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Joint Custody, Supervised Visitation, Little Girl & Dad shot — it’s not just about the Judge

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A few days ago I was railing on “Supervised Visitation Network” (again) pointing out — I believe correctly — that it was a creation, basically of the Association for Family & Conciliation Courts (basically) personnel. WE also know that the supervised visitation centers (see last post for how often they go under, or lose their business licenses) often get funding in the form of federal grants to states for “Access Visitation.”

Access Visitation is itself a term coined and promoted by the Children’s Rights Council, which they also assert on their pages.

So, I receive an email alert from a well-known California group that has been protesting a certain judge for years, and trying to get him off the bench.

However no judge functions in a vacuum; it is the web of infrastructure enabling bad (or child-endangering/lethal) decisions to be made, year after year in the courts. So am going to take a brief look at this news article and the court the case came from, which was forwarded me yesterday.

 

The alert, from California Protective Parents, complaining about the judge, reads:

Sacramento Judge Peter McBrien once again refused a mother’s plea for supervised visits with a father who was a danger to his daughter and himself. Tragically, the father then shot the toddler twice, then turned the gun on himself in a murder suicide.
This preventable tragedy is just one of the many times Judge McBrien has endangered children. He has placed countless children with their identified sexual molesters and violent, alcoholic fathers.
Judges are getting pleas from both mothers and fathers, and there are other reasons for their decisions than someone’s pleas, this lesson we should have learned ages ago.  And it’s not just about this judge, not that I agree with the decision, obviously:
Here’s the account from Sacramento Bee, about a couple who was married for 14 months, and separated before the baby was born:

Bitter custody fight foreshadowed abduction, father-daughter deaths 

Published: Wednesday, Aug. 17, 2011 – 12:00 am | Page 1A, Last Modified: Sunday, Aug. 21, 2011 – 2:37 pm
1W15MADELINE1.JPG
photo:  Madeline Samaan-Fay was found dead with her father late Saturday near Grizzly Flat.

After Mourad “Moni” Samaan failed to bring back their 2-year-old daughter, Madeline, the girl’s mother filed urgent legal pleadings, saying her ex-husband “is out of control and our daughter is in immediate danger.”

Just like Jessica Gonzales had done in Colorado, years earlier, and countless other mothers in various states.  One thing that seems a little different in this case:  the mother.   As I have discussed before (and personally know), law enforcement has no real duty to enforce, and cannot be really held responsible if they don’t.  Family law judges are allowed discretion, and typically exercise it.

Marcia Fay’s declaration demanding the little girl’s return came after Samaan missed the scheduled drop-off Aug. 7, a day after he learned Fay had been awarded full custody.

We need some procedure for NOT announcing custody awards while the child is with the parent challenging custody. . . .

The toddler, Madeline Layla Samaan-Fay, was found dead along with her father in a sport-utility vehicle on a wooded, desolate property co-owned by Samaan and his brother in El Dorado County.

Authorities say they believe Samaan murdered the little girl and killed himself. Autopsy results are pending and the official cause of death remains under investigation.
Read more: http://www.sacbee.com/2011/08/17/3842824/bitter-custody-fight-foreshadowed.html#ixzz1XBYlMEvQ

First of all (Mr. Hecht/Sacramento Bee), with all due respect, you need to take that phrase “bitter custody fight” and put it where the sun don’t shine.   Show a little creativity in headlines, this one is faded beyond belief.   Two years is not long for a custody fight, although for a short marriage it sure seems so.    It would seem a much more appropriate headline in this case (particularly with the brother of the father involved) to a family court-enabled honor killing, as we read on, and I stand by that even though no indication the family is Muslim (Grandfather, below, is from Egypt, Coptic Christian).  Caucasian religious Christian men have done the same thing, including one I can think of off-hand that involved a gun — and a machete, in Tennessee.  At its root, it’s an honor killing.  If I can’t have my kid, she sure won’t, or anyone else.

A two-year stack of Sacramento County family court documents reveals a bitter custody battle between Fay and her ex-husband, including a 2009 order for Samaan to complete 26 weeks of anger counseling before getting approval for overnight visits with his daughter. The papers allege outbursts by Samaan, including his storming into a hospital post-surgical room after Madeline was born Dec. 22, 2008, six months after the couple’s marriage broke up.

Wait a minute — they were married long enough to conceive a baby, about 3 months of one, before breaking up?   Am I allowed how did a deputy assistant attorney (that’s the mother) not have a better choice of spouse — was she charmed, did she not know?  How come he did not make a better choice of wife; if a traditional one was wanted — but both seem middle-class, well-educated, employed, etc.   How much court and police time has been involved to date, not to mention two deaths?
So far at least one court-connected group got its take — anger management.  I see they’ve been shortened from the 52-week that (last I checked) batterers were to get.
I’d like to see with whom.  The assumption that anger counseling will solve the problem sufficient for a grown man  who can’t respect hospital rules to handle an overnight with his daughter is interesting, to say the least, plus narcissistic.  It’s also part of the culture of therapy instead of accountability.
What was he angry about? Possibly about being used to create a baby then ousted from its birth?  Possibly about a female (his wife) saying No?    Here’s what a related link say the paternal grandfather, has to say;  note, he is a marriage counselor/psychologist mediator!

Grandfather of slain girl blames court system

(8/16/2011 by Stephen Magagnini & Peter Hecht, Sacramento Bee)

2M16DEATHS.JPG
(photo):JOSÉ LUIS VILLEGAS / JVILLEGAS@SACBEE.COM

“Makram Samaan, a psychologist who counsels married couples, laments that he wasn’t able to help his late son Mourad.”

Makram Samaan – a psychologist who helps couples mediate disputes and divorces – held his hands to the heavens and cried: “I’ve helped thousands of people and saved a lot of families, but I failed my son – I did not see it. I did not see it! Why should it not be me?”

Can I have their phone numbers?  Because if they were court-connected, I’d debate that saving and helping …

Samaan, who wrote his master’s thesis on suicide, said he knew his son Moni was in distress, but had no inkling how much.

He blamed the courts for driving his son over the edge.

(cause of death not determined at publication, innocent til proven guilty) . . . .    There are many mothers the courts is driving “over the edge” but they are not killing their children on weekend visits after being denied custody which, believe me, does happen.

“We need to take marriage and divorce out of the courts,” said a sobbing Samaan at his Fair Oaks home overlooking Lake Natoma.

Well, see “Collaborative Law.”  But I’m suspecting perhaps he’s thinking they belong back in the churches, mosques, synagogues, temples?

The courts turn love into hate, Samaan said. “One has to win and one has to be defeated. That isn’t marriage, that isn’t family – it doesn’t matter what the dispute is.”

I believe the capacity to love, or to hate, is a spiritual and innate quality and part of the mark of a human being is which one he or she chooses, regardless of circumstances.  To think too far otherwise (such as “anger management courses” will produce an attitude change that will stick) is to believe and accept human beings as basically “animals” (no offense meant to animals….)

Samaan – a Coptic Christian from Egypt – described his son Moni, a 49-year-old engineer for Hewlett-Packard, as a devoted, loving father. “He potty-trained his daughter,” he said. “He taught her how to swim and kayak and bought her a small guitar and they’d play and sing together.”

Notice in the interview, the mother taught the child nothing, did nothing for her…..(did she nurse her?  Did she give birth?)

Perhaps if and when the distraught mother decides to speak, we might hear another opinion on that.  What mother wouldn’t help teach a child to use the potty?  And it does appear they had joint custody part of this time, so he’d either have to, get another person to help this at his home, or be changing a lot of diapers.

“He taught her how to speak three languages,” Samaan said, gazing tearfully at a photo of his joyful, curly-haired granddaughter riding her magenta bicycle. “Only in America can a little girl say, ‘I love you, Grandpa’ in English, Arabic and Spanish.”

What a loss!

On Saturday, Aug. 6, Moni Samaan was spending the day with his daughter when he learned that a Sacramento County judge had awarded her mother full custody. He and Madeleine had been visiting friends on a court-approved visit in Oregon.
Read more: http://www.sacbee.com/2011/08/16/3840481/grandfather-of-slain-girl-blames.html#ixzz1XBdPVRJ9

What’s really interesting to me about this case, apart from its tragedy, is the mother’s work:

Fay, who works as a state deputy attorney general, said in the documents that her ex-husband’s “behavior in violating custody orders is becoming more brazen.  “His behavior has escalated out of control,” she said. “He realizes that if he maintains our daughter against court orders, law enforcement will not intercede if he is not at home or if I do not know her location.

Most mothers figure this out very quickly in the court process when dealing with people who do not respect the court order.  I would think someone also in her job description might be even more aware of this.  Still, it could not help her child, and she could not demand enforcement.
That is a horrible thing, to realize that there is no law enforcement going to intercede in a custody matter.  Yet increasing violation of them is indeed a risk.

On Aug. 2, Fay requested an order from the child abduction unit of the Sacramento County District Attorney’s Office to stop Samaan from taking unauthorized trips with Madeline, including to Egypt where he had family and Mexico where he owned property.

How long were these trips lasting (see visitation schedule)?   Why not an arrest with the FIRST one?

Why did this not AUTOMATICALLY obtain a supervised visitation situation?  After all, this is what the state wants, and is being paid to endorse.  Because he hadn’t actually assaulted the mother and there was no DV order in place to prompt one? (note, I don’t know the case).

Perhaps they were busy figuring out if they, too, could get in on the Family Justice Center ONE-STOP Get your Grants theme park set-up, already in place in 5 other California Counties and pending to become law as we speak, unless someone else starts speaking about this.  After all Sacramento County is right near Alameda County, where it was a District Attorney that got it started.

She said her ex-husband had taken the girl to Oregon, “will not disclose his location” and “has blocked his telephone number.” A hearing was pending for Aug. 30 on contempt allegations of repeated violations of child custody orders.

She said Samaan had threatened suicide in 2008 and “his behavior is now more unstable than ever before.”

In 2010, Samaan was granted permission to have the child in his custody on Wednesday evenings through Thursday mornings and on Saturday mornings to Sunday mornings.

What an unbelievably chopped up schedule for a young child!  And for the mother.  Where did the exchanges take place?

(Looking for more articles):   I said, this was an honor killing.  Here’s comment from the father’s brother, also an attorney:

I think he did the right thing. I’m proud of my brother and now he’s in a better place. He’s at peace. His daughter’s at peace. She’ll have one name now, and we can move on. And hopefully the court will learn a little thing about justice.

— Nabil Samaan, a California attorney, commenting on the apparent murder-suicide of niece Madeline Layla Samaan-Fay and brother Mourad “Moni” Samaan. Moni had been in an epic custody battle with ex-wife Marcia Fay, a California deputy attorney general.

This is, currently, a California Attorney stating openly that a little girl’s murder (and the father’s) is going to teach the court a lesson — about giving custody of young children to mothers?     From the same site “http://www.abovethelaw.com

— Jerome Fishkin, an ethics attorney, noting that attorney Nabil Samaan’s supportive commentsrelating to the apparent murder-suicide of niece Madeline Layla Samaan-Fay and brother Mourad “Moni” Samaan may be detrimental to Samaan’s law practice.

 

Geez.  Even Fathers and Families was quick to distance themselves from this statement (and take opportunity to further the cause, and diss CJE in the process:

F & F Condemns Despicable Comments Defending Father Who Killed Child in Family Court Dispute

Thursday, August 18th, 2011 by Glenn Sacks, MA, Executive Director

At the risk of free FAF publicity (the last thing it needs), here’s the article, and apparently a video of Nabil Samaan on the site as well.   Again, they seem to think CJE a worthy opponent; the fact is, both groups profit when the go toe to toe in public (as the long series of SFWeekly articles, early 2011, on California Courts granting custody to pedophiles.  As with this case, the article shone practically zero light (see CJE motto on its site, they “shine the light”) on how or why this happens.  The Glenn Sacks told his followers to show up and protest any anti-PAS talk, the article series was apparently fed (in good part) to the author, and neither of them reallya ddressed the money trail in the court, and dropped several balls in handling the topics.  The uncritical character of the cult-followers of both groups became clear in the 1700+ comments on one article and over 800 on the other. )

Fathers and Families condemns both Moni Samaan’s horrendous murder of his child and also Nabil Samaan’s despicable defense of his brother’s actions.

