Custody and Access Rights of Grandparent and Non-Biologically Related Persons in Arizona

A. Overview

Recent decisions in both federal and state courts affect custody and access rights of persons who are not the biological parents of children but with whom they have developed relationships. Affected persons include grandparents, stepparents and others who may have acted in the place of parents (in loco parentis).

In Arizona, grandparents' rights are codified in Arizona Revised Statute §25-409 while A.R.S. §25-415 covers anyone who may have acted as a parent to a child. A.R.S. §25-415 could affect those grandparents who have actually raised a child and are seeking more than the visitation the grandparent rights statute provides. While the statutes themselves provide a starting point from which to assess the custody and access rights of any given person, appellate court interpretations of the statutes provide more insight. Most often, the appellate court analyzes statutes within a constitutional framework. While there have not been a tremendous number of cases decided that analyze the Arizona grandparent and in loco parentis cases, the few decisions that have been made are very important. The U.S. Supreme Court case of Troxel v. Granville remains the key controlling case on the non-parent issue and provides the backdrop against which non-parent cases are decided.

B. Troxel v. Granville: The U.S. Supreme Court Weighs In

The single most important case in recent years on the non-parent rights issue involves Jenifer Troxel, et vir v. Tommie Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49 (2000). The Troxel case originated in Washington state as a grandparent visitation dispute. In that case, the deceased biological father's parents sought visitation under a Washington statute that allowed anyone to petition for visitation, whether biologically related or not. Although the biological mother agreed to visitation, she disputed the amount sought by the paternal grandparents and the dispute went before the Washington trial court. The trial court sided with the grandparents and the mother appealed through the Washington appellate system where the Washington Court of Appeals overturned the trial court's visitation order and dismissed the grandparents' visitation petition, a ruling affirmed by the Washington Supreme Court.

Following the Washington Supreme Court's decision against them, the grandparents appealed to the U.S. Supreme Court where they found an unfriendly audience. The U.S. Supreme Court analyzed both the Washington statute and the particular factual circumstances surrounding Troxel, ultimately finding that the U.S. Constitution provided more protection for parental decision-making rights than the Washington statute and trial court provided. The Court upheld the dismissal of the grandparents' visitation petition and the visitation awarded by the trial court was not allowed.

So, as one looks at the U.S. Supreme Court's decision in Troxel, there are two key factors that the Court considered:

1. Fourteenth Amendment Due Process
The Constitutional issue was the key issue of the appeal to the U.S. Supreme Court. Ultimately, the Court concluded that the Washington visitation statute that allowed anyone to petition for visitation and for the Washington trial courts to award visitation in the best interests of children who may be subject of a petition was simply overbroad and impermissibly infringed on parents' fundamental right to raise their children as they see fit.

2. Circumstances of the Case
The U.S. Supreme Court also reviewed the circumstances of the case; in other words the particular facts present in Troxel. For example, the mother in the case had actually offered visitation, just not to the extent sought by the grandparents. The Court concluded that the mother's determination of what amounted to appropriate visitation was entitled to more weight than the trial court gave. In addition, there was no allegation that mother was an unfit parent, thus there was no apparent reason to second-guess the mother's decisions.

In summary, the Troxel case at its simplest stands for the principle that courts are to provide a fit parent's decisions special weight.

C. The Dodge Cases: Arizona's Theory on Non-Parent Rights

Arizona's best-known case on the rights of non-parents is Dodge v. Graville. This highly contested litigation resulted in four appellate reviews and even made its way to the U.S. Supreme Court. Importantly, the Dodge cases were occurring at or near the time Troxel v. Granville was progressing through the courts. It is important, therefore, to maintain clarity within the various cases and proceedings in Dodge and thus, they are herein referred to in the order in which they were decided at the various appellate court levels. Courts and lawyers refer to Dodge I and Dodge II to keep them straight; two official published opinions resulted from the litigation that, at the end of the day, left a number of questions regarding Arizona law unanswered.

1. Dodge I. (Kathryn Lucille Graville and Donald Graville, 195 Ariz. 119; 985 P.2d 604; 287 Ariz. Adv. Rep. 68 (Ariz. Ct. App. 1999)).

In this case, the mother of the children at issue was deceased and the maternal grandparents sought visitation. After the trial court awarded the grandparents the equivalent of nine days of annual visitation, the children's father appealed on a number of bases.

On appeal, the father argued that the 14th Amendment to the U.S. Constitution provides parents a fundamental right to raise their children as they wish and that Arizona's grandparent visitation statute interferes with that right. Although the Arizona Court of Appeals agreed with the father that parents do have the fundamental right to raise their children as they see fit, the court felt that the statute was written and applied in such a way that the intrusion upon parental rights was not unconstitutional.

The father also appealed the amount of time awarded to the grandparents. The court disposed of the father's arguments by pointing out that the total amount of visitation time was relatively minor. The court did, however, agree with the father that the trial court's orders that he encourage weekly telephone calls with the grandparents, consider using the grandparents as caregivers when possible and that he not discuss custody issues with the children went too far. Thus, those orders were stricken.

2. Dodge II. (Kathryn Lucille and Donald Graville v. Douglas Paul Dodge, 197 Ariz. 591; 5 P.3d 925; 322 Ariz. Adv. Rep. 15 (Ariz. Ct. App. 2000)).
In the continuing litigation regarding the Graville's visitation, the grandparents sought to have the father found in contempt for not following the trial court's original visitation orders. The Arizona Court of Appeals examined the issue of whether the trial court overstepped its authority by appointing a supervisor to monitor the visitation, determining that the addition of the supervisor was not an improper modification of the original order. However, this Court of Appeals decision occurred right before the U.S. Supreme Court decided Troxel. When the Arizona Supreme Court refused to review the case, the U.S. Supreme Court eventually vacated the Arizona Court of Appeals decision and sent the case back for review in light of the Troxel decision. See Jenifer Troxel, et vir v. Tommie Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49 (2000).

