Helping Families by Maintaining a Strong Well‐Funded Family Court that Encourages Consensual Peacemaking: A Judicial Perspective

This article explores alternatives for the court process that promote a child‐centered approach to resolution of family law issues including a summary of procedures used in Los Angeles County to assist families. The article also explores alternatives to the traditional custody litigation model.

Key Points for the Family Court Community:
• Evaluations and trials are not the only tools available in family law.
• Structured court ordered counseling can provide a meaningful intervention and reduce family conflict.
• Alternative forms of mediation can help families address the “need to be heard” and retain personal autonomy in decision making.
• The court system should help educate families about how to resolve conflict in a safe, effective, and meaningful way.

     

论羁押审查方式

羁押是法院作出生效有罪判决之前剥夺人身自由最严重的措施,关涉犯罪嫌疑人、被告人的基本权利,且与无罪推定原则存在高度紧张关系。因此,世界各国和地区大都对羁押采取严格的程序控制。羁押审查方式是羁押审查程序的基本构成要素。域外一般都采取听审或者讯问的方式进行羁押审查。我国的羁押审查采取何种形式,法律没有明确规定。最高人民检察院要求检察机关审查批准逮捕应当讯问嫌疑人,并听取辩护人的意见,但缺少诉讼化的程序保障,实践中难以切实维护犯罪嫌疑人的合法权益,保证羁押决定的程序公正。因此,应当借鉴域外的立法经验,结合我国的实际情况,从立法上明确我国的羁押审查应采取不公开的听审方式,并建立审查机关、申请机关和嫌疑人及其辩护人三方参与的羁押审查程序。     

PARENT EDUCATION PROGRAMS IN FAMILY COURTS: BALANCING AUTONOMY AND STATE INTERVENTION

This work considers how court‐connected parent education programs can assist parents to access dispute resolution processes that best suit their families’ needs, in a manner involving appropriately curtailed levels of state interference with parental autonomy. After reviewing traditionally accepted limits on state interference with family functioning, the increased concern for children's emotional well‐being, and data relating to one parent education program, the author concludes that providing mandatory “basic level” informational programs to all separating parents seeking access to the family law regime is a warranted level of state intervention. “Skills‐building” programs aimed at achieving demonstrably changed parental practices should be available on a voluntary attendance basis.     

Family Court Enhancement Project: Improving Access to Justice

In 2013, Minnesota's Fourth Judicial District was one of four courts in the country selected by the U.S. Department of Justice, Office on Violence Against Women to receive a Family Court Enhancement Project (FCEP) grant, a multiyear demonstration initiative designed to build the capacity of court systems and partner stakeholders to improve child custody decision making in cases involving domestic violence. The FCEP enabled the project sites to explore, implement, and assess new and innovative court and noncourt procedures and practices. This article is an exploration of the outcomes of this project.     

Using Rule 11 Sanctions to Punish Accusers Who Make False Allegations of Child Sexual Abuse in Custody and Divorce Cases

False claims of child sexual abuse negatively affect the accused parent and the child. Such false claims can be used to sway custody determinations and cause frivolous applications to the court. This Note proposes that courts impose sanctions, comparable to those set forth in Rule 11 of the Federal Rules of Civil Procedure, on litigants who make false claims of child sexual abuse.     

Bias in the Family: Race,Ethnicity, and Culture in Custody Disputes

This essay examines the role of racial, ethnic, and cultural bias in custody cases. It analyzes cases where the court explicitly considered the parents’ racial, ethnic, or cultural background and cases where the court did not acknowledge these factors but where it is clear from the court's opinion that biases influenced its decision. It then briefly describes the literature on implicit bias to demonstrate how biases may influence the assessments of custody evaluators, lawyers, and judges despite best efforts to make fair and impartial decisions. Drawing on studies suggesting that individuals can reduce their implicit biases and their effects on decision making, the essay explores individual strategies and institutional reforms to address bias in custody disputes.     

Entrenched Postseparation Parenting Disputes: The Role of Interparental Hatred?

There is an emerging view that the term “high conflict” oversimplifies the nature of destructive family dynamics, especially with respect to the small but resource‐intensive group of separated parents who remain deeply enmeshed in legal battles and parental acrimony. In this Article we propose that interparental hatred may be a key relationship dynamic driving the behavior of some in this group. We suggest a distinction between two types of interparental hatred: one that arises from responses to separation‐related stresses (reactive hatred) and the other (entrenched hatred) that is indicative of more embedded, dysfunctional interpersonal dynamics and/or personality structures. While reactive hatred is typically time limited and amenable to professional intervention, entrenched hatred tends to overwhelm rationally informed attempts to mediate, negotiate, or even adhere to orders regarding suitable parenting arrangements. We contend that while effective intervention in these cases requires all the generic skills and responses necessary for dealing with highly conflicted disputes, it is also important to name and appropriately challenge interparental hatred when it is detected.     

The benefit and cost of prison in the UK. The results of a model of lifetime re-offending

With prisons in the UK reaching full capacity, and with similar trends in other European countries and the USA, there is much political debate about the efficacy of prison and community sentences. This paper aims to inform this debate by testing the hypothesis that prisons are an effective and efficient way of reducing re-offending. A rapid review of effectiveness studies was performed to determine the relative impact of prison and community sentences on re-offending. An economic analysis was undertaken to transform the estimates of effect into estimates of the economic efficiency of alternative sentencing options in the context of the UK. When compared with standard prison sentences, a number of community-based interventions and enhancements of standard prison sentences were found to save money, both for the public sector and for society more broadly. Diverting adult offenders from standard prison sentences to alternative interventions saves the UK public sector between ￡19,000 and ￡88,000 per offender. When victim costs are considered, diverting offenders from standard prison sentences saves UK society between ￡17,500 and ￡203,000 per offender. It was concluded that standard prison sentences are not an economically efficient means for reducing re-offending.

认罪认罚从宽制度中的协议破裂与程序反转研究

认罪认罚从宽制度的一个显著特征是存在一纸认罪认罚具结书。在法律属性上,该具结书不宜简单理解为保证书或者证明材料,应当视为一种刑事协议。它有破裂的多种可能性:被追诉人的反悔、检察官的变更起诉或者法官的不予采纳。协议破裂是认罪认罚从宽制度中典型的"肥尾风险",发生概率很小但影响很大,处理不当将会引发难以估量的反噬风险。未来的制度完善,应以司法公正、司法公信力与正当预期利益的平衡为原则,构建协议破裂与程序反转的正当规则。被追诉人的反悔权应当有所限制,分为正当反悔与不正当反悔,并适用不同的反转程序;检察官应遵循禁止违反承诺原则;法官不采纳具结书应遵循"事先告知、听取意见与可撤回"的正当程序。唯此,认罪认罚从宽制度才不至于让被追诉人误读为获取有罪供述、打击犯罪的一种精巧安排,该制度才能走得更远。