UNIT_Three

UNIT THREEA FAMILY LAW PERSPECTIVEON PARENTAL INCARCERATIONSection AFamily Law and Child Development1 Family law is unique among American legal fields in making children's interests paramount, as it does in the context of custody disputes between a child's legal parents. Under the ―best interests of the child‖ standard that family law courts apply in adjudicating such disputes, the child's interests prevail over all else. By elevating children's interests over other concerns, custody courts provide an unparalleled examination of children's development, and how that development is affected by each child's placement in one or another caretaking environment.2 Courts assessing children's best interests in order to resolve custody disputes take for granted that the ways in which children are brought up will shape the type of adults they become. While custody courts care about children's day-to-day happiness, they are especially concerned with how children's current experience will affect their future. The custody literature therefore provides extensive analysis of the ways in which childhood experience and early caregiving arrangements can alter a child's course of development into adulthood, for better or for worse.3 Underlying the best-interests assessment is the often unspoken assumption that the goal of the custody decision-maker is to ensure that each child become a happy and well-adjusted adult. Using terms such as ―autonomy‖, ―independen[ce]‖, ―self-sufficien[cy]‖ and ―productiv[ity],‖ courts awarding custody frequently conveythat the goal of caregiving is to best foster each child's transition from the dependence that is the hallmark of childhood to the autonomy that is the defining characteristic of adulthood. Custody courts make clear—to an extent unique in legal analysis—that the likelihood of a child reaching his or her potential to become a well-functioning adult can be greatly influenced by his or her upbringing and early environment.4 The best-interests case law discusses at length the factors that can diminish a child's chances of becoming a well-adjusted and autonomous adult. The custody literature reflects a consensus that the conditions most likely to foster a child's well-being are continuity and stability, and that, conversely, any disruption of a child's environment and caretaking arrangement can inflict developmental harm. Custody decisions often entail change to a child's status quo, such that some disruption is inevitable. The focus of the best-interests inquiry, then, is often on the degree and nature of developmental harm that various types of disruption will inflict on a child. The court's goal in these cases is to find the arrangement that will be the least damaging to the child's future well-being.5 There is widespread agreement in the custody literature that the disruption of the parent-child tie can be especially damaging to a child's development. For years, courts favored primary caregivers—often mothers—in order to minimize a disruption of the parent-child bond that was seen as potentially traumatic to a child. Today, courts and legislatures increasingly recognize the importance to children of maintaining contact with both parents. Custody courts will discuss with a great degree of nuance—and often with the aid of expert psychological testimony—the harms that disruption of the parent-child tie can inflict on a child given her particular stage of development.6 Custody courts often acknowledge, for example, that extended separation of an infant or toddler from a parent is particularly dangerous to a child's development, and can have life-long effects. Separation of an infant from a parent can disrupt the bonding process that is the foundation of the child's future emotional and intellectual growth, and separation of parent and toddler can impede the toddler's first steps toward autonomy and independence, which the toddler takes by building on the trustdeveloped during the infant-parent bonding process. Courts awarding custody often note that separation from a parent at these vulnerable stages of development can harm a child's cognitive as well as psychological development, and can impede both the acquisition of language and other developmental milestones and the ability to form relationships and regulate emotions later in life.7 Custody courts are also concerned with minimizing other types of disruption to children, on the theory that these, too, can hamper a child's progress toward a well-adjusted adulthood. Courts may express concern, for instance, about the damage that financial insecurity can inflict on a child. Courts are wary of placing too much weight on financial factors, and some jurisdictions prohibit their consideration altogether. Yet many custody courts will consider how financial instability can affect a child's development, both directly and indirectly. These courts acknowledge that financial deprivation can diminish the opportunities that will be available to a child later in life. Such deprivation, moreover, is often attended by additional potential harms in the form of frequent moves, educational disruption, and parental stress, each of which, according to the custody case law, can jeopardize a child's emotional and intellectual development, with long-term effects.8 Family law's best interests of the child standard, then, provides a rich picture of the ways in