Curricular Resources > 1994 Volume I > Unit 5 (94.01.05) > Section 9

Family Law, Family Lives: New View of Parents, Children and the State

CONTENTS OF CURRICULUM UNIT 94.01.05

Unit Guide

To what extent is the application of family law in the best interests of children?

Luis Recalde

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Footnotes

1 In the preliminary budget summary for 1993-94, New Haven shows a projected 3.67% decrease in the amount of money spent on education.
2 Yale has created a myriad of programs together and in partnership with New Haven. Cf. Community Partnership Source Book , Yale University Office of the Secretary, March 1993.
3 In the Law Dictionary by Steven H. Gifis (Woodburry, New York: Barron’s Educational Series, Inc. 1984), p. 368, PRO BONO PUBLICO means “for the public good or welfare. When attorneys take on cases without compensation to advance a social cause, they are said to be representing the party “pro bono publico” or “pro bono.”
4 Away from the pro bono representation, when it comes to money and the family in court, as in custody disputes for example, lawyers are the ones who get all the money, at the same time that they predicate the best interests of the children. We all know that legal fees are exorbitant. An impoverished family could never be in the best interests of the children. There is a popular sentiment that says that in a divorce nobody wins except the lawyers.
5 Colleen Foye Bollen, “When children take action,” Mothering (Spring 1994), pp. 89-90.
6 See, for example, standards 4 and 5 where mathematical concepts, procedures and connections reveal communication and language as central and pivotal components of the overall growth of the student. See, Professional Standards for Teaching Mathematics . National Council of Teachers of Mathematics. Reston Virginia: The National Council of Teachers of Mathematics, 1991, pp. 89-103, et passing
7 In this respect we could also say that a student could develop science sense, but no matter what aspect of learning and perception we are talking about the common denominator is language. So we might say that in order to learn language we really would have to explore all aspects of a civilization; the more we explore, the further we internalize a sense of that civilization.
8 Judge Charles D. Gill, in “We look at children as property,” by Alix Boyle, The New York Times (Sunday, November 24, 1991).
9 Language encompasses all fields of knowledge. Although our approach is of a multidisciplinary nature, our essay presents to the student an enrichment in language that hopefully would enable him or her to view those fields of knowledge as interrelated entities. In this curriculum unit we are interested in taking one aspect of the written and spoken language that pertains to that specialized field of the law referred as family law. This aspect is the best interests of the children as viewed in a sample of case studies.
10 By “formulating a language” we mean to set the ground to build a discourse in the classroom that would give the student a vehicle and a reservoir of expressiveness for his or her rights as a human being. In a classroom situation this formulation would give the student language sense. We say that a student has language sense when that person reflects consciously on that language. And for this kind of thinking we need a language that includes flexibility, a specialized lexicon, and a sense of conviction that problems could be solved in many different ways.
11 According to the sociologist Lenore Weitzman the traditional conception of the property of the children and dominance over the wife in the Anglo world could be traced back to the tenth- and eleventh-century common-law doctrine of coverture. Under this doctrine the wife and children took the single legal identity of the husband. See, “Intimate Violence,” by Richard J. Gelles and Murray A. Strauss, Family Matters: Reading on Family Lives and the Law (New York: m e New Press, 1993), p. 196. Under Roman law the husband could kill and dispose at will of children and could also put to death an adulterous wife (Ibid). “ The Babylonian, Greek, and Roman Concept that children were economic units to be manipulated by their owners flourished again in nineteenth century England.” Brian G. Fraser “ m e child and his parents: a delicate balance of rights,” The Family and the Law (1976), p. 323.
12 It is our understanding that students are introduced to the study of the law at the high school level, namely ninth and tenth grades.
13 Although this is true for all students, when we speak about students at-risk we find this negative attitude is extremely deleterious for their development. In this respect Lewis and Doorlag tells us that “More than 1 out of 5 teachers working with at-risk students in urban schools do not believe that all students are capable of learning; these low expectations can become a self-fulfilling prophecy.” See Teaching Special Students in the Mainstream (New York: Macmillan Publishing Company, 1991), p. 432.
14 Before a person could actually vote he or she should have sufficient knowledge of what that person is voting for. I think that an understanding of the dynamics of an issue is more important than the age of the person. The degree of knowledge of a particular discourse is directly bound to the knowledge of language. Concepts are built with language. Students who have difficulty with academic language will have a greater challenge understanding the language of the law. And then again, we might be in for some surprises since students who are otherwise disinterested in language show great interest in matters that hit close to home.
15 If children participate in giving their personal opinion and desire, generally speaking, it is through the voice of an adult. In New York there is an organization of lawyers called “Lawyers for Children.” Through the work of these lawyers, according to our seminar leader, Professor Burtt, children are given the opportunity to be heard and be taken seriously. Judges are generally unresponsive, but cases are presented as findings of group.
16 In some cases the teacher might look for ways to involve the student in the process of intervention. “Can they record their own personal data? help to develop contingency contracts? serve as models or recorders for other students?” Lewis and Doorlag, 1991, 296.