Nabil Samaan says his brother was mistreated in family court and child custody matters. However:

1) Nothing ever could come close to justifying what Moni Samaan did to his daughter.

2) It is questionable whether Moni Samaan was, in fact, mistreated in family court.

It is absolutely true that many California fathers are manhandled in family court, often cut off from their children, punished without evidence on spurious abuse claims, and bankrupted by confiscatory financial orders and demands. However, Moni Samaan had a decent child custody arrangement, apparently over 30% physical time.

In the end he was stripped of all parenting time with his child for a perfectly good reason–he repeatedly disappeared with the girl when it was time to bring her back, violating the court order and causing the girl’s mother much stress and worry. Tragically, the mother had every reason to worry.

The Center for Judicial Excellence is now involved in the case–see the Capitol Weekly piecehere. The CJE works to drive recognition of Parental Alienation out of the family court system and encourage courts to uncritically accept mothers’ abuse allegations. We laid out the problems with the CJE and its allies position in our Capitol Weekly column Preventing courts from considering parental alienation will harm kids (2/25/10). The CJE is one of our main political opponents, and we were instrumental in blocking two of their bills last year–to learn more, click here.

The CJE also stereotypes fathers as abusers and killers, ignoring the well-documented fact that the vast majority of parental murders of children and child abuse are committed by mothers, not fathers. However, in this case it must be said that the CJE is correct in condemning and making an issue of Nabil Samaan’s despicable comments.

The case is also being discussed in the American Bar Association Journal here.

[Late Note: Nabil Samaan has now issued a statement retracting his previous comments.]

 

 I’d like to say, may Mr. Samaan bereft of customers, but I have a feeling more will flock to him because of the statement.

After blogging a bit about CJE I will have more to say on an example of just how many may feel the same way as Mr. Samaan– the US has asked for this because the family law courts are too feminist-favorable

 

(CJE & I go back a ways (although my function is closer to that of a critical gnat than actual obstacle to business as usall with this nonprofit), and have seldom agreed on many matters, particularly their singular DIS-interest, til belatedly, in the blood-soaked money trail of grants to the courts which affect custody outcomes….   Or matters such as using networks of distressed noncustodial (or barely custodial) mothers to send out press releases and sell products for related groups (i.e., NCADV, or the Mo Hannah/Barry Goldstein basic book tour), while some of those mothers were poverty-stricken from the role of the child support services (also under-reported if at all by CJE) in the custody battles they were in.  Rather than getting up to speed on this (the nonprofit was formed 10 years after welfare reform of 1996), CJE has chosen a different route, which is to sell its film Breaking the Silence, personally endorse certain legislation (the “Mark Leno” connection) and go for more grants.

Moreover, CJE is structurally it seems (in origin) not much different than Kathleen Russell COnsulting.  Each one claims the other as a client; and the main consulting expense to CJE is KRC.  Go figure…..  If you detect a personal note, it is personal.  The actions and direction of this group has affected close friends of mine, at least one of whose devout followers was homeless through garnished wages, while CJE did not cover the child support /OCSE angle, at all.

 

 

However, earlier (looking up parent coordination matters) I ran across a SF Bay ARea attorney, which reminds me of this one’s comment.  The attorney at this SF firm. apparently a socially progressive, but fathers rights, equal parenting with the best of them.

Of MOST interest to me was an article on his blog characterizing the Constitution as “Antiquated” and in need of being re-written.  This is a practicing attorney and member of the California State Bar, I’m sure.  Does that membership require any oath?  (anyhow, several paragraphs below, I will quote):

 

(The Center for Judicial Excellence has announced it will file a complaint with the State Bar of California demanding Nabil Samaan’s disbarment.)

Ah yes, Center for Judicial Excellence, our SHINING LIGHT in the area, particularly when its name can be attached to something high-profile:

Since it’s founding in 2006, CJE has filled a critical void, shining a light on a vital branch of government that wields tremendous power over the lives of average people. CJE has empowered citizen leadership, inspired government action, and become a major catalyst in building a national movement for family court reform.

Beginning in 2008, CJE made a special commitment to protecting the rights of children and vulnerable populations in the courts. This year, CJE will continue our successful campaign to promote the safety of children in California’s family courts… and in courts across the nation.

. . .
And to the whitehouse from a mere nonprofit started in 2006, unbelievable:

 - -

Our ED {Executive Director} Kathleen Russell was a distinguished guest at the first-ever White House event on Domestic Violence where the collective work of assembled advocates was repeatedly lauded by the President and other Administration officials. Vice President Biden spoke specifically about family law and the need for increased resources and better access to justice for DV victims. Administration officials Valerie Jarrett and Lynn Rosenthal were joined by baseball great Joe Torre, who spoke about his experience as child growing up in a violent household. Watch this video from the event, or click here to read a transcript.

 

Excerpt from Transcript:

I want to thank Judge Susan Carbon, the Director of the Office on Violence Against Women at the Department of Justice.  (Applause.)  We’re proud of what we’re doing here.

I want to thank my Secretary for Health and Human Services, Secretary Sebelius, who is helping to coordinate our efforts.

And finally, I want to thank everybody who is here today for the work that you’re doing to stop domestic violence and to help its survivors.  You’ve got champions like Senator Frank Lautenberg and Congresswoman Donna Edwards who have done extraordinary work in Congress.  You’ve got leaders like Mayor Mitch Landrieu . . .. (etc., etc.)

(Fatherhood Policymaker — link below leads to it — includes in LA, Senator Mary Landrieu.  Related?)

 

While I’m here, Mayor Mitch Landrieu, from Wikipedia (may not be most current, but for what it’s worth):

Mitchell Joseph “Mitch” Landrieu[1] (pronounced /ˈlændruː/lan-drew;[2] born August 16, 1960) is the Mayor of New Orleans, former Lieutenant Governor of Louisiana, and a member of theLandrieu family. Landrieu is a member of the Democratic Party and a Roman Catholic. He is the son of former New Orleans mayor and Secretary of the United States Department of Housing and Urban DevelopmentMoon Landrieu and the brother of the senior U.S. Senator from Louisiana, Mary Landrieu. In 2007 he won a second term as lieutenant governor in the October 20, 2007 jungle primaryby defeating two RepublicansState RepresentativeGary J. Beardand Sammy Kershaw. He was elected Mayor of New Orleans on February 6, 2010, garnering 66 per cent of the city-wide vote and claiming victory in 365 of the city’s 366 voting precincts.

Landrieu was born the fifth of nine children to Moon and Verna Landrieu. He grew up in the Broadmoor neighborhood of New Orleans. After graduating from Jesuit High School in 1978, he enrolled at The Catholic University of America in Washington, D.C.where he majored in political science and theatre. In 1985 he earned a Juris Doctor (J.D.) degree from Loyola University Law School in New Orleans.

Landrieu is married to Cheryl P. Landrieu, also an attorney, and resides in New Orleans. They have five children: Grace, Emily, Matthew, Benjamin, and William.

Landrieu has been a practicing attorney for fifteen years and is president of International Mediation & Arbitration, Ltd. He is a member of the Supreme Court Task Force on Alternative Dispute Resolution which was responsible for developing the pilot mediation program in Orleans Parish. Landrieu is trained in mediation and negotiation by the Harvard Law School Negotiation Project, the American Arbitration Association, and the Attorney Mediator’s Institute. Landrieu has also taught alternative dispute resolution as an adjunct professor at Loyola University Law School.

WOW. He has “everything” in his profile to indicate he’d understand the need for some father-absence and some strict criminal accountability when it comes to domestic violence right?  Not to mention the religious background straight through (obviously great academics) — his sister is on the Fatherhood Legislative Task Force.  But I guess it wouldn’t be polite for CJE or anyone else to ask an impertinent question about this hypocrisy — “we care about DV but we really believe in fatherhood as program solution to social ills — while being honored by the OVW.”

 

Far be it from Ms. Russell, CJE, or anyone else getting OVW kudos to mention — and certainly not critically — how President Obama, as with many politicians — speaks with forked tongue when addressing domestic violence advocates.  This is acceptable, because they know the grants will still come, even if social services are cut for aging or other individuals who need them, to support some theory about stopping violence.
For example, the REAL way to stop violence is to stop father absence, right?   According to NFI, it’s right:

Why should policymakers care about responsible fatherhood?

  • The federal government spends $100 billion every year to support father-absent homes. In June 2008, National Fatherhood Initiative released The One Hundred Billion Dollar Man, a ground-breaking study that showed that the federal government spends $100 billion each year supporting father-absent homes. And that’s a conservative estimate – the study did not measure impact for related costs such as the criminal justice system, which is overwhelmed by men who grew up in father-absent homes.
  • The most challenging social problems of our time are connected to father absence. If you want to address poverty, child abuse, crime/recidivism, drug abuse, teen pregnancy, or education, then restoring fatherhood is an integral part of the solution. Father absence is not a single issue, and its social and economic consequences are felt across society.
  • Father absence has a direct impact on the well-being of millions of children. 24 million children, 1 out of 3, grow up in homes in which their biological fathers do not live. In the African-American community, the rate is 2 out of 3. These children are significantly more likely to live in poverty, drop out of school, engage in risky behaviors…all issues the government grapples with every day.

20410 Observation Drive
Suite 107
Germantown, Maryland 20876

© 2010 National Fatherhood Initiative. All Rights Reserved
National Fatherhood Initiative is a registered 501(c)(3) …

NOTE — NFI got its start with an HHS grant, Wade Horn — right? — helped steer it?

SF “PROMETHEUS” law firm Point of View (one of the attorneys):

(“sanfranciscobayarealaw”)

Mr. Aly Ebrahimzadeh, Esq.

Mr. Aly Ebrahimzadeh, Esq.Mr. Aly Ebrahimzadeh, Esq., a Distinguished Attorney with Prometheus: A Social Justice Law Firm, speaks fluent Spanish, French, Italian, Farsi, as well as basic German. Mr. Ebrahimzadeh is licensed to practice law in the various state and federal courts of California, including the Federal District Court for the Northern District of California, the US Court of Appeals for the Ninth Circuit, the California Supreme Court, all the California Appellate Courts, and all the California Superior Courts, including in Redwood City, Palo Alto, San Francisco, San Rafael, Martinez, Oakland, Hayward, San Jose, Monterey, and Santa Cruz. A former successful Governor’s Teaching Fellow public school teacher, college teacher and organic farm-worker, Mr. Aly Ebrahimzadeh, Esq. is a dynamic and cutting-edge public interest attorney possessing very successful years of experience working with Plaintiff-side and Non-Profit law firms in the San Francisco Bay Area, including Communities for a Better Environment, Earthjustice, and Education Not Incarceration. In both state and federal courts, Mr. Ebrahimzadeh has worked successfully with colleagues on multi-million dollar cases representing both Plaintiffs and Defendants, high stakes criminal actions, class action lawsuits, complex multiparty actions, very high-conflict divorces, and social impact litigation.

Highly educated, highly competent.  And he has quite a bit to say about custody, father’s rights, Japan (for not signing the Hague treaty), the US, shared parenting, child abductions and mediation as practiced in the courts.  A lot of what he says I can definitely agree with — such as that the mediation as practiced around the divorce courts consists of kangaroo courts.  And he wants more evidence.
Here’s the “the Family Law Court is biased against (men)” theme:

Child Abductions, California Child Custody Law, and International Human Rights

February 28, 2011 By Mr. Aly Ebrahimzadeh, Esq.