Upon receiving the case back with instructions from the U.S. Supreme Court to apply the Troxel holding, the Arizona Court of Appeals chose to make both sides unhappy. The court did away with the grandparents' requested contempt ruling, essentially, and the father's constitutional issues went unresolved. Thus, important issues are left unclarified.

D. Other Arizona Cases

To make the length of this article workable, not every pertinent Arizona or national case is included or mentioned, however, the following cases are briefly addressed to provide more information on the subject of grandparent and non-parent visitation rights in Arizona.

1. Jackson v. Tangreen, 199 Ariz. 306; 18 P.3d 100 (2000).

The facts of this case were slightly different than most of the grandparent cases. Here, the biological father had voluntarily terminated his rights following his divorce from the mother so that the mother's new husband could adopt the child. Following the adoption, the biological father's mother petitioned to continue her visitation rights she had attained following the divorce but before the proceedings related to the adoption.

The Court of Appeals ruled as follows:

a. Upholding the grandparent visitation statute as constitutional, and
b. Finding that the grandparent visitation statute does not unconstitutionally distinguish between two-parent adoptions and stepparent adoptions by permitting grandparent visitation when a stepparent adopts a child.

Note that the U.S. Supreme Court refused to review this case. 534 U.S. 953; 122 S. Ct. 351; (2001).

2. Riepe v. Riepe, 208 Ariz. 90; 91 P.3d 312 (2004).

The Riepe case involves a sad set of facts. The biological mother and father were divorced and eventually the father met, moved in with, and married the stepmother. The stepmother appears to have been very involved all aspects of the child's life during the time she was with the father. In 2001, the father died in a traffic accident. Biological mother then denied visitation to the stepmother who petitioned for visitation under Arizona's in loco parentis statute, A.R.S. §25-415. The trial court denied the stepmother's petition for visitation and an appeal followed.

The Arizona Court of Appeals overturned the trial court, finding that the trial court improperly required the stepmother to show that her relationship with the child was equal or superior to that of the natural parents. The appellate decision also contains a lengthy dissent and response to the dissent that takes up most of the decision.

3. McGovern v. McGovern, 201 Ariz. 172; 33 P.3d 506 (2001).

In this case, the child at issue was born out of wedlock and the biological father's parental rights were terminated. The mother and child lived with the mother's parents for approximately four and one-half years commencing soon after the child's birth and it appeared from the evidence presented that a significant bond developed between the child and the maternal grandparents. Mother eventually moved the child and herself out of her parents' home and, as in the Troxel case, offered visitation to the grandparents that was less than the grandparents preferred, prompting the grandparents to file a petition for visitation.

Following the grandparents' petition, a stipulated order was reached that provided the grandparents with visitation. Nevertheless, following the U.S. Supreme Court's Troxel decision, the mother sought reconsideration and a declaratory judgment based on the Troxel ruling. The trial court then vacated the stipulated order for visitation and ordered that the mother would have complete discretion on all visitation matters. The grandparents then applied to the Arizona Court of Appeals for relief.

On appeal, the court noted similarities between the McGovern's case and Troxel. For example, the mother's fitness was not challenged and she had offered some visitation. The Court of Appeals agreed in part and disagreed in part with the trial court's rulings. Specifically, the Court of Appeals agreed that the trial court properly vacated the stipulated visitation order but disagreed that the mother should have 100% discretion on visitation, finding that the mother's offer of limited visitation was only one factor to consider. The Court of Appeals remanded the case so that the trial court could hold additional proceedings on the visitation issue.

E. Conclusion

The Troxel case is a landmark decision that has created waves of litigation in the states, even prompting a movement to have grandparent and in loco parentis statutes declared unconstitutional in many states. While Troxel has modified the way that Arizona trial and appellate courts view non-parent rights and how A.R.S. §§25-409 and 25-415 are interpreted, both statutes have withstood Constitutional challenges thus far and it appears that barring legislative action to the contrary, they are likely to remain in effect. Therefore, non-parents still enjoy certain rights in Arizona, although seemingly not to the extent that they did before the U.S. Supreme Court decided Troxel.

APPENDIX OF CASES

(full text of cases available at http://www.wilcoxlegal.com)

a. Jenifer Troxel, et vir v. Tommie Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49 (2000).

b. Kathryn Lucille Graville and Donald Graville, 195 Ariz. 119; 985 P.2d 604; 287 Ariz. Adv. Rep. 68 (Ariz. Ct. App. 1999)

c. Kathryn Lucille and Donald Graville v. Douglas Paul Dodge, 197 Ariz. 591; 5 P.3d 925; 322 Ariz. Adv. Rep. 15 (Ariz. Ct. App. 2000).

d. Jackson v. Tangreen, 199 Ariz. 306; 18 P.3d 100 (2000).

e. Riepe v. Riepe, 208 Ariz. 90; 91 P.3d 312 (2004).

f. McGovern v. McGovern, 201 Ariz. 172; 33 P.3d 506 (2001).

ENDNOTES

25-409. Visitation rights of grandparents and great-grandparents

A. The superior court may grant the grandparents of the child reasonable visitation rights to the child during the child's minority on a finding that the visitation rights would be in the best interests of the child and any of the following is true:

1. The marriage of the parents of the child has been dissolved for at least three months.

2. A parent of the child has been deceased or has been missing for at least three months. For the purposes of this paragraph, a parent is considered to be missing if the parent's location has not been determined and the parent has been reported as missing to a law enforcement agency.

