Congress passed the Child Abuse Prevention and Treatment Act in 1974 because of concerns about battered children.  That Act was also designed to encourage more thorough and accurate reporting and record-keeping in child abuse cases.  These days, the role of CPS has grown and evolved.  In 2007 alone, CPS nationally investigated more than three million cases of suspected child abuse.  Today, CPS also enjoys almost unlimited investigative and search and seizure powers, much greater than that of police, that can quickly trample a parent’s constitutional rights.

The Archives of Pediatrics study examined the records of 595 children nationwide.  All the children shared a similar high risk of maltreatment and all were tracked over a four-year period.  The authors used data from interviews conducted with the children’s maternal caregiver, first when the child was 4 years old and again at 8. During those four years, Child Protective Services investigated the families of 164 of the children for suspected child abuse.  The authors found that during the interviews at age 4, households of children in the investigated group had lower family function and more poverty than households of non-investigated children.

Four years later, the researchers interviewed all the families again and compared the 164 children who had been investigated to the 431 families who had not been investigated.  The researchers looked at seven factors known to increase the risk for abuse or neglect.  Those factors included poverty, social support, family functioning, caregiver education and depressive symptoms, anxious or depressed child behavior and aggressive or destructive child behavior.  Surprisingly, researchers were unable to find any differences in the investigated families compared with the uninvestigated families in any of those factors, except that maternal depressive symptoms were worse in households with a CPS investigation.

Those results did not come as a complete surprise to many of the researchers.  They pointed out that when CPS intervenes and services are offered, CPS usually takes aim at immediate risks – substance abuse or domestic violence, for example – not ongoing problems like poverty or poor social support.  The interventions performed by CPS in the study, whatever they were, apparently failed to reduce the risk for future child abuse.

Researchers postulated that the increased maternal depression could have been because the investigated families were at a greater risk to begin with and that their investigation helped them to recover to the expected level of risk.  If that theory were true though, the authors surmised that households with recent investigations should have had greater risks than households with more distant investigations.  The results found no such association.  That led researchers to the conclusion that Child Protective Services investigations had little or no effect.

Many of us are familiar with stories where Child Protective Services has entered a situation, not nearly as bad as it was presented, and removed children from a stable parent or home.  This track record of CPS leaving behind a trail of broken homes has left some screaming to scrap CPS altogether.  Phyllis Schlafly, a lawyer with WorldNetDaily.com, has recently written an article titled “Shut Down Child Protective Services”.  In addition to discussing the Archives of Pediatrics report, Ms. Schlafly pointed out that the researchers did not look at the harm caused by “CPS bureaucrats who arrive unannounced with the police, interfere with a functioning family, and often take the children away from their parents and turn them over to foster care.”

To illustrate her point, Ms. Schlafly described two cases involving Child Protective Services that are presently before the U.S. Supreme Court.  In Camreta and Alford v. Greene, an Oregon court found that CPS investigators violated a 9-year-old girl’s constitutional right against unreasonable search and seizure.  The case involved a CPS caseworker and a deputy sheriff interrogating the girl about possible sexual abuse at home.  The caseworker and deputy interviewed the girl for two hours without a warrant, a court order, parental consent or exigent circumstances.  Those facts caused Ms. Schlafly to then question why some governmental agencies, such as CPS, seem to be more concerned with guaranteeing constitutional due process to, say vicious criminals, than to parents.

The other case cited as being before the Supreme Court, Los Angeles v. Humphries, has already been briefed and argued.  That case involves the constitutionality of the child abuse index, or list, that is maintained by Child Protective Services in California.  More than 800,000 people are currently listed on California’s child abuse index.  CPS puts people on their list from agency reports that are based on anonymous tips and suspicion, not proof.  (The child abuse registry should not be confused with the sex offender registry, which lists only those who have been convicted of sex crimes.)  The child abuse registry puts individuals on the list who have never been proven guilty of anything or even charged with a crime – a punishment that entirely goes against our legal assumption of innocent until proven guilty.

As a divorce attorney, I can see how it would be awfully easy for a malicious wife or ex-wife to allege child abuse as part of her game plan to get child custody or increased child support.  As one might imagine, being listed on the index can be very hurtful to individuals since employers consult the index before hiring employees to work with children.

