Color of Law Custody Cases

Color of Law Custody Cases
Rhode Island and other states often violate civil rights in civil courts when officials threaten to separate children from protective parents who are their lifeline. These cases may include "color of law" abuses that push the boundaries of law. Judges who allow color of law abuse in their courtrooms are guilty of "color of office."

In Family Court, we give judges ultimate power over people’s lives while taking away their curiosity, concern, and even their ability to inquire about what is really happening in these cases. This transfers the power to guardians ad litem and lawyers. These officers of the court can convince a judge--through false allegations that are frequently off the record--to remove children, imprison innocent parents, then bankrupt them through years of frivolous motions, and forbid them to talk about it--all under color of law.

In domestic abuse custody cases, this enables the abusive parent to gain extraordinary power and control over the protective parent and the children.

Here is more information about color of law:

Saturday, October 9, 2010

9.H. “Vincent” wins sole custody, 2000

This case study begins at 9.A. below. (Click on August, then 9.A. in the Blog Archives at right.) My comments appear in italicized brackets.

October 2000 Master O’Brien gave Vincent sole custody and permission to go to Illinois and bring back the children.

November 2000 The 10-year-old boy emailed a greeting card (above) to his mother with this message:
mom, keep remembering me. I’ll always be in your heart no matter what. I keep on knitting my scarf. I’ll send it to you. I miss Matt and Andrea so much. I cry every night, wishing and wishing and wishing that I was there, with you. I hope your O.K. I love you with all my heart. Tell everybody that I miss them. I miss playing with Matt soo much! Love YA!!
He also sent a handwritten message:
Dear Mom,

I miss you very much! You’re the best ever! I will do my best on the clarinet. Tell everybody at home that I miss them so much!

I keep on sending you E-cards, but I guess they don’t get through. Anyway, make sure to send pictures of everybody, even kitty and dufus.

Keep on trying to get us back, Day and night. I’ll keep on writing to you. xoxoxoxoxoxoxoxoxoxoxoxoxoxoxoxoxoxoxoxoxoxoxoxoxoxoxoxooxoxo
Love x infinite x infinitity,
[Son's signature]

February 2002 Judge Pamela Mactaz ordered that both children could speak with their mother on the phone without being monitored by their father.

September 2002 Their mother, who had moved back to Rhode Island, filed a motion to regain custody and placement of the children.

October 2002 The son ran away from his father’s home.

[Later, the son, then 13, wrote about their traumatic removal from his mother and his “forever home” in Illinois. I will add more details later from the voluminous court history, which was paid for by Rhode Island tax payers and the victims of the court.]

April 2003 Justice Howard Lipsey described “the scars that each party and each child has suffered from this unending litigation.” He blamed both parents for seeming “to thrive on exposing their children to the pain and suffering of litigation.” But he did not appear to blame the court system.

Lipsey affirmed an “unequivocal” fact:
. . . both children unambiguously and unequivocally desire to be with their mother and not their father. That has always been the position of the children and it has only been through the intervention of the Court that this has not been possible. (Emphasis added.)
He concluded:
. . . joint custody will continue the never-ending litigation that . . . would be detrimental to the well being and best interests of these children.
Justice Lipsey granted the mother sole custody and placement of the children.

May 2003 The son, 14, had a breakdown and threatened to harm himself at school. Bradley Hospital enrolled him in its Crisis Intervention program and notified DCYF.

[While in an abusive parent’s care, trophy children need to be rigorously obedient. They often excel at school, where they find affirmation and relief away from the oppressive atmosphere at home. But once they return to a supportive parent, they often suffer breakdowns. The grades of good students may plummet. Pushed to the limit of their endurance under the thumb of an abusive parent, they can finally allow themselves to feel emotions that they once kept under tight control. This is not unlike the breakdowns that soldiers with PTSD suffer after coming home from the rigors of war.]

June 2003 Vincent filed numerous motions blaming the mother for interfering with his court-ordered visitation and phone calls with the children. He blamed the mother for “psychologically abusing” the children. He even attached an email from his son, who blamed “Vincent” for lying to manipulate the court and to harm their mother.

December 2003 Justice Lipsey summarized Vincent’s numerous motions and also his ex-wife’s motion for child support, but he refused to rule on any of them. He declared that he must recuse himself from hearing the case altogether, for he had become "biased:"
After having had an opportunity over a lengthy period of time of trial, to observe the parties in this case and to observe what their reaction was to the children and what their motivations appeared to me to be with respect to the children, it is clear to me that I could not impartially hear this case because I feel on the basis of the testimony I have heard before, on the basis of my observations of both parties, on the basis of my observations and talks with the children, on the basis of the multitude of motions that have been filed within a very short time after my decision in this case, that I could not be without bias towards the defendant [Father] in this case.

I feel he is utilizing this court system for his own purposes. I feel that he is abusing the court system for his own purposes. I feel that he has no real interest for the best interest of the children. I feel further that he is taking advantage of a system, taking advantage of his children, taking advantage of his oldest son who is in the courtroom here. I think he is taking advantage of his former wife. I think he is devious. I think he has no desire to really look to the best interest of a child and children, and if anyone is not allowing them to reestablish a relationship with him and with their sibling, it is he who is doing it. . . . on the basis of my review of all the facts in this case, . . . for me to be able to impartially judge the motions that have been filed before this court would be a physical and a metaphysical impossibility.
[After examining the evidence, Justice Lipsey saw exactly what was happening. But he claimed that the Judicial Code precluded him from ruling on the case. He did not end the cycle of abuse by Vincent or by the Court. His failure to award child support condemned these children to grow up poor. Their mother patched together minimum-wage jobs day and night, sought charity, and neglected her own medical needs, while Vincent refused to pay court-ordered child support. This was particularly galling to his children, for they knew he was lying about his income. They had accompanied him when he picked up cash payments from numerous tenants.]

The next judge, Michael Forte, has a reputation for misogyny. He cut Vincent’s debt to the children’s mother in half, and he brought in David Tassoni to “mediate” child support.

NEXT: 9. I. How David Tassoni and Judge Forte punished the children and favored “Vincent.”

Thursday, September 16, 2010

9.G. The Supreme Court weighs in, 1999

This case study begins at 9.A. below. (Click on August, then 9.A. in the Blog Archives at right.) My comments appear in italicized brackets.

August 1998 Based on Dr. Jenny’s revised report, DCYF overturned the indication against “Vincent,” and accused the mother of neglect. But they felt confident enough to let her continue caring for the children under supervision of the child protection agency in Illinois. The neglect charge offered her a legal means to get a public defender, Brian LeClair, in Rhode Island who could respond to Vincent’s frequent motions without requiring the mother to keep returning to Rhode Island.

November 1998 Once again, “Vincent” secured a letter from U.S. Sen. Jack Reed—this time to Chief Judge Jeremiah. Reed asserted that the mother had Muchausen’s--even though DCYF’s psychologist Dr. Ira Gross had rejected that diagnosis and said she was suffering from PTSD due to her “constant torment and abuse by her former husband” (Kathryn Hammann, Revised Summary of Facts, 8/24/98: 3.)

When Jeremiah received Senator Reed’s letter, he ordered yet another review of the case. Vincent again threatened to sue DCYF’s chief legal counsel Kevin Aucoin for failing to schedule an administrative hearing on his latest appeal.

September 1999 Vincent’s physician, Dr. Perry Mandanis, MD, reported to the court that his patient had been “thoroughly compliant with his treatment” and “that he was successful in coparenting with his first wife and raised their son without conflict”—an assertion that is contrary to the first wife’s 1991 motion for sole custody (Perry Mandanis, MD, Progress Notes, 9/9/99: 1).

[This is why reports by privately paid experts need to be evaluated by an independent multidisciplinary team, rather than taking the court’s time on potentially biased reports.]

