Child Protective Services and the Sixth Amendment to the US Constitution

Know Your Rights

MD Lynn, Yahoo! Contributor Network Feb 25, 2009 "Share your voice on Yahoo! websites. Start Here."

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CloseThe United States of America's citizens have a Bill of Rights granted to us in the US

Constitution. Of these rights, I've regularly written about violations, such as my articles where many public school districts require children and parents to waive their Fourth Amendment rights in order to receive a free public education. Today, I want to tackle the US Sixth Amendment and Child Protective Services. First, let me start with the Sixth Amendment. Many of you probably know this as the 'Right to a speedy trial amendment'. However, there is much more to the Sixth Amendment than that. Let's look at the text first: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." The part I want to focus on in this article is the bolded part that reads: "... to be confronted with the witnesses against him..."

Child Protective Services Procedure There are many ways a report of alleged child abuse can occur. The only proper way is for the person suspecting the abuse to notify local law enforcement officers and let them investigate the crime. If the law enforcement officer believes there is enough evidence a crime has occurred, that officer can bring in Child Protective Services to offer services to the family. Unfortunately, it usually happens the other way around. Generally, people report child abuse directly to CPS, and more often than not, they use the toll-free anonymous hotlines. The problem with anything that is 'anonymous' is that anyone, for any reason (including nefarious reasons) can report a suspicion of alleged abuse. How Anonymous CPS Hotlines Circumvent the Sixth Amendment Rights The Sixth Amendment provides that people have a right to face their accuser. In the instance of a CPS anonymous telephone report, there is no ability to face an accuser. CPS will use whatever information gathered in the hotline report to conduct their investigation, and any evidence found against the alleged perpetrator of child abuse or neglect is offered to the courts. How this circumvents the Sixth Amendment is by letting CPS do the investigation, they are then using what is found in the investigation as the evidence against the alleged perpetrator, thus making CPS the accuser instead of the anonymous tipster. CPS Doesn't Have the Right to Investigate This is where knowing your rights becomes so very important. CPS does not have the right to investigate a family or children based on an anonymous CPS hotline phone call. They can attempt to perform an investigation, and if the parents or legal guardian allow them to by consenting to the investigation, they can use anything they gather or see during the investigation against the accused. However, if all CPS has to go on is an anonymous phone call placed to a CPS hotline, and the parent or legal guardian refuses to cooperate, the only things CPS can do at that point is call law enforcement, get a court order (without evidence, this is tough) or close the case uninvestigated. This is true even when the tipster is not anonymous, because anything the tipster says to CPS is hearsay

until investigated or proven by some other means, and that other means is usually found during the investigation that isn't required to happen. Hearsay Is Inadmissible in Court Because the accused has a right to confront their accuser, as provided in the Sixth Amendment, hearsay is not admissible in court. Therefore, CPS cannot use information gained from a CPS hotline call as evidence in court for 'probable cause' to get an order to enter a home or remove a child. You Can Give Up Your Rights CPS will not tell you the legalese of the pamphlets and brochures they give you, but it comes down to this: you don't have to let them in your home, you don't have to let them talk to your child, and you do not have to cooperate with a CPS investigation. You do, however, have to cooperate with a police investigation. This is usually how CPS intimidates parents into cooperating. They will show up at your door with a police officer and ask to be let in to discuss things with you. Your response at that point should be, "I would be happy to comply, if you have a court order. Do you have an order to enter my home and search it and speak to my child?" If their answer is, "No," your response should be: "I'm sorry, then. I cannot let you enter. Thank you." Then close the door. A police officer might come with them, but that officer knows as well as you should that he can't force his way into your home. He's there for their safety and for the intimidation factor the gun and badge and uniforms brings for the social worker with CPS. If I'm Not Guilty... Many people wonder why they should refuse an investigation with CPS if they know they aren't guilty. Many mistakenly assume that if they aren't doing anything wrong, nothing bad can happen to them. There are entire websites and programs and groups dedicated to the very fact that CPS can indeed find something wrong if they want to find it, even if the child is not abused or neglected. It is in CPS's best interests to find something wrong with your household. They get paid for it if they do. If you refuse investigation by CPS, they will have no choice but to get law enforcement involved and go before a judge to get a court order.

The courts know that unless there is physical evidence to show justifiable cause that a crime of child abuse or neglect has occurred, they cannot allow CPS or law enforcement to enter your home (that's your Fourth Amendment right). The courts also know that if the only evidence CPS has is a phone call to a hotline reporting alleged abuse, that is not enough evidence to issue a court order to come into your home. If you don't allow CPS into your home, they cannot gather evidence to use against you in a court case, and thus, you maintain your Sixth Amendment rights to face your accuser (in this case the caller/reporter of alleged abuse). Because CPS can't reveal the person, or the person refuses to reveal themselves, CPS has no choice but to close the case and leave you alone. Protect Your Rights but Be Calm and Professional An accusation of child abuse is stressful and frustrating at best. Please try not to take it personally, even though it might feel personal to you. CPS employees are only doing their jobs, and some of the workers do still believe they are doing the right thing and protecting children. Remember, even the employees of CPS are victims of the system for which they work. However, they do know what your rights are, and they will try to circumvent those rights as much as possible in order to do their jobs. It's not personal to most of them; it's just a job. Stand your ground. Invoke your rights. Tell them you are not guilty, but you also know your legal rights and you choose to invoke them. If it makes you feel better, and you can afford it, contact an attorney. CPS doesn't like when attorneys get involved, because they know they have to watch their steps and actually follow the law. Be firm, but be polite when you turn CPS away from your door. Never raise your voice, never get angry or show anger toward the social worker from CPS, and never threaten them in such a way that they can claim evidence of abuse. The law is on your side, and it's actually on the side of your children too, if you know how to take advantage of your legal rights and require they are enforced. Not Condoning Abuse

Please know that I do not in any way condone child abuse and that I'm not trying to say that people who abuse children should not be severely punished and the children protected. What I am saying is that law enforcement is better trained and equipped to deal with allegations and investigations of abuse than a social worker for CPS is, and that law enforcement knows how to handle evidence so that evidence is all admissible in court, so that real abusers don't walk away on a technicality. If you see abuse, don't be afraid to report it immediately to protect that precious child, but be sure to report it to the right agency - law enforcement! To read more about CPS and your rights as a citizen and parent, see The Truth about Child Protective Services, my other article on this topic.
Published by MD Lynn - Featured Contributor in Health & Wellness
Michelle is an author & freelance writer, with a penchant for fiction, creative nonfiction and topics that pique her passion: alternative medicine, animals & pets, love & relationships, and her all-time favo... View profile

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www.archives.gov/exhibits/charters/bill_of_rights.html www.associatedcontent.com/user/11173/michelle_l_devon_michy.html?show=publishedconten www.nrccps.org/

26 Comments
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Michy2/7/2011

If neglect is an issue, the police department can then consult with CPS, and they will consult with them, and then the CPS agency is under scrutiny and will be less likely to overstep its very limited power.

RRS2/7/2011

The problem is, police do not investigate neglect. So, you advocate these children be left alone rather than get help from CPS? I'm not saying CPS is perfect, but that is the mechanism available and ultimately, it is the well being of the child we should be concerned about.

Brooke Lorren3/26/2009

Very helpful!

Becky Whittemore3/5/2009

Great article! Very helpful information!

Lisa Ann3/2/2009

Some of the case workers will distort the facts. The last woman we had handling our case was telling us stuff the mother was doing that was completely different then what she was doing. What she was doing was bad, but not at the level she was claiming it was. On top of that she was making us do her job for her, like telling us to go find the mother if our oldest was that upset about her ditching her visits. We hcalled a number our oldest gave us and it turned out to be her dealer! I will never forget that phone call as long as I live. The mother in our case lost her oldest in

Michigan, so when she got him back she took off for Florida and had already planted in her sons mind to lie if anyone started asking questions about drugs. Since he has been away from her he has opened up to whoever will listen. We wanted her to get better for the children, but she hasn't been seen since she told us in November her sister died. Her 'dead' sister called in January to see if she could visit her neph

Theresa Wiza3/2/2009

Agreed - excellent article! As a child care provider, I am, by law, expected to report suspected abuse. I have discovered, though, that "abuse" has many definitions. Years ago, before I was licensed, one father told me, after I reported him to his son's school, that it was OK for him to throw his son up against the wall and choke him, because his father had done the same thing to him and he turned out OK. Fortunately, I haven't had a reason to report further abuse. For one thing, I don't look for it. Sadly, many people do and families suffer the consequences of unjustifiable accusations. Your article will save numerous parents, day care providers, and other family members from being accused of child abuse. We all care about children, but accusing somebody of abuse without proof can destroy, not only the accused abuser, but the very child the accuser is trying to protect. Thank you for a beautifully written article.

Rebecca Rosenburg3/2/2009

Excellent article! One other thing parents should be aware of is that CPS has been known to visit your child at school to conduct an interview- without your permission or knowledge. To Lisa- I have known several families who did what you suggest and cooperate with CPS. Michy is right- they will find something from nothing. CPS will distort what children say. My daughter was interviewed by CPS and the report claims my daughter told them I had men in and out of the house all the time. The truth? I hadn't even had a date in years. The only men ever to visit my home were missionaries from church, my brother, and the landlord!

Lisa Ann3/1/2009

Lisa, did they interview your children? Was it at school? CPS usually does that to get the real truth from children before a parent has the chance to taint the story. Not saying that was what you would have done in your case, but that is usually the reason they interview without your knowledge. It happened in my friends case also and she was extremely irate and angry they interviewed her children at school first before calling her. It happened to our oldest foster child also and he was able to give a completely different version of events then his mother wanted him to give. They interviewed him at school and then contacted her.

Lisa Ann3/1/2009

CONT. children. Sadly, it only takes 1 complaint to set off several months of headaches, but if the case worker were to ignore it or take the person they are investigating on their word, and a child gets hurt or dies, everyone gets in trouble.

Lisa Ann3/1/2009

My best suggestion to anyone involved with CPS or has a case with them is to cooperate fully with them. If it is a false alligation you have nothing to hide and helping them get to the bottom of the complaint is key to getting it done quickly. Understand that if you have a case it will be ongoing possibly for several months. But the minute you show attitude or refuse to let them in or give false statements they will come down on you hard. A woman I know who really had a legit call on her refused to let the case worker in and tried to force the door shut. She had the police come out and keep her away from the worker who was questioning her children about the lack of food in the house. She also called the worker every curse word and name. Her attitude actually helped her ex husband when he went to gain sole custody. You may be offended, especially if it is a false claim, but understand the case worker doesn't know you from Adam and even the pillar of the community could be abusing their

The Constitution and CHILD PROTECTIVE SERVICES... a Must READ for all PARENTS!
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TThank You www.KIDJACKED.com

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The Constitution and Child Protective Services

This test is used as a training tool to teach caseworkers about your rights under the law and how to do their job, without violating your rights.

Objectives
After completing this course, participants will understand:

That the Fourth Amendment applies to Child Protective Services investigations. What constitutes a "reasonable expectation of privacy" during a child abuse and/or neglect investigation. How to keep criminal child abusers from avoiding conviction on a "technicality." How to avoid being sued for violations of civil rights. When to contact a supervisor and/or attorney for guidance during a child abuse and/or neglect investigation.

Pre-Test:

Q1: The Constitution limits what police may do. Does it also apply to CPS workers? Q2: Do parents have a right to refuse to allow CPS workers to enter their homes? Q3: What is required for a warrant or court order to enter a private residence? Q4: Who gets hurt when CPS workers don't understand and follow the law?

(Click to view Pre-test answers.)

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Initial Scenario
Sophie Smart is a child protective services worker ("CPS worker") investigating a case of alleged physical abuse of a ten-year-old boy. An anonymous source reported that his father spanked him with a belt, leaving bruises. School is out for the summer, so Sophie can't interview the child at the local elementary school. She goes to the home and explains that she is there to investigate an allegation of physical abuse. The mother refuses to let her in.

What should Sophie do?

Say the law requires her to enter the home and interview her child. Say she will get a court order to remove her child from the home unless she cooperates. Ask whether she can see the child just to make sure he is okay. Go to her car and call her supervisor for instructions.

Sophie asks the mother for permission to see the child. The mother refuses, saying he fell down and hurt himself and can't get out of bed.

What should Sophie do?

Say she must see the child right away. Call for backup by law enforcement. Ask whether the mother has taken the child to a doctor. Go to her car and call her supervisor for instructions.

The mother says she took the child to the doctor that morning, and offers Sophie his name and phone number. She signs a release so that Sophie can talk to him. When Sophie calls, the doctor says he examined the child that morning for injuries from a skateboard accident. He says the injuries were consistent with the description of the accident. Sophie asks him about suspicious bruises and he says he saw nothing suspicious. He reminds her that he is a mandatory reporter and is required to report anything that might indicate abuse or neglect.

What should Sophie do?

Start knocking on doors in the neighborhood to ask if anyone has evidence that these parents abuse their children. Ask the mother to bring her son to Sophie's office as soon as he gets better. Make a note that the mother refused to cooperate and close the case as "unable to determine." Call her supervisor for instructions.

The mother agrees to come to Sophie's office with her husband and her son. Both parents admit that they believe in spanking and have been known to use a belt, but they cannot recall ever having seen any bruises from a spanking. Sophie talks to the child privately, who says that his father does spank him occasionally but "it's no big deal." Sophie asks him whether he would mind pulling down his pants so she can check for bruises, but he refuses.

What should Sophie do?

Substantiate a finding of physical abuse because the parents admit to striking the child with an implement. Tell the child she has to check for bruises and make him pull down his pants despite his objections. Close the case as unsubstantiated. Call her supervisor for instructions.

How did you do?

If you checked "call her supervisor" at every step, Sophie won't get suedbut she won't get promoted anytime soon. If you had Sophie close the case as unsubstantiated after talking to the child, you completed a thorough investigation without violating any civil rights. Congratulations!

If you had Sophie close the case as "unable to determine" without inviting the family to your office, you failed to complete a thorough investigation.

If you had Sophie do anything else, she might wind up in court! This training manual is designed to keep that from happening.

Respecting Parents and Protecting Children

Federal law now requires all child protective services workers ("CPS workers") to be trained about the legal rights of parents. [1] The United States Senate explained why it added this section to the Keeping Children and Families Safe Act of 2003:

While the committee is strongly committed to the main mission of the child protective services system--to ensure that child safety and the best interests of the child are protected, the committee believes it is important for child protective services personnel to understand and respect fourth amendment limitations on their right to enter a home when investigating an allegation without a court order. [2]

One basic freedom is the right to privacy in the home. This particular right is enshrined in the Fourth Amendment to the U.S. Constitution, which is part of the Bill of Rights. This part of the Constitution says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated... [3]

Congress wanted to make sure that every CPS worker is "fully aware of the extent and limits of their legal authority and the legal rights of parents" each time they carry out a child abuse or neglect investigation. [4]

Reasonable Expectations of Privacy

Every American citizen has a right to a reasonable expectation of privacy in his or her home and family life. What counts as a "reasonable" expectation of privacy during a child abuse or neglect investigation? Some social workers have assumed that parents have no meaningful right to privacy under such circumstances, but the courts have disagreed.