Child abductions are clearly a very serious problem, locally and globally. Anybody driving up and down any of California’s major highways has likely seen the digital signs hanging over the road announcing specific child abductions in progress and providing identifying information about the car the alleged kidnapper is likely driving. Yet the number of such announcements is miniscule compared to how many child abductions the California Family Law Court system sees every day in child custody cases, where custodial or non-custodial parents run away with the children out of vengeance or fear of the other parent. Where the kidnapping parent provides allegations, be they evidenced or not, of domestic violence by the other parent, the child custody court will often allow the abducting parent to preserve the majority or the entirety of custody over the children. Allegations go a long way in Family Court, and any seasoned California Divorce Attorney knows that one parent will often make unevidenced allegations of abuse to justify taking the children away from the other parent, like so much property

I guess truly seasoned California Divorce Attorneys have come to understand that abuse just doesn’t happen, really, although there are still people getting killed after years of it.
(I’ve actually had posts on this, but for reference:  when there is a decision to prosecute kidnapping, this is one definition from the California Penal Code.  Actually, this one is for child-stealing, as opposed to abduction/kidnapping which seems to have a slightly different flavor:
(a) Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment in the state prison for 16 months, or two or three years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.
   (b) Nothing contained in this section limits the court's contempt
power.
   (c) A custody order obtained after the taking, enticing away,
keeping, withholding, or concealing of a child does not constitute a
defense to a crime charged under this section.
Interference with custody is indeed serious, and is a crime.  The question is, what is this crime doing being handled in family courts?
The other reality which sinks in — California prisons are already overcrowded.  The chances of this law being consistently enforced as a
deterrent to parental abduction is just about nil.
278.6 then reads:
(a) At the sentencing hearing following a conviction for a
violation of Section 278 or 278.5, or both, the court shall consider
any relevant factors and circumstances in aggravation, including, but
not limited to, all of the following: . . . .

   (1) The child was exposed to a substantial risk of physical injury
or illness.
   (2) The defendant inflicted or threatened to inflict physical harm
on a parent or lawful custodian of the child or on the child at the time of or during the abduction.
   (3) The defendant harmed or abandoned the child during the
abduction.
   (4) The child was taken, enticed away, kept, withheld, or
concealed outside the United States.
   (5) The child has not been returned to the lawful custodian.
   (6) The defendant previously abducted or threatened to abduct the
child.
   (7) The defendant substantially altered the appearance or the name
of the child.
   (8) The defendant denied the child appropriate education during
the abduction.
   (9) The length of the abduction.
   (10) The age of the child.
(c) In addition to any other penalties provided for a violation of Section 278 or 278.5, a court 
shall order the defendant to pay restitution to the district attorney for any costs incurred in
locating and returning the child as provided in Section 3134 of the
Family Code, and to the victim for those expenses and costs reasonably incurred by, or on behalf of, 
the victim in locating and recovering the child. An award made pursuant to this section 
shall constitute a final judgment and shall be enforceable as such.
279.1
The offenses enumerated in Sections 278 and 278.5 are
continuous in nature, and continue for as long as the minor child is
concealed or detained.
(I never noticed the part in green before particularly).  It says, at the SENTENCING hearing.  This is not family court;  Sentences come from criminal sector!  But they will not be handled in that sector unless and until police get involved, and a D.A. decides to prosecute.  As we see in Marcia Fay’s plea, they have the right not to, and exercise that right.  For more on that see http://www.Justicewomen.org, talking about the importance of the D.A. to women’s safety.  This law tells me that the intention of the legislature in passing it was to acknowledge child-napping as CRIMINAL — not just a family matter.
I was however, much misled (as were others) in who was going to take this seriously, and underestimated the progress of AFCC and family law in undermining the purpose and intent of criminal law and its language.  In fact at that time, I didn’t know about AFCC at all — because people were not talking about it, by and large.
278.5 then talks about the domestic violence aspect, and says that in certain situations (i.e., domestic violence has been perpetrated on the abducting parent, or the child was in imminent danger) — then this criminal law does NOT apply to them (as to the punishments), but in either case the person shall take certain actions (showing good faith, and involving the district attorney):
(a) Section 278.5 does not apply to a person with a right to custody of a child who, with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm, takes, entices away, keeps, withholds, or conceals that child.
Marcia Fay would've had such good faith and reasonable belief, but probably was smart enough 
to know this wouldn't be taken into consideration in her case, and/or she was not willing or able -- or didn't wish
to relocate, which is a huge, traumatic, and risky step for any parent to take.

   (b) Section 278.5 does not apply to a person with a right to custody of a child who has been a victim of domestic violence who, with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm, takes, entices away, keeps, withholds, or conceals that child. "Emotional harm" includes having a parent who has committed domestic violence against the parent who is taking, enticing away, keeping, withholding, or concealing the child.
   (c) The person who takes, entices away, keeps, withholds, or
conceals a child shall do all of the following:
   (1) Within a reasonable time from the taking, enticing away,
keeping, withholding, or concealing, make a report to the office of
the district attorney of the county where the child resided before
the action. The report shall include the name of the person, the
current address and telephone number of the child and the person, and
the reasons the child was taken, enticed away, kept, withheld, or
concealed.
   (2) Within a reasonable time from the taking, enticing away,
keeping, withholding, or concealing, commence a custody proceeding in
a court of competent jurisdiction consistent with the federal
Parental Kidnapping Prevention Act
This law specifically enables parents that really have a good faith and reasonable belief that failure to remove the child will result in serious
injury (this could include death) or harm to do what parents are charged with doing to kids they bring into this world — keep the children ALIVE, not kill them,
as the father in the Sacramento news article did.
The law distinguishes abducting parents on the point of whether one has committed violence against the other.  This is how it should be.
This attorney here, in saying, as above:
Where the kidnapping parent provides allegations, be they evidenced or not, of domestic violence by the other parent, the child custody court will often allow the abducting parent to preserve the majority or the entirety of custody over the children
He knows as well as I do exactly what court form “provides allegations, be they evidenced or not” these are filed under, and chose not to dignify it with the name of that form, i.e., for “provides allegations” (minimizing language, making it sound informal, conversational almost),  - a partial list from SF Superior Court.  Note these are also available in Korean, Vietnamese and Spanish.   Any form filed out has to be served upon the other party and there is a hearing usually before a temporary order is made permanent, perhaps unless there is a criminal order also resulting in arrest for more major assault & battery/injury, etc. situations.
It’s probable that this attorney or someone at his firm has at least heard of the husband and wife, both Juilliard graduates, then living in NJ, where they’d moved to Korea, the father came back (while child abuse allegations were under way in S. Korea, as I recall) and the Dad simply went to a family law court in NJ, who awarded him full custody because she kidnapped.  On the way back to NJ (obediently) for the hearing, the wife was arrested and thrown in jail.  Parents indeed do jail time for custody interference and kidnapping in the context of family law.
If he is up on his family law (among all the other practices) he is also probably aware that later on, there are custody-switches back to the custodial. This is simply not the angle of approach in discussing the matter, though.
 Nor do all filings of domestic violence (not simply spoken allegations but going through the process) result in no contact with the other parent, nor “kidnapping.”  This is a partial list of forms under “prevention of Domestic Violence.”
It seems to me that this attorney has a problem with the existence of these options for mothers (although the word “parent” is used at places in the dialogue).  As such, he has a problem with existing law, not just practice.
Form  Date Revised Description
DV-100* Jul 1, 2009 Request for Order
DV-101 Jul 1, 2010 Description of Abuse (Domestic Violence Prevention)
DV-105* Jan 1, 2004 Child Custody, Visitation, and Support Request (Domestic Violence Prevention)
DV-108* Jul 1, 2003 Request for Order: No Travel with Children (Domestic Violence Prevention)
DV-109* Jan 1, 2010 Notice of Court Hearing (Domestic Violence)
DV-110* Jan 1, 2010 Temporary Restraining Order (CLETS-TRO) (Domestic Violence)
DV-112 Jan 1, 2010 Waiver of Hearing on Denied Request for Temporary Restraining Order
DV-120 Jul 1, 2009 Answer to Temporary Restraining Order
DV-125* Jan 1, 2010 Reissue Notice of Court Hearing and Temporary Restraining Order (Domestic Violence Prevention)
DV-126-INFO Jan 1, 2010 How to Reissue a Temporary Restraining Order (Domestic Violence Prevention)
DV-130* Jan 1, 2010 Restraining Order After Hearing (CLETS-OAH) (Order of Protection)
DV-140* Jul 1, 2003 Child Custody and Visitation Order (Domestic Violence Prevention)
DV-145* Jul 1, 2003 Order: No Travel with Children (Domestic Violence Prevention)
DV-150* Jul 1, 2003 Supervised Visitation Order (Domestic Violence Prevention)
That’s a lot of forms.  Too bad that it’s considered, dismissed, as “provides allegations,”  when reality says, there is domestic violence, people are killed by their partners, and sometimes others, bystanders — that speaks loudly to me.
Here is a 2009 discussion / memo to the California Judicial COuncil from the Family and Juvenile Law Advisory Court members, the Hons. Jerilyn L. Borack and Susan D. Hugenor (co-chairs) and Tamara Abrams, Senior Attorney — and what they are discussing is the need to require a judge to state his/her reasons for DENYING a restraining order.  In other words, there have been problems (most likely deaths) involved with denial of the restraining orders (text in maroon font):

TO:  JUDICIAL COUNCIL OF CALIFORNIA

ADMINISTRATIVE OFFICE OF THE COURTS ["AOC"]  455 Golden Gate Avenue San Francisco, California 94102-3688

Members of the Judicial Council

FROM:  Family and Juvenile Law Advisory Committee,  Hon. Jerilyn L. Borack and Hon. Susan D. Huguenor, Cochairs’ Tamara Abrams, Senior Attorney, 415-865-7712, tamara.abrams@jud.ca.gov

October 23, 2009

SUBJECT:   Family Law: Denial of Request for Temporary Restraining Order (revise Judicial Council forms DV-110, DV-125, DV-126-INFO, DV-130, DV- 200, DV-210-INFO, DV-250, DV-510-INFO, and DV-540-INFO; adopt form DV-109; and approve form DV-112) (Action Required)

Issue Statement

Effective January 1, 2009, Assembly Bill 2553 (Solorio; Stats. 2008, ch. 263) added section 6320.5 to the Family Code to require a court to state its reasons when denying a petition for an ex parte restraining order. In addition, under section 6320.5, if a court denies a jurisdictionally adequate petition for an ex parte order, the petitioner has a right to a noticed hearing within a specified number of days. The petitioner, however, has the option of waiving his or her right to the noticed hearing while retaining his or her right to file a new petition, without prejudice, at a later time. Family Code section 6320.5 requires the Judicial Council to develop a form to implement the statute by January 1, 2010.

Recommendation

The Family and Juvenile Law Advisory Committee recommends that the Judicial Council, effective January 1, 2010:

1. Revise Judicial Council forms DV-110, DV-125, DV-126-INFO, DV-130, DV-200, DV-210-INFO, DV-250, DV-510-INFO, and DV-540-INFO;

2. Adopt form DV-109; and

3. Approve form DV-112.

This tells us already that there has been an issue of denying requests for restraining orders, and these entitites hope they will not be denied without explanation.

