PARENT'S RIGHTS NOW!

Why didn't the appellate attorney submit a motion for expungement while he was taking the thousands of dollars addressing an issue ---already ruled on so many times ---that the Supreme Court saw no need to explain it again?--- Oops --- "NEVERMIND."

# posted by McLaren583

Response:

We do not know if your question has been answered elsewhere on this BLOG, but the issue of the Expungement was not before the Supreme Court. And many Family Court Judges and many Family Court Lawyers do not seem to realize that those found to be in Civil Contempt are actually processed in the same manner as they would have been processed had they either been convicted or charged with a crime. They are handcuffed, fingerprinted, and photographed.

# posted by PARENT'S RIGHTS

DADS of Michigan has partnered with the Family Rights Coalition of Michigan, Fathers for Equal Rights of America, and Citizens for Parental Rights in co-sponsoring "Fathers Conference 2005," subtitled "Healing Our Families--A Time For Change." The conference will be held June 17 & 18 in Detroit, Michigan.

More information about the conference can be obtained at http://www.fathers05.org.

INCARCERATION NOT THE SOLUTION TO EVERY PROBLEM

Both the Charleston County Libertarian Party and the South Carolina Libertarian Party share some of our views on incarceration of people. Simply stated, its members do not think that incarceration is the solution to every problem our society faces. The following is from their recent publication:

"After studying the Governor’s Veto Message, FY 2005-06 Appropriations Act and Capital Reserve Fund Appropriations Act, I must admit that it saddened me to see many cuts to what I believe to be important and worthy endeavors, but not because I think the taxpayer should foolishly attempt to fund these programs at any cost, but because of how stupidly the taxpayer is being forced to fund far less productive activities in South Carolina.

I’m talking about the $75 million dollars we spent last year to keep drug addicts, and drug addicts that sell drugs, locked up in the South Carolina State Prison system. It costs the South Carolina taxpayers approximately $14 thousand to keep (1) drug addict locked up. To put that in perspective, if Governor Sanford would pardon (715) drug addicts from the state prison system, Clemson University gets its $10 million. "

Maybe, some of those incarcerated "Deadbeat Dads" could be released to return to work and the jails could be used for actual criminals and convicts.

The New York Times is reporting that singer/actor/producer/businessman P. Diddy is appealing what could be the largest child support order in New York state history.

Last month, the New York State Supreme Court's Appellate Division approved an increase from about $5,000 to $21,782 per month to P. Diddy's ex-girlfriend, Misa Hylton-Brim. Representatives of both P. Diddy and Hylton-Brim say it's the highest child support payment in state history.

In an interview with The Associated Press Tuesday, the hip-hop mogul vowed to appeal, saying the case was "an attack on his character."

''It's not about money. I don't care how much money I have,'' he said. ''If you come at me and say I don't take care of my child, I'm going to take care of that to the end.''

He said the courts should not have negated the previous, years-old agreement between the pair, which stipulated a $5,000 monthly figure. ''The law would be saying that contracts are null and void. I don't think that it would be like that with someone else,'' he said.

Hey P. Diddy, get a clue. Granted, this is a lot of money. And your "baby mama" may be seeking ''adult support'' as you claim. But, you are just making other fathers look bad by raising these same tired old arguments. This is no sweat for you--chump change. And your silliness undermines the argument that there are actually people who object to the amount of child support they have been ordered to pay because they can not pay it, not because they are insulted at being asked to pay it.

Besides, did your lawyer not tell you that child support agreements are unlike most contracts and they are subject to constant monitoring and adjustment?

Unreported Opinions have no precedential value. And it’s a lucky thing for two Charleston attorneys who apparently understood more about how to get the trial judge to ignore the law than they understood about the law. At the very least, the two lawyers who represented the mother should be ashamed of themselves. At over $400 per hour they had to know better. Or in the words of the South Carolina Court of Appeals:

B. Attorney’s Fees

Father also challenges the award of attorney’s fees. He argues the following on appeal: (1) the family court failed to make adequate findings of fact pursuant to Rule 26 and, more specifically, failed to require financial declarations pursuant to Rule 20 before making the award; (2) the family court failed to consider the factors required by law; and (3) Father was improperly denied his request to question Mother’s counsel regarding hours spent in preparation.

