Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P38 ppsx

Intervention can mean many different kinds of actions. Frequently, when the risk of further abuse is immediate and significant, child- protective services agents will place the child temporarily in a foster home. Alternatively, agents may monitor the family or may provide counseling in order to curb the threat of abuse. If a family does not cooperate with the intervention efforts of child-protective services, the agency may take the case before a judge, who may determine that abuse or neglect has occurred. The judge may issue a court order mandating the agency’s intervention. In ex- treme cases, agents may remove the child from the home permanently; following a judicial termination of parental rights, the child is then placed for ADOPTION. Another fun ction of state child-protective services is record keeping, which is accom- plished through a system known as the central registry. The central registry contains informa- tion about child abuse reports—both substanti- ated and unsubstantiated—such as the names of the child and of the suspected abuser and the final determination made by the child-protec- tive services worker. This system helps agents in investigating current reports of abuse because it allows them to compare any previous accusa- tions, particularly within the same family. The registry also supplies statistics about child abuse, which help the agency and the state legislature to enact appropriate laws and policies and to provide adequate funding for child-protective services. In some states, other parties may have access to the registry. For example, a day-care center may check the registry before hiring employees, or an adoption agency may check the registry before placing an infant with a family. Few people doubt that state child-protective services agencies provide a valuable service by responding to allegations of child abuse. But such agencies also have their critics. Ma ny people who have been accused of child abuse, particularly parents, object to the w ay in which these agencies routinely remove children from their homes when child abuse is suspected. Children are traumatized by being taken from their parents, and allegations of abuse are frequently unfounded, these critics claim. Contentious CHILD CUSTODY battles sometimes prompt false accusations of physi cal or sexual abuse, costing accused individuals both time and money in the fight to reclaim their children and their reputations. Others object to the names of the accused being included on the central registry even when the accusations are unsubstantiated. The backlash against child- protective services spurred the establishment, in 1984, of the information and support group Victims of Child Abuse Laws (VOCAL). VOCAL claims to have thousands of members nation- wide, and its members lobby for new laws that protect not only children but also parents who are falsely accused of being abusive or negligent. Despite increased legislation and penalties for child abuse, extreme cases continue to appear and to fuel debates over child abuse laws. Such cases includ e the Schoo case in suburban Chicago, which received widespread media coverage. In Dec ember 1992 David Schoo, a 45-year-old electrical engineer, and his 35-year-old wife, Sharon Schoo, a home- maker, flew to Acapulco, Mexico, for a Christmas vacation, leaving their daughters, nine-year-old Nicole Schoo and four-year-old SOURCE: U.S. Department of Health and Human Services, Administration for Children and Families, Child Maltreatment 2007. Child Abuse and Neglect Cases in 2007 Total number of cases: 740,517 Neglect 59.0% (436,944 cases) Physical abuse 10.8% (79,866 cases) Sexual abuse 7.6% (56,460 cases) Psychological abuse 4.2% (31,366 cases) Multiple maltreatments 13.1% (97,123 cases) Other 5.1% (37,966 cases) Unknown or missing 0.1% (792 cases) ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 358 CHILD ABUSE Diana Schoo, home alone. The Schoos provided their daughters only with cereal and frozen dinners to eat and a note telling them when to go to bed. One day during their parents’ absence, the girls left the house when a smoke alarm sounded. As they stood barefoot in the snow, a neighbor found them, learned of their situation, and called the police. The Schoos were arrested while still on the plane that returned them from Mexico nine days after they had left their children. Following their INDICTMENT on various state charges of child endangerment and cruelty, a GRAND JURY also found evidence that the Schoos had beaten, kicked, and choked their children in order to discipline them. In April 1993 the Schoos plea- bargained, agreeing to serve two years of probation and 30 days of HOUSE ARREST while the girls remained in foster care. In August 1993 the Schoos agreed to give up their parental rights and placed their daughters up for permanent adoption. Another nationally publicized case raised questions regarding the effectiveness of child- protective services and implicated social work- ers charged with protecting the victim. Two- year-old Bradley McGee, of Lakeland, Florida, died in July 1989 from massive head injuries after his stepfather, 23-year-old Thomas E. Coe, repeatedly plunged him head-first into a toilet. Coe later testified that he had become angry when the child had soile d his pants. McGee’s 21-year-old mother, Sheryl McGee Coe, pleaded NO CONTEST to second-degree MURDER and aggravated child abuse for allowing her husband to abuse McGee and received a 30-year prison