Doctor Flea exposed in court

A legal blogger reports:

A Boston pediatrician blogging under the pseudonym Flea has been outed. It happened in court. During cross-examination. On his own medical malpractice trial. And now it is the top story in the Boston Globe.

Flea had written several posts about the upcoming trial, a wrongful death case involving a child. In the process he discussed his private prep sessions with his attorney, explaining how he had been coached to answer questions to be appealing to the jury, how he had been videotaped, and what materials his lawyers told him to read.

A lawyer would have surely advised him not to post blog opinions while the trial is pending. Conventional wisdom is that it can only hurt. The opposing lawyer will search thru all your comments, and pick out whatever makes you look bad. The judge will think that the trial belongs in his court only, and will not like any comments on blog. And the judge will certainly dislike any comments that make him look bad.

I started this blog knowing full well that if I had a lawyer then he would advise against the blog. He would say that it is too risky. I made the blog anonymous, but I knew full well that my wife would probably eventually discover it, and try to use it against me.

She did discover it, and then quietly waited until she could use it to maximal effectiveness. She told the judge about how I badmouthed the family court system, and told the court psychologist how I badmouthed inkblot tests. It didn't seem like any big deal to me, as I think that any reasonable person would be outraged by what I witnessed in family court.

I don't really know if this blog had any influence on any decision-makers in my case or not. It is too bad Doctor Flea settled his case, and it might have been a good experiment on how jurors might be influenced by some overly-candid online remarks. Some bloggers are assuming that Dr. Flea hurt his case by blogging, but I suspect that the case was in the control of insurance company lawyers, and they were very eager to settle just because they were nervous about having a client who goes against conventional wisdom. They like clients who do what they are told.

Update: There is still no public explanation for why Dr. Flea's case was settled, or why his blog was taken down. My guess is that Flea's insurance company lawyers didn't like him publicizing trial preparation tactics. Lawyers look after their own interests. The insurance company probably threatened Flea with a denial of coverage unless he shut down the blog and agreed to the settlement. I doubt that Flea voluntarily closed the blog, because it actually showed him to be pretty reasonable, and nothing really had any bearing on whether or not he owes any malpractice damages. A malpractice insurance policy will get you a legal defense, but possibly on terms dictated by the insurance company lawyers.

Child support movie

Someone made a new movie attacking the so-called child support system. You can view the trailers here.

Bermuda needs shared parenting

Stephen Baskerville writes:

Virtually every social pathology of our time — from violent crime to substance abuse to truancy — correlates more strongly to fatherless homes than to any other single factor, surpassing poverty and race.

Family courts, assisted by social services agencies and other government authorities, routinely take children away from fathers (and sometimes mothers) who have done nothing legally wrong and for reasons that have nothing to do with the children’s wishes, safety, health, or welfare. Most abuse of children takes place in homes without fathers.

Today in Bermuda, America, Britain, and other democracies, citizens who are under no suspicion of legal wrongdoing, find themselves summoned to court, stripped of their children, and even subject to criminal proceedings, not for recognised public crimes, but for how they conduct their private lives.

Anne Heche's husband says she's a bad mom

The Frisco paper reports:

Anne Heche's divorcing husband wants at least $33,000 a month in support and joint custody of the couple's 5-year-old son, saying the actress is a bad mother. ...

[Husband Coleman] Laffoon said Heche made some "very poor" parenting decisions in Vancouver, such as failing to provide Homer a car safety seat and making lunches that he did not like.

After one visit, she forgot to return Homer's favorite shoes and "his bedtime stuffed animals, which are very important to him and which caused him extreme distress," Laffoon said. ...

His court filing asks for at least $33,000 in spousal support for himself and estimates that living expenses for himself and their son, who lives with him, total $37,399 a month. An accountant hired on Laffoon's behalf submitted a court paper offering a guideline of $45,239 for monthly spousal and child support.

These cases sound kooky, but they are the predictable consequence of family court law. It doesn't matter whether the son can use that kind of money or not. If Heche earns big bucks as a TV star, then her ex-husband can demand support to live the same way.

Anne Heche sounds kooky all by herself. Her autobiography is titled "call me crazy" and says things like "I have been very clear to everybody that just because I'm getting married does not mean I call myself a straight."

