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Thursday, August 09, 2012

Take the children and run?

A recent attorney discipline decision from the Indiana Supreme Court brings together two issues of great interest to me--legal ethics and family law.  (Thanks to the legal profession blog for bringing this to my attention).  The Court suspended the attorney, without automatic reinstatement, for numerous violations.

The opinion's facts are as bizarre as they are disturbing.  The attorney represented a father in a divorce proceeding.  Her client told her that his 8 year old daughter had told a state worker that her mother's boyfriend touched her inappropriately, but the girl had later said she invented the story because she wanted to live with her father. From this alone, the attorney concluded that "the children were in grave danger," drove to their school and badgered the secretary there to release the 8 year old and her brother to her.  She then drove the children around for several hours, asking them about the mother's boyfriend.  Neither child revealed any abuse.  She did telephone the children's babysitter to tell them she had the children, but would not reveal her whereabouts.  Meanwhile, the mother was "terrified."  The story then verges further into the ridiculous and scary, with the attorney driving the children around to find a birthday party to which they had been invited, but losing cell phone service and almost running out of gas.  Six hours after she had wrongfully picked them up from school, the attorney finally dropped the children off at their mother's house.

This case demonstrates a few things.  One is that there are a lot of disturbed attorneys out there, willing to use questionable tactics.  Perhaps this is more true in family law than in other fields, as some of us debated earlier this week under the post A Family Law Fraternity.  Even more, it demonstrates how entitled many people feel to intervene when they catch the slightest hint of child abuse.  As a parent, and a former attorney representing children in family court proceedings, I, like most people, think child abuse is a terrible thing.  It is all too prevalent and we, as a society, should play a bigger role in helping to prevent and address it.  Nonetheless, that does not give anyone carte blanche to wrongfully take children or question them--particularly since questioning by strangers with no expertise may only traumatize children who have actually been victimized.  The attorney here is, sadly, all too typical in thinking that "she was serving a higher purpose of protecting" children.  If she really wanted to help--which is not at all clear to me from these facts--she had many other options available to her, including calling in a report of abuse or discussing the issue further with her client, the father (who seems not even to have really suspected abuse).

Although the U.S. Supreme Court recently addressed this issue, in Camreta v. Greene, it avoided deciding on the merits of the case, instead ruling that the case was moot.  (There, a 9 year old girl was taken from her classroom to be interviewed for several hours by a police officer and a caseworker because of vague allegations of sexual abuse by her father.   The questioners had no warrant, nor did they rely on the "imminent risk" exception to the 4th Amendment, instead waiting for 3 days after hearing of the allegations to question the child).   Hopefully, however, the problematic practices in that case remind us that, even where a more reasonable suspicion of abuse is raised, there are procedures that should be followed--whether by law enforcement, child protective services, or private citizens.  The procedures exist not only to protect parents' constitutional rights, but also to protect children's wellbeing. (The child in Camreta, for instance, vomited after her intensive interrogation).  As Chris Gottlieb argued in her oped about the Camreta case: "[T]he potential threat [of abuse], as horrible as it is, can be effectively addressed without eliminating important rights that belong to children as much as they do to parents."

Posted by Cynthia Godsoe on August 9, 2012 at 06:04 PM | Permalink


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Thanks for the comments. And SparkleMotion, thanks for pointing out the flaws in my conflation of the attorney misconduct and intervention to protect children. I think you're right that I overdid it--this attorney's behavior, which likely was not even really motivated by child protection, should not be used to deter others from valid intervention. I do think, however, that people need to be mindful of family privacy and thinking they know better, although I also recognize that family privacy has long been used, and still is, to hide domestic violence, child abuse and other crimes. As this recent column in the Huffington Post says, more "concerned citizens" should intervene when they suspect child abuse. (http://www.huffingtonpost.com/mary-l-pulido-phd/child-abuse-say-something_b_846099.html)

The Huffington Post column asks people to make reports, and walks them through the process. A harder question is when you see something that may merit immediate intervention, such as a parent hitting a child on the subway. I still remember this oped from 2009 written by a social worker who, reluctantly, intervened when he saw a mother repeatedly slap her 4 year old daughter on the 1 train. (http://cityroom.blogs.nytimes.com/2009/07/10/complaint-box-defending-a-child/) Reluctantly because he wasn't sure of the line between "beatings" and "discipline" (and he's correct that the law is not so crystal clear). Reluctantly also because his intervention, his "public shaming" of the mother, might make her more angry and likely to take it out on the child once in the privacy of their own home. Tough issues...

Posted by: Cynthia Godsoe | Aug 10, 2012 9:12:14 AM

Family law cases are notoriously emotionally draining, and this one is no exception. Thanks for the post--it's great to see more family law in the blogosphere.

Posted by: Margaret Ryznar | Aug 9, 2012 8:57:28 PM

Thank you for posting about this horrifying tale. I hope the kids are okay, whatever that may mean.

But I'm a little bit troubled by the moves you make in your fourth paragraph. It's probably true that there are some severely disturbed attorneys out there, just as there are some severely disturbed [fill in the blank]. It's also true that plenty of us -- for reasons good or bad -- feel the urge to intervene on behalf of abused children. (That strikes me as a healthy thing, all things considered, but perhaps I'm wrong.) But the link you draw between mental instability and interventionist instincts seems tenuous, at least in this post. And the case you discuss makes that link only more tenuous still.

You nicely concede that it's not at all clear that this attorney really wanted to help the girl and her brother. It's entirely possible that she's unstable, deranged, or both. So is this really a lesson about the perils of super-hero-ism and of thinking you're "serving a higher purpose" in protecting kids? Is it really fair, that is, to paint this broadly with the brush of one outlandish case? Or is it possible that there are sick and dangerous people in all walks of life -- and sometimes they work as divorce attorneys?

Thanks, again, for the interesting series of posts.

Posted by: SparkleMotion | Aug 9, 2012 6:31:38 PM

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