I-129F Section C - Child Abuse Question

[DerekJ 0]

Hi all,

A friend of mine (swear it's not me) called the other day with a question because he figured I would know, being a lawyer and all. I'm leaning toward telling him not to check the box in this scenario: Years ago, he spanked his child leaving a bruise on the thigh. Gym teacher noticed the bruise, inquired and in the end, my friend winds up on the State Central Register for Child Abuse. In NY, this is not a crime. No court, trial, judge or sentence was involved...just an investigation conducted by social services and a determination of some credible evidence made (a very low standard, mind you). There are civil and criminal charges and processes that may happen if the incident was more severe. In my friends case, I told him he was probably alright leaving the box unchecked as there is no conviction but that I would do some research before he completes the form. I haven't been able to find anything definitive. Does anyone here have a clue as to this situation?

Thanks.

DerekJ

[KarenCee 3]

Hi all,

A friend of mine (swear it's not me) called the other day with a question because he figured I would know, being a lawyer and all. I'm leaning toward telling him not to check the box in this scenario: Years ago, he spanked his child leaving a bruise on the thigh. Gym teacher noticed the bruise, inquired and in the end, my friend winds up on the State Central Register for Child Abuse. In NY, this is not a crime. No court, trial, judge or sentence was involved...just an investigation conducted by social services and a determination of some credible evidence made (a very low standard, mind you). There are civil and criminal charges and processes that may happen if the incident was more severe. In my friends case, I told him he was probably alright leaving the box unchecked as there is no conviction but that I would do some research before he completes the form. I haven't been able to find anything definitive. Does anyone here have a clue as to this situation?

Thanks.

DerekJ

Hmmm....a consultation with a competent Immigration attorney might be the best advice for this.

[payxibka 10,045]

Other than a consult with an Immi Attorney, when in doubt, how would the reasonable man answer the question?

Everything appears to hinge on the definition of "convicted"

Edited August 10, 2007 by fwaguy

[bszoom42 0]

Have you ever been convicted by a court of law (civil or criminal) or court martialed by a military tribunal for any of the following crimes:

* Domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse or stalking. (Please refer to page 3 ofthe instructions for the full definition of the term "domestic violence.)

* Homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage,holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment oran attempt to commit any of these crimes, or

* Three or more convictions for crimes relating to a controlled substance or alcohol not arising from a single act.

I am no lawyer, but my advice would be to read the question and answer the question that is asked.

If you have NOT been convicted by a court of law (civil or criminal) AND you have NOT been court martialed by a military tribunal for those crimes; then you can answer NO.

I can't resist, I do have to add that saying that you are a lawyer while asking this simple question, and swearing that it is not you sounds awfully suspicious to me...

Regardless of whom the person is, if the petitioner has been convicted of these crimes or court martialled for these crimes, then answer yes.

Above all, answer honestly.

[Yodrak 7]

DerekJ,

I am tempted to say that one should probably check the box and provide an explanation of the circumstances as you do here, and let the USCIS case officer decide if the incident qualifies as significant or not. It would probably be better for the case officer to see the incident reported and think 'nah, this is nothing' than to not report the incident and have it pop up somewhere along the line. Even if it is not significant, the latter sequence of events would tend to put a case officer in the wrong frame of mind, don't you think?

Being an attorney you should have some thoughts on the difference in impact it makes between putting something on the table upfront v having it discovered somewhere down the road? Won't help the petitioner's credibility any, and would tend to leave the nagging feeling 'what else might have been omitted?'.

Yodrak

Hi all,

A friend of mine (swear it's not me) called the other day with a question because he figured I would know, being a lawyer and all. I'm leaning toward telling him not to check the box in this scenario: Years ago, he spanked his child leaving a bruise on the thigh. Gym teacher noticed the bruise, inquired and in the end, my friend winds up on the State Central Register for Child Abuse. In NY, this is not a crime. No court, trial, judge or sentence was involved...just an investigation conducted by social services and a determination of some credible evidence made (a very low standard, mind you). There are civil and criminal charges and processes that may happen if the incident was more severe. In my friends case, I told him he was probably alright leaving the box unchecked as there is no conviction but that I would do some research before he completes the form. I haven't been able to find anything definitive. Does anyone here have a clue as to this situation?

Thanks.

DerekJ

[garya505 2]

This is the question:

"Have you ever been convicted by a court of law (civil or criminal) or court martialed by a military tribunal for any of the

following crimes:"

So, if the applicant was convicted or court martialed for any of the crimes listed, then the answer would be YES, otherwise it would be NO. What's so difficult about that question?

Edited August 10, 2007 by garya505

[Caladan 19]

It depends on what sort of finding the social services had to make in order to have him placed on the list, and if that counts as a 'civil' conviction if not a criminal one. What process did they have to go through to put his name on the list? Is it a list internal to the organization, or something that an outside agency could search?

In any case, I personally would lean towards Yodrak's interpretation and a general recommendation of disclosure. (On a different form, we had a similar question about whether to disclose an arrest for an infraction (traffic-related, no court, no record) and we had the good experience of having the consular officer chuckle at our honesty.)

If he were to check 'yes', it might be good to get a copy of the report from child services and to write an explanation of the incident.

[bszoom42 0]

After reading Yodrak's post, I like his answer as well over mine.

If you answer NO, and USCIS thinks you should have answered YES - thats a big problem.

If you answer YES and USCIS thinks you should have answered NO - thats a problem you can explain up front.

