Linda Marie Sacks’ Child Custody Case is Perfect for the US Supreme Court to Make a Historical Ruling

Linda Marie Sacks, a brave protective mother from Florida filed a Petition for Writ of Certiorari on May 6, 2011 at 12 noon at the US Supreme Court in Washington, D.C. in the Sacks v. Sacks case. Click here to read the completed Cert. This Historic Us Supreme Court Case was filed on Mothers Day Weekend, on behalf of Battered Mothers nationally, mothers across the United States who lost custody of their children to the Family Court crisis. On Mothers Day 2011, CALA Participated in a protest on Capital Hill alongside mothers who lost custody of their children in Family Courts across America.

This landmark case was hand delivered by Pro Se Cert Petitioner Linda Marie Sacks, the Mother in the case, exposing a national crisis all over the US. Her daughters said in April 2007, “Mommy, fight for us and do something every day to get us back and don’t ever stop”.

How did this case arrive the U.S. Supreme Court – History of the now famous custody case

Because Linda Marie’s Appeal raised Federal Constitutional Issues in the brief, this appeal was perfect for a Cert Petition with constitutional violations, now in the Jurisdiction of the US Supreme Court.  Additionally, this appeal was denied by the Appellate Court as PCA Per Curiam Affirmed – a denial without an opinion, and without citing any case law.  Given the rules of the State, the Highest Court, Supreme Court, will not take a case if it was denied as PCA. In its legal recommendations of PCA Cases, it is suggested that only the US Supreme Court will take a PCA case. With this gift, granted to the mother on her birthday, no less, the case was filed on Mothers Day weekend, in the United States Supreme Court.

Technical Explanation:

A Writ of Certiorari is an order from an Appellate Court to a lower court (Family Court) to send the records for a specified case under review. After the Family Court in Florida issued a final order of custody on 8/11/2009 to the father, with supervised visitations to the mother, Linda Marie Sacks filed an appeal to the Appellate Division, a higher court in Florida.

The Appellate division ruled that (1) after the second retrial of custody of children the trial court failed to establish by clear and convincing evidence that mother was a detriment to her children or that should continue to be supervised. (2) Expressed either on the record or in the final judgment that an award of primary residential to one parent is in the “best interests of the child”, sufficient to sustain the award as long as there is substantial competent evidence in the record that permits the court to properly evaluate the relevant facts”. (3) The Trial Court abused its discretion of Due Process to the mother, with respect to a child custody determination only when a reasonable person would take a view adopted by the trial court.

The December 21, 2010 Reply Brief of Appellant, Linda Marie Sacks States: All of the reports of the supervised visitation center support clear and convincing evidence of a healthy and loving bond between the mother and her daughters. The mother has complied with the order of the court and the terms of the visitation center. Evidence that the mother was a detriment or should be supervised, was not before the court and there is no evidence to support the ruling of continued supervised visitations.  

A “Protective Parent”, Mothers who make a good faith allegation of abuse, with documented evidence, in an effort to protect her children, she should not be deprived of physical custody of her children, or have contact supervised, indefinitely without a case plan or reunification plan from the trial court. It is the public policy in the Florida’s statute 61.13 (1) that each minor child has frequent and continuing contact with both parents to share the rights and responsibilities, the joys of child rearing. A court’s decision that prevents a mother to care and nurture her children violates the constitutional rights, which are protected by the United States. This case is of national importance, after a district court’s decision affected the constitutional rights of every Florida district parent and their children, in this decision.

The Fifth District Court of Appeals in August 2008 reversed the Trial Court’s decision on custody, and sent it back to the lower court for a new trial. The lower court, Family Court judge refused to give this mother back her children. After the retrial, in April of 2009, the judge came to the same conclusion, again, for no reason.

The Mother then appealed again, Pro Se in 2009. On December 7, 2010, on the Mother’s Birthday, they denied it with a PCA Per Curiam Affirmed – a denial without an opinion, and without citing any case law. The mother then filed a motion for rehearing En Banc, asking the entire Appellate court to look at this decision again, for the scandalous and unconstitutional denial. Additional motions filed were, a motion on recertification in the question, and a motion for a written opinion and clarification, asking the Appellate Court to please give a written opinion on how they came to this conclusion.

