Category: reason

Vape Shops May Be Excluded From Ban on Flavored Vaping Products

There’s hope for mango, cucumber, and creme Juul pod lovers yet. Vape shops may be exempt from the expected restrictions on flavored vaping products.

Talking to reporters Wednesday, presidential advisor Kellyanne Conway suggested that a pending crackdown on flavored vaping products would not include menthol after all—and that certain sorts of vape products and retailers could avoid flavor sales restrictions entirely.

Conway pointed out that the Department of Health and Human Services (HHS) and the Food and Drug Administration (FDA) have prerogative “over cigarettes and e-cigarettes under the Tobacco Control Act” but “do not have jurisdiction over vaping and vape shops.”

While “vaping” and “e-cigarettes” are often talked about interchangeably, Conway’s comments suggest that the Trump administration may not see it that way—and could allow different rules for products considered e-cigarettes and those considered vapes.

“If we’re talking about e-cigarettes, the president, yes, he’s been discussing this with his team, and he will, or HHS will, make an announcement soon,” Conway said.

Restrictions on all but tobacco- or menthol-flavored vaping products would be disappointing (and pointless). But as Bloomberg notes, Conway’s comments represent “a softening of a plan announced by HHS Secretary Alex Azar in the Oval Office in September, when he said menthol, mint and every flavor other than tobacco would be banned.”

Conway indicated that menthol would be allowed. But mint would still be in the off-limits category, along with such popular flavors as vanilla, mango, and cucumber.

So that’s where we’re at now: Federal officials are parsing the difference between menthol and mint flavoring.

Paul Blair of Americans for Tax Reform told Bloomberg:

My hope is that this is an acknowledgement that vape shops should continue to exist and sell reduced-risk nicotine products to adult smokers. If there is an exemption for vape shops, I think the administration has acknowledged the political and policy importance of preserving vaping for adults.

Read Reason‘s Jacob Sullum for more on the ridiculous vaping panic, what the data really say, and what the FDA is poised to do regardless.

FREE MINDS

Russians are growing more dissatisfied with their government, according to new research from the Carnegie Moscow Center and the Levada Center. “The number of Russians wanting ‘decisive, large-scale’ changes has risen for the second consecutive year,” reports The Moscow Times. In this year’s survey (conducted in July), the figure was at 59 percent, up from 57 percent in 2018 and 42 percent in 2017. More:

Some 53% of the respondents said only serious reforms to Russia’s existing political system could bring about the needed changes. Another 34% said the changes are possible within the existing system, according to Carnegie and Levada’s research….

Respondents were more likely to name state bureaucrats as most resistant to change (69%), followed by oligarchs and big business (67%) and President Vladimir Putin (25%).

FREE MARKETS

JUSTICE FOR ALL?

Lessons from sex workers in Scotland and New Zealand. Advocates against prostitution decriminalization often argue that removing criminal penalties would enrich “pimps” at the expense of “prostituted women.”

But “in comparing sex worker experiences in Scotland and New Zealand, women working in a decriminalised context were much more able to access health, safety and support,” says the Scotland-based researcher Anastacia Elle Ryan. And “most importantly,” they had “access to justice as they were protected by the law.”

Read Ryan’s full paper here.

ELECTION 2020

Warren, Buttigieg on top in latest Iowa poll. Quinnipiac found Sen. Elizabeth Warren (D–Mass.) on top in Iowa (20 percent), with South Bend Mayor Pete Buttigieg just behind her (19 percent). Sen. Bernie Sanders (I–Vt.) and former Vice President Joe Biden took the third and fourth spots, with 17 percent and 15 percent, respectively.

Other candidates to pull more than 1 percent support were Sen. Amy Klobuchar of Minnesota (5 percent), Sen. Kamala Harris of California (4 percent), Rep. Tulsi Gabbard of Hawaii (3 percent), and entrepreneur Andrew Yang (3 percent).

FOLLOWUP

Giuliani says his Ukraine work was all about clearing Trump’s name. President Donald Trump’s messaging about Ukrainegate has centered on the claim that he was merely trying to ferret out corruption, ensuring that U.S. aid to Ukraine wasn’t fueling improper activity. In other words, a perfectly legitimate policy interaction.

Meanwhile, here’s what the president’s personal lawyer has to say about it:

In other Ukraine/impeachment news, Trump reportedly wanted Attorney General Bill Barr to hold a press conference saying Trump didn’t break the law in his conversation with the Ukrainian president. The press conference did not materialize.

And here’s what we’re looking at in the House impeachment investigation next week:

QUICK HITS

  • Here’s a rundown of Libertarian Party candidates who were elected to public office on Tuesday.
  • Two California Democrats in the U.S. House of Representatives want to create a new federal agency. The Digital Privacy Agency would be authorized to hire up to 1,600 employees.
  • Las Vegas is essentially trying to ban homelessness, making it a crime to camp or sleep in public areas downtown and around the city. “This ordinance won’t help reduce homelessness—it will criminalize it,” tweeted 2020 Democratic presidential candidate Julián Castro. “Punishing desperation isn’t good policy, it’s shortsighted and cruel.”
  • J.D. Tuccille reminds us that the FBI has always been terrible.
  • New York City is banning school programs for “gifted” students. An op-ed in Education Week explains why this is a bad idea.
  • Kamala Harris wants to make school days three hours longer.
  • Arizonan Marcos Rodriguez just became “the fifth Phoenix police officer to be terminated over high-profile misconduct incidents since August. Rodriguez has been accused in a federal lawsuit of stalking a woman and making unwanted sexual advances,” the Phoenix New Times reports.
  • A federal judge ruled in favor of the American Civil Liberties Union in a lawsuit over Trump administration rules around health care workers with religious objections.
  • Godspeed and good luck:

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Vape Shops May Be Excluded From Ban on Flavored Vaping Products

There’s hope for mango, cucumber, and creme Juul pod lovers yet. Vape shops may be exempt from the expected restrictions on flavored vaping products.

