Anyway, here are the questions and answers:
On Custody of Henry
Best Interest of the Child: Who gets custody of Henry
Neal may not have actually signed away his rights, but the court would say that he constructively surrendered them. (Constructive being the legal word for “not really, but because we said so”) Non-married bio father’s have no rights at the birth of the child. They need to go through the legal process to establish paternity. This is usually done by signing an acknowledgement of paternity after the child is born but can be done before birth through a putative father registry or some type of court injunction preventing the mother from placing the child or adoption until paternity can be established. Some states will say that a woman must place an ad in the papers announcing the birth before they can have the adoption (issuing constructive notice to the father that if he wants to have the kid he better step up…look in the legal notices section of your local paper to see these). If the father doesn’t do those things then he is assumed to have given up his rights. The court’s general answer to someone in Neal’s position is that if you wanted to be a Dad you should have stuck around long enough to see if the lady you slept with got pregnant. If you don’t do that, the court isn’t going to help you later on.
So, Neal and Emma both are legal strangers to Henry. Now, the entire legality of the adoption is sort of up in the air since it is unclear if Storybrooke actually follows the laws of anyplace. But it ends up not really mattering. The adoption is either valid, making Regina the legal mother, or she has cared for Henry long enough to make her the de facto parent. In either case she would be the legal and custodial parent.
The analysis would end there, except for the issue of Henry’s safety. I know that discussions of Regina’s mothering in season 1 are points of contention and arguments over what is neglect or abuse. In the real world it would matter because it would lead to the intervention of the child welfare system. But that isn’t a thing in Storybrooke. Besides, we don’t need to determine if Regina can care for Henry since she seems to admit that she can’t. In 2x02 Regina allows Henry to go with David after recognizing that she was starting to turn into Cora. She tells Henry that one day she wants to be able to care for him as she should. But that time isn’t now.
She informally turned custody over to David. She didn’t give up her legal rights, but she did lose some of the authority she had as the de facto parent. I think it was clear that she wasn’t doing this forever, but just until a time when she was able to care for Henry. If Regina meets that goal then she should get custody. But if she doesn’t, or it seems like she might not for many years, then the courts will likely sever her parental rights. In a sense, Regina allowed herself to be placed under a pseudo-CPS. She was working a case plan (therapy, visitation, trying to control her magic addiction) until The Cricket Game. Now she seems to be slipping. But she has time to get back under control and get Henry back.
If she can’t…then the rest of the players (Snow and Charming, Emma, Neal, even Rumplestilskin and Cora as grandparents) would all make their cases with the court looking at best interest of the child. Henry’s opinion would be a factor, but not the only one. But at this point I think that it’s best to think of Regina as a parent with a child in CPS and the Charming’s as foster parents. It’s the analogy most like what we have seen on the show. Regina saw the path she was going down in 2x02 and placed Henry into a pseudo foster care system. If she can get herself better in a reasonable amount of time then Henry should go to her.
(And, oddly, the show is actually getting the dynamics of a parent with a child in the CPS system perfectly with Regina. Especially a voluntary placement. They have the best of intentions and are trying very hard. But when they hit a rough patch they just give up totally. After the Cricket Game Regina is ready to team up with Cora and use magic to kill people. Which the Regina of 2x02 would be horrified by. But when you are fighting for your child, especially a child that is not in your custody, it is so easy to get discouraged. Change is hard.)
On the legal issues of Regina's actions in 1x21 and 1x22 re: poisoned apple. Is it true to say she tried to kill Henry?
There’s a saying that intent follows the bullet, which explains the legal concept of transferred intent. The law doesn’t care if the person who was harmed was intended to be the victim. They only care what the motive of the person was when they did the act. If you are using legal self-defense in your home and the bullet shoots a neighbor then there is no crime. Your intent (if you had hit the target) was good. The fact you missed doesn’t make your act wrongful (unless you were doing something silly like firing with your eyes closed, in which case it is a negligent act).
So, to determine what crime Regina committed against Emma you have to determine what she was trying to do.
Maine has adopted the model penal code’s elimination of degrees of murder. “a person is guilty of murder if he or she intentionally or knowingly causes the death of another human being, engages in conduct that manifests a depraved indifference to the value of human life and causes death, or intentionally or knowingly causes another human being to commit suicide by the use of force, duress, or deception”. Giving the poisoned apple, with the understanding that magic works differently here and could cause death, would be depraved indifference. She didn’t really care that it might kill Emma, which makes the intent one of murder. The intent transferred to Henry when he ate it. The fact that he didn’t die would mean Regina would only be guilty of attempted murder against Henry. There’s an interesting question of if she would also be guilty of attempted murder against Emma (since that was her original goal).
Also, there’s an interesting question about Jefferson’s involvement as an accessory, but I’d have to rewatch the episode to see how much he knew about what the apple could do.
