Re: Keeping Our Children Safe

1

Hey, nothing turns my knob quite like a symbolic gesture.


Posted by: New York Legislator | Link to this comment | 05-30-09 7:24 AM
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OK, this seems like a good thread to get this story off my chest:

One of Iris' classmates is the daughter of a single mother. We don't know the precise backstory, but the mother never intended to co-parent with the father, but it was all intentional (apparently the father is cool with this, and has never been involved, to everyone's satisfaction). The mother became involved with some guy, maybe-dating, but mostly just friends. About when daughter turned 4, he dropped out.

Then came his suit for equal parenting rights.

Apparently, he studied the law enough to know that, in PA, there's something like commonlaw parenting, where if you have a parent-like relationship with a child for 4 years, you gain legal rights as a parent. And so he was plotting this all along: taking videos of daughter when she was ~2 and encouraging her to call him "Daddy" on tape, logging onto mother's email and sending notes to himself about how daughter was missing him and calling him "Daddy," etc. Now he's enlisted friends to basically lie for him: "Oh, I drove down mother's street every morning, and his car was always parked there;" "Oh, I'm a real estate agent, and they were totally looking at million dollar houses together;" "Oh, I'm her insane, religious mother, and I think that it's so important for my granddaughter to have a father in her life that I will perjure myself in order to further his goals."

Can you fucking believe this shit? And the hearings have begun, and are not going well. It's not easy to prove that something didn't happen on some given day 3 years ago. Oh, and daughter is not allowed to voice an opinion. In PA (and maybe elsewhere), children below the age of 13 have no standing whatsoever to speak for themselves in court.

Totally fucking insane. AB & I are beside ourselves. She has a website that I'd love to link to, but I think she'd notice an Unfoggedlanche.

And now I have to go install some trim. I expect you all to have this resolved when I check back in.


Posted by: JRoth | Link to this comment | 05-30-09 7:39 AM
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I'm gobsmacked.


Posted by: OFE | Link to this comment | 05-30-09 7:46 AM
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2: Wow JRoth. My only instinct is that she ought to get a private investigator to track this guy for a bit, dig up dirt, muddy him up. And if you could prove the unauthorized access to Mom's email, prosecute the bastard for wire fraud.


Posted by: Di Kotimy | Link to this comment | 05-30-09 8:06 AM
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Can you fucking believe this shit?

Yes. People are crazy.

What a bizarre inversion of the "deadbeat dad" problem. If he didn't actually live in the household (in a common-law marriage or whatever), and he didn't ever provide financial support, and he's not the biological father of the child...yeah, that's crazy.

3: Creepy. And it's very difficult to argue against these new regimes of surveillance because ... 'Don't you care about the children?'


Posted by: Mary Catherine | Link to this comment | 05-30-09 8:09 AM
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Posted by: | Link to this comment | 05-30-09 8:10 AM
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2: Jesus. Has the guy given any reasons for why he's doing this? I mean, it's not hard to make your own kid if you really, really want one...


Posted by: Cala | Link to this comment | 05-30-09 8:14 AM
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I was going to ask the same as 7.


Posted by: Minivet | Link to this comment | 05-30-09 8:16 AM
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I mean, it's not hard to make your own kid if you really, really want one...

I beg to differ.


Posted by: Di Kotimy | Link to this comment | 05-30-09 8:22 AM
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And so he was plotting this all along

For several years? This is pretty unnerving. Kind of Humberty or something.


Posted by: oudemia | Link to this comment | 05-30-09 8:36 AM
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Is there any chance the biological father could be persuaded to step up and object on some grounds or other? I recognise that it would be totally spurious, but this thing seems to be taking place in an alternate universe already, and if PA law is so reactionary that it refuses to take cognisance of the child's views it seems it might be possible to game it that way.


Posted by: OFE | Link to this comment | 05-30-09 8:36 AM
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9: For a guy who isn't picky about actually having a relationship with the mother to get the kid? Not that hard.


Posted by: Cala | Link to this comment | 05-30-09 8:39 AM
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12: The mother still has to be willing and able.


Posted by: Di Kotimy | Link to this comment | 05-30-09 8:43 AM
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I know some of the people involved in this case, so until JRoth returns I can answer a few of the questions.

1. On the grandparents: The mother is raising trying to raise the child in a fully secular environment (no church attendance, no religious school). The boyfriend supposedly secured the grandparents' favorable testimony by promising to see to it that the child got religion (among other things, he pledged to send her to a religious school if possible; the conservative grandparents hate that their granddaughter goes to a Waldorf school, of course).

2. The boyfriend did provide financial assistance to the mother, in the form of regular "gifts," for an extended period (well over a year, I think).

3. The biological father has recently gotten involved in the proceedings, but I don't know in what capacity.


Posted by: bizzah | Link to this comment | 05-30-09 9:01 AM
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14.1: man, that's fucked up.


Posted by: Brodysattva | Link to this comment | 05-30-09 9:17 AM
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God. Maybe cross of grandma can focus on this. "So you want your granddaughter to get a religious upbringing right? So that she can learn God's commands, right? Like thou shalt not bear false witness? Tell me, are you bearing false witness here?"


Posted by: Di Kotimy | Link to this comment | 05-30-09 9:25 AM
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16: Religious nuts never seem to think it counts if you're bearing false witness against the "tide of secularity". Either that or they just don't remember/haven't read that one. There's a good one about not coveting what's your neighbors a little further on, which would also apply...


Posted by: Jesurgislac | Link to this comment | 05-30-09 10:04 AM
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11: On the run, but yes. Not sure how much it will help, but he has showed up, and it seems to be good.


Posted by: JRoth | Link to this comment | 05-30-09 10:05 AM
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if PA law is so reactionary that it refuses to take cognisance of the child's views

It's more sensible than that, if not ideal. I think the rule JRoth mentioned concerns the age at which a child's own judgment about what's in their interest has legal weight. Children under thirteen can't offer that kind of testimony, but they can still be questioned about how they understand their relationship to the various parties (e.g., does she consider the boyfriend to be a friend of the family, or part of the family proper). Children below age five are assumed not to understand the relevant distinctions, and so they can't be questioned at all. In this case, the child doesn't yet meet the younger cut-off.


Posted by: bizzah | Link to this comment | 05-30-09 10:11 AM
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That's really, really weird. The 'common-law parenting' concept is bizarre, and seems really punitive toward single parents (that is, I don't know whether having two parents in the picture absolutely forecloses this sort of suit, but even if it doesn't do so as a matter of law, I'm sure it does as a matter of fact.)

Giant structures of deception are hard to keep up in court, though -- if the facts are as stated, I'd expect this will collapse at some point. Unless the judge is biased or loony, which happens.


Posted by: LizardBreath | Link to this comment | 05-30-09 11:36 AM
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The lying grandparents are the really bad bit, though. That'll be tough to get past.


Posted by: LizardBreath | Link to this comment | 05-30-09 11:38 AM
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Yeah. The grandparents make it rough. What judge wants to believe mom and dad would lie to screw over their own daughter.


Posted by: di kotimy | Link to this comment | 05-30-09 11:46 AM
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Although I'd almost wonder if that wouldn't be a red flag that something fishy was going on. "I love my daughter and my granddaughter, but because I love them both I have to testify that my daughter's an unfit mother and should lose her parental rights" is rough, but psychologically plausible. "I love my daughter and my granddaughter, and think my daughter is an acceptable parent. But in the interests of abstract fairness, I am compelled to testify that Joe Random here is in a defacto parenting relationship with my granddaughter which should be enforced against my daughter's wishes," is bizarre.

The total lack of family loyalty, without any incentive like fear for the granddaughter's safety to explain it, seems weird enough to impact credibility. At least if I were the judge.


Posted by: LizardBreath | Link to this comment | 05-30-09 11:52 AM
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I too find the idea of common law parenting bizarre and sort of unbelievable. After a little googling, I am wondering if his argument is actually that he was in a common law marriage with the mother, and therefore has parental rights with respect to the daughter. (Apparently, PA abolished common law marriages created after 1/1/05, which could explain the 4-year thing.)

To prove you had a common law marriage, you have to show that you held yourself out as a married couple. I can see how video tapes of the kid calling you "daddy" may be relevant, but more relevant would be things like tax returns, whether you actually lived together, etc.

Also, if that is the argument, I would think that the biological father's claim would trump his. I don't think step parents get custody rights (but IANAfamilyL).


Posted by: tulip | Link to this comment | 05-30-09 12:10 PM
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The 'common-law parenting' concept is bizarre, and seems really punitive toward single parent

I'm seeing it as protective towards unmarried parents' rights, if I'm understanding it at all correctly.

Wackass grandparents.


Posted by: Cala | Link to this comment | 05-30-09 12:16 PM
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I had a notion that I knew someone who was basically living with his ex-step father and was wracking my poor brain to uncover the details when I realized that I was thinking of Paul Rudd's character in Clueless.


Posted by: oudemia | Link to this comment | 05-30-09 12:17 PM
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I too find the idea of common law parenting bizarre and sort of unbelievable.

This too. If JRoth or bizzah is around, I'd love to know if they can remember any legalese term for what's going on, to make googling about it easier -- common-law parenting clearly isn't the right word, but I don't know what would be.


Posted by: LizardBreath | Link to this comment | 05-30-09 12:17 PM
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25: I'm seeing it as protective towards unmarried parents' rights, if I'm understanding it at all correctly.

As stated, and I'm having a hard time believing it, it's about protecting the rights of biologically unrelated adults to continue parenting relationships with children to whom they are unrelated and have not legally adopted. Which, if true, WTF PA?


Posted by: LizardBreath | Link to this comment | 05-30-09 12:20 PM
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I think that in principle the idea of "common-law parent" is a terrific one (though I know absolutely nothing about the particulars of PA law or this case). Serving the role of parent should come with some sort of sweat equity. If you served in the role of a parent for 10 years, say, and then the relationship breaks up, then the loss of any right to a relationship with someone who you have come to think of as "your kid" seems cruel.


Posted by: Walt Someguy | Link to this comment | 05-30-09 12:21 PM
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Scenario: shiv and I are not married, but in a serious co-habiting relationship, and I have a small child who is not related to him. This relationship goes on for years; the small curly-haired tot thinks of shiv as Daddy, and shiv helps rear the child. I die tragically. My parents, who haven't spoken to me in years onnaccounta the out-of-wedlock tot, want to get custody. shiv wants to care for the child.

Scenario 2: Grandmother is in charge of small children, but hasn't formally adopted them. Kids live with her for years. Biological parent comes back and demands custody.

This of course has nothing to do with JRoth's friend Scenario WTFTheHell, but I could see a basis for recognizing a non-biological, non-adoptee parent-child relationship.


Posted by: Cala | Link to this comment | 05-30-09 12:25 PM
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30: Thing is, though, it's only a problem if you can't work out a consensual way of continuing the relationship with the kid's bio-parent. If you can't manage that, do you think the kid's really better off being the subject of a court battle? A kid can have as many people in their lives as love them and can work out a mutually agreeable relationship, and that's wonderful. Spreading out decisionmaking authority over the kid among too many people who hate each other, though, is a mess.


Posted by: LizardBreath | Link to this comment | 05-30-09 12:26 PM
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30 above s/b 29. To 30, those are both sympathetic situations, but I think the odds of sympathetic bio-parents getting screwed around are greater than of sympathetic non-parents in parenting kinda relationships.


Posted by: LizardBreath | Link to this comment | 05-30-09 12:29 PM
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30: Pennsylvania does have a statute dealing with grandparents' custody rights. Basically, if they have taken care of a child with the parents' permission for a year, they have a right to petition for custody and/or visitation. Then, the best interest of the child standard applies.


Posted by: tulip | Link to this comment | 05-30-09 12:33 PM
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I had a notion that I knew someone who was basically living with his ex-step father and was wracking my poor brain to uncover the details when I realized that I was thinking of Paul Rudd's character in Clueless.

Not quite the same, but I was best man at my stepfather's wedding some years after he divorced my mother.


Posted by: Josh | Link to this comment | 05-30-09 12:34 PM
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Also, from what I can tell if you are in a common law marriage, you do get parental rights (and responsibilities), but not against biological parents.

If you're just co-habiting, I think you're out of luck. But it's not like grandparents inherit the kid or anything. If a child has no biological or legal parents, I think a court would consider the best interest of the child and not just give custody to the closest living relative.


Posted by: tulip | Link to this comment | 05-30-09 12:43 PM
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LB: As stated, and I'm having a hard time believing it, it's about protecting the rights of biologically unrelated adults to continue parenting relationships with children to whom they are unrelated and have not legally adopted. Which, if true, WTF PA?

A same-sex partner is frequently unable to apply for co-parent adoption of their partner's child and same-sex co-parents are rarely biologically-related to their partner's child.

And it's only relatively recently that a same-sex couple would be able to show they were legally civil-unioned or married.

If a same-sex couple break up, even though the non-birth mother has been the child's parent since the child's birth, the non-birth mother can quite literally have zero right to access or visitation.

I think you're being pretty damn heterosexist in just not seeing any validity at all to an ex-partner being the parent of a child they're not biologically related to.

That said, I'm really highly dubious about a guy who has apparently never had that kind of relationship with either the kid or the mom, just picking the exact time to get to have the kid alone with himself, when the kid is too young to be questioned by the court.


Posted by: Jesurgislac | Link to this comment | 05-30-09 12:55 PM
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If you can't manage that, do you think the kid's really better off being the subject of a court battle?

Hard to say. Is it better if the court's only option can't take into account the person closest to them? I'm just irresponsibly speculating about the likely reason for the law; it seemed to be aim at non-traditional family arrangements.

In any case, I reiterate my stated position of WTF in this case.


Posted by: Cala | Link to this comment | 05-30-09 12:55 PM
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when I realized that I was thinking of Paul Rudd's character in Clueless.

Dude.

Also, 14 is completely freaking me out.


Posted by: JRoth | Link to this comment | 05-30-09 1:32 PM
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27: I got it secondhand from AB, so "commonlaw parent" is how I heard it.

The website uses "in loco parentis," but it's not clear to me whether that's what he's claiming to have had de facto, or is seeking to create de jure.


Posted by: JRoth | Link to this comment | 05-30-09 1:35 PM
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31: Well exactly. The first stage if he wins would be supervised visits: mother takes daughter to some sort of facility, leaves. Humbert comes in, with a social worker present at all times, and interacts with daughter for X hours. This happens 2-3 times a week, for some length of time.

In what world does this make sense if the supervised adult has no biological relationship to the child?


Posted by: JRoth | Link to this comment | 05-30-09 1:39 PM
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I think you're being pretty damn heterosexist in just not seeing any validity at all to an ex-partner being the parent of a child they're not biologically related to.

Sorry. I do think that a non-biologically related parent in a same sex couple who's been in a parenting relationship since birth with a kid should be on the same footing as an adoptive parent, but didn't spell that out.

This is the sort of thing that will be much easier to deal with once marriage equality gets straightened out -- the distinction between Jane Random Girlfriend and your bio-mother's spouse at the time of your birth is an obvious one, but we can't use that yet.


Posted by: LizardBreath | Link to this comment | 05-30-09 1:45 PM
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Also, 14 is completely freaking me out.

You don't know who bizzah is? That would be weird.


Posted by: LizardBreath | Link to this comment | 05-30-09 1:47 PM
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42: or fit into an oddly recurring pattern.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 1:49 PM
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43: ? I don't remember this.


Posted by: LizardBreath | Link to this comment | 05-30-09 1:51 PM
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For instance when neighbors of the Ruprechts popped up, or indeed some acquaintances of your own.


Posted by: nosflow | Link to this comment | 05-30-09 1:57 PM
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42: No. And yes.


Posted by: JRoth | Link to this comment | 05-30-09 1:59 PM
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41: Yes, but the law takes no notice of your thinking that.

And I would guess - I haven't looked up the background to your question - that the response to your question WTF PA? is that it's about protecting the rights of biologically unrelated adults to continue parenting relationships with children to whom they are unrelated and have not legally adopted - because otherwise, the breakup of a same-sex relationship means the child(ren) of the relationship lose their other mother as well as their birth mother.

The notion that biology is destiny, that non-biological parenting relationships aren't real or should be dependent on the goodwill of the biological parent, does not sit right with me, and that's the reason.


Posted by: Jesurgislac | Link to this comment | 05-30-09 2:01 PM
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46: maybe bizzah is Iris?


Posted by: Sifu Tweety | Link to this comment | 05-30-09 2:04 PM
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I thought of that, but she was away from the computer when 19 was written.

Also, sadly, her orthography is Yglesiesque.


Posted by: JRoth | Link to this comment | 05-30-09 2:13 PM
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Here is a link to a 2005 article discussing the law of "de facto" parenting in different US states. Some recognize the doctrine, some don't. As a number of folks have suggested, the impetus for the rule seems to have been cases involving same-sex parents in committed relationships who split up. From what I can tell from this article, the cases all seem to establish a number of requirements, such as the intent of the couple w/r/t the child, the fact that the couple lived together, the fact that the non-biological partner provided financial support, etc., in order to establish de facto parenting rights.

It looks like in Pennsylvania a de facto parent can obtain visitation rights, but not custody. And, somewhat confusingly, Pennsylvania seems to refer to the doctrine as "in loco parentis"."

It's hard to see that one could devise a rule that wouldn't have tragic consequences in individual cases. It's easy to imagine a sympathetic story about a non-biological, unmarried partner who becomes heavily emotionally and financially invested in being a parent (and has a kid who views him/her as a parent), and then has that relationship cruelly taken away by a capricious biological parent. That sympathetic story might be even more likely than (what seems to be) the situation here, where an unmarried partner is using the kid as a way to cruelly manipulate the biological parent.


Posted by: Robert Halford | Link to this comment | 05-30-09 2:14 PM
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The total lack of family loyalty, without any incentive like fear for the granddaughter's safety to explain it, seems weird enough to impact credibility. At least if I were the judge.

One element of the story that hasn't been mentioned is that the whole mess seems to have started after the boyfriend and the mother had a huge row over the latter's decisions not to vaccinate the daughter and to raise her on a strict vegan diet. Having this as part of the fact pattern gives the boyfriend and the grandparents the cover of concern for the daughter's safety.


Posted by: bizzah | Link to this comment | 05-30-09 2:21 PM
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Yeah, just learned about the vaccine thing, which we're pretty annoyed about (as AB said, she's doing it on the backs of our children).

The vegan thing is kind of insulting, since daughter eats more vegetables in a day than Iris does in a year* - she walks around the house popping grape tomatoes in her mouth. Clearly, the child is on the edge of malnutrition.

* for LB: this is a slight exaggeration


Posted by: JRoth | Link to this comment | 05-30-09 2:26 PM
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The fact just mentioned is also part of a larger subtext running through the case, which is that the boyfriend and mother are easily stereotyped as, respectively, successful businessman and New Ager, which no doubt has colored the judge's opinion as to who's the more credible witness and the fitter care-giver.

I'm certain JRoth and I don't know each other IRL. The small-world hypothesis rises again!


Posted by: bizzah | Link to this comment | 05-30-09 2:29 PM
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53.last puts me at ease.

WRT 53.1, the funny thing is that mother is not at all spacey or otherwise presenting as New Agey. But the vaccine thing, plus Waldorf (which, much as I love it, is unavoidably New Agey), would make you think that. I first met her in the neighborhood, long before Waldorf, and my impression was that she was a bit hard-nosed and pragmatic*. Which may not be right either, but is miles away from the easy stereotype.

Ugh.

* Probably a natural presentation for an intentionally-single mother


Posted by: JRoth | Link to this comment | 05-30-09 2:36 PM
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PS - bizzah, if we ever do end up meeting IRL, you'll have the advantage of me. So do me a favor and mention that you've always already known who I am. Or ask who wants to sex Mutumbo. Depending on circumstance, of course.


Posted by: JRoth | Link to this comment | 05-30-09 2:37 PM
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Here, at least, not getting vaccines has become a trendy and class-based thing to do, not just for new agey flakes. I know of two wealthy couples, (one same sex) who are not doing vaccines. Their theory really does seem to be that they can insulate their kids from disease by only eating organic farmers market produce and only seeing the right kind of people, so why take the risk of getting the vaccine -- that's something for middle class folks.

Not only is this the worst kind of socially-irresponsible free riding, but it basically keeps the kids out of public spaces. These are the same kind of folks who are horrified that I'd take my kid to the local playground.

(Not that any of this has to do w/JRoth or Bizzah's friend).


Posted by: Robert Halford | Link to this comment | 05-30-09 2:52 PM
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56: that's totally true and gaaaaaaah it's so irritating.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 2:55 PM
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It's hard to see that one could devise a rule that wouldn't have tragic consequences in individual cases.

But probably not usually a problem once you get to court given that one of the most salient characteristics of judges is empathy.


Posted by: JP Stormcrow | Link to this comment | 05-30-09 2:57 PM
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This thread gets really interesting when the successful businessman ex-friend (ex-boyfriend?) shows up.


Posted by: Mary Catherine | Link to this comment | 05-30-09 3:08 PM
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Given his MO, he might well have been commenting here for years, laying down a paper trail demonstrating that the habitués of this venue are unfit to consider questions of justice. In which case suspicion naturally falls upon: Shearer!


Posted by: bizzah | Link to this comment | 05-30-09 3:14 PM
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55:
Will do.


Posted by: | Link to this comment | 05-30-09 3:14 PM
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61 was me, obviously.


Posted by: bizzah | Link to this comment | 05-30-09 3:15 PM
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53, 54: Pittsburgh's East End private-school set is indeed a small world. But, I'm fairly certain I don't know anybody mentioned and I don't know any of the Pittsburgh commenters IRL. I don't get out much.


Posted by: Moby Hick | Link to this comment | 05-30-09 3:41 PM
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"There's a biblical precedent -- and a solution! I've got it! Cut the kid in half!"


Posted by: Hamilton-Lovecraft | Link to this comment | 05-30-09 3:42 PM
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60 is great.


Posted by: JRoth | Link to this comment | 05-30-09 3:45 PM
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Late to the thread, but feel I must: I was a Good Humor man. Officially, even, as in a specialist in selling Good Humor brand products. Had the vintage pickup-style truck, not the step-van, with the little jingly bells instead of the loud canned music. Made more money those three summers than in my first four grown-up jobs put together.

Also, this law amuses me inasmuch as ice-cream-truck-guys in NYC are widely known to be drug dealers. Those trucks driving around Bed-Stuy at 1:00 am playing "Pop Goes the Weasel"? Not actually selling many popsicles. But at least also not abusing children.


Posted by: adamhenne | Link to this comment | 05-30-09 3:50 PM
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Do Good Humor men work on commission?


Posted by: nosflow | Link to this comment | 05-30-09 3:51 PM
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ice-cream-truck-guys in NYC everywhere are widely known to be drug dealers

Except this guy. He sells torment.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 3:59 PM
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It's also a very competitive business.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 4:02 PM
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Which is, incidentally, a repeating pattern.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 4:03 PM
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69: I remember that story. A few bad apples ruin tire-slashing for everybody.


Posted by: Moby Hick | Link to this comment | 05-30-09 4:10 PM
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The story in 69, in an expanded version including an earlier anecdote.


Posted by: Cryptic nedx | Link to this comment | 05-30-09 4:14 PM
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'nedx' Did you upgrade to a new version of you?


Posted by: Moby Hick | Link to this comment | 05-30-09 4:18 PM
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73: No, he just stopped using his slave name. Which comes up in the HTML as "nbsp".

Let's not forget the Tactical Ice Cream Unit. FrontPage magazine is scared of it!


Posted by: Wrongshore | Link to this comment | 05-30-09 4:21 PM
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Apparently the era of the mp3 has passed ice cream trucks by entirely, at least in LA.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 4:22 PM
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"Ice cream trucks must play ice cream music," his friend agrees. "That is how the world works."

Damn straight.


Posted by: nosflow | Link to this comment | 05-30-09 4:25 PM
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52: Yeah, just learned about the vaccine thing, which we're pretty annoyed about (as AB said, she's doing it on the backs of our children).

This is why I generally think it wise to avoid making a call about these kinds of cases; not only do people lie like rugs in these things, but the bad parent may the one making the case as a preemptive strike. Meanwhile, the grandparents may really believe they have the kid's best interests at heart, whether they actually do or not.

OTOH, I remember hearing about a similar case where the step-parent (legal or otherwise, I don't remember) tried to 'save' the child from the bio-parents Unchristian ways. The step-parent got all kinds of support from local churches &c. That one was pretty ugly if I remember correctly (it's been a decade or so).

Anyways, the court should have appointed a guardian ad litem (or PA equivalent) to represent the child, should they not? That person should be able to clear it up, if anyone is on the stick here.

11: and if PA law is so reactionary that it refuses to take cognisance of the child's views it seems it might be possible to game it that way.

Most (US) state law concerning kids is written that way. The children are treated as (valuable) property of the parents that cannot be subjected to cruelty, &c. The courts cannot interfere unless there is something like violence involved, the fear (on the part of the religious) is that the state will try and reprogram the kids into something else. I guess that the UK, having a state church, doesn't have that particular problem (instead, you've got a state church). In practice the guardian ad litem will usually ask a given child what she/he wants and pay some attention to it, although I think that's generally considered out of bounds for legal purposes.

max
['The oddities of family law.']


Posted by: max | Link to this comment | 05-30-09 4:28 PM
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Nazzareno Didiano update:
"Allegheny County Common Pleas Judge Randal B. Todd issued a bench warrant for Didiano on May 7 for violating his bond by failing to adhere to a no-contact order with the competitor, Kathleen Murphy.

Defiance police said they received a tip from the Allegheny County Sheriff's Office that Didiano was in town, and arrested him. "

"Defiance Police."
"Yeah, this is the Allegheny County Sheriff's Office. We just got a tip that Didiano's crossed state lines and he's in your jurisdiction. You can help us bring this guy in once and for all."
"The Bad Humor Man himself...if we can nab him, that'll be a feather in all our caps. I owe you one."


