State Custody of Children

[Paladin]

I'm posting this here because I think it's an important social issue that does generate quite a lot of intense discussion.

"Celebrity" lawyer Gloria Allred is demanding that Michael Jackson's children be taken into state custody:

http://www.cbsnews.com/stories/2003/11/18/entertainment/main584273.shtml

"I believe the children should be temporarily removed from Mr. Jackson's care and custody because of the history of Michael Jackson with children ... combined with present criminal allegations," she said.

Aside from Ms. Allred's potential bias in this matter...

This happens quite frequently to people who have only been accused of molestation or child abuse. On the basis of accusations and allegations, before guilt is proven or not proven, people have been subject to the removal of their children by social services agencies. It has been argued that this sort of action violates the right to due process of law.

Keep in mind, Mr. Jackson has not yet been charged with any crimes; he has merely been accused, and as the story indicates, it has taken the accusers a long time to level the accusations.

Should the state have the right to take away your children if you are accused of child abuse?

 

[Mr. Skinny]

I'm posting this here because I think it's an important social issue that does generate quite a lot of intense discussion.

"Celebrity" lawyer Gloria Allred is demanding that Michael Jackson's children be taken into state custody:

http://www.cbsnews.com/stories/2003/11/18/entertainment/main584273.shtml


Aside from Ms. Allred's potential bias in this matter...

This happens quite frequently to people who have only been accused of molestation or child abuse. On the basis of accusations and allegations, before guilt is proven or not proven, people have been subject to the removal of their children by social services agencies. It has been argued that this sort of action violates the right to due process of law.

Keep in mind, Mr. Jackson has not yet been charged with any crimes; he has merely been accused, and as the story indicates, it has taken the accusers a long time to level the accusations.

Should the state have the right to take away your children if you are accused of child abuse?

Well, being charged, and being accused are essentially the same thing. I think you meant to say he's been charged, but not convicted.

That said, I think that the fact that you have been charged with child abuse of another child is an acceptable reason to look into how one handles their own children, even if no accusation of abuse toward them has been made.

 

[Andalyn]

Short answer: Yes.

 

[RPG Advocate]

Of course people shouldn't have their kids taken from them unless the allegations have been proven in a court of law. As it stands, even an anonymous call to CPS can lead to removal of children on unsubstantiated allegations. There can be no exception for "imminent danger", because CPS workers will abuse it just like police officers abuse "exigent circumstances" to perform illegal searches. To add insult to injury, the CPS workers would engage in "testilying" to cover up their abuses, just like police officers who lie under oath to manufacture probable cause. Much like the police scenario, the judge will likely believe the CPS worker over the accused.

Additionally, I think that if an allegation reported by a third party (i.e. not the child) results in a not guilty verdict on child abuse/neglect/endangerment charges, the name of the person reporting should be revealed so that the person reported could seek civil remedies against that person.

To counterbalance this, charges should be more severe if a child is injured or dies while an investigation is open. To prevent the prosecutor from gaining leverage as a result, I would disallow plea bargains so the case would be forced to go to trial.

Basically, the burden of proof should be on the state to prove allegations of child abuse before children can be taken. Anything else is simply "guilty until proven innocent".

 

[Andalyn]

Well, this thread has sat idle for a while.

I'd like to expand on my short answer.

Yes, in matters where the State has "probable cause" to proceed with a criminial action against a parent.

Of course, an anonymous call to child protective services should not get your kids taken away. I'm not in favor of that.

In the matter of Jackson - as he is currently charged with a crime - a judge and / or a grand jury (depending on which State you are in) found "probable cause" to support a criminal indictment against him.

That is enough for me to place children into protective custody - pending trial and a finding of guilt or innocence.

In Oklahoma, all this really means is moving the kids to another family members such as grandparents, etc. (if feasible).

We lock people up pending trial... We take measures to ensure that this person will be in court. Why wouldn't the State take measures to ensure that the kids are safe until the matter is resolved?

 

[Jeff Corey]

In NY, if a CPS investigator and the police detectives decide a child is in "immanent danger", the child can be taken from the parent for 72 hours (Article 10, NYS Family Law). The evidence must be presented to a judge during that time for a further extension of the loss of custody, unless the parent agrees.
Of course, a qualified family member would be the first choice for custodial guardian.

 

[RPG Advocate]

We lock people up pending trial... We take measures to ensure that this person will be in court. Why wouldn't the State take measures to ensure that the kids are safe until the matter is resolved?

I oppose "preventive detention" for the same reason I oppose "preventive removal" of children. It impinges on the presumption of innocence supposedly afforded all criminal defendants. As such, I believe all criminal defendants should be released O.R. and any guardian accused of child abuse should retain custody until he or she is convicted of a criminal offense.

In NY, if a CPS investigator and the police detectives decide a child is in "immanent danger", the child can be taken from the parent for 72 hours (Article 10, NYS Family Law). The evidence must be presented to a judge during that time for a further extension of the loss of custody, unless the parent agrees.
Of course, a qualified family member would be the first choice for custodial guardian.

This provision suffers from the same arbitrariness that I condemn above. It sounds as though investigators don't need to "articulate" suspicion (such as a police officer must in order to temporarily detain someone). It seems to afford no protection against an investigator invoking the statute in order to just mess with someone, even if only for three days. Until conviction, we must assume that any charges the state levels against a citizen are baseless and act accordingly. Anything less invites abuse.

 

[aerosolben]

I oppose "preventive detention" for the same reason I oppose "preventive removal" of children. It impinges on the presumption of innocence supposedly afforded all criminal defendants. As such, I believe all criminal defendants should be released O.R. and any guardian accused of child abuse should retain custody until he or she is convicted of a criminal offense.

All? If someone runs when between being arrested and going to trial, should they be allowed to go free next time they are caught? If they run every single time, the trial will never occur. Sounds like a loophole to me...

 

[Andalyn]

I oppose "preventive detention" for the same reason I oppose "preventive removal" of children. It impinges on the presumption of innocence supposedly afforded all criminal defendants. As such, I believe all criminal defendants should be released O.R. and any guardian accused of child abuse should retain custody until he or she is convicted of a criminal offense.

Yikes!!

Most disagree with your idea above. It does not impinge on the presumption of innocence - but merely ensures that one will indeed be in court. Surety is given, by means of a bail bond to ensure that the suspect will have some reason to return to court.

Many defendants get out of jail on surety (bail) pending trial. I would venture to say most...

There are pre-trial release programs that let defendants out without paying a dime. However, they may have to wait a couple of days.

I would guess that if it did legally impinge on one's presumption of innocence - this proposed problem would have been taken care of some time ago by a civil rights attorney. Much more likely that you are somehow looking at the flow of events wrong.

Some crimes - such as public intox, DUI do not allow for an immediate O.R. as the condition of the defendant must be taken into account.

How about a death penalty case - such as Murder. That should be an O.R. situation as well?

Anyway, I look at the placing kids in protective custody pending trial as a surety. Also, we must understand that the kids themselves may also be reluctant State's witnesses. Leaving them with a parent who is suspected of abuse, whether primarily physical or sexual is reckless - considering how long a defendant can drag a court proceeding. Some cases take over a year to reach conclusion (generally due to defendant's motions).