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If You Want Custody Of Your Kids, It's Better to Be a Criminal Than a Concerned Parent

July 10th, 2014

By MCMoewe

They had both lost, one mother in criminal court, the other in family court. But Mary Winkler, convicted of voluntary manslaughter for shooting her husband, got her children back. The other parent never did.

“I was sitting in my living room in disbelief,” Florida mother Linda Marie Sacks said of watching a 2008 TV news story about Winkler. “All I did was try to protect my children and raised concerns regarding disclosures, drawings, and asked the official avenues for help in trying to protect my children, to no avail. I never knew that parents in America would lose custody for reporting abuse. Mary Winkler had killed someone and she got out of jail and drove right over to pick up her children.”

When it comes to taking parental rights away from a convicted criminal, courts have checks and balances built into the system. Under federal law, criminal courts terminate parental rights only as a last resort and require reasonable efforts to preserve and reunify families.

Family court is another story.

Though she has never been accused of a crime, Sacks was allowed only supervised visitation with her children. Despite filing appeals and petitioning the Supreme Court to hear her case, for more than eight years she has remained on supervised visitation, allowing her just a few hours a month with her daughters.

“I am not able to do all of the things a mom does for her children ... take care of them when they are sick, spend quality time, help with homework, play Monopoly, bake cookies, share their birthdays or holidays,” said Sacks, who before the family court order was the school class mother for both of her children.

Family court judges rule based on the preponderance of evidence rather than the criminal court’s higher standard of clear and convincing evidence.

In criminal courts, special hearings are held to determine if a parent is unfit, making parental termination decisions easy to track and thus open to public scrutiny. In family court a judge can end the parent-child relationship at any time during the divorce process -- and that decision is buried in the final judgment among all the other matters related to the proceeding.

“They hide it,” said Sacks, who pointed out that according to her final judgment she was granted shared custody. But that never happened. “There was a schedule attached to my final judgment that showed when I would get vacations and holidays with my children, but the supervised visitation made that impossible.”

Because there’s no special hearing to end a parent-child relationship in family courts, there’s no way to track how often this is happening. If a motivated federal official such as White House advisor Lynn Rosenthal wanted to know the extent of the problem, it couldn’t be compiled from court records.

Appealing a family court decision is a long and expensive process. In 2008, the Florida Fifth District Court of Appeals reversed Sacks’ child custody ruling, citing due process violations, and sent it back to the lower court for a rehearing. Despite her efforts to get a new judge assigned to the case, Sacks was sent back to Volusia County Judge Shawn L. Briese, who continued to block her from unsupervised contact with her children.

In 2009, Sacks began representing herself as a pro-se litigant. She appealed her case and wrote a 112-page Supreme Court petition that was denied in 2011. “I tried everything I could to fight for my children,” Sacks said. “If the hearing had happened in criminal court, I would have never lost my children. I did nothing wrong.”

When a family court judge gave California mother Cindy Dumas only supervised visits with her children, she took her fight to the streets. “I told the judge I would continue protesting every week outside family court if she didn’t let me have my kids back unsupervised,” said Dumas. “After one year of that, (the judge) relented and made the deal for me to stop going public, so I stopped and got my kids for unsupervised visits. But still I had no legal custody.”

A New York mother, ordered almost eight years ago to have no contact with her then- 10-year-old daughter after making a report of alleged abuse, told me she is too afraid of her ex-husband and the U.S. family court system to speak publicly about her case. Each evening she gets on her computer and looks for information abouts her child.

“Every time I see an update from my daughter, I thank God she is still alive,” the mother said. “What the average American doesn’t understand is that these children are hostages.”

This is the fifth in a series of articles for Daily Kos about the treatment of abused children in the U.S. family court system. M.C. Moewe is a former criminal justice and investigative reporter for several newspapers with a B.A. in journalism from the University of North Texas. Email m AT moewe.com or use this link.

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