Family Law

Sad Reality of Post-Divorce Power Struggles between Co-Parents 

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Author: Leslie Ann Ferderigos, JD

It wasn’t long ago that Florida courts used the primary care-giver standard to determine who would be awarded custody of the children. I remember speaking to numerous friends growing up where fathers took a back seat to the mother on many issues because the father was viewed by society as holding less parental rights. Some fathers gave up and eventually walked out of a child’s life because the mother made it merely impossible to have a relationship with the child. Was this outcome the result of gender bias and words like “custody”, that ultimately lead to the power struggle between divorced parents?

If our government is built on the concepts of separation of powers to avoid man’s innate desire to abuse power, then why would family courts believe parents would be any different.

Presently, family law has made efforts to equalize the power between parents. Courts have abandoned the term custody, replacing it with parental responsibility and time-sharing. The primary caregiver standard has been replaced with the child’s best interest standard. The court now favors awarding shared parental responsibility which grants equal decision-making power on important decisions in a child’s life.

Have these changes been enough? The Law has evolved, but without societal awareness and judges holding parties accountable, it continues to be a struggle for many secondary residential parents who try to exercise their rights. Just last year, I spoke to a father with shared parental responsibility, who discovered his child was getting counseling and no effort was ever made to obtain his consent prior to starting the sessions. He also learned that same year that his child was withdrawn and transferred to another school without ever notifying him. When he spoke to a local attorney to find out how to prevent these types of unilateral decisions, he was told that even if the law is on his side there is judges discretion as to how this will be ruled on and most judges don’t want to waste time on issues that are not detrimental to the child.

Although the law has evolved to equalize power between parties, society needs to catch up and judges need to hold parties accountable.

 

AUTHOR: Leslie Ann Ferderigos, JD

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criminal law

INSANITY DEFENSE: LOCKED UP WITHOUT “PROOF BEYOND REASONABLE DOUBT” with no release date– a true deprivation of liberty

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Author: Leslie Ann Ferderigos J.D.

INSANITY DEFENSE? REALLY? Lawyers, is the Insanity defense, really the best option for your client? If a defendant’s insanity defense relieves them from conviction, what happens next? Did you really get liberty for your client? Post-acquittal commitment to mental institutions can be a far greater deprivation of liberty then serving a fixed term sentence. The confinement of an insanity acquitee in a mental hospital, based soley on the trial court’s finding of insanity by a preponderance of the evidence, may law until he has regained sanity or I no longer dangerous. Thus, the defendant has now been able to be locked up indefinitely without the protection of a “proof beyond reasonable doubt standard”. Additionally, the defendant no longer gets to make the argument that his Due Process rights have been violated. This type of confinement is not considered to deny due process even if the result is confinement for a period longer than the maximum period of incarceration carried by his offense. Nor is the insanity acquitee entitled, at the end of the statutory maximum incarceration period, to a civil commitment hearing at which proof of his insanity would have to be established by clear and convincing evidence. [Jones v. United States, 463 U.S. 354 (1983)

STATE SAYS: YES,WE CAN LOCK YOU UP, HERE IS WHY! Underlying the insanity defense is the assumption that those who commit criminal acts while insane should not be held criminally responsible for their behavior. To the extent that mental impairment is, in some sense, “responsible” for an individual’s proscribed behavior, treatment, and not punishment, is acknowledged to be society’s appropriate response. Guilty, but mentally ill convicts have a “Right to Treat” under the Constitution. A long line of cases has held that the fourteenth amendment mandates treatment of civilly committed mental patients, sexual psychopaths and juvenile offenders, although the Supreme Court has not expressly confirmed their reasoning.[1] Thus, the idea behind taking someone’s liberty away lies on civil commitment as treatment rather then punishment.

In Donaldson v. O’Connor[2], the Fifth Circuit held that civil commitment of persons found mentally ill and dangerous involves a “massive curtailment of liberty,” which triggers strict due process analysis. The court concluded that civil commitment satisfies due process only if treatment accompanies confinement.[3] It identified two important state interests underlying civil commitment: protection of society and rehabilitation of the mentally ill. The court concluded that the state may legitimately confine an individual pursuant to itsparenspatriae and police powers if it provides treatment. “To deprive any citizen of his or her liberty upon the altruistic theory that the confinement is for humane therapeutic reasons and then fail to provide adequate treatment violates the very fundamentals of due process.”[4]‘ A majority of the circuits have relied upon or extended the Donaldson holding.’

Lawyers, make sure your client knows that getting off on the insanity defense, doesn’t necessarily buy your client freedom. In fact, your client lose their liberty forever.

This blog is meant to be a short writing to introduce an issue within criminal law. I encourage you to expand more into this area for a thorough understanding.

 

 

 

 

 

 

 

 

 

 

[1] http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6369&context=jclc

[2] 493 F.2d 507 (5th Cir. 1974), afdon other grounds, 422 U.S. 563 (1975).

[3] Id. at 520 (quoting Humphrey v. Cady, 405 U.S. 504, 509 (1972) (civil confinement involves “massive curtailment of liberty”)); see also Addington v. Texas, 441 U.S. 418 (1979) (massive curtailment of liberty implicates due process).

[4] Donaldson, 493 F.2d at 520.