17 The State of Connecticut makes the law, and changes in the law, without proper consultation of the segment of the population to whom these changes are going to affect directly. This is a clear example where the law is not created in the best interests of the children since they are not being represented fairly. This concerns Bill NQ 321. This bill contains a number of issues regarding bilingual education. For example, the move for “changes to the current laws on the education of limited English proficient students (LEP) that could potentially Jeopardize Bilingual Education Programs in Connecticut.” News Alert, from Lisette Bernier-McGowan, Bilingual Education Supervisor at Gateway (New Haven, 1994).
18 Edmund Lindop, The Bill of Rights and Landmark Csses (New York: Franklin Watts, 1989), p. 129. “The first juvenile court was established in 1899 in Chicago...” Ibid.
19 John R. Bird, “Juvenile corrections facilities: is there any room for the isolation room?,” in Legal Advocacy for Children and Youth: Reforms, trends, and Contemporary Issues, Howard Davidson and Robert Horowitz, compilers (Washington D.C.: American Bar association, 1986), p. 176. We must point out that in the structure of language this statement is an irony.
20 There are two kinds of bilingual classes in the school system in New Haven: on the one hand, we have the one way bilingual situation where the student, mainly a Spanish speaking student, is engaged in learning English and the subject matter with the help of Spanish; on the other, we have the two way bilingual class where students both English and Spanish speaking learn each other’s languages and the subject matter.
21 A sense of powerlessness left by the absence of language.
22 But let’s be honest with ourselves first in order to go on and do our jobs in the best way possible with our students. The challenge is there and it reoccurs every day in the class. What do we do when in a classroom the father of one of the students has been killed by the aunt of another student in the same classroom? What do we do when in the same classroom, day after day, a young lady is announcing to the teacher, all year long, that her mother is finally coming home from jail after wrongfully being accused of murdering a man? What do we do when just about every student has a member of the family or someone close to the family in jail? In spite of all this pain, these students are beautiful people. And they learn as fast as any other child in the world and sometimes faster. We could only say that empowerment begins with a knowledge of the language of the law. This is a proposition as a counterbalance to violence, and an enjoyable one.
23 See below.
24 Ross R.Olney & Patricia J. Olney, Up Against the Law: Your legal Rights as a Minor (New York: E.P. Dutton, Inc., 1985), p. 3.
25 0n the history of the traditional outlook see Fraser, 1976: 315-425.
26 Boyle, 1991. In an interview Judge Gill said that he did not agree that children had rights. “I first became interested in procuring those rights for children after 25 years in the court system, seeing children being the lost souls of the system, seeing children being abused by the system in the civil courts, in the criminal courts, in the juvenile courts and most certainly in the family courts” (Ibid). See also pamphlet published by the National Task Force for Children’s Constitutional Rights.
27 Boyle, 1991.
28 William O’Donnell & Jones, the Law of Marriage and Marital Alternatives (Lexington, Mass.: Lexington Books, 1982), p. 91.
29 Ibid.
30 Assuming that unborn child will be born by the time of divorce.
31 For adult readers see, Geoffrey R. Stone, Louis M. Seidman, et al., Constitutional Law (Boston, Toronto: Little, Brown and Company, 1986), pp. xxxixliv, et passim. For students, Jean Fritz, Shh! We’re Writing the Constitution (New York: G.P. Putnam’s Sons, 1987), pp. 49-64. Also, Donald A. Ritchie, The U.S. Constitution (New York: Chelsea House Publishers, 1989).
32 “Episode 1: The President Versus Congress: Executive Privileges and Delegation of Powers.” The Constitution that Delicate Balance (New York: The John D. & Catherine T. MacArthur Foundation. Library Video Classics Project, 1984).
33 Article I of the Constitution.
34 Article II of the Constitution.
35 Article III of the Constitution.
36 Students love to send letters to their pen pals.
37 Donald A. Ritchie, The U.S. Constitution (New York: Chelsea House Publishers, 1989), p. 55. Brown v. Board of education, 347 U.S. 483 (1959). Also see, Elaine and Walter Goodman, The Rights of the People: Major Decisions of the Warren Court (New York: Farrar, Straus and Giroux, 1971), pp. 15-34.
38 Bollen, 1994: 89-90.
39 Article 1, section 1 of the Constitution.
40 Elizabeth Levy, If You Were there when They Signed the Constitution (New York: Scholastic Inc., 1987), pp. 49-51.
41 Levy, 1987: 51
42 Is this what is meant by “a second class citizen?”
43 Levy: 55.
44 Ibid.
45 We have taken this idea from the curriculum presently being developed in the field of science in the New Haven Public School System. Being developed in Region 15 in Connecticut, this method has potential in other fields of academic endeavor. A positive feature is the participatory and inclusive nature of the format: students and teachers are participants in the evaluating process.
46 Susan M. Silverman, “Stepparent visitation rights: toward the best interests of the child,” Journal of Family Law (Vol. 30, 91/92), pp. 947-48.
47 “Transracial Adoption: ‘Child-Saving’ or ‘Child-Snatching,’” 13 National Black Law Journal (Spring 1993), pp. 154-155.
48 Elizabeth S. Scott, “Pluralism, parental preference, and child custody,” California Law Review (Vol. 80, No. 3, May 1992), p. 615617.
49 Ibid., p. 616
50 Morality should be interpreted here as what is moral and what is immoral. Moral, we say, is what leads to happiness, what gives us pleasure; immoral is what bring us pain.
51 Let’s remember Judge Gill who thinks that children don’t have any rights. He started working as a lawyer in the Hill section of New Haven 25 years ago (Boyle, 1991).
52 Advocating the rights of children and acting on it might be a way to ease the pain.
53 Lee E. Teitelbaum, “Family history and family law,” Family Law. Volume I: Society and Family (Aldershot, Hong Kong: Dartmouth, 1992), p. 96, et passim.
54 Supreme Court of the United States, 1977. 430 U.S. 651. 97 S. Ct. 1401, 51 L.Ed.2d 711. In this case we have many of the 237 schools in Dade County used corporal punishment. “The statute then in effect authorized limited corporal punishment...” Ibid.
55 All videos on the Constitution are available at the New Haven Public Library.

