10.Q. Cutting the Gordian knot

Alexander cuts the Gordian Knot, by Jean-Simon Berthélemy (1743–1811) from Wikipedia.org

Let's recap Tuesday at Washington County Family Court:

Everyone is angry. On the witness stand, "Barbara" has nothing nice to say about her former partner, "Tracy," and she's angry that "the blogger" has written about their daughter's positive evaluation at the Gifted Resource Center of New England (10.M. "Zealous advocates," March 14, 2012, below).

Tracy's attorney, Keven McKenna, is angry because Barbara filed an abuse complaint in 2010; Barbara's attorney, Cynthia Gifford, succeeded in getting Judge Raymond Shawcross to sign an extraordinary three-year restraining order to "protect" Barbara and Jenny from Tracy. Barbara still claims to be in fear of imminent physical danger, but admits that Tracy never even came near her.

Judge Debra DiSegna is angry at McKenna's loud, aggressive tone. She stops him and abruptly leaves the bench.

Gifford walks McKenna out and brawls in a voice everyone can hear: "When are you gonna grow up?!"

To which McKenna responds: "When are you gonna grow up?!"

Touché!

Chastened, the attorneys return. Fifteen minutes later, Judge DiSegna is back on the bench with a big book. She calls the attorneys forward to discuss some finer points of law and finishes with a plea: "Do you see any way we can speed this up?"

McKenna says: "Cut the Gordian knot. You have authority to do it."

Aha! A classical reference that means "to cut right to the heart of the matter without wasting time on external details" the way Alexander the Great did with a single stroke of his sword, cutting an intricate knot tied by King Gordius of Phrygia, because an oracle said that whoever undid that knot would become ruler of Asia.

With that clarified, McKenna settles down and asks Barbara what she will do to help reunify their daughter, "Jenny," with her other mother.

Barbara is not keen on this. She says she will encourage Jenny to get counseling, though she has already testified that Jenny resists counseling because she does not trust adults.

When McKenna calls Tracy back to rebut, he asks her the same question in reverse, something like: What will you do to reunify with Jenny, but still maintain her relationship with Barbara?

Tracy promises to make colored calendars that coordinate all three schedules--as she had done for ten years--to help Jenny spend time with each mother.

She lists four steps for reunification:

First, over spring vacation, Tracy wants to take Jenny to see the girl's grandmother, "Gras," who cared for her often, but has been critically ill and anguished over the court case. (In one touching moment, McKenna asks if Barbara knows Gras, Tracy's mother. Tracy responds yes, she was "like a fourth daughter" to her.)

Second, Tracy will pick up Jenny from orchestra on Saturdays and deliver her to school on Mondays and will be free to talk with her teachers, to attend track meets and other events.

Third, Jenny should spend the summer with Tracy to make up for "two and a half years total blackout," but their daughter will be completely free to see Barbara whenever she wants. Jenny will soon drive and be able to travel easily between homes.

Fourth, Jenny should be allowed to audition for the state's performing arts high school and take her own time to explore her interests. She could even repeat tenth grade there, since she is a year ahead for her age. Let her take a break from the pressure and decide how she wants to finish her junior and senior years.

Will you make sacrifices? McKenna asks.

Yes! Tracy says: When I was called up after 9/11, I drove a thousand miles every week to see my daughter. I never missed a visit!

Tracy has a large notebook with 170 exhibits to show that she thought she and Barbara were engaged in a good-faith effort at mediation with the late Dr. Judith Lubiner.

She mentions disturbing items in the court file, including a strangely substituted order without any court stamp. (Perhaps I will return to these later.)

Near the end of the day, Tracy says she felt "deceived." Judge DiSegna stops McKenna mid-question and asks the stenographer: Did you get that? I want the record to show that she felt "deceived."

Suddenly the hearing is over, and final arguments set for April 3rd. Is the Gordian knot getting pulled tighter? Or is it about to be cut?

10.P. "This is not how I do lawyering"

Attorney Christopher Corbett's colleagues consider him mild-mannered. Born under the astrological sign of Libra, he likes to keep things in balance.

His hope to mediate this custody case has evaporated by May 9, 2008, when he finally agrees to represent "Tracy" against "Barbara." Corbett knows that the two women's financial resources are completely out of balance.

