Anything You Say on Facebook Can & Will Be Used Against You in a Court Of Law

How Facebook Could Ruin Your Case

Like the perpetually feuding families the Hatfields and the Mccoys, attorney Mitch Jackson’s client and his neighbors were involved in an ongoing dispute since September 2007. The neighbors had dumped trash into the client’s yard on a number of occasions and verbally harassed them while crossing paths within the community. The last straw was when the abusive neighbors injured the client’s dog, resulting in some hefty vet bills. Jackson’s clients decided to sue.

To win the case, Jackson, who is a senior partner at the Jackson and Wilson law firm in Orange County, would need to show the jury that the neighbors had a history of harassing his client with vulgar threats. But when the defendant took the stand, he testified that it was not in his character to use such crude and profane language. That’s when Jackson pulled up the defendant’s Facebook page.

“We had photocopied his Facebook wall, where he had posted general derogatory comments,” Jackson says. “When we did that, he tried to explain how that could not constitute the type of language we had attributed to him earlier.”

Attorneys can mine your Facebook and Twitter accounts for evidence.
Deleting your social media accounts during trial can result in penalties.
Your lawyer should counsel you on how to use social media while your case is ongoing.

The jury ended up awarding Jackson’s plaintiff more than $430,000 in damages. Speaking to the jury after the trial, Jackson discovered the Facebook wall postings were a key factor in diminishing the defendant’s credibility.

Jackson’s case illustrates how social media, like Facebook and Twitter, are changing the legal landscape for defendants and plaintiffs alike. With so much personal information voluntarily being made public, it’s no surprise things like wall posts and Tweets are showing up as evidence in court. And Jackson says this is something that all lawyers and consumers need to be cognizant of.

Be Careful What You Post

Over the last few years, social media sites have blown up in a big way. According to Facebook, there are more than 800 million active users on the site’s network, with more than half of these users logging into the site each day. On average, more than 250 million photos are uploaded to the site each day, while the average user is connected to more than 80 community pages, groups and events. Meanwhile, Twitter sees more than 1 billion Tweets posted per week, with an average of about 140 million per day.

“Anytime you are trying a case, it is the trial attorney’s obligation and duty to accumulate as much information as he or she can to support the client’s case or defend against it,” Jackson says. “Many trial lawyers today are learning as much as they can about the parties and the witnesses through social media sites. And what people need to understand is that this information doesn’t simply evaporate into thin air after it leaves your screen. It can be mined, analyzed and reviewed in civil and criminal cases.”

Jackson sites an example where a high school varsity football playersuffered brain injuries during the course of a game. The player had alerted a coach to a malfunction with his helmet before taking the field, but the coach allegedly brushed off the problem and instructed the student to play. The case was complicated by the fact that by the time the player sued, he had gone to college where pictures of him fraternizing and partying were taken and posted to his Facebook page.

“These pictures gave the wrong impression as to the severity of his diagnosed brain injury,” Jackson says. “But I happened to know he was seeking extensive care for those injuries, which affected a number of things including his ability to concentrate in school.”

Jackson was careful not to instruct the student to take down his Facebook photos, a measure which could be construed as tampering with evidence. This kind of evidence tampering is referred to asspoliation in many states and can result in serious penalties. Instead, Jackson counseled his client to not post any new information on his Facebook page while the trial was ongoing.

Making Social Media Work for You

This proliferation of evidence isn’t all bad, says Jackson. Plaintiffs and defendants can use social media sites to their advantage by using these networks to promote their side of the case.

“People can use social media sites to share their stories accurately and truthfully,” Jackson says. “As long as you have a message to share and it is honest, social media can actually have beneficial ramifications.”

Jackson encourages his lawyer colleagues to consider leveraging the power of social media sites to benefit their clients. As Internet access becomes more ubiquitous with the rise of smartphones, the public, and even jurors, are more likely to conduct their own research into a case. Jackson says you may as well put forth your side of the story.

“This is something that lawyers need to look at for planting seeds for truthful information so that if somebody, for whatever reason, chooses to go online and research facts and issues concerning a case, you may be able to direct them toward accurate information,” he says.

Jackson says that although individuals need to be aware of the consequences of posting to social media sites, the obligation to remind them of these ramifications falls on the shoulders of their attorneys.

“Lawyers need to counsel their clients about social media and to instruct them to either stop posting or to update their accounts with honest information about their case,” Jackson says. “Also, people should not post anything that references their injury, accident or dispute without first talking to their attorneys.”

Source: http://blogs.lawyers.com/2011/12/how-facebook-could-ruin-your-case/

September 13, 2013July 15, 2016

HOW FACEBOOK MAKES US UNHAPPY

SEPTEMBER 10, 2013

HOW FACEBOOK MAKES US UNHAPPY

POSTED BY MARIA KONNIKOVA

No one joins Facebook to be sad and lonely. But a new study from the University of Michigan psychologist Ethan Kross argues that that’s exactly how it makes us feel. Over two weeks, Kross and his colleagues sent text messages to eighty-two Ann Arbor residents five times per day. The researchers wanted to know a few things: how their subjects felt overall, how worried and lonely they were, how much they had used Facebook, and how often they had had direct interaction with others since the previous text message. Kross found that the more people used Facebook in the time between the two texts, the less happy they felt—and the more their overall satisfaction declined from the beginning of the study until its end. The data, he argues, shows that Facebook was making them unhappy.

Research into the alienating nature of the Internet—and Facebook in particular—supports Kross’s conclusion. In 1998, Robert Kraut, a researcher at Carnegie Mellon University, found that the more people used the Web, the lonelier and more depressed they felt. After people went online for the first time, their sense of happiness and social connectedness dropped, over one to two years, as a function of how often they used the Internet.

Lonelier people weren’t inherently more likely to go online, either; a recent review of some seventy-five studies concluded that “users of Facebook do not differ in most personality traits from nonusers of Facebook.” (Nathan Heller wrote about loneliness in the magazine last year.) But, somehow, the Internet seemed to make them feel more alienated. A 2010 analysis of forty studies also confirmed the trend: Internet use had a small, significant detrimental effect on overall well-being. One experiment concluded that Facebook could even cause problems in relationships, by increasing feelings of jealousy.

Another group of researchers has suggested that envy, too, increases with Facebook use: the more time people spent browsing the site, as opposed to actively creating content and engaging with it, the more envious they felt. The effect, suggested Hanna Krasnova and her colleagues, was a result of the well-known social-psychology phenomena of social comparison. It was further exacerbated by a general similarity of people’s social networks to themselves: because the point of comparison is like-minded peers, learning about the achievements of others hits even harder. The psychologist Beth Anderson and her colleagues argue, in a recent review of Facebook’s effects, that using the network can quickly become addictive, which comes with a nagging sense of negativity that can lead to resentment of the network for some of the same reasons we joined it to begin with. We want to learn about other people and have others learn about us—but through that very learning process we may start to resent both others’ lives and the image of ourselves that we feel we need to continuously maintain. “It may be that the same thing people find attractive is what they ultimately find repelling,” said the psychologist Samuel Gosling, whose research focusses on social-media use and the motivations behind social networking and sharing.

But, as with most findings on Facebook, the opposite argument is equally prominent. In 2009, Sebastián Valenzuela and his colleagues came to the opposite conclusion of Kross: that using Facebook makes us happier. They also found that it increases social trust and engagement—and even encourages political participation. Valenzuela’s findings fit neatly with what social psychologists have long known about sociality: as Matthew Lieberman argues in his book “Social: Why Our Brains are Wired to Connect,” social networks are a way to share, and the experience of successful sharing comes with a psychological and physiological rush that is often self-reinforcing. The prevalence of social media has, as a result, fundamentally changed the way we read and watch: we think about how we’ll share something, and whom we’ll share it with, as we consume it. The mere thought of successful sharing activates our reward-processing centers, even before we’ve actually shared a single thing.

Virtual social connection can even provide a buffer against stress and pain: in a 2009 study, Lieberman and his colleagues demonstrated that a painful stimulus hurt less when a woman either held her boyfriend’s hand or looked at his picture; the pain-dulling effects of the picture were, in fact, twice as powerful as physical contact. Somehow, the element of distance and forced imagination—a mental representation in lieu of the real thing, something that the psychologists Wendi Gardner and Cindy Pickett call “social snacking”—had an anesthetic effectâ€š one we might expect to carry through to an entire network of pictures of friends.

