TASK FORCE MEETING, JANUARY 16, 2014, PART II: STATUTES AND PROCESS

Continued from Part I...


http://divorceinconnecticut.blogspot.com/2014/01/task-force-meeting-january-16-2014-part.html


Attorney Sharon Dornfeld:  There are endless expenses for parents to get what they want, purpose is not to serve the parents, but to serve the children.  Much of this boils down to the parents interests when the focus needs to be on the child’s best interest.  Yes, parents need to consider what is in the best interests of the child.

[Again, I reject this business of attempting to separate the interests of the parents from the interests of the children.  If parents are bankrupt and can no longer pay bills on behalf of the children, how is that in the best interests of the children.  There is no way you can keep these issues separate and declare that one doesn't affect the other!]

What are you saying, everything free?

[I don't think people are saying everything should be free, but what litigants are saying is that things should be reasonable and sensible and that profiteering to the tune of hundreds of thousands if not millions is completely wrong!]

Judge Thomas Weissmuller walked in and took his seat.

Attorney Sharon Dornfeld:  Ultimately, we have to ask is this in the best interests of the child?  Judges ask that, and if the parent thinks not, the judge will not approve an agreement.

If you want to fight more, it will cost more.

There are endless opportunities for them to find an agreement.


[I know many litigants will respond that they were strong armed, bullied and harassed on their way to an agreement and that judges know this is happening and they rubber stamp agreements anyway.  What about Andrea Cota who was taken to a back room and told if she did not hand over custody of her child to her ex, Attorney Sue Cousineau would have her committed to a mental institution and drugged.  As long as these kinds of situations occur, statements about opportunities to agree are nonsense.]

Attorney Sue Cousineau:  46b-53 Statute makes an opportunity for conciliation to resolve matters.


[Well, not quite.  You have 90 days from the return date within which to take advantage of the opportunity for conciliation.  After 90 days, your time is up, too bad.  I am aware that there are other opportunities to put together an agreement none of which I had access to by the way--family relations, pretrials, special masters, the complex docket--but I am convinced that when attorneys believe that you have the assets to proceed with a litigious divorce and make big profits, they suppress information about those opportunities.  I think every person who files for a divorce should receive a booklet with information regarding the programs that are available in order to assist parents with arriving at an agreement.  Those who have attorneys should sign a document which the attorney must present to the court indicating he or she has provided their client with such a booklet.  This would go a long way towards reducing high conflict litigation.]

Attorney Linda Allard:  There are endless opportunities not to agree.  You can also say no, it is not in my child’s best interest.

Attorney Sue Cousineau: I would asks Judge Weissmuller, is shared custody covered in the statute?  Is the problem in the statute or is it with the procedure, the judges themselves, or other kinds of issues?

Judge Thomas Weissmuller:  The recent public testimony offered the perception that litigants involved in the CT family court system in any capacity see a problem in both the statutes and the process.  I believe it is largely the process because the statute gives the judge the opportunity to look at the statute and make a good decision, but the process puts parents through months of litigation to make them agree when they don’t agree.  The presumption of shared parenting becomes important—there is a fear, an overriding fear of a loss of relationship with the child which breeds a lot of emotional hardships.  If you’ve been through the process you’ve experienced this.  The establishment of a statute supporting the presumption of shared custody will eliminate that fear.  My experience of being a father employed full time meant that I had to work while my wife would travel and go to Pennsylvania and florida.  I would have to work while my ex traveled and spent a lot of money on that traveling, and my children spent time with Mom which was great.  But I was alone working weekdays and weekends, and I was fearful of my relationship with the children.  It would have been nice to have a fast track.  I was forced to go to Alaska.  I had no  family services study.  We had a quick and efficient GAL and it came down to a judgment call.  When I look at other peoples’ cases there wasn’t a bank account so one parent could travel to Disney land all the time, etc.  If people choose to litigate it shouldn’t  be so hard.  The Access to Justice Project recommends a rules based system, not a skills based system.  The legislature should pass laws and procedures that are easily identifiable for any person in any language-- except maybe latin [a joke!]. It should be quick and efficient.  Justice is not supposed to be expensive.  If you deny access through delay, through mediation and mental health treatment, that’s not right.  That is putting people through transitional hardship such as emotional outbursts, and engagement in alienation behavior.  I find it hard to understand why there is supervised visitation when there is alienation.  When you take the kids off to Disney land, but the other parent can’t do that, you have alienating behavior.  Litigants should have access to the process; it should be clean.  How can there be 3 or 4 hundred motions in a 6 or 7 element claim?  It is not a rocket science.  Any bench trial should just be two or three days.  But if you get into all sorts of side motions on trivial matters, that's silly, particularly If both parents are presumed to be capable.  The Battered Women’s project shows where parallel parenting is possible with clear protective measures.  Absent abuse and neglect, that's not necessary.  When children are kept in an environment where both parents are present this is the best situation, and we should try to establish that.

Attorney Sharon Dornfeld:  How would you resolve DV allegations with a presumption of shared custody?  If someone comes in with allegations re violence and abuse, doesn’t that require an evidentiary hearing.

Judge Thomas Weissmuller: Yes, It would go on a fast track.  When you file pleadings, you would have to show cause if you are not completing motions according to the scheduling order. 

Attorney Sue Cousineau:  We are trying to distinguish whether we need to make changes to the law or the process.

Attorney Thomas Weissmuller:  In part, that is the case.  When I first saw a scheduling order in CT family court, it was not as complete as it is in Washington.  If an attorney files a DV petition that order will become part of domestic relations matter and will be put on unified family court docket.  It all becomes one cause, and one constitutionally elected judge will cover all matters.  If the attorney doesn’t state it is a problem up front, there still is a forum in family court.  You check a box and certain boxes apply.

Attorney Sharon Dornfeld:  I find it incredibly frustrating that scheduling orders are not adhered to.  I don’t think you’ll get a fight from anyone re that.  What about in the outset you have a situation where someone files a restraining order during the case.   Is that handled the same way?

Attorney Thomas Weissmuller:  Once it is filed, it becomes a component of the case, and must be heard in two weeks in an evidentiary hearing.  Once you have a finding of fact and a conclusion of law, then you can go from there.  A finding of fact and a conclusion of law is much better than a decision.  It will modify the procedure going forward.  Relief for DV is incorporated under family law, at least in Washington  What happens in CT?

Attorney Linda Allard:  It is sometimes not handled in Civil court.  People often don’t report it, and often women don’t know what it is.  It might not be physical, just emotional.


[Of course, the real problem with domestic violence is when it isn't take seriously in CT Family Court and when attorneys and GALs ignore it and disregard it.  I can recall the GAL in my case stating, "They always say they are abused" just providing a knee jerk response that allegations of abuse are all false.]

Attorney Sharon Dornfeld:  Criminal and Family Court also coordinate in CT.

Attorney Sue Cousineau:  I have been in cases where  attorneys are invited by judge to provide their findings of fact.  This has to do with the statute there, but not process, again.

Judge Thomas Weissmuller:  If you have a determination of law in 30 days it is far more helpful.  When you start off and have children, a decision in the early stages allows the parties to make a decision regarding their  children which reduces fear and apprehension and hostility.  We have these issues in Washington but not this outcry.  The public perception is of fear of the system, and folks feel naseaus.  We are not trying to craft law for those that settle, but for those that don’t

Attorney Sharon Dornfeld: Tom, you were a great father. Still, I am not sure how the presumption of shared custody would work with the never married parent. I have never married parents, parents who don’t know each other, they rarely if ever see the other parent. From the child’s perspective, talk about trauma, park him or her half time with a stranger.  That will promote division.  Whatever parent who has been caring for the child up to that point, nursing the infant, with that distance between the parents, and then presumption of shared parenting shifts to the other parent who wasn't there.  The primary parent says, the child doesn’t even know this guy, it makes no sense to have shared custody and promotes litigation as a result.

Judge Thomas Weissmuller: If I had a child that didn’t know me at all, I would wonder about the Mom. Why doesn’t Dad know? 

Attorney Sharon Dornfeld:  Dad does know...

Dr. Elizabeth Thayer: Often Dad hasn’t been involved in years and you don’t know why not.

