LegalMatch: Family Law

Open Letter to Darth Vader

Editor's Note: In anticipation of the new Star Wars movie, we thought it might be fun to use the movie franchise as a metaphor for common legal issues. May the Force Be With You!

I understand you are trying to find out if the adoption of Luke and Leia was legal. Adoption is a court procedure allowing someone to become legally recognized as the parent of a child who isn’t biologically related to him. Since you returned to Jedi ideals, I’ll call you Mr. Skywalker. Before I answer your questions, I’d like you to keep in mind one the adoption cases of Chris Emanuel. Unfortunately, the news isn’t good for you.

Question 1: What Could Obi-Wan Have Done to Obtain custody Over Baby Luke After You Went Homicidal Cyborg?

After Padme’s death, Obi-Wan had a decision to make on Tantive IV. He could have informed you Luke and Leia were alive. Keep in mind that probably wasn’t an option since you were with Emperor Palpatine. You’d already committed mass murder by then. He could have gone to court to obtain guardianship of the twins. 

Legal guardianship is established by the court and allows an individual to watch over the minor and protect them. Obi-Wan would have acted as a parent to the twins providing shelter, food, and care. The twins would have been “wards” of the court. The term refers to the fact the parents of the minor wasn’t capable of taking care of him or her. There are several types of legal guardianship including:

• Temporary guardianship
• Adult guardianship
• Emergency guardianship

Regardless of the type of guardianship Obi-Wan chose, you would still retain your parental rights. Also, anyone can be a legal guardian as long as they have the ability to take care of the child’s needs such as education, food, shelter, and medical care. Would Obi-Wan be granted legal guardianship? Well, that decision would be left up to the family court. The court only considers what’s in the best interest of the child.

Question 2: If Obi-Wan and Senator Organa Had Gone Through Legal Adoption Channels, Would the Judge Have Agreed to Split Up Luke and Leia?

This is a good question. I’ll reserve the huge complication with Obi-Wan and Senator Organa going through legal channels to adopt Luke and Leia for later. For now, I’ll focus on the latter part of the question.

Separating siblings to adopt them out is not a common practice except if it would be in the child's best interest. A judge could have split Luke and Leia up if he felt it was in their best interest to do so. The judge may have thought Leia going to Alderaan to live with Bail and Queen Organa was better than living with Owen and Beru. The judge may have thought Beru and Owen were better parents for Luke than his sister. However, this case was still unusual because there was little evidence to suggest Luke would have done worse with the Organas or that Leia would have done worse living with her Aunt and Uncle. The only explanation is that the twins had to be separated to keep them away from their violent and murderous father.

I’ve mentioned the term “what’s in the interest of the child” quite a few times. It’s important to explain it completely. The term usually critical in child custody, visitation, and guardianship. It’s also used in adoption. It basically means, when making decisions about a child, he or she is the sole focus. The judge doesn’t consider parents’ desires, wants, or needs pertaining to where the child lives.

Since the twins were infants at the time Obi-Wan and Senator Organa would have adopted them, the court would have the following to determine best interest:

• Child’s background
• Environmental considerations like community safety and schools
• Health and maturity of each adoptive parent
• Each adoptive parent’s ability to provide emotional and financial support for the infants
• Social background and lifestyle of each parent

Again, the judge could have split Luke and Leia to allow them to be raised by different families. Now, I’d like to focus on the legal adoption aspect of the question. Unfortunately, a big myth in adoption cases involve father’s rights. Many believe birthfathers don’t have the right to know about their children going up for adoption. They also have the right to contest the adoption.

It is a risk for birthmothers and adoptive parents to continue with the adoption if the adoptive father can’t be located or informed about the birth. In some jurisdictions, if the father’s whereabouts are unknown, some sort of legal notice must appear in the newspaper.

That’s what happened in the Emanuel case. His daughter was returned to him after he found out she was adopted by couple. He wasn’t told she was being placed for adoption.

Question 3: Could You Obtain Custody Over Your Children?

