CA NOW FAMILY COURT REPORT 2002 SUMMARY
1 D E C L A R A T I O N
After significant research,CA NOW finds the present family court system in California to be crippled, incompetent, and corrupt. The bias in the system results in pathologizing, punishing, and discriminating against women.The system leaves decisions which should be made on facts in a courtroom to extrajudicial public and private personnel. The system precludes the parties, particularly the mother, from her rights to due process, including a trial, long cause hearing, or adjudication, to which she is entitled, much less an appeal of these decisions. Mothers are coerced into stipulations through the rubber stamping of definitive evaluations and reports which become the court’s ruling. The present family law system in California exists to enrich attorneys and allied mental health and mental health professionals.This system allows mothers to be taken to court time after time, challenging what is in “the best interests of the child,” therefore subjecting them to a system that has no end for them or their children. In the most egregious cases, perfectly fit mothers who were the primary caretakers of their children loose custody to the fathers who are motivated by evading support obligations, and are often known abusers.In response to this crisis the CA NOW Family Law Taskforce has proposed a Legislative, Judicial, Executive and Grassroots strategies to reform the Family Law Courts.
2 B A C K G R O U N D
From the founding of the women’s movement, feminists have worked for equity in divorce, child support and custody. The struggle to move women and children from the status of men’s property to citizens in their own right continues today.This report focuses on the period from the late 1980’s to the present. Specifically, the backlash from the advances the women’s movement made in the increases in child support with the Family Support Act which turned out to be the driving motivation for the creation of the Father’s Rights movement.The Father’s Rights movement, has a “stated” goal of ensuring the rights of fathers, however, we believe their true agenda is to challenge the rights of mothers who were the primary caretakers in order to evade increased child support payments.The Father’s Rights movement has catapulted us into an epidemic of mothers who report experiencing rampant injustice in the family courts today. By the mid 1990s California NOW began receiving and increase in letters and phone calls from mothers throughout the state who were being victimized by judges, lawyers, mediators, evaluators and attorneys for children in the Family Court system. Some women were being cheated in the process of dividing marital property and assets, while other women were unable to get the court’s assistance with child support collection.The vast majority of communication, however, came from women who were fit mothers and the primary caretakers of their children who had custody revoked from them and given to the father.Too often the communications came from constituents whose children had made allegations of abuse against their fathers, although a smaller number from situations came from those experiencing domestic violence and those for whom joint custody was simply unworkable. It appeared from the volume of communications that the problems, loss of custody through gender bias, denial of due process, fraud and corruption and alleged syndromes such as parental alienation, were occurring throughout the state, and that it was not being addressed effectively, if at all, by any branch of government. More recently, women who have experienced this have become organized at the grassroots level for the purpose of shedding light on this growing problem. These groups turned to CA NOW for assistance. The increasing communications from these constituents have demanded action from CA NOW to address the lack of governmental response and initiate reform in the Family Court system. This summary reports the problems identified by case analysis of the testimonials of our respondents; the report itself provides the background and research that substantiates their claims.
3Q U E S T I O N N A I R E S A N D R E S E A R C H
In response to the demand for action in the family law arena and to study the problem for the purpose ascertaining viable solutions, CA NOW called for individually prepared case histories from constituents and posted a detailed questionnaire on the Internet. The questionnaire includes specific details about the cases which assisted CA NOW in ascertaining the scope of the problems faced by women in Family Court throughout the state. At the time we prepared this report we had at total of nearly three hundred questionnaires and case studies that had been emailed and mailed to our office. We continue to get calls from women who are experiencing this crisis in the Family Courts in California daily. As feedback from the constituents began to reveal the magnitude of the problem,CA NOW conducted research into the legislative history of the relevant laws governing Family Court and into the background of the individuals and parties who put these laws into effect. The results of the research is startling. CA NOW’s findings suggest that the sole agenda of these organizations is to strip women of their custodial and other rights within Family Court by supplanting regular legal due process with procedures that are now “customary practice” and absolute judicial discretion within Family Court. The “fluidity” of the California Family Code leaves most issues almost completely to this judicial discretion and suggests that the resulting negative impact on women was intentionally designed, and brings a great deal of wealth to those involved in the machine of Family Law Court at the expense of women and their children. In addition, a review of some of the often bizarre practices of the judges reported on the questionnaires, practices which often defy reasoning, such as putting children under the sole care and custody of men who have severe criminal records and simultaneously putting the protective mother under supervised visitation, suggests to CA NOW a problem. It appears to CA NOW that of the judges that were researched, many were not elected properly nor officially commissioned by the Governor.