Posted by: Cryptic nedx | Link to this comment | 05-30-09 4:28 PM
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This article tantalizingly, but presumably incorrectly, implies that the reason people sold drugs from ice cream trucks is that it was perfectly legal.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 4:29 PM
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Back in 2002 when he was a cement contractor, Didiano made news as a case study for the state police's overly zealous enforcement of permit violations.


Posted by: Cryptic nedx | Link to this comment | 05-30-09 4:31 PM
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80: so that's what turned him to a life of ice crime.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 4:33 PM
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No, the professionals who can be relied on, above all others, not to prey on children not to have a conviction for a sex offense, are Good Humor men. Registered sex offenders can't sell ice cream from trucks. They can do anything else, but not sell ice cream.

Yeah, what that's about is that most people (which includes most legislators) think the primary problem with sex offenses is people jumping out of bushes and/or carrying candy. So, obviously, running an ice cream truck is out. Of course, then the logic is obvious: if you're banning them from ice cream trucks, then they must be banned from running hot dog stands, working in carnivals, in stage shows, doctor's offices and so on.

I'm sure the NY lege will notice this soon enough and correct the omission.

66: Also, this law amuses me inasmuch as ice-cream-truck-guys in NYC are widely known to be drug dealers. Those trucks driving around Bed-Stuy at 1:00 am playing "Pop Goes the Weasel"? Not actually selling many popsicles.

The guys working on ice cream trucks can't win:

Convicted drug dealers could join rapists and other sex offenders on the list of criminals forced to register with the state if a bill sponsored by a Cape Cod lawmaker gains support on Beacon Hill. State Rep. Demetrius Atsalis, D-Hyannis, has filed legislation seeking to create a drug offender registry, similar to the state's sex offender listings, to help identify and track convicted drug dealers throughout the state.
The proposed registry, which would include all convictions for distribution, trafficking or possession of drugs with intent to distribute, is intended to alert residents to drug dealers in their community, while providing police with a useful tool to combat drug use and drug-related violence, Atsalis said yesterday.[...]
Such registries -- Minnesota, Tennessee and several other states have launched methamphetamine databases -- often stigmatize reformed drug dealers, making it more difficult for them to find employment and housing as they look to rehabilitate, said Ann Lambert, legislative counsel to the Massachusetts branch of the American Civil Liberties Union.

max
['That should go well.']


Posted by: max | Link to this comment | 05-30-09 4:41 PM
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79: It's fun to read the original council motion that started the whole thing:

The ice cream truck business has changed significantly from 1930 to 1950 to the present time when the absence of adequate home refrigeration made ice cream unavailable to many children.

The innovation this time, sadly, was not in banning the sale of drugs (or in refrigerating ice cream in the safety of home), but of seizing trucks:

THEREFORE MOVE that the City Attorney be requested to prepare and present an ordinance which would permit the confiscation of any ice cream truck which is engaged in unlawful sale of unpermitted materials such as sale of replica toy guns to minors, or sale of drugs or other illicit materials, or is otherwise found to be the source of nuisance in a community.

At least it starts with a nice stroll down memory lane.


Posted by: Wrongshore | Link to this comment | 05-30-09 4:41 PM
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The proposed registry, which would include all convictions for distribution, trafficking or possession of drugs with intent to distribute, is intended to alert residents to drug dealers in their community, while providing police with a useful tool to combat drug use and drug-related violence, Atsalis said yesterday.[...]

That would actually be super handy. None of this friend-of-a-friend, oh I know a guy business. Just check the database and knock on their door, cash in hand.

I suppose you'd want ratings in the database, though. Kind of a Yelp thing.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 4:44 PM
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It's ridiculous to ban sex offenders from becoming licensed drug dealers.What more logical job is there for them?


Posted by: Cryptic nedx | Link to this comment | 05-30-09 4:55 PM
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The notion that biology is destiny, that non-biological parenting relationships aren't real or should be dependent on the goodwill of the biological parent, does not sit right with me, and that's the reason.

As an ad hoc solution to dealing with children of same sex couples after breakups, the de facto parenting concept is probably the best that can be done until the marriage laws get fixed. I'm really uncomfortable, though, with expanding it past that fact pattern, and once we've got same sex marriage equality, I'd think it should go away again, in favor of treating children born into a same-sex marriage as having an equal legal relationship with both their parents.

The situation Iris's classmate's mother is in is a perfect example -- she's in danger of losing control over her child's upbringing because she's a hippie. The mendacious boyfriend is freakish -- I'm sure that wouldn't happen often -- but the implication of the doctrine is that any set of grandparents who can convince a judge that their kids are flaky can jerk them around through the courts eternally. This is not the sort of determination the courts are good at, and they shouldn't be put in a position where it's conventional for it to happen.


Posted by: LizardBreath | Link to this comment | 05-30-09 5:03 PM
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The courts cannot interfere unless there is something like violence involved, the fear (on the part of the religious) is that the state will try and reprogram the kids into something else.

Yes, if it weren't for those religious crazies, the state could take all minors into its custody and raise the children in state-run secular humanist orphanages. That would solve all these troublesome (and annoyingly complex) custody problems.


Posted by: Mary Catherine | Link to this comment | 05-30-09 5:07 PM
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LB, so you would advocate the abolition of Child Protective Services?


Posted by: Walt Someguy | Link to this comment | 05-30-09 5:20 PM
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Sarcasm is the protest of the weak, Mary Catherine. If you think that religious grandparents should be able to take their grandchildren away from their insufficiently observant children, just say so.


Posted by: Wrongshore | Link to this comment | 05-30-09 5:20 PM
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Clearly, that's the only logical implication of what I said.

In other words, no,


Posted by: LizardBreath | Link to this comment | 05-30-09 5:21 PM
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90 to 88.


Posted by: LizardBreath | Link to this comment | 05-30-09 5:21 PM
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Not to get all Shearer, but why not? If your criterion that courts shouldn't be put in that position, how does CPS not put them in exactly that position? The world is full of sad stories of CPS coming in and pushing around women for being hippies.


Posted by: Walt Someguy | Link to this comment | 05-30-09 5:27 PM
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The sex offender thing really bothers me, because it's not as if all "sex offenders" are terrible predators.

There was a story on the radio here about a guy married to a woman who had sex in the woods with a man in an area known for that sort of thing.

The guy didn't want to embarrass his wife any more than he already had, so his lawyer got him to plead either guilty to whatever the crime was or nolo contendere. Fast forward several years, and they've passed laws about sex offender registries. Now, he has to report that he's a sex offender wherever he goes.

At one point my dad worked as a social worker in a prison. Sometimes there were inmates who, in addition to whatever felony they were in for, had at one time or another peed on the street when drunk. Exposing their genitalia was a lewd act, so in prison they had to be sent for sex offender counseling and evaluation.


Posted by: Bostoniangirl | Link to this comment | 05-30-09 5:28 PM
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87: Yes, if it weren't for those religious crazies, the state could take all minors into its custody and raise the children in state-run secular humanist orphanages. That would solve all these troublesome (and annoyingly complex) custody problems.

Oddly enough, I have heard the argument made on at least five separate occasions, that expansion of government-funded daycare was an attempt by secular-humanists (read: communists) to undercut religious values and therefore funding for Head Start should be opposed to prevent the further spread of state-run daycare lest the ungodly triumph.

max
['Full stop.']


Posted by: max | Link to this comment | 05-30-09 5:33 PM
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Putting aside for a moment the fact that family law is a fucking mess, and that I have a huge problem with the whole "rights of the parent" angle altogether,

it seems to me reasonable that a non-bio parent who'd formed a relationship with a kid should continue the relationship. It's traumatic to kids to have people who are part of their lives just disappear. It's inevitable--for instance, PK's teacher is moving to northern CA this summer--but it's really, really hard on the kids. The move's upset everyone in PK's class, especially a couple of the more vulnerable boys whose families are borderline neglectful, and it's a real fucking tragedy. If, say, someone like PK's teacher had been dating one of the boys's mothers, and the relationship had ended, it would sure as hell be in the kids' best interest to keep contact with the father, even if mom were being an asshole about it.

That said, the situation is creepy, esp. with the breaking into her email part. I assume you're certain that that's true. (If not, and the mom is making that shit up, then maybe the non-dad *should* get custody, on the grounds that mom is a nutcase.) I have no advice, only sympathy.


Posted by: bitchphd | Link to this comment | 05-30-09 5:37 PM
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and pushing around women for being hippies.

I see a new Billy Jack sequel.


Posted by: JP Stormcrow | Link to this comment | 05-30-09 5:39 PM
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On the original topic, I've been mildly bemused that my two sons who referee youth soccer games have been required to register for this "e-Kidsafe" program. I understand than they are trying to say that everyone who does anything at all with Youth Soccer in the area is signed up, but it is hard to see the potential abuse risk in refereeing soccer games.


Posted by: JP Stormcrow | Link to this comment | 05-30-09 5:54 PM
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77: Only England and Wales have a state church - the UK as a whole doesn't. (Okay, there's the Lords Spiritual in the House of Lords. Do they count?) And mostly this means the state gets to control the church, not the other way around (though see also the Lords Spiritual). Court cases involving child visitation and access are officially extremely private, so I don't know how far religious nutcase-ism gets involved. It's my impression, however, that we don't have proportionally as many religious nutcases in the UK as you do in the US.

95: Even if he's telling the kid transphobic jokes about "mannish women"? Oh yeah, forgot that wouldn't bother you.


Posted by: Jesurgislac | Link to this comment | 05-30-09 6:04 PM
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94: Oh, I've heard that kind of kookiness too. But I really don't think these custody issues are mainly a question of the religious versus the secular. Most parents (of whatever religion or lack of religion or anti-religion or what have you) are pretty strongly resistant to state inference in child-rearing, and for the most part rightly so (on vaccination, e.g., while I think people should be strongly encouraged to vaccinate their children and am actually quite irritated by the free-riders who don't, I would stop short of state compulsion).


Posted by: Mary Catherine | Link to this comment | 05-30-09 6:09 PM
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"Ice cream trucks must play ice cream music,"

I have already mentioned our old neighborhood ice cream truck.

The drug connection may explain the cute stoner woman who currently purveys frozen treats on our street.


Posted by: Jesus McQueen | Link to this comment | 05-30-09 6:11 PM
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93: The sex offender thing really bothers me

BTW, if that ... interests you (or anybody), the guy here: http://sexoffenderresearch.blogspot.com/ is a very thorough aggregator of the news on this stuff. [And I mean very thorough: the first item up is some dude that got (probably deservedly as can be for an execution) beheaded in Saudi Arabia for doing very bad shit.) Anyways, I hadn't read it in a few months and it seems the current rages are about sexting and, as previously, dudes forced into homelessness. He finds all that shit that winds up only reported in little newspapers in BFE.

If one reads it constantly for a few months, one rather gets the impression of a nation that has pretty much slipped its clutch, in tandem with the Gingrich-y crazies of the US.

Oh, and for anyone's obsessive-compulsive stalker fruitcake files:

The agent then explained that the mail was from an amateur sleuth in California named Gareth Penn, who had been trying for some time to interest the police in the idea that I was the Zodiac killer. Perhaps he was trying to alarm me into confessing or doing something incriminating. Who knows. Even today, I know little about the man, beyond the odd detail I've picked up here and there--like the fact that he is a librarian and surveyor by trade, that he has (or had) a wonderful Jesus beard, and that he is a member of Mensa. About the details of Penn's theory, I know next to nothing (curious readers could find them in Penn's two self-published books on the subject), except that it has made me the subject of a particularly bizarre and vacuous chapter in the annals of American criminal justice.

max
['Everyone has to have a hobby.']


Posted by: max | Link to this comment | 05-30-09 6:11 PM
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it seems to me reasonable that a non-bio parent who'd formed a relationship with a kid should continue the relationship.

Yeah, I'm not so sure I agree. In some cases, maybe. In others. maybe not. I've got a strongly held opinion on who should get to decide, though.


Posted by: Di Kotimy | Link to this comment | 05-30-09 6:16 PM
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99: Vaccination is a public health issue: it ought to be more up to the parents to decide that their kids aren't going to be vaccinated than it ought to be up to the parents to decide that their kids are going to drink shitty, cholera-infested water, and share it with their friends.

It's not just a question of these parents being free-riders, though sure, that's their goal: it's also that if their free ride ends, because too many other parents also decided to skip out on vaccination, their children could be among those dead, blind, or crippled.

"No state interference in child rearing" terminates when "interference" amounts to "We're going to save your child's life, even if you're too stupid to understand how."


Posted by: Jesurgislac | Link to this comment | 05-30-09 6:17 PM
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I assume you mean no more up to, etc.


Posted by: nosflow | Link to this comment | 05-30-09 6:19 PM
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I've got a strongly held opinion on who should get to decide, though.

Yeah, so do I.

A non-bio parent is one thing (by non-bio parent, I mean someone, whether male or female, gay or straight, married to the bio-parent or not, who has formed a significant parental-like attachment and/or made a significant parental-like commitment to a child). But a Random Dude ex-boyfriend who has not formed such an attachment nor made such a commitment, but who thinks, for whatever reasons, that he can do a better job than the parent and who decides to step in and try (even though he's never had an agreement with the parent that this was indeed his role)...that's another thing altogether. I have to think this case is a real outlier, though. Children are quite a lot of work to look after, and quite a lot of expense: it's not very common to have unrelated or unattached/uncommitted people coming out of the woodwork to lay claim to that enormous responsibility.


Posted by: Mary Catherine | Link to this comment | 05-30-09 6:30 PM
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The no fell out of my comment accidentally. I don't no what happened to it.

(Er, yes, that is what I meant.)


Posted by: Jesurgislac | Link to this comment | 05-30-09 6:30 PM
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God, custody battles are a mess. But:

she's in danger of losing control over her child's upbringing because she's a hippie

Not really; depending on how PA law is written, she's in danger of losing control over her child's upbringing because she's a hippie AND was in a relationship for several years with someone who was not a hippie and turned out to have wildly different ideas about said upbringing.

If it really was a "just friends" sort of deal, surely it wouldn't be hard to find people to testify against the real estate agents, etc?

What a mess, though. I feel sorry for everyone even tangentially involved, especially the daughter.


Posted by: water moccasin | Link to this comment | 05-30-09 6:31 PM
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Re 105, the law, such as it is, in states that have a de facto parenting law (and 100% of what I know about this is from the link I posted above) seems designed to try and sort between these two situations -- that is, between the random dude and the committed person in a parent-like relationship.

It doesn't look like there's anywhere were being a random dude will suffice. The states that allow de facto parenting require, for a de facto parenting relationship to be established, proof that both sides intended a parental role, and that the non-biological parent invested time and money into becoming a parent, that others saw him/her as a parent, etc, etc.

I can definitely see a number of highly sympathetic persons that this area of law is trying to protect. It's totally plausible to me that a biological parent could, in some circumstances, really harm a child by cutting off a relationship with a non-biological person who has come to be seen as a parent.

On the other hand, as in almost all custody fights, there are sympathetic positions on both sides, everything is extremely case-specific, and things will depend very heavily on whether one party, or both, are being assholes. In the JRoth/Bizzah case, it sounds like you're deailng with someone who is willing to commit perjury and manufacture fraudulent evidence.

The courts aren't very good at sorting out anything involving child custody, but if people are really being assholes and can't work things out between them, there's not really much choice but to use the courts.

I wonder what Will thinks about all this.


Posted by: Robert Halford | Link to this comment | 05-30-09 6:49 PM
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married toone of the bio-parents or not, who has formed a significant parental-like attachment and/or made a significant parental-like commitment to a child

Alright, admittedly not objective here. But UNG has chosen to bring someone into Rory's life and that person has assumed a parental-like role. And said person has taken to deciding she is the superior parent in this scenario. And you know what, when Rory's at UNG's, if the girlfriend wants to lay claim to ultimate parental authority, fine, that's their business. When Rory's at my house, however, I take offense to the girlfriend telling Rory what to do. "Remember, when you get to you mom's house, you have to ___." Whatever, it's annoying, I I deal with it. But if UNG gets sick of it, too, and decides to kick her sorry ass to the curb? Yeah, I would have serious problem dividing my parenting time by three. I suppose it could be divided evenly between me and UNG, and then his share divided evenly between him and her, so I get half and they each get fourths. But what if, god forbid, I ever got around to dating? Now suddenly we're dividing among four parent-like figures. And what if UNG and the girlfriend break up and each meet someone new? and on and on. Yeah, there are good reasons for defining parental rights somewhat narrowly.


Posted by: Di Kotimy | Link to this comment | 05-30-09 6:50 PM
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This would all be solved if we followed California's example and had parenting questions settled by initiative proposition.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 6:53 PM
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Okay 109 posted before I read 108. Um, Halford makes a much more objective case...


Posted by: Di Kotimy | Link to this comment | 05-30-09 6:54 PM
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109: I can't speak to these things from personal experience, of course, but aren't there books about these things? On children of divorce, children raised with multiple parental figures, and so on? Is it quite clear that such children are destined to be confused?

Forgive me, but: communication, communication, communication! Among all adults, and with the child(ren). I say this rather obvious-seeming thing only because Di sounds overwhelmed.


Posted by: parsimon | Link to this comment | 05-30-09 7:00 PM
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87:The early Soviet Union started with communal creches, with rotating assignments of women, mothers & others, run by the women of course. Not positive if it was only daycare or fulltime. The men protested, and it didn't last very long.

I'm sure there are other examples of communal child-raising, though maybe not many where the patriarchy can't fuck it up


Posted by: bob mcmanus | Link to this comment | 05-30-09 7:02 PM
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What Halford said in 108. Look, these custody issues can be enormously complex and entangled in all sorts of complications. There are no easy answers to these difficulties, and opposition to religious nuttiness (however satisfying to indulge such opposition) doesn't even begin to address the relevant issues in most cases. It's not the fault of the evangelicals that people go to court to battle over child custody.

110 offers an eminently sensible solution. And after the proposition inevitably fails at the ballot box, the state can simply ban the existence of children as a necessary, if unfortunate, budgetary adjustment to the new recessionary reality.


Posted by: Mary Catherine | Link to this comment | 05-30-09 7:03 PM
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114.2: Was it Max upthread who mentioned children as property? Sounds like it, doesn't it?


Posted by: parsimon | Link to this comment | 05-30-09 7:10 PM
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110 -- That's why I'm supporting Prop 104, the Defense of Random Dudes Act. Who will protect us, if not the voters? WHO WILL THINK OF US?

And Di, from the link in 50, it looks like Illinois doesn't recognize de facto parenting in a significant way. So let your ex kick that bhortch to the curb, and laugh.


Posted by: Robert Halford | Link to this comment | 05-30-09 7:11 PM
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114: If you would just do the simple cost-benefit analysis, MC, you would see it was for the best.


Posted by: Walt Someguy | Link to this comment | 05-30-09 7:17 PM
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117: Didn't we have that thread? No babies for water!


Posted by: JP Stormcrow | Link to this comment | 05-30-09 7:21 PM
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Not to get all Shearer, but why not? If your criterion that courts shouldn't be put in that position, how does CPS not put them in exactly that position? The world is full of sad stories of CPS coming in and pushing around women for being hippies.

There are all sorts of horror stories about CPS, true. But the theory behind when CPS comes into play, is that it's only supposed to intervene when a child is genuinely in danger. Even with that restriction, we end up with scary stuff happening.

With this kind of thing, we've got courts adjudicating parenting decisions (like, do I want my kid spending time with this person?) even when there's no question about the kid being endangered -- not trying to figure out how to protect a kid from harm, but trying to decide, between the parent's judgment and some other person's, which judgment the court (aka some random person in a black rayon dress) thinks is superior. That's a recipe for huge intrusiveness.

107: Should be able to prove it. But if you've got credible businessman with credible businessman friends saying he was a defacto father, and flaky hippie with flaky hippie friends saying no? That's exactly the sort of determination I think a court's going to be bad at making, and that I am afraid will turn into whimsical decisions based on who the court thinks is a better parent.


Posted by: LizardBreath | Link to this comment | 05-30-09 7:25 PM
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Really, the horror story I thought of immediately isn't the one JRoth mentioned -- predatory boyfriends (assuming that's the whole story) like that have to be fairly rare. But this doctrine sounds like a brilliant way for family members to strip disfavored women of custody of their children -- you get pregnant and need help, move back in with your parents, who help you out with childcare, they decide (as in the actual case under discussion) that they disapprove of your parenting philosophy, and suddenly they've got a legal argument to divide parenting decisions with you.


Posted by: LizardBreath | Link to this comment | 05-30-09 7:30 PM
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(aka some random person in a black rayon dress)

Eww.

But if you've got credible businessman with credible businessman friends saying he was a defacto father, and flaky hippie with flaky hippie friends saying no? That's exactly the sort of determination I think a court's going to be bad at making, and that I am afraid will turn into whimsical decisions based on who the court thinks is a better parent.

One answer to this would be for people to stop assuming that hippies are flaky, but that's not going to happen.


Posted by: parsimon | Link to this comment | 05-30-09 7:32 PM
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One answer to this would be for people to stop assuming that hippies are flaky, but that's not going to happen.

And judges are as whimsical as anyone else. If you put them in a position where they get to decide who gets to make decisions about a child's upbringing based on vague criteria, they're going to make a whole bunch of weird decisions. Sometimes there's no choice -- when the bioparents disagree, where the bioparents are arguably really dangerous to the child. But where it's not absolutely necessary, judges shouldn't be making off-the-cuff judgment calls about what will make a child they don't have any personal knowledge of better off.


Posted by: LizardBreath | Link to this comment | 05-30-09 7:38 PM
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Didn't B.F. Skinner definitively settle these questions with Walden Two?


Posted by: essear | Link to this comment | 05-30-09 7:42 PM
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But where it's not absolutely necessary, judges shouldn't be making off-the-cuff judgment calls about what will make a child they don't have any personal knowledge of better off.

Well, yes, right. I thought there was a mechanism in place for soliciting testimony from those who do have more personal knowledge. I realize this has been discussed upthread.


Posted by: parsimon | Link to this comment | 05-30-09 7:45 PM
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Let's suppose that our theoretical flaky hippie parent lives with her parents for 5 years, where her parents do most of the parenting, and then after 5 years decides to cut out her parents because they are pro-vaccination or whatever. The parents have earned no rights whatsoever? Maybe they shouldn't get to make parenting decisions, but their five years of effort earn them nothing? That's just morally wrong, and should be wrong legally.


Posted by: Walt Someguy | Link to this comment | 05-30-09 7:45 PM
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I've seen no evidence of hippiedom. But the most charitable explanation for not having your children vaccinated is flakiness.


Posted by: water moccasin | Link to this comment | 05-30-09 7:46 PM
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124: The judge can solicit testimony from whoever they like, but in the end they don't have a lot of time to spend on any particular case, and they're not going to have meaningful individual knowledge of the children involved.

125: What rights are you thinking of other than the right to make parenting decisions? (Note that "who will my children spend time with" is a parenting decision).


Posted by: LizardBreath | Link to this comment | 05-30-09 7:51 PM
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The parents have earned no rights whatsoever? Maybe they shouldn't get to make parenting decisions, but their five years of effort earn them nothing? That's just morally wrong, and should be wrong legally.

It should earn them a particularly delicious cookie.

(I agree that it's morally wrong, but it seems like one of those cases where trying to convert a moral intuition into a legal principle is particularly likely to cause more harm than good.)


Posted by: essear | Link to this comment | 05-30-09 7:55 PM
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Or the case (like another one from PK's class) of bi-polar unmedicated single mom who lives on and off with her mother, who has gotten custody rights of kids somehow. Lots of tension between single mom and grandma, but it's v clear who is the better custodian here, and it isn't bio-mom.

Jesu will be glad to know that PK came back from bar mitzvah having won a package of nail polish in a play-money auction and promptly painted his nails. So I made fun of him for being girlish.


Posted by: Bitchphd | Link to this comment | 05-30-09 7:55 PM
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But a Random Dude ex-boyfriend who has not formed such an attachment nor made such a commitment, but who thinks, for whatever reasons, that he can do a better job than the parent and who decides to step in and try (even though he's never had an agreement with the parent that this was indeed his role)...that's another thing altogether. I have to think this case is a real outlier, though.

Right. I mean, this case is striking everyone as beyond weird, and the law as reported here does require proof of years of parenting. Ex recto, but I'd guess the number of non-legal but de facto parents who benefit from the presumption of such a statute is larger than the number of successful businessmen who falsify records of years of a relationship with a four-year-old.

120: Grandparents already have the legal argument, and I think this boyfriend is a rare bird.

I'm thinking of lots of non-traditional family relationships here, gay, straight, multi-generational, and I'd want the actual parents to have legal standing even if they weren't the biological or adoptive parents.


Posted by: Cala | Link to this comment | 05-30-09 7:56 PM
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I'm getting heated about this, because I'm a lawyer. Courtrooms are bad, dangerous places that people who don't have tens of thousands certainly, hundreds of thousands possibly, of dollars to spend on lawyers have no business in. Sophisticated business entities are often destroyed by litigation, unsophisticated individuals manage not to be destroyed only by staying out of court. Any doctrine that puts family structure at the mercy of a highly individualized and fact-based determination by a court when it's not absolutely necessary (and sometimes it is) is a nightmare.


Posted by: LizardBreath | Link to this comment | 05-30-09 7:57 PM
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Re flakiness and non-vaccinating parents: there is a lot of misinformation out there about vaccination risks. I don't think you can reasonably assume that non-vaccinating parents are flaky or irresponsible, only misinformed.


Posted by: Bitchphd | Link to this comment | 05-30-09 7:57 PM
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IANAL but I think 131 gets it exactly right.


