Mothers of Lost Children - Information/The Family Law Court System

JUDGES, MEDIATORS, EVALUATORS
LEARN ABOUT THE COURT SYSTEM-
In the Middle Ages, disputes were originally settled on a battlefield by knights. Consider the court room a battlefield, rather than a place for justice and protection of children or victims of family violence.

JUDGES: Judges are at the top of the court pyramid. Although other judges can hear custody cases, the trend in California is to have particular judges assigned to unified family courts and given special training. There are also commissioners, judges pro tem, referees, and private or retired judges who hear cases. All of these justices have complete power over your case.

The advantage to having a unified court is that one judge hears and coordinates a family's problems. These problems may include domestic violence, temporary restraining orders, divorce and custody issues.

The disadvantage is that one judge may be prejudiced against women, burned out, or uncaring. Many judges are biased against women, according to studies.

You will want to find out the judge's reputation early. You have the right to have a judge hear your case, and to dismiss one judge without a reason given, up to 10 days after you know s/he is assigned to your case, before any contested hearing begins (Code of Civil Procedures Section 170 et seq).

The only way to get a judge off of the case once you have appeared before him or her is to "disqualify" or "recuse" the judge. This is almost impossible. You have to have a good reason to successfully do this. For example, you would have to prove the judge is prejudiced against you.

You can appeal a decision, which takes time and money. Appeals Courts only rule on matters of law, not matters of fact. However, as family law judges have wide discretion, appeals courts usually uphold the lower court judge's decision.

You can also report the judge to the Commission on Judicial Performance, 455 Golden Gate Ave, San Francisco, CA 94102 at 415-557-1200. They do not reverse decisions and hardly ever remove judges. Out of approximately 10,000 complaints, only six judges were removed in 10 years.

WARNING: Judges are immune from law suits pertaining to rulings made as part of their job duties! (Government Code 820 et seq)

MEDIATORS: Many California family courts assign Family Court Services mediators, employed as part of the court system, to help people in custody disputes talk through and solve problems (Family Code 3160 et seq).

Although often helpful, mediation can be a real problem in family violence cases, as indicated by the factors below.

Many perpetrators of child abuse also abuse their spouses.

There is a huge power imbalance between an abuser and a victim.

The abuser is frequently charming and controlled. You, his victim, may be emotionally upset due to the family abuse and not appear as calm and collected.

If there has been domestic violence against you, the mediator may arrange for you and the perpetrator to be in separate rooms. The mediator goes back and forth to talk to you both.

This may not work either, since abusers have problems with power and control, and may refuse to negotiate.

Furthermore, when your child has been abused, you may not be able to negotiate without endangering your child.

The Catch 22 is that family court judges are looking for the parent who is the most willing to share the child with the other parent. If you don't negotiate, you are not considered a "friendly parent." If you do negotiate, your abused child may be re-abused.

WARNING: In many California counties, mediators make recommendations to the judge!

If you and the father cannot solve the custody problem in mediation, the mediator, in "recommending counties," issues a report to the court regarding custody. This means family court mediation is not actually confidential. Because the court orders you to go to mediation, and the mediator then reports each of your positions, attitudes, and requests back to the judge, along with his own opinions and recommendations, this practice has been called "entrapment" by attorneys.

Mediators have great power, because judges usually rubber-stamp their recommendations, even if the mediator has no expertise in child development, substance abuse or family violence.

We have very little advice to offer here, aside from suggesting that you behave in a completely calm and friendly manner with the mediator. It is best to speak only with the mediator, rather than engage the father in any conversation.

Some protective mothers show their willingness to work with their abuser by offering to "co-parent" in writing, in order to ensure a written record of the exchanges. (Be sure to keep all documents in your binder.)

By remaining polite, businesslike, and pleasant, you may find that the abuser's facade will eventually crack and his true abusive personality will be demonstrated.

WARNING: Mediators are immune from law suits, since they are part of the court system!

CUSTODY EVALUATORS-
If you can't agree about custody during mediation and the mediator does not make a strong recommendation, usually the next step is that a psychologist is appointed by the court to evaluate the family (Family Code 3110 et seq).

This evaluator holds tremendous power in your case. The judge almost always rubber-stamps the evaluator's recommendation.

Sometime judges allow the parties to "stipulate to" (agree to) a private evaluator. It is a real challenge to find an ethical, unprejudiced evaluator.