3. The child was born out of wedlock.

B. The superior court may grant the great-grandparents of the child reasonable visitation rights on a finding that the great-grandparents would be entitled to such rights under subsection A if the great-grandparents were grandparents of the child.

C. In determining the child's best interests the court shall consider all relevant factors, including:

1. The historical relationship, if any, between the child and the person seeking visitation.

2. The motivation of the requesting party in seeking visitation.

3. The motivation of the person denying visitation.

4. The quantity of visitation time requested and the potential adverse impact that visitation will have on the child's customary activities.

5. If one or both of the child's parents are dead, the benefit in maintaining an extended family relationship.

D. If logistically possible and appropriate the court shall order visitation by a grandparent or great-grandparent to occur when the child is residing or spending time with the parent through whom the grandparent or great-grandparent claims a right of access to the child. If a parent is unable to have the child reside or spend time with that parent, the court shall order visitation by a grandparent or great-grandparent to occur when that parent would have had that opportunity.

E. A grandparent or great-grandparent seeking to obtain visitation rights under this section shall petition for these rights in the same action in which the parents had their marriage dissolved or in which the court determined paternity or maternity, or by a separate action in the county where the child resides if no action has been filed or the court entering the decree of dissolution or determination of paternity or maternity no longer has jurisdiction.

F. All visitation rights granted under this section automatically terminate if the child has been adopted or placed for adoption. If the child is removed from an adoptive placement, the court may reinstate the visitation rights. This subsection does not apply to the adoption of the child by the spouse of a natural parent if the natural parent remarries.

25-415. Custody by nonparent; presumption; grounds; definitions

A. A child custody proceeding may also be commenced in the superior court by a person other than a legal parent by filing a verified petition, or by a petition supported by an affidavit, in the county in which the child is permanently resident or is found. The petition shall include detailed facts supporting the petitioner's right to file the petition. The petitioner shall provide notice as required by subsection E. Notice shall include a copy of the petition and any affidavits. The court shall summarily deny a petition unless it finds that the petitioner by the pleadings established that all of the following are true:

1. The person filing the petition stands in loco parentis to the child.

2. It would be significantly detrimental to the child to remain or be placed in the custody of either of the child's living legal parents who wish to retain or obtain custody.

3. A court of competent jurisdiction has not entered or approved an order concerning the child's custody within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health.

4. One of the following applies:

(a) One of the legal parents is deceased.

(b) The child's legal parents are not married to each other at the time the petition is filed.

(c) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.

B. If a person other than a child's legal parent is seeking custody there is a rebuttable presumption that it is in the child's best interest to award custody to a legal parent because of the physical, psychological and emotional needs of the child to be reared by the child's legal parent. To rebut this presumption that person must show by clear and convincing evidence that awarding custody to a legal parent is not in the child's best interests.

C. The superior court may grant a person who stands in loco parentis to a child, including grandparents and great-grandparents, who meet the requirements of section 25-409 reasonable visitation rights to the child on a finding that the visitation is in the child's best interests and that any of the following is true:

1. One of the legal parents is deceased or has been missing at least three months.

2. The child's legal parents are not married to each other at the time the petition is filed.

3. There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.

D. A grandparent, a great-grandparent or a person who stands in loco parentis to a child may bring a proceeding for visitation rights with a child by filing a verified petition in the county in which the child is permanently resident or is found.

E. Notice of a custody or visitation proceeding filed pursuant to this section shall be served pursuant to the rules of civil procedure to all of the following:

1. The child's parents.

2. A person who has court ordered custody or visitation rights.

3. The child's guardian or guardian ad litem.

4. A person or agency that has physical custody of the child or that claims to have custody or visitation rights.

5. Any other person or agency that has previously appeared in the action.

F. A person shall file proceedings for custody or visitation under this chapter in the same action in which the legal parents had their marriage dissolved or any other proceeding in which a previous custody order has been entered regarding the child.

G. For the purposes of this chapter:

1. "In loco parentis" means a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time.

2. "Legal parent" means a biological or adoptive parent whose parental rights have not been terminated.

Attorney Carrie M. Wilcox is the sole shareholder of Wilcox Legal Group, P.C., a multi-dimensional law firm with offices in Arizona and California. She is a graduate of Arizona State College of Law where she was a Note and Comment Editor for the Arizona State University Law Journal and former intern for the Honorable Rudolph Gerber, Arizona Court of Appeals. Ms. Wilcox is admitted to practice in the Arizona state courts and federal district court. Ms. Wilcox practices in the areas of business formation and creditor rights/debt collection. She also has wide-ranging experience in civil litigation, including employment law, family law, personal injury and business representation. Ms. Wilcox is a member of the Association of Trial Lawyers of America (ATLA),the Maricopa County Bar Associations, State Bar of Arizona, Arizona Women Lawyers and American Bar Association.

Banning All Corporal Punishment of Children

Sweden was the first country in the world to ban all corporal punishment of children. In 1979, the Swedish Parliament voted to prohibit corporal punishment, or the "right" of parents/ caretakers to chastise their children. Swedish Member of Parliament Sixten Pettersson stated "In a free democracy like our own, we use words as arguments, not blows. We talk to people and do not beat them. If we can't convince our children with words, we shall never convince them with violence". Today Corporal punishment of children by their parents/ caretakers is not legal in all Nordic countries. Nordic societies agree that children are better educated with words than with violence.

In the United States corporal punishment of children in school is legal in twenty-two states, and "reasonable" corporal punishment of children by their parents/caretakers is legal in every state except Minnesota (Bitensky, 1998). Prohibition of corporal punishment in family day care, group homes/institutions, child care centers, and family foster care varies according to state laws (EPOCH-USA, 1999b).

Listed below is the legal language used to define corporal punishment. One has to question what 'reasonable' corporal punishment is. Ask a child if they think being hit is 'reasonable.' Having asked that question many times, without exception or hesitation the child has answered, "NO."

Our laws and our cultural values are unambiguous concerning adults who physically hit or verbally threaten adults. Such behavior is recognized as criminal, and we hold the perpetrators accountable. Why then when so much is at stake for society, do we accept the physical attack of children? The answer is not complicated. We cannot have empathy toward children until we can honestly acknowledge the mistreatment from our own childhood experiences and examine the shortcomings of our own parents. To the extent we feel compelled to defend our parents and guard their secrets, we will do the same for others. We will condone corporal punishment and look the other way. By continually insisting that we "turned out okay," we are reassuring ourselves and diverting our attention from deeply hidden unpleasant memories.

ALABAMA

Parent/guardian/person responsible for care and supervision of a minor/teacher or other person responsible for care and supervision of a minor for a special purpose may use reasonable and appropriate physical force when and to the extent he reasonably believes it necessary and appropriate to maintain discipline or promote welfare of the child. Sec. 13A-3-24. [Cr.]

ALASKA

Force is justified when and to the extent reasonably necessary and appropriate to promote a child's welfare. Parent/guardian/other person with care and supervision of child under 18 may use reasonable and appropriate non-deadly force upon the child. Sec. 11.81.430.[Cr.]

ARIZONA

Parent/guardian may use reasonable and appropriate physical force upon the minor when and to the extent reasonably necessary and appropriate to maintain discipline. Sec. 13-403.[Cr.]

ARKANSAS

Abuse does not include physical discipline of a child if reasonable and moderate and inflicted by a parent or guardian for restraining or correcting a child. Listed as not reasonable or moderate for correcting or restraining: -- Throwing, kicking, burning, biting, cutting, striking with a closed fist, shaking a child under 3, striking or other actions which result in any non-accidental injury to a child less than 18 months, interfering with a child's breathing, threatening a child with a deadly weapon, striking a child on the face, or any other act that is likely to cause bodily harm greater than transient pain or minor temporary marks. [Statute says this is an illustrative and not exclusive list]. Age, size, condition of the child, and the location of the injury and frequency or recurrence of injuries shall be considered in determining "reasonable" or "moderate." Sec. 9-27-303(B).[Ci.] Parent/teacher/guardian/other with care and supervision of a minor may use reasonable and appropriate physical force when and to the extent reasonably necessary to maintain discipline or promote the welfare of the child. Sec. 5-2-605(l).[Cr.]

If the belief that the force is necessary is a reckless or negligent belief, than the above offers no defense to a crime if the culpability of that crime is proven by showing recklessness or negligence.

Justification is not available if person recklessly or negligently injured or created a substantial risk of injury to a person. Sec. 5-2-614.[Cr.]

CALIFORNIA

Law not intended to prohibit the use of reasonable methods of parental discipline, or to prescribe a particular method of parenting. Serious physical harm does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury. Welf. and Inst. Code Sec. 300. [Ci.] Abuse includes unlawful corporal punishment or injury. Penal Code Sec. 11165.6.[Cr.] "Unlawful corporal punishment or injury" is any person willfully inflicting upon a child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition. Penal Code Sec. 11165.4.[Cr.]

COLORADO

Any investigation of child abuse shall take into account the child-rearing practices of the child's culture. Child abuse and neglect does not include acts which can be reasonably construed to be a reasonable exercise of parental discipline. Sec. 19-3-303(l).[Ci.] A continued pattern of conduct which results in cruel punishment or accumulation of injury which results in death or serious bodily injury is child abuse. Sec. 18-6-401.[Cr.] Parent/guardian/ person with care and supervision of minor can use reasonable and appropriate physical force, if it is reasonably necessary and appropriate to maintain or promote welfare of child. Sec. 18-1-703.[Cr.]

CONNECTICUT

It is abuse if having control and custody of a child under sixteen (16) one cruelly or unlawfully punishes. Sec. 53-20.[Cr.] Parent/guardian/person with care and supervision of a minor (other than a teacher) may use reasonable physical force, when and to the extent that he reasonably believes necessary to maintain discipline or promote welfare of minor. Sec. 53a-18.[Cr.]

DELAWARE

Force is justifiable if reasonable and moderate and by parent/guardian/foster parent/legal custodian/other similar person responsible for care and supervision. Force must be: -- For purpose of safeguarding or promoting welfareof child, including prevention or punishment of misconduct, and -- Intended to benefit child. Reasonable and moderate is determined in light of: size, age, and condition of child, location, strength, and duration of force. Force is not justified if it consists of: -- Throwing child, kicking, burning, cutting, striking with a closed fist, interfering with breathing, use of or threatened use of deadly weapon, prolonged deprivation of sustenance or medication, any act likely to cause or causing physical injury, disfigurement, mental distress, unnecessary degradation or substantial risk of serious physical injury or
death. Criminal Sec. 468.[Cr.]

DISTRICT OF COLUMBIA

Abuse includes excessive corporal punishment. Sec. 6-2101.[Ci.] Abuse includes when a parent/guardian/custodian inflicts or fails to make reasonable efforts to prevent the infliction of physical or mental injury, including excessive corporal punishment. Sec. 16-2301.[Ci.]