The key to understanding why reputable studies are so starkly divided on the question of what Facebook does to our emotional state may be in simply looking at what people actually do when they’re on Facebook. “What makes it complicated is that Facebook is for lots of different things—and different people use it for different subsets of those things. Not only that, but they are alsochanging things, because of people themselves changing,” said Gosling. A 2010 study from Carnegie Mellon found that, when people engaged in direct interaction with others—that is, posting on walls, messaging, or “liking” something—their feelings of bonding and general social capital increased, while their sense of loneliness decreased. But when participants simply consumed a lot of content passively, Facebook had the opposite effect, lowering their feelings of connection and increasing their sense of loneliness.

In an unrelated experiment from the University of Missouri, a group of psychologists found a physical manifestation of these same effects. As study participants interacted with the site, four electrodes attached to the areas just above their eyebrows and just below their eyes recorded their facial expressions in a procedure known as facial electromyography. When the subjects were actively engaged with Facebook, their physiological response measured a significant uptick in happiness. When they were passively browsing, however, the positive effect disappeared.

This aligns with research conducted earlier this year by John Eastwood and his colleagues at York University in a meta-analysis of boredom. What causes us to feel bored and, as a result, unhappy? Attention. When our attention is actively engaged, we aren’t bored; when we fail to engage, boredom sets in. As Eastwood’s work, along with recent research on media multitasking, have illustrated, the greater the number of things we have pulling at our attention, the less we are able to meaningfully engage, and the more discontented we become.

In other words, the world of constant connectivity and media, as embodied by Facebook, is the social network’s worst enemy: in every study that distinguished the two types of Facebook experiences—active versus passive—people spent, on average, far more time passively scrolling through newsfeeds than they did actively engaging with content. This may be why general studies of overall Facebook use, like Kross’s of Ann Arbor residents, so often show deleterious effects on our emotional state. Demands on our attention lead us to use Facebook more passively than actively, and passive experiences, no matter the medium, translate to feelings of disconnection and boredom.

In ongoing research, the psychologist Timothy Wilson has learned, as he put it to me, that college students start going “crazy” after just a few minutes in a room without their phones or a computer. “One would think we could spend the time mentally entertaining ourselves,” he said. “But we can’t. We’ve forgotten how.” Whenever we have downtime, the Internet is an enticing, quick solution that immediately fills the gap. We get bored, look at Facebook or Twitter, and become more bored. Getting rid of Facebook wouldn’t change the fact that our attention is, more and more frequently, forgetting the path to proper, fulfilling engagement. And in that sense, Facebook isn’t the problem. It’s the symptom.

Maria Konnikova is the author of the New York Times best-seller “Mastermind: How to Think Like Sherlock Holmes.” She has a Ph.D. in psychology from Columbia University.

Photograph by Luong Thai Linh/EPA/Corbis

Source: http://www.newyorker.com/online/blogs/elements/2013/09/the-real-reason-facebook-makes-us-unhappy.html#

August 20, 2013

Alimony

Alimony…Once More With Feeling

Understanding the intersection of human emotion and economic theory will help you serve your clients better as they navigate disagreements during marriage and during divorce.

Justin A. Reckers and Robert A. Simon, 08/15/2013

Psychological, financial, and legal professionals who work with clients going through the divorce process recognize the importance of assisting them to think strategically about financial decisions and how to avoid allowing emotions to unduly and inappropriately cloud their vision. Emotions readily and often inappropriately influence rational decision-making, and divorce evokes profound emotions that often de-rail economically rational decision-making in the midst of the upheaval.

Experience in practice as well as attention to the divorce literature results in more insight into the kinds of disagreements that lead couples to divorce in the first place. We now have research-derived empirical evidence that disagreements over financial matters are the leading cause of divorce across all socioeconomic levels in the United States. It turns out disparate values around money and the meaning attributed to money are more difficult to navigate than arguments about sex, household chores, child rearing, or offensive in-laws. More often than not, the disagreements had during marriage will spill over into divorce negotiations and possibly persist long after the judgment of dissolution is entered and spouses are officially divorced.

Understanding the intersection of human emotion and economic theory will help you, the advisor, to serve your clients better as they navigate disagreements during marriage and during divorce.

Alimony
Couples often make an economic decision to have one party postpone the development of their career in the interest of rearing the children at home. It saves day-care costs and hopefully allows hands-on parenting. The decision of who will be the stay-at-home parent is also an economic one based simply on comparative advantage. Whoever has a more stable job, a more promising career path, and/or and the ability to make more money is probably going to be the one working. The individual staying at home is likely to be the person whose income prospects are not as bright as the working spouse.

When the marriage ends this joint arrangement, interesting and complex things can happen. The non-working or stay-at-home party will probably find that he or she can no longer afford to remain out of the work force. Thus, this parent must return to the labor market after being a stay-at-home parent.

For many, this is a recipe for disaster. They may need to go back to college to retrain in order to find work or take a position working for minimum wage. On the other hand, for the spouse who has been working, there is often a feeling of being exploited. They have worked and earned an income. Because of this, they now are in the position of having to pay a portion of that income to their soon-to-be former spouse. If the working parent happens to be someone who owns their own business, they may also end up having to buy out their spouse’s portion of the value of the business and support the spouse as well. No wonder many couples choose not to get divorced due to the negative financial consequences.

Enter alimony.

Alimony is a simple economic concept. It acts as an extension of the lifestyle that was enjoyed during marriage in order to protect individuals and families with disparate incomes. Alimony is not just for full-time homemakers. Working individuals are often awarded alimony in circumstances where their former spouse earns considerably more.

When making an alimony award, courts are asked to look at statutory factors (aka the law)–including, but not limited to, the “battlegrounds” detailed below–then develop, as the State of New York puts it, “nuanced treatment of the parties’ individualized circumstances.”

Battlegrounds

1. Income available for support payments. The more money a person makes, the more difficult it becomes to determine what they really have available. Are stock options available for support? How about an automobile allowance from an employer?

2. Ability of supported party to earn an income of their own. Should a party who spent 18 years as a full-time parent and homemaker be expected to re-enter the workforce? If so, when, and how much can they earn?

3. Needs of the supported party. Just how much does a middle-class Midwestern homemaker need? How about a Los Angeles socialite? Does the standard of living enjoyed during the marriage play a role?

4. Duration of the payments. How long will the payments last? This is usually the most contentious conflict. In many states it could be “permanent” in the case of a long-term marriage.

As you may have guessed, the payer wants to pay as little as possible for as short a time period as possible. The payee wants as much as possible for as long as possible. Every dollar moved to one party is a dollar the other party loses. Interestingly, there is research that suggests that women who are in a position to be the alimony payer (i.e., who are the higher earner) fight far harder to keep their obligation in check than their male counterparts.

The Ambiguity Problem
The entire process of determining the amount and duration of an alimony order is rife with ambiguity and a lack of precision. What does “nuanced treatment of the parties’ individualized circumstances” mean?

It basically means that a judge is required to look at all the factors presented by the lawyers on each side of the case and make a judgment call. Leaving this judgment call in the hands of the judge scares most people and leaves them hoping the judge will get it right (that is, see things their way). We should all educate our clients from operating on this assumption, because what they think is right may not resonate with their spouse or the judge. This ambiguity and the long-term nature of alimony payments can make it the most difficult piece of a divorce to settle.

Practice Tips
Following are some strategies you may consider employing as you help clients through this difficult process:

1. The Installment Sale: We find it helpful when working with clients to think of alimony as payment for the non-working spouse’s interest in a “partnership” that was developed during marriage. They are being bought out of the “business” they helped create via an earn-out style installment sale. Note that this concept is not meant to imply a real business partnership or going concern. Instead, we suggest that you help your client conceptualize the marriage as if it were a business partnership or going concern.

2. Considering Options: We find it helpful when working with clients to remind them that, if they both choose, their settlement can be different than what a judge would order. We then help to develop creative options for their consideration. The strategic thinking required in the creation of these options helps to draw a client out of the minutiae of the statutory guidelines and remove the ambiguity. In fact, there is abundant empirical evidence showing that when people create their own outcomes and are the authors of their own decisions, conflict decreases and feelings of efficacy, empowerment, and well-being increase.