Child custody involves having physical and/ or legal custody over a child. If you did have to go to court to talk custody of Luke and Leia, you will have an uphill battle. The court will look at what’s in the best interest of the twins to determine if you were fit to have retain custody. The court will also consider each parent’s background and ability to provide children with a safe, stable environment.

Barriers Preventing Fathers Behaving Badly from Obtaining Custody or Stopping an Adoption

Unfortunately for you Mr. Skywalker you probably wouldn’t have a chance of invalidating the adoption or getting custody. You could return to the Force, but the judge will take into account your past. Let’s just discuss some domestic violence and family abuse events the judge will consider:

• You joined the Dark Side
• Committed mass murder after your mom’s death
• You choked your wife, Padme, in a fit of rage
• You fought your son, Luke, cutting off his hand
• You revealed you were Luke’s father in a very traumatic way
• You kidnapped and tortured your daughter Leia
• Tried to force Luke to join the Dark Side

These are all serious events and will negatively affect your rights to invalidate the adoption or gain custody of them. Yes, I do understand. When Luke was withering in agony from Emperor’s torture, you did turn against your master. You saved Luke by throwing the Emperor into the core of Death Star. That one thing wouldn’t be enough to overcome numerous things you’ve done to harm the ones you loved.

Mr. Skywalker, I hope I’ve answered your questions regarding the adoption of Luke and Leia. Good luck and may the Force be with you.

Sincerely,

Taelonnda Sewell, LegalMatch Legal Writer

Are "Failure to Protect" Laws Harmful?

Domestic violence is an abhorrent act that plagues many households in America. The national spotlight has been on domestic violence ever since the infamous Ray Rice elevator video was released to the public. Here are some sobering facts:

• More than 60% of domestic violence incidents occur in the home.
• More than 3 million children witness domestic violence in their own households every year.
• Domestic violence costs more than $37 billion a year; this includes law enforcement involvement, medical and mental health treatment, legal work, and lost work productivity for companies.

Typically, when people talk about domestic violence, the focus tends to be on adult relationships (i.e. boyfriends and girlfriends, or husbands and wives). Although this tends to be the norm, abuse isn’t exclusive to adults and also includes children.

Child abuse is an incredibly heinous act and as a society we’ve passed laws that are aimed at stopping this problem.  “Failure to protect” laws penalize parents that fail to protect their children from abuse. The purpose behind these laws is to deter mothers in abusive relationships from staying or being complacent.

Although the goal of failure to protect laws is noble, the reality is actually harmful to children and mothers. Prosecutors want to send the message that mothers need to be held accountable and should protect their children from domestic abuse at any cost. While domestic abuse advocates believe the real message is that abusers should be held less accountable for their actions compared to “bad” mothers that stay in abusive relationships.

Under failure to protect laws, many mothers have received harsher sentences than their child’s abuser. In the Collin Grant case, his stepfather, who repeatedly raped him, was sentenced to 15 years in prison—his mother was sentenced to 20 years. Arlena Lindley, who even tried to stop her boyfriend from harming her son, received a 45-year prison sentence. In the past decade, 28 mothers have been sentenced to 10 years or more in prison for violating the failure to protect laws in their state. Although these laws were written to deter both fathers and mothers from placing their children in dangerous situations, failure to protect laws disproportionately punish mothers over fathers.

In the end, children aren’t truly helped or protected when mothers are imprisoned for longer sentences than the actual abuser. Collin Grant has stated that he wished he remained silent and would even endured a life time of abuse because he lost his mother during a time when he needed her the most. 

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Authored by Jessica Tran, LegalMatch Legal Writer

Domestic Violence in Ohio in 2012 Reported

The Ohio's  Attorney General's Bureau of Criminal Identification and Investigation recently published statewide data about the relationships of those involved in domestic disputes. Social and law agencies throughout the state, as well as many Ohio family law lawyers use this information to better understand domestic violenceand to develop effective solutions to fight the problem.