The big issue in Humphries is the fact that there are no procedures, no standards and no criteria for a wrongly accused person to get his or her name off the child abusers index.  The Supreme Court is reviewing the Ninth Circuit ruling that Craig Humphries (whom the court found innocent of all charges) had a “nightmarish encounter“ with the California system, and found “there is no effective procedure for Humphries to challenge the listing.”

Congress toyed with a plan to create a national child abuse registry in 2006, but ultimately decided that the unreliability of state lists and the lack of due process were too much to overcome.  The U.S. Supreme Court is obviously concerned with those same issues in Humphries.

The research results that were published in Archives of Pediatrics were accompanied by an editorial entitled, “Child Protective Services has Outlived its Usefulness” by Dr. Abraham B. Bergman.  In it, Dr. Bergman suggests some serious changes be made to the way CPS does business.  He believes that because child abuse is a crime, it should be investigated by the police.  Because issues of neglect concern a child’s health, Dr. Bergman contends that public health nursing services should be the first to respond to concerns of child neglect.  Finally, he thinks social workers should assess appropriate living situations and work with families to obtain services, rather than focus on law enforcement like they so often do.

Not everyone, though, takes the results of this study as proof that CPS should just go away.  Dr. Kristine A. Campbell, the lead author of the study, believes differently and states that it may be too easy to blame Child Protective Services.  “I believe that CPS has a critical role,” she says.  “As a pediatrician, when I’m there in the middle of the night with a child who has been beaten up, I need them.  But we have to look at other systems that can really create a safety net for these children.”  Dr. Campbell then said, “I don’t believe that CPS has outlived its usefulness.  The problem is that someone needs to continue working with these families – those risk factors don’t go away, and I’m not sure we should expect CPS to deal with them.  CPS deals with acute issues.  We don’t know how to deal with what remains.”

I believe that Dr. Bergman would tend to agree.  His editorial summarized the situation that CPS faces today: “The concept of Child Protective Services was idealistic when it first came into being in the early 1970s.  Initially, the task of identifying non-accidental trauma was relatively straightforward because it was the classic ‘battered child’ that was among most frequent diagnoses.  Much has changed in the child welfare field over the past 40 years, notably the types of child maltreatment seen and the explosive growth of the foster care system.” Dr. Bergman continues, “How has CPS responded to these changed responsibilities?  Not well, according to this study by Campbell and colleagues in this issue of the Archives.  This gloomy prognosis notwithstanding, the changed picture of child maltreatment in the United States demands, at the very least, that we begin a wide-ranging discussion and testing of alternative responses.”

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A recent article in the Chicago Tribune discusses the fact that parents of autistic children are frequently told that their risk for divorce is as high as 80 percent.

The disorder is officially known as autism spectrum disorder, and leaves the children needing a lot of attention, even as they become teenagers and young adults. Compounding this is the communication problems and the repetitive behaviors often displayed by these children and young adults. The combination can create an incredible amount of stress, even on a normally low-stress couple.

To determine the frequency of divorce among parents of children with autism, the Adolescents and Adults With Autism study examined 391 families of children with autism and compared the divorce data to other families with children developing normally.

The results were shocking. The overall divorce rate for families with autistic children was 23.5 percent, which was nearly double the 14 percent of the control families. The divorce rate among the families with an autistic children was even higher when there were other children in the family.

Another factor was the age of the mother of an autistic child. The younger the mother, the more likely the relationship would end in divorce.

Another interesting statistic that came out of the study was the point at which the rate of divorce let up. For the control families, the divorce risk began to decline when the child turned 8, and when the kids became 26 the odds of divorce dropped to “virtually nonexistent” numbers.

For families with an autistic child, the rate of divorce didn’t begin to even out until the age of 30.

If you have an autistic child, you shouldn’t take this study as a death spell for your marriage. The vast majority of marriages with autistic children, over 3/4, remained married.

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Here are the five factors that I ask parents to consider:

1. Unhappy marriages can improve. Overwhelmed by the stress of work, children and a perceived lack of support from a spouse, many parents feel trapped in unhappy relationships with few prospects for improvement. Recent research by Linda Waite has challenged that assumption, finding that two-thirds of unhappy spouses who stayed together actually improved their marriages over a five-year period. Sometimes couples’ satisfaction was due to actively working on problems, but in other cases marriage partners just became more accepting of their spouses. In other situations, marital satisfaction increased when stressful events such as finances or child-rearing decreased.