Courts have ruled that the Fourth Amendment right to a reasonable expectation of privacy means that government workers must have one of three things before they can constitutionally search for evidence of wrongdoing in a private home. They must either have (1) consent, (2) exigent circumstances, or (3) a warrant or other valid court order authorizing entry.

1.

Consent A parent who has a right to privacy in the home can waive that right and invite CPS workers in to conduct an investigation. The vast majority of CPS investigations take place with the consent of the parents. In order to be sure that an

investigation is legal, CPS workers should ask the parents for permission to enter their home. Valid consent cannot be obtained through threats or lies. 2. Exigent Circumstances If the parents won't let the government in, but there's a real emergency, special rules apply. Nobody has a reasonable expectation of privacy in an emergency situation. You don't need a permission to rescue a child from a burning building! This is considered an "exigent circumstance" and is an exception to the normal requirement that government workers need consent or a court order to enter a private home. If the allegations aren't serious, aren't credible, or the children don't appear to be in immediate physical danger, then the circumstances probably aren't "exigent." Exigent circumstances are not just another way to carry out an investigation: for any circumstances that are truly "exigent" are extreme enough to halt the investigation until the safety of the child has been ensured. It is appropriate to take a child into temporary protective custody if that is truly necessary to ensure the child's safety, but temporary "protective" custody should not be used as temporary "investigative" custody. CPS workers take a grave legal risk whenever they take a child into custody solely for the purpose of questioning the child, since that constitutes a "seizure" for purposes of Fourth Amendment law, and any such seizure must be justified at the outset. 3. Court Order If the parents won't consent but there is no emergency, CPS workers need a court order to enter the home or seize a child. The Fourth Amendment authorizes search warrants, as long as there is "probable cause" to believe that a crime or other violation of the law has occurred or is occurring.

Why Respecting Rights Matters

There are many reasons CPS workers need to understand the rights of parents. First, of course, the Constitution requires it. That should be enough for any American citizen. But there are three good practical reasons why respecting parental rights improves the child protection system.

a.

Winning Cooperation through Respect It's easy for CPS workers to wind up in court if parents won't let them in their home and refuse to allow them to interview the children. If a government employee forces his or her way into a home without consent or exigent circumstances, they can be sued for civil rights violations.

If they don't force their way into the home, they need a court order to get in. Everyone is better off if CPS workers go to court to get the authority they need, rather than acting without constitutional authority and getting sued for it. People fear what they don't understand. Frightened parents often make things worse for their families out of ignorance. It takes some time to help parents understand how the system works and to help them understand their rights, but this small investment of time up front can save a great deal of time in litigation later. By demonstrating a real respect for their rights, CPS workers can improve the chances that they will cooperate. b. Building Effective Relationships Even if the parents insist on going to court, the chances of helping the children are better if CPS workers demonstrate their respect for the parents throughout the process. If CPS treats the parents with dignity before,

during, and after court proceedings, the family is much more likely to work constructively with CPS when and if the court authorizes intervention. c. Avoiding Civil Rights Liability Last, but not least, the chance of losing a civil rights lawsuit drops to zero if CPS workers show that they understand and respect the rights of parents at every step of the investigation process.

Case Study: Calabretta v. Floyd

Facts
On Thursday morning, an anonymous caller alleged that she had once been "awakened by a child screaming 'No Daddy, no' at 1:30 a.m. that morning at the Calabretta home." She said she had also heard one of the children scream 'No, no, no' two days before. Social worker Jill Floyd did not go out to investigate until four days later. Mrs. Calabretta refused to let Jill in, but the children were standing at their mother's side and did not appear abused or neglected.

Ten days later, Jill returned to the Calabretta house with a policeman. Mrs. Calabretta did not open the door, and said she felt uncomfortable letting them in without her husband at home. The policeman said if she did not open the door, he would force his way in. Mrs. Calabretta then opened the door and let them in.

Was the entry into the home permissible?

Analysis
A constitutional entry into a private home requires consent, exigent circumstances, or court order. There was no court order in this case, so the only options are consent or exigent circumstances.

The federal court that heard this case concluded that a reasonable jury could decide that Mrs. Calabretta did not consent to this entry, even though she opened the door.

The police and social workers argued that they were entitled to enter the home under "exigent circumstances" because they were investigating the possibility of harm to a child.

Ruling

The Ninth Circuit Court of Appeals ruled against the social worker and police officer. "The facts in this case are noteworthy for the absence of emergency. The social worker and her department delayed entry into the home for fourteen days after the report, because they perceived no immediate danger of serious harm to the children." Calabretta v. Floyd, 189 F.3d 808, 813 (9th Cir. 1999) [emphasis supplied].

Case Study: Good v. Dauphin

Facts
An anonymous caller claimed that seven-year-old Jochebed Good had bruises on her body and that Jochebed said some of the bruises were caused by a fight with her mother. She didn't go to school the next day, so at 10 p.m. that night, Mrs. Good was startled by loud pounding at her door. There she saw a uniformed police officer and a man from Social Services who said, "You must let us see your daughter."

Mrs. Good asked to see a warrant or a court order, but the social worker said they did not need a warrant and that they had a report that her daughter had been abused and she must let them enter. Mrs. Good wanted to telephone a lawyer, but it was too late at night. The police officer called the station on her walkie-talkie and informed the duty officer that "they were going in" to the home. At this point, Mrs. Good allowed them in, but said she did so only because she understood that she was being compelled to do so.

Was the entry into the home permissible?

Analysis
A constitutional entry into a private home requires consent, exigent circumstances, or court order. The police and social worker said they did not need a warrant, so the only options are consent or exigent circumstances.

The federal court that heard this case concluded that a reasonable jury could decide that Mrs. Good did not consent to this entry, even though she opened the door.

The police and social workers argued that they were entitled to enter the home under "exigent circumstances" because they were investigating the possibility of harm to a child.

Ruling
The Third Circuit Court of Appeals refused to treat this case as an emergency situation. The anonymous report merely said that Jochebed once "had bruises on her body" of unspecified severity. Nothing the officials saw or heard nothing during their conversation with Ms. Good at the door suggested in any way that Jochebed was being mistreated.

The court said, "The [exigent circumstances] exception must not be permitted to swallow the rule: in the absence of a showing of true necessitythat is, an imminent and substantial threat to life, health, or propertythe constitutionally guaranteed right to privacy must prevail." Good v. Dauphin County Social Services for Children and Youth, 891 F.2d 1087, 1094 (3rd Cir. 1989) [emphasis supplied].

Credible Evidence
Federal law requires CPS to investigate every allegation that meets certain specific criteria, but not all allegations are credible. In fact, as any experienced CPS worker knows all too well, some allegations are malicious. The most malicious reports tend to allege horrific abuse which would clearly constitute "exigent circumstances" if true. CPS workers should be careful to look for corroborating evidence before taking steps that can frighten children and violate parents' constitutional rights, possibly leading to civil rights litigation.

All three cases examined above involved anonymous reports. Courts treat anonymous tips as significantly less credible than reports from identifiable individuals. Judges will not issue a search warrant for an anonymous tip unless there is significant "corroborating" evidence to support it. When authorities force a warrantless entry solely on the basis of an uncorroborated anonymous tip, however, they take a great risk. While the tip might be accurate, it might just as well be false. Overzealous officials can terrify children, traumatize parents, and wind up being sued for violating civil rights. The risk of error and the resulting harm to family and children are too great to ever justify entering a home on the basis of an uncorroborated anonymous tip.

In the Boggess case on the previous page, the Wisconsin Supreme Court looked hard at the credibility of the anonymous call. Before the authorities entered the Boggess home, they had no way to be certain that the report was accurate. Here's what they found when they entered, however:

Once inside the home, Hammel went over to L.S. and saw that a pronounced part of his lip was missing and that the wound was inflamed and needed to be cleaned. Without directing the question to anyone in particular, Hammel asked, "What happened? How did he get hurt?" Calvin Boggess responded that he had fallen on L.S. and had hurt him. Later, Boggess stated, without prompting, that he had spanked both children several times.

With Janice Boggess present, Hammel examined L.S. more thoroughly in a rear bedroom. She observed that he had bruises on both sides of his legs from the ankles to the thighs, and that his arms were black and blue from the elbows to the wrists and halfway up his back. She also noticed that L.S. had hair missing from the top of his head, and that he walked with a "waddled limp." Hammel then examined K.S. and observed bruises on her body.

Calvin Boggess was tried for felony child abuse. He tried to exclude all this evidence from his criminal case because it was obtained without a warrant. If the court had excluded the evidenceand it was a close questionthis criminal might have gone free.

CPS workers face twin risks every time they enter a home without a warrant. If the parents are innocent, children get frightened, parents get angry, and social workers get sued. If the parents are guilty, however, social workers take the risk of letting a criminal child abuser off on a "technicality." The right answer is to get a warrant or court order before coercing entry into a home on anything less urgent than an emergency.

Case Study: Wallis v. Spencer

Facts
Bill and Becky Wallis were happily married with two children, but Becky's sister Rachel had mental problems. The Wallises cut off all contact with Rachel after she falsely accused Bill of sexually abusing his little girl. The next year, Rachel was hospitalized for suicidal paranoia and multiple personality disorder. In the hospital, she told her therapist about a recently recovered "memory."

She said that she and her father were in the woods twenty years earlier, where he wore a cultic robe and hypnotically chanted, "On the third full moon after two blue moons a child will be killed." One of Rachel's "alter egos" then told the therapist that the "child" in the twenty-year-old incantation was her two-year-old nephew Jessie, and that her brother-in-law Bill intended to sacrifice Jessie to Satan at the "Fall Equinox" ritual in a few days.

Based on this information, social workers told police officers to "pick up" the children. The police seized both children without consent or court order.

Was the seizure of the children permissible?

Analysis
A constitutional seizure of a child requires consent, exigent circumstances, or court order. The police argued that there were "exigent circumstances" because they were trying to prevent a human sacrifice.

Ruling
The Ninth Circuit ruled in favor of the parents. "Officials may remove a child from the custody of its parent without prior judicial authorization only if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent

danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury." Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000) [emphasis supplied]. The court ruled that a mental patient's delusions were not a credible basis for a "reasonable" seizure.

Case Study: H.R. v. State Dept. of Human Resources

Facts
Alabama CPS workers received an anonymous report of child abuse or neglect regarding Helene Richards's four children. A second report came in the next day. The evidence she offered the court consisted of the following anonymous allegations:

o o o o o o

two children being kept shut in a room; a child being sick and not receiving sufficient food; a child choking a cat; a child trying to "hang" himself; the children being kept in the back of a van; and infestations of roaches in the physical home of the children.

CPS worker Donna Jones was assigned the case four weeks after the anonymous reports came in. She did not go out to the home for another seven days. When she got there, the mother kept her outside and would not let her interview the children privately. Ms. Jones filed a petition to gain access, based on a statute that authorizes Alabama courts to issue such an order "upon cause shown."

Analysis
A constitutional entry requires consent, exigent circumstances, or a court order. Judges will not issue a search warrant without "probable cause," which means credible evidence that a crime or other violation of the law has been committed or is being committed. An uncorroborated anonymous tip falls short of the "probable cause" standard. CPS argued that Alabama law only required "cause shown," not "probable cause."

Ruling
The Alabama Court of Appeals ruled in favor of the mother. The court wrote, '[T]he power of the courts to permit invasions of the privacy protected by our federal and state constitutions, is not to be exercised except upon a showing of reasonable or probable cause to believe that a crime is being or is about to be committed or a valid regulation is being or is about to be violated." H.R. v. State Dept. of Human

Resources, 612 So.2d 477, 479 (Ala. Civ. App., 1992) [emphasis supplied]. The court refused to rely on uncorroborated hearsay to invade the privacy of a home.

Interviewing Children
Most states expressly authorize CPS workers to interview children without a parent's permission. This means CPS workers don't need to get the parent's consent to talk to a child at a public school or other location where the child is temporarily in the custody of some other adult who consents to the interview. It does not empower government workers to forcibly separate the child from his or her parent for the purpose of an interview. That is a "seizure," for constitutional purposes, which requires consent, exigent circumstances, or a court order.

Court after court has determined that the test of whether a government action is a "seizure" or not is whether the subject of that action feels free to leave. If a child feels like he can leave the interview at any time, he has not been "seized." If, on the other hand, the child does not feel free to go, the Fourth Amendment applies.

Here is how to analyze an interview with a child:

If a mature child indicates a willingness to talk to a government worker privately, the child's consent may satisfy the Fourth Amendment. Younger children, however, are too impressionable to give meaningful consent. If a child is not old enough to babysit, the child is probably not old enough to waive his or her constitutional rights.

If the parent or other caretaker allows a government worker to interview the child, there may be a "seizure," but it is constitutional because consent was given.

If there is evidence that the child is in immediate danger, a government worker may seize the child because of exigent circumstances.

In all other cases, government workers need authorization from a court before they can separate a child from his or her parents for the purpose of an investigation.

Many states have statutes that allow CPS workers to interview a child without the parent's permission. These statutes have been upheld as constitutional for interviews at public schools, but each public school student is in the care of a public school employee who is required by law to consent to these investigations. Cases involving children at private schools have had very different outcomes.

Medical Tests

The statutes that allow CPS workers to interview a child without parental consent do not automatically empower CPS workers to order x-rays or other medical tests. In the absence of a statute to the contrary, these are medical decisions that fall within the scope of traditional parental rights.

[5]

A child or a babysitter can choose whether or not to let the child talk to a stranger, but neither a child nor a babysitter can consent to

invasive medical procedures. Only a parent, a legislature, or a court can authorize such actions in the absence of a medical emergency.

Case Study: Doe v. Heck

Facts
CPS workers received a letter alleging that a ten year old girl had been bruised by a spanking she received at the Greendale Baptist Church and Academy. CPS worker Carla Heck went to the school to investigate. Despite the objections of the principal, and without parental notice or consent, Ms. Heck removed eleven-year-old John Doe Jr. from his fourth-grade classroom and interviewed him about corporal punishment. Heck relied on Wisconsin statute 48.981, which said:

The agency may contact, observe or interview the child at any location without permission from the child's parent, guardian or legal custodian if necessary to determine if the child is in need of protection or services, except that the person making the investigation may enter a child's dwelling only with permission from the child's parent, guardian or legal custodian or after obtaining a court order to do so.

The child, parents, and private school sued Heck and others for civil rights violations.

