Judges and children: When the twain should (must?) meet

I discovered this interesting blog article on the Family Law group at LinkedIn.com

Family Law Blog: Judges and children – AJ v. JJ and others [2011] E...: It sounds like a definition of people you should never work with. Animals are less of a problem! Actually, I raise this as a topic beca...

An English appellate court said that a family court judge should have met with the children to explain to them why he was sending them back to Poland to be with their father who had custody, over their reportedly vigorous objection.

The blog author seems to agree with the system there, similar to ours, that parents are discouraged from bringing their children to court and that children's voices are heard through a Guardian Ad Litem (GAL). The reported decision said it was the judge's responsibility to avoid the scenario of screaming, kicking children being dragged onto a plane by explaining the process to them.

Many parents and children believe that children's voices are not adequately heard or are inaccurately reported through the GAL system and argue that children should have the opportunity to directly communicate with the decision maker, either as witnesses or parties with standing to have their positions count. Is it for the best? Are there other options?

FDA Regulation and Parental Rights in Artificial Insemination

The Just Families blog of New York Law School's Diane Abbey Law Center for Children and Families posted the article at the link that follows about a trend of couples sidestepping fertility clinics to find sperm donors: Online Sperm Donation

I posted the following comment there based on the first few legal thoughts* I had reading the article:

Would the FDA still think it had a right to regulate the transaction if the donor made his donation directly without the intervention of the husband? What if it were a loveless marriage and the husband was the donor the only intention being to make the wife pregnant, does that still invoke the regulatory powers of the FDA?

Regarding the presumption of legitimacy - my research suggests that those laws have nothing to do with the use or not of a physician but predate artificial insemination and create a rebuttable presumption that the husband is the father of a child born during (or in the case of Massachusetts within a certain time frame before or after) a marriage. It is to protect the child from being fatherless or being declared not the child of the mother's husband unless there is evidence presented that bursts the presumption and it is in the child's best interests to declare the genetic father to also be the legal father.

I know some state laws and AID contracts limit the right of the sperm donor to assert his parentage, but for the best interests of the child, it would seem that limiting the presumption to physician-assisted sperm donation would be counter-productive.

More thoughts:

What about this kind of transaction takes it out of the Griswold v. Connecticut or Belotti v. Baird privacy realm that permits the FDA to be involved?

Forgetting about the FDA regulation issue, what are the pure Family Law / Parental Rights issues involved? Do state laws adequately deal with the issues involved in sperm donation? Can the parties to the transaction write an agreement that would be sufficient to foreclose the donor from having any rights or obligations regarding the child? Would it be legitimate for the parties to deal with each other anonymously with fictitious names and proxy email addresses?

Has the law of parenting fallen too far behind technology to adequately address these issues? Should the law ignore technological advances until it catches up? Are there issues of morality aside from the legal issues? (That is, is there something malum im se, wrong in itself, rather than malum prohibitum, wrong because it is illegal, that needs to be addressed here?)

* I had other initial thoughts based on the title of the article that were of a practical rather than legal nature that I didn't post on the Just Families blog mainly around the question, "How do you get the sperm into the Internet for online donation?" When I read the article, I understood that it was the offer of the donation service only that are made online and the couples travel to where the donor is to consummate the transactions.

Leaving 3 year old in car for 13 minutes is not neglect

This New Jersey court is as good at overturning their child protective services agency's findings of neglect as the Massachusetts courts are at upholding them:

Dept. of Children Youth & Families v. A.S., New Jersey Superior Court Appellate Division, decided 9/29/11

Three year old wanted to stay in car to continue watching DVD while mom did some last minute barbecue shopping at big box store. Mom left her strapped in her car seat, the doors locked, the car started with remote start and the air conditioner on for 13 minutes. Child was unfazed when police arrived, police could not get car doors opened. DCYFS found her neglectful. So did the administrative hearing.

But, citing the statute and a couple of other New Jersey cases that also reversed neglect findings, the court reversed and ruled in favor of mother.

Thanks to Leagle.com for posting this unpublished, per curiam decision.

SCOTUS overturns CA9 on Warrantless CPS interrogations

The U. S. Supreme Court issued its decision today in Camreta v. Greene. Read the full decision here:
http://www.supremecourt.gov/opinions/10pdf/09-1454.pdf

This is the 9th circuit case in which the circuit court found a Fourth Amendment violation based on a CPS worker and Sheriff's deputy's warrantless interrogation of a then 9-year-old at school. The 9th Circuit, though finding the violation, found that the official had qualified immunity since the law was unclear before. The deputy was granted cert in the U.S. Supreme Court.

The Supreme Court ruled it could review the appellate court's constitutional decision, even though Camreta was the prevailing party below, based on qualified immunity. Nevertheless, the Court held the case is moot, because Greene has no continuing stake in the controversy. Consequently, it vacated the portion of the 9th Circuit opinion that imposed the warrant requirement.

Justice Kagan wrote the majority opinion in which Roberts, Scalia, Ginsberg and Alito joined. Scalia wrote a concurring opinion. Sotomayor, joined by Breyer wrote an opinion concurring in the result, but opining that the court should have decided only that the case was moot and vacated the judgment below. Kennedy, joined by Thomas, wrote a dissent concluding that Camreta as a "prevailing party" should not have been permitted to appeal the constitutional decision below, which he describes as "obiter dictum".

Thanks to the NACC yahoo group for notice of and the link to the decision and to members of the group for the concise summary quoted above.

Federal Jury in San Jose, CA Awards $3.25 Million in Damages to Family for Unlawful Seizure of Their Children

Federal Jury in San Jose, CA Awards $3.25 Million in Damages to Family for Unlawful Seizure of Their Children

When Schools' Zero-Tolerance Policies Make Zero Sense

High school student expelled for blowing pieces of paper at classmates through a tube pen. Read the full article from Legal Blog Watch here.

School official hits nerve with spank talk

School official hits nerve with spank talk

What do you think?