Attorney Ebrahimzadeh, cont’d:

The California Family Law System is deeply dysfunctional, and it is need of some serious positive changes.
I do believe it’s fulfilling its general assigned functions:  Absorb criminal activity and reframe it as family disputes ,then farm out business to those who are dispute-settlers, including “Alternative Dispute Resolutions” goups.  However, I do agree it is in need of some serious positive changes — like being boycotted.  Almost any process however strident, would be  an improvement upon this system and its years-long torture of families (both sides), sometimes involving what basically amounts to extortion — and affects the growing kids exposed to their parents being extorted, tortured and having their due process eliminated in the courtrooms. ( In case I didn’t say that straight enough….)
Though the problem of child abductions is connected to various international issues which shall be discussed later in this article, on the local level alone, it is often inextricably linked to the discussion of California Child Custody and Divorce laws regarding domestic violence. Thus, the problem of child abductions cannot be resolved in California unless the Family Law Court system increases its demands for evidence when faced with one parent’s allegations of abuse and negligence,
It defies the nature of abuse, which is secretive, to demand that proof, but the fact is there are times where there has been proof (including of child abuse — which he’s not highlighting here so much as DV) and the courts ignore it anyhow.
Is it possible, at any point, to admit (as an attorney) that  the U.S. Congress passed an Act called the Violence Against Women Act, and acknowledged that violence against women is a problem in society and does indeed occur?  Logically speaking some of these women are also parents and hence custody courts.
and nurtures a professional environment that is truly committed in deed, and not just in word, to the welfare of children and the right of a child to have equal time with both parents, rather than jaded by slanted political and gender debates and financial interests.
Which gender is not mentioned, but I’m going to hazard a guess he means feminism.  However, I am still going to assert, that fathers uniformly and culturally are not always the fit caretakers, nor have they in many marriages historically BEEN the caretaker.  How much money should be poured into fixing them til they are (this is allegedly what the fatherhood movement is about, in part)?  Should all citizens pay for that war on father absence, and re-establishing classes on how to be a father, in addition to the public education system (which apparently doesn’t promote good fathering behaviors) which they are already paying for?
More language, and some of it common sense, some, I am going to agree with.  However, until we see that fathers STOP KILLING THEIR KIDS as an imminent, and pervasive threat to anyone who does NOT award them equal (or full) custody, I am going to have to oppose equal parenting time as the standard on the basis that it’s not fair to experiment in raising nurturing fathers with little children, and particularly unfair given the track record.  It is STILL more men killing than women (go to the DOJ stats page if you’re in question on this), and as such, one contraindicator to little kids getting killed around custody disputes is understanding that Moms can handle custody, and stop setting the culture to FIGHT us of this.  We have also been betrayed in court, on many fronts, and frequently.

As a California Family Law Attorney practicing in San Jose, Redwood City, San Francisco, Oakland, Santa Cruz, and the surrounding areas, and having a Divorce Law practice that focuses on Child Custody, [[i.e. representing one parent or another in a child custody proceeding]] Equal Parenting Rights, [[in practice this means fathers' rights]] and Collaborative Divorce, I join many of my progressive colleagues in urging California legislators to adopt some serious changes to our Family Law Courts, such as:

1. Allow jury trials in Child Custody cases to help avoid the judicial cynicism and fatigue that may creep into judge-controlled Family Law cases in California;

Jury trials over WHAT?  Domestic violence and child abuse?  Those belong in criminal courts as they are crimes.  Family Court is defined (am I right? ) a court of equity; it’s not even a civil court involving torts.  It took me years to figure out what most attorneys already know.  So why is this progressive attorney seeking to try to force the square peg into the round hole, and have “FAMILY” courts — which deal in psychology more than (as an alternative to) fact, currently — and dress them up with a jury trial?

2. Take seriously citizen complaints about child therapists and social workers, and set up a third-party independent review process meant to weed out from the Court’s list of recommended professionals the psychological evaluators, Special Masters, and other therapeutic practitioners who are repeatedly alleged by various clients to act in a biased or unprofessional manner;

San Francisco, by now, is closing courtrooms.  Who would be on this independent review?  Like the Elkins Family Law Task Force, very few actual parents? However, to weed out the bias & unprofessional behavior, I assert that one great way would be an accounting audit.  period.  Because that’s usually the critical area of unprofessional behavior motivating the warping of professional ethics which shows up in other areas.  (i.e., eliminate kickbacks FIRST).

3. Make a concerted effort to educate lawyers, judges, and divorce professionals about the science that supports the essential albeit practically marginalized role of fathers in children’s lives, so that we can start to see divorced fathers being given back their natural human right to spend equal time with their children; and

I get it:  the Science of fatherhood (research paid for by your local fathers’ rights groups, and a foundation or two) justifying equal parenting time for fathers, which is their “natural human right.”

How is this to be separated from who is earning the income in the family?  Does he really expect the child support system to just evaporate because equal parenting time is scientifically proven to be better (if it is)?   This would essentially eliminate child support, almost (not that I’m opposed), however, then we have another problem called, women typically earn less for doing the same jobs men do.  And we have the matter of relocation — and the impossibility of couples ever, really, separating (and/or marrying someone geographically distant).

4. Understand that the current model of extended court-based mediation and post-mediation hearings often subjects parents and their children to kangaroo court injustices where the laws of evidence are held in abeyance and therapists’ and mediators’ knee-jerk evaluations hold ultimate sway for months if not years, at which point then the parties may proceed to the litigation process of discovery and trial, which can take months and years itself.

This is true, although if I were a father-friendly litigator, I”d thank my lucky stars for the therapists and mediators, who have financial incentives to favor Dads, and do so.   This, however, is an accurate description:  knee-jerk evaluations that hold sway for years, after which trial, and more years.

 

Our California Family Law Courts need to set up more stringent deadlines for this presently unending mediation process, bolster the goal of giving every child his equal time with both parents, and uphold and fortify evidentiary requirements upon both parents who are often found slinging whatever mud they can grab during this current mediation-based process.

Which brings up another point in his phrasing:  false allegations indeed go two ways more easily in family court; and each mud-slinging session means more money FOR the courts, given that mediators are paid by the county; child support professionals (which will be affected by alterations in custody) are also paid for by the county, as are GALs and others — in fact almost everyone but the judge, and evaluators which parents are forced to pay, plus providers of classes they are forced to take, when that occurs.  Did I mention “supervised visitation providers” yet?  So he has his point.
That said, if it’s mediation-based process he’s protesting, then why is he promoting mediation outside the courts?

Read Mr. Ebrahimzadeh on California Prison system (nov. 2010)

I notice that he is covering some of the same material I have been — for example, I also blogged this on “Cutting down on Immigration, Locking up Profits” post (reporting on an investigation under similar name) and on Corrections Corporation of America.  (search on my blog).  How then, and why, is it so emotionally and intellectually hard to conceive of the same types of influence at the family court level?  Good grief — when the word “family” comes in there, suddenly politics evaporates and no money changes hands to prevent reform?

Why not clean up the financial misbehaviors FIRST and then see what’s left — if anything indeed would be left of the family court structures once those are removed!

(kind of like taking the junk out of junk food — would defeat the purpose?).

ANyhow, he writes coherently:

California prison reform movements seeking to overcome serious problems, such as prison overcrowding, prison violence, and insufficient health and education services for prisoners, are particularly challenged by the State’s litigation efforts against prison reform class action lawsuits, the State’s unwillingness to abide by court orders mandating positive changes in the prison system, and questionable political decisions by California’s Governor and underlings that may be influenced by campaign contributions and economic influence by major corporations that build and maintain private prisons for burdened states like California.

The California prison system is the largest in the nation, and it suffers from serious problems of overpopulation, violence, and insufficient health and education services for its juvenile and adult inmates, especially for those with special needs. It is unconstitutional for a State prison system to operate at such dilapidated levels, because “cruel and unusual punishment” is illegal under the State and FederalConstitution.

At best, it is ironic that the California prison system is itself illegal. At worst, the terrible state of affairs in the prison system is the result of very questionable political choices who only seemingly benefit private companies who build and manage new mega-prisons meant to deal with overpopulation, violence, and prison services for states buckling under such problems. The three largest private prison companies in the USA are Wackenhut (newly renamed as G4S Secure Solutions USA), Corrections Corporation of America, and Bechtel.

Their lobby efforts and influence in national and state politics is infamous. In April of 2006, the National Institute of Money in State Politics published a major research paper entitled “Policy Lock Down: Prison Interests Court Political Players,” which noted that between the years of 2001 and 2004, major private prison corporations donated over $150,000 to California politicians’ campaign efforts. In turn, these companies were awarded multi-million dollar governmental contracts by the State of California. This raises the question: Is California’s crumbling prison system merely a pawn in quid-pro-quo (“this for that”) politics, i.e., “you scratch my back, and I’ll scratch yours”? More broadly, the National Institute of Money in State Politics summarized their April 2006 report as follows:

Companies involved in building, financing and operating private prisons gave $3.3 million over two election cycles, channeling nearly two-thirds of the money to candidates and party committees in states with some of the toughest sentencing laws. This report looks at overall giving, as well as contributions by the companies and their lobbyists in 10 states: Arizona, California, Colorado, Florida, Indiana, Mississippi, Oklahoma, Pennsylvania, Tennessee and Texas.”

The problem in California is shockingly clear to any person who has personally spent any time in the walls of a state prison here, or had a family member who has. There are presently about 160,000 adults in the California prison system, which is about twice as many as are supposed to be kept in such facilities. Such prison overcrowding has caused extremely high levels of violence, emotional difficulties, and psychological disorders among the strained prisoners. Also, there are insufficient resources for providing medical attention and education to the ever expanding number of prisoners, again in direct violation of Federal and State Constitutional laws.

(emphases mine).

But then here we go, when it comes to family law:

Sexism in Divorce Court: A Comparative Understanding of the Case of Sakineh Ashtiani in Iran and Child Custody Statistics in California and the USA

By sexism — against fathers is meant, naturally.  First, a case in Iran is given, and then the USA shown to have gone entirely off the deep end, I guess, in allowing women TOO many rights in court.

November 9, 2010 By Mr. Aly Ebrahimzadeh, Esq.

Discrimination and sexism is rampant in divorce courts and child custody matters in the San Francisco Bay Area, including in San Jose, Oakland, Hayward, and Santa Cruz, California. A comparison with the discrimination and sexism found in Iran’s divorce and family law courts allows us to understand the flip side of the anti-father Californian child custody court system.

In Iran’s sexist and corrupt legal system, when a person is convicted of adultery, the punishment is stoning until death.  To convict a woman of adultery in Iran, a man must make the allegation and bear witness against her.  To convict a man of adultery in Iran, two women must testify against him, because in Iran’s sexist legal system, a woman’s testimony is considered half as trustworthy as a man’s. A man’s word is all that is required, therefore, to charge and convict a woman of adultery – and essentially, to kill her by the legal punishment of stoning.

This is the exact fate of Sakineh Ashtiani, who was charged with adultery and sentenced to death by stoning. She awaits execution in a torturous Iranian prison today. To ensure that she receives no support in her battle for her life, the oppressive Iranian government has deported her criminal defense attorney, and has imprisioned the German journalist and civil rights activists who were covering her case. Several civil rights and humanitarian non-profit organizations, including Avaaz.org, are heading grassroots efforts to stop the stoning of Sakineh. You can sign the petition at their website, and you can call the Iranian embassy in Washington D.C. to voice your opinions on this human rights matter. To call the embassy of Iran in Washington D.C., dial 212-687-2020 and hit “0″. Tell the operator why you’re calling, and he’ll transfer you to a voicemail where you can leave a message. It is likely more safe to not leave your name on the voicemail, but it’d be useful to identify the state from which you are calling.

Beyond the life and policy at stake here, this divorce law matter holds a certain relevance to our American legal system. In Iran, when a couple divorces, the father is automatically awarded sole legal custody of the children. 

 

What about physical custody?  Does the father then end up raising and potty training youngsters?  I don’t think so ….

In a culture where women are stoned for adultery on the testimony of one man, it would make sense not to have a woman that could be the next moment stoned to death on hearsay raising children!  But notice the contrast and protest here:

(this is the rest, the entirety of that post)….

 In the USA, in contested custody cases, according to statistics published by the federal government and the State of California, mothers are awarded primary custody of the children 80% of the time, fathers get primary custody 5% of the time, and parents split custody 15% of the time in a time-share structure that strongly weighs in favor of mothers. A true 50-50 split in child custody occurs less than 2% of the time in US divorce courts. California, for all its sensitivity to gender issues and progressive politics, matches these same child custody statistics.

FACT:  not all fathers sue for custody, or want to.  Some have already moved on to another women.

FACT:  Some fathers do not get custody — initially — because separation is occasioned by their being in prison for assaulting the mothers, or other causes.

In saying “mothers are awarded” this implies no difference in who is seeking custody; it’s not logically or evidentially honest.  Rather, say, “in CONTESTED” custody cases xx% get custody.

