Check Sound

Check Mike

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Today’s Lecture:

The Politics of Children

1. Custody

2. Support

3. If time, starting criminal law

Lecture Organization:

• Class Announcements

Time

• Child Custody

• Family Transfer Payments

• Reform

• Criminal Law – Elements & Defenses

• Review

• Final Thoughts

Class Announcements

1. Quiz is up

-- 29 or 30 questions

-- 58 minutes

-- all lectures except Tuesday’s is online

-- this week’s lectures will be up Friday

2. Final exam

-- expect questions that show you either attended or listened to what you missed

-- you are welcome to bring your book in, but nothing else

Paper Deadline

Any Questions?

Pre-final quiz

Due Date

Class Announcements

3. Your Paper

-- 1 inch margins

-- Times New Roman Font, 12 pt. (no courier)

-- page numbering

(number from the start of the text to the end of the text. Do NOT number cover pages or any back material)

-- don’t put the things in binders!

Grade penalized one half step for missing formatting requirements

Time

Child Custody

1. The concept of “custody”

-- placed into some else’s rule [explain jail]

2. Four basic legal viewpoints throughout history

-- women are the natural child custodians. “The great nurturers.” This view dominated in the 1800s.

-- women should receive custody by virtue of their ascribed gender role

The Patriarchal View

Child Custody

-- not a test, it is a conclusion

-- there are factors and standards that are used, but ultimately the “best interest” standard is simply a conclusion the judge makes about who he/she thinks would be better

-- developed in reaction to the best-interest standard. This was thought to be less result-oriented

-- you get custody if you are already providing the primary nurturing care of the child [explained in a moment]

[mention that the best interest test used caretaking as a criteria, but not necessarily controlling]

“The Best Interest of the Child”

Primary Caretaker

Child Custody

-- neither is the custodian; parenting is shared. [explained later]

“Shared Parenting”

-- Having looked at the four options, let’s examine the primary caretaker standard more closely

-- basic idea: whoever is doing the nurturing care of the child should continue to do it.

-- “Iron rule” for young children; “strong presumption” for children between 6 and 13.

(in many states, children 14 or over get to elect which parent they want to live with)

Primary Caretaker:

Question:

Is this a sound idea?

Answer:

Seems quite sound outside the nuclear family. But inside, is an adjustment

period all that bad so long as you are adjusting to your

other parent

Child Custody

The official test:

A. Food

B. Clothing

C. Hygiene

D. Medical Care

E. Social Interaction

F. Caring

G. Discipline

H. Education

I. Other

Preparing or planning meals

Purchasing, cleaning, taking care of

Bathing, Grooming, DressingNursing functions, trips to physicians offices, etc.

Arranging for interaction among peers, transporting to a friend’s house, to a club scout meeting,

etc

Arranging for baby sitting and day care; putting the child to bed at night; attending to the child in the middle of the night; waking the child up in the

morning

Informing about and facilitating religion, culture, social issues, etc; teaching elementary skills, helping

with homework, etc

Teaching manners, toilet training, etc

Question:

Is there anything wrong with this criteria?

Answer:

Might be a little heavy on homemaking labor. What

about facilitating the child’s competition and motor

skills? (coaching the team, throwing a baseball, etc.).

What about instilling character or decisiveness?

Etc.

Child Custody

Child Custody

-- Having looked at primary caretaking, let’s look at the new kid on the block

-- Parenting is shared. Neither parent gets “custody”

-- You have to submit a “parenting plan” to the court

A. number of overnights

B. sphere of authority

C. [explain your parenting plan]

-- regular contact [mileage, distance]

-- custodial authority during my time.

(have a look at how wonderful she turned out)

Shared parenting

Note how offensive the idea of “visitation.” That all the parent is, is a “visitor.” Prisoners get visitation, not children.

