(KS) Warrant out for Battered Mom who testified at hearing about losing custody of children

from KansasWatchdog

by Earl Glynn On February 28, 2010
[Updated March 5].

  A warrant is out in Wichita for the arrest of a mom who testified about her case at a legislative hearing last year.  The charges?   That she saw one of her children for 30 minutes, and tried to see the child a second time.

Last year we reported stories from parents and grandparents who had problems with placement and removal of children by the Department of Social and Rehabilitation Services (SRS).  Those parents travelled to Topeka to testify at a hearing of the Joint Committee on Children’s Issues.

Cecillia Arnold lost her parental rights.  Wants her kids back.

Cecillia Arnold lost her parental rights. Wants her kids back.

One of  those testifying was an abused mom, Cecillia Arnold. She had her parental rights severed even though the state never found wrong doing.  Even though she had been the victim of domestic abuse for which her her abuser spent about 2 years in jail, she lost custody of her children for reasons she does not understand.

Here is part of the exchange between Arnold and State Rep Bill Otto at that hearing:

Listen to the testimony: Abused mom Cecillia Arnold lost her parental rights and wants kids back


State Rep Bill Otto (R-LeRoy): “Your rights are severed?”

Arnold: “My rights have been terminated … I have no rights to my children. I have not seen them since March. I filed an appeal that didn’t go anywhere. I’m here today because I want my children back.” …

Otto: “Where was your lawyer?” …

Arnold: “I had court-appointed attorneys … I feel I could have done a better job representing myself” ..

Otto: “This should not happen to anybody … I’m so sorry.” …

Arnold now lives in another state to avoid direct Kansas SRS authority over her. 

In a telephone interview on Sunday Arnold said that the State of Kansas  garnishes her wages for child support even though her children are in foster care and she cannot visit them.  She does not mind the payments since she feels an obligation to her children, but really wants her children back.

Arnold said that after the Nov. 30, 2009 legislative hearing she spent a few days in Wichita with her family before returning home. 

Monica and Albert Arnold outside Fed & State Affairs Committee Hearing room at Capitol on Thursday.  They traveled from Wichita to Topeka trying to testify on their daughter's behalf.  They also attended a hearing at the Capitol in Nov. 2009.

Monica and Albert Arnold outside Fed & State Affairs Committee Hearing room at Capitol on Thursday. They traveled from Wichita to Topeka trying to testify on their daughter's behalf. They also attended a hearing at the Capitol in Nov. 2009.

While visiting a school with a relative, Arnold had an encounter with one of her older daughter.  Before that, Arnold had no idea what school her children attended since they were in foster care and she lived in another state.

She said she was happy to see her child and took 30 minutes to be  a mom during that chance encounter.    

Arnold said she tried intentionally the next day to see her child again but she was not allowed to.  She said it is her understanding there are now two warrants out because of the chance visit with her child.   The Sedgwick County Sheriff  issued an arrest warrant for her, Arnold said. 

A spokesperson for the Sedgwick County Sheriff’s office could not explain why Arnold’s court case number (2009-CR-003679) could not be found in a Sedgwick County District Court Search.

Police were looking to arrest her at a relative’s funeral earlier this month, Arnold said.  In a telephone interview, Arnold’s mother, Monica Arnold, said she knows the police have been watching their house in case her daughter visits.

This week in Topeka child welfare issues will be part of House Federal and State Affairs Committee hearings.  Monica McGill said she and her husband will try to attend those hearings and speak on behalf of their daughter.

Arnold said that with limited leave from work, and fear of being arrested in Kansas on the warrant, would keep her from the hearings, but she would like to attend to explain her case.

Last week Arnold’s picture and case were one of the “Featured Felons for this month” of the Sedgwick County Sheriff:

From Sedgwick County Sheriff's "Featured Felons for this Month"

From Sedgwick County Sheriff's "Featured Felons for this Month"

The “interference” mentioned above was for talking to her child who was in foster care.

Listen to Arnold’s testimony at the Joint Committee on Children’s Issues hearing on Nov. 30, 2009: Abused mom Cecillia Arnold lost her parental rights and wants kids back

We interviewed Arnold on Nov 30, 2009 after the hearing in the office of State Senator Oletha Faust-Goudeau (D, Wichita) at the Capitol:


Arnold’s parents, Albert and Monica Arnold, appear in the video above at 2:18.

Her parents traveled to Topeka again on March 4, 2009 to speak to the House Committee on Federal and State Affairs.  Since there was not enough time on the agenda to allow their testimony, we interviewed them after the hearing:


In a telephone interview Friday, Cecillia Arnold said had good parents but as a teenager she became pregnant.  She does not understand why her parents were also denied custody.

Arnold described maturing a lot through the legal process and admits she was not always respectful of the district attorney and the courts as a teen.  She wonders if the Sedgwick County District Attorney is treating her now the same way as when she was 16, even though she has matured a lot since then.  Arnold is now 24 and wants a different district attorney to review her case.

Arnold laments not having more money to fight her case in court to win custody of her daughters. 

Her dad’s final words in the video above:  “We don’t have money.”

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Arguments made by custody evaluators for not complying with discovery. Why their arguments are wrong.



By Elizabeth J. Kates, Esq.

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery I cannot release these materials because am ethically required by the APA "to make reasonable efforts to maintain the integrity and security of tests and other assessment techniques consistent with law, contractual obligations, and in a manner that permits compliance with the APA Ethics code" (Standard 9.11, Maintaining Test Security).

    The APA Ethics Code, Standard 9.11, Maintaining Test Security (Ethical Principles of Psychologists and Code of Conduct of the American Psychological Association http://www.apa.org/ethics/code2002.html).

Wrong. By its own language, the APA ethics code, an extra-legal code of ethics of a private trade association, requires compliance "consistent with law". In the law, there is a hierarchy of authority. Higher authorities control lesser authorities. At the top is the U.S. Constitution, and the case law interpreting it, recognizing fundamental rights of fairness, due process, and cross-examination. Below that are federal statutes that supersede state laws. Below that come state laws, constitutional, statutory, and case law. Below that come administrative regulations. At the very bottom is the law of private contract, such as the APA regulations -- or the contracts of nonparties who, with advance knowledge of those contracts, voluntarily, and for profit, have injected themselves, their data, and the purported conflict of interest they create into other persons' issues and litigation.