With her parents' help, Barbara can wage a costly war at Family Court, while Tracy, who had served in the U.S. Air Force after 9/11, has been hit hard by the recession in 2008. A displaced veteran, she collects unemployment insurance and drives a taxi to make ends meet while training to enter a new field.

On May 21st, Judge Laureen D'Ambra appoints Attorney Kerry Rafanelli guardian ad litem. He requires the litigants to hire his friend, psychologist Judith Lubiner. He talks about them getting psychological evaluations from yet another favored court psychologist, John Parsons. The mounting bills produce gut-wrenching terror.

Corbett knows the severe limits on Tracy's income and works through the summer to draft a three-page settlement on August 21st that preserves joint physical and legal custody "without the interim mediation offered by Mr. Rafanelli," since "we are substantially in agreement."

Rafanelli responds by summoning both mothers to his office "to schedule a joint mediation session" and adds: "At that time I will develop a comprehensive Guardian Order for entry with the Court."

Barbara's attorney, Cynthia Gifford, writes that they want to work with Rafanelli and that her client has decided Jenny will have a "no cell phone policy." The girl can talk on the landline with her other mother only once or twice a day "for a reasonable length of time -- ten or fifteen minutes," which suggests ignorance about pre-teens and about healthy parent-child relationships that encourage adolescents to talk more, not less.

Gifford and her partner, Cherrie Perkins, are fully engaged in this case. Both attend most court hearings--an unusual investment of time and money for two principals of a law firm. Gifford pleads the case; Perkins sits behind her--often accompanied by friends and family (but no longer wearing the spurs I described on January 15th).

As I research the history of the case, I find that sometimes Perkins has come to court alone--appearing solo before Judge D'Ambra on April 24th, 2008, and solo before Judge Raymond Shawcross on September 10th, 2008, after he rotated to Washington County.

Twenty days after Corbett produces the three-page settlement, Perkins ignores his work and takes a single page to court. The transcript and order show she is doing something much the same as she did with Judge D'Ambra at the start of the case (see 10.N. "A color-of-law case," March 19, 2012).

(Click once on documents to enlarge.)

At first, Judge Shawcross and Attorney Perkins talk about Attorney Rafanelli's expanding role since Judge D'Ambra appointed him on May 21st. Now he is trying to mediate between the girl's mothers.

"He is wearing many hats," says Perkins, and Judge Shawcross responds: "As long as he doesn't wear the robe because that's mine."

At the bottom of the next page, the judge asks: "Has all the discovery been completed?"

This is an important question, since the court has statutory requirements, including deadlines, for collecting evidence--the "discovery" phase. Litigants would never waive these unless both sides are confident they have collected all the evidence--clearly not true in this case.

Perkins says something she was never authorized to say: "I don't believe they're going to do any discovery, Your Honor."

"Okay," says the judge. "You waive discovery." Amazingly, he instructs Perkins to write it into the agreement.

If this were truly an agreement that the parties had reached through mediation, it ceases to be that the moment Perkins insertes: "5. The parties waive discovery."

The certification page raises other questions. I would not quibble if Attorney Perkins signed her partner's name and then scrawled her own initials beneath the certification. But if she mails the document to the opposing attorney on September 10th--the same day she appears before Judge Shawcross and modifies the supposed agreement between the parties--she clearly violates the Court's rule to notify the other side in a timely fashion before submitting orders for a judge to sign.

I'm just guessing here--based on Gifford and Perkins' signatures on their 2011 letter to the Judicial Nominating Commission:

When I go back to the original "Consent Order" of May 21, 2008, I wonder if Attorney Corbett has ever seen the document that Judge D'Ambra signed:

Tracy recalls how the escalating conflict astonishes Corbett until he explodes in Rafanelli's office: Is this what you're trying to do--cut [Tracy] completely out of [Jenny's] life, because that's what it feels like!

Finally Corbett tells Tracy: "This is not how I do lawyering." She calls the Volunteer Lawyers' Program at the Bar Association. Corbett withdraws, and Attorney Susan Pires enters her appearance on October 22, 2008.

Tracking Tracy's resourcefulness over these four years--her ability to find principled lawyers and therapists when the Court seems to be playing games without rules or umpires--resembles the way in which she had encouraged Jenny to pursue countless extraordinary opportunities in their first twelve years together.