Moreover, to fail to mention a $4 billion child support industry and multi-million (perhaps billion, I”ve lost track) fatherhood industry, entrenched throughout the federal government by executive order from a democratic president dating back to 1995 is simply dishonest.  This attorney needs to acknowledge this.

The problem of sexism in our understanding of parenthood is beyond a simple legal problem. In our culture, to “mother” a child has the connotation of “coddling” or “nurturing” a child; whereas to “father” a child means to “procreate”, “spawn” or “sire” a child. The mainstream cultural vision of the typical breadwinner is male in our culture, and the mainstream cultural vision of a homemaker is female in our culture. We too suffer from a sexist family law system here in the United States – in fact, here in California as well.

Part of our work at Prometheus: is to challenge and subvert these sexist stereotypes, to ensure that gender equity and justice is very much a part of the legal system in divorce court. But what we cannot control at all is people’s perceptions. We maintain this law blog to urge you to do that kind of work – the very real work of analyzing your own way of thinking and acting, especially in times of great conflict.

Prometheus: offers aggressive divorce lawyer and child custody attorney representation in family law matters in the San Francisco Bay Area, including in Berkeley, Oakland, Napa, San Rafael, Palo Alto, Redwood City, San Jose, Hayward, Pleasanton, Santa Cruz, and Monterey, California. We work with fathers and mothers seeking collaborative divorce representation in child custody mediation cases, as well as fair child custody arrangements that are in the child’s best interests in divorce lawsuits.

 

There is sexism inherent in our culture.  When we have a Congress that is 51% women (as we are about 51% of the population) and when secretaries, domestic workers, elementary school teachers, nurses, and the hotel maids, restaurant wait staff nationwide (for starters) are 49% then we can talk about sexism in the family courts.  I didn’t yet mention topless bars, prostitution, and a whole lot more I could’ve in this matter.  Probably one of the more egalitarian areas of our culture, though I can’t say for sure, is trafficking of minor children through the courts, child protection, and foster care systems, which didn’t seem to get a mention in the blog, either.

I apologize for this being such a quick-search item, but I am looking for at what age the fathers take possession of their children (after divorce) in Iran.  It may not be the most current, but my understanding is that some Iranian mothers come here in order to NOT lose their children automatically during divorce:

http://www.law.emory.edu/ifl/legal/iran.htm

Ruled by series of dynasties for 2,500 years. Shi�ism declared official religion of Iran under Safavid rule (1501-1722). Increasing influence of European powers, beginning with capitulations to Russians, in 19th century. 1906 first Constitution promulgated. Series of laws enacted thereafter, relating to criminal, civil, commercial, and family law.

No Constitution until 1906!

By 1936, legislation made secular education requisite for serving judges. Major changes introduced in area of family law under Reza Shah with passage of Family Protection Law 1967 (significantly amended 1975) abolishing extra-judicial divorce and requiring judicial permission for polygamy and only for limited circumstances.

Family protection, 1967; and a swift response back to the religious standard:

1979 Revolution brought end to Pahlavi dynasty (1925-1979). Supreme Judicial Council issued proclamation directing courts that all un-Islamic legislation was suspended. Council given remit to revise all existing laws to Islamise legal system, with Ayatollah Khomeini�s fatawa serving as �transitional laws�. Vilayat al-faqih.

In America, the process of revising the Constitution back closer to the western equivalent of “sharia” has been slower, because it’s been fought, and because it’s contrary to the constitution.   We are not primarily a religious country, however, the financial element has a significant influence, as does electing a President from Texas, and later, his Son.

Current Constitution adopted 2nd-3rd December 1979; significant revisions expanding presidential powers and eliminating prime ministership in 1989. Article 4 provides that all civil, penal, financial, economic, administrative, cultural, military, political, and any other laws must be based on Islamic criteria; Article 12 provides that official religion is Islam and the twelver Ja�fari school; other schools of law to be accorded full respect and freedom of religious practice, including matters of personal status.

Constitution provides that chief of Supreme Court and Prosecutor-General must be mujtahids; Special Civil Courts established in 1979 to adjudicate over matters relating to family law, succession andawqaf.

 

In the U.S., the Conciliation Code, Family Law System, etc. was designed to defeat divorce and bring in counselors.  That’s established and not hard to defend by simply the history of who passed which laws when.  These laws began 1939; within one generation of women getting the vote, if not in response to this tremendous sea-change in the political landscape.    There was a state (I forget which one) that didn’t ratify women voting even til 1948, although it was by then an Amendment to the Constitution.

In the U.S. we are seeing the creation of multiple problem-solving courts around specific issues; however the original “problem-solving court” appears to have been FAMILY court; the problem was divorce.  There are now fathering courts, child support courts, drug-courts and more….

 

Marriage Age: Civil Code provides that marriage contracted before puberty is invalid unless authorized by natural guardian with ward�s best interests in mind.� When authorized before puberty, minimum age is nine.

Marriage Guardianship: marriage of virgin girl (even after puberty) requires permission of father or paternal grandfather; Special Civil Court may grant permission if guardian refuses without valid reason.

Marriage Registration: Identity Office must be notified of all temporary or permanent marriages and their dissolution.�Marriages between Muslim women and non-Muslim men are not recognized.� Baha�i marriages are not recognized.

Temporary Marriage: permitted; must be for fixed time period.

Polygamy: wife may obtain divorce if husband marries without her permission or does not treat co-wives equitably in court�s assessment.

Obedience/Maintenance: subject to classical conditions; wife who is not nashiza may take matter to court if husband refuses to pay maintenance and court will fix sum and issue maintenance order � arrears of maintenance to wife have precedence over all other liabilities against husband; in temporary marriage, wife only entitled to maintenance if contract stipulates such; husband may deny his wife right to work in any profession “incompatible with the family interests or with the dignity of himself or of the wife”; wife�s refusing conjugal relations where husband has contracted venereal disease not deemed disobedience.

Talaq: governed by classical Shi�i law requiring specific formula and two male witnesses; conditional divorce is invalid; 1992 reforms make registration of divorce without court certificate illegal; wife may obtain khol� divorce in return for consideration of more or less than nuptial gift (mahr);

. . . .

 

A reform introduced in 1992 extended the divorced wife�s financial rights from maintenance during �idda and her deferred dower to the right to sue for payment for household services rendered to their husbands during marriage, although the measure is difficult to apply in practice partly because of the difficulty in assessing wages for housework.

The mother�s custody ends at 2 years for boys and 7 for girls; custody reverts to the father if the mother remarries. Mother may be granted custody in certain cases if the father is proven unfit to care for the child.

THIS is the part I was looking for.  In Iran — this father would not have had access to run away with the little girl and kill her.  She would’ve been with her mother til she is seven.  Boys, I guess being more valuable and lest they get too attached to a female role model, like their mother, went with their fathers at age 2, so if it’d been a little boy, then he could’ve.   I’m reminded of the writings (although not from Iran) of Ayaan Hirsi Ali, or the Egyptian-born (as I recall) Nonie Darwish on some of these matters.  Search “Infidel” for the former and “They Call Me Infidel” for the latter.  These women have both fled to America (one from the Netherlands?) and are speaking about their home cultures.

For a San Francisco based attorney to compare Iranian law and say United States has gone overboard against fathers tells me it’s time to better analyze his own point of view and perspective.

Remainder of the page I was quoting, which (to be fair) reads: “THis is a draft:” from Emory Law.edu:

Iran, Islamic Republic of


*Please note this is just a draft and all contents are still under revision.*


 

Succession is governed by classical law; descendants (how low soever) of predeceased children of the propositus inherit in place of their parents. Children of Baha�i marriages are not recognized as legitimate and, therefore, are denied inheritance rights.

 

! ! ! !

Law/Case Reporting System:

International Conventions (with Relevant Reservations): Iran signed the ICCPR and ICESCR in 1968 and ratified both Covenants in 1975 without reservations.

Iran signed the CRC in 1991 and ratified it in 1994 with a general declaration and reservation to the effect that the Islamic Republic makes reservation to the articles and provisions which might be contradictory to the Islamic shari�a, reserving the right not to apply any provisions incompatible with Islamic Laws and the international legislation in effect.�’

One major feature of the CRC (the international, not Children’s Rights COuncil “CRC,” which is a U.S. nonprofit with international chapters –including in FRANCE) — is equal access to both parents.

Background and Sources: Amin, Middle East Legal Systems, Glasgow, 1985; Haeri, “Divorce in Contemporary Iran: A Male Prerogative in Self-Will,” in Islamic Family Law, Mallat & Connors, eds., London 1990; Lawyers Committee for Human Rights, Report of, The Justice System of the Islamic Republic of Iran, Washington DC, May 1993; Mahmood, �Iran� in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; Mir-Hosseini, “Mariage et Divorce: Une Marge de Negociation pour les Femmes,” Les femmes en Iran: Pressions Sociales et Strat�gies Identitaires, Yavari-d’Hellencourt. Paris, 1998; Mir-Hosseini, Marriage on Trial: A Study of Islamic Family Law, Iran and Morocco Compared, London, 1993; Pakzad, “The Legal Status of Women in the Family in Iran,” in In the Eye of the Storm: Women in Post-Revolutionary Iran, Afkhami & Friedl, eds., London, 1994; Ramaz, “”Women in Iran: The Revolutionary Ebb and Flow,” Middle East Journal, vol. 47, no. 3 (1993): 409-428; Redden, �Iran� in Modern Legal Systems Cyclopedia, vol. 5, Buffalo, NY, 1990; Taleghani, ed. & trans. Civil Code of Iran, Littleton, Colorado, 1995.

 

 

In 2003

It also seems appropriate here to quote (also, just found by quick internet search, I admit) part of a transcript from a Muslim woman and Iranian attorney who in 2003 won the Nobel Peace Prize.  Obviously I was looking up the custody ages; here’s a little of the immediate context:

 

Ebadi: Children Rights Are the Same As Human Rights

Yaas-e Nou (Persian Morning Daily)
Thursday, Oct 9, 2003 Vol. 1, No 176 Page: 15
By: Mahvash Kian-Ersi

Summary: Renowned Iranian lawyer Shirin Ebadi was announced on Oct 9 to have won the 2003 Nobel Peace Prize for her efforts in favor of democracy and freedom in Iran.   Ebadi was the first Muslim woman and also the first Iranian to become the Nobel peace laureate.   One day before this astonishing announcement, she talked to reformist Yaas-e Nou on the occasion of World Children Day (Oct 8).   Here we offer the full text of our interview with this university professor of law.

Text: The children should grow coordinately from physical, spiritual, cultural and economic points of view.   The families and the governments are obliged to provide the facilities to the children to grow.   The significance of children’s growth prompted the world nations to draw out an international convention for children’s rights.   In the face of social, cultural and economic abnormalities, the children need healthy atmosphere.   Now we read a short interview with Shirin Ebadi.

Q:What discipline is adopted to deal with child abuse either by parents or the relatives?

A:The latest version of law dealing with child abuse was adopted in 2002.   According to this law, any physical blow or mental trauma against children and under-18s amount to a crime and no individual plaintiff is required in this case.   The public prosecutor can cope with the offenders.   The important point in this law is that the judiciary and not the parents are entitled to lodge a lawsuit.

Q:How can we support the children subject to abnormal conditions at home?

A:If it is proven to the court that abnormal conditions at the family would damage the physical and mental health of the children, the court authorizes anyone who is ready to accept the child.   Or the court can order the children be looked after at the State Welfare Organization.

Q:What problems do we have in Iran regarding children’s rights?

A:The Iranian law looks at the children as properties of the parents.   For instance, if a neighbor kills a child he would face `qisas’ (the eye-for-an-eye law of retribution) — required by the Islamic Penal Code.   The same man will not face such punishment if he kills his own child and he will at most get ten years in jail if the mother files complaint.   We have similar laws.   When a couple decides to get divorced, the custody of over-2 boys and over-7 girls rests with the father while the future of such children is forgotten.   The law should take into account the independence of children.

