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, January 31, 2012

10. D. “You’re making me dizzy!”

Last week, Judge Debra DiSegna expressed irritation at “Jenny’s” mom, “Tracy,” who kept standing, swaying, and fidgeting while attorney Cynthia Gifford grilled her in cross-examination.

Tracy’s attorney, Keven McKenna, objected repeatedly, questioning the need for such a barrage of insinuation that appeared calculated to trigger Tracy’s symptoms of high-functioning autism. Judge DiSegna overruled McKenna and demanded answers.

Tracy’s ADA aide was not allowed to sit beside her, where she could have touched Tracy’s arm or leg to focus her back on her body in the way that helps those with neurological disorders. McKenna and the aide searched for the magnets Tracy uses to calm herself and settled for coins she could shift in her palms.

Two days later, at the Family Court’s statewide training on the neurological and psychological impact of childhood trauma, the keynote speakers cogently described what was happening to Tracy in DiSegna’s courtroom. (I’ve posted more on this conference at

Licensed clinical social worker Robert Hagberg and Dr. James Greer described how “rockers” need physical movement to “quell their overactive limbic systems” as a normal and necessary balancing function of the brain’s cerebellar vermis. When teachers (or judges) think words should be sufficient to stop this behavior, they are simply mistaken.

Tracy and her brother were both born with autism, which may have contributed to later traumatic episodes. She was four when a playmate teased her by pulling away a pillow as she jumped. Her crash onto cinder blocks split open her skull. At nine she tried to pet a dog who bit away part of her face. Repeated surgeries gradually rebuilt her face and skull until she was twenty, when she said she could not endure any more reconstructive procedures.

She went on to serve in the U.S. Air Force with top clearance until she left in fear of the “don’t-ask-don’t-tell” strictures on gay and lesbian service members. An Air Force friend agreed to father a child for her and her partner, Barbara, who gave birth to Jenny in 1996. Tracy adopted Jenny. The girl’s birth certificate includes both mothers’ names as her legal parents.

Barbara’s attorneys, Cynthia Gifford and Cherrie Perkins, now appear intent on triggering Tracy’s symptoms as if to imply she is an unfit parent. Scores of photographs since Jenny’s birth--full of exuberant activities, trips, pets, and friends--convey the unmistakable bond between Jenny and Tracy, whose disability has never hindered her from being an inspired and nurturing mother.

Last week, Tracy testified that throughout 2008, she never even met Judge Laureen D’Ambra, who signed the emergency ex parte order that gave temporary sole custody to Barbara. In 2010, Dr. Robin Stern, M.D., Chief of Psychiatry at Kent County Hospital, testified that Tracy was not mentally ill. She wrote:
[Tracy] has no signs of psychosis, delirium, severe depression, panic disorder or substance abuse. Her presentation is consistent with what is called High Functioning Autism. A person with this disorder can present as paranoid, especially under conditions of increased anxiety and stress. They can look more disturbed than is actually the case. They are frequently misunderstood by someone unaware of autistic behavior as they have difficulty picking up appropriate social cues.
In terms of how her behavior would impact on a child, I do not see any dangerous or concerning impulses, thoughts or activity. Children are much more adaptable in the setting of unusual behavior and a daughter who is accustomed to a mother with autism would not be alarmed or confused. I would be more worried about the impact of loss on a child whose mother has been taken away.
Judge Raymond Shawcross disregarded Dr. Stern's expertise in 2011 when he ruled that Tracy was mentally ill. The history of this case illustrates how cabals, rife with rumors and false insinuations, influence far-reaching judicial decisions—a subject for another post.

Tonight, I am most concerned about Jenny, who is still forbidden to communicate in any way with Tracy. Tomorrow, Barbara will bring their daughter, now 15, to answer questions from the lawyers and Judge DiSegna. Will they grill her in the same taunting, abusive way? Or will they hear what she needs to say?

Last Wednesday, Attorney Gifford tried to condemn Tracy for bringing Jenny into the courthouse to observe public hearings in 2009.

Tracy had picked up Jenny when snow closed her school. But there were still plenty of opportunities for learning. And Jenny had pressing questions that needed answers. What better way for a conscientious parent to teach a smart youth about the forum where these decisions are getting made than to take her into an American courtroom and watch? Predictably, Judge Shawcross exploded and ordered them out of his court.

