Saturday, April 28, 2007

China's Proposed International Adoption Law: The Likely Impact on Single U.S. Citizens Seeking to Adopt from China and the Available Alternatives

Check out my article published on the Harvard International Law Journal Online: China's Proposed International Adoption Law

Friday, April 27, 2007

Parental Strife, Divorce, and the Children Stuck in the Middle

Divorce is not easy for anyone involved. Both husband and wife are dissolving a life-long-commitment that has not worked out. The children are losing the stability of a mommy and daddy unit that had sustained them since childhood. In many instances, divorce seems to be the best option when a married couple can no longer interact appropriately. When constant fights and disagreements ravage the family, a divorce may very well be the best option for the spouses and the children too.

While parents are in the midst of the ongoing disputes and battles common in most divorces it is important to keep sight of those it impacts the most -- the children. Parents may feel that it is important to win this particular battle or to obtain that particular asset. In the long-run, however, it may be that their children are suffering needlessly.

Even when children are shielded from court proceedings, it is likely that the kids will still feel the fall out. A constantly changing custody determination, the rants of frustrated parents, and the feeling of tension in the air all impact children.

Recently there has been a strong example of the impact that divorce can have on parents and children in the news. Alec Baldwin recently referred to his young daughter as a "pig" in a ranting phone message. Baldwin credited his outburst to the frustrations of being a stilted parent in a divorce. This is a most unfortunate situation.

Granted, it is very sad that Baldwin was unable to get his daughter at a set time. Granted, he may have made some sacrifices to be able to get a precious phone call with her. Granted, he might be extremely frustrated about the situation. BUT his frustration was not her fault. She did not pick for her parents to meet and marry. She did not pick for them to get divorced. She did not pick for them to be continually furious with each other.

As hard as it might be, as painful as it might seem, parents need to dig deep and protect their children. Parents need to be able to discern the difference between their child's best interest and their own parental rights. There is a difference.

In a small number of cases a parent might have a legitimate safety or well-being concern for their child if the other parent has some custody or visitation rights. This is a limited set of cases -- where there is physical, sexual, and/or emotional abuse. In those instances the parents should absolutely fight to protect their children. Absent these dangers, a child will not benefit from a parent constantly bad-mouthing the other parent in their presence -- in fact, this is almost a type of emotional abuse (making the child feel they are a horrible person for loving their mommy or daddy).

As Baldwin has learned the hard way, parents need to keep their priorities straight. I'm in no position to say that a certain couple -- or all couples -- should or should not get divorced in certain instances. I am in an outsider's position. I think this outsider's position gives me the distance to see the impact that such verbally violent interactions can have on the kids. Baldwin needs to find a way to civilly be a part of the parenting unit for this young girl, and how to deal with any adolescent issues in a mature fatherly way, and not just as a part of his bitter divorce. Throughout Baldwin's daughter's adolescents there will likely be many more stressful situations (just think about once she starts to drive!), but in order to be a true father to his daughter, he needs to recognize her role as daughter and his as father -- she is there to be raised and to mess up, and he is there to teach her and protect her as she makes these mistakes.

Tuesday, April 17, 2007

The Virginia Tech. Tragedy -- The Fears About Staying Safe At School

The shootings at Virginia Tech. were a horrible tragedy. I send out my deepest condolences to the parents, siblings, friends, loves, cousins, and classmates touched by these murders. There is no way to undo the damage wrought by the shootings, we can only hope to prevent any future massacres.

I had similar feelings years ago after the shootings at Columbine High School. I was in high school at that time -- in a school with very similar demographics to Columbine. Those shootings made us painfully aware of the chasms within the student body, of the pain that students feel, and of the impact that just a few students can have on so many. As a response we held special functions, tried to "get to know" each other, and discussed the issues of bullying, isolation, and hatred. All these years later, I don't know if we have truly learned anything from the Columbine tragedy. I hope that we have.

The shootings at Virginia Tech. make me painfully aware of the vulnerability in school. I'm a graduate student in my last three weeks of school. Since graduating from high school I've spent countless days and evenings in the library. Why should I now hesitate to spend time in large school areas? I can't help but wonder -- if someone started shooting in the library right now (I'm in the library now), what would I do? What would any of us do?

In the news coverage there is talk about the concern for students' safety in schools. Parents are worried about sending their kids off -- for so much of the day -- to a place where they could potentially be victims. I wholly understand this feeling -- and I hope we can find a way to get past it.