2. Divorce doesn’t always bring happiness for the adults. Some of the same issues that cause an unhappy marriage can linger on after a divorce. I’ve found that many parents, both men and women, misattributed the reasons for their unhappiness. They blame their spouses for feeling unhappy or unfulfilled and romanticized that life would be wonderful if they were alone or with a different partner. Research has found just the opposite. One 10-year study found that divorced men were six times more likely than their married counterparts to experience depression and women were three and a half times more likely to be depressed. These results are understandable in view of the many financial, social and psychological problems that come with a divorce.

3. Divorce is generally bad for children. Kids growing up with divorced parents are at a significant risk for serious academic, behavioral and social problems. They are more likely to drop out of school and become pregnant during their teen years. As adults, they are twice as likely to get a divorce as kids who grew up with married parents. Youngsters from divorced families typically have less contact with their parents, less supervision during their childhood and experience more stress associated with numerous changes in their lives.

4. Divorce is good for some kids. One of the few occasions when I do strongly advise parental separation is when the safety of the children is at risk, due to physical or sexual abuse, violence or drug abuse. Kids deserve a safe home, even if that means with separate parents. Kids raised in homes with constant conflict live a terrible life, feeling insecure, unsafe and unwanted. They often blame themselves for marital discord and enter into unhealthy relationships to find acceptance.

5. Your ex-spouse is rarely an ex-parent. Many parents experiencing marital problems are under the illusion that their problems with their spouse will end with a divorce decree. Unless one spouse gives up parental rights, you’ll still need to communicate and compromise with someone you may not like. Please remember this as you go through your divorce process.

To sign up to receive Dr. Ramey’s Family Wise monthly E-newsletter, click here. For more of his columns, visit www.childrensdayton.org/ramey and join Dr. Ramey on facebook at www.facebook.com/drgregramey.

[Reprinted by permission from the August 29, 2010, edition of the Dayton Daily News, “Should I get a divorce for the sake of my kids?”, Family Wise, Gregory Ramey, PhD]

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Then, of course, there logistical problems for the divorced parents. By addressing these issues in advance, parents can reduce stress and not distract from the child’s positive experience. These include:

• In two-parent homes, often one parent gives out candy while the other parent takes the child trick-or-treating. Now there is only one parent in the home. Do you stay and give out candy or do you go with your child?
• Parents often do not specify in their divorce decree who “gets” the child on October 31. If it falls on a visitation day, some children feel disappointed that they don’t get to trick-or-treat in their own neighborhood with their friends. This is particularly true for the first Halloween, when new friends and acquaintances may not have been established in the new neighborhood.
• Halloween reminds the parents of the reality of joint custody and that you will not share some of your child’s experiences.
• In time, the child will grow comfortable with his two homes and it is likely he will enjoy the “doubles” of divorced families, such as two vacations, Christmases, and birthdays. But you may feel left out or cheated.
• Halloween is a peer driven event. Most children want to go trick or treating with their friends.
• Parents should listen clearly to what their children want to do on Halloween. This does not mean “making them choose.” It means paying attention to the child’s comfort level and enthusiasm. Then make plans in a way that can meet the child’s needs.

Some things to keep in mind:

• The child should be allowed to trick-or-treat with friends in his familiar surroundings. If extended family members want to see the child dressed up, they should come to where the child is, rather than dragging the child around and taking him/her away from his/her peers.
• It can be a positive experience if both parents can be involved with the process. One parent takes the child out and then other stays back at the house giving out candy. Unlike other scenarios, this one will not give children the false hope of the parents reuniting. Rather it says to the child, my parents can “rally” beyond their problems to do what is best for me.
• Limit candy intake. This is always important at Halloween, as kids are already pretty wired. This is especially so in a newly-separated/divorced family where there may be added stress or tension.
• Picture taking is important. The child should pose with each parent separately, again reinforcing the fact that while the parents are no longer a couple, they are both still involved with the child.
• If the choice of costume becomes an issue, let the parent who was responsible for costumes in the past make the decision/purchase this year. Next year you can begin to alternate that responsibility.

In the future, as the child becomes more comfortable in his new home and has made connections with children in that neighborhood, trick-or-treating can be alternated. There may be possibilities of trick-or-treating in both neighborhoods. Remember this is the child’s holiday. Follow his/her cues on what s/he wants. The adults have plenty of other choices to make. This one belongs to the child.