Notice of oral argument

I just got notice that the court of appeals will hear my oral argument at 1:30 pm on June 28. Just one minor technical issue is at stake. I will post more details later.

Summary of my family court gripes

A reader asks me to summarize my gripes with the family court. Here are my biggest ones.

Judge William Kelsay ordered a custody change without even taking any testimony. He reduced me from equal custody with my ex-wife of my two daughters, as we had agreed in writing, to visitation two weekends a month and Wednesday afternoons. His only justification was to offer his opinion that child custody does not matter, and to admit that he had made a mess of all of his custody trials. I had to have a formal court trial to reverse what Judge Kelsay did.

Court psychologist and custody evaluator Bret Johnson interviewed me for an hour, asking only trivial questions, and wrote:

Father shall participate in a minimum of six months of thrice monthly individual counseling with a licensed therapist familiar with issues of healthy child care and safety needs to deal with the issues noted herein,, e.g., safety, supervision, insight into his own needs versus the children's, and other issues and shall continue as needed thereafter or until released.

I had to have a court trial to prove that his recommendations had no basis in fact or any recognized expert opinion, and to avoid court-ordered counseling.

Comm. Irwin Joseph delayed my return to equal custody of our kids for six months, even after I won the custody trial. He never offered any explanation, except that he wanted us to see additional court-appointed shrinks for ink-blot tests and other nonsense.

Comm. Irwin Joseph ordered me to pay an extra $900 per month, retroactively and prospectively, based on a goofy theory that I should have had a mortgage in my home. I had to file an appeal to a higher court to get that reversed.

I've heard worse horror stories. I've seen worse cases in court. Sometimes I've wondered if maybe there was more to the story. But I experienced the above myself, and there is no excuse for what the court did.

Best interest of the dog

The Seattle paper reports:

MEMPHIS, Tenn. -- A man who didn't have a will left a $2 million estate, but the most hotly contested item in court has been his golden retriever, Alex.

The four-way dispute over the 13-year-old pet was so intense, an attorney was appointed to represent the dog's interest. On Monday, the judge decided the man's divorced parents should split custody, The Commercial Appeal reported. ...

In the consent order the judge approved, the elder Callan and his ex-wife, Esther Snow Gnall, will trade custody of Alex every two weeks. Both parents also agreed to take the dog to the veterinarian for arthritis treatments and any other needed procedures.

Before the agreement was reached, the elder Callan had custody and took Alex to work during the day. The father has cats at home, though, so at night, the dog stayed with Callan Jr.'s former girlfriend, who had known Alex since he was a puppy.

The son's fiancee also was interested in Alex, and Gnall had said if she won custody, she would allow the fiancee to spend time with the dog.

Royal, the dog's attorney, said he believes all four people love Alex and would take good care of him, but they were using the fight for the dog to punish each other for past transgressions.

"This case is similar to a bitter custody battle involving children where each party loves the children, but the kids are stuck between two people who cannot coexist," the attorney said in his report.

This is pretty crazy. Dogs don't have any legal interests.

Three-way custody

Here is a Penn. case in which custody of two kids is divided between two lesbians and a sperm donor!

Update: There is another aspect to this story that I overlooked. A Penn. paper says:

A man who donated sperm for a lesbian couple's two children must pay support, the state Superior Court ordered in a ruling that legal experts are calling a precedent.

In reaching the decision, the three-judge panel said that since Carl L. Frampton Jr., who died while the case was pending, had involved himself as a stepparent, he assumed some of the parenting duties.

Legal experts say the ruling is unique in making more than two people responsible for a child. It also brings into question when a sperm donor is liable for support, though at least one expert said the ruling shouldn't worry truly anonymous donors. ...

As part of the Superior Court order, a Dauphin County judge was directed to establish how much Frampton would have to pay Jacob.

Reynosa, wants Frampton's support obligation, which might have to come from his Social Security survivor benefits, to be made retroactive to when Jacob first filed for support. His support payments might also help reduce Shultz-Jacob's monthly obligation.

So a dead sperm donor is being forced to pay support to a couple of lesbians who want to raise a child!