That was "purported conflict". There actually is no "conflict". Lower authorities that refer to exceptions "otherwise required by law" are indicating that they must be interpreted consistent with that higher legal authority, and that their mandates are subordinate to it. Thus, it is neither "reasonable" nor "consistent with law" to posture that a private contract might supersede the requirements of the constitution.Doing so repeatedly, as some psychs do in case after case, speciously pretending to ignorance and confusion, is frivolous, unsupportable, sanctionable conduct.

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery The APA ethics code is not merely private, because in this case it is incorporated into state law, either statutory, or in the regulations governing psych conduct, so it's also the law. I have to be governed by it. I understand your argument, but I want a court order. I don't want an ethics complaint that I have to defend, even if I ultimately prevail. For this reason, I cannot respond to a subpoena -- even one that is considered to have the force of law, but must [resist discovery and waste other people's time and money to] get a judicial ruling to resolve my [self-created] conflict.

    The APA ethics language is repeated in multiple states' psychology regulations, e.g. in Florida's Administrative Code 64B19-18.004.

Wrong. The Administrative Code regulating psychology, albeit a step up from private contract, cannot be interpreted by a thinking individual as law that competes with, conflicts with, or modifies higher legal authority or more compelling constitutional rights. The lower authority rules still must be interpreted in a manner that is consistent with those constitutional rights and superseding law. In the United States of America, we do not permit Court of Star Chamber proceedings, in which the underlying data upon which expert opinions are based, gets to be kept secret from the litigants. Since that's not an option, there's nothing for a court properly to decide.

The claim of having to defend a board complaint is spurious. The likelihood of a board complaint being prompted by response of a forensic witness to a subpoena issued in litigation is less than miniscule. Additionally, if a frivolous board complaint is going to be filed, no court order will prevent it, and it still will have to be defended (easily). Finally, the psych trade lobbies have pushed for all kinds of malpractice immunities to hinder litigants from lodging even valid complaints in connection with family law cases, so the protestation is ridiculous on multiple grounds.

    (In part, these codes and industry regulation schemes are self-serving trade promotion and protection. For example, see Tana Dineen: "Psychological Illusions: Professionalism and the Abuse of Power" Presented at the Symposium: (Ab)Using Power: The Canadian Experience. Vancouver, B.C. May 8, 1998. A revised version of this paper is available in (Ab)Using Power: The Canadian Experience. Boyd, Susan C., Chunn, Dorothy E. and Menzies, Robert (Eds). Halifax, NS: Fernwood Publ. 2001. Available at http://tanadineen.com/writer/writings/index.htm )

    See additional discussion below on the Florida code.

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery The APA Ethical Code prohibits psychologists from distributing test data and other assessment records to people untrained to use them, "to protect a client / patient or others from substantial harm, or misuse, or misinterpretation of the data or the test" (Standard 9.04a)

Wrong. This is a two-part assertion, and both parts are wrong. First, the APA ethics code does not control higher legal authority. If and to the extent it is incorporated into psychology regulations, it still does not control over higher legal authority. And, with regard to the presumed prohibition on delivering this material to litigants and their lawyers, the APA Code does no such thing.

          Second, laying aside that the APA guidelines primarily address clinical practice, there is no research evidence anywhere establishing generally that preventing the release of forensic psychology test data and other assessment records to "people untrained to use them" will protect anyone, or ever has protected anyone, or, conversely, that the release of such records in general has harmed or will harm anyone. While this all sounds plausible, and it is possible creatively to imagine situations in which such harm theoretically could result, it is simply not established as a general rule. (And there is nothing in psych evals that is worse than what comes into the public court records otherwise in these cases.) On the other hand, it is axiomatic in the law that deprivation of due process and the right of cross examination is a fundamental harm. In addition, misuse and misinterpretation of test data by psychs themselves, the lack of validity of many of the tests, the lack of interrater reliability, and high controversy over the efficacy and use of many of these tests also is well-known.

    See, e.g. Misuse of Psychological Tests in Forensic Settings: Some Horrible Examples Ralph Underwager and Hollida Wakefield, available at http://deltabravo.net/custody/misuse.php and http://www.ipt-forensics.com/library/special_problems13.htm

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery The National Academy of Neuropsychology (another professional psychology association) agrees with the APA position, which gives this position even more weight. The Specialty Guidelines for Forensic Psychologists and the Standards for Educational and Psychological Testing (SEPT) also agree.


Wrong. The psych's attempted "appeal to authority" is an error of both logical reasoning and legal reasoning. The National Academy of Neuropsychology is not a legal authority. The Specialty Guidelines for Forensic Psychologists is not law, and its authors are not legal authorities. A dozen more me-toos from psych trade organizations would add not a whit of weight.

    All these arguments stand as evidence that psychs by reason of their training do not know what constitutes legal authority, do not understand or appreciate the justice system, and do not belong in courts of law. See Child Custody Evaluations: Reevaluating the Evaluators

research - child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery The Specialty Guidelines for Forensic Psychologists and the Standards for Educational and Psychological Testing (SEPT) developed jointly by the American Educational Research Association, American Psychological Association and The National Council on Measurement in Education, "acknowledge the importance of maintaining test security and ensuring that only those qualified to interpret raw test scores be afforded the opportunity to do so, for the purpose of preventing harm".

Wrong. More appeal to (non)authority. And repeating the speculative assertion of prospective harm does not make it more correct. There is no research evidence anywhere establishing that preventing the release of forensic psychology test data and other assessment records actually protects or ever has protected anyone other than those with an interest in making money from selling or using these instruments.
         (To the extent that the trade promotion interests of a third party are in conflict with the fundamental due process rights of the actual litigants in a court case, it should be remembered that the third party voluntarily injected itself into the proceedings, knowing in advance what its interests were, and thus implicitly waived those interests in deference to the litigants' higher interests in due process and fundamental fairness.)

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery Failure to protect test security from unqualified users harms the integrity of tests because the tests can become invalidated through their placement in the public domain, thus depriving the public of effective test instruments.