Remember, clients can choose to settle their case however they wish. The dictates of the law only come into play when matters are put directly before the court. When negotiating divorce settlements, including alimony, consider the law as a potential guide but not a book of “musts” or “rules.”

3. Taking Control: Many clients have feelings of helplessness when leaving their future in the hands of a judge. Engaging clients in settlement discussions and helping them conceptualize long-term outcomes remove feelings of helplessness. We often couch it as taking control of your financial future. Part of taking control is taking the decision-making power out of judges’ hands. Alternative dispute resolution models such as collaborative divorce and mediation are great options for divorce proceedings. These processes have self-determination at their core. Clients can also take control of a litigated process by engaging in settlement conferences.

Over the coming months, we will take a more detailed look at some real life decision-making processes that unravel during a divorce, including cash-flow management, small business management, financial infidelity, retirement planning, and legacy planning through the eyes of clients navigating the most chaotic time in their lives.

Source: http://www.morningstar.com/advisor/t/79511090/alimony-once-more-with-feeling.htm?goback=%2Egde_96041_member_266611018#%21

July 11, 2013

Divorce and the Grieving Process

Posted: 07/08/2013 7:39 pm

While there may be disagreement regarding whether or not divorce in and of itself is damaging to children, the more the adults argue, especially about the children, the more likely it is that the children will be unnecessarily harmed by the divorce. The accumulated research in the field of divorce indicates that what takes place during and after a divorce can damage children. The adversarial process has a much greater potential of causing parental conflict or otherwise exacerbating it both during and after the divorce process. To the extent that parental conflict, especially about the children, harms children, the adversarial process can be seen as presenting a greater risk to children than other methods of becoming divorced. In essence, by using an adversarial approach, we increase the likelihood and level of conflict. Meanwhile, constructive and cooperative co-parenting is far less likely with ongoing conflict.

As with death, divorce brings in its wake stress, grief, fear and loss. In fact, the psychological community views divorce as a stress or grief process. They recognize that a cycle of conflict is predictable, when someone fails to grieve the losses associated with divorce. They also know that it is much more likely that the conflict will persist unless and until the grief has been resolved. As a result, such individuals are more likely to litigate intensely and repeatedly. Unfortunately, by emphasizing the legal battle, the divorce process tends to interfere with the grieving process.

In her book titled The Good Karma Divorce, Judge Michele Lowrance states “Moving forward with your life is critical to the process of healing. A court battle requires freezing at the stage of blame and fault. The debate escalates in court, focusing on who did what to whom. Character maligning becomes the focus rather than problem solving. This has an effect on you (and your relationship with your former spouse) that will last well beyond the end of the trial. Many people have told me years later that they wished they had never gone to trial because of how much it hurt them and their family.”

It occurs to me that many lawyers believe that the conflict will be resolved once the parties reach an agreement or the Court otherwise makes its orders. This is a distinction between dispute resolution and conflict resolution and it is more than semantics.

In Germany, after the role of attorneys in family law changed from escalating conflict to deescalating it, the results improved significantly. As the level of conflict decreases, so does the level of anger and distrust between parties. The manner in which parents communicate with each other about the children both during and after the divorce improves as the level of hostility diminishes. There also appears to be a relationship between the conflict level and incidents of serious domestic violence, as well as parental alienation. Not surprisingly, the percentage of cases resolved outside of court increases as discord wanes. Since issues pertaining to children and support tend to be the most litigated and re-litigated matters, as the level of conflict dwindles, so does the need for court involvement in family law related cases.

All of this suggests that lawyers involved in the field of family law should have a better understanding of grief and loss. It also suggests that lawyers should recognize that spouses in high conflict divorces tend to distort reality in order to avoid grieving. Therefore, families benefit if matrimonial attorneys understand the sources of ongoing conflict between divorcing and divorced spouses. This would help to positively impact parenting during and after the divorce process, which in turn would benefit the children of divorce.

Attorneys need not be trained in psychology in order to reduce conflict. Rather, they merely need to understand the psychological stages their clients are experiencing. The five stages of grief are as follows: (1) denial; (2) anger and resentment; (3) bargaining; (4) depression; and (5) acceptance.

As my esteemed colleague, Pauline Tesler told me, “the most significant variable affecting whether a divorce will be managed well or whether it will slide into high conflict litigation is who the parties select as their lawyers. Lawyers who understand the nature of human conflict and who aim to help people resolve it, right from the start, handle their cases entirely differently from lawyers who may have reasonably positive views of mediation, but who treat it as just another way of getting to a legal-template deal and who see their job as preparing for maximum measurable gain at trial.” This is entirely consistent with the psychological research which shows the benefits of early intervention to reduce levels of parental conflict and potential litigation to divorcing families. Conflict is reduced by appropriately addressing the grief and loss from the very beginning. Doesn’t it therefore make sense that lawyers involved in the field of family law should have a better understanding of grief and loss?

Source : http://www.huffingtonpost.com/mark-baer/divorce-and-the-grieving-_b_3554969.html?goback=%2Egde_96041_member_256392481

June 25, 2013

How Reading Makes Us More Human

A debate has erupted over whether reading fiction makes human beings more moral. But what if its real value consists in something even more fundamental?

KAREN SWALLOW PRIORJUN 21 2013, 8:50 AM ET

Mary Cassatt, The Reading Lesson, 1901

A battle over books has erupted recently on the pages of The New York Timesand Time. The opening salvo was Gregory Currie’s essay, “Does Great Literature Make Us Better?” which asserts that the widely held belief that reading makes us more moral has little support. In response, Annie Murphy Paul weighed in with “Reading Literature Makes Us Smarter and Nicer.” Her argument is that “deep reading,” the kind of reading great literature requires, is a distinctive cognitive activity that contributes to our ability to empathize with others; it therefore can, in fact, makes us “smarter and nicer,” among other things. Yet these essays aren’t so much coming to different conclusions as considering different questions.

To advance her thesis, Paul cites studies by Raymond Mar, a psychologist at York University in Canada, and Keith Oatley, a professor emeritus of cognitive psychology at the University of Toronto. Taken together, their findings suggest that those “who often read fiction appear to be better able to understand other people, empathize with them and view the world from their perspective.” It’s the kind of thing writer Joyce Carol Oates is talking about when she says, “Reading is the sole means by which we slip, involuntarily, often helplessly, into another’s skin, another’s voice, another’s soul.”

Oatley and Mar’s conclusions are supported, Paul argues, by recent studies in neuroscience, psychology, and cognitive science. This research shows that “deep reading — slow, immersive, rich in sensory detail and emotional and moral complexity — is a distinctive experience,” a kind of reading that differs in kind and quality from “the mere decoding of words” that constitutes a good deal of what passes for reading today, particularly for too many of our students in too many of our schools (as I have previously written about here).

Paul concludes her essay with a reference to the literary critic Frank Kermode, who famously distinguishes between “carnal reading” — characterized by the hurried, utilitarian information processing that constitutes the bulk of our daily reading diet — and “spiritual reading,” reading done with focused attention for pleasure, reflection, analysis, and growth. It is in this distinction that we find the real difference between the warring factions in what might be a chicken-or-egg scenario: Does great literature make people better, or are good people drawn to reading great literature?

Currie is asking whether reading great literature makes readers more moral — a topic taken up by Aristotle in Poetics (which makes an ethical apology for literature). Currie cites as counter-evidence the well-read, highly cultured Nazis. The problem with this (aside from falling into the trap of Godwin’s Law) is that the Nazis were, in fact, acting in strict conformity to the dictates of a moral code, albeit the perverse code of the Third Reich. But Paul examines the connection of great literature not to our moral selves, but to ourspiritual selves.

What good literature can do and does do — far greater than any importation of morality — is touch the human soul.

Reading is one of the few distinctively human activities that set us apart from the rest of the animal kingdom. As many scholars have noted, and Paul too mentions in her piece, reading, unlike spoken language, does not come naturally to human beings. It must be taught. Because it goes beyond mere biology, there is something profoundly spiritual — however one understands that word — about the human ability, and impulse, to read. In fact, even the various senses in which we use the word captures this: to “read” means not only to decipher a given and learned set of symbols in a mechanistic way, but it also suggests that very human act of finding meaning, of “interpreting” in the sense of “reading” a person or situation. To read in this sense might be considered one of the most spiritual of all human activities.

