Judges make life-altering decisions every day. Whether through rulings in individual cases or through the establishment of case law, judges intimately impact the life of every American.
As a matter of public safety it is crucial to ensure that judges are making decisions free of corruption, cronyism, and bias.
The main line of defense against these evils are state judicial oversight agencies, which are charged with investigating judicial misconduct — violations of judicial ethics — and disciplining judges accordingly. The other core function served by these agencies is to refer criminal conduct to appropriate authorities such as an attorney general, district attorney, or federal agency.
But these judge watchdogs operate more like national security agencies than agencies responsible for overseeing public officials presiding over public courtrooms conducting the public’s business. The agencies withhold vital information about the conduct of judges, including complaints and private disciplines.
Why is information that would impact judicial elections and provide insight into the performance of judges being withheld from the public — including instances of actual misconduct that are being privately disciplined by secret letters?
To understand why we must take a look at the common beginning.
While it might seem completely justified, it’s important to be aware of the potential ramifications on the long-term health and well being of your child.
Parental alienation occurs when a parent consciously or unconsciously attempts to brainwash, or otherwise influence a child’s memories, perceptions, feelings, and relationship toward the other parent in a negative, unhealthy, selfish, or destructive way.
And this kind of behavior is repulsive enough.
But one of the most extreme, and increasingly popular forms of parental alienation arising in custody cases today involves the false allegations sexual or physical abuse against a child in divorce action.
And there is a reason for this: it’s a fast and easy way to get your parenting rights terminated and create unhealthy separation between you and your children during a divorce, even as court-ordered child-support keeps flowing.
Of Course, this is why within professional circles, false allegations of sexual abuse in a divorce action are commonly referred to as :The Nuclear Option.
Because with one simple, fraudulent allegation, your divorce opponent can not only inflict massive damage to your relationship with your children, but can completely destroy your life as well.
Background – The Rapid and Increasing Proliferation of Nuclear Warfare in Divorce
And According to medical, legal, and psychological studies (some of which I have provided links to under the “Resources” tab to the right), allegations of sexual abuse against a parent occur in approximately 4% of divorce cases, or 12% of divorce cases classified as high conflict custody battles.
WARNING: If you’re involved in a serious conflict over the custody of your children, statistics show your chances of being accused of molesting a child are greater than ONE in TEN.
Quite often, I write about parental alienation and family court bias. Both, of these things do and will continue to occur in its present form unless, something dramatic changes. When we set foot into a family court environment to decide parental responsibilities, we have certain expectations that the term “best interests” of our child will be applied in the fullest measure possible.
Within the family court realm, there are essentially three people who will ultimately have a hand in the decision making process of where our child will live. First, you have an attorney for Mom, an attorney for Dad and finally, the judge who will decide the merits of the case. Obviously, the attorney’s job is to advance their client’s position and most times isn’t worried so much about the best interest standard.
This leaves the family court judge. These judges handle a great many cases that range from criminal to civil to family and anything else in between. As such, it is unreasonable to think that they are experts in all aspects of the law pertaining to the various disciplines. Also, they have limited knowledge of the family outside of what is presented to them in the courtroom. As a result, this can cause a judge to issue an order that may or may not be in the child’s best interest.
When applied, the term “best interest” should meet the legal definition. If, it does not then it is simply a useless phrase that is coined by the administrators of these proceedings to justify their rulings. Just so we’re all on the same page, let’s take a look at this term and what it implies. Though, each state may vary a bit in its definition, they all mention the main points.
Though, there are too many aspects to list in this article however, I will attempt to highlight some of the more obvious and relevant ones used in determining what constitutes the best interests standard. To see a complete list for your individual state, you can do a search of the term. The following are as listed, not necessarily in order.
*The age of the child; *The relationship of the child with the child’s parents and any other persons who may significantly affect the child’s welfare. *The preference of the child, if old enough to express a meaningful preference. *The stability of any proposed living arrangements for the child. *The motivation of the parties involved and their capacities to give the child love, affection and guidance. *The capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical access. *Methods for assisting parental cooperation and resolving disputes and each parent’s willingness to use those methods. *The existence of domestic abuse between the parents, in the past or currently, and how that abuse affects the child. *The existence of a parent’s conviction for a sex offense or a sexually violent offense. *Whether allocation of some or all parental rights and responsibilities would best support the child’s safety and well-being.
As you can see, there are many different aspects that judges must take into account when deciding the issue of parental responsibilities. None of these should ever be taken for granted lest, the child suffer due to the absence of one of these considerations. However, not all of the above mentioned are equally applied and sometimes, are ignored.
Should one of the parents display an unwillingness to follow these guidelines of best interests, then allocation should be given to the parent who is a willing participant. However, this does not always happen. There are times when the judge in these cases have demonstrated a certain level of hostility and bias towards one of the parents, attorneys or both, Further, their lack of understanding family law to the fullest, ignorance of motivating factors such as, parental alienation is a fairly common occurrence.