Wrong. This argument confounds copyright interests ("public domain"), which are specific persons' and groups' profit-motivated interests, with generalized public harm from, presumably, the public's need to be able to take psych tests.
No research has established that any harm will come to the public if psych testing were not available. While it is plausible as an hypothesis, no evidence establishes this. Indeed, the public managed very well for hundreds of years without psych testing and there is no evidence (unlike in the fields of medicine or dentistry) that the public is better off, more well adjusted, healthier, or happier, because of the availability of psych tests.
The allusion to the copyright issue indicates more truthfully whose and what interests are of concern to the trade organizations and the test publishers.
Additionally, the argument raises the question of how it could be that these tests -- if presumably so reliable that they can and should be used in a forensic setting -- could be so lacking in robustness and so easily corrupted that they would no longer be useful if a member of the public, determined to respond honestly in order to obtain therapy, happened to see the test materials at some prior time because the materials were in a court file, instead of a college library, where any undergraduate psych major might peruse them.
The argument begs the question of what all the people who DO have knowledge of these tests do if these tests are presumably so needed by the public. Don't psychologists ever require therapy? How about other mental health professionals, school personnel, test publisher employees, researchers, judges and lawyers who deal with forensic experts, and every person who at some point in the past already took one of the tests? The argument is nonsense. The real interest at stake, the real motive for the forensic psych's recalcitrance, has nothing to do with concern for public welfare (and very likely not even so much concern for complying with test publishers' admonitions as interest in protecting the individual psych from scrutiny).

    (Also note the difference from the standpoint of a test taker between a test administered in a forensic setting and one administered for the purpose of receiving therapy.)

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery For example, the Law School Admission Test (LSAT) would be invalid if the answers to the LSAT were released and placed in the public domain.
Similarly, psychological tests cannot be made public without invalidating the tests, just as examinations are invalid if the questions are published in advance.

Wrong. The LSAT and other similar standardized tests are not analogous. First, they have sufficient validity that test questions can be changed from administration to administration without devastating the test. In other words, they are real tests, testing real things, with actual right and wrong answers. Second, the test protocols, scoring methods, past test questions, and practice questions routinely are distributed by the test publishers to future test takers, with no great hue and cry about public harm occurring because some people practice for them and others do not. And, even if the exact questions on the test about to be taken are not given out, the substance of what will be asked in the questions is -- and is expected to be studied.

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery It is not in the interests of non-psychologists to become familiar with test protocols and test items because they may eventually need to be tested, for example, if early dementia is suspected or if they develop a brain tumor, or have other possible needs that may arise for future testing such as a disciplinary proceeding before the State Bar. When people have previously seen the tests, they themselves cannot be tested in a valid way.

Wrong. What do psychologists, other mental health professionals, school personnel, test publisher employees, researchers, judges and lawyers who deal with forensic experts, and every other person who at some point in the past took one of these tests do "if dementia is suspected or if they develop a brain tumor"? The argument is nonsense -- and would be even if persons with brain tumors or dementia were clever enough to recall and set about cheating on psych tests (and wanted to), and even if there also were not actual medical tests for these things.

    (The hypothesis of lawyer regulators possibly requiring a lawyer in the future to take a psych test is not only fantasy, but a transparent attempt to align himself on a superior peer-level with the judge versus the attorneys in the case, hoping in this way to persuade him to quash the subpoena by planting the suggestion that the lawyers are seeking discovery for unethical reasons, not for the purpose of adequately representing their clients. If a psych makes this argument, it's a bell ringer that he's a slick willy, further supporting the need for full, unfettered discovery.)

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery SEPT standard 11.15 addressing the potential for misinterpretation of test data states that "Test users should be alert to potential misinterpretation of test scores and to possible unintended consequences of test use; users should take steps to minimize or avoid foreseeable misinterpretation and unintended negative consequences". [So we have to withhold them from litigants and their lawyers who would like to twist around my words and cross-x me on my conclusions.]

Wrong. Misinterpretation of test scores and unintended consequences of test usage is exactly why full and unfettered discovery of ALL underlying data and testing materials is mandatory whenever these things are used in a forensic setting. Because virtually always, that misinterpretation is by psychs, not by litigants.
No research has established any harm befalling the general public from lay persons misinterpreting these tests (or the handy computer printouts of suggested diagnoses). On the other hand, psych tests routinely have been manipulated and misused by forensic opiners in court cases -- and elsewhere -- to make specious arguments that have harmed many persons. The integrity of the court system takes so much priority over the asserted need for integrity of these dubious psych instruments that this argument should be a nonstarter for any judge worth his salt.

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery The rationale for test security protection as a public policy issue to prevent harm was upheld in Detroit Edison v. NLRB, 440, U. S. 301 (1979), where-in the United States Supreme Court ruled that test security pre-empted the release of test results in the form of data and records to someone other than a qualified professional.

Wrong. The case isn't close to on-point. It involved an employer with a testing program who rejected certain applicants, and who was sued by the union. The employer refused to disclose the test data of employees who had been promised confidentiality. The material implicated employee privacy concerns and was trade secret of the actual defendant in the case. It was not prepared by a forensic expert in anticipation of being used as part of the foundation of his paid opinion in a court case.
         Compare: "On Oct. 24, 1995, in the case of Sharon L. and Warren E. Campbell v. Barry A. Mashek (Iowa District Court Consolidated Law Case No. 65070), the Fifth Judicial District of Iowa found the section of the Iowa code restricting release of test data to be unconstitutional under both federal and state law. In that case, several experts, including the renowned testing expert Dr. Paul Meehl, testified by affidavit that, 'Allowing a psychologist to offer opinions at trial, which are not subject to full and fair examination, based on the underlying test data, is repugnant to the basic principles of science and would fundamentally hinder any neutral body, such as a jury, in trying to arrive at valid conclusions about the condition of an individual who has put their psychological condition at issue by bringing a lawsuit.'" -- Paul R. Lees-Haley, Ph.D., and John C. Courtney, Psy.D. in Are Psychologists Hiding Evidence?

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery SEPT standard 11.8 states that test users have the responsibility to respect test copyrights. When purchasing psychological tests, psychologists agree to uphold copyright laws.