Q:How will a mother who kills her own child be punished?

A:Such mothers face eye-for-an-eye law of retribution and they do not enjoy any acquittal.

AND  from Nov. 2003, and obviously I was not current as to the status of custody in Iran, above….

 

Iranian women win improved child custody rights

Khaleej Times, (Reuters)

30 November 2003

TEHRAN – Iranian women won the right to have custody of boys up to the age of seven on on Saturday, giving divorced mothers the same rights over their sons as they do over their daughters, a reformist parliamentarian said.

Under Iran’s strict law, divorced women already had automatic custody of girls until they are seven, but were previously only able to keep boys until they were two.

“The Expediency Council granted divorced mothers custody of both girls and boys until the age of seven,” Elaheh Kulai, a reformist woman deputy, said after it was broadcast on state television.

Iran’s conservative-controlled legislative body, the Guardian Council, had twice rejected the change on the grounds that it was against Islamic law, despite its approval by the reformist-led parliament last year.

But parliament’s decision was backed by the powerful Expediency Council, the top arbitration body headed by influential former President Akbar Hashemi Rafsanjani.

“It is a positive step forward for defending women’s rights,” said Ms Kulai.

The reform is one of several bids by parliament to overcome the conservatives’ resistance and improve the lot of Iranian women, who cannot become president or a judge and are entitled to half of the inheritance due to a man.

Judges also often give fathers the custody of their children, regardless of their qualifications as parents.

 

As this is a step against sexism, I am wondering how did our progressive SF attorney view this?  Isn’t it sexist TOWARDS fathers to move at all anything towards mothers?

  
(I also should note that the author also is advertising as a Parenting Coordinator (which was how I became aware of the firm).  See my 4-part series) 
 
    

Parenting Coordinator

Mr. Aly Ebrahimzadeh, Esq. is certified as a Parenting Coordinator and Special Master by the Northern California Mediation Center in San Rafael, California. Mr. Ebrahimzadeh has extensive professional training in mediation for high conflict parents and aggressive opposing parties, and he brings this expertise to work with Prometheus: A Social Justice Law Firm.

 We are available to work with you even if you are in the midst of aggressive litigation, and either you, your spouse, your child’s attorney, or the judge determines that a Parenting Coordinator is required to reduce the scope of litigation. Any party or the court on its own motion can request a Parenting Coordinator, often called a Special Master in court, be assigned to a case. A Parenting Coordinator, or “Special Master”, may be afforded certain powers by the court or by agreement of the parties to make non-binding recommendations or binding decisions about a host of important issues about Child Custody, Child Support, Child Visitation, and other issues concerning the education, health, and welfare of the children.   
   
This is true, and particularly of concern when it’s clear that attorneys who become parent coordinators are quite likely to have a bias, and definitely not in favor of young children being in the care and custody of a mother after a domestic violence (or child abuse) situation.  This could potentially affect their education, which can affect which college — or whether a child ever gets to college.  It can affect forever, almost, the future prospects of one or both parents, including their ability to re-marry (I’m talking financially) and whether they may also be allowed to ever emotionally detach from the battle, whether it’s in the court, or with a hostile parenting coordinator who believes, based on comparison with, for example, Iran, that California is too feminist and domestic violence is highly exaggerated in the divorce courts, as any “seasoned” california divorce attorney knows it is.
    
    The name “prometheus” is sure popular in California (These are LLCs or LLPs category), not this law firm, I’m sure….
 

Number Date Filed Status Entity Name Agent for Service of Process
198432000077 11/13/1984 CANCELED PROMETHEUS PARTNERS – 84 SHELTER COVE, LTD. PROMETHEUS DEVELOPMENT CO., INC.
198427200007 09/28/1984 CANCELED PROMETHEUS PARTNERS – 84 SHORELINE, LTD., A CALIFORNIA LIMITED PARTNERSHIP SANFORD N. MILLER
198430300144 10/29/1984 ACTIVE PROMETHEUS PARTNERS – 84 SOUTHCAL I, LTD., A CALIFORNIA LIMITED PARTNERSHIP PROMETHEUS DEVELOPMENT CO., INC.
198432000081 11/13/1984 CANCELED PROMETHEUS PARTNERS – 84 STONERIDGE, LTD. PROMETHEUS DEVELOPMENT CO., INC.
198432000072 11/13/1984 CANCELED PROMETHEUS PARTNERS – 84 TIMBERWOOD, LTD. PROMETHEUS DEVELOPMENT CO., INC., A CALIFORNIA CORPORATION
198432000065 11/13/1984 ACTIVE PROMETHEUS PARTNERS – 84 WHITECLIFF, LTD. PROMETHEUS DEVELOPMENT CO., INC., A CALIFORNIA CORPORATION
198505200022 02/21/1985 ACTIVE PROMETHEUS PARTNERS – 85 BEACHWOOD, LTD., A CALIFORNIA LIMITED PARTNERSHIP PROMETHEUS DEVELOPMENT CO., INC., A CALIFORNIA CORPORATION
198534300066 12/09/1985 CANCELED PROMETHEUS PARTNERS – 85 GREENERY, A CALIFORNIA LIMITED PARTNERSHIP SANFORD N. DILLER
198522400017 08/12/1985 CANCELED PROMETHEUS PARTNERS – 85 HILLTOP, A CALIFORNIA LIMITED PARTNERSHIP SANFORD N. DILLER
198508600075 03/27/1985 ACTIVE PROMETHEUS PARTNERS – 85 SANTA ANA, LTD., A CALIFORNIA LIMITED PARTNERSHIP PROMETHEUS DEVELOPMENT CO., INC.


 
 (I haven’t got time today to figure out which one).  This is a HIGHLY educated professional — I also note who does criminal defense — Brandeis grad.  The Oakland address is a virtual office address  

Customize Location

Product Type Setup Monthly
Oakland Business Center
1300 Clay Street Suite 600, Oakland, CA
Office Location $125.00 $95.00
(and for an extra $185, listing in the lobby) understandable if the practice is all over the area.
 
 
 
 
Back to Nabil Samaan, and that Center for Judicial Excellence apparently did file a complaint and an attempt to disbar.  The article shows how this is unlikely to happen, it did come under First Amendment, further, it could also be considered a bit much to handle discovering one’s brother was (alleged? I”m not following the case) a murderer, and he has since retracted the statement:
Anyone could and should be shocked and offended by such a statement, but this also shows some cultural lack of awareness, and I mean family law culture.  What is the excuse for this lack of awareness on CJE’s part, and desire to get more publicity in what is going to be an unsuccessful attempt to get this person disbarred?

Complaint filed with State Bar against lawyer in AMBER Alert case

By Malcolm Maclachlan | 08/17/11 12:00 AM PST
Can an attorney be disbarred for saying reprehensible things to a television reporter?

Probably not, according to attorneys who defend other attorneys. But that’s not stopping a group seeking to take a local lawyer’s license following a shocking murder-suicide.
The Marin-based Center for Judicial Excellence (CJE) has announced it will file a complaint with the State Bar of California demanding the disbarment of Sacramento attorney Nabil Samaan. The group says Samaan’s license should be taken away because of comments Samaan made to a reporter that, according to CJE, appear to support his brother’s decision to allegedly murder his own two-year-old daughter.
The case has roiled the Sacramento area for days.
The victim’s mother is Marcia Fay, a prominent deputy to state Attorney General Kamala Harris. Fay’s ex-husband, Mourad “Moni” Samaan, 49, disappeared with Madeline Layla Samaan-Fay on Aug. 7 after a scheduled visit.
This led to a statewide AMBER alert, which was called off on Sunday when both their bodies were found inside an SUV on land Samaan’s father owns in El Dorado County, about 50 miles from Sacramento. The pair died of carbon monoxide poisoning, and police are investigating the matter as a murder-suicide.
By Monday, members of the Samaan family were speaking to the press. Nabil Samaan told Fox 40’s Chris Biele: “You can justify and try to say that Moni wasn’t a good father, and that’s just ignoring the facts. The fact is that he was an extraordinary father. Better than I’ll ever be.”
Nabil Samaan added, “I think he did the right thing. I’m proud of him.”
This caused Biele to do a journalistic double-take, asking Nabil Samaan if that’s really what he meant. “I think justice was done,” Samaan replied.
As of press time, Nabil Samaan has not replied to a reporter’s phone call and email seeking comment. Harris’ office declined to comment on the case.

A spokeswoman with the Bar said she was not allowed to comment on pending disciplinary matters.
The motion rests on what the group says are two violations of the Bar’s standards of ethics, which require that “an applicant for admission to the practice of law in California possesses good moral character.” The  CJE’s Kathleen Russell said Samaan’s comments go far beyond what should be necessary to demonstrate a violation.
“It clearly does not reflect well on the legal profession in California to be saying what he said on television,” Russell said.
The second complaint cites a section on ethical requirement that requires attorneys “to support the Constitution and the laws of the United States and California.” Referring to a brutal murder of a toddler as “justice” fails to meet this standard, Russell says.

(Is there an AFFIRMATIVE duty to meet the standard applicable at attorneys?  Did Ms. Russell consult with an attorney at the firm CJE refers distressed parents to for pro bono custody help, (out of state) Justice for Children before taking this route  (see the site)?  Or take some of their own budget to seek counsel first?)

The vast majority of complaints that result in disbarment fall into a few basic categories: A felony conviction, embezzlement of client funds, failure to disclose a suspended law license to clients, or gross incompetence or negligence, particularly following an earlier suspension.
None of these would appear to directly apply in this case. Nabil Samaan did not represent his brother as an attorney, at least in any official capacity. Nor did he appear to commit a crime. The Bar Association website shows no complaints against him.
“It’s incredibly bad taste, but probably protected by free speech rights,” said Walnut Creek attorney Jerome Fiskin. His firm, Fiskin Slater LLP, specializes in defending other lawyers in ethics and state bar cases.

{{Which is reasonable known.  This is a PR stunt, not that it’s bad to call attention to the bad comment…}}

 
In general, Fiskin said disbarment comes in response to conduct that affects an ongoing case, or which harms the attorney’s own client. But he added that Samaan’s comments are still likely to be highly detrimental to his law practice, particularly given the media and blog attention given to his comments in recent days.
“What kind of people search out an attorney who, um … yeah,” Fishkin said, not quite able to complete his sentence.

  

  As to the Constitution, Here’s our articulate, accomplished, and very literate (and in many aspects logical) Promethean attorney speaking about the Constitution, in the context of how the “American Tea Party” (he’s an american citizen, right, practicing law here?  Is there a “Tea Party” in other countries? so why “American Tea Party? — not that I’m favorable, at ALL, to it…  Is that a Freudian slip, or just a distancing from these crazy Americans where he’s forced to pursue social justice in the SF Bay Area (one of the favored places to live and work in the US, both as to climate and for several other reasons).   
The comments about the Constitution definitely caught my eye.  Of all people that ought to respect it, attorneys should.
    

American Tea Party Helps Republicans Win the House

November 3, 2010 By Mr. Aly Ebrahimzadeh, Esq.

(Paragraph 2ff): Basically, the American Tea Party takes the entire retinue of ultra-conservative Republican Party values and attempts to justify them by a perspective on American jurisprudence that disregards the two centuries of legal precedent and evolution** that has occurred since the drafting of the US Constitution, and rather focuses on that original document much like a text as sacred as the Bible is to Christians.

 

Odd reference — while no one is required to hold the Bible sacred in the US as a function of citizenship or to hold office (yet!), as I have pointed out before, we probably wouldn’t have the U.S. or the Constitution had not certain very brave men risked — and lost — their lives translating it into English (and other languages) at least two very literate men (Wyckliffe late 1300s, Tyndale 1500s) of who were burned at the stake for doing so.  The transformation of England at this time by the literacy it promoted alone was a major event, as well as helping propound the Reformation and some significant challenge to the Catholic Church.