September 1999 A Catholic Charities case worker reported that her visits to the family’s home in Illinois “go very well.” She wrote: "Both children are very well adjusted children. I have observed a very strong bond between them and [mother] on a number of occasions. . . . Academically,they are overachievers and genuinely good kids. (Catholic Charities Report, 9/19/99: 1-2). Both children said they felt “uncomfortable” talking to their father on the phone. The 10-year-old son said he was “scared that his father was taping the call, especially when he forced [son] to say he loved him. [Son] said he felt he would use that against his mother in court or something. He said that it wasn’t that he doesn’t love his father, because he does, but at that time he wasn’t feeling love for him and didn’t want to say it” (Catholic Charities Report, 9/19/99: 2-3).

The case worker found the Illinois home “safe, nurturing and appropriate” for the children, but also described a disastrous visit when the mother verbally attacked a therapist who allowed Vincent to have a four-hour unsupervised visit.

Master John O’Brien approved a motion from DCYF lawyer Martha Diamond to bring both children into foster care in Rhode Island. The mother resisted, saying she had no money for plane fare and not enough time to drive to Rhode Island for the next hearing.

October 1999 DCYF chief legal counsel Kevin Aucoin secured an order from Master O’Brien issuing an arrest warrant for the mother and fining her $100 a day until she returned the children to Rhode Island.

O’Brien signed a confusing warrant to arrest a “child,” but it gave the mother’s name with the father’s address--perhaps so Vincent could call officers if the mother brought the children there and have her taken to prison.

Knowing she would be arrested if she came to Rhode Island, the mother refused to bring the children. O'Brien issued an order for the children, ages 9 and 10, to be seized in Illinois for extradition to Rhode Island. The mother’s public defender, Brian LeClair, secured a stay from the Rhode Island Supreme Court, which found Master O’Brien’s order improper.

NEXT: 9.H. "Vincent" wins sole custody, 2000

Wednesday, September 15, 2010

9.F. How Dr. Carole Jenny rescued Kevin Aucoin from "Vincent," 1998

This case study begins at 9.A. below. (Click on August, then 9.A. in the Blog Archives at right.) My comments appear in italicized brackets.

December 1996 After a Christmas visit, the 7-year-old boy said their father had held the 6-year-old girl on his lap and scratched her crotch through her clothing. Master Sammartino ordered sex abuse evaluations of both children.

[I had wondered if Vincent’s alleged behavior might be merely his attempt to provoke more allegations, so the court would blame the mother for accusing him. Justice Shawcross had quizzed one DCYF investigator:
You never heard anybody say there’s a higher incidence of false accusations when there is litigation going on between a mother and father? (Transcript, 11/18/93, p. 13.)

[Shawcross's statement has never been substantiated by research, but it was widely promoted by Richard Gardner, and Chief Judge Jeremiah admitted he was reading Gardner on the subject. (Transcript, 4/11/94, p. 18.) By 2004, a year after Gardner’s suicide, his legal strategem held sway in Rhode Island’s new training manual for guardians ad litem. Defense attorneys routinely accused mothers of “alienating,” “brainwashing,” and coaching” children who resisted their fathers for any reason. (See post 8. The problem with Pettinato's "friendly parent," under the August Blog Archive, below.)]

January 1997 Dr. Carole Jenny at Hasbro Children’s Hospital interviewed the daughter and wrote, “There is no doubt in my mind that some event happened because of the child’s clear and consistent disclosure.”

February-March 1997 St. Mary’s Shepherd Program conducted extensive interviews by separate counselors of the children and parents. They called for the children to work with therapists “trained in familial sexual abuse.” They recommended that Vincent be “evaluated for sexually offending behavior, aggressive tendencies, and physically abusive behavior” and “that he participate in an adult offender plethysmograph evaluation….”

March 1997 DCYF filed a petition alleging that the mother was subjecting her daughter to emotional harm and the father had sexually abused both children. Both parents were arraigned. DCYF left the children in their mother’s care.

April 1997 DCYF wrote to Vincent that he had been indicated for sexual abuse. He complained that he did not receive the notice until late May.

June 1997 Vincent’s attorney appealed the DCYF finding and requested an administrative hearing.

July 1997 Master Sammartino issued a 3-year restraining order against Vincent that denied him contact with his children.

November 1997 The daughter, 7 ½ , expressed fear of a visit with her father and suffered chest pains, anxiety, depression, and panic symptoms at school. Bradley Hospital admitted her for a week. Physicians had already medicated her with Prozac, and later Tenex.

The attending psychiatrist, Dr. Elizabeth Wheeler, described “evidence of significant character pathology in both parents.” But she listened to Vincent's allegations that the children's mother had Munchausen's factitious disorder by proxy. Wheeler identified the father as “narcissistic and equally caught up in the [custody] battle,” but she recommended a “full forensic evaluation” of the mother alone and agreed to serve as Vincent's expert witness.

December 1997 Counselors at The Doric Center of CCAP wrote to Family Court that the mother had been in counseling with them for half a year and suffered from symptoms of PTSD related to abuse by her ex-husband and by her children’s disclosures of his sexual abuse. Counselors urged that the daughter not be forced to visit her father and that the restraining order remain in place.

December 1997 Vincent again asked DCYF to hold an administrative appeal hearing on the findings against him.

March 1998 DCYF referred the mother to Dr. Ira Gross for a psychological evaluation. He diagnosed her with "Post Traumatic Stress Disorder, relating to her former marital life.” He found no indication of Munchausen’s and reported: “she is a concerned mother that needs to be on constant alert to predation by her former husband.”

April 1998 U.S. Sen. Jack Reed sent a 3-page letter on behalf of his constituent, "Vincent," summarizing Vincent’s complaints to DCYF director Jay Lindgren and child advocate Laureen D’Ambra. Reed asserted that the mother was diagnosed with Munchausen’s, and he protested DCYF’s failure to schedule Vincent’s administrative appeal hearing.

May 1998 Psychologist Dr. Ira Gross warned the mother that Vincent’s behavior was increasingly unstable and she should take steps to protect herself and the children.

May 1998 Vincent threatened to sue DCYF and its senior counsel Kevin Aucoin for failing to schedule his administrative hearing.

June 1998 Vincent’s attorney, Michael Hagopian, withdrew, and Vincent entered his appearance pro se. He sought hearing dates for himself and his older son, 18, represented by a separate lawyer. Father and son each sought visitation with the younger children, 8 and 9.

[This is a common strategy used in Trophy Child cases, when older siblings are brought to court. Children often complain that older siblings they had once liked are used by an abusive parent to grill and harass them with guilt-provoking arguments and to pry information from them that is then used in court.]

"Vincent" complained that he, his 18-year-old son, and their three witnesses came on ten separate dates, but could not be heard due to the crowded court calendar. He sought confirmation of hearings for his son and himself on three certain dates.

Vincent asked the court to order his ex-wife to pay for her full forensic psychological evaluation, asserting that Dr. Wheeler suspected it was not the father, but the mother, who was abusing the children due to Munchausen's and that the mother "exhibited suicidal ideation in the past" which endangered the children.

July 1998 Dr. Carole Jenny delivered a forensic investigation of 27 documents at DCYF’s request. She acknowledged her uncertainty whether the December 1996 incident was “a purposeful molest, a thoughtless gesture, or perhaps even a suggestive touch made to inflame the family relationships even further.” She wrote: “I am struck by the extraordinary hostility between the two parents.”

Dr. Jenny enumerated extensive concerns:
• The mother’s allegations about Vincent’s abuse of her and the children included “extraordinary acts of violence and intimidation.”
• Vincent’s “relatively positive psychological evaluations” were “somewhat superficial.”
• No sex offender evaluation tools “currently available are 100% sensitive or specific.”
• St. Mary’s Shepherd evaluators felt that Vincent was “very inappropriate.” “They expressed on several occasions feeling intruded upon, threatened, and verbally attacked” and “had major concerns about his parenting abilities.”
• Victor’s psychiatrist talked about his “interpersonal difficulties, depression and anxiety” and was working with him “on his personality style.” But
. . . there was no description of his family of origin or of his childhood. There was no description of his level of functioning in general. Is he employed? Does he have reasonable social relationships with adults and peers? There was no discussion of drug or alcohol abuse. . . no evidence that the psychiatrist had looked at the effect of [Vincent’s] physical illness . . . or his medications on his ability to function.