Wrong. It is not a violation of copyright to turn over materials in response to a subpoena for discovery, or to make photocopies of the materials for use in connection with litigation. Period. This falls squarely within the fair use exceptions.
        If and to the extent the test publisher markets its products for its own profit for intended use in court, it also has knowingly, and in advance, thereby agreed to any publication that foreseeably ensues in connection with those court proceedings, because those proceedings ordinarily should be expected to comport with due process.
There is an easy solution if the test publisher or the forensic psych doesn't like this. Don't use these instruments for forensic work. It is validly argued that by doing so, the psych deliberately, and for his own financial gain and self-aggrandizement, cavalierly set in motion a contract violation of his own doing. He cannot, after doing so, and after setting up a [purported] conflict of interest -- a dilemma of his own making -- now place the burden of rectifying that malfeasance on other people's time, money, and fundamental rights. A subpoena quash or protective order is an equitable remedy -- and the psych and the test publisher have dirty hands and cannot come into court midstream, changing their tune and begging for protection at others' expense and detriment.

    (Compare the psychs' concerns with articles copyright. Not. http://www.thelizlibrary.org/liz/custody-evaluator-quotes.html#muchconcern )

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery Not to expose test materials to unauthorized non-qualified users, is part of my contractual obligation with the publishers, Psychological Assessment Resources (PAR) and Pearson Assessments, of all tests used in the present case.

Wrong. One: Private contracts of unrelated third parties who are not in privity with court litigants do not change these other people's constitutional rights.
Two: Litigants and lawyers are not "unqualified users" in connection with a court case. (See Lees-Haley and Courtney, above).
And three: If and to the extent the test publisher markets its products for its own profit for intended use in court, then it has knowingly, and in advance, thereby agreed to any publication that foreseeably ensues in connection with those court proceedings, because they may be expected to comport with due process. (Ifarguendo it has not done so, that means that the psych deliberately, knowingly, in advance, and for his own financial gain, breached his own contract. He thus has dirty hands and cannot obtain equitable relief from the consequences of his own wrongdoing at innocent others' expense and detriment.)

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery I have a [conveniently self-serving] letter here from the test publisher... the import of the publisher's position is that these materials are trade secrets.

Wrong. Material that is readily sold, that is available to competitors, that is in the publicly-accessible files of the Library of Congress, that is discussed in articles and published in books that also are available to the public, and that is not kept by the test publisher from tens of thousands of psychs is not a trade secret. While test publishers individually indeed may have various trade secrets, they do not include material in the possession of competitors and industry-wide third party users. Trade secret law is utterly inapplicable, because its purpose is to protect competition -- to protect one business from its competitors. Once material is shared within the industry, trade secret law no longer applies. Interestingly,psychs here have the same issues that magicians do, in that they attempt to keep material secret from the public but the material is well-known in and among the industry competitors.
        (As an aside, it also is not an argument to prevent discovery to claim that publications are available elsewhere. Even when they are, the specific materials within the particular possession of the psych remain discoverable to ascertain whether they have been altered, written on, contain notes, are complete, are up-to-date copies, and so forth.)

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery The materials under consideration can and will be released only to a qualified professional designated by the attorney.

Wrong. Neither the lawyer nor the self-represented litigant are obligated to breach attorney work product and disclose their consulting expert to the psych in order to obtain discovery. Nor are they obligated to expend yet more money and hire yet another psych, if they have not already done so, in order to obtain discovery. Moreover, even if they happen to agree with this demand, because it costs them nothing, because a consulting psych already is on the case and at the ready, the contortions of turning the material over to a member of the lawyer's litigation team, a contractor or employee working under and reporting to the lawyer, are inane and pointless. All of these persons, including the lawyer, are working for and paid by the client; they will be sitting 'round the table, discussing, copying, sharing the material, and consulting with each other in preparation for trial.
        (Lees-Haley and Courtney, supra, also argue that there is no actual definition of a "qualified professional" and that for purposes of litigation, the litigant and his lawyer are it.)

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery Should the Court decline the current motion to quash, it is requested that the Court issue a protective order requiring Dr. Yaddayadda's file first to be subject to in-camera review.

Wrong. This is a violation of the parties' due process rights. Discovery of these materials was a foreseeable event when the psych voluntarily, and for a fee, injected them into other people's court proceeding. The situation is not akin to necessary proceedings that might ensue when a patient's records are subpoena'd from a therapist. Here, there is no valid reason for the materials to be reviewed in advancein camera. Such a review implies a possible need to cull materials that might not be discoverable.
        In the latter case, the potential harm to the discovering litigant is balanced against the rights of an unwitting, involuntary person who actually may have trade secrets or privacy issues, but has had them unexpectedly subpoena'd. It is an effort of last resort that risks biasing the fact finder (the judge, in a custody case) with out-of-court material that has not been introduced into the proceedings by the parties. This risk makes it a procedure that is neither fitting nor appropriate under forensic circumstances, over and above it being a pointless drain on the court's and everyone else's time and resources. (That a court-appointed evaluator would request this indicates either deliberate recalcitrance or ignorance of a degree that calls into question the rest of his judgment.)

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery Should the Court decline the current motion to quash, it is requested that the Court issue a protective order that the file be distributed only to the attorneys representing each party in the current litigation, and that they be ordered not to disseminate it to anyone else.