I mourn for the students killed. I mourn for the teachers killed. I also mourn for the atmosphere of safety and learning at Virginia Tech. from before this week.

The Child Advocacy Program and the American Bar Association's Conference on Child Welfare

This past weekend Harvard Law School played host to hundreds of child advocates eager to share ideas, discuss pressing issues, and learn from each other. It was a wonderful opportunity for students, like me, to meet many child advocates who work on behalf of children in many different capacities. As a law student it is easy to think of child advocates only as attorneys that represent children directly or as members of think-tanks that try to push through major policy reforms. I often forget the numerous other types of child advocates -- the judges, the DAs, the probation officers, the social workers, the teachers, the doctors, and the parents who all dedicate themselves day in and day out to promoting the welfare of children.

I got to attend some very interesting sessions on a variety of topics. I got to sit in on a session about international adoption, about homeless youths, about gay parenting, and about new initiatives such as the medical-legal partnership.

I thought the information on the medical-legal partnership was particularly fascinating. These dedicated doctors and lawyers have found ways to join forces for the betterment of youths and their families. These programs are generally run through hospitals by lawyers who help to spot legal issues and to coordinate free legal services. Such programs are generally preventative legal help to ensure the safety and well-being of children. For example, if a family is having a hard time paying their utilities bill, then it is likely that stress will run high, the house will be cold and dark, and that the family may be evicted. If a pediatrician sees this child at a check-up and hears about the problems with the utility bills, then the pediatrician can pass along the referral to the attorneys. The attorneys can then represent the entire family in connection with trying to get the utilities set up on a reasonable payment plan or reduced fee schedule. In this way, the legal services kick-in at an earlier stage to benefit the child and the entire family.

I am grateful to have had the opportunity to attend the conference. I only wish that the conference gave me more clarity on what I want to do in my career -- instead, it presented a lot of exciting options.

Tuesday, April 10, 2007

Children Are Stuck In the Middle -- What Happens When There Are Not Enough Lawyers to Represent Parents in Hearings with the Child Welfare Agency

In Massachusetts there is a chronic problem of court appointed attorneys not being paid enough to sustain a pool flush with lawyers. Until 2005, court appointed attorneys were paid as little as $30 an hour for representation in a district court case in MA. (These rates remained stagnant for 9 years.) In MA, parents are guaranteed lawyers in certain hearings -- especially those in which they might lose custody of their children. If the state cannot provide attorneys for indigent parents, then what happens to the children?

In her article "The Price of Justice: In Light of Lavallee, What Should Massachusetts Courts Do When Attorneys Are Not Available to Represent Indigent Parents In Care and Protection Matters?" (32 N.E. J. on Crim. & Civ. Con. 111 (2006)), Trisha M. Anklam argues:
Children should not be the victims of a tug-of-war between the courts and the Legislature; unfortunately, that is what is happening today. For obvious child safety reasons, the court cannot merely dismiss care and protection proceedings if an attorney cannot be appointed pursuant to [the MA case requiring appointment]. This situation means that a judge's hands are tied.
Anklam's article is an interesting account of the options that judges have when faced with these issues. Ultimately, however, it is the children that really suffer when their parents -- the parents who may have been abusing them -- can not get representation. These children will languish in an un-settled in-between while the process for either helping to "fix" their home or to move them onto another home is paused. These children will remain in foster care (or other temporary placements) awaiting some sort of procedure to begin.

Parents have a strong constitutional right to custody of their children. Understandably, the state should not be able to undo this right without a fair amount of procedure. It is unacceptable for the state to create procedure that it cannot support -- and then to put the burden of this onto the families. If the a state's legislature deems parental representation mandatory in child welfare cases, then the state legislature should ensure that such representation exists. In Massachusetts, there clearly is not a pool of lawyers who are willing/able to represent these parents at such a comparatively low fee.

Although I tend to only side with children, this injustice deeply impacts both children and their parents. It is possible that parents should have full custody of their children and in the time that the court cannot find an attorney, that parent is losing some of the precious little time when their child is still a child. Further, by guaranteeing representation at these hearings when that representation does not exists, the legislature is effectively removing the parent's access to the hearings altogether. If the state is not going to provide representation -- and will thus hold off on the hearings -- then the parent is worse off than if the state just had the hearings without any guarantee to counsel.

Neither children, nor parents are well-served by this misorganization.