1. Parental Rights: Protectiong Children and Empowering Parents
2. Legal Parents Rights Foundation
https://parentalrightsfoundation.org/legal/
3. National Parents Rights Association
4. National Association Of Parents
5. Father’s Rights Group and Shared Parenting Resources
https://www.verywellfamily.com › Parenting › Single Parenting
6. American Civil Rights Association Parents Rights Legislation
www.parentsinaction.net/english/Advocacy/ACLU%20against%20Parents.htm
By Jatara McGee |
Posted: Mon 7:18 PM, Jul 16, 2018 |
Updated: Tue 7:39 AM, Jul 17, 2018
KANAWHA COUNTY, W.Va. (WSAZ) -- UPDATE 7/16/18 @ 10:40 p.m.
A suspended West Virginia Child Protective Services worker was re-arrested late Monday night, state police say.
Dustin Kinser was arrested on a warrant stemming from a domestic incident Sunday night, troopers say. Kanawha County Sheriff's Deputies say they arrested him during a traffic stop Monday.
Kinser had posted bond in connection with the case of a 17-year-old girl who went missing from Lincoln County early this month and was found later in Kanawha County.
He was charged with contributing to the delinquency of a minor in that case.
Keep checking WSAZ Mobile and WSAZ.com for the latest information.
The teen was reported missing Saturday, July 7, after her family filed a police report with West Virginia State Police in Lincoln County. Family members say the teen is mentally unstable and feared she had run away from home.
Days later, South Charleston Police officers found the missing girl sitting in a vehicle with Dustin Kinser at McDonald's on Corridor G. Investigators believe the teenager had been with Kinser for several days before reaching out to a friend for help and giving the friend her exact location.
Police responded to the fast food restaurant shortly after.
According to a criminal complaint, Kinser traveled to the teenage girl's home in Lincoln County and picked her up after meeting her on a social media app and making the plans to meet up. Investigators say Kinser knew how old the girl was prior to meeting her.
"This person does hold a position of trust," says Senior Trooper M.R. Shaffer with the West Virginia State Police Crimes Against Children Unit. "Sometimes you do get a bad seed. You can't let one person determine your opinion of this organization as a whole."
Troopers tell WSAZ that Kinser is employed as a CPS worker in Kanawha County with the West Virginia Department of Health and Human Resources. He told investigators he found the teenager in Charleston and "felt sorry for her" so he took her to his house in the Campbell's Creek area of Kanawha County.
The teen's family had been searching for her for several days, concerned about her mental status.
"You have all the emotions going on of not knowing where this child is and not knowing if they're OK or in danger, if they're dead or alive," Senior Trooper Shaffer says.
During the investigation, troopers obtained a search warrant for Kinser's cell phone. He was then arrested and charged with contributing to the delinquency of a minor. The victim also told investigators Kinser has at least two inappropriate pictures of her.
In court records, investigators say Kinser took the 17-year-old to his home and also rented a hotel room in Kanawha City. During the time the teen was in his care, troopers say the girl was photographed with alcohol.
According to West Virginia State Police, Kinser has been suspended by the West Virginia Department of Health and Human Resources.
In an incident connected with the ongoing investigation, Kinser is facing felony charges for terroristic threats. The day after he was found in a car with the missing teenager and his phone was seized, court records allege Kinser threatened police officers.
According to a criminal complaint, Kinser called his mother several times on the phone, swearing at her and angry that police would not return his phone.
During the phone call, an officer heard Kinser say "let another pig pull up in here, and I'll pop all of them," a reference to shooting police officers.
Court records also allege that earlier that day, Kanawha County Sheriff's deputies were at Kinser's home while his wife got some of her things from the home. Deputies say while they were there, Kinser made a threat toward police officers.
Monday, he is out of jail on bond.
WSAZ has reached out to the West Virginia Department of Health and Human Resources for comment but has not heard back yet. We will update this story when we do.
Effective April 5th 2018, Wisconsin has passed 2017 Wisconsin Act 203 (Act). This Act repealed, amended, and created new law relating to relocating with a child who is subject of a legal custody or physical placement order. This new Act does make noticeable changes to the child removal statute.
Under Wis. Stat. 767.481, removal laws applied when one parent intended to establish a residence with a minor child outside of the state of Wisconsin or more than 150 miles within the state from the residence of the other party. The new Act applies the removal statutes when a parent intends to relocate and establish a residence with a minor child more than 100 miles away from the residence of the other party.
The legal process of moving with a minor child 100 miles away has also dramatically changed. Gone are the days of mailing notice of the intent to move and allowing for an objection period as stated under the previous removal statutes. Now if a parent intends to move, the parent shall file a formal motion with the court seeking permission for the child’s relocation. This motion shall include several things: a relocation plan stating the date of the proposed relocation, the municipality and state of the proposed new residence, the reason for the relocation, a proposed new placement schedule if applicable, and the proposed responsibility for the costs for each parent for transportation of the minor child. The motion shall also include a request for a change in legal custody if applicable.