It is “spiritual reading” — not merely decoding — that unleashes the power that good literature has to reach into our souls and, in so doing, draw and connect us to others. This is why the way we read can be even more important than whatwe read. In fact, reading good literature won’t make a reader a better person any more than sitting in a church, synagogue or mosque will. But reading good bookswell just might.

It did for me. As I relayed in my literary and spiritual memoir, the books I have read over a lifetime have shaped my worldview, my beliefs, and my life as much as anything else. From Great Expectations I learned the power the stories we tell ourselves have to do either harm and good, to ourselves and to others; fromDeath of a Salesman I learned the dangers of a corrupt version of the American Dream; from Madame Bovary, I learned to embrace the real world rather than escaping into flights of fancy; from Gulliver’s Travels I learned the profound limitations of my own finite perspective; and from Jane Eyre I learned how to be myself. These weren’t mere intellectual or moral lessons, although they certainly may have begun as such. Rather, the stories from these books and so many others became part of my life story and then, gradually, part of my very soul.

As Eugene H. Peterson explains in Eat this Book, “Reading is an immense gift, but only if the words are assimilated, taken into the soul — eaten, chewed, gnawed, received in unhurried delight.” Peterson describes this ancient art oflectio divina, or spiritual reading, as “reading that enters our souls as food enters our stomachs, spreads through our blood, and becomes … love and wisdom.” More than the books themselves, it is the skills and the desire to read in this way which comprise the essential gift we must give our students and ourselves. But this won’t happen by way of nature or by accident.

Maryanne Wolf, director of the Center for Reading and Language Research and author of Proust and the Squid: The Story and Science of the Reading Brain, has studied “deep reading” in the context of the science of the brain. She describes the fragility of the brain’s ability to read with the kind of sustained attention that allows literature to wield its shaping power over us:

The act of going beyond the text to analyze, infer and think new thoughts is the product of years of formation. It takes time, both in milliseconds and years, and effort to learn to read with deep, expanding comprehension and to execute all these processes as an adult expert reader. … Because we literally and physiologically can read in multiple ways, how we read–and what we absorb from our reading — will be influenced by both the content of our reading and the medium we use.

The power of “spiritual reading” is its ability to transcend the immediacy of the material, the moment, or even the moral choice at hand. This isn’t the sort of phenomenon that lends itself to the quantifiable data Currie seeks, although Paul demonstrates is possible, to measure. Even so, such reading doesn’t make us better so much as it makes us human.

Source: http://www.theatlantic.com/national/archive/2013/06/how-reading-makes-us-more-human/277079/

June 4, 2013

Police dashcam videos are open records

Police dashcam videos are open records, Oklahoma appellate court rules

The ruling won’t affect video taken by the Oklahoma Highway Patrol. Special legislation was passed several years ago that specifically exempts troopers from turning over dashcam videos.

By Michael McNutt Published: June 1, 2013

Videotapes of arrests made by police officers and sheriff deputies no longer should be considered secret, an Oklahoma appellate court ruled Friday.

“It’s a good day for the citizens and a good day for the press that helps keep the citizens informed,” said Josh D. Lee, a Vinita attorney who filed a lawsuit in Rogers County three years ago seeking videotapes taken from a dashcam mounted in a city of Claremore police cruiser. “It is the most accurate reflection of what actually occurred. Unfortunately, too often, I will read police reports and then I’ll go watch videotapes and what the police reports say happen didn’t happen the way they say it did.

“The only thing that is the saving grace for the citizen accused is to have an actual recording,” he said.

“This is a victory of the public’s right to know and for common sense,” said Joey Senat, a media law professor at Oklahoma State University.

“All of these dashcam videos do is tell the truth and the facts about the arrest,” said Mark Thomas, executive vice president of the Oklahoma Press Association. “No law enforcement agency should be afraid of that.”

Dashcam policies vary

The ruling by the Oklahoma Court of Civil appeals does not affect video taken by Oklahoma Highway Patrol troopers. An Oklahoma County District Court judge also ruled in 2005 that patrol video of arrests should be open to the public, but the state Public Safety Department since then succeeded to get legislation passed that specifically exempted troopers from turning over videotapes.

Phil Cotten, executive director of the Oklahoma Association of Chiefs of Police, said his group’s board of directors will likely discuss the opinion during their annual conference later this month.

“If there’s nothing to hide, there’s nothing to hide,” said Cotten, who retired as Norman’s police chief two years ago. “Most of the recordings that I had reviewed over the years supported the officer the vast majority of the time.”

Police department policies on the release of dashcam videos vary, Thomas said. Some, such as Oklahoma City, don’t have cameras mounted on police cruisers.

Mark Myers, spokesman for the Oklahoma County sheriff’s office, said several of the department’s cruisers are equipped with dashcams.

“Barring something that was considered investigative in nature, we’ve generally always released our dashcam videos and pursuits or whatever had been requested of us,” Myers said.

Lee, a former Vinita police officer, said the city of Claremore at one time turned over video copies of arrests. But in recent years, the police department developed a policy that the videos were not subject to Oklahoma’s Open Records Act and those wanting a video would have to make the request with the Rogers County district attorney’s office.

The district attorney’s office released copies of the video, he said.

“But the problem is they can only give me what they’re aware of,” Lee said. “They can only give me what they’ve been given. Say, there’s two or three different police cars on scene …. Claremore will choose which videotape to give to the DA to give to me but there might be other videotapes available.”

‘Video is a record’

Lee filed a lawsuit in Rogers County District Court, saying the video falls under the Open Records Act; the judge upheld the city’s policy, ruling that dashboard camera video is a direct piece of evidence and does not fall under the Open Records Act.

Lee appealed, and the Court of Civil Appeals ruled 2-1 that video of someone’s arrest “constitutes a public record subject to inspection under the Open Records Act.”

“The dash cam video at issue here is a recording created by and under the authority of public officials in connection with the transaction of public business,” wrote Judge Robert Bell in the majority opinion. “Thus, the arrest video is a ‘record’ as defined by the Act.”

Lee said he is concerned city police departments will approach lawmakers about giving them the same exemption that troopers have.

“There will be some sort of an amendment that they’ll try to run up the pole to legislate this opinion to be ineffective and it to be pointless,” he said. “I hope that it doesn’t pass.”

Source: http://newsok.com/police-dashcam-videos-are-open-records-oklahoma-appellate-court-rules/article/3840638

April 30, 2013

Despite DNA, Dad’s Paternity Denied

By Michael Lindenberger Tuesday, Apr. 29, 2008

For nearly two years, James Rhoades, a university librarian in Tallahassee, has been fighting to establish in law what science and fact already have shown beyond any doubt: He is the biological father of the boy dubbed J.A.R. He’s got DNA tests to prove it, and videos and loads of pictures of him with the boy. In the photos too are the boy’s mother, J.N.R., whom Rhoades met while taking an online graduate course. She was — and still is — married to another man, who was stationed at a Pensacola-area Air Force base during their affair in 2005. And that’s the problem.

Last week, in a decision that underscores the tense relationship between science and law, a divided Kentucky Supreme Court told Rhoades that he could not press his paternity claim, no matter what evidence of fatherhood he might have, because J.N.R. was, and remains, a married woman. When it comes to defining fatherhood in the Bluegrass State, where Ricketts and her husband now live, the marital “I do” mean a lot more than DNA.

The 4-3 decision splintered the court, which issued five separate opinions. The majority was itself divided evenly among two camps, one that said Rhoades might have prevailed had he been able to show the J.N.R.’s “marital relationship had ceased at least 10 months” prior to the boy’s birth, and another that said no “stranger to the marriage” can ever attack the legitimacy of a child’s birth. “As long as marriage is on the books, it must mean something,” wrote Justice Bill Cunningham in one of two concurring opinions. “… We are in need of a bold declaration that the marriage circle, even one with an errant partner, will be invaded at one’s own legal risk.” He added: “While the legal status of marriage in this early 21st century appears to be on life support, it is not dead.”

The decision has left Rhoades devastated. “What I wanted was not just to see my son but to participate in his life,” Rhoades told TIME. “He is my son and I love him.” Kentucky’s ruling is firmly grounded in the history of the law, however. In fact, the so-called marital presumption has barred attacks on the legitimacy of children for centuries. Courts have forever held that allegations of fatherhood by third parties can only disrupt the family, confuse or embarrass the child, and unsettle the social order.