Posted by: Bitchphd | Link to this comment | 05-30-09 7:59 PM
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I'd want the actual parents to have legal standing even if they weren't the biological or adoptive parents.

I'd want an awfully, awfully high standard for determining that the biological parents aren't the 'actual parents'. Like, the same standard you'd use to terminate someone's parental rights.


Posted by: LizardBreath | Link to this comment | 05-30-09 8:01 PM
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If it really was a "just friends" sort of deal, surely it wouldn't be hard to find people to testify against the real estate agents, etc?

Well, they did date for awhile, but the friendship extended after the dating ended. But the trouble is that the witnesses for the guy are willing to make all sorts of unequivocal statements ("I drove down her street every weekday morning at 7:15, and his car was always there."). Her friends/neighbors, being honest, real human beings, say things like, "I didn't even know which car was his" or "I don't remember whether his car was there every day or not." And how - short of having kept a reliable journal - can you prove that you didn't tour a house with a RE agent 3 years ago? You can swear it up and down, but you're just a flaky hippie trying to keep your kid away from the man she called "Daddy" as a cute 2-y.o. in a heartwarming video we've all watched.

Obviously it's possible that I'm only getting her side of the story and she's totally wrong. But as I said above, she doesn't actually come off as an unreasonable or flighty person. She's a professional in, I think, a self-run practice - not some stoner flitting from retail job to retail job.


Posted by: JRoth | Link to this comment | 05-30-09 8:03 PM
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125 -- Yeah, it seems to me that LB is basically assuming a set of facts sympathetic to the biological parent, and then using that to come up with a standard legal rule. But life and the world are complicated and tragic.

It's perfectly plausible that there are circumstances where a non-biological parent, including a grandparent, could have a legitimate interest in parenting, and where maintaining that relationship would benefit the child. It's not at all crazy for the law to establish some rights in that situation. Most of the cases listed in 50 establish a pretty high bar for setting up a de facto parenting relationship -- basically, you have to show that the biological parent intended for you to be, effectively, a parent, that you acted like a parent (emotionally and financially) and that the child views you as a parent.

As in so many other areas, saying that you want to keep the courts out is all well and good, until you're in a situation where you need the courts. That is, courts are bad decision makers but sometimes they're the only recourse you have to protect important rights for a child. One such circumstance might be a biological parent who is suddenly excluding a non-biological partner, even though the non-biological partner spent years and money developing a parent-like relationship with a child. Then, one really might want the courts involved. The law should definitely have a high evidentiary bar for finding de facto parentage, but it looks like that is pretty much the case in states that recognize the right.

Custody fights are always horrible and tragic, and courts will always be acting on the basis of limited information, but they are sometimes necessary. Given the way American families are now set up, there's no reason to think that wouldn't be true in some cases nvolving a non-biological, non-married parent.


Posted by: Robert Halford | Link to this comment | 05-30-09 8:06 PM
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129.2 Maybe you oughta drop it? It's getting dickish.

131 gets it exactly right.


Posted by: Di Kotimy | Link to this comment | 05-30-09 8:06 PM
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131: I don't think you'll find anyone arguing that the best way for it to shake out is for the courts to handle it. But that's true of divorce and custody agreements generally, but we don't generally take that as a reason to have no laws governing divorce or custody arrangements, or to have no protections in common-law marriages. Is it seriously better for there to be no recourse for a non-legal-parent if Great Auntie Edna decides the kid needs to be raised with family? (There's no rule that says the sympathetic party will always be the biological relatives.)


Posted by: Cala | Link to this comment | 05-30-09 8:06 PM
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Everything in 131 is true, except when it's not. Your definition of when it's "absolutely necessary" to go to Court may not be the same as other folks, or may change over time.

Saying that litigation is bad, and therefore we're going to have a rule that systematically excludes the rights of non-biological parents, is really just the same thing as saying that you think that non-biological parents should have no legally-enforceable rights. What I'm getting at is that you're masking a substantive belief in allocation of rights in a procedural argument about the nightmarishness of litigation.

No one disagrees that litigation is undesirable, but that's not really sufficient justification for denying the substantive right.


Posted by: Robert Halford | Link to this comment | 05-30-09 8:12 PM
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basically, you have to show that the biological parent intended for you to be, effectively, a parent, that you acted like a parent (emotionally and financially) and that the child views you as a parent

And this is where I bristle. Most parenting decisions are made by both biological parents. But we're never going to have a situation where we'll have one biological parent able to control what partners the other biological parent introduces.


Posted by: Di Kotimy | Link to this comment | 05-30-09 8:13 PM
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Or, what Cala said in 138, which is, as always, right.


Posted by: Robert Halford | Link to this comment | 05-30-09 8:14 PM
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There's no rule that says the sympathetic party will always be the biological relatives.

Always, never -- obviously, whoever uses an absolute term first is wrong. Putting that to one side, we're talking about situations where (1) the biological parent is not unfit (because if they were, we have processes in place for that) but (2) either wants to keep their child away from someone or wishes to control the terms of their relationship with that person. Barring same-sex relationships where there was no marriage or adoption purely because the laws are screwed up still, in which case I agree that there should be some legal protection for parenting rights until the marriage and adoption laws get straightened out, I'm saying that while nothing's universal, relying on the parent's judgment is a much better default than allowing litigation.


Posted by: LizardBreath | Link to this comment | 05-30-09 8:17 PM
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Re 140, from the cases in 50, it looks like the de facto parent doctrine wouldn't extend to cases in which there are two biological parents who split up, maintain custody, and one biological parent introduces a third party. In that case, I suppose, you might have to have evidence that BOTH biological parents intended the third party to have a parental relationship.

Again, I wonder what Will thinks/knows about this issue.


Posted by: Robert Halford | Link to this comment | 05-30-09 8:18 PM
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Di, I am imagining the situation I think you're imagining, and I'm sympathetic.


Posted by: Cala | Link to this comment | 05-30-09 8:18 PM
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No one disagrees that litigation is undesirable, but that's not really sufficient justification for denying the substantive right.

It is where there's a good enough default rule -- biological parents not found to be unfit get to exercise their own judgment -- that can avoid litigation.


Posted by: LizardBreath | Link to this comment | 05-30-09 8:19 PM
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142: I don't think so.. we're talking about a situation where a biological *relative* wants to keep away someone who has been involved as a parent. Not necessarily the other biological parent. To me that distinction is significant; why should biology be the default basis for custody, rather than the parenting?

I'm arguing from ignorance here, but it seems unlikely to me that a court case would be avoided if in mine or Jesurgislac's examples the bio-relatives wanted the kid back; all removing the law would do is rob the same-sex partner of any recourse, not get rid of the courts.


Posted by: Cala | Link to this comment | 05-30-09 8:26 PM
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In 145, you're just assuming without arguing that you're right about the correct legally-binding substantive rule. Or, that the existence of other cases (sympathetic grandparents, partners who put in years of time and energy binding with the child, etc.) are so unlikely to occur or so unimportant that the law shouldn't recognize them.

In practice, that doesn't seem to be the case -- there are enough, numerous, non-biological parents who spend time with children and develop parental relationships with children, to have brought the issue before the courts. It's really not hard to imagine that this is a fairly common problem.

But, regardless, the horrors of litigation are really beside the point. What you are really saying is that you don't think that this is an important enough problem to be worth bothering the courts about. But to the people involved, litigation may well be worth it.
The point is where the substantive right lies, not about the process of litigation.


Posted by: Robert Halford | Link to this comment | 05-30-09 8:27 PM
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I understand y'all are talking legalities here, but the undertone of control, the having of it, the loss of it, the wresting of it from others, continues to freak me out. If the adults can for god's sake talk to each other, they mightn't have to struggle so much for control over the child and over one another. It's quite grotesque.


Posted by: parsimon | Link to this comment | 05-30-09 8:28 PM
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Just by the by, I'd like to note that one of the things going on here, unspoken, is that american kinship has two sets of rules.

First, kinship is a matter of blood and marriage. Biology and formal marriage trump all.

Second, kinship is a set of relationships, a code of conduct. Being a parent is defines as participating in a parent - child relationship.


Posted by: Michael H Schneider | Link to this comment | 05-30-09 8:28 PM
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Unfortunately, sometimes adults can't talk to each other, which is why we have courts. It's always a shame, but it's an unfortunate reality.


Posted by: Robert Halford | Link to this comment | 05-30-09 8:29 PM
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I don't think so.. we're talking about a situation where a biological *relative* wants to keep away someone who has been involved as a parent.

Are we? I haven't seen any application of this to situations where there's no biological parent around. Under those circumstances, I'd agree that custody should be determined by the best interest of the child, which might not be a biological relative. I've only been arguing against the principle that non-parents should have legally enforceable parental rights against biological parents who oppose them.


Posted by: LizardBreath | Link to this comment | 05-30-09 8:32 PM
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Yes. What Mikey said. Too.


Posted by: parsimon | Link to this comment | 05-30-09 8:34 PM
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If the adults can for god's sake talk to each other, they mightn't have to struggle so much for control over the child and over one another. It's quite grotesque.

Parsimon, we're talking about legally enforceable rights. By the time anyone's legally enforcing anything, ever, they've stopped talking to each other. If people are talking and arriving at consensual agreements like decent people, no one needs to worry about anyone's rights, and it doesn't matter what they are.


Posted by: LizardBreath | Link to this comment | 05-30-09 8:34 PM
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135: don't see why mom's being a professional rather than a stoner hippie is relevant to whether she's lying, or a good parent, to be fair.

137.1: It was always already dickish, but I'll be damned if I'll pass up the opportunity to make fun of stupid shit.


Posted by: Bitchphd | Link to this comment | 05-30-09 8:36 PM
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153: I know, I know. I took a moment to wring my hands.


Posted by: parsimon | Link to this comment | 05-30-09 8:38 PM
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151: The situations Jes and I mentioned were cases without the biological parent.


Posted by: Cala | Link to this comment | 05-30-09 8:40 PM
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It's really not hard to imagine that this is a fairly common problem.

And one that's soluble (barring situations where there are particular legal barriers) by adoption, something that should be workable where all parties really do agree that the non-biological parent is a parent. What I find disturbing about this situation is the prospect (as has happened to JRoth's acquaintance) of an ambiguous social situation giving rise to a plausible legal argument for parental rights.


Posted by: LizardBreath | Link to this comment | 05-30-09 8:43 PM
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156: Jes has been talking about same sex relationships with a bio-parent and a non-bio parent, and I've agreed from the moment she brought it up that the messed up marriage/adoption laws justify this kind of doctrine in that limited fact pattern. You brought up Great Aunt Edna, but I'm not (and I don't think anyone else is) concerned about Edna's rights as a biological relative to shut out a beloved long-time caregiver where there's no biological parent in the picture. As I said in 151 "Under those circumstances, I'd agree that custody should be determined by the best interest of the child, which might not be a biological relative."


Posted by: LizardBreath | Link to this comment | 05-30-09 8:47 PM
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The problem can arise with traditional families and one surviving biological progenitor. Example:

Couple marries, child six month later. Divorce after another six months. One parent disappears, the other keeps kid. Three years later parent with kid re-marries (kid is now 4).

They don't terminate parental rights of disappeared progenitor(trix) because it's a bloodly hassle, so no adoption. Ten years later Biological parent with kid dies in car crash / cancer / whatever. Kid is now 14. Has lived with non-biological parent for ten years, extablished relationship, can't remember progenitor(trix).

Disappeared parent finds God, finds kid, wants custody. What does one do?


Posted by: Michael H Schneider | Link to this comment | 05-30-09 8:49 PM
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I've only been arguing against the principle that non-parents should have legally enforceable parental rights against biological parents who oppose them.

I agree with the general tenor of your argument, and probably also with its specifics. But let's face it, there's no way to argue for the primacy of bio-parental rights/claims against other possible rights/claims, without being prepared to argue, when push comes to shove, for the primacy of bio-parenthood in some way.

Well, it's not nothing to bring forth a child out of one's own body, out of one's own being, after all. "The birth follows the belly," as Thomas Hobbes once put it. I think the bar should be set very high indeed before the claims of the birth mother can be set aside against her will and in favour of the claims of some other party. But this position, which I consider a feminist position, can be fairly easily misconstrued/misunderstood and/or corrupted into something horrible and icky and reactionary, under those real world conditions where we're not just entertaining hypothetical possibilities on the internet.


Posted by: Mary Catherine | Link to this comment | 05-30-09 8:50 PM
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I guess I find it less disturbing because of the time and commitment requirement. JRoth's friend's case doesn't seem to be common (judging by the link in 50), and cases concerning same-sex and unmarried partners seem to be more common.


Posted by: Cala | Link to this comment | 05-30-09 8:51 PM
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159: You'd have to ask Will, but for a fourteen-year old I think you generally ask them who they want to live with.


Posted by: LizardBreath | Link to this comment | 05-30-09 8:51 PM
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Alright, make the kid nine.


Posted by: Cala | Link to this comment | 05-30-09 8:53 PM
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Sure, you can ask the kid - are you assuming a substantive legal rule that says "the wishes of the kid control?"

Because otherwise we're back to the best interest standard, with the wishes of the kid being one factor in determining best interest. I thought you'd ruled out the best interest standard when there was a progenitor(trix) around wanting the kid.


Posted by: Michael H Schneider | Link to this comment | 05-30-09 8:53 PM
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IANAFamilyL, but I don't think adoption is generally sufficient to avoid the de-facto parenting problem in some (perhaps many) cases.

Two examples -- First, one of two biological parents is completely out of the picture, the biological parent with custody takes on a partner who effectively becomes a parent to the child, but the original biological parent can't be found to consent to the adoption. It's easy to see how the partner could have, for all practical and emotional purposes, acted as the child's parent, without finalizing an adoption. Indeed, that appears to be what happened in the JRoth situation.

Second, the grandparent scenario, where the biological parent leaves the kid with the grandparents for years, and the grandparents invest considerable time and money in becoming the effective parents for the child.

All I'm saying is that it probably doesn't make sense to have a blanket rule prohibiting the establishment of de facto parenting rights in all circumstances. The law should (and does) have a strong presumption in favor of the parental rights of the biological parent.


Posted by: Robert Halfordre the | Link to this comment | 05-30-09 8:55 PM
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165.2 looks a lot like my examplke, except better stated. Shall we throw in a Native American child, and issues under the Uniform Child Custody Jurisdiction act, and whatever the name of the law is that says with Native American kids you should sent the whole mess to tribal court?


Posted by: Michael H Schneider | Link to this comment | 05-30-09 8:56 PM
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159, 163, 164: The thing about this hypo, though, is that the step-parent must have some legal relationship with the kid if they've been caring for them since the death of the bio-parent. Where there's a legally recognized adoptive or custodial relationship of long standing, I'm fine with that continuing to be recognized.


Posted by: LizardBreath | Link to this comment | 05-30-09 8:57 PM
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158: Your original example was of a teenager who moves in with mom & dad so they can help with the pregnancy. This is quite a common situation in some circles, and one in which I can see a case where the grandparents might not want to declare their child to be an unfit parent, but still think that they should have standing because of their long-term care of the child. ("Grandparents" are often related by blood, but not always. )

Where there's a legally recognized adoptive or custodial relationship of long standing, I'm fine with that continuing to be recognized.

According to JRoth, four years was the magic number. The problem with this case is that it seems that the guy only has standing because he's fabricated all of the evidence.


Posted by: Cala | Link to this comment | 05-30-09 9:00 PM
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Legal relationship with the kid? Yes, de facto parent - except it's never been judicially determined. So you end up with the custody battle, the very battle we all wish so devoutly to avoid, and the court has to have some substantive rule for deciding.

The rule is either going to be something like best interest, with a strong nod towards towards the relationship definition of parent, or it's going to go with biology.

People go for years - decades - lifetimes in ambiguous or even completely inappropriate de jure relationships. It's not a problem, until that car crash, when it suddenly is.


Posted by: Michael H Schneider | Link to this comment | 05-30-09 9:02 PM
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Yeah, what Schneider and Cala are saying.

Also, sorry, Cleveland. You remain the town of losers. I guess you need to nurse your grudges for a while longer and become as annoying as Boston fans. I'm just sad because I think that LA would have had a better chance of beating Cleveland.


Posted by: Robert Halford | Link to this comment | 05-30-09 9:08 PM
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All I'm saying is that it probably doesn't make sense to have a blanket rule prohibiting the establishment of de facto parenting rights in all circumstances. The law should (and does) have a strong presumption in favor of the parental rights of the biological parent.

This is fair -- I've conceded same-sex marital relationships, and long-term abandonment by the bio-parents would be plausible as well. What I've been disturbed by is that the standard in PA appears to be low enough that, e.g., formal cohabitation is unnecessary (that is, this guy isn't legally a tenant or owner of the mother's house, he's proffering testimony that he slept over a lot); the courts are relying on factfinding about the emotional importance of the relationship between the non-biological parental figure and the kid (without input from the kid) rather than public statements by the bio-parent.

While the specific situation of JRoth's acquaintance is pretty unusual, a standard that low seems like it would invite the kind of jerking around I was worried about above.


Posted by: LizardBreath | Link to this comment | 05-30-09 9:09 PM
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Legal relationship with the kid? Yes, de facto parent - except it's never been judicially determined.

IANAFamilyL, but I don't think this is possible. If one parent dies, and the other can't be found, I'm pretty sure a court is going to legally award custody to someone (in this case, the step-parent you're living with) rather than leaving it in limbo.


Posted by: LizardBreath | Link to this comment | 05-30-09 9:12 PM
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I'm thinking in part of shiv's situation growing up. Big multi-generational household, lots of divorces, redneck drama, the whole thing. The man shiv knew as Granpa had no biological relation to shiv or most of his cousins; he was his dad's stepdad, who hadn't adopted his dad because he was too old when they married, but that made no difference with day-to-day life. All of it was handled informally (they didn't want to involve the courts) and I'd say probably half the people shiv calls 'cousin' aren't biologically related to each other. If there had been a triggering event (car crash, fight, whatever), I think that the best thing for quite a lot of his family would have been to stay together, but I can tell you none of it was formalized. (And indeed it would be strange advice to say, go to court and get your son declared unfit so you can adopt the kid in the event that some day, there's a car crash and there's no way to recognize all the care you gave the child. )


Posted by: Cala | Link to this comment | 05-30-09 9:12 PM
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According to JRoth, four years was the magic number. The problem with this case is that it seems that the guy only has standing because he's fabricated all of the evidence.

But that's not a relationship that was legally recognized at the time. A step-parent who was awarded custody by a court after your parent's death is in a very different position than a guy who slept over at your mother's a lot.


Posted by: LizardBreath | Link to this comment | 05-30-09 9:14 PM
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173: And that worked fine, because no one wanted out. Would it really have been good if, in the midst of that sort of complicated childrearing situation, a parent had wanted to move out with their kid, and the grandparents had had veto power over what the parent was allowed to do?


Posted by: LizardBreath | Link to this comment | 05-30-09 9:17 PM
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If one parent dies, and the other can't be found, ...

That's assuming that a court ever rules. Assuming a small estate and no probate, I can well imagine it never actually being determined - until that disappeared parent shows up and starts the custody fight.

171: I agree, the evidence in this case shouldn't survive the summary judgment motion. It's too weak. But you gotta let the judge decide that summary judgment motion, you can't dismiss on failure to state a claim. Because maybe there is enough evidence to support the claim.


Posted by: Michael H Schneider | Link to this comment | 05-30-09 9:18 PM
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Here is the standard adopted by Washington for finding de facto parenting:

(1) the natural or legal parent consented to and fostered the parent-like relationship; (2) the petitioner and the child lived together in the same household; (3) the petitioner assumed obligations of parenthood without expectation of financial compensation; and (4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

That sounds about right to me, although there'd probably be a huge amount of variation about how to apply this standard in any individual case.


Posted by: Robert Halford | Link to this comment | 05-30-09 9:18 PM
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176: I agree, the evidence in this case shouldn't survive the summary judgment motion. It's too weak. But you gotta let the judge decide that summary judgment motion, you can't dismiss on failure to state a claim. Because maybe there is enough evidence to support the claim.

Yes, this.


Posted by: Robert Halford | Link to this comment | 05-30-09 9:20 PM
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I'm with LB. I think you can craft a fairly narrow statute that governs the grandparent situation (Pennsylvania already has one). And you could expand that slightly to say that a de facto parent has some rights vis a vis a previously absent biological parent.

But I think the default rule should be that if you're not the biological parent, you don't have parental rights unless you take steps to formalize your relationship with the kid with the explicit consent of the biological parent.

This is largely driven by the fact that I am litigator and have very little faith in the court system, especially the state court system, to make decisions like this.


Posted by: tulip | Link to this comment | 05-30-09 9:23 PM
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But you gotta let the judge decide that summary judgment motion, you can't dismiss on failure to state a claim.

They're in an evidentiary hearing. If the facts are as they've been described, they're past summary judgment. Now, maybe that's because her lawyer fucked up. That happens when you don't have tens of thousands of dollars to spend on lawyers. But that's the problem.

Assuming a small estate and no probate, I can well imagine it never actually being determined - until that disappeared parent shows up and starts the custody fight.

I'm not a family lawyer, so maybe I'm wrong, but I have a very hard time imagining this. The kid's got to be enrolled in school and so forth; it seems implausible to me that no one would notice that they were living with someone with no legal relationship to them. I'd assume that CPS (or whatever local equivalent) would be called into play on the death of the bioparent, and some legal determination of custody would be made.


Posted by: LizardBreath | Link to this comment | 05-30-09 9:23 PM
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LB, you're granting yourself victory in the argument, and going from there. There is not a good enough default rule, because the rule you advance is not, in fact, good enough. The legal inconvenience of the mother (and somehow all of your examples are of mothers) is not the only consideration -- there is the trauma to the children and to the other adults involved. If you don't like it, then don't let someone else co-parent your children for 5 years (or whatever the right cut off is).

What I'm arguing for is a standard for "common-law adoption", I guess. God forbid every single element of our lives not count unless officially registered with the state.


Posted by: Walt Someguy | Link to this comment | 05-30-09 9:26 PM
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Oops, I see that LB has conceded the main point in 171. And yet I kept arguing. Bad Walt.


Posted by: Walt Someguy | Link to this comment | 05-30-09 9:28 PM
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They're in an evidentiary hearing. If the facts are as they've been described, they're past summary judgment.

It's been a lot of decades, but my recollection is that having an evidentiary hearing on a summary judgment motion is allowed. At the hearing the court can consider affadavits and hear testimony. I don't have to go look at the damnable rules, do I?

it seems implausible to me that no one would notice that they were living with someone with no legal relationship to them.

People will say "yes, I'm kid's guardian" without actually, like, having a court order. Everyone in the community knows that kid has been living with this person, everyone is sympathetic about the death of the parent, who is going to raise the issue?


Posted by: Michael H Schneider | Link to this comment | 05-30-09 9:30 PM
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True story of totally fucked legal relations: A friend of mine has three kids with a woman to whom he's never been married. The oldest is, I think, 23 and the youngest is trisomy 21 and about 16, I think. All property is in his name, and he's 60 or so.

I say "you gotta make a will" - you have a daughter who can't handle property who will inherit, and this woman with whom you've never lived but who has borne three children is not going to inherit. He says "I don't wanna think about that"

The question of why he's been acting as parent with respects to schools and everything else when there's never been any judicial determinations has never arisen. And it never will, I'm sure.


Posted by: Dead president | Link to this comment | 05-30-09 9:33 PM
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As I understand family law (and, god, I wish I understood less about family law) evidentiary hearings happen much more frequently than they would in regular civil practice. That is, at least in CA, as a practical matter issues get heard in evidentiary hearings that would be the subject of summary judgment motions in regular civil actions. But evidence can also be heard and dismissed much more quickly.

I'm also a litigator, and I also have little faith in the court system, but I really think the perspective (generally, not just in this case) of arguments like 182 is myopic. "Avoiding litigation," in this case, means enshrining a substantive right in favor of people who sometimes, perhaps frequently, don't deserve to have that right. Nobody thinks that litigation is the best option, but closing the courthouse doors to folks with important rights to vindicate is also wrong. It's particularly wrong in cases like this one, where there's no widespread knowledge of just what is legally entailed in a particular family situation.

And expecting people in complicated family situations to take actions to formalize particular familial arrangements (which they ordinarily wouldn't do or think to do without consulting a lawyer) isn't realistic or appropriate. It often just shifts expenses from the litigation system to the transactional lawyers, and can really screw over parties who aren't legally savvy enough to secure their rights.


Posted by: Robert Halford | Link to this comment | 05-30-09 9:35 PM
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Don't take 171 as too much of a concession -- the standard I'm arguing for is very, very, very, very high. Longterm abandonment by the bioparent that would have been sufficient to terminate the rights of the bioparent if anyone had gone through the process would seem like a sufficient argument to create rights in the actual caregiver; the same sex co-parenting relationship that couldn't have been legally formalized as well; I suppose a heterosexual relationship where the bioparent publicly and formally identified the non-bioparent as a parent over an extended period of time.

But I'd want any case where the sort of factfinding being engaged in by the court in JRoth's acquaintance's case was necessary to get thrown out summarily.(Really, I'd want the purported 'parent' to have to convince CPS that enforcement of their 'rights' was necessary to the welfare of the child, rather than being able to move directly to the courts.)


Posted by: LizardBreath | Link to this comment | 05-30-09 9:38 PM
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The question of why he's been acting as parent with respects to schools and everything else when there's never been any judicial determinations has never arisen.

This is simplified by the fact that he's the bio parent, no? Seriously, he needs to make a will, but what I'd expect to happen is that the trisomy-21 kid will be or has been adjudicated incompetent, and her mother will be her guardian for financial purposes, which will make the inheritance work out okay.


