Divorced father seeks equal protection

Bob Unruh :

A case is developing in a Tennessee divorce dispute that one attorney believes could impact custody decisions nationwide because it calls down the authority of the 14th Amendment's equal protection clause to help fathers who are good parents and want to remain involved in their children's lives.

The attorney, Stanley Charles Thorne, told WND the issue in the case at hand will be significant, since there are 3,000 divorce or custody cases in courts across the U.S. daily.

And according to the Children'sJustice.org website, those cases leave nearly 38 percent of the fathers with no access or visitation rights to their children.

The federal courts do say that parents have constitutional rights under the 14A, but they rarely do anything about it.

Canadian alienation decision

A reader sends this Canadian decision:

In a stunning and unusual family law decision, a Toronto judge has stripped a mother of custody of her three children after the woman spent more than a decade trying to alienate them from their father.

The mother's "consistent and overwhelming" campaign to brainwash the children into thinking their father was a bad person was nothing short of emotional abuse, Justice Faye McWatt of the Superior Court of Justice wrote in her decision.

The three girls, ages 9 to 14, were brought to a downtown courthouse last Friday and turned over to their father, a vascular surgeon identified only as A.L.

Their mother, a chiropodist identified as K.D., was ordered to stay away from the building during the transfer and to have her daughters' clothing and possessions sent to their father's house.

McWatt stipulated that K.D. is to have no access to the children except in conjunction with counselling, including a special intensive therapy program for children affected by "parental alienation syndrome." The mother must bear the costs.

Harold Niman, the father's lawyer, said the decision serves as a wake-up call to parents who, "for bitterness, anger or whatever reason," decide to use their children to punish their former partners.

The full decision is here.

I have heard of decisions like this in the USA. The judge in the case was a woman. Maybe women have a better understanding of what other women can do.

Here is a Canadian story about onerous new alimony guidelines.

Mandela, King, and Gandhi

The Illinois governor defends himself:

As he was taken from his home by federal agents on Dec. 9, Blagojevich told NBC, "I thought about Mandela, Dr. King and Gandhi and tried to put some perspective to all this and that is what I am doing now."

Funny. I think that I will use that line. On Nov. 16, 2007 my ex-wife had police agents take my kids out of their home. Everybody makes fun of Rod Blagojevich but I have to admire his resolve and his willingness to prove his innocence. He certainly isn't hiding behind his lawyers, as most people would.

No supervised visitation

After my ex-wife told the appeals court that it was my fault that I had not seen our kids, I made another attempt. She told the court that she would let me see them if it were supervised by someone on the court's list of approved supervisors.

So I hired a supervisor from the approved list. This supervisor was actually licensed, after having taken a course in how to do it. My ex-wife gave me a list of available times. But when it came time for me to see the kids, my ex-wife abruptly canceled. According to the supervisor, my ex-wife claimed that the supervisor had a "conflict of interest" because I had contacted the supervisor first. I don't know
what the conflict could possibly be, as the supervisor was not going to be judging anyone. It is just another phony excuse.

The court did not even require supervision. The supervisor is just my ex-wife's requirement. So far, no supervisor has been good enough for her. Some day our kids will learn the truth.

Commissioner Joseph to be ousted in June

I have now heard a rumor from a third source that Cmr. Irwin H. Joseph is being forced into retirement this June. He had wanted to be promoted to being a real judge, but that is just not going to happen. He has been passed over each time there was a vacancy.

We only have one family court judge in Santa Cruz county. Cmr. Joseph has had the job for 2.5 years. He was unfit for the job, and was terrible. But I won't be ready to celebrate his departure until I find out that his replacement will be better. The family court seems to draw bad judges.

The deal with CPS

In oral argument before the appeals court, the judge asked my ex-wife why she was not letting me see the kids. The judge pointed out that the order was for supervised and unsupervised visitation. My ex-wife alluded to the deal she made with CPS, and then said that she was "obligated" to "back them up and stand firm". Then she babbled about how Bret Johnson, the gay shrink, suggested counseling way back in 2004.

Some day my kids will learn that their mom did not let them see me because of a deal she made with CPS.