Talking to reporters Wednesday, presidential advisor Kellyanne Conway suggested that a pending crackdown on flavored vaping products would not include menthol after all—and that certain sorts of vape products and retailers could avoid flavor sales restrictions entirely.

Conway pointed out that the Department of Health and Human Services (HHS) and the Food and Drug Administration (FDA) have prerogative “over cigarettes and e-cigarettes under the Tobacco Control Act” but “do not have jurisdiction over vaping and vape shops.”

While “vaping” and “e-cigarettes” are often talked about interchangeably, Conway’s comments suggest that the Trump administration may not see it that way—and could allow different rules for products considered e-cigarettes and those considered vapes.

“If we’re talking about e-cigarettes, the president, yes, he’s been discussing this with his team, and he will, or HHS will, make an announcement soon,” Conway said.

Restrictions on all but tobacco- or menthol-flavored vaping products would be disappointing (and pointless). But as Bloomberg notes, Conway’s comments represent “a softening of a plan announced by HHS Secretary Alex Azar in the Oval Office in September, when he said menthol, mint and every flavor other than tobacco would be banned.”

Conway indicated that menthol would be allowed. But mint would still be in the off-limits category, along with such popular flavors as vanilla, mango, and cucumber.

So that’s where we’re at now: Federal officials are parsing the difference between menthol and mint flavoring.

Paul Blair of Americans for Tax Reform told Bloomberg:

My hope is that this is an acknowledgement that vape shops should continue to exist and sell reduced-risk nicotine products to adult smokers. If there is an exemption for vape shops, I think the administration has acknowledged the political and policy importance of preserving vaping for adults.

Read Reason‘s Jacob Sullum for more on the ridiculous vaping panic, what the data really say, and what the FDA is poised to do regardless.

FREE MINDS

Russians are growing more dissatisfied with their government, according to new research from the Carnegie Moscow Center and the Levada Center. “The number of Russians wanting ‘decisive, large-scale’ changes has risen for the second consecutive year,” reports The Moscow Times. In this year’s survey (conducted in July), the figure was at 59 percent, up from 57 percent in 2018 and 42 percent in 2017. More:

Some 53% of the respondents said only serious reforms to Russia’s existing political system could bring about the needed changes. Another 34% said the changes are possible within the existing system, according to Carnegie and Levada’s research….

Respondents were more likely to name state bureaucrats as most resistant to change (69%), followed by oligarchs and big business (67%) and President Vladimir Putin (25%).

FREE MARKETS

JUSTICE FOR ALL?

Lessons from sex workers in Scotland and New Zealand. Advocates against prostitution decriminalization often argue that removing criminal penalties would enrich “pimps” at the expense of “prostituted women.”

But “in comparing sex worker experiences in Scotland and New Zealand, women working in a decriminalised context were much more able to access health, safety and support,” says the Scotland-based researcher Anastacia Elle Ryan. And “most importantly,” they had “access to justice as they were protected by the law.”

Read Ryan’s full paper here.

ELECTION 2020

Warren, Buttigieg on top in latest Iowa poll. Quinnipiac found Sen. Elizabeth Warren (D–Mass.) on top in Iowa (20 percent), with South Bend Mayor Pete Buttigieg just behind her (19 percent). Sen. Bernie Sanders (I–Vt.) and former Vice President Joe Biden took the third and fourth spots, with 17 percent and 15 percent, respectively.

Other candidates to pull more than 1 percent support were Sen. Amy Klobuchar of Minnesota (5 percent), Sen. Kamala Harris of California (4 percent), Rep. Tulsi Gabbard of Hawaii (3 percent), and entrepreneur Andrew Yang (3 percent).

FOLLOWUP

Giuliani says his Ukraine work was all about clearing Trump’s name. President Donald Trump’s messaging about Ukrainegate has centered on the claim that he was merely trying to ferret out corruption, ensuring that U.S. aid to Ukraine wasn’t fueling improper activity. In other words, a perfectly legitimate policy interaction.

Meanwhile, here’s what the president’s personal lawyer has to say about it:

In other Ukraine/impeachment news, Trump reportedly wanted Attorney General Bill Barr to hold a press conference saying Trump didn’t break the law in his conversation with the Ukrainian president. The press conference did not materialize.

