Thursday

Certain Truths Are Self-Evident

Ten things you need to know about the structure of the CRC:

Ten things you need to know about the substance of the CRC:

NOTES:

  1. -Vienna Convention on the Law of Treaties, Article 26 “Pacta sunt servanda”:
    “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”


    United States Constitution, Article VI: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

    UNICEF  “Convention on the Rights of the Child” says: “the Convention is a universally agreed set of non-negotiable standards and obligations.” Available at 
    http://www.unicef.org/crc/ on 12/2/2008.
  2. -Vienna Convention Article 26 (supra);

    United States Supreme Court, Whitney v. Robertson, 124 U.S. 190 (1888): “By the Constitution of the United States, a treaty and a statute are placed on the same footing, and if the two are inconsistent, the one last in date will control, provided the stipulation of the treaty on the subject is self-executing.”
  3. -Vienna Convention (supra) and Article 2 (g):  “‘party’ means a State which has consented to be bound by the treaty and for which the treaty is in force”
  4. -United States Constitution, Article VI (supra, Note 1)
  5. -Arlene Bowers Andrews, Implementing the U.N. Convention on the Rights of the Child, 171 (Greenwood Publishing Group 1999): “The Convention is generally regarded as having two classes of rights for the purposes of self-execution, one class that is self-executing and one that is not self-executing."
  6. -United States Supreme Court, Medellin v. Texas, 552 U.S. ___ (2008), at 170 L.Ed. 2d 190, 219, “And  whether the treaties underlying a judgment are self-executing so that the judgment is directly enforceable as domestic law in our courts is, of course, a matter for this Court to decide.”
  7. -Inter-Agency Standing Committee Reference Group on Humanitarian Action and Human Rights,Frequently Asked Questions on International Humanitarian, Human Rights, and Refugee Law, (2002), available at http://www.icva.ch/doc00001023.html#24:
    “Human rights law also contains provisions obliging states to implement its rules, whether immediately or progressively. States must adopt a variety of legislative, administrative, judicial and other measures that may be necessary to give effect to the rights provided for in the various treaties. This includes providing for a remedy before domestic courts for violations of specific rights and ensuring that the remedy is effective. The fact that a state has a federal or devolved system of government does not affect a state's obligation to implement human rights law.”

    United States Supreme Court, Reid v. Covert, 354 U.S. 1 (1957): “To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier.”
  8. -United Nations Convention on the Rights of the Child, Articles 43 (amended) and 44. Available athttp://www2.ohchr.org/english/law/crc.htm#art43.
  9. -Vienna Convention, Article 27: “ A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”
  10. -Vienna Convention, Article 19, available at available athttp://www.jus.uio.no/lm/un.law.of.treaties.convention.1969/19.html; also

    Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, The American Journal of International Law, Vol 89 No 2, 343-344 (Apr. 1995):
     “Reservations designed to reject any obligation to rise above existing law and practice are of dubious propriety: if states generally entered such reservations, the convention would be futile.  The object and purpose of the human rights conventions, it would seem, are to promote respect for human rights by having countries—mutually—assume legal obligations to respect and ensure recognized rights in accordance with international standards. Even friends of the United States have objected that its reservations are incompatible with that object and purpose and are therefore invalid.
    …By adhering to human rights conventions subject to these reservations, the United States, it is charged, is pretending to assume international obligations but in fact is undertaking nothing.”
  11. -United Nations Convention on the Rights of the Child, Article 37(a):
    “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age”

    United Nations Committee on the Rights of the Child, General Comment No. 8 (2006): The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia), CRC/C/GC/8, (2006):
    “The Committee is issuing this general comment to highlight the obligation of all State parties to move quickly to prohibit and eliminate all corporal punishment…. Addressing the widespread acceptance or tolerance of corporal punishment of children and eliminating it, in the family, schools and other settings, is … an obligation of State parties under the Convention.”
  12. -United Nations Convention on the Rights of the Child, Article 37(a), (supra)
  13. -The UN Convention on the Rights of the Child: A Guide for Children and Young People (April 2008), available at http://www.scotland.gov.uk/Publications/2008/04/01081649/1: “You have the right to choose your own religion and beliefs.  Your parents should help you think about this.”

