Judge gets fired for reviewing evidence

Glenn Sacks reports:

Virginia judge James Michael Shull, who smoked out a woman who sought to extend a restraining order based on false charges of domestic violence, was just removed from the bench ...

The other complaint against the judge was that he once decided a family court issue by tossing a coin. The VA supreme court didn't say that there was anything wrong with tossing a coin or ruling in an arbitrary way, but it said that it was bad for the dignity of the process to tell the litigants that he was tossing a coin. It would have been better to toss the coin secretly, and to never reveal his process, according to the reasoning.

The judge's main offense was that he asked to see a thigh wound on a woman who was asking for a domestic violence restraining order. It turned out that the wound was self-inflicted. The judge should be commended for examining evidence and rejecting a phony claim, not fired.

The VA supreme court said that the judge should have been more sensitive because the woman had a "clear history of mental instability", and wore pants to court. I guess the trick to getting a restraining order in Virginia now is to just act like a crazy woman and refuse to show your evidence.

Suspect has kids shipped to Russia

Here is the story of Hans Reiser, a computer genius who is now in jail under suspicion about the disappearance of his Russian wife. No body has been found, and the evidence against him is very weak. There are other plausible explanations for her disappearance. But the article does not even mention this:

Of everything that the Oakland Police did, sending the kids to Russia is by far and away the most bizzare and perhaps even illegal (on the part of the Oakland Police) action in this case. In spite of the fact that the children were born to two (at the time) American citizens... Hans and Nina... and that they were also born in the USA, Russia is claiming that they are Russian citizens and refusing to grant a "passport" for either child or an "exit visa".

On this particular issue, I think Hans has a reasonable chance of a successful lawsuit against the Alameda County prosecutor's office, particularly if he is acquitted. By California State law and U.S. Federal guidelines on the subject, those children should not have been allowed to leave the state of California, much less been granted a U.S. Passport to leave.

Americans are supposed to be innocent until proven guilty. What possible justification could have been given for deporting a couple of American kids against the wishes of the only parent available?

Ordeal not over for NC man

From Overlawyered reports:

Dwayne Dail spent 18 years in a North Carolina prison on false charges of rape. When he got out based on new DNA findings, his ex-girlfriend promptly sued him for child support. (Mandy Locke, "Dail, expecting $360,000, sued by ex-girlfriend", Raleigh News & Observer, Oct. 24; "Wrongly Convicted Man Sued for Child Support", WRAL, Oct. 23; "Prosecutor: Wrongful Conviction Is 'Nightmare'", WRAL, Aug. 29; "Dwayne Dail responds to lawsuit", Goldsboro News-Argus, Oct. 28).

Using MySpace for legal evidence

A lawyer columnist writes:

In one case, Malbrough said she helped secure shared custody for the father after finding his wife had posted sexually explicit comments on her boyfriend's MySpace page. In another case, a husband's credibility was questioned because, on his MySpace page, he said he was single and looking.

Lawyers in civil and criminal cases are increasingly finding that social networking sites can contain treasure chests of information for their cases. Armed with printouts from sites such as Facebook and MySpace, attorneys have used pictures, comments and connections from these sites as powerful evidence in the courtroom.

One problem with family court is that any part of your private life can be invaded and questioned. What you think might be okay for MySpace could be attacked in court.

If I were represented by a lawyer in my divorce case, I am sure he would have told me to shut down this blog. My ex-wife did try to use it against me, by submitting selected printouts to the judge and court experts.

Mom’s religion dominates custody hearing

A Tennessee paper reports:

A Maryville woman who went to court on Aug. 14 for a child custody hearing says she was persecuted because of her religious beliefs at the hands of the Blount County judicial system.

According to Jo Anne White, what was supposed to be a standard child custody hearing turned into an almost hourlong "Bible study" in the courtroom in spite of the repeated protests of her attorney, Kevin W. Shepherd.

After a detailed discussion of her religious beliefs -- documented in court reporter transcripts obtained by The Daily Times -- and a brief recess to chambers, Blount County Circuit Court Judge W. Dale Young awarded temporary custody of White's two children to her ex-husband. The custody will be reviewed again in Circuit Court on Dec. 11.