Posted by: LizardBreath | Link to this comment | 05-30-09 9:41 PM
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And maybe we are at the hearing on the merits stage, and it survived summary jedgment because either:

1. the court made a mistake; or
2. the evidence before the court looked a whole lot different there and then than it looks to us here now.
3. the court was reluctant to set up a probable appeal of the granting of summary judgment, and figured that everyone would be better off, resolution would be faster and cheaper, if they just had the hearing on the merits


Posted by: Michael H Schneider | Link to this comment | 05-30-09 9:41 PM
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Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.


Posted by: The Law | Link to this comment | 05-30-09 9:43 PM
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I understand y'all are talking legalities here, but the undertone of control, the having of it, the loss of it, the wresting of it from others, continues to freak me out. If the adults can for god's sake talk to each other, they mightn't have to struggle so much for control over the child and over one another. It's quite grotesque.

Actually, I find this comment grotesque, Pars. Of course parents who give a crap about their kid give a crap about who has what kind of role in that kid's upbringing. Duh. To characterize that as some sort of neurotic control thing is a bit much. It's all well and good to say, oh just communicate! But maybe it's not totally insane for parents to want some control over which and how many other people thay are negotiating their child's care with.


Posted by: di kotimy | Link to this comment | 05-30-09 9:44 PM
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183: Well, on summary judgment you can consider evidence (usually affidavits, but hearings are possible) but you're not supposed to be determining contested issues of material fact.

Taking JRoth's version of this at face value (and making some assumptions about what that version entails), the guy maintained a separate domicile, and isn't on any forms filled out by the mother as the kid's father -- those are uncontested issues of material fact. The evidence he's bringing in is all softer stuff, about how much time he spent sleeping over at the mother's house, and what the kid called him. If that evidence is relevant, I think the standard is way, way too low.


Posted by: LizardBreath | Link to this comment | 05-30-09 9:45 PM
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He claims to be the biological parent, and nobody has every contested this. But that doesn't mean it's established. It just means that everyone is going along as if it were established.

And as I understand the federal law - and I'm probably wrong - if the disabled daughter inherits, then her money must be spent down before medicaid will pick up the expenses. Having a guardian won't solve this, a special needs trust is required. Or disinherit her. I think


Posted by: Michael H Schneider | Link to this comment | 05-30-09 9:45 PM
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The lawyer-and-philosopher shift seems to be running a bit later than usual.


Posted by: teofilo | Link to this comment | 05-30-09 9:49 PM
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He claims to be the biological parent, and nobody has every contested this. But that doesn't mean it's established. It just means that everyone is going along as if it were established.

This is how paternity is conventionally established in most cases, no? By public agreement and behavior of the parents?

People will say "yes, I'm kid's guardian" without actually, like, having a court order. Everyone in the community knows that kid has been living with this person, everyone is sympathetic about the death of the parent, who is going to raise the issue?

It's not that this seems impossible to me, just implausible -- I'd expect some form of social services to intervene and tidy up the legalities on the death of a parent. I could be mistaken here.


Posted by: LizardBreath | Link to this comment | 05-30-09 9:50 PM
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I've never heard of an evidentiary hearing in connection with summary judgment. What would be the point? How would you avoid credibility determinations? Wouldn't cross-examination force determination of disputed issues?

190 -- Yes.


Posted by: CharleyCarp | Link to this comment | 05-30-09 9:51 PM
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186 -- OK, but you still haven't really made an argument as to why you think this should be the case.

Would "a heterosexual relationship where the bioparent publicly and formally identified the non-bioparent as a parent over an extended period of time" include (a) situations where the parents represented themselves to the outside world as joint parents of the child, or (b) only cases in which there was an adoption or some other kind of legal procedure?

If it's the former, you've pretty much conceded the current law of de facto parenting as described in 50; if it's the latter, you seem to me to be overly reliant on legal formalities, which is odd in a situation where the relevant law is so unclear.

In PA, it seems that the de facto parenting law only provides for visitation, not custody. Do you really think that someone who has acted, in practice, as a child's parents for years should be automatically denied visitation rights simply at the whim of the biological parent, at least without a visit to CPS? Also, CPS usually doesn't get involved without issues of serious physical harm involved -- should that be the standard?

I'm just saying that you seem to be assuming a world in which non-biological parents aren't a problem, and then saying that the non-biological parents need to be kept out of the Courts. Reality appears to be more complicated.


Posted by: Robert Halford | Link to this comment | 05-30-09 9:51 PM
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193: I know, I was all psyched to talk about agriculture in the prehistoric southwest.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 9:51 PM
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189: If the law supposes that, the law is a ass--a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience--by experience.

(And don't even get me started on the Circumlocution Office).


Posted by: Mary Catherine | Link to this comment | 05-30-09 9:52 PM
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||

Looking up something else, I read a bit today about the Black Dahlia, a young woman murdered in LA in the late 40s. It's never been solved. More than 60 people confessed to the murder though.

People are strange.

|>


Posted by: CharleyCarp | Link to this comment | 05-30-09 9:53 PM
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199: I did it!


Posted by: Kobe | Link to this comment | 05-30-09 9:54 PM
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195: This is probably right -- i didn't want to dig my heels in on yet another point, when I'm arguing so many, so I figured that there was probably some situation I hadn't thought of where you might get a hearing on summary judgment, but I really can't think of what such a situation might be.


Posted by: LizardBreath | Link to this comment | 05-30-09 9:55 PM
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I was just reading the Michael O'Hare article in the washingtonmonthly about how he consistently fails to be the Zodiac Killer. He actually makes it sound kind of entertaining to have a nutjob accuse you of multiple murders.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 9:55 PM
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199 -- Have you really never heard of the Black Dahlia case before? In LA, that's like not having heard of the Battle of Gettysburg. If you haven't, please start reading James Ellroy immediately.

Teo, just to change the subject, I'm reading 1491, which appears to be awesome. Is it all nonsense or overstated?


Posted by: Robert Halford | Link to this comment | 05-30-09 9:56 PM
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Maybe social services agencies do that in New York. My impression is that around here, people do what Cala's in-laws have apparently been doing, and just get on with their lives and avoid lawyers whenever possible. That until there's some real good reason, such as the state trying to get reimbursed for child support payments, people let well enough alone.


Posted by: Michael H Schneider | Link to this comment | 05-30-09 9:57 PM
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I guess I must have seen ads for the recent movie, but it never registered. A cousin of mine was the foreman of the coroners jury; googling him is how I found it.


Posted by: CharleyCarp | Link to this comment | 05-30-09 9:59 PM
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In CA, you can technically notice an oral hearing on the evidence for a summary judgment motion. I've never seen it done, or heard of anyone doing it, though, for the reasons Carp states in 195.


Posted by: Robert Halford | Link to this comment | 05-30-09 9:59 PM
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If it's the former, you've pretty much conceded the current law of de facto parenting as described in 50; if it's the latter, you seem to me to be overly reliant on legal formalities, which is odd in a situation where the relevant law is so unclear.

The cases described in 50 were almost all same-sex parenting relationships, which seem (as I have said multiple times above) like a reasonable exception until such time as the adoption/marriage laws get straightened out for same-sex couples. In the one exception I recall, custody was awarded to a non-biological parental figure where he had been present in the kid's life from birth and the mother was also found to be unfit. None of that's particularly troubling to me.

The PA standard, OTOH, unless the judge is totally off the rails, disturbs me a lot.


Posted by: LizardBreath | Link to this comment | 05-30-09 10:01 PM
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99: But I really don't think these custody issues are mainly a question of the religious versus the secular. Most parents (of whatever religion or lack of religion or anti-religion or what have you) are pretty strongly resistant to state inference in child-rearing, and for the most part rightly so
[And other comments]

You are absolutely correct; most parents do not want the state interfering, and I don't blame them a bit. However, the Baptists and like travelers have specific issues about children, divorce and courts, and they are dedicated to keeping the state out of Baptist child rearing. So in Texas, the guardian ad litem and the judge in custody are prohibited from considering (or even asking) the wishes of the child in a custody case when the kid is 12 or under.

The Lege (if I remember correctly from when I read it) specifically inserted a non-binding but explanatory paragraph in the section in question, detailing how the the Lege totally supported (conservative) family values, nobody should ever get divorced and children were there to obey their parents... or something reasonably close to that. This from the same state legal code that made catching your wife in bed with another man (but not vice-versa) an affirmative defence to murder up til 1967.

That's all in line with doctrine going back to the antebellum South, when the theory was that paternalistic (using just that word) slave-owners were the only people that took proper care of their dependent property, that is, women, children and slave, as opposed to the Yankee factory owners who were only concerned with extracting profits from their destitute (and thus enslaved/dependent) workers.

max
['Not even slightly kidding.']


Posted by: max | Link to this comment | 05-30-09 10:02 PM
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206: I can't quite picture how it would work, but possibly if you had evidence you expected to be uncontested, but that was for some reason much more easily communicated and comprehensible orally than in written form? I'm not coming up with a concrete example, but it seems like a possibility.


Posted by: LizardBreath | Link to this comment | 05-30-09 10:05 PM
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tangent to a tangent: As usual, I'm decades behind the time. A really cursory skimming says there's a 1973 NM case saying that testimony is proper at a hearing on a summary judgment motion (85 NM 224), but also a 1991 case saying it's strongly disfavored (116 NM 626). I think someone changed the rules when I wasn't watching.


Posted by: Michael H Schneider | Link to this comment | 05-30-09 10:08 PM
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Teo, just to change the subject, I'm reading 1491, which appears to be awesome. Is it all nonsense or overstated?

No, it is indeed awesome.


Posted by: teofilo | Link to this comment | 05-30-09 10:12 PM
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Re 207, the cases don't apply only to same-sex couples. The general rule seems to be that if you give clear indications to the world and the child that the non-biological parent would be acting as a parent, the non-biological parent retains at least some rights. Would the Washington standard set out in 177 bother you (note that this would have prevented the JRoth case)?

The big problem in the JRoth case appears to be that they're dealing with a fraudster and perjurer, not the legal regime per se.

Re 209, I really have no idea why you would ever notice the oral hearing. You still have to present all of your evidence in the moving papers and separate statement of facts. But the rules allow for it, even though I've never ever heard of anyone asking for such a hearing.


Posted by: Robert Halford | Link to this comment | 05-30-09 10:14 PM
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211 -- Oh, um, yeah. I totally read that at your blog. While I was on vacation, with my hot girlfriend, in Niagra Falls.


Posted by: Robert Halford | Link to this comment | 05-30-09 10:16 PM
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So, how about those Inca knot-things that seem to have been a kind of three dimensional writing? How weird is that?


Posted by: Robert Halford | Link to this comment | 05-30-09 10:24 PM
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Eh, that post is from a while back, and I don't have a whole lot of regular readers. I wouldn't necessarily expect anyone to have read it.


Posted by: teofilo | Link to this comment | 05-30-09 10:25 PM
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So, how about those Inca knot-things that seem to have been a kind of three dimensional writing? How weird is that?

Pretty weird, and pretty cool. It's a shame there are so few of them left.


Posted by: teofilo | Link to this comment | 05-30-09 10:26 PM
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It would be awesome if they finally deciphered one and found out that it was 895 separate comments arguing about Linda Hirschman.


Posted by: Robert Halford | Link to this comment | 05-30-09 10:27 PM
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Also, Teo, did you go to a university in an extremely cold climate with an American Indian theme house? If so, did you live there? Because I've always wondered about that place (the theme house, not the university, where I also went, I think, if my guess is correct).


Posted by: Robert Halford | Link to this comment | 05-30-09 10:31 PM
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I did go to the university, but didn't live at the theme house in question. I briefly considered it, but it seemed kind of weird and overly political for my taste, plus it was really far away from everything.


Posted by: teofilo | Link to this comment | 05-30-09 10:34 PM
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A cousin of mine was the foreman of the coroners jury; googling him is how I found it.

Well, that's quite interesting, actually. I love these google finds.

Googling around, I discovered my great-grandfather was a disappointed plaintiff in a railway case which is cited in a couple of law texts as an example of the power of the robber barons against the little guy in the Gilded Age. Okay, I just said Gilded Age as a sort of embellishment, but that's what they meant, really.

Anyway, the Sante Fe Railway owes my family big-time, because my gr-grand uncle Michael James McTragedy (older brother of my great-grandfather) died in a "Fiery Pit of Destruction" when "Death Laid a Trap" and "caught a Dozen or More Passengers" in its wake, just outside Emporia, Kansas. A lawyer from Emporia, Kansas accompanied the remains of said gr-grand uncle back to Perth, Lanark Co., Canada, and apparently raised expectations, and there were high hopes of a settlement, as written up in the local papers of the time. But it all came to naught, of course, as it so often does.

Most of the above from google, which is really quite amazing (if evil empire-ish from a privacy perspective).


Posted by: Mary Catherine | Link to this comment | 05-30-09 10:36 PM
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Vaguely related to what Sifu said in 197, we had a talk this evening by this guy that was very interesting.


Posted by: teofilo | Link to this comment | 05-30-09 10:37 PM
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the Sante Fe Railway

Eh?


Posted by: teofilo | Link to this comment | 05-30-09 10:39 PM
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191: Taking JRoth's version of this at face value (and making some assumptions about what that version entails), the guy maintained a separate domicile, and isn't on any forms filled out by the mother as the kid's father -- those are uncontested issues of material fact. The evidence he's bringing in is all softer stuff, about how much time he spent sleeping over at the mother's house, and what the kid called him. If that evidence is relevant, I think the standard is way, way too low.

I totally endorse this position, BTW.

The part way back there where I was holding back (still am) on going in on JRoth's friends side, is due to the nature of custody battles.

max
['If it's exactly as described, it sounds real fucked up.']


Posted by: max | Link to this comment | 05-30-09 10:40 PM
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Eh?

Oh, sorry. I meant the Atchison, Topeka and Santa Fe Railway, of course, which was often abbreviated to the Santa Fe.


Posted by: Mary Catherine | Link to this comment | 05-30-09 10:45 PM
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Michael James McTragedy

I am simultaneously assuming that's a pseudonym and really hoping it isn't.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 10:47 PM
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221: huh. The whole thread of cancer research that involves searching endangered ecosystems for cancer-fighting compounds that might be on the verge of extinction has always struck me as one of the most swashbuckling scientific disciplines currently extant.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 10:48 PM
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224: That's better.

226: It was really interesting stuff. The focus of the talk was on the paleoethnobotany, of course, but with an emphasis on medicinal plants, a surprising number of which seem to have cancer-fighting properties that have been established experimentally. He didn't do any in-depth presentation of the experimental procedures, of course, but he did show some of the results, and the charts were pretty impressive. One thing that's particularly interesting about what he's doing is that the plants he's working with aren't endangered; many are in fact quite plentiful.


Posted by: teofilo | Link to this comment | 05-30-09 11:09 PM
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227.1 The Burlington Northern and Santa Fe Railway you mean, the Atchison, Topeka and Santa Fe Railway ceased operations in 1996 when it merged with BN.


Posted by: JP Stormcrow | Link to this comment | 05-30-09 11:17 PM
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Teo and I really are mirror-universe duplicates. Assuming we're talking about a university that shares its town with a smaller college named after the town.


Posted by: Minivet | Link to this comment | 05-30-09 11:20 PM
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Yes, but it was presumably still the AT&SF when the McTragedy incident occurred. Although I suppose it could have still been the Atlantic & Pacific.


Posted by: teofilo | Link to this comment | 05-30-09 11:21 PM
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Assuming we're talking about a university that shares its town with a smaller college named after the town.

We are. This is getting kind of freaky.


Posted by: teofilo | Link to this comment | 05-30-09 11:22 PM
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227.2: well yeah I mean, depending what kind of potato he's talking about on his website, that's pretty far from endangered.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 11:26 PM
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Yeah, he's all about the potatoes. I call him "the potato guy." He doesn't seem to have found anything cancer-fighting about them, though. What's more interesting is that they're here at all.


Posted by: teofilo | Link to this comment | 05-30-09 11:29 PM
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Here, like on Earth?


Posted by: Sifu Tweety | Link to this comment | 05-30-09 11:31 PM
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230: But she was discussing the owing of money now, if we're going to be so precise*. I suspect it was this wreck from 1897.

*Described in the Times as "One of the worst wrecks in the history of the Santa Fe Railroad" (emphasis added)


Posted by: JP Stormcrow | Link to this comment | 05-30-09 11:31 PM
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193: Shift change complete.


Posted by: JP Stormcrow | Link to this comment | 05-30-09 11:36 PM
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Here at Chaco.


Posted by: teofilo | Link to this comment | 05-30-09 11:36 PM
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235: first, I didn't think your comment was a wreck, and second, I'm pretty sure it's not from 1897.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 11:36 PM
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236: It comes on quite suddenly, doesn't it?


Posted by: teofilo | Link to this comment | 05-30-09 11:37 PM
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237: why is it weird that there are potatos at Chaco?


Posted by: Sifu Tweety | Link to this comment | 05-30-09 11:38 PM
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236: was about to say the sme thing. Guess I should go to bed.


Posted by: di kotimy | Link to this comment | 05-30-09 11:39 PM
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240: Mostly because nobody knew they were here until he found them.


Posted by: teofilo | Link to this comment | 05-30-09 11:42 PM
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Where should potatos be, logically?


Posted by: Cryptic ned | Link to this comment | 05-30-09 11:46 PM
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Peru.


Posted by: teofilo | Link to this comment | 05-30-09 11:48 PM
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Oh no! I was going to tell an interesting story about a complicated and unpleasant sexual predicament I found myself in last night, but if Di's going to bed...


Posted by: A White Bear | Link to this comment | 05-30-09 11:51 PM
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Wait, Di! Come back!


Posted by: teofilo | Link to this comment | 05-30-09 11:52 PM
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Eh, it's depressing anyway.


Posted by: A White Bear | Link to this comment | 05-30-09 11:52 PM
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Probably more interesting than potatoes, though.


Posted by: teofilo | Link to this comment | 05-30-09 11:53 PM
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We'll be the judge of that.


Posted by: JP Stormcrow | Link to this comment | 05-30-09 11:53 PM
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Wherever man opens his eyes and ears, unlocks his heart, and gives himself over to meditating and striving, shaping and working, entreating and thanking, potatoes should be.


Posted by: Otto von Bisquick | Link to this comment | 05-30-09 11:57 PM
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248, 249: hey, maybe it involves potatoes.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 11:57 PM
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pwned, I guess.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 11:58 PM
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248: It depends on what you do with the potatoes.

240: Mostly because nobody knew they were here until he found them.

And there's like 400ish varieties, all in the Andes and the modern world only uses like four, and damn, ain't that weird that a tuber native basically only to South America would be way the hell up here.

max
['Whee.']


Posted by: max | Link to this comment | 05-30-09 11:58 PM
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Oh, I'm just a giant fuck-up and ended up fooling around with Mr. Not-OK at a party with the really sweet guy who's been slowly, clumsily flirting with me for the past few weeks. I don't deal really well with passivity, which just looks like a lack of interest to me, and the really sweet guy is a typical Nerd U grad (one year ahead of me, I went to see his band a lot but didn't know him until now). He can't say he's interested; he just very very subtly touches my hand or knee when no one's looking and smiles.

Mr. Not-OK shows up to the party, not knowing anyone there, and says, "Can I come home with you tonight? Can we take a shower together?" He confesses some kind of creepy ongoing masturbatory fantasy life about me. Later, we make out, and then, about to get in a car, remembering that we can't and don't want to date each other or fuck up our relationship, he shoves me in the cab by myself.

All roughly in the vicinity of the really sweet guy, who basically has pretty much no idea what the hell is going on.


Posted by: A White Bear | Link to this comment | 05-31-09 12:01 AM
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Sorry. Back to potatoes. I like the blue ones.


Posted by: A White Bear | Link to this comment | 05-31-09 12:06 AM
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who basically has pretty much no idea what the hell is going on.

But who went home and masturbated to it anyway.


Posted by: JP Stormcrow | Link to this comment | 05-31-09 12:07 AM
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256: Ha. That's what my girlfriend said.


Posted by: A White Bear | Link to this comment | 05-31-09 12:08 AM
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256 is correct. Assuming your goal is to hook up eventually with the passive nerd, what makes you think that you've had a setback?


Posted by: Robert Halford | Link to this comment | 05-31-09 12:11 AM
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"Can I come home with you tonight? Can we take a shower cultivate some delicious potatoes together?"


Posted by: Sifu Tweety | Link to this comment | 05-31-09 12:14 AM
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That is funny, and maybe true. I guess I feel like it probably hurt his feelings. There's no contract between us; he hasn't literally asked me out or anything. But he has asked me a lot of personal questions about my status and history and so forth. So it's got to be kinda weird when some big muscly psychotic-looking skinhead guy shows up and starts bossing the girl you like around and making out with her.


Posted by: A White Bear | Link to this comment | 05-31-09 12:15 AM
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259: They don't even take much water!


Posted by: teofilo | Link to this comment | 05-31-09 12:16 AM
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Maybe it was all a plan on the part of Not-OK to get you to leave the party before him so he could hook up with Nerd dude.


Posted by: Sifu Tweety | Link to this comment | 05-31-09 12:16 AM
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262: That is a truly adorable thought.


Posted by: A White Bear | Link to this comment | 05-31-09 12:17 AM
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254: he just very very subtly touches my hand or knee when no one's looking and smiles.

Opportunity knocks quietly at the back door, just after midnight...

Mr. Not-OK shows up to the party, not knowing anyone there, and says, "Can I come home with you tonight? Can we take a shower together?"

Disaster is the 18-wheeler plowing into your living room. I'd guess Meester Nerdy can't bring himself to go with 'Can we take a shower together?' I suggest you slip him some tequila and speed.

Back to potatoes. I like the blue ones.

... and I should have said, finding a potato at Chaco is about as weird as it would be to find burnt guinea pig bones from an ancient fire pit.

max
['If you brought them up here, where did they go?']


Posted by: max | Link to this comment | 05-31-09 12:17 AM
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In situations like that my first thought would probably be that the woman was calculatedly trying to hurt my feelings, probably after trying to send me several signals that she was not interested in me, none of which I was alert enough to receive. But there are other kinds of passive nerds out there, interested in different things. And he already knows you pretty well.


Posted by: Cryptic ned | Link to this comment | 05-31-09 12:17 AM
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So it's got to be kinda weird when some big muscly psychotic-looking skinhead guy shows up and starts bossing the girl you like around and making out with her.

Probably, but a lot depends on how she reacts, both during and (perhaps more importantly) after the incident.


Posted by: teofilo | Link to this comment | 05-31-09 12:18 AM
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finding a potato at Chaco is about as weird as it would be to find burnt guinea pig bones from an ancient fire pit.

Not quite that weird. Potatoes are known to have been cultivated in Mexico, and they do considerably better in the arid environment here than, say, corn does. It's not really that surprising to have found them, but it's still noteworthy.


Posted by: teofilo | Link to this comment | 05-31-09 12:22 AM
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I'd guess Meester Nerdy can't bring himself to go with 'Can we take a shower together?'

Actually, he seems like he might normally be pretty capable in this way, but has gotten all intimidated and quiet the past few times I've seen him. Also, he was with the same person for nine years until fairly recently, so I'm spotting him a few gestures here and there.

the woman was calculatedly trying to hurt my feelings

Yeah, this is what I worry that he might think, since I invited Not-OK to the party. I'm not sure what I can clarify about that relationship--it's fucking sick, and has been since the day I met him, but usually we have pretty strict boundaries that Not-OK may have violated specifically because he knew this other guy was interested in dating me. I.e., he wanted to show him who's boss of me or whatever.


Posted by: A White Bear | Link to this comment | 05-31-09 12:24 AM
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The problem described in 265 can probably be solved with some minor flirting with Senor Passivo, which will totally respark his interest.

I suggest calling him up and talking about potatoes in a sexy voice. Finger Potatoes, Creamer Potatoes, Waxy Potatoes . . . you get the idea.


Posted by: Robert Halford | Link to this comment | 05-31-09 12:25 AM
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The problem described in 265 can probably be solved with some minor flirting with Senor Passivo, which will totally respark his interest.

Or some major flirting. Go wild.


Posted by: teofilo | Link to this comment | 05-31-09 12:26 AM
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I'm not sure dating him is a great idea, especially now that I'm in his band and writing songs for them. I dunno. I like him; he's funny and thoughtful. When I've dated guys like that before, it has not gone well. OTOH, I've done quite a bit of therapy since then.


Posted by: A White Bear | Link to this comment | 05-31-09 12:29 AM
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If you need some seduction tips, particularly as an English professor, I strongly suggest this website. It's worked for me!


Posted by: Robert Halford | Link to this comment | 05-31-09 12:34 AM
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Poem 5 is amazing.


Posted by: A White Bear | Link to this comment | 05-31-09 12:38 AM
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Ha! The 9-10 poem sequence also. Hilarious.


Posted by: A White Bear | Link to this comment | 05-31-09 12:39 AM
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Remember, you can only use 10 after you've used 9. Not for beginners!


Posted by: Robert Halford | Link to this comment | 05-31-09 12:44 AM
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267: Not quite that weird. Potatoes are known to have been cultivated in Mexico, and they do considerably better in the arid environment here than, say, corn does. It's not really that surprising to have found them, but it's still noteworthy.

No, you're right, although I would think it would depend on the cultivar (domestic or wild). Still, that bugs me a lot that the Mesoamerican groups seem to have primarily cultivated corn rather than potatoes. (Also, I don't really remember hearing anything the natives of the SE US cultivating them, but then it occurs to me it's only going to be a perennial that in the easternish parts of the US in the Valley.)

Also, I did not know this:

Fish and chips have separately been eaten for many years - though the potato was not introduced to Europe until the 17th century. The originally Sephardi dish Pescado frito, or deep-fried fish, came to the Netherlands and England with the Spanish and Portuguese Jews in the 17th and 18th centuries. Fish has well-known biblical significance, but the fried form also has practical value as a religious food. When fish is battered and fried, it's good served cold for those who observe the ritual of not cooking on the Sabbath.

max
['Whoa.']


