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

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:
http://www.ncsconline.org/wc/CourTopics/statelinks.asp?id=46&topic=JudPer

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?

1. Will the new Chief Judge of Family Court raise the bar?

This oped ran in the Providence Journal on Monday, August 16, 2010:
http://www.projo.com/opinion/contributors/content/CT_grant16_08-16-10_VTJDP0E_v22.2983051.html


Rhode Islanders have a fleeting chance this summer to help decide who will lead our beleaguered Family Court. On August 10th, at 5:15 p.m., the Judicial Nominating Commission (JNC) will interview six candidates to be next Chief Judge of Family Court: Haiganush R. Bedrosian, Stephen J. Capineri, Laureen D’Ambra, Michael B. Forte, John E. McCann, and Kathleen A. Voccola.

It may not be easy for these judges to criticize a system that already gives them life tenure, generous salaries, health benefits, pensions, and enormous power. But some will have valuable insights to stop an escalating spiral of abuse that re-traumatizes many families trapped there.

The list of nominees prepared this month by the JNC and the final choice by Gov. Carcieri in the fall may shape our Family Court for decades to come.

Twenty-three years ago, Gov. Edward DiPrete famously made his “best friend” Chief of Family Court. DiPrete later pled guilty to 18 felonies and spent a year in prison for crimes he committed in office. Though Chief Judge Jeremiah S. Jeremiah, Jr., was never linked to DiPrete’s wrongdoing, conflicts-of-interest have seeped into Family Court proceedings at many levels.

The process of nominating judges has always been subject to enormous political pressure, even after the 1994 constitutional amendment that established merit selection for all Rhode Island judges. One quarter of our legislators are lawyers and one-half of the JNC is required to be lawyers. Lawyers rely on judges to preserve and protect their livelihood, while judges rely on legislators to fund their salaries.

For several years, professional journals have recognized that adversarial litigation does more harm than good in many civil cases, especially those involving crimes like domestic violence or sexual abuse, which become inadmissible in custody deliberations after a no-fault divorce. Mediation ignores past patterns of abusive control that judges need to recognize. New research shows damage being done by guardians ad litem, “experts” and court-ordered “therapy.”

The Rhode Island Family Court needs to move to a better model in attempting to resolve these critical custody cases. Perhaps a new model will require specialized training in collaborative law with centralized salaries instead of the private contractors who profiteer on adversarial law and pride themselves on cutting the other side to shreds.

A new blog, “Trophy Child,” at http://trophychild.blogspot.com, will discuss some of these issues—especially when the court gives children to the very people identified as harming them. A variety of subjects emerge from these cases: the role of gag orders; ex parte emergency orders; supervised visitation; frivolous litigation; trust funds; the problem with the Supreme Court’s friendly-parent factor in Pettinato; and more.

I have presented one confidential account of a “trophy child” to the Governor, JNC commissioners, candidates, and a small number of news professionals who agreed not to reveal specifics of that case for the safety of the child. This case does not reflect directly on any of the candidates presently under consideration, but it illustrates a culture of control, intrigue and deceit that has led many fine lawyers and mental health professionals to avoid this court altogether.

Candidates for Chief Judge of Family Court must show whether they possess the insight to recognize these problems, the candor to name them, and the resourcefulness to raise the bar and assure the highest standards of justice for families in crisis.

Candidates must also suggest a safe way for whistleblowers to expose abuses of favoritism throughout the system whether by judges, magistrates, officers, guardians, employees, contractors, or others.

Which of these six candidates can envision and inspire change? Which one has stamina to lift the bar to a new standard of civility and diligence so that this court appeals to the highest caliber of lawyers?

Even in summer, when many would prefer to relax, concerned citizens must listen to these candidates’ presentations to the Judicial Nominating Commission on August 10th. A week later, on August 17th, members of the public may comment on the candidates.

Unless the public steps up to listen, learn, and demand the government we deserve, Rhode Island will continue to create new generations of trophy children.


Under the Open Meetings Law, the public is welcome to attend most meetings of the Judicial Nominating Commission. These take place at 5:15 p.m. at the Department of Administration in Providence, One Capitol Hill, Second Floor Conference Room B, Providence, Rhode Island (the modern building across from the State House on Smith Street).

On August 10th, at 5:15 p.m., the six candidates for Chief Judge of Family Court will present their visions for the Court. On August 17th, the public may sign in to make brief comments about the candidates. For more about the JNC, visit their website:
http://www.jnc.ri.gov/