While Young questioned White about one specific aspect of her religion, attorney Craig Garrett, who represented White's ex-husband, asked numerous probing questions about her faith. Of the 65 pages of court transcripts reviewed by The Daily Times, 41 pages deal directly with White's religious beliefs.

"We were discussing specific Scriptures and the details of end-times prophesy," White said. "My attorney kept protesting, but the judge kept it going for almost an hour.

"At one point, I told the judge, 'I didn’t write the Bible — so why are we discussing this?' ...

Calls from The Daily Times to Young’s office and home were not returned. Eugene Volokh, a law professor at the University of California-Los Angeles (UCLA) and expert on both child custody and religion in the courtroom, said, "A judge can’t say 'this religion isn’t good for the children' — you must have evidence.

"You have to be able to demonstrate that it isn’t in the best interest of the child.
"I think it's inadvisable to investigate someone’s religion in depth in the courtroom.
"This is not the kind of behavior we want to see from judges, but it doesn't necessarily constitute grounds for reversal."

While transcripts of the court proceedings do not state why the judge awarded temporary custody to White's ex-husband, they do show that religion was the primary topic of discussion in the courtroom that day.

I think that the real crime here is that a judge can make a custody decision and not even explain his factfinding or reasoning on the record. He can just make some arbitrary and predujiced decision, and get away with it as long as it doesn't put a stupid explanation on the record.

In this case, the judge quizzed the mom on whether the Bible says to celebrate the Sabbath on Saturday or Sunday. Either way, it should not be relevant to child custody.

Got another subpoena and remittitur

I just got a notice from my bank that it received a subpoena from my ex-wife.

I also got another remittitur from the court. I guess that means that the appeals court is turning jurisdiction back to the family court. Comm. Joseph told us in family court that it would notify us of a date for it to act on the result of the appeals court. That never happened for the last remittitur, and my ex-wife tells me that it won't happen for this one either.

I wonder how the average person can cope with the legal system when even the guy who has been running the local family court for the past couple of years doesn't seem to know how it works. Joseph was so positive that his clerk would send us a hearing date that he refused to put the matter on his calendar.

Meanwhile, my ex-wife asked me to sign a stipulated motion to postpone this month's status conference in family court. She says that her baby is a week overdue, and she is expecting to give birth any day.

Ordering labor without evidence

The San Mateo County child support system will have another tool to get parents to make payments under legislation recently signed by the governor.

State Sen. Leland Yee, D-San Mateo/San Francisco, sponsored the legislation, Senate Bill 523, which allows a judge to order an unemployed person responsible for child support to find a job at the initial hearing for the case. ...

"It's trying to be proactive," Yee said. "If the parents continue to be responsible for the financial health of their children, then they are less of a responsibility to the city and county."

The legislation will go into effect on Jan. 1, 2008, after Gov. Arnold Schwarzenegger signed it into law on Sept. 26.

After a judge's order, child support obligors must show proof every two weeks that they have applied for at least five jobs.

In other words, they want to maximize welfare reimbursement, so they passed a law allowing judges to order men to work without any presentation of evidence.

Life's Short -- Get a Divorce

ABC News reports:

An all-female law firm is turning heads in Chicago with a new billboard and a blunt message:

"Life's Short. Get a Divorce."

The billboard, sponsored by Fetman, Garland & Associates, Ltd., a firm that specializes in divorce cases, features the six-pack abs of a headless male torso and tanned female cleavage heaving forth from a black lace bra....

Father Spared from Paying Outrageous Massachusetts Child Support

A reader writes:

A recent Massachusetts family court ruling said they do not have personal or subject matter jurisdiction over a Father that lives in Ohio for child support. My former spouse tried to extort a massive increase in child support simply because the Father moved from WV to Ohio while their child and Mother live in Massachusetts. The Father appeared in Massachusetts family court by "Special Appearance" without an attorney and challenged the courts jurisdiction in the matter. A valid order was in effect from WV and Father claimed Massachusetts did not have jurisdiction. Because the Father was not served in Massachusetts and has never lived in Massachusetts, the judge ruled that Massachusetts does not have personal or subject matter jurisdiction over the Father and that Mother must go to Ohio to modify child support. Massachusetts family court ruled they have jurisdiction over child and Mother and will only hear modification of visitation. Ohio child support is roughly 1/2 the cost of Massachusetts which is thought to be the highest in the country.