And here’s what we’re looking at in the House impeachment investigation next week:

QUICK HITS

  • Here’s a rundown of Libertarian Party candidates who were elected to public office on Tuesday.
  • Two California Democrats in the U.S. House of Representatives want to create a new federal agency. The Digital Privacy Agency would be authorized to hire up to 1,600 employees.
  • Las Vegas is essentially trying to ban homelessness, making it a crime to camp or sleep in public areas downtown and around the city. “This ordinance won’t help reduce homelessness—it will criminalize it,” tweeted 2020 Democratic presidential candidate Julián Castro. “Punishing desperation isn’t good policy, it’s shortsighted and cruel.”
  • J.D. Tuccille reminds us that the FBI has always been terrible.
  • New York City is banning school programs for “gifted” students. An op-ed in Education Week explains why this is a bad idea.
  • Kamala Harris wants to make school days three hours longer.
  • Arizonan Marcos Rodriguez just became “the fifth Phoenix police officer to be terminated over high-profile misconduct incidents since August. Rodriguez has been accused in a federal lawsuit of stalking a woman and making unwanted sexual advances,” the Phoenix New Times reports.
  • A federal judge ruled in favor of the American Civil Liberties Union in a lawsuit over Trump administration rules around health care workers with religious objections.
  • Godspeed and good luck:

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Extraordinary Jewish Chronicle Front Page Editorial Opposing Jeremy Corbyn

To understand why the editorial below is so extraordinary, one needs to take into account three things: (1) For most of the party’s history, British Jews voted in large majorities for the Labour Party; (2) The British Jewish community tends to be, collectively, quiet and reserved, to “keep its head down,” so to speak, and not call attention to itself; and (3) the Jewish Chronicle is about as mainstream and staid a newspaper as there is.

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Extraordinary Jewish Chronicle Front Page Editorial Opposing Jeremy Corbyn

To understand why the editorial below is so extraordinary, one needs to take into account three things: (1) For most of the party’s history, British Jews voted in large majorities for the Labour Party; (2) The British Jewish community tends to be, collectively, quiet and reserved, to “keep its head down,” so to speak, and not call attention to itself; and (3) the Jewish Chronicle is about as mainstream and staid a newspaper as there is.

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Right to Advertise Raw Milk

Kansas law allows “the sale of milk or milk products on the farm by the producer from the production of the dairy herd to the final consumer”—including raw milk—but only

so long as the person making such sales does not promote the sale of milk or milk products to the public in any manner other than by the erection of a sign upon the premises of the dairy farm.

The Kansas Justice Institute, representing Mark and Coraleen Bunner, sued, claiming this advertising restriction violates the First Amendment; and the Kansas Department of Agriculture has conceded, agreeing to a consent judgment:

The Raw Milk Advertising Ban is unconstitutional. Specifically, that the
language in KSA § 65-771(cc) “so long as the person making such sales
does not promote the sale of milk or milk products to the public in any
manner other than by the erection of a sign upon the premises of the dairy
farm.” is unconstitutional in that it violates the First and Fourteenth
Amendments to the United States Constitution and Kansas Constitution
Bill of Rights § 11.

Indeed.

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Right to Advertise Raw Milk

Kansas law allows “the sale of milk or milk products on the farm by the producer from the production of the dairy herd to the final consumer”—including raw milk—but only

so long as the person making such sales does not promote the sale of milk or milk products to the public in any manner other than by the erection of a sign upon the premises of the dairy farm.

The Kansas Justice Institute, representing Mark and Coraleen Bunner, sued, claiming this advertising restriction violates the First Amendment; and the Kansas Department of Agriculture has conceded, agreeing to a consent judgment:

The Raw Milk Advertising Ban is unconstitutional. Specifically, that the
language in KSA § 65-771(cc) “so long as the person making such sales
does not promote the sale of milk or milk products to the public in any
manner other than by the erection of a sign upon the premises of the dairy
farm.” is unconstitutional in that it violates the First and Fourteenth
Amendments to the United States Constitution and Kansas Constitution
Bill of Rights § 11.

Indeed.

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As Times Change, the FBI’s Snoopy and Heavy-Handed Ways Continue

The FBI is in the news a lot these days over its role in the investigation of alleged ties between Donald Trump’s successful 2016 presidential campaign and the Russian government. But long before Americans debated whether the federal law enforcement agency was a righteous tribune of the people or a meddling agent of the Deep State, the FBI was something else: a nosy and unaccountable domestic enforcement agency that, by rights, should send chills down the spines of people of all political persuasions—especially since the bureau’s heavy-handedness continues to this day.

The San Francisco Police Department (SFPD) pulled out of a local Joint Terrorism Task Force (JTTF) with the FBI in 2017. At the time, the move was widely portrayed as an effort to shield immigrants and the Muslim community from the Trump administration, and that certainly played a role. But internal FBI documents obtained by The Intercept show that there was more at stake.

City officers who participated in the JTTF were simultaneously subject to city ordinances and the feds’ Domestic Investigations and Operations Guide (DIOG), both of which are enforceable against violators. That caused serious problems when local rules protective of civil liberties ran up against federal regulations that sought to keep a tight cap on everything in sight.

“There are requirements set forth in SFPD General Order 8.10 which govern investigations into First Amendment Activities,” the FBI documents reveal. “Compliance with SFPD General Order 8.10 subjects SFPD FBI [task force officers] to possible criminal exposure for disseminating/disclosing FBI documents to include classified documents.”