Because the Appeal raised Federal Constitutional Issues, this appeal was perfect for a Cert Petition with constitutional violations, now in the Jurisdiction of the US Supreme Court.

On Feb of 2011, they denied it, again. Simply, DENIED. When they did that, there was an assumption to take the case to Supreme Court, to invoke discretionary jurisdiction to the Florida Supreme Court.  However, the Florida Supreme Court rules of jurisdiction say, “If you get a PCA from the Appellate division, you cannot come to the Florida Supreme Court. We cannot take any cases without a written opinion from the Appellate Court. If you bring your case without a written opinion, you will not only waste your time and money, but we will deny your case with a form letter. YOUR ONLY REMEDY IS TO TAKE THIS CASE TO THE UNITED STATES SUPREME COURT. Coming to the Supreme Court will be wasted time, and too late to file your Cert petition on the U.S. Supreme Court”.

With this gift-of-law as guidance, Linda Marie began laboriously constructing her Cert petition for the United States Supreme Court.  Because the case was denied in the Appeals Courts in Florida En Banc, the petitioner had legally exhausted the State’s jurisdiction, allowing the case to be filed in the US Supreme Court.

When the US Supreme Court issues a writ of certiorari, it means they have granted a party’s petition for writ of certiorari (request) to consider a case under the Court’s appellate jurisdiction. 

Why this case is Historical for all future Custody Decision in Lower Family Courts:

The Sacks v. Sacks case is the perfect opportunity for the US Supreme Court to thoroughly explore and address the issue of Battered Mothers and child abuse, and their documented evidence of “protective parents” losing custody and the failure of family courts and Child Protective Services to thoroughly investigate and handle Domestic Violence, child sexual/and or child physical abuse cases properly, therefore resulting in a verdict, contrary to the “bests interests of the child(ren)”.

According to one conservative estimate, more than 58, 000 children a year are court ordered by family courts into unsupervised visitation contact with physically or sexually abusive parents following a divorce in the U.S. The fact that this type of scandal is taking place in the American justice system defies the imagination. Not since the Roman Catholic Church pedophile scandal has the US seen this type of institutional harm inflicted on innocent children.” (www.centerforjudicalexcelllence.org)

In the U.S. Supreme Court, few petitions are granted certiorari but the chances increase when multiple Amicus Briefs are filed with the petition. If your organization can help with gathering Amicus Briefs for this case that would be greatly appreciated. The questions to be presented are:  

1. If a parent makes a good faith allegation of abuse, with documented evidence, in an effort to protect her children, should that parent be deprived of physical custody of her children, or have their contact supervised, indefinitely without a case plan, or reunification plan provided by the trial court?

2. Does a state court violate the First, Fifth and Fourteenth Amendments when it deprives a parent of physical custody, and limits that parents contact to Supervised Visitation with her children, for taking the reasonable action based upon a belief, supported by facts that her children need protection from abuse?

3. Does a state court’s custody decision that deprives a parent of access to her children indefinitely, unless supervised, without a finding of unfitness by clear and convincing evidence, which effectively terminates a party’s parental rights, violate the Fifth and Fourteen Amendments?

It is difficult to get a case to this point in our legal system. All other avenues must be exhausted which requires years of hearings and a substantial financial burden. This is a chance to tell our highest court that parents should not be punished for trying to protect their children.

Below is a legal summary of the case concerning the constitutional issues being appealed.

1) A finding that the mother’s due process rights were violated and the custody was reversed

In May 2007, Mother, Linda Marie Sacks, appealed the decision of Judge Shawn L. Briese. The Fifth District Court of Appeals on 8/08 (Case 5D07-1682) in Daytona Beach, Florida issued a written opinion and REVERSED AND REMANDED the decision of custody of R.S. and S.S, back to the lower court. In the opinion it noted that Mothers due process rights were violated, and the hearing to determine custody should never have taken place, and when it did it violated Mothers constitutional rights. 2007 Sacks v. Sacks 991 So. 2d 922 (Fla. 5th DCA 2008)

2) The Fifth District denied a request to prohibit Judge Briese from again being the presiding judge