sentence. Thomas Coe, convicted of first-degree murder and aggravated child abuse, received a sentence of life in prison. The McGee case alarmed the public not only because of the harsh physical abuse that caused the toddler’s death but also because of what many perceived to be a failure in the system that is designed to protect children like Bradley McGee. Two months before his death, Bradley had been living with foster parents owing to al legations of abuse at the hands of the Coes. Despite strong objections by the foster parents, caseworkers for Florida’s Health and Rehabilitative Services returned McGee to his mother and stepfather, determining them to be fit parents. Public reaction was strong following the news of Bradley’s death. Four social workers were prosecuted for negligently handling the case, but only the main caseworker, Margaret Barber, was convicted, for disregarding a report from a psychologist who had warned that the Coes were unfit parents. The publicity shed light on problems within Florida’s child- protective services agency, including severe understaffing, and led to new laws that empha- size keeping children safe over keeping families together and that also increase funding for more social workers. A Florida appellate court later overturned Barber ’s FELONY conviction but left standing a MISDEMEANOR conviction for failing to report child abuse. In 1997 a controversial court decision led to a new legal concept: abuse of an unborn child. Traditionally, courts have refused to hold a woman who causes injuries to her own fetus criminally liable for the injuries. But in August 1977, the Supreme Court of South Carolina affirmed the criminal conviction of a woman whose crack cocaine usage while pregnant caused the fetus to be born with cocaine in its system, (Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 [1997]). By regarding the fetus as a person, the 3–2 majority concluded that the mother was guilty of criminal child neglect. In January 2003 the state court revisited its holding in Whitner and voted 3-2 to uphold the 12-year sentence of a woman who had been convicted under the state’s homicide-by-child-abuse law after her cocaine use had resulted i n a stillbirth (State v. McKnight, 353 S.C. 238, 577 S.E.2d 456 [2003]). In early 2002, a major child-abuse scandal involving priests shook the Catholic Church. Although child-abuse LITIGATION against priests is hardly new, the public was shocked by the revelation that senior church officials had covered up the facts about widespread abuse. Beginning with allegations against church officials in Massachusetts, the scandal swiftly became national in scope. By year’s end, 432 U.S. priests had resigned; at least 1,205 more had been accused of child sex abuse; church officials paid hundreds of millions of dollars to settle victims’ lawsuits; and seven grand jury probes continued nationwide. At the epicenter of the scandal was Cardinal Bernard F. Law of Boston. Following the molestation conviction of former priest John Geoghan in January 2002, it emerged that Law had known of Geoghan’s abuse during the 1980s yet had merely assigned him to a new parish. More abuse ensued and ultimately led the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CHILD ABUSE 359 Boston Archdiocese to pay more than $10 million in settlements to Geoghan’s victims. Between 2002 and 2003 more than 500 victims filed sexual abuse complaints against the Archdiocese of Boston, which ultimately paid approximately $85 million to settle the complaints out of court. Over the next several years, hundreds of alleged child abuse victims came forth to file complaints against the Catholic Church and individual priests in other states. The California legislature responded by suspending the STATUTE OF LIMITATIONS for one year, allowing childhood sexual-abuse lawsuits to be filed in 2003 regard- less of when the incidents allegedly occurred. By year’s end, the Archdiocese of Los Angeles had been hit with more than 500 lawsuits. In July 2007 the Archdiocese of Los Angeles agreed to settle those suits by paying the victims more than $660 million in damages. Dioceses in other states began settling child abuse claims that had been filed against them in civil court. None of those settlements was for an amount over $100 million. A handful of dioceses filed for BANKRUPTCY protection in response to the lawsuits. Additionally, some priests resigned, while others were defrocked, prosecuted, and impri- soned. While serving out his prison sentence, Geoghan was murdered by another inmate. In 2002 the United States Conf erence of Catholic Bishops (USCCB) adopted a “zero-tolerance” policy for accused offenders. The USCCB also commissioned a comprehensive study that found that 4 percent of all priests who had served in the United States from 1950 to 2002 faced some sort of sexual accusation. According to the report, common incidents of child abuse included priests touching adolescent males under their clothes and asking them to remove their clothing. However, more serious acts were committed in many cases. Pope John Paul II responded to the scandal by issuing a statement, proclaiming that “there is no place in the priesthood and religious life for those who would harm the young.” The C hurch then instituted reforms to prevent future abuse by requiring background checks for Church employees. Dio ceses faced with ch i ld abuse allegations are now required to alert the au- thorities, conduct an investigation, and immedi- ately remove the accused from duty. In 2008, the Church asserted that although the scandal was a very serious problem, it estimated that no more than 1 percent (or 5,000) of the over 500,000 Roman Catholic priests worldwide had commit- ted an act of child abuse. During a visit to the United States, Pope Benedict admitted that he is “deeply ashamed” of the clergy sex abuse scandal that has devastated the American church. Bene- dict pledged that pedophiles would not be priests in the Roman Catholic Church. Legislation at the state and federal levels continues to change to meet the goal of protecting children from abuse and neglect while protecting the rights of those facing false accusations. FURTHER READINGS Ahearn, James. 