Posted by: max | Link to this comment | 05-31-09 12:45 AM
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I.e., he wanted to show him who's boss of me or whatever.

I'm guessing the passive dude got the message that your skinhead dude's woman. How very psycho.

max
['Time for the heartwarming romantic comedy script!']


Posted by: max | Link to this comment | 05-31-09 12:53 AM
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277: Yup. Totally psycho. No debate there.


Posted by: A White Bear | Link to this comment | 05-31-09 12:59 AM
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Blue potatoes are very tasty.


Posted by: Jesurgislac | Link to this comment | 05-31-09 1:12 AM
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I find them really subpar texturally.


Posted by: nosflow | Link to this comment | 05-31-09 1:19 AM
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I read 280 as textually initially. I'm glad I figured out my mistake before I spent hours puzzling over the textual content of the blue potato.


Posted by: Sifu Tweety | Link to this comment | 05-31-09 1:29 AM
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159: My uncle adopted his wife's first son who calls him Dad. I do think that he saw his biological father in his teen years, but it wasn't a regular thing.

My aunt and uncle were married in the Roman Catholic church. I think that her first marriage had been ånnulled even before she met my uncle, when she was a single Mom. (The grounds, I think, were that the ex had never taken the marriage seriously as a marriage, evidenced by the fact that he was cheating from day 1.) I never really thought about the biological father's rights, but I think he was in the Northeast, and she lived in Willliamsburg, VA before moving to Colorado.


Posted by: Bostoniangirl | Link to this comment | 05-31-09 1:45 AM
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Another cousin was adopted by my other uncle, but he's never even met his biological father, and my uncle and ex-aunt were married when the cousin in question was a baby. He didn't know that he was adopted until he was 8 or so. (Weird, fucked up family.) Anyway, he saw my uncle for a few weeks every summer, just like his siblings. (All of them have had a strained relationship with their Dad, and their Mom worked abroad for USAID, so regular joint custody wouldn't have really been feasible.)


Posted by: Bostoniangirl | Link to this comment | 05-31-09 1:51 AM
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Further to 283, He has since, as an adult, tracked down his other biological grandfather and introduced his own son to him.


Posted by: Bostoniangirl | Link to this comment | 05-31-09 1:59 AM
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Oh, I'm just a giant fuck-up and ended up fooling around with Mr. Not-OK at a party with the really sweet guy who's been slowly, clumsily flirting with me for the past few weeks. I don't deal really well with passivity, which just looks like a lack of interest to me, and the really sweet guy is a typical Nerd U grad (one year ahead of me, I went to see his band a lot but didn't know him until now). He can't say he's interested; he just very very subtly touches my hand or knee when no one's looking and smiles.

Um, what's the line between sweet passivity, obvious signals that one is interested, and sleazy disgustingness?

(This isn't an entirely academic question.)

Also! I read a book on the potato once, in the genre of Commodity: how it changed the world. It was formally good, but I have no idea about substantially.


Posted by: Keir | Link to this comment | 05-31-09 2:25 AM
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In situations like that my first thought would probably be that the woman was calculatedly trying to hurt my feelings, probably after trying to send me several signals that she was not interested in me, none of which I was alert enough to receive. But there are other kinds of passive nerds out there, interested in different things. And he already knows you pretty well.

Agreed (and in fact, I went through essentially the same issue but from the other perspective the not long ago. Not Fun, until one realises one's own paranoia.)


Posted by: Keir | Link to this comment | 05-31-09 2:29 AM
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285.1: The line is a three-dimensional curve plotted against the points X, Y, and A, where X represents the obviousness of the other person's interest in you, Y represents how much you fancy that person, and A represents how politely the other person takes your expressing disinterest in them.

285.2: This isn't an entirely academic answer.

285.3: I once attended a panel at a science-fiction convention where we discussed the changes to world history if the specific species of potato that was vulnerable to that variety of potato blight had not been imported into Ireland back whenever - if, in other words, the Great Famine had either not happened at all, or had happened at some other time.


Posted by: Jesurgislac | Link to this comment | 05-31-09 2:37 AM
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I can't work out whether MC at 198 is taking the piss or really hasn't heard of Jarndyce and Jarndyce. To its credit, I believe that the US has got rid of chancery.

Jesu, it's often not appreciated how badly the potato famine affected the rest of northern Europe, the Anglosphere knowing about Ireland because of it being at least in part English speaking at the time (England was insulated from the worst effects because it had a higher standard of living, due to its exploitation of, for example, Ireland). But much of the continent was devastated, and you could make a superficially plausible (good enough for an SF scenario, anyway) argument that the 1848 revolutions wouldn't have taken off without it. So, no Napoleon III, no Franco-Prussian War, no Second Reich... Endless fun.


Posted by: OFE | Link to this comment | 05-31-09 3:58 AM
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But then, only if one wasn't a good Marxist; iff otherwise, some other disaster would have resulted in very similar, if not identical disasters.

(still i never realised the Europeanity of the potato famine.)


Posted by: Keir | Link to this comment | 05-31-09 4:03 AM
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Or would it?

Was the famine of man's making but not of man's circumstances or was the famine made of man entirely, as it were?


Posted by: Keir | Link to this comment | 05-31-09 4:10 AM
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Oh the effects in Ireland and the Scottish highlands were worse by an order of magnitude. But even so, by the 1840s people in western Europe were no longer used to tens of thousands of people starving to death.

Was the famine of man's making but not of man's circumstances or was the famine made of man entirely, as it were?

Well, setting aside the corn laws and that, which you shouldn't, it was down to concentration on a single breed which was suitable for small holding production, but also happened to be particularly vulnerable to blight. You can't really blame people in the 1840s for not yet knowing the second bit and diversifying to different breeds which were harder to grow. You can blame people in the 21st century for continuing to follow monocultural practices which are lining us all up for a repeat in spades.


Posted by: OFE | Link to this comment | 05-31-09 4:30 AM
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Well, setting aside the corn laws and that, which you shouldn't, it was down to concentration on a single breed which was suitable for small holding production, but also happened to be particularly vulnerable to blight.

But, if I was a good Marxist, (which I amn't) wouldn't I blame the concentration on the systems of production?


Posted by: Keir | Link to this comment | 05-31-09 4:38 AM
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Amd yeah to the monoculture point.


Posted by: Keir | Link to this comment | 05-31-09 4:38 AM
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And, btw, we are Champions of Scotland. (Follow follow, we will follow!)

(Everton are the fastest team to score in the FA Cup Final. Kudos, That's going to be a pub trivia question for decades to come.)


Posted by: Keir | Link to this comment | 05-31-09 4:49 AM
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But, if I was a good Marxist, (which I amn't) wouldn't I blame the concentration on the systems of production?

Not necessarily, or only partly. You would if you were a crude Marxist. Quoth Charlie:

Men make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past.
The first phrase there is out in front for a reason. Too many later Marxists remember everything about that sentence except the beginning of it.


Posted by: OFE | Link to this comment | 05-31-09 4:50 AM
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Christchurch are champions of Scotland?????? I knew the Scottish game was a bit fucked, but seriously...


Posted by: OFE | Link to this comment | 05-31-09 4:51 AM
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Isn't the Marxist* quotation from the 18th Brumaire of Louis Napoleon, not Carlisle?

(I am curious, on account of not having easy access to either.)

* The Rangerist being from follow follow. And we are the champions, no time for losesrs etc. And Rule! Britannia.


Posted by: Keir | Link to this comment | 05-31-09 5:02 AM
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I think you can craft a fairly narrow statute that governs the grandparent situation (Pennsylvania already has one).

Way late, but this doesn't seem to make a whole lot of sense as a distinction. If the problem is the rights of the biological parent and the awfulness of the legal system, then why is the fact that the grandparent is biologically related relevant to whether they count as a de facto parent? As we can see from JRoth's case, there's no guarantee that biological grandparents relatives are going to be sympathetic.

I don't know if the PA statute in question is too lax, though it does seem to be significant that he's fabricating a lot of the evidence. But I think there's good reasons for the state to recognize de facto relationships between people even when there's already a preferred legal route; I wouldn't argue against common-law marriage protections on the grounds that there's already a preferred legal option that everyone knows about.


Posted by: Cala | Link to this comment | 05-31-09 5:16 AM
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297. Certainly it's the 18th Brumaire, source of most of Marx's more memorable quotes. I mean Charlie as in Charlie (Marx) 'n' Fred (Engels), notable 19th century post-Hegelians.


Posted by: OFE | Link to this comment | 05-31-09 5:18 AM
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Christchurch are champions of Scotland?????? I knew the Scottish game was a bit fucked, but seriously...

I I don't follow the NZFC*, but Miri amar Rangers are the Current Chatham Cup Holders.

* Well, I do, but Team, Wellington are getting their arse kicked (sorry Stu Jacobsen etc and the team (which includes a man born in Edinburgh in the same ward as I) but it is better just to pretend that Miramar Rangers are Champions of NZ also., ))

(And as a rule champions of NZ == champioms of Oceania == Champions of Europe/NorAm etc. since the A-league left for Asia.)


Posted by: Keir | Link to this comment | 05-31-09 5:37 AM
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212: Well, depending on interpretation, I'm not sure that the Washington standard would have prevented the JRoth case (which I suppose I should call the PA case, given that JRoth didn't do anything). Is 'sleeping over a lot' living in the same household? Is testimonial, non-documentary evidence that the bio-parent consented to and fostered an emotional relationship between an adult and a kid (the sort of evidence the guy in the PA case was putting forth) sufficient to establish that that relationship is parental?

What's bothering me about the PA case is that regardless of the fraud and perjury, the evidence that the guy is a 'parent' is not evidence that there were "clear indications to the world that the non-biological parent would be acting as a parent". The guy maintained a separate domicile, wasn't making educational decisions, or decisions about health care -- this wasn't a situation, even taking the perjured and fraudulent evidence as true, where an acquaintance of the family would have reasonably believed that the guy had adopted the kid. He wasn't practically acting as a parent, he's just arguing that there was an emotional bond between him and the kid tantamount to parenting (and that he provided financial assistance to the mother?) and that that creates a legally protectable right..

Now, we may have gotten a garbled version of the facts, or the judge may be applying their own mangled version of the statute, but if the facts are as described, and the judge isn't off the reservation, the standard's a real problem; that means that any single parent who allows their child to have an affectionate relationship with an unrelated adult is putting themselves at risk of losing parental rights.

298: why is the fact that the grandparent is biologically related relevant to whether they count as a de facto parent?

Grandparent-specific statutes seem, from a quick google, to largely be about a dead or missing parent's parents' right to visitation of their grandchildren over the objections of the surviving or present spouse. In essence, you'd be able to keep your kid away from your parents if you wanted to, but not necessarily away from shiv's parents if he wasn't around. I'm still not crazy about this, but maintaining a kid's connection to half of their biological family seems like a different issue from maintaining their connection to every adult who's ever been in their life.

I wouldn't argue against common-law marriage protections on the grounds that there's already a preferred legal option that everyone knows about.

I would -- putting people in binding complex legal relationships with each other without requiring their knowledge or consent seems to me to be generally a bad thing. Commonlaw marriages only exist in eleven states these days.


Posted by: LizardBreath | Link to this comment | 05-31-09 5:56 AM
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"any single parent who allows their child to have an affectionate relationship with an unrelated adult for four years is putting themselves at risk of losing parental rights. having to permit visitation."

I guess the way I'm looking at it is that there are plenty of unmarried partners, and plenty of kids who rely on those partners as parents, and given that we (or at least I wouldn't have taken you for a conservative regarding marriage) think that it's generally okay for kids to be taken care of by unmarried parents, it doesn't seem strange to allow a de facto legal recognition of that relationship when it's been an ongoing factor in the kids' life.

The guy in the PA case isn't contesting the fact that they never lived together, but he is having people lie and say that they planned to purchase a house, sending e-mails to himself that prove a long-term relationship, etc. I guess what I'm saying is that what I thought was weird about 2 was the lengths that this guy seemed to have gone to make it look like he was this kid's parent, not that if he were a de facto parent, he would have been protected.

Commonlaw marriages only exist in eleven states these days.

And the ability to find someone as a de facto parent is in...45? (And none of the common law states remaining say "without knowledge or consent")


Posted by: Cala | Link to this comment | 05-31-09 6:17 AM
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I also forgot to mention that 114 cracked me up. Poor California.


Posted by: Cala | Link to this comment | 05-31-09 6:29 AM
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(And none of the common law states remaining say "without knowledge or consent"

Is this a question or an assertion? If it's an assertion, I'm not clear on what you mean by it. States don't say things, statutes do, and common-law marriage isn't created by statute. I don't believe that knowledge of the law of common-law marriage or intent to be legally married under the common-law is an element of common-law marriage where it exists.

having to permit visitation

You seem to be dismissing 'visitation' as no big thing. First, if this gets to court, we're talking about a person who the biological parent actively does not want their child to spend time with. Overriding that judgment is a big deal. Second, the practical burden of 'visitation' can be very serious. For a parent who works,and so doesn't have much free time to spend with their kid, a couple of hours on a weekend can be a significant portion of that time. Does the defacto parent have the right to restrain the parent from moving away, and so making the kid unavailable for visitation? That's going to be a problem. Third, there are matters of parenting philosophy. Religious upbringing is generally within the parent's purview -- I realize no one sympathizes all that strongly with secularists, but picture a religious Jew required to send their child to church to be converted weekly, which is pretty close to what's going on here.

This is not a minor burden, this is a huge intrusive deal.


Posted by: LizardBreath | Link to this comment | 05-31-09 6:48 AM
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||
So there's this word, primer, that has been causing me some irritation of late, and I'm wondering if perhaps the unfoggedtariat might be able to ease my suffering. How do you pronounce the word sitting above in italics? It seems to me pretty obvious that the pronunciation is "prime-er" (nope, not going to do the phonetic alphabet thing). Simple, straightforward, and it acknowledges the root of the word, "prime" meaning roughly either "first" or "prepare". You prime before you paint, you prime a pump, and in preparing to something new you might prime your mind with the relevant information. Information that might well be found in a document of some sort. A document which apparently some people call a prim-er. My explanation for this difference in pronunciation is simple: Some people (let's call the Pretentious New England Douchebags, PNEDs, because I'm deep in negative stereotype territory here), never having done much of anything in the way of manual labor, the sort of activity that would bring one into contact with paint primer, priming of pumps, even priming explosives, encounter this word and, being exquisitely pretentious, the PNEDs retconned the pronunciation in terms of the word "prim" as in "prim and proper."

So what I'm hoping for here is that someone from elsewhere in the English speaking world will weigh in with the opinion that prime-er is the one true pronunciation for all things having to do with preparation, be they painting, pumping, blowing shit up, or learning which fork to use. I only need one person to step up here. Once I have a single instance I will have something to on which to hang my irrational bigotry, leaving me smugly superior to the PNEDs (who may in fact be completely innocent, I grant, but the point isn't establishing the facts, the point is to provide me with a rationalization for my stupid irritation over this trivial point).
|>


Posted by: togolosh | Link to this comment | 05-31-09 7:55 AM
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I'm with you, t. To the barricades!


Posted by: Walt Someguy | Link to this comment | 05-31-09 7:59 AM
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Sorry, I've always known primer-paint and primer-introduction-to-a-topic as two distinct words (with a common origin, of course) with two distinct pronunciations. Can't help you.


Posted by: LizardBreath | Link to this comment | 05-31-09 8:12 AM
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Chambers gives both. The root is apparently Latin primarius, which would often be said "preemarius", which gives some kind of validation. Not that I've heard "primmer".


Posted by: tierce de lollardie | Link to this comment | 05-31-09 8:18 AM
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You seem to be dismissing 'visitation' as no big thing.

I'm not. I just wanted to be clear that even the PA guy isn't asking for (nor will he get) custody of the child.

Plus, describing it as "the parent not being allowed to make decisions about their child" sort of stacks the deck given that what counts as a parent is what's under consideration here. (The case sounds a lot different if they were co-parenting and then one parent is shutting out the other using biology as a trump card.) And I sympathize with the mom in JRoth's case apart from the guy's deception, but I don't think the fact that she's sympathetic and courtrooms suck should invalidate laws governing de facto parenting, if they have a strong presumption in favor of the legally recognized parent.

I don't believe that knowledge of the law of common-law marriage or intent to be legally married under the common-law is an element of common-law marriage where it exists.

The sorts of things that qualify as common-law marriage require consent from both parties to knowingly represent themselves as married and intent to be married for them to be determined as married. ( I'm guessing this normally comes up after some sort of triggering event like a death.) There are statutes governing it. I'm sure there's plenty of wiggle room concerning what counts as consent and representation, but it doesn't sound like the sort of thing one could accidentally blunder into.


Posted by: Cala | Link to this comment | 05-31-09 8:23 AM
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with two distinct pronunciations

You're blowing my mind.


Posted by: nosflow | Link to this comment | 05-31-09 8:23 AM
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I've always said them with the same pronunciation, with a long "i".


Posted by: Cala | Link to this comment | 05-31-09 8:25 AM
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I'm with 307, and I certainly have come in contact with paint primer [and] priming of pumps and know what a primer is in connection with firearms and other things that go boom.


Posted by: Idealist | Link to this comment | 05-31-09 8:26 AM
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both parties to knowingly represent themselves as married

Yes.

intent to be married

No.

There are statutes governing it.

I'm not sure what you mean by this. Common-law marriage isn't created by statute, Do you mean that once a common-law marriage is recognized, that it's governed by statutes applying to marriage generally? Because true, but I don't know what the application is to this conversation.

it doesn't sound like the sort of thing one could accidentally blunder into.

Depends on what sounds like an 'accidental blunder' to you. Someone could intentionally represent themselves as married to a person with whom they were cohabiting, without intending to by that representation change the legal status of their relationship. The act is intentional, the result could still be a blunder.


Posted by: LizardBreath | Link to this comment | 05-31-09 8:33 AM
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I'm saying I looked up what conditions had to apply in the eleven states that recognize common law marriage for there to be a common law marriage, and it turned out that the conditions included consent, intent, cohabitation, community recognition, etc, e.g., there are statutes governing what counts as a common law marriage.


Posted by: Cala | Link to this comment | 05-31-09 8:39 AM
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(The case sounds a lot different if they were co-parenting and then one parent is shutting out the other using biology as a trump card.)

Depends entirely on what the word 'co-parenting' means to you. I am very disturbed by the fact that 'sleeping over at the mother's house a lot, contemplating moving in together, and the kid called me Daddy on at least some occasions' appears (same caveats about not knowing what's really going in the PA case as always) to be sufficient to create a legally enforceable relationship.

What's your lower limit for the kind of relationship you think should create enforceable parenting rights? If everything PA guy says were true -- he did sleep over all the time, they were thinking about moving in together, the kid did sometimes call him Daddy: would you be happy with allowing him to force visitation, religious exposure to which the parent was opposed, and so forth?


Posted by: LizardBreath | Link to this comment | 05-31-09 8:40 AM
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314: Link to such a statute, if you would? Or to something saying that 'intent to be legally married' is a necessary element for a common law marriage? I think you're misunderstanding what you've read.


Posted by: LizardBreath | Link to this comment | 05-31-09 8:41 AM
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312: My hypothesis is that the shift in pronunciation took place long ago and has crept into common usage, and that it reflects class distinctions from the time of the split. That also assumes that the original pronunciation is the one I prefer, which it obviously must be because I have an irrational emotional attachment to it, and if irrational emotional attachments aren't the one true path to objective truth, then what the fuck is?


Posted by: togolosh | Link to this comment | 05-31-09 8:45 AM
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131

I'm getting heated about this, because I'm a lawyer. Courtrooms are bad, dangerous places that people who don't have tens of thousands certainly, hundreds of thousands possibly, of dollars to spend on lawyers have no business in. Sophisticated business entities are often destroyed by litigation, unsophisticated individuals manage not to be destroyed only by staying out of court. Any doctrine that puts family structure at the mercy of a highly individualized and fact-based determination by a court when it's not absolutely necessary (and sometimes it is) is a nightmare.

I agree with this. Simple bright line rules have many advantages over complex rules which try to be perfectly "fair" in all circumstances.


Posted by: James B. Shearer | Link to this comment | 05-31-09 8:48 AM
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316: Further to 316 -- you're misunderstanding the existence of statutes. "Intent to be married", OTOH, is in some but not all common-law states a necessary element, but like any state of mind, it's possible to prove it where it doesn't exist -- there are going to be questions of estoppel and so forth in circumstances where a person knowingly represented or allowed themselves to be represented as married without the actual intent to enter into a legally binding marriage. But I was snider than justified on that point.


Posted by: LizardBreath | Link to this comment | 05-31-09 8:49 AM
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318: Dammit, there goes all my credibility. Thanks, Shearer.

But seriously, this is exactly right.


Posted by: LizardBreath | Link to this comment | 05-31-09 8:50 AM
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No, I wouldn't. As I've said. I'm also wondering what's up with the grandparents in this case, and whether the guy's case would get anywhere at all without them, because it doesn't sound like anything that would pass the smell test at all. Has anyone dug up the relevant PA statute, yet?

I think that something like the Washington statute Halford linked sounds about right: long duration (talking years), cohabitation, consent of the legal parent, significant parenting duties comparable to the legal parents, and emotional attachment on the part of the child. I'd like some language to sort out the step-parent responsibilities and rights (so one legal parent can't get shut out), but I don't know enough to say what I think would suffice there.

Since we're playing this way, where would you draw the line? I suspect we're somewhat close, but at what point does the de facto parent get any rights for you?


Posted by: Cala | Link to this comment | 05-31-09 8:50 AM
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316

Link to such a statute, if you would? Or to something saying that 'intent to be legally married' is a necessary element for a common law marriage? I think you're misunderstanding what you've read.

Colorado Common law marriage :

... The single most important element under common law was the mutual consent of the couple presently to be husband and wife. All the rest was considered evidence of this consent or exchange of promises. ...


Posted by: James B. Shearer | Link to this comment | 05-31-09 8:53 AM
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319: Thanks for the clarification. I know legal intent is different (which is why I hedged up above on "representing" and "consent"), and that someone could have intent without having the mental thingy we normally associate with the English word. My only point was that like de facto parenting, not every cohabiting relationship qualifies, and we don't have to worry about Mom sharing custody with every boyfriend any more than we have to worry about accidentally marrying a long-term roommate.


Posted by: Cala | Link to this comment | 05-31-09 8:54 AM
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Simple bright line rules have many advantages over complex rules which try to be perfectly "fair" in all circumstances.

I could not agree more. Trying to be perfectly fair tends to just move the unfairness around, and often comes with huge costs in terms of establishing what "fair" actually means. One of the advantages of simple bright line rules is that you can actually understand them without being a lawyer, which is important for empowering the little guy.


Posted by: togolosh | Link to this comment | 05-31-09 8:59 AM
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I would say that where the biological parent has been absent for an extended period of time and there is no evidence of the biological parent's intent to return and resume care, I'd give a non-biological parent some right to visitation. That would involve extended absence by the bio parent, and really no evidence of a serious plan for return -- this would be a very high standard.

An unrelated figure present from birth and representing themselves, and being represented by the bioparent as a parent to the community and in formal contexts (school enrollment, medical care, and so on) -- the sort of thing where a father might find out when his kid is six that he's not the biological father, or a situation similar in all respects to that except that he knew the biological facts of the kid's parentage from the beginning. And this would cover same-sex couples. But again, this would be a very high standard -- for a het couple, in the absence of adoption, I'd want the public relationship to be such that the lack of a biological or adoptive relationship was surprising to outsiders.

Cohabitation with the biological parent, or close association without cohabitation, regardless of evidence of mutual emotional attachment with the kid, without the above markers, I'd say pretty much never.

The Washington statute's ambiguous without caselaw (not a knock on it, it's just that language is ambiguous), It's possible that in practice it's as high a standard as I'd like, but it doesn't absolutely rule out situations like the one in the PA case.


Posted by: LizardBreath | Link to this comment | 05-31-09 9:01 AM
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I'm curious what happens when a couple is married and the husband thinks he is the father of the child, but in the divorce discovers he isn't. Does that situation require a "de facto parenting" law for the ex-husband to have parenting rights, or does that fall under some other case?


Posted by: Walt Someguy | Link to this comment | 05-31-09 9:03 AM
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326: In some states, AFAIR, a child born to a married woman is legally the child of her husband regardless of biological parentage. In other states, I'm not sure how that works out, but I'd agree that a father in a case like that should have the same rights to custody as a biological parent.


Posted by: LizardBreath | Link to this comment | 05-31-09 9:05 AM
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322 see 319.


Posted by: LizardBreath | Link to this comment | 05-31-09 9:05 AM
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317: No, the OED has 'primer' for prayer books and introductory books as a distinct word from 'primer' for substances used to prepare for painting or to set off explosions.

The first 'primer' is older, applied first in English to prayer books for the laity in the 1378. The first British pronunciation is a long i and the second is a short i. The first American pronunciation is a short i and the second a long i. (When I write long i, I mean like the i in 'price', which, apparently, is different for British and Americans.)

The second 'primer' is attested in 1497 for the wire used in piercing musket cartridges. It's supposed to be pronounced with a long i.


Posted by: beamish | Link to this comment | 05-31-09 9:10 AM
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Wait, so the Brits think a handbook is a pry-mer but they put on a first coat of prim-mer before they paint? Wacky.


Posted by: LizardBreath | Link to this comment | 05-31-09 9:12 AM
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Anyway, off to row.


Posted by: LizardBreath | Link to this comment | 05-31-09 9:13 AM
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There are no statutes, at least in Washington and Pennsylvania. It's common law, meaning made up by judges and inherently subject to change on a case-by-case basis.


