Same-sex Couples, Surrogacy, and Custody

Child custody is often a complex and contested issue in the contexts of divorce and legal separation.  Parties may dispute the child’s best interests, including how much time the child should spend with each parent, where the child should live and attend school, whether grandparents should be entitled to a minimum amount of time with a child, and myriad other issues.


At times, parties may also dispute the child’s biological parentage, which can usually be resolved with a DNA test.  Consider the following scenario, however, with which Arizona courts have struggled:

A same-sex couple conceived a child using an anonymous sperm donor.  Fertility specialists fertilized one partner’s egg and implanted it in the other partner’s uterus, who carried and bore the child.  Eventually, the parties decided to separate, and they turned to the courts to resolve both the child’s biological parentage and the appropriate parenting time to which each partner should be entitled.

In this example, the parties had no surrogacy contract and Arizona law is arguably unclear about legal parent status in this context, so the court temporarily assigned week-on/week-off parenting time to each partner so that the child would be comfortable with both potential parents.

The court moved on to the issue of legal parenthood, citing both Arizona cases and cases from other states in its holding that the legal parent of the child is the partner who provided the egg – the only partner with a direct genetic link to the child.  The court noted that prior rulings which held that surrogate mothers were the legal parents of children they had carried were held unconstitutional because they provided no opportunity for the genetic mother to stake her claim for legal parental status.


The court also held, however, that the surrogate partner may be considered in loco parentis to the child – and could still seek a ruling entitling her to visitation with the child.

Because this case was one of first impression in Arizona, a prolonged process of appeals is likely to follow.  Because of the diversity of holdings on similar issues in other states, it is nearly impossible to predict how the case will finally be resolved.

Complex determinations can take a long time to resolve, especially if the court’s ruling is appealed.  Arizona case law states that the legal parent, defined as the biological or adoptive parent, is entitled to priority over the non-legal parent unless it is not in the child’s best interest.


Injunction Against Procreation in Child Support Case

A Wisconsin court issued an injunction on Dec. 3 which prohibits a father of nine from having any more children until he demonstrates that he can support the ones he already has.  The man owes close to $100,000 in unpaid child support and interest.


Associated Press reports that a similar probation condition was issued in Wisconsin in 2001, prompting a series of unsuccessful appeals.  Because the injunction is temporary and dissolves when child support payments resume, the Wisconsin Supreme Court held that it does not violate the due process clause of the Fourteenth Amendment – which implicitly includes the substantive right to procreate – or the Eighth Amendment safeguard against cruel and unusual punishments.

The judge who issued the most recent ruling, however, openly lamented the fact that he did not have the authority to order sterilization.  The judge cited “common sense” in declaring that an individual who cannot support children should not have them.  An injunction prohibiting procreation was not part of the pre-sentencing investigation guidelines submitted by the state.

The punishment for violating a probation condition which restricts procreation is unclear beyond typical sanctions for violating a court order.  Although sterilization is unlikely, as evidenced by Judge Boyle’s comments, any punishment imposed for procreation treads on thin constitutional ice in spite of the undisputed importance of making timely child support payments.


If nothing else, this case illustrates the high stakes whenever family and criminal law intersect – that which appears to be a simple probationary hearing for failure to pay child support can evolve into a complex analysis of state and federal law.  If judges continue to issue sentences like the one in Wisconsin, it may not be long before an appeal is carried all the way to the U.S. Supreme Court.

If you are involved in any family or related criminal law case – including divorce, child support or custody matters, or any form of hearing involving Child Protective Services – do not attempt to move forward without consulting an attorney.  Your rights are best protected when you have the aid of qualified counsel as early in the process as possible.

Petraeus Scandal: “Royally Screwed Up”

For several weeks, the adultery scandal perpetrated by former CIA Director David Petraeus has dominated the news.  There are countless talking points surrounding the scandal (and virtually everyone has an opinion about them), but one key feature stands out: General Petraeus’ military career.


Adultery is rarely prosecuted in the few states in which it is still considered a crime.  Generally, the consequences of adultery play out most prominently in the divorce setting.  In some states, a finding that adultery has occurred could result in significant modifications during asset division, as well as in spousal maintenance and child custody determinations.  Arizona, however, is a “no-fault” state which means that the basis for the divorce has no bearing on whether one can obtain a divorce and also does not (in most cases) affect the equitable division of property or an award of spousal maintenance. Generally the only impact adultery may have on asset division in Arizona would be if the injured spouse could prove to the court that the adultery resulted in financial waste to the community (think romantic trips, jewelry, gifts, etc.).