The history of this case also shows how much Jenny lost by being forbidden to freely communicate with this mother during her teenage years.

Artwork from a book "Tracy" and "Jenny" worked on together.

10.O. Overcoming fear

I was washing dishes tonight, listening to Rhode Island Public Radio, when a tragic story reminded me of court today . . .

Last month in Florida, a neighborhood watch volunteer, George Zimmerman, 28, followed 17-year-old Trayvon Martin, who was visiting his father's friend in a gated community.

Zimmerman claimed he was afraid of the teen and phoned 911:

There's a real suspicious guy...looks like he's up to no good....on drugs or something....he's just staring, looking at all the houses, looking at me.... coming towards me...got his hand in his waistband, and he's a black male....something's wrong with him....I don't know what his deal is....

The police dispatcher warned Zimmerman not to follow the young man: "We don't need you to do that."

But Zimmerman followed anyway in his SUV, got out with his 9 millimeter handgun and killed the 17-year-old, claiming it was self-defense. The dead youth held only a bag of Skittles and a can of iced tea.

That's what fear does.

"Barbara" says she was so fearful of her former partner, "Tracy," that she hired a law firm to win sole custody of their daughter, "Jenny."

I can see the courtroom again: Barbara's lawyer, Cynthia Gifford, wants her client to talk more on the witness stand about fear--all the bad things that might happen if Tracy and their daughter resume their close relationship.

Tracy's attorney, Keven McKenna, objects to the speculative narrative. Judge Debra DiSegna sustains his objection.

Barbara claims that Jenny is much better now with Tracy out of her life, but admits there are those odd moments when Jenny seems sad and says stuff like, It's not something you can help me with.

McKenna begins his cross examination by impugning Barbara's credibility, getting her to admit an embarrassingly false assertion in her "Complaint for Custody" four years ago.

Barbara conceived and gave birth to Jenny the old-fashioned way. The child's father willingly gave up his paternity rights so his friend, Tracy, could formally adopt the baby. Both mothers' names appear as parents on her birth certificate. The child's full name includes both their surnames.

McKenna also asserts that they successfully co-parented Jenny for twelve years.

He introduces a notebook of emails as if to suggest that the one Barbara seized and Gifford pored over for days with Dr. Vilker was (as Vilker suggested it might be) an aberration and not representative of a long list of positive emails between Tracy and her daughter.

Barbara is annoyed by "the blogging." She says it is biased.

It is true that I, as author of the blog, am offended--not by Barbara, but by the lawyers who dragged her here to make their living. I am frankly troubled by the damage adversarial litigation does to families, the sarcasm from both sides, the games of Gotcha that degrade everyone in the room.

I write about color-of-law custody cases at Family Court because I am paying for them with my taxes, and they need to end. They have done lasting damage to children and families for no good reason but to enrich a privileged guild.

In this case, maybe the only way out, ironically, is to let Jenny be independent, to set her free of the lawyers, the emergency ex parte motions and miscellaneous complaints that have trapped her and her mothers here through all her teen years.

This much is certain: Tracy and Barbara have an amazing daughter. I suspect that once she is independent, she will find ways to build healthy relationships with each of them.

Her love may succeed in finally overcoming fear.

"Jenny" made this picture in 2008.

10.N. A color-of-law case

There appears to be no record of some critical proceedings in this case -- such as the first day, April 23rd, 2008, when Judge Laureen D'Ambra switched "Jenny" from joint custody with both mothers to sole custody with Barbara. (The change was drastic, but that date never appears on the docket sheet.)

Jenny's two mothers, "Barbara" and "Tracy," had entirely different plans for the 23rd -- a Wednesday, when Barbara normally finished work early.

Tracy says she had made an appointment a few weeks earlier for both of them and their daughter to meet Attorney Christopher Corbett, who advertised mediation services in Options Magazine to the LGBT community. Tracy was to pick up Jenny from school and meet Barbara at Corbett's office for a free initial interview at 4 p.m. on Wednesday, April 23rd, to consider working with him on their family's issues.

Barbara had another plan: On April 22nd, she met with Attorneys Cynthia Gifford and Cherrie Perkins to work on a "Motion for Ex Parte Relief," a 12-point "Affidavit in Support of Emergency Order," a 24-point "Miscellaneous Complaint for Custody and Other Relief," and a partially completed list of her bank accounts, income and expenses.

