The Legal Insider

May 2018

The History of a Mother's Right to Custody

We all have one, and every May, a day is dedicated to showing appreciation for everything possible in our lives because of her. Yes, we're talking about Mom. Rearing children is no easy task, and the right to do so has historically been fraught with struggle.

Old English law paid little heed to a child's need for nurturing, and instead, enforced child labor. This view came over with the early settlers, alongside a father's paramount rights to not only his children, but also to property. Colonial women had few obligations to their children, and men traditionally took on the tasks that are either shared or handled by mothers today.

The History of a Mother's Right to Custody

Increasingly, children were seen to have interests of their own, and these interests became associated with the nurturing mother. This shift from the colonial view of children began influencing the legal forms of custody in the 1800s. The 19th century was wrought with contradictory court decisions. Where one judge would defend the necessity of motherly love, another would uphold the primacy of fathers' rights. By 1887, 30 states had granted a few rights to women, but very few expanded those rights to their children.

Over time, courts began granting women custody of their children—not because of women's rights, but under the new rule of the best interests of the child. The best interests standard and the Tender Years Doctrine began placing more children, especially very young children, with their mothers. The Progressive era continued giving more rights to women and mothers, and by the second half of the 20th century, the third wave of feminists began focusing on equal opportunity outside of the family.

With a 50% divorce rate, children born in 1990 also had about a 50% chance of having a judge tell them with whom they would live. The increase of divorce, poverty, and a dramatic surge in illegitimacy began transforming court decisions by almost wiping out any maternal preference or tender years doctrine, and replaced those with a loose preference toward the best interests of the child standard.

Today, the best interests of the child standard remains. If that means living with mom, living with dad, or a compromise between the two (or various other scenarios), the court will choose where it thinks the child will most thrive. This Mother's Day, celebrate Mom, and take a moment to reflect on the strife of countless women before her, who fought relentlessly for the basic right to parent people like us.


How to Have a Safe Memorial Day

How to Have a Safe Memorial Day

First recognized in New York in 1873, Memorial Day is the day Americans honor those who have died in service to our country. As is standard with American holidays, it is not a somber one. Even though it's not officially summer, Memorial Day weekend feels like the kickoff to warm months full of boozing, boating, and barbecuing fun. Of course, any combo of these activities (and countless others) can land a Memorial Day reveler in jail, the ER, and of course, in court.

Emergency rooms across the country fill up with people who were playing tag with fireworks, gunshot wound victims, people who have fallen off cliffs, and a host of others. Most of these injuries are preventable. Below are a few tips to help keep you safe over the holiday weekend:

  1. Drink Responsibly: Memorial Day and the weekend preceding it, are well-known for having an elevated risk of injury and death. It is the deadliest holiday for car accidents; you are four times as likely to die in a traffic accident over the holiday weekend, as any other regular weekend. Of those fatal car accidents, 44 percent are due to drinking and driving. Speaking of alcohol, not everyone enjoys their adult beverages responsibly. Most obviously, if you drink, find an alternative, safe way to get home. If you are hosting a party, don't over-serve your guests, make sure everyone is of legal age, and call a ride service to help them get home.
  2. Water Safety: Always keep your eye on swimmers, especially weak swimmers. Appointing a lifeguard is best, and of course, don't drink alcohol while swimming or supervising swimmers. Also keep your eye on coolers. As the ice melts, it becomes a drowning hazard for curious toddlers.
  3. Sunburns and Sunscreen: Fun in the sun can turn into a miserable existence if you're not slathering on sunscreen. Skin can become severely burned after a short time under the sun's rays, also increasing your risk of skin cancer. Frequently reapply sunscreen, and wear a hat and sunglasses so that you don't spend the next week or two in serious pain.
  4. Grill and Fire Safety: To avoid burns and property fires, clean your grill before use, don't wear loose clothing while grilling, and keep anything you don't want cooked away from the grill. When finished, make sure it is turned off, and the coals are completely out.
  5. Fireworks: If it is legal to light fireworks in your area (be sure to check first), make sure you do so outside, in an open area without grass or flammable branches. Keep a hose or water bucket close to extinguish any spent fireworks. Once lit, get away to a safe distance, and do not continue to hold or light it into a container of any sort.