An attorney fee award must be based on adequate findings of fact. Clearly, the order of dismissal that awarded the Mother attorney fees included no findings of fact. Nevertheless, the court made findings in its order on reconsideration. However, in view of our decision to reverse and remand certain issues, we also reverse and remand the matter of attorney fees (emphasis added).

A READER WRITES ABOUT PATERNITY FRAUD/ WE RESPOND

Paternity fraud appears to be a growing problem in this country. The following is an e-mail received from a reader/contributor on our site regarding an e-mail we had sent in response to a posting she had made on our site regarding the issue of Paternity Fraud. For purposes of clarity the readers of this post should know that the red highlighted portions of the e-mail are from our original e-mail.

For issues of privacy, we have removed all identifying information.
_________________________________________________________

I was unpleasantly surprised by your response. It appeared that you were trying to provide me with some modest degree of sensitivity training.

(1) As far as the paternity issue is concerned, I would be interested in knowing your proposed solution to the problem. “Criminal prosecution.”

(2) From what you tell me, there does not seem to be a mechanism for overcoming the statutory presumption of paternity. I do not understand how you came to that conclusion. There are both state and federal mechanisms in place for overcoming statutory presumptions of paternity. Every one of which was illegally denied to [NAME OMITTED]through criminal act of fraud upon the court, which were willfully and wantonly assisted, aided, and abetted by officers of the court.

(3) Wouldn’t it be simpler just to allow those who want to challenge paternity to utilize DNA testing and to get away from this “race of the child” issue? The race of the child is not simply an issue it is -- critical evidence -- in the case. I would no more walk-away from that than I would from critical evidence in any type of case.

(4) Shouldn’t we utilize science rather than perpetuate legal fictions? Legal fictions? The study of heredity and genes is science, not legal fiction. The study of this science brought about DNA testing. Heredity is the transmission of characteristics from parents to offspring and each characteristic that may be transmitted, is conveyed by a gene. Science -- not bigotry -- dictates that it is physically impossible for two Whites to produce an Asian. [NAME OMITTED] has never fathered or acknowledged paternity of any child. [NAME OMITTED] has NEVER been adjudicated to be the father of ANY child. No child has EVER been named by any court or administrative agency as one entitled to the support of [NAME OMITTED].

[NAME OMITTED] is a White man suffering from multiple disabilities. He has been criminally victimized for years by the family court, this woman, and her child of Asian heritage. I reserve my sensitivity and concern for the truly deserving.
____________________________________________________________
The following is what we consider to be the relevant portion of our response.

Turning to your friend’s situation, I do not doubt that he has been a victim of the system. However, I do not think that criminal prosecution of the mother is the answer to the problem. I like the approach taken in Massachusetts, wherein fatherhood is strictly a matter of biology rather than a socio-legal construct. In 1994, the Appeals Court of Massachusetts decided the case of KB. v. D.B. & another. In that case, a DNA test had conclusively established that a man was not the biological father of a child born to his wife and the Court refused to base a duty of support either on public policy considerations or legal fictions. The Court reasoned, “A married man should have no duty to support a child born to his wife during their marriage but fathered by another man, any more than a wife should have a duty to support a child fathered by her husband during their marriage but born of another woman."

In my view, [NAME OMITTED] should be allowed to require DNA Testing of the child and himself and if the test indicates that he is not the father, then he should be relieved of a support obligation and be reimbursed for all support paid thus far.

Race is a legal fiction. South Carolina has wasted too much time arguing over such issues as whether someone is 1/16 black, "separate but equal," and miscegenation. Issues of paternity should be based on scientific DNA evidence, not physical appearance.

Pursuant to the federal "Personal Responsibility and Work Opportunity Reconciliation Act" (PRWORA), the South Carolina Child Support Enforcement Division is developing a quarterly process which will match CSED records of parents who owe past-due support against the customer records of all financial institutions doing business in South Carolina. The information obtained through this data match will be used for locate purposes as well as to locate assets of parents who are delinquent in their child support payments.

In theory, this seems likes a good idea. But, in practice, it sure has some scary ramifications. What's to keep the financial institutions from using this information to their own advantage? And what happens if the financial institutions make a mistake and release inaccurate information which negatively impacts on someone's credit rating or employment advancement? If anyone has ever tried to correct an inaccurate Credit Report, they understand our concerns. There are already laws in place that require those who are in arrears for designated amounts to make payments through wage with-holding. And there are laws in place that require employers to report new hires. So, this is another case of not needing new laws if we would simply enforce the laws already in place.