Wrong. Lawyers are their clients' agents, not their handlers. The client is the principal, i.e. the boss.A lawyer not only is under an ethical obligation to communicate with his client, but as a practical matter, cannot adequately prepare his client's case without doing so. Moreover, the lawyer not only needs to disseminate the material to his client, but both need time to contemplate the material, review it multiple times as necessary, refer to it in deposition, and possibly consult with other lawyers or mental health professionals about it. It is the client's, not the lawyer's case.
        In addition, the client may wish to consult with another lawyer for a second opinion, who may not be disclosed to his attorney of record, or to discharge his lawyer of record and proceed with another lawyer, or on his own. This is nobody else's business.
        A lawyer may not enter into agreements that hamper his client in this way, or prevent his client from obtaining alternate counsel in this way, or which place the lawyer into a contractual conflict of interest with his own client, in favor of the psych or some test publishing company to whom the psych alleges he is beholden. Nor can a judge validly restrict the attorney-client relationship in this way, or countermand the attorney-client representation or rules of ethics that come from higher legal authorities.
        Finally, no one else is entitled to know -- or to receive assurances or explanation -- of the communications that will transpire between the lawyer and client, or the procedure they will follow in connection with preparing the case. These are matters that are absolutely privileged, and may not be encroached upon by a court (or any third party) as a favor to the psych in lieu of compelling him to fork over the materials or else be held in contempt or barred from testifying.
The psych in essence is claiming that he has deliberately set upon a course of action moving toward his own foreseeable breach of asserted obligations to third parties, and now -- with his dirty hands -- comes to the court for equitable relief on other people's dime and time. And to their detriment. (So much for the great professed concern for public welfare.)
        It is true that some courts grant these requests. Not infrequently they are doing so as a gratuitous concession to the psych, posturing as if there were some actual issue to resolve, because this permits them to not have to impose mandatory discovery sanctions against the ignorant losing party (the psych). This is wrong and indicates bias in favor of the forensic, who should know better, and who should be held to higher standards and required to pay the costs of the proceeding.
        Frequently too, because psychs' reports are turned in at the eleventh hour, things are in a mad rush to trial, and the parties' lawyers do not have sufficient time or manpower (or funds) to dork around having hearings and appeals on these issues (let alone antagonize the court-appointee psych who already is wielding unwarranted power with the judge), so in the triage of trial preparation, they choose their battles and relent. None of it is evidence that the psych, now emboldened by his lack of understanding of what has been transpiring (rather than being grateful -- as he should be -- to not have to be footing the bill for his recalcitrance), was correct, not even a little.

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery Should the Court decline the current motion to quash, it is requested that the Court issue a protective order that the attorneys may not keep copies of the file, and must return it after Dr. Yaddayadda's reported evaluation has been examined and cross-examined.

Wrong. It's evidence in the case (and the litigant paid for the copying charges). The material provides the foundation for evidence that may be introduced into the record in one way or another. It thus may be needed at a rehearing, at subsequent hearings, or on appeal. It is evidence upon which decisions may be made that thereafter will be the law of the case. Some courts, after the fact at some ostensibly safe point in time, may agree to seal a court record, but this is utterly inappropriate in any case in which a child's custody remains open for continued redetermination. It also unwarrantedly hinders litigants from filing justifiable board complaints where necessary for malfeasance.

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery Noted authorities on ethical principles of psychologists have stated that "Psychologists may ask the Court for [i.e. expect the court to give them] a protective order to prevent the inappropriate disclosure of confidential information or suggest that the information be submitted to another psychologist for qualified review" [Here's the proud psych's sample motion]

    C.B. Fisher, The National Psychologist, Test data standard most notable change in new APA ethics code (January/February 2003) , p 12, citing Ethical Practice in Forensic Psychology: A Systematic Model for Decision Making, by Bush, Connell, & Denny, APA Books, pp 106 (2006)

Wrong. On all counts. These are not authorities at law -- they are psychs with various self-interested motives. This is not "confidential information". And the third-party receiving psych doesn't apply in the forensic context.

    Interestingly, one of the rationales psychs used back when lobbying for increased forensic evaluations in the family courts was that these would protect litigants' confidential therapy records. The public stupidly went along with this reasoning, as if psychs have objective ways of knowing the invisible, as if they are similar to physicians who might do a blood test and diagnose a condition.

The APA ethics code also requires psychologists to adhere to certain guidelines and procedures in administering and interpreting tests. Without permitting the lawyer access to all the information required to enable him to investigate whether this was done and to cross-examine the psych, there is no way to establish compliance with these other ethical guidelines. Discovery is necessary to verify the psych's compliance with the ethical requirement that "Psychologists only use tests in appropriate ways" (such as when the use is empirically validated by research). Discovery is necessary to ascertain whether "Assessment results have been interpreted in light of the limitations inherent in such procedures." And, among other things, discovery is necessary to ferret out bias, corruption, and incompetence -- which are rampant among psychologists in family court.

    See 1987 Grisso, "The Economic and Scientific Future of Forensic Psychological Assessment, American Psychologist:

"There is almost no empirical information concerning how to use parents' Wechsler or MMPI results to make inferences about their abilities to perform specific parenting functions."

    See 1993 Brodzinsky, "On The Use and Misuse of Psychological Testing in Child Custody Evaluations," Professional Psychology: Research and Practice:

"Many lawyers and judges have an unrealistic view of what psychological testing can accomplish."

"There is often an assumption, sometimes expressed overtly, that testing provides a scientific foundation for the forensic evaluation. In other words, it allows the evaluator to go beyond the subjective nature of 'clinical impression' or 'clinical judgment' that is inherent in interviews and observations."

"There is a view that psychological tests allow the evaluator to be truly objective and therefore unbiased. This assumption is, of course, naive."

    See 1997 Melton, Petrilla, Poythress, and Slobogin, Psychological Evaluations for the Courts, 2d ed.:

"It is our contention that such tests are often used inappropriately. Tests of intellectual capacity, achievement, personality style, and psychopathology are linked only indirectly, at best, to the key issues concerning custody and visitation."

"Apparent practices notwithstanding, we recommend the use of traditional psychological tests only when specific problems or issues that these tests were designed to measure appear salient in the case."

FLORIDA LAW (similar to a number of other states): Florida Administrative Code, 64B19-18.004 Use of Test Instruments... There are three exceptions to the prohibition against the release of test data. What are they, what do they mean, why are they there, and when do they apply:

    "A psychologist who uses test instruments may not release test data, such as test protocols, test questions, assessment-related notes, or written answer sheets, except

    1) to a licensed psychologist or school psychologist...

To the extent not superseded by federal medical privacy law, the first exception above is what you do with records requested by a patient or his representative, when you are the therapist and there is no court proceeding.

    2) after complying with the procedures set forth in Rule 64B19-19.005, F.A.C., and obtaining an order from a court or other tribunal of competent jurisdiction or

The second exception is what you do when your or your patient's confidential therapy records are subpoena'd in litigation that otherwise has nothing to do with you and in which you were not planning to testify.

    3) when the release of the material is otherwise required by law.

Item #3 is not redundant, and doesn't mean the same thing as #2, "get a court order." The third exception is for what you do when you are a forensic witness in a court case, and receive a subpoena. FORK IT OVER.