Analysis
The CPS worker relied on a Wisconsin statute that expressly authorized her to talk to children without permission from the parents. The United States Constitution, however, prohibits unreasonable searches and seizures. May a CPS worker rely on a statute that authorizes search and/or seizure on private property without a warrant, consent, or exigent circumstances?

Ruling
The Seventh Circuit Court of Appeals struck down the statute but did not hold the CPS worker personally liable for relying on it. "[T]o the extent 48.981(3)(c)1 authorizes government officials to conduct an investigation of child abuse on private property without a warrant or probable cause, consent, or exigent circumstances, the statute is unconstitutional." Doe v. Heck, 327 F.3d 492, 515 -516 (7th Cir. 2003) [emphasis supplied].

Frequently Asked Questions

Q: My investigation protocol requires me to visit the home and interview each child privately. The parents refuse to let me in and won't let me talk with the children. What should I do? A: Make sure you have the latest version of the protocol. Many states used to insist on private interviews with all children in all cases without any concern for the Constitution. If your investigation protocol still requires this, please report it to an attorney for your agency. Q: I thought police and CPS workers operated under different rules. What has changed? A: Police and CPS workers are both government workers, and are therefore both ultimately governed by the Constitution. The "different rules" that apply to police and CPS workers are the result of different court systems. Police routinely testify in criminal courts, which exclude all evidence that has been unconstitutionally obtained. As a result, police are very careful to make sure they comply with the Constitution at all times. CPS workers usually testify in juvenile courts, which allow the use of evidence that has been unconstitutionally obtained. Because the juvenile courts allow this evidence, CPS workers may not know they have violated the Constitution until they are personally sued for civil rights violations. Congress now requires all CPS workers to be trained about parents' rights. Q: Isn't there a "special needs" exception to the Fourth Amendment that allows CPS workers to protect children? A: The United States Supreme Court has identified certain "special needs" situations where traditional Fourth Amendment restrictions do not apply, but the "specials needs" exemption does not apply when the government is investigating allegations of unlawful activity. As the Tenth Circuit recently said, "The Fourth Amendment protects the right of the people to be 'secure in their persons' from government intrusion, whether the threat to privacy arises from a policeman or a Head Start administrator. There is no 'social worker' exception to the Fourth Amendment." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1205 (10th Cir. 2003). Q: Why can Welfare workers enter a home without a warrant but CPS workers cannot? A: The United States Supreme Court has ruled that Welfare workers do not need a warrant to enter a private home. Wyman v. James, 400 U.S. 309 (1971). Subsequent cases have made it clear that this is because the penalty for refusing to allow a Welfare worker into the home is a denial of future Welfare benefits, not removal of a child or criminal prosecution. Q: How can I be sure the circumstances are really "exigent"? A: This is an uncertain area of law, which means CPS workers should generally try to get a court order if there is time to do so. The Second Circuit Court of Appeals has decided that CPS workers in Connecticut, New York, and Vermont must get a court order if there is time to do so. Tenenbaum v. Williams, 193 F.3d 581 (2nd Cir. 1999).

The Tenth Circuit, which covers Colorado, Kansas, Oklahoma, Nevada, New Mexico, and Utah, agrees. "Simply put, unless the child is in imminent danger, there is no reason that it is impracticable to obtain a warrant before social workers remove a child

from the home." Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1242 (10th Cir. 2003).

The rule is different in Alabama, Florida, and Georgia, because the Eleventh Circuit Court of Appeal has ruled that CPS workers do not need a court order to remove a child if the child really is in immediate danger. Doe v. Kearney, 329 F.3d 1286 (11th Cir. 2003).

That rule can be risky, however, as the Ninth Circuit shows. A CPS worker who removed a child from her home without a warrant could be sued for doing so without truly exigent circumstances. Mabe v. San Bernardino County, Dept. of Public Social Services, 237 F.3d 1101 (9th Cir. 2001). Given this disagreement between the circuits, it is just a matter of time before this question winds up before the United States Supreme Court. Q: Doesn't it make a difference that the CPS worker is trying to protect children, not punish parents? A: The Fourth Amendment guarantees the privacy of the home, regardless of the government's motives. The Tenth Circuit Court of Appeals put it well, saying, "[T]he defendant's motive to protect the child ... does not vitiate plaintiffs' [constitutional] rights. That motive, however, may enter the calculus of the damages, if any, that his actions justify." Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1255 (10th Cir. 2003).

Conclusion: The Constitution Is Good For Children

CPS workers who are unfamiliar with constitutional law may wonder whether all this emphasis on parental rights is good for children. There are a number of reasons why children are better off when CPS workers demonstrate their respect for family freedoms.

Respect puts criminal child abusers in jail. It's one thing to pull a child out of a dangerous situation, but far too many criminal child abusers go on to hurt other children. Remember the Boggess case! An abuser may lose his own children and still move into some other home where children are present. Constitutionally admissible evidence puts abusers in jail. That is good for children.

Respect builds trust. Treating parents with dignity makes it easier for them to accept help if it is needed. If CPS workers tell parents, "You must let me in or I will take your children away," they may submit but they will never trust CPS again. If CPS workers say, "You have a real choice in this matter," the parents are much more likely to trust CPS in the future, which means they are more likely to get the help they need to succeed as parents. That is good for children.

Respect protects innocent children and families. Too many people have learned how to use anonymous allegations of child abuse as a way to attack innocent families. Some of the most awful allegations of abuse are also the most falseand these false allegations hurt innocent children and families. Weeding out false and malicious allegations is good for children.

Respect protects CPS workers. CPS workers who do not know the law tend to break it. There is no excuse for reckless disregard of federally protected civil rights: a zeal for protecting children without proper respect for family freedoms can subject CPS to civil rights suits and substantial damages.

The best place for a child is in his or her own home, in the care of fit and loving parents. Most parents believe they are both fit and loving, even if their behavior puts their children at risk. CPS workers can do a better job of protecting children if they follow the Constitution in each investigation of abuse or neglect. Whether the investigation winds up clearing the family of unfounded allegations or helping parents get the services they need, the CPS worker's attitude of respect makes a real difference.

The Constitution doesn't keep CPS workers from doing their job. It makes that job possible. Our Constitution is designed to enable the government to punish the guilty and protect the innocent. Nobody deserves punishment more than criminal child abusers, and nobody deserves protection more than innocent children.

Pre-Test Answers

A1: Yes. See Principle 1. A2: Yes. See Principle 2. A3: Probable Cause. See Principle 3. A4: Everybody but the criminal abuser. See Principle 4.

Constitutional Principles

Principle 1: The Fourth Amendment protects all people from unreasonable government searches and seizures; regardless of which branch of government is acting.

Principle 2: Parents have a right to assert the privacy of their homes, although the courts may override this with a warrant or other court order.

Principle 3: No court may issue a warrant or other order authorizing entry into a private home without probable cause to believe that the law has been violated.

Principle 4: The law enables us to protect the innocent and punish the guilty. When CPS workers fail to follow the law, criminals evade conviction, innocent families feel hurt and angry, and CPS workers lose the trust they need to help vulnerable children.

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References

1. 2. 3. 4. 5.

42 USC 5106a(b)(2)(A)(xix). Committee report. S. Rep. No. 108-12, at 16 (2003). U.S. Const. Amend. IV. Committee report. H. Rpt. 108-26, p 27. "[The] Constitution assures parents that, in the absence of parental consent, [physical examinations] of their child may not be undertaken for investigative purposes at the behest of state officials unless a judicial officer has determined, upon notice to the parents, and an opportunity to be heard, that grounds for such an examination exist and that the administration of the procedure is reasonable under all the circumstances." Doe v. Lebbos, 348 F.3d 820, 828 -829 (9th Cir. 2003).

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Teenagers in foster care often call the abuse line, hoping an investigation will allow them to return to their parents, which almost all children prefer to foster care. Children know that even the worst parents love them. -- Foster Parent Trainer,

The Constitution and Child Protective Services

This test is used as a training tool to teach caseworkers about your rights under the law and how to do their job, without violating your rights.

Objectives
After completing this course, participants will understand:

That the Fourth Amendment applies to Child Protective Services investigations. What constitutes a "reasonable expectation of privacy" during a child abuse and/or neglect investigation. How to keep criminal child abusers from avoiding conviction on a "technicality." How to avoid being sued for violations of civil rights. When to contact a supervisor and/or attorney for guidance during a child abuse and/or neglect investigation.

Pre-Test:

Q1: The Constitution limits what police may do. Does it also apply to CPS workers? Q2: Do parents have a right to refuse to allow CPS workers to enter their homes? Q3: What is required for a warrant or court order to enter a private residence? Q4: Who gets hurt when CPS workers don't understand and follow the law?

(Click to view Pre-test answers.)

Initial Scenario Sophie Smart is a child protective services worker ("CPS worker") investigating a case of alleged physical abuse of a ten-year-old boy. An anonymous source reported that his father spanked him with a belt, leaving bruises. School is out for the summer, so Sophie can't interview the child at the local elementary school. She goes to the home and

explains that she is there to investigate an allegation of physical abuse. The mother refuses to let her in. What should Sophie do?

Say the law requires her to enter the home and interview her child. Say she will get a court order to remove her child from the home unless she cooperates. Ask whether she can see the child just to make sure he is okay. Go to her car and call her supervisor for instructions.

Sophie asks the mother for permission to see the child. The mother refuses, saying he fell down and hurt himself and can't get out of bed. What should Sophie do?

Say she must see the child right away. Call for backup by law enforcement. Ask whether the mother has taken the child to a doctor. Go to her car and call her supervisor for instructions.

The mother says she took the child to the doctor that morning, and offers Sophie his name and phone number. She signs a release so that Sophie can talk to him. When Sophie calls, the doctor says he examined the child that morning for injuries from a skateboard accident. He says the injuries were consistent with the description of the accident. Sophie asks him about suspicious bruises and he says he saw nothing suspicious. He reminds her that he is a mandatory reporter and is required to report anything that might indicate abuse or neglect. What should Sophie do?

Start knocking on doors in the neighborhood to ask if anyone has evidence that these parents abuse their children. Ask the mother to bring her son to Sophie's office as soon as he gets better. Make a note that the mother refused to cooperate and close the case as "unable to determine." Call her supervisor for instructions.

The mother agrees to come to Sophie's office with her husband and her son. Both parents admit that they believe in spanking and have been known to use a belt, but they cannot recall ever having seen any bruises from a spanking. Sophie talks to the child privately, who says that his father does spank him occasionally but "it's no big deal." Sophie asks him whether he would mind pulling down his pants so she can check for bruises, but he refuses.

What should Sophie do?

Substantiate a finding of physical abuse because the parents admit to striking the child with an implement. Tell the child she has to check for bruises and make him pull down his pants despite his objections. Close the case as unsubstantiated. Call her supervisor for instructions.

How did you do?

If you checked "call her supervisor" at every step, Sophie won't get sued but she won't get promoted anytime soon. If you had Sophie close the case as unsubstantiated after talking to the child, you completed a thorough investigation without violating any civil rights. Congratulations! If you had Sophie close the case as "unable to determine" without inviting the family to your office, you failed to complete a thorough investigation. If you had Sophie do anything else, she might wind up in court! This training manual is designed to keep that from happening.

Respecting Parents and Protecting Children

Federal law now requires all child protective services workers ("CPS workers") to be trained about the legal rights of parents. [1] The United States Senate explained why it added this section to the Keeping Children and Families Safe Act of 2003: While the committee is strongly committed to the main mission of the child protective services system--to ensure that child safety and the best interests of the child are protected, the committee believes it is important for child protective services personnel to understand and respect fourth amendment limitations on their right to enter a home when investigating an allegation without a court order. [2] One basic freedom is the right to privacy in the home. This particular right is enshrined in the Fourth Amendment to the U.S. Constitution, which is part of the Bill of Rights. This part of the Constitution says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated... [3]

Congress wanted to make sure that every CPS worker is "fully aware of the extent and limits of their legal authority and the legal rights of parents" each time they carry out a child abuse or neglect investigation. [4]

Reasonable Expectations of Privacy

Every American citizen has a right to a reasonable expectation of privacy in his or her home and family life. What counts as a "reasonable" expectation of privacy during a child abuse or neglect investigation? Some social workers have assumed that parents have no meaningful right to privacy under such circumstances, but the courts have disagreed. Courts have ruled that the Fourth Amendment right to a reasonable expectation of privacy means that government workers must have one of three things before they can constitutionally search for evidence of wrongdoing in a private home. They must either have (1) consent, (2) exigent circumstances, or (3) a warrant or other valid court order authorizing entry. 1. Consent A parent who has a right to privacy in the home can waive that right and invite CPS workers in to conduct an investigation. The vast majority of CPS investigations take place with the consent of the parents. In order to be sure that an investigation is legal, CPS workers should ask the parents for permission to enter their home. Valid consent cannot be obtained through threats or lies. 2. Exigent Circumstances If the parents won't let the government in, but there's a real emergency, special rules apply. Nobody has a reasonable expectation of privacy in an emergency situation. You don't need a permission to rescue a child from a burning building! This is considered an "exigent circumstance" and is an exception to the normal requirement that government workers need consent or a court order to enter a private home. If the allegations aren't serious, aren't credible, or the children don't appear to be in immediate physical danger, then the circumstances probably aren't "exigent." Exigent circumstances are not just another way to carry out an investigation: for any circumstances that are truly "exigent" are extreme enough to halt the investigation until the safety of the child has been ensured. It is appropriate to take a child into temporary protective custody if that is truly necessary to ensure the child's safety, but temporary "protective" custody should not be used as temporary "investigative" custody. CPS workers take a grave legal risk whenever they take a child into custody solely for the purpose of questioning the child, since that constitutes a "seizure" for purposes of Fourth Amendment law, and any such seizure must be justified at the outset. 3. Court Order If the parents won't consent but there is no emergency, CPS workers need a court order to enter the home or seize a child. The Fourth Amendment authorizes search warrants, as long as there is "probable cause" to believe that a crime or other violation of the law has occurred or is occurring.
Why Respecting Rights Matters

There are many reasons CPS workers need to understand the rights of parents. First, of course, the Constitution requires it. That should be enough for any American citizen. But

there are three good practical reasons why respecting parental rights improves the child protection system. a. Winning Cooperation through Respect It's easy for CPS workers to wind up in court if parents won't let them in their home and refuse to allow them to interview the children. If a government employee forces his or her way into a home without consent or exigent circumstances, they can be sued for civil rights violations. If they don't force their way into the home, they need a court order to get in. Everyone is better off if CPS workers go to court to get the authority they need, rather than acting without constitutional authority and getting sued for it. People fear what they don't understand. Frightened parents often make things worse for their families out of ignorance. It takes some time to help parents understand how the system works and to help them understand their rights, but this small investment of time up front can save a great deal of time in litigation later. By demonstrating a real respect for their rights, CPS workers can improve the chances that they will cooperate. b. Building Effective Relationships Even if the parents insist on going to court, the chances of helping the children are better if CPS workers demonstrate their respect for the parents throughout the process. If CPS treats the parents with dignity before, during, and after court proceedings, the family is much more likely to work constructively with CPS when and if the court authorizes intervention. c. Avoiding Civil Rights Liability Last, but not least, the chance of losing a civil rights lawsuit drops to zero if CPS workers show that they understand and respect the rights of parents at every step of the investigation process.