©2010. Donna F. Ferber, LPC, LADC, is a licensed psychotherapist in Connecticut. Her newest book is available at bookstores everywhere, Amazon.com or at www.profileactics.com. This article is from her first book, From Ex-Wife to Exceptional Life: A Woman’s Journey through Divorce, which won an Honorable Mention Award by the Independent Publishers Association. To read more about the author and her work, please visit www.donnaferber.com

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A Win Win Custody Battle Strategy

Many times, at the start of a divorce, parents see custody of the children as an either-or situation: one parent has custody and the other is relegated to a visitation/possession schedule. In situations where both parents sincerely would like “custody”, and it’s not just a strategic move for some ulterior purpose (such as gaining more property or paying less child support), the either-or/win-lose mind set can lead to really damaging actions by both parties. In such an approach, the natural inclination, often encouraged by attorneys and friends, is to attack the other parent. Many people think they should devote a lot of energy to proving the other parent is “unfit”.

Actually, it is often true that both parents are good parents, which makes it really hard to prove each other unfit. Attacking each other is expensive in the short-term, both financially and in terms of relationships, and it’s probably not really very persuasive with a judge or jury. It’s hard to keep a good relationship with someone who is saying terrible things about you in public. Judges want to know what good parenting qualities each parent has. In reality, one of the most important factors is who has spent the most time with the children, although there can be many things that are influential.

Instead of limiting yourself to only two options, winning it all or losing, there is another, more productive way to approach the custody issue. The approach may require more maturity than some parties can muster, but, for those able to shift gears, think rationally and be patient, the following approach can be rewarding for them and their children. These steps can lead to a better solution for all, especially the children.

1. Think about, discuss and decide what your ultimate goals are for the kids. What outcomes would you like to see? Many people would want some of the following (or similar) goals:

The kids having a great relationship with both parents
The kids having a great relationship with their extended families
Financial security for the children
Having a safe, secure home for the children
Having good schools for the kids
Providing for a college education for the children
Providing sports opportunities for the children
The opportunity for the kids to learn music, art or other interests

Each parent can decide what he or she thinks would be important goals for their children. Broader, underlying goals are more helpful and meaningful. If both parents think of goals in broad terms, they often can agree on them.

2. Look at the big picture. What are the resources to work with:

Financial abilities of the parents
Parental/family member time available
What homes and schools are available and affordable
What the parents’ neighborhoods are like
The existing relationships between parents and children and the roles each parent plays with the children
What community resources are available
What special needs, if any, a child has
What interests the child has

3. Brainstorm options. Think up as many different solutions as you can. Sometimes it is helpful to get help from a parenting expert. Spend some time and try to be non-traditional or unconventional. Don’t limit yourself to “standard” solutions. Open up your thoughts to come up with some crazy ideas because they might just turn into good ideas.

4. Evaluate your options. See if they can help achieve your identified goals. Criticizing and testing your options can lead to the discovery of other ideas and can help you narrow down the choices until you are left with an idea or ideas that work.

Implementation: This process can helpful if just you do it, but it is really better if you can do it with the other parent. Collaborative Law is one way to accomplish that. This is actually a very common approach to problem-solving in Collaborative Law. Even in traditional litigation, you can use this system alone or together with the other parent. If you work on this alone, you can create a better plan to present in court or in negotiations. If both parents work together through this process, there’s an excellent chance they will reach an agreement that will be satisfactory to both parents and to the children.

Source for Post: Divorce and Family Law in Tarrant County.

Also, thanks to Kansas Divorce and Family Attorney for bringing this article to my attention

If you have children, you should choose a personal guardian — someone to raise them in the unlikely event you can’t.

If your children are young, you’ve probably thought about who would raise them if for some reason you and the other parent couldn’t. It’s not an easy thing to consider. But you can make some simple arrangements now that will allay some of your fears, knowing that in the extremely unlikely event you can’t raise your kids, they will be well cared for.

All you need to do is use your will to name the person you want to be the “personal guardian” of your children if one is ever needed. Then, if a court ever needs to step in and appoint a guardian, the judge will appoint the person you nominated in your will — unless it is not in the best interests of your children for some reason.

If you don’t name a guardian in your will, anyone who is interested can ask for the position. The judge then must decide, without the benefit of your opinion, who will do the best job of raising your kids.

