Wednesday, December 12, 2012

Parental rights for Ex-felons

By
Wilson Manyuira
Introduction
Felony
While the term felony has evolved in its meaning and according to various state laws, there has been a mutual agreement in regard to its definition. It has been agreed conventionally that felony is a crime that is serious enough to be punishable by death or a jail term not less than a year in a state or federal prison. It may however be less than a year depending on the discretion of the sitting judge and within the limits set by the statutes of a given country’s constitution. Some examples of felony crimes may include; terrorism, rape, arson, treason, kidnapping, burglary, Murder and generally crimes that offend predominant morals. While the consequences that attract various felonies varies, a felony crime may be directed to any person or group of persons, ranging from total strangers to the inner circle of ones family
Parent rights
Though the laws of many countries are ambiguous on what are parental rights/responsibilities, there exist some general responsibilities that one must fulfill as a parent. This rights include Custody; providing a home for the child, protecting and providing for the child, educating and making choices for him/her, Paternity/ Maternity; behavioral discipline for the child, living with the child, giving the child a name, making decisions on the children’s medical care and religion, responsibility of the child, travelling with the child and appointing a guardian for the child where necessary.  Many state laws grant parental rights to biological parents or any other guardians on exceptional cases. This is incase biological parents are either in one way or another incompetent to live with the child or they are dead/ there presence not known.
Thesis statement
Termination of the parental rights is a court order served to all parents that permanently/temporarily severs the legal parent/child relationship when the court finds one/both parents as incompetent to raise the child or one/both have given up these rights so that an adoption can occur. Parental rights may be terminated on various grounds, committing of a felony being one of them. Other reasons may include loss of sanity, surrendering them for adoption to take place, death of parents’ e.t.c.
Parental rights may be classified into to three major facets and may vary depending on the gender of the parent in question. They are: - custodial rights, visitation rights and paternity/maternity.


Scope of work
Custody rights.
In normal circumstances felony conviction(s) does not affect retention of ones children’s’ custody. Custody arrangements conferred upon by interested parties will remain the same unless the child’s second parent or guardian applies for change of these arrangements. It is therefore clear that children’s custody will remain the same even after serving incarceration. Incase the custodial rights for the child has changed hands, one  have the right to file with the relevant courts to recover this custody rights upon his/her release (upon achieving status of an ex-felon).However, if one had committed the felony against ones’ own child, chances are almost nil of regaining these rights.
Visitation rights
Unsupervised
A petition may grant back visitation rights to ones child in case he/she had lost it upon internment.  By standard of many state laws, ones status as an ex-felon has minimal if any influence on ones rights to see his/her children, unless the court determines that ones status as an ex-felon or the felon he/she had committed places the children in direct danger.
Supervised
Once the court has denied visitation rights, one may apply for supervised visitations. Supervised visits are available even when the crime committed was domestic violence and the court determines being supervised while with the kid is to his/her best interests.
Parenthood.
Paternity
If the child in question was born before or during confinement, and you suspect he/she may be yours, you have the right to establish paternity. Establishing paternity procedure includes filling an application with the court and undergoing a DNA test. However the precise process of determining paternity depends on particular state laws
Maternity
While it is less controversial when it comes to Motherhood for obvious reasons, it may sometimes be important to undergo a DNA tests when maternity is contested for an ex-felon and usual goes through the same procedure of establishing paternity.
Body Of Work
Wilson Vs Seiter (1991)
In a series of cases beginning 1976, many US citizens sought to know whether there Government was compliant to international human rights for ex-offenders among them parental rights. In Wilson Vs seiter (1991) the court firmly established the subjective components of the US laws ruling in favor of Prison wardens and other legal administrators. This was widely Critised by human rights activists among them Mohammedu F Jones of the National Prison Projects, American Civil Liberties Union, who viewed this as incompatible with the universal standards.[1]

Rose Moraa & another V Attorney General [2006] eKLR.

In a case at a Kenyan High Court a case filed by a minor through her friend And CRADLE a NGO in East Africa, the plaintiff was legal direction of the child’s custody after being defiled by her father. The father subsequently served a jail term and upon completion of incarceration he enrolled for rehabilitation and started a business later on. After success of this business the man sought visitation rights by mutual agreement but the mother refused. The mother however demanded financial support for the Kid. In delivering his ruling the high court judge quoted several sections of Kenyan Law and other Laws before concluding that the Man should take up his paternal responsibility but at the same time be allowed Supervised visiting’s to the minor. [2]

A.O.G. v S.A.J. & another [2011] eKLR

In an Appeal case filed before the court of appeal of Kenya, it raised fundamental issues of law on the rights and welfare of the child, and particularly the usefulness of the children Act 2001:Laws of Kenya.  In regard to rights of ex-felons in parenting and applicability of international conventions on domestic issues of Kenya. It must be remembered that it was around this time that Kenya allowed its prisoners to vote for the first time during there historic referendum.

April Vs Micheal(2011)

            The cases presided over by respected judge, Timothy J. Lawliss under the laws of US under the family court act, the judge found no mistake in awarding custodial rights to an ex-felon.
Other cases
 There may other judicial cases that clearly indicates parental rights for ex-convicts is still a contested matter.
Conclusion
 When parental rights has been terminated for committing a felony, Most if not all parents seek to regain these rights after the incarceration period. When brought before a chamber of jurists for a ruling, the judge(s) may consider a number of factors that will determine whether one will gain back parental rights or no. this factors are; the felony charge(s) and whether they have direct impact on the child, completion of the felony sentence, correctional efforts, any current child obligations, consistent in visiting your children and whether you have a bond with your child.
The matter of Rights of Ex-convicts in parenting or after serving there incarceration periods emanates an emotive debate and may require legal opinions for legal experts.












References
  1. Arthur, P& F, Morris. (1970). Marriage laws in Africa. Nairobi, Law Africa.
  2. Southern African commercial catering and allied workers union. (1991).Sharing the load: the struggle for gender equality, parental rights and childcare. Johannesburg, SACCAWU
  3. http://www.saclaw.lib.ca.us/pages/termination-parental-rights.aspx
  4. Kathryn, K et al (1994).California Family law: Practice and Procedure (2nd edition). New York, M Bender.
  5. Elizabeth, H. (2006). The disenfranchisement of ex-felons. Google books.



[1]US conformity to international standards for human rights on ex-offenders rights”. Criminal justice: an introduction By Philip P. Purpura

[2] “The challenged difference does satisfy both criteria in our view.  At the moment we find no other better option of dealing with the situation other than as set out in the sections.  It must be recalled that the Act took the best provisions of the repealed Children and Young persons Act, Guardianship – Adoption of Infants Act and other laws affecting children and the relevant International Conventions among others and codified them as one” http://kenyalaw.org/CaseSearch/view_preview1.php?link=52059670741650507235207


[i] Wilson Vs Seiter (1991), A.O.G. v S.A.J. & another [2011] eKLR, April Vs Micheal(2011),Rose Moraa & another V Attorney General [2006] eKLR, Other cases,

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