Attorney Thomas Weissmuller:  I've seen 15 years of this issue,  and I have not seen the father who said he didn’t know--maybe you see something different in your situation. In one case, there were 13 different Dads, and a Mom unable to parent and mental health issues, and in that situation the Dads walked away with those children.

Attorney Sharon Dornfeld: There are endless cases, not intending to dump on Dads, where there is a correlation between when support enforcement ends up catching up with Dad and then Dad files a custody application.  Are situations again where the Dad’s a stranger.  The Child isn’t luggage and we are not going to just hand the child over to someone he or she doesn’t know.  The Child is not property to be handed over for the  convenience of the parents.  Kids have their own mental and emotional needs and concerns and the process is supposed to be about them. 

Mr. John DiTunno:  In the present statute you have consideration of both parents.

Attorney Thomas Weissmuller: There is a section on abandonment.  Don’t force parents.  We should engage parents in the process of parenting.  The term "Deadbeat Dad" which was coined years ago, is the worst marketing thing you could imagine.  VAWA helped make invisible women visible.  I taught it at the NJC and was the youngest person to do that.  Yet, we don’t have something to protect the men.  In cases of abandonment, Dad didn’t know about the child often because men don’t give birth.  One of the decisions I live with is the placement of a child with a father long term believing that this was the father.  It turned out that the father was not the bio Dad, but was only the richest of the potential fathers.

Attorney Sue Cousineau:  What recommendations can we add to the statute.  Would a recommendation for judicial education regarding some of the studies including how much children gain from active involvement of the father be helpful?

Representative Ed Vargas:  Tom, before you arrived I expressed concern about decisions being made without all of the evidence.  Although I am not familiar with the proceedings in family court, I have been involved in arbitration.  When one side is going to make a decision, the rules of evidence are relaxed, and the judge makes decisions based on quality of the evidence presented.  I would have been frustrated as a party if a DCF person was in the wings or a mental health professional was in the wings and I was not allowed to bring them in.  So how do we get the evidence in before the judge.

Attorney Thomas Weissmuller:  I’ve been monitoring cases and peoples’ requests because I’m curious how judges are responding to pro se's.  I think pro se education would be helpful for judges.  What I see is a compound question asked by a pro se.  The other side objects, and the judge rules in one word without explanation.  The person is then forced to abandon the question because the attorneys would not state the nature of objection.  It should be that the judge states this is the rule and this is why you have broken it. 

Objections as to form are stopping the content. There is  no education regarding the rules of evidence.  When you employ them and they are hidden it is hard for pro se's to follow along.


[Just in general it is hard because judges and attorneys don't bother to follow the rules of court or the rules of evidence.  It is pretty much Dodge City in family court here in Connecticut and it is as if many judges and attorneys are making up the rules as they go along.  They use the rules of court and of evidence improperly and inconsistently and that is done with the direct intention of confusing pro se parties.  It is all very insidious.  I can recall that at one hearing I wanted to submit portions of a transcript and the judge refused to allow me to do so because he said I wasn't presenting the excerpts properly and he refused to explain how it was supposed to be done.  To me, that was a lot of nonsense.  When medieval approaches to court proceedings prevent vital information from getting to the attention of the Judge in the case, this is absolutely wrong and there is no excuse for it.] 

Attorney Linda Allard:  Too bad for pro ses.  I’ve been there when judges try to explain. Time is of the essence.   Pro ses can beat the system this way.

Attorney Sue Cousineau:  I have actually been in a case and the pro se person received lots of objections as to form.  The opposing attorney stated, "Your honor, could you just explain the rule to her."  Everyone was begging him to do that so it would move things along. We can recommend judicial education.  We can have all the rules we want or the law and I am not sure they are always followed.

Attorney Linda Allard: I am not sure if that is a judge's job.


[What can I say--I've seen Judges use these court rules as a method to silence self represented parties all the time.  And yes, if the court chooses to ignore the law or a particular statute or case law, that is exactly what the court will do.  What we are asking for are methods of accountability and some standardization of the procedures so that it won't be so easy for Judges to get away from this nonsense.]




To be continued in Part III...


http://divorceinconnecticut.blogspot.com/2014/01/task-force-meeting-january-16-2014-part_1629.html