TASK FORCE MEETING, JANUARY 16, 2014, PART I: SHOULD WE ADOPT THE PRESUMPTION OF SHARED CUSTODY?

Report on the Meeting of the Task Force, January 16, 2014

Minutes for the Dec. 19, 2014 task force meeting were approved

In regard to action items:

Law School Students have investigated the laws in regard to GALs and AMCs in other states and should have a length report soon.

Other items, the task force is waiting for Judge Weissmuller to provide information re minimum qualifications for GALs in Washington State and forms regarding Motions For Contempt re Access.  Still waiting for those.

In regard to studies showing differences between kids of never married parents and kids of divorce parents in terms of outcome.  Dr. Horowitz will investigate if there is anything out there.

Discussion Session:  Should we adopt the presumption of shared custody?

Minnie:  Tom Weissmuller will be here in a minute

Dr. Horowitz:  What statutes do we have now?

Attorney Sue Cousineau:  First, let's define Joint Custody

Attorney Sharon Dornfeld: What we are looking at  is CGS 46b-56a the title of which is Orders Re custody, care, education, visitation, and support of children.  Best Interest of the child …"

Paragraph a of that statute defines joint custody

Paragraph b is regarding presumption

Paragraph c is regarding section about one parent wanting joint custody what do you do?

Dr. Horowitz:  I thought joint custody was only decision making, but it actually includes physical as well.

Atty Sue Cousineau:  The Governor appointed a commission on these issues which resulted in changes in statutes which allowed for relationship with both parents.

Dr. Horowitz:  What changes are proponents expecting that would add to what is already there?

Attorney Sue Cousineau: Yes, I think we already have what is essentially necessary

Jennifer Verraneault:  If parents agree to joint custody, there would be no court action, but if there is only one parent agreeing, then they must go to court and prove why they should be able to have shared parenting.  Is this correct?

Dr. Horowitz:  Decision making is shared in a provision for joint custody.

Attorney Sue Cousineau:  We must be careful about our definitions

Jennifer Verraneault: If two parents go to court and agree to joint parenting, you don’t need courts and can have that, but if there is one parent who won’t agree to shared parenting, that’s when litigation starts and so I was wondering how we can put something into place to stop litigation.  How can we avoid all these people getting involved in the litigation process?

Attorney Sue Cousineau:  Article 10 of the State Constitution allows for free acess to the court so it is extraordinarily difficult to tell a parent they can’t file what they want to file.  It happens in extreme situations, but rarely. So it's not that the court isn’t responding to parents requesting joint custody which they’ve agreed on.  Those are the 95 percent of cases where there are no trials, and there is a presumption in favor of that.   The problem is with 5% where parents won’t agree and they have an absolute right to ask the court to hear the evidence and make a decision.

Backing up, if the parents agree to joint custody, they don’t need courts.  No,  to be clear, they need courts to affirm the agreement, but they don’t need a trial.  The vast majority manage to get an agreement.  Often they have agreement, and it doesn’t work.  So then you have post-judgment motions.  Then they come back and back and back.  Then you run into constitutional limitations when you say you can’t file those motions.

[In other words when the court has totally mismanaged a case, allowed the parents to be brutally treated in court and taken every dime they have, that's when the Court will say, you can't come  back and file any more motions.  How self-serving is that?]

Jennifer Verraneault:  When you say 5%.  A Gal is only appointed if there is a discrepancy.  If there are 6,000 cases out there, and you have 1357 that is a lot more than 5%.  So the numbers don’t jive.

[Well, only 5% of the population have the kind of assets that unscrupulous attorneys can use to incentivize the kind of financially draining lawsuits that they specialize in!]

Attorney Sue Cousineau:  Yes they do.  Within the 95% are those who appear to be coming to agree, but someone needs to  come in and educate re what the kids need.  Are a large number within that 95% who come in to work with parents and work with the kids and help them realize they are not that far apart.  Often I am the only one who meets with both parents, and I help them realize they are not that far apart, and help them avoid the black hole of intense conflict and help them reach a decision.  I help them understand that the schedule for now may not be the right schedule later!  It depends on the kids developmental needs.  So what you do initially may not be etched in stone and should be flexible.

You may have high case load, but only one ends up going to trial.  So when GALs and AMCs are appointed, that doesn’t correlate to high conflict going back to court cases, because most of them resolve.