In the military, however, adultery can have much more serious legal consequences.  Uniform Code of Military Justice, Article 134 (UCMJ 134) prohibits “all conduct of a nature to bring discredit upon the armed forces,” and adultery has historically been included within such conduct.  Proving that the conduct brought “discredit upon the armed forces” is a difficult standard to overcome, but the Petraeus scandal would certainly qualify – the scandal has, after all, drawn worldwide attention to the military, the CIA, and the United States government as a whole.


Court-martials for adultery have grown less common in recent years, but they do occur.  The most common avenue through which adultery comes to light in the military setting is through divorce proceedings – if a serviceperson admits to adultery during a divorce, they may be subject to a court-martial and subsequent discipline (in addition to the civil disadvantages that may occur in the state court’s dissolution action).

Life as a member of the Armed Forces differs in many ways from the lives of civilians.  An attorney with knowledge of military divorces and the unique challenges they present will ensure that your rights and assets are protected throughout the process.  Attempting to navigate the interactions of federal, state, and military law which take place during a military divorce without an attorney could expose you to both civil and – as illustrated by the Petraeus scandal – criminal penalties.

The Impact of Tattoos in a Custody Case

I bet you would never think that your tattoos could impact a custody decision. Recently, I had an opposing attorney compel my client to provide a detailed explanation as to the meanings of his tattoos.  It was a strange request, but in light of his prior criminal history, it was deemed relevant.

In complying with the request, I invited my client into the office for a meeting that we dubbed “Tattoo Inventory.”  My legal assistant, with her digital camera in hand, was summoned to the conference room where my client was asked to remove his shirt, so we could provide the requested explanation of his tattoos.  Putting aside my shock, as I realized that there was not a piece of skin from above his wrist to below his neck that was not covered in tattoos, we began the process of documenting and explaining their meaning.

Who would have thought that tattoos could impact a custody case?  Imagine if the tattoos documented drug and gang activity – could a judge base a parenting time decision on the nature of one parent’s tattoos?  The First Amendment guarantee of freedom of speech immediately comes to mind, and the Arizona Supreme Court recently decided a case in which the speech element of tattoos was at issue (although in a different context than in the child custody scenario).

In Coleman v. City of Mesa, the Court analyzed a claim by the owners of a tattoo shop that they were illegally denied a city zoning permit to operate their shop.  The lower court initially dismissed the claim, but the Arizona Supreme Court declared that tattooing is a protected form of “pure speech” under the First Amendment and that the lower court should have heard the case.

It remains unclear how the case will ultimately be resolved – the shop owners still must succeed in showing that the denial was an invalid exercise of the city’s authority – but this case may signal a shift in the way that Americans view tattoos.

The high court’s decision to treat tattooing as a protected form of speech should, at minimum, give more freedom to the owners and operators of tattoo parlors to practice their trade in areas of cities like Scottsdale, Chandler, and Cave Creek which might previously have been unavailable to them.  Furthermore, the court’s acknowledgment of tattoos as speech could open the door for additional challenges in employment and other arenas – including custody and adoption cases.

Upcoming Changes to Custody Laws

Whether going through a custody battle or not, most people are familiar with the longstanding terms of “custody” and “visitation”.  Additionally, most people who have gone through a custody case are familiar with the term “best interests”.

Determination of the “child’s best interests” is usually the most highly contested issue in custody proceedings, and the services of a knowledgeable attorney are invaluable even if the child’s interests seem clear.  That fact will become even truer next year.

Beginning January 1, 2013, Arizona’s custody laws are changing.  Although some of the changes are only a conversion of the language used (e.g. changing “custody” with “legal decision-making” and “visitation” to “parenting time”), many others could have a significant effect on the ways that families resolve disputes regarding their children.

Factors to consider in determining the child’s best interest.  Several changes will be made to the “best interests” factors.  These changes include modifications to existing factors as well as the addition of new factors.