Police officers failing to comply with San Francisco police rules could be disciplined or fired, the document continues. But compliance with those rules could get them criminally prosecuted by the feds.

Given the number of cases the JTTF took on that invoked First Amendment concerns, participating cops were stuck in a Catch 22, having to decide which jurisdiction’s rules to violate, and hoping for higher-ups to have mercy.

So, San Francisco pulled out of the JTTF, followed by Portland, Oregon, a year later, in moves largely portrayed as confrontations between sanctuary cities and a nativist administration. But, while Portland nodded toward current political conflicts over immigration in its announcement severing ties with its JTTF, it also added that “Freedom of Information Act requests filed by ACLU affiliates in 2004, 2005, and 2006 revealed that the JTTF collected information on peaceful political activity.”

“If the FBI is willing to target activist groups that do nothing more than feed our houseless communities, there is no limit to what political activities they will deem worthy of excessive investigation,” says the website of Portland Commissioner Jo Ann Hardesty.

With regard to San Francisco’s decision, “the issues raised by the white paper also precede the current president, reflecting the FBI’s post-9/11 transformation into a secretive domestic intelligence agency and the challenges that creates for municipal police departments eager to cooperate with the feds but less capable of shielding themselves from local accountability by invoking ‘national security’ claims,” according to The Intercept‘s Ryan Devereaux.

The conflicts extend beyond Portland and San Francisco.

“Clashes are erupting between local and federal officials over the hundreds of joint task forces that operate around the country,” notes The Marshall Project, which reports on the criminal justice system:

The problem, police officials say, is that local cops assigned to joint task forces are not bound by department rules, such as wearing body cameras, which the feds have prohibited. The FBI and U.S. Marshals allow the use of deadly force if a person poses an ‘imminent danger,’ using a definition that is less strict than many police departments’… Task-force members are also immune to civilian lawsuits in a way that regular officers are not.

Concerns about over-the-top FBI conduct and minimal accountability sound awfully familiar to anybody with some knowledge of history.

“The FBI … has placed more emphasis on domestic dissent than on organized crime and, according to some, let its efforts against foreign spies suffer because of the amount of time spent checking up on American protest groups,” the Senate’s Church Committee complained in 1976. “As intelligence operations developed … rationalizations were fashioned to immunize them from the restraints of the Bill of Rights and the specific prohibitions of the criminal code.”

The post-9/11 environment, as The Intercept‘s Devereaux suggests, seems to have breathed new life into the FBI’s old ways when it comes to monitoring peaceful conduct and shielding itself from scrutiny and consequences. That’s true of the task forces, but also of modern electronic surveillance.

“A federal judge secretly ruled last year that [FBI] procedures for searching for Americans’ emails within a repository of intercepted messages that were gathered without a warrant violated Fourth Amendment privacy rights,” The New York Times reported last month.

The judge’s ruling—upheld by a three-judge appeals panel—required the FBI to distinguish between searches that sought information on Americans, and those that pertained to foreigners. He also told the FBI to document, in writing, how its search terms met the standard of being likely to return foreign intelligence information or criminal evidence—as opposed to a fishing expedition, presumably.

That would be a judge in the same Foreign Intelligence Surveillance Act court that approved FBI surveillance of one-time Trump aide Carter Page, infuriating the president’s supporters in the process and fueling current political controversy over the bureau. Page’s surveillance case might or might not have been justified, but it was just one among many.

“The idea of requiring agents to document their rationales for searching for an American’s information emerged from several recent episodes in which the Justice Department reported to the court that the F.B.I. had conducted improperly sweeping searches of the repository,” the Times added.

“Improperly sweeping searches” sounds an awful lot like the “excessively broad, ill-defined and open-ended investigations” the Church Committee hoped to curtail back in 1976. Despite the fond hopes of reformers of the past, the FBI continues to be intrusive and heavy-handed in its actions, and resistant to scrutiny and correction.

The political controversies of the moment will eventually pass, but they’re unlikely to sweep away concerns about the FBI. If history is any guide, the bureau will still be running amok years from now.

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As Times Change, the FBI’s Snoopy and Heavy-Handed Ways Continue

The FBI is in the news a lot these days over its role in the investigation of alleged ties between Donald Trump’s successful 2016 presidential campaign and the Russian government. But long before Americans debated whether the federal law enforcement agency was a righteous tribune of the people or a meddling agent of the Deep State, the FBI was something else: a nosy and unaccountable domestic enforcement agency that, by rights, should send chills down the spines of people of all political persuasions—especially since the bureau’s heavy-handedness continues to this day.

The San Francisco Police Department (SFPD) pulled out of a local Joint Terrorism Task Force (JTTF) with the FBI in 2017. At the time, the move was widely portrayed as an effort to shield immigrants and the Muslim community from the Trump administration, and that certainly played a role. But internal FBI documents obtained by The Intercept show that there was more at stake.

City officers who participated in the JTTF were simultaneously subject to city ordinances and the feds’ Domestic Investigations and Operations Guide (DIOG), both of which are enforceable against violators. That caused serious problems when local rules protective of civil liberties ran up against federal regulations that sought to keep a tight cap on everything in sight.