2003. “Quantifying Priestly Abuse.” The Record (January 15). Bayles, Fred. 2002. “Seven Grand Juries Examine Bishops.” USA Today (June 20). Cooperman, Alan. 2003. “N.Y. Grand Jury Faults Diocese on Handling of Sexual Abuse.” Washington Post (February 11). Evans, Angela D., Kang Lee, and Thomas D. Lyon. 2009. “Complex Questions Asked by Defense Lawyers but Not Prosecutors Predicts Convictions in Child Abuse Trials.” Law and Human Behavior 33 (June). Ferdinand, Pamela. 2002. “Archdiocese Agrees to Report Past Sex Abuse Allegations.” Washington Post (January 25). Giles, Robert H. 2009. “Difficult Economic Times Prove Value of Multidisciplinary Approaches to Resolve Child Abuse.” Prosecutor. 43 (September). Lavoie, Denise. 2002. “Boston Cardinal Bernard Law, Other Bishops Subpoenaed to Testify by Grand Jury.” AP Worldstream (December 13). Cardinal Bernard F. Law came under bitter public rebuke for allegedly shielding abusive priests from scrutiny, footing their legal bills, and either allowing them to remain on the job or reassigning them to new, unsuspecting churches. Law resigned in December 2002. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 360 CHILD ABUSE Moore. 1995. “Charting a Course between Scylla and Charybdis: Child Abuse Registries and Procedural Due Process.” North Carolina Law Review 73. Simpson, Victor L. 2002. “Boston’s Cardinal Law Resigns After Months of Public Outrage That He Failed to Protect Children.” AP Worldstream (December 13). Zoll, Rachel. 2002. “Boston Scandal Leads Other U.S. Catholic Dioceses to Open up About Sex Abuse.” AP Worldstream (March 6). CROSS REFERENCES Child Molestation ; Child Pornography; Parent and Child. CHILD CARE The supervision and nurturing of a child, including casual and informal services provided by a parent and more formal services provided by an organized child care center. Because there are many different views about how a child should be reared or nurtured, the topic of child care often involves contro- versial social and political issues. For instance, it may raise complex questions about a child’s religious upbringing or whether a child shou ld be disciplined with corporal punishment. Some people believe that providing child care outside the home undermines so-called traditional family structures in which the mother is considered the primary caretaker. Others are concerned primarily with broadening commu- nity responsibility for children and removing barriers for women who wish to enter and participate fully in the labor force. In addition, the term child care encompasses a wide range of services. It can include home-based care by a child’s mother or father, care by a grandparent or other relative, care by a nanny, or care by an organized licensed facility or family center. It can also involve early childhood education such SOURCE: U.S. Bureau of Census, Who’s Minding the Kids? Child Care Arrangements: Summer 2006. Primary Child Care Arrangements Used by Employed Mothers for Children under 5 Years Old in 2006 a Total number of children: 18,988,000 a Numbers of children in specified arrangements may exceed the total because of multiple arrangements. b Includes children in federal Head Start program and in kindergarten or grade school. c May indicate instability in child care arrangements or difficulty in identifying what is regularly used. It does not necessarily indicate that no one looked after the child. d Being cared for by two or more child care arrangements, excluding school and self-care. e Only asked for the time the designated parent was working or in school. Designated parent refers to the mother in married-couple families; the designation varies in other familial arrangements. Designated parent e 3.3% Other parent e Grandparent Sibling/other relative Day care center Nursery/preschool Head Start/school b In child’s home In provider’s home Family day care 55.4% Multiple arrangements d Other nonrelative Organized care facility 14.7% 11.0% 21.7% 19.7% 3.2% 3.9% 9.3% Other 2.7% 10.8% 4.2% No regular arrangement c ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION CHILD CARE 361 as that offered by nursery schools, Montessori schools, and kindergart en programs. According to a 1997 study by the Urban Institute, an estimated 76 percent of preschool children with mothers who are employed are cared for by someone other than their parents. According to these statistics, center-based day- care centers cared for 32 percent of children throughout the United States. By comparison, 23 percent of the children were cared for by relatives, while 16 percent were cared for by a childcare provi der in the provider’s home. Six percent of the children were cared for by a nanny or a babysitter in the child’s home. Child care has always existed in the United States. Organized childcare centers in the early 1800s took the form of infant day schools in parts of Boston