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:

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?

Monday, August 9, 2010

3.C. Case Study: Mischief in the court

(This story begins below at 3.A.)

Two court cases—one initiated by each child’s father—sometimes ran simultaneously in different courts creating room for mischief.

For example, on September 27, 2002, the young couple had a divorce hearing in Providence on the same day that lawyer William Holt was fourteen miles away at the Kent County Courthouse asking Justice Rocha to sign an order he said Justice Voccola had issued eight months earlier. The transcript from January 16th shows Voccola saying:
My understanding is Mr. Holt will be preparing an order which will amend the birth certificate for [the younger child] to show the surname of [her father, the former VP], if that is agreed to.

Out of consideration for children’s emotional health, Rhode Island law does not require a child born out of wedlock to use a biological father’s surname, especially when the family uses a different name. But changing this girl’s surname became an issue of paternal control that resulted in a hefty fine and imprisonment for the mother. It also forced the two sisters, who looked alike in grade school, to explain why they had two completely different surnames.

Here’s how the stratagem worked:

Holt wrote his version of the order in a curious passive voice, asserting that Voccola adjudged the former VP to be the biological father and decreed that the child’s birth certificate “shall be modified,” and the child’s surname “shall be changed,” and a “certified copy of this Order shall be provided to the Health Department. . . .”

Voccola never directed anyone to carry out these orders on January 16, 2002. She had already given legal authority for the children to Murray-Rapoza, the guardian ad litem, on May 23, 2001. Holt certified that he had sent an advance copy of this order only to the mother’s attorney, but not to Murray-Rapoza, who should have received all communications about the children. Indeed, she would have been the logical person to change the birth certificate.

Justice Rocha signed the order on September 27, 2002, adding the Latin words nunc pro tunc, meaning “now for then.” Holt took four more months to deliver the unusual order to the clerk, who entered it in the record January 21, 2003, two weeks after the mother's attorney had withdrawn from the case, and more than a year after Voccola mentioned the name change “if that is agreed to.”

The order lay undetected in the rapidly expanding court file for nearly three years. It eventually served as a blunt instrument for punishing the mother, who had stood up in court on July 13, 2004, to accuse attorney Holt, Justice Rocha and Patricia Rocha, his daughter, for perpetrating insurance fraud.

I remember Holt’s astonished expression as a pile of papers flew up from his hands, creating instant distraction. He diplomatically assured the judge there was no need to consider any pending motions for the rest of the summer, since judicial rotation would occur in the fall and “in the interests of judicial economy,” all motions could be re-filed at that time.

Thereupon Justice Rocha and attorney Holt disappeared from the case. When Justice Pamela Macktaz arrived at Kent County Courthouse, attorney Barbara Grady took over as attorney for the former VP.

Family Court custody cases are often played like a waiting game as children grow from one stage to the next. When the baby was old enough to start school, Grady found a way to use Holt’s lurking name-change order to her own advantage.

Two days before Thanksgiving 2005, Macktaz called in four sheriffs to hustle the diminutive mother out of the courtroom in handcuffs for contempt of court, because she had registered her younger daughter in school under the child’s birth name. Attorney Grady was careful not to say the mother had failed to change the birth certificate, for she had never been ordered to do that. Instead, Grady accused her of using a “fraudulent document.”

Macktaz ordered the defendant to be “held at the Adult Correctional Institution . . . until such time that she schedules an appointment for a full psychiatric evaluation with a licensed psychiatrist.” The mother won her release by the end of the day, but Macktaz ordered her to pay Grady’s fee from her escrowed funds at a rate that had become the standard withdrawal for officers of the court -- $5,000.

NEXT: D. Who's Watching the Children?

3.B. Case Study: Going for the gold

(This story begins below at 3.A.)

As their divorces got underway, these couples and their lawyers devoted most of 2001 to their finances.

Intending to marry the mother of his baby, the Textron VP gave her a diamond ring that she later insisted was an outright gift in return for her cooperating with the ruse so they could both keep their jobs at Textron. She says her husband was then unemployed, and she worried that they could not pay the mortgage on their new home if the VP fired her.

As for the VP’s divorce, his ex-wife had no lawyer and no apparent need for one. She gained assets worth over $4.3 million, while he got unspecified amounts in annuities, deferred income, and stock options, plus assets worth over a million.

He reached a settlement with Textron to protect the company against more claims of sexual harassment, while Textron supported his bid for disability insurance with help from doctors who said he was legally blind.

Pegged to his former salary of half a million dollars, his disability payments from Social Security and corporate insurance totaled $15,000 a month, from which he agreed to give the baby’s mother $1,500 a month child support--the same amount he would give his ex-wife for their teenager.

The baby’s mother reached her own settlement with Textron. Her husband’s attorney, John Lynch, persuaded Justice Voccola on May 18th to “equalize” counsel fees for lawyers on both sides, to be paid from marital assets, though it was not yet clear whether that could include her settlement.