“There are requirements set forth in SFPD General Order 8.10 which govern investigations into First Amendment Activities,” the FBI documents reveal. “Compliance with SFPD General Order 8.10 subjects SFPD FBI [task force officers] to possible criminal exposure for disseminating/disclosing FBI documents to include classified documents.”

Police officers failing to comply with San Francisco police rules could be disciplined or fired, the document continues. But compliance with those rules could get them criminally prosecuted by the feds.

Given the number of cases the JTTF took on that invoked First Amendment concerns, participating cops were stuck in a Catch 22, having to decide which jurisdiction’s rules to violate, and hoping for higher-ups to have mercy.

So, San Francisco pulled out of the JTTF, followed by Portland, Oregon, a year later, in moves largely portrayed as confrontations between sanctuary cities and a nativist administration. But, while Portland nodded toward current political conflicts over immigration in its announcement severing ties with its JTTF, it also added that “Freedom of Information Act requests filed by ACLU affiliates in 2004, 2005, and 2006 revealed that the JTTF collected information on peaceful political activity.”

“If the FBI is willing to target activist groups that do nothing more than feed our houseless communities, there is no limit to what political activities they will deem worthy of excessive investigation,” says the website of Portland Commissioner Jo Ann Hardesty.

With regard to San Francisco’s decision, “the issues raised by the white paper also precede the current president, reflecting the FBI’s post-9/11 transformation into a secretive domestic intelligence agency and the challenges that creates for municipal police departments eager to cooperate with the feds but less capable of shielding themselves from local accountability by invoking ‘national security’ claims,” according to The Intercept‘s Ryan Devereaux.

The conflicts extend beyond Portland and San Francisco.

“Clashes are erupting between local and federal officials over the hundreds of joint task forces that operate around the country,” notes The Marshall Project, which reports on the criminal justice system:

The problem, police officials say, is that local cops assigned to joint task forces are not bound by department rules, such as wearing body cameras, which the feds have prohibited. The FBI and U.S. Marshals allow the use of deadly force if a person poses an ‘imminent danger,’ using a definition that is less strict than many police departments’… Task-force members are also immune to civilian lawsuits in a way that regular officers are not.

Concerns about over-the-top FBI conduct and minimal accountability sound awfully familiar to anybody with some knowledge of history.

“The FBI … has placed more emphasis on domestic dissent than on organized crime and, according to some, let its efforts against foreign spies suffer because of the amount of time spent checking up on American protest groups,” the Senate’s Church Committee complained in 1976. “As intelligence operations developed … rationalizations were fashioned to immunize them from the restraints of the Bill of Rights and the specific prohibitions of the criminal code.”

The post-9/11 environment, as The Intercept‘s Devereaux suggests, seems to have breathed new life into the FBI’s old ways when it comes to monitoring peaceful conduct and shielding itself from scrutiny and consequences. That’s true of the task forces, but also of modern electronic surveillance.

“A federal judge secretly ruled last year that [FBI] procedures for searching for Americans’ emails within a repository of intercepted messages that were gathered without a warrant violated Fourth Amendment privacy rights,” The New York Times reported last month.

The judge’s ruling—upheld by a three-judge appeals panel—required the FBI to distinguish between searches that sought information on Americans, and those that pertained to foreigners. He also told the FBI to document, in writing, how its search terms met the standard of being likely to return foreign intelligence information or criminal evidence—as opposed to a fishing expedition, presumably.

That would be a judge in the same Foreign Intelligence Surveillance Act court that approved FBI surveillance of one-time Trump aide Carter Page, infuriating the president’s supporters in the process and fueling current political controversy over the bureau. Page’s surveillance case might or might not have been justified, but it was just one among many.

“The idea of requiring agents to document their rationales for searching for an American’s information emerged from several recent episodes in which the Justice Department reported to the court that the F.B.I. had conducted improperly sweeping searches of the repository,” the Times added.

“Improperly sweeping searches” sounds an awful lot like the “excessively broad, ill-defined and open-ended investigations” the Church Committee hoped to curtail back in 1976. Despite the fond hopes of reformers of the past, the FBI continues to be intrusive and heavy-handed in its actions, and resistant to scrutiny and correction.

The political controversies of the moment will eventually pass, but they’re unlikely to sweep away concerns about the FBI. If history is any guide, the bureau will still be running amok years from now.

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“If Merely Using Profanity Can Cause a Parent to Lose Custody,”

From Fyffe v. Cain, decided last week by the Georgia Court of Appeals:

H.C., who was 11 years old at the time the trial court issued its custody order, was born to the Mother and Father in 2007. The couple married in 2009 and divorced in 2012. In the divorce decree, the trial court awarded legal custody of H.C. to both parents and gave physical custody of H.C. to the Father. The Mother was given visitation rights and ordered to pay child support. On July 29, 2017, the Father was killed in a motorcycle accident. Following the father’s death, the Mother took H.C. to live with her, and on August 25, 2017, the Grandparents filed a complaint seeking physical and legal custody of H.C…. [T]he trial court awarded legal and physical custody of H.C. to the Grandparents and visitation to the Mother ….

