On The Attempt To Use A Child As A Weapon

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Sam Wilkinson

According to a faithful reader, I'm Ordinary Times's "least thoughtful writer." So I've got that going for me, which is nice.

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  1. Avatar Francis
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    says:

    If anyone is ever feeling a little too chipper about humanity, please spend a few days in Juvenile Court. The utter ruin of young people’s lives is there for all to see.

    On a regular basis the public defender to whom I am married would come home with stories to the effect that the mother would ask the court to take her child off her hands because she couldn’t do anything with him. It was the State’s turn to teach him respect.

    Good parenting is the single most important job in the world.Report

  2. Avatar Oscar Gordon
    Ignored
    says:

    My son’s legal guardians (should my wife & I be killed) are my wife’s aunt & her partner. We made it very clear in our wills that this is to be so.

    It chills me that a judge could possibly do something like this, although the fact that we all live in WA makes it less likely, but still.Report

  3. Avatar Burt Likko
    Ignored
    says:

    Some random thoughts — which are in no way apologies for Judge Johansen’s obviously biased ruling.

    1. In Johansen’s mind, he may well have thought he was ruling in the child’s best interests. Within living memory, LGBTQ people were defined as “deviants,” “freaks,” and by definition mentally ill. There was little distinguishing between same-sex attraction and attraction to children. To be homosexual was to be the survivor of some childhood trauma so awful as to distort the natural order of things within the mind, and therefore likely to abuse a child in turn. Johansen seems likely to have come from that generation. Now, he ought not embrace such obviously false notions, particularly with such relish, in light of everything that’s happened between 1950 and today. That said, if you really thought a person was mentally ill and unusually likely to sexually abuse a child, you’d be inclined to not award them custody of a child too. The error is in equating homosexuality with these unrelated undesirable characteristics, and Johansen may be, at least emotionally, not willing to reject the linking of the two that he was socialized into believing as true.

    2. Johansen is a judge and we are criticizing a decision he has made while discharging his judicial office. Judges enjoy civil immunity for even the worst sorts of decisions that they make while discharging their offices. Decisions like this are almost certainly not likely to be reviewed by any other judge or appealed to any higher court; when they are, they come cloaked in presumptions of correctness. The sanction against them is typically that they must explain themselves to the voters when they stand for re-election. Johansen is therefore an elected official who may feel political pressure to make decisions in a way that reflects the political will of his constituency. If you think that in the task of making legal decisions that must vindicate the rights of sometimes unpopular people is inherently inconsistent with making political overtures that please the majority of voters, well, I agree with you.

    3. An important part of being a judge is not just being free from bias, but appearing free from bias. The reason for that is not only to have decisions made which are fair and just, but to encourage the public to trust the judicial system, so as to make the judicial function of the government work better on its own and in a way that the public accepts as legitimate. Johansen’s greatest sin may well have been not only issuing an biased and prejudiced decision, but doing so in an overt fashion, then pulling it back and pushing the case away to someone else. This reflects badly not just on Johansen but on the judiciary in general: some other judge is going to have to labor much harder than she otherwise should have had to, in order to re-inspire the trust of the public.Report

    • Avatar Kim in reply to Burt Likko
      Ignored
      says:

      Burt,
      Reports from Utah say the bastard does this sort of thing (arbitrary rulemaking, reducing sentences for letting mum give the kid a haircut…) all the time.

      Is he actually elected? Because he sounds like someone who shouldn’t be a judge. Too much grandstanding.Report

      • Avatar Burt Likko in reply to Kim
        Ignored
        says:

        I looked up the process. To get to be a judge in Utah, there is a three-step process.

        First, you meet five objective criteria: you must be a) a citizen of the United States; b) a resident of Utah for at least three years; c) admitted to practice law Utah; d) More than 25 years old; and e) not be older than 75 years. Second, you submit your name in an application to a nomination commission, which investigates and evaluates your suitability to serve as a judge. Third, when a vacancy in the judiciary opens up, the commission selects five to seven potential nominees depending on the type of judicial office in question (Johansen is a juvenile court judge), and the Governor selects from among those.

        The initial appointment is for a term of up to three years. Thereafter, there are up-and-down retention elections: voters are asked, “Should so-and-so be retained as a judge for a term of six more years?”