4 F I N D I N G S
An analysis of the response to the questionnaires has led to the following findings and is confirmed by research.
A . D Y N A M I C S O F T H E P R O B L E M
The findings suggest that women who are victims of domestic violence, whose children make allegations of abuse against their fathers, are particularly at risk of losing custody of their children to the perpetrator. Mothers who are primary caregivers of children are also adversely affected by the following dynamics within the Family Court system:
1. Gender Bias
a. Mediators and evaluators perpetuate false sexist syndromes and side with the father, especially when abuse is an issue.
b. Counsel are appointed to represent the children in violation of the mother’s parenting rights who, at best, do not represent the children adequately and, at worst, side with fathers by supporting sexist theories described in mediation and evaluation reports. Once a false syndrome is used by a reporter, the child’s counsel almost never argues against the use of the syndrome and instead advocates that the father must be the better parent, despite evidence to the contrary.
c. Women report being openly insulted and emotionally abused by judges and opposing counsel on the record.This tactic has the effect of wearing women down to the point of giving up custodial rights in order to avoid further court appearances and suggests overt bias against women on the part of judges who use it.
d. The quality of representation is better for fathers, partially due to greater economic security enjoyed by men and partially due to the failure of attorneys to adequately represent mothers once false syndromes and/or judicial bias against women appears in the case.
e. Judges are given broad discretionary powers by the “fluidity” of the Family Code, allowing judges to make rulings with overt sexism by favoring the father despite evidence supporting the mother’s position.
f. Traditional gender roles are manipulated to accommodate the father, as for example, when a stay at home mother loses credibility for not having worked, while a working mother is found at fault for not having stayed at home.
g. The present system takes children from fit mothers who have been sole or primary caregivers because of false “parity” with the father as soon as separation occurs. In essence, this system pathologizes mothers as soon as they seek a divorce in order to deem them unqualified for sole custody. This loss of the status quo for children at separation is extremely detrimental.
2. Due Process Violations
a. Lack of procedural and evidentiary due process, since the Family Code was separated from the Code of Civil Procedure and the Evidence Code in 1994.
b. Attorneys quit prematurely in violation of procedural and ethical laws.
c. Orders issued after ex parte hearings an/or in chambers meetings or upon the judge’s discretion without proper notice and evidentiary hearing.
d. Removal of testimony from the court (where it should be) under the guise of mediation and evaluation. There is no control over the mediation and evaluation processes, no public debate of the issues, and no record of evidence. Once an evaluation report is issued, the court makes few discretionary decisions and rubber stamps the report.
e. Presumption that the parents are “equal” upon dissolution in spite of evidence to the contrary.
3. Corruption and Fraud
a. Many judges are not elected according to statue and officially commissioned by the governor, suggesting a lack of control over judicial selection processes and allowing members of a political “machine’ to take over the process without public awareness of the problem.
b. Corporate fraud perpetuated by organizations purporting to provide nonprofit continuing education and support services but which maintain an ulterior agenda of perpetuating sexist and corrupt court “practices” in lieu of law.“Family Law” courts have developed into full employment programs for private mediators, psychologists, psychiatrists, counselors, “educators” and attorneys who know and refer to each other with the participation of the judiciary.
c. Advocacy, lobbying and influence by such organizations in the Judicial Council and the legislature.
d. Farming out of mediation and evaluation and “supervised visitation” to persons placed on a select list who have completed courses which perpetuate sexist practices.
e. Mediators, evaluators, children’s attorneys and judges who all are enriched by the current entrenched program.
f. Women report concern with the conflict of interest involved when there was contact, or an existing relationship between, legal personnel and parties in the case.
g. Women report concern with the financial incentive of extrajudicial personnel to stay involved in the case, as well as their connection to outside funding groups.