[1.] The start of any analysis that affects parental rights is the recognition that a parent has “a constitutional right under the United States and Georgia Constitutions to the care and custody of their children[ ]” and that this right “is a fiercely guarded right that should be infringed upon only under the most compelling circumstances.” To guard that right, a non-parent seeking custody must overcome three constitutionally based presumptions in favor of parental custody: “(1) the parent is a fit person entitled to custody, (2) a fit parent acts in the best interest of his or her child, and (3) the child’s best interest is to be in the custody of a parent.” …

[I]n order to protect the parent’s constitutional rights and to overcome the constitutionally based presumptions, our courts have held that the non-parent under these circumstances “must show, with clear and convincing evidence, that the child will suffer either physical harm or significant, long-term emotional harm if custody is awarded to the parent.” To assess harm, “trial courts must consider a variety of factors beyond biological connection or generalized notions of parental fitness,” including “(1) who are the past and present caretakers of the child or children; (2) with whom has the child or children formed psychological bonds and how strong are these bonds; (3) have the competing parties evidenced interest in, and contact with, the child or children over time; and (4) are there any unique medical or psychological needs of the child or children.” Moreover, harm in this context does not include “merely social or economic disadvantages.” Suffice it to say, a non-parent bears a heavy burden in seeking to take custody of a child away from a parent….

[2.] [The trial court concluded] that significant, long-term emotional harm would result from allowing the Mother to continue with custody and that it is in the best interests of H.C. for her Grandparents to be awarded permanent physical custody….

The trial court acknowledged that in the fourteen months that H.C. was in her Mother’s custody, her grades were “quite good” and remained at the same level as when her Father was alive. However, the trial court found that the Mother had used the “F” word in front of H.C. and on social media and that she had called the Grandparents profane names. {The trial court made no finding that H.C. actually heard this name-calling, while noting that the Grandmother believed that H.C. heard it over the speakerphone.} Twice, H.C. had been put “on restriction” and had her cell phone taken away from her as discipline. Also, the Mother limited visitation with the Grandparents, and on one occasion it was because H.C. was “on restriction.” The Mother also received a speeding ticket while H.C. was in the car.

Even viewing these findings with deference, they fail to support the conclusion that H.C. would suffer significant, long-term emotional harm if left in her Mother’s custody. The guardian ad litem testified that he was not bothered by the Mother’s language and opined that the Mother had “done a fine job raising the child,” and that the child’s “optimistic, bright, smiling, shining personality” “is no doubt in large part due to the fantastic job that her mother has done.” The Grandparents offered no evidence showing that a parents’ use of profanity can result in emotional harm to a child.

Indeed, if merely using profanity can cause a parent to lose custody, the majority of parents might be in danger of losing custody of their children. {A 2006 Associated Press Profanity Study, which interviewed 1001 adults, found that 65% used the F-word in conversations, and 79% used swear words in conversations.} Similarly, one speeding ticket and the Mother’s decision to discipline her pre-teen child by placing her on restriction and taking away her phone cannot be considered harmful absent additional evidence of negative circumstances surrounding the ticket or that the discipline resulted in harm to the child. {Although the guardian ad litem testified that limiting visitation with the Grandparents, especially the Grandfather, would harm H.C., our legislature has provided a means by which family members may seek visitation of a child whose parent has died, without taking custody away from the other parent.} …

The Father and Mother divorced in 2012, and the trial court found that from 2012 to 2017 when the Father was killed, the Mother was unable to establish that she made any child support payments although she testified that she made a little more than one half of them. The trial court made no finding that the Mother’s lack of child support had caused the child any harm, emotional or otherwise, and the evidence is to the contrary. {The record reflects that the Father never attempted to collect the overdue child support through any court proceeding. Both the Mother and H.C.’s stepmother (the Father’s widow) testified that the Father and Mother agreed not to go by the divorce decree, but instead had their own personal agreement regarding child support. Although the stepmother was not aware of the terms of that agreement, she said that H.C. was always taken care of: “Whenever [H.C.] needed something, her mom was there.”} Moreover, the Grandparents presented no evidence that H.C. had been deprived in any way during the 14-month period the Mother had custody….

The trial court also found that the Mother “had a lifetime history of questionable and sometimes immoral conduct when it comes to sex[,]” pointing to two abortions the Mother had undergone, a child born out of wedlock after her divorce from the Father, a male roommate {with whom, according to the Mother, her relationship was “completely platonic”} while still married to the Father, two boyfriends that she lived with, and two other male friendships that the Mother described as nonsexual and platonic. The trial court then explains in its conclusions of law that:

“The Court is concerned about example and exposure.

“The mother in this case has set a very poor moral example for her daughter and the relationships she has had with men: repeated abortions, out-of-wedlock childbirth, having one man as a ‘roommate’ while married to another, engaging in serial cohabitation without benefit of vows.”

Although the trial court notes that these relationships were open and not hidden from the child, he makes no finding that any of these relationships, or the relationships collectively, have resulted in harm to the child. “Under Georgia law, a parent’s cohabitation with someone is not a basis for denying custody or visitation absent evidence that the child was harmed or exposed to inappropriate conduct.” Likewise, the trial court made no finding that H.C. was even aware that her Mother had abortions, much less that she was harmed by them.