Influential writers who fled England to the US, or at least ended up here, having rejected the standard theology of the time (Trinitarian) altogether based on their reading of the Bible, influenced those who later wrote the Declaration of Independence.  I am speaking generally (again) of Locke,  Priestley (and his influence on Locke), and so forth.  Within their lifetimes one could be executed still (in the Colonies) for not towing the line up til at least 1689.

I think that those who wrote the Constitution had every cause to expect it to be held as sacred as the Bible, lest the country be as war-torn over how to interpret it as England had been.  However many of these were Deists –and they had enough humility to recognize they were not “gods” and there might just be one.

Benjamin Franklin
“I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth — that God Governs the affairs of men. And if a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without His aid?” -
–  Benjamin Franklin

Again, re:

 Basically, the American Tea Party takes the entire retinue of ultra-conservative Republican Party values . . .focuses on that original document much like a text as sacred as the Bible is to Christians.

Presenting the American Tea Party (whose positions could be logically debated elsewhere as not exactly in alignment with the Constitution OR those who wrote it) as springboard to saying the Constitution shouldn’t REALLY be our focus is pretty lame logic.

Logically, from that position (let’s not take that Constitution so seriously!) perhaps then both Democrat and Republican Presidents will have to change their oath of allegiance in public when they are being sworn in and privileged to lead the country, subjecting their personal egos and program agenda to this document.  For a brief review:

he information below is courtesy of the Architect of the Capitol. It has been compiled by the Office of the Curator from contemporary accounts and other sources in the files of the Architect of the Capitol.

Each president recites the following oath, in accordance with Article II, Section I of the U.S. Constitution:

“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Does that say “and rewrite“?  . . .
Why is this ceremony comprised of only 2 human beings, while there are 3 branches of government:  Executive Office (represented here by President), Judicial (represented by Chief Justice) and Legal (with NO single person representing the law — significant)?  While I’m here, a youtube of  Chief Justice John Roberts flubbing the words of that short oath

**would that be like the evolution of child support system?  Or the devolution of the “old” language of criminal law? I am only half tongue in cheek, this is a criminal defense attorney also here.  ANd no, I am not entirely unaware of “legal evolution” there’s been plenty written on this, particularly by conservatives!

This begs the question:  What exactly is so sacred about the US Constitution?  Much of it has been redlined as racist, elitist, or purely impractical.Every time an Amendment is added, significant parts of the Constitution are essentially deletedPerhaps rather than continuing to revise a document that is over 200 years old and has been editorialized by over 30 major Amendments and interpreted out of its skin by scores of major legal precedents, it is time for the American people to accept the fact that we may need to go back to the drawing board and draft a new Constitution that reflects current ideologies and legal principles.

Not exactly the place for a full discussion, but perhaps if there hadn’t been the “interpreting out of its skin” legal precedents to start with, no one would have the chutzpah to say, aw, let’s just scrap it and start over!  (for more on judicial precedent, societal custom, and faint-hearted originalist Scalia, a short read)

 

Several European, African, and Asian nations have done exactly this, having drafted entirely new Constitutions within the last fifty years.  Surely a new Constitution, one that is more detailed, modern and practicable as a guide for the American Legal System, may serve to minimize the argumentation about what the law truly is.

But then again, in the obscurity of our antiquated rule book, the US Constitution

But then again, in the obscurity of our antiquated rule book, the US Constitution, there lies the opportunity to shoehorn all sorts of interpretations and theories into what our nation was meant to look like and what course it should take.  Yet, the political process may benefit from more clarity and less theory, for we find ourselves in the stormy seas of unwieldy military conflicts, devastating economic whirlpools, and questionable political leadership on all sides.  What we may benefit most from in such times is a working compass, rather than an assortment of bickering navigators trying to outdo each other with interesting theories about the reasons why the compass broke.

Or rather, perhaps we can take a more simple example as our guide.  If you were drafting an essay for a class, and you had to make over 30 revisions of that essay, redlining huge swaths of text, completely contradicting main premises and themes, would you consider handing such a work in as your final product?  Or would you simply take what you had learned and draft a new clean copy, no attached revisions and deletions, but a singular essay that incorporates the lessons learned?  Or is the US Constitution truly a Sacred Tome for this Indivisible Nation Under God?

 
 There is a difference between drafting an essay for class, and drafting a foundation for a country.  I find it disconcerting, to say the least, that this is not cocktail conversation, or even heated town hall conversation, but it’s from the blog of a well-decorated attorney practicing criminal defense and family law (among other areas of practice) in many jurisdictions — in my area. I’m not as shocked as I should be (hardly the first encounter with an attorney’s “reasoning” in the past years in family law), but I find it rather like, after blowing holes in a house repeatedly and intentionally and belonging to or taking classes from leaders of associations who do (i.e., this person took a class from Joan Kelly’s mediation center, and reflects basic AFCC with the added multicultural punch, women should be thankful they’re not divorcing (or committing adultery, allegedly) in Iran) –and then saying, look at all those holes — let’s tear the thing down.
   
The ability to take laws literally — in the sense of either kidnapping or contempt of custody order — and the will to act on it — might have saved that toddler’s life.  It’s been the continual psychologizing and therapizing of family matters which led to the situations enabling a man willing to kill a kid if he couldn’t grow up with the kid — to do so, and then take his own life also.  That’s someone totally beside themselves.
 
I am a woman.  If you read my blog, it’s known that I went years without seeing my kid, and this was done illegally and not even in compliance with the procedures for a legal custody switch AFTER criminal custody interference.   The father had no legitimate grounds for removal of custody from my house, there was not a legitimate cause of action, and no elements of the alleged causes he claimed (which weren’t legally tenable anyhow) were ever proved in court.  This would put almost anyone over any edge, as this was also a former batterer.  The law entirely supported my position, had I wanted to behave like that — but rewarded the opposite of who the law is to protect.
 
And I have never threatened to kill anyone over this, or tried to.  I did not take the law into my hands based on motherly pride or belief that the family law courts were unfair to women (although I do believe that when it comes to handling domestic violence and child abuse matters).   None of the people I took on as friends even suggested going this, and certainly wouldn’t have endorsed me if I did.  I understand that our culture is not ready for equality between the sexes, and on behalf of my children and because it’s not my intent to raise people and demonstrate to my kids an acceptance of casual violation of court orders because they don’t personally please me.   As a consequence of this behavior, the courts, recognizing apparently one of their own in my law-breaking ex, gave him custody, shortly after which he abandoned them, and the same courts would not assist me in getting my kids back at the time I found this out, either, though I definitely approached BOTH family courts and law enforcement for assistance (given the former threats by my ex).
      
I don’t know quite what conclusion to draw at this point in the courts, but equal parenting + fatherhood funds + anti-violence funds going to ridiculous “change the world educate everyone” (plus anger management courses when it’s clearly a cultural belief at play, and the person involved has wilfully disobeyed more than court orders– hospital orders).      
Again, they are now (8/15) interviewing Samaan’s neighbor?

Nabil said Mourad disappeared after receiving a court order from his wife. Nabil said it was one of dozens he received in the past few months at the behest of Madeline’s mother, Marcia Fay, a deputy attorney general for the state Department of Justice.

“She was trying to prevent him from having any visitation,” said Nabil. “It has to be court-supervised.”

Samaan’s neighbors knew he was going through a custody battle.

“The hardest thing is that the public has no idea what he went through with his ex-wife,” said his neighbor Stephanie Brinkman. “It’s just heart-wrenching.”

I’d just like to clarify one thing.  They were husband and wife for a VERY brief period.

 

“There’s not one document that would show that Moni is not the best father in the world,” said Nabil Samaan while being interviewed by News10 reporter Natalie Sentz.>

Sentz said, “He’s the best dad in the world until he takes the life of his child.”

Nabil responded, “He’s still the best dad in the world.”

Sentz said, “Madeline is dead.

“Yeah, but he’s not the one who killed her,” Nabil said.

Yeah, right.      
Sacramento Family Court Anger Management Classes” (and fees, as of July 2011)
     

SACRAMENTO SUPERIOR COURT

ANGER MANAGEMENT SERVICES

July 1, 2011

Please Note: Batterer’s Treatment Programs (BTP) are certified by the

County Probation Department and are not included on this list. Please contact

Probation directly to obtain a current list of certified BTP providers.

(includes” Center for Fathers & Families” and “Fathers’ Resource Center.”)

Ah, well, here’s core criteria that anger management is to teach (found under a search for supervised visitation providers):

Any provider offering anger management for clients referred from Family Court must address at least 15 of the following core topics during the anger management program:

 Gaining personal control  Stress Management  Emotional Intelligence  Fundamental Child Development, ages birth through adolescence  Basic Communication Skills

 Positive Communication  Role Modeling and Positive Parenting Reinforcement  Characteristics of Healthy Families  Personal Anger Management  Child Abuse and Corporal Punishment  Responding to Child Tantrums  Coping with Stress  Child Discipline Alternatives and Behavior Plans  Family Conflict, Anxiety, and Resolution  Family Violence, Domestic Violence, and Prevention  Provocation and Alternative Response  Identifying Distorted Thinking  Irrational Beliefs  Active Listening  Developing Empathy  Identifying and Expressing Needs  Assertiveness vs. Bullying  Coping with Angry People  Conducting Successful Family Meetings

 

I have to make another point:    Marcia Fay is 46 years old.  Assuming this is her first child, she had this child at age 44 (or so), the father was 49 (child at 47) per this article:

49-year-old Mourad Samaan and his daughter Madeline were found Saturday night in his car near Placerville.

 

Were there previous children, were there previous marriages.  Is this a woman attempting to get a child, but marrying to do so?  WHat is the background? (I hope it’s not heretical to ask that question, but someone should.  And while the press is going to report, and understandably this mother is not ready to comment yet (would YOU be?) then it’s the father’s family that is making their “blame the courts” “blame her” case / excuses.

 

And in the usual knee-jerk response to another death someone is going to interview the local DV agency.  Was this a DV case, and was this the cause of separation?  I don’t know.   But it’s the first phrase here we should note.

sheriff’s deputies were called in July when he was reluctant to turn Madeline over during a visit.

But Women Escaping A Violent Environment sees things differently. “It’s about power over their victim,” said WEAVE Executive Director Beth Hassett in describing classic domestic abusers.

 

Did Ms. Hasset use the phrase  “domestic abusers?

I knew that if I looked, eventually it’s turn up which court the grandfather is taking court business from.  Suprise, it’s Sacramento (says this commentor, “Espeth.”)  note:  I don’t approve of the tone of the comment, but I am going to follow up on the reference.  Is it possible that the grandfather’s relationship to the SAME family law court may have affected how the father was treated in this situation by Judge McBrien?

 

In family courts, one tactic is to slam the judicial employees

By Malcolm Maclachlan | 09/01/11 12:00 AM PST

This article begins again as calling CJE a watchdog agency.  Maybe they are — except for complete and utter failure to report on the systems that set up the court-referral processes, from what I can tell.  Why bite the hand that is currently feeding one leadership grants, and white house invitations, etc., i.e., the Federal “Designer Family but we also protest violence against women” apparatus (add to which, local judiciary favorite professionals).

 

It’s certainly part of our work and our efforts to encourage people to make complaints when they’ve seen something untoward,” said Carolyn Placente, program director with the Marin-based Center for Judicial Excellence, a family court watchdog group that has been widely criticized by attorneys and others working in the family courts over the years.

“Many people are totally unaware that there is even a process for filing a complaint against some of these folks,” said Placente who, along with colleagues, has been a regular visitor to Courtroom 43.

Still, she acknowledged, most complaints don’t get anywhere.

 

Which is exactly why a different approach would work.  But rather than working on systemic changes, the CJE tactic is to pick a high-profile (and sometimes losing, sometimes losing) case, and get publicity.  I parted paths with the “get Burrille” people, who have been informed already that it’s probably a better choice to get whoever/whatever is paying Burrille — or at least get the local court’s vendor payments and contracts — and make a habit of it!

But the state attorney general’s office appears to think they have a point, at least in Courtroom 43.