Another day in court

My ex-wife and I spent an hour in court trying to detail how we spent money ten years ago. Somehow Cmr. Joseph is going to study all the data and issue a decision in a couple of weeks on how much money I have to pay her. I have no idea what he will do.

Our hearing started a little late because another divorced couple was in the courtroom. Both were represented by lawyers. When we got there, the main issue seemed to be the husband's 105 marijuana plants. She wanted him tested. Cmr. Joseph said that because he had a California dope-smoker card, he could legally have THC in his system, and refused to order a test. His girlfriend has a card also, so they can smoke all the dope they want. Finally, the wife's lawyer asked that the husband and his new girlfriend not smoke dope in front of the kid. The husband agreed.

I thought that 105 marijuana plants could get you in trouble. But this is Santa Cruz, so maybe it is a sign of spirituality and good character. Maybe I should go get a few dozen pot plants and Cmr. Joseph would consider me a fit father.

I brought a laptop computer into court, and Cmr. Joseph quizzed me about whether it was recording device. I don't know why he keeps asking such questions. I thought that the court records everything anyway.

Cmr. Joseph still did not mention anything about sentencing me for contempt of court. As of now, we have no pending future court appearances. I would have thought that he would have to keep the sentencing on the schedule somehow.

DA denies bad conduct

I reported before about the DA concealing videotape evidence, and here is the other side:

A response from district attorney

The Mercury News editorial on the issue of VMC's videotaping of child sexual assault exams
(Editorial, Jan. 15) was misleading, and your suggestion that prosecutors may have knowingly withheld evidence for two decades is outrageous.

There is no evidence that this office received videotapes, much less decided to withhold them from defense attorneys. In the case you referred to that was overturned, the Court of Appeal explicitly found that we did not withhold evidence. Rather, it decided that if medical personnel made such tapes, we were responsible for giving them to the defense even if we never knew about them. Your suggestion that we "brought this upon [ourselves]" is irresponsible.

The timing of your editorial is also disturbing. We previously told your writer that we are gathering information on the affected cases and will provide everyone with a full accounting of what happened. Why pretend that we need your urging to do so?

Dolores Carr
Santa Clara County District Attorney

Note the carefully worded denial. There was testimony that the DAs knew about these tapes and withheld them since 1991. And now the DA complains about being rushed to explain themselves?!

No DA should ever be using official child interviews in court unless those interviews are video-recorded. The law requires that defendants being given copies of any state evidence that might possibly exonerate him. It is outrageous that the San Jose Calif. prosecutors have been violating these basic principles since 1991 and still making lame excuses about it. It is no excuse that the tapes were not actually stored in the DA's office.

It is all about money

The South Dakota court ruled:

PIERRE, S.D. (AP) – A Plankinton farmer is not entitled to custody of his son because he failed to pay the full amount of child support he owed for several years while the boy was living with his mother, the South Dakota Supreme Court ruled Thursday.

The high court’s 3-2 ruling overturned the decision of a circuit judge who had given Michael W. Schroeder primary custody of his 5-year-old son, Thomas.

The Supreme Court majority said Circuit Judge Timothy Bjorkman erred when he found it would be in the child’s best interests to live with his father.

Yes, it is all about money. The court likes to say that it rules based on the Best Interest Of The Child (BIOTCH), but that can be overridden by squeezing someone for money.

Evaluator appointments violate the rules

I believe that some California counties are violating the law on appointing child custody evaluators, and you can see it on their web site forms.

Elkins v Superior Court (2007) said that family courts had to follow the same rules of evidence as any regular civil case. In re Seagondollar (2006) said that a child custody evaluator appointment must state purpose and scope, as in Rule 5.220. In re Marriage of Matthews (1980) said that a family court judge cannot delegate a custody or visitation decision to an evaluator.

See Forms FM-1056 and FM-1057 on the Santa Clara forms, or Form SUPCV-1054 on the Santa Cruz forms. These forms pretend to comply with the law by using some generic language and a few checkboxes. The rule says that a child custody evaluation must have a written order from the court specifying its purpose and scope, but these forms attempt to satisfy that by just having a checkbox for "a full custody or visitation evaluation".

