“前科犯罪定罪关联模式”司法解释问题研究

前科犯罪定罪关联模式的司法解释在与《刑法》第65条累犯的规定同时适用时,违反了禁止重复评价原则。从长远来看,要摈弃或改进前科犯罪定罪关联模式的司法解释,确保不违背禁止重复评价原则。刑法解释的刑事政策化需要辅以外部监督制约制度,立法机关应对司法机关制定的司法解释究竟是否符合立法的目的、原意、原则,是否是对法律具体应用的解释进行必要的审核确认,以确保司法功利主义的冲动被限制在罪刑法定主义的笼子里。在刑法的立场选择方面,应坚持行为刑法,坚守刑法的安定性与人权保障机能,适当吸收行为人刑法与人格刑法的因素,以实现刑法效能的最大化。     

The red herring of adolescent mental health

An increase in adolescent distress and mental health symptoms has been clearly documented since the COVID-19 pandemic, as has increased exposure to adverse childhood experiences. Layer on top of these stressors being a youth of divorcing or separating high conflict families, and adolescent symptomatology can suddenly become a flashpoint for parental attention, division and conflict. Approaching cases using an ecological and family systems framework is necessary for accurate conceptualization and assessment of best interests in the context of child custody evaluations. Doing so ensures that adolescent mental health does not become a red herring in high conflict cases, leading to undue focus on the adolescent's mental health without considering other salient factors in the case, such as the broader parent conflict. Programs offered at the Center of Excellence for Children, Families & the Law at William James College designed to improve the lives of youth by addressing parental conflict are described.     

To recommend or not recommend: That is still the question

The boundaries around what parenting plan evaluators should and should not say in their reports to Courts has been debated in both mental health and legal circles for decades. The controversy about whether parenting plan evaluators should make specific recommendations to Courts regarding access plans and decision-making rights revolves around varied views of the limits of mental health professionals' knowledge about such matters, whether they are socio-moral or psychological in nature, and the benefits to children and society of facilitating case-resolution. In the conversation presented below a seasoned family law attorney and a psychologist who is a frequent critic of the practice of making specific recommendations debate this area of controversy.     

Navigating adolescent depression and anxiety in the context of parenting plan evaluations

This article touches upon theories accounting for the rise in adolescent anxiety and depression and how the prevalence of adolescent anxiety and depression affects how we navigate parenting plan evaluations. This article also discusses the importance of screening youth for depressive and anxious symptoms and assessing family, parental, and youth risk and protective factors related to adolescent depression and anxiety. This article also highlights the importance of assessing for mediating factors that increase the risk of anxiety and depression in youth in the context of parental separation, such as interparental conflict, financial difficulties, and limited contact with one parent. This article also identifies various methods of assessing depression and anxiety, including the adolescent interview, observations during the interview, and self-report measures. Additionally, this article discusses potential interventions that address mediators of the impact of divorce, such as parenting problems, family conflict, or the parent–child relationship.     

Identifying and managing evaluator biases in parenting plan evaluations

Psychologists and other professionals are often appointed by the courts to assist families in resolving post-separation disputes and to assist judges in making orders on behalf of the best interests of the child(ren). Although these evaluations provide valuable information to the court, they require assessing areas of human behavior that are imprecisely defined or lacking professional consensus. As parents separate, their disputes may become more challenging, and they may act in uncharacteristic and unpredictable ways. Families that cannot solve their own challenges outside of court often show high levels of conflict and/or have issues that are extremely complex, including domestic violence allegations, resist-refuse family dynamics, and relocation requests. Evaluators and judges, being human, tend to oversimplify complex issues due to the limitations of the human brain. Evaluators are subject to cognitive biases that result from the use of mental heuristics, leading to shortcuts and errors in their reasoning and judgment. Other biases, such as implicit and explicit cultural biases, often influence evaluators' reasoning and conclusions. This article explores various biases that affect and potentially diminish the quality of an evaluator's work. We conclude by addressing “de-biasing” strategies that can reduce, but not negate, the risks associated with such biases.     

The admissibility and persuasiveness of expert evidence

Parenting plan evaluators are expert witnesses who offer their opinion. Courts in common law jurisdictions generally do not accept evidence of an opinion as it is not considered to be reliable evidence from which to establish a fact. An exception to that general principle is expert opinion evidence. In short, an opinion from a person with specialized knowledge or expertise about the area in which they are an expert may be sufficiently reliable to form an evidentiary basis from which to make a finding of fact, provided the opinion meets certain criteria. These criteria will be discussed in this article, as well as what is relevant, reliable and persuasive evidence. The relevant legal principles will be examined in an historical and contemporary, theoretical and practical context. The authors reflect on their considerable experience as consumers of expert evidence and apply this to parenting plan evaluations, as well as considering future challenges in the field.