FLORIDA

"Harm" to a child occurs when the parent or other person responsible for the child's welfare inflicts or allows to be inflicted upon the child physical, mental, or emotional injury. The following factors must be considered in evaluating any injury: prior injuries; location; multiplicity; and type of trauma. Such injury include, but are not limited to willful acts that produce the following specific injuries: sprains, dislocations, or cartilage damage; bone or skull fractures; brain or spinal cord damage; intracranial hemorrhage or injury to other internal organs; asphyxiation, suffocation, or drowning; injury resulting from the use of a deadly weapon; burns or scalding; cuts, lacerations, punctures, or bites; permanent or temporary disfigurement; or permanent or temporary loss or impairment of a body part or function. "Willful" refers to the intent to perform an action, not to achieve a particular result or an intent to cause an injury. Sec. 415.503.[Ci.]

GEORGIA

Physical forms of discipline may be used as long as there is no physical injury to the child. Secs. 19-7-5/ 19-15- 1/49-5-180.[Ci.] Parent or person in loco parentis reasonably disciplining of a minor has a justification for a criminal prosecution based on that conduct. Sec. 16-3-20.[Cr.]

HAWAII

Parent/guardian/person responsible for general care and supervision of minor/person acting at request of above may use force if. -- employed with due regard for age and size of minor and reasonably related to purpose of safeguarding or promoting welfare of minor, including prevention or punishment of minor's conduct, and -- not designed to cause or known to create a risk of causing substantial bodily injury, disfigurement, extreme pain, mental
distress, or neurological damage. Sec. 703-309.[Cr.]

IDAHO

Abuse includes physical cruelty in excess of that required for reasonable disciplinary purposes, inflicted by a parent or other person in whom legal custody is vested. Sec. 16-2002.[Ci.]

ILLINOIS

An "abused child" includes any child whose parent/immediate family member/person responsible for the child's welfare/individual residing in the same house/paramour of child's parent inflicts excessive corporal punishment.
Secs. 325 5/3/ [Ci.]

INDIANA

Law does not limit right of parent/guardian/custodian to use reasonable corporal punishment when disciplining a child. Sec. 31-34-1-15.[Ci.]

IOWA

Child endangerment includes using unreasonable force, torture, or cruelty which results in physical injury, is intended to cause serious injury, or causes substantial mental or emotional harm. Sec. 726.6.[Cr.]

KANSAS

Abuse includes cruel and inhuman corporal punishment. Sec. 21-3609.[Cr.]

KENTUCKY

Parent/guardian/person/teacher with care and supervision of minor can use force if person believes force necessary for welfare of child and force is not designed to cause or known to cause a substantial risk of causing death, serious physical injury, disfigurement, extreme pain, or extreme mental distress. Sec. 503.110.[Cr.]

LOUISIANA
In determining abuse the agency should take into account that an injury may have resulted from what might be considered reasonable discipline for a child's misbehavior. Children's Code Art. 615(A).[Ci.] Parent/tutor/teacher reasonably disciplining a minor has a defense to a criminal prosecution based on that conduct. Sec. 14:18. [Cr.]

MAINE

It is a crime for parent/guardian/other with care and custody of child to cruelly treat a child by extreme punishment. 17A Sec. 554(1)(B-1). [Cr.]

MARYLAND

Law does not prohibit reasonable punishment by parent or stepparent, including reasonable corporal punishment, evaluated in light of the age and condition of child. Sec. 4-501.[Ci.]

MICHIGAN

Parent/guardian/other person permitted by law, parent, or guardian can reasonably discipline a child, including the use of reasonable force. Sec. 750.136b.[Cr.]

MINNESOTA

Parent/legal guardian/caretaker who intentionally uses unreasonable force or cruel discipline that is excessive under the circumstances is guilty of malicious punishment. Sec. 609.377.[Cr.] Parent/legal guardian/teacher/caretaker of child or pupil can use reasonable force to restrain or correct a child or pupil. Sec. 609.379.[Cr.]

MISSISSIPPI

Physical discipline (not to include any form of sexual abuse) performed on a child by a parent, guardian or custodian shall only be deemed to be abuse under this paragraph when a licensed physician has determined that physical injury has occurred. Sec. 97-5-39(2(m)). [Cr.]

MISSOURI

Discipline including spanking, administered in a reasonable manner, is not abuse. Sec. 210.110. [Ci.] Force justified if by parent/guardian/other person with care and supervision of minor if- -- Person believes force necessary to promote welfare of minor, and -- Force used is not designed to cause or believed to create a substantial risk of causing death, serious physical injury, disfigurement, extreme pain, or extreme emotional distress. Sec. 563.061.[Cr.]

MONTANA

"Physical abuse" is defined as "substantial skin bruising, internal bleeding, substantial injury to skin, subdural hematoma, intentional burns, bone fractures, extreme pain, permanent or temporary disfigurement, impairment of
any bodily organ or function, or death if the injury or death is not accidental." Sec. 41-3-102.[Ci.] Parent or authorized agent of parent/guardian/master/teacher is justified to use force if reasonable and necessary to restrain or correct child. Sec. 45-3-107.[Cr.]