B . C A S E S I M I L A R I T I E S
Review of the questionnaires revealed the following similarities:
1. Mediation and Evaluation are Expensive, Biased, and Indisputable: The parties begin the process by giving testimony to a court-appointed mediator, which may be county employed or private, instead of a judge.The parties are then ordered into an onerously expensive evaluation where they give further testimony to a psychologist.There is no record of parties exchanges in the mediation and evaluation processes. Therefore, the recommendations are indisputable. The judges “rubber stamp” the findings of evaluation and mediators in almost every case.The result of these two procedures is that there is no record of testimony and the biases of the mediators and evaluators prevail in the proceedings.
2. Use of sexist false syndromes: In virtually all of the cases involving allegations of abuse, and in many not involving abuse issues, the “experts” labeled the mother as “overprotective” or “alienating” and on such basis recommended changing custody to the father, regardless of evidence proving sexual or physical abuse, criminal history, domestic violence or substance abuse against the father.CA NOW’s research into these syndromes indicates that they have been invented for the sole purpose of targeting women in custody disputes, and that they are never used against men under reversed conditions.
3. Suppression of evidence: In virtually all of the cases involving abuse, the evidence of abuse is suppressed and no standard rules of evidence are followed. Since both the mother’s testimony and the relevant evidence have been withheld from the record, there is nothing in the file to suggest that a mistake has been made in judging the case.A judge is free to reject, for example, evidence of abuse of the child in a medical report.
4. The mother’s attorney quits prematurely: Despite existence of procedural and ethical laws which prohibit attorneys from dropping clients before a trial has been concluded, and the customary family law practice of allocating attorney’s fees at the conclusion of a trial, the questionnaires indicate that the mother’s attorney usually quits after the retainer and most of the mother’s financial resources are used up. After the attorney drops the case, the mother is left to represent herself with little knowledge of how to manage a legal case and no protection under the Family Code.
5. Judicial orders are given without notice or hearing (ex parte): Custody has been changed in virtually all cases through ex parte hearings and orders, disallowing the mother or her attorney, if any, to prepare an opposition or set up the case for appeal.
6. In chambers meetings: In many cases, important orders were made, or mothers were advised to settle, after a meeting off the record in the judge’s chambers, leaving no record for appeal and no trail of accountability.
7. Attorneys were appointed for the children: In every case in which allegations of abuse were involved, attorneys were appointed to represent the children. These attorneys often sided overtly with the father, interfered with the mother’s parental rights and failed to adequately represent the children’s interests and to protect them from potential abuse. Attorneys for the children are being “recommended” more and more by mediators and other extrajudicial personnel.
8. Proceeding are initiated against the mother after she files for support: In many cases, the father was given visitation or custodial rights only after the mother filed for support. After receiving the order for child support, the economic impact of paying support impels the father to fight for joint or sole custody to avoid the financial burden of being the non-custodial parent. The father then files for and, due to the above practices, often receives sole custody. “Custody switches” are increasing, despite “mandatory” joint-custody laws, which are motivated by economics rather than the child’s welfare.
9. The distress of the child is ignored: No matter what evidence is offered to show that the child is in distress in a joint custody situation, the evidence is disregarded both by evaluators and the courts, and court-ordered “counseling” can go on forever.
