New Zealandís mess

 

Many, if not most of the people on this list have been dragged, kicking and screaming, through the shipwrecks erroneously described as courts in these perilous times. The master mariners guiding us through these rocks and shoals are supposed to be the lawyers.

     So how do lawyers perceive the dysfunctional entities in the imposing edifices? And how do they fare when called to answer to the bar, instead of plead before it?

     Two stories came to me recently, one from an Arizona attorney, and another from one in Michigan, who are faced with the same situations so many of you are.

     Perhaps you will agree that when a system doesn't even work for its adherents, then it is truly a disaster.

      While many fine men and women serve in the halls of justice, today their good work is overshadowed by the bizarre and disastrous rulings of those few black-robed monsters who have made a mockery of the very name of law.

      It was President John F. Kennedy who stated that: "If you make peaceful change impossible...you make violent revolution inevitable." We must seek peaceful means of restoring justice and respect for our Constitution if families and our society are to survive because we cannot long continue down the present path.

                      Chuck Corry


Charles E. Corry, Ph.D., F.G.S.A.
President, Equal Justice Foundation http://www.ejfi.org/
455 Bear Creek Road
Colorado Springs, Colorado 80906-5820
Telephone: (719) 520-1089
Facsimile: (509) 472-5275
Domestic violence against men: http://www.dvmen.org
Curriculum vitae: http://www.pcisys.net/~ccorry/CorryBook-79.htm
Personal home page: http://www.pcisys.net/~ccorry/

The Equal Justice Foundation is a non-profit 501(c)(3) corporation.

Contributions are tax deductible and can be made on the Web at http://www.ejfi.org/Join.htm


 

Arizona Justice in Family Court

The following is the story of an Arizona attorney and his experience with the family courts in that state. We hardly think his experience is unique. If this is being done to a competent attorney one dares not think of the horrors being visited on a father who must defend himself pro per.



I have one son who is almost 21 now and was 19 when the latest nightmare began. He has been in his mother's custody for 10 years notwithstanding the fact that a court psychologist put us both through a battery of tests and concluded that her custody would present problems, but he (then only 11 years old) wanted to be with his mother so that was the recommendation. Had I known that an 11 year old would ultimately be making this important decision, I would have saved the $4,000 paid to the "expert" and simply asked my son in whose custody he wanted to be.

The predictable happened. Within two years my ex-wife accused me of molesting my 18 year old daughter who suddenly remembered what happened to her when she says she was 6 months old. My ex-wife sued me for her damages and this was thrown out by reason of her failure to make a legitimate claim. I learned quickly that if I wanted any peace in my life, I had to stay away from her. This made it difficult for me to spend as much time with my son as I would have liked.

His mother was seldom around and I now know that she was leaving him alone while she was out-of-town on weekends when he was 12 and 13. He became a behavior problem in school, studied very little, and was thrown out of several schools. He was diagnosed with a petit mal seizure condition though no diagnostic tests were ever able to confirm it. When he was 16, this was under control and he was authorized to get his driverís license. He has been seizure-free now for over three years.

At the age of nineteen years our statutes in Arizona provide that child support shall cease. The only exception is if the adult child is disabled. I felt that at age nineteen I could once again have an influence upon him and I was perfectly willing to help him if he showed any desire to help himself. Three months before he turned 19, my ex-wife brought an action in our courts saying that he was disabled having Attention Deficit Disorder, oppositional defiant behavior, and cognitive impairment as a result of his prior seizure disorder.


She named two psychiatrists as her witnesses, one of whom my son had not seen in about one year. I asked for my son's medical records to prepare for hearing. Since he was an adult (age 18 in Arizona), he could refuse to waive his physician/patient privilege and did so. An attorney was appointed at my cost to determine if he was capable of asserting such a privilege. He visited my son at the 3300 square foot home that he had been occupying by himself for over one year at that point, and said that my son was perfectly capable of asserting the privilege and said that he understood that the failure to waive the privilege may result in his mother losing her case since we had been denied discovery in preparation for trial. He also told the attorneys involved that there was nothing wrong with my son except laziness, and that he could work like any other 19 year old. Again I was forced to pay for an expert whose opinion was ignored and ultimately used to my disadvantage.

Rather than order the case dismissed if we were not permitted discovery to prepare for trial, the Superior Court judge was perfectly content to force us to trial without adequate preparation. I was faced with the irony of going to trial without medical records to use for cross-examination because my son was capable of understanding his rights, in a case alleging that he had a diminished mental capacity.