Case Study: Calabretta v. Floyd

Facts On Thursday morning, an anonymous caller alleged that she had once been "awakened by a child screaming 'No Daddy, no' at 1:30 a.m. that morning at the Calabretta home." She said she had also heard one of the children scream 'No, no, no' two days before. Social worker Jill Floyd did not go out to investigate until four days later. Mrs. Calabretta refused to let Jill in, but the children were standing at their mother's side and did not appear abused or neglected. Ten days later, Jill returned to the Calabretta house with a policeman. Mrs. Calabretta did not open the door, and said she felt uncomfortable letting them in without her husband at home. The policeman said if she did not open the door, he would force his way in. Mrs. Calabretta then opened the door and let them in. Was the entry into the home permissible?

Analysis A constitutional entry into a private home requires consent, exigent circumstances, or court order. There was no court order in this case, so the only options are consent or exigent circumstances. The federal court that heard this case concluded that a reasonable jury could decide that Mrs. Calabretta did not consent to this entry, even though she opened the door. The police and social workers argued that they were entitled to enter the home under "exigent circumstances" because they were investigating the possibility of harm to a child. Ruling The Ninth Circuit Court of Appeals ruled against the social worker and police officer. "The facts in this case are noteworthy for the absence of emergency. The social worker and her department delayed entry into the home for fourteen days after the report, because they perceived no immediate danger of serious harm to the children." Calabretta v. Floyd, 189 F.3d 808, 813 (9th Cir. 1999) [emphasis supplied].

Case Study: Good v. Dauphin

Facts An anonymous caller claimed that seven-year-old Jochebed Good had bruises on her body and that Jochebed said some of the bruises were caused by a fight with her mother. She didn't go to school the next day, so at 10 p.m. that night, Mrs. Good was startled by loud pounding at her door. There she saw a uniformed police officer and a man from Social Services who said, "You must let us see your daughter." Mrs. Good asked to see a warrant or a court order, but the social worker said they did not need a warrant and that they had a report that her daughter had been abused and she must let them enter. Mrs. Good wanted to telephone a lawyer, but it was too late at night. The police officer called the station on her walkie-talkie and informed the duty officer that "they were going in" to the home. At this point, Mrs. Good allowed them in, but said she did so only because she understood that she was being compelled to do so. Was the entry into the home permissible? Analysis A constitutional entry into a private home requires consent, exigent circumstances, or court order. The police and social worker said they did not need a warrant, so the only options are consent or exigent circumstances.

The federal court that heard this case concluded that a reasonable jury could decide that Mrs. Good did not consent to this entry, even though she opened the door. The police and social workers argued that they were entitled to enter the home under "exigent circumstances" because they were investigating the possibility of harm to a child. Ruling The Third Circuit Court of Appeals refused to treat this case as an emergency situation. The anonymous report merely said that Jochebed once "had bruises on her body" of unspecified severity. Nothing the officials saw or heard nothing during their conversation with Ms. Good at the door suggested in any way that Jochebed was being mistreated. The court said, "The [exigent circumstances] exception must not be permitted to swallow the rule: in the absence of a showing of true necessitythat is, an imminent and substantial threat to life, health, or propertythe constitutionally guaranteed right to privacy must prevail." Good v. Dauphin County Social Services for Children and Youth, 891 F.2d 1087, 1094 (3rd Cir. 1989) [emphasis supplied].

Credible Evidence
Federal law requires CPS to investigate every allegation that meets certain specific criteria, but not all allegations are credible. In fact, as any experienced CPS worker knows all too well, some allegations are malicious. The most malicious reports tend to allege horrific abuse which would clearly constitute "exigent circumstances" if true. CPS workers should be careful to look for corroborating evidence before taking steps that can frighten children and violate parents' constitutional rights, possibly leading to civil rights litigation. All three cases examined above involved anonymous reports. Courts treat anonymous tips as significantly less credible than reports from identifiable individuals. Judges will not issue a search warrant for an anonymous tip unless there is significant "corroborating" evidence to support it. When authorities force a warrantless entry solely on the basis of an uncorroborated anonymous tip, however, they take a great risk. While the tip might be accurate, it might just as well be false. Overzealous officials can terrify children, traumatize parents, and wind up being sued for violating civil rights. The risk of error and the resulting harm to family and children are too great to ever justify entering a home on the basis of an uncorroborated anonymous tip. In the Boggess case on the previous page, the Wisconsin Supreme Court looked hard at the credibility of the anonymous call. Before the authorities entered the Boggess home, they had no way to be certain that the report was accurate. Here's what they found when they entered, however:

Once inside the home, Hammel went over to L.S. and saw that a pronounced part of his lip was missing and that the wound was inflamed and needed to be cleaned. Without directing the question to anyone in particular, Hammel asked, "What happened? How did he get hurt?" Calvin Boggess responded that he had fallen on L.S. and had hurt him. Later, Boggess stated, without prompting, that he had spanked both children several times. With Janice Boggess present, Hammel examined L.S. more thoroughly in a rear bedroom. She observed that he had bruises on both sides of his legs from the ankles to the thighs, and that his arms were black and blue from the elbows to the wrists and halfway up his back. She also noticed that L.S. had hair missing from the top of his head, and that he walked with a "waddled limp." Hammel then examined K.S. and observed bruises on her body. Calvin Boggess was tried for felony child abuse. He tried to exclude all this evidence from his criminal case because it was obtained without a warrant. If the court had excluded the evidenceand it was a close questionthis criminal might have gone free. CPS workers face twin risks every time they enter a home without a warrant. If the parents are innocent, children get frightened, parents get angry, and social workers get sued. If the parents are guilty, however, social workers take the risk of letting a criminal child abuser off on a "technicality." The right answer is to get a warrant or court order before coercing entry into a home on anything less urgent than an emergency.

Case Study: Wallis v. Spencer

Facts Bill and Becky Wallis were happily married with two children, but Becky's sister Rachel had mental problems. The Wallises cut off all contact with Rachel after she falsely accused Bill of sexually abusing his little girl. The next year, Rachel was hospitalized for suicidal paranoia and multiple personality disorder. In the hospital, she told her therapist about a recently recovered "memory." She said that she and her father were in the woods twenty years earlier, where he wore a cultic robe and hypnotically chanted, "On the third full moon after two blue moons a child will be killed." One of Rachel's "alter egos" then told the therapist that the "child" in the twenty-year-old incantation was her two-year-old nephew Jessie, and that her brother-in-law Bill intended to sacrifice Jessie to Satan at the "Fall Equinox" ritual in a few days. Based on this information, social workers told police officers to "pick up" the children. The police seized both children without consent or court order.

Was the seizure of the children permissible? Analysis A constitutional seizure of a child requires consent, exigent circumstances, or court order. The police argued that there were "exigent circumstances" because they were trying to prevent a human sacrifice. Ruling The Ninth Circuit ruled in favor of the parents. "Officials may remove a child from the custody of its parent without prior judicial authorization only if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury." Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000) [emphasis supplied]. The court ruled that a mental patient's delusions were not a credible basis for a "reasonable" seizure.

Case Study: H.R. v. State Dept. of Human Resources

Facts Alabama CPS workers received an anonymous report of child abuse or neglect regarding Helene Richards's four children. A second report came in the next day. The evidence she offered the court consisted of the following anonymous allegations:
o o o o o o

two children being kept shut in a room; a child being sick and not receiving sufficient food; a child choking a cat; a child trying to "hang" himself; the children being kept in the back of a van; and infestations of roaches in the physical home of the children.

CPS worker Donna Jones was assigned the case four weeks after the anonymous reports came in. She did not go out to the home for another seven days. When she got there, the mother kept her outside and would not let her interview the children privately. Ms. Jones filed a petition to gain access, based on a statute that authorizes Alabama courts to issue such an order "upon cause shown." Analysis A constitutional entry requires consent, exigent circumstances, or a court order. Judges will not issue a search warrant without "probable cause," which means credible

evidence that a crime or other violation of the law has been committed or is being committed. An uncorroborated anonymous tip falls short of the "probable cause" standard. CPS argued that Alabama law only required "cause shown," not "probable cause." Ruling The Alabama Court of Appeals ruled in favor of the mother. The court wrote, '[T]he power of the courts to permit invasions of the privacy protected by our federal and state constitutions, is not to be exercised except upon a showing of reasonable or probable cause to believe that a crime is being or is about to be committed or a valid regulation is being or is about to be violated." H.R. v. State Dept. of Human Resources, 612 So.2d 477, 479 (Ala. Civ. App., 1992) [emphasis supplied]. The court refused to rely on uncorroborated hearsay to invade the privacy of a home.

Interviewing Children
Most states expressly authorize CPS workers to interview children without a parent's permission. This means CPS workers don't need to get the parent's consent to talk to a child at a public school or other location where the child is temporarily in the custody of some other adult who consents to the interview. It does not empower government workers to forcibly separate the child from his or her parent for the purpose of an interview. That is a "seizure," for constitutional purposes, which requires consent, exigent circumstances, or a court order. Court after court has determined that the test of whether a government action is a "seizure" or not is whether the subject of that action feels free to leave. If a child feels like he can leave the interview at any time, he has not been "seized." If, on the other hand, the child does not feel free to go, the Fourth Amendment applies. Here is how to analyze an interview with a child:

If a mature child indicates a willingness to talk to a government worker privately, the child's consent may satisfy the Fourth Amendment. Younger children, however, are too impressionable to give meaningful consent. If a child is not old enough to babysit, the child is probably not old enough to waive his or her constitutional rights. If the parent or other caretaker allows a government worker to interview the child, there may be a "seizure," but it is constitutional because consent was given. If there is evidence that the child is in immediate danger, a government worker may seize the child because of exigent circumstances.

In all other cases, government workers need authorization from a court before they can separate a child from his or her parents for the purpose of an investigation.

Many states have statutes that allow CPS workers to interview a child without the parent's permission. These statutes have been upheld as constitutional for interviews at public schools, but each public school student is in the care of a public school employee who is required by law to consent to these investigations. Cases involving children at private schools have had very different outcomes.

Medical Tests
The statutes that allow CPS workers to interview a child without parental consent do not automatically empower CPS workers to order x-rays or other medical tests. In the absence of a statute to the contrary, these are medical decisions that fall within the scope of traditional parental rights. [5] A child or a babysitter can choose whether or not to let the child talk to a stranger, but neither a child nor a babysitter can consent to invasive medical procedures. Only a parent, a legislature, or a court can authorize such actions in the absence of a medical emergency.

Case Study: Doe v. Heck

Facts CPS workers received a letter alleging that a ten year old girl had been bruised by a spanking she received at the Greendale Baptist Church and Academy. CPS worker Carla Heck went to the school to investigate. Despite the objections of the principal, and without parental notice or consent, Ms. Heck removed eleven-year-old John Doe Jr. from his fourth-grade classroom and interviewed him about corporal punishment. Heck relied on Wisconsin statute 48.981, which said: The agency may contact, observe or interview the child at any location without permission from the child's parent, guardian or legal custodian if necessary to determine if the child is in need of protection or services, except that the person making the investigation may enter a child's dwelling only with permission from the child's parent, guardian or legal custodian or after obtaining a court order to do so. The child, parents, and private school sued Heck and others for civil rights violations. Analysis The CPS worker relied on a Wisconsin statute that expressly authorized her to talk to children without permission from the parents. The United States Constitution, however, prohibits unreasonable searches and seizures. May a CPS worker rely on a statute that

authorizes search and/or seizure on private property without a warrant, consent, or exigent circumstances? Ruling The Seventh Circuit Court of Appeals struck down the statute but did not hold the CPS worker personally liable for relying on it. "[T]o the extent 48.981(3)(c)1 authorizes government officials to conduct an investigation of child abuse on private property without a warrant or probable cause, consent, or exigent circumstances, the statute is unconstitutional." Doe v. Heck, 327 F.3d 492, 515 -516 (7th Cir. 2003) [emphasis supplied].

Frequently Asked Questions

Q: My investigation protocol requires me to visit the home and interview each child privately. The parents refuse to let me in and won't let me talk with the children. What should I do? A: Make sure you have the latest version of the protocol. Many states used to insist on private interviews with all children in all cases without any concern for the Constitution. If your investigation protocol still requires this, please report it to an attorney for your agency. Q: I thought police and CPS workers operated under different rules. What has changed? A: Police and CPS workers are both government workers, and are therefore both ultimately governed by the Constitution. The "different rules" that apply to police and CPS workers are the result of different court systems. Police routinely testify in criminal courts, which exclude all evidence that has been unconstitutionally obtained. As a result, police are very careful to make sure they comply with the Constitution at all times. CPS workers usually testify in juvenile courts, which allow the use of evidence that has been unconstitutionally obtained. Because the juvenile courts allow this evidence, CPS workers may not know they have violated the Constitution until they are personally sued for civil rights violations. Congress now requires all CPS workers to be trained about parents' rights. Q: Isn't there a "special needs" exception to the Fourth Amendment that allows CPS workers to protect children? A: The United States Supreme Court has identified certain "special needs" situations where traditional Fourth Amendment restrictions do not apply, but the "specials needs" exemption does not apply when the government is investigating allegations of unlawful activity. As the Tenth Circuit recently said, "The Fourth Amendment protects the right of the people to be 'secure in their persons' from government intrusion, whether the threat to privacy arises from a policeman or a Head Start administrator. There is no 'social worker' exception to the Fourth Amendment." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1205 (10th Cir. 2003).