On May 18th, Voccola also appointed the guardian ad litem—Patricia Murray-Rapoza, who four months later secured the judge’s order for the couple to sell their home so they could pay their legal fees. By January 2002, Murray-Rapoza wrote to the young couple's lawyers:
You will note that I severely underestimated my time on this case . . . . I know your clients are 'strapped' for cash at the present time. I would respectfully request that when the house sells that I be paid from the proceeds. I will be willing to wait for the money.

Some suspicion of deceitfulness rankled the judge. Though this was never asserted under oath, Voccola heard that the two former Textron employees, adversaries in the courtroom, were behaving like sweethearts at Sam’s Club. She declared her recusal, clearing the way for the next judge: Gilbert Rocha, whose daughter, Patricia Rocha, was one of Textron’s attorneys that negotiated the VP’s settlement with attorney Holt.

Instead of recusing himself from the case because of his daughter’s involvement, Rocha took the bench in time to intercept insurance company lawyers who came to Rhode Island to investigate transcripts, seeking to find out whether the former executive was truly blind and unemployable. Did he deserve the millions they were paying? Rocha blocked their access to the court record and sent them home for subpoenas.

Meanwhile, in the divorce case, Rocha began doling out escrowed funds to Murray-Rapoza, the guardian ad litem.

This angered lawyers for the divorcing parents, who demanded their share and handwrote a stipulation, using exactly the same words that Murray-Rapoza had used. Though they submitted no bills for their work, Justice Rocha signed the hasty order that awarded each lawyer $5,000 from the couple’s escrowed funds. By signing the order, he unwittingly created a second and third guardian ad litem for the two children.

The wife’s escrowed settlement funds produced a separate feeding frenzy as more lawyers secured non-refundable deposits and submitted bills to the court before abandoning her case. That fund would be managed by the guardian ad litem, Murray-Rapoza, and it would be tapped again by attorneys for the other side.

NEXT: C. Mischief in the Court

Sunday, August 8, 2010

3.A. Case Study: Findings of fact

A recorded phone message came last month from a 10-year-old to the grandmother who had cared for her until Justice Stephen Capineri placed her with her father at the end of this school year:

“Hello?” She speaks in a tiny, hesitant voice. Her father interjects: “Nobody there.”

“Oh, eh,” the girl stumbles, but continues to leave her message: “Hello. . . .” She uses her grandmother’s ethnic title and continues: “I miss you. Please call me back. Love you. Bye.” At the last instant, her tone changes to a frantic scream: “I love you!” The message ends.

I recently sat three rows behind the girl and her father at a piano concert. I was surprised to see them. Her father once claimed to be blind, though he seemed to be reading the covers of the CDs for sale.

Knowing their custody case, I had concerns about his character. Seeing them at the concert prompted me to go scan the court files and learn what was happening in her case and that of her older sister.

Some of the allegations this girl’s father and mother have flung at each other may have merit, but others make me suspicious. Litigation clearly is being used as a tool of coercion and control, fueled by the wealth of a Fortune 500 company that has drawn a swarm of lawyers eager to occupy the Family Court calendar.

The case demonstrates several troubling facts about Family Court:

1. The Court is fraught with legal abuse by litigants and officials alike.

2. Conflicts-of-interest involving judges and lawyers produce a defective brand of justice.

3. Adversarial litigation often re-traumatizes troubled families.

4. Frivolous litigation makes Family Court a goldmine for a small group of lawyers (who ironically accuse this mother of being a “gold-digger”).

On May 18, 2001, at Kent County Courthouse, Family Court Associate Justice Kathleen Voccola appointed attorney Patricia Murray-Rapoza as guardian ad litem for two sisters, aged one and two.

On that same day, attorney William Holt launched a custody suit against their mother on behalf of a vice president of Textron, for whom she worked, who claimed to be the younger girl’s father.

Voccola, Murray-Rapoza, and Holt were all close to Family Court Chief Judge Jeremiah S. Jeremiah, Jr.

In 1979, Jeremiah was Cranston’s city solicitor under Mayor Edward DiPrete when Voccola became assistant solicitor. Holt worked with them as an administrative assistant in the mayor’s office while going to law school.

Voccola oversaw liquor licenses for the city until DiPrete became Governor in 1985 and made Voccola the State’s liquor control administrator.

Jeremiah served as executive counsel to Governor DiPrete, who appointed him to the Family Court bench in 1986 and made him Chief Judge a year later.

In 1988 – despite revelations of corruption in DiPrete’s administration – Voccola agreed to fill out the Republican ticket in a doomed race for Attorney General. She lost, but DiPrete won re-election as Governor, and in 1989, he appointed her to a coveted lifetime seat on the Family Court bench.

In 1998, DiPrete pled guilty to 18 felonies. This saved the state the cost of a trial, but it denied citizens the opportunity to learn details about his crimes and co-conspirators. The former governor spent a year in prison and lost his pension.

Jeremiah, Voccola, Holt, and Murray-Rapoza have not been linked to DiPrete’s wrongdoing.