One new “best interests” provision specifically requires the court to consider the child’s past, present, and potential future relationship with the child.  This factor is similar to the current question of which parent has provided primary care of the child (which will no longer be a factor), but includes foreseeable future developments in the parent-child relationship, as well.  This could include how the family dynamic will change post-divorce and puts more focus on the fact that both parents may be more involved with caretaking than during the marriage when, perhaps, the parties mutually decided to split duties between child-rearing and working outside the home.  An attorney who has experience with parenting plans and the ways that they change over time can help answer questions about what these future developments might be.

Another important change is that judges will also consider whether a parent intentionally misled the court in order to delay the proceedings or to attempt to tip the scales in their favor in the judge’s parenting time ruling.  This provision is intended to foreclose the unethical strategy of delaying hearings to drive up the costs of the litigation, which can place undue pressure on a parent who cannot afford increasing legal costs.  Those costs are not limited to court fees – driving from Peoria to a courthouse in Phoenix or Mesa for numerous hearings can create a substantial financial burden, especially when parenting time and divorce proceedings so often occur close together.

If there remains any doubt as to the legislature’s intent to place the child’s best interests above all else, the new statute clarifies that a child’s wishes will be considered if the child is old and mature enough to articulate and understand them – a potentially controversial issue in many cases.

Sanctions for litigation misconduct.  Another significant change is that judges will be required to sanction parties who provide false statements (or falsely accuse another party of making a false statement) or for violating court-ordered disclosure rules.  Such sanctions can include fines, charges of civil contempt of court, and modifications of legal decision-making or parenting time if it serves the best interests of the child.

Third party rights.  The visitation rights of grandparents and individuals who stand in the place of parents will also change in 2013.

The new provision for third-party visitation will require that the child was born out of wedlock and that the child’s legal parents are not married when the third party files for court-ordered visitation.  Judges will be required to give special weight to the opinions of legal parents about their child’s best interests before granting visitation to a third party, and third parties seeking visitation rights will be required to petition for those rights in the same action as the one filed to determine legal decision-making and parenting time.

These changes could make it more difficult to grandparents and other third parties to gain visitation rights, particularly if the third party does not act early enough in the process.  If legal decision-making for your grandchild or a child for whom you acted as a parent becomes contested, it is in your best interest to consult with an attorney (as soon as possible) who can explain your rights and the best ways to protect them.

Drug and alcohol abuse.  Among many other changes to court orders of legal decision-making and parenting time, the new laws establish a “rebuttable presumption” that it is not in the child’s best interests for a parent who has been convicted of a drug offense in the last 12 months to be granted sole or joint legal decision-making for their child.  This means that judges will begin by assuming that the convicted parent should not be granted legal decision-making authority unless that parent can demonstrate that the child’s best interests are not affected by the conviction.

Overcoming the rebuttable presumption can be a steep hill to climb, especially without the help of an attorney who can analyze the conviction and decide how it will likely affect the judge’s findings about the child’s best interests.

Staying on top of a changing legal field.  Whether you are recently separated or wish to change a long-standing parenting plan, understanding the effects of new laws can be an overwhelming challenge.  If possible, do not attempt to tackle complex family law issues alone.

Special Considerations for Military Divorces

Military life can include a number of unique challenges not faced by most civilians.  Frequent relocation, uncertain deployment schedules, and often dangerous work can make family life difficult.  Should that difficulty lead to a decision for a military couple to seek out a divorce, those same factors play a significant role in asset division and child custody determinations.

Even basic considerations, such as which court should hear the divorce proceedings for military spouses, can be extremely complex due to the nature of military lifestyles and heavy regulation by federal and military law.  Resolving these issues can require legal expertise which can only be offered by an attorney who is knowledgeable about military divorces.  In particular, the Leave and Earnings Statement (“LES”), a detailed invoice of military earnings and benefits, can be difficult to read and incorporate into a divorce settlement.

Here are some common issues to consider when handling a military divorce:

Jurisdiction:  In most divorces, deciding where to bring an action is simple – the state where the parties live.

However, imagine a common scenario for military families: a young man from California joins the U.S. Air Force and enters the Air Force Academy in Colorado.  While there, the soldier meets his future wife, graduates, then moves to Glendale to live near Luke Air Force Base.  The couple decides to end their marriage, but just after the divorce proceedings begin, the soldier is deployed to Afghanistan.  Suddenly, deciding where the family is “domiciled” becomes much more complicated.