But unlike the past, such allegations these days are often backed by science, introducing certainty where none before existed. As of a result, the prohibition on third-party challenges to paternity has begun to weaken. By 2000, at least 33 states had adopted rules that allowed challenges by fathers with genetic proof of their paternity, usually restricting such efforts to the first two years of a child’s life. The advent of DNA testing has tread a similarly disruptive course in other areas of law, including criminal cases where exonerations once thought impossible are becoming routine. A few states have even begun allowing ex-husbands to present DNA evidence that they were duped by cheating spouses to avoid child support obligations.

For Rhoades, the changes are coming too slow, however. Unable to present proof of his paternity, he won’t be able to seek custody or visitation rights. As a result, he’ll be a stranger to his son until such a time as the boy’s legal parents decide to tell him, if ever. “My son is going to find out the truth eventually,” he said. “Is he going to find out when he is 13, 14 that everybody in his life has lied to him?”

Justice Lisabeth Hughes Abramson raised just that point in a fiercely worded dissent attacking the majority’s notion that the boy will be better off not knowing the truth about his parentage. “Our world is full of inconvenient truths. We accomplish nothing for families, the broader community and our justice system when we deny those truths.” she wrote.

Rhoades said he plans to appeal to the U.S. Supreme Court on constitutional grounds. But he faces long odds there, given that the high court has already ruled once, in 1989, on the same issue, upholding California’s explicit bar against paternity challenges like his. That decision too was divided and contentious. The biological father in that case did not get to see his daughter till she had turned 21. “Well, obviously I am not going to give up and say, ‘Oh well I lost,'” Rhoades says. “I believe I have a fundamental right to be in my son’s life.” The trouble is: nature’s law isn’t the law of the land.

April 17, 2013

Therapy Can Be an Important Part of the Divorce Process

One of the things that I have noticed over the course of my career as a family law attorney is that people going through the divorce process have an unwillingness to go to therapy even though they could benefit greatly from the process. “I don’t need help, I’m dealing with it” or “I need a divorce, not therapy” are refrains I have become used to hearing.

What seems counter intuitive to me, though, is that seeking counseling after the death of a loved one has no stigma attached, while many individuals going through divorce believe getting therapy after the death of a marriage does. The goals of the two are the same: To help people get on with their lives, and when children are involved, helping their children deal with these significant changes in their lives as well.

One shouldn’t have to feel embarrassed about getting help.

If you are having a difficult time coping with a divorce or with the changes in your life that are the result of a divorce, guess what. That’s normal. A divorce is a traumatic event in a person’s life and it takes time and often outside help to heal. The good news is that you’re not alone. It is natural in your position to need someone who will listen to you and help you adjust to your new life and the death of your old life. Seeking help in your time of emotional need from a professional is not only nothing to be ashamed about, but in a lot of cases, the most prudent step you can take. Even if your soon to be ex-spouse tries to make it an issue in a custody dispute, chances are that the court won’t see it as an issue, because the Judge gets that you are seeking help to better adjust, and that is something to be commended not condemned.

If children are involved, they need someone to talk to.

Children are not always “resilient” as is commonly claimed. They may try to act brave, but imagine how difficult and confusing it is for a child to be caught in a tug of war between two parents, going from one house to another, or not getting to wake up in the same bed every morning. Many parents think their children don’t need therapy because the child can talk to them, but seriously, if your parents were going through a divorce, would you want to talk to mom about dad and vice versa? Would you feel comfortable telling your parent you aren’t happy with him or her? Children of divorce have their own set of issues and you should be open to your child seeing a mental health professional.

Your actions affect your children.

Consider the harmful effect on the children when parents don’t communicate well. For example, something I’ve seen over and over again is the “I don’t even mention him/her” syndrome.

“My child is secretive about what happens when she is with my ex and whenever we discuss her feelings she tells me one thing and tells my ex something else. She can’t know how much I hate him because I never bad mouth him. In fact, I don’t mention him at all.”

If you think not mentioning your ex is helping your child, you are wrong. This type of behavior teaches children that they can’t mention their other parent when they are with you because it is a taboo subject. They get that you don’t like your ex and your child is worried that if she takes your ex’s side not only will your feelings be hurt but that you will get angry as well. Not mentioning the other parent is the same as bad mouthing him or her.

Another trap that is easy to fall into is “I don’t interfere” disease.

“I’m not going to interfere. I’m not going to tell my children they have to abide by our parenting plan and go with their other parent because I’m not going to take sides.”

If you think this is not taking sides, you are mistaken. By not telling the children they have to go, you are telling them they don’t have to go. In most states, the parent with residential/physical custody is obligated to have children abide by the parenting plan and if they don’t obligate the children, the residential parent is in violation of the parenting time agreement.

You may not even realize that you’re placing your children smack in the middle of your divorce issues, but a therapist can help show you how to better handle these discussions with your children so that you do not transfer negative messages to them, however inadvertently.

Going to therapy will make your life easier.

So many of my clients have come into my office angry, and everything they do in the divorce process is motivated by that anger. There are others who are depressed and so crippled by it that they want other people to make their decisions for them. In both situations neither is happy with the final decisions/agreements. Some divorcing individuals have difficulty moving forward, and again the inability to move forward affects their ability to go through their divorce process. Most clients vent to their divorce attorney but really? Why are you paying your lawyer $250, $300, $400, $500 an hour to vent your anger when you could be paying the therapist for a hell of a lot less?

Whether it’s a mediation session or a settlement conference or your attorney is trying to have a meeting with you and you have all this anger, how can you reach a proper settlement? Or if you’re so depressed, how can you reach a settlement? If you are stuck in the mud because you can’t move forward, how can you make the best decisions for your future?

In my perfect world, both parties would seek therapy to guide them through the difficulties of divorce and help them learn how to deal with each other as divorced parents. lf divorcing clients could be more civil to each other and were able to think clearly while negotiating the issues, they would save so much time and money. In the Collaborative law process we have mental health professionals who are trained as coaches to help the parties deal with each other in a more civil manner. Even parties who are not divorcing through the collaborative process still can benefit from the training and experience of these individuals.

Almost all of the members of a divorcing family can benefit from therapy and depending upon the circumstances, insurance may cover some or all of it. From what I have seen in my practice, just having a professional there to listen to and talk you through what you’re feeling provides benefit. Don’t let your fear of being labeled prevent you from seeking the therapy you need.

Source: http://www.mediateyournjdivorce.com/therapy-can-be-an-important-part-of-the-divorce-process/?goback=%2Egde_96041_member_230989222

April 17, 2013July 15, 2016

Parents With Disabilities Have Greater Risk of Losing Custody of Their Children

A report from the National Council on Disability finds that parents with physical or mental disabilities have a greater risk of losing custody of their children. The study says that the U.S. legal system needs to provide more support for these parents. National Public Radio recently discussed the study in detail.

Click here to listen to the National Public Radio broadcast from “Talk of the Nation.” If you prefer to read it, the transcript appears below.

NEAL CONAN, HOST:

This is TALK OF THE NATION. I’m Neal Conan in Washington. Raising a family can be difficult at times, but parents with disabilities face additional challenges. A new study from the National Council on Disability finds they face discrimination at any number of levels. They are much more likely to losecustody of their children. They are more often denied adoption, and women with disabilities may be denied fertility treatments.

Authors of the report argue that parents with disabilities don’t get the legal protection or support they need, but there are cases where removing a child from a parent’s custody may be the only option.

If you have personal insight as a child, as a social worker or as a parent with a disability, call and tell us your story, our phone number 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That’s at npr.org. Click on TALK OF THE NATION.

Later in the program, Robert Lipsyte on the legacy of baseball union chief Marvin Miller. But we begin with Ella Callow, a lawyer who works with parents with disabilities and their families. She joins us now from a studio in Berkeley, California. Good to have you with us today.

ELLA CALLOW: Hi Neal, thank you for having me.

CONAN: And reports like this one, instructive but necessarily about broad strokes. Can you tell us about one family and what happened that kind of encapsulates these findings?

CALLOW: Yeah absolutely. This report is really – you know, I say it’s more like a compendium. It has so many examples and so many families. But I think that one family that I’ve worked with for a number of years sort of from the beginning of the process through hopefully soon completion really encapsulates the issue for me.

These are two parents who both have intellectual disabilities and are in a Midwestern area where there are not a great deal of resources available to them as people with disabilities. However, their child was removed from them at birth, basically, or just soon thereafter.