Dr. Phil on Alec Baldwin

Dr. Phil McGraw was on the Jay Leno TV show, defending Alec Baldwin in his custody battle. He said that no parent should be judged by one private conversation, and that parental alienation is rightly treated harshly in many states where it can result in a parent losing all rights. He implied that Kim Basinger was really the one at fault for releasing the phone recording to the press.

But then Dr. Phil recommends that the court appoint a guardian ad litem -- an attorney who will advocate the interests of the child.

Huhh? Baldwin and Basinger have been battling over custody in court for about five years already, and it is all going to be solved by getting another lawyer in on the action? I doubt it. The problem is that there is an incompetent judge who has already wasted too many years doing futile evaluations of trivial evidence. He should just split the custody and dismiss the case.

Appellate ruling, part 3

I am posting a summary of the appellate decision that was just published in my case. There were four legal issues from Comm. Joseph's family court orders that I was appealing.

1. Comm. Joseph ordered that I be taxed on my income as if I had invested in bonds instead of stocks.

George first objects to the court's imputation of a 3 percent rate of return on his stock market portfolio. ... George's argument that the imputation is invalid because the court has no authority to direct his investment strategy also is unavailing. The trial court has broad discretionary authority to impute income and need not defer to the parent's choice of investment. ... We therefore find no error in the court's failure to note "special circumstances" justifying the imputation of a 3 percent rate of return. In sum, we find no abuse of discretion in the court's imputation of income.

2. Comm. Joseph ordered that because I am not spending $3000 per month on a mortgage, then I should give 30% of that to my ex-wife.

George’s mortgage-free housing is not an employee benefit, nor is there evidence that it resulted from an effort to funnel income into a form that would not be recognized in the dissomaster calculation. We therefore conclude the court abused its discretion in including the purported rental value of George’s residence as non-taxable income. We reverse the December 20 child support order and remand to the court to determine the proper guideline amount.

3. California child support guidelines say that I should spend 60% of my after-tax income on my kids, but Comm. Joseph ordered that I spend an additional $500 per month on stay-at-home mom activities like dance classes.

Jill included a detailed list of the girls' activities over several months and the attendant expenses. ... After hearing George’s arguments on the subject, the court included a discretionary add-on of $500 in the child support order: "And that takes care of diminished ability to provide for things as varied as private school, tap dance, gymnastics, dance, dance teams, and other stay-at-home mom activities. I valued that roughly at $500 a month as being the obligation in order to maintain a standard that was previously enjoyed, half of which will be father’s obligation." We find no abuse of discretion. Section 4062 provides for discretionary add-ons to account for the specific needs of the children, including their educational needs. Moreover, the guidelines stress that the parents are mutually responsible for the support of the children, and that the children should be supported according to each parent's ability to pay and standard of living.

4. I objected to having to pay $6,500 in attorney fees twice, especially when a handwritten order from Judge Kelly said that I didn't have to.

Although the court at one point credited the $6,500 payment against the $20,000 order, it appears to have been a mistake. ... The order to pay an additional $6,500 in attorney’s fees is valid, is not contrary to the court’s prior orders, is not an abuse of discretion, and is affirmed.

Needless to say, I disagree with much of this.

Today's status conference

I just got out of a family court status conference with my ex-wife and Commissioner Irwin H. Joseph. I think that he wants to get rid of us. He pretended not to know about the appellate court ruling, and told us to go away and come back for 6 months. He said that he doesn't need to see us while we pursue discovery issues. He scheduled a status conference for us on Oct. 24, and asked if that was acceptable.

I said that I thought that we'd have to meet sooner in order to reconcile the child support order with the recent appellate decision. At that point he explained that he had read the appellate decision, and he made a point out of saying that he had been upheld on three of the four issues on appeal. He said that we gets gets official notice of the remand from the appellate court, the family court will send out notice of a scheduled hearing to deal with it. I asked about adjusting the figures for my ex-wife's current job, and he said that it could be done at the same time if it were stipulated, but otherwise I'd have to bring a separate motion. He admitted the obvious inefficiencies, but said that the court works that way, and we have no choice about it.

Then we left. I guess that I continue paying what I have been paying, for now.

