We sometimes meet with grandparents who are worried about their child’s ability to raise their grandchildren. Sometimes the grandparents are in a child custody fight. Most often they are genuinely concerned about real shortcomings. Occasionally their complaint is really about access being cut off. But last week we read a story about a grandmother and step-grandmother who just went too far. Their aggressive attempt to gain control of their granddaughter lead to a million-dollar judgment against them.
The family background
Angela Howser lives in Lawrenceville, Illinois, and is married to Jack Howser. Jack and Angela own a small publishing enterprise, the Disclosure Newspaper. It’s hard to find the Disclosure online, or to see what communities it serves, but most descriptions say (without apparent irony) that it is published “periodically”.
Angela Howser has a daughter we’re going to call Jennifer (no need to have more search engine entries on her reveal the sordid story). Jennifer, in turn, has a daughter Elizabeth (also a pseudonym) who was four years old when the story began to unfold.
Jennifer worked at her parents’ newspaper and lived in a house they owned. In 2014, she met a new man, fell in love and planned to marry. Her mother and step-father did not approve of him, and they made their position clear.
Defying her parents’ wishes, Jennifer planned to marry her boyfriend and move with him into a house an hour away. Her parents’ response: they threatened to publish nude pictures of her in their newspaper, reasoning that the boyfriend would immediately drop her. They also fired her, apparently believing that her boyfriend would no longer be interested.
The Howsers decided that they needed to take Elizabeth away from their daughter and son-in-law. They hired a private investigator (a former state police officer) to help them develop a plan. Then they got the authorities involved.
The police chief and sheriff get involved
Knowing that Jennifer had closed her bank account in the course of the move, Angela Howser tried to cash a check Jennifer had written to her for $250. When the check did not clear, she filed a complaint with the county prosecutor.
Things quickly spiraled out of control from there. The prosecutor secured a warrant for Jennifer’s arrest. The private investigator, the chief of police and the county sheriff met at the courthouse with the Howsers and scheduled an arrest for a night when Jennifer would be home alone with Elizabeth. One of the group would check at the son-in-law’s workplace to make sure he would not be home, and they would execute their plan on the very next Sunday night.
At a pre-arrest meeting at the police chief’s father’s gun shop, the police chief got cold feet. He began to worry that the arrest might be illegal; the warrant had not been entered into the proper online database. Besides, Illinois law said that a minor child left untended by an arrest should be turned over to the state’s child services entity, not to a conveniently-available grandparent. Rather than stop the plan, though, the police chief just helped facilitate turning the arrest over to the county sheriff, and continued to participate in the planning.
The sheriff joined the caravan of law enforcement vehicles headed to Jennifer’s home. Jack and Angela followed in their own car, and waited around the corner for a signal from the sheriff.
Jennifer was arrested, and Jack Howser swept in to grab Elizabeth. Jennifer was booked into jail and released an hour later. She had no idea how to follow up to get Elizabeth. The next morning she went to the county prosecutor’s office to find out what had happened to her daughter. There, she was arrested again — this time on a charge that she had stolen a memory card with her company cell phone when she was fired by her mother and step-father.
This is where this horrifying story intersects with the questions we so often get asked. Based on her mother’s arrest, the Howsers promptly secured a guardianship over their granddaughter. They took out orders of protection to keep both their daughter and her husband away from Elizabeth. The grandparents’ child custody fight took months to resolve (and one more arrest of Jennifer on manufactured charges) before Elizabeth was returned to Jennifer’s custody.
Mr. and Mrs. Howser may well have been genuinely concerned that their daughter was a terrible mother, a bad housekeeper and a poor judge of character in her romantic life. But their actions were pretty much over-the-top. The turmoil cost their daughter time separated from her own daughter and about $250,000 in legal fees. It also trashed her public reputation and interfered with her ability to get housing, a new job and all manner of other injuries. It’s quite a negative effect from a grandparent’s child custody fight.
Did the Howsers’ actions benefit Elizabeth? It’s hard to imagine that they did. Of course we’ve not met any of the principals in this tragic story, but we frequently counsel grandparents — even legitimately concerned grandparents — that the process may be worse than the current circumstance.
The federal lawsuit
That proved to be the case for the Howsers when Jennifer filed a federal court case against them. She alleged that they had conspired with local authorities (the prosecutor, the sheriff and the police chief, as well as their law enforcement agencies) to deprive her of her civil rights. The government entities settled, paying Jennifer $75,000. Then she went to trial against her mother and step-father.
The trial judge refused to allow the Howsers to introduce any evidence about Jennifer’s caretaking abilities, her own criminal history, the possibility that her new husband might have a violent temper or anything else about her parenting skills. Jennifer’s “bad behavior,” ruled the trial judge, “is not a defense to violating her rights.”
The jury hearing Jennifer’s lawsuit awarded her a total of $970,000 in damages. About half of that was punitive damages, for especially egregious behavior. The Howsers appealed, and last week the Seventh Circuit Court of Appeals upheld the judgment. The publishers of the Disclosure will be liable for the full judgment (which, with interest, is no doubt over $1 million by now). Green v. Howser, November 7, 2019.
What does this mean for other grandparents in child custody fights?
Of course, not all grandparents in a child custody fight will go to anything like the lengths undertaken by the Howsers. Most of the grandparents we talk with understand that scorched-earth litigation is not good for the grandchild, not likely to succeed, and not worth the risk. But we do hear from anguished grandparents about the care their grandchildren receive.
The law on grandparents’ rights is pretty clear. In order to overcome the presumption that parents can raise their own children, serious and immediate risks need to be shown. Poor parenting, poor choices and even drug use will not usually provide enough evidence.
Remember that we are Tucson elder law attorneys. We know Arizona law; the stories about cases from other states may involve different laws and have different outcomes.
In the case we report on here, if the Howsers’ hope was to have a long-term and deep relationship with Elizabeth, they seem unlikely to have succeeded on any level. There is often no easy solution — but there are often easily-identified wrong approaches.