How An Abuse Case From Florida Being Heard In Washington D.C. Affects Hawaii

Linda Marie Sacks and her two daughters

Being at the the furthest reaches of the United States, it’s often difficult to see how events from the mainland or Washington DC actually directly affect all of us over here in Hawaii, but a particular case coming before the United States Supreme Court next Thursday, June 23rd, has the potential to not only rock Hawaii but the entire nation.

How did this case arrive to the United States Supreme Court in Washington D.C.? Read the history of this case here.

By the time mom has “successfully left” the abusive relationship, the legal proceedings in family court (which is NOT criminal court!) are well under way.  IF the victim lives in a state that has a rebuttable presumption against sole or joint custody to a perpetrator of family violence (like Hawaii does – Hawaii Revised Statute 571-46(9)) then the law is quite clear: no sole or joint custody to an abuser BUT several things can go wrong in a DV divorce/child custody case that will keep the victim and her children from getting the protection they desperately need and deserve.

Unfortunately what’s being seen across the country is that “broad judicial discretion” trumps the law, state statutes, evidence, judicial canons, best practices and in some tragic cases, even common sense and ethics (ie: the Katie Tagle case).  Part of a judge’s job is to exercise discretion over the case in front of him/her; ideally, this is supposed to be donewithin the confines of the law and state statute but “broad judicial discretion” has instead been cited as the judge’s right to violate and/or disregard the law and state statute!  You don’t have to be in one of these cases to realize that if you feel the judge on your case has done you wrong, who exactly are you going to call to complain/report it to and at what price?  YOUR word vs. a judge’s who you’ll come before again at your next court hearing?  Good luck with that one…

Another thing that can keep a victim and the children from getting the protection and justice they deserve under the law is a lack of tangible evidence of abuse.  Courts rely on physical evidence and witnesses to get to the truth but since domestic violence occurs in secrecy and silence, there typically are no witnesses other then the victim and the children (and it’s a very rare instance indeed for a victim to capture her abuse on film/audio/video.  Also remember that the primary form and foundation of domestic violence is INVISIBLE: psychological/mental/emotional abuse).  

If the victim happens to have photos of her injuries, how those injuries came about is cause for speculation in court (ie: how can you prove the injuries weren’t self-inflicted?) and the victim’s accounts and testimony against the abuser are all referred to as allegations and accusations sometimes even AFTER those allegations and accusations are proven to be facts!

The courts tend to keep children out of legal proceedings (there go your witnesses) to keep them from being “caught in the middle”.  Instead the children are “given a voice” through a Guardian Ad Litem (GAL – an attorney whose supposed to represent the children’s interests) or a Custody Evaluator who may be assigned to the case so the judge can learn what “the facts” are and make decisions from their “professional” conclusions and opinions.

An inherent problem with this however is the GAL and/or CE’s approach to the case and kids: Is that professional listening to the kids and relaying to the court what the children have expressed/desire OR is that professional stepping in as the “expert” in determining what THEY think should be in the kids’ best interests?  Most often it’s the latter which strips the victim-turned-survivor of her expertise over her own children.

Complain and point out any of these blaring problems in your DV case and/or challenge and question the authority, professionalism, legality or decisions reached and you’ll end up like Linda Marie.  In April 2007, Linda Marie’s daughter said “Mommy fight for us, and do something every day to get us back, and don’t ever stop”.  Because this mother kept this promise, her case is going before the United States Supreme Court on Thursday, June 23rd where the highest court in the country will decide whether or not to hear her case.

