April 18, 2008

A Custody Battle in Texas

Monique Chartier

The custody hearing over the 416 children removed from the polygamist sect by the State of Texas got off to a hectic start.

A court hearing to decide the fates of hundreds of children seized from a polygamist retreat was off to a chaotic start Thursday as hundreds of lawyers in two different locations demanded to study the first piece of evidence before it could be introduced.

State District Judge Barbara Walther called a recess 40 minutes after the hearing began in what could be the nation's largest child custody case. She wanted to allow the 350 lawyers spread out in two buildings to read the evidence and decide whether to object en masse or make individual objections.

The hearing resumed about an hour later.

The focus of this post is principally the legal issues before Judge Walther. But it is difficult not to make a comment in passing about the sect itself. Legally admissable evidence as to the most horrifying allegation about the sect, the forced marriage and the associative abuse of underage girls, has yet to be brought forth. So we will set that aside for the moment. What we do know is that

Members believe a man must marry at least three wives in order to ascend to heaven.

Women are meanwhile taught that their path to heaven depends on being subservient to their husband.

Commenter Rhody is down on judgmentalism. Am I being judgmental if I say that treating children like trading cards is disgusting?

Additional details on life at the ranch began to emerge as child welfare investigator Angie Voss testified.

She said that if one of the men fell out of favor with the FLDS, his wives and children would be reassigned to other men. The children would then identify the new man as their father. Voss said that contributed to the problem of identifying children's family links and their ages.

And caused the state to ask for genetic testing of the children, a request upon which Judge Walther has not yet ruled.

As to the legal issues to be addressed by this hearing, one of them will not be religion.

"The court is not in the position and certainly does not intend to rule about someone's religious practices and their freedom of religion," said Judge Walther.

The judge herself described the core issue which, of course, is custody.

What I'm trying to get to is whether or not these children should be returned to their parents or whether there's enough information that they need to be retained in the custody of the (child welfare) department

A component of this decision is that

Under Texan law, girls younger than 16 cannot marry, even with parental approval.

* * *

Texas law states that if sexual abuse is happening in a home and a parent does not put a stop to it, then the parent can lose custody of the child.

Marrying off an underage daughter, therefore, would constitute failure to stop sexual abuse of a child.

A slightly exasperated Judge Walther continues.

The real issue we haven't even been able to get to, and the issue is whether or not the court can return these children to their parents. To the extent that you all want to argue about procedure [I'll let you)] but you need to help me focus on what the issue is: Did the department act on evidence in a way that, based on the light of day, is insufficient for the department to continue to be the temporary conservators? This is a continuation of the emergency process and it is designed to have a little looser procedure, so that the parents are not hampered.

An important part of the evidence would potentially be contributed by the 16 year old girl whose call to a family violence shelter led to the raid of the sect. She has not yet been identified, however, and some sect members are saying that she does not exist, which would place the raid and the removal of the children on shaky legal grounds.

One aspect upon which the judge must rule is a little baffling.

One of the judge's tasks is to determine whether or not the ranch constitutes a "home" under state law.

Does this mean that if the ranch was not a home, the parent did no wrong in marrying off an underage daughter?

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I've been reading the hundreds of comments from outraged citizens at:
Also, I've seen the video of Texas Foster Care system horrors at:

Whew! What a situation!

Posted by: Christian Prophet at April 18, 2008 2:40 PM

Are the mothers brainwashed, or knowingly covering up heinous criminal activity?
These guys have made it in the world as thugs: Michael Savage is defending them.

Posted by: rhody at April 18, 2008 11:22 PM

Marry three wives (all at once?) to get to heaven?
Are you crazy? Send me to the other place.

Posted by: Jim Cavanaugh at April 19, 2008 2:37 PM

(Sorry to be late to this discussion.)

"Michael Savage is defending them."

So he was being serious, Rhody? I listened to him for a few minutes on Friday because Matt Allen was his lead in. When Savage said that about the Texas sect, I couldn't tell if he was being serious or sarcastic, especially because he followed with condemnatory remarks about another child-abuse situation (forgot which one).

Look, all the evidence is not in yet and innocent until proven guilty. But it's not looking good. Certainly it is too early to defend the sect as Savage is doing.

Posted by: Monique at April 20, 2008 9:50 AM

Whaaa ...? That's not heaven on earth, Mr. Cavanaugh?

Posted by: Monique at April 20, 2008 10:26 AM

--> "One of the judge's tasks is to determine whether or not the ranch constitutes a "home" under state law."

The ranch, or compound, is communal and as such may not quaify as a single private home, I'm speculating.

A big issue here is parental status. For a man to "give up" his children, certain lawful steps are required. Children are not slaves; they are neither the property of the husbands nor of the religous organization. Then, for another man to "take up" the children, properly relinqushed, an official adoption must be decreed lawfully.

It does not appear that the basic steps were followed, hence the fallback of "biological parentage" as per the DNA testing.

The religious organization appears to have acted as a quasi-government unto itself. On that basis, the legitimate government is correct to assert its authority.

However, in my opinion, this is a huge over-reach. If something truly horrific is not pinned to somone, somehow, this is going to backfire bigtime. On the other hand, with 400-plus lawyers on the scene, can it get any more inviting for abuse and negligence?

Imagine a government taking the child population of a small town or a neighborhood in the suburbs. This extraordinary measure demands of authorities that some pretty high hurdles be cleared before and during the event.

I don't think an anonymous phone call would -- or should -- suffice. I don't think that seperating children from their parents (or caretakers) follows from the desire of authorities to investigate. This runs the risk of becoming a fishing expedition that comes up empty.

So the pressure will be huge on the family law system to justify this action. And that places hundreds of "careers" on the line -- regardless of the potential harm to children and parents as a result of the heavy handed intervention.

The inherent problem with polygamist communities is the propping up of an entity that acts like a parrallel government. This is true of almost all variations on the communal form of polygamy.

Typically, it segregates the sexes to a degree that undermines the family founded on the union of the sexes. It tends toward diminishing responsible procreation (which entails the undermining of sexual liberty, bearing and educating children, caring for the well-being of children as unique individuals rather than as cogs in a wheel, and so forth). The case against polygamy is based on the case for marriage as the integration of the sexes and as the contingency for responsible procreation.

The case also, at its heart, is about the principles of self-governance. What has been revealed, so far, points to how a quasi-governmental authority has undermined liberty, marriage, family, and the safety of our most vulnerable citizens.

Now we have the state intevening to sort out what marriage and its special status sorts out almost automatically for society. Who is actually married? Who has parental status for this or that child? Have the children been relinquished and adopted? The mess is not just about regulations and an antipathy toward a religous group (and that group's antipathy toward the outside world), but that's what will be depicted at center stage in this circus of events about to unfold during the next 2-3 years.

Posted by: Chairm at April 25, 2008 12:29 AM