Skip ahead to May 2, 2001. Murray-Rapoza purchased Chief Jeremiah’s Cranston office building, where both she and Holt had been tenants. The building had become an embarrassment to Jeremiah when he awarded public funds to a police group that paid him part of the grant as rent.

Murray-Rapoza bought the building. Jeremiah took back the mortgage and joked in court that she made regular payments to him.

On May 18th, Judge Voccola signed the order making Murray-Rapoza guardian ad litem for the two young sisters in a custody case that promised to pay well.

Three weeks after that, in June 2001, Textron fired its VP, Holt’s client, for cause amidst allegations against him of sexual harassment. The daughter born to him and his subordinate in 2000 grew to look like a twin of her older sister.

Today, the woman’s former husband says it was the worst day of his life when DNA proved the younger child was not his. He says he still loves the children as if both were his. He and his daughter see the younger girl and her father each week. He wants them to grow up close to each other and respecting all three parents.

When the girls were little, he thought they should stay together with their mother. But then she began travelling to other states, pursuing careers elsewhere, leaving the children in the care of their grandmother, who could not drive or speak English. He said the older woman seemed overwhelmed.

When his former wife had both girls living with her, he tells me, she “missed most of the major holidays with them and never notified the fathers that she would not be there.”

Each father went to court after Christmas 2009, when they said their daughters spent the holiday with their grandmother, but without any of their parents. Early this year, each father won temporary sole custody, though the girls were allowed to finish the school year where they were.

Now their mother lives in Texas, where she says she is married again and pregnant. She tells me she commuted to her home in Rhode Island when the children were there. She sends daily emails to the fathers, demanding to speak with each girl on the phone, but the court has forbidden her to communicate with them. Both fathers allege that she encouraged the girls to lie and be disruptive. When the court scheduled a trial for June 30th, she sent a note from her Texas obstetrician saying complications in her pregnancy made her unable to travel.

Meanwhile she says that her right to due process has been violated in both cases. She is seeking writs of certiorari from the Supreme Court.

Should we be spending public funds to sort out such interminable chaos?

The wealthy father has no lack of lawyers. The other father represents himself, though his motions appear to be prepared by the wealthy father's lawyer. The mother researches law and submits countless motions, sometimes without help of a lawyer. The cost to the state is enormous in salaries for judges, clerks, stenographers, sheriffs, and overhead. But the children have most to lose.

As far as I can tell, this is not a domestic violence case like those I usually write about--though all sides have felt abused. The mother alleges that her former supervisor, father of her younger daughter, committed domestic violence by "pushing, shoving, hitting, yelling obscenities, threats and intimidation" and (according to her daughter) made the little girl sleep in the same bed with him when he took her to hotels for his visits. Sadly, from my own study of this case over six years, I believe that only the original father seems focused on the children and their needs. The other two parents seem obsessed with litigation in a system that appears to be destroying them all.

The cost is enormous to the state and far more to the children. But some have reaped rewards.

NEXT: B. Going for the Gold

Tuesday, August 3, 2010

2. Judges with absolute power but no curiosity

(Click once on the ACLU news release above to enlarge it.)

Lawyers representing Rhode Island's ACLU and twenty ethics professors from law schools throughout the country are in Superior Court today seeking to pursue a class action suit against Family Court Chief Judge Jeremiah, magistrates and officials who have permitted Truancy Courts to operate in their schools. ACLU charges are similar to concerns we have raised about the way Family Court handles domestic abuse custody cases:

The pending lawsuit, filed in March by the National ACLU and its Rhode Island affiliate, charges that the truancy courts are frequently punitive in nature, and that truancy court magistrates threaten vulnerable children and their parents with baseless fines and imprisonment, remove children from the custody of their parents without legal justification and fail to keep adequate records of court hearings.

(Two trophy children who had been court-ordered into custody with abusive fathers succeeded in returning to protective mothers after several years--when each one suffered an emotional breakdown and missed school. Both of their fathers responded to this by reporting them to truancy court--another means of exerting power and control over their families.)

Family Court gives judges kingly power, but takes away their sense of curiosity and concern about what is really happening to the people who come before them.

How is the Family Court system set up to do this?

Custody cases surround the judges with "courtiers"--privately paid officers of the court, lawyers, and guardians ad litem--who represent vested interests. They can and often do repeat lies, rumors, and innuendos in bench conferences or in chambers with no evidence and no record. Even the Rhode Island Supreme Court, that condemns these off-the-record conferences, has not been able to stop them.

Victims of domestic abuse who are trying to protect their children have had their children removed, have been imprisoned, have lost their jobs and been forced into bankruptcy through years of frivolous litigation, and have been subjected to unconstitutional "gag" orders--forbidden to speak about the Court's actions for fear of reprisals against their children.

Which of the candidates for Chief Judge will recognize these concerns in their JNC interviews next Tuesday? Which ones possess the vision, capacity, and determination to reform the system?