court of the U.K. dealt with a "typical" Hague case — that of a British woman who brought her children back from Norway to escape from alleged "psychological abuse" by her Norwegian husband. Noting that, among other things, she had not sought to avail herself of the courts or public authorities in Norway, the court confirmed that the children should be returned there. This is the way the convention is supposed to work, at least in England and Wales, where courts are very aggressive about enforcing it. Not only could the proposed exceptions to the return encourage overburdened Japanese family court judges to not be aggressive, but they might even have the effect of actually encouraging abduction.

This is because if drafted vaguely enough, the exceptions will make it possible for a Japanese parent to get off a plane with her children and claim that they were subject to abuse by the foreign parent or will be destitute if forced to return. They can support these claims using evidence that has not been evaluated by the courts best situated to do so — those in the home country. On the other hand, fleeing back to Japan after an official record is created is likely to support arguments in favor of return, if they establish that the home country authorities were addressing the problem, as will likely be the case. Similarly, abducting children back to Japan before a home country court can rule on custody limits the amount of official evidence (in the form of court rulings) that the other parent can use to assert their return. This is precisely the type of forum-shopping that the convention is intended to prevent, but upside-down logic may prove contagious.

What form the legislation implementing the convention takes remains to be seen, but whatever happens, visitation/access may prove key to its operation. While the convention was originally drafted to remedy abductions by noncustodial fathers, today the majority of abductors are mothers who are also the children's primary caregivers. This means that the person seeking return is often a noncustodial father. Thus, in England (where I have been doing research on the subject), many Hague cases end up being more about securing access (visitation) than return of the children, and are settled through parallel mediation. In other words, a father fearing loss of all contact with his children may file to have them returned, but may agree to their relocation abroad if he gets assurances that he will continue to see them nonetheless.

Unfortunately, visitation in Japan is unenforceable and often proves meaningless regardless of whether it is agreed to by the other parent or ordered by a family court. Nothing about the recent Civil Code amendments changes this grim reality or even makes visitation a judicial priority. Indeed, the new Civil Code provisions only speak in terms of "postdivorce" visitation, meaning that courts could be free to continue allowing denial of access to be used as leverage in postseparation, predivorce mediation.

If parents continue to disappear from children's lives in Japan, despite changes in family law and the country joining the Hague Convention, the country will remain a black hole of abduction and parental alienation. The only difference will be that for official purposes the problem will be deemed to have been dealt with, meaning that another generation of children may have to experience the loss of a parent before policymakers turn their attention to it again.

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Concerns Persist Over Child Welfare Cases Involving Mental Health

As many as one in five child welfare cases involves a parent with a mental health diagnosis, creating challenges for parents, children and caseworkers. Advocates say efforts to address those challenges haven't gone far enough.

By Kelly Virella

 

Misconceptions about mental health are common within New York City's child welfare system, says Lauren Shapiro, the executive director of Brooklyn Family Defense Project.

A few years ago, Jessica Marcus, a Brooklyn-based family law attorney, took on a client who was mildly mentally retarded and fighting charges that she abused and neglected her three sons. Because the woman was also depressed, her doctor gave her an anti-depressant. Initially, this pleased her case worker at the city's Administration for Children's Services, but as time passed, the case worker became frustrated with what he perceived as the mother's lack of progress. Because the caseworker didn't understand the difference between mental illness and mental retardation, he assumed that the anti-depressant would cure her of both.

It's a common misconception, within New York City's child welfare system, says Lauren Shapiro, the executive director of Brooklyn Family Defense Project, where Marcus works. "There's a total lack of understanding of the difference between the two," Shapiro says. "They're really not equipped to deal with mental health issues."

Parents who actually do have mental illness sometimes get mishandled too, Shapiro says, by a system that assumes it's impossible for them to be fit parents simply because they have a diagnosis. "We see insensitivity toward our clients, laughing at behaviors that are a result of mental health issues," Shapiro says. "What we see is that parent's conditions also really deteriorate when they come into the ACS system."

Shapiro's perception is one that is shared by several child welfare advocates and echoed by a winter 2009 Child Welfare Watch report that documented systemic problems with the child welfare system's management of mental health issues. The report found that mental health evaluations "are requested far more often than necessary, even in cases in which there is no mental health allegation."