The Rights of Immigrants in Our Military

Immigration is a hot-button topic of late, and when it is in reference to those who serve our country, it is all the more controversial. It may come as a surprise to some, but non-U.S. citizens play a significant role in the U.S. military. Every year, roughly 8,000 non-citizens join our military, and about 4 percent of those enlisted in active-duty service are non-citizens. As such, the path to citizenship for our service members is an important one—for all of us.

The Rights of Immigrants in Our Military

For members who are currently in the U.S. Armed Forces, it is possible to apply for citizenship under special provisions in the Immigration and Nationality Act (INA). Under INA Section 328, military personnel can file for naturalization based on their prior or current military service. The applicant must have at least one year of military service, be a legal permanent resident when their Form N-400 is examined by USCIS, and they must have served honorably or have been honorably separated from the military.

Section 328 of the Immigration and Nationality Act of 1952 excuses the service member from any specified period of residence or physical presence in the U.S., but only if the member is still serving or has filed within six months of being honorably discharged. Section 329 of the INA allows any active-duty status service members who have served on or after September 11, 2001 to apply for naturalization in accordance with the "service during hostilities" statutory exception within Section 329. This section also applies to service members who have previously served in past conflicts.

For people who are hoping to become U.S. citizens by joining the military, the future is uncertain. In 2017, President Trump put the fate of the Deferred Action for Childhood Arrivals (DACA) program in front of Congress. The Republican majority did not legalize it, and as such, the program remains in limbo. President Trump's veiled threat of ending the program by promising to "revisit the issue" has invariably made an uncertain future for thousands.

An additional hurdle, the Military Accessions Vital to National Interest (MAVNI) program, which allowed foreign military recruits with vital skill sets to become naturalized U.S. citizens, has been frozen since July of 2017. The unpredictable track record of the current presidency leaves little room to say for certain what lies ahead for immigrants who have chosen to serve our country, and for those who still wish to serve. Programs that are legal today, may not be legal tomorrow.


Steps to Take When a Child Is Missing

Every parent's nightmare of calling out for their child and being met with chilling silence, is a tragic, yet fairly common daily occurrence. Nearly half of a million entries for missing children are entered into the FBI's National Crime Information Center each year. The vast majority of reported cases of missing children, are endangered runaways. Of those runaways, an estimated one in seven are likely victims of child sex trafficking.

Steps to Take When a Child Is Missing

After a series of shocking child abductions between 1979 and 1983, President Ronald Reagan proclaimed May 25 as National Missing Children's Day, in honor of six year old Etan Patz, who disappeared on his way to school on May 25, 1979. In 1984 John and Reve Walsh founded the National Center for Missing & Exploited Children (NCMEC), creating a foundation for the recovery of missing children. In 1990, only 67 percent of missing children were returned home.

Fortunately, in recent years, around 99% now return home alive. On the flip side, one percent of missing children are due to non-family abductions. Of those non-family abductions, only 57 percent return home alive, and 40 percent are murdered. To date, the AMBER Alert Program has successfully recovered 924 missing children, and those numbers are growing. Public awareness for endangered children is also growing. Below are crucial actions you should take the moment you know a child is missing:

If Your Child Is Missing, Act Immediately:

  1. Call your local law enforcement agency immediately.
  2. After you have reported your child as missing, call the National Center for Missing & Exploited Children at 1-800-THE-LOST (1-800-843-5678).
  3. If your child goes missing from home, search the following:
    • Closets
    • Piles of Laundry
    • Inside large appliances
    • In and under beds
    • Vehicles, and their trunks
    • Any other place that a child could crawl into or hide.
  4. If your child is missing from a store, notify the store manager and/or security office. Then, immediately call your local law enforcement agency. A multitude of stores now have a "Code Adam" plan in place.
    • When speaking to law enforcement, be sure to provide your child's name, birth date, weight, height, and description, including any unique identifiers such as braces or glasses.
    • Ask law enforcement to immediately add your child's name and information into the FBI's National Crime Information Center Missing Person File.

Once the NCMEC is contacted, they will work to create and distribute posters, take leads, communicate with law enforcement, and provide support and resources to the family of a missing child. It is everyone's hope to never have to experience the terror that families go through when a child goes missing. Stay aware, act quickly, and be proactive.