and New York. During the industrial revolution, and as a result of increased IMMIGRATION to the United States, day nurseries were created in the late nineteenth century to care primarily for poor urban children. In New York City, in approximately 1910, 85 such nurseries cared for more than 5000 children each day. Day nurseries were privately run and charitable in nature and were intended to provide custodi al supervision, hygiene instruction, and nutrition services. Later, many middle-class parents opted to enroll their children in kindergartens, educa- tional programs adopted in parts of the United States in the mid-nineteenth century. During WORLD WAR II,millionsofwomen entered the workforce in war production areas. The need for an organized childcare program became acute. Congress responded by including provisions in the Community Facilities Act of 1941, then more commonly known as the LANHAM ACT , which created Lanham Act centers for child care. (As of the early 2000s, the term Lanham Act is generally used to refer to the Trademark Act of 1946, 15 U.S.C.A. § 1051 et. seq.) The establishment of the Lanham Act centers marked the first time the federal government became directly involved in providing childcare services to children who were not poor: the centers were open to all children whose parents worked in war production areas. The federal government pro- vided 50 percent of the funds needed to operate the Lanham Act centers; states, localities, and parents provided the remaining 50 percent in matching funds. In 1943 the cost to parents for child care in a Lanham Act center was uniformly set at 50 cents per day. The federally sponsored Lanham Act centers closed in 1946, soon after World War II ended, although California continued them at a state level. After that, direct federal involvement in a national childcare program virtually ceased. Although the U.S. Congress passed the Com- prehensive Child Development Act of 1972, which would have in part established a national childcare program, President RICHARD M. NIXON vetoed the bill. Nixo n stated that the act would “commit the vast moral authority of the national government to the side of communal approaches to child-rearing over and against the family-centered approach.” Nixon’s statement reflected the continuing debate about the appropriateness of providing child care outside a traditional family structure. Although in the early 2000s the federal government does not have a national child care program, it does provide numerous social programs that include funding for childcare services. In 2000 the U.S. states spent an estimated $8 billion on child care. Of this number, approximately $6 billion came from the federal government in the form of subsidies provided by a number of programs. The Head Start program provides develop- mental education programs primarily to poor children under the age of four. WELFARE programs such as Aid to Families with Dependent Children (AFDC) provide funds for states to imple- ment childcare services for parents—usually mothers—who receive welfare grants. The Fam- ily Support Act of 1988 (FSA), Pub. L. 100–485, 102 Stat. 2343, created the federal Jobs Opportu- nity and Basic Skills (JOBS) program, in which qualifying parents who receive AFDC are required to enter education or training programs Kindergartens grew in popularity during the late nineteenth century, especially in New York City and Boston. CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 362 CHILD CARE to enhance their chances of finding employment. The federal government funds the JOBS program by providing money to the states. The states in turn are allowed to choose the method of providing childcare services to welfare recipients. They may provide child care directly, reimburse parents for childcare expenses, or make direct payments to childcare providers. In 1993 the federal government spent approximately $480 million on FSA childcare subsidies. The federal government also provides funds to states through the Social Services Block Grant, under title XX of the SOCIAL SECURITY Act, 42 U.S.C.A. §§ 1397a et seq., as well as funds for the operation of the At-Risk Child Care Program. The At-Risk Program divides more than $350 million among state governments for childcare subsidies to families who are at risk of welfare dependency; the states must match the grants before they can use the money. Finally, the federal government allows families to deduct childcare expenses from their taxes in the form of the federal dependent care tax credit. In response to increasing demands, Con- gress passed the Family and Medical Leave Act of 1993 (FMLA), Pub. L. 103–3, 107 Stat. 6. Although the FMLA does not directly provide for childcare services, it does mandate in part that employers with more than 50 employees must allow those employees to take up to 12 weeks of unpaid leave for the birth or ADOPTION of a child or in order to take care of a child with a serious health condition. Many states also have parental leave legislation, which allows a parent to take unpaid time off for the birth or adoption of a child. The length of time allowed for unpaid leave varies from state to state and may be from six weeks to six months. The regulation of childcare services occurs primarily on the state level, with the federal government requiring states to implement mini- mal regulations for private childcare centers. When Peggy McMartin Buckey and Raymond Buckey were accused of sexually abusing children in a day care center in California in the early 1980s, their