Tuesday, April 29, 2008

Texas, CPS, FLDS and The Marriage Conundrum

Texas recognizes common law marriage as a legal marriage.

Common-law marriage is generally a non-ceremonial relationship that requires "a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations." Black's Law Dictionary 277 (6th ed. 1990).

According to the Travis County Young Lawyers Association, in order to be married under common law, only three things need to be performed:
  • First, you must have "agreed to be married."
  • Second, you must have "held yourselves out" as husband and wife. You must have represented to others that you were married to each other. As an example of this, you may have introduced you partner socially as "my husband," or you may have filed a joint income tax return.
  • Third, you must have lived together in this state as husband and wife.
If you are married under common law, you must obtain a civil divorce. There is no such thing as a common law divorce.

Marriage generally emancipates a minor child, especially if the parents no longer support the married child. Up until two years ago, a 14 year old could get married with parental consent. Now, it's sixteen. Therefore, it is plausible that a 16 year old picked up by CPS in the FLDS raid could have a child or two and/or be pregnant, and it be a legal marriage. My mother in law was married at sixteen, so what? DHS even agrees, marriage emancipates a minor:

IX. For DSHS monitoring purposes, contractors shall document that 1) a client under the age of 17 is or has been married and is therefore not a minor under Texas law, or 2) an affirmative defense exists concerning a minor who has never been married, is under the age of 17, and who was determined to have been abused or neglected as defined by the Family Code §261.101, including but not limited to, victims of an offense under the Penal Code §21.11 or §22.011.

A. There is no affirmative defense for abuse of a minor under the age of 14.

B. Contractors/providers may, but are not required to, request documentation that a minor is married. The contractor/provider may choose to rely on statements by the minor as to his/her marital status.

C. An acceptable affirmative defense for abuse as defined in the Penal Code §21.11 (sexual indecency with a child) may be that the actor was not more than three years older than the victim; and of the opposite sex; and the actor did not use duress, force or a threat against the victim at the time of the offense.

D. An acceptable affirmative defense for abuse as defined in the Penal Code §22.011 (sexual assault) may be that the actor was not more than three years older than the victim.

I think we have a conundrum here. . .

A---Either the young ladies were married, therefore there is some polygamy going on, therefore the young ladies are emancipated and cannot be considered minor children, therefore the sexual abuse issue is moot,


B---The young ladies were NOT married, therefore there is no polygamy going on, and the minor girls were sexually abused by men in the community.

In scenario A - All the elements of common law marriage have been met. None of the married young ladies are children under Texas law, and are not guilty of polygamy, or child abuse, or sexual assault. Let them go home with their children (or Texas CPS may face false imprisonment and kidnapping claims). Texas can only criminally try the husbands for polygamy under the theory that caused the Feds to nail Al Capone for tax evasion rather than racketeering. . .it's all they had on him.

In scenario B - All of the young ladies are children, therefore there is no polygamy going on - just religious ritual bed hopping with nubile girls. So CPS should get the marriages annulled (whoops! what else do you do with the fact that these people lived together as man and wives and represented themselves as married?), offer services to the parents under a dependency proceeding. Criminally try the husbands as perps, assuming you can get the girls to testify against their husbands (they just might invoke spousal privilege to avoid testifying) and get restraining orders against them. When the girls turn eighteen, they can marry the dude all over again.

It's either polygamy and not sexual abuse, or it's sexual abuse but not polygamy. You can't have it both ways. . .

I wonder if this event will cause the mental health experts to add marriage to the list of "grooming" acts attributed to perpetrators of sexual abuse? Hey, stranger things have happened, look at the acceptance of childless experts on parenting.

It looks to me like the FLDS community learned the law, found a loophole, and exploited it. Texas is not happy about the YFZ ranch egg on it's face. I think it's funny.

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Leave the emotions, propaganda and rhetoric at the door. This blogger is only interested in intelligent, logical, well-thought out, factually based comments which are on-topic, indicating the writer has an open mind and a mature ability to reason.