US Supreme Court Is Asked to Adopt as Law the UN Convention on the Rights of the Child

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US Supreme Court’s 9 Justices will hold a conference on an appeal this Friday, February 20, 2015, which involves the issues of the child's rights contained in the UN Convention on the Rights of the Child of 1990. The appeal also examines the issues of whether California Family Courts should be required to hear the child's wishes as young as age 4, of setting standards for removing the minor's counsel, and of the current system of only one right to appeal, according to Appellant Yi Tai Shao, Attorney at Law.

Principle 6 of the U.N. Declaration of the Rights of the Child states that 'a child of tender years shall not, save in exceptional circumstances, be separated form his mother.'

On February 20, 2015, the US Supreme Court will decide whether to review an appeal with major issues of the rights of the child, under the case number of 14-7244. The appeal calls for a declarative relief that the child's rights are covered under the Fourteenth Amendment of the Constitution and asks that the U.N. Convention on the Rights of the Child of 1990 be adopted as a domestic law of the US.

According to the court’s record, this appeal is about a mother’s being deprived of custody over the 5-year-old daughter, against the child’s wishes, without being afforded procedural due process, after the child complained that she was abused by her father. The court vacated the parental deprival one year later for violation of due process, but further ordered to keep the original parental deprival order in effect without any notice or evidentiary hearing. The mother has been without her child for four years and six months. The mother has not been able to see the child without paying for supervised visits for such a long time and cries for freedom.

According to Affidavit of Dr. Jeffrey Kline, a Diplomat of American Board of Forensic Psychology, shown in the court’s record, the father has been diagnosed with psychotic illnesses since 2009; however, the family court has never inquired of Father’s mental status.

The U.S. is one of the three countries out of 194 member States of the U.N. that have not verified the Convention on the Rights of the Child. The other two countries are Somalia and South Sudan. The U.S. led the drafting of the Convention, executed the Convention, but has delayed in presenting it for the Congress's verification for about 25 years. The Convention on the Rights of the Child was drafted on the basis of the Declaration of the Rights of the Child. According to Principle 6 of the Declaration of the Rights of the Child, "a child of tender years shall not, save in exceptional circumstances, be separated form his mother." (http://www.un-documents.net/gdrc1924.htm)
In 2008, President Obama indicated his intention to bring the US back to human rights table, with discussions of children's rights on the agenda but the CRC has not been submitted to the Congress for its verification. (News Release of 7/11/2008 by Child Rights International Network: http://www.bettercarenetwork.org/resources/infoDetail.asp?ID=18874)
Will this appeal cause the Convention on the Rights of the Child to be implemented as a domestic law of the US?

The family court’s crisis for injustice has been a nationwide issue. In 2014, Center for Judicial Excellence sponsored protests in San Francisco and Washington D.D. against “court crimes”. (See http://www.centerforjudicialexcellence.org.) According to the Leadership Council's news release of 9/22/2008, experts at the Leadership Council on Child Abuse and Interpersonal Violence (LC) reported that there are more than 58,000 children a year are ordered into unsupervised contact with physically or sexually abusive parents following divorce in the United States. (http://www.leadershipcouncil.org/1/med/PR3.html)

"Why are mothers who are the victims of domestic violence losing custody of their children to the courts and to the child protective system?" said Eric Holder, the recent retired U.S. Attorney General, according to the US Department of Justice’s News Release of June 2, 2009. (http://www.justice.gov/opa/speech/attorney-general-eric-holder-video-national-summit-intersection-domestic-violence-and)

Many abusers use custody battles as a way to seek control, according to the news release of January 14, 2012, of News-Leader.com. (http://archive.news-leader.com/article/20120115/NEWS01/201150333/custody-battles-abusers)

The appeal also examines the issue of whether California family courts should be required to consider the child's wishes as young as age 4, such as to be consistent with the practice in the juvenile dependency courts, pursuant to the Constitutional equal protection clause. Presently, when both courts have the authority to order parental deprival, California Family Code §3042 requires the family courts to consider child's wishes for the children of age 14 or older, while California Welfare and Institutes Code §317(e) requires the juvenile dependency courts to consider child's wishes for the children of age 4 or older. Therefore, for the children of age 4 through 13, in the same parental deprival situations, the child dependency court is required to consider their wishes but the family court is not. This unequal treatment significantly impacts the rights of the child in this age group who are involved with the family court, as most children are involved with the family court proceeding instead of juvenile dependency court proceeding.

Lastly, this appeal contests that the U.S. appeal system is defective in that there is only one right of appeal. 99% of the appeals to the second level of appeal are typically declined review, which caused the first appeal courts to have the final say on 99% of the cases. If one lost on the first appeal, he or she has only 1% of chance to review the decision of the first appeal court. This appeal is challenging the fairness of the system because the appellant alleged that the first appeal court did not even follow the appeal procedures in refusing to provide meaningful oral argument or a statutory written opinion, in violation of due process.

For details, please contact the mother at (408) 873-3888 or shaoyitaiesq@gmail.com.

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Linda Shao
Yi Tai Shao, Esq.
+1 4082503776
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