Maintaining the transparent, fundamentally fair operation of our justice system is not merely the law; it's a precept upon which the United States of America was founded.

child custody evaluations - psychological testing in court - forensic testing - release of test data in discovery This judge... that court... this lawyer... that judge... this court... said, commented, did, didn't, agreed, understood, cooperated, granted, gave, told, exalted, praised... me-me, me me, meme... blah-blah, blah yadda, blah-blah...

Wrong. Judges sometimes are. That's why we have appellate courts. Lawyers too. That's why I've written this. And psychs? Count on it. It's time to get the psychs out of the family courts.

See: Florida Handbook on Discovery - 2007

And: Are Psychologists Hiding Evidence?
Therapeutic Jurisprudence Index
Are Psychologists Hiding Evidence?
Child Custody Evaluations -- Reevaluating the Evaluators
Custody Evaluation Guidelines -- Reevaluating (mirror)
Right of First Refusal in Parenting Plans
Child Custody Evaluators "In Their Own Words"
Parenting Coordination, a bad idea
Parenting Coordinator Practical Considerations
Those Joint Custody Studies

Male versus Female: who is more likely to perpetrate child abuse


Male versus Female: who is more likely to perpetrate child abuse

(When doing the math, adjust the figures as your actual study shows them.)

Do you believe that women are "more likely" than men to abuse children? That's incorrect. According to the National Clearinghouse on Child Abuse and Neglect there are more incidents of abuse of children (including both physical abuse and neglect) perpetrated by women than by men. But that does not tell you the "likelihood" that you are looking for, which is the percent of women caregivers who commit child abuse versus the percent of men caregivers who commit child abuse.More women than men care for children, and more children are cared for by women than are cared for by men. So if the "statistic" you are looking for is not raw numbers of incidents (which merely would be the "likelihood" that any given incident of abuse has been perpetrated by a man or a woman), and if you came to this page because what you really want to know is whether women or men are more likely to be dangerous when they are caring for children, whether it is women or men who are "more likely" to abuse children, then you need to do some math. The raw numbers of incidents by themselves don't tell you this. So let's do the math:

Assume that at any given time, 90% of all children who are in the care of one caregiver are in the actual (not "constructive") physical care of a woman (parent, grandparent, teacher, babysitter, day care provider, nurse, etc.), and that 10% are in the care of a man. (This is a conservative estimate.)

Echidne of the Snakes Statistics PrimerAssume that when a couple together are caring for children (e.g. married parents, grandparents, or a parent and stepparent), if the man perpetrates abuse it's extremely unlikely that the woman also will not be charged with either accomplice physical abuse or failure to protect (neglect), so these statistics are a "wash" and we are not considering them. (In reality, it's next to never that men are charged for abuse perpetrated by a woman when there is a couple caring for a child, Rusty Yates case in point, but this anomaly favors men and artificially increases the relative portion of total abuse reported as being perpetrated by women, so we will err in that direction. We also are ignoring "gang" abuse and other kinds of individual incidents of reported abuse involving two or more non-coupled adults against children, which are, at any rate, relatively rare.)

The NIS-3 Study on child abuse statistics, mother households, father householdsNote that each counted incident of reported abuse is per occurrence per child, and not per perpetrator. (So that, e.g. one woman caring for 4 kids who didn't send them to school or didn't take them to the dentist when she should have in the opinion of some DCF worker is responsible for four reported counts of neglect-type abuse "perpetrated by a woman," whereas one man's rape of one child would be one count of abuse in the reported statistics.)

Assume that per caregiver, when they do care for children, women on average care for 2 children while men care for 1 child. (Women are much more likely than men are to care for groups of children rather than one child, and even when men do care for more than one child at a time, women are much more likely to care for large groups, both in a parental capacity in families in which there are more children as well as third party caregiving.)

Assume that for every 80 women who routinely directly care for children alone and spend significant time with them, there are 20 men who directly care for children alone and spend significant time with them. Thus, in the population of all persons who routinely care for children on their own, of every 100 persons, 80 are women and 20 are men, or put another way, there are 4 women caregivers for each 1 man caregiver. (Do not confuse this statistical base with the 90% children figure, above, which reflects individual women caring for more than one child at a time. If you are surprised at this 80-20 figure, and assumed it should be closer to 50-50, thinking of "parents," remember that children in the active care of a couple together are being statistically eliminated as a wash -- a simplification that in these calculations will err in favor of men -- and also don't forget the vast numbers of unwed and divorced mothers who care for children without male assistance, the stepmothers who care for children while fathers are away or at work, and the sex of third party caregivers.)

Assume (without regard to kind of abuse, and without correcting for qualitative differences by removing or differentiating add-on and minor neglect charges from affirmative acts of physical abuse), that counting reported incidents of abuse shows that 70% of all incidents of abuse were committed by women and 30% were committed by men. (This is grossly skewed to err in favor of men, see below.)

Set up a ratio to compare men- versus women-perpetrated abuse. Thus:

Based on the foregoing, women abusers occur at a comparative rate of 70/80 in the population where the numerator is percent of incidents of abuse, and the denominator is total woman population caring for children; and men abusers occur at a comparative rate of 30/20 in the population where the numerator is percent of incidents of abuse, and the denominator is total man population caring for children, or, in order to more easily compare this ratio with the woman abuser ratio, making the denominators equal, 120/80.

The total abuse would be 120 + 70, or 190. Therefore, in any given population of child caregivers, adjusted to reflect greater likelihood of women being the caregiver, men represent 120/190 of total incidents of abuse perpetrated and women represent 70/190 of that total. The comparative likelihood that a man is the abuser then is represented as .63, and that a woman is the abuser as .36.

In other words, using these conservative figures, and without yet correcting for the fact that for each woman caregiver there are more children and without recognizing different kinds of abuse, in the population of all caregivers, men are nearly twice as likely to abuse children as are women.

Now adjust for actual numbers of perpetrators.

The incidents of abuse in women's 70/80 above ratio actually represent only 35 individual women caregivers (because each woman is caring for an average 2 children.) The incidents of abuse in men's 30/20 ratio above represent 30 man caregivers (because, above, they have an average of 1 child to care for compared with 2 children cared for by a women.) Because we are looking to compare perpetrator information gleaned from statistics using incident reports for each child, a different statistical population base, we need to adjust for this.