New subpoena for records

I just got a subpoena for banking records from 1996 to 2003. I guess my ex-wife is still fishing for money.

The subpoena was issued thru a legal service company across the bay, but was unsigned. I've always told her that she can inspect my records whenever she wishes. I don't know why she'd bother to issue an official subpoena and then not even sign it. I wonder whether an unsigned subpoena is even binding.

Des Moines police investigate attack by onion

Iowa news:

A Des Moines man went to jail Wednesday afternoon for allegedly throwing an onion at his wife.

The police report begins: "(The victim) states her husband had been drinking and they got into an argument."

James Izzolena, 54, of 3515 Sheridan Ave., was charged with domestic assault causing injury. Police said he became upset with his wife, Nicole Izzolena, 27, and tossed an onion at her, striking her in the back of the head.

She told police it made her head hurt. James Izzolena admitted throwing the onion, police said, but he claimed he did not intend to hit her with it. He was being held without bond pending a court appearance today.

The next time that you hear that some man is in jail for domestic violence, remember that it might be something really trivial.

The best interest of the dog

A reader sent this story, and said "Now judges determine the best interest of the dog".

IN RECENT YEARS, Dr. Amy Marder, a veterinarian practicing in Lexington, has found herself called upon to decide which human "parent" a pet prefers.

Pet custody disputes have become an increasingly common fixture in divorce cases and Marder, an animal behavior specialist, has consulted in several. To do a proper evaluation, she likes to spend at least an hour and a half with the couple and the pet. She asks the owners a barrage of questions: which of the two spends more time with the animal, who plays with it more, who feeds it. She asks about the pet's upbringing, its temperament, how much it exercises.

Marder frowns on so-called "calling contests," a method used by lawyers in some custody cases, in which the owners stand at opposite ends of a room and call the pet to see which way it will go. She prefers to observe the animal's body language as it interacts with its owners. She looks at whether it sits closer to one or the other, and how it reacts when each pets it.

At the end of the session, Marder makes her recommendation, based not only on who she thinks would take better care of the pet, but whom she has decided the pet has a stronger bond with -- the same sort of considerations that would go into deciding a child-custody case. Sometimes she recommends joint custody, but only if she thinks the animal can handle it.

"Some animals think it's terrific to go live in two homes," she says. "Others have separation anxiety and splitting time would only make it worse."

At first, I thought that this was some sort of parody or joke. But this appears in the Boston Globe, a reputable newspaper.

I don't even agree with those idiotic custody evaluations when they are applied to (human) children. I just heard from a woman who lost a custody evaluation because of her appearance. Or maybe it was some other prejudice, as you can never be sure. All she knows is that the report cited her clothing and other trivial factors negatively.

1957 divorce movie on TCM channel

I just watched Man on Fire, a 1957 Bing Crosby movie about a nasty child custody dispute. (It is unrelated to the 2004 Denzel Washington thriller.)

The dispute was actually rather tame by today's standards. There were no accusations of domestic violence, alcoholism, drug abuse, or child neglect.

Crosby's wife ran off with a higher status man, and relinquished custody of their 8-year-old boy because she wanted to start a new family. But she has a miscarriage with the new husband and cannot have more kids, and sues for full custody. The boy, now 10, is strongly attached to the father and doesn't want to live with the mother.

Nevertheless, the female judge awards custody to the mother, and lets her move away to another city! The judge was portrayed as conscientious, but also arbitrary, capricious, biased, and cruel.

On one week's notice, the judge had briefs from both sides, and an investigator's report. It appeared that the parents were not allowed to see the report. The judge interviewed the boy with no one else present. The mother lies to the judge about why she waited two years to file for custody.

In the end, both parents are overcomed with noble thoughts, and offer each other full custody. Everyone agrees that the lesson from King Solomon was that a parent can prove greater love for the child by being more willing to give up the child. The father has the greater love, lets the boy go with the mother, and the father gets a new girlfriend. I guess that this is what the 1950s movie audience expected.

Broncos running back pays for multiple kids

A reader writes that cases like this explain why most white people lack sympathy for deadbeat dads and support draconian measures to collect child support:

Travis Henry just got tackled by a $3,000-a-month child support judgment.

Sure, the Denver Broncos running back has a $25 million contract and a base monthly salary approaching $50,000, but that kind of bill can still crimp your style when you're accustomed to expensive cars and fancy jewelry — and lots of other child support payments.

Southern states and has been ordered by various judges to provide child support for seven of them, according to court records involving one child living in DeKalb County.

DeKalb Superior Court Judge Clarence Seeliger this week ordered Henry to provide $3,000 a month for the Lithonia boy he fathered out of wedlock three years ago with Jameshia Beacham, now 29.

Henry isn't the most thrifty guy, according to court records, so the judge wants to ensure payment by establishing an unusual $250,000 trust that Henry must fund by next spring.

Seeliger wrote that the football player displayed "bad judgment in his spending habits," dropping $100,000 for a car and $146,000 for jewelry. Meanwhile, Henry fell behind on support payments for his child with Beacham that were mandated by a previous order. Threatened with jail, he borrowed $9,800 from his former team, the Tennessee Titans, to pay the bill, according to court records.

... Indeed, part of the custody arrangement Henry reached with Beacham requires two weekend visits when he is playing pro ball.

I guess the argument is that Henry is rich and irresponsible, so it is better to take his money away and keep his nine illegitimate kids off welfare.

I am just not sure the courts are solving anything, even in his case. He cannot take the kids on alternate weekends while he is playing professional football. His football career is likely to be over in five years, and he won't have the big bucks anymore. While Henry is squandering his money, the moms may also be squandering the money he pays them. Some of those women may have gotten pregnant deliberately in order to cash in on child support. Bad as this situation is, it may have been made worse by child support laws.

More from the appeals court

Here is the conclusion from the appeals court:

As evidenced by the court's comments on the record, the trial court considered the arguments and evidence submitted by both parties and did not simply ignore George's factual contentions. The attorney's fees order is well-supported, and we find no error in the court's ruling.

The June 20, 2006 attorney's fees order is affirmed.

In other words, the decision is approved because the judge listened to my argument. They don't care if I showed that Miss Gray lied to cheat me out of some money.

Appellate court makes me pay attorney fees

The California court of appeals just rejected my appeal. I had been ordered to pay $10k in attorney fees for my ex-wife, in addition to previous fees.

I appealed because the lawyer, Miss Jennifer J. Gray, filed a sworn declaration in support of the fees that was filled with lies. Even my ex-wife admitted on appeal that Miss Gray lied about the length of time she was on the case.

Jennifer Gray didn't just lie about how long she had been on the case. She lied in nearly every major point of her declaration. She lied about what she did on the case, about what I did, and about what the court did. She lied deliberately, and for the purpose of defrauding me out of money.

I asked Comm. Irwin Joseph for an opportunity to cross-examine Miss Gray. He refused, and awarded her $10k of the $14k she was asking.

Keep in mind that my ex-wife is a lawyer; I am not; she was represented by a lawyer; I was not; and the fees in question were for a losing attempt to gain custody of our two kids.

It still baffles me as to why Comm. Joseph is so eager to order payments to lawyers, even when the lawyer's claims are so totally without merit. He has shown much more interest in paying crooked lawyers than in children seeing their parents.

Man has to pay alimony to lesbian couple

Usually alimony ceases when the recipient remarries, but look at this case:

LOS ANGELES, California (AP) -- A judge has ordered a man to continue paying alimony to his ex-wife -- even though she's in a registered domestic partnership with another woman and even uses the other woman's last name.

California marriage laws say alimony ends when a former spouse remarries, and Ron Garber thought that meant he was off the hook when he learned his ex-wife had registered her new relationship under the state's domestic partnership law.

An Orange County judge didn't see it that way.

The judge ruled that a registered partnership is cohabitation, not marriage, and that Garber must keep writing the checks, $1,250 a month, to his ex-wife, Melinda Kirkwood. Garber plans to appeal.

California has a same-sex domestic partnership law that is supposed to be the same as marriage in most respects. I believe that the alimony would even be considered community property to the lesbian couple. The ex-husband should not have to support the lesbian couple.

Use martial arts class to win custody

Prof. Volokh, an indignant law blogger, writes:

From what is otherwise a pretty standard "best interests of the child" analysis in a child custody case, Foster v. Waterman, 2007 WL 2119125 (Iowa App. July 25):

Harold argues that Anjela is a child of one-fourth of Korean heritage and it is important for her to be allowed maximum involvement with her heritage.

Seems to me that courts have no business deciding, whether in a child custody case or elsewhere, how much and what sort of a connection a child should have "with her ethnic heritage." ... And it's just zany for a court to view a parent's willingness to enroll the quarter-Korean child in a martial arts class as remotely relevant to the child's best interests.

So a white mom get custody of a 7-year-old quarter-Korean girl in part by promising to enroll her in a martial arts class!

Volokh doesn't do family court cases, or he might be outraged by how all the other child custody cases are decided as well.

Preparing for a Broken Home

James Andrew Miller writes in the NY Times:

Dividing up money and assets after a marriage falls apart can be a mess, but it's often nothing compared with the agony and emotional torment of a custody battle -- dividing up the children. Money is, after all, only money ...

Engaged couples should enter into a new kind of arrangement, ... With a custody schedule outlined before marriage, children could have a single structure for their new lives from the moment their parents separate. They would know where they will be and when, they wouldn't have to witness their parents arguing about the details, and they might not be subjected to custody evaluations or, worse, be required to testify in court.

It ought to be that the marriage itself guarantees that the parents will have joint custody of the children. But that is no longer true, and the state courts do not uphold custody agreements.

In my case, I had a written and signed custody agreement and parenting plan. Judge William Kelsay ignored it, and ordered a custody change based on nothing but his own personal prejudices. He did not even accept any testimony or evidence. After a custody trial proved that he acted in error, Commissioner Irwin H. Joseph ordered another change contrary to the outcome of the custody trial. It took another six months to prove that he was in error, and get back to what our agreement said in the first place.

I appreciate Miller's suggestion that parents try to anticipate parenting and child custody, but his comments are directed at the wrong people. It would take a change in the law to make marital agreements about children to be binding.

Here is how Judge Kelsay treats a fellow judge, in an unrelated matter:

In 2004, Santa Clara County Superior Court Judge William Danser was convicted of eight misdemeanors in connection with a major scandal at his court house. In 2005, the California Commission of Judicial Performance found Danser had engaged in willful misconduct 32 times, and the following year he was convicted of a felony for fixing parking tickets for his friends and members of two street gangs. However, fellow Superior Court Judge William Kelsay later reduced Danser's felony conviction to a misdemeanor on the basis that the felony would hinder Danser from finding new employment.

I guess Kelsay figures that Danser can now legally answer No if a future employer asks him if he has ever been convicted of a felony. It seems dishonest to me.

Funeral Protester Charged in Flag Stomp

WashPost reports:

Omaha, Neb. -- A member of a Kansas group that has drawn criticism for protesting at soldiers' funerals was charged Thursday with misdemeanors after her son stomped on a U.S. flag during a demonstration last month.

Shirley Phelps-Roper, 49, of Topeka, Kan., was charged with negligent child abuse, contributing to the delinquency of a minor, flag mutilation and disturbing the peace.

That Kansas group is a bunch of kooks, but it is certainly not child abuse to let a minor stomp on a flag in a protest. It is legal to stomp on a flag. This just shows how the authorities can abuse these laws for political purposes.