Still, Jenny concluded that she was no longer “convinced the children had made unambiguous disclosures of abuse.”

She wrote: “the very process of these allegations and counter allegations . . . is extraordinarily destructive to these children.” Yet she blamed this on the two parents, not on the court system, itself, that encourages years of adversarial litigation, as exacerbating this problem. Instead, she blamed both parents and strongly suggested “that the courts consider one of two options:”
1. Putting the children in foster care . . . . or
2. Ordering the parents to meet face-to-face each week for at least two hours with a competent family therapist for at least six months to find common ground. . . .”

[Would Dr. Jenny’s assessment have changed if she had seen the 1982 affidavit detailing Vincent’s alleged violence and threats against his first wife and son? Both wives described sadistic acts of domestic violence and coercive control. Experts in domestic violence warn that “therapeutic” mediation must never be attempted when one partner persists in patterns of power and control.]

When Dr. Jenny revised her original report, and decided there was no evidence of sexual abuse and that the children were being emotionally abused by both parents, she gave DCYF the document they needed to escape Vincent’s lawsuit against their senior counsel Kevin Aucoin.

August 1998 DCYF chief investigator Edward O’Donnell wrote to "Vincent" that DCYF had overturned the indication against him, because Dr. Jenny had revised her original report from “indicated” to “unfounded.”

NEXT: 9.G. The Supreme Court weighs in, 1999

9.E. How "Vincent" got the Chief Judge to apologize, 1995

This case study begins at 9.A. below. (Click on August, then 9.A. in the Blog Archives at right.) My comments appear in italicized brackets.

[I am reporting on custody cases sometimes called “high-conflict.” But I call them “high-control” because one parent is using Family Court as a tactic to control the family. After two decades studying these cases, I believe that adversarial litigation does irreparable damage to families in this court. We need a chief judge willing to work at changing this court in ways that would make it less profitable to private contractors and less costly to families and taxpayers.]

One common tactic of control used by abusers is to provoke their families and then to videotape their enraged response. This “evidence” is taken to judges and news reporters to document the alleged “instability” of victims of abuse. Vincent had testified before Judge Shawcross about using video to raise his son:
I videotaped [my 3-year-old son] throwing a temper tantrum . . . I bought a VCR camcorder and videoed the children’s every move . . . dozens of hours of the children doing everything, including going to the bathroom and eating and just being cute. . . . [Once when my wife went out] the child dropped to the floor and started to cry. . . and I tried video taping him whimpering and crying . . . it shows me being relatively quiet, I might have said, are you done, are you done yet. It’s –- Your Honor, the purpose of the taping is nothing but a parent in regards to what a child does” (Transcript, 10/28/93: 12-13)

Vincent's pattern of humiliating his wife and children with embarrassing videos and photos continued throughout this case for the next thirteen years. (In 2003, his then 14-year-old son asked Judge Howard Lipsey to let him and his sister return to their mother after 30 months in their father's sole custody. The teen testified to a laundry basket full of videotapes in his father's bedroom.)

October 1994 When his wife and children moved to Illinois, Vincent had hired a detective agency to trail them. In October he used these private investigators to supervise his visits in Illinois and had them write reports criticizing the mother when she argued with Vincent.

November 1994 Trying to meet Vincent’s demands, Chief Judge Jeremiah agreed to let the children, then 4 and 5, visit Vincent, his parents, and his older son in New Jersey for Christmas. The Chief agreed that Vincent's parents could supervise the visits.

March 1995 Judge John Mutter ordered "Vincent" to pay his first wife $11,670 in delinquent child support, but Vincent claimed a change in circumstances made him unable to pay child support to either wife.

April 1995 In one hearing, Chief Judge Jeremiah worked out details for the father’s supervised visit and an evaluation of the daughter. The next day, the father’s lawyer, Michael Hagopian, said no, they had not agreed to the evaluation. Jeremiah exploded. He left the bench, then returned to the courtroom to apologize and said: “I was wrong to lose my temper.”

[Observing this in the courtroom, I thought the Chief finally saw the mind games that abusive controllers play as they make agreements one day and deny them the next. This is one of the reasons mediation should never be attempted in custody cases where one parent has a history of coercive control. I found the Chief’s reaction understandable and appropriate. His explosion, followed by self-doubt and an apology, were the same reaction abusers expect from their victims.]

May 1995 Appellate attorney Lauren Jones completed a pre-briefing statement for Vincent to appeal the decisions of Jeremiah and Shawcross to the Supreme Court. While spending significant funds on litigation, Vincent continued to say he could not pay court-ordered support for his three children.

September 1995 Justice Kathleen Voccola held two hearings and determined that there was no change of circumstance warranting the children to be placed in Vincent’s custody in Rhode Island, and they could remain in Illinois.

November 1995 After his October visit with the children, Vincent sent an underwater photo of his 5-year-old daughter’s crotch in her bathing suit to his 6-year-old son. The strap of a life jacket had tightened between her legs revealing her labia. She was outraged when her brother received that photo among others their father had sent him from their visit.

[The drawing with the words “vary, vary, vary angree” was made with a counselor at St. Mary’s Shepherd Program to represent the girl’s feelings about her father humiliating her with this photo. She said she was angry enough to smash soda bottles.]

March 1996 The mother, who had grown up in Illinois, learned to drive in winter weather. She always carried a shovel and sand in her trunk, and they often made the trip back to Rhode Island for hearings on Vincent's motions. Once they came through a terrifying ice storm, and her son, 7, became distraught. At school, he was learning to write by phonics. So she asked him to focus on writing a story about their trip. Here it is:

They reached Rhode Island, but when their mother went to court, she discovered that Judge Voccola had gone on vacation, and the hearing was cancelled. Some courts might notify litigants traveling from a distance. But such courtesies are not common in Rhode Island's Family Court.

May 1996 Vincent felt he was gaining the upper hand. He purchased the children’s plane tickets to Rhode Island for Father’s Day and announced that he would keep them an additional week. He told their mother:
I urge you to consider my offer of $10,000 to ease your way to Rhode Island. The actions of the Court ... should give you a realistic idea of the progress I am making toward re-uniting myself with the children with you or without you….

NEXT: 9.F. How Dr. Carole Jenny rescued Kevin Aucoin from "Vincent"

Sunday, September 5, 2010

FLASH 3: Grandmother in Court

I asked the Grandmother to keep me apprised of their case. (Click on August, "6. A Grandmother's Testimony" in the Blog Archive at right.) She sent me this email:

We went to court on Friday, September 3, 2010, for the hearing on the exparte motion. Our lawyer had scheduled it for September 10th but the judge crossed that out and wrote in "schedule for earlier hearing" which turned out to be the third. It was the Friday before a holiday weekend and there was only one judge sitting, and she was hearing DCYF cases!

I am only this morning calming down from the outrage of having to sit in court all day twiddling my thumbs and paying an attorney to do the same. What is wrong with these people? They know that there are no judges sitting on a Friday before a holiday weekend! Why would they schedule for hearings and have hundreds of people milling around in the corridors of the courthouse and getting madder by the minute? This is the insanity of our family court system.

[We now have the technology to improve this system. Even Panera Bread knows how to use buzzers. And every lawyer has a cellphone. Many have offices near the court and a law library at court. If Family Court improved its scheduling and allowed lawyers to be on call, then penalized those who fail to respond or stroll in late, some lawyers would resist. Afterall, this would significantly reduce their income. But it would help their clients and further the ethical pursuit of justice. Some legal staff have told me that lawyers instruct them to charge more than one client for the same hours those lawyers sit in court.]

Friday, September 3, 2010

9.D. How "Vincent" finagled Chief Jeremiah's order, 1994

This case study begins at 9.A. below. (Click on August, then 9.A. in the Blog Archives at right.) My comments appear in italicized brackets.

This case study begins at 9.A. below. (Click on August, then 9.A. in the Blog Archives at right.) My comments appear in italicized brackets.

February 1994 After eight months and fourteen hearings, Justice Raymond Shawcross, found the mother’s testimony of the father’s abuse credible. He kept a restraining order on Vincent and assigned sole custody and placement of the children with their mother in the marital home. He required Vincent’s visits with the daughter to be supervised.