[So at top attorney rates of up to $300 or $400 per hour, these GALs and AMCs do the same kind of counseling work that my therapist will do at $100 per hour.  Right!  I understand!  And since when do attorneys have any information on the developmental stages of children?  Where did they learn that in law school?]

Dr. Elizabeth Thayer:  Many times GALs are appointed, and they will bring us in, and I think the earlier we intervene when they have that difficulty, the better it is, so our programs including the low income programs are good to utilize.  What we do with them is send them to a resource who can work with them.  Then you might not need the appointment of a GAL or you may only need the minimized participation of a GAL who can cut down on costs.

Jennifer Verraneault:  From the testimony we’ve heard, this is a mental health issue with these people, and we don’t need another layer of attorneys.  We need people who understand family dynamics, not attorneys, people who can help the family.  We don’t need a GAL who doesn’t have expertise in mental health, be the one to start the process and then they decide if there is a need for a mental health professional.  We don’t need an attorney, we don’t need an another layer.  We need a mental health professional.  We don’t need a GAL whose salary is up to $200 or more an hour.

[I have seen family therapists do a great job of working with families and in those conditions I would agree with Jennifer's assessment, particularly when there is alienation involved.  However, we have all had problems with court associated mental health professionals who have fabricated mental health conditions that do not exist, who have made something out of nothing, and have invented material in order to continue incentivizing conflict.  So I would not be as trusting of mental health professionals in this process.  There is a reason why a recent book on the subject of court mental health professionals is entitled "Whores of the Court!"]

Attorney Sue Cousineau:  The talk is that the GAL cost is generally lower than that of a personal attorney.  A GAL is expensive, but still only represents 10 to 20% of what litigants paid to their own attorney.

[How much people pay GALs depends on the case.  However, when costs go into the six digits, we have a problem, people!]

Mr. John DiTunno:  We must stay on task.  Let’s return to the statutes.

Jennifer Verraneault:  I am not saying that the ratio of what an attorney is paid vs. a GAL should make it right that that GAL should be there. I want to go directly to a mental health professional who can help me rather than waste money on a GAL.  We can move on to statutes now if you wish.

[I think everyone should have a choice, if that is what Jennifer is stating.  But what is happening is people are not being given a choice when they should be.  As citizens, they are the ones contracting with vendors and it is their money they are spending.  Consequently, litigants should be able to decide, will it be a GAL or will it be a mental health professional such as Dr. Elizabeth Thayer's Peace Program.  That is what it means to be an adult.  You make decisions.  Of course, the Court, and attorneys don't think that the litigants they serve are adults and that is the crux of the problem.]

Attorney Sharon Dornfeld:  Now let’s look at what do people think ought to be different in the statutes re joint custody and sharing time with the children.

Attorney Linda Allard: Paragraph b talks about the presumption of joint custody , etc.  Just me, based on charge, I'm not sure if we are talking about shared custody, or talking about shared physical custody.

Mr. John DiTunno:  Does the existing definition include that meaning?  I think it does.  Re presumption, when you have agreement re joint physical and legal, then probably an ok agreement doesn’t have to dig deeper.  The statute is silent regarding when the parents don’t agree--is there some presumption that should guide the judge, and then we go to the 16 factors.  For instance, we should pay attention regarding whether one parent is blocking access.

Rep. Vargas: When you look at the statute it seems to be fair esp. the court may also make any orders regarding visitation for grandparents, the court takes all these factors into consideration.  The language on its face gives the Court the power regarding whether the parents shall be raising the child jointly depending on the facts.  While the language seems OK, from the testimony, whether the reality is matching the statutes, that’s the question.

[Again, this is the crux of the matter.  And this is why I am impressed with Rep. Vargas because he is so good and going directly to the problem.  The concern is whether the reality of what takes place in the Family Courtrooms in Connecticut match the statutes as they are written.  What people are stating in their testimony before the task force is that what is happening in reality on a daily basis is that attorneys and judges are disregarding both the spirit and the letter of the Connecticut General Statutes in regard to custody.  This is the shame of the Connecticut Judicial Branch.]

Attorney Sue Cousineau: Yes, I agree this is the problem.  Other than recommending that the judicial branch do things properly, I’m not sure what we can do.

