Custody at Issue in a Divorce when DSS already has Custody

Recently, I received this question on the blog:

My wife and I have a 15 month old daughter. She was removed from our custody by DSS on April 17, 2010. We signed over for my parents to get full custody of her about two weeks ago. I know we are not getting custody of our daughter back and have already been informed by DSS. Since I know there will not be a “custody” decision made for our daughter, do I still file having a child or not? My wife and i have been seperated since May 2010.

Thank you for your help in this matter,

Ryan S.

The reason custody must be included in a divorce when there are children of the marriage is so there will be a court order governing the placement, support and care of the children.  In this case, there is already a court order related to the minor child of your marriage so it is not necessarily an issue that would have to be dealt with in your divorce case unless you were going to fight for the child’s return and custody given back to you.

DSS Emergency Removal: The 72-Hour Probable Cause Hearing

When children are removed from an emergency basis from their parents/guardians the Court is required to hold a probable cause hearing within 72 hours of removal where DSS has to prove that it had probable cause at the time of removal and that probable cause still exists at the time of the hearing such that it is necessary to keep custody of the children.  This hearing comes very fast and in most instances, parents attend the hearing without a lawyer.  I don’t know if this is because they can’t afford representation or they just don’t know what their rights are.  In the event you are unable to find an attorney to go the 72-hour Probable Cause hearing with you hear are a few quick tips that will hopefully help prepare you a little bit:

The 72-hour probable cause hearing is similar to a preliminary hearing in criminal court.  That means you often do not have time to obtain a lawyer so the hearing is typically skewed against you and because DSS’s burden of proof is extremely low things generally do not change at this type of hearing.

The hearing will be very fast – probably less than 15 minutes.  The judge’s job in this hearing is to consider whether DSS had probable cause at the time of removal and that probable cause still exists such that it is necessary for DSS to retain placement of the children.

At this hearing you and your family will not be allowed to testify.  The DSS caseworker and/or investigator will describe the case to the judge.  Your will have an opportunity to cross-examine the caseworker/investigator.

You also have the right to submit affidavits on your behalf to the judge that would essentially be your testimony.  Here is your opportunity to put your side of the story out there for the judge.

After this hearing you will typically be appointed counsel if you can’t afford to hire an attorney and a Guardian ad Litem will be appointed to represent your children and a merits hearing will be scheduled where DSS will present a treatment plan for you and where you will be able to contest the removal of your children further.

What Happens If DSS Takes Your Children?

DSS may come into your life for multiple reasons.  Sometimes it is for a good reason and sometimes it is completely frivolous.  When it comes to having your children removed from by DSS it can be a very distressing situation.  Regardless of the reason for the removal of your children the Family Court must hold a probable cause hearing within 72 hours to determine if DSS had probable cause or a good enough reason to remove your children.

At this hearing, DSS generally has the upper hand.  In almost all cases, defendants are not represented by an attorney at this hearing and they have no idea why they are in court, what has happened to their children and what they have to do to get their children back.  At the probable cause hearing, DSS will call witnesses and attempt to prove their case while you will not be allowed to testify.  You will have an opportunity cross-examine the DSS witnesses and you will be able to submit affidavits to the court supporting your situation.

If you are unrepresented at this hearing and are unable to afford an attorney to represent you, the family court will appoint an attorney to represent you.  This is great, except that not all attorneys that are on the appointment list handle family court and DSS matters.  You may get an attorney who makes it his goal in life to stay away from a court room.  A guardian ad litem will also be appointed to represent your children and to perform an investigation for the Court with their mind set on determining what is in the best interest of the children.

I would recommend that if your children have been taken from you by DSS you should immediately contact an attorney who is experienced in representing people in DSS matters.  There are strict time lines and regulations that DSS must comply with and if they don’t it can help your case.  Only an experienced professional will know these things.  You should not go to a probable cause hearing unrepresented if you can help it.

Spiritual Healing v. Medical Treatment for Children

A Wisconsin couple was sentenced to jail time after they were convicted this week of second-degree reckless homicide after their three year old daughter died from untreated diabetes.  Rather than seeking medical treatment for their daughter, the parents prayed for her and sought spiritual healing for her even as her health declined and she could no longer walk or talk.  Here‘s the news story.

Now this couple is forced to spend 30 nights in jail each year for the next 6 years and their other children are required to be taken to medical checkups periodically.

This begs the question: do you have the right as a parent to determine what type of treatment your children receive – or if they receive treatment at all?  What do you think?  Should a parent be able to decide if their child should only receive spiritual treatment versus medical treatment?

Via Family Law Prof Blog