Back to family court this week

My next status conference in family court is Wednesday. I sent in a one-page status conference statement a couple of weeks ago, with no proof of service. The clerk did not return it. I guess I am better off skipping the proof of service, as the clerk refused my statement the last time I submitted a proof of service.

Since then, I got the appeal decision, so my status statement doesn't mention it. One of the main objects of this conference should be to bring the mom support orders into compliance with the appellate decision. I'm not sure how that will happen, and I haven't written anything yet on how I think that ought to be done. The judge probably doesn't get reversed on appeal very often, so he may not even know what to do.

My ex-wife notified me today that she just mailed her status conference statement, and if I don't get it by Wednesday then she'll bring an extra copy to court. She will be reporting on serving subpoenas to my employers of the last ten years, and to banks and I don't know who else. She will tell the judge that she is preparing for a trial on certain financial issues. I don't really get what she is trying to prove, but I guess that I'll find out.

Using first names

One curious thing about my appellate court opinion is that it refers to me and my ex-wife entirely by our first names! I did that in my briefs, but the lawyers and court personel all seemed to prefer stilted language like "father" and "mother". Sometimes they would also last names, but that is confusing because my ex-wife's last name has changed a couple of times over the course of the case.

It makes sense for the court opinion to use first names; I'm just surprised because I've never seen a court opinion that did that.

Alec Baldwin rant

Here is the audio message that Alec Baldwin left on his 11-year-old daughter's answering machine. Ex-wife Kim Basinger used it in court to reduce his visitation privileges, and apparently leaked it to TMZ.com to embarrass him.

Apparently there is bad behavior all around here, but I mainly blame the family court for attaching such importance to messages like this. It is very common for parents to occasionally chew their kids out like this, and the courts would do nothing if there were no custody dispute. If it is legal for a parent in an intact family to speak harshly to his kids, then why should it be illegal for a divorced dad to do it? By acting on evidence like this, the court just encourages warring couples to escalate their disputes.

This ABC News article discusses how the whole incident may have been provoked by parental alienation and Basinger's history of obstructing visitation, but nevertheless says:

Baldwin has dealt a severe blow to his custody claims in the future. The welfare of children is the primary concern of family law judges. "So regardless of who's wrong and who's right in terms of frustrating visitation rights," says Segal, "if the court finds that you have involved the child to the extent that Baldwin did here, [it] is going to lash out and come down very, very hard on him, regardless if Kim Basinger is the Wicked Witch of the West. This guy has no defense."

Appellate ruling, part 2

My appellate decision was "certified for partial publication". This means that it will be published in book form, and appear in law libraries. The word "partial" means that one section will be excluded from publication.

At first I thought that the court put private financial data in that section, and publish all the legal analysis. But no, it turns out that the one section excluded was a decision on a relatively minor issue involving attorney fees.

That section will not be published because of this sentence:

Although the court at one point credited the $6,500 payment against the $20,000 order, it appears to have been a mistake.

What happened was that Judge Kelly credited me with paying $6,500 in attorney fees, but Comm. Joseph said that I had to pay the money again anyway. The only way the appellate court could justify making me pay the fees again was to assume that Judge Kelly made a mistake. So I guess that the appellate court did not want the public record to show that Judge Kelly made a mistake.

I contended that Judge Kelly did not make a mistake, and Judge Kelly never admitted to making a mistake. I think that it is really slimy that Comm. Joseph and the three appellate judges want to make me pay $6,500 based on some theory that Judge Kelly made a mistake, but they aren't willing to go on the record saying that he made a mistake.

Appellate ruling, part 1

The first annoying thing about a family court appeal is the standard for review. The family court judges have very broad discretion to do what they want, and the only way to reverse them to prove that they abused their discretion. The appellate court said:

A child support order is reviewed for an abuse of discretion. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282 (Cheriton); see also In re Marriage ofDestein (2001) 91 Cal.App.4th 1385, 1393 (Destein) ["A trial court's decision to impute income to a parent for child support purposes based on the parent's earning capacity is reviewed under the abuse of discretion standard."].) We determine "whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion." (de Guigne, supra, 97 Cal.AppAth 1353, 1360.) We do not substitute our own judgment for that of the trial court, but determine only if any judge reasonably could have made such an order. (Ibid.)