case (McMartin v. Children’s Institute Intern., 212 Cal. App. 3d 1393, 261 Cal. Rptr. 437 [Cal. App. 1989]) and others like it received national media attention. Out of a stated concern for the notice given to such allegations, the federal government passed legislation in 1985 that appropriated funds to the states to provide training for childcare workers and to support licensing and enforcement officials. The federal government also required states to implement procedures that would require childcare centers to screen workers for any criminal history. In addition, the Child Care and Development Block Grant of 1990 (CCDBG), which provided funds to state government agencies to subsidize child- care services for low-income working parents, required states to develop minimum health and safety requirements for state-licensed childcare centers. Amendments to the CCDBG in 1995 removed such requirements but did obligate states to ensure that parents or guardians may visit or have access to a child while the child is in a child care center. The regulation of child care facilities and caregivers on the state level varies considerably. A state may require a child care center to obtain a license in order to operate, or it may mandate certain minimum standards for all child care facilities. As of the early 2000s, every state requires that space for a child care facility be “adequate” or of a certain specified size. Most states also regulate how many child care work- ers must be on duty for a specified number of children, depending on the age of the children: for instance, New York requires one caregiver on duty for every two children under the age of two. Most states also regulate the qualifications and training requirements for child care work- ers and require child care centers to determine whether a job applicant or worker has a criminal record or has been listed in the state’s CHILD ABUSE registry. Some states, such as Arkansas and South Carolina, in some circum- stances allow corporal punishment of children in their licensed day care centers. Most states exempt certain child care centers from regulations or licensing require- ments. Religious or church-based day care centers, as well as small home-based day care programs, are often exempt from regulations or licensing requirements other than basic health and safety regulations. In addition, private day care groups or associations may set goals for quality child care and may provide certification or accreditation programs for member centers. FURTHER READINGS Berry, Mary Frances. 1995. The Politics of Parenthood: Child Care, Women’s Rights, and the Myth of the Good Mother. New York: Random House. Capone, Angela, Tom Oren, and John T. Neisworth. 2003. Childmate: A Guide to Appraising Quality in Child Care. Clifton Park, NY: Delmar Learning. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CHILD CARE 363 Hayes, Cheryl D., John L. Palmer, and Martha J. Zaslow, eds. 1990. Who Cares for America’s Children: Child Care Policy for the 1990s. Washington, D.C.: National Academy Press. Jackson, Sonia. 2004. People under Three: Young Children in Day Care. 2d ed. New York: Routledge. Lombardi, Joan. 2002. Time to Care: Redesigning Child Care to Promote Education, Support Families, and Build Communities. Chicago: Univ. of Chicago Press. Ring, B., ed. 2001. The Child Care Disaster in America: Disdain or Disgrace? Huntington, NY: Nova. Steinfels, Margaret O’Brien. 1973. Who’s Minding the Children: The History and Politics of Day Care in America. New York: Simon & Schuster. Youcha, Geraldine. 2005. Minding the Children: Child Care in America from Colonial Times to the Present. New York: Da Capo. CROSS REFERENCES Family Law; Parent and Child; Welfare. CHILD CUSTODY Child custody refers to the care, control, and maintenance of a child, whi ch a court may award to one of the parents following a divorce or separation proceeding. Under most circumstances, state laws pro- vide that biological parents make all decisions that are involved in rearing their child, such as residence, education, health care, and religious upbringing. Parents are not required to secure the LEGAL RIGHT to make these decisions if they are married and are listed on the child’s birth certificate. However, if there is disagreement about which parent has the right to make these decisions or if government officials believe that a parent is unfit to make the decisions well, then family courts or juvenile courts will determine custody. District and state courts base their decisions on state laws, which vary greatly among states. If a case challenges the constitutionality of a state law or—in rare instances—a state’s jurisdiction (i.e., its right to decide the case), then the U.S. Supreme Court may issue an opinion. Divorced Parents When custody must be spelled out it conse- quentially enables some parents to wage bitter custody battles that can last for years. In a typical DIVORCE involving at least one child, permanent physical custody is awarded to the parent with whom the child will live most of the time. Usually, the custodial parent shares joint legal custody with the noncustodial parent, meaning that the custodial parent must inform and consult with the noncustodial parent about the child’s education, health care, and other concerns. In such situations, co urts may order visitation, sometimes called temporary custody, between the child and the noncustodial parent. A clear schedu le with dates and times may be written into the order, or a court may simply state that visitation