As in Mendo — Family Courts: A System in Decay

by Alastair Bland, January 6, 2010

When an Alabama family court judge issued an order in March 2008 that Amanda Hodge’s two adopted children remain in her full custody out of concern for their safety, the family court of Monterey County, where Hodge’s ex-husband and the children’s adoptive father still lived, declined to cooperate.

The Alabama court’s order had come following testimony from the children alleging prior abuse by their adoptive father, according to a February 2008 interview by the Child Advocacy Center. But the Monterey County family court, which held jurisdiction over the case, disregarded the testimony and instead ordered a custody change, and the children were sent promptly back to Monterey County. Hodge was granted supervised telephone calls only and has now not seen her children in two years. She is out $90,000 but is determined to continue fighting, and while Hodge expects the legal process to strip her of another $100,000, whether she will see her children again is entirely uncertain.

Hodge’s case is hardly unique. Thousands of others like it, say activists and legal professionals, highlight what they claim is the alleged injustice of the nation’s family court system, the legal branch that handles divorce cases and the baggage that goes with them, including child abuse. Data collected from 362 cases nationwide, including 137 in California, since 2004 by Dr. Geraldine Stahly, a professor at San Bernardino California State University indicate that family law is failing to protect abused children and, in a shocking pattern of systemic ineptitude, actually granting full custody of the abused to the accused abusers — usually fathers. An activist organization called the Leadership Council on Child Abuse and Interpersonal Violence, in fact, says that 58,000 times per year judges in American family courts grant full custody of abused children to abusive guardians.

Jaded attorneys and frustrated activists say the family courts of the nation are genuinely crooked and driven by financial motives.

“It becomes like a feeding frenzy in the courtroom if either of the parents has money,” says Kathleen Russell, a cofounder and staff consultant at the Center for Judicial Excellence, a Marin County community-based judicial watchdog organization.

Judges, Russell explains, frequently defer families to “custody evaluators” for mandatory meetings in which the specialist interviews the parties, evaluates the situation and writes a report for the court. Many family court judges regularly appoint the same mediators, custody evaluators, child counsels, and specialists time and again to assist in cases, and Russell calls the family court system a “culture of cronyism” from which a “cottage industry” of evaluators and mediators has grown and thrived.

“People get stuck with these custody evaluators and the parent with the money is the one who writes the check, and it becomes a system in which custody of the kid goes to the highest bidder,” says Russell. “This system is in need of serious overhaul by eliminating profit incentives.”

Evaluators are not cheap, either. In Sacramento County, the average rate for an evaluation and report is $15,000. In Marin County, evaluators may charge as much as $60,000. In many cases, the parent who runs short of money first — unable to continue paying legal fees — loses custody.

“Families are being ruined emotionally and financially by this system,” says Barbara Kauffman, a family law attorney in Marin County. “This system is taking children from parents who don’t beat them, who don’t do drugs, who are respected, who have morals, and these good parents are the ones receiving supervised visitation.”

One Santa Cruz man now immersed in a six-year-old custody battle believes the system, with its mandatory, court-appointed evaluators and general incompetence and systemic inconveniences, operates with the foremost objective of extracting money from families.

“They’ll bleed you dry,” says the man, who would give his name only as “George.” “They’ll never come to a final decision. They just wear you down until you have nothing left. It’s not in their interest to give 50-50 custody. They want to put the squeeze on one parent.”

The case of Jonea Schillaci-Lavergne of Petaluma may be as dramatic as custody fights get. In 2000, her three-year-old daughter, who was shared 50-50 at the time by her divorced parents, exhibited indisputable signs of sexual abuse by her father and paternal grandfather, according to Schillaci-Lavergne, but she says that her repeated pleas for help brought no relief from authorities.

So she fled the country with her daughter and for three years lived and worked under assumed names, taking paychecks under the table, and keeping on the move — but in North Carolina in 2004 authorities arrested her. Brought back to Marin for a criminal trial, she was exonerated in 2006 of various charges — including absconding with her daughter. By then, though, the Marin County family court had granted full custody to her ex-husband, who moved to Hawaii with their daughter in 2005. The state’s family court has behaved negligently, says Schillaci-Lavergne, refusing to see or hear the evidence from her criminal trial that helped to exonerate her.

“With the time that this has taken you see that (the court’s) interest isn’t at all in protecting the child,” says Schillaci-Lavergne, who is allowed monthly supervised visits with her daughter at a court facility on Oahu.

In the infamous case of Alycia Mesiti-Allen, the 14-year-old Santa Clara girl’s court-appointed attorney, Jonnie Herring, warned the court in 2006 of her concerns for the safety of Mesiti-Allen and her older brother, who had both been placed with their father, Mark Edward Mesiti, in November, 2005. Herring later wrote to Santa Clara County Superior Court Judge Vincent Chiarello, “I am deeply concerned about both minors, especially Alycia.”

No transfer of custody to Mesiti-Allen’s mother or another relative occurred, and in August, 2006 Mesiti-Allen disappeared. Almost three years later, in March 2009, police uncovered her body. Her father has been charged with her murder.

Meanwhile, “parental alienation syndrome,” or PAS, has become extremely popular and very effective as a weapon in custody battles. Court-appointed evaluators and psychologists regularly diagnose parents with this “condition,” which is supposedly characterized by one parent seeking to “alienate” the child from the other parent. Although PAS is not a scientifically proven theory, the syndrome is admitted frequently as evidence in custody battles, and parents marred with the PAS label often lose custody to the alleged abuser, explains Russell.

But in July, Senator Mark Leno called for the Bureau of State Audits to investigate the family courts system in Sacramento and Marin counties. Assemblyman Bill Monning (D-Carmel) signed his support for the audit, which was approved unanimously on July 1 in a joint vote by six members of the Assembly and six of the Senate.

“We’ve had families complain to us about lack of integrity in the family court system and about a lack of checks and balances,” said Monning. “We’re concerned that the system is not working in the best interests of the child.”

The audit is intended to improve due process within the system, shed light upon the criteria used by the court in training, qualifying, and appointing custody evaluators and others specialists, and ultimately lead to placement of children in the custody of non-abusive parents.

Kauffmann believes that many of the procedural steps in the family court system are designed to draw money from the pockets of litigants. Connie Valentine, cofounder of the California Protective Parents’ Association, recognizes the same pattern and calls it downright extortion in some cases, citing a mother of a child allegedly abused by the father who came to Valentine for guidance. The woman, says Valentine, was unable to pay the custody evaluator a fee of $2,200. The judge threatened to give full custody of her child to the father if she could not pay before a deadline. She failed to produce the money and lost custody.

For Schillaci-Lavergne, the wheels of justice are stuck in the mud of family court bureaucracy. She has spent $1.5 million on legal fees in California and Hawaii fighting for her daughter, now 12, who remains in the full custody of her father.

And in Alabama, Hodge’s nightmare goes on. Her children remain in Monterey County, and she is uncertain whether or when she will see them again — and whether she will have any money left if the day comes.

But to Hodge, the complete senselessness of the system has, at long last, begun to make perfect sense after all: “They just want my money, and the longer I’m in court, the more money they’ll get.”

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