There was no abuse, there was no neglect, there was simply speculation that based on their disability and, you know, based on their IQ that they would be unfit to parent at some point, that their disability in and of itself posed a danger to their infant child.

I those are the most troubling types of cases because the people making the decisions often are not terrible well-versed in parenting with a disability. They don’t know, for example, that we have 20 years of research that shows that IQ is not predictive of parenting capacity in and of itself, and yet IQ testing is heavily relied on quite frequently to justify removals.

This family went to great efforts with support people to reach out and find resources. They contacted us, and we were able to ourselves – you cold-call universities in the state and find a psychologist who had familiarity with this population. She came, did a full assessment, came up with an excellent plan to safely reunify the child with her family over time.

And the plan was refused. The state refused to pick it up. They really didn’t want to deal with it, didn’t want to engage it. They just saw the alternative of this child remaining with her foster parent or being adopted as superior as an option to returning to her family.

They moved forward to have the parents’ rights terminated. Fortunately in this particular state, and very unusually child welfare cases are heard by juries. And so the jury found that the state had not met its obligation and had to try to work the plan or try to work with the family towards reunification, and they’re still in that process at this point.

We, you know, were unable to trigger findings by either Health and Human Services or involvement by the Department of Justice in the case. The Department of Justice doesn’t have the clearest jurisdiction over these types of issues, that’s Health and Human Services. But we were never able to get anyone to really find that this was discrimination.

And that’s sort of the problem, that after 25 years of working on this issue, very clear legal constitutional strategies to question the laws that make removal so easy has not emerged.

CONAN: This goes state by state, and you were talking about parents with cognitive disabilities. How old is the child now?

CALLOW: She’s four years old, and they’ve been in contact with her, and she is in their area, and they’re lucky because in many of these cases, the children, they really have no contact, or they’re moved quite a distance out of either necessity, there’s no one locally, or because the child – and many children in the child welfare system have disabilities themselves.

The child needs some sort of special care, and so they’re removed to a further location.

CONAN: Joining us now is Robyn Powell, who is an attorney advisor at the National Council on Disability and co-author of the study “Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and their Children,” joins us from Cambridge, Massachusetts. Good of you to be with us today.

ROBYN POWELL: Thank you for having me.

CONAN: And we’re talking not just about people with cognitive disabilities but people with physical disabilities, too.

POWELL: Absolutely. This covers people with varying disabilities: people who are blind, people who are deaf, people who have psychiatric disabilities, people who have mobility disabilities. It’s an issue across disability.

CONAN: And as I’m sure you know better than I do, some of those people would say wait a minute, we don’t have disabilities.

POWELL: Oh absolutely, and so the estimates that currently 4.1 million disabled parents exist in the United States is certainly an underestimate, by and far.

CONAN: And you’ll forgive me, but why isn’t this covered under the Americans With Disabilities Act?

POWELL: Well, that’s an interesting question, and in the report, we argue that it is. Here we are 22 years after the passage of the ADA, and we have state laws that state that disability can be ground for termination of parental rights. I believe, the National Council on Disability believes, that this is in clear violation of the ADA.

CONAN: And I guess that remains to be – you remain to find a judge that will agree with you.

POWELL: Absolutely, and unfortunately it’s probably going to have to go to the Supreme Court to have that decided.

CONAN: In the meantime, we have stories like these, and the story that Ella Callow was telling us, that can be replicated for people who are blind, for people who are deaf.

POWELL: Yes absolutely. In Missouri back in 2010, we had a blind couple who lost custody of their child two days after she was born simply because a nurse oversaw that the mother was having trouble breastfeeding, which many new mothers do, and she reported it to Social Services that she thought that these parents were going to be unfit because they were blind.

The couple then had to endure a long fight. It was 57 days of not having their newborn with them. So this happens often, and it happens, again, across all disabilities.

CONAN: Let’s get some callers in on the conversation. We want to hear from those of you with insight into this, as parents with disabilities, as children of those parents or social workers yourselves, 800-989-8255. Email us, talk@npr.org. And Scott’s(ph) on the line with us from Pleasant Hill in California.

SCOTT: Yeah Neal, thank you for taking the call. I can’t believe how timely this is. My name is Scott, and I graduated Yale in ’91, and I have no cognitive problems, but I’ve had Hodgkin’s lymphoma four times. I was a Wall Street whistleblower, and currently I’m in – I spent about $40,000 that I don’t have, I’m permanently disabled, from bone marrow transplant, toxic treatments, et cetera.

But I’m OK now, and my twin daughters that we had through fertility treatments are about to be ruled through a public mediator that spent – went way over the allocated two-hour time limit. She spent four hours with us, but the entire – and I really try to be accurate with my statements – the – almost the entire four hours was spent where the mother of our girls and the court mediator, who is I think a social worker, a licensed clinical social worker, were on the offensive, asking me as sweat was pouring down my face because – and I was wearing a jacket and tie, and I tried so hard – that what was my team to support me.

And then, you know, as far as if I couldn’t walk that day, and I can get through taking care of my girls on a day or two, and I’ll rest on the third when they go back to their mom, that wasn’t even an issue. The mom painted a picture that wasn’t accurate.

And then finally, and I’ll try to be brief here, when the report came out, the judge even said that after reading the mediator’s report, which they accept because of the caseloads, they accept about nine out of 10, and the lawyer in Berkeley can correct me, but about 90 percent are accepted by the judges almost verbatim because they have to look at other factors in the divorce, separation case.

The judge ruled that this – it looked like a reunification plan, as if I were a felon getting out of jail after five years. And I just, I was shaking in the courtroom. I couldn’t believe what I was hearing. So but anyway, I’m still about to lose custody, and I’ll need supervised visits, and I’m a perfectly capable father and want to be.

CONAN: Ella Callow, there are divorce cases, it would seem, and child custody cases stemming from them, I guess just on the basis of the statistics, there’s a lot of people in Scott’s situation.

CALLOW: Wow yeah, Scott brought up so many issues, and first of all, I’m so sorry for him that he’s dealing with this. It’s so difficult to be going through a custody battle in and of itself and then facing sort of discriminatory treatment at the same time is – just makes it unbearable for many people.

A couple of things he mentioned, you know, I would like to speak to. One yes, this is very common. And what people don’t realize is that while termination of parental rights, the jurisprudence involves the 14th Amendment, and so there’s a bit of a higher standard for the state to remove a child, that they have to show theoretically that a parent is unfit.

In family law cases, the standard is much lower. It’s the best interest of the child standard, and you’re not having the state intervene and take a child, it’s between two equally situated parents. So these parents sometimes face an even greater uphill battle, and they have no right to counsel, whereas in most termination of parental rights, child welfare cases, they do have counsel, even if they’re overwhelmed counsel.

The second thing is that he’s correct. Mediators are – the decisions of mediators on custody are followed in the state of California, where he’s located, upwards of 90 percent of the time. So if you lose in mediation, you’re going to have a very difficult time moving the case in the other direction. And social workers, and I have a social welfare degree from UC Berkeley, and there are wonderful social workers out there, but I’ll tell you that in my training and my experience, they don’t get much education on this topic despite the high number of parents they will encounter, especially if they’re working in child welfare.

But in either family or child welfare courts, they will be dealing with parental disability, and they’re not provided the education around what are best practices of these parents, what are assumptions and attitudinal biases you need to be aware of when working with them, when do you need to reach out for consultation or put into your reports that you don’t have expertise in this area. So it is problematic.

CONAN: And he also mentioned that his wife, or ex-wife I guess, was misrepresenting the facts, and obviously we don’t know the facts in this particular case, but that’s hardly unusual in some – in divorce cases.

CALLOW: Yeah, it’s – you know, I think we all understand as a society that it’s a time no one plans to be in, and emotions run very high, and everything tends to look more awful, and so paint worse pictures of one another, and disability can be mud they throw at the wall, seeing if it sticks.

CONAN: Scott, thank you very much for the call, and we’re sorry for your situation. We hope things work out.

SCOTT: How can I get a transcript? Thank you, Neal.

CONAN: Go to npr.org after the show is off the air, and we can help you out with that. Scott joined us from Pleasantville – Pleasant Hill, California. Stay with us. We’re talking about the rights of parents with disabilities. It’s the TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

CONAN: This is TALK OF THE NATION from NPR News. I’m Neal Conan. A new study from the National Council on Disability estimates that more than six million children in the U.S. have parents with disabilities, and those with psychiatric or intellectual disabilities lose custody of their children at an incredible rate, as much as 80 percent of the time.

