The Courts Role

With respect to the Family and Juvenile courts, often there is a dilemma on what they can and cannot do in preventing further abuse from occurring. According to text books, juvenile courts are limited in their capacity by statutes. That is they have specific, but limited powers.

Family courts have a broader jurisdiction with respect to law. In addition to child abuse, family courts also handles divorce, child custody, intra-family assaults, and juvenile traffic offenses. While they have more jurisdiction, they still operate under statutes which they are authorized.

Why use the courts for Child Abuse prevention and deterrence?
There are several ways the courts can assist in preventing and deterring child abuse. First and foremost is the way in which the courts prioritize their duties.

1. protect the child from further injury.
2. provide fair and impartial hearing on the allegations in the petition.
3. consider recommendations from CPS.
4. Implement a treatment/reunification plan for the child and/or parents when appropriate.
5. Protect the constitutional rights of both the child and the parents.

***The objective of the court is not to punish but, rather, to work with CPS to effect a treatment plan designed to protect the child.***

***Courts attempt to improve the family situation so that the family UNIT is preserved, unless the child has suffered serious harm and would continue to be endangered if remaining with family.***

The court has two ways to be involved.

• civil -
• divorce hearings in which a parent claims abuse by the non-custodial parent.
• cases in which evidence is lacking
• criminal -
• homicides
• assaults
• criminal child abuse and neglect
• ALL are followed through by state statutes
• they may be held in juvenile or family court

Child abuse and neglect cases usually involve bifurcated hearings.  Before any action can take place, it first must be determined that a child has, in fact, been abused or neglected and thus qualifies to be a "ward" or "dependent" of the court for care and protection. If the parties of the court are in agreement, the court may adjudicate and a trial may not be warranted. However, should a parent, child or court not enter into the agreed upon stipulation, the case will enter into trial. the case will then be heard by a judge in most states, however, some rely on a jury.

Once the court determines that child abuse has occurred, the second phase or dispositional hearing is held. This hearing is designed to determine the appropriate intervention and to initiate a treatment plan. A variety of dispositions for the child and/or parents may be conducted. Generally, if the parent fails to comply with the court's orders, the court cannon punish the parent with fines or imprisonment, but is restricted to conditioning the child's return to the home on the parents obeying the courts order.

In limited instances, when a change in custody isn't an option, the judge may hold the parents in  contempt and jail them until the parent complies.

Common goals during the dispositional hearing include:

1. Returning the child to the home with or without supervision
2. Giving physical custody to a relative
3. Transferring custody to an agency
4. Placing the child in foster care
5. Ordering reunification services
6. In severe cases, terminating parental rights

Child abuse and neglect in criminal cases is the prosecution of individuals accused of crimes perpetrated against children. These cases have increased in recent decades, particularly in areas of child abuse. This increase is in part, due to advancements in IDENTIFYING battered and sexually abused children, and to the relaxation of evidentiary rules relating to victim competency, in court testimony and certain out of court statements.

In most jurisdictions, child abuse or child neglect is viewed as violating the Prohibitions of one or more of the following statutory crimes:

• murder
• homicide
• manslaughter
• felonious restraint
• false imprisonment
• assault
• battery
• rape
• statutory rape
• deviant sexual assault
• sexual assault
• incest
• indecent exposure
• child endangerment
• reckless endangerment or
• corruption of minors

However, jurisdictions do have specific crimes of child abuse and child neglect. Depending on the alleged conduct and resulting harm to the victim, a criminal prosecution may be sought for one or more of these offenses. If proof of one or more crimes overlap, separate convictions may be possible.

The burden of proof lies with the prosecution. Each element, fact and piece of evidence must prove "beyond a reasonable doubt" the party is guilty. That is, "an abiding conviction to a moral certainty, of the truth of the charge."

Constitutional privileges protect all party's and ensure civil liberties.
The confrontation clause is found int he 6th amendment to the US Constitution. "The accused shall have the right... to be confronted with witnesses against him." This is fulfilled during cross examination by the defense of the witness for the prosecution.

These rights are further protected under the 14th amendment, which prohibits the state from depriving an individual a liberty with out due process of law. This becomes an issue when the accuser is a minor. A child is to be protected by the judge and the attorney and/or the guardian ad litem, and to testify face to face with the suspect could be devastating to the victim. Unlike the situation that may occur in juvenile court or family court, where a victim may testify on camera, during CRIMINAL proceedings, the suspect has a right to confront their accuser.

In Coy v. Iowa (1988), the Supreme Court reversed the conviction of a defendant when a state law permitted a trial judge to order the placement of a large screen between the defendant and 2 - 13 year old girls who testified he had sexually assaulted them. The court noted that the screen improperly prevented the witness from seeing the witnesses and only allowed him to dimly perceive them. Justice O'Connor stated  "the statute presumed trauma would occur any time a young victim testified."

In Maryland v. Craig (1990), the Supreme Court upheld conviction when the trial court provided for a one way television procedure if the trial judge decided face to face testimony "will result in the child suffering serious emotional distress -- such that a child cannot reasonably communicate."  The court concluded, the growing body of literature documenting psychological trauma. This still must be decided on a case by case basis.

For many, their ability to ascertain the difference in courtroom procedure, the sooner they will understand our Country's laws -- which are ever changing... One can't help but wonder, is it possible we can hang our selves with the proverbial rope of rules?

I'll let you be the judge.
Warmest,
LaVonda