The Associated Press reported on Friday that former NBA player and College All-American Ralph Sampson was arrested Friday in Atlanta on two felony counts of failing to pay court-ordered child support. It is alleged that Sampson failed to keep up with child support for a daughter in Falmouth, Virginia and that he owes more than $6,000 to that daughter. Sampson is also charged with failing to comply with a 1988 order that he pay $1,500 a month in child support for a daughter in Alexandria, Virginia and that, as of April 30, Sampson owed more than $247,500

Sampson, 44, faces a maximum possible sentence of two years in prison and a fine of $250,000 on each charge if convicted. A federal grand jury in Virginia indicted him on May 4.

According to the AP, “Court documents in the 2003 case showed Sampson was paid $539,060 in 1999 and $134,765 in 2000 by the Sacramento Kings.”

All other issues aside, we wonder how this matter managed to become a federal case. After all, Mr. Sampson is 7 feet 4 inches tall and he has apparently not paid support to one of the children for a period in excess of ten years. Surely, authorities could have found him before now. If it takes ten years to find a guy who is on TV and is 7 feet 4 inches, what hope do regular folks have of collecting their support? And what do Mr. Sampson’s shenanigans do for the Average Joe who finds himself behind on his child support obligations and before a judge?

LESS NEED FOR REFORM IN BERKELEY COUNTY?

On April 23, 2005, we mentioned that the husband of Charleston County School Superintendent Maria Goodloe-Johnson was released from jail after a judge dismissed the bench warrant against him. We then contacted Mr. Johnson’s attorney to determine whether Mr. Johnson was able to have his arrest record expunged. She replied, “It is my understanding that in the civil contempt situations, the defendant is not fingerprinted and, therefore, no permanent criminal record should exist.”

Obviously, things are done differently in Berkeley County than in Charleston County. So the question becomes, “Why can’t Charleston County take the same approach taken in Berkeley County?” The two counties, after all, are in the same Judicial Circuit.

The Post and Courier reports that the South Carolina Attorney General's Office is asking the State Law Enforcement Division to investigate whether former Colleton County Sheriff Allan Beach improperly spent any of the millions of dollars in federal drug seizure funds he received during his four years in office.

To date, no specific evidence of misconduct has been discovered. However, County Council Chairman Steven Murdaugh and Sheriff George Malone last week requested a probe into how the money was spent.

According to the Post and Courier, “a letter sent to Attorney General Henry McMaster asks that he look into ‘numerous and wide-ranging speculations concerning possible financial improprieties’ between Jan. 1, 2000, and Dec. 31, 2004, when Beach was in office.”

This may well be much “ado about nothing.” But, it does raise some interesting points. It makes us wonder why no one has audited the Sheriffs of Charleston and Dorchester County and the Family Courts to determine how they are spending the “Civil Contempt Fines” and the “Prisoner Recreation Funds.” It might also be interesting for Sheriff Nash to explain how he selects the organizations and groups who will benefit from the “voluntary inmate labor” and why he does not apply some of the Prisoner Recreation Fund to helping these “volunteers” pay their fines and arrearages so they can get out of jail.

SOME SUGGESTIONS FOR FAMILY COURT REFORM

We have never suggested that every person who is incarcerated for allegedly violating Family Court Orders is a victim. However, there is no question that every week there are a number of people who are victimized by the system and who should not be incarcerated. And, we suspect that a visit to Family Court on one of the "cattle call" days will yield numerous examples of the flaws in the system as well as victims of the system.

Under our system of Jurisprudence, there are two sides of the Court system. They are the so-called "Courts of Law" and the so-called "Courts of Equity." In England, which provided us with the model for our judicial system, equity jurisdiction is vested, principally, in the High Court of Chancery. This Court is distinct from Courts of Law.

American Courts of Equity are, in some instances, distinct from Courts of Law. In other instances, the same tribunals exercise the jurisdiction both of Courts of Law and Courts of Equity, although their forms of proceeding are different in their two capacities. For example, both the Supreme Court of the United States and the other Federal Courts are vested with general equity powers and act either as Courts of Law or Equity, according to the form of the process and the subject being adjudicated. In some states, South Carolina for example, the Equity Court is a distinct tribunal, having its appropriate judge, or Master-in-Equity.