[I am glad that Attorney Cousineau is able to recognize that there is a problem and acknowledge it exists and we should give credit to her for being honest enough to speak out on that.  Yes, we need to recommend that the judicial branch do things properly.  The way she says it, she appears to think that this is an inadequate step.  But this is not true.  In the 12 steps, the first and most important step is to acknowledge that you have a problem.  If you are unable to admit that you have a problem when everyone around you is saying you have a problem, then you are in trouble.  So I say, this is excellent that we have acknowledgement here from Attorney Cousineau, a recognition that things are not working and that something should be done, and at the very least we should recommend to the Connecticut Judicial Branch that they do things properly.  This is significant.  This is important that we have now achieved this level of understanding with at least one member of this task force.  I hope we continue on to many more insights and understandings as the work of this task force progresses.]

Mr. John Di Tunno:  We should clarify that the custody determinations should be made in a process where the parties can provide all the testimony and documentary evidence necessary.

[How quickly can I say, you are absolutely right, Mr. Di Tunno, but the problem is that litigants have not been able to provide all the testimony and documentary evidence necessary.  Judges have denied them that right.  Attorneys have intimidated and prevented litigants from bringing their evidence forward!!!  Again, as Attorney Sue Cousineau stated, "Things must be done properly" and they are not being done properly!]

Attorney Sharon Dornfeld:  The 14^th Amendment provides due process, rules of evidence provide a process to let evidence into court.  It is uniformly applied in every court I’ve been in.  Is there a difference between not liking the outcome versus not liking a procedure.  Perhaps it's not about rules of practice or due process, but merely a perceived problem with the application of the rules.

[Well, if Attorney Dornfeld would like to verify what it is she is dealing with in regard to complaints of the denial of due process, I'm sure we would all be perfectly happy to volunteer copies of our transcripts where we have been denied due process in court and the judge and attorneys during hearings have simply flouted the practice book.  I'm sure there are considerable numbers of victims of family court who have examples to provide.  No problem.  Just send us the word that you'd like them and we'll get them to you.]

Rep. Vargas:  There is no jury, and only a judge.  When you are dealing with one person, you usually have a broader rules of evidence, is broader, more latitude. 

Attorney Sue Cousineau:  Yes, that’s true, is more latitude.

Rep Ed Vargas:  What frustrates me, and I’ve heard that from quite a few people, that if there was a mental health professional who wanted to weigh in, then I heard that wasn’t allowed.

Attorney Sue Cousineau:  There are greater confidentiality laws re mental health professionals

Dr. Elizabeth Thayer:  You must have a full release of info from both parents, one will provide it one will not.  If there is a GAL involved she or he holds privilege.

[Of course, this kind of work is forensic work and there is no privilege in regard to forensic work in the mental health field.  So if more information is needed, there should be no problem providing a release for the forensic mental health professional involved in the case.  the question is, do the people involved want to solve the problem and benefit the children or simply incentivize ongoing litigation?]

Di Tunno:  In family relations, there is a recommendation. People have the opportunity to find common ground in court, so there is a neutral 3^rd party when they go to court.

Sue:  Is the statute appropriate or not?  If it is, is the procedure the issue.  Would you agree, Mr. Di Tunno

Mr. John Di Tunno:  We know it is a majority that get along.

[OK, but you didn't answer the question, did you Mr. DiTunno.  Not in the mood to answer a straightforward question?  Tut Tut, Mr. DiTunno!]

Jennifer Verraneault.  A lot of parents can’t emotionally or financially go to trial.  Instead, there are back door conversations, judges chambers at 11^th hour, forcing a parent to continue to move forward in the middle of a trial.  How many people has this happened to?  They avoided trial, but did not get due process because of the financial burden.  So when you say we have the 14^th amendment to due process, this isn't true.   There is also a constitutional right to parent, and the only way you can get it is paying 100s of thousands of dollars.

Attorney Sharon Dornfeld:  These in chambers hearings occur between the parents own lawyers and judge.  The Lawyers represent parents own interests.

Status Conferences are on the record.

In Chambers conferences are with the lawyers and the Judge and are off the record.

[It is a disgrace that attorneys and judges hold these secret in chambers hearings off the record where the attorneys in the case are given credit for representing the parents.  Baloney!  They don't represent the parents and half the time or even more they push resolutions that their clients would never, ever agree to, then come out and strong arm and blackmail their clients into agreeing to what they would ordinarily never agree to.  Other states have court rules requiring that a court reporter transcribe all in chambers hearings.  Why doesn't Connecticut do the same.  I also read an article stating that these secret in chambers hearings can be a problem in regard to appeals if the Judge agreed to something off the record in that secret hearing that now has become the basis for an appeal.  There are all sorts of problems with these secret hearings and they should be abolished.]

To be continued in Part II...


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