The trial court also found that at least two of the men the mother had allowed in her life “with [H.C.’s] knowledge and in her presence,” were violent individuals and that the violence had progressed to the extent that the Mother had to obtain a permanent protective order against one and the other one is now facing criminal charges. However, no evidence supports that H.C. had knowledge that these men had been violent or that they had been violent in her presence. Moreover, although these past episodes of violence in the Mother’s life are troubling, there is absolutely no evidence that the mother had allowed the men to be violent to H.C. or that the child had any knowledge that her Mother had sought protection from the courts from these men. Accordingly, there is no evidence showing that the child had suffered emotional or other harm as a result of the actions of these men.

The trial court also found that the Mother had engaged in acts of violence, the latest of which took place in 2017, involved a dispute with the mother of a former boyfriend, who was knocked to the ground during the altercation. {In addition to the 2017 incident, one incident happened eleven years before the hearing when the Mother was a teenager, before H.C. was born, and another happened when the Mother hit the Father in the face in 2008, ten years before the hearing. However, there is no evidence that any arrests occurred or that any protective orders were sought or issued in connection with these incidents.} Although this finding is likewise troubling, the trial court made no finding, and we have not found any evidence in the record, that H.C. was exposed to any of these incidents, subjected to any violence, or was even aware of her Mother’s actions in this regard. Nor was there any finding or evidence that in the fourteen months that H.C. was in her Mother’s custody, that the Mother had engaged in any violence or been involved in any violent or potentially violent relationships….

The trial court also made findings on the Grandparents’ stable employment history and home life, noting that they “have been always faithful to one another,” and that there has been “no violence between themselves or with any third party, no cussing, and no smoking.” The Grandparents have been active members of a church for 30 years.

However, such factors are not relevant to a consideration of whether the child is likely to suffer long-term emotional harm in the Mother’s custody. In determining the issue of long term harm under Georgia law, “a court is not permitted to terminate a parent’s natural right to custody merely because it believes that the children might have better financial, educational, or moral advantages elsewhere, that is, the parent’s ability to raise her children is not to be compared to the fitness of a third person.” Comparing the Grandparents’ lifestyle to the Mother’s on the basis of such moral and economic distinctions “is precisely the sort of comparison trap that trial courts are not permitted to fall into.”

A dissenting judge disagreed with the majority’s reading of the record as to some other factual matters.

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“If Merely Using Profanity Can Cause a Parent to Lose Custody,”

From Fyffe v. Cain, decided last week by the Georgia Court of Appeals:

H.C., who was 11 years old at the time the trial court issued its custody order, was born to the Mother and Father in 2007. The couple married in 2009 and divorced in 2012. In the divorce decree, the trial court awarded legal custody of H.C. to both parents and gave physical custody of H.C. to the Father. The Mother was given visitation rights and ordered to pay child support. On July 29, 2017, the Father was killed in a motorcycle accident. Following the father’s death, the Mother took H.C. to live with her, and on August 25, 2017, the Grandparents filed a complaint seeking physical and legal custody of H.C…. [T]he trial court awarded legal and physical custody of H.C. to the Grandparents and visitation to the Mother ….

[1.] The start of any analysis that affects parental rights is the recognition that a parent has “a constitutional right under the United States and Georgia Constitutions to the care and custody of their children[ ]” and that this right “is a fiercely guarded right that should be infringed upon only under the most compelling circumstances.” To guard that right, a non-parent seeking custody must overcome three constitutionally based presumptions in favor of parental custody: “(1) the parent is a fit person entitled to custody, (2) a fit parent acts in the best interest of his or her child, and (3) the child’s best interest is to be in the custody of a parent.” …

[I]n order to protect the parent’s constitutional rights and to overcome the constitutionally based presumptions, our courts have held that the non-parent under these circumstances “must show, with clear and convincing evidence, that the child will suffer either physical harm or significant, long-term emotional harm if custody is awarded to the parent.” To assess harm, “trial courts must consider a variety of factors beyond biological connection or generalized notions of parental fitness,” including “(1) who are the past and present caretakers of the child or children; (2) with whom has the child or children formed psychological bonds and how strong are these bonds; (3) have the competing parties evidenced interest in, and contact with, the child or children over time; and (4) are there any unique medical or psychological needs of the child or children.” Moreover, harm in this context does not include “merely social or economic disadvantages.” Suffice it to say, a non-parent bears a heavy burden in seeking to take custody of a child away from a parent….

[2.] [The trial court concluded] that significant, long-term emotional harm would result from allowing the Mother to continue with custody and that it is in the best interests of H.C. for her Grandparents to be awarded permanent physical custody….

The trial court acknowledged that in the fourteen months that H.C. was in her Mother’s custody, her grades were “quite good” and remained at the same level as when her Father was alive. However, the trial court found that the Mother had used the “F” word in front of H.C. and on social media and that she had called the Grandparents profane names. {The trial court made no finding that H.C. actually heard this name-calling, while noting that the Grandmother believed that H.C. heard it over the speakerphone.} Twice, H.C. had been put “on restriction” and had her cell phone taken away from her as discipline. Also, the Mother limited visitation with the Grandparents, and on one occasion it was because H.C. was “on restriction.” The Mother also received a speeding ticket while H.C. was in the car.