-- if litigated, parenting overnights based upon:

A. Primary Care Taking Standard [unfortunately!]

B. “Special bond”

-- Basic idea: men are trying to get into the nurturing game, just as women shed their ascribed roles and went into the “provider” game

Child Custody

Time

Family Transfer Payments

-- Having looked at “custody,” let’s examine what others call “child support.”

(We’ll use a different vernacular: “family transfer payment.” This is what it actually is -- transfer payment from one spouse to another)

Question:

How large should a family transfer payment be?

Parent #1 Parent #2

Frodo

The law (unfortunately) will allow one parent to dominate

Will be designated the primary physical “custodian”

$1 million in annual income

(pro-football athlete)

$0 in annual income

Question:

What is the money spent on?

• food

• clothing

• school books

• medical insurance

• child care?

• activities, etc.

Question:

Should Frodo’s financial care be the

same as that for ordinary children?

Question:

How much should be awarded to Frodo’s

“custodian?”

-- There are three possible (theoretical) answers as to how much money should be transferred:

let’s look at some high profile cases …

1 Transfer to the primary “custodian” only what is minimally required to raise a child (government welfare guidelines)The Basic Need

2Transfer to the primary “custodian” what would have been spent on the child but-for the marital breakup. (child support as expectation).The Expectation

3Transfer a percentage of your lifestyle to the primary “custodian” (child support as standard of living) Standard of Living

Family Transfer Payments

Question:

Is there anything wrong with this last option??

Answer:

Involved fathers are already spending directly to enrich their kids lives

-- Brazilian Model

-- 7th child???

-- She has a strong market potential

-- He has waaay to much money

-- She sued for $35,000 a month

-- Court temporarily ordered $10,000 a month

-- He was asking to lower it to $5,600.00 a month

-- They settled out of Court

Mick Jagger

• Hooks up with a professional tennis player (blonde) who was about 48 years younger than he was. (Lisa Bondra)

• a child was born in 1998

• In 1999, a prearranged 30 day marriage ceremony was performed because Lisa wanted to “legitimize” the child.

• Kerkorian voluntarily began paying $20,000 a month.

• He later raised it on his own to $50,000 a month.

• When the child is 3, she petitions to raise the support to $320,000 a month

Kirk Kerkorian

the expenses• $144,000 monthly travel

• $14,000 monthly for “play dates”

• $7,000 monthly for charity

• $102,000 monthly for food

• $1,400 monthly for laundry

• $1,000 for videos and books

• $436 for care of the pet bunny

Kirk Kerkorian

• During the Court battle, Kerkorian hires a private investigator, Anthony Pellicano

• Pellicano obtained a piece of dental floss from Stephen Bing’s trash and proved with DNA evidence that Stephen Bing was the real father of the child

• After this revelation, the Court ordered the support be $50,000 a month.

The Rest of the Story

The doctrine of the “psychological father”

Female

Legions of men

Time

Question:

What incentives does this family transfer system create for

gender?

An Important question …

Reform

There is an interesting question that the custody and support regime raises --

Notice the labels that are applied to dads:

• “deadbeat” dads.

• “Disneyland dad”

• postcard father?

• Note how demeaning the concept of “visitation” is. Is that all that fathers do – they “visit?”

Fatherhood

Question:

What is fatherhood (define it), and what value is it? Is

it equally valuable as motherhood?

Question:

Is being a good father merely being a good check sender to a birthmother?

-- No one has “custody” or a monopoly on spending for the child’s welfare

-- Involved fathers can increase the standard of living directly, without going through a “custodian” or an intermediary.

-- “Dead beats” are already very severely punished

-- No bankruptcy

-- lose Drivers License

-- Contempt

-- Jail (for most egregious)

Shared Parenting

Reform

Parent #1 Parent #2

Frodo

Instead of allowing one person to dominate …

… there should be no domination; parenting is shared

Each parent spends directly for the welfare of the child during his or her time

This offsets the amount of money that has to be transferred. One side doesn’t have a monopoly over the money or the care.

The cost of the transfer payment is discounted by the extent of overnights and

direct child rearing.