Posted by: tulip | Link to this comment | 05-31-09 9:13 AM
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329: So I'm fucked, then. Nothing to hang my prejudices on unless I adopt a mixed pronunciation, but in that case, why not go for prim-er for both?

Fortunately I'm a dual national (UK/US), so perhaps I'll just be a Brit for books and a Yank for explosives.


Posted by: togolosh | Link to this comment | 05-31-09 9:18 AM
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309

... but it doesn't sound like the sort of thing one could accidentally blunder into.

Dave Winfield might disagree (although he eventually prevailed).


Posted by: James B. Shearer | Link to this comment | 05-31-09 9:19 AM
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Have never heard "primmer" in either sense anywhere in Britain or Ireland in over 50 years. I can only think this was an alternate pronunciation when Murray was first compiling the OED and nobody's ever got round to putting (obs) after it.


Posted by: OFE | Link to this comment | 05-31-09 9:19 AM
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I can also attest that my grandfather (born 1892), who used a schoolbook called "A Revised Latin Primer" (as did I) referred to it with a long "i".


Posted by: OFE | Link to this comment | 05-31-09 9:22 AM
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326

I'm curious what happens when a couple is married and the husband thinks he is the father of the child, but in the divorce discovers he isn't. Does that situation require a "de facto parenting" law for the ex-husband to have parenting rights, or does that fall under some other case?

In Pennsylvania he has to pay child support anyway (as does the biological father).


Posted by: James B. Shearer | Link to this comment | 05-31-09 9:22 AM
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330: No, the first British pronunciation for the first word and the only pronunciation for the second is 'pry-me(r)', pretty much as togolosh wanted. (Apparently, in British English, one doesn't pronounce the r at the end of either word.)


Posted by: beamish | Link to this comment | 05-31-09 9:23 AM
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330, 333: No, I think you're misreading what beamish meant by first and second pronunciation, they both apply to the first "word" (or meaning of the word). The second meaning is always long i.

The American Heritage Book of English Usage has:

This word, meaning "a small textbook used to teach reading," is usually pronounced with a short i, rhyming with dimmer, in American English. A variant pronunciation with a long i, as in prime, occurs chiefly in British English.

Which I think overstates. I use the long i. My hypothesis is that "immer" is more prevalent in New York/New England. My wife, raised in NY, also says "primmer". Unfortunately this guy did not include it among the 122 pronunciations and terms that he surveyed and mapped variations of.


Posted by: JP Stormcrow | Link to this comment | 05-31-09 9:27 AM
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primmer? wtf? I have never heard of such madness. prime- er, for both, all the way. sincerely,
a pretentious mid-atlantic douchebag


Posted by: alameida | Link to this comment | 05-31-09 9:27 AM
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Thank you, alameida.

In other news, fuck Barack Obama with a big stick.


Posted by: OFE | Link to this comment | 05-31-09 9:29 AM
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288: I can't work out whether MC at 198 is taking the piss or really hasn't heard of Jarndyce and Jarndyce.

I'd have to ask the same of you, since matching one passage from Dickens on the courts with a Dickens passage on the law is unlikely to be unintentional.


Posted by: JP Stormcrow | Link to this comment | 05-31-09 9:34 AM
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336: That would (almost certainly) be Kennedy's Revised Latin Primer (pr.Pry-Muh): strangely pleased to see it is still sold with the same identical cover as my school copy.


Posted by: tierce de lollardie | Link to this comment | 05-31-09 9:46 AM
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Anyway, off to row.

In a boat?


Posted by: Cala | Link to this comment | 05-31-09 9:50 AM
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Would you, could you,
in a boat?


Posted by: JP Stormcrow | Link to this comment | 05-31-09 9:55 AM
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343. God, that takes me back. I see Abbot and Mansfield's still in print too. Wow! And Wilding!. And North and Hillard! It's like a time machine.


Posted by: OFE | Link to this comment | 05-31-09 9:56 AM
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"Primmer" is the kind of thing Garrison Keillor would say whilst being exceptionally twee and Americana-ish.

I just wanted to be clear that even the PA guy isn't asking for (nor will he get) custody of the child.

Except I thought that The Boyfriend had enticed The Grandparents to lie for him by promising them that once he's in charge he'll be sending the kid to religious schools. Obviously this is the sort of fellow who is happy to lie, but it seems like one could then simply tell the Grandparents "Hey, you know that's not true -- this just means he'll get to take her for ice cream (or Rice Dream, I guess) twice a week."


Posted by: oudemia | Link to this comment | 05-31-09 9:57 AM
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346: Duckworth is very good at keeping things like that about. Bolchazy-Carducci, too. All the old Jebb Sophocles commentaries for which classicists used to scrounge about as if looking for the One Ring have been reprinted, too.


Posted by: oudemia | Link to this comment | 05-31-09 10:00 AM
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The classics stand outside time as any fule kno.


Posted by: tierce de lollardie | Link to this comment | 05-31-09 10:02 AM
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No boat, just the rowing machine. Bleah -- trying to get back into shape sucks. A slow 10K shouldn't kick my ass this hard.


Posted by: LizardBreath | Link to this comment | 05-31-09 10:11 AM
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But you're using your rowing machine!


Posted by: Cala | Link to this comment | 05-31-09 10:14 AM
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One thing about this situation that I think is driving some of the disagreement is what the limits are of this 'de facto parenting' right. If the courts have concocted some kind of absolutely limited visits-only right with no decision-making authority over the kid's upbringing, that's still a huge burden on the parent, and I still think it's a terrible idea outside of the very limited situations I set forth in 325 (and I hadn't realized the quoted Washington standard wasn't statuory), but it's not particularly similar to the legal rights a parent has, and calling it 'de facto parenting' is a misnomer. OTOH, if we're really talking about rights similar to those of a non-custodial parent, that can support court battles over education, parenting behavior that wouldn't come close to a standard of unfitness ("Honestly, your honor, being a vegan is unhealthy. How can she possibly get enough protein?"); endless secondguessing.


Posted by: LizardBreath | Link to this comment | 05-31-09 10:20 AM
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I give you a toast Ladies and gentlemen,
I give you a toast Ladies and gentlemen
May this fair field we love so well,
In pedantry and knowledge dwell.
while worlds may change and go awry,
Whilst there is still one voice to cry!---
There'll always be the Classics,
While there's academic standards.
Wherever there's a college small
Where a student aspires upwards
There'll always be the Classics


Posted by: JP Stormcrow | Link to this comment | 05-31-09 10:23 AM
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351: Yeah, I've just hauled myself back up to what I think of as baseline acceptable fitness* -- being able to put together three ten minute miles -- but I didn't feel like running today, despite how beautiful it is outside. On a day like this, the parks are crowded, and I'd be stepping on people if I went out to run.

*"Baseline acceptable" doesn't mean that I spend a lot of time at or above the baseline, mind you.


Posted by: LizardBreath | Link to this comment | 05-31-09 10:23 AM
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I suspect it was this wreck from 1897.

"This" = ? The wreck was in September 1897. It was a head-on collision between two trains.


Posted by: Mary Catherine | Link to this comment | 05-31-09 10:24 AM
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Regarding the JRoth, bizzah situation, the claim that the guy has planning this for years and has been forging emails etc. throughout this time strikes me as quite implausible.


Posted by: James B. Shearer | Link to this comment | 05-31-09 10:25 AM
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Brutus ad sum iam forte
Caesar aderat
Brutus sic in omnibus
Caesar sic in at.


Posted by: tierce de lollardie | Link to this comment | 05-31-09 10:27 AM
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What is it that roareth thus?
Can it be a Motor Bus?
Yes, the smell and hideous hum
Indicat Motorem Bum!
Thus I sang; and still anigh
Came in hordes Motores Bi,
Et complebat omne forum
Copia Motorum Borum.


Posted by: LizardBreath | Link to this comment | 05-31-09 10:31 AM
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356: I'm agnostic about that (that is, this is a very weird situation no matter what's happening, which makes guessing who's being weirdest difficult), but what's driving my disturbance is that even taking his story (as I understand it) at face value, I don't think he should have enforcable parenting rights.


Posted by: LizardBreath | Link to this comment | 05-31-09 10:33 AM
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the claim that the guy has planning this for years and has been forging emails etc. throughout this time strikes me as quite implausible.

Well, you would say that, given bizzah's 60.

(I have to agree with you, though).


Posted by: Mary Catherine | Link to this comment | 05-31-09 10:34 AM
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355: Oops, my link was messed up (and I now belatedly understand Tweety's comment in 238). Meant to link to this contemporary account from the NY Times (pdf). The article only had a partial list of "identified dead" at the time, mostly railroad employees or folks from Kansas except for "UNKNOWN CONSULTANT TRAMP". Right out of Twain.


Posted by: JP Stormcrow | Link to this comment | 05-31-09 10:38 AM
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Of course, exactly where the emails came from is a factor in how long he has to have been plotting this. If she's looking in her Sent folder and finding emails from three years ago, either she sent them, he's been plotting for a long time, or he's done something tricky (I have no idea what's workable here) to her email archive to fake the date. OTOH, if he's got some third party with a printed-out email From: Her; Dated: Two years Ago, that's much easier to have arranged last week.


Posted by: LizardBreath | Link to this comment | 05-31-09 10:40 AM
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How shall wretches live like us
Cincti bis motoribus?
Domine, defende nos
Contra hos motores bos!


Posted by: nosflow | Link to this comment | 05-31-09 10:44 AM
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What the FUCK are you guys singing?


Posted by: Cala | Link to this comment | 05-31-09 10:49 AM
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361: Yes, that's the wreck. However, my McTragedy uncle is not listed there (unless they initially had him down as "Unknown Tramp"?! he was a postal clerk, actually). I think it took them about a week to sort out the names of the dead. I have a newspaper account from Waterloo, Iowa, dated Sept 15, which does list him, along with about six other postal clerks.


Posted by: Mary Catherine | Link to this comment | 05-31-09 10:50 AM
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356/60: Yeah.


Posted by: oudemia | Link to this comment | 05-31-09 10:51 AM
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A.D. Godley, "Motor Bus".


Posted by: nosflow | Link to this comment | 05-31-09 10:52 AM
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341: It is barely possible (look, I'm trying to stay whirly-eyed here) that the legal position being taken is "The administration can't be compelled by the courts to let them into the US" rather than "We're not going to let them into the US." I can see reasons to take the first position even if the Adminstration were going to settle the Uighurs in the US. But this window of "Maybe not as bad as it looks" doesn't last long -- if they're going to do something decent, they should do it now.


Posted by: LizardBreath | Link to this comment | 05-31-09 11:01 AM
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To nouns which cannot be declined
The neuter gender is assigned:
Examples, fas and nefas give,
And the verb noun infinitive.

(the only Kennedy original I can remember in its entirety.)


Posted by: OFE | Link to this comment | 05-31-09 11:05 AM
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368. Keep on whirling, kid. Me, I'll give them till they get out of the GM meeting tomorrow morning to do something decent. Or they they can fuck right off.


Posted by: OFE | Link to this comment | 05-31-09 11:15 AM
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I always said "prime-er" because I was taught to paint with it (and consequently I am snobbish about people who thinks walls don't need to be primed). I always read Laura Ingalls Wilder's schoolbooks as "prime-ers" too, until one day I was corrected by an excruciatingly correct person with Mid-Atlantic/New England roots. I assumed he was right until just now. Hmmmmm.

On the specific case that JRoth mentions: Is there a better argument for "Hard cases make bad law"? My sympathies to the poor kid, especially.

On the general topic of not-formalized relationships become a big, hairy mess -- I've seen enough of these to think that the law is an imperfect tool at best. I don't have a great suggestion for replacing it, though. Just try to weigh in, gently and kindly, on the side of "Might be wise to formalize all of these intentions," when friends are in situations such as Dead President describes in 184.

Hypothesis: One's position on this issue is affected by the number of instances one has personally witnessed in which non-bio-parent was either acting in good or bad faith, and the outcome thereof?

And finally, this thread is the perfect place for a question that occurred to me a while back. In many states, a man was (is?) considered the father of a baby if he was married to the mother at the time of birth. IOW, he could be forced to pay child support, regardless of the "true" parenthood of the child. Now that we have gay marriage in some states, are courts going to rule similarly -- that is, if a child is born to one half of the couple, is the other partner going to be legally declared the parent, regardless of whether they affirmatively sign a declaration of paternity or go through an adoption process?


Posted by: Witt | Link to this comment | 05-31-09 11:16 AM
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Thinks s/b think

Become s/b becoming


Posted by: Witt | Link to this comment | 05-31-09 11:19 AM
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And finally, all the way back to the original post:

there is one and only one profession from which registered sex offenders are barred by law.

And this isn't because ALL convicted felons (of which sex offenders would be a subset) aren't barred from a much larger group of professions?

I'm just struck because so many places I know do criminal background checks. In some cases that it the employer's discretion, but in many others it is state-mandated. You can't get a janitorial job (from 4-9 p.m.) in a public school without having one, for example. Not just state -- FBI.


Posted by: Witt | Link to this comment | 05-31-09 11:24 AM
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368:Carp';s outraged over a ObsWi

Doesn't habeas mean get me that person in this courtroom now? Is there any way to interpret "can't be compelled" but that the administration can tell the courts to F-off even on a habeas writ?


Posted by: bob mcmanus | Link to this comment | 05-31-09 11:25 AM
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||

George Tiller, the Wichita abortion doctor, was shot and killed this morning.

|>


Posted by: bizzah | Link to this comment | 05-31-09 11:28 AM
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I think the government's position on executive power here is dead wrong. Core habeas includes the power of the court to order the jailer to bring the prisoner to the courthouse. This is not open to question.

Posted by: CharleyCarp | May 30, 2009 at 10:42 PM

After the years spent, and the SCOTUS rulings on habeas, the Obama administration is still playing games with the foundations of Western Civilzation.

375:Fuck


Posted by: bob mcmanus | Link to this comment | 05-31-09 11:35 AM
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Fucking terrorists.


Posted by: LizardBreath | Link to this comment | 05-31-09 11:36 AM
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275/77: I just saw. I am nauseated.


Posted by: oudemia | Link to this comment | 05-31-09 11:48 AM
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The poor man. Fucking terrorists.


Posted by: Cala | Link to this comment | 05-31-09 11:51 AM
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190: Actually, I find this comment grotesque, Pars. Of course parents who give a crap about their kid give a crap about who has what kind of role in that kid's upbringing. Duh. To characterize that as some sort of neurotic control thing is a bit much. It's all well and good to say, oh just communicate! But maybe it's not totally insane for parents to want some control over which and how many other people thay are negotiating their child's care with.

Sorry, Di. I did insert as many caveats as I possibly could.

I didn't say it was totally insane, though, for parents to care about this sort of thing. Rather, that talking to UNG's girlfriend (in your case) about her advice to Rory was likely a good idea if you haven't done it already; that none of the adults in question is going to be able to get on with her or his life if a third (or fourth) party's coming to care about Rory is ruled out from the get-go; that non-conventional family structures just do involve multiple adult caregivers; and that those caregivers might need to discuss their joint efforts with one another rather than trying to struggle for dominance.

I think this is pretty mild stuff. But again, I don't have children in the first place, and of course it's easier said than done. If a third party is recalcitrant or simply unacceptable as a parental, or just mentoring, figure, of course the communication angle becomes deeply problematic.

I don't need to say anything more about this, though, stepping on toes as I already have.


Posted by: parsimon | Link to this comment | 05-31-09 11:52 AM
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373: And this isn't because ALL convicted felons (of which sex offenders would be a subset) aren't barred from a much larger group of professions?

Sometimes. It is touch and go. Systemically, we're progressed from a three-strike system to a de facto one-strike system. So Congress and various state legislatures have introduced second-chance options. They're specifically exempting RSO's when they do that. There is also the issue of an RSO not being a convicted felon. In this particular instance, they're converting a mostly de facto practice to a de jure practice just to make sure everyone gets it.

Basically the state Leges are competing to see who can be the most draconian. They did the same thing during the 80's, except then the target was drugs.

max
['And, as above, now they're going to swing around and bring people with drug issues back into the target group.']


Posted by: max | Link to this comment | 05-31-09 1:15 PM
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Oh, yeah, while I am nattering about drugs, the NYT:

Federal officials now consider the cartels the greatest organized crime threat to the United States. Officials say the groups are taking over heroin distribution from Colombians and Dominicans and making new inroads across the country, pushing a powerful form of heroin grown and processed in Mexico known as "black tar" for its dark color and sticky texture.
Their operations often piggyback on a growing and struggling Mexican immigrant population. In a case that provides a window into how this works, two illegal immigrant dealers pleaded guilty to manslaughter last year in Mr. Eisel's death, in a rare federal manslaughter prosecution from a drug overdose.

Since heroin abuse usually peaks out during economic down cycles (coke and such peak out during go-go years), the heroin peak is pretty much already here, and the peak of official concern is about to show up.

max
['And the plot line includes illegals, so we gotcher twofer here. This should be fun.']


Posted by: max | Link to this comment | 05-31-09 1:22 PM
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Huh. Black tar heroin has been a big problem in northern New Mexico for decades, but I've never heard of it elsewhere before.


Posted by: teofilo | Link to this comment | 05-31-09 1:27 PM
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Dude, people, it's pronounced "primmer." A lot of people---US and UK types--in my old department did primary research on primers, and if you said "pry-mer" to them, they'd look at you either in confusion or in pity.


Posted by: Jackmormon | Link to this comment | 05-31-09 6:41 PM
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primary research on primers

Primmery research, in other words.


Posted by: teofilo | Link to this comment | 05-31-09 6:44 PM
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380: Huh. I found the earlier "grotesque" comment offensive; I hadn't realized it was directed specifically at me. How nice.


Posted by: di kotimy | Link to this comment | 05-31-09 7:23 PM
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271: I like him; he's funny and thoughtful. When I've dated guys like that before, it has not gone well

Sounds like straightforward self-sabotage to me. A nice guy who you really like has a lot more potential to disappoint than the dysfunctional psycho you already know will hurt you or let you down. Part of me wants to call you a coward; the other part thinks you made the right choice. Dating sucks.


Posted by: di kotimy | Link to this comment | 05-31-09 7:50 PM
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Further to 387. AWB, you did say that you've had a lot of therapy since then.


Posted by: Bostoniangirl | Link to this comment | 06- 1-09 7:06 AM
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I've never heard of it elsewhere before.

This gruesome, depressing documentary about black tar heroin from 2000 was all shot in San Francisco.


Posted by: apostropher | Link to this comment | 06- 1-09 7:12 AM
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390

"documentary from 2000 about black tar heroin", that is.


Posted by: apostropher | Link to this comment | 06- 1-09 7:13 AM
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387: I wrote nearly exactly this comment yesterday, but didn't post it because I don't want to pile on Bear. I disagree with the penultimate sentence, though. Confusion is sufficient explanation. People are more than capable of wanting two incompatible things on a very deep level (deep desire and deep incompatibility both). When I engage in self-sabotaging behavior it's usually due to that problem (and also usually mind-buggeringly obvious to everyone except me).


Posted by: togolosh | Link to this comment | 06- 1-09 7:34 AM
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391: Well, right. Calling it self-sabotage implies that you really want, or should want, the thing you're messing up -- sometimes the issue is that you really don't want what you think you should.


Posted by: LizardBreath | Link to this comment | 06- 1-09 7:48 AM
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Regarding JRoth's comment, I havent read the entire thread, but I hope that later in the thread, someone brought up the possibility that this guy might just have a great relationship with the kid.

Perhaps he took care of her and the kid for some extended period of time.

Is it not damaging to the child to jerk him away from the child?

Just bc the mother presented it to others that he had no relationship doesnt make it so.


Posted by: will | Link to this comment | 06- 1-09 7:51 AM
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It's been discussed extensively -- I think the most significant question isn't 'can we know that it's in the best interest of the child to sever contact with this guy' (the answer is clearly that we can't know that, not knowing the people individually). Rather, the question as I see it is 'is it a good idea to put the decision about whether the kid should have an ongoing relationship with this guy in the hands of a court rather than her mother?'


Posted by: LizardBreath | Link to this comment | 06- 1-09 7:56 AM
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The right to parent is constitutional right.

Non-parents only come into the picture under certain limiting circumstances. Once you allow someone else to parent your children, you make an important decision with lasting consequences.

The burdens are high for non-parents. Cala outlined some of the issues. These cases are too fact dependent for me to argue about too much here.

(Of course, a court is never a great way to resolve issues of kids, but sometimes you dont have a choice.)


Posted by: will | Link to this comment | 06- 1-09 8:04 AM
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Yes, exactly. The mom is going to inevitably make some choices in raising her daughter that turn out to have been "wrong." Maybe this is one of them; maybe it's not. But it doesn't seem like it's in anyone's best interests -- including those of the children -- to have a system that allows third parties and the court to undermine a parent's judgment about what's best for his or her kid when there is no suggestion that the parent is in any way unfit to exercise his or her judgment.

This guy might have a great relationship with the little girl. but that shouldn't be allowed to override the mother's relationship with her daughter.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 8:07 AM
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397

396 to 394


Posted by: Di Kotimy | Link to this comment | 06- 1-09 8:08 AM
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These cases are too fact dependent for me to argue about too much here.

Yeah, that's something that makes me very uncomfortable. I'd like the existence of a relationship creating legally enforceable parental rights to be either formalized, or at least subject only to very clear bright-line rules. The idea of fuzzy factual determinations in an area like this is very disturbing.


Posted by: LizardBreath | Link to this comment | 06- 1-09 8:11 AM
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393: If the guy had a great relationship with the kid, and the kid genuinely feels about this guy as another parent, then the guy has nothing whatsoever to lose by waiting till after the little kid's 5th birthday to raise the question of being recognised as a defacto parent, when a court-appointed guardian ad litem will listen to what the little kid has to say about "dad".

That the guy wants to get defact parenthood established before the kid he claims he wants to parent will be allowed to say what she thinks about this guy in any way at all, actually strikes me as the most dubious thing of all. The woman isn't about to leave the state (well, as far as we know from JRoth's story): if the guy has studied parenting law to such an extent, if he were confident the kid would say "Yes, that's my dad!" he'd wait till after the kid's 5th birthday and then pursue it.

Okay, maybe I'm just paranoid. But yes, actually, under these circumstances I do wonder very much why a guy is prepared to go to such lengths to get - eventually - unrestricted visitation with a little girl.


Posted by: | Link to this comment | 06- 1-09 8:14 AM
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400

Curses. 399 is me.


Posted by: Jesurgislac | Link to this comment | 06- 1-09 8:14 AM
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For these cases to proceed for CUSTODY, there typically has to be some abandonment of custody and/or unfitness.

Visitation is a different issue, but the burden isnt much lower. Once again the burden is significant, actual harm to the child if visitation doesnt take place often must be shown, not that visitation would be in the best interest.

I wouldnt get too worked up over JRoth's scenerio any more than I would about any of the examples like the McDonald's coffee lady. The actual facts and the actual law have a way of working themselves out.

I regularly hear about amazing injustices in custody case. Some of them are true. But, in most of them, some important facts are left out of the story. Once you add in those facts, your impression usually changes.


Posted by: will | Link to this comment | 06- 1-09 8:16 AM
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Jes:

I dont know PA law, but, in VA, a child's preference rarely comes into it until much later. (Cases have allowed a 7 yr old to express it, but most courts dont want to hear about it until 11 or 12.)


Posted by: will | Link to this comment | 06- 1-09 8:18 AM
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under these circumstances I do wonder very much why a guy is prepared to go to such lengths to get - eventually - unrestricted visitation with a little girl.

Seriously?

Would you assume the same if it were a woman? Because you know they might be pervs?


Posted by: will | Link to this comment | 06- 1-09 8:19 AM
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I don't know PA law either, but bizzah described it in 19, way above, as allowing testimony from the child (not about their wishes, but about their understanding of the facts) once they hit five. Consideration of the child's wishes doesn't come into it until around 12, as you say.


Posted by: LizardBreath | Link to this comment | 06- 1-09 8:21 AM
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I regularly hear about amazing injustices in custody case. Some of them are true. But, in most of them, some important facts are left out of the story. Once you add in those facts, your impression usually changes

This is an important point, too.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 8:22 AM
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I suspect that Di understands all too well.

In almost every divorce, both parents proceed to tell their friends (acquantanices, strangers, and passers-by)all of the injustices that they have suffered.

As friends, we frequently say "Wow! That is horrible!"

The storyteller takes those expressions of sympathy as a full-blown judgment on the facts that everyone thinks he/she got screwed.


Posted by: will | Link to this comment | 06- 1-09 8:25 AM
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My ex told everyone that we split bc I could not take having an autistic child. For the next 4 years, my friends and acquaintances would run into people who would echo something my ex would say. Their jaw would drop and they would say "WTF?!!? and explain differently.


Posted by: will | Link to this comment | 06- 1-09 8:28 AM
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What I've been getting exercised about in the PA case is that assuming we've got a fair picture of the evidence the guy is putting forth, even if it's all true it doesn't seem like a reasonable basis for saying that a court should be holding that he has any kind of 'parental' rights. Now, if there's completely different evidence from the sort of thing JRoth and bizzah described, obviously we can't draw any conclusions at all.


Posted by: LizardBreath | Link to this comment | 06- 1-09 8:29 AM
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Will: Would you assume the same if it were a woman?

I'm trying very hard not to assume anything. But given that statistically a man is more likely than a woman to want to molest a little girl, and given how obsessive paedophiles can be in getting access to their sexual targets, if the story JRoth tells is accurate in all details, yes, that's what comes to mind as a possibility - he doesn't have a relationship with the girl's mother, he wants a relationship with the little girl, and if JRoth's story is accurate, he never parented the little girl: he just wants access.