Clearly there are some cases where removing a child is necessary for the child’s health and safety, but the report’s authors believe that’s not the story here, that discrimination is at the root of these numbers. The Americans With Disabilities Act is supposed to protect those parents, but the report finds it’s not working out that way.

If this is your story, if you’ve been part of it as a child, a social worker or a parent, we’d like to hear from you, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That’s at npr.org. Click on TALK OF THE NATION.

Robyn Powell, co-author of the National Council on Disability study, and Ella Callow of the National Center for Parents with Disabilities and Their Families, are our guests. And let’s see if we can get another call in. This is Leila(ph), Leila with us from Spring Harbor in Michigan.

LEILA: Hi.

CONAN: Hi.

LEILA: Hi, Neal.

CONAN: Go ahead, please.

LEILA: Well, I’m a licensed clinical social worker, and I actually practice in Indiana, and I’m really proud of our state. I don’t feel at all like we discriminate individuals with disabilities. I’ve worked with, you know, parents on both ends of the spectrum where I felt like I was placed in a home where it wasn’t safe, and we made every attempt to unify the parent with the children.

And then on the other end I’ve had a quadriplegic, you know, family that wants to have children, and we’ve helped to facilitate adoption to make that possible for that family. One family in particular where it was unfortunate, you know, we had two parents with intellectual disabilities, and the mom kept having multiple miscarriages, she didn’t know she was pregnant.

When I actually came into the home to work with the family and provide wraparound services, I mean she had a five-year-old, a three-year-old, a one-year-old, and then she had twins. She didn’t know she was pregnant, ended up actually losing one of the twins and the other baby was a high medical needs situation.

So I feel like – I don’t know what states this study included, but I feel in Indiana we really try to make every effort to provide services to families with special needs.

CONAN: And that decisions are made on a case-by-case basis and not reflexively saying if you’ve got disabilities, you’re disqualified.

LEILA: Absolutely, and we have great judges in our community that really work hard to make it possible to give supports to these types of families. But again, you know, in all reality it’s been my experience when you have families with some medical issues or high special needs, oftentimes the children have high special needs that require, you know, extra services that maybe some parents aren’t able to provide.

And if they don’t have family support, there has to be an alternative plan.

CONAN: Robyn Powell, did you look at Indiana?

POWELL: We looked across the country, and in our report we do show that over two-thirds of the states in the United States, their child welfare laws allow courts to reach the determination that a parent is unfit on the basis of the parent’s disability. I’m not sure at the moment whether Indiana is one of those states.

CALLOW: Indiana is not.

POWELL: Indiana is not. Okay.

CALLOW: No, so that is a difference.

POWELL: Right, absolutely, as Ella said, it’s absolutely the difference there.

CONAN: Well, Leila, thanks very much for the call.

LEILA: …to Indiana and see what we’re doing different.

CONAN: Thank you very much.

CALLOW: You know, and I also want to add that, you know, she touched on something really important, which is that families where the parents have greater needs themselves, sometimes the children do as well. The problem is that because the discrimination has been so incredibly pervasive over so many decades, and these parents face so much discrimination in their day-to-day lives, they’re often fearful of reaching out for any help because they understand that it renders them overexposed.

And once they become involved with that system, they don’t trust that their disability will not be used as something that grounds a removal as opposed to something that secures services for them. And that’s very frightening to us.

CONAN: Joining us now is Linda Spears, vice president of policy and public affairs at the Child Welfare League of America, joining us from her home in Upper Marlboro, Maryland. Thanks very much for being with us.

LINDA SPEARS: Good afternoon, thank you, Neal.

CONAN: And I knew these stories speak powerfully to you. I’m sure you have experience where these are awful decisions, sometimes difficult to make.

SPEARS: They are difficult decisions to make, and I think that there are a variety of factors that contribute and that say that I think everyone is right in this scenario, that there are lots of good workers out there trying to do the right thing, and at the same time there is an awful lot of discrimination and bias.

And I would differentiate between bias at the worker level and bias at the systemic level that affects these families, and I think even when workers try hard, there’s often bias at the systemic level – a lack of resources targeted to these families, a lack of policy that supports getting families preventive services before a child welfare intervention is needed.

The nation is replete with a lack of prevention and early intervention services for all kinds of families in the child welfare system. But I think that the impact on very vulnerable adults with disabilities, children with disabilities, can be very disproportionate. So it’s a complicated question.

CONAN: You raise an interesting point, though, about resources. There are situations where either through interventions of one sort of another, early intervention, as you mentioned, but also either physical or having somebody come by the house every once in a while, where that might make it possible for people to keep their children.

SPEARS: Uh-huh. Uh-huh. I mean we’ve – you know, exactly. I look at the system – I have elderly parents. I look at the system we have in our country, which is woefully inadequate but still exists, that provides elderly folks with in-home aid, with support services, where the variety of things to enable them to maintain their independent functioning for as long as they are health-wise able to.

We don’t have such a thing for people with disabilities who are parenting. We may have some things for them as disabled individuals that function well, but as parents, in their role as parents, there’s not a lot out there that really targets this population of families, provides them with supports so that they’re not at risk of getting into trouble and so that they’re not afraid to go and access the service, as Robyn just mentioned.

Families are often fearful to go to the child welfare system for preventive or early intervention services, and that’s with good reason. The child welfare system is designed in a way that is really oriented towards punitive measures, toward deficit functioning. Many child welfare systems are trying to switch that orientation, but we have a statutory framework in this country that says failing to parent gets you support and not desiring to parent.

CONAN: That’s interesting.

SPEARS: And I think that’s a really fundamental problem in the way that we provide our services. Now, that said, we don’t want, you know, sort of a policy and government overreach in the families’ lives. But at the same time, when families struggle, when families need support and don’t have any place to go, and then you set up an intervention so that it punishes them for seeking or needing help, it seems unreasonable.

CONAN: Here’s – I just wanted to get to this email from Diane(ph) in Battle Creek in Michigan: My husband’s aunt is intellectually challenged and is married to a man also intellectually challenged. They both hold jobs and own their home. Before they got married, however, my husband’s grandmother, the mother of the aunt, had her daughter, the aunt, sterilized so she could not have any children.

The rationale was the couple would not have been able to care for the child. And Ella Callow, does that sort of thing go on?

CALLOW: Yeah, I mean we have 100 years of really bad policy around parenting with this population, sadly. You know, sterilization, which render people physically unable to have children, and institutionalization, which segregated them out of society so they didn’t have opportunity to become parents, were the way this population was dealt with.

Eugenics is based largely on concerns that they would reproduce and that it would be bad for children and bad for society. After de-institutionalization and this sort of – the disability self-determination movement, disability rights movement, they went out into the world and the mantra became not it’s bad for society but it’s bad for children, for them to have children.

And there are still states with laws on the book that allow for sterilization, though it’s very few, and it’s through judicial process at this point. But people are talked into it. And I think, you know, Robyn can speak to the issue that women with disabilities face when they’re interfacing with the medical community, the assumptions that are made about whether they should have children and what are the proper choices for them.

CONAN: And Robyn, I wanted to ask you particularly about fertility treatments.

POWELL: Absolutely, well, first back to what Ella had mentioned. I’m a woman with a physical disability, and I can’t tell you how many times I’ve been offered a hysterectomy.

So it was not even through just sterilization, through traditional systems. But every time I go to the doctors, they suggest that for me. I don’t have a medical reason to have one. I’m only 31 years old. I’d like to have children. And so there is this belief among society – and the health care profession, as well – that people with disabilities do not want to have children or cannot – want – have children, and so that carries on to the fertility treatment. Providers of assisted reproductive technologies are often discriminating against prospective parents who have disabilities based solely on their presumption that this individual should not have a child.

CONAN: Let’s see if we get another caller in. This is Rachel, Rachel with us from Hampton in South Dakota.