If the non-moving parent objects to the move, he/she must file and serve, no later than five days before the initial hearing, an objection to the relocation and any alternate proposal, including a modification of physical placement or legal custody.
There are also new legal standards for deciding relocation motions. The court will still consider each of the custody and placement factors under Wis. Stat. 767.41(5); however, now the court shall approve the proposed relocation if the proposed relocation only minimally changes or affects the current placement schedule or does not affect or change the current placement schedule. There is also now a presumption that the court should approve the plan of the parent proposing the relocation if the court determines that the objecting parent has not significantly exercised placement. The movant bears the burden of proof in a contested relocation motion. If the presumption to approve the plan exists, then the parent objecting to the relocation shall have the burden of proof in demonstrating the proposed relocation is not in the child’s best interest.
Matters relating to children can be very emotional. A skilled and experienced attorney, such as the lawyers at Anderson & Anderson Law Office, S.C., can help you through the difficulties of such matters. If you have questions regarding how the new child removal act affects your case, please contact our office and schedule an appointment with one of our skilled family law attorneys.
To see the entire 2017 Wisconsin Act 203, please follow this link:
https://docs.legis.wisconsin.gov/2017/related/acts/203
https://www.andersonlawkenosha.com/news/law-update-wisconsin-child-removal-statute
I. INTERESTS PROTECTED
The Fourth Amendment of the U.S. Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The ultimate goal of this provision is to protect people’s right to privacy and freedom from unreasonable intrusions by the government. However, the Fourth Amendment does not guarantee protection from all searches and seizures, but only those done by the government and deemed unreasonable under the law.
To claim violation of Fourth Amendment as the basis for suppressing a relevant evidence, the court had long required that the claimant must prove that he himself was the victim of an invasion of privacy to have a valid standing to claim protection under the Fourth Amendment. However, the Supreme Court has departed from such requirement, issue of exclusion is to be determined solely upon a resolution of the substantive question whether the claimant's Fourth Amendment rights have been violated, which in turn requires that the claimant demonstrates a justifiable expectation of privacy, which was arbitrarily violated by the government.
In general, most warrantless searches of private premises are prohibited under the Fourth Amendment, unless specific exception applies. For instance, a warrantless search may be lawful, if an officer has asked and is given consent to search; if the search is incident to a lawful arrest; if there is probable cause to search and there is exigent circumstance calling for the warrantless search. Exigent circumstances exist in situations where a situation where people are in imminent danger, where evidence faces imminent destruction, or prior to a suspect's imminent escape.
On the other hand, warrantless search and seizure of properties are not illegal, if the objects being searched are in plain view. Further, warrantless seizure of abandoned property, or of properties on an open field do not violate Fourth Amendment, because it is considered that having expectation of privacy right to an abandoned property or to properties on an open field is not reasonable.
However, in some states, there are some exception to this limitation, where some state authorities have granted protection to open fields. States can always establish higher standards for searches and seizures protection than what is required by the Fourth Amendment, but states cannot allow conducts that violate the Fourth Amendment.
Where there was a violation of one’s fourth amendment rights by federal officials, A bivens action can be filed against federal law enforcement officials for damages, resulting from an unlawful search and seizure. Under the Bivens action, the claimant needs to prove that there has been a constitutional violation of the fourth amendment rights by federal officials acting under the color of law.
However, the protection under the Fourth Amendment can be waived if one voluntarily consents to or does not object to evidence collected during a warrantless search or seizure.
II. SEARCHES AND SEIZURES UNDER FOURTH AMENDMENT
The courts must determine what constitutes a search or seizure under the Fourth Amendment. If the conduct challenged does not fall within the Fourth Amendment, the individual will not enjoy protection under Fourth Amendment.
A. Search
A search under Fourth Amendment occurs when a governmental employee or agent of the government violates an individual's reasonable expectation of privacy.
Strip searches and visual body cavity searches, including anal or genital inspections, constitute reasonable searches under the Fourth Amendment when supported by probable cause and conducted in a reasonable manner.
A dog-sniff inspection is invalid under the Fourth Amendment if the the inspection violates a reasonable expectation of privacy. Electronic surveillance is also considered a search under the Fourth Amendment.
B. Seizure of a Person
A seizure of a person, within the meaning of the Fourth Amendment, occurs when the police's conduct would communicate to a reasonable person, taking into account the circumstances surrounding the encounter, that the person is not free to ignore the police presence and leave at his will.