Based on the foregoing, then, individual women perpetrators actually will be represented by a ratio of 35/80and men perpetrators will occur with a comparable frequency of 30/20, or, adjusting the denominators so that we can better compare the ratios for women and men, we have a ratio of 120/80 for men compared with35/80 for women. Individual men then represent 120/155 of total individual abusers, and women are 35/155 of total individual abusers.

Thus, the adjusted likelihood that a man is an abuser is .77, and that a woman is an abuser is .23. In other words, the "twice as likely" calculation was premature; individual men caregivers are 2.34 times more likely (or 3.34 times as likely) as a woman is to be an abuser.

Compare the above two calculations with the National Clearinghouse statistics that "[a]mong children in single-parent households, those living with only their fathers were approximately one and two-thirds times more likely to be physically abused than those living with only their mothers."

Now adjust again to take into account time and opportunity.

While we cannot say that if an abuser cares for a child for more time, it's more likely that abuse will be perpetrated by that abuser, it does seem reasonable to suppose that it has some effect. The assumed fact, above, is that any given time 90% of children who are in the care of one caregiver are in the care of a woman, or stated another way, women are performing 90% of child care once children in the care of couples are eliminated from consideration (the statistical wash.) If there is a direct correlation, and if men perpetrate 30% of child abuse, then men perpetrate abuse 30/10 of the time, and women perpetrate abuse 70/90. Adjusting the denominators, per time men are caring for children, we get a whopping 270/90 for men. That makes men 3.86 times as likely as women to perpetrate abuse given the same amount of time in caregiving. If we now correct this figure to adjust for actual numbers of individual caregivers this represents, remembering that there are, mathematically, 4 women caregivers (above) for every 1 man caregiver, we also properly should adjust the time/opportunity ratios to account for that.

So per individual, men abusers are represented by a risk ratio of 1080/90 compared with women who are70/90.

So what we have calculated thus far is that, IF, according to incident reports, 70% of all child abuse is committed by women, then adjusting for the different statistical populations and applying our stated assumptions, men are 12 times as likely as women to perpetrate abuse against children, or put another way, they are 1100% more dangerous to children than are women.

However, this calculation still errs on the side of being too conservative. We haven't corrected for kind of abuse, or seriousness of outcomes.

In addition, the raw figures actually don't show that 70% of all incidents of child abuse are perpetrated by women -- even when including reported "abuse" such as accomplice abuse, failure to protect, and minor neglect such as leaving a child unattended where no harm has occurred. They don't show that.

The statistics you will see from, e.g. the National Clearinghouse on Child Abuse and Neglect show that child abuse perpetrated by women represents (depending on report) between 50-70% of total abuse, usually closer to 50%. And if we remove from those reports, those minor neglect charges without notable outcomes and charges such as "failure to protect" that women -- and notably battered women -- but very few men tend to be charged with, we probably come down to something closer to 50-50, if it is even that much, if indeed women are the perpetrators of even 50% of total numbers of real abuse and neglect. Which means that in reality, men are not "12 times as likely as women to perpetrate child abuse" but some multiplier significantly greater even than that. In other words:

Children are at astronomically greater risk of physical abuse in the care of a man than in the care of a woman.

Myth -- Mothers perpetrate more child abuse than fathers, which is one reason that children are at more risk of abuse in father-absent homes.

Fact: "Children living with their only their mothers experienced maltreatment under the Harm Standard at a rate of 26.1 per 1,000 children. Children living with only their fathers: 36.6 per 1,000."

Fact: PHYSICAL ABUSE: Children living with only their mothers: 6.4 per 1,000 children. Children living with only their fathers: 10.5 per 1,000 children. "When specific types of abuse under the Harm Standard are examined, it is apparent that the findings described in the previous paragraph stem from the disproportionate incidence of physical abuse among children in father-only households..."

Fact: NEGLECT: Children living with only their mothers: 16.7 per 1,000 children. Children living with only their fathers: 21.9 per 1,000 children.

Fact: EMOTIONAL NEGLECT: Children living with only their mothers: 3.4 per 1,000 children. Children living with only their fathers: 8.8 per 1,000 children.

Fact: SERIOUS INJURIES: Children living with only their mothers: 10.0 per 1,000 children. Children living with only their fathers: 14.0 per 1,000.

Fact: MODERATE INJURIES: Children living with only their mothers: 14.7 per 1,000 children. Children living with only their fathers: 20.5 per 1,000.

Fact: ALL MALTREATMENT: Children living with only their mothers: 50.1 per 1,000 children. Children living with only their fathers: 65.6 per 1,000.

Fact: ALL ABUSE: Children living with only their mothers: 18.1 per 1,000 children. Children living only with their fathers: 31.0 per 1,000."

Most often children die at hands of young men



Most often children die at hands of young men

By Dawn Gagnon
BDN Staff

BANGOR, Maine — Fathers and father figures are most often the perpetrators of severe physical abuse of children, including cases that result in death, according to law enforcement and child abuse authorities in Maine.

On Feb. 23, Damien Christopher Lynn became the first Maine child to die this year as the result of severe abuse. He is the 12th child under age 18 to die as the result of homicide in the state since 2005.

According to authorities, Damien Lynn suffered injuries including brain trauma, a broken arm and broken ribs.

The man police have accused of killing the boy, Edgard Anziani, was the boyfriend of Damien’s mother. He lived on and off with the mother and child for four months before the homicide, according to court records. Anziani, who is from Lawrence, Mass., was arrested by federal authorities Monday in Bladensburg, Md. He waived extradition and is expected to appear in a Bangor court next week.

Statistics maintained by the Maine Department of Public Safety show that 12 children have died as the result of homicide or manslaughter over the past five years. The numbers show that the youngest, the most vulnerable, are most at risk. Eight victims were under age 3, and most of the children died at the hands of a parent, stepparent or the partner of a parent, according to Stephen McCausland, spokesman for the Maine Department of Public Safety. Click here to see a list of Maine homicide victims under age 18 from 2005 to present.

“We average about 24 homicides over the course of a year, and in a typical year, we usually have at least a couple that are children,” McCausland said.

The exception was in 2008, McCausland said, when five children were murdered in Maine.

