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DAY FIVE
What if courts, when weighing custody, just asked this question:
Which parent do you want to live with?
Some believe that if judges listened more carefully to what children want, fewer parents would flee into the underground in the belief that the courts were ignoring their children's wishes.
Most children are never asked who they'd prefer to live with, legal experts say; or, if they are, little weight is given to their answers, especially if they are younger than age 12.
Court decisions on the rights of children in custody cases have been contradictory so far.
In 1993, a Missouri court refused to grant a 17-year-old youth and his two siblings' request for their own lawyer in a custody dispute; but that same year, a Michigan court granted an 11-year-old's request to cut off contact with her birth parents and live with the couple who had raised her.
In the most notable case, 13-year-old Gregory Kingsley convinced a Florida court to allow him to "divorce" his parents, whom he claimed had abused him. That decision was later reversed.
And now comes the case of Amanda Otter in California - which could be another precedent in the making.
Amanda, who was featured in the first day of this series, was 12 when she was ordered by a judge to live with her father. She entered the underground on her own 11 months later, and is still missing.
Her legal case, though, is making its way through the California Court of Appeals, and its resolution could have repercussions in the field of children's rights.
Amanda, who wanted to live with her mother, was represented by a court-appointed lawyer, who didn't follow her instructions and, in fact, petitioned the court to give her father custody. At that hearing two years ago, she tried to fire him, but the court refused her request.
Earlier this year, another attorney, Alan Rosenfeld, filed an appeal of the court's order that gave custody to Amanda's father. One of his arguments was that Amanda's constitutional right of due process was violated because she was denied the opportunity to be represented by a lawyer of her own choice.
Amanda's father, Brian Otter, says his daughter's desire for another lawyer was manipulated by Rosenfeld and Amanda's mother, April Meyer, who wanted her to choose someone more favorable to April Meyer's interests.
Many in the children's rights movement believe that children should be entitled to choose a lawyer and have a say in decisions affecting their futures, like custody, medical treatment or abortions.
But at what age?
The "age of consent" for sexual relations - which serves as a guidepost for many courts on other issues involving minors, including custody cases - varies tremendously from state to state. In California, where Amanda Otter lived, it's 18. In Ohio and Georgia, it's 16. In Pennsylvania, it's 14. In North Carolina, it was raised from 13 to 16 in 1995.
And some legal experts say that a child, even a 15- or 16-year-old, shouldn't be given decision-making power, especially when the choices are often being manipulated by a parent or other adult.
Many states require courts to appoint a legal guardian or a lawyer for a child in a custody case. In abuse and neglect cases, it's required under federal law.
But, Rosenfeld says, those court-appointed lawyers are actually acting as a third "neutral" party to counterbalance the warring parents - not as an attorney representing the child in the same way that the parents' attorneys represent them. Sometimes, he says, the guardian lawyers side with one parent or the other, or have their own biases.
"Imagine we had a 12-year-old accused of committing a rape, a horrible crime, and the judge says how do you plead? And the lawyer stands up and says, 'My client says he's innocent and has an alibi, but I think he did it and should be locked up."'
That's what's going on in custody cases, he argues.
"The court-appointed lawyer stands up and says my client says she was raped, but I don't believe her, and I think she should live for the next six years with the man she accused of raping her."
Rosenfeld believes that a child's competency to make important decisions could be determined through a hearing, to decide issues like whether he or she should have his own lawyer. That already happens in juvenile criminal courts, he notes.
The Otter case is being followed closely by children's rights organizations and others. Two major national organizations have filed their own separate amicus curiae briefs supporting Rosenfeld's appeal - the National Association of Counsel for Children, with 2,000 members, mostly attorneys and judges, and the American Professional Society on the Abuse of Children, which represents more than 5,000 professionals in the field of child abuse.
The California Appeals Court is expected to make a ruling early next year on whether 14-year-old Amanda Otter can use a lawyer of her choice to fight to live with her mother.
It will also determine, in the end, whether Amanda will spend the rest of her childhood living underground.
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