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Monday, February 26, 2007

Law - Two parents' rights cases before the U.S. Supreme Court [Updated]

Tony Mauro of Legal Times writes today in a story headlined: "Parents Fight for the Right to Represent Their Children in Case Before High Court: Local bar associations have investigated parent-advocates for unauthorized practice of law." His long and fascinating report begins:

For Sandee and Jeff Winkelman, the money to pay lawyers ran out in 2004. But they still had their son Jacob to fight for, so they kept going on their own.

Jacob is their son, now 9 years old, who has autism. At one point for Jacob, says Sandee, "laying on the floor and screaming -- that was his day at school."

The Winkelmans wanted something better for Jacob, and on Tuesday, their battle against the Parma, Ohio, school district goes before the Supreme Court. But the justices won't be weighing the best plan for Jacob. Instead, they will decide whether nonlawyer parents such as the Winkelmans can represent their kids when disputes under the Individuals with Disabilities Education Act reach federal court.

If the Winkelmans lose, says Georgetown University Law Center professor David Vladeck, "it means these cases just can't be litigated -- not because they're not valid, but because they are brought by people of modest means. I hope the Court understands that." Vladeck has written extensively on the controversy.

The issue of nonlawyer representation has been hard-fought around the country by desperate parents who say there are not enough lawyers able or willing to take on their costly and complex disputes with local school districts. Circuit courts have split over the issue, setting the stage for high court review.

Meanwhile, a skilled corps of parent-advocates has sprung up to fill the void left by lawyers. As a reward for the parents' zeal, however, some local bar associations have gone after them, claiming they are engaging in the unauthorized practice of law. After negative publicity last year, the Cleveland Bar Association withdrew a complaint against a parent who aided the Winkelmans -- at least until the Supreme Court rules in their case.

The second case is a pending petition for writ of certiorari in the grandparent visitation case of Fausey v. Hiller. Howard Bashman of How Appealing is counsel of record on the petition. The question presented:
In Troxel v. Granville, 530 U.S. 57 (2000), this Court concluded that Washington’s Grandparent Visitation Statute unconstitutionally infringed a fit parent’s federal constitutional right to direct the care and upbringing of his or her children. Left expressly unanswered by the plurality opinion in Troxel, id. at 73, the question presented in this case is:

Whether the Fourteenth Amendment’s Due Process Clause is violated when a court orders grandparent visitation over a fit parent’s objection, where the grandparent has not proved by clear and convincing evidence that such an order is necessary to prevent harm or potential harm to the child.

See more from How Appealing here.

[Updated 12:07 p.m.] The Greene Couny Daily World has a story today by Nick Schneider about SB 282, a bill which would, according to the digest "Provides that a child's grandparent may seek visitation rights when a parent or guardian of the child unreasonably refuses or restricts visitation. Eliminates current conditions under which a grandparent may seek visitation rights." Some quotes from the story:

The Rev. Lee Ann West, pastor of HIS Church - a small non-denominational congregation in Dugger - has been advocating for a change in the law for the last three years.

She's hoping this might be the year when the General Assembly will address her concerns and pass a law that is being sponsored in the State Senate by two area lawmakers.

Last year, Rev. West saw a similar grandparent visitation rights bill die in a senate committee and referred to a summer off-session study committee to refine its language.

This legislative session, Greene County's two state senators - District 39 State Sen. John Waterman (R-Shelburn) and District 48 State Sen. Lindel Hume (D-Princeton) - are carrying the bill in their chamber in hopes it might be enacted into law on July 1.

A check of the action on the bill shows that it is still in Senate committee, and thus is most likely dead.

Posted by Marcia Oddi on February 26, 2007 08:39 AM
Posted to Courts in general