Linda Marie would like you all to know that “This is a historic case for all of America’s children who are not being protected by the official avenues which were put in place to protect them.  I am truly the ‘All American Mom’ and never did I ever imagine, that I could lose custody of my children for believing them and trying to protect them.  The family court system is giving pedophiles and batterers custody.  Typically, the parental rights of safe and absolutely fit protective parents are being terminated – or like me, are placed on supervised visitations for years without a case plan or reunification plan.”  http://batteredmotherscustody.blogspot.com/2010/12/linda-marie-sacks-press-release-mothers.html

Outraged?  You should be!  If you are, let our US Supreme Court know!  A postcard campaign has been launched to say that we believe ALL CHILDREN should have violence and abuse-free childhoods and that we stand behind Linda Marie’s quest for justice.  If you’d like to join, send a postcard with a picture of the town/city/island you’re on saying “I support Certiorari Case #10-1381 and Linda Marie Sacks.  Please hear her case on June 23, 2011.”  Mail it to:

Supreme Court of The United States, 1 First Street NE, Washington, DC  20543

Through Linda Marie’s historical case, new case law could be established to uphold the constitutional right for a parent to establish a home, to have custody over and care of their children and to let our US Justices know that the human rights of children and survivors of abuse are being violated in courtrooms all across our nation.

There is a Family Court Crisis going on in our country and in our Hawaiian Islands, and Linda Marie’s case would be the first strike in bringing the crisis to an end.

In 2002, a self-proclaimed “squeaky clean soccer mom” who lived her life for her two daughters in Daytona Beach, FL received a disturbing call from her daughter’s school; she was told that her 7 year-old daughter was sexually acting out with a knowledge beyond her years.  Linda Marie Sacks did not recognize the the verbal and emotional abuse she regularly endured from her husband as domestic violence and she was having a very hard time trying to wrap her mind around the concept that her husband, the father of her children, could actually be sexually molesting them.

When Linda Marie walked in on her husband being sexually inappropriate with their daughters before school one morning in 2004, no explanation could make sense of what she saw and she filed for divorce.  Believing that she would surely receive full custody of her daughters based on the history and evidence of abuse, Linda Marie got the shock of her life when her abusive ex received full custody and she was “awarded” supervised visitations.

Sadly and tragically what happened to Linda Marie is more the norm then the exception when domestic violence victims flee with their children from their abusers and YES, it DOES happen here in Hawaii every day.  How?  Like this:

(Typically a) Mom realizes that the relationship with the father of her children isn’t what it’s supposed to be and follows the message we send to all victims of abuse:  “If you’re in a violent or abusive relationship, get out NOW, help IS available”.

Mom usually takes the children with her – and here’s the first part of the whole thing going wrong: some judges will not see the violence or abuse the mom claims is occurring – all they’ll see is a parent who decided to take the children away from the other parent – and the judges will focus on that fact over and above the fact of violence and/or abuse that prompted the the escape in the first place.

Then there’s the argument of “Ok, so you say YOU’RE being abused.  If that’s the case, why don’t YOU just go to the shelter and leave the kids behind?  Why put the kids through that?  Just leave them with their father.  You’re saying he’s abusing YOU not them, right?”

Any protective parent will tell you that they’re NOT going to leave their child in a potentially dangerous situation or harmful environment and domestic violence is a dangerous situation and a harmful environment for ANYONE to be in, let alone children, so the victim will usually take the children with her.  (There ARE situations, however, where the victim will leave without her children because she’s been convinced by the abuser that she’s not a fit parent and believes that the children are “better off without her”.)

In the meantime, it’s been clinically proven that children who witness or are exposed to domestic violence ARE indeed negatively affected EVEN if they don’t directly observe the acts and altercations so it truly is in their best interests to be kept safe from the situation and abuser.  http://www.childwelfare.gov/pubs/factsheets/domesticviolence.cfm

Going back to those who would suggest that mom leave the kids behind because THEY’RE not being abused, the consequences of doing so would be disastrous because leaving the children behind will be used against her in future child custody and family court proceedings if not child protective services proceedings.  A mom whose fled without her children can and will be accused of either abandonment, neglect, failure to protect or contributing towards the abuse for leaving the children in a situation she knew to be potentially dangerous so right from the get-go, a domestic violence victim with children trying to escape is already placed in a lose-lose situation.

Reposted in part from the Examiner, Written by Dara Carlin, M.A.

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About calany

Coalition Against Legal Abuse in New York - coalitioncalany@gmail.com
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