April 1994 Chief Judge Jeremiah found that Vincent was stalking his wife and failing to pay court-ordered bills for child care or utilites. Mother and children relied on charities for food. The bank was foreclosing on their home. Jeremiah gave the mother permission to move the children to Illinois, where she could work in her brother’s law office and have free housing with her mother. Vincent could visit their son, and the mother must have the daughter evaluated by authorities there.

June 1994 The mother drove back to Rhode Island for a hearing and brought their son to visit his father. Chief Jeremiah expressed frustration with the two attorneys, John Lynch and Nicholas Colangelo, who had failed to agree on drafting the order from the prior hearing. Without a court order, Illinois officials could not provide an evaluation or supervise the family as Jeremiah required. He told the lawyers they were “prohibited from leaving this courthouse” until they had written an order based on the April transcript for Jeremiah to sign.

In the same hearing, Colangelo asked for his client, "Vincent," to have telephone contact with both children in addition to supervised visitation with the daughter in Illinois. Chief Jeremiah responded emphatically:
No, Mr. Colangelo, no visitation and no telephone contact until I get this [evaluation report]. That is an important issue. I need to see the report, and I will continue the matter until I get the report . . . . But there will be no visitation and no telephone conversations until I get the report. (Transcript 6/9/94:9).
September 1994 Attorney Colangelo withdrew, and Michael Hagopian entered as Vincent’s lawyer. Chief Judge Jeremiah approved arrangements for Vincent’s supervised visits with his son in Illinois, plus telephone contact with his daughter on Thursdays from 7 to 7:30 p.m.

Vincent prepared a one-page “synopsis” of the transcript of that hearing that misrepresented Jeremiah’s order. (Click on documents to enlarge.)

In his synopsis of Chief Jeremiah's order (above), Vincent wrote:
After consideration, the Court concluded that it would be appropriate for [the mother’s] brother to deliver the child to [the father] for an unsupervised visit with his daughter (p. 6 lines 12-18). [I have italicized key words here and below.]

In fact those lines in the transcript refer specifically to the son alone, for Jeremiah instructed the mother:
… your brother will be there to have the child go with his father.

In his synopsis, Vincent misrepresented another point:
The Court went on to review the report of Childhood Trauma Treatment Program and concluded that there was not a credible story of molestation (p. 7 lines 1-11).

But in fact, Jeremiah’s reference in those lines applied only to the son, not the daughter:
. . . in reviewing the report of the Childhood Trauma Treatment Program, it stated my professional opinion these do not constitute spontaneous disclosures that list the father sexually abused him.

Here are excerpts of the transcript to compare to Vincent's synopsis. His synopsis referred to his former wife's complaints on page 2. In the transcript she is talking about his astonishingly low child support. (Click on documents to enlarge.)

On pages 6 through 8, the transcript refers to supervised visits with his son and phone calls with his daughter. (Vincent's synopsis of the transcript changed this to unsupervised visits with his daughter, with no mention of his son.)

When he drafted the final order, Hagopian did not go as far as Vincent’s synopsis had tried to revise Jeremiah's words. Hagopian drafted the order to give his client unsupervised visits and weekly phone calls with both children, but no overnights. And he got Judge Jeremiah's signature:

But a full decade later, Justice Michael Forte incorrectly described this order as if it had "reinstated unsupervised overnight visits."
After the results (unfounded) of the Illinois evaluation, the Chief Judge reinstated overnight visitation with both children by Order of July 29, 1994. (Forte, Decision, 7/6/2004:2)

[In fact Jeremiah clearly said "no overnights" on July 29. Forte is referring to the written Order of September 26, 1994, pictured above, which followed the Illinois evaluation, but also did not allow overnight visits. Later I will relate how mediator David Tassoni, with Justice Forte punished Vincent's children.

[Lawyers’ paperwork is a frequent cause of delay, expense, inaccuracy, and emotional distress in Family Court due to the failure to follow through on filing essential documents, the misrepresentation of judges’ orders, and the lack of clarity in many orders. Family Court does enormous harm when it uses adversarial litigation in these cases.

[A better option could be for evidence of crimes like domestic violence and sexual abuse to go to the Attorney General, Grand Jury, Superior Court, and jury trials. Helping families resolve ongoing crises would be far better served with a single multidisciplinary team from beginning to end, as described in the prior post. That team could include a writer and clerk responsible for timely filing of coherent and accurate documents. The Court needs to steadfastly remove opportunities for private contractors to profit from inflaming these cases.]

NEXT: 9.E. How "Vincent" got the Chief Judge to apologize.

Thursday, September 2, 2010

9.C. DCYF and the experts investigate, 1993

This case study begins at 9.A. below. (Click on August, then 9.A. in the Blog Archives at right.) My comments appear in italicized brackets.

March 1993 DCYF Social Caseworker II Lauree Gilmore, with Casework Supervisor II James Nerney, completed the home study. Their report showed:

• No criminal record or prior DCYF history for either parent. [They probably did not see the first wife's sworn affidavit detailing Vincent's alleged violence and threats to their child, the wife, and her colleagues at the college. I found her document in their divorce file in court archives.]

• Both parents denied abuse or neglect in their childhood. [My later research indicated that both had suffered childhood abuse. Court reports based primarily on self-disclosure are often unreliable.]

• Mother earned $300 weekly as a paralegal; Father bought and rented real estate, had a brokerage license and asserted that his attorney kept records of his income, which was “too complex to explain.” He said that he had “fourteen mortgages and three cars.”

• Both parents had been in individual and marital counseling. Psychiatric Specialists diagnosed the mother with “Battered Women’s Syndrome,” and she signed releases for DCYF to see her counseling records. Vincent denied having any diagnosis. He gave, but then revoked permission for DCYF to examine these records.

• The report recommended that the mother continue in counseling and the father “engage in services specifically directed to his marital violence” and that his visitation “should be dependent upon cooperation with treatment.”

October 1993 Physician Abraham Bartell testified that his exam of the 3-year-old girl showed “abnormal findings,” consistent with abuse, but not conclusive. He said “there needs to be an investigation by DCYF,” but he could not “state to a reasonable degree of medical certainty” that the child had been sexually abused. He concluded that “this child is safe in all of the settings” (Transcript 10/15/93:1-3).

Justice Shawcross reinstated Vincent’s unsupervised visits. The mother and children entered a shelter for victims of domestic violence, where a counselor reported to DCYF that the daughter showed signs of being sexually abused when she returned from a visit with her father. At first, the mother resisted believing this, but a child protective investigator (CPI) indicated the father for lack of supervision “as there was evidence that someone molested [his daughter] while in his care.”

November 1993 DCYF child protective investigator (CPI) Virginia Miller testified to the difficulty of proving anything without definitive evidence. She could not prove Vincent was guilty of a “lack of supervision,” but her testimony was troubling: “The children said that when they were put down for a nap [at their father’s], that they were given yucky medicine to take. . . . they slept for a long time.” When they woke up their father wasn’t there, and Miller realized it was the same day the father was in court. She concluded: “When I asked the father about it, he said it was none of my business.” (Transcript 11/18/93, p. 15-16)

[Four observations: 1. In other cases I have researched, children complain about allegedly abusive parents forcing them to take pills that make them sleepy. 2. This son later spoke of their father punishing him for speaking to authorities. 3. Experts often use the passive voice in courtroom testimony and reports. This is a common practice in the social sciences that results in vague descriptions that can waste costly hours in the courtroom splitting hairs that fail to establish reliable evidence or facts. CPI Miller never said who was identified by the children as giving them the medicine. 4. Domestic violence and sexual assault are crimes, which police are often better trained than social workers to investigate. A police officer should be part of the multi-disciplinary team I propose below.]

November 1993 The son, 4, told their tenant that their father held a “knife” to his sister’s back, gave her a bath, and gave her “bad touches.” Another CPI, Michael Bousquet, investigated and testified that when he asked the boy about this remark, the child said: “I’m not going to tell you, it’s a bad secret, you won’t like it. I won’t tell you the secret.” After saying this, the tenant told Bousquet that the boy was “shaking and trembling” (Transcript, 11/19/93:11-12).