BIBLIOGRAPHY

Bird, John R. “Juvenile corrections facilities: is there any room for the isolation room?” in Legal Advocacy for Children and Youth: Reforms, Trends, and Contemporary Issues, Howard Davidson and Robert Horowitz, compilers. Washington D.C.: American Bar association, 1986.

Community Partnership Sourcebook. Yale University Office of the Secretary. March 1993.

Edelman, Marian Wright. Families in Peril: An Agenda for Social Change. Cambridge: Harvard University Press, 1987.

Gifis, Steven H. Law Dictionary. Woodburry, New York, London: Barron’s Educational Series, Inc., 1989.

Goldstein, Joseph, Anna Freud, Albert J. Solnit. Before the Best Interest of the Child. New York: The Free Press, 1979.

Minow, Martha, editor. Family Hatters: Reading on Family Lives and the Law. New York: The New Press, 1993.

O’Donnell, William J. and David A. Jones. The Marriage and Marital Alternatives. Lexington, Mass.: D.C. Heath and company, 1982.

Scott, Elizabeth. “Pluralism, parental preference, and child custody.” California Law Review. Vol. 80, No. 3. May 1992, pp. 615-672.

Shapo, Helene S., Marilyn R. Walter and Elizabeth Fajans. Writing and Analysis in the Law. Westbury, New York: The Foundation Press, Inc., 1989.

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