Time

Final Thoughts

1. a dreaded transaction

-- Fee for service work

-- clients need therapy

-- brings out the worst in the lawyers

2. system of judging may be too discretionary

-- no juries, no meaningful appellate review, the big issues are decided under abuse of discretion and clearly erroneous standards.

3. Growing Bureaucratization

-- “child support bureaus”

-- growing level of codification

Final Thoughts

4. More use of mediation

5. More “pro se” filings (packets tend to be available at the courthouse)

Time

Criminal law – Elements and Defenses

-- Crimes today are statutory

-- In the 1700s and 1800s, they could be judge-defined (“common law crimes”).

-- there are two basic features or properties to crime:

(a) what things you need to do to commit it (“the elements”) [its definition]; and

(b) defenses (things that, if true, negate the crime)

Introduction

Criminal law – Elements and Defenses

-- Elements of a crime come in two types:

A. the actus reas (the act)

B. mens rea (mental state)

As a general rule, if you read a criminal statute, it will tell you the actus reas and the mens rea.

E.g., larceny –

(1) taking and carrying away

(2) property of another

(3) with intent to permanently deprive

Elements

Actus reas

Mens Rea

Hence, if you want to know the elementsof any given crime, simply read the criminal statute

Criminal law – Elements and Defenses

1. self defense

Defenses Non-deadly?

-- Reasonable belief

-- of imminent force

(wife battering syndrome)

Deadly?

-- reasonable belief

-- of imminent force

-- that may cause death/serious bodily injury

Criminal law – Elements and Defenses

1. self defense

2. defense of a dwelling

Defenses Non-deadly?

-- Reasonable belief

-- is necessary

-- to prevent unlawful entry/attack upon dwelling

Deadly?

-- never allowed

(trick question on bar exam)

Criminal law – Elements and Defenses

1. self defense

2. defense of a dwelling

3. defense of property

Defenses -- Reasonable belief

-- that force MUST be used

-- to prevent interference with property rights

-- the threat must be immediate

-- you must own or possess the property

(deadly force never allowed.)

Criminal law – Elements and Defenses

1. self defense

2. defense of a dwelling

3. defense of property

4. defense of others

Defenses

-- Reasonable belief

-- that the person you assisted

-- had the legal right to defend himself

Criminal law – Elements and Defenses

1. self defense

2. defense of a dwelling

3. defense of property

4. defense of others

5. prevention of a crime

Defenses

-- SERIOUS crime

-- can use reasonable force

(deadly allowed only if the crime involves risk to human life)

Criminal law – Elements and Defenses

1. self defense

2. defense of a dwelling

3. defense of property

4. defense of others

5. prevention of a crime

6. stopping a fleeing felon

Defenses

• Deadly force?

• Police Officer?

(a) Reasonable Belief

(b) felon threatens death/serious bodily injury

(c) to officers or others

-- deadly force necessary to prevent escape

• Private Citizen?

-- same, except:

felon must be actually guilty of the crime

• Non-deadly force?

-- crime in fact committed

-- reasonable grounds to believe the person did it.

Criminal law – Elements and Defenses

1. self defense

2. defense of a dwelling

3. defense of property

4. defense of others

5. prevention of a crime

6. stopping a fleeing felon

7. discipline

Defenses

-- Parents/Guardians

-- can use reasonable force

-- to discipline a child

Criminal law – Elements and Defenses

1. self defense

2. defense of a dwelling

3. defense of property

4. defense of others

5. prevention of a crime

6. stopping a fleeing felon

7. discipline

8. consent

Defenses

1. consent freely given

2. by a party of legal capacity

Criminal law – Elements and Defenses

1. self defense

2. defense of a dwelling

3. defense of property

4. defense of others

5. prevention of a crime

6. stopping a fleeing felon

7. discipline

8. consent

9. entrapment

Defenses

1. Criminal design or intent

2. originated with law enforcement officers

3. the defendant was not predisposed to committing the crime (key point!)

(Examples)Time