Further complicating matters is the fact that there may be multiple answers to the question of which is the appropriate court in which to file an action.  That is because there are different rules governing a court’s ability to divorce the couple, make custody determinations, or divide property (including a military pension).  It is imperative that you understand these complexities before you file or respond to an action

The Service Members Civil Relief Act:  This act, commonly referenced as SSCRA, allows members of the Armed Forces to apply for a “stay” of some judicial proceedings while they are on active duty.  The provision provides some protection for service members (including activated National Guard or reserve troops) whose official duties would otherwise prevent them from participating in litigation.  Whether you are seeking a divorce from a member of the military, or you are a uniformed serviceperson, understanding the SSCRA can be an important part of your case.

Visitation and family care plans:  Because military life often includes frequent relocations and other travel, creating plans for custody and parenting time can be tricky.  Arizona law (A.R.S. § 25-411) provides some guidance for military families in addition to protecting the rights of servicepersons whose work may require them to modify their custody plans in various ways.  The Arizona statute is long and detailed, however, so applying it to an individual case is not always easy.

Family support:  Understanding exactly how much income a service member has is key in determining family support (child support and spousal maintenance).  This requires reading and understanding the LES given monthly to members of the military.  Base pay, skill pay, hazardous duty pay, disability pay, and other bonuses may play a significant role in determining the amounts of spousal maintenance, child support, and other financial arrangements.

Pension, disability, and other benefits:  Military pension is difficult to decode even without trying to fit it into a divorce settlement.  Because military divorces are regulated by both federal and state laws, each component of the pension (retirement, disability, etc.) may be governed by a different law.

For example, recent changes to Arizona laws protect a veteran’s service-related disability benefits from judicial property division.  The definition of service-related disability benefits comes from Title 38 of the United States Code – referring back and forth between state and federal laws is an arduous task and finding an attorney to help navigate through this issue is critical.

Appreciating the unique aspects of a military divorce can require years of legal practice.  Even for a seasoned divorce attorney, frequent changes to divorce, custody, and military laws at both the state and federal levels offer unique challenges in each new case.

Adoption Tax Credit

Adopting a child can be tremendously costly because of numerous legal issues which must be navigated in addition to collateral expenses.  A complicated adoption may require a ‘contested’ termination proceeding (severance) that requires experts and an exhausting trial.  Fifteen years ago, the U.S. tax code was modified to include an ‘adoption tax credit’ in the amount of $12,650 to help families absorb the costs of an adoption.

The credit will expire at the end of 2012 for all adoptions except those of foster children with special needs, leading many to call for renewal of the credit.  The adoption tax credit is one of several mechanisms intended to help close the gap between children who need homes and prospective parents who can afford to raise a child, but cannot afford frontloaded legal expenses.

Some still question the tax credit.  Critics have complained that the tax credit helps to fuel the foreign adoption market (which has historically been a hotbed for exploitation).

To learn more about the perils of limited disclosure in foreign adoption, read the article here.

All agree that foster children need good homes, and there are many people who are willing but unable to provide them because the costs are so high.  Whether a tax credit or some other method is the best way to connect those people with children who need homes, creative solutions are needed to reach the goal of leaving no child without the care they need.

The Secondary Trauma of Divorce: Attorney’s Fees

Getting divorced is traumatic for many and unpleasant for most.  It often is the first time my clients have a relationship with an attorney.   Sure, everyone has seen divorce attorneys portrayed on television and some do fit the stereotypes of Arnie Becker from L.A. Law or Gavin d’Amato from The War of the Roses. While there are some lawyers who are over the top, most are just doing their job trying to help their client thorough an emotional process with the goals of securing favorable custody and financial results.

Yes, divorce lawyers make their livings by billing their time at hundreds of dollars an hour.  This creates and interesting (and often unspoken) fact that the attorney may not be as motivated as the client to settle the case expeditiously.  Most attorneys set a retainer and have money deposited (in Arizona) in their IOLTA accounts and take the money as their time warrants.  This payment process is explained to the client when they first sit down in the office and they sign an ‘Engagement Agreement’.  In Arizona, there is also a statute that allows you to claim that the other side should pay your legal fees (ARS § 25-324).  While courts frequently order attorneys fees, for a client to count on receiving those funds is NOT a good idea (if it can be avoided) and may limit your ability to settle a case.