The jurisdiction of a Court of Equity differs from that of a Court of Law in two essential respects. First, is that the remedies for wrongs or for the enforcement of rights are distinct. Second, only Law Courts utilize juries.

This may all seem to be a little confusing or convoluted, but the basic distinction is that the remedy provided by a Court of Law is an award of monetary damages, whereas, Courts of Equity grant "equitable relief;" that is, Courts of Equity tell a party to either perform, or refrain from performing, some act. For example, a party might seek a Restraining Order in a Court of Equity prohibiting another party from coming onto his property. On the other hand, parties seeking monetary damages--for personal injuries for example--proceed in a Court of Law.

By definition, Family Courts can only grant equitable relief. That means that, because there are no juries, the trial judge has sole discretion to determine the facts without the protections afforded by a jury. More importantly, that means that a person who is indebted to another can be jailed in Family Court for failure to pay that debt. Although this practice has been severely criticized as being in violation of the Constitutional prohibition against imprisonment for debt, Courts have avoided this pitfall by inventing the judicial fiction of Civil Contempt. They simply say that the person has been jailed for willful violation of a valid Court Order rather than for the debt itself; that person can secure his or her release upon coming into compliance with the Court Order. It is said that he or she "has the keys to his (or her) own jail."

The problem is that, because the trial judge has sole discretion to decide the factual issue of willfulness, people can find themselves in jail because they were unlucky enough to trust their ex-spouses to tell the Court that the oldest child had become emancipated, or they were hurt on the job and their Worker's Compensation lawyer did not seek a temporary reduction, or they were fifteenth in line on the day that numbers 1-14 in line were jerks and liars. And sometimes people do not pay court-ordered support because they cannot pay. The reality is that an incarceration can often have nothing to do with a willful act.

Once a person is incarcerated, he or she may not be able to easily raise the money necessary to secure release. And, even if they do have the money, they may be incarcerated before they are given the opportunity to purge themselves of Contempt because they are not given access either to money machines or telephones to call friends. Nor does the Clerk of Court accept credit cards.

So, once a person is deemed to be in Contempt, that person is going to be handcuffed, taken to jail, fingerprinted, photographed, and incarcerated for at least the better part of the day, unless, he--it is almost always "he"--just happens to have the exact amount--preferably in small bills--of money to pay the arrearage along with whatever amount of fine or surcharge the trial judge may impose. And there are neither guidelines on what the judge can impose and the amount of the "fine" can be up to $1500, even if the "arrearage" is minimal.

The State of Virginia recently funded a judicial evaluation program that will begin in July of this year. By Virginia Supreme Court Order, all Trial Court Judges will be given a confidential analysis of their judicial performance at regular intervals. Appellate Judges will be included in future evaluations.

According to the Judicial Performance Evaluation Task Force Report, Judges will be judged "on the manner in which a judge administers justice, not on the content of those decisions.”

The task force was chaired by Virginia Supreme Court Justice Barbara Milano Keenan, who in 2003 faced opposition to her re-election by legislators because of her 1995 dissent in a case in which a child was removed from her mother's custody because of the mother's sexual orientation.

"The judicial performance evaluation program will serve a valuable role in preserving the independence of the judiciary," said Keenan. "Because the judges will not be subject to unfair criticism attacking the content of one or two of their cases, but will be subject to an overall review of their performance as required by the canons of judicial conduct."

Initially, only jurors, and lawyers who regularly have seen the judge in action, will be asked to complete written evaluations that use criteria that mirror aspects of the Virginia Canons of Judicial Conduct. Judges will also evaluate themselves before receiving the results.

Results will be tabulated by an independent contractor and the original forms destroyed. Along with written comments, the results will be sent to a "facilitator [retired] judge" and to the judge being evaluated. However, in the year preceding an election, the results will also be shared by designated members of the state legislature.

At present, Virginia and South Carolina are the only states in which the Legislature re-elects judges. So, there does not seem to be any reason why the Virginia system could not be adopted in South Carolina.

ANOTHER UNACCOUNTABLE SLUSH FUND PROGRAM?

The Post and Courier reports that the former Colleton County Sheriff and the present Colleton County Sheriff are arguing over how drug forfeiture money should be spent.

The new sheriff does not want to honor the former sheriff's commitment to use the money for jail improvements.

We smell a law suit coming on. But, we also smell an increase in charges to prisoners and their families in the way of higher phone charges, room and board charges, processing fees, increased fees in family court, and so forth.

