I haven't posted on Fornit's for a while, I've had a busy summer, but I wanted to chime in on this legal discussion. I think some basic principles of American law would be helpful to Pls Help and other overseas readers.
In the United States, jurisdiction over legal matters is reserved for the States and the Federal Government can only make laws based on certain exceptions to this principle. The most frequently used excuse ('er exception) is the jurisdiction of the Federal Government to make laws governing interstate commerce.
A good example of controversy in this area is the medical marijuana case. Many States have legalized the use of marijuana when used for medical purposes. Recently, the Federal Government stepped in and outlawed this practice by making growing/distributing/using marijuana a Federal Crime. They used the interstate commerce thing as the reason for their jurisdiction. One dissenting Judge wrote that he could not see how someone growing marijuana in their backyard and smoking it solely themselves could possibly have an effect on interstate commerce, but the majority ruling was that because the illegal drug trade crosses both international and State boundaries, the Federal Government was within it rights.
Now let's look at family law. When you get married in the US, you are married by the State, not the Federal Government. There is nothing that says other States have to recognize your marriage, but traditionally all States will honor a marriage license issued by any other State. Recently, with gay marriage on the table this became an issue. What would happen if one State would begin issuing licenses to gay couples? Some States responded by changing their constitutions to define marriage as between one man and one woman. So this issue is now legally vague.
In cases of divorce and custody, the same principle applies. States differ considerably in their divorce and custody laws. In New Jersey, where I was divorced, the State does not recognize 'irreconcilable differences' as legitimate. You must sue for divorce and state your grounds. New Jersey also does not recognize 'community property' in the way California does. Still, States will de facto honor and enforce divorce/custody arrangements made in other States. But they don't have to.
Another controversial case is between a New England State that allows gay civil unions and Virginia which does not. Two women in the New England State were joined in a civil union and adopted a child. The union dissolved and one woman took the child to Virginia. Virginia denied the non-custodial woman her custody/visitation terms granted by the New England State on the grounds that Virginia would not recognize the civil union. This is in direct contradiction to all legal precedent where States honor custody agreements made in other States and so critics point out this is conservative Virginia enforcing an anti-gay policy.
The point is that the different States have significantly different laws regarding Family Law and that jurisdiction issues arise between the States and between the States and the Federal Government.
Now we introduce the concept of the Juvenile Justice System (JJ). Over one hundred years ago, the US Supreme Court ruled that youth and inexperience are mitigating factors when trying criminal cases. The Court recognized as any common sensed adult would that young people make mistakes and act in irrational ways because of their youth and inexperience, and so are not fully accountable for their actions. They also recognized that youth are uniquely rehabilitatable. And, of course, you can forget about a trial with a jury of their peers.
So the JJ was set up to allow a Judge to step in when needed, in a quick and paternalistic way, to act in the best interests of the child. Thus technically, a child cannot commit a crime, but instead can be delinquent. They are not arrested, they are apprehended. They are not tried, but there is a hearing. They are not sentenced, they are adjudicated. In exchange for this protection, children give up their right to trial. The rules of evidence are greatly relaxed and Judges are given great leeway in their role. A Judge in JJ only need find that the child requires an intervention, not that the child was proven beyond a reasonable doubt to be guilty of a particular crime. Further, the stated guidelines are that the adjudication is to be the least physically restrictive, and for the shortest possible duration, with rehabilitation as the goal. Incarceration is only to be used in cases where the minor is a threat to society or him/her self and once again, the least restrictive and shortest duration rules are to apply.
Many States are throwing this out of the window by defining terms under which a minor can be charged and tried as an adult. Tough-on-crime advocates say that kids know the difference between between right and wrong and should be held accountable. The critics argue that while the child might know right from wrong, they are not old enough and sophisticated enough to conduct a proper defense under the complex adult legal system and so they end up getting screwed.
So what has this to do with Tough-Love facilities? Well, it demonstrates how vague American Laws are with respect to the rights of minors. Jurisdiction issues often arise when the divorced parents are in different States and the child is in yet a third State. Another issue concerns what constitutes abuse which might be worded differently from one State to another. Age of consent laws vary by State. Patient laws (especially with respect to the patient's age) very by State. The whole thing becomes a complex legal mess as demonstrated by the woman who rescued her cousin from TB.
And, as has been mentioned by others, essentially no action can be taken unless someone files charges or a law suit. In most cases, minors cannot do either. So minors are at the mercy of their parents, or JJ, or Family Court. They have little say in matters of their own custody, health care, or education.
The whole legal process is so cumbersome, that the child can be out of the facility and into their adulthood before any resolution is found. Finally, taking the legal route is expensive. Young people may not have the means to pursue legal action, even after they turn 18.