Here are a few examples:

Situation #1:

Parties have each spent about $30,000 (to date) on legal fees and professional costs for custody evaluations.  Husband is current with his attorney’s bill, but wife owes her lawyer over $15,000, as she has been unable to make payments and trial is still 3 months away.  They eventually meet with a private mediator who is tasked primarily with brokering a division of a minority interest in a small chain of frozen yogurt stores.   Wife would like to keep her share of the interest in the business, but she also knows that she will not have cash to pay her attorney if she settles for more business interest and less cash.  Wife did request attorney fees when she filed but is now pushing, thorough the mediation, to get husband to pay her fees that she otherwise will not be able to pay.

While it is not a technical “conflict of interest” wife’s attorney deserves to have her fees paid promptly and may subconsciously (or consciously) try to structure the deal so that attorneys fees are paid promptly.  This may mean that wife is nudged to sell her interest in the business, which she would like to keep, or to go to trial and take a chance with the Court awarding fees and dividing assets in an undesirable way. 

Situation #2:

Parties have been amicably negotiating a divorce and custody terms for 2 months, and despite coming close to agreements, still have a trial date set. Husband’s attorney required a $20,000 retainer anticipating contentious litigation over the division of wife’s dental practice.  While they are close to a global agreement, the attorney suggests that they proceed with depositions and to push the other dentist in the practice, by subpoena, to disclose his finances too.  However, Husband is confident that the matter will resolve through an informal settlement meeting and wants to keep the acrimony to a minimum, as they are committed to peacefully co-parenting going forward. 

Some thoughts to consider as you interview attorneys and consider the ‘cost’ of legal fees:

1.  A consultation is actually a dual-interview. You should be determining your comfort level with the attorney and the attorney should be determining if you are a client that they want to represent.  While clients have the choice of many attorneys to represent them, often they seek out counsel based on their reputation or expertise in a specific practice area (e.g. community business divisions or defending an abuse allegation.) Similarly, an attorney who never declines clients, even those with deepest pockets, is not vetting their clients right.

2.  Just because the lawyer you interview is less expensive hourly than another, does not mean it will be less expensive to litigate.  Some firms charge minimums for certain tasks (e.g. 2 hours for pleadings and .3 for phone calls.)   Other times the attorney who is less expensive takes much longer to complete the task. E.g. If you are filing a Motion for an Independent Medical/Psychological Evaluation, it may take a less experienced attorney three (3) hours to draft the motion and proposed order, where someone with more experience can produce a quality motion in an hour.

3.  A good legal strategy often means cost savings.  For example, when it comes to custody issues, Courts do not like to make decisions based on trial presentations.  Courts in Arizona prefer that an expert be engaged for an evaluation.  Whether it is a Comprehensive Custody Evaluation with a psychologist or an abridged evaluation, such as a Parenting Conference, you need to discuss with your attorney agreeing to a process early in the litigation. Paying attorneys to write letters back and forth about marginal parenting decisions or the propriety of involvement of dad’s ‘new girlfriend’ does not advance the cause. You can save thousands in legal fees by just agreeing to a custody parenting dispute process early in the process.  Remember, you can settle portions of the case.  (E.g. agree that joint custody is appropriate and where child will live with mom primarily and have alternating long weekends with dad.)  Then you can then wrestle about the income to attribute for child support and spousal maintenance etc.

4. Do not discount the use of early meditations and settlement meetings. When things are contentious, have your attorney hire a mediator for an early conference. You would be surprised what can be resolved in the early mediation process.  Often this will save thousands of dollars on temporary orders issues.  Courts may give you an hour or two to present temporary orders issues.  You will save thousands if you can broker a deal without the unpleasantness of this early evidentiary hearing.

5.  This is YOUR life.  If you think your attorney is not pursuing cost effective ways to get your matter resolved, call them out on it.  Sometimes even the best and most cost-efficient attorneys are stymied by opposing counsel or the opposing party who is not willing to constructively work towards a resolution.

Before I respond to gripes from my colleagues who may read this and admonish me for suggesting that some attorneys bill too much, let me say that there are many attorneys who understand the limitations of finance and go above and beyond for their clients, knowing they will not be paid accordingly.  A divorce does not have to cost your life savings.  As my old friend Lloyd used to say to clients who were at the precipice of settlement…”You can put my kids through college or yours.”  You have the control over what is spent and controlling the acrimony is often the key to reining it in.