In practice, this means that family court judge can just say that he made a factual determination that his order was in the best interest of the child, and the appellate court will uphold it.

My appeal decided

I just got the decision from the California appeals court. It is 17 pages. I brought the appeal to complain about four family court issues, mostly having to do with how the child support formula was applied (or not applied). The appellate ruled in my favor on one of the issues, and against me on the other three. I'll post more on this later.

Proposed law on alienation testimony

Glenn Sacks writes:

My new co-authored column, "AB 612 Will Make It Harder to Protect Children from Parental Alienation" (Riverside Press-Enterprise, 4/2/07), criticizes a new California bill which will make it harder for noncustodial parents to protect their relationships with their children after a divorce or separation. The bill will be heard in the Assembly Judiciary Committee in next week.

The bill would discourage mental health professionals from issuing findings of Parental Alienation in divorce/custody cases. It would also make it more difficult for target parents to get courts to order psychological evaluations as part of child custody investigations.

I usually agree with Glenn Sacks on these issues, but Calif AB 612 doesn't seem so bad to me. It requires a showing a "good cause" for a family court judge to order
psychological testing, and for a child custody evaluator to present more thorough details on his procedures and results.

It is true that there is no recognized psychological test for Parental Alienation (PA), but there are recognized psychological tests for making custody recommendations either. Much of what the custody evaluators do is completely bogus. The more that they are required to justify their actions, the better.

Sacks is correct that PA is a "common, well-documented phenomenon in divorce". It means one parent manipulating a child to dislike the other parent. A lot of divorced parents do it, with moms doing it much more than dads. Custody evaluators are often then fooled into thinking that the child has a better relationship with the mom than the dad, and recommend that the mom be given primary custody. I would rather just get rid of the custody evaluators, in most cases.

Evils of supervised visitation

The NY Times has a story on a child custody problem:

Custody battles are rarely gentle affairs, but if you are poor, such fights can carry an added frustration: waiting months to get a court-approved visit with your own child.

In cases involving allegations of domestic violence, which are increasing, or other issues, such as drug abuse and long absenteeism, judges often require that child’s visits with the noncustodial parent take place only in the presence of a professional, like a social worker.

But when judges order supervised visitation, neither the court nor other government agencies pay for the service, a growing problem in New York City and across the nation.

Because he cannot afford to pay for supervised visitation, which routinely costs $100 an hour, Juan Manuel Fernandez, 51, of Washington Heights, said, he has not seen his two daughters, ages 6 and 11, since last October. A year ago, he said, his wife walked out, moved the girls to New Jersey, and told the court he was threatening her. He denies the accusation, but the judge in his case ruled that supervision was necessary. So now he is waiting for free supervision through a nonprofit agency, which can take months.

It is not just poor Mexican immigrants who object to have to pay someone $100 per hour to supervise seeing their own kids.

List of child support problems

A reader asked me to summarize what is wrong with the American child support system. Here is my list, in no particular order.

• It is not related to actual needs or expenses of the kids.
  
• There is no requirement or obligation to spend the money on the kids.
  
• The formulas give each parent a huge financial incentive to deny the
  
• other parent access to the kids.
  
• Payments are required even if the custodial parent is rich.
  
• The formulas presume that a parent who never sees his kid should spend just as much on him as one who sees his kid every day.
  
• The percentage of income allocated on child-rearing is based on an obscure academic analysis of spending on alcohol, tobacco, and adult clothing.
  
• The formulas are supposed to be based on income, but do not use actual income like IRS taxes.
  
• The system has turned middle class single and remarried parents into welfare cases.
  
• Debts are treated as criminal offenses, and a man can be jailed just because he is unemployed and broke.
  
• A man can be forced to pay even if a DNA test proves that he is not the father.
  
• Parents have no financial privacy, and a bitter ex-spouse can use the system for many years of harassment.
  
• Judges can ignore the formulas with impunity, and there is rarely any appeal.
  
• For some women, it is a huge and undeserved financial winfall.

If I missed anything, please add it in the comments.