should be reasonable. CHILD SUPPORT is a common requirement and is paid by the noncustodial parent to the custodial parent as assistance in paying for the cost involved in raising the child. The typical arrangement is subject to some exceptions. Some courts allow parents to retain joint physical custody, in which the child spends equal time with both parents. In California, the Family Code, for example, establishes a presumption that joint custody is in the child’s best interest, thus placing joint custody as a preferred option when courts make custody determinations in that state (Cal. Fam. Code. Ann. § 3040). Advocates of joint custody argue that it lessens the feelings of losing a parent that children may experience after a divorce and that it is fair to both parents. Many courts, by contrast, resist ordering joint custody if either parent does not want it, due to the high degree of cooperation it requires, especially when the children involved are young or if the parents live a great distance apart, such as in sep arate states. Split custody is an arrangement in which the parents divide custody of their children, with each parent being awarded physical custody of one or more offspring. In general, courts try not to separate siblings when awarding custody. Unmarried Parents Where a child’s parents were never married, most states provide that the child’s biological mother has sole physical custody unless the biological father takes steps to be considered for custody. Those steps include obtaining a court’s finding of PATERNITY and filing a petition for custody. In some states, this is a bifurcated (two-step) process; in others, the two steps are combined. An unwed father usually cannot win custody from a mother who is a good parent, but he may have priority over other relatives, foster parents, or strangers who want to adopt his child. The government must provide a child’ s unwed parents with the opportunity to step GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 364 CHILD CUSTODY forward if it is seeking custody. In Stanley v. Illinois (405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 [1972]), the U.S. Supreme Court held that under the EQUAL PROTECTION clause of the FOURTEENTH AMENDMENT, an unwed father is entitled to a hearing to determine his fitness as a parent be fore the state can obtain custody of his children following their mother’s death. Criteria for Custody Awards Much debate about child custody has focused on the criteria that the courts use in awarding permanent physical custody in cases where two biological parents disagree. Noncustodial par- ents of both genders have long charged that judges’ decision making is arbitrary and that it does not focus on the child. In response to this criticism, many states have adopted a standard that places primary emphasis on the best interests of the child. The challenge for courts since the 1990s has been to interpret the standard objectively in the absence of meaning- ful guidelines. Policies of the past offer litt le guidance. Before the late 1800s, fathers had sole rights to custody, because it was closely tied to inheri- tance and PROPERTY LAW. Mothers had no such rights. Beginning in the nineteenth century, courts began to award custody of young boys and of girls of all ages solely to mothers on the presumption that mothers are inherently better caretakers of young children. Until 1970, most states encouraged or allowed this maternal preference, also called the TENDER YEARS DOCTRINE, and mothers almost always received custody. Eventually, many state courts found this preference to be unconstitu- tional, and gender-neutral custody statutes had replaced maternal-preference standards in 45 states by 1990. A catalyst for this change was Reed v. Reed (404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 [1971]), a noncustody case in which the U.S. Supreme Court ruled that the equal protection clause of the Fourteenth Amend- ment prevents courts from basing opinions on generalizations about either gender. A 1994 AMERICAN BAR ASSOCIATION study of divorces in Utah showed that after maternal preference in divorce cases was declared uncon- stitutional in that state in 1986, the number of mothers who received sole custody decreased, the number of joint legal custody award s increased, and the number of specific-visitation schedules increased. The researchers concluded that, although the proportion of fathers who received sole custody did not necessarily go up, the net result was more involvement by fathers after divorce. No straightforward criterion has replaced the simple—althoughunconstitutional—presumption that children belong with one gender or the other. The decisions that result are often incon- sistent, and many participants view them as arbitrary. Ultimately, the judge decides the child’s future, and few guidelines are provided to ensure that the decision is objective. Nevertheless, courts have instituted some mechanisms to determine a child’s best inter- ests. Guardians ad litem (caretakers for the lawsuit) or friends are sometimes appointed to represent the child’s interests and to advocate in court on the child’s behalf. Custody evalua- tions may be ordered, in which court-services personnel visit each parent’s home and evaluate each parent’s plan for caring for the child. The fact that one parent has been the child’s primary caretaker is often considered but is not enough to guarantee a custody award. In 2008, the Minnesota legislature tasked the state COURT ADMINISTRATOR with convening a study of