The woman on the stand is Janelle Burrill. The attorney general’s office has certified two complaints against her filed with the Board of Behavioral Sciences, filing official accusations in March and April.

 

A reader put in this comment:

 

Ha!  She
ain’t the only bad apple in the greater Sacramento region. Dr. Makram Samaan,
grandfather of Madeline Layla Samaan-Fay, who was murdered by her father, Dr. Samaan’s
son, is a psychologist employed by the Sacramento Family Court as a
mediator.  He along with his son, Nabil, the attorney, praised the murder
and blamed the mother.  Dr. Samaan also espouses the belief that people
like him, and not the courts, should be in charge of marriage and divorce. At the same time as praising the death, Dr. Samaan swears that he couldn’t have seen how distressed his son was and that he couldn’t help him.  This despite the fact that his son, on no less than SEVEN occasions violated court orders.  Yeah, Dr. Samaan should be in charge of marriage and divorce, sure, maybe in Iran…he probably just wants to impose Sharia Law, which is why he and his living son are praising the murdering son as a hero for rescuing baby Madeline from her mother’s evil influences.  You should check out the good doctor on the Sacramento Superior Court website, it appears that he has been sued by numerous clients for professional malpractice…another bad apple?

I did just look this up, and it’s going in a second post: but see “http://www.lawlink.com/research/caselevel3/60418

appealing his dismissal as tenured professor at Cal State (CSUS), 150 cal.app.3d.646.  YEAR:  1983.

In which we learn that the paternal grandMOTHER (Dr. Samaan’s wife) is a marriage and family therapist, but the issue here is dishonesty in billing practices.

 

Funny how Center for Judicial Excellence missed this one, while trying to get the son disbarred.  Must be where they are (and are not) looking.  I’ve only been on this less than a full day.

 

The grandfather, per article, is a Coptic Christian from Egypt, not a Muslim from Iran!  Look it up, read a few sides: (“weekly.ahram.org”)

Al-Ahram Weekly Online

Published in Cairo by AL-AHRAM established in 1875

30 March – 5 April 2006
Issue No. 788

(This is the entire article, showing we have to stop ignoring religion if we are going to deal with family law matters!  The religious impulse if often why someone will kill before go against it, and bottom line, those are historically against divorce and pro-father, generally speaking.  But it can get complicated when the authority is split between church and state) (not paraphrased too well– here’s the entire article):

The monogamous twitch

Nader Habib weighs in the recent administrative court ruling giving Copts the right to divorce and re-marry

Copts are widely opposed to the notion of legalising divorce and remarriage. Not so paradoxical a stance, considering the circumstances in which the question was raised: the administrative court ruling that brings about the change is seen as an intervention in the application of the Coptic Orthodox Church principles on the part of a Muslim-majority judiciary. And it comes in a country where secular marriage is not a legal option.

Still, those Copts who have been awaiting a clerical marriage license for years have welcomed the developments. And there are those who endorse them: Milad Hanna, a high- profile intellectual, conceded that divorce in Christianity is only possible in the case of adultery. But, he expressed the view that, in light of current social realities, those Copts separated from their spouses should be able to divorce them and marry others — a privilege the Coptic Church tends to withhold from them, keeping them waiting. Hanna’s point is that, in effect, the Church is merely complicating matrimonial procedures.

Though not a supporter of the ruling, housewife Heba Shoukry too believes the clerical laws relating to matrimony are in need of revision. “It ends up merely forcing Copts to change their sect.”

An authoritative work, The Law of Monogamy in Christianity, written by Pope Shenouda III in 1958, stresses that monogamy is the essence of Christian marriage — a canon law derived from the Holy Bible and upheld within church law, whether received from the Apostles or from ecumenical and regional synods. According to Mathew, “Assuredly, I say to you, whatever you bind on earth will be bound in heaven, and whatever you loose on earth will be lost in heaven.”

Marriage in Egypt is legally registered, Anba Bessanty, Bishop of Maasara and Helwan, explained; this makes divorce through a court of law standard procedure. So far, so good. But when it comes to remarriage, the Bishop goes on, “it is the church’s business, for we follow the words of Jesus Christ when He was asked, ‘Is it lawful for a man to divorce his wife for [just] any reason?’ He answered, ‘whoever divorces his wife, except for sexual immorality, and marries another, commits adultery; and whoever marries her who is divorced commits adultery’ (Mathew 5:22).”

Thus, the Church allows “civic” divorce, but “when it comes to remarriage, it’s a different story,” the Bishop said. “A license to remarry is granted in only one of three cases,” the Bishop adds for good measure, “adultery (a license for remarriage is given to the innocent party); forsaking the creed (a license is given to the party who maintains the creed); and when it is proven that the marriage was invalid in the first place. The Bishop adds that the ruling will be appealed on the grounds that it contradicts Christianity.

Anba Bola, Bishop of Gharbiya and the papal deputy of the clerical council responsible for personal affairs in the Orthodox Church since 1989, on the other hand, referred to Law 19 for 1927, which states that no body other than the clerical council, built by state decree in 1882, has the authority to license marriage; will the Egyptian judiciary, he asked, question the authority of a body established by the government to manage Copts’ affairs? Clerical deacon Fadel Tawfik likewise wonders: “By which law — Islamic or Christian — was the ruling issued? For it is also true that Islam gives people of the Book, including Christians, the right to live by their own personal status code. So long as you are a member of a church, which has the constitutional right to operate freely among its constituency, you must abide by that church’s rules.”

The ruling, Tawfik added, seems to uphold the individual’s right to remarry while dispossessing the Church of its own right to practice its own version of traditional Christianity. For priest Basilious Guirgis, Father of the St Mary Church in Moqattam, the issue is that the rulings of personal status courts, whether in the case of Muslims or Christians, follow rather than precede the rulings of the religious authority in question. A Muslim cannot legally marry or divorce without first obtaining the relevant papers from the religious authority; so, too, with Christians, except that there is no such thing as divorce in the Coptic Church.

Pharmacist Talaat Nessim stressed that a long period of engagement is critically important. The couple might decide to separate during the engagement period before marriage. Moreover, the engagement period allows couples time to undergo medical check-ups.

For his part, human rights activist George Isaac blamed parliament for not fine-tuning non-Muslim personal status laws. He believes it is government incompetence that is to blame. The non-Muslim Personal Affairs Law that was being drafted 25 years ago while Sufi Abu Taleb headed parliament, he explained, is still pending review, with some 90,000 cases of divorce awaiting the rule of law — in vain; the same goes for the law governing the building of non-Muslim houses of worship, he added. It is the government’s policy, according to Isaac, to complicate the simple details of life, whether for Muslims or Copts, with the object of diverting attention away from the real issues. On the other hand, most will agree, Pope Shenouda III remains the sole authority on the issue. “No power on earth can force the Orthodox Church to do anything against the words of the Holy Bible, or against its own conscience. Whoever marries a divorced Copt without license from the clerical council … I will defrock him whatever his rank might be,” the Coptic Pope warned.

 
AND ANOTHER ONE:

(August 22, 2011, to a blog started in 2006) which I’ll share, to show the issues we are GOING to have in the US as a multicultural country as are other countries which have religion (one or another brand) in control:

(this might be an Irish blog, I’m not sure; seems Catholic):

Clerical Whispers

 

MONDAY, AUGUST 22, 2011

Egyptian Copts demand right to divorce

Egypt’s Coptic Church, one of the oldest Christian denominations, is being threatened with a major schism within its ranks over demands by congregants to be allowed to divorce.

Dozens of Christian protesters demonstrated across from St. Mark’s Church in Cairo Monday, clashing with police, as they petitioned their church’s clerical council to grant them second marriage permits.

The Coptic Church, an orthodox denomination led by Pope Shenouda III, restricts divorce to cases of adultery or the religious conversion of one of the spouses.

On Saturday, the Right of Life Movement, a Coptic group, threatened that a large number of its members would collectively leave the ranks of the church if they were not granted the right to divorce.
The Egyptian daily Al-Wafd reported that some 150,000 members could potentially break away from the church, joining the evangelical or protestant denominations instead, which comprise just some 5% of Egypt’s Christians.

“It is my civil right to get a divorce, how dare they prevent that from me?” Rafik Farouk, an Egyptian Copt who wants to divorce his wife, told The Media Line. “The church and the court make it almost impossible to prove adultery. They leave us hanging.”

Farouk said the Coptic Church was attempting to maintain the integrity of the family at all costs, fiercely guarding the monopoly given to it by the state in matters of marriage and divorce.
Family law is exclusively governed in Egypt by the religious denominations. A Christian may, however, leave his denomination and be judged by default under Islamic law, which is more lenient in allowing divorce.
“We are portrayed as fornicators who only follow our lust. Pope Shenouda keeps saying that we are acting against the New Testament,” Farouk said.
Up until 2008, Egyptian Christians divorced according to a 1938 bylaw which allowed them to separate under nine conditions including impotence, abandonment, abuse and mental disability. But local Christians accuse Pope Shenouda of recently limiting the permissible reasons to infidelity and conversion only.
“We could have left the church and accepted Islam, but we want to remain in the church,” Farouk said, adding that the clerical council must become more cooperative and transparent. “We will continue to engage the Church until the last moment.”
He added, however, that many of his friends would consider converting in order to attain a divorce and then rejoin the Church in order to remarry. “It’s a trick,” he said.
Ishaq Ibrahim, an expert on religious freedom at the Egyptian Initiative for Personal Rights, a Cairo-based human rights watchdog, said that the exact number of Copts prevented from obtaining a divorce is unknown, but estimated it at a few thousand cases. It was pointless trying to convince the Church to change its policy, he believed, saying the only viable solution being the creation of a parallel track for civil marriage.
“We have no civil marriage in Egypt,” he told The Media Line. “But marriage is the responsibility of the State, not the church. The state cannot force the church to change its doctrine, but it can create an alternative which will allow Christians to divorce without converting their religion.”

 

Standard material from Sacramento Superior Court on Family Court Services Mediation

Notice that if there is a critical emergency, the response is STILL to send someone to mediation! or FCS!

Immediate Referrals from the Court

The court may refer parties to FCS to provide expedited services. Generally, this occurs in cases where either parent presents an immediate danger or risk of harm to the child(ren). Parties are usually seen in FCS within a few days of the referral being made. A date to return to court is usually set to occur within 1 to 3 days following the referral. Immediate referrals may involve, but are not limited to, the following situations:

  • Physical abuse
  • Sexual abuse
  • Emotional abuse or neglect
  • Domestic violence
  • Alcohol or substance abuse
  • Allegations of flight risk or abduction

Other Important Information

Mediator conflict of interest

Mediation of cases that involve family law attorneys or their spouses, relatives, friends, or co-workers of the mediator may present a conflict of interest. A mediator will not handle a case in which they perceive that a serious conflict of interest exists. Therefore, in these cases, parties may be referred to private mediators.

So, who handled this case?

Reports to Child Protective Services

Family Court Counselors are mandated reporters. This means they are legally obligated to report to Child Protective Services (CPS) any situation that may pose an imminent danger or risk to the child(ren). Parties will be informed when referrals are made to CPS for risk assessment.

Complaints about FCS services

Family Court Services is committed to the delivery of quality mediation services. If you should have a complaint regarding services received, you may register your complaint orally or in writing to the FCS Manager.

FCS fees

A deposit of $150.00 is required any time a FCS mediator is subpoenaed to attend a court hearing or proceeding as a witness. The party issuing the subpoena will be charged, at the rate of $78.00 per hour, for the actual time spent preparing for court testimony and/or deposition and the actual time spent testifying.

 

So — you are in pro per and broke, possibly from years of litigation and prior poor decisions by a mediator, the present one or a prior one.  YOu want to do something about it — go ahead, and for $150/hour plus $78 for any time spent preparing for the testimony / subpoena (probably more time than was spent preparing for your mediation that caused the problem, i.e., reading the case file!) — you can do it.  If you can afford to!

 

 

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Written by Let's Get Honest

September 6, 2011 at 2:43 pm

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