Two elements must be present to constitute a seizure of a person. First, there must be a show of authority by the police officer. Presence of handcuffs or weapons, the use of forceful language, and physical contact are each strong indicators of authority. Second, the person being seized must submit to the authority. An individual who ignores the officer’s request and walks away has not been seized for Fourth Amendment purposes.
An arrest warrant is preferred but not required to make a lawful arrest under the Fourth Amendment. A warrantless arrest may be justified where probable cause and urgent need are present prior to the arrest. Probable cause is present when the police officer has a reasonable belief in the guilt of the suspect based on the facts and information prior to the arrest. For instance, a warrantless arrest may be legitimate in situations where a police officer has a probable belief that a suspect has either committed a crime or is a threat to the public security. Also, a police officer might arrest a suspect to prevent the suspect’s escape or to preserve evidence. A warrantless arrest may be invalidated if the police officer fails to demonstrate exigent circumstances.
The ability to make warrantless arrests are commonly limited by statutes subject to the due process guaranty of the U.S. Constitution. A suspect arrested without a warrant is entitled to prompt judicial determination, usually within 48 hours.
There are investigatory stops that fall short of arrests, but nonetheless, they fall within Fourth Amendment protection. For instance, police officers can perform a terry stop or a traffic stop. Usually, these stops provide officers with less dominion and controlling power and impose less of an infringement of personal liberty for individual stopped. Investigatory stops must be temporary questioning for limited purposes and conducted in a manner necessary to fulfill the purpose.
An officer’s reasonable suspicion is sufficient to justify brief stops and detentions. To determine if the officer has met the standard to justify the seizure, the court takes into account the totality of the circumstances and examines whether the officer has a particularized and reasonable belief for suspecting the wrongdoing. Probable cause gained during stops or detentions might effectuate a subsequent warrantless arrest.
C. Seizure of Property
A seizure of property, within the meaning of the Fourth Amendment, occurs when there is some meaningful interference with an individual’s possessory interests in the property.
In some circumstances, warrantless seizures of objects in plain view do not constitute seizures within the meaning of Fourth Amendment. When executing a search warrant, an officer might be able to seize an item observed in plain view even if it is not specified in the warrant.
III. WARRANT REQUIREMENT
A search or seizure is generally unreasonable and illegal without a warrant, subject to only a few exceptions.
To obtain a search warrant or arrest warrant, the law enforcement officer must demonstrate probable cause that a search or seizure is justified. A court-authority, usually a magistrate, will consider the totality of circumstances to determine whether to issue the warrant.
The warrant requirement may be excused in exigent circumstances if an officer has probable cause and obtaining a warrant is impractical in the particular situation. For instance, in State v. Helmbright, 990 N.E.2d 154, Ohio court held that a warrantless search of probationer's person or his place of residence is not violation of the Fourth Amendment, if the officer who conducts the search possesses “reasonable grounds” to believe that the probationer has failed to comply with the terms of his probation.
Other well-established exceptions to the warrant requirement include consensual searches, certain brief investigatory stops, searches incident to a valid arrest, and seizures of items in plain view.
There is no general exception to the Fourth Amendment warrant requirement in national security cases. Warrantless searches are generally not permitted in exclusively domestic security cases. In foreign security cases, court opinions might differ on whether to accept the foreign security exception to the warrant requirement generally and, if accepted, whether the exception should extend to both physical searches and to electronic surveillances.
IV. REASONABLENESS REQUIREMENT
All searches and seizures under Fourth Amendment must be reasonable. No excessive force shall be used. Reasonableness is the ultimate measure of the constitutionality of a search or seizure. Searches and seizures with the warrant must also satisfy the reasonableness requirement.
On the other hand, warrantless searches and seizures are presumed to be unreasonable, unless they fall within the few exceptions.
In cases of warrantless searches and seizures, the court will try to balance the degree of intrusion on the individual’s right to privacy and the need to promote government interests and special needs in exigent circumstances. The court will examine the totality of the circumstances to determine if the search or seizure was justified. When analyzing the reasonableness standard, the court uses an objective assessment and considers factors including the degree of intrusion by the search or seizure and the manner in which the search or seizure is conducted.
V. EXCLUSIONARY RULE
Under the exclusionary rule, any evidence obtained in violation of the Fourth Amendment will be excluded from criminal proceedings. There are a few exceptions to this rule.
VI. ELECTRONIC SURVEILLANCE
In recent years, the Fourth Amendment's applicability in electronic searches and seizures has received much attention from the courts. With the advent of the internet and increased popularity of computers, there has been an increasing amount of crime occurring electronically. Consequently, evidence of such crime can often be found on computers, hard drives, or other electronic devices. The Fourth Amendment applies to the search and seizure of electronic devices.