which changes to a child's custodial environment can thwart a child's development into an autonomous and healthy adult. Foremost among these is disruption to the parent-child tie, especially when combined with other forms of change such as relocation and financial insecurity. Children who undergo disruptions of this nature to their caretaking environments may suffer developmental harm as a result.9 By articulating the harmful effects on children of various types of disruption and instability, family law's best-interests analysis provides a useful tool for understanding how parental incarceration may affect a child's development. In 2007, there were 1.7 million children with a parent in prison. This represents an increase of 79 percent since 1991. As of 2007, the incarcerated population included 744,200 fathers and 65,600 mothers.10 When a parent is incarcerated, this typically inflicts on a child the very harm that custody courts work most stringently to avoid: separation from a parent. As a preliminary matter, it is important to acknowledge that some children may benefit by separation from an incarcerated parent. Where the parent has abused the child, or exposed the child to other forms of violence, the child might be better off in a new environment. But family courts emphasize the importance to children of maintaining contact with even troubled and problematic parents, where possible. Criminal courts imposing sentences of incarceration, by contrast, will also separate children from parents who have been exemplary caretakers. They frequently do so without acknowledging the extent to which the separation may jeopardize the child's development and future well-being.11 From the perspective of family law's best-interests case law, it is clear that the harm to children caused by separation from incarcerated parents can have profound and life-long effects. While the potential for harm is greatest when a child is separated from a primary caretaker, family law courts acknowledge the importance to children's well-being of maintaining contact with both parents. The potential for damage is especially great when a child is young. But separation from a parent can harm a child at any stage of development, and can result in behavioral problems, trouble in school, and emotional problems that may make it difficult for the child to establish relationships and to function independently as an adult.New Words and Proper Termsincarceration n. 监禁；下狱；禁闭prevail vi. 盛行，流行；战胜，获胜paramount adj. 最重要的，主要的；至高无上的custody n. 保管；监护；拘留；抚养权traumatic adj. 外伤的；创伤的adjudication n. 裁定；判决consensus n. 一致；合意inflict vt. 造成；使遭受（损伤、痛苦等）；status quo n. 现状testimony n. 证词，证言；证据nuance n. 细微差别hamper vt. 妨碍；束缚；使困累thwart adj. 横放的；固执的adv. 横过stringently adv. 严格地，严厉地jeopardize vt. 危害；使陷危地Impede vt. 阻碍；妨碍；阻止Notes1. Family law: 婚姻家庭法Family law is an area of the law that deals with family-related matters and domestic relations, including: marriage, civil unions, and domestic partnerships; adoption and surrogacy; child abuse and child abduction; the termination of relationships and ancillary matters, including divorce, annulment, property settlements, alimony, child custody and visitation, child support and alimony awards, juvenile adjudication, paternity testing and paternity fraud.2. Case law: 判例法Case law is the reported decisions of selected appellate and other courts (called courts of first impression) which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis. These interpretations are distinguished from statutory laws which are the statutes and codes enacted by legislative bodies; regulatory law which are regulations established by governmental agencies based on statutes; and in some states, common law which are the generally accepted laws carried to the United States from England. The rulings resulting from trials and hearings which are not selected as 'courts of first impression' do not becomecase law and cannot be precedents for future court decisions.ExercisesI. Questions for discussion:1.What is the general function of the family law courts for the development of children?2. What is the best-interests assessment of a court?3. What is the widespread agreement in custody literature?4. Why are the courts wary of placing too much weight on financial factors?5. How can we say that parental incarceration may affect a child's development?II. Choose the best answer for each of the following according to the text:1. Separation from a _____ can harm a child at any stage of developmentA. fatherB. motherC. parentD. wife2. When a parent is incarcerated, what custody courts work most stringently is toavoid the _____from a parent.A. cutB. separationC. coming apartD. departure3. Many custody courts will consider how financial instability can affect a child's _____ , both directly and indirectly.A. developmentB. healthC. IQD. EQ4. Today, courts and _____ increasingly recognize the importance to children of maintaining contact with both parents.A. judgeB. lawyerC. policeD. legislatures5. Children who undergo disruptions of this _____ to their caretaking environments may suffer developmental harm as a result.A. bodyB. mindC. brainD. natureIII. Fill in the following blanks with the given words below:adjudication, discretion, constitutional, consensus, family law, defendant, testimony,incarceration, custody, jeopardize1. He is alleged to have participated in a number of crimes, which led