    Geraldine Van Bueren, International Rights of the Child, Section B, University of London, 29-30 (2006):
    “Unlike earlier treaties, the Convention on the Rights of the Child does not include a provision providing for parents to have their children educated in conformity with their parents’ beliefs. In addition, the child’s right to freedom of expression and the right of the parents to initially give direction and later only guidance, strengthens the argument that children are entitled to participate in decisions so that their education conforms to their own convictions....  The second question is whether a child has the right to choose a religion.
    Under the Convention on the Rights of the Child, parents do have the right to provide direction to the child. Such parental power, however, is subject to two restraints:
    • First, such direction should take into account the evolving capacities of the child, as expressly required by the Convention.
    • Second, the direction should not be so unyielding that it equals coercion.
    It can also be argued that the right to freedom of religion in the Convention on the Rights of the Child ought to be read together with article 12 which gives the child the right to express his own views in the matter of choice of religion."
  14. -United Nations Convention on the Rights of the Child, Article 3(1): “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
    Geraldine Van Bueren, International Rights of the Child, Section D, University of London, 46 (2006):
    “Best interests provides decision and policy makers with the authority to substitute their own decisions for either the child's or the parents', providing it is based on considerations of the best interests of the child.  Thus, the Convention challenges the concept that family life is always in the best interests of children and that parents are always capable of deciding what is best for children.”
  15. -United Nations Convention on the Rights of the Child, Article 12(1): “State parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”
    Inter-Agency Standing Committee Reference Group: “Human rights law also contains provisions obliging states to implement its rules, whether immediately or progressively. States must adopt a variety of legislative, administrative, judicial and other measures that may be necessary to give effect to the rights provided for in the various treaties. This includes providing for a remedy before domestic courts for violations of specific rights and ensuring that the remedy is effective.”
    Geraldine Van Bueren, International Rights of the Child, Section D, 137: “State parties are obliged to ‘assure’ to children who are capable of forming views the rights to express those views ‘in all matter affecting the child’ and to give those views’ due weight in accordance with the age and maturity of the child’.  By incorporating a reference to ‘all matters affecting the child’ there is no longer a traditional area of exclusive parental or family decision making.”
  16. -ibid., at 36: “[T]he United Nations Committee on the Rights of the Child, criticized Egypt and Indonesia on the proportion of their budget spent on defence, as compared to the proportion spent on children’s social expenditure."
    The Committee also criticized Austria, Australia, Denmark, the United Kingdom, and others failing to spend enough tax dollars on social welfare for children:
    Paragraph 46, Concluding Observations of the Committee on the Rights of the Child: Austria, Committee on the Rights of the Child, 38th sess., U.N. Doc. CRC/C/15/Add.251 (2005).
    Paragraph 17 and 18, Concluding Observations of the Committee on the Rights of the Child: Australia, Committee on the Rights of the Child, 40th sess., U.N. Doc. CRC/C/15/Add.268 (2005).
    Paragraphs 18 and 19, Concluding Observations of the Committee on the Rights of the Child: Denmark, Committee on the Rights of the Child, 40th sess., U.N. Doc. CRC/C/DNK/CO/3 (2005).
    Paragraph 10, Concluding Observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland, Committee on the Rights of the Child, 31st sess., U.N. Doc. CRC/C/15/Add.188(2002).
  17. -United Nations Convention on the Rights of the Child, Article 31(1): “States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.”
  18. -American Bar Association, Center on Children and the Law: Children's Rights in America: UN Convention on the Rights of the Child Compared with United States Law, p. 182.
  19. -Paragraph 52, Concluding Observations of the Committee on the Rights of the Child: Ireland, Committee on the Rights of the Child, 43rd sess., U.N. Doc. CRC/C/IRL/CO/2 (2006):
    “While noting that social, personal and health education is incorporated into the curricula of secondary schools, the Committee is concerned that adolescents have insufficient access to necessary information on reproductive health.  The education is optional and parents can exempt their children.”
    Paragraph 14, Concluding Observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland, Committee on the Rights of the Child, 8th sess., U.N. Doc. CRC/C/15/Add.34 (1995).
  20. -Katie Hatziavramidis, Parental Involvement Laws for Abortion in the United States and the United Nations Conventions on the Rights of the Child: Can International Law Secure the Right to Choose for Minors?, 16 Tex. J. Women & L. 185, 202-203 (Spring 2007):
    “The unmistakable trend in the United States is to consistently increase anti-choice legislation, particularly with respect to minors. Ratification of the U.N. Convention on the Rights of the Child by the United States holds a strong possibility of assisting minors who seek abortions without parental interference.  [*203]  The Convention may offer the best hope for securing adolescent reproductive freedoms on a global level. If enough diplomatic pressure were exerted on the United States to compel it to ratify the treaty, the CRC could provide significant improvements in the outlook for reproductive freedom for minors.”
    Paragraph 3, Concluding Observations of the Committee on the Rights of the Child: Columbia, Committee on the Rights of the Child, 42nd sess., U.N. Doc. CRC/C/COL/CO/3 (2006): “The Committee notes with appreciation…decisions of the Constitutional Court on…the partial decriminalization of abortion.”
    Paragraph 55, Concluding Observations of the Committee on the Rights of the Child: Chile, Committee on the Rights of the Child, 44th sess., U.N. Doc. CRC/C/CHL/CO/3 (2007): “The Committee…is concerned over the high rate of teenage pregnancies, the criminalization of the termination of pregnancies in all circumstances….”