joint physical custody presumptions in state law. Appendix A of the 286-pag e report published in January 2009 by the Minnesota Joint Physical Child Custody Study Group indicated that no state had a presumption of equal physical custody, but that eight states had presumptions in favor of joint physical custody. Nine states adopted presumptions of joint physical custody applicable only where parents had agreed to it. Overall, 26 states had best interest standards for determining custody (five states had neither presumptive nor best interest standards in place). Additionally, 22 states had presumptions against joint custody where there was a history of DOMESTIC VIOLENCE, abuse, or convictions of certain crimes. Another 18 states required courts, at a minimum, to include evidence of such factors in the ir best interest analyses. Changing Custody Awards Standards for changing custody awards are similarly vague, although most states’ criteria allow courts to modify custody only when the circumstances of the custodial parent or of the children—not of the noncustodial GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CHILD CUSTODY 365 parent—have changed. A 1993 Stanford Uni- versity study of petitions to modify custody found that these awards were highly inconsis- tent, and it attributed them in many cases to personal gender biases held by judges. Sexual Orientation and Race Social issues are sometimes slow to affect custody decisions. Homosexual parents still pose dilemmas for judges. Although in many cases homosexual parents have won or retained custody, the Virginia Supreme Court in 1995 reinstated a trial court order awarding custody of a boy to his grandmother because the lesbian mother’s sexual orientation was deemed poten- tially harmful to the boy (Bottoms v. Bottoms, 249 Va. 410, 457 S.E. 2d 102). Simila rly, the Alabama Supreme Court in Ex parte H.H. (830 So. 2d 21 [Ala. 2002]) refused to return custody of children to their mother, despite her assertions that the father, the custodial parent, had abused the children. Although the majority in the decision did not address the fact that the mother was a lesbian, a concurrence written by the chief judge of the court suggested that the court should consider homosexuals as presumptively unfit to have custody of min or children. In contrast to these types of decisions, many courts have been more willing to grant custody to gay and lesbian parents when the parents are a same-sex coup le. In the Florida case of In re Kantaras v. Kantaras (No. 98-5375NA [Sixth Judicial CIRCUIT COURT, Pasco County, Florida, 2003]), considered the first fully litigated case of its kind in the United States, a circuit court judge ruled that a female-to-male transsexual was legally a male, making his MARRIAGE to his female wife legal. The significance of this holding was that under Florida law, he could now be granted parental rights and custody of the couple’stwo children in a divorce proceeding, even though he was not the biological father. (His wife was the biological mother of their children.) Although the U.S. Supreme Court ruled in 1984 that removing custody from a white child’s mother because of her marriage to a black man would be discriminatory (Palmore v. Sidoti, 466 U.S. 429, 104 S. Ct. 1879, 80 L. Ed. 2d 421), a Tennessee court in 1986 removed custody from a white mother who was living with a black man. In that case, when one of the children’s guardians died two years later, the mother, who had by then married the man, was awarded custody of one of her children (Smith v. Smith, 1989 WL 73229 [Tenn. App ]). Adoption ADOPTION can provide courts with another source of custody disputes. Most state laws require that both birth parents give consent before their child can be adopted. Such a law was at issue in a custody battle over Jessica DeBoer, who was born in Iowa in 1991 and adopted by a Michigan couple. DeBoer’s birth mother later married DeBoer’s birth father, and they sought and won custody of DeBoer in Iowa, based on the fact that the father had not consented to the adoption. The adoptive parents then won in the Michigan courts, based on an analysis of the child’s best interests. On appeal, the Michigan Supreme Court reversed, declaring that under federal law, Iowa had jurisdiction in this case and that unless a child’s birth parents are unfit, an unrelated person may not retain custody. The U.S. Supreme Court agreed, in DeBoer by Darrow v. DeBoer (509 U.S. 1301, 114 S. Ct. 1, 125 L. Ed. 2d 755 [1993]), and Jessica was returned to her birth parents. Family ties are often a compelling factor for judges even when birth relatives other than parents are involved. For example, the Minne- sota Supreme Court ruled in 1992 in Matter of Welfare of D. L. (486 N.W.2d 375 [Minn.]), that the biological grandparents of Baby D., a three- year-old African American, should be granted custody, rather than the white foster parents who had raised her from birth. The case convinced the Minne sota Legislature to change a law (M. S. A. § 259. 