RACHEL: Yes. Thank you. I’m coming from being a children’s advocate in the hospital setting. I’m actually a child life specialist, which is not the same as a social worker. We work with children and families to promote ideal development, and also to try and prevent unnecessary stress and trauma and to facilitate coping for families. However, often, I came across – I don’t want to say battles, but maybe a battle of wills with sometimes social work staff, sometimes physicians, when they would realize that one of the kids – when a child was sent home, and perhaps they were being sent home with a medication regimen, or if they had a chronic illness, that when the parents were illiterate, that meant they were unable to care for their children.

CONAN: Illiterate?

RACHEL: And I thought…

POWELL: Yeah.

RACHEL: Yes. And I thought…

CONAN: There were several thousand, tens of thousands of years of human history where all parents were illiterate.

(LAUGHTER)

RACHEL: Well, that’s…

POWELL: Right.

RACHEL: …the whole thing, and I would then – you know, well, they have to give the medicine and they have to give it at the right time. And I, you know, constantly set up charts and show them how I – you know, we can make a chart, and this parent – you know, these parents would show unbelievable care for their children in the hospital. And then suddenly, it was, oh, my gosh. This mom can’t read, and this kid has sickle cell disease. Well, this kid has been coming to us for 12 years, and no one’s ever noticed that before? Because I know I’ve made charts for her for 10 years.

And so it’s been really – that, to me, was one of the things that was most difficult, is when kids come into the hospital, people haven’t recognize it or acknowledge it or had a problem with it yet. But if some child came in, let’s say, because she had a serious infection and said she had to go home on an antibiotic regimen, or maybe a parent had to be taught how to clean a child’s central line, but these parents showed all of – they were doing all of that in the hospital. And then we would get recommendations that, you know, perhaps this child should go to foster care because for whatever reason, whatever the disability be – and I’d tell you illiteracy is a big one. But that, you know, they just may not be able to do this, even though they’ve proven themselves. And so fortunately, I am a strong will and…

(LAUGHTER)

CONAN: Sounds like it.

CALLOW: Yeah.

RACHEL: …and a very strong advocate because most of the time, I was able to prove that, no, I think we’re absolutely wrong and documenting them. You have to document, document, document in the hospital what you’ve seen this parent do so that people know, because that’s the other thing. When people come in and parents are – who had disabilities and they’re noticeable, instantly, they are labeled by many people in a hospital setting.

CALLOW: Yup.

RACHEL: And right away, discharge to foster care is being considered from almost the day they come into the hospital.

CONAN: Rachel, thank you very much. That’s an alarming story…

RACHEL: Yeah.

CONAN: …but thank you.

(LAUGHTER)

RACHEL: It is, but it’s something for people to be aware and to help these parents.

CONAN: Thank you again. We’re talking…

CALLOW: You know – I’m sorry, Neal. I just wanted to interject. You know, between the first caller, Neal, who’s in our area didn’t contact us, and Rachel who’s out there fighting battles in South Dakota on her own, I do want to mention that the National Center, which I direct legal programs for, is Through the Looking Glass. Our agency, we’re a local agency in Berkeley. We serve about 400 families a year doing preventative services, assessments of parents so that we have generated evidence that parents can or cannot safely parent.

We work with children with disabilities, as well. And, you know, if people like Rachel feel like they’re isolated and they want some help, we have free legal technical assistance and, you know, can provide a lot of information to them, and people like, Neal, you know, contact us.

CONAN: Ella Callow is legal program director at the National Center for Parents with Disabilities. Also with us, Robyn Powell, attorney adviser at the National Council on Disability, and Linda Spears, vice president of policy and public affairs at the Child Welfare League of America. You’re listening to TALK OF THE NATION, from NPR News. And, Robyn Powell, let me turn back to you for a moment. Is inability to read defined as a disability?

POWELL: It can be, actually, yes. If it is really to an intellectual disability, I undoubtedly think it could be. And it’s that – what she brought up is a huge issue. When parents with disabilities bring their children either into the hospital or even to the pediatrician, they’re facing health care providers that have these biases. We spoke with parents who had their child’s pediatrician report them to child welfare for no reason. The investigation was completely unfounded, but they believe it was really to their disability.

And again, this is happening often, and this is a detriment not only to the parent, but it’s a detriment to the child. It’s very stressful to have your parents being investigated. It has huge cost to both the parent and the child.

CONAN: There is another, I guess, definition of disability. To include the deaf would be – many would find offensive. They have, obviously, their own language, their own culture. This is an entire community.

POWELL: Yes. That’s a great point, and some deaf folks do not consider themselves disabled. Nonetheless, we did talk with many deaf parents when we were writing this report, and they have similar issues. They’ve also encountered bias and discrimination within the child welfare system, where they bring up language issues. They state that the children are not learning a language because sign language is their first language at home. And so the deaf community is experiencing similar issues, absolutely.

CONAN: And we’re talking about legal recourse on the federal level, or is this going to be a battle that worked out state by state?

POWELL: Well, I think it’s going to have to involve both state level and federal level mediation. We really need to change the law federally. I mean, it’s certainly the best and most comprehensive way to approach this. But nonetheless, states need to also look at their child welfare centers, look at theirfamily law statutes and change how disability is included – remove disability as a ground for termination of parental rights. In our report, we offer model legislation, which we urge both the states and the national government to really adopt as soon as possible, urging Congress to look at this issue, similarly to how they looked at the Indian Child Welfare Act. When that was adopted, that was adopted because Native American families were encountering similar barriers.

CONAN: Robyn Powell, coauthor of the study “Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and their Children.” Thank you very much for your time.

POWELL: Thank you.

CONAN: Ella Callow, thank you for your time, as well.

CALLOW: Thank you, Neal.

CONAN: And we’d also like to thank Linda Spears of the policy and Public Affairs Center at the Child Welfare League of America. Coming up next: the legacy of Marvin Miller. This is NPR News.

Source: http://herstontennesseefamilylaw.com/2013/04/15/parents-with-disabilities-have-greater-risk-of-losing-custody-of-their-children/

April 16, 2013April 17, 2013

‘Divorce from hell’ began with $5,400 monthly alimony offer, ended with $1,500 installments

A month after their 2008 divorce case was filed in Pinellas County, Fla., Terry Power offered to pay his wife of nearly 20 years $5,400 per month in alimony until he retired, and $50,000 in cash.

He also was willing to give Murielle Marie Helene Fournier half of the contents of their opulent home; it was upside down, so they had no equity in it, the Tampa Bay Times reports.

Both in their 50s, the two were used to living an upscale lifestyle. But Power’s $250,000-a-year business wasn’t doing well, and while he and Fournier spent nearly five years litigating what the newspaper describes as a “divorce from hell,” some $400,000 went to attorney and expert fees.

Initially cooperative, Power became more angry and resistant the longer the process continued. After enduring the litigation tactics employed by his wife’s lawyers and watching the costs of the case mount, he began representing himself and used some of the same tactics. He also went further, defying court orders and refused to pay bills he said he didn’t have the money to satisfy. At one point, Fournier told a Times reporter, she went for weeks without running water at home, because it had been shut off.

Judges in theory had the power to enforce their orders, but often didn’t take decisive action as the hard-fought case dragged on, the newspaper recounts. (Threatened at one point with a 30-day jail term if he didn’t ante up, Power paid what was required.) The court system also appeared unable to deal effectively with a situation in which much the same arguments were, seemingly, made again and again without resolution.

“I’m trapped in the system, I can never break out. It’s like Groundhog Day,” Power told the newspaper at one point, referring to the movie in which Bill Murray’s character relives the same 24-hour period again and again.

In November, a decision arrived in Power’s mail from the judge—the fourth to preside over the case. It awarded Fournier $1,500 per month in permanent alimony. However, Fournier would have to make a $525 per month child support payment to Power, resulting in an effective alimony amount of just under $1,000, in the immediate future.

Both Fournier and Power told the newspaper the legal system had failed them. Power, saying he was working to get his business back in the black, planned to contest the $87,000 he owed in back alimony. Fournier, who reportedly had turned down his initial $5,400-a-month alimony offer because her legal counsel had told her she could do better, was bitter.

“The thing is, right now Terry’s living very, very well, and I have no money,” she told the newspaper. “He was able to do whatever he wanted with this system…he got angrier and angrier, and it got out of control. If you look at Terry, he didn’t follow I don’t know how many orders, and he was never held accountable.”

Source: http://www.abajournal.com/news/article/divorce_from_hell_began_with_6.5k_monthly_alimony_offer_ended_with_1.5k_awa/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email&goback=%2Egde_96041_member_231909030