Immediately after the 8/ 08 REVERSAL AND REMAND in 1st appeal, a Writ of Prohibition,(Case 5D08-3668) was filed in the Fifth District Court of Appeals. The writ requested that Judge Shawn L. Briese be prohibited from being allowed to be the presiding judge on this case any further. The writ showed documented evidence of judicial misconduct, violations of judicial canon #3, violations of Fl Ad Code 2.330 and ex parte communications by the judge and the 2 attorneys of record for the former Husband. On 11/13/08 it was denied, without a written opinion or citation……just DENIED and thus it sent this Mother right back to Judge Shawn L. Briese for the retrial., the same Judge who violated her due process rights, as he refused to be disqualified, and he demanded to have her case back on his docket.

3) Judge Briese again violated the mother’s due process rights

In the Retrial of Custody in April 2009, Father’s two attorney firms did not present a case but simply rested when their turn to present arrived. Judge Briese issued his oral ruling in June 2009 and gave Father, Sole physical custody and continued to place Mother on Supervised visitation because she did a TV interview with Chan 9 News in Albany New York, at the Battered Mothers Custody Conference, and didn’t buy greeting card for the father while on Supervised visitation…so refused to allow Mother any contact with her children UNLESS supervised at the local visitation center. Judge Briese, once again, ignored, suppressed and dismissed documented evidence of abuse to the minor children by the father…..and kept Mother on Supervised Visitation.

Mother filed a pro se appeal and in her Amended Brief of Appellant p.48 it says:

“Due process requires that the ruling from the trial court support its conclusions by clear and convincing evidence. Trial court “abuses its discretion” with respect to a child custody determination only when a reasonable person would take the view adopted by the trial court. Would any reasonable person agree with the trial court’s ruling that the primary custody of the minor children R.S. and S.S. should be with the father and the mother should only have supervised visitation? The court is bound to by law to apply the test that if no reasonable person could differ as to the appropriateness of the trial court’s ruling then the ruling must not stand. As a reminder, this court already found the mother’s due process rights were violated when her children were taken away in April of 2007 Sacks v. Sacks 991 So. 2d 922 (Fla. 5th DCA 2008). When the trial court gave the oral ruling on June 26, 2009 regarding the “Retrial of Custody of Children” it disregarded documented abuse. It is clear that this was a blatant disregard of abuse and evidence was suppressed, dismissed and ignored. This strongly suggests bias, discrimination in making the decision regarding the custody of R.S. and S.S.”

4) Constitutional Issues were also raised

Amended Brief of Appellant p. 4 states:

“The fundamental constitutional equal right of a loving, caring Mother is to be able to raise and nurture their children. The standard of review is abuse of discretion. In Bevil v. Carson 966 So. 2nd 1007, 1009 (Fla. 5th DCA 2007), in reviewing a custody determination the appellate court considers whether there is substantial competent evidence to support the factual finding by the trial court and whether its in the best interests of the children. Id.

If substantial evidence does not support the factual finds then the court abused its discretion, Fuller v. Fuller 13 So. 3d 1108 (Fla. 5th DCA 2009). A parent has a constitutionally protected inherent right to a meaningful relationship with his or her children, and must be treated equally under all of the 4th, 9th and 14th Amendments to the Constitution of the United States of America. (Exhibit B) There is no reason to excuse the judiciary participating in depriving the parents of the care and custody and time with their children, and sadly, in this case mother and R.S. and S.S have only had 68 hours of contact at the Supervised Visitation center.

The record is clear, Linda Sacks is a loving , caring, devoted Mother who was concerned for the safety and well being of her children and tried to protect them, and in doing so was placed on supervised visitation unjustly.”

Constitutional rights of a parent were also in other parts of the briefs as well. Abuse of Discretion issues were also raised, as well as the “best interest of children.”

Abuse of discretion was raised as it is the Standard of Review. The standard of review for the trial courts finding and determination regarding primary parental responsibility is abuse of discretion. The trial court finds regarding the best interests of the child must be supported by competent, substantial evidence. Knifley v. Knifley, 944 So. 2d 1136 (Fla. 5th DCA 2006).