On the 23rd, without notifying Tracy, Gifford and Perkins persuaded Judge D'Ambra to sign an emergency ex parte order awarding Barbara sole custody of Jenny. The documents they prepared are in the court file and entered on the docket sheet the following day. Apparently no record was kept of what they told the judge.

(Click once on documents to enlarge.)

That afternoon, as Tracy and Jenny arrived at Corbett's office, Gifford and Perkins were preparing a subpoena summoning Tracy to a hearing one month later on May 21st and informing her that "the Court has already issued Orders pending the hearing as set forth in the attached Ex Parte Order."

A transcript tells what happened the next day, on the 24th, when attorney Perkins appeared alone at a second ex parte hearing and asked Judge D'Ambra to give Barbara complete control over Tracy's contact with their daughter.

Here's how Perkins portrayed Tracy's actions the previous day:

Your Honor, after I was here yesterday, we informed our client [Barbara] of the court order and gave her a certified copy. We did advise her to contact the Defendant [Tracy]. . . and tell her that she'd retained counsel and give our name and tell her that there had been an order entered; and upon hearing that, the Defendant became a little upset and removed the child from school early, and this was not her day to have the child. . . . The Defendant took her to an attorney's office, which would be a violation of the order . . . . My office received a call . . . from attorney Chris Corbett, saying that he was sitting with the Defendant at the time, which would lead me to believe the minor child was there with him . . . . We left a message [for Corbett] this morning saying if you're going to enter your appearance, you should get down to Washington County Court . . . .

Still hoping to mediate, Corbett waited two weeks before entering his appearance as Tracy's lawyer on May 9th. He and Tracy worked that summer on a settlement, which Barbara and her attorneys rejected. The court hearings were all held without Corbett, and Tracy never met Judge D'Ambra.

Gifford and Perkins had composed the April 23rd order, but Judge D'Ambra inserted additional words: "pending a hearing on the motions" on May 21st. That hearing never occurred, though a key order was signed that day.

Shortly after noon on May 16th Gifford and Perkins faxed a "Consent Order" (perhaps to Corbett) purporting to reflect a hearing five days later on May 21st, "without the taking of testimony." Whether or not the scrawl identified as Corbett's signature was authentic, Judge D'Ambra signed the document that appointed attorney Kerry Rafanelli to be guardian ad litem for Jenny.

Though the judge apparently wrote "8/13" for the next hearing, Rafanelli was back in court on June 24th with his boilerplate order drawn up for the judge's signature, granting him all-encompassing authority without clarifying the cost or setting a limit on the tens of thousands of dollars he could charge Jenny's mothers while exerting complete control over their lives as guardian ad litem.

The Court defines this role in the broadest possible terms. The abuse of power by guardians ad litem , the damage they do to children and families, and their enormous bills are some of the most common complaints against Family Court.

Six days after Judge D'Ambra signed that order, Rafanelli wrote to Tracy and Barbara, once again without ever discussing the cost: "At this time I think it is in the best interests of the minor child to be involved in counseling" with psychologist Judith Lubiner.

Those first nine weeks reveal the patterns that played out repeatedly and still continue in this case and other color-of-law custody cases:

1. the use of ex parte emergency motions;
2. failure to notify the other side of court hearings;
3. creating fraudulent narratives, story-lines, and court histories;
4. accusing the other side of violating court orders that were not yet entered;
5. bullying and harassing the other side;
6. creating a professional cabal to financially exploit litigants and their children.

Three years later, Dr. Lubiner sat beside Attorney Rafanelli at a hearing of the Judicial Nominating Commission, forced to listen as Tracy and other parents testified against Rafanelli's bid to become a judge. Commissioners received 69 letters of support for him--17 more than the other eight candidates combined. His pile included a 4-page letter from Lubiner, two pages from Gifford and Perkins and two each from Judge Shawcross and Judge DiSegna. Those enthusiastic accolades may have hurt as much as the attacks did, for Commissioners dropped him on their first ballot.

(The Rhode Island Monthly lionized Attorney Kerry Rafanelli and two other guardians ad litem in their October 2003 issue.)