Q: Why can Welfare workers enter a home without a warrant but CPS workers cannot? A: The United States Supreme Court has ruled that Welfare workers do not need a warrant to enter a private home. Wyman v. James, 400 U.S. 309 (1971). Subsequent cases have made it clear that this is because the penalty for refusing to allow a Welfare worker into the home is a denial of future Welfare benefits, not removal of a child or criminal prosecution. Q: How can I be sure the circumstances are really "exigent"? A: This is an uncertain area of law, which means CPS workers should generally try to get a court order if there is time to do so. The Second Circuit Court of Appeals has decided that CPS workers in Connecticut, New York, and Vermont must get a court order if there is time to do so. Tenenbaum v. Williams, 193 F.3d 581 (2nd Cir. 1999). The Tenth Circuit, which covers Colorado, Kansas, Oklahoma, Nevada, New Mexico, and Utah, agrees. "Simply put, unless the child is in imminent danger, there is no reason that it is impracticable to obtain a warrant before social workers remove a child from the home." Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1242 (10th Cir. 2003). The rule is different in Alabama, Florida, and Georgia, because the Eleventh Circuit Court of Appeal has ruled that CPS workers do not need a court order to remove a child if the child really is in immediate danger. Doe v. Kearney, 329 F.3d 1286 (11th Cir. 2003). That rule can be risky, however, as the Ninth Circuit shows. A CPS worker who removed a child from her home without a warrant could be sued for doing so without truly exigent circumstances. Mabe v. San Bernardino County, Dept. of Public Social Services, 237 F.3d 1101 (9th Cir. 2001). Given this disagreement between the circuits, it is just a matter of time before this question winds up before the United States Supreme Court. Q: Doesn't it make a difference that the CPS worker is trying to protect children, not punish parents? A: The Fourth Amendment guarantees the privacy of the home, regardless of the government's motives. The Tenth Circuit Court of Appeals put it well, saying, "[T]he defendant's motive to protect the child ... does not vitiate plaintiffs' [constitutional] rights. That motive, however, may enter the calculus of the damages, if any, that his actions justify." Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1255 (10th Cir. 2003).

Conclusion: The Constitution Is Good For Children

CPS workers who are unfamiliar with constitutional law may wonder whether all this emphasis on parental rights is good for children. There are a number of reasons why children are better off when CPS workers demonstrate their respect for family freedoms.

Respect puts criminal child abusers in jail. It's one thing to pull a child out of a dangerous situation, but far too many criminal child abusers go on to hurt other children. Remember the Boggess case! An abuser may lose his own children and still move into some other home where children are present. Constitutionally admissible evidence puts abusers in jail. That is good for children. Respect builds trust. Treating parents with dignity makes it easier for them to accept help if it is needed. If CPS workers tell parents, "You must let me in or I will take your children away," they may submit but they will never trust CPS again. If CPS workers say, "You have a real choice in this matter," the parents are much more likely to trust CPS in the future, which means they are more likely to get the help they need to succeed as parents. That is good for children. Respect protects innocent children and families. Too many people have learned how to use anonymous allegations of child abuse as a way to attack innocent families. Some of the most awful allegations of abuse are also the most falseand these false allegations hurt innocent children and families. Weeding out false and malicious allegations is good for children. Respect protects CPS workers. CPS workers who do not know the law tend to break it. There is no excuse for reckless disregard of federally protected civil rights: a zeal for protecting children without proper respect for family freedoms can subject CPS to civil rights suits and substantial damages.

The best place for a child is in his or her own home, in the care of fit and loving parents. Most parents believe they are both fit and loving, even if their behavior puts their children at risk. CPS workers can do a better job of protecting children if they follow the Constitution in each investigation of abuse or neglect. Whether the investigation winds up clearing the family of unfounded allegations or helping parents get the services they need, the CPS worker's attitude of respect makes a real difference. The Constitution doesn't keep CPS workers from doing their job. It makes that job possible. Our Constitution is designed to enable the government to punish the guilty and protect the innocent. Nobody deserves punishment more than criminal child abusers, and nobody deserves protection more than innocent children.

Pre-Test Answers

A1: Yes. See Principle 1. A2: Yes. See Principle 2. A3: Probable Cause. See Principle 3. A4: Everybody but the criminal abuser. See Principle 4.

Constitutional Principles

Principle 1: The Fourth Amendment protects all people from unreasonable government searches and seizures; regardless of which branch of government is acting. Principle 2: Parents have a right to assert the privacy of their homes, although the courts may override this with a warrant or other court order. Principle 3: No court may issue a warrant or other order authorizing entry into a private home without probable cause to believe that the law has been violated. Principle 4: The law enables us to protect the innocent and punish the guilty. When CPS workers fail to follow the law, criminals evade conviction, innocent families feel hurt and angry, and CPS workers lose the trust they need to help vulnerable children.

References

1. 42 USC 5106a(b)(2)(A)(xix). 2. Committee report. S. Rep. No. 108-12, at 16 (2003). 3. U.S. Const. Amend. IV. 4. Committee report. H. Rpt. 108-26, p 27. 5. "[The] Constitution assures parents that, in the absence of parental consent, [physical examinations] of their child may not be undertaken for investigative purposes at the behest of state officials unless a judicial officer has determined, upon notice to the parents, and an opportunity to be heard, that grounds for such an examination exist and that the administration of the procedure is reasonable under all the circumstances." Doe v. Lebbos, 348 F.3d 820, 828 -829 (9th Cir. 2003).

PRO BONO ATTORNEYS INDIANA Free Legal Aid Services

Free legal services and Pro Bono Attorneys Indiana programs in the State.
Legal Aid Attorneys assist low-income clients in civil cases. LEGAL CASES: Child Custody, Juvenile, Education, Bankruptcy, Divorce, Domestic Violence, Community Economic Development, Consumer, Health, Immigration, Employment, Individual Rights, Elder Law, Real Estate, Housing, Torts, Public Benefits, Wills.

PRO BONO ATTORNEYS INDIANA

District 6 Access To Justice, Inc. P.O. Box 2713 Anderson, IN 46018-2713 Phone: 765-5299174 Fax: 765-529-9213 Indiana Legal Services (Anderson) 1106 Meridian Plaza Suite 215 Anderson, IN 46016 Phone: 765 644-2816 800 382-3541 Fax: 765 642-2473 District 10 Pro Bono Project P.O. Box 8382 Bloomington, IN 47407-8382 Phone: 812 339-3610 Fax: 812 339-3629 Family and Children Mediation Center - Indiana University School of Law 211 S. Indiana Avenue Bloomington, IN 47405 Phone: 812 855-9229 Fax: 812 855-5128 Phone: 812 856-4155 Indiana Legal Services (Bloomington) 214 South College Avenue Bloomington, IN 47404 Phone: 800 822-4774 - 812 339-7668 Fax: 812 339-2081 Elder Law Clinic - Indiana Legal Services, Inc. 242 West 7th Street Bloomington, IN 47404 Phone: 800 822-4774 812 339-7668 Fax: 812 339-2081 Community Legal Clinic 211 South Indiana Avenue Bloomington, IN 47405 Phone: 812 8559229 Fax: 812 855-5128 District 11 Legal Aid - Pro Bono 1531 13th Street Suite G330 Columbus, IN 47201 Phone: 877 378-0358 Fax: 812 372-3948 Montgomery County Bar Association - Montgomery County Courthouse 100 East Main Street Crawfordsville, IN 47933 Phone: 765 364-6430

Elkhart Legal Aid, Inc. 330 W. Lexington Avenue Elkhart, IN 46516 Phone: 574 294-2658 Fax: 574 294-2650 Indiana Legal Services (Evansville) 2425 North Highway 41 Evansville, IN 47711 Phone: 800 852-3477 812-426-1295 Fax: 812-422-7332 Volunteer Lawyer Program Of Southwestern Indiana 123 NW 4th Street Ste 303 Evansville, IN 47708 Phone: 812-434-4886 - 812 426-1712 Legal Aid Society of Evansville Inc. 1 NW MARTIN LUTHER KING, JR. BLVD Suite 105 Evansville, IN 47708-1828 Phone: 812 435-5173 Fax: 812 435-5220 Volunteer Lawyer Program Of Northeast Indiana 904 S Calhoun Fort Wayne, IN 46802 Phone: 260-407-0917 Fax: 260-407-7005 Indiana Legal Services 919 S. Harrison Suite 200 Fort Wayne, IN 46802 Phone: 888 442-8600 260 424-9155 Fax: 260 424-9166 AIDS Task Force, Inc 2124 Fairfield Ave Fort Wayne, IN 46802 Phone: 260-744-1144 Fax: 219-745-0978 Allen County Bar Association Legal Line 924 S. Calhoun Street Ft. Wayne, IN 46802 Phone: 260 423-2358 Legal Services of Maumee Valley, Inc. 203 W. Wayne Street Suite 410 Ft. Wayne, IN 46802 Phone: 800 552-4884, 260 422-8070 Indiana Legal Services Inc. (Gary) 504 Broadway Ste 301 Gary, IN 46402-1943 Phone: 219886-3161 Fax: 219-886-5143 NWI Volunteer Lawyers, Inc. P.O. Box 427, 651 East Third Street Hobart, IN 46342-2447 Phone: 219-945-1799 Fax: 219-945-0995 Marion County Bar Association Pro Bono Referral System 617 Indiana Ave Suite 209 Indianapolis, IN 46204-2504 Phone: 317-634-3950 Fax: 317-636-0600 American Civil Liberties Union of Indiana 1031 E. Washington Street Indianapolis, IN 46202 Phone: 317 635-4059 Indianapolis Legal Aid Society, Inc. 615 North Alabama Street Indianapolis, IN 46204 Phone: 317 635-9538 Neighborhood Christian Legal Clinic 2301 North Park Indianapolis, IN 46205 Phone: 317 4155337 Heartland Pro Bono Council 151 North Delaware Ste 1800 Indianapolis, IN 46204 Phone: 317-

614-5304 Fax: 317-631-9775 Kids Voice of Indiana - Children's Law Center of Indiana 5160 E. 65th Street Suite 109 Indianapolis, IN 46220 Phone: 317 558-2870 x50 Indianapolis Bar Association Standing Committee on Pro Bono 107 N Pennsylvania Street Suite 200 Indianapolis, IN 46204 Phone: 317 269-2000 Community Development Law Center 1802 N. Illinois Street Indianapolis, IN 46204 Phone: 317 921-8806 Fax: 317 921-8850 Indiana Legal Services 151 North Delaware Street Suite 1800 Indianapolis, IN 46204 Phone: 800 869-0212 Protective Order Pro Bono Project P.O. Box 1365 Indianapolis, IN 46206-1365 Phone: 812 8554800 Child Advocates, Inc. 4701 N. Keystone Suite 250 Indianapolis, IN 46205 Phone: 317 205-3055 City of Hammond Legal Aid Clinic Department 5925 Calumet Avenue Hammond, IN 46320 Phone: 219-853-6616 Fax: 219-853-6313 Howard County Legal Aid Program - Howard County Bar Association P.O. Box 667 Kokomo, IN 46903 Phone: 765 459-0764 Legal Services Program of Northern Indiana Lafayette Office - District 4 Pro Bono 639 Columbia Street P.O Box 1455 Lafayette, IN 47902-1455 Phone: 765 423-5327 800 382-7581 Fax: 765 423-2252 Legal Aid Corporation of Tippecanoe County, Inc. 212 N. 5th Street Lafayette, IN 47901-1404 Phone: (765) 742-1068 Fax: (765) 742-1069 District 5 Pro Bono 639 Columbia Street P.O. Box 1455 Lafayette, IN 47902-1455 Phone: 765 423-5327 800 382-7581 Fax: 765 423-2252 District 12 Legal Volunteers Pro Bono 318 N. Walnut Street Lawrenceburg, IN 47025 Phone: 812 537-0123 Fax: 812 537-7090 District 14 Indiana Legal Services (New Albany) 406 Pearl Street New Albany, IN 47150 Phone: 812 949-2292 Robert Maley Pro Bono Foundation 712 East Main Street Richmond, IN 47374 Phone: 765 9666843 District 9 Pro Bono Commission P.O. Box 94 Richmond, IN 47375 Phone: 800 935-5053

Shelby County Bar Association 21 West Taylor Street P.O. Box 835 Shelbyville, IN 46176 Phone: 317 392-2553 Fax: 317 392-2554 AIDS Ministries/AIDS Assist P.O. Box 11582 South Bend, IN 46634 Phone: 800-388-2347 Fax: 574-232-2872 Indiana Legal Services, Inc. (South Bend) 105 E Jefferson Blvd Ste 600 South Bend, IN 466011915 Phone: 574-234-8121 Fax: 574-239-2185 District 2 Pro Bono Legal Services Committee - The Volunteer Lawyer Network 52303 Emmons Road Suite 23 South Bend, IN 46637 Phone: 574 277-0075 Fax: 547 273-9545 District 7 Pro Bono 600 Wabash Avenue Terre Haute, IN 47802 Phone: 812 478-4942 Fax: 812 232-0870 Indiana Legal Services - Senior Law Project 321 Ohio Street Terre Haute, IN 47870 Phone: 812 234-0753 Fax: 812 232-3232

INDIANA DOMESTIC VIOLENCE CENTERS Battered & Abused Women's Help

Indiana domestic violence victims come from all walks of life, incomes, social ladders, professions, national origins, cultures, races, ages, genders, disabilities, marital status, veteran status and religions. Any form of abuse is damaging and can leave deep and lasting scars, weather its economic/financial, emotional, psychological abuse or physical violence. THE WARNING SIGNS: living in fear of a family member, intimate partner, close friend or housemate; light or dark bruises; visible injuries; loss of confidence; withdraw from friends and family; and feelings of sadness, helplessness, self-loathing, and desperation. Call 911 immediately if you feel that you or your children are in imminent danger. Also, domestic violence crisis counseling can be accessed by phone or in person which offer support and intervention groups for battered and abused women and children. In some cases, free legal help can be obtained for the low-income families.