It is for these reasons that judges should be required to outline the guidelines, according to their respective state and go through them line by line explaining why each one is in compliance with their orders. I believe, that should a family court judge be required to do this, the very essence of transparency would eliminate any erroneous ruling and the best interest standards would be fully administered and served.
Finally, family court judges must be required to take educational classes to learn about a child’s best interest, as it applies to governing law. Lastly, family law cases must be separate from criminal and civil courts to insure that the judges are not only qualified but, also specialized in these matters. In allowing these things to take place, we may start to see some semblance of “best interest” standard being applied.
By David Shubert
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Noventa años atrás el Tribunal Supremo declaró que…
“el niño no es la mera criatura del Estado; los que le crian y dirigen su destino tienen derecho, asociado con el alto deber, de reconocerlo y preparar [al niño] para obligaciones adicionales.” ~ Pierce v. Society of Sisters, 268 U.S. 510 (1925).
Hace cuarenta años la Corte siguió esta línea de razonamiento al pronunciar que el…
“rol primario de los padres en la educación de sus hijos está ahora establecido más allá de toda disputa como una perdurable tradición americana.” ~ Wisconsin v. Yoder, 406 U.S. 205 (1972)
Sin embargo, en el año 2000 la Corte abrió esta disputo de nuevo. Una ley en el estado de Washington le dió a cualquier persona la capacidad de anular la decisión de padres buenos en el asunto de visitación.
La persona solo tenía que clamar que sería “mejor” para el niño permitir que la persona tenga derechos de visitación.
Hubieron seis opiniones diferentes y ninguna alcanzó cinco votos (una mayoría);
El juez Scalia sostuvo que los padres no tienen derechos de cualquier índole que estén protegidos por la Constitución;
El juez Th omas fue el único de la Corte que indicó claramente que los derechos parentales reciben la misma alta norma jurídica de protección dado a otros derechos fundamentales.
El apoyo por un alto concepto de derechos parentales fue socavado por esta decisión de la Corte.
Hoy numerosas cortes federales rechazan tratar estos derechos como merecedores de protección al nivel de otros derechos fundamentales.
Es el deber del Congreso aclarar la confusión causada por esta decisión astillada.
…and the “liberty” it protects includes more than the absence of physical restraint. (citations omitted). (Due Process Clause “protects individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them’ ”) (quoting *720 Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986)). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. Reno v. Flores, 507 U.S. 292, 301-302, 113 S.Ct. 1439, 1446-1447, 123 L.Ed.2d 1 (1993); Casey, 505 U.S., at 851, 112 S.Ct., at 2806-2807. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the rights to… to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); [and] to direct the education and upbringing of one’s children, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925);…
Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, *721 “deeply rooted in this Nation’s history and tradition,” id., at 503, 97 S.Ct., at 1938 (plurality opinion); Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) (“so rooted in the traditions and conscience of our people as to be ranked as fundamental”), and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed,”(citations omitted).
Ask any civil trial lawyer in Florida how many days one has to move for rehearing of an order simply granting a motion for summary judgment, and the odds are good the lawyer will respond, “Ten days.” Pursue the matter further with the lawyer, and ask where this 10-day period is set forth in the Florida Rules of Civil Procedure, and the lawyer will invariably point to Rule 1.530, which by its title governs motions for new trial and rehearing.
Rule 1.530, however, provides that a motion for rehearing must be served no later than 10 days after “the date of filing of the judgment in a non-jury action.”1 An order simply granting a motion for summary judgment is not a final judgment; rather, it is a nonfinal order.2 So, too, are myriad other orders entered by a trial court before final judgment. Attorneys in Florida nevertheless regularly file “motions for rehearing” directed to such nonfinal orders. Often they believe they must do so within 10 days. Sometimes they also believe that such a motion tolls the time to seek appellate review of the nonfinal order.
Motions for rehearing of nonfinal orders are not authorized by the Florida Rules of Civil Procedure.3 Noting that motions for rehearing are exclusively governed by Rule 1.530, the Florida Supreme Court has observed that “[u]nless the filing of a motion for rehearing to an interlocutory order is authorized by a rule of court promulgated by the rule-making authority, then its filing is improper.”4 Indeed, it is not unheard of for an attorney to file a motion for “rehearing” of a nonfinal order and subsequently be confronted with a response from the other side echoing the court’s language and declaring that such motions are unauthorized and improper.
Yet while the rules of civil procedure themselves do not authorize motions for rehearing directed to nonfinal orders, a trial court does have the inherent authority to reconsider and alter or retract such orders prior to the entry of final judgment.5 Rather than constituting a motion for rehearing under Rule 1.530, a motion directed to a nonfinal order is actually a “motion for reconsideration” based upon this inherent and discretionary authority of the trial court.6 Despite this distinct and well-established basis for reconsideration of interlocutory orders, there still exists confusion among many practitioners about the differences between reconsideration and rehearing.
Much of the confusion stems from the fact that parties and the courts frequently use the terms interchangeably, at least in the context of motions directed at nonfinal orders. This is perhaps understandable given the lack of any rule-based authority for reconsideration of nonfinal orders; the articulation of the trial court’s inherent authority has of necessity come through the development of the common law. An attorney will, therefore, only be aware of the basis for reconsideration — as well as its effect on any subsequent appeal — from the case law.
