The outcry over a decision that let a child have a weekend visit with her father, an action that led to the child’s death, includes cries for the judge’s removal and a call from the Governor for an inquiry by the Judicial Conduct Board. As we show below, this response misses the boat in two regards – the protection of judicial independence and the need to change the law. Professor Jules Epstein addresses the former; Professor Sarah Katz the latter.
We live in a world where the judiciary is under attack, with cries that “our legal system is broken” and that judicial decisions put our country “in peril.” But we want and need judges to make tough decisions without looking over their shoulders. And we want lawyers to be able to go into court on new cases without fearing that the judge will make a harsh decision to ‘look tough’ and appease the critics.
Judicial misconduct warrants sanctions. Lying, stealing, doing favors; not showing up for work; or being racist, sexist or otherwise hostile to discrete populations – all warrant punishment and some may require removal. But an unwise decision – if this indeed was one – is not misconduct.
Can we know that the judge’s decision was wrong, except using hindsight? The father had abusive acts toward adults in his past, and suffered from depression. There are data supporting the assertion that these behaviors indicate that children are at risk, but that is but one of numerous factors the law requires a judge to weigh. Is a judge wrong if the risk is 1% versus 15%, or if the father has been with this child without violence, or if the spousal abuse occurred years earlier? Unless the science is clear, the numbers are compelling, and the law makes this the main factor, the judge’s decision is not misconduct.
What is needed here? From the worlds of airplane accidents and medical errors, we need what are termed “just culture” reviews and “root cause analysis.” In plain English, that means studying whether and why the judge’s decision was clearly wrong and unjustified, assessing what information should have been considered and how it should have been weighed, and learning how to ensure that the risk of such harm is reduced if not eliminated in future cases. That may mean more judicial education, more resources, or a recalibration of the law.
Protect our children; but not in a way that fails to protect the institution of an independent judiciary.
THE NEED FOR LEGISLATIVE REFORM
The tragic and horrific murder in Philadelphia of seven year old Kayden Mancuso by her father Jeffrey Mancuso underscores the need for legislative change. Although Kayden’s mother Kathryn Sherlock tried to warn a Family Court judge that her daughter was in danger with her father, the law was not on her side.
Under the Pennsylvania custody statute, judges must consider sixteen factors when rendering custody determinations which are in the best interest of a child. Whether there is a history of intimate partner violence, which was reportedly an issue in this case, is just one of the sixteen custody factors. Other factors include the parties’ caregiving history, whether there is a history of substance abuse or mental health issues, and the preference of the child. Jeffrey Mancuso had at least one criminal conviction for aggravated assault which, under the statute, creates a rebuttable presumption of threat of harm – but the conviction, reportedly for biting someone’s ear – did not involve an incident between the parties. But the presumption of threat of harm does not attach unless a party has a criminal conviction for a list of crimes which are enumerated in the statute. There are a multitude of reasons why people who abuse their intimate partners are not always convicted of abuse – for example, they may never be charged if the survivor is too afraid to report to police, and even if charged they will not be convicted if the survivor is too afraid to follow through with the prosecution.
Social science research tells us that intimate partner violence is a strong predictor of risk of harm to children. Not only are children harmed by exposure to a parent inflicting violence against another parent, but adults who abuse their intimate partners are far more likely to harm children. Despite this body of knowledge, custody law in Pennsylvania has not caught up. Although evidence of intimate partner violence must be considered in rendering any custody decision, the law does not attach any rebuttable presumption of threat of harm to children to such evidence. Rather than attach the presumption to a list of criminal convictions (only some of which have any connection to risk of harm to children), the statute should guide judges to give far more weight to any evidence of intimate partner violence.
The benefit of hindsight makes it tempting to criticize the custody Judge in the Kayden Mancuso case, but this misses the point: the problem is the law which the Judge is constrained to apply. Every day judges in family courts throughout the Commonwealth and the country hear highly contested custody cases where allegations of intimate partner violence are present. Every day judges must weigh the fundamental rights of parents to care and custody of their children, against evidence of any risk to those children which might necessitate placing limits or conditions on a parent’s custody. These are not easy cases and no judge has a crystal ball which will predict the future. But attaching a presumption of threat of harm to evidence of intimate partner violence will go a long way to protecting children.