Here's a list of Indiana domestic violence shelters for women and children: Nobel House205 East Highland, Albion, IN 46701Hotline: (260) 704-4889 Phone: (260) 6367160 Women's Alternatives, P.O. Box 1302 Anderson, IN 46015 Hotline: (866) 593-9999 Phone: (765) 643-0200 Women's Alternatives, P.O. Box 1302 Anderson, IN 46015 Hotline: 866-593-9999 Phone: 765552-1038 Community Anti-Violence Alliance, P.O. Box 482 Angola, IN 46703 Hotline: (260) 624-3600 Indiana University Sexual Assault Crisis Service, 600 North Jordan Bloomington, IN 47405 Hotline: (812) 855-8900 Phone: 812-855-4011 Middle Way House, P.O. Box 95 Bloomington, IN 47402 Hotline: (812) 336-0846 Phone: (812) 336-0846 Protective Order Project, Indiana Univ. School of Law 211 S. Indiana Avenue Room 010 Bloomington, IN 47405 Phone: 812-855-4800 Turning Point, P.O. Box 103Columbus, IN 47202 Hotline: (800) 221-6311 Phone: (812) 3799844

The Center for Women and Families, 405 N. Capital Ave Suite 102 Corydon, IN 47112 Hotline: (877) 803-7577 Phone: (812) 734-0280 Family Crisis Shelter of Montgomery County, P.O. BOX 254 Crawfordville, IN 47933Hotline: (800) 370-4103 Phone: (765) 362-2030 Saint Jude House: A Franciscan Community, 12490 Marshall St. Crown Point, IN 46307-4856 Hotline: (800) 254-1286 Phone: (219) 662-7066 Fax: (219) 662-3478 Adams Wells Crisis Center, P.O. Box 253 Decatur, GA 46733 Hotline: (877) 728-9800 Phone: (260) 724-7303 A Program of Family Services of Elkhart County, Inc. P.O. Box 2684 Elkhart, IN 46515Phone: (574) 294-1811 Phone: (574) 295-6596 Fax: (574) 294-1259 Albion Fellows Bacon Center, 650 Judson St Evansville, IN 47713 Phone: (812)-422-5622 Phone: (Sexual Assault) 812-424-7273 Fax: 800-339-7752 First Call for Help - Northeast Indiana, 334 East Berry St Fort Wayne, IN 46802 Phone: (260) 744-0700 Phone: (877) 502-0700 YWCA Women's Shelter, 1610 Spy Run Ave Ft. Wayne, IN 46805-4033 Hotline: (800) 4414073 Phone: (260) 447-SAFE-7233Phone: 260-424-4908 Gary Commission on the Status of Women, 839 Broadway, 3rd Floor Gary, IN 46402 Phone: (219) 883-4155 Rainbow Shelter for Battered Women, 305 Jackson Street Gary, IN 46402 Phone: (219) 8861600 Family Service of Central Indiana, Inc. 98 East North Street Greenfield, IN 46140 Phone: (317) 462-3733 Haven House, P.O. Box 508 Hammond, IN 46325 Phone: (219) 931-2090 Family Service of Central Indiana, Inc. 615 North Alabama Street Suite 320 Indianapolis, IN 46204 Phone: (317) 634-6341 Indiana Coalition Against Sexual Assault, 55 Monument Circle, Suite 1224Indianapolis, IN 46204 Hotline: (800) 691-2272Phone: (317) 423-0233 Fax: (317) 423-0237 Salvation Army Family Services, 540 N Alabama St Indianapolis, IN 46204 Phone: (317) 6375551 The Indiana Coalition Against Domestic Violence, 1915 W. 18th Street, Suite B Indianapolis, IN 46202 Hotline: (800) 332-7385 Phone: (317) 917-3685 Phone: (800) 538-3393

The Julian Center, 2011 North Meridian Street Indianapolis, IN 46202 Phone: (317) 941-2200 Phone: (317) 920-9320 Crisis Connection, Inc. P. O. Box 903 Jasper, IN 47547 Hotline: 1-800-245-4580 Crisis Connection, Inc. 607 3rd Ave P.O. Box 903 Jasper, IN 47547Hotline: (800) 245-4580 Phone: (812) 482-1555 Family Service of Central Indiana, Inc. 327 North Lebanon Street Suite 103 Lebanon, IN 46052Phone: (765) 482-6396Fax: (765) 482-0694 Family Service of Central Indiana, Inc, 465 South Main Street Suite 106 Martinsville, IN 46151 Phone: (765) 342-0202 The Stepping Stones Shelter, 414 Kennedy Ct Michigan City, IN 46360 Phone: (219) 879-4615 Phone: (800) 248-1151 Fax: (219) 879-4617 A Better Way, P.O. Box 734 Muncie, IN 47308-0734 Hotline/Crisis: (765)-288-4357 Phone: (765) 747-9107 YWCA Spouse Abuse Center, New Albany, IN Phone: (812) 944-3839 Family Services Inc, 1913 Crown Plaza Blvd Plainfield, IN 46168 Phone: 317-838-5966 Genesis of YWCA, 15 South 11th Street Richmond, IN 47375 Hotline: (800) 886-4508 Phone: (765) 935-3920 Crisis Connection, 501 Washington St Rockport, IN 47635Phone: 812-649-2303 The Center for Women and Families, P.O. Box 248 Sellersburg, IN 47172-0248 Phone: (812) 944-6743 Fax: (812) 945-6127 YWCA of Saint Joseph County, 1102 South Fellows StreetSouth Bend, IN 46601Phone: 574233-9491 Fax: 574-233-9616 Crisis Connection, Inc. 302 Main street, Suite 012 Tell City, IN 47586 Hotline: (800) 2454580Phone: (812) 547-8878 Bethany House/Catholic Charities of Terre Haute, 14th and Locust Terre Haute, IN 47808Hotline: 812-232-1447 Phone: 812-232-4978 Council on Domestic Abuse, 1400 Hulman Street, Terre Haute, IN 47802 Hotline: (812) 2321736 Phone: (812) 234-3441 Phone: 800-566-2632 The Caring Place, 3107 Cascade Drive Valparaiso, IN 46383 Hotline: (219) 464-2128 Phone: (800) 933-0466

The Beaman Home, P.O. Box 12 Warsaw, IN 46581-0012 Phone: (574) 267-7701 Phone: (574) 267-7701 RCWs > Title 26 > Chapter 26.09 > Section 26.09.260 Print Version | [No disponible en espaol] 26.09.255 << 26.09.260 >> 26.09.270 RCW 26.09.260 Modification of parenting plan or custody decree. (1) Except as otherwise provided in subsections (4), (5), (6), (8), and (10) of this section, the court shall not modify a prior custody decree or a parenting plan unless it finds, upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time of the prior decree or plan, that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child. The effect of a parent's military duties potentially impacting parenting functions shall not, by itself, be a substantial change of circumstances justifying a permanent modification of a prior decree or plan. (2) In applying these standards, the court shall retain the residential schedule established by the decree or parenting plan unless: (a) The parents agree to the modification; (b) The child has been integrated into the family of the petitioner with the consent of the other parent in substantial deviation from the parenting plan; (c) The child's present environment is detrimental to the child's physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child; or (d) The court has found the nonmoving parent in contempt of court at least twice within three years because the parent failed to comply with the residential time provisions in the courtordered parenting plan, or the parent has been convicted of custodial interference in the first or second degree under RCW 9A.40.060 or 9A.40.070. (3) A conviction of custodial interference in the first or second degree under RCW 9A.40.060 or 9A.40.070 shall constitute a substantial change of circumstances for the purposes of this section. (4) The court may reduce or restrict contact between the child and the parent with whom the child does not reside a majority of the time if it finds that the reduction or restriction would serve and protect the best interests of the child using the criteria in RCW 26.09.191. (5) The court may order adjustments to the residential aspects of a parenting plan upon a showing of a substantial change in circumstances of either parent or of the child, and without consideration of the factors set forth in subsection (2) of this section, if the proposed modification is only a minor modification in the residential schedule that does not change the residence the child is scheduled to reside in the majority of the time and:

(a) Does not exceed twenty-four full days in a calendar year; or (b) Is based on a change of residence of the parent with whom the child does not reside the majority of the time or an involuntary change in work schedule by a parent which makes the residential schedule in the parenting plan impractical to follow; or (c) Does not result in a schedule that exceeds ninety overnights per year in total, if the court finds that, at the time the petition for modification is filed, the decree of dissolution or parenting plan does not provide reasonable time with the parent with whom the child does not reside a majority of the time, and further, the court finds that it is in the best interests of the child to increase residential time with the parent in excess of the residential time period in (a) of this subsection. However, any motion under this subsection (5)(c) is subject to the factors established in subsection (2) of this section if the party bringing the petition has previously been granted a modification under this same subsection within twenty-four months of the current motion. Relief granted under this section shall not be the sole basis for adjusting or modifying child support. (6) The court may order adjustments to the residential aspects of a parenting plan pursuant to a proceeding to permit or restrain a relocation of the child. The person objecting to the relocation of the child or the relocating person's proposed revised residential schedule may file a petition to modify the parenting plan, including a change of the residence in which the child resides the majority of the time, without a showing of adequate cause other than the proposed relocation itself. A hearing to determine adequate cause for modification shall not be required so long as the request for relocation of the child is being pursued. In making a determination of a modification pursuant to relocation of the child, the court shall first determine whether to permit or restrain the relocation of the child using the procedures and standards provided in RCW 26.09.405 through 26.09.560. Following that determination, the court shall determine what modification pursuant to relocation should be made, if any, to the parenting plan or custody order or visitation order. (7) A parent with whom the child does not reside a majority of the time and whose residential time with the child is subject to limitations pursuant to RCW 26.09.191 (2) or (3) may not seek expansion of residential time under subsection (5)(c) of this section unless that parent demonstrates a substantial change in circumstances specifically related to the basis for the limitation. (8)(a) If a parent with whom the child does not reside a majority of the time voluntarily fails to exercise residential time for an extended period, that is, one year or longer, the court upon proper motion may make adjustments to the parenting plan in keeping with the best interests of the minor child. (b) For the purposes of determining whether the parent has failed to exercise residential time for one year or longer, the court may not count any time periods during which the parent did not exercise residential time due to the effect of the parent's military duties potentially impacting parenting functions. (9) A parent with whom the child does not reside a majority of the time who is required by the

existing parenting plan to complete evaluations, treatment, parenting, or other classes may not seek expansion of residential time under subsection (5)(c) of this section unless that parent has fully complied with such requirements. (10) The court may order adjustments to any of the nonresidential aspects of a parenting plan upon a showing of a substantial change of circumstances of either parent or of a child, and the adjustment is in the best interest of the child. Adjustments ordered under this section may be made without consideration of the factors set forth in subsection (2) of this section. (11) If the parent with whom the child resides a majority of the time receives temporary duty, deployment, activation, or mobilization orders from the military that involve moving a substantial distance away from the parent's residence or otherwise would have a material effect on the parent's ability to exercise parenting functions and primary placement responsibilities, then: (a) Any temporary custody order for the child during the parent's absence shall end no later than ten days after the returning parent provides notice to the temporary custodian, but shall not impair the discretion of the court to conduct an expedited or emergency hearing for resolution of the child's residential placement upon return of the parent and within ten days of the filing of a motion alleging an immediate danger of irreparable harm to the child. If a motion alleging immediate danger has not been filed, the motion for an order restoring the previous residential schedule shall be granted; and (b) The temporary duty, activation, mobilization, or deployment and the temporary disruption to the child's schedule shall not be a factor in a determination of change of circumstances if a motion is filed to transfer residential placement from the parent who is a military service member. (12) If a parent receives military temporary duty, deployment, activation, or mobilization orders that involve moving a substantial distance away from the military parent's residence or otherwise have a material effect on the military parent's ability to exercise residential time or visitation rights, at the request of the military parent, the court may delegate the military parent's residential time or visitation rights, or a portion thereof, to a child's family member, including a stepparent, or another person other than a parent, with a close and substantial relationship to the minor child for the duration of the military parent's absence, if delegating residential time or visitation rights is in the child's best interest. The court may not permit the delegation of residential time or visitation rights to a person who would be subject to limitations on residential time under RCW 26.09.191. The parties shall attempt to resolve disputes regarding delegation of residential time or visitation rights through the dispute resolution process specified in their parenting plan, unless excused by the court for good cause shown. Such a court-ordered temporary delegation of a military parent's residential time or visitation rights does not create separate rights to residential time or visitation for a person other than a parent. (13) If the court finds that a motion to modify a prior decree or parenting plan has been brought in bad faith, the court shall assess the attorney's fees and court costs of the nonmoving parent against the moving party.

[2009 c 502 3; 2000 c 21 19; 1999 c 174 1; 1991 c 367 9. Prior: 1989 c 375 14; 1989 c 318 3; 1987 c 460 19; 1973 1st ex.s. c 157 26.] Notes: Applicability -- 2000 c 21: See RCW 26.09.405. Intent -- Captions not law -- 2000 c 21: See notes following RCW 26.09.405. Severability -- Effective date -- Captions not law -- 1991 c 367: See notes following RCW 26.09.015. Severability -- 1989 c 318: See note following RCW 26.09.160.

 Section 61.13, Florida Statutes Section 61.13002, Florida Statutes

Section 61.13001
Posted on December 31, 2010 Parental relocation with a child. (1)DEFINITIONS.As used in this section, the term: (a)Child means any person who is under the jurisdiction of a state court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act or is the subject of any order granting to a parent or other person any right to time-sharing, residential care, kinship, or custody, as provided under state law. (b)Court means the circuit court in an original proceeding which has proper venue and jurisdiction in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, the circuit court in the county in which either parent and the child reside, or the circuit court in which the original action was adjudicated. (c)Other person means an individual who is not the parent, but with whom the child resides pursuant to court order, or who has the right of access to, time-sharing with, or visitation with the child. (d)Parent means any person so named by court order or express written agreement who is subject to court enforcement or a person reflected as a parent on a birth certificate and who is entitled to access to or time-sharing with the child. (e)Relocation means a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify timesharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child. (2)RELOCATION BY AGREEMENT. (a)If the parents and every other person entitled to access to or time-sharing with the child agree to the relocation of the child, they may satisfy the requirements of this section by signing a written agreement that: 1.Reflects consent to the relocation;

2.Defines an access or time-sharing schedule for the nonrelocating parent and any other persons who are entitled to access or time-sharing; and 3.Describes, if necessary, any transportation arrangements related to access or time-sharing. (b)If there is an existing cause of action, judgment, or decree of record pertaining to the childs residence or a time-sharing schedule, the parties shall seek ratification of the agreement by court order without the necessity of an evidentiary hearing unless a hearing is requested, in writing, by one or more of the parties to the agreement within 10 days after the date the agreement is filed with the court. If a hearing is not timely requested, it shall be presumed that the relocation is in the best interest of the child and the court may ratify the agreement without an evidentiary hearing. (3)PETITION TO RELOCATE.Unless an agreement has been entered as described in subsection (2), a parent or other person seeking relocation must file a petition to relocate and serve it upon the other parent, and every other person entitled to access to or time-sharing with the child. The pleadings must be in accordance with this section: (a)The petition to relocate must be signed under oath or affirmation under penalty of perjury and include: 1.A description of the location of the intended new residence, including the state, city, and specific physical address, if known. 2.The mailing address of the intended new residence, if not the same as the physical address, if known. 3.The home telephone number of the intended new residence, if known. 4.The date of the intended move or proposed relocation. 5.A detailed statement of the specific reasons for the proposed relocation. If one of the reasons is based upon a job offer that has been reduced to writing, the written job offer must be attached to the petition. 6.A proposal for the revised postrelocation schedule for access and time-sharing together with a proposal for the postrelocation transportation arrangements necessary to effectuate time-sharing with the child. Absent the existence of a current, valid order abating, terminating, or restricting access or time-sharing or other good cause predating the petition, failure to comply with this provision renders the petition to relocate legally insufficient. 7.Substantially the following statement, in all capital letters and in the same size type, or larger, as the type in the remainder of the petition: A RESPONSE TO THE PETITION OBJECTING TO RELOCATION MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE PARENT OR OTHER

PERSON SEEKING TO RELOCATE WITHIN 20 DAYS AFTER SERVICE OF THIS PETITION TO RELOCATE. IF YOU FAIL TO TIMELY OBJECT TO THE RELOCATION, THE RELOCATION WILL BE ALLOWED, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILD, WITHOUT FURTHER NOTICE AND WITHOUT A HEARING. (b)The petition to relocate must be served on the other parent and on every other person entitled to access to and time-sharing with the child. If there is a pending court action regarding the child, service of process may be according to court rule. Otherwise, service of process shall be according to chapters 48 and 49 or via certified mail, restricted delivery, return receipt requested. (c)A parent or other person seeking to relocate has a continuing duty to provide current and updated information required by this section when that information becomes known. (d)If the other parent and any other person entitled to access to or time-sharing with the child fails to timely file a response objecting to the petition to relocate, it is presumed that the relocation is in the best interest of the child and that the relocation should be allowed, and the court shall, absent good cause, enter an order specifying that the order is entered as a result of the failure to respond to the petition and adopting the access and time-sharing schedule and transportation arrangements contained in the petition. The order may be issued in an expedited manner without the necessity of an evidentiary hearing. If a response is timely filed, the parent or other person may not relocate, and must proceed to a temporary hearing or trial and obtain court permission to relocate. (e)Relocating the child without complying with the requirements of this subsection subjects the party in violation to contempt and other proceedings to compel the return of the child and may be taken into account by the court in any initial or postjudgment action seeking a determination or modification of the parenting plan or the access or time-sharing schedule as: 1.A factor in making a determination regarding the relocation of a child. 2.A factor in determining whether the parenting plan or the access or time-sharing schedule should be modified. 3.A basis for ordering the temporary or permanent return of the child. 4.Sufficient cause to order the parent or other person seeking to relocate the child to pay reasonable expenses and attorneys fees incurred by the party objecting to the relocation. 5.Sufficient cause for the award of reasonable attorneys fees and costs, including interim travel expenses incident to access or time-sharing or securing the return of the child. (4)APPLICABILITY OF PUBLIC RECORDS LAW.If the parent or other person seeking to relocate a child, or the child, is entitled to prevent disclosure of location information under a public records exemption, the court may enter any order necessary to modify the disclosure requirements of this section in compliance with the public records exemption.