28, subd. 2) providing for same-race preference in adoptions, but race was not the deciding factor in the case: The court based its decision on reuniting Baby D. with her birth relatives and her siblings, of whom the grandparents also had custody. Critics of removing children from parents and from parental figures to whom they have become attached argue that the rupture is too difficult to overcome and that children suffer from imperfect child-custody laws. The Nation- al Conference of Commissioners on Uniform State Laws approved in 1994 a model adoption statute, which was designed to reduce the chances that custody will be changed after children have become attached to parent figures. The model statute provides guidelines for birth parents and adoptive parents to follow GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 366 CHILD CUSTODY before an adoption in order to prevent custody battles afterward. Courts have tended toward placing more importance on child-caretaker attachment and in some cases even denied custody to birth parents in order to uphold this attachment. A Florida judge ruled in 1993 that 14-year-old Kimberly Mays could choose not to see her birth parents, from whom she had been separated at birth by a hospital error (Twigg v. Mays, 1993 WL 330624 [Fla. Cir. Ct.]). The decision was based on the length of time she had spent with her nonbio- logical family and her attachment to it. In 1978 the U.S. Supreme Court ruled that the adoption of a child by the child’s stepfather did not violate the due process rights of the child’s unwed biological father. In Quilloin v. Walcott (434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 [1978]), the Court decided that the adoption was in the best interests of the child and wrote that because the particular biological father had participated very little in rearing the child, he did not have the same rights under the equal protection clause that a more involved father would have. Terminating Parental Rights Owing in part to a national surge in reports of CHILD ABUSE and neglect in the 1980s and 1990s, courts faced questions of whether abusive or dangerously neglectful parents should retain custody of their own children. It is the government’s role to step in when a child is not being safely cared for, and if parents are judged unfit, the local social services depart- ment may seek to terminate their parental rights and to free the child for adoption or alternative care. A child may be placed in foster care while a custody case is pending. Before removing a child from her or his parents, the state must produce “clear and convincing” evidence that terminating parental rights is the best option for the child. This matter was clarified in Santosky v. Kramer (455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 [1982]). The case arose after a New York County social services department successfully brought neglect proceedings in state court against the Santoskys, a couple with three children. The U.S. Supreme Court found that the state’sstandard— “a fair preponderance of evidence”—was too low for deciding something as important as a family’s future. In 2007 the Tennessee Supreme Court returned custody of a young girl to her biological parents, Chinese nationals who planned to take her back to China. This was despite the fact that she was only weeks old when an American couple was granted open-ended temporary custody of her, with hopes of eventual adoption. The primary reasoning behind the court’s decision was its conclusion that the biological parents, because of language barriers, did not understand the consequences of their earlier waiver of custody and parental rights to the American couple in 1999 (In Re Adoption of A. M.H. No. W2004-01225-SC-R11-PT, [2007]). Courts and Jurisdiction Most custody decisions are made by family courts. However, where a juvenile court has found that a minor poses a threat to society if current custody arrangements continue, the juvenile court may turn over physical custody to the state. The court may simultaneously issue a so-called CHIPS petition, declaring the “child in need of protective services,” if the current custodian is abusive or negligent. Jurisdiction is an issue that has also received much attention. A court has the power to settle a custody dispute if a child lives for at least six months in the location where the court has jurisdiction or if it is demonstrated that the court has the closest connection with the child. All states have adopted the Uniform Child Custody Jurisdiction Act, originally adopted in 1967, which provides that a state’s court will not accept a custody case unless that state has ORIGINAL JURISDICTION or the state with original jurisdiction relinquishes it. This law was updated in 1997 with the pas sage of the Uniform Child Custody Jurisdiction and En- forcement Act, which added a number of provisions for the enforcement of child-custody orders from other states. As of 2003, more than 30 states, including the District of Columbia, had adopted the new law, and several others were considering its adoption. The Hague Convention Treaty provides similar reciprocity between nations that are parties to it (imple- mented at 42 U.S.C.A. §§ 11601–11610 [Supp. 1993]). A parent’s interstate move sometimes blurs jurisdictional lin es. For this reason, courts may restrict the geographic area in which a parent may live as part of the custody order, or they GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CHILD CUSTODY 367 . to step GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 364 CHILD CUSTODY forward if it is seeking custody. In Stanley v. Illinois (405 U.S. 645, 92 S. Ct. 120 8, 31 L. Ed. 2d 551 [19 72] ), the. circumstances of the custodial parent or of the children—not of the noncustodial GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CHILD CUSTODY 365 parent—have changed. A 1993 Stanford Uni- versity study of. facility 14.7% 11.0% 21 .7% 19.7% 3 .2% 3.9% 9.3% Other 2. 7% 10.8% 4 .2% No regular arrangement c ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA