"I am contemplating filing for a legal separation or divorce from my husband & father of my 4 year-old daughter. I currently live in Virginia, but hope to return to my home state of California with our child in tow. My husband previously agreed to the move and even told me that he would never fight me for custody. I am the sole provider. My husband lost his job over a year ago. If I decide to file and move with our child to CA, would he, as an unemployed person with legal troubles, be able to appear in court to 'make' me stay in VA with our child?"
George Gardner, III: I hope that you and your husband are able to achieve a resolution that works for both of you—and especially for your daughter.
The process of creating a parenting plan,* which covers both parenting time (physical custody) and parenting responsibility (decision-making), is one that requires careful consideration. A judge, whom the law gives the authority to make the final decision, will consider one question above all others: what are “the best interests of the child”?
The judge will note virtually anything that will influence the answer. He or she will seek to ensure that your daughter has frequent and continuing contact with both you and her father, and no presumption or inference automatically favors either parent. A custody determination is not meant to punish or reward either parent; thus, factors like marital misconduct or modest financial resources (which can be addressed through a child support order) will not likely influence the court’s decision.
Still, whatever is in the best interest of your daughter will prevail. And so the judge may consider any factor conceivably relevant to those interests, including: her needs, based on her age and physical and mental condition; the ability and willingness of each parent to meet the those needs; the role that each parent has played, and will play in the future, in her upbringing and care; and the disposition of each parent to encourage a close relationship between your daughter and the other parent.
In the typical case, the parents are not required to live in a specific locale, or within a certain distance of each other. Instead, the court is more likely to consider the best arrangement for your daughter, given that the parents intend to live in different locations.
While the parents’ prior agreement regarding parenting time and responsibility cannot bind the court, the judge will consider such an agreement when making its determination. And so, to get the arrangement you desire, it may be useful to write an agreement with your husband that considers your daughter’s best interests, now and in the future, before a judge gets involved.
The final determination may award “sole custody,” which means that one parent retains decision making authority for the child, or “joint custody” which, in Virginia, can mean “joint legal custody” (sharing decision-making), “joint physical custody” (sharing time with the child), or any combination of the two. These definitions allow you and your husband to create a flexible arrangement upon which a judge may look favorably, so long as it is clear your daughter’s best interests are at the core of it.
*In recent years, some practitioners in this area have begun to use language that is more neutral. The traditional terms, such as “custody,” “visitation,” and “custody award,” are seen as setting up a win-lose paradigm that fosters antagonism between the parents to the detriment of the child. Though these more neutral terms have not yet been universally adopted, I favor this new language and thus use terms like “parenting plan,” “parenting time,” and “parenting responsibility” above. That said, I also use the traditional terms, given their generally accepted and understood meanings, for the sake of clarity.
“In 2005 the U.S. Supreme Court ruled that federal district court judges have the authority to impose a sentence outside of the federal guidelines. The court also directed the federal appeals courts to review criminal sentences for reasonableness. What is the process for re-sentencing in U.S. District Court?”
Charles Coleman, IV: The 2005 case referred to in the question is a Supreme Court case titled U.S. v. Booker. The case says, in a nutshell, that the Sixth Amendment right to jury trial requires that, other than a prior conviction, only facts admitted by a defendant or proved beyond a reasonable doubt to a jury may be used to calculate a sentence, whether the defendant has pleaded guilty or been convicted at trial. The maximum sentence a judge may impose is a sentence based upon the facts admitted by the defendant or proved to a jury beyond a reasonable doubt.
So…what does that actually mean? First of all, let’s break down the question itself with a real world hypothetical for readers who may not completely understand what in the hell has even been asked:
Johnny is arrested for possession of a quantity of crack-cocaine. Once in custody, he makes a statement to police that he also distributed an additional quantity of crack-cocaine. At trial, he is convicted for the possession of the first quantity. However, in being sentenced (judges determine sentences in criminal cases, not juries) the judge factors in the additional quantity from the statement Johnny gave the police. Johnny’s possession of this additional quantity exposes him to a higher sentence which the judge imposes, changing what would have been 10yrs.-life to 30 yrs.-life.
(Did I just borrow the facts directly from US v. Booker? Yes. Yes, I did.)
The decision in Booker basically states that the judge was wrong for including facts which had not been proven beyond a reasonable doubt (in the case of a trial) or admitted to under oath (in the case of a plea bargain) in determining Johnny’s sentence. The factors that bumped his time up (the additional cocaine possession) had not been proven to at trial. Accordingly, the judge could not sentence Johnny while considering those facts because they had not been proven and were not sworn to/admitted under oath. Had the judge factored any criminal history that Johnny had been previously convicted for (convictions, not arrests) the sentence would have been valid.
Now, what do you do if you find yourself in a situation where you or a loved one believes that an imposed sentence is excessive or should be reviewed? Before going further, there is an extremely important caveat to note. Despite the court’s instruction and reference to “reasonableness”, they never actually define the term and the case itself doesn’t state any real rule of law that creates a standard. Thus, “reasonableness” can mean a host of different things depending on which Circuit (or area) is considering the appeal of your sentence.
From a practical standpoint, to have a sentence reviewed by the court, you will likely need the aid of an attorney licensed to practice law in your jurisdiction. They will then have to file an appeal on your behalf to have your sentence reviewed. While you do have the option of filing an appeal pro se, I will remind you of the age old adage that states “A person choosing to represent themselves has a fool for a client.” Appeals work is very complicated and requires a sophisticated knowledge and understanding of the law. In short, since this is about your freedom, leave these battles to the pros.
While experienced appeals attorneys can be costly, there are a host of equal justice projects who do appeals work across the country pro bono. If you are unable to afford your own attorney and believe you have a worthwhile appeal, contacting any of those agencies is the first step toward the possibility of getting your case reviewed. While seldom is any outcome in the law absolute, going this route may help you at least get a sense of whether there’s any real chance for a successful appeal. Oftentimes, these agencies will be able to gauge upfront whether you meet the criteria for an appeal and also assess how strong the issues are surrounding your case.
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*DISCLAIMER: Nothing in this column should be construed as legal advice and is offered as information only. Readers are advised to consult an attorney with knowledge of the specific state laws within their local jurisdictions.
Charles F. Coleman Jr. is a former Kings County (Brooklyn), NY prosecutor and presently functions as a federal trial attorney. Follow him on Twitter: @CFColemanJr.
George C. Gardner III is a graduate of the Howard University School of Law and has practiced in government, nonprofit, and private sector settings. His experience includes constitutional civil rights law, commercial litigation, and transactional matters in the small business context. He is licensed in the State of New York where he has recently transitioned into solo and freelance practice. Follow him on Twitter: @ggiii.