More outrageously, the forms have these checkboxes:

A. ASSESSMENT/EVALUATION RECOMMENDATIONS:
The recommendations resulting from the assessment/evaluation shall address the issues checked below:
[ ] Legal Custody, may include division of authority for decision making
[ ] Physical Custody
[ ] Visitation
[ ] Whether visitation shall be supervised, and if so, by what type of program and for how long
[ ] Exchange provisions designed to protect the child from exposure to extreme conflict or domestic violence, and to
protect the safety of all the parties
[ ] Move-away issues
[ ] Whether either party shall be required to attend counseling, rehabilitation, parenting, or co-parenting programs,
substance abuse counseling domestic violence programs, and, if so, which programs and for how long.
[ ] Whether the child shall participate in counseling programs and, If so, the method for selecting the counselor
[ ] Other:
[ ] Other recommendations related to any of the above issues necessary for clarification or implementation of the recommended order, or otherwise required to address the health, safety, welfare, and best interests of the child.

There is no legitimate reason for a psychologist to ever give a recommendation on legal custody. He might have an opinion on the personality characteristics or mental disorders of the parties, but none of these things would ever be decisive on legal custody. Legal custody is only for the court to decide, and is based on facts that cannot possibly be available to the psychologist.

The psychologist should also never be giving a recommendation on whether anyone "shall be required to attend counseling". He might have an opinion about whether some particular type of counseling might be beneficial to someone, but he does not have the training or the authority to require anyone to do anything. I believe that it should be unethical for any psychologist to accept any such assignment.

Transcript delayed again

I just got a message from the court reporter, whom I paid a couple a months ago to prepare a transcript. She says that she is busy with other transcripts, and she has orders to give them higher priority than me. She assured me that she will get to mine as soon as she finishes all her high-priority transcripts, but she does not know when that will be.

The previous time, my appeal was delayed for months because the court reporters had an assortment of petty excuses, such as moving or having her computer in the shop.

This is ridiculous. The court should have court reporters who can produce transcripts in a timely manner. If they are overworked, then the court should hire more. What good is a court reporter who cannot produce a transcript?

These court reporters are obsolete anyway. It would be easier for me to just make my own transcript from a recording. Or the court could record the sessions and email the recording to India. Then everyone could have a transcript the next day. It sure would be a lot cheaper, faster, easier, and more reliable.

Money trial today

I just got out of another hearing on money issues before Cmr. Joseph. These things seem to continue without end. My ex-wife introduced 100s of pages of exhibits. I don't know what he is going to do.

I had been scheduled to be sentenced for contempt of court today, but no one mentioned. My guess is that the judge is supposed to either act on the matter or keep it on the calendar. If so, he'll probably put it back on the docket for some future date.

My ex-wife thought that I was over-dramatizing my condition when I told the appeals court yesterday that I was scheduled to be sentenced for up to five days in jail the next day. She says that Cmr. Joseph wants to just keep the sentence hanging over my head, without actually sentencing me. Maybe so, but it was correct that I was scheduled to be sentenced. Surely some day Cmr. Joseph will get tired of requiring us to appear in his court, and he will have to decide to do something.

Our trial was interrupted by a divorcing couple that had agreed to settle everything on their own terms, except for one minor financial matter. Their settlement did not involve child support or any of the usual consequences of a court-ordered dissolution. Cmr. Joseph didn't know what to do with them. He kept trying to sell them on what he would order, but his plan was not suited to either of their needs and they were not interested. He also kept assuring them that they could come back into court later, break their current deal, and get court-ordered child support. He wanted to make sure they understood that they were turning down an opportunity for the court to run their lives. Except he did not put it that way, of course. It did not appear to me that the couple got their one financial disagreement resolved, so I guess they will be back in court later.

Another distraction was that there was a class of kids on a field trip who visited the courtroom. Normally Cmr. Joseph does not allow kids in the courtroom. I don't think they got a very good example of court action as no one was on the witness stand and the judge asked most of the question. In a real court, the judge does not question the witnesses.

Argued my appeal

I just got out of the appeals court. There were three cases scheduled for the morning session. The first was a sex offender who was being held beyond the end of his sentence. That case was canceled with no explanation. The next case was a free speech case. One guy made a police report about someone who tripped on a steel cable while riding a dirt bike, and nearly killed. The report resulted in a criminal charge, but the defendant was eventual acquitted and sued the guy who made the report. The lawsuit was dismissed and appealed.

I was tempted to say that I had a much better free speech case than that. The guy will probably win, but he did make a report that caused someone a lot of grief and that turned out to be false. I was punished for telling the truth, and it never caused anyone any grief.

The appeal panel was Patricia Bamattre-Manoukian, Nathan D. Mihara, and Richard J. McAdams, the same as the one that rejected by writ petition. But when I started, McAdams left and was replaced by Wendy Clark Duffy. Judge Bamattre-Manoukian seemed to be the one in charge, and was the only one to do any talking. She showed a general familiarity with the case, as if she had spent about 20 minutes preparing for it. I don't know whether the others had looked at the paperwork at all.

I started by saying that my kids had not seen me for over a year. Judge Bamattre-Manoukian immediately interrupted me, and pointed out that the court order was for visitation. I explained that Cmr. Joseph had delegated the visitation to Elizabeth Lee, and she refused to do it. Cmr. Joseph refused to name a replacement, or to accept a replacement that I found. My ex-wife had independently refused to let me see the kids.

Then I announced that before discussing the evidence, I wanted to explain what evidence was NOT in the case. Judge Bamattre-Manoukian immediately interrupted me again, and told me that since I was not a lawyer, I might not understand the way appeals worked. The appeals court, she said, can only consider the evidence on the record. I assured her that I was only going to argue based on the record.

She had misunderstood me, so I continued with what I was going to say. I argued:

No witness has testified that 50-50 custody would be unsatisfactory. No witness has testified that I ever committed any single act of abuse, or that there is any physical abuse, sexual abuse, or child neglect, or that I am associated with alcoholism, drug abuse, domestic violence, psychological disorder, or other character defect. No witness has testified that Julie is any better parent than I am, or that the kids have been harmed in any way, or that the kids have any behavior problems that are attributable to me. No one has ever explained any better way to treat kids than what I have done. No one has argued that there has been any change of circumstances since our trial in 2005. No witness said that I needed counseling, or that more evaluations would do any good.

At this point, Judge Bamattre-Manoukian was getting really eager to hear my ex-wife's argument. The judge had agreed to let me talk for 30 minutes, but I was being cut short after about 10 minutes. I guess my statements must have seemed incredible to her.

My ex-wife claimed that I had distorted things, but she could not refute anything.

When I got the lectern back, I continued to list outrageous things that Cmr. Joseph had done in the lower court. I don't know whether the judge was believing me or not, but my ex-wife could not refute anything. At one point, my ex-wife was given a chance to refute the statement that I had never done anything wrong. She could only mumble something about how I did not do all of the counseling that a court worker had recommended back in 2004, and that I had once kept the kids home from school for a day. She admitted that she does not let me see the kids, but said that she sometimes lets me talk to them on the phone.

I kept talking as long as the judge would let me, and we argued before the court for about 45 minutes. The judge kept hinting that she had gotten my point, but I could have jabbered for another two hours about all the lower court errors. I ended by asking the court to reverse Cmr. Joseph's order in its entirety. The judge said that we would have a decision within 90 days. (According to the California Constitution, she cannot get paid her salary otherwise.)

Oral argument to appellate court

Tomorrow I will be making my oral argument to the appellate court in San Jose. There are three cases scheduled for the morning session, from 9:30 to 12:30. I do not know what order the cases will be called.

This time the appeals court has to listen to me, and to issue a ruling. It cannot just deny my request without comment, as it did last time.

Family court does not want reasons in assessments

This order is posted in the family court:

SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
STANDING ORDER RE FAMILY DIVISION LOCAL RULE 2.C.(3)a.

The second sentence in Family Division Local Rule 2.C.(3)a. was inadvertently not deleted in revisions effective January 1, 2008, and therefore will be deemed deleted effective immediately. The sentence reads as follows: "An assessment shall provide, in addition to the recommended orders, a brief statement setting forth the reasons for the recommendation that are being made."
Dated: February 5, 2008

Hon. Patricia M. Lucas
Judge of the Superior Court

Confusing? Let me explain. When a family court judge has trouble justifying a child custody action, he farms it out to a shrink to do his dirty work. The shrink interviews the parties, writes a report about the situation, and makes a child custody recommendation. The judge then accepts that recommendation as an expert opinion.

Apparently the rules once had the sensible requirement that an assessment should explain the reasons for the recommendation. In a legitimate assessment, that explanation is the heart of the expert opinion.

The problem is that if the assessment includes the reasons for its conclusions, then the parties to the case are able to challenge it. For example, if the reason is an unverified accusation of domestic violence, then someone could try to prove that the accusation is false. If the reason is that Russians are crazy people, then the prejudice could be challenged in court.

The Santa Clara court not only removed the requirement for an assessment to state reasons for its recommendation, it issued an order that makes it clear that the court really does not want those reasons. Having the reasons in writing makes it too easy for someone to contest a faulty assessment.

This is completely contrary to the way the law is supposed to work. If you were in an ordinary lawsuit for damages in a car accident or any other matter, the judge would never permit an expert witness to testify about how much money ought to be paid without giving detailed reasoning explaining every dollar. It is the duty of the fact witnesses to state facts, the duty of the expert witness to give reasoning, and the duty of the judge and jury to make conclusions.

The family court makes a mockery of this procedure. Instead of deciding legal disputes in court as it is supposed to, it uses shrinks who can violate all the rules of evidence and make the decisions out of court. The above order shows how corrupt the process is.

Divorced man wants kidney back

The UK BBC reports:

A US man divorcing his wife is demanding that she return the kidney he donated to her or pay him $1.5m (£1m) in compensation.

Dr Richard Batista told reporters that he decided to go public because he was frustrated at the slow pace of divorce negotiations with his estranged wife.

He said he had not only given his heart to his wife, Dawnell, but donated his kidney to save her life. ...

He told reporters at his lawyer's office in Long Island, New York, that going public was a last resort.

"There is no deeper pain that you can ever express than betrayal from somebody who you love and devoted your life to," he said.

He said he had been prevented from seeing their three children for extended periods.

"I felt humiliated, betrayed, disrespected and disregarded for me as a person, as a man, as a husband, as a father."

He really just wants to see his kids, but he is not getting any credit for giving a kidney.

Prosecutors knew about sex-assault videotapes

The San Jose Mercury News reports:

As hundreds of child-sex-assault convictions hang in the balance, the Santa Clara County District Attorney's Office is backing away from its previous insistence that its prosecutors had no idea the medical examinations of suspected victims were routinely videotaped.

But the district attorney's evolving position only deepens the central mystery surrounding the tapes, which were made by a nurse working in conjunction with prosecutors to build child-sex-assault cases: Why did the district attorney fail to turn over this potentially critical evidence to defense attorneys, as the law requires?

Why? Because the kind of people who are in the business of taking kids away have no sense of fairness. They have no interest in presenting objective evidence to the court. They want to eliminate due process and bully the parents.

Videotapes should be routine in all these cases. If the judges were doing their jobs right, they would dismiss cases with no videotapes. There is just no excuse for not recording the evidence in a way that allows it to be examined later.

Judges can abuse contempt power

A reader says that I am lucky that Cmr. Irwin Joseph could only give me 5 days in jail for contempt of court. The Wall St. Journal reports:

One can spend a long time in jail in the U.S. without ever being charged with a crime.

It happened to H. Beatty Chadwick, a former Philadelphia-area lawyer, who has been behind bars for nearly 14 years without being charged.

Businessman Manuel Osete spent nearly three years in an Arizona jail without ever receiving a criminal charge. And investment manager Martin Armstrong faced a similar situation when he was held for more than six years in a Manhattan jail.

All three men were jailed for civil contempt, a murky legal concept. Some scholars say it is too often abused by judges, to the detriment of those charged and their due-process rights. "These results of too many civil-contempt confinements are flatly outrageous and often unconstitutional," says Jayne Ressler, a professor at Brooklyn Law School.

In some contexts, the federal system limits civil-contempt confinement to 18 months. Some states have similar limits. But in other states, judges face few restrictions on how long someone can be held in civil contempt.