[archie07 0]

Child Abuse: Guilty Until Proven Innocent or Legalized Governmental Child Abuse

Karen Radko*

ABSTRACT: Statistics on the outcome of cases investigated in Florida indicate that in only a very small proportion of the reported cases was it ultimately determined that the parents had abused their children. Although the stated goal of child protection agencies is to keep the family united, in reality children are often quickly removed and placed into foster care following an investigation that is traumatic for parents and children alike, especially when there was no abuse. Suggestions are made for improving the way the system operates.

It should be every person's legal responsibility to report any child they may reasonably suspect to be abused. However, the consequence of a child abuse report in most states is that the parents may be prosecuted and/or their children taken away with much less evidence than would be required for a conviction in a criminal court. The focus of this paper is to discuss some child abuse issues including the system's abuse of power (Burriss, 1991) and to make recommendations for improvement.

We first must understand the definition of abuse and neglect (note that parents are not educated as to this definition and its consequences). For example, according to the Florida Statutes 4 (1989, chapters 623-960) criminal abuse and neglect is defined as:

827.04 Child abuse.

1. Whoever, willfully or by culpable negligence, deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter or medical treatment, or who, knowingly or by culpable negligence, inflicts or permits the infliction of physical or mental injury to the child, and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to such child, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084

2. Whoever, willfully or by culpable negligence, deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment, or by who, knowingly or by culpable negligence, inflicts or permits the Infliction of physical or mental injury to the child, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

3. Any person who commits any act which thereby causes or tends to cause or encourage any person under the age of 18 years to become a delinquent or dependent child, as defined under the laws of Florida, or which contributes thereto, or any person who shall, by act, threats, commands, or persuasion, induce or endeavor to induce any person under the age of 18 years to do or to perform any act, to follow any course of conduct or so to live, as would cause or tend to cause such person under the age of 18 years to become or to remain a dependent or delinquent child, as defined under the laws of this state, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. It shall not be necessary for any court exercising juvenile jurisdiction to make an adjudication that any child is delinquent or dependent in order to prosecute a parent or any other person under this section. An adjudication that a child is delinquent or dependent shall not preclude a subsequent prosecution of a parent or any other person who contributes to the delinquency of dependency of the child.

827.05 Negligent treatment of children.

Whoever, though financially able, negligently deprives a child of or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment or permits a child to live in an environment, when such deprivation or environment causes the child's physical or emotional health to be significantly impaired shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

According to the Florida Protective Services System Annual Report, abuse and neglect is defined as "a child whose physical or mental health or welfare is harmed, or threatened with harm, by the acts or omissions of the parent or other person responsible for the child's welfare" (Coler, 1991, p.3). This definition is adopted and used by the Department of Health and Rehabilitative Services (HRS) case workers that deal with this issue.

As one can easily see from the above two definitions, there is a big difference between the HRS case worker's definition of child abuse and neglect and the legal definition of abuse and neglect. However, both definitions leave a great deal of discretion to the case worker when attempting to decide whether a child has been abused and whether they can substantiate the need for removal of the child from their home. (A child is defined as one under 18 years of age.)

[payxibka 10,045]

If he were to check 'yes', it might be good to get a copy of the report from child services and to write an explanation of the incident.

Not only a good idea it required....

From the I-129F form:

Using a separate sheet(s) of paper, attach informationrelating to the conviction(s), such as crime involved, date of conviction and sentence.

[Yodrak 7]

bszoom,

After reading other responses, I was ready to change my answer!

I think the best answer was KarenCee's - ask an immigration attorney.

Yodrak

After reading Yodrak's post, I like his answer as well over mine.

If you answer NO, and USCIS thinks you should have answered YES - thats a big problem.

If you answer YES and USCIS thinks you should have answered NO - thats a problem you can explain up front.

[pushbrk 12,881]

That answer is no fun at all. Having the benefit of reading all the replies, I'll stick with my first impression which is to accurately answer the question "no" by leaving the box unchecked and then to be certain the fiancee is fully aware of the history, in case it comes up at the interview.

bszoom,

After reading other responses, I was ready to change my answer!

I think the best answer was KarenCee's - ask an immigration attorney.

Yodrak

After reading Yodrak's post, I like his answer as well over mine.

If you answer NO, and USCIS thinks you should have answered YES - thats a big problem.

If you answer YES and USCIS thinks you should have answered NO - thats a problem you can explain up front.

[archie07 0]

Criminal records checks include convictions and sometimes arrests. Child abuse registry checks can reveal if a person was named in a report, but registry checks are not available in all states. Contact the state child protective services agency for information on access.

[Caladan 19]

If he were to check 'yes', it might be good to get a copy of the report from child services and to write an explanation of the incident.

Not only a good idea it required....

From the I-129F form:

Using a separate sheet(s) of paper, attach informationrelating to the conviction(s), such as crime involved, date of conviction and sentence.

It's required if it's a conviction. Who knows what the status of this 'list' is.

[DerekJ 0]

Criminal records checks include convictions and sometimes arrests. Child abuse registry checks can reveal if a person was named in a report, but registry checks are not available in all states. Contact the state child protective services agency for information on access.

Hi all,

Thanks for the fast replies. Yes, I asked the question because while I am a long-time practitioner of family law, I have no experience with immigration. It would be good to know what the USCIS' take is on this. My friend came to me knowing my gal and I are about to start the K1 process in a few months and he had just met someone from overseas. Not a stupid or simple question at all as someone intimated...this kind of thing is what we lawyers fight about all the time. Based upon my research, etc., I am inclined to tell him to check no with the proviso that he check with an immigration attorney.

DerekJ