10. Proceedings are Conducted by Special Masters, Commissioners, and Visiting `Judges: These extrajudicial personnel make orders and hand them to a judge who rubber-stamps them. Generally these personnel are attorneys, family therapists, or social workers, not judges, and are commissioned to preside over the proceedings. Sometimes a judge visiting from other areas of the law with no background in family law are asked to preside over the Family Court. In the case of special masters, evaluators often coerce parties to agree to use special masters to decide issues. All of the above disadvantage the proceedings because these personnel do not have a comprehensive understanding of the case or expertise in the legal proceedings.
11. Proceedings Only End When Child Turns 18: A litigious parent can continue to use the extrajudicial system to reopen the case endlessly. Therefore the proceedings only end when the child turns eighteen and is no longer under the jurisdiction of the family court.
5 P R E L I M I N A R Y S O L U T I O N S
Based upon these findings, the following solutions are proposed:
A. Legislative Solutions
1. Ex parte hearings and orders should be eliminated or severely curtailed under the Family Code.
2. In chambers meetings should be eliminated or severely curtailed by statute under the family code.
3. The Family Code should be amended so that it is again linked with the Evidence Code and the Code of Civil Procedure.
4. Procedural and ethical laws that prevent attorneys from withdrawing before trial should be strictly enforced by the court.
5. Abolish considering mandatory joint custody as always in the best interests of the child.This is a false presumption with no support in reality. Joint custody should be voluntary, with sole custody default to the primary caregiver at separation.
6. Visitation time should be completely detached from child support calculations to reduce the incidence of fathers seeking half and sole joint custody to avoid child support payments.As other jurisdictions do, the primary caregiver at separation is established, and then the non-custodial parent pays a specific percentage of earnings.
7. Only a serious change in circumstances should warrant a change in custody arrangements.
8. Provisions for counsel to represent the child should be deleted from the Family Code and the Judicial Council Rules to protect the parental rights of mothers. Counsel for the child will be unnecessary if custody remains with the primary caregiver. Counsel for the child should only be necessary if deemed so by the Juvenile Court in cases involving abuse.
9. Evaluations should be eliminated or governed by specific statutes and should only be used in cases lacking investigation by the police or CPS. Factual investigations should replace psychological evaluations. ALL evaluations should go back to Family Court Services and to eliminate the onerously expensive and conflict of interest ridden “private mediator” system.
10. The use of false syndromes (such as PAS) should be made illegal under the Family Code.
11. Abuse should be defined specifically via fact finding and not left to discretion.
12. Cases involving child abuse allegations should be tried in the non-adversarial Juvenile Court.
13. Protections for underrepresented parties should be written into the Family Code.
14. Family court should set up an administrative proceeding with controls on attorneys fees, similar to the Workers’ Compensation Appeals Board, so that families are not bankrupted.
B. Judicial Solutions
1. Identify the parties responsible for the perpetuation of problems related to false syndromes,“fluid” joint custody laws, evaluations and counsel for children and establish the connection with fraudulent non-profit continuing education and support organizations to sue under statutes for RICO vis a vis conspiracy to violate the rights of women.
2. Along with damages suit, sue for declaratory relief, making Parental Alienation Syndrome, mandatory joint custody, mandatory psychological evaluations and mandatory mediation unconstitutional. Challenge the constitutionality of the Family Law Act as amended in 1994 due to lack of procedural due process protections and other constitutional violations, including the false presumption that physical and/or legal joint custody is in the best interests of the child.
C. Executive Solutions
1. A statewide audit of the judiciary for lack of compliance with the Elections and Government Codes in the “election” and “appointment” of judges, especially family law judges.
2. A statewide audit and investigation by the Attorney General of fraudulent non-profit continuing education and support organizations participating in family law processes.
3. An immediate statewide conference on the present status of Family Courts.
D. Grassroots Solutions
1. Local Family Law Taskforces to bring together community leaders who can work to ensure court reform.
2. Local Court Watch Programs to ensure that citizen’s are tracking the court proceedings.
3. Local media attention to highight the status of the Family Law Courts.