Dusty books

Should Custody Law Be Abolished?

In a previous blog post,  "Why the Custody Label Matters",  I explained why custody designations still matter, in terms of their impact on legal rights. The bigger question behind that one is: Should custody labels still matter? To put it another way: Has the time come to relegate the whole concept of custody of children to the scrap heap of history?
The United Nations Convention the Rights of the Child
The question is not merely an abstract hypothetical. To the contrary, there appears to be a very definite trend, both in the United States and around the world, away from the concept of custody. The United Nations Convention of the Rights of the Child (“UNCRC”), for example, eschews the word custody. Instead, Article 9 of the UNCRC directs member countries to “ensure that a child shall not be separated from his or her parents against their will, except [in cases involving abuse or neglect, or where] a decision must be made as to the child’s place of residence.” Rather than referencing a  right of parents to custody of their children (referring instead to a child’s right to have the state order what it determines is in the child’s best interest), Article 9 requires member countries to “respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis....”
Shared Parenting Legislation
Nearly every U.N. country has signed onto the UNCRC. The U.S. Congress has refused to ratify it.[2. Various reasons have been given for Congressional refusal to ratify the UNCRC. For example, members of Congress have expressed concern that it might have the effect of outlawing corporal punishment; or that it might mean that children cannot be put to death, or imprisoned for life without possibility of parole; or that farmers could no longer require children under 12 to work under dangerous conditions. There has also been a concern among fiscal conservatives that the provisions classifying education, nutrition, health, and recreation as rights could create significant new entitlements for children, resulting in unfunded mandates.] Nevertheless, there is other evidence of a clear movement away from the concept of custody (or at least that particular word) in the United States, too. In particular, a growing number of states are transforming, or at least supplementing, their traditional custody laws with shared parenting and parenting plan legislation. These kinds of laws use terminology like primary residential responsibility anddecision-making responsibility instead of physical custody and legal custody. Sometimes these laws expressly provide that parents may use other words besides “custody,” so long as the alternate terms are defined in a way that is understandable and enforceable.
Reducing acrimony and litigation
Understandably, not many family law mediators are enamored of the word custody. Fewer still are fans of the winner-takes-all, adversarial approach it connotes. Because neither parent wants to be the one who is deprived of that title and relegated to the role of “visitor,” it is a significant source of impasse in mediation. In many cases, it may actually be the only source of impasse. For this reason, many mediators will not address the issue (if they address it at all) until after all discussions of the details of the actual parenting time schedule and decision-making allocations have been completed.[3. See, e.g., McKnight, Marilyn S. and Stephen K. Erickson, The Plan to Separately Parent Children After Divorce, in Divorce and Family Mediation 129-54 (Jay Folberg et al., eds. 2004.)]Any family court judge or attorney can attest to the fact that the lion’s share of litigation in family court involves a contest for ownership of the custody “prize.” If this incentive were removed, it stands to reason that there would be a sharp decline in litigation in family court. Parents would save literally thousands of dollars in attorney fees and related expenses like custody evaluators, forensic experts, witness fees, and so on.
Removing the winner-gets-the-kids concept would also remove the incentive for parents to focus on each other’s faults, and to “dig up dirt” on each other. It may not be reasonable to expect divorcees to co-parent blissfully, without conflict, but getting off to a less acrimonious start, one that encourages cooperation rather than competition, would certainly seem to have a greater chance of serving the interests of children than the existing system has.
The historical rationale
As explained in detail in other blog posts, and in my book, The History of Custody Law, the concept of custody has been around since earliest recorded human history. The traditional account provided by historians is that all through history, up until the Enlightened Age (i.e., the particular era of time in which the historian providing the account is living), children were viewed as economic assets having the  legal status of chattel. Under this view, an allocation of custody of a child between two parents was required for the same reason an allocation of ownership of any other marital property was required. The owner of property gets to make decisions about what to do with it, and who gets to use it. By dividing up a divorcing couple’s property, a court prevents future disputes over those kinds of decisions from arising. By the same token, “awarding” a child to one or the other parent makes it clear which parent gets to decide how to raise the child, who gets to spend time with the child, and how and when the time will be spent.