NEBRASKA

It is abuse to knowingly, intentionally, or negligently cause or permit a child to be cruelly punished. Sec. 28-710.[Cr.] Parent/guardian/person responsible for care and supervision/person acting at one of the above's request is justified to use force on a minor if for the purpose of safeguarding or promoting the welfare of minor, including prevention or punishment of misconduct, but not designed to cause or known to create a substantial risk of causing death, serious bodily harm, disfigurement, extreme pain, mental distress, or gross degradation. Sec. 28-1413.[Cr.] If the belief that the force is necessary is a reckless or negligent belief, than the above offers no defense to a crime, if the culpability of that crime is proven by showing recklessness or negligence. Justification is not available if person recklessly or negligently injured or created a substantial risk of injury to a person. Sec. 28-1414.[Cr.]

NEVADA

Excessive corporal punishment may cause physical or mental injuries which constitute abuse. Sec. 432B.150.[Ci.] "Injury" to a child occurs when a parent/guardian/custodian inflicts or allows to be inflicted upon a child physical, mental, or emotional injuries sustained as a result of excessive corporal punishment. Sec. 128.013.[Ci.]

NEW HAMPSHIRE

Parent/guardian/person/teacher responsible for general care and welfare of minor may use force against minor when and to the extent that he reasonably believes it necessary to prevent or punish minor's misconduct. No defense available for malicious or reckless use of force that creates risk of death, serious bodily injury, or substantial pain. Sec. 627:6.[Cr.]

NEW JERSEY

Cruelty to a child includes inflicting unnecessarily severe corporal punishment upon a child. Sec. 9:6-1.[Ci.] "Abuse" includes a parent, guardian, or other person with control or custody inflicting excessive corporal punishment (which must be excessive to the point that the child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result). Sec. 9:6-8.9.[Ci.] Person with responsibility for care, supervision, discipline, or safety of another may use force against them if for the purpose of and to the extent necessary to further the responsibility. Sec. 2C:3-8.[Cr.] Justification is not available if the person recklessly or negligently injures or creates a risk of injury. Sec. 2C: 3-9.[Cr.]

NEW MEXICO

An abused child includes one who has been cruelly punished by a parent/ guardian/ custodian. Sec.32A-1-4(B).[Ci.] Abuse includes knowingly, intentionally, or negligently permitting or causing a child to be cruelly punished. Sec. 30-6-1.[Cr.]

NEW YORK

Neglecting a child includes unreasonably inflicting or allowing the infliction of harm or substantial risk thereof, including excessive corporal punishment. Fam. Ct. Sec. 1012.[Ci.] Parent/guardian/other person with care and supervision of person under 21, can use non-deadly physical force when and to the extent he reasonably believes necessary to maintain discipline or promote welfare of person force performed upon. Penal Sec. 35:10.[Cr.]

NORTH CAROLINA

Abuse includes infliction of a serious physical injury by other than accidental means; creating a substantial risk of such injury by other than accidental means; and using cruel or grossly inappropriate procedures or devices to modify behavior. Juvenile Sec. 7B-101(1). [Ci.]

NORTH DAKOTA

"Harm" includes injuries sustained from excessive corporal punishment. Sec. 50-25.1-02.[Ci.] Parent/guardian/other person responsible for care and supervision of minor/person acting at direction of the above can use reasonable force on a minor for safeguarding or promoting his welfare, including prevention or punishment of his misconduct and maintenance of proper discipline. Force does not have to be "necessary," but cannot create substantial risk of death,
serious bodily injury or disfigurement, or gross degradation. Sec. 12.1-05-05.[Cr.]

OHIO

Not abuse if not prohibited under law prohibiting endangering children. "Endangering children" is administering corporal punishment or other physical discipline, or physically restraining the child in a cruel manner or for a prolonged period if the punishment or discipline is excessive under the circumstances and creates a substantial risk of serious physical harm to the child. Sec. 2151.031.[Ci.] It is a criminal act to administer corporal punishment or other physical discipline, or to physically restrain the child in a cruel manner or for a prolonged period if it is excessive under the circumstances and creates a substantial risk of serious physical harm to the child. It is a criminal act to administer unwarranted disciplinary measures to child if there is a substantial risk that if conduct is continued it will seriously impair the child's health or development. Sec. 2919.22.[Cr.]

OKLAHOMA

Parents/teachers/other persons can use ordinary force as a means of discipline, including but not limited to spanking, switching, or paddling. 21 Sec. 844.[Cr.] Criminal penalty for using unreasonable force upon a child under 18. 10
Sec. 7115.[Cr.]

OREGON

Physical force is justified if parent/guardian/other person with the care and supervision of a minor uses reasonable force when and to the extent the person reasonably believes necessary to maintain discipline or promote welfare of minor. Sec. 161.205. [Cr.]

PENNSYLVANIA

Parents can use reasonable supervision and control when raising their children.23 Sec. 6302.[Ci.] Parent/guardian/person responsible for general care and supervision/ person acting at request of the above may use force for the purpose of safeguarding or promoting welfare of minor including the prevention or punishment of his misconduct, if the force is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain, mental distress, or gross degradation. 18 Sec. 509.[Cr.]

RHODE ISLAND

Abuse occurs when a child's physical or mental welfare is harmed or threatened by a parent or person responsible for child's welfare, by means including excessive corporal punishment which causes physical or mental injury or creates or allows to be created a substantial risk of physical or mental injury. Sec.40-11-2.[Ci.] Serious physical injury is any injury, other than a serious bodily injury, arising from other than non-excessive corporal punishment. Sec.11-9-5.3. [Cr.]

SOUTH CAROLINA

"Harm" includes excessive corporal punishment. "Harm" does not include corporal punishment or physical discipline if- Administered by a parent or person acting in place of a parent, Perpetrated for the sole purpose of restraining or correcting, Force is reasonable in manner and moderate in degree, There is no permanent damage, and Behavior is not reckless or grossly negligent. Sec. 20-7-490.[Ci.]