The type of restraining order referred to here is the civil protection order used in cases where domestic abuse has been alleged. This court order requires one individual to refrain from contacting or being in a specific, distance-defined proximity to another.
The overall goal in the awarding of this restraining order is the prevention of the subject (the person being ordered away) from perpetrating any act of violence or damaging harassment against the holder (the person being protected.) The vehicle of prevention is the legal establishment of a mandated buffer zone of physical distance and prohibition of contact between the subject and the holder. The intended effect of that vehicle is to provide the holder with a means to prevent contact with the subject, with that prevention being achieved by legal mandate and threat of legal penalties for violation. If the order is violated by the subject, the holder has the power to enforce that mandate by calling for assistance from law enforcement.
The logic of the restraining order is based on a series of concepts; that damaging harassment or a violent attack cannot be perpetrated by the subject if he is not in contact with the holder, that in most cases legal mandate will compel where ethics and morals do not, that in many cases threat of penalties will compel where legal mandate is not enough, and in the few remaining, application of those penalties will enforce where the subject cannot be simply compelled.
By virtue of the purpose for which it is granted, a restraining order is an official accusation, made against the subject, of malicious action or intent. It is the legal statement that the court recognizes the subject as a damaging harassing nuisance, or physical threat to the holder of the order due to evidence that the subject either has previously exhibited this behavior toward the holder, or has been conclusively shown to have intent do so in the future. If there is not such a confirmed threat, there is nothing to prevent, and no point in obtaining or granting a restraining order. A restraining order is not merited when the individual named is not a threat to the person filing the request.
Restraining order abuse is the act of requesting an unmerited restraining order against an individual, and/or the misuse of that order for any sort harassment, malicious mischief against the subject, or personal gain for the holder, rather than its intended purpose of protection. For a more complete description and discussion on the topic of restraining orders, check out Talking back to restraining orders.
An individual awarded a restraining order in an alleged domestic abuse case has significant capacity to abuse the state’s protection. The holder can manipulate circumstances, fudge facts, and even outright lie to achieve the arrest of the subject. Any time the holder of the order alleges to law enforcement that the subject has violated any of the conditions of the order (including fleeting proximity at the maximum allowed distance) the police are required to arrest the subject for the alleged violation regardless of existence, level, or lack of evidence offered by the involved parties.
How Are Restraining Orders Abused by Women in Domestic Conflicts?
Abuse of the restraining order may take one or more of few different paths.
Just in Case Obtaining an unmerited restraining order is easy for a woman. At this time, the system is designed to favor the decision to err on the side of the female, on the basis that it is better to hand out multiple unmerited temporary restraining orders and let the courts sort them out than to risk leaving one woman unprotected from her abuser. When break-ups are less than amicable, women are often encouraged by friends and family to file, “just in case,” under the assumption that all men are potential domestic abusers.
Failure of a man to comply with all of his ex’s wishes during a break-up is interpreted by her feminist friends and family as an indication that he is abusing, or intends to abuse her. Communicating or demonstrating the expectation that the estranged couple will view each other as a fellow human beings with equal rights and equal responsibilities and treat each other with any level of fairness and consideration will be viewed as failure to comply.
Upon ending a relationship, the restraining order abuser will be encouraged to file a request for a restraining order against her ex. When she does this, an “emergency” temporary restraining order will be put into place pending the hearing to determine the validity of the request. The holder does not have to offer any credible evidence at this time. All she has to do is state reasons why she feels harassed or threatened, the veracity and/or validity of which will rarely be questioned. She may do this on her own, but in many instances this is done with the assistance of a domestic violence advocate.
Having an advocate is an advantage, as it lends credibility to the request regardless of any other evidence. Even claims that would have been questioned in the absence of an advocate will be accepted if an advocate is present. The clerk of courts will assume that the woman is an abuse victim, because she is making use of abuse victim’s services.
Once the temporary order has been granted, the status of the subject in the eyes of the legal system and the view of law enforcement is changed from “some guy we never heard of” to “perpetrator.” He is guilty of abuse until such time as his name is completely cleared, and even then if he is accused again, this incident will still be seen as evidence of a pattern of behavior.
False Allegations Once a restraining order is in place, the holder can have the subject arrested at any time, regardless of evidence, by calling law enforcement and alleging any type of contact. The holder does not have to provide any evidence of the subject’s guilt. In some jurisdictions, it does not even matter if the subject can prove his innocence. Due to the legal environment created by the activity of women-centered domestic abuse shelters and feminist organizations, the initial outcome of this type of complaint is largely predetermined.
We’re just inviting you to take a timeout into the rhythmic ambiance of our breakfast, brunch and/or coffee selections. We are happy whenever you stop by.
Why is information that would impact judicial elections and provide insight into the performance of judges being withheld from the public — including instances of actual misconduct that are being privately disciplined by secret letters?
Family Court Reform 