Often the evaluations were based on a single period of observation of a parent without the children present, the report says. Because there is no standard for conducting mental health evaluations in New York City, repeated evaluations of the same person routinely yield contradictory diagnoses, the report says.

"Some players in the child welfare system confuse parents' reactions to the trauma of having children removed with genuine mental illness," the report said."Others are unaware of how to fairly determine whether a parent with mental illness can care for her children."

A spokesperson for Family Court Mental Health Services (FCMHS), a city agency that conducts some of the mental health evaluations, says the report significantly mischaracterizes their work. Evelyn Hernandez, the spokesperson, says FCMHS does not over-diagnose people or overly rely on the diagnosis of other clinicians during its evaluations. "We make diagnoses based on independent analysis of diverse data that we obtain from our direct and intensive examination of clients as well as from collateral sources," she wrote in an e-mail.

Moreover, FCMHS evaluations are suitable for the court's purpose, she says. "They never have been intended as absolutely final, all-encompassing assessments –they are limited to addressing specific legal issues, at specific points in court proceedings, and to act as guides, not mandates, to the Court in determining next steps in the legal process, including the ordering of additional psychosocial assessments and treatments by other providers."

Since the publication of the Child Welfare Watch report, there have been signs of progress within FCMHS (which Hernandez says weren't inspired by the report) and within ACS. FCMHS now offers evaluations earlier in the child welfare case, allowing some parents to use it to demonstrate fitness, Hernandez says. Evaluations now incorporate more sources of information, including contact with treatment providers and relatives and parent-child observations, she says.

And in January 2010, ACS workers began taking a training class with the National Alliance of the Mentally Ill (NAMI) and have embraced the curriculum. "What we're hearing is that it really turns their heads about their attitudes about mental illness," says Mary Lee Gupta, program director with NAMI. "It also helps them understand mental illness in adults, about mental illness being biologically based, that it is not the fault of the parents."

But some problems persist and in response, a coalition of family law attorneys, social workers and advocates is developing a plan to address them. The mental health sub-committee of the Adoptions and Safe Families (AFSA) Task Force – a coalition that addresses issues of mutual concern regarding New York City's child welfare system – started working on its plan in February and this month delivered a letter to ACS Commissioner John Mattingly asking him to collaborate with them to develop guidelines and best practices.

"Some of our concerns include parents being treated in a
manner which appears punitive and does not lead to appropriate assessments and treatment options, workers' lack of understanding about mental illness, and families being treated unfairly and needlessly separated as a result of a mental health condition," the letter read in part. (The day before the letter was sent, Mattingly announced that he will be stepping down from his post in September. Mayor Bloomberg has tapped Family Court Judge Ronald E. Richter to take over ACS.)

In 2010, Family Court mental health services received 626 referrals for parents charged with abuse of neglect, according to data City Limits received from the New York Unified Court system.

Attorneys estimate that as many as one fifth of the parents who come into contact with the child welfare system have a diagnosis of mental illness, according to Child Welfare Watch. At minimum, the coalition wants the guidelines to state that having a mental illness doesn't ipso facto turn a parent abusive or neglectful.

"We know that for parents who have mental illness, if they have the appropriate supports and services – in other words treatment and education – those parents are likely to be able to parents as well as any other parents," Gupta says.

"If someone has a mental illness, the way that you can help the children is by doing a safety plan that says 'Who's gonna take the children? Where and when? What are the triggers?' And the parents themselves can have safety plans so they know when they need help," Shapiro says. The coalition also wants the guidelines to set some standards that help determine when parents and children should be subjected to mental health evaluations.

The mental health subcommittee was inspired to begin developing guidelines after ASFA succeeded in getting ACS to adopt guidelines governing visits between children in foster care and their parents, Shapiro says. The process and outcome of the visiting guidelines initiative provided a good model for collaborating with ACS.

Once the guidelines have been developed, members of the coalition hope to begin using them as the basis of trainings and further advocacy work.

"The issue is that parents with mental illness need very particular accommodations and they're not trained so they don't know how to deal with it," Shapiro says.

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