(5)OBJECTION TO RELOCATION.An answer objecting to a proposed relocation must be verified and include the specific factual basis supporting the reasons for seeking a prohibition of the relocation, including a statement of the amount of participation or involvement the objecting party currently has or has had in the life of the child. (6)TEMPORARY ORDER. (a)The court may grant a temporary order restraining the relocation of a child, order the return of the child, if a relocation has previously taken place, or order other appropriate remedial relief, if the court finds: 1.That the petition to relocate does not comply with subsection (3); 2.That the child has been relocated without a written agreement of the parties or without court approval; or 3.From an examination of the evidence presented at the preliminary hearing that there is a likelihood that upon final hearing the court will not approve the relocation of the child. (b)The court may grant a temporary order permitting the relocation of the child pending final hearing, if the court finds: 1.That the petition to relocate was properly filed and is otherwise in compliance with subsection (3); and 2.From an examination of the evidence presented at the preliminary hearing, that there is a likelihood that on final hearing the court will approve the relocation of the child, which findings must be supported by the same factual basis as would be necessary to support approving the relocation in a final judgment. (c)If the court has issued a temporary order authorizing a party seeking to relocate or move a child before a final judgment is rendered, the court may not give any weight to the temporary relocation as a factor in reaching its final decision. (d)If temporary relocation of a child is approved, the court may require the person relocating the child to provide reasonable security, financial or otherwise, and guarantee that the court-ordered contact with the child will not be interrupted or interfered with by the relocating party. (7)NO PRESUMPTION; FACTORS TO DETERMINE CONTESTED RELOCATION.A presumption in favor of or against a request to relocate with the child does not arise if a parent or other person seeks to relocate and the move will materially affect the current schedule of contact, access, and time-sharing with the nonrelocating parent or other person. In reaching its decision regarding a proposed temporary or permanent relocation, the court shall evaluate all of the following:

(a)The nature, quality, extent of involvement, and duration of the childs relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the childs life. (b)The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the childs physical, educational, and emotional development, taking into consideration any special needs of the child. (c)The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court. (d)The childs preference, taking into consideration the age and maturity of the child. (e)Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities. (f)The reasons each parent or other person is seeking or opposing the relocation. (g)The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child. (h)That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations. (i)The career and other opportunities available to the objecting parent or other person if the relocation occurs. (j)A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation. (k)Any other factor affecting the best interest of the child or as set forth in s. 61.13. (8)BURDEN OF PROOF.The parent or other person wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the nonrelocating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.

(9)ORDER REGARDING RELOCATION.If relocation is approved: (a)The court may, in its discretion, order contact with the nonrelocating parent or other person, including access, time-sharing, telephone, Internet, webcam, and other arrangements sufficient to ensure that the child has frequent, continuing, and meaningful contact with the nonrelocating parent or other person, if contact is financially affordable and in the best interest of the child. (b)If applicable, the court shall specify how the transportation costs are to be allocated between the parents and other persons entitled to contact, access, and time-sharing and may adjust the child support award, as appropriate, considering the costs of transportation and the respective net incomes of the parents in accordance with the state child support guidelines schedule. (10)PRIORITY FOR HEARING OR TRIAL.An evidentiary hearing or nonjury trial on a pleading seeking temporary or permanent relief filed under this section shall be accorded priority on the courts calendar. If a motion seeking a temporary relocation is filed, absent good cause, the hearing must occur no later than 30 days after the motion for a temporary relocation is filed. If a notice to set the matter for a nonjury trial is filed, absent good cause, the nonjury trial must occur no later than 90 days after the notice is filed. (11)APPLICABILITY. (a)This section applies: 1.To orders entered before October 1, 2009, if the existing order defining custody, primary residence, the parenting plan, time-sharing, or access to or with the child does not expressly govern the relocation of the child. 2.To an order, whether temporary or permanent, regarding the parenting plan, custody, primary residence, time-sharing, or access to the child entered on or after October 1, 2009. 3.To any relocation or proposed relocation, whether permanent or temporary, of a child during any proceeding pending on October 1, 2009, wherein the parenting plan, custody, primary residence, time-sharing, or access to the child is an issue. (b)To the extent that a provision of this section conflicts with an order existing on October 1, 2009, this section does not apply to the terms of that order which expressly govern relocation of the child or a change in the principal residence address of a parent or other person.

Information Maintained by the Office of Code Revision Indiana Legislative Services Agency IC 31-17-2.2 Chapter 2.2. Relocation IC 31-17-2.2-1 Notice of intent to move residence; modifying orders; attorney's fees Sec. 1. (a) A relocating individual must file a notice of the intent to move with the clerk of the court that: (1) issued the custody order or parenting time order; or (2) if subdivision (1) does not apply, has jurisdiction over the legal proceedings concerning the custody of or parenting time with a child; and send a copy of the notice to any nonrelocating individual. (b) Upon motion of a party, the court shall set the matter for a hearing to review and modify, if appropriate, a custody order, parenting time order, grandparent visitation order, or child support order. The court shall take into account the following in determining whether to modify a custody order, parenting time order, grandparent visitation order, or child support order: (1) The distance involved in the proposed change of residence. (2) The hardship and expense involved for the nonrelocating individual to exercise parenting time or grandparent visitation. (3) The feasibility of preserving the relationship between the nonrelocating individual and the child through suitable parenting time and grandparent visitation arrangements, including consideration of the financial circumstances of the parties. (4) Whether there is an established pattern of conduct by the relocating individual, including actions by the relocating individual to either promote or thwart a nonrelocating individual's contact with the child. (5) The reasons provided by the: (A) relocating individual for seeking relocation; and (B) nonrelocating parent for opposing the relocation of the child. (6) Other factors affecting the best interest of the child. (c) The court may award reasonable attorney's fees for a motion filed under this section in accordance with IC 31-15-10. As added by P.L.50-2006, SEC.7. IC 31-17-2.2-2 Initial custody determination Sec. 2. (a) If a party provides notice of relocation at an initial hearing to determine custody, the court may consider the factors set forth in this chapter in the court's initial custody determination. (b) The court may consider a proposed relocation of a child as a factor in determining whether to modify a custody order, parenting time order, grandparent visitation order, or child support order. As added by P.L.50-2006, SEC.7. IC 31-17-2.2-3 Notice; information requirements Sec. 3. (a) Except as provided in section 4 of this chapter, an individual required to file a notice under IC 31-14-13-10 or section 1 of this chapter must:

(1) send the notice to each nonrelocating individual: (A) by registered or certified mail; and (B) not later than ninety (90) days before the date that the relocating individual intends to move; and (2) provide the following information in the notice: (A) The intended new residence, including the: (i) address; and (ii) mailing address of the relocating individual, if the mailing address is different than the address under item (i). (B) The home telephone number of the new residence. (C) Any other applicable telephone number for the relocating individual. (D) The date that the relocating individual intends to move. (E) A brief statement of the specific reasons for the proposed relocation of the child. (F) A proposal for a revised schedule of parenting time or grandparent visitation with the child. (G) A statement that a parent must file an objection to the relocation of the child with the court not later than sixty (60) days after receipt of the notice. (H) A statement that a nonrelocating individual may file a petition to modify a custody order, parenting time order, grandparent visitation order, or child support order. (b) Except as provided in section 4 of this chapter, if the relocating individual is unable to provide the information required under subsection (a)(2) not later than ninety (90) days before the relocating individual intends to move, the relocating individual shall provide the information in the manner required under subsection (a) not later than ten (10) days after the date that the relocating individual obtains the information required to be provided under subsection (a)(2). However, the relocating individual must provide all the information required under subsection (a)(2) not later than thirty (30) days before the relocating individual intends to move to the new residence. As added by P.L.50-2006, SEC.7. Amended by P.L.1-2007, SEC.194. IC 31-17-2.2-4 Risk or harm in disclosing information Sec. 4. If a court finds that disclosure of the information required under section 3 of this chapter creates a significant risk of substantial harm to the relocating individual or the child, the court may order: (1) that the address, the telephone number, or other identifying information of the relocating individual or child not be disclosed in the pleadings, other documents filed in the proceeding, or the final order; (2) that the information required under section 3 of this chapter be maintained by the clerk of the court in a secure location separate from the pending case file; (3) that the notice requirements under IC 31-14-13-10 or this chapter be waived to the extent necessary to protect the relocating individual or child from significant risk of substantial harm; or (4) other remedial action that the court considers necessary to facilitate the legitimate needs of the parties and the best interest of the child. As added by P.L.50-2006, SEC.7.

IC 31-17-2.2-5 Motion to prevent relocation; burden of proof Sec. 5. (a) Not later than sixty (60) days after receipt of the notice from the relocating individual under IC 31-14-13-10 or this chapter, a nonrelocating parent may file a motion seeking a temporary or permanent order to prevent the relocation of a child. (b) On the request of either party, the court shall hold a full evidentiary hearing to grant or deny a relocation motion under subsection (a). (c) The relocating individual has the burden of proof that the proposed relocation is made in good faith and for a legitimate reason. (d) If the relocating individual meets the burden of proof under subsection (c), the burden shifts to the nonrelocating parent to show that the proposed relocation is not in the best interest of the child. (e) If the nonrelocating parent fails to file a motion under subsection (a), the relocating individual who has custody of the child may relocate to the new residence. As added by P.L.50-2006, SEC.7. IC 31-17-2.2-6 Temporary order to restrain or permit relocation Sec. 6. (a) If a nonrelocating parent files a motion under section 5 of this chapter, the court, after notice and an opportunity to be heard or after compliance with Trial Rule 65(B), may grant a temporary order restraining the relocation of a child or order the child to be returned to the nonrelocating parent if the court finds: (1) that the notice required under IC 31-14-13-10 or this chapter was not served in a timely manner and the parties have not presented an agreement concerning a parenting time schedule; (2) that the child has been relocated without: (A) the appropriate notice; (B) an agreement between the parties; or (C) a court order; or (3) from an examination of the evidence presented at the temporary hearing, that there is a likelihood that, after a final hearing, the court will not approve the relocation of the child. (b) The court may grant a temporary order permitting the relocation of the child pending a final hearing if the court: (1) determines that the notice required under IC 31-14-13-10 or this chapter was provided in a timely manner; (2) issues an order for a revised schedule for temporary parenting time with the child; and (3) reviews the evidence presented at the temporary hearing and determines that there is a likelihood that, after the final hearing, the court will approve the relocation of the child. (c) If the court issues a temporary order authorizing the relocating individual to move, in its final judgment, the court must consider factors: (1) other than; or (2) in addition to; the temporary relocation of the child when issuing a final order. As added by P.L.50-2006, SEC.7.

Information Maintained by the Office of Code Revision Indiana Legislative Services Agency IC 31-17-2 Chapter 2. Actions for Child Custody and Modification of Child Custody Orders IC 31-17-2-1 Jurisdiction Sec. 1. Jurisdiction of a child custody proceeding under: (1) this chapter, IC 31-17-4, IC 31-17-6, and IC 31-17-7; or (2) IC 31-21 (or IC 31-17-3 before its repeal); shall be determined under IC 31-21 (or IC 31-17-3 before its repeal). As added by P.L.1-1997, SEC.9. Amended by P.L.138-2007, SEC.34. IC 31-17-2-2 Application of Indiana Rules of Civil Procedure Sec. 2. Proceedings under this chapter, IC 31-17-4, IC 31-17-6, and IC 31-17-7 must comply with the Indiana Rules of Civil Procedure. As added by P.L.1-1997, SEC.9. IC 31-17-2-3 Commencement of proceeding Sec. 3. A child custody proceeding is commenced in the court by: (1) a parent by filing a petition under IC 31-15-2-4, IC 31-15-3-4, or IC 31-16-2-3; or (2) a person other than a parent by filing a petition seeking a determination of custody of the child. As added by P.L.1-1997, SEC.9. IC 31-17-2-4 Repealed (Repealed by P.L.50-2006, SEC.9.) IC 31-17-2-5 Responsive pleading or counter petition Sec. 5. A responsive pleading or a counter petition may be filed under this chapter, IC 31-174, IC 31-17-6, or IC 31-17-7. As added by P.L.1-1997, SEC.9. IC 31-17-2-6 Hearing Sec. 6. Custody proceedings must receive priority in being set for hearing. As added by P.L.1-1997, SEC.9. IC 31-17-2-7 Court to determine law and facts Sec. 7. The court without a jury shall determine questions of law and fact. As added by P.L.1-1997, SEC.9. IC 31-17-2-8 Custody order Sec. 8. The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption

favoring either parent. The court shall consider all relevant factors, including the following: (1) The age and sex of the child. (2) The wishes of the child's parent or parents. (3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age. (4) The interaction and interrelationship of the child with: (A) the child's parent or parents; (B) the child's sibling; and (C) any other person who may significantly affect the child's best interests. (5) The child's adjustment to the child's: (A) home; (B) school; and (C) community. (6) The mental and physical health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent. (8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter. As added by P.L.1-1997, SEC.9. Amended by P.L.96-1999, SEC.7; P.L.133-2002, SEC.32. IC 31-17-2-8.3 Supervised parenting time; conviction of crime involving domestic or family violence; batterer's intervention program Sec. 8.3. (a) This section applies if a court finds that a noncustodial parent has been convicted of a crime involving domestic or family violence that was witnessed or heard by the noncustodial parent's child. (b) There is created a rebuttable presumption that the court shall order that the noncustodial parent's parenting time with the child must be supervised: (1) for at least one (1) year and not more than two (2) years immediately following the crime involving domestic or family violence; or (2) until the child becomes emancipated; whichever occurs first. (c) As a condition of granting the noncustodial parent unsupervised parenting time, the court may require the noncustodial parent to complete a batterer's intervention program certified by the Indiana coalition against domestic violence. As added by P.L.133-2002, SEC.33. Amended by P.L.68-2005, SEC.32; P.L.162-2011, SEC.12. IC 31-17-2-8.5 Consideration of de facto custodian factors Sec. 8.5. (a) This section applies only if the court finds by clear and convincing evidence that the child has been cared for by a de facto custodian. (b) In addition to the factors listed in section 8 of this chapter, the court shall consider the following factors in determining custody: (1) The wishes of the child's de facto custodian. (2) The extent to which the child has been cared for, nurtured, and supported by the de facto custodian. (3) The intent of the child's parent in placing the child with the de facto custodian. (4) The circumstances under which the child was allowed to remain in the custody of the de

facto custodian, including whether the child was placed with the de facto custodian to allow the parent now seeking custody to: (A) seek employment; (B) work; or (C) attend school. (c) If a court determines that a child is in the custody of a de facto custodian, the court shall make the de facto custodian a party to the proceeding. (d) The court shall award custody of the child to the child's de facto custodian if the court determines that it is in the best interests of the child. (e) If the court awards custody of the child to the child's de facto custodian, the de facto custodian is considered to have legal custody of the child under Indiana law. As added by P.L.96-1999, SEC.8. IC 31-17-2-9 Court interview of child in chambers Sec. 9. (a) The court may interview the child in chambers to ascertain the child's wishes. (b) The court may permit counsel to be present at the interview. If counsel is present: (1) a record may be made of the interview; and (2) the interview may be made part of the record for purposes of appeal. As added by P.L.1-1997, SEC.9. IC 31-17-2-10 Professional personnel; court consultation; cross-examination Sec. 10. (a) The court may seek the advice of professional personnel even if the professional personnel are not employed on a regular basis by the court. The advice shall be given in writing and made available by the court to counsel upon request. (b) Counsel may call for cross-examination of any professional personnel consulted by the court. As added by P.L.1-1997, SEC.9. IC 31-17-2-11 Temporary custodian Sec. 11. (a) If, in a proceeding for custody or modification of custody under IC 31-15, this chapter, IC 31-17-4, IC 31-17-6, or IC 31-17-7, the court: (1) requires supervision during the noncustodial parent's parenting time privileges; or (2) suspends the noncustodial parent's parenting time privileges; the court shall enter a conditional order naming a temporary custodian for the child. (b) A temporary custodian named by the court under this section receives temporary custody of a child upon the death of the child's custodial parent. (c) Upon the death of a custodial parent, a temporary custodian named by a court under this section may petition the court having probate jurisdiction over the estate of the child's custodial parent for an order under IC 29-3-3-6 naming the temporary custodian as the temporary guardian of the child. As added by P.L.1-1997, SEC.9. Amended by P.L.68-2005, SEC.33. IC 31-17-2-12 Investigation and report concerning custodial arrangements for child Sec. 12. (a) In custody proceedings after evidence is submitted upon the petition, if a parent or the child's custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child. The investigation and report may be made by any of the

following: (1) The court social service agency. (2) The staff of the juvenile court. (3) The local probation department or, if the child is the subject of a child in need of services case under IC 31-34, the department of child services. (4) A private agency employed by the court for the purpose. (5) A guardian ad litem or court appointed special advocate appointed for the child by the court under IC 31-17-6 (or IC 31-1-11.5-28 before its repeal). (b) In preparing a report concerning a child, the investigator may consult any person who may have information about the child and the child's potential custodian arrangements. Upon order of the court, the investigator may refer the child to professional personnel for diagnosis. The investigator may consult with and obtain information from medical, psychiatric, or other expert persons who have served the child in the past without obtaining the consent of the parent or the child's custodian. However, the child's consent must be obtained if the child is of sufficient age and capable of forming rational and independent judgments. If the requirements of subsection (c) are fulfilled, the investigator's report: (1) may be received in evidence at the hearing; and (2) may not be excluded on the grounds that the report is hearsay or otherwise incompetent. (c) The court shall mail the investigator's report to counsel and to any party not represented by counsel at least ten (10) days before the hearing. The investigator shall make the following available to counsel and to any party not represented by counsel: (1) The investigator's file of underlying data and reports. (2) Complete texts of diagnostic reports made to the investigator under subsection (b). (3) The names and addresses of all persons whom the investigator has consulted. (d) Any party to the proceeding may call the investigator and any person whom the investigator has consulted for cross-examination. A party to the proceeding may not waive the party's right of cross-examination before the hearing. As added by P.L.1-1997, SEC.9. Amended by P.L.146-2008, SEC.558. IC 31-17-2-13 Joint legal custody; finding required for award Sec. 13. The court may award legal custody of a child jointly if the court finds that an award of joint legal custody would be in the best interest of the child. As added by P.L.1-1997, SEC.9. IC 31-17-2-14 Joint legal custody; division of physical custody Sec. 14. An award of joint legal custody under section 13 of this chapter does not require an equal division of physical custody of the child. As added by P.L.1-1997, SEC.9. IC 31-17-2-15 Joint legal custody; matters considered in making award Sec. 15. In determining whether an award of joint legal custody under section 13 of this chapter would be in the best interest of the child, the court shall consider it a matter of primary, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody. The court shall also consider: (1) the fitness and suitability of each of the persons awarded joint custody;

(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare; (3) the wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age; (4) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody; (5) whether the persons awarded joint custody: (A) live in close proximity to each other; and (B) plan to continue to do so; and (6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody. As added by P.L.1-1997, SEC.9. Amended by P.L.3-2008, SEC.237. IC 31-17-2-16 Counseling for child Sec. 16. Upon: (1) the court's own motion; (2) the motion of a party; (3) the motion of the child; (4) the motion of the child's guardian ad litem; or (5) the motion of the court appointed special advocate; the court may order the custodian or the joint custodians to obtain counseling for the child under such terms and conditions as the court considers appropriate. As added by P.L.1-1997, SEC.9. Amended by P.L.129-2005, SEC.2. IC 31-17-2-17 Custodian may determine child's upbringing Sec. 17. (a) Except: (1) as otherwise agreed by the parties in writing at the time of the custody order; and (2) as provided in subsection (b); the custodian may determine the child's upbringing, including the child's education, health care, and religious training. (b) If the court finds after motion by a noncustodial parent that, in the absence of a specific limitation of the custodian's authority, the child's: (1) physical health would be endangered; or (2) emotional development would be significantly impaired; the court may specifically limit the custodian's authority. As added by P.L.1-1997, SEC.9. IC 31-17-2-18 Continuing supervision Sec. 18. If both parents or all contestants agree to the order or if the court finds that, in the absence of the order, the child's physical health might be endangered or the child's emotional development significantly impaired, the court may order: (1) the court social service agency; (2) the staff of the juvenile court; (3) the local probation department; or (4) a private agency employed by the court for that purpose; to exercise continuing supervision over the case to assure that the custodial or parenting time

terms of the decree are carried out. As added by P.L.1-1997, SEC.9. Amended by P.L.68-2005, SEC.34; P.L.146-2008, SEC.559. IC 31-17-2-19 Travel and other expenses of witnesses Sec. 19. The court may tax as costs the payment of necessary travel and other expenses incurred by any person whose presence at the hearing the court considers necessary to determine the best interests of the child. As added by P.L.1-1997, SEC.9. IC 31-17-2-20 Confidentiality of interview, report, or investigation Sec. 20. If the court finds it necessary to protect the child's welfare that the record of any interview, a report, or an investigation in a custody proceeding not be a public record, the court may make an appropriate order accordingly. As added by P.L.1-1997, SEC.9. IC 31-17-2-21 Modification of child custody order Sec. 21. (a) The court may not modify a child custody order unless: (1) the modification is in the best interests of the child; and (2) there is a substantial change in one (1) or more of the factors that the court may consider under section 8 and, if applicable, section 8.5 of this chapter. (b) In making its determination, the court shall consider the factors listed under section 8 of this chapter. (c) The court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described by section 8 and, if applicable, section 8.5 of this chapter. As added by P.L.1-1997, SEC.9. Amended by P.L.96-1999, SEC.9. IC 31-17-2-21.1 Delegation of parenting time during deployment; automatically terminates upon return Sec. 21.1. (a) Upon a motion of a parent who has received military deployment orders, the court may delegate the parent's parenting time, or a part of the parent's parenting time, during the time the parent is deployed to a person who has a close and substantial relationship with the parent's child if the court finds that delegating the parent's parenting time is in the best interests of the child. (b) If a court delegates parenting time under subsection (a), the order delegating parenting time automatically terminates after the parent returns from deployment. (c) A court may terminate an order delegating parenting time if the court determines that the delegated parenting time is no longer in the best interests of the child. As added by P.L.55-2012, SEC.3. IC 31-17-2-21.2 Military duties; expedited hearing; allow evidence by electronic means Sec. 21.2. (a) Upon a motion of a parent who has received military temporary duty, deployment, or mobilization orders, the court shall hold an expedited hearing to determine or modify the custody of a child or parenting time with a child if the military duties of the parent

have a material effect on the parent's ability to appear in person at a regularly scheduled hearing concerning custody or parenting time. (b) Upon a motion of a parent who has received military temporary duty, deployment, or mobilization orders, the court shall, with reasonable notice, allow the parent to present testimony and evidence by: (1) telephone; (2) video teleconference; (3) Internet; or (4) other electronic means approved by the court; in a custody or parenting time proceeding if the military duties of the parent have a material effect on the parent's ability to appear in person at a regularly scheduled hearing concerning custody or parenting time. As added by P.L.55-2012, SEC.4. IC 31-17-2-21.3 Parent's active duty service not a factor; temporary modification of custody Sec. 21.3. (a) A court may not consider a parent's absence or relocation due to active duty service as a factor in determining custody or permanently modifying a child custody order. (b) If a court temporarily modifies a custody order due to a parent's active duty service, the order temporarily modifying the custody order terminates automatically not later than ten (10) days after the date the parent notifies the temporary custodian in writing that the parent has returned from active duty service. This subsection does not prevent a court from modifying a child custody order as provided under this article after a parent returns from active duty service. As added by P.L.80-2010, SEC.45. IC 31-17-2-21.5 Security, bond, or guarantee Sec. 21.5. The court may provide in: (1) a custody order; or (2) a modification to a custody order; for the security, bond, or other guarantee that is satisfactory to the court to secure enforcement of the custody order. As added by P.L.171-2001, SEC.11. IC 31-17-2-21.7 Security, bond, or guarantee; determinations Sec. 21.7. (a) The court shall consider requiring security, a bond, or another guarantee under section 21.5 of this chapter if the court makes a finding under subdivision (1), (2), (4), or (7) by clear and convincing evidence. If the court makes a finding under subdivision (1), (2), (4), or (7), the court shall also consider subdivisions (3), (5), (6), (8), and (9) in determining the amount of security, bond, or other guarantee. In making a determination under this section, the court shall consider the following: (1) Whether a party has previously taken a child out of Indiana or another state in violation of a custody, parenting time, or visitation order. (2) Whether a party has previously threatened to take a child out of Indiana or another state in violation of a custody, parenting time, or visitation order. (3) Whether a party has strong ties to Indiana. (4) Whether a party:

(A) is a citizen of another country; (B) has strong emotional or cultural ties to the other country; and (C) has indicated or threatened to take a child out of Indiana to the other country. (5) Whether a party has friends or family living outside Indiana. (6) Whether a party does not have a financial reason to stay in Indiana, such as whether the party is unemployed, able to work anywhere, or is financially independent. (7) Whether a party has engaged in planning that would facilitate removal from Indiana, such as quitting a job, selling the party's primary residence, terminating a lease, closing an account, liquidating other assets, hiding or destroying documents, applying for a passport, applying for a birth certificate, or applying for school or medical records. (8) Whether a party has a history of marital instability, a lack of parental cooperation, domestic violence, or child abuse. (9) Whether a party has a criminal record. After considering evidence, the court shall issue a written determination of security, bond, or other written guarantee supported by findings of fact and conclusions of law. (b) If a motion for change of judge or change of venue is filed, the court may, before a determination of change of judge or change of venue, consider security, bond, or other guarantee under this chapter. As added by P.L.171-2001, SEC.12. Amended by P.L.68-2005, SEC.35. IC 31-17-2-22 Custodial parent's violation of injunction or temporary restraining order considered in custody modification Sec. 22. An intentional violation by a custodial parent of an injunction or a temporary restraining order issued under IC 31-17-4-4 or IC 31-17-4-5 (or IC 31-1-11.5-26 before its repeal) may be considered a relevant factor under section 8 of this chapter that the court must consider in a proceeding for a custody modification under section 21 of this chapter. As added by P.L.1-1997, SEC.9. IC 31-17-2-23 Repealed (Repealed by P.L.50-2006, SEC.9.) IC 31-17-2-24 Notice of passport application for child Sec. 24. (a) If either party to the custody order applies for a passport for the child, the party who applies for the child's passport shall do the following not less than ten (10) days before applying for the child's passport: (1) File a notice of the passport application with the clerk of the court that issued the custody order. (2) Send a copy of the notice to the other party. (b) The parties may jointly agree in writing to waive the requirements of subsection (a). As added by P.L.1-1997, SEC.9. IC 31-17-2-25 Petition for emergency placement with person other than noncustodial parent; hearing Sec. 25. (a) This section applies if a custodial parent or guardian of a child dies or becomes unable to care for the child.

(b) Except as provided in subsection (d), if a person other than a parent files a petition: (1) seeking to determine custody of the child; or (2) to modify custody of the child; that person may request an initial hearing by alleging, as part of the petition, or in a separate petition, the facts and circumstances warranting emergency placement with a person other than the noncustodial parent, pending a final determination of custody. (c) If a hearing is requested under subsection (b), the court shall set an initial hearing not later than four (4) business days after the petition is filed to determine whether emergency placement of the child with a person other than the child's noncustodial parent should be granted, pending a final determination of custody. (d) A court is not required to set an initial hearing in accordance with this section if: (1) it appears from the pleadings that no emergency requiring placement with a person other than the noncustodial parent exists; (2) it appears from the pleadings that the petitioner does not have a reasonable likelihood of success on the merits; or (3) manifest injustice would result. As added by P.L.146-2006, SEC.16.