DUI’s and the Chaos to Custody and Parenting Time

The combination of drinking and driving leads to horrific and sometimes deadly consequences.  However, there are situations where there is no accident and the impaired driver is simply arrested for the misdemeanor offense. He is also left with court dates, embarrassment and jail time. 

            In Arizona, most DUI offenses are prosecuted as Misdemeanors.  This means that they are less serious offenses and usually result in some jail time, therapy, fines and the offender may lose his driver’s license.  A first-offense-misdemeanor DUI, while costly and embarrassing, will not destroy an individual’s life and the consequences are arguably designed to teach a lesson.  However, if there is a DUI arrest during an ongoing or anticipated divorce/custody matter, it can have much further reaching consequences.

             Take for instance this situation:

             Mike, an architect, and Carol a 3rd grade teacher are in the middle of a fairly amicable divorce.  Both parties have attorneys and through informal settlement meetings they have come to general agreements regarding custody, division of bank accounts and the use of the house.  While Carol disapproves of Mike’s girlfriend, who she blames for the breakup, Mike has expressed concerns that Carol is drinking a bottle of wine after putting their daughter Cindy in bed. According to Mike, as a result of the night drinking Cindy has been late for school four times in the last month.  Despite their shortcomings, Mike and Carol are committed to keeping the divorce dignified so as not to negatively impact Cindy.

            Carol was reluctant to start dating.  At the urging of her single friends, Sam and Alice, she agreed to go to a bar for a girl’s night out on a night Cindy was spending the night at Mike’s condo in Tempe. At the Regal Beagle, Sam buys the first round and Alice buys the second round of Appletinis. Carol had a third cocktail purchased by a guy who gave Carol his number. Shortly after she says goodbye to her girlfriends and leaves the bar alone. 

            On her drive home, Carol makes a wide right turn (as she and most people do) at the intersection of Scottsdale and Shea.   Immediately, she is pulled over by a Scottsdale Police Officer who has her step out of the car after he claims she had “bloodshot and watery eyes.”  Carol is asked to participate in multiple Field Sobriety Tests and tells the officer that she had a few drinks at the bar.  After administering H.G.N (the eye test) the officer reads her an MVD notice and obtains a blood sample to test her Blood Alcohol level.   

            Some weeks pass and Carol says nothing to Mike about the police incident, hoping and praying that the blood results would show she was safe to drive. Unfortunately, the blood tests came back at a .091 and Carol is charged with DUI in Scottsdale City Court. Although she kept this information from Mike, he suspected something was wrong and ultimately learned about the DUI when he opened mail from the Motor Vehicle Division regarding Carols’ license suspension.

With the divorce case almost settled, this new information raises so many questions:

  • How can he share custody with someone who may be going to jail?
  • How can he share custody with someone who withheld information that could impact the family?
  • Do they tell Cindy what is going on?
  • Carol withdrew $6,500 to pay her criminal attorney. Should that come out of her separate or community funds?
  • Carol lost finger print clearance card and her teaching license is no longer valid.  Carol will need to contest the matter with the State to keep her teaching credentials. 
  • When Carol gets her license back, there will be an Ignition Interlock Device on the car? And how will the Brownie carpool respond to the device and Carol’s DUI charge?

             A DUI will most likely impact the divorce proceedings.  No family court judge wants to put a child in the care of a parent who cannot control their drinking.  However, every case is different.  Having a proper substance abuse evaluation by a doctor who specializes in these issues may be helpful to the parties and the Court.  In this case, Carol’s livelihood (teaching) is compromised by her arrest and prompt legal action will be necessary to her keeping her job.   Having a competent attorney who can help Carol through the process may help keep her job and limit her jail exposure.  Moreover, keeping Carol employed may help mitigate Mike’s spousal support (alimony) obligation.

What If The Molestation Travesty at Penn State Happened at ASU?

What if the Molestation Travesty at Penn State Happened at ASU: Would Arizona’s Mandatory Reporting Statute Have Made a Difference?

Jerry Sandusky, the accused child rapist and ex-Penn State Assistant Coach, will never again be known as Joe Paterno’s defensive guru. That’s easy to understand. The more difficult aspect of the case surrounds who knew what and who had a responsibility to report what they knew.