        Johansen was initially appointed to the bench in 1992. In 2014, just like every other judge in the State, he won his retention election by a margin of 76.2% and therefore will hold office through January of 2021 unless he is removed from office by the Utah Supreme Court (typically after an investigation and a hearing with full due process rights before the Utah Judicial Conduct Commission). Johansen’s margin of victory in his retention election was about middle of the road for all the judges on the ballot. Readily-available data goes back only to 2010, and in that time I can find no instance of either the Utah Judicial Conduct Commission recommending anything other than minor discipline for any judge nor any instance of any judge winning retention by less than a 70% margin.Report

    • Avatar Will H. in reply to Burt Likko
      Ignored
      says:

      With regard to maintaining office while in “good conduct,” it occurs to me that, in consideration of everything that constitutes “good conduct” for a judge,” most people incarcerated have been imprisoned for “good conduct.”Report

    • Avatar KatherineMW in reply to Burt Likko
      Ignored
      says:

      Burt, can you explain how this case works? As a layperson, I’m confused as to why a judge would be in a position to rule this. I thought things only went to the courts when someone (an individual, an organization, the state) brought a case before them. If no one but the judge objected to this adoption, why was he in a position to make a ruling on it?Report

      • Avatar greginak in reply to KatherineMW
        Ignored
        says:

        It is almost certainly because the child was in foster care. Children in foster care are in the custody of the state due to the parents being unable, for many possible reasons, to safely care for the child. The state will try to find an adoptive home for the child and if there is an adoption legal responsibility will transfer to the adoptive parents. But until then the CPS has to justify and explain what they are doing to a judge since the state has the ultimate responsibility to further the chlids best interests.Report

  4. Avatar Mike Schilling
    Ignored
    says:

    I recall a case in Florida, some time ago now, where a judge granted the petition of a woman to take custody of her granddaughter away from the child’s mother (her daughter), because the mother was a lesbian and this was an unhealthy environment for the child.

    It was noted at the time that he was, by his own logic, putting the child into an environment proven to produce lesbians.Report

  5. Avatar CJColucci
    Ignored
    says:

    He referenced social science research which allegedly showed that children raised in homes with a mother and a father did better than children raised in homes consisting of any other combination of parents.

    I get tired of hearing this offered as if it meant anything, even if true. For a very long time now, our society has held up the two-opposite sex-biological parent version of the family as the ideal type. Many formal institutions and informal customs heavily favor that sort of set-up. We are used to it. Nobody thinks it strange or in need of justification. It offers genuine conveniences if you can pull it off. Under the circumstances, it would be astonishing if that family structure didn’t have some child-rearing advantage.But I am unaware of any study that shows a large difference when you control for certain obvious variables, or shows that other types of family structures don’t also produce reasonably good results. There is no more “best interest of the child” justification for taking a child from one set of adequate parents to a different type of presumably adequate parents than there would be for taking just about any child from its family to be raised by Bill and Melinda Gates. And probably less.Report

    • Avatar DavidTC in reply to CJColucci
      Ignored
      says:

      There is actually pretty serious factor that determines how well a child does in life, and it’s nothing to do with who is raising them, but how much time and money can get spent on the child.

      That’s…it. That’s the difference. More money and/or more time. Everything really boils down to that.

      Considering that out gays couples are *still* slightly wealthier on average than straight couples (Which is probably more to do with who can *afford* to be out, but whatever.), logically, children raised by gay couples do *better* than those raised by straight couples, in terms of absolute outcomes.

      In fact, couples who *adopt* children tend to be wealthier than those who just *have* them, also. Likewise, couples that do not ‘automatically’ get pregnant but have to do something to end up that way (like lesbian couples) *also* tend to be wealthier.

      This is less because of them being ‘responsible’ per se, and more because a lot of parents are *very* irresponsible and can’t possibly raise a child on their current funds, but, uh, oops. If someone *chooses* to have a kid, they are, statistically, more likely to be prepared for one than J. Random Parent, who has something like a 20% chance of *not* being prepared.

      So by the logic who ‘who does better at raising children’, *logically*, we should take children away from poor straight couples and give them to rich gay couples. Or away from poor straight couples to poor gay couples, or to rich straight couples. Or, hell, we should take them away from poor straight couples that *didn’t* plan for a child (We could make them declare this in advance.) and give them to infertile poor straight couples that have asked to adopt.

      Or we could, you know, not do that, considering it would be insane. Almost as insane as thinking a moderately wealthy lesbian couple can’t raise a child.Report

      • Avatar CJColucci in reply to DavidTC
        Ignored
        says:

        I agree with all this, but I still wouldn’t be surprised to see a small edge for the traditional family structure, all other things being equal, simply because the playing field is largely designed with that structure in mind. And if there isn’t more than a small difference, even with this natural advantage, then that isn’t enough to drive either policy or individual decisions.Report

  6. Avatar Will H.
    Ignored
    says:

    These days, appended to every search warrant issued, in the invisible ink of caselaw, is written:
    . . . and kill all the house pets right in front of the children.

    Of course, were this to happen to the child of a gay couple, this would be a cause for concern.Report

  7. Avatar Barry
    Ignored
    says:

    Thanks for posting this, Sam.Report

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