to his_____ .2. If someone is being held in a particular type of _____ , they are being kept in a place that is similar to a prison.3. The _____ Panel for Wales decided on the ban after hearing a complaint from the Wales Audit Office4. The ____ among the world's scientists is that the world is likely to warm up over the next few decades.5. In a court of law, someone's ____ is a formal statement that they make about what they saw someone do or what they know of a situation, after having promised to tell the truth.6. In other words, our continued dependence on fossil fuels will ____ our national security7. Illegitimate child claim system is an important system of the ____ .8. If someone in a position of authority has the ____ to do something in a particular situation, they have the freedom and authority to decide what to do9. A ____ is a person who has been accused of breaking the law and is being tried in court10. The distinction between action and faith, however, created an important ____ principle, that faith in and of itself could not be attacked or outlawed.IV. Translate the following into Chinese:Courts assessing children's best interests in order to resolve custody disputes take for granted that the ways in which children are brought up will shape the type of adults they become. While custody courts care about children's day-to-day happiness, they are especially concerned with how children's current experience will affect their future. The custody literature therefore provides extensive analysis of the ways in which childhood experience and early caregiving arrangements can alter a child's course of development into adulthood, for better or for worse.Section BApproaches to Consideration Children’s Interests1 Currently, criminal law takes children's interests into account only to a limited extent when sentencing parents. However, recent changes in the law of sentencing have opened up the possibility that courts and legislators revisit the discretion of judges to consider children's interests when sentencing their parents. Now is therefore an opportune time for the family law community to urge a rethinking of our approaches to parental incarceration.2 Until recently, the discretion of federal judges to consider children's interests when sentencing parents has been constrained by the Federal Sentencing Guidelines. In 1987, the Federal Sentencing Guidelines replaced a flexible system of federal sentencing with a tightly structured and mandatory regime that significantly limited judicial discretion. Under the Guidelines, judges must calculate each defendant's sentence according to a rigid mathematical formula. The Guidelines then permit for departure if the sentence thus calculated does not adequately take into account relevant mitigating or aggravating factors. Departures, however, are permitted only under certain precisely delineated circumstances.3 With respect to children's interests at the sentencing of their parents, the Guidelines p rovide that ―family ties‖ are ―not ordinarily relevant‖ at sentencing. Under commentary that was added to this provision in 2003 by a Congress eager to enhance the severity of criminal sentences, courts can only consider the harm children stand to suffer a s the result of a parent's incarceration when this harm ―substantially exceeds‖ the harm ―ordinarily incident‖ to parental incarceration. As the sentencing case law has noted repeatedly, incarceration typically inflicts extensive harm on the families of de fendants. Thus, under the ―substantially exceeds‖ standard, the harmchildren stand to suffer as the result of a parent's incarceration must be severe indeed before a sentencing court can consider it. Some appellate courts following this logic have reversed district courts that departed from the Guidelines to reduce the sentence of single mothers with infants and of other single parents, and have upheld district courts that refused to do so, even where the children stood to be placed in foster care as a result of the parent's incarceration.4 However, the Federal Sentencing Guidelines are no longer binding on federal judges after the Supreme Court's monumental 2005 sentencing decision, United States v. Booker. The Booker Court held that the Guidelines violated defendants' Sixth Amendment right to a trial by jury by requiring mandatory sentences based on judge-found facts. Its remedy was to render the Guidelines ―effectively advisory.‖ Federal judges must still calculate the Guidelines sentence for each defendant. But they now have authority not just to ―depart‖ from the Guidelines according to its strictures, but to impose a non-Guidelines sentence altogether. The Supreme Court has clarified in a number of recent decisions that Booker gives federal judges broad leeway to reject the policies underlying the Guidelines and to take into account factors that the Guidelines disfavor—such as, implicitly, parental status and other family ties. As a result, the future of federal sentencing—including the ability of judges to consider children's interests when sentencing parents—is open to debate as never before. Now is therefore the time for those engaged in protecting children's interests to inject their voices into the conversation over how to structure federal sentencing in the aftermath of Booker.5 A similar debate over the future of criminal sentencing is taking place at the state