A judge generally can issue either a civil or criminal contempt charge whenever he or she feels that a party has disobeyed an order or has disrupted a proceeding.

This is another example of how judges have too much power.

Steve Wilkos Show

I happened to watch the Steve Wilkos Show today. I had never heard of it, but it seems to be a trashy daytime TV talk show whose purpose is to humiliate people on stage. Today the target was a mother who lost her kids to CPS. Two daughters were there, as was the adoptive mother who had clearly raised those kids to hate their real mother.

And the daughters did hate their mother. So much so that they could be in therapy for the rest of their lives. The two used the same lines, so they appeared to have been coached to say hateful things.

The accusations against her were vague and bizarre, such as ritual animal sacrifice and drinking blood. The mother denied the charges, but did not do a good job of defending herself. The host kept saying that (1) she must be guilty if CPS had taken her kids, (2) she must be crazy if she had been seeing a shrink, and (3) she must not have loved her kids if she had let the authorities take them away without violence.

Is Wilkos an idiot, or just malicious? CPS does take kids away on bogus charges. Once they do, it is nearly impossible to prove innocence. The poor woman had to see a shrink, because CPS required her to. That is how CPS works. The woman contested the charges in the courts. If she had threatened violence, then she would have surely lost all her rights, and probably ended up in jail as well. You cannot fight CPS by threatening violence.

Update: Here is an example of what happens when you refuse a CPS request -- the Mass. father got charged with kidnapping!

Bail was set at $1,500 cash yesterday for a Penn Avenue man accused of striking his 12-year-old daughter with a belt, then refusing to turn her and her two siblings over to the state Department of Children and Families.

Javier Ortiz, 41, of 91 Penn Ave., was arraigned in Central District Court yesterday on charges of assault and battery with a dangerous weapon and three counts of kidnapping of a minor by a relative.

Arkansas man gets framed on false charges

Think men and women get treated equally in court? Here is news from Arkansas:

A University of Arkansas employee faces charges for recording a teenage girl in the shower even though his girlfriend told police she did it to get him in trouble.

Kevin Dale Robinson, 35, was charged Tuesday with possessing or viewing matter depicting explicit conduct involving a child and video voyeurism.

Robinson is accused on Oct. 6 of possessing nude images of a 16-year-old girl and using a digital camera to secretly record her while she was taking a shower.

Robinson who works as a systems programmer for the UA's information technology services department, told Fayetteville police when he was arrested Nov. 12 that he did not take the video recording of the teenage girl.

He said his longtime girlfriend, Lela Churchwell, took the video herself in an effort to get him in trouble, according to the arrest report. He also produced for police an e-mail from Churchwell sent Oct. 21 in which she admitted to being a pathological liar and setting him up.

Robinson told police the whole incident was concocted by Churchwell because she was jealous of his close relationship with the victim and two other juveniles. Police did not consider his story to be credible or believable and arrested him on probable cause.

On Nov. 13, Churchwell told police that she had recorded the nude shower footage but told the victim and police that Robinson did it to get him in trouble. She said she tried to convince Robinson that he did it when he was drunk.

She also told police she had become pregnant by another man and she planned to blackmail Robinson so he would move out of the house and she could stay there while he paid the mortgage.

Churchwell was arrested on probable cause on charges of video voyeurism, theft of property and filing a false police report.

She was charged on Dec. 12 with second-degree battery. Other possible charges she was arrested on are pending.

In the battery case, Churchwell is accused of striking Robinson in the head with a shovel on Oct. 12 - when police responded to the initial call from the victim about being recorded in the shower.

The victim told police that Churchwell struck Robinson with the shovel after catching him using a digital camera to take shower pictures.

Churchwell told police she was very intoxicated when she smacked Robinson in the head two or three times with the shovel. After the last blow, Robinson "fell over onto the ground like a rag doll," she said, according to the police report.

So his unfaithful girlfriend gets in a jealous drunken rage, beats him unconscious with a shovel, video records an underage girl, frames him on false charges, and makes a false police report. And yet the man is being charged with a crime. It seems to me that he is the victim, not the girl.