For more on cabals of court, see the February 22 and March 16, 2012, posts at
http://CustodyScam.blogspot.com
and
http://LittleHostages.blogspot.com/2009/12/why-did-lise-iwon-do-it.html

10.M. Zealous advocates

The "stress" at the Summer Institute for the Gifted (SIG), University of Texas, Austin

Yesterday's Providence Journal reports that six Rhode Island high schools--including three that serve some of the state's poorest students and three that are among the highest-performing high schools--have accepted state Education Commissioner Deborah A. Gist's challenge to have 15-year-olds tested by the Program for International Assessment (PISA) in these schools' effort to become world class educators (Jennifer D. Jordan, "Six R.I. schools to be part of global test," p. A1).

Among the six schools is the one that 15-year-old "Jenny" hoped to attend, the Jacqueline M. Walsh School for the Performing Arts (JMW) in Pawtucket (See "10.C. Jenny's dream school," below).

Five years ago, in March and April 2007, Deirdre V. Lovecky, PhD, at the Gifted Resource Center of New England, administered tests to then ten-year-old Jenny and advised her parents that Jenny "is a gifted girl who will need . . . an educational program that meets her needs for accelerated and stimulating work."

Lovecky's report is striking in its positive tone. She adds five detailed pages of specific opportunities and conveys a sense that parenting a child like Jenny is a great joy: "[Jenny's] parents might enjoy taking [Jenny] to museums, using a treasure hunt or scavenger hunt format."

One of Jenny's mothers, "Tracy," encouraged this approach, providing numerous opportunities for Jenny to do a wide range of activities, such as the Summer Institute for the Gifted (SIG) at Amherst in 2007, Vassar in 2008, and the University of Texas at Austin in 2009.

Jenny looked forward to going to SIG at Bryn Mawr in 2010, but Barbara cancelled her acceptance and sent her to different camps for two entire months in the summers of 2010 and 2011, rather than letting her spend any time with Tracy. This has become a common practice of Family Court psychologists who try to "deprogram" children who are emotionally attached to one parent.

Ironically Barbara claimed that Tracy sought to control Jenny and was making her life too stressful. Meanwhile Jenny grew increasingly desperate to communicate with Tracy.

When Jenny was 12, Barbara wrote:

On Friday, October 23, 2009, I went to wake my daughter and found her fully clothed, asleep, with a new cell phone by her side.
. . . I removed the cell phone, left a note and retrieved the messages she had received the night before . . . . When [Jenny] woke and discovered the cell phone missing and my note, I tried to talk with her. She went under her covers, went rigid and I had to literally lift her off the bed to get her to school. . . .

Barbara's attorneys gave the Court these alleged text messages, which began with the girl writing to her mother, Tracy, at 6:06 pm:

I have the apps

Tracy writes back instantly:

Soooooo happy 2 hear from you...do u mean apps for JMW? I was soooo worried about u all week not hearing from u... r u seeing Judith [Lubiner, court-ordered psychologist] 2nite or not?

Jenny responds promptly:

Yes. Im sorry 4 makin u wory. Gues what? Sensei said that he wuz bout 2 become a math teacher there but went to that other place first

Tracy uses this as a teaching moment:

really? ...see? he values the cultural arts. read the app carefully...I think u need a pic. I have some here or you take one with the photo booth on the MAC if you want so its current....yes?

It would be unfair to evaluate each mother's relationship to their daughter by contrasting Jenny's encounter with each of them in the scene Barbara portrayed.

But as I try to understand the manner in which Attorneys Cynthia Gifford and Cherrie Perkins zealously advocate for Barbara, and as I compare it to Tracy's zealous advocacy for Jenny, I am learning a lot about the games lawyers play (which I will describe in more detail later).

I could not continue to do this work if I did not believe that what happens routinely at Family Court in these disturbing custody cases will someday seem as absurd as other games that flourished once upon a time.

Paulus Hector Mair, de arts athletica, 1540s

10.L. Every courtroom needs a ruler

On Friday afternoon two parents stand before the judge, with a lawyer between them saying one has stalked out of mediation. He angrily denies it and insists that his favorite psychologist can settle their case.

Next in line, Attorney Gifford questions her client, "Barbara," who also refuses to mediate.

What's a judge to do? At the end of a long week, the answer finally comes to me:

Let the deputy sheriff measure the nose of each litigant and lawyer every time a question is asked or answered. We will soon see which side is telling the truth.