Naming a Personal Guardian

You should name one personal guardian (and one alternate, in case your first choice can’t serve) for each of your children.

Legally, you may name more than one guardian, but it’s generally not a good idea because of the possibility that the co-guardians will later disagree. On the other hand, if you prefer that two people care for your child — for example, a stable couple who would act as co-parents — name both of them, so that they each have the legal power to make important decisions on behalf of your child.

Here are some factors to consider when choosing a personal guardian:

• Is the prospective guardian old enough? (You must choose an adult — 18 years old in most states.)
• Does the prospective guardian have a genuine concern for your children’s welfare?
• Is the prospective guardian physically able to handle the job?
• Does he or she have the time?
• Does he or she have kids of an age close to that of your children?
• Can you provide enough assets to raise the children? If not, can your prospective guardian afford to bring them up?
• Does the prospective guardian share your moral beliefs?
• Would your children have to move

If you’re having a hard time choosing someone, take some time to talk with the person you’re considering. One or more of your candidates may not be willing or able to accept the responsibility, or their feelings about acting as guardian may help you decide.

Choosing Different Guardians for Different Children

Most people want their children to stay together; if you do, name the same personal guardian for all of your kids.

You can, however, name different personal guardians for different children. Parents may do this, for example, if their children are not close in age and have strong attachments to different adults outside of the immediate family. For instance, one child may spend a lot of time with a grandparent while another child may be close to an aunt and uncle. Or, if you have children from different marriages, they may be close to different adults. In every situation, you want to choose the personal guardian you believe would be best able to care for each child.

Choosing a Different Person to Watch the Checkbook

Some parents name one person to be the children’s personal guardian and a different person to look after financial matters. Often this is because the person who would be the best surrogate parent would not be the best person to handle the money.

For example, you might feel that your brother-in-law would provide the most stable, loving home for your kids, but not have much faith in his abilities as a financial manager. Perhaps you have a close friend who cares about your kids and would be better at dealing with the economic aspects of bringing them up. Provided that your brother-in-law and your friend agree, you can name one as personal guardian and the other as custodian or trustee to manage your children’s inheritance.

If You and the Other Parent Can’t Agree

When you and your child’s other parent make your wills, you should name the same person as personal guardian. If you don’t agree on whom to name, there could be a court fight if both of you die while the child is still a minor. Faced with conflicting wishes, a judge would have to make a choice based on the evidence of what’s in the best interests of your child.

Again, talk with the people you’d each like to name. Candid discussions with your potential guardians may bring new information to light and help you reach an agreement.

Making Your Wishes Known to the Guardian

Most people have strong feelings about how they want their children to be raised. Your concerns may cover anything from religious teachings to what college you’d like a particular child to attend.

One option is to write a letter to the personal guardian, outlining thoughts and feelings about how the children should be raised. Try not to put in too much detail, though; it could cause your nominee much guilt and frustration later if unexpected circumstances thwart his or her attempts to carry out your plans to the letter.

The best guarantee of an upbringing you would approve of is simply to choose someone who knows you and your children well, and whom you trust to navigate life’s complexities on your children’s behalf.

If You Don’t Want the Other Parent to Raise Your Child

If one of a child’s parents dies, the other parent usually takes responsibility for raising the child. This is what most people want.

If you are separated or divorced, however, you may feel strongly that the child’s other parent shouldn’t have custody if something should happen to you. But a judge will grant custody to someone else only if the surviving parent:

• has legally abandoned the child by not providing for or visiting the child for an extended period, or
• is clearly unfit as a parent.

In most cases, it is difficult to prove that a parent is unfit, unless he or she has serious problems such as chronic drug or alcohol abuse, mental illness, or a history of child abuse.

If you honestly believe the other parent is incapable of caring for your children properly, or simply won’t assume the responsibility, you should write a letter explaining why, and attach it to your will. The judge may take it into account. Judges are always required to act in the child’s best interests. In choosing a guardian, a judge commonly considers a number of factors; you may want to address them if you write a letter explaining your choice for personal guardian. Here are the big ones:

• the child’s preference, to the extent it can be ascertained
• who will provide the greatest stability and continuity of care
• who will best meet the child’s needs
• the relationships between the child and the adults being considered for guardian, and
• the moral fitness and conduct of the proposed guardians.

SOURCE: Nolo