February 19, 2018 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
In 1995, Sundhe Moses, then 19, went to prison for a drive-by shooting that killed a four-year-old child and wounded others (New York Daily News, 2/12/18). Moses was innocent. His wrongful conviction appears to be the handiwork of now-retired New York Police Department detective Louis Scarcella. So far, a dozen people, originally imprisoned following Scarcella’s investigations, have been released from prison due to findings of actual innocence. As is so often the case, Moses was young, poor and not well educated, i.e. an easy target for a criminal justice system that often seems more intent on moving files than determining the truth.
Moses was paroled in 2013 after more than 18 years inside. He spent the next four years trying to prove his innocence. This past January, he succeeded. But that wasn’t the end of Moses’ problems, not by a long chalk. Indeed, it looks like the State of New York wants to incarcerate him again. Why? Moses has a child, Shaquille, who was just eight months old when he went to prison. He’s now in his early 20s and serving in the U.S. Army. And of course, Moses owes child support – to the tune of almost $40,000 for all the time he was in prison. About $10,000 is owed to the state to reimburse it for welfare benefits paid to Shaquille’s mother, Kawana Harper.
Moses is no wealthier now than when he was arrested. He can’t afford a lawyer and his first priority on being released was to vacate his conviction. He has a job, but it only pays him $380 per week. The state’s been garnishing $160 of that to reduce his child support debt, leaving Moses less than enough to live on. Needless to say, he can’t afford to hire a lawyer, so he’s trying to convince the family court to rescind his child support indebtedness.
My guess is that won’t work. The Bradley Amendment says that there can be no retroactive modification of a child support order, and, in effect, that’s what Moses is asking the court to do.
Moses can’t pay, his bank account has been frozen by state child support enforcement officials and that means he’s looking at going to jail.
“The reason that my arrears are the amount they are is because it accrued over a period of 18 1/2 years. During that time, I was incarcerated for a crime I did not commit and therefore was unable to pay,” Moses said in court documents.
But of course the state, that wrongfully sent him to prison in the first place, doesn’t care that he was obviously unable to pay while incarcerated. To New York’s legion of child support lawyers, it’s just another debt and Moses is just another deadbeat dad. Fairness and justice aren’t part of their job descriptions.
One legal absurdity states routinely engage in is the presumption that, if a parent owing child support is imprisoned for some criminal offense, he/she does so voluntarily and therefore can’t be relieved of paying support. As for me, I’ve never met a person, criminal or otherwise, who voluntarily went to prison. It just doesn’t happen. But surely, in Moses’ case, the fact that he didn’t commit the offense for which he went to prison undercuts the state’s already specious argument. I suppose we’ll see.
But I would urge one thing. As California courts have pointed out, child support is a matter for the court’s equity jurisdiction. And those who come into a court of equity asking for relief must do so with “clean hands,” i.e. they can’t have a legal blemish on their case. Moses owes the state, not Harper, about $10,000, and it was the state that wrongfully convicted and incarcerated him. Therefore, its attempt to collect that $10,000 is tarnished by its original wrongdoing toward Moses. A court of equity would be well within its power to erase the debt he owes it.
The 42-year-old was cleared of the 1995 drive-by shooting of 4-year-old Shamone Johnson. (BILL TURNBULL)
The only good news in all this is that, because he’s factually innocent, the State of New York will likely pay Moses for his time in prison. Unlike many states, New York requires exonerees to file suit in order to recover damages and, without the money to hire a lawyer, Moses may have a difficult time doing that on his own. Still, my guess is that there are lawyers in New York willing to help him recover what the state so clearly owes him.
“When a conviction is vacated in criminal court everything that happened reverses and you start over. I’m asking for family court to do the same thing and put me in the same position where I wouldn’t owe anything,” Moses told the Daily News.
Yes, but as we’ve seen before, criminal courts aren’t nearly as disdainful of the defendants who come before them as are family courts.
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Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.
via Question It!
February 16, 2018 by Don Hubin, PhD, Chair, Executive Committee, National Parents Organization of Ohio
How many times have we heard this in response to our efforts to establish a presumption of equal parenting when parents separate as misguided: “Every case is different; you can’t use a cookie-cutter approach”?
In my more than 25 years of working to promote shared parenting, I’ve heard judges, attorneys, and legislators say this more times than I can remember. Most recently, in two settings. When I presented National Parents Organization’s proposed legislation for a presumption of equal parenting during temporary orders, representatives from the Ohio Bar Association challenged the proposal because … “every case is different” and “you can’t use a cookie-cutter approach.” A couple of weeks later, when I met with two leaders of the Ohio Domestic Relations Judges Association to discuss this proposed legislation, I was told, again … “every case is different” and “you can’t use a cookie-cutter approach.”
It sounds reasonable, of course. Every case is different. But it’s a hollow argument.
Courts already use a cookie cutter—an incredibly detailed cookie cutter. These cookie cutters typically specify not only the amount of time that the children will spend with each parent, but the exact days and the times of the exchanges: Wednesdays from 6:00 pm to 8:00 pm and every other weekend from 6:00 pm on Friday until 6:00 pm on Sunday, for example.
And this highly specific schedule is used as a default, for “when parents can’t agree otherwise.”
Knowing this, and pointing it out, is one thing. Proving it based on careful research is quite another.
Ohio NPO is undertaking a review of the cookie cutters used by Ohio domestic relations courts to determine parenting time. In our state, each of the 88 counties set its own “standard parenting time rule” for separated and divorced parents. NPO member Frank Glandorf and I are reviewing every one of these schedules and evaluating them on the degree to which they promote children’s best interest by setting defaults that protect the child’s relationship with both parents.
The goal is to produce a report card for each county, similar to the 2014 NPO Grade Card Report that evaluated all 50 states’ custody laws. It’s a complex task because, as you might expect, there’s wide variation in the approaches used by Ohio courts. Some local rules are age specific, some are not; some have multiple schedules for children of the same age group; others do not; some have very complex schedules; others are very simple.
To make the task manageable, for this report, we’ll be focusing only on how the various courts address “normal time” with the children—time that doesn’t include holidays and summer vacations. And we’ll focus only on the rules concerning parents who live in reasonably close proximity.
Preliminary findings are not surprising. The vast majority of Ohio counties have parenting time rules of the every-other-weekend-and-one-evening-a-week variety, or less. And they explicitly say that this schedule applies when the parents can’t agree to anything else.
This is not news to anyone involved in the custody reform movement. But we’re working on developing the data to back up our claims that, not only do Ohio courts already use a cookie-cutter approach, but the cookie cutter they use is a terrible one—harmful to children and parents.
This will be a powerful tool to use with judges, attorneys, legislators, and the media. In addition to issuing a grade card report, we will be writing op-eds to be published in the local newspapers praising those courts that do it right and calling out those who are woefully behind the times.