(Pinocchio, drawn by Enrico Mazzanti for The Adventures of Pinocchio by Carlo Collodi, 1883.)

10.K. Searching for Best Practices

Yesterday was Dr. Ronitte Vilker's final day on the witness stand.

Once again, Attorney Cynthia Gifford tried to get the psychotherapist to discredit her patient, "Tracy," with a series of hypothetical questions and misleading assertions cherry-picked from an email Tracy had sent to their daughter "Jenny" twenty-nine months ago and from a 25-page letter Tracy had sent to "Barbara" nearly four years ago.

Attorney Keven McKenna objected repeatedly, but Judge Debra DiSegna overruled him.

Dr. Vilker insisted that Gifford's questions ignored the context for Tracy's remarks and the way in which a person with autism spectrum disorder (ASD) might normally respond to the pressure she was feeling.

Gifford tried to get Vilker to imply that Tracy could suffer from other psychiatric conditions than ASD and PTSD. Judge DiSegna pushed the HIPAA envelope by asking whether Vilker would refer her patient for further tests. Dr. Vilker's discomfort was visible.

She looked at Tracy, who nodded.

Dr. Vilker said she wanted to continue working with Tracy, who had voluntarily sought her help. She would recommend that Tracy also work with a doctor who specializes in helping patients with ASD to develop skills for examining their thoughts before expressing them in ways that may prove counterproductive.

DiSegna inquired: Could the Court order specify that Tracy must cooperate with her therapist?

Vilker responded emphatically: No! That would undermine the therapy.

Vilker said she would never return to the courtroom, and DiSegna assured her she was not subject to the Court in any way.

This important exchange underscores what I've seen over two decades of Family Court custody cases: a few psychologists are doing enormous harm to children and families by delivering Court-ordered "evaluations" as a business--similar to the testimony Attorney Gifford kept trying to extract from Dr. Vilker.

Attorney McKenna asserted that the Court is not qualified or authorized to be in the business of behavior-modification. He asked whether it is harmful for a child to be separated from a parent for two and a half years when there has been no evidence of abuse by that parent. The therapist agreed.

I have been listening to delightfully engaging interviews of David Finch, author of the new book, The Journal of Best Practices: A Memoir of Marriage, Asperger Syndrome, and One Man's Quest to Be a Better Husband.

http://davidfinchwriter.com/radio

David and his spouse, Kristen, describe the undeniable challenges in their relationship and how they are overcoming them together.

This raises yet another hypothetical question:

How much better off would Jenny and her parents be today if Barbara had known in advance what Dr. Vilker has learned? If only she had stayed far, far away from Gifford, Perkins, and the adversarial mindset of Family Court.

10.J. Déjà vu all over again

Some readers thought Attorney Cynthia Gifford's subpoena of me meant I was headed to prison. Not so. As ordered, I appeared in court yesterday, where no mention was made of my subpoena. These are tricks some lawyers play to intimidate, complicate, and if possible, accumulate billable hours.

"Barbara's" attorney, Cynthia Gifford, continued her cross-examination of Dr. Ronitte Vilker. "Tracy's" attorney, Keven McKenna, continued to object, saying Gifford was raising subjects far beyond the scope of his original questions and Barbara should pay the psychologist's fees to use her as an expert. Judge Debra DiSegna denied his objections.

But the judge also pleaded with Gifford to conclude her tedious cross-examination--which involved lengthy hypotheticals calculated to get the psychologist to say her patient, Tracy, was untrustworthy, a failure as a parent, a danger to her daughter, and incapable of co-parenting with her former partner.

It was déjà vu all over again, recalling the history of another psychologist, the late Dr. Judith Lubiner, on this case nearly three years ago, which I will recount at another time.

Snow and sleet fell outside, and another expensive afternoon slipped away at the Washington County Courthouse.

Then something remarkable happened. Gifford protested, but Judge DiSegna needed to ask the doctor some questions. In that instant, the atmosphere changed from an adversarial game of Gotcha to a heartfelt conversation between the expert and the judge about how they could make the future better for Jenny.

A wasted afternoon became some of the most potentially productive minutes in this case. The clerk and stenographer agreed to stay longer as we watched a scene unfold that needs to happen more often if Family Court is to provide the wisdom and justice that good parents hope for when they come here.