“The vast majority are children who died at the hands of a young man, usually the father or the mother’s boyfriend,” he said.

Dr. Lawrence Ricci of Portland, the state’s only child abuse pediatrician and an expert often consulted by law enforcement officials and others for his 22 years of experience in the field, agrees.

“That’s certainly the case in Maine, and it’s certainly the case nationally,” Ricci said Friday in a telephone interview.

In Maine and in the United States, the perpetrators of serious physical child abuse or homicide are most likely fathers, next are nonbiological father figures such as stepfathers or mothers’ boyfriends, and then sitters, Ricci said.

Mothers are the fourth-most-likely perpetrators and “well down on the list,” he said.

The dozen children who died as the result of severe physical abuse “are just the tip of the iceberg,” Ricci said Friday. Ten times as many Maine children end up in the hospital because of severe physical abuse, and 10 times more are injured but never taken to the hospital, he said.

Common risk factors for child abuse include parents who have been victims themselves; parents who have been in the child welfare system, such as foster care; parental drug and alcohol abuse; criminal history and prior child protective history, Ricci said.

Maternal depression and socioeconomic stressors also are factors, he said.

“Those are some of the big ones,” he said, adding that poverty plays a large role in the problem.

“My colleagues around the country and I have seen almost a doubling in the last two years of significant abuse of babies, we think because of the economic downturn, both because of the economic stress it puts on families directly and because of the loss of available support services,” Ricci said.

“When you can’t provide the basic support services for families, the babies suffer,” he said, adding that the state has had difficulty providing those services.

To that end, Ricci and other child advocates in Maine are hoping that the recently launched “Period of Purple Crying” program, which now operates largely through donations and volunteers, will have an impact.

The educational campaign seeks to teach new parents that prolonged, intense crying often is normal and that parents and caregivers need to give themselves a break when the stress that results from the crying threatens to overwhelm their self-control.

A similar program introduced in upstate New York a few years ago brought about a 50 percent reduction in the number of serious injuries from shaken baby syndrome, Ricci said.

Though the “Period of Purple Crying” program has been available at hospitals in many parts of Maine for more than a year, Ricci said it is still too early to say how effective it has been.

One service that Ricci said he would like to see one day in Maine is long-term home visitation that would specifically target high-risk families. Ideally, the service would be provided until the child reaches school age before development problems from abuse and neglect have a chance to set in.

“Once they do, they are almost impossible to reverse,” he said.

Though it likely wouldn’t have saved Damien Lynn, state law requires a long list of professionals to report suspicions of child abuse and neglect or when a suspicious child death occurs.

The list includes law enforcement officials, clergy, municipal and state officials, school staff and bus drivers and bus attendants, medical and emergency medical professionals, social service workers, mental health providers, child care workers, summer camp personnel, domestic violence counselors, sexual assault counselors, film and photographic print processors, court-appointed guardians or advocates and any other person who is responsible for the care or custody of a child.

Those who are legally required to report suspicions of abuse also must make a reasonable attempt to take color photographs of any areas of trauma that are visible on a child, the law states.

To report child abuse or neglect, call the Maine Child and Family Services hot line, which is staffed 24 hours a day, seven days a week. The toll-free number is 800-452-1999, and the TTY line for the deaf and hard of hearing is 800-963-9490.

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American Judges Association Benchmark on Domestic Violence



Domestic Violence

Domestic Violence & The Courtroom

Table of Contents
How Judges Can Help
Do Not Blame The Victim
No One Is Immune / Everyone Suffers
Recognizing the Violence
Forms of Emotional Battering
Battered Woman Syndrome
Other Forms of Violence

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NCJFC Warns family court judges NOT to accept claims of "parental alienation syndrome" and "parental alienation" in court because of it's use by Abusers to Get Child Custody Away from Their Victims.

The American Judges Association,

The National District Attorney's Association,

 Volume 16 Number 6 Parental Alienation Syndrome: What Professionals Need to Know Part 1 of 2  and

 Volume 16 Number 7 Parental Alienation Syndrome: What Professionals Need to Know Part 2 of 2

The National Council of Juvenile and Family Court Judges National Council of Juvenile and Family Court Judges Rejects PAS ... have all debunked "PAS" and the latter has warned family court judges NOT to accept claims of "parental alienation syndrome" and "parental alienation" in court because of it's use by abusers to get child custody away from their victims.:

2009: A Judicial Guide to Child Safety in Custody Cases (pdf)

National Council of Juvenile and Family Court Judges Family Violence Department

Page 12:

C. [§3.3] A Word of Caution about Parental Alienation34

Under relevant evidentiary standards, the court should not accept testimony regarding parental alienation syndrome, or “PAS.” The theory positing the existence of PAS has been discredited by the scientific community.35 In Kumho Tire v. Carmichael, 526 U.S. 137 (1999), the Supreme Court ruled that even expert testimony based in the “soft sciences” must meet the standard set in the Daubert case.36 Daubert, in which the court re-examined the standard it had earlier articulated in the Frye37 case, requires application of a multi-factor test, including peer review, publication, testability, rate of error, and general acceptance. PAS does not pass this test. Any testimony that a party to a custody case suffers from the syndrome or “parental alienation” should therefore be ruled inadmissible and stricken from the evaluation report under both the standard established in Daubert and the earlier Frye standard.38

The discredited “diagnosis” of PAS (or an allegation of “parental alienation”), quite apart from its scientific invalidity, inappropriately asks the court to assume that the child’s behaviors and attitudes toward the parent who claims to be “alienated” have no grounding in reality. It also diverts attention away from the behaviors of the abusive parent, who may have directly influenced the child’s responses by acting in violent, disrespectful, intimidating, humiliating, or discrediting ways toward the child or the other parent.

The task for the court is to distinguish between situations in which the child is critical of one parent because they have been inappropriately manipulated by the other (taking care not to rely solely on subtle indications) , and situations in which the child has his or her own legitimate grounds for criticism or fear of a parent, which will likely be the case when that parent has perpetrated domestic violence. Those grounds do not become less legitimate because the abused parent shares them, and seeks to advocate for the child by voicing his or her concerns.

Their is a crisis in our Family Courts; Abusers are getting custody of Children

More information:

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