Also stated:

The trial court abused its discretion by not terminating the supervised visitation imposed on Linda Sacks and compounded that error by refusing to allow contact unless it was supervised, and knowing their was no detriment to the children, and no evidence to support the trial courts ruling on custody of Linda sacks, Appellant’s Minor children, R.S. and S.S

The trial court abused its discretion when substantial competent evidence does not support the erroneous findings of the trial court in the final judgment of the retrial of custody of children.

The trial on April 24 and 28, 2009 on the retrial of Custody of children and the evidence presented does not support the oral ruling or written final judgment showing clear bias and prejudice and abuse of trial discretion.

The Court compounded that error in granting primary residential responsibility and sole physical custody to the father and supervised visitation to mother once again.

In the briefs these arguments were supported by the record and case law to support the argument.

A transcript from the Retrial in April 2009, was submitted showing the father admitting on the stand to verbal abusing the mother in front of the children, to an altercation in the kitchen of the family home with R.S. at 8 years old that resulted in this child getting a split lip and blood, to wiping down the vaginas of R.S. and S.S. (school age children), to being in the bathroom again with S.S. as she was naked in the tub, with him having her stand on one leg, with her other leg in the air, after just being told by a licensed psychologist to STAY out of the bathroom, and on the way home from that very office, came in the house with S.S. and did it again…within minutes of arriving home.

All of these admissions collaborated the Dept and Children Child Abuse Hotline Calls the police reports and Mothers Domestic Violence Injunction of Protection. But Judge Briese dismissed all and said in his oral ruling on June 26, 2009, and this is included in the Appeal briefs (Reply Brief of Appellant p. 6 and 7) states:

Judge Briese states: “He testified that nothing, ever inappropriate happened, sexually or physically, and the court finds it to be the case, as it did the first time.(R. Vol. 2. T. p. 189, 1. 18-20)

This is an erroneous finding by the trial court, and in Donn v. Donn, 733 So. 2nd 581 (Fla 4th DCA, 1999) the appeals court noted that there were numerous inconsistencies between the Final Judgment and fact as presented in the Final hearing and this was reversed and remanded for a new hearing.

* * *

For Information on Amicus Briefs

Please contact:

Linda Marie Sacks

Linda Marie Sacks
386-453-3017
lindamariesacks@aol.com

For Press

Please contact:

Kathleen Russell
Executive Director
Center for Judicial Excellence
495 Miller Avenue, Suite 304
Mill Valley, CA 94941
Main 415.388.9600 Fax 415.388.4610
www.CenterforJudicialExcellence.org

 

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7 Responses to Linda Marie Sacks’ Child Custody Case is Perfect for the US Supreme Court to Make a Historical Ruling

  1. Pingback: How An Abuse Case From Florida Being Heard In Washington D.C. Affects Hawaii | Coalition Against Legal Abuse in New York

  2. Pingback: Abuse Freedom Live Radio Show 6/26/2011 – Guest Speakers Linda Marie Sacks and CALA NY | Coalition Against Legal Abuse in New York

  3. Janice Rodriguez says:

    I’m so very proud of this mom for not giving up on her beautiful daughters and fighting for what is only right. the court system is too busy trying to get people’s money and doing justice has gone out the window. I am stuck in a very similar situation but in the state of Ga. where they favor fathers. My husband commited the domestic abuse and violence and I never took pictures or called the police on him bc i didn’t want to loose the father of my kids , so when i finally took it to court, my testimony meant nothing. Everything i said was questioned and he only took the stand one time out of almost 2yrs. of scheduled court hearings and postponed dates. He paid his attorney very well and managed to take away my four year old son who is now very unhappy and in an unhealthy environment living with his father who doesn’t allow me or his older sister around him. He controls what my son says to me and my daughter on the phone. who he’s allowed to be around and I have no say in it. I need help to get my baby boy out of his father’s dungenous life and don’t know how to . any suggestions.