Many electronic search cases involve whether law enforcement can search a company-owned computer that an employee uses to conduct business. Although the case law is split, the majority holds that employees do not have a legitimate expectation of privacy with regard to information stored on a company-owned computer. In the 2010 case of City of Ontario v. Quon (08-1332), the Supreme Court extended this lack of an expectation of privacy to text messages sent and received on an employer-owned pager.
Lately, electronic surveillance and wiretapping has also caused a significant amount of Fourth Amendment litigation.
VII. THE USA PATRIOT ACT
Following the September 11, 2001 attacks on the World Trade Center and the Pentagon, Congress and the President enacted legislation to strengthen the intelligence gathering community’s ability to combat domestic terrorism. Entitled the USA Patriot Act, the legislation’s provisions aimed to increase the ability of law enforcement to search email and telephonic communications in addition to medical, financial, and library records.
One provision permits law enforcement to obtain access to stored voicemails by obtaining a basic search warrant rather than a surveillance warrant. Obtaining a basic search warrant requires a much lower evidentiary showing. A highly controversial provision of the Act includes permission for law enforcement to use sneak-and-peak warrants. A sneak-and-peak warrant is a warrant in which law enforcement can delay notifying the property owner about the warrant’s issuance. In an Oregon federal district court case that drew national attention, Judge Ann Aiken struck down the use of sneak-and-peak warrants as unconstitutional and in violation of the Fourth Amendment. See 504 F.Supp.2d 1023 (D. Or. 2007).
The Patriot Act also expanded the practice of using National Security Letters (NSL). An NSL is an administrative subpoena that requires certain persons, groups, organizations, or companies to provide documents about certain persons. These documents typically involve telephone, email, and financial records. NSLs also carry a gag order, meaning the person or persons responsible for complying cannot mention the existence of the NSL. Under the Patriot Act provisions, law enforcement can use NSLs when investigating U.S. citizens, even when law enforcement does not think the individual under investigation has committed a crime. The Department of Homeland Security has used NSLs frequently since its inception. By using an NSL, an agency has no responsibility to first obtain a warrant or court order before conducting its search of records.
Another aspect of the Patriot Act, which has been highly confidential was the Telephone Metadata program, which under § 215 of the Patriot Act, had allowed the NSA to collect data about Americans’ telephone calls in bulk, was reviewed by the Second Circuit in ACLU v. Clapper, in which the court held the Telephone Metadata program illegal under the Congress’ original intent under the §215.
The Patriot Act has expired in mid-2015, and since June 2nd, 2015 has been repackaged under the USA Freedom Act. Although it remains to be seen how the Freedom Act will be interpreted, with respect to the Fourth Amendment protections, the new Act selectively re-authorized the Patriot Act, while banning the bulk collection of data of American’s telephone records and internet metadata and limited the government’s data collection to the “greatest extent reasonably practical” meaning the government now cannot collect all data pertaining to a particular service provider or broad geographic region.
VIII. FORTH AMENDMENT AND SUPERVISED RELEASE/PAROLE
Probationers—convicted criminal offender who is released into the community under supervision of a probation officer in lieu of incarceration; or parolees—convicts who have served a portion of his judicially imposed sentence in penal institutions, and is released for the remainder of the sentence under supervision of a parole officer for good behavior—can also assert fourth amendment rights, creating a potential confrontation between fundamental constitutional guarantee and the society’s legitimate interest in correctional programs to prevent the convicts from lapsing back into a crime.
Traditionally, courts have struggled with various theories of parole and probation to justify the complete denial of fourth amendment rights to the convicts on supervised release or probation. The most prevalent of the theories was the “Custody Theory,” under which an offender was said to be entitled to no more liberty than he would have enjoyed had he been incarcerated. Recently, however, this rationale was rejected by Morrissey v. Brewer, which emphasized that the parolee’s status more closely resembles that of an ordinary citizen than a prisoner. While the Court noted that since parole revocation only changed the type of penalty imposed on an already-convicted criminal, the Court need not afford the parolees “the full panoply of rights” available under the fourteenth amendment to a free man facing criminal prosecution, the Court held that certain procedural protections must be guaranteed to the parolees facing revocation of the parole. In general, the released offenders now have been afforded full Fourth Amendment protection with respect to searches performed by the law enforcement officials, and warrantless searches conducted by correctional officers at the request of the police have also been declared unlawful.
However, in reviewing the searches undertaken by the correctional officers on their own initiative, some courts have modified the traditional Fourth Amendment protections to accommodate the correctional officers’ informational needs, developing a modified “Reasonable Belief” standard, under which the correctional officer is permitted to make a showing of less than probable cause in order to justify the intrusion of privacy into the released offender.
Last Edited by Jonathan Kim, June 2017