Those who have read my book, or who have actually read the cases that people cite for the proposition that custody was governed by principles of property law at some time in American history, know that is not true. In America, courts have always regarded the best interests of the child to be the paramount consideration in custody cases. It is true, though, that courts have been at a loss to discover a way to address the question of what is to happen to the children after a divorce other than to say that one or the other parent will get them and the other parent will have a right to  have contact with them from time to time – an outcome analogous to an award of title to property (custody) subject to an easement of use (visitation.)
Do “physical custody” and “visitation” labels make sense anymore?
In the nineteenth and early twentieth centuries, custody carried with it the power to determine at what times, and where, the noncustodial parent would be allowed to visit his child. Since a noncustodial parent’s contact with a child frequently occurred in the mother’s home, it made sense to call it visitation.
When courts began broadening visitation to include overnights and entire weekends, or even an entire week of time during summer vacations, the justification for calling it “visitation” disappeared. Accordingly, many states have enacted legislation requiring courts to use the term “parenting time” instead.

Since courts can and do designate a child’s “primary physical residence” even in cases where joint physical custody is awarded, it is difficult to see what essential function the term physical custody serves anymore. A parent who has the right to have possession of a child outside of the other parent’s home, even if only on alternate weekends, has a right to possession of the child on those weekends. Why not simply call it what it is, then -- alternating periods of physical custody? More to the point, though, why even call it custody at all? Why not simply call any time a child spends with a parent “parenting time” and dispense altogether with calling one, the other, or both parents “physical custodians”?
Legal custody
Most (though not all) states distinguish between legal and physical custody. Legalcustody refers to decision-making authority. Physical custody refers to the right to possession. Unlike physical possession time, which can be alternated between two parties throughout the year, decision-making authority is not as simple. A judge cannot simply decree that the mother will decide which school a child will attend half of the year, and the father will select the school for the rest of the year; or that the mother will decide whether their son will be circumcised during the first year of his life, and the father will make that decision the following year. Some kinds of decisions can only be made once.