Sometimes the judge orders a "730 evaluation" with a psychologist from a court list. (Evidence Code 730) This is an expert witness who is supposed to be neutral.

Often the judge simply chooses the evaluator he or she likes.

Evaluators are required to have special training in domestic violence and child abuse before their reports can be valid. However, some of them are resistant to incorporating the information into their evaluations. There have been many complaints that evaluators are biased against battered women and mothers of abused children, they ignore abuse issues, and make custody recommendations contrary to the safety of children.

You can report an unethical evaluator to the California Medical Board, 1422 Howe Street, #22, Sacramento, 95825-3200 at (916) 263-2699. However, the damage is done once the report is filed in your case, if the evaluator has decided you are alienating the child from the father.

Your attorney can also challenge the report if it is inaccurate. You will need to find an ethical evaluator to review the report and write another report.

WARNING: Many psychologists minimize or ignore child abuse and family violence!

Here is the next Catch 22: professionals may describe the family violence in their report accurately, but then go on to describe you, the protective mother, as "hysterical," "deluded," and "alienating." They may recommend that your child be placed with the offender because of the dreaded "Parental Alienation Syndrome" (PAS), which is a non-diagnosis that does not meet even minimal legal standards. However, it is virtual death to the protective mother in a custody dispute.

Once you have been labeled, you are not likely to shake the label, which will follow you for the rest of the case.

New labels are currently being introduced, such as the Alienated Child. Family law attorneys do not effectively challenge these biased evaluations.

Even the child's therapist or counselor may believe in this non-diagnosis. This may happen when the therapist is court-appointed.

By law, health care professionals are mandated reporters of suspected child abuse. Sometimes they do not make a mandated report, which may allow the abuse to continue.

On the other hand, this unethical lack of reporting may keep you from becoming more deeply involved in a very problematic legal system.

WARNING: Your child's therapist may minimize or ignore disclosures of abuse!

ATTORNEYS, CHILD'S ATTORNEYS, SPECIAL MASTERS
YOUR ATTORNEY-
Finding a family law attorney who is skilled, ethical, truly working for you, and who doesn't charge exorbitant fees is a real challenge.

The father will probably find an aggressive attorney through the Fathers' Rights network.

Unfortunately, there is no comparable Mothers' Rights network yet.

In California. you can report an attorney to the California State Bar, 555 Franklin Street, San Francisco, CA at (415) 561-8200 but it is unlikely that there will be any useful action taken. You can also sue an attorney, which means finding another attorney who will do that. Since you are in a custody battle, you may not be able to follow up on this. Unethical attorneys know that.

Many protective mothers have unnerving stories of attorneys who charged them reasonably, were friendly and helpful, and at the last minute, "threw" the case to the father in overt or subtle ways. Other attorneys simply take your money and refuse to return calls. Your best bet is to find and ask that attorney's other clients about their experiences. The Internet may be helpful.

WARNING: Attorneys may seem great when you begin, and then sell you down the river!

YOUR CHILD'S ATTORNEY-
The judge may appoint private counsel or a representative, a "guardian ad litem" for your child. (Family Code 3150 et seq)

This is considered by many protective mothers to be the "kiss of death", since the attorney for the child is in a position of utmost power. Children's attorneys very often side with the abusive fathers.

The attorney is supposed to consider the "best interests of the child" and rarely does.

Often the attorney never even speaks to the child. Instead, he or she speaks for the child, rarely doing anything the child asks.

In California, these attorneys for the minor are almost always aligned with the abusers.

In many cases, you have spent all your money and can't afford an attorney. Meanwhile, the father has his own attorney plus a de facto attorney through the child's representative, and you are ordered to pay half the fees.

All of the attorneys make money if the case drags out. That gives them a perverse financial incentive not to settle the case.

The only way to remove the attorney is to prove that he or she is clearly prejudiced, which is very difficult.

WARNING: It is practically impossible to get rid of an attorney for the child.

SPECIAL MASTER-
A Special Master is a legal or mental health professional who takes over the case instead of a judge. (Family Law Code 20034 et seq) They believe they are masters, which makes you a servant.

In order to be involved in the case, a Special Master must be voluntarily agreed to by you and the father in writing.

There is no outside oversight at all of the professional, which is a frightening situation.

It is recommended that you do not allow a Special Master to be involved in your case.

WARNING: Once in place, the Special Master has total power over your case!

...Continue on to COURT PROCEEDINGS, ISSUES, SUPERVISED VISITS

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