Our fear of fee increases in Colleton County is based on the actions of Sheriff Ray Nash of Dorchester County, who continues to be the master of slush fund creation and management. He advertises his private business on the Dorchester County Website and uses the money from the prisoner toll phone charges to pay the salaries of friends of his who are not county employees, but who are involved in county business and drive county vehicles. In the past, he has used funds received for housing federal prisoners in the county-owned facility to purchase hundreds of thousands of dollars worth of goods and services that the county council refused to include in the budget. And he charges detainees what is described as a "processing fee" for processing them through the system; this fee is charged to everyone regardless of their guilt or innocence and is not authorized by either statute or ordinance.

Our position continues to be this--sheriffs should not be allowed to set up some sort of off-the-grid taxation and procurement system to avoid the budget constraints placed upon them by the duly-elected legislative body. This interferes with the separation of powers doctrine and obliterates the system of checks and balances set forth in the Constitution.

The details are a little sketchy, but THE STATE reported that longtime Solicitor Donnie Meyers was recently arrested in Asheville, North Carolina and charged "with impaired driving and transporting an open container of alcohol." At the time of the arrest he was operating his county-issued car.

The details of the charges are not particularly interesting to us, because Mr. Meyers may well be innocent of those charges. What is somewhat interesting to us is that he failed to report the arrest to county officials because he didn't "think it was any of their business," and that while he admitted he had an open can of Budweiser beer in his Lincoln when he was stopped, he said "it wasn't his drink and didn't know who put it there." What is very interesting to us are the details of Mr. Myers processing and release.

According to THE STATE after he was stopped and failed a portable Breathalyzer test, but before being transferred to the police station, Mr. Meyers was able to telephone a "good friend of [his]" to meet him at the station. "He declined to name the friend, whom he identified only as a public official."

At the police station Mr. Meyers was administered another Breathalyzer test that he also failed. He was then, arrested, photographed, and afforded a hearing before a Magistrate. He was released upon a "written promise" to return for his court hearing. Meyers' friend then drove him back to his hotel.

We know a number of people who have been arrested in and sent to jail for alleged infractions of family court orders. But, we have never heard of anyone of them being allowed to telephone a court official to meet them at the jail before the transport. And getting processed through Charleston County Jail can take over 30 hours and involves much more than a promise to return at some future date. So it seems to us that either Solicitor Myers requested and received special treatment--for which he should be sanctioned--or that Buncombe County, NC has enacted an efficient and cost-saving prisoner processing system that could serve as model for all the counties in South Carolina, including Charleston

According to an article in Sunday’s Post and Courier, Congressional lawmakers are considering raiding a victims' assistance fund that helps pay for rape and crisis centers in South Carolina and other states.

The fund was set up in 1984. Federal criminals are charged fees and that money is distributed to rape and abuse programs nationwide. In recent years, there have been shortfalls in funding and the money collected had to be subsidized from the general fund. However, a $214 million surplus in collections last year for the federal Crime Victims Fund has some legislators seeking to utilize the fund to help pay for shortfalls in the general budget.

We wonder if the South Carolina Legislature will eventually attempt to use fines from the proposed Domestic Violence Bill as a revenue raising/general budget balancing mechanism. We hope that this will not be the case, but statewide trends do not provide us confidence that South Carolina can resist temptation.

Last month a Maine man received a letter from the Attorney General of Maine seeking $11,450 in back child support. He already had had his driver’s license revoked for non-payment. Unbelievably, as reported here, state-ordered DNA tests had established the man was not the father of the child in question and, because of that determination, he was told that he had no rights of visitation with a child whom he thought he had fathered.

“The wheels of justice turn slowly,” one might argue. The problem is, however, that a trial judge ruled three years ago that Geoffrey Fisher no longer had to pay child support for a child that was not his. But despite the ruling, the State of Maine has apparently taken no steps to either identify the biological father or to collect support from him.

Well, at least Mr. Fisher received the opportunity to use DNA tests results to disprove paternity. One of our readers provided details for a South Carolina case wherein, because the way South Carolina Law is written and because of the statutory presumption of paternity, a man was ordered to pay support for the child of his ex-wife without ever getting the opportunity to litigate the issue of paternity using scientific evidence. This was a case wherein a legal fiction was allowed to trump the use of scientific evidence.