It is not necessarily the case, though, that it is in a child’s best interest to give one parent sole authority to make all decisions affecting the child. It is possible, for example, that one parent may have greater knowledge of, and interest in, education, but not religion, while the other parent has a greater concern about religious upbringing than choice of schools. Allocating decision-making responsibilities in a more careful, reasoned manner would seem to serve children’s interests better than conferring the title of “legal custodian” with all decision-making power to one parent alone.
Third party custody
One way the custody concept is useful is in distinguishing parental rights from the rights of third parties. As the U.S. Supreme Court and common law judges have said many times, a parent’s right to the custody of his or her children is superior to that of any other person. It is difficult to express this principle of law without using the word custody.
One way to do it would be to include the rights of physical possession and decision-making authority within the definition of parental rights. Currently, things like the right of access to medical records and the right to attend school conferences are included in statutory lists of parental rights. Rights of physical possession and decision-making authority should also be included in the list.
This approach would have the added advantage of reminding courts that custody is every bit as important a right as, say, access to school records. Just as a judge is not free to terminate parental rights of access to school records absent a showing that such access puts the child at risk of harm, so a judge should not be free to terminate a parent’s rights to physical possession and decision-making authority unless it is shown that such rights put a child at risk of harm. A judge should not have the power to remove children from their parents simply because he believes another person might have better parenting skills, or a greater ability to send the children to a private school, for example.
Of course, there will always be situations involving child abuse, neglect or endangerment – or the death or mental or physical incapacity of a parent -- in which a transfer of possession and/or decision-making authority to a non-parent will be necessary to protect a child from harm. There is no reason why these non-parental caretakers could not be called guardians rather than “custodians,” though.
Cordination with other laws
The biggest challenge presented by a proposal to eliminate custody from the law involves coordinating the change with existing law. A legislature considering eliminating it will need to review all of its statutes and administrative rules and regulations to ensure that eliminating the concepts of custodial and noncustodial parents from the law will not have unintended consequences, or make other laws and rules impossible to apply.
For example, how will the change affect state or federal housing assistance programs that  limit eligibility to custodial parents? Child support laws will need to be rewritten if they are couched in terms of custodial and noncustodial parents. Standards for modification of custody will need to be revised.
The effect on jurisdiction and enforcement in other states will also need to be considered. For example, many states have enacted a law known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA.) A state that is thinking about eliminating custody designations should consider not only the impact the change will have on how the UCCJEA is applied, but also how it will impact the other laws, and variations on the UCCJEA, that other states have enacted.
International law will also need to be considered. The Hague Convention, for example, provides ample means for securing an abducted child’s return on behalf of a custodial parent. Securing the return of a child without a custody order in place may be more problematic.
Conclusion
Eliminating the concept of routinely making awards of custody of children whenever their parents do not live together admittedly would be a radical departure from thousands of years of legal tradition. It may not be something that can be achieved overnight, or  with a single stroke of a pen. Nevertheless, at a time when nearly every country in the world takes pride in itself for conceiving of children as human beings rather than property, it could be worthwhile for more policy-makers to give serious consideration to moving away from the routine judicial practice of making what amount to declarations of child ownership anytime two parents do not live together.   

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My book, The History of Custody Law, is available in paperback and Kindle e-book formats at Amazon.com:

El Siglo de la Igualdad Requiere Custodia Compartida


Sábado, 29 de Agosto, 2015 --  Nos hablan continuamente de igualdad por todos los lados. Proclaman día a día una supuesta desigualdad de la mujer frente al varón, pero el propio feminismo que reclama a diario tal igualdad se opone tajantemente a una medida que contribuiría a que la madre no se encontrase esclavizada en los cuidados de los hijos, a cambio de ser mantenida por el ex marido. Si una de las pretensiones del feminismo era liberar a la mujer de la dependencia económica de su pareja, no se puede admitir ahora que continúe en la misma situación por el hecho de la separación o divorcio.

Fuente:   Maria Gonzalez --   https://www.facebook.com/photo.php?fbid=724033584392625&set=a.210126125783376.46428.100003579718943&type=1

Fatherneed: Why Father Care Is as Essential as Mother Care for Your Child at Greenberg, Baisden & Perez, LLC. ~~   · 

A Message to Daddyless Daughters - Listen Up Nixa Maria Rose!!
But to hold it together when everyone else would understand if you fell apart...that's TRUE STRENGTH !
#StandUpForZoraya

#SayHerName 

#ILoveAndNeedMyDaughter 

ILOVEANDNEEDMYDAUGHTER.BLOGSPOT.COM

Miami, Florida Fontainebleau Miami Beach Miami beach, fl Downtown Miami Mi Familia Vota - Florida Class Action Against Utah Family Law Corruption - Our Children Have a Voice Troxel v. Granville
Posted by American Fathers Liberation Army on Thursday, August 20, 2015

We need family court reform that protects the rights of families. Children deserve both parents.False allegations to influence custody should be considered perjury. Make judges and Lawyers accountable by making courts open and putting cameras in the courtroom. The best child support is equal parenting not punishing one parent with poverty. Sole custody should never be awarded except in cases of proven abuse.

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