Does it matter that Regina was only trying to put Emma in a coma instead of kill her?
It wouldn’t make much impact in the analysis. The
law doesn’t distinguish between death and serious bodily harm when
determining murder. Either one will be enough to show intent. I know
that “she only wanted Emma in a coma forever because she wanted to keep
the curse in place/have Henry’s love” is an ethical argument in support
of Regina. The law doesn’t care as long as the act could be reasonably
presumed to result in death or serious bodily harm.
Here’s a hypothetical based on a real series of cases. Unlicensed person does a medical procedure (in the real cases I’m thinking of the procedures were cosmetic surgery and castration, but any surgical procedure would work) and the person dies as a result. The charge is murder because a reasonable person would believe that trying to do surgery without proper tools or experience would likely result in death or bodily harm.
Now,let’s say that someone does an at home ear piercing on someone else and they die as a result (from something weird like an infection or some crazy allergy). That would probably be manslaughter since a reasonable person wouldn’t assume that something like that could result in serious harm.
If Maine had degrees of murder Regina’s belief that the apple would only place in a coma and not kill could be a factor in choosing between first a second degree murder. The model penal code (which is the thing the academics write as the ideal criminal law system which most states ignore) gets rid of degrees of murder because it ends up being so fuzzy. Maine has actually adopted the model penal code system so it is much easier to place this in attempted murder than attempted manslaughter.
On Legal Defenses for Regina's Actions
The better argument for Regina, I think, isn’t that she only meant to place Emma in a coma but that the Regina of Season One is not the current Regina. The curse changed her and created a hole in her heart that made her unable to love. Her decision to choose Henry over the curse in 1x22 changed her back to who she was before.
The analogy in our world could be to something like intoxication which can be used to show diminished intent. Just like someone who is on drugs and commits a crime might be found to be not guilty because they were unable to form the intent needed because the drugs so altered their thinking as to render them unable to tell right from wrong. The problem with this is that the law distinguishes between voluntary and involuntary intoxication. If we see Regina from choosing to cast the curse and place herself in the state where she has a hole in her heart (she was warned by Mal after all) then the law would find that this wasn’t a mitigating factor. In our analogy this is why you can’t go get drunk and then try and argue that you didn’t mean to do whatever you did. The court sees your decision to drink as accepting all the results of it.
On the other hand, if Regina didn’t choose to cast the curse (the victim of fate idea) or didn’t realize the effect it would have on her, then she can use the idea of involuntary intoxication to diminish her actions. In the real world this would be like if someone slipped you a drug or if you had an unexpected reaction to something that caused you to act differently than normal.
Here’s a hypothetical based on a real series of cases. Unlicensed person does a medical procedure (in the real cases I’m thinking of the procedures were cosmetic surgery and castration, but any surgical procedure would work) and the person dies as a result. The charge is murder because a reasonable person would believe that trying to do surgery without proper tools or experience would likely result in death or bodily harm.
Now,let’s say that someone does an at home ear piercing on someone else and they die as a result (from something weird like an infection or some crazy allergy). That would probably be manslaughter since a reasonable person wouldn’t assume that something like that could result in serious harm.
If Maine had degrees of murder Regina’s belief that the apple would only place in a coma and not kill could be a factor in choosing between first a second degree murder. The model penal code (which is the thing the academics write as the ideal criminal law system which most states ignore) gets rid of degrees of murder because it ends up being so fuzzy. Maine has actually adopted the model penal code system so it is much easier to place this in attempted murder than attempted manslaughter.
On Legal Defenses for Regina's Actions
The better argument for Regina, I think, isn’t that she only meant to place Emma in a coma but that the Regina of Season One is not the current Regina. The curse changed her and created a hole in her heart that made her unable to love. Her decision to choose Henry over the curse in 1x22 changed her back to who she was before.
The analogy in our world could be to something like intoxication which can be used to show diminished intent. Just like someone who is on drugs and commits a crime might be found to be not guilty because they were unable to form the intent needed because the drugs so altered their thinking as to render them unable to tell right from wrong. The problem with this is that the law distinguishes between voluntary and involuntary intoxication. If we see Regina from choosing to cast the curse and place herself in the state where she has a hole in her heart (she was warned by Mal after all) then the law would find that this wasn’t a mitigating factor. In our analogy this is why you can’t go get drunk and then try and argue that you didn’t mean to do whatever you did. The court sees your decision to drink as accepting all the results of it.
On the other hand, if Regina didn’t choose to cast the curse (the victim of fate idea) or didn’t realize the effect it would have on her, then she can use the idea of involuntary intoxication to diminish her actions. In the real world this would be like if someone slipped you a drug or if you had an unexpected reaction to something that caused you to act differently than normal.