  4. Julie W. says:

    I am so glad that this is going to the US Supreme Court. My only wish is that it didn’t just say sexual/physical abuse. What about emotional and verbal abuse? That can be just as damaging and goes hand in hand with any case like this. My child is being forced to go to his father’s and I am forced to hear him call me in hysterics begging me to come get him every weekend he’s there and hear my ex screaming at him and belittling him and me. I can’t go get him because then I would be the mother that’s interfering with HIS visitation. The court system is backwards. I had mountains of evidence of his bullying and abuse both at me and the children. Yet no one ever looked at it. All it was was a bargaining chip for my lawyer that luckily did win me sole legal custody but he ended up with even more time as part of our “settlinment”. All they paid attention to is the act he put on while he was under the eyes of the system. And even then, he was still blatant about disregarding almost everything. I wanted a trial and the judge told me I couldn’t have one. I had no choice and was forced into a settlement that I didn’t agree with. If I refused to sign the “settlement” then I would piss off the judge and she would punish ME. She had already made up her mind as to what she was going to do so no trial. How is this okay? I have all this evidence and she just decided no trial, and this was after I got a $4000 bill for “trial preparation”. Give me a break, our system sucks! He was obvious in his abuse I had 40 recordings of his abuse and mountains of evidence. The judge never listened to a word of it or even talked to me in person or my kids. This is not justice, it’s a game.

  5. Kris says:

    Linda,

    Since I began my experience with the Family Court system in 2010, I have become appalled and have lost all faith in the justice system. I came across your story and I am absolutely in shock that this could take place, and to 58,000 children per year. My son’s father is an alcoholic and lives in filth, and I have not been able to get any assistance with anything, even with me having a lawyer and him representing himself. Everything is just “hearsay” and “inadmissible” and all of the other legal words that are thrown around in the court room, and nobody will do their jobs to check anything out. The single mediator in my county is overloaded with cases and practically reads from a script when I am in her office. She has made crucial mistakes, and has even mistaken my toddler son’s age, stating that he is 8 years old several times. She makes clerical errors in the paperwork, which becomes confusing to the judge and then my lawyer has to further explain in court. It’s appalling. I continue to fight my alcoholic ex in court, but fear of losing my son for not “shutting my mouth” about the conditions he lives in and the jeopardy my son’s life is in while in his care. My son is already starting to say he does not want to go to his Dad’s house, and I fear that if I say anything, I will appear to be a malicious mother. As far as the alcohol abuse, it’s impossible to even monitor that because they say that he can’t drink alcohol only 8 hours before or during my son’s visit, which is on alternating weekends. But what the court order states and what is being done are two different things. I have tested him in the past, but when the test failed, it just became an argument of “when” he drank not if he is drinking. The fact is, they do nothing until something bad happens like a child losing their life because of a mistake of the intoxicated parent in care of a child. There are no preventative measures.

    I am so happy that your case is going to the US Supreme Court, and I am saddened by your losses of all of the time you have missed out on with your children. Now that your children are almost teens, won’t they be able to choose to come live with you and not live with their father any longer? Isn’t that age 14 1/2? I will pray for you and pray that you and your daughters will reunite sooner than later, and that their father will finally get what he deserves. Hugs and best wishes! From a mother to a mother.

  6. Tamirq says:

    It is not just the system it is the opportunist scampering around the system. Look at the profiteering nature of amicus attorneys and parenting coordinators! Do we really expect them to send the case back to court saying “sorry we do not make any difference for $100/hour.” dream on! They will drag your ass back to sit in the same room with your abuser and force you to go over mothballed videos and caricatures of co-parenting. On top of everything, keeping the joint custody not only outs the mother in the financial bondage but allows the same organizations to receive federal grants for keeping the unfit parent involved in the lives of his children and the woman. Shame on all organizations who tell they cannot help you unless hymen has been torn or arm has been broken. Instead of channelling funds towards fighting the epicenter of injustice, I.e. Judicial indiscretions, funds go to pay to attorneys to handle a handful of cases.
    Please post DIY for appeals. Volation of Constiutional rights indeed. But most importantly, violation of the laws of nature when the mother needs to nurture her child as much as the child needs her mother’s nurturing.

    Rick Perry, open our eyes. Look at the Texas family court run by pro-family single women averse judges. Most of them are female judges btw.

    Tamira

  7. Hayez Allen says:

    And she is just definitely being a mother. How she loves her children so much that she puts through with all those barricades just to fight for the right of her children.

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