Based on the children’s comments and his conversation with Dr. Bartell, Bousquet indicated the father for “sexual molestation, sexual intercourse and cuts, welts, bruises.” A later DCYF report stated that the father’s older son, 13, also was “indicated for sexually abusing” the girl.

Shawcross suspended Vincent’s visits and ordered Bousquet to coordinate his investigation with psychologist Brian Hayden.

December 1993 Dr. Hayden testified that Dr. Bartell had told him there was “a strong possibility” that the daughter “had been abused” based on one of her hymenal lesions. But Dr. Bartell acknowledged to Hayden: “I have not said that on the witness stand, but, between you and me, that is what I feel” (Transcript, 12/16/93: 43).

Justice Shawcross recognized the dilemma: three witnesses (the mother, CPI Bousquet, and Dr. Hayden) had testified that Dr. Bartell told them the physical evidence was “classic for sexual abuse,” but Bartell had not said that in court. Hayden was not convinced from his psychological exam that abuse occurred. He described the girl running from his office to urgently ask her mother to tell her father: “Don’t give me a boo-boo on my gina.” Hayden said the mother asked the girl to repeat her statement for Hayden. “The little girl would only say it as she laid on the floor. She was very agitated, very awkward, and did repeat what she previously said to her mother” (Transcript, 12/16/93: 53).

Hayden confirmed that the 3-year-old did in fact say this to her mother in his office, but Hayden “did not take that disclosure as a valid disclosure” because the repetition had to be prompted. He told Justice Shawcross that he found the case “troubling” because “There are a lot of pieces to the puzzle that don’t add up” (55). Although he recognized the danger that the girl could “get damaged because of this prolonged process”(48), Hayden wanted to see “how insistent and persistent this little girl was over a relatively long period of time” and he “spent over 13 and a half hours with this child.” He acknowledged it was “a lot of time” for such an evaluation, and he “never got the kind of specificity elaboration of details, placement of where something might have occurred” (56).

Hayden advised Shawcross that the girl should have “therapy sessions” with her father before any supervised visitation(58).

[Family Court still persists in sending traumatized children into “therapeutic” sessions with their alleged abusers. I will write more about insurance companies’ refusal to pay for such court-ordered “therapy,” how it compounds the trauma to victims, and how some psychologists may be billing insurance fraudulently for these sessions. Many judges place excessive confidence in experts who do not trust their own analysis.

[Dr. Hayden understood that numerous sessions might be harmful to this child, and yet he persisted. Normally, he charges parents an hourly fee, making every delay more profitable to him. In another case, I saw him delay his reports to the court for months until he received payment. At each hearing, he favored the parent who paid.

[Empathetic interviewers trained in child sexual abuse and able to set up a discrete video camera should promptly investigate each complaint in the home or some familiar, safe setting and help children to disclose these traumatic experiences. Bringing children to a strange adult in an unfamiliar office is hardly conducive to helping them talk about experiences they may have no language to describe.

[Rather than so many competing experts, a better model might be for each case to have a single multi-disciplinary team from beginning to end that would work together to investigate the facts and submit well-written reports and drafts of orders to the judge. Each team would include an expert in police investigation, mental health, medicine, law, and a skilled writer.

The team would not work as private contractors, but as salaried staff, professionally supervised in an accredited nonprofit agency. A team could better protect the child, hold each other accountable to high internal standards, and offer concise information and recommendations to the judge.]

NEXT: 9.D. How "Vincent" finagled the Chief’s order.

Tuesday, August 31, 2010

FLASH 2: Listening to children

Last Friday, California's Governor Schwarzenegger signed AB 1050 into law. This will allow children 14 and older to testify in Family Court, giving them a much needed voice in proceedings that greatly impact their lives once the new law becomes effective on January 1, 2012.

Congratulations to the Center for Judicial Excellence, California Protective Parents Association, Courageous Kids, and many others who worked tirelessly for 18 months to secure this right.

In Rhode Island, some judges already recognize the importance of listening to children. In the case I described below (FLASH 1) Justice Shawcross will hear testimony from a teen who feels strongly about the decisions controlling her life since her parents went to Family Court in 2008.

I wrote about our need to listen better to children and youth in Family Court and offered some suggestions for doing this in 3.E. Case Study: Listening to children, below. (Click on 3.E. in the Blog Archive, right.)

FLASH 1: A breakdown and a stoning

I need to briefly interrupt Vincent's case to report what happened in another courtroom today.

I watched an excellent parent have a breakdown on the witness stand, while the other parent sat cool and collected. I have seen this happen too often in other cases and courtrooms.

I went because I know their daughter. I know her former school and her violin teachers. She has made no secret of her intense longing to be with the parent who was having the breakdown.

I once asked the girl if she could talk to her court-appointed guardian ad litem, a psychologist. She said despondently: No. She never listens.

Tonight, Phil and I watched a superb movie on DVD. The Stoning of Soraya M. is based on a true story reported by the French-Iranian journalist Freidoune Sahebjam.

The Ayatollah Khomeini returned from exile in 1979 and established the Islamic Republic of Iran, bringing a resurgence of Sharia law.

In 1986, an abusive husband plotted to have his wife falsely accused of adultery, so she would be stoned. This would leave their four children without a mother, but it would free their father to marry the 14-year-old girl he lusted for.

The husband persuaded the village mayor and mullah to go along with his false charges, to help set up the rumor mill, and to coerce a frightened man to testify against his wife.

The lies, the legal games, the venomous force behind those jagged stones reminded me of what I had witnessed in court. But these were not a band of men screaming Allah Akbar! as they relished killing an innocent woman.

The scene I witnessed today is being waged by women against a woman with false rumors and legal stratagems as deadly as rocks--intended to destroy the reputation of a vulnerable parent, falsely accused, who was crumbling before our eyes.

No matter how often I witness this kind of legal assault, I find it chilling. Family Court clarifies nothing: It is no safer for children and the parents they love than Sharia law is for women.

Saturday, August 28, 2010

9.B. Vincent's first two Family Court cases begin (1982 - 1993)

This case study begins at 9.A., below.

1982 - 1991 (Two wives, two families)

In 1982, Vincent’s first wife, a college counselor, called campus security guards for protection. She reported her husband’s threats to kill her, to harm her colleagues, and to take their 2-year-old son. Evidence of his documented assaults never entered their “no-fault” divorce hearing. A Family Court judge ordered joint custody and shared placement of their child.

[Joint custody and shared placement of trophy children spares the abusive parent from having to pay child support while throwing children’s lives into constant emotional chaos as they struggle to move back and forth between two parenting styles that may be radically opposed. In many domestic violence cases, for example, one parent may be generally nurturing, while the other is highly punitive.]

Vincent’s second wife gave birth to their son in 1989 and their daughter in 1990.

In 1991 Vincent’s first wife sought sole custody citing problems with joint custody.

That same year, his second wife called Cranston police saying Vincent had kicked her in the groin.

1992 – 1993 (When his younger children are ages 2 to 4)

At the beginning, Chief Judge Jeremiah recognized Vincent’s pattern of abuse and tried to intervene. Like many judges, he did not see that domestic abuse of a mother is a strong indication that children are also in danger. He was guided by Pettinato’s “friendly parent” standard that forces children to maintain relationships with both parents, even if one has been cruel and abusive.

December 1992 Vincent’s second wife filed for divorce, and Vincent moved out of their home.

January 1993 His two younger children began court-ordered visits, spending three days and two nights each week with their father, his male roommate, and his older son, 13, whose visits were arranged to coincide with the younger children’s.

February 1993 The two-year-old daughter began having trouble sleeping. She suffered from bed-wetting, night terrors, and stomach aches. A doctor performed a sexual abuse exam and reported concerns to DCYF.

February 1993 General Magistrate John O’Brien ordered DCYF to conduct a domestic relations home study of Vincent's second family.

NEXT: 9.C. DCYF enters

9.A. How "Vincent" drove judges crazy

[This case study will extend through several posts. My comments appear in italicized brackets.]