Posted by: Jesurgislac | Link to this comment | 06- 1-09 8:36 AM
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And you note the qualifications, Will? IF JRoth's story is accurate, and the man has been going to this obsessive amount of trouble to make sure that, after 4 years, he would be able to claim defacto parenthood, without actually having to maintain a relationship w ith the girl's mom, then the guy has some kind of strong motivation to do that - videos could have happened almost by accident, in these days of cheap video cameras, but deliberately hacking into girlfriend's e-mail account and sending fake e-mails to himself? If true, that's obsessive, and yes, I am paranoid about grown men who are obsessive about wanting access to little girls.


Posted by: Jesurgislac | Link to this comment | 06- 1-09 8:40 AM
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408: Right. It's one thing for will's ex to go into a custody battle claiming will can't handle his daughter's special needs or for UNG to claim I care more about my career than about my child. I mean, fuck them for the, of course, but you suck that up as part of the territory. But what should it take before we allow third parties, non biological or adoptive parents, to come in and start making such claims? LB's position, which I am totally on board with, is "not until the parents are shown unfit to make the parenting decisions themselves."

I was thinking about this this morning, and parsimon's qualms about communication and cooperation and why-can't-we-all just get along. She wants to construe that as a struggle for domination. But it's not. Parenting is a difficult job, especially if you really care about doing it well. Like any job, the more people you have interfering, the less effectively you will be able to do your part well. If I'm writing a brief (I am!) and a colleague disagrees on the approach (he does!) and we have to get the thing done together (we do!) it's going to be an awful mess (it is!).


Posted by: Di Kotimy | Link to this comment | 06- 1-09 8:46 AM
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391, 392: Well, yeah, I think there's quite clearly the problem that I'm not entirely comfortable with the things I'm actually drawn to, and life would be a lot easier if I were less drawn to them, but there's a real tension between wanting to be the "healthy," "normal" person who wants more standard relationships and learning to figure out a way to negotiate my desires such as they are in a healthier way. Whenever I try to do the former, I always end up very unhappy and making someone else very unhappy. When I've been able to do the latter, I've at least emerged feeling no harm was done on either side. So if I seem "self-sabotaging" in the face of more standard dating relationships, it's largely because I'm so unbelievably tragically bad at them that I'm fairly sure (and this is also what my therapist concluded) that I'm just not psychologically oriented toward them. Is it fixable? Maybe. But it's not a good sign in that direction that as I seek more emotional stability and coherence in my life, it's been largely more about not being so hateful at myself about my psychosexual landscape.


Posted by: A White Bear | Link to this comment | 06- 1-09 9:28 AM
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412: Has the therapist returned yet?


Posted by: heebie-geebie | Link to this comment | 06- 1-09 9:31 AM
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No sign of her. I've been thinking about trying to contact her. Even if she did come back, she may assume I hate her for abandoning me, but I don't. I really don't want to start over, you know?


Posted by: A White Bear | Link to this comment | 06- 1-09 9:32 AM
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412: Ahh. So you'd like to want to be in a relationship with the nice boy, but don't actually want it? I'd gotten the impression from your earlier comments that you were worried about blowing your chance with the nice boy; this sounds more like you would be glad to take that off the table, but are worried that you may have taken it off the table in a way that might have hurt his feelings. (I hope my calling it "self-sabotage" wasn't offensive -- I didn't mean it in a critical way.)


Posted by: Di Kotimy | Link to this comment | 06- 1-09 9:42 AM
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Jes:

I am just surprised that you leap to thoughts of molestation based on no facts. As someone who is probably subjected to horrible, baseless generalizations, I would have thought that you would have been slower to go there.


Posted by: will | Link to this comment | 06- 1-09 9:50 AM
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415: So you'd like to want to be in a relationship with the nice boy, but don't actually want it?

Something like that. Or I often meet people and want the relationship I want with them, but I end up compromising away all the things I want because they want something more recognizably standard and I end up being miserable. Or, like some of my more recent exes, they've gotten intrigued by the possibilities of the kind of relationship I offer, but eventually figured out they're not OK with it when they realize they're miserable.

And it's not like a thing I can just give a name to and say "I want an open relationship!" or something like that. It's more about a certain kind of non-heteronormative relational dynamic.


Posted by: A White Bear | Link to this comment | 06- 1-09 9:52 AM
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So if I seem "self-sabotaging" in the face of more standard dating relationships, it's largely because I'm so unbelievably tragically bad at them that I'm fairly sure (and this is also what my therapist concluded) that I'm just not psychologically oriented toward them. Is it fixable? Maybe. But it's not a good sign in that direction that as I seek more emotional stability and coherence in my life, it's been largely more about not being so hateful at myself about my psychosexual landscape.

I guess my other question to this is, whether it's "fixable" or not, does it need to be fixed? If you are not psychologically oriented toward standard dating relationships, is that something that needs to be changed? Why isn't it enough to be less hateful at yourself for wanting what you want? Analogy ban, etc., but is there a difference between you trying to change your psychosexual orientation and someone who is gay trying to change that orientation?

(Open-ended questions -- I express, and in fact have, no opinion on the "correct" answers.)


Posted by: Di Kotimy | Link to this comment | 06- 1-09 9:52 AM
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LB's position, which I am totally on board with, is "not until the parents are shown unfit to make the parenting decisions themselves."

Here is the basic law in Virginia:

The United States Supreme Court stated that the "liberty interest at issue in this case -- the interest of parents in the care, custody, and control of their children - is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville, 530 U.S. 57, 65, 147 L.Ed 2d 49 (2000).

The law is clear that in a custody dispute between a parent and a non-parent, the law presumes that the child's best interests will be served when the child is in the custody of its parent. See Bottoms v. Bottoms, 249 Va. 410 (1985).

However, this presumption is rebuttable in certain limited ways. The presumption would be rebutted if the non-parent proves by clear and convincing evidence that the parent abandoned the child, the parent is unfit, or the parent voluntarily relinquished custody


Posted by: will | Link to this comment | 06- 1-09 9:53 AM
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419: But it sounds like PA law is different -- that the presumption is rebutted, at least to the extent of visitation, if the non-parent has formed a "de facto parenting relationship."


Posted by: Di Kotimy | Link to this comment | 06- 1-09 9:56 AM
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And you know, I'm probably less hostile to the third party rights if it's perfectly clear that the third party's rights are contingent upon the rights of the parent who brought them into the child's life. I.e., if UNG and his girlfriend broke up and the court held that she got every other one of his every other weekends, and it didn't impinge on my parenting time/relationship at all, then more or less, shrug.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 10:03 AM
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418: Yep, that's the problem. Obviously, life is a lot easier to navigate if you can fall within a certain range of normal hetero dating practices, so if you can pass, or if it seems within the range of possibility, it's very tempting to do so, or to "fix" yourself to be more in line with expectations. Learning to accept yourself for who you are can feel a bit like abandoning the whole project. It just feels weird that I get better in a lot of other ways as I get older--better at making and keeping close friends, better about empathizing with people, better at being honest with myself--but I get worse and worse at being a man's girlfriend. At a certain point, one loses the stomach for it.


Posted by: A White Bear | Link to this comment | 06- 1-09 10:03 AM
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421:

In my experience, that is what happens.


Posted by: will | Link to this comment | 06- 1-09 10:07 AM
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422: I hear ya! I'd say something stupid about how being a man's girlfriend is far from the most important thing in life, but you know that already and it doesn't do much to help the fact that it often seems like it would be rather nice to be someone's girlfriend. That maybe you just haven't met the man to whom you, just as you are, would be the awesomest girlfriend ever is as true as it is totally not comforting at all.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 10:10 AM
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he doesn't have a relationship with the girl's mother, he wants a relationship with the little girl, and if JRoth's story is accurate, he never parented the little girl: he just wants access.

Against your thesis: that from what bizzah was saying, this seems to have been in part at the prompting of the grandparents who are worried about the no-vax, no religion choices of the mom.


Posted by: Cala | Link to this comment | 06- 1-09 10:15 AM
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as true as it is totally not comforting at all

COME TO MAMA, AWB.


Posted by: OPINIONATED WIRE MONKEY | Link to this comment | 06- 1-09 10:17 AM
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That maybe you just haven't met the man to whom you, just as you are, would be the awesomest girlfriend ever is as true as it is totally not comforting at all.

Yes, and, frankly, this person for whom I would be the awesomest girlfriend ever is probably not going to be some nice, well-adjusted monogamous guy who wants to cuddle and watch TV. Part of the Not-OK tension is that we have both mutually declared that each other would be the awesomest partner ever (neither of us is easily offended or careful with each other, we both respond to jealousy by being sexually aggressive rather than pouty, and we really enjoy ignoring each other for long stretches of time and then getting together), but those are all aspects of himself that he hates and is trying to get rid of so he can be a good boy. Having a relationship with me wouldn't just mean threatening our existing relationship; it would also mean giving up on his project of becoming a nice normal guy who dates nice normal girls.


Posted by: A White Bear | Link to this comment | 06- 1-09 10:20 AM
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427: Okay, it makes sense. I'd pose to him as well the question of why he wants to become a nice normal guy who dates nice normal girls, but he knows what is best for him and why. It sounds alot like you did find someone who is right for you but, for reasons beyond your control, he's put himself out of reach. That sucks.

Also, if you find yourself turning down hordes of "nice, well-adjusted monogamous guy[s] who wants to cuddle and watch TV," feel free to start giving out my number...


Posted by: Di Kotimy | Link to this comment | 06- 1-09 10:29 AM
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from what bizzah was saying, this seems to have been in part at the prompting of the grandparents who are worried about the no-vax, no religion choices of the mom.

Just for the record, if my 14 gave that impression it was phrased badly. My understanding is that the boyfriend is self-motivated.


Posted by: bizzah | Link to this comment | 06- 1-09 10:29 AM
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While we are making sure the record is clear, i am not suggesting that this guy might not be a complete jerk with no basis whatsoever.

I just spend my days hearing about outrages that turn out to not be so outrageous once all the facts come out.


Posted by: will | Link to this comment | 06- 1-09 10:37 AM
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Fair enough, bizzah. Still. The guy seems to be bad enough without speculating that he's also a child molestor.


Posted by: Cala | Link to this comment | 06- 1-09 10:39 AM
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The guy seems to be bad enough

He does?

He spends 3 - 4 years with this kid, including supporting the child, and he is bad because he wants to continue the relationship?

Maybe he shouldnt be able to, but does that make him bad?

It seems to me that "bad" should be reserved for other people.


Posted by: will | Link to this comment | 06- 1-09 10:42 AM
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431. Not withstanding, it was the first thing I thought of when I read JRoth's comment. I think we're conditioned to think this by the MSM. 430 is a good antidote - maybe he's just a natural born creep.


Posted by: OFE | Link to this comment | 06- 1-09 10:43 AM
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On the facts we have, he's forging e-mails to invent a relationship where none existed. I'm comfortable with calling that bad. If we're postulating other facts, we can pick other words to describe his behavior.


Posted by: Cala | Link to this comment | 06- 1-09 10:44 AM
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If we're postulating other facts, we can pick other words


Posted by: nosflow | Link to this comment | 06- 1-09 10:47 AM
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he is bad because he wants to continue the relationship

I'd say trying to continue the relationship by suing her mother, rather than by persuading her mother to let her keep seeing him, is a bad thing to do.


Posted by: LizardBreath | Link to this comment | 06- 1-09 10:48 AM
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Cala:

You are correct. I had forgotten about that part.

But, I am also tending to start to believe him. Here is JRoth's comment: "And the hearings have begun, and are not going well."

People are apparently mostly testifying for him. The hearings are going well.

Perhaps she is the liar? Obviously, we are speculating, but, maybe, just maybe, he is the good guy here.

Of course, everyone else could be perjuring themselves, and only she is telling the truth.


Posted by: will | Link to this comment | 06- 1-09 10:49 AM
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I'd say trying to continue the relationship by suing her mother, rather than by persuading her mother to let her keep seeing him, is a bad thing to do.

He isnt suing her. He is asking to see the kid.

Do you really think he didnt ask her first? He just rushed out and spent money on a lawyer first? That doesnt sound like typical behavior, but, who knows, you could be correct.


Posted by: will | Link to this comment | 06- 1-09 10:51 AM
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He isnt suing her. He is asking to see the kid.

He is "asking" in the form of a legal pleading.

Do you really think he didnt ask her first? He just rushed out and spent money on a lawyer first?

And she said no. And maybe that really sucks, and I can feel bad for someone who wants to maintain contact with a child and isn't allowed by the parent. But she's the mom and she said no. Taking her to court send a very clear message that, as far as her child is concerned, he doesn't think what she says goes. Sorry, but refusing to respect the primacy of the actual parent's relationship is not good in my book.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 10:59 AM
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He might have asked, but when he got no for an answer, he sued.

Perhaps she is the liar? Obviously, we are speculating, but, maybe, just maybe, he is the good guy here.

This is why I was focusing on the weird standard that seems to be applicable under PA law. From the story put forth, I'd believe that the truth of the closeness of the relationship between the guy and the mother and child is between what each party is saying, rather than being a total fabrication. But the idea that even a live-in boyfriend who can demonstrate an affectionate relationship with a kid (which is what the evidence described, even if it were true, would demonstrate) would be able to use legal process to compel visitation with the kid after breaking up with the mother (where there's been no showing that the mother was unfit) seems very wrong to me.


Posted by: LizardBreath | Link to this comment | 06- 1-09 11:02 AM
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Di-pwned.


Posted by: LizardBreath | Link to this comment | 06- 1-09 11:03 AM
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441: I like to think of it more as a collective-show-of-force rather than pwnage. I've got the obvious challenges to my objectivity on the issue, so it's good to have agreement from someone with no foreseeable horse in the race.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 11:05 AM
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BUT I'M CHAMPING AT THE BIT!!!!11!!!!


Posted by: OPINIONATED HORSEBREATH | Link to this comment | 06- 1-09 11:13 AM
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someone with no foreseeable horse in the race.

(Knocks on wood, throws salt over left shoulder, etc.)


Posted by: LizardBreath | Link to this comment | 06- 1-09 11:13 AM
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442: I'm going to take LB's admission of pwnage as a statement against interest and therefore admissable.

Therefore: Hey, LB got pwnd! Somebody take a picture!!


Posted by: M/tch M/lls | Link to this comment | 06- 1-09 11:14 AM
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I get pwned constantly -- my tenure here is one long stream of pwnage. Admittedly, there are some who I often pwn, and am rarely pwned by (coughapocough), but not Di.


Posted by: LizardBreath | Link to this comment | 06- 1-09 11:16 AM
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But the idea that even a live-in boyfriend who can demonstrate an affectionate relationship with a kid (which is what the evidence described, even if it were true, would demonstrate) would be able to use legal process to compel visitation with the kid after breaking up with the mother (where there's been no showing that the mother was unfit) seems very wrong to me.

Obviously, I do not know the standard in PA, but I suspect that it is high.

But, you use the term "affectionate relationship." I believe someone said the standard was "parental relationship for 4 years." Those sound like very different things to me.


Posted by: will | Link to this comment | 06- 1-09 11:16 AM
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But, you use the term "affectionate relationship." I believe someone said the standard was "parental relationship for 4 years." Those sound like very different things to me.

Sure. But part of the problem is deciding how to define a "parental" relationship. From what JRoth and bizzah described, something that you or I or LB might describe as an affectionate relationship appears sufficient to create a parental relationship under PA law.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 11:20 AM
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As described, the evidence he's putting forth is emails saying she missed him, photos and videos of her at two, an age at which what word she was using to refer to him, prompted or not, doesn't establish anything, and evidence that he slept at her mother's house a lot and that he and her mother considered buying real estate together. If that sort of evidence, rather than, for example, evidence that acquaintances of the family knew him as her father or that he was listed as a father on school forms or with her pediatrician, is sufficient to establish that the relationship was paternal, that seems freakishly low to me.


Posted by: LizardBreath | Link to this comment | 06- 1-09 11:21 AM
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Argh. Parental paternal parental paternal parental paternal. God knows how many times I've typoed that in this thread.


Posted by: LizardBreath | Link to this comment | 06- 1-09 11:21 AM
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And again, what Di said.


Posted by: LizardBreath | Link to this comment | 06- 1-09 11:22 AM
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What do you make of the comment that "the hearings are not going well" and that people seem to be testifying for him?

Obviously, we are speculating wildly, but doesnt that sound as though he might have such evidence?

It sounds to me as if PA might require evidence of the type that LB is mentioning. But, I could be wrong. It has happened once or twice in the past.


Posted by: will | Link to this comment | 06- 1-09 11:24 AM
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Will, you've never seen people testify falsely or hearings appear to go well for lying dirtbags*? I may very well have to try practicing law in VA!

* Obviously, the guy may not be a dirtbag. Just arguing that the fact that a hearing looks to be leaning in his favor is not probative one way or another.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 11:27 AM
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I would also point out that hearings very often seem to go better for people who are more closely aligned with community values. If this is a religious community, the guy testifying that he just wants to raise the baby to know Jesus may have an easy leg up on the DFH. I sure as hell know that if I were ever involved in a custody battle, I could get a shitload of mileage out of the fact that UNG and his girlfriend are living in sin.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 11:30 AM
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Will, you've never seen people testify falsely or hearings appear to go well for lying dirtbags*? I may very well have to try practicing law in VA!

* Obviously, the guy may not be a dirtbag. Just arguing that the fact that a hearing looks to be leaning in his favor is not probative one way or another.

Not probative? Don't you mean "dispositive"?


Posted by: will | Link to this comment | 06- 1-09 11:30 AM
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452: All we've got to go on is what JRoth and bizzah have independently said, and both agree on the types of evidence (whether or not it's perjured) that the guy is proffering. And neither's suggested that the guy was known to the community as the kid's father, nor that he acted as such in formal contexts -- the evidence they talk about is evidence of the emotional relationship between the guy and the kid, and evidence that he was involved with the mother.

If he was around from birth and the mother was identifying him as the kid's father on the form with the pediatrician's office and the preschool, and their friends were surprised to find out that he wasn't the father, that would be an entirely different situation. But no one with knowledge (JRoth and bizzah) has suggested that any of that sort of evidence (whether or not they think it's perjurious) was offered.


Posted by: LizardBreath | Link to this comment | 06- 1-09 11:30 AM
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haha I love it when three lawyers are arguing over what evidence is being presented in a hearing based on a snippet of info.

This should be a game show! (Obviously, for loser lawyer-geeks like ourselves.)


Posted by: will | Link to this comment | 06- 1-09 11:32 AM
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I sure as hell know that if I were ever involved in a custody battle, I could get a shitload of mileage out of the fact that UNG and his girlfriend are living in sin.

Really? In this decade? Man, NY is a hellhole of godless cosmopolitianism.


Posted by: LizardBreath | Link to this comment | 06- 1-09 11:32 AM
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455: No, I meant probative.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 11:33 AM
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We don't know the precise backstory,

This is the most important part of JRoth's comment.


Posted by: will | Link to this comment | 06- 1-09 11:33 AM
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The actual testimony in court doesnt tend to prove that testimony?


Posted by: will | Link to this comment | 06- 1-09 11:36 AM
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458: My county is a bastion of Christian fundamentalism. In Chicago it probably wouldn't carry much weight.

Now were they to marry and form a Traditional Nuclear Family Unit, I might have a hard time as the godless single career woman. But shh!! Don't tell them that!


Posted by: Di Kotimy | Link to this comment | 06- 1-09 11:36 AM
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460: That applies to why the biofather isn't in the picture, not to the relationship with the guy, doesn't it?


Posted by: LizardBreath | Link to this comment | 06- 1-09 11:38 AM
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461: But the fact that the hearing "seems to be going well" is different from the testimony offered. The court may have heard testimony on both sides and is leaning toward pseudo-dad. The fact that s/he is leaning that way could be b/c pseudo-dad is telling the truth, b/c pseudo-dad is appealing to community prejudice, or b/c pseudo-dad paid the judge off in a backroom deal.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 11:40 AM
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463:

You might be correct. But, the "maybe dating" comment and the "apparently" comment tend to make me think that JRoth's info might be not so precise.

(Love ya, JRoth!)


Posted by: will | Link to this comment | 06- 1-09 11:40 AM
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464:

You are correct. Anything is possible. Frankly, I suspect JRoth is a paid publicist for this woman. I've never trusted that bastard.


Posted by: will | Link to this comment | 06- 1-09 11:41 AM
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Obviously, as you say, we don't know the facts accurately or in detail. Having two separate sources for the character of the evidence being put forth (see my 449, 456) suggests that if that description of the character of the evidence is correct, then whether or not the guy is perjuring himself that either the case should have been dismissed before it got this far or the PA standard is disturbingly low.


Posted by: LizardBreath | Link to this comment | 06- 1-09 11:51 AM
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There is, of course, the possibility that the pseudo-dad doesn't really have a case under PA law, but that the judge is not pulling the trigger just yet in hopes that there will be just enough uncertainty to persuade mom to reach some sort of compromise. This happens around here all the time -- they don't grant SJ because it's an unreviewable ruling and the threat of trial forces alot of settlements.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 11:56 AM
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There is, of course, the possibility that the pseudo-dad doesn't really have a case under PA law, but that the judge is not pulling the trigger just yet in hopes that there will be just enough uncertainty to persuade mom to reach some sort of compromise.

That makes sense -- the judge thinking "If I jerk the parties around enough, they may end up with a settlement that I find more appealing than the decision I'll have to make if it comes to it." Sadly, the judge doesn't have to pay for the kid's college after her mother's spent her savings on litigation.


Posted by: LizardBreath | Link to this comment | 06- 1-09 11:59 AM
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a hellhole of godless cosmopolitianism.

Heaven!


Posted by: togolosh | Link to this comment | 06- 1-09 12:03 PM
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My impression is that the hearings are going badly for the mother because of an unfortunate confluence of factors. Some of these have already been mentioned:

(1) The mendacity of the grandparents and the boyfriend's friends. (2) Class and cultural biases that cut in favor of the boyfriend. (3) Documentary evidence in the form of emails and video.

There are other factors that haven't been mentioned, though. The witness that the mother was hoping to rely upon to establish that the boyfriend did not spend significant time at her house was the next-door neighbor during the years in question, with whom she was quite friendly. It happens the neighbor was taking anti-depressants at the time, which fact boyfriend's counsel used to great effect during cross-examination. (A particularly sick twist is that the neighbor was a psychology doctoral student. The boyfriend's lawyer, after getting her to admit that she was depressive, had her read out the bit from the DSM that lists hallucinations as a possible symptom of depression and then maneuvered her into impeaching her own testimony about the boyfriend's comings and goings. Afterwards the mother's lawyer gently told the neighbor, "You did not help us.")

In addition to (2), then, we have another kind of bias that inclines in favor of the boyfriend, namely (4) the stigma that still attaches to any kind of psychiatric condition.

This anecdote also points to another SES-related factor: The boyfriend has been able to afford much more able and energetic counsel than the mother. (The mother's lawyers did little to prepare her witnesses, while the boyfriend's obviously did advance work on the other side's witnesses and had a clear game plan.) Call this factor (5).


Posted by: bizzah | Link to this comment | 06- 1-09 12:03 PM
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Yeah. I understand the mentality of judges who do that, but it really rubs me the wrong way. This is, of course, further argument for extremely high standards for allowing a third party to assert "parental" status. If the standard is parental unfitness, it's alot harder for the judge to jerk people around in a case like this. If it's something less, there's a lot more wriggle room.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 12:05 PM
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471: Factor (5) is routinely a major factor. Sucks.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 12:09 PM
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Wait, taking anti-depressants can impeach your entire testimony? Holy shit people have weird ideas about depression.


Posted by: Jackmormon | Link to this comment | 06- 1-09 12:18 PM
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The imprecision is limited to the biofather - it's unclear what her emotional relationship to him was, but the pregnancy was consensual, and her desire to raise the child solo with little/no involvement from him was upfront and OK (IOW, she didn't trick him into knocking her up, nor did he knock her up and then freak out and leave).

For the creep, we know that there was a romantic relationship of limited duration (a year or less, IIRC), followed by friendship of a couple more years.

Also, this has come up a couple times - according to the mother, the judge is sympathetic but feels that the evidence so far requires the case to go on. So the judge may be misreading the statute, but clearly feels that the guy has standing to go forward.


Posted by: JRoth | Link to this comment | 06- 1-09 12:21 PM
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It's fluky. If the judge knows much about depression, the impeachment wouldn't have much effect, probably. But who's to say what the judge knows?


Posted by: LizardBreath | Link to this comment | 06- 1-09 12:21 PM
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475: Relying on tulip, there's no statute, just decisions by higher courts that the judge is bound by.


Posted by: LizardBreath | Link to this comment | 06- 1-09 12:22 PM
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Also, going way back to my 135, I didn't really mean to suggest that stoner slackers don't deserve to keep their kids or anything; I just meant that there's nothing to make me doubt the mother's story (I'm sure it's colored by her circumstance, but I don't believe she's just making shit up).

Also, I don't think this has been said - according to the mother, the boyfriend was sent packing after daughter expressed discomfort with him, last summer.


Posted by: JRoth | Link to this comment | 06- 1-09 12:25 PM
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Two sources who seem to be repeating what the woman told them recently, not what they saw at the time.

And in fairness, isn't most of the job of a non-appellate judge to be able to tell when people are lying to him or her? DFH-ness aside, wouldn't you have to be a pretty bad judge to be taken in by mass lying on the part of a bunch of non-lawyers?


It'd be really interesting to see this woman's web site.


Posted by: water moccasin | Link to this comment | 06- 1-09 12:27 PM
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Two sources who seem to be repeating what the woman told them recently, not what they saw at the time.

I'm relying on them not for first-hand knowledge of the facts, but for knowledge of the character of the evidence the guy is now, in the hearing, putting forward. It's still hearsay, of course, and they could both be wrong about what's going on in the hearing, but it's stronger than you suggest.