SOUTH DAKOTA

It is abuse to cruelly punish. Sec. 26-10-1.[Cr.] Parent/guardian/teacher/school official can use, attempt, or offer to use force if reasonable in manner and moderate in degree, and used to restrain or correct as necessitated by misconduct or refusal to obey a lawful command. Sec.22-18-5 [Cr.]

TENNESSEE

Permits criminal charges against a parent/guardian/custodian who administers "unreasonable" corporal punishment which causes "injury" to the child. Sec. 39-15-401 [Cr.]

TEXAS

Abuse does not include reasonable discipline by a parent/guardian/managing or possessory conservator if child not exposed to substantial risk of harm. Family Code Sec. 261.001.[Ci.] Parent/stepparent/person standing in loco parentis to child is justified to use non-deadly force against a child under 18 when and to degree the actor reasonably believes necessary to discipline, or safeguard or promote child's welfare. Penal Sec. 9.61.[Cr.]

UTAH

Force is justified if used for reasonable discipline of a minor by parent/guardian/teacher /person standing in loco parentis. Sec. 76-2-401.[Cr.]

WASHINGTON

Physical discipline is not unlawful if reasonable and moderate and inflicted by parent /teacher/guardian for restraint or correction. Presumed unreasonable if the following are used to correct/ restrain: -- Throwing, kicking, burning, cutting, striking with a closed fist, shaking a child under 3, interfering with breathing, threatening with a deadly weapon, any other act likely to cause and which does cause bodily harm greater than transient pain or minor temporary marks. [Statute says this list is illustrative and not exclusive]. Age, size,condition of child, and location of injury are all factors in determining "reasonable" and "moderate." Sec. 9A.16.100.[Cr.]

WEST VIRGINIA

Physical injury can include that which is the result of excessive corporal punishment. Sec. 49-1-3 [Ci.]

WISCONSIN

Use of force is justified when actor's conduct is reasonable discipline of a child by a person responsible for child's welfare. Reasonable discipline may involve only such force as a reasonable person believes is necessary. Never reasonable to use force intended to cause great bodily harm or death, or which creates an unreasonable risk of great bodily harm or death. Sec. 939.45.[Cr.]

WYOMING

Abuse include excessive or unreasonable corporal punishment. Sec. 14-3-202.[Ci.] A "neglected child" includes one abused by the infliction of physical or mental injury including excessive or unreasonable corporal punishment. Sec. 14-6-201.[Ci.] Same definition as civil abuse definition. Sec. 6-2-503.[Cr.]

Dorothy M. Neddermeyer, PhD, author, "If I'd Only Known...Sexual Abuse in or Out of the Family: A Guide to Prevention, specializes in: Mind, Body, Spirit healing and Physical/Sexual Abuse Prevention and Recovery. As an inspirational leader, Dr. Neddermeyer empowers people to view life's challenges as an opportunity for Personal/Professional Growth and Spiritual Awakening. http://www.drdorothy.net

Understanding the Family and Medical Leave Act FMLA - Part 1

When you or a loved one experiences a serious health condition that requires you to take time off from work, the stress from worrying about keeping your job may add to an already difficult situation. With the Family and Medical Leave Act, FMLA there is no need to worry; the FMLA provides unpaid, job-protected leave. Leave may be taken all at once, or may be taken intermittently as the medical condition requires.

Who can Use FMLA Leave?

In order to take FMLA leave, you must first work for a covered employer. Generally, private employers with at least 50 employees are covered by the law. Private employers with fewer than 50 employees are not covered by the FMLA, but may be covered by state family and medical leave laws. Government agencies including local, state and federal employers and elementary and secondary schools are covered by the FMLA, regardless of the number of employees.

If you work for a covered employer, you need to meet additional criteria to be eligible to take FMLA leave. Not everyone who works for a covered employer is eligible.

First, you must have worked for your employer for at least 12 months. You do not have to have worked for 12 months in a row, so seasonal work counts, but generally if you have a break in service that lasted more than seven years, you cannot count the period of employment prior to the seven-year break.

Second, you must have worked for the employer for at least 1250 hours in the 12 months before you take leave. That works out to be an average of about 24 hours per week, over the course of a year.

Lastly, you must work at a location where the employer has at least 50 employees within 75 miles of your work-site. So even if your employer has more than 50 employees, if they are spread out and there are not 50 employees within 75 miles of where you work, you will not be eligible to take FMLA leave.

Airline Flight Attendants/Flight Crew Employees

Due to non-traditional work schedules, airline flight attendants and flight crew members are subject to special eligibility requirements under the FMLA. You meet the hours of work requirement if, during the 12 months prior to your need for leave, you have worked or been paid for at least 60% of your applicable monthly guarantee, and have worked or been paid for at least 504 hours, not including personal commute time, or time spent on vacation, medical or sick leave.
When can FMLA Leave be taken?

If you work for an employer that is covered by the FMLA, and you are an eligible employee, you can take up to 12 weeks of FMLA leave in any 12-month period for a variety of reasons including:

Serious Health Condition

You may take FMLA leave to care for your spouse, child or parent who has a serious health condition and when you are unable to work because of your own serious health condition.

The most common serious health conditions that qualify for FMLA leave are:

1) Conditions requiring an overnight stay in a hospital or other medical care facility;

2) Conditions that incapacitate you or your family member for example, unable to work or attend school, for more than 3 consecutive days and have ongoing medical treatment, either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication;

3) Chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year; and

4) Pregnancy including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest.