Because it was obvious that this court was prepared to require us to go to hearing without medical records, and to permit the very experts to testify whose records we were denied, two weeks before hearing I had my son examined by the neurologist who had been court appointed to review records had they been ordered produced as I expected. Instead he conducted an independent medical examination, without the benefit of past psychiatric records, at my expense and issued a report that said there was no cognitive impairment whatsoever. This report was submitted and a request made to permit the neurologist to testify. The neurologist was going to be out-of-town the day of the hearing, but could be available later. I named myself, my son, and the court appointed above mentioned attorney as witnesses and requested permission to call the doctor later. The judge said that he could only permit two hours for hearing of this complicated, multi-expert witness case.

On the day set for hearing, my ex called herself, the two psychiatrists, and one school teacher as witnesses. We cross-examined her on issues including her taking of $70,000 from a trust account I established for my son with my sole and separate property some 10 years before. We had discovered this while taking my daughter's deposition in preparation for hearing two months before. My daughter and her mother had conspired to remove this money since my daughter was the trustee for my son. The explanation was that her mother was entitled to recover retroactively for all birthday and Christmas gifts she had purchased for my son during the prior 8 years, and for all vacations. During all of that time I was paying just under $900 per month for child support mind you. With all of her attempts to justify this taking, she could only come up with $32,000 using rounded and estimated numbers. The remaining $38,000 they attempted to justify as for "...depletion of natural resources". Clearly we felt that this cross-examination was justified since this trust account was to be for my son's education and this is why they were bringing this action against me for continuation of child support. My point was that if he had his own money, he did not need more from me. They countered by saying that the money was gone since my ex had taken it two years before.

The current treating psychiatrist said that he could not say whether my son could be employed, but he could take care of himself in this big home. The prior psychiatrist said he could not be employed. Her testimony and the other witnesses', including cross-examination, took about 1 1/2 hours. We then tried to call our witnesses and the judge announced that he had no further time and we was going to rule without hearing our testimony. I was flabbergasted and appalled that this was happening under the guise of "due process". Two weeks later he ruled that the "uncontradicted" testimony supported her case and ordered me to pay child support retroactively increased to $1400 per month back to the year before, $5000 for her attorney fees, and some $1500 in unpaid medical expenses that arose out of her unwillingness to take my son to physicians covered under my health insurance as she was ordered to do under the divorce decree. He of course did not know that because he would not permit me to testify. Some of those expenses were attributable to costs for testing which she incurred in preparation for hearing and not for actual costs of treatment.


When I objected to what was happening at hearing, the judge responded on the record "that it probably was not fair but it was not fair that he had so many cases either". So much for justice and due process. We moved for a new trial and he allowed each side 5 minutes to argue that motion.

The judge said that I had wasted his time by attacking my ex with the history of her taking money from my son's trust account. He obviously could have cared less about the taking of the money even though it reduced my son's ability to have the funds to care for himself. He said that he hoped that I would appeal because if the appellate courts ordered him to hear evidence it would mean that they would have to hire more judges and he did not think that they would do that. It would certainly appear that I was being made a scapegoat for a court system that felt it was being overworked.

The trial judge also said that I was not in a position to call the witnesses that I wanted even though I was obviously sitting in the courtroom; my son was sitting in the hall waiting to testify; and the other attorney said he would appear upon call if it appeared that we needed him. The only witness not there was the neurologist who had been called at the last minute when the review of the records ordered by the judge himself was made impossible. The judge then denied my motion for new trial and ordered me to pay another $5000 for her attorney fees by reason of the 5 minute hearing.

I have borrowed $40,000 to pay my attorney fees, hers, back support for one year before the hearing, and the medical expenses. I had to continue to pay $900 per month while all of this was going on through hearing, but because the judge increased the support retroactively, I was still behind about $6,000 when the final order was entered. This was my reward for religiously paying my child support as previously ordered.

I have now filed an appeal, a judicial complaint, an action in probate court to recover the $70,000 taken from the trust account, and a motion to modify the support. I have also learned that many other fathers in this state are suffering the same fate as I, with no time permitted to present evidence.

Most recently our State Bar magazine had an article wherein it was said that at a recent seminar in Tucson, four visiting attorneys from ouside this state sat in stunned silence when they learned that the Superior Court in this state is allowing just 20 minutes to hear evidence to determine child custody.

We need to have checks and balances on a court system that has gone berserk and has lost sight of its purpose. We need to change laws to permit election of judges once again and hold judges accountable for the failures of the system. Otherwise, we will all be the victims of what was supposed to protect us. We must WAKE UP!!


 

and a Michigan lawyer speaks out:

 

'Port Huron lawyer Mike Tindall refers to himself as both a "cynic" and an "idealist."

Source: http://www.michiganlawyersweekly.com/loty2000