The Intersection of Private Custody Cases with DSS Abuse Allegations
Child custody cases are complex to begin with. We are working through parent personalities, parenting preferences and differences, and especially the emotional hurdles that are in place while having to negotiate giving up time with your children. When you add allegations of abuse and neglect into the mix, the case can become rather murky almost immediately.DSS is involved in cases where there are allegations of child abuse or neglect. This may be physical abuse, sexual abuse, or related to educational neglect for not taking the child to school as required by law. There are a multitude of reasons DSS can be involved. Regrettably, sometimes it is the result of one parent concocting a theory of abuse to attempt to gain an advantage in the divorce.Once DSS is involved, the Family Court will rarely move forward with a custody issue until DSS has had an opportunity to complete an investigation. Typically, this is a 45 day period and you will now not only be working with your lawyer and a Guardian ad Litem in your custody case, but you will be working with a DSS case worker/investigator, a volunteer Guardian ad Litem in the DSS case, and possibly subject to completing treatment services such as parenting classes, drug treatment, and counseling.Additionally, your attorney fees and legal costs will increase exponentially. Not only will your lawyer be working with you in your custody case, but you will need his assistance in the DSS case as well. This increases the number of court appearances and legal work this lawyer will do. It will also increase the scope of the investigation of the Guardian ad Litem in the private custody case thereby increasing his or her fees as well. Not to mention costs to obtain records, DSS case files, etc.
Custody at Issue in a Divorce when DSS already has Custody
Recently, I received this question on the blog:
My wife and I have a 15 month old daughter. She was removed from our custody by DSS on April 17, 2010. We signed over for my parents to get full custody of her about two weeks ago. I know we are not getting custody of our daughter back and have already been informed by DSS. Since I know there will not be a "custody" decision made for our daughter, do I still file having a child or not? My wife and i have been seperated since May 2010.Thank you for your help in this matter,Ryan S.
The reason custody must be included in a divorce when there are children of the marriage is so there will be a court order governing the placement, support and care of the children. In this case, there is already a court order related to the minor child of your marriage so it is not necessarily an issue that would have to be dealt with in your divorce case unless you were going to fight for the child's return and custody given back to you.
DSS Emergency Removal: The 72-Hour Probable Cause Hearing
When children are removed from an emergency basis from their parents/guardians the Court is required to hold a probable cause hearing within 72 hours of removal where DSS has to prove that it had probable cause at the time of removal and that probable cause still exists at the time of the hearing such that it is necessary to keep custody of the children.
This hearing comes very fast and in most instances, parents attend the hearing without a lawyer. I don't know if this is because they can't afford representation or they just don't know what their rights are.
In the event you are unable to find an attorney to go the 72-hour Probable Cause hearing with you, these are a few quick tips that will hopefully help prepare you a little bit:
The 72-hour probable cause hearing is similar to a preliminary hearing in criminal court. That means DSS's burden of proof is extremely low to establish the existence of “probable cause”. You do not get to testify at a probable cause hearing. DSS will present testimony by way of their investigator or by the law enforcement officer of the circumstances that led to the removal of your children by DSS. Additionally, DSS will present evidence about whether probable cause exists to keep the children in foster care based on whatever post-removal investigation that has been completed.
Even though you cannot testify, you are given the opportunity to cross-examine any witness DSS puts up. You also have the right to submit affidavits on your behalf to the family court. This is a substitute for your testimony. But, remember that anything you say can be used against you so depending on the circumstances of your case, you. may not want to share information with the Court or DSS at this time.
If you are indigent, you will have an opportunity at this hearing to request the appointment of legal counsel to assist you in this case and you will be notified of the date of a merits hearing where you will be able to contest the removal of your children further.
What Happens If DSS Takes Your Children?
DSS may come into your life for multiple reasons. Sometimes it is for a good reason and sometimes it is completely frivolous. When it comes to having your children removed from by DSS it can be a very distressing situation.
Regardless of the reason for the removal of your children, the Family Court must hold a probable cause hearing within 72 hours to determine if DSS had probable cause or a good enough reason to remove your children. At this hearing, DSS generally has the upper hand. In almost all cases, parents are not represented by an attorney at this hearing and they have no idea why they are in court, what has happened to their children, and what they have to do to get their children back.
At the probable cause hearing, DSS will call witnesses and attempt to prove their case while you will not be allowed to testify. You will have an opportunity cross-examine the DSS witnesses and you will be able to submit affidavits to the court supporting your situation.If you are unrepresented at this hearing and are unable to afford an attorney to represent you, the family court will appoint an attorney to represent you. A guardian ad litem will also be appointed to represent your children and to perform an investigation for the Court with their mind set on determining what is in the best interest of the children.I would recommend that if your children have been taken from you by DSS you should immediately contact an attorney who is experienced in representing people in DSS matters.
There are strict time lines and regulations that DSS must comply with and if they don't it can help your case. Only an experienced professional will know these things. You should not go to a probable cause hearing unrepresented if you can help it.
After the probable cause hearing, DSS will schedule a merits removal hearing within 35 days where the issue of whether there was child abuse or neglect occurred, and if it did what treatment services will be required before the children can be returned to the custody of the parents.
The goal in these cases is generally to return the children to your physical custody as quickly as possible. Sometimes, it will take some time before the parents are able to regain custody. I encourage parents to look for friends and family members who may be willing to take temporary custody of the children so they are no longer in foster care as a way to have the children placed with people who know and love them and get them away from the foster care system. Obviously, this helps the children cope with the circumstances, but also can help facilitate more time between the parents and children as the DSS visitation standards are very low (usually two hours per month of visitation).
Spiritual Healing v. Medical Treatment for Children
A Wisconsin couple was sentenced to jail time after they were convicted this week of second-degree reckless homicide after their three year old daughter died from untreated diabetes. Rather than seeking medical treatment for their daughter, the parents prayed for her and sought spiritual healing for her even as her health declined and she could no longer walk or talk. Here's the news story.Now this couple is forced to spend 30 nights in jail each year for the next 6 years and their other children are required to be taken to medical checkups periodically.This begs the question: do you have the right as a parent to determine what type of treatment your children receive - or if they receive treatment at all? What do you think? Should a parent be able to decide if their child should only receive spiritual treatment versus medical treatment?Via Family Law Prof Blog