level. In the 1970s and 1980s, a number of states adopted mandatory sentencing guidelines that constrained judicial discretion. Some states, by contrast, created sentencing guidelines that were merely advisory, while others did not implement sentencing guidelines, but employed other mechanisms to limit judicial discretion, such as mandatory minimums.6 The significant variation in state approaches to sentencing extends to whether courts are afforded discretion to consider children's interests when sentencing theirparents. While none of the state sentencing guidelines is as rigid as the Federal Sentencing Guidelines, a number restrict a court's ability to consider children's interests at sentencing. Some states without guidelines have reached similar outcomes through case law. In certain states, for instance, judges may consider family status at sentencing, but only if it relates to the wrongfulness of the crime. In others, judges are given more leeway to consider children's needs when sentencing their parents.7 A number of factors have converged to spur discussions about restructuring the approach to sentencing in several states. One is the Booker decision and related case law, which invalidated any state sentencing regimes that, like the Federal Sentencing Guidelines, impose determinate sentences on the basis of judge-found facts. In addition, a number of states are under pressure to reduce their prison populations. This pressure stems largely from the unsustainable costs of maintaining a prison population that has increased greatly in size in recent decades.8 A further source of pressure to reduce the number of those incarcerated in state prisons are the constitutional concerns that have arisen as a result of overcrowded prisons. For instance, the Supreme Court recently upheld a decision ordering California to reduce its prison population by as many as 37,000 inmates, finding that the conditions created by the current overcrowding in the California state prison system constitute cruel and unusual punishment in violation of the Eighth Amendment. States faced with a mandate to reduce their prison population, whether for financial reasons or constitutional ones, may be newly open to considering parental status in determining which offenders are best suited for alternatives to incarceration.9 Some states, moreover, are beginning to recognize the pragmatic benefits of protecting the parent-child tie when sentencing the parents of minor children. A number of studies have demonstrated that parents are less likely to commit further crimes when they maintain contact with their children. Studies have also suggested that children may be more likely to commit crimes themselves if separated from their parents as a result of incarceration. States looking to reduce crime and long-term prison costs are therefore beginning to develop approaches to incarceration that protect the parent-child tie.10 However, current state efforts to protect the parent-child tie when a parent is incarcerated are relatively small in scope. Currently, nine states offer, or are currently developing, special programs for incarcerated mothers who give birth while in prison. The goal of such programs is to foster bonding and attachment between mothers and their infants, which studies have shown to promote healthier infant development, in addition to reducing recidivism on the part of mothers—a factor that has led some to promote the programs as a cost-saving measure. The oldest such program is the Bedford Hills Prison Nursery, which allows up to 29 mothers who give birth in prison to reside with their newborns for up to 18 months. Similar prison nurseries have recently been developed in a number of other states, including California and Indiana.A number of states—along with the Federal Bureau of Prisons—also offer community facilities in which eligible mothers can reside with their children while they serve out their sentences. Still other jurisdictions are beginning to offer programs to facilitate better contact with their children for parents incarcerated in traditional prisons, such as parenting classes and visitation facilities designed for children.11 While the prison nurseries and related community-based facilities represent a significant step toward protecting children's interests, they do not adequately address the larger problem of parental incarceration. Prison nurseries and community-based facilities only help children maintain their ties with their mothers, not with their fathers, and the nurseries only affect the children born to mothers who are incarcerated. The mothers must meet rigid criteria regarding the length of their sentence and the nature of their crime and criminal history—typically, they must face a short sentence, usually between 12–18 months, and must be nonviolent offenders who have never been convicted of a violent crime. More significantly, even mothers who meet those criteria, and who live in the very few areas where prison nurseries and community facilities are available, must compete for limited spots in programs with waiting lists. The handful of children who benefit from such programs represents just a tiny fraction of the children with incarcerated parents.New Words and Expressionsmitigating adj. 减轻的；节制的aggravating adj. 加重的；令人恼怒的foster care 看护；照顾converged adj. 收敛的；聚合的spur vt. 激励，鞭策discretion n. 裁量权，斟酌决定的自由reverse v. 推翻，撤销，使无效。