DFH-ness aside, wouldn't you have to be a pretty bad judge to be taken in by mass lying on the part of a bunch of non-lawyers?

Nope. With equal lawyering skill on both sides, lies tend to get exposed. But judges aren't any better than anyone else at looking at at someone and knowing if they're lying.


Posted by: LizardBreath | Link to this comment | 06- 1-09 12:33 PM
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And in fairness, isn't most of the job of a non-appellate judge to be able to tell when people are lying to him or her?

No. Trial judges, like appellate judges, decide how to apply the law to the facts. In some circumstances (and it sounds like that's the case here?), trial judges also serve as finders of fact -- but they have no greater qualification than a jury would to suss out who is lying and who is telling the truth.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 12:35 PM
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Lb-pwned.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 12:36 PM
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479:

I don't know the mother well at all. But we've had some shared friends for several years, and well before any of the meshugas began, during the time that the boyfriend was supposedly establishing a de facto parental relationship, he was represented to me as merely a friend. (I asked someone closer to the mother about just what his role was after I learned that she was accepting money from him. This was about two years ago.) So if the mother is offering a tendentious picture of their relationship, she's been doing it for a while.


Posted by: bizzah | Link to this comment | 06- 1-09 12:43 PM
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I broke down and did some research. The PA legal standard does seem to be completely fucked. I found a case where a boyfriend of a baby's mother from the baby's birth until the baby was fourteen months old, at which point they broke up and he moved out, was found to be in loco parentis and so to have standing to pursue partial custody. Bupp v. Bupp, 718 A.2d 1278, 1282 (Pa. Super. Ct. 1998). Pennsylvania has, apparently "abandon[ed] the presumption that a parent has a prima facie right to custody as against third parties", instead following the rule that "custody be determined by a preponderance of evidence, weighing parenthood as a strong factor for consideration... [in determining] what affiliation will best serve the child's interests, including physical, emotional, intellectual, moral, and spiritual well-being." Rowles v. Rowles, 542 Pa. 443, 447-448 (Pa. 1995)

I'm sure judges don't actually do this much, but it looks as if Joe/Jane Random off the street can haul you into court, and if they can prove to a judge by the preponderance of the evidence that they'd be a better parent than you would, there goes your kids.

Not moving to PA.


Posted by: LizardBreath | Link to this comment | 06- 1-09 12:44 PM
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In fairness, I think that family court judges usually make credibility determinations more regularly than the civil trial judges LB and Di are familiar with. I don't think custody issues usually go to a jury. Doesn't mean that the judges are always right, just that they probably do it more.


Posted by: Robert Halford | Link to this comment | 06- 1-09 12:46 PM
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484: That seems pretty contrary to the constitutional law Will cited, supra.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 12:55 PM
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486: Are you talking about 395? If so, I'm not sure that merits use of the verb "cite".


Posted by: M/tch M/lls | Link to this comment | 06- 1-09 1:02 PM
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Yeah. I don't know the con law in this context for real, but what I know about it is about a parent's right to control the upbringing of their kid, rather than directly relating to who exactly is considered a parent.


Posted by: LizardBreath | Link to this comment | 06- 1-09 1:05 PM
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487 -- no, I was thinking of 419. Which is perhaps still sort of mushy, but is definitely a cite.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 1:06 PM
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But we are agreed that "supra" is correct.


Posted by: nosflow | Link to this comment | 06- 1-09 1:07 PM
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Thanks, nosflow. Having your support on matters of grammar is on par with having LB's support on matters of law.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 1:08 PM
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489: Ah, got it.

490: neb nosflow: supra genius!


Posted by: M/tch M/lls | Link to this comment | 06- 1-09 1:09 PM
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489: Now that you mention it, looking at Troxel, the PA standard does seem way out of line. And Troxel does reference natural parents.


Posted by: LizardBreath | Link to this comment | 06- 1-09 1:11 PM
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Oh, good, maybe this will become a Supreme Court case, and the notoriety will pay for everything!


Posted by: JRoth | Link to this comment | 06- 1-09 1:22 PM
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Lawyers generally get very testy when you try to pay them in notoriety.


Posted by: LizardBreath | Link to this comment | 06- 1-09 1:26 PM
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Lawyers generally get very testy when you try to pay them in notoriety.

Because they usually already have more than enough of their own?


Posted by: Di Kotimy | Link to this comment | 06- 1-09 1:41 PM
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My comment is not directly relevant to this situation, but I am struck by the strength of Di and LB's views on the primacy of the importance of biological parents. Specifically, LB's view that those rights should be interfered with only if the parent is so unfit that there's cause to terminate his or her rights as a parent. Now, I'm not a parent, but I'm not sure that I agree with this.

Schneider also made the following point:

Shall we throw in a Native American child, and issues under the Uniform Child Custody Jurisdiction act, and whatever the name of the law is that says with Native American kids you should sent the whole mess to tribal court?

I think that this would be an interesting question, and it reminds me somewhat of my own concern which, though not based on experience as a parent, does come from my own personal experience.

My mother was pretty unfit in a lot of ways. My Dad didn't always live with us, and he wasn't the greatest parent either. At the same time, I'm not sure that it would have been a good thing for me (or my mother) if her parental rights had been completely terminated. At the same time I think that it might have been a good thing to have a formalized role for someone like my grandmother which fell short of complete adoption. Maybe it would have to be a voluntary arrangement rather than one imposed by the courts. I only want to point out that limiting the decisions about child rearing to 2 people seems to me to be very culturally contingent and may not always be the best way to proceed. The Native American situation is illustrative, but it might make sense for other cultures as well which have traditionally valued the extended family more highly than we do.


Posted by: Bostoniangirl | Link to this comment | 06- 1-09 1:48 PM
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BG, but what you are saying about your own situation is that your mom wasn't entirely fit to parent. I think both LB and I have allowed for some leeway in situations like that. Part of the reason I argue so strongly for the primacy of fit, involved parents (whether biological or adoptive) is stability for the kids. Parenting is not easy. Taking away some of a parent's authority to parent just makes it that much unnecessarily harder. If mom says "I don't want you hanging out with that creepy uncle" and then the creepy uncle gets a court order saying "too fucking bad, mom," Mom's ability to provide clear, consistent guidance to her child has just been undermined. Mom spends a great deal of time trying to build her daughter's autonomy and independence; creepy uncle gets visitation every other Thursday and spends that time telling the kid about the proper submission of women to male leadership. Or Mom wants to raise her kid with good Christian values and creepy uncle spends Thursdays telling her that God is dead. Having your relationship with your kid undermined is not good for anyone.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 2:12 PM
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497: That's a hard case, and hard cases make bad law. I obviously don't know about your family, but it sounds as if possibly the best thing would have been for your mother to be present and around, but for your grandmother to have final say over parenting decisions.

I think extended families, and input from lots of people who care about a kid, are great for childrearing. But when the adults involved disagree, someone has to be able to settle it. What makes sense to me is that fit parents can take input from whoever they want, but have the final say as to what decisions are finally made. If that's not the case, we're in a situation where any disagreement that can't be resolved consensually can end up getting dragged through the courts, and that's really not good.


Posted by: LizardBreath | Link to this comment | 06- 1-09 2:17 PM
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Di, you're right that I'm changing the subject somewhat. LB, however, seemed to be making a stronger claim than you are, namely that requiring that visitation rights be given to someone else should only occur when the lack of parental fitness is so great that termination of parental rights is an appropriate remedy.

I'm saying that I think that there are a lot of situations where complete termination of parental rights would be bad for all parties involved, BUT that it would/could be a good idea to have someone other than a bio-parent who is not part of child protective services be formally involved as well.


Posted by: Bostoniangirl | Link to this comment | 06- 1-09 2:18 PM
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BUT that it would/could be a good idea to have someone other than a bio-parent who is not part of child protective services be formally involved as well.

Involved how?


Posted by: M/tch M/lls | Link to this comment | 06- 1-09 2:22 PM
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To be clear, I am talking about a different situation from the PA case. There are degrees of unfitness, and I think that there ought to be a remedy which doesn't involve taking away children from a parent but does add in the input of another person who cares about that child and is not just a paid professional.

That's why I mentioned the Native American situation, which is an entirely separate point, though one that I muddled. I heard a presentation once on Native American child custody issues, but I've forgotten much of it. If we are dealing with people from other cultures, say immigrants from other countries with more of a tribal identification, can we allow for more people to be involved?


Posted by: Bostoniangirl | Link to this comment | 06- 1-09 2:23 PM
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Involved how?

I'm still thinking through that.


Posted by: Bostoniangirl | Link to this comment | 06- 1-09 2:24 PM
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There are situations, and this is not my area so sorry to be vague, where a parent might be unfit, but not have parental rights permanently terminated. CPS is involved, though. Eg. the alcoholic friend -- if CPS did its job, they would find the claim of neglect founded and impose a variety of conditions on mom before she could have full control of her daughter. Typically, rehab, periodic drug/alcohol tests to make sure she maintains sobriety, appropriate care by grandma or a foster family in the interim until she really did get back to being a fit mother. I think LB is talking about these sorts of unfitness rather than only when a parent is so unfit as to have rights terminated.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 2:26 PM
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can we allow for more people to be involved?

It's unclear to me what you mean by both "allow" and "involved". If you're asking if it would be okay for a court to, for example, mandate that Aunt Helga gets 1/4 of a vote as to whether little Brunhilde must attend church every Sunday, or whether little Leopold can get his ears pierced, then it sounds like a recipe for awful messes.


Posted by: M/tch M/lls | Link to this comment | 06- 1-09 2:29 PM
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LB, however, seemed to be making a stronger claim than you are, namely that requiring that visitation rights be given to someone else should only occur when the lack of parental fitness is so great that termination of parental rights is an appropriate remedy.

I caveated it a little more than that -- see my 325. But I really didn't address the topic you're bringing up, which is, if I understand it "What do you do when a parent is genuinely unfit in some sense, but you still don't think the kid is best off being removed from their care?" And my answer to that is that I'm not sure, but if we're talking about an unfit parent, I don't have any problem with putting another family member in a guardianship role, or something of that nature.

I've been getting all hot and bothered about situations where the natural parent hasn't been found unfit at all -- once the natural parent has been found to be unfit, playing the situation by ear is fine with me.


Posted by: LizardBreath | Link to this comment | 06- 1-09 2:30 PM
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504: Right, and CPS generally sucks, and there should probably be ways to get around it. Maybe for example, somebody with mental illness could set up ways for someone to help make decisions when she/he is seriously incapacitated. Social workers may care, but there's high turnover in the job, and it's bound to be hard to individualize the care of the child. Having someone involved who loves the child and who spends casual time with the kid seems valuable to me.


Posted by: Bostoniangirl | Link to this comment | 06- 1-09 2:30 PM
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And what M/tch said.


Posted by: LizardBreath | Link to this comment | 06- 1-09 2:31 PM
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507: I think the system (to whatever extent you can talk about 'the system' rather than 50 separate systems) already provides for that kind of thing. Getting CPS involved can mean a temporary placement with a family member, and so on, rather than total removal of the kid from all of their relatives.


Posted by: LizardBreath | Link to this comment | 06- 1-09 2:33 PM
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505 is a valid point.

How about this? (Not my precise situation) It looks like a you're not getting out of bed or feeding yourself. Sally is going to school without socks on in 30 below weather. You should check yourself into the hospital or get into an intensive day program. We worked out a treatment plan for times when your illness recurred, I think you need to deal with this. In the meantime, Sally's going to come stay with me.


Posted by: Bostoniangirl | Link to this comment | 06- 1-09 2:36 PM
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Having someone involved who loves the child and who spends casual time with the kid seems valuable to me.

It's absolutely valuable, and I don't think anyone is disputing that. It's the question of giving that person legal rights of visitation and/or decision-making powers over the child that's at issue.


Posted by: M/tch M/lls | Link to this comment | 06- 1-09 2:37 PM
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511, see 510.

Also, would it be reasonable or legal for non-Romantic partners to agree to co-parent in some fashion, to formalize an agreement so that, say the mother in 510, could agree when well to a situation of her choosing for situations when she wasn't capable of making her own decisions?


Posted by: Bostoniangirl | Link to this comment | 06- 1-09 2:40 PM
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We worked out a treatment plan . . .

I'm not seeing where there needs to be any court involvement here.


Posted by: M/tch M/lls | Link to this comment | 06- 1-09 2:40 PM
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Most of the arrangements I know of that worked out well like that were ones that were decided by the extended family without involving CYS.


Posted by: Cala | Link to this comment | 06- 1-09 2:40 PM
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M/tch, I think that you're taking my statement out of context. I mean that I think that non-professionals may be in a better position than the state to make some of these decisions when you need to override the decisions of the parents.


Posted by: Bostoniangirl | Link to this comment | 06- 1-09 2:42 PM
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Ditto to 514.


Posted by: Bostoniangirl | Link to this comment | 06- 1-09 2:42 PM
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I'm not seeing where there needs to be any court involvement here.

The individual when in the midst of active illness may not now like the treatment plan s/he agreed to when well. Some sort of contract which could never be absolute in terms of forcing treatment but which could allow for a family member or close friend (who was agreed upon in advance) to take the child until the parent is functioning better.


Posted by: Bostoniangirl | Link to this comment | 06- 1-09 2:46 PM
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510, 513, 514: Right. If you can work it out consensually, that's great and exactly what should happen. If you can't work it out consensually because of the nature of the dysfunction, then CPS gets involved, and should probably set up some kind of family guardianship or something.

(And ouch about Sally going to school without socks in the winter. The kid's a polar bear, and I'm always schlepping around a jacket while she plays outside in a tshirt in near-freezing weather, mostly to wave it at people who look like they're wondering why she's not dressed properly: "Honest, she has a coat. She just doesn't need it." Not that you knew that.)


Posted by: LizardBreath | Link to this comment | 06- 1-09 2:46 PM
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I'm still kind of confused about what you're asking then. Is it whether an agreement such as what you describe in 510 or 512 should be legally enforceable if the temporarily unfit parent decides not to follow it?


Posted by: M/tch M/lls | Link to this comment | 06- 1-09 2:46 PM
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outside in a tshirt in near-freezing weather

This was me as a kid, too. It has continued into adulthood.


Posted by: apostropher | Link to this comment | 06- 1-09 2:47 PM
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515: The thing is that when the unfit parent balks, the state has to get involved somehow, if only to enforce the consensually arrived at plan. And at that point, they've got to consider the best interests of the child rather than just relying on what the unfit parent agreed to beforehand -- what if the agreement was a problem itself?


Posted by: LizardBreath | Link to this comment | 06- 1-09 2:48 PM
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520: I actually suspect selkie heritage somewhere back in the family -- it'd explain the swimming and the cold-resistance. (and the otherwise inexplicable appetite for raw herring.)


Posted by: LizardBreath | Link to this comment | 06- 1-09 2:49 PM
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521: Right -- if the mental illness is such that it makes the parent unable to parent, there will be questions about the validity of a prior agreement.


Posted by: Di Kotimy | Link to this comment | 06- 1-09 2:57 PM
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Or it just might be a bad idea. "When I'm too sick to take care of little Danny, my blood-brothers Pork Chop and Greaser can bring him up as a cadet member of the Hell's Angels." If the state's going to enforce consensually arrived at parenting agreements, I'd want them evaluated in terms of the interests of the child.


Posted by: LizardBreath | Link to this comment | 06- 1-09 3:01 PM
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519: Yes.

524: Okay, but do you have to do that every time? If you identify someone as a reliable adult with the parent's consent, can you just say that under certain circumstances Friend/Relative can take the kid away for some initially time-limited period. If the parent feels that this was unfair in a particular instance, the burden is on him or her to show it to the court.


Posted by: Bostoniangirl | Link to this comment | 06- 1-09 3:05 PM
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Well, you have to evaluate them every time the state's involved, I think.

If the parent doesn't balk at turning over their kid to a family member, or even to Pork Chop and Greaser, everything's okay, the kid's taken care of, and CPS doesn't know about it. (Pork Chop and Greaser are probably very decent people.) If we're talking about enforcing the agreement, though, that means that someone called the cops, or CPS, or some arm of the state -- that's what enforcement means. And if the state's going to be enforcing an agreement, you can play around with burdens of proof and who has to show what, but somewhere in there a court has to think about whether enforcing the agreement is actually in the child's best interests.


Posted by: LizardBreath | Link to this comment | 06- 1-09 3:11 PM
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Custody disagreements as mediated by the po-lice.

I get dispatched to a domestic dispute down at the "family side" of the homeless shelter. When I get there the male half, a muscular black dude covered in prison ink from the neck down, is on the sidewalk shouting at the female half and a couple of her friends.

So I get them separated and sit them down far enough apart so they can't yell at each other. Apparently they're unmarried, but have two kids together. Twins, about a week old. The fight started when the dad found out the mom was going to have dad's brother come over and watch the kids. Mom doesn't want her kids around dad's supposed crackhead girlfriend and dad doesn't want the babies around his brother, whom mom hangs out with.

The fight was solely verbal and nothing in the altercation rose to the level of a crime. (Well, mom tries to claim physical violence at one point, but she's a very fair skinned woman in a tank top. She doesn't have a red mark or a scratch on her, so I'm not buying this story that the dad picked her up by the arms and slammed her down onto her back.)

Of course there's no kind of custody or visitation agreement to help out here. Fortunately fate smiles on me and the mom has a five thousand dollar outstanding warrant which aids in the "negotiation". Dad has agreed to leave the kids with mom and go back to his motel room for the night to cool down, with the only condition being that his brother not come over and be with the kids. So I go to the mom and explain the proposed solution for the night.

Mom: "No fucking way. He's not going to tell me what to do."

Me: "Let me explain something to you. I'm out here now, and I'm going to fix this so that I don't have to come here again. That means separating you two for the night. There's two options here. Option one is that you accept this deal and dad leaves for the night. Option two is I separate you two by taking you to jail on your warrant and send the kids home with dad."

Mom: "Fine, I'll go to jail. I'll just leave the kids with his brother."

Me: "No, you won't. I've got two parents on scene. If you go to jail, the kids go with dad. You won't have a say in it. Here's your one chance to rethink your answer. What's it going to be tonight? Jail? Or an evening with your babies?"

Mom: "All right, I'll stay here."

Me: "Wise decision. Go inside and call his brother and tell him not to come here. If you bullshit me on this and I have to come back here tonight, I'll take you to jail on sight."


Posted by: Teddy Roosevelt | Link to this comment | 06- 1-09 6:13 PM
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527: Holy crap. What is the "family side" of a homeless shelter? Does this family have any sort of private room/area?


Posted by: Mary Catherine | Link to this comment | 06- 1-09 6:57 PM
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Twins about a week old and she's in a homeless shelter? Oh, man, those poor people.


Posted by: LizardBreath | Link to this comment | 06- 1-09 7:16 PM
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529: It sounds like something out of Mayhew's London. This is the sort of thing that makes me bitterly resent the bankster bailouts. Oh, not that the money could be easily/readily transferred from one goal/priority to the other, I suppose. But still: I'd rather bail out the homeless, many of whom are living in quite desperate circumstances.


Posted by: Mary Catherine | Link to this comment | 06- 1-09 7:41 PM
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FWIW, and this may not be different from what others have said to BG, my take on the marginally fit parent is that self-recognition is part of fitness. If the parent is so fucked up that s/he won't allow for non-CPS intervention by friends/family, then, even if the rest of the circumstances don't show gross unfitness, you've gotten to state intervention, and the situation LB cited with tests and conditions.

IOW, there are tons of parents out there who are marginally fit, but allow for input/care from more fit family members, even if only sporadically (eg, they're not moving back in with grandma, but they'll call grandma to come get the kid when they're fucked up on whatever, or don't freak out if grandma comes by uninvited). But if the fitness is marginal, AND the parent won't allow anyone to help out at the margins, then the 50-75% of the time that the parent is fit aren't enough (because the rest of the time the kid is effectively abandoned).

Not saying that this is clear or easy or that there's a bright line. But, to me, the parent who can't acknowledge needing help* is showing prima facie unfitness.

* Assuming they really do; this would be a fact finding matter, and the burden should be pretty high, as I understand it is


Posted by: JRoth | Link to this comment | 06- 1-09 7:59 PM
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What is the "family side" of a homeless shelter? Does this family have any sort of private room/area?

Yeah, the family side is in the same building, but is where they house people with kids. There's case managers specifically to help with getting the kids in school, finding day care, health care programs, etc.

http://www.theroadhome.org/index.html

I think the Palmer Court project is opening soon, which hopefully takes some pressure off the main facility space wise.

http://www.theroadhome.org/palmer_court.html

I was out there on a different domestic violence case on Saturday. A credit card in the wife's name was found in the guy's wallet at the jail, and I stopped by on the way back to the precinct to give it to the wife. The wife is 18 with a baby just a few weeks old. She was on a cot with her baby in a playpen next to her. They were in the hall a few feet from the front desk.


Posted by: Teddy Roosevelt | Link to this comment | 06- 1-09 8:06 PM
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[Part-owned by Teddy.]

528: What is the "family side" of a homeless shelter? Does this family have any sort of private room/area?

That should be where the (typically) single parents with kids stay. The other side is where the single individuals (probably mostly men and old ladies) stay.

527: Me: "Wise decision. Go inside and call his brother and tell him not to come here. If you bullshit me on this and I have to come back here tonight, I'll take you to jail on sight."

That was very decent of you, g, you hard-hearted gun nut. Damn, I wonder what the problem was with the other brother. Bad blood for sure.

530: But still: I'd rather bail out the homeless, many of whom are living in quite desperate circumstances.

That's what I was complainin' about with the stimulus bill: 13 billion for special ed, some umpty-bazillion for highways, a tax break for college computers (Bill Gates needs bidness) and about a billion for handling the homeless, right when we're going into a period that's going to have the largest number of homeless people since the 30's. sigh

497: At the same time, I'm not sure that it would have been a good thing for me (or my mother) if her parental rights had been completely terminated. At the same time I think that it might have been a good thing to have a formalized role for someone like my grandmother which fell short of complete adoption.

Redundant here, but there's no good way to make this work, BG. Generally what happens in those cases is that Grandma (plus Grandpa sometimes) winds up with guardianship and sole custody, and the daughter-with-issues is in and out all the time.

Crazy people are often bad parents but they are frequently resolved not to let that stop them from being parents. And seriously abusive parents don't care. In most of those kinds of cases, the kid is lucky to be abandoned while the parent (usually mom) is off gallavanting around. (Dad is usually nowhere to be seen, since either he's as screwed up as mom, or he can't deal with mom's crazies.)

So, generally the way the situation works, is that one parent is so bad that they are stripped of custody, or the parent is so bad they simply abandon the child. The latter is, in many cases, actually the best option.

I don't think you can really set up an easy intervention system, because (per LB and Di above) then bad people will decide they can just hijack the life of a child of a good parent.

A lot of those kinds of problems could be cleared up by dealing better with the mentally ill, the homeless, intervening with bad parents, dealing with birth control and the like better plus a improving economic situation (since people under economic stress tend to become worse parents).

max
['Blah.']


Posted by: max | Link to this comment | 06- 1-09 8:43 PM
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That was very decent of you, g, you hard-hearted gun nut.

g's account (with linkage) just persuaded me to make a modest donation to the "Road Home" Palmer Court project. I suspect g's not nearly as hard-hearted and hard-boiled as he sometimes wants us to believe. But people who are out there on the front lines dealing directly with this stuff can't really be bleeding-heart liberals (such as myself) in an effective way.

Even a fairly modest redistribution of wealth would solve quite a few of these problems, I suppose, but I'd expect to see that not until hell was about to freeze over, I guess.


Posted by: Mary Catherine | Link to this comment | 06- 1-09 9:34 PM
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I have a heart of stone! That's good of you to donate.

Everyone remember that spiel from the cop in the second or third season of "House"? "The whole point of the criminal justice system is to make things right when everything else fails."

All too true. Bleeding heart liberal solutions are long term plans to address systemic issues, which is as it should be. Front line people end up in a lot of situations where you know the people's lives are fucked up in ways that aren't going to get addressed and all you can do is find a solution for that night.


Posted by: Teddy Roosevelt | Link to this comment | 06- 1-09 11:22 PM
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536

531. That's some catch, that catch-22.


Posted by: Hamilton-Lovecraft | Link to this comment | 06- 1-09 11:23 PM
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535: that's an appealing perspective. It sort of seems like the typical cop perspective all-too-often hardens into "I see these people every day, you don't: there's no helping them."

I saw this based on, uh, reading Homicide, I guess? I certainly could be wildly wrong.


Posted by: Sifu Tweety | Link to this comment | 06- 1-09 11:41 PM
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"What do you do when a parent is genuinely unfit in some sense, but you still don't think the kid is best off being removed from their care?"

I'm living this, in a fairly mild form. It sucks.


Posted by: Not Prince Hamlet | Link to this comment | 06- 2-09 12:41 AM
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NPH, I was hoping that you'd comment on this thread.

max is right about crazy people being very attached to their parenting role.

For non-crazy people with serious mental illness, e.g., depression that was bad enough to get them hospitalized, I recently helped to organize a parenting support group which is a tiny start. The problem is that part of dealing better with the mentally ill is getting more people medicated and that generally requires a level of insight into the existence of illness, since forcing people to take drugs is pretty problematic as a long-term strategy.


Posted by: Bostoniangirl | Link to this comment | 06- 2-09 4:06 AM
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Children are not entitled to the best parents. Thank goodness. It is difficult to declare someone unfit. As it should be.

all you can do is find a solution for that night.

"Don't want to hear about Mr. Right.
'Cause he's out of town tonight.
Baby come and spend some time with Mr. Wrong. "


You have to deal with reality. People are not going to change significantly. However, it is true that small changes can make move it from unacceptable to tolerable.


Posted by: will | Link to this comment | 06- 2-09 5:12 AM
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