The complete list of domestic violence reports:

• 2012 Domestic Violence Incident Calls
• 2012 Domestic Violence Incidents by County and Agency
• 2012 Domestic Violence Incidents Report Legend
• 2012 Ethnicity of Offenders
• 2012 Ethnicity of Victims
• 2012 Offenders of Domestic Violence by County and Agency
• 2012 Offenders Total Percentage
• 2012 Race, Age, and Gender
• 2012 Victims of Domestic Violence by County and Agency
• 2012 Victims Total Percentage

Grounds for Divorce

Major cultural shifts and a greater push for legal and social acknowledgement of gender equality, not to mention gay marriage, have decidedly shifted the manner in which couples pursue the dissolution of their marriages. The off-shoot of these changes in social norms has be the widespread use of no-fault divorce as the preferred means of disengagement. That said, many people feel that the causation of their marital troubles have been actions or deeds demand a day in court to resolve real or perceived damages. The LegalMatch law Library has many articles about what constitutes grounds for divorce. here are some of them that pertain to individual states:

• Grounds for Divorce in Texas
  Texas has seven defined reasons: Insupportability, cruelty, adultery, conviction of felony, abandonment, living apart and confinement in mental hospital.
• Grounds for Divorce in California
  In contrast, California, exclusively a no fault divorce state, has two ground for dissolution of marriage or legal separation: Irreconcilable Differences and Incurable Insanity.
• Grounds for Divorce in Florida
  Like California, no fault rules here, with only two grounds for divorce: Irretrievable Breakdown of Marriage Relation and Mental Incapacity.
• Grounds for Divorce in Illinois
  Illinois allows for both fault and no fault divorces, and recognized 13 grounds for divorce: Impotency, Bigamy, Adultery, Habitual Drunkenness, Excessive Use of Addictive Drugs, Attempted on Life of Spouse, Cruelty, Felony Conviction, Infection of Spouse With Sexually Transmitted Disease, Separation for 2 Years, Irreconcilable  Differences, and lastly, Separation for 6 Months Plus Waiver.
• Grounds for a Fault Divorce in New York
  The state of New York only recognizes 5 fault related grounds for divorce. they are: Cruelty, V, Abandonment, Adultry and Non-Cohabitation.

We'll cover more ground in the next few posts, stay tuned.

When Child Care Becomes a Legal Concern.

Nearly all parents want the best for their children. Mothers and fathers alike are often loathe to part with young children, and turning over child custody can be extremely trying—especially for new parents. Whether you’re taking a night off to catch the latest Bond flick, or stealing a week away to recoup from the rigors of child-rearing, your child’s safety is still priority. But even the best-intentioned parents aren’t perfect judges of character.

When Anahi Ferrando joined the Army in 2005(1), she decided to impart legal custody of her daughter, a 5 year-old quadriplegic, to her boyfriend Michael. But while Anahi served in Iraq, her child began to waste away, starved and neglected by the boyfriend assigned to be her legal provider. By the time the child’s grandfather obtained an ex parte protective order, she weighed only 13 pounds.

Child neglect, like that committed by Anahi’s boyfriend, is merely one of several forms of child abuse. And “neglect” can mean anything from inattention to a child’s emotional needs to depriving a child of food and shelter. As child abuse and neglect are both criminal offenses, they should be dealt with by a skilled criminal law and police lawyer.

 

What responsibilities go along with child custody?

Child custody brings many responsibilities to the table, but these obligations may vary depending on the type of child custody involved. In the case of Anahi Ferrando, Michael was given legal custody over daughter Jade Anzures. Legal custody is the most extensive custody that can be given over a child, giving an adult the right and obligation to make decisions about that child’s upbringing. This obligation extends to cover healthcare, religious, and educational decisions—but it also means that the custodian is entrusted with the safety and well-being of the child in question.

Michael violated his child custody obligations and crossed over into child abuse when he chose not to provide proper food or care for 5 year-old Jade. Grandparents custody and visitation rights were invoked only after it became clear that Anahi’s daughter lacked proper parental care.

If you would like to extend custody for your child to someone else, or would like to claim custody of a child that you feel is improperly cared for, it is in your best interest to consult with a family law lawyer. However, if you ever suspect that a child is in immediate danger (in an emergency situation), please call your local police station or State Child Protection Agency.

 

(1) The Salt Lake Tribune, "Man accused of starving G.I.’s quadriplegic child plans to fight charges." 27 July 2007.