Expanding Your Family

You may take FMLA leave for the birth of a child and to bond with the newborn child, or for the placement of a child for adoption or foster care and to bond with that child. Men and women have the same right to take FMLA leave to bond with their child but it must be taken within one year of the child's birth or placement and must be taken as a continuous block of leave unless the employer agrees to allow intermittent leave for example, a part-time schedule.

Military Family Leave

The FMLA also provides certain military family leave entitlements. You may take FMLA leave for specified reasons related to certain military deployments. Additionally, you may take up to 26 weeks of FMLA leave in a single 12-month period to care for a covered service member with a serious injury or illness.

In Loco Parentis

A child under the FMLA includes not only a biological or adopted child, but also a foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. The FMLA regulations define in loco parentis as including those with day-to-day responsibilities to care for and financially support a child. Employees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave.

For example, an uncle who is caring for his young niece and nephew when their single parent has been called to active military duty or an employee who is co-parenting a child with his or her same sex partner may exercise their right to FMLA leave.

Also, an eligible employee is entitled to take FMLA leave to care for a person who stood in loco parentis to the employee when the employee was a child.

http://www.workplace-weekly.com/hr-regulation/page/2/

Read the second part on website.

Gloria E. Towolawi is a Workplace subject matter expert; Publisher- Workplace Weekly News Publication. Author: Five Minute HR Trainer for Supervisors and Business Owners. She invites you to subscribe to her Weekly News at her website, http://www.workplace-weekly.com/hr-news/digital-e-news/

Atheists, lies and suppressed knowledge of God


In the second half of Craig’s latest "Reasonable Faith" podcast, he talks about how, he supposes, atheists know that God exists, despite the fact that they assert that they don’t. I’d previously said in a post that Craig’s view would seem to have the consequence that atheists are lying about that, then. Actually, maybe that doesn’t follow. In the podcast, Craig denies his view is that atheists are lying when they deny they know God exists. We should accept that denial.

However, Craig’s explanations for why atheists are not, then, lying when they claim they don’t know when they do is not, I think, very convincing.

First he draws an analogy with someone who tries to rationalize away or suppress what they know. His example is of a married man who has an affair.

The human psyche is so capable of rationalization and suppressing things that we find uncomfortable that I think it's very plausible to think that an atheist could somehow suppress the knowledge of God or rationalize it away so that he doesn't have to face it overtly. You can think of cases, especially involving moral misbehavior, where this human ability to rationalize comes out. For example, men who get caught in sexual affairs will, at least in the beginning stages of the affair, typically rationalize away the behavior even though they know that what they are doing is wrong.

Another example would be, I suppose, a man that does not love his wife, but suppresses this knowledge and behaves like and says that he does in a attempt to fool both himself and his wife.

These are plausible examples of suppressed knowledge. But do they make the point Craig wants? Suppose the first man says, “I did nothing wrong,” when asked about his affair. He knows deep down that he did do something wrong. Would we say that this man is lying? Would you?

I’d say he was, both to others and also to himself. True, he may at that the moment he says it mean what he says. But what he says is nevertheless, deep down, a lie.

But if that is right, then Craig’s chosen analogy backfires on him. If the atheist similarly suppresses his knowledge that God exists, and says, meaning it, “I don’t know God exists”, he is also, deep down, lying both to others and himself.

Perhaps Craig would deny the man who has the affair is lying. "A lie", Craig might insist, "Cannot be sincerely asserted. It cannot be meant."  But is this true? It doesn't seem to me to be true (the above example involving the man having an affair seems to be a counter-example, in fact - he means what he says when he says it, but , it seems to me, he's still lying). At the very least, the affair example does not strike me as a clear cut example of someone's not lying. But then it doesn't really help support Craig’s case much, if at all.

Craig’s other thought is to borrow Plantinga’s idea that atheists may have a malfunctioning sensus divinitatis or God-sense. A religious person may know God directly via the operation of their healthy sensus divinitatis. But the poor atheist’s God-sense does not operate properly. It's been corrupted by sin.

That’s an interesting idea, but it hardly helps Craig given that the result of atheist’s non- or mal-functioning sensus divinitatis will be that they don’t know God exists (at least not by that route). Craig's view is precisely that atheist does know God exists – so, as it stands, his appeal to Plantinga actually ends up undermining Craig’s position, not supporting it. It’s odd Craig doesn’t spot this.

Of course, Craig may want to develop his Plantingian explanation in some way, but as it stands it fails.

So, perhaps Craig is right that the view that atheists know that God exists does not have the consequence that they are lying when they say they don't. But Craig has so far failed to come up with a clear explanation of why they aren't lying.

However, the really interesting issue about Craig’s suppressed knowledge thesis is not whether atheists are lying when they say they don’t know God exists.  That's not a very interesting question.

Craig seems to think we atheists just want an excuse to take offence at the suggestion that we are liars. He says: “I think the reason atheists raise this is because they want to be able to get their backs up and take righteous offense and indignation at being called liars by these Christians and theists.”

Frankly, I’m not bothered at all about that. The more interesting issue is whether we atheists do know God exists, choose to suppress that knowledge, and so do deserve to burn in hell for eternity as a result. Once it’s been suggested that we atheists are so morally depraved and disgusting that we deserve infinite torture, adding “Oh, and by the way, you’re also lying,” is hardly much of an additional insult.

The main reason I’m interested in this issue is not that I want to take righteous offense at the claim that I'm lying, but rather that this sort of Craigian "suppressed knowledge" view and its connection in his mind with the concept of damnation, involves such a foul and twisted – and I think potentially dangerous - vision of humanity. And also that it is pretty obviously false. I’ll post on that shortly.