The grand jury report states that Coach Mike McQueary, who was a graduate assistant in 2002 and who is currently the wide receiver coach and the recruiting coordinator at Penn State, testified that he witnessed Sandusky sodomizing a child in Penn State’s locker room in March 2002. The report goes on to state that McQueary, after seeing the horrendous act, contacted his father. After discussing what Mike saw, the McQuearys decided that they needed to tell McQueary’s boss, head coach Joe Paterno. Mike McQueary did so the following day.

Paterno, the report says, waited an entire day to relay McQueary’s story to Paterno’s “immediate supervisor,” Tim Curley, the Penn State Athletic Director, an ex-Penn State and Paterno-coached football player. Curley waited a week and a half before calling a meeting, which included McQueary, Vice President Gary Schultz, and himself. McQueary relayed the atrocious story to Curley and Schultz, and about two weeks later, Curley told McQueary that Penn State had taken Sandusky’s keys to the locker room and that Sandusky’s charity for underprivileged boys, The Second Mile, had been notified.

As part of his job at Penn State, Vice President Schultz was assigned to oversee the University Police. Yet Schultz testified that he only reported the incident to Penn State President Graham Spanier (his immediate superior) and The Second Mile, never to the University Police or any law enforcement or social services agency. From start to finish, McQueary’s report was “resolved” by Penn State in about a month.

The McQuearys took a basic up-the-chain-of-command approach. Paterno and his superiors did the same. There are allegations that what McQueary told Paterno was downplayed as the story rose through the ranks.

The remaining questions are: Were McQueary’s, Paterno’s, Curley’s, and Schultz’s actions enough? Did any of them need to follow up with their respective superior? What legal obligations did these men have to the victims?

The grand jury directly addresses the violation of Pennsylvania’s mandatory reporting statute, 23 Pa C.S. § 6311, in its report. The statute states that a person who suspects child abuse or neglect in the course of his or her employment (including, but not limited to, a public or private school) shall report to the “person in charge” of the institution. That person is then charged with making the report. The grand jury found that Schultz and Curley violated the statute and should be held to answer (they were also charged with making a materially false statement while under oath). The report does not mention Paterno and McQueary violating this statute.

If you read the entire grand jury report, you will see that Schultz tries to shirk his responsibility by saying he was never told what McQueary saw amounted to rape. Rather, Schultz testifies that what he was told wasn’t that serious and he never felt a crime occurred. McQueary’s testimony goes directly against that, saying that he explained what he saw in detail to Paterno, Curley, and Schultz. Either way, if Schultz reasonably believed that Sandusky was acting inappropriately with children, he should have reported same to the police or CPS.

The Pennsylvania statute is quite different from Arizona’s mandatory reporting statute. In Arizona, A.R.S. §13-3620 controls such a situation. Specifically, “[a]ny person who reasonably believes that a minor is or has been the victim of physical injury, abuse, [or] neglect…shall immediately report or cause reports to be made of this information to a peace officer or to child protective services [CPS] in the department of economic security, except if the report concerns a person who does not have care, custody or control of the minor, the report shall be made to a peace officer only.” Subsection (A)(4) of the statute defines “person” to include “school personnel”. Therefore, in my opinion, all four of the men above would be in violation of Arizona law if this story went down at Arizona State University or the University of Arizona.

Further, the fact that McQueary told his supervisor, Paterno, and Paterno told his supervisor, Curley, and so on, does not fulfill their obligation of mandatory reporting under Arizona law. All of these men, whether they saw the rape like McQueary or whether they heard a watered-down version like Schultz, were obligated to make a report (or cause the report to be made) to a peace officer if they “reasonably believed” the rape occurred. That is, if McQueary told his superior and the superior never reported the suspected abuse, McQueary would be held responsible for not making the report (as would his superior, Paterno, in this case).

A distinction could be made if McQueary had been a volunteer. The first question, under Arizona law, would be to ask whether McQueary was responsible for the care of children. If a volunteer carries this responsibility, they have a duty to report suspected abuse to a police officer or CPS. In this case, it could be argued that McQueary was responsible for the care of children. That is, if there were 17 year old football players at Penn State or if facts showed McQueary ran a football camp for teenage boys, McQueary could be held to answer.