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Expert Strategy For Your Family |Texas Board of Legal Specialization Family Law Attorney

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Good intent can skew to harm under zealous enforcement

Practitioners of family law in Texas know well that when making child welfare decisions the guiding principal is dictated by the tenet, act in the best interest of the child.

The problem, of course, is that what constitutes that best interest is a matter of opinion. There can also be competing laws that come into play. Good intentions, guided by the law, can wind up creating complications in child custody determinations.

For the protection of the rights of the child and the rights of parents, it is wise to seek out the counsel of an experienced attorney.

Every state has its own laws and enforcement can vary from county to county. While it is the right of each jurisdiction to administer the law as it sees fit, variation can lead to uncertainty and frustration. This seems to have happened in the case of one Alabama mother.

Alabama's chemical endangerment law is particularly aggressive. Its purpose is to ensure that children aren't exposed to negligent care from drug-abusing mothers. And prosecutors say it has helped hundreds of mothers turn their lives around in the face of possible incarceration.

But critics say it lacks enforcement parameters and is subject to huge prosecutorial discretion. The mother in this case is said to have been a victim of that discretion.

About a year ago, in a particularly anxious period, she took two half-tablets of Valium over what appears to have been a couple of days. A few weeks later, she gave birth to a healthy baby boy. Tests found traces of the Valium in her blood, but none in the baby. They went home the next day.

A social worker checked in on the baby, heard the Valium story and found no reason to take any action. But a few weeks later, the woman was charged with child endangerment in the womb, a conviction of which could have led to a 10-year prison sentence.

Observers say that if the woman had delivered her child just over the border in the next county, prosecutors would have taken no action at all.

It took nearly a year, but the criminal case is now dropped. Still, the woman had to fight to regain full custody of her baby and continues to fight for custody of an older child. She also continues to fight to recover standing in the community.

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