Why you can't cancel a family the way you can cancel a TV show.

Why you can't cancel a family the way you can cancel a TV show.

Why you can't cancel a family the way you can cancel a TV show.

The law, lawyers, and the court.
Oct. 23 2009 12:27 PM

The Gasbags Who Would Break Up Balloon Boy's Family

Why you shouldn't be able to cancel a family the way you can cancel a TV show.

Richard Heene. Click image to expand.
Richard Heene 

Mere hours after police declared the story of 6-year-old Falcon Heene drifting away in a silver balloon a hoax, America's buttinskis began clamoring for his parents' blood. The Heenes' alleged act of concocting a phony crisis makes them eligible for felony charges. But for the heartsick millions who watched that silver bag float away, it wouldn't be enough to send Richard Heene to jail. Some are convinced he and his wife, Mayumi, should lose their children as well.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

No fit parent, they contend, could subject his children to a life of chasing wildly after hurricanes, or after appearances on TV reality shows, much less press them into colluding in a national fraud. Early online polls revealed a widespread belief that, in light of this ordeal, the Heene children are abuse victims. Pundits everywhere weighed in to say that there is already ample cause to remove the kids: Former prosecutor Wendy Murphy told CBS News last week that "all they have to have is evidence of neglect or abuse. … And, boy, I think they've got plenty of that here."

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The impulse to remove innocent children from their stupid parents simply because their parents are stupid is a strong one. But it sweeps broadly and often irrevocably. Was Octomom showing good judgment when she had herself implanted with several embryos she had neither the financial nor emotional resources to support? * Do the preposterous Jon and Kate Gosselin really believe their children have thrived as a consequence of having their every burp and sniffle broadcast to millions of viewers?

A clutch of children's rights advocates and many outraged Americans have used the Balloon Boy debacle to argue that the laws need to change; that any parent who agrees to put a small child on a reality show is, by definition, some kind of abuser. But our legal system doesn't agree. Despite data that show what happens to child stars, current laws are concerned only with protecting young celebrities' finances and making sure they stay on the right side of child-labor rules. Being willing to do virtually anything for fame and money simply isn't a crime in America. It's a vocation.

In the absence of a legal framework to protect the child victims of reality television, is there any evidence that the Heene children have in fact been abused? Colorado's state code is clear on what constitutes abuse or neglect that warrants removal from a home: cases in which "a child exhibits evidence of skin bruising, bleeding, malnutrition … burns, fracture of any bone … soft tissue swelling, or death." Or if the child is subject to "emotional abuse," meaning "an identifiable and substantial impairment of the child's intellectual or psychological functioning or development." Throwing up on the morning  shows is just not prima facie evidence of emotional abuse. It will be up to the experts to determine what, if anything, has been done to the Heene kids when the cameras are turned off.

Even if Richard Heene is convicted of a felony, he will not automatically lose custody of his children, not even if the elastic crime of "contributing to the delinquency of a minor" can be proved. Heene's 1997 arrest for three misdemeanors—he pleaded no contest to vandalism charges—are not evidence of abuse or neglect, either. Much more compelling, if true, are records showing that police have twice been called to the Heene residence in the past year, including an alleged domestic-violence incident in February. Heene's nasty temper was much in evidence in his two turns on Wife Swap. But nobody has yet suggested that his wife or his children are afraid of him. If anything, they all seem to think he's the Easter Bunny and Good Fairy all rolled into one.

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If state officials believe the Heene children are at genuine risk of abuse, they should be removed from the home. But as Heene's lawyer has argued, there is simply no evidence of that yet, and the emotional harm caused by storm-chasing with Dad is nothing compared with being ripped from the custody of your parents.

Whether and when to remove a child from the care of his completely nutty parents shouldn't be hashed out via online polls or decided by people possessing only small pieces of video evidence. State laws properly recognize that tearing apart a family is an extreme step to be taken when a child faces imminent danger, and not when parents make terrible choices.

If you still believe making bad choices suffices for terminating custody, think of the fate of poor Adolf Hitler Campbell, who at the age of 3 made national headlines last January when he and his sisters—JoyceLynn Aryan Nation Campbell and Honszlynn Hinler Jeannie Campbell—were removed by the police from their New Jersey home shortly after a local bakery refused to frost young Adolf's name onto his birthday cake. The state claimed at the time that the children's names were not the cause of their removal, but nine months later the Campbell children are still not living with their parents. Because the records remain sealed, and the lawyers are under a gag order, we don't know quite why the Campbell children were removed from their home or when their parents will get them back. Calling your child Adolf Hitler is insane. But if it's also child abuse, let's hear it from a judge.

Somewhere between the bright lights of reality TV and the rabbit hole of fuzzy child-abuse allegations, there lies an appropriate resolution for the Heene family. Only a thorough investigation of all the facts will tell. Thankfully, the standards for canceling a reality TV show and wresting custody from an unfit parent are still not one and the same in America.

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A version of this article also appears in this week's issue of Newsweek.

Slate V: Balloon Boy, Meet Balloon Bank

Correction, April 21, 2010: This article originally stated that the Octomom was implanted with eight embryos. She was implanted with six, ultimately producing eight babies. (Return to the corrected sentence.)