Even viewing these findings with deference, they fail to support the conclusion that H.C. would suffer significant, long-term emotional harm if left in her Mother’s custody. The guardian ad litem testified that he was not bothered by the Mother’s language and opined that the Mother had “done a fine job raising the child,” and that the child’s “optimistic, bright, smiling, shining personality” “is no doubt in large part due to the fantastic job that her mother has done.” The Grandparents offered no evidence showing that a parents’ use of profanity can result in emotional harm to a child.

Indeed, if merely using profanity can cause a parent to lose custody, the majority of parents might be in danger of losing custody of their children. {A 2006 Associated Press Profanity Study, which interviewed 1001 adults, found that 65% used the F-word in conversations, and 79% used swear words in conversations.} Similarly, one speeding ticket and the Mother’s decision to discipline her pre-teen child by placing her on restriction and taking away her phone cannot be considered harmful absent additional evidence of negative circumstances surrounding the ticket or that the discipline resulted in harm to the child. {Although the guardian ad litem testified that limiting visitation with the Grandparents, especially the Grandfather, would harm H.C., our legislature has provided a means by which family members may seek visitation of a child whose parent has died, without taking custody away from the other parent.} …

The Father and Mother divorced in 2012, and the trial court found that from 2012 to 2017 when the Father was killed, the Mother was unable to establish that she made any child support payments although she testified that she made a little more than one half of them. The trial court made no finding that the Mother’s lack of child support had caused the child any harm, emotional or otherwise, and the evidence is to the contrary. {The record reflects that the Father never attempted to collect the overdue child support through any court proceeding. Both the Mother and H.C.’s stepmother (the Father’s widow) testified that the Father and Mother agreed not to go by the divorce decree, but instead had their own personal agreement regarding child support. Although the stepmother was not aware of the terms of that agreement, she said that H.C. was always taken care of: “Whenever [H.C.] needed something, her mom was there.”} Moreover, the Grandparents presented no evidence that H.C. had been deprived in any way during the 14-month period the Mother had custody….

The trial court also found that the Mother “had a lifetime history of questionable and sometimes immoral conduct when it comes to sex[,]” pointing to two abortions the Mother had undergone, a child born out of wedlock after her divorce from the Father, a male roommate {with whom, according to the Mother, her relationship was “completely platonic”} while still married to the Father, two boyfriends that she lived with, and two other male friendships that the Mother described as nonsexual and platonic. The trial court then explains in its conclusions of law that:

“The Court is concerned about example and exposure.

“The mother in this case has set a very poor moral example for her daughter and the relationships she has had with men: repeated abortions, out-of-wedlock childbirth, having one man as a ‘roommate’ while married to another, engaging in serial cohabitation without benefit of vows.”

Although the trial court notes that these relationships were open and not hidden from the child, he makes no finding that any of these relationships, or the relationships collectively, have resulted in harm to the child. “Under Georgia law, a parent’s cohabitation with someone is not a basis for denying custody or visitation absent evidence that the child was harmed or exposed to inappropriate conduct.” Likewise, the trial court made no finding that H.C. was even aware that her Mother had abortions, much less that she was harmed by them.

The trial court also found that at least two of the men the mother had allowed in her life “with [H.C.’s] knowledge and in her presence,” were violent individuals and that the violence had progressed to the extent that the Mother had to obtain a permanent protective order against one and the other one is now facing criminal charges. However, no evidence supports that H.C. had knowledge that these men had been violent or that they had been violent in her presence. Moreover, although these past episodes of violence in the Mother’s life are troubling, there is absolutely no evidence that the mother had allowed the men to be violent to H.C. or that the child had any knowledge that her Mother had sought protection from the courts from these men. Accordingly, there is no evidence showing that the child had suffered emotional or other harm as a result of the actions of these men.

The trial court also found that the Mother had engaged in acts of violence, the latest of which took place in 2017, involved a dispute with the mother of a former boyfriend, who was knocked to the ground during the altercation. {In addition to the 2017 incident, one incident happened eleven years before the hearing when the Mother was a teenager, before H.C. was born, and another happened when the Mother hit the Father in the face in 2008, ten years before the hearing. However, there is no evidence that any arrests occurred or that any protective orders were sought or issued in connection with these incidents.} Although this finding is likewise troubling, the trial court made no finding, and we have not found any evidence in the record, that H.C. was exposed to any of these incidents, subjected to any violence, or was even aware of her Mother’s actions in this regard. Nor was there any finding or evidence that in the fourteen months that H.C. was in her Mother’s custody, that the Mother had engaged in any violence or been involved in any violent or potentially violent relationships….

The trial court also made findings on the Grandparents’ stable employment history and home life, noting that they “have been always faithful to one another,” and that there has been “no violence between themselves or with any third party, no cussing, and no smoking.” The Grandparents have been active members of a church for 30 years.

However, such factors are not relevant to a consideration of whether the child is likely to suffer long-term emotional harm in the Mother’s custody. In determining the issue of long term harm under Georgia law, “a court is not permitted to terminate a parent’s natural right to custody merely because it believes that the children might have better financial, educational, or moral advantages elsewhere, that is, the parent’s ability to raise her children is not to be compared to the fitness of a third person.” Comparing the Grandparents’ lifestyle to the Mother’s on the basis of such moral and economic distinctions “is precisely the sort of comparison trap that trial courts are not permitted to fall into.”

A dissenting judge disagreed with the majority’s reading of the record as to some other factual matters.

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