But the court file still holds Jenny's handwritten affidavit in green ink:

I cannot take living like this anymore, because it is driving me crazy. I am depressed and angry because of this whole custody battle . . . . I don't know how the whole court thing works, but I know somewhere, someone has said something inaccurate or I could be with [Tracy] right now. . . . . There is sooo much more to tell you about my situation and what I want. May I please talk to you?

On Wednesday, Attorney Gifford accused Tracy of trying to tell Jenny what her rights are under the law that allows 14-year-olds to go to Probate Court for a guardian ad litem of their own choosing.

Last Friday, Chief Judge Bedrosian’s statewide training introduced a panel of youth who had lived in the foster care system. They compellingly asserted their precept: “Nothing about us without us.”

Whenever I research custody cases, it is an important principle for me to try to detect the children's concerns. The last time Jenny spoke to me in private, she despondently told me that no one assigned by the court was listening to her. She deserves the opportunity to speak fully, without any harassment from lawyers, about her needs and hopes for the future.

In addition to ADA accommodations, the Family Court needs to accommodate this basic principle: Nothing should be ordered for Jenny without respecting her voice in the process.

Monday, January 23, 2012

10. C. Jenny's dream school

I've been learning about the Jacqueline M. Walsh High School for the Performing and Visual Arts. A charter school founded in 2005, it became the first public high school in Rhode Island to accept applicants based on their audition or portfolio. Their culturally diverse student body pursues rigorous academics with individualized work in their chosen field: visual arts, dance, music, or theatre.

Based in the Pawtucket Armory, the JMW High School has a mission:
To provide an intensive, high-quality, conservatory-style high school education in and through the arts
and a vision:
To fully challenge and nurture high school students with exceptional talent in the arts who wish to pursue careers in the visual and performing arts.

JMW is the only school in Rhode Island with art programs approved as "Career and Technical Education (CTE) Programs of Study." What an ideal school this could be for "Jenny," already a performing musician when she graduated from eighth grade in 2010.

But her two parents disagreed.

One of them, "Barbara," had money for lawyers to bring an emergency ex parte motion and persuade a judge to award her temporary sole custody in 2008. Everything went downhill from there as Barbara’s lawyers tried to stop the girl from communicating with her other mother, “Tracy,” who had nurtured her talents since early childhood.

Tracy was forbidden to attend Jenny's track meets, performances, and eighth grade graduation. Barbara confiscated a basketful of cell phones from their daughter’s attempts to contact Tracy.

How would Jenny’s world be different if she were at the JMW High School, a total environment of students and professionals devoted to the arts, where she could establish long-term contacts and relationships?

Last Wednesday, Tracy tried to persuade the judge: It’s not too late for Jenny to audition for next year.

Barbara’s attorney, Cynthia Gifford, minimized the loss: After all, Jenny plays in the band at her local high school. And she won a coveted seat in the state symphony orchestra.

Which proves she is motivated to excel and is missing out on one of the finest opportunities this state offers gifted students like her.

It’s too expensive, Gifford counters, as if to say: Why bother? Why encourage this girl to try?

Tracy says it might cost $500 a month, but there are scholarships, and Barbara is paying far more on attorneys to limit Jenny’s options. Tracy says she would gladly move to Pawtucket to cut the cost.

Tracy is a very good parent. But that is not evident in this courtroom, which has grown morbidly sick with sarcasm hurled back and forth between Barbara’s attorney and Tracy.

Barbara’s other attorney, Cherrie Perkins, talks to me today during the break, thanks me for noting her correction last week.

She tells me she is not an evil person. She started out really good, working at the Women’s Resource Center.

I tell her I don’t think she’s evil. I know she’s smart. So why doesn’t she help Jenny go to the JMW High School?

Why not use her compassion and intelligence to protect children from this dismal adversarial system?

"Someone as smart as you doesn't need to be in this line of work, doing this to people."

“I have to make a living,” she says.


Attorney Gifford is mangling the language the way lawyers do. She constructs convoluted questions out of leading statements she wants to get into the record:

Is it not true that the record shows you hold a grudge against Barbara?

I can barely imagine how these verbal gymnastics fry the circuits for someone on the ASD spectrum, like Tracy, who is intensely precise and literal.