In the early 1990s, I watched Chief Judge Jeremiah make a strong effort to respond to some domestic violence cases, especially when people contacted him directly about the dangers they faced. He sometimes took over judging those cases himself.

Sometimes he favored abusers, like the police officer who held custody of his daughter for a dozen years while he kept getting his ex-wife arrested on false charges.

Often Chief Jeremiah brought in his close circle of lawyers and staff to work on cases. [I thought some of them abused their power, as in the Case Study, at 3, below.]

People who received the Chief’s personal help were grateful, while the Family Court system as a whole continued putting vulnerable children at risk-- along with the parents trying to protect them, who were traumatized by the Court as much as by their abusers.

Pettinato’s “friendly parent” standard (see post 8, below) required judges to force children into damaging relationships with aggressively manipulative personalities—like one I will call “Vincent,” who drove judges crazy.

Vincent’s relatives said he had suffered extreme child abuse, but he would not talk about it. As an adult, he refused to take orders from anyone. He married three times and insisted on controlling his wives and children.

Vincent’s bullying behavior distressed professionals outside and within Family Court, including a series of judges. He tried to control his second family through the court for 14 years (1992-2006). He manipulated the court process at enormous cost to his children, to his former wife, and to taxpayers who funded those fourteen years in operating costs, overhead and salaries of judges, sheriffs, clerks, stenographers, DCYF staff, and many others on public payrolls.

Vincent drove a series of judges to distraction—especially Jeremiah, O’Brien, Lipsey, and Forte.

Lipsey finally figured out what was going on and even named it. But instead of making a finding, he did something extraordinary and recused himself. He explained that Rhode Island's Code of Judicial Conduct precluded him from ruling on the case because, after studying all the evidence, he had become biased against Vincent!

The case went next to Forte, its twelfth judge, who revealed intense bias against Vincent’s wife, but never showed any qualms of conscience about Canon 3E of the Judicial Code.

Most judges preferred to blame both sides without recognizing (as Lipsey did) that one side was very clearly at fault.

NEXT: 9.B. A chronology of Vincent’s case

Friday, August 20, 2010

8. The problem with Pettinato's "friendly parent"

If a mother is alleged to be abusive or neglectful, studies show that a father can nearly always win sole custody of their children. But if a father is abusive, a protective mother will often focus on getting their children out of the home to safety. If she goes to court seeking a divorce, it is unlikely that she will get sole custody.

This is partly due to no-fault divorce law. Attorneys warn battered mothers not to mention any history of abuse, even if there are police records, hospital reports, and independent witnesses, because such allegations lead to a lengthy contested divorce that becomes unaffordable for most victims of abuse.

Even if they never showed interest in their children, abusers quickly learn that joint custody gives them a strategic advantage. Family Court enables them to gain greater control over their families. The Court may even relieve them of paying child support if they get joint custody with shared possession--no matter how harmful it is for children to shuttle back and forth between two parents with radically different parenting styles.

Rhode Island judges decide who will have custody on the basis of eight standards set by the Supreme Court in a 1990 decision called Pettinato v. Pettinato, 582 A.2d 909, 913-14:
1. The wishes of the child's parent or parents regarding the child's custody.

2. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

3. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings, and any other person who may significantly affect the child's best interest.

4. The child's adjustment to the child's home, school, and community.

5. The mental and physical health of all individuals involved.

6. The stability of the child's home environment.

7. The moral fitness of the child's parents.

8. The willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.

The eighth standard raises an extraordinary problem for victims of domestic abuse, because it requires the custodial parent to maintain a good relationship with the other parent.

This may work fine in ordinary divorces, but it is devastating and can be deadly when there is a history of domestic abuse.

Should a judge require a responsible parent to force a child into a close relationship with a harmful parent? What if an abuser encourages delinquency by teaching children to lie, cheat, steal, sell drugs, or prostitute themselves?

The eighth Pettinato factor should not constrain a good judge or a good parent to force a child into such a damaging relationship with an abusive parent.

But Rhode Island Family Court has made the eighth standard of Pettinato all important by endorsing a legal strategy developed by New Jersey psychiatrist Richard Gardner in 1985 that he called “parental alienation” (PA) or “parental alienation syndrome” (PAS), though it has never been recognized as a disorder or syndrome in the Diagnostic and Statistical Manual of Mental Disorders (DSM).

Gardner actively lobbied against mandatory reporting of child sex abuse and advised that sex between adults and children is natural. Before his 2003 suicide, he testified in hundreds of court cases for parents, usually fathers accused of abusing their children. He did this by arguing that the mothers had “alienated,” “brainwashed,” and “coached” children to falsely accuse their fathers.

Rhode Island devoted an entire section of its 2004 Guardian ad Litem Training Manual to Parental Alienation.

Within a year, the National Council of Juvenile and Family Court Judges (NCJFCJ) warned that parental alienation does not meet evidentiary standards and should be stricken from the reports of custody evaluators. NCJFCJ reinforced the warning in their 2008 Judicial Guide to Child Safety in Custody Cases (shown at the top), which is available online at:

(Click on images to enlarge.)

Here are more pages from the NCJFCJ Judicial Guide to Child Safety in Custody Cases

(Click on images to enlarge.)

NEXT: 9. How "Vincent" drove the judges crazy

7. Governor Carcieri's Legacy in Family Court

The Parenting Project has set up a new blog to report on Family Court custody cases that illustrate systemic problems in this court:

We are urging Governor Carcieri to begin the process of reforming this burdened court by asking the five candidates for chief judge (Justices Bedrosian, Capineri, D'Ambra, Forte, and Voccola) about their proposals for change.

These five candidates represent nearly 90 years on this bench. We have much to learn from their recommendations for court reform.

Two of the candidates, Justices Capineri and D'Ambra, spoke in their public interviews before the Judicial Nominating Commission about plans they had submitted to the Governor. We have asked the Governor to release these and any other proposals as public documents. We do not need a chief judge who is satisfied with the status quo.

Rhode Island is the only state that gives judges life tenure with no review.

Governor Carcieri knows that successful businesses need good methods of performance review.

For Rhode Island to "race to the top," our schools must develop sound procedures to evaluate teacher performance.

Likewise, successful courts need reliable methods to evaluate the performance of judges and court officers. Performance review will help to assure greater independence of judges. If it is well designed and properly done, it will guard against conflicts of interest.

We have asked Governor Carcieri to select a chief judge with a clear vision for reforming Family Court. Which of the candidates would endorse a request for private funding to begin a pilot project on judicial performance review in Family Court? That pilot project could set an example for our other courts.

We need a chief judge:
• who is not satisfied with the status quo;
• who is committed to identifying systemic problems that place vulnerable children and families at risk;
• who possesses the managerial skill to implement a sound plan for reform; and
• whose strength of leadership can overcome apathy and entrenched resistance to reform.

We ask Governor Carcieri to select a new chief judge of Family Court who will make court reform a major part of the Governor's lasting legacy for Rhode Island.

Thursday, August 19, 2010

6. A Grandmother's Testimony

A grandmother who testified to the Judicial Nominating Commission gave me a copy of her comments Tuesday night that tell the story of another "trophy child." Here is her testimony.

Good evening, my name is Louise Monroe. Thank you for allowing me to address this committee this evening and to share my story with you. I was here last week to listen to all the interviews of the candidates vying for the position of Chief Justice of the Family Court.

I am searching just as diligently as all of you for the best qualified candidate to bring about change to our broken family court system. Each and every candidate had something that was very likable about them and I do not envy your position to choose the right person to fill this very important and powerful position.

In 2005 my daughter married. On Valentines Day of the following year, they had a child. In October of 2006 she filed for divorce. I tried to help my child sort things out in her marriage to make it more stable. Marriage is an adjustment and you both need to work at it I told her.

I wondered what had changed from the courting days to the birth of their child. It was not until the day when she came to me with her body covered in bruises so colorful that I could actually feel her pain. I had no idea that she and my grandson were the victims of domestic violence. I did however recall incidents that I witnessed personally of the father taking the baby by the feet and flinging him down through his legs and then up into the air over his head several times at the age of four months or the time that he grabbed the child by the neck pulling him out of his baby tender and flinging him at my daughter.

I became very scared for the well-being of this child. And the time when I received a frantic telephone call begging me to please come. I ran to her apartment as he was assaulting his wife in front of their child—her possession smashed all over the floor and the look of terror on the child’s face. When I asked him to leave, he turned his violence on me and came after me, a senior citizen, with a closed fist and I thought to myself that if he does not kill me with that first blow and I am able to get up, it will be all over for him.

The husband is a man who holds a lot of power in our community through the attorney who represented him, and among the police and at the attorney general’s office and the courts. This man is a psychopath but the psychological evaluation by the psychologist has been sealed by the court.

The judge assessed and labeled our case “high conflict” when it was really a domestic violence situation. There was no protection for the victim or her child. Everyone involved in this case prospered at the expense of this child.

My daughter has been arrested twelve times and has spent 217 days in prison and away from her child even though she has not committed any crime. She has lost her employment of thirteen years working for DCYF, she lost her health, she has lost all of her possessions and she lost her child.

The spouse, his girlfriends and mother fabricated stories to have her arrested and perhaps incarcerated for a long period of time in order to use the criminal justice system to deliver the final devastation—to take her child away from her forever.

I now have a grandchild who is being raised by a psychopathic father who was given placement by the family court because the judge on our case failed to recognize a domestic violence/abuse situation. The judge could have looked beyond what was happening in his own courtroom, he had all the tools available to him and had he used “common sense” instead of “dollars and cents” to come to an understanding of what was really going on in this case, he would have easily recognized the control the father wielded in this situation.

In my estimation, I believe the Honorable Laureen D’Ambra expressed some very important ideas when she said that she had a computer at her finger tips so that she could immediately research other courts to find out if there is more of a history in the case before her. Had she been the judge involved in our case she would have found out that my daughter had been arrested on numerous occasions by charges brought by her spouse and his family. So the court history would not have told the whole story but it would have alerted her to the fact that there is more to this story because she took the time to go the extra mile and connect more of the dots.

As you work your way through all the testimony given here this evening to decide which candidates should be submitted to the governor, it is really important for Justice D’Ambra to be on your list. Thank you, all of you, for your hard work here.

Wednesday, August 18, 2010

5. What if I got it wrong?

Last night the Judicial Nominating Commission completed its work and selected a list of 5 candidates whom the Governor will interview in order to appoint one chief judge of Family Court, subject to Senate confirmation.

This gives the public two more opportunities for public input—to the Governor and then, after he appoints one candidate, to the Senate Judiciary Committee.

Because of the cases I have followed, I had concerns about all the candidates. My comments made me uncomfortable. I get no joy out of embarrassing people or being overly critical.

We heard the usual tributes, including some that were very moving. I did not speak in support of one candidate, but for whichever candidates might be most likely to reform the system. At least two had submitted plans.

The public needs an opportunity to reflect on all their proposals. Together the candidates represent 90 years of experience on the bench, and they have significant insights.

I came home and went online to search for states that have performance reviews of judges:

I was surprised to find Rhode Island on that list, because a commission had been appointed in 1993 after scandal enveloped the Supreme Court. As far as I know, nothing came of their work; judicial review is not being practiced here.

At that time, the judge who is now Acting Chief Judge of Family Court opposed it, saying it would compromise judicial independence. But a good review process should help to ensure the independence of judges.

I think we need judicial review, especially in Family Court. Well-intentioned judges need reliable, anonymous feedback from lawyers and also from litigants.

Is there a candidate for chief judge who is able to imagine a pilot project to begin judicial review in Family Court? Could a similar method help litigants to evaluate lawyers anonymously?

I wonder if I got it wrong when I feared a “fix” was in for a judge who had been on the bench less than one year. My suspicion came from the last time a governor named a chief judge to Family Court and appointed his “best friend,” who had been a judge for barely a year. That person ran the court for 23 years.

Maybe I got it wrong.

Maybe the Commission had seen something they liked in that new judge, and it was not a political “fix” at all.

Last night, he appeared modest, without an entourage, no glad-handing, only his equally modest adult son to speak for him.

When he lost the vote, I thought, maybe there was no fix after all.

Maybe I got it wrong. Maybe he would have been a fine chief judge.

I woke up today wondering how it affects people who wear black robes and sit up high, fully expected to pass judgment on others.

How often do they wonder if they got it wrong?

Saturday, August 14, 2010

4. Gagged again!

A mother who attended the JNC interviews on Tuesday gave me her name afterward. I'm glad she did it then and told me about her case, because DCYF and Family Court are now trying to take away her Constitutional right to talk.

She told me she definitely planned to offer public comment to the JNC on the 17th. Though she is now forbidden to talk, others with more information about her case are free to speak and welcome to contact me at

DCYF and a team of lawyers tried to gag me once from telling the story of "Molly and Sarah," now at

One lawyer, William Balkun, even tried to gag a protective mother from talking to me. (I will find his amazing motion and post it here. Click twice to enlarge it.)

I have not researched the details of Faith Torres' story, but I think you will be hearing more about it:

Judge bars R.I. mother from talking about custody case
7:24 PM Fri, Aug 13, 2010
Journal staff writer

PROVIDENCE, R.I. -- A Family Court judge has forbidden a woman from talking about her custody case with anyone, including the media, or posting anything about the matter on any blogs or other sites on the Internet.

The woman, Faith Torres, has contacted the American Civil Liberties Union about the gag order, but declined comment for fear of violating it.

"This court order is a blatant violation of the First Amendment,'' Steven Brown, executive director of the ACLU's Rhode Island affiliate, said. "If she believes she is being treated unfairly, or if she just wishes to make people aware of her case, she should be able to do so free of a court-ordered gag rule.''

The judge's order is so broadly worded, Brown said, that "Ms. Torres faces contempt of court charges if she discusses the case with her mother..."

By law, someone who violates a court order and is charged with contempt of court can face imprisonment.

Family Court Judge Debra DeSegna issued the gag order -- which applies not only to Torres but also her lawyers -- on July 29 at the request of the Rhode Island Department of Children, Youth and Families.

DeSegna was on vacation this week and could not be reached for comment. Neither Acting Family Court Chief Judge Haiganush R. Bedrosian nor Associate Judge Karen Lynch Bernard, who was filling in for DeSegna and signed the Torres order on Friday, responded to requests for comment.

Joanne H. Lehrer, the DCYF director's chief of staff, said Friday that she could not discuss specifics of the case. However, Lehrer said, it's not unusual for the agency's lawyers, particularly in custody cases involving domestic disputes, to draft such "broad brush" orders and ask the judges to enforce them to "protect the confidentiality of the child." (Emphasis added)*

The gag order issued by Judge DeSegna in the Torres case is contained in paragraph 4 of a 1 ½-page ruling that details the conditions under which Torres is allowed supervised visitation with her oldest child. It states:

"All parties to this action, including the Plaintiff and Defendant, and all counsel are restrained and enjoined from discussing any of the within court proceedings and related matters involving the children with any third party, including but not limited to members of the media, postings on blog, and/or the internet."

Torres said at the time that her lawyer, Jodie Gladstone, objected to the order but the judge overruled her.

Several calls to the Providence law firm where Gladstone practices went unreturned. A woman who answered the phone at the firm told a reporter that Gladstone could not respond due to the court order.

*In cases I have researched, this has nothing to do with "protecting the confidentiality of the child," but attempts to protect DCYF from lawsuits for color of law offenses and for violating the Constitution. I am posting a followup article from the Providence Journal here:

Judge lifts gag order in Torres custody battle
01:00 AM EDT on Wednesday, August 18, 2010
By Tatiana Pina
Journal Staff Writer

PROVIDENCE — Faith Torres left her credit card and other valuables at home Tuesday when she went to Family Court. She didn’t know how her hearing was going to go, and she might be spending time in jail.

Torres is in a custody battle to get her children. On July 29, Family Court Judge Debra E. DiSegna had ordered her not to talk about her case with anyone, including the media, or post anything about it on the Internet. Torres feared DiSegna would find her in contempt of court because she had contacted the American Civil Liberties Union, and a story had appeared in Saturday’s Journal.

But after conferring with lawyers for about an hour Tuesday, Judge DiSegna lifted the gag order, though she forbade Torres and her lawyers from identifying her children or giving out confidential information about them in regard to the case.

“I was hoping for the best,” Torres said after she got out of court. “I was prepared for the worst.

“I thought I might have violated the order. … I was happy she kind of lifted it.”

But Steven Brown, executive director of the ACLU’s Rhode Island affiliate, said DiSegna’s new order is still too broad, and still violates the First Amendment.

“The ACLU remains concerned about the validity of orders like these in the absence of the consent of both parties to the case,” he said via e-mail. “While parents should always be mindful of sharing private information about their children in open forums, we continue to believe that neither DCYF nor the courts can impose broad prohibitions on parents from publicly discussing their own case, as even the revised order continues to do. …

“Protecting the privacy of children is important, but so is the ability of parties to shed meaningful light on the workings of our courts.”

Torres, 29, is trying to regain custody of her children. Three of them live with her, although they remain in state custody. Her fourth child, the oldest, lives with the child’s father, Genaro Fernandez. Torres wants her eldest child to live with her.

The gag order was issued at the request of the state Department of Children, Youth and Families. Joanne H. Lehrer, the DCYF director’s chief of staff, has said it is not unusual for the agency’s lawyers, particularly in custody cases involving domestic disputes, to draft such “broad brush” orders and ask the judge to enforce them, to protect a child’s confidentiality.

Shortly before the July 29 hearing, Torres had contacted a reporter at the Providence Journal about her battle to regain custody of her children. Torres said at the time that she was trying to start an organization for women who were victims of domestic violence who had lost custody of their children. She said she formerly worked as an account manager for a properties firm and an assistant administrator for a medical clinic. She is currently unemployed.

Torres said she had participated in parenting classes, psychological evaluations and counseling for victims of domestic violence, and has still been unable to regain custody.

Torres asked a Journal reporter to attend her Family Court hearing July 29. When the reporter contacted DCYF about attending the hearing she was directed to contact the court, but the acting chief judge for Family Court did not respond to the request. On the day of the hearing, Torres said, the judge ordered that anyone not participating in the case leave the courtroom.

On Tuesday, DiSegna allowed a reporter in the courtroom for Torres’ hearing, where Torres told the judge that the court visits were financially draining for both her and Fernandez.

Wednesday, August 11, 2010

3.E. Case Study: Listening to children

(This story begins below at 3.A.)

In this case, the judge has an important opportunity to interview the two girls, who are now old enough to speak for themselves. Some judges refuse to listen to children. But I have talked with many “trophy children” who are desperate to speak for themselves. Here are a few suggestions that might help:

1. Talk to children one at a time.

2. Give each child the choice of recording your conversation or having a stenographer present.

3. Consider not having parents or their attorneys present, since this can intimidate vulnerable children who may have bad associations with parents or their attorneys.

4. Relax. Do not wear a judicial robe.

5. Sit at the child’s eye level (but understand that some children have been taught not to look in adults’ eyes as if that were a sign of insubordination).

6. Once you are settled, the most important words to say are: “Thank you for taking the time to talk with me.” (Do not think that you are doing them the favor, but that they are helping you.)

7. Do not ask them to choose between parents.

8. Do not ask "gotcha" questions that are the hallmark of adversarial litigation. Within a few months children in these custody cases often learn to distrust guardians ad litem and psychologists who seem to ask trick questions and then twist the children's words to condemn a beloved parent.

9. Frame questions positively. For example, ask: “What kinds of things do you love doing with either one of your parents?” Ask interested questions about that activity. Then ask: “And what else?” If you find they are focusing on only one parent, you could eventually ask: “And what are the things you love doing with [your other parent]?”

10. Leave plenty of silence in the conversation. Do not rush in to fill the empty places. The child will begin to fill it. Smile. Nod. Say, "Yes." Show your interest. This conversation may show you which parent (if either) is the child’s life-line. This is very important for a judge to discern.

11. Another positive question might be: “If you had an entire day to do whatever you wanted, what would that be?”

12. Eventually ask: “Do you have any questions for me?” If you find one that you cannot answer, still affirm it: “I’m not sure of the answer, but I am writing down the question so I can think about it.”

13. Finish by looking in their eyes and simply saying, “Thank you.” This is a good time to add something positive about each child. (Never commend their appearance. Focus on their insights and ideas to show that you have heard what they most urgently wanted to say. This is no time to give a child any admonition or simplistic advice. A heartfelt "Thank you" is sufficient.)

A list like this is only a start. I have heard well-intentioned judges forbid parents to talk to their children about Family Court, as if a good parent could ever ignore their children’s most urgent worries. A good parent cannot do this without undermining the child's lifelong ability to have a trusting relationship. A good judge will recognize the futility of that order and search for a better solution.

Family Court is trying to get better equipped to help families that suffer from coercive control by an abusive parent. Listening to children is one of the best ways we can begin to improve our performance.

Tuesday, August 10, 2010

3.D. Case Study: Who's watching the children?

(This story begins below at 3.A.)

Any pretense at “judicial economy” in this system sounds as absurd as the oft repeated claims to be seeking the “best interests of the child.”

In this case, the former Textron VP had been fired for cause in 2001 under a cloud of sexual harassment charges.

Yet, on August 10, 2005, his own attorney, Barbara Grady, acknowledged in court that he was sleeping in the same bed with his five-year-old daughter on her court-ordered visits. To my amazement, Justice Macktaz showed little concern.

While pressing forward for sole custody, the former VP invested heavily in other court cases as well. In 2004, he tried to become a naturalized citizen.

The FBI reported that he was being investigated for insurance fraud. The Bureau for Citizenship and Immigration Services of the Department of Homeland Security denied his application based on its finding that he “lacked good moral character.”

U.S. District Judge Mary Lisi heard his appeal in 2006 and found that he had been claiming total disability at the same time he was travelling and pursuing top management jobs elsewhere. He failed to meet the statute that he “has been and still is a person of good moral character.”

In 2006, he hired still more attorneys to demand a million-dollar settlement at U.S. District Court for another business deal gone sour.

He finally won citizenship in 2009. That December, he bought a house “big enough for a family” and promptly sent an email declaring his intent to “woo” his former employee “properly,” saying “I am a man of my word.” His email continues:
We must stop pretending and do what is right . . . . I do love you still . . . . Make your choice and the business that we have been pursuing will easily fall into place.

Along with that email, their Family Court file contains the woman’s response—her January 2010 license to marry a man in Texas.

Once again, Barbara Grady entered her appearance and began filing motions to win her client possession of his daughter. The other girl's father entered his appearance on his own behalf, submitting motions that closely resembled Grady's. Indeed the orders he presented for Judge Capineri's signature--that won him temporary sole custody of his daughter--appear to have come directly from Grady's printer.

Many readers will throw their hands up in despair. Can anything be done to disarm a system that allows people to play such games and create such havoc at public expense?

No matter how wealthy a litigant is, taxpayers pick up the tab for judges, clerks, stenographers, sheriffs, and the enormous overhead through years of frivolous litigation at Family Court.

Perhaps some candidates for Chief Judge see nothing wrong in this system that provides steady income for bench and bar.

Hopefully some candidates will recognize the problems and have some ideas about possible reform. For example, how would they take these initial steps:

• to identify the dangers facing victims of domestic abuse in Family Court
• to independently assure children's safety
• to end waste and corruption in the system
• to enforce strict conflict-of-interest policies
• to stop frivolous litigation
• to trigger deadlines in cases that drag on without resolution
• to offer financial rewards and protection for whistleblowers
• to commit to prosecuting violations throughout the system

Tonight, six candidates will vie to become Chief Judge of Family Court. We will hear from them all.

Which ones are content to carry on business as usual? Which ones possess the insight to recognize these problems, the candor to name them, the humility to search for answers, and the strength of leadership to end "color of law" practices in Family Court?