Finally Tracy exclaims: "What kind of question is that? I can’t answer yes and I can’t answer no!"

Thursday, January 19, 2012

10. B. Cherrie Perkins set me straight

Silly me. I never have been too good at fashion.

After court yesterday, Cherrie Perkins let me know that the jeans she was wearing Friday were CERTAINLY not Wranglers, but Levi's.

We laughed. It felt good. (Why would anyone want to spend her one-and-only life laughing at people when it feels so much better to laugh with them?)

Sunday, January 15, 2012

10. A. A Rodeo Island courtroom stunt

What happened two days ago at the Washington County Family Court would be hard to believe if I had not seen it.

I was researching another case at the clerk’s counter about 2 pm when three women, perhaps in their 60s, appeared, asking where they could find “the courtroom with the woman judge.” The clerk directed them to Room 1, saying the judge would be there in twenty minutes.

They talked among themselves, comparing this courthouse to others they had visited. They eyed me suspiciously. Adversarial litigation breeds wariness.

They were soon joined by four others, apparently all guests of Attorney Cherrie Perkins, who greeted them with hugs when she arrived wearing heavy jewelry of silver and turquoise, wrangler jeans and cowboy boots, complete with spurs and a mean set of rowels—those spiked disks that let a horse know who’s boss.

It was an uncommon getup for a Rhode Island courtroom.

It was Friday afternoon, and Perkins’ friends were in a festive mood as if awaiting a spectacle. They settled into several rows behind Perkins, whose law partner, Attorney Cynthia Gifford, arrived with her client, “Barbara,” a mother intent on keeping her 15-year-old daughter, “Jenny,” away from the girl’s other mother, “Tracy,” who suffers an invisible disability on the autism spectrum.

Tracy is high-functioning, intelligent, gifted, and has held top-clearance positions in the U.S. Air Force. But she can become overwhelmed when confronted with aggressive stimuli and distractions.

Judge Debra DiSegna was endeavoring to provide accommodations for Tracy. Under the Americans with Disabilities Act (ADA), Tracy is entitled to bring an aide, who sits beside her. The aide uses calming techniques. She prompts and cues Tracy to slow down for the stenographer. She alerts the court when Tracy is growing distraught and needs a break.

The judge let Tracy stay seated at the defendant’s table instead of going to the witness stand, but required her aide and lawyer to move their chairs back. Gifford began her cross-examination, her voice trembling with stress.

Tracy answered precisely, but sometimes accused Gifford of goading. Without her aide at her elbow, Tracy grew hyper-vigilant, wary of trick questions. Gifford approached her. Tracy rose from her chair and backed away.

Four years ago, Perkins won an emergency ex parte order for Barbara to gain temporary sole custody of Jenny. The girl is Barbara’s biological child, but Tracy adopted her and cared for her from birth while Barbara pursued her studies and career. Though the two women separated, they successfully co-parented their daughter for more than a decade until Gifford and Perkins took charge of their lives.

Before that, Jenny had flourished, excelling in martial arts, track, and music. She plays in the regional youth orchestra. She used to go to summer science camps. The girl wanted to live with Tracy and attend an arts high school, but Barbara refused and got her lawyers to stop Tracy and Jenny from communicating altogether nearly three years ago.

In the courtroom yesterday, Perkins suddenly leapt to her feet. Her silver bangles clattered. Her boots shuffled across the aisle to confront a woman who held a cell phone. She wanted the deputy sheriff to check for pictures or recordings or text messages. While the Court waited, he obliged and found nothing.

When Judge DiSegna took a break and left the room, Tracy sat alone, her hands folded on the table.

Attorney Perkins, an officer of the court, stood with her friends in Tracy’s line of vision and laughed. One loudly exclaimed: “This is more lively than I expected!”

If Tracy were in prison, she would be allowed to testify in court on a monitor and telephone. She could avoid the smirks and bullying in the corridor, the provocations in the courtroom—although these may now give the judge important insights to what has been happening throughout this case.

Wouldn’t it be better if Tracy sat in a quiet room with her aide and a sheriff to assure the aide was not coaching her—so she could clearly communicate with the Court on a monitor, free of all this aggressive stimuli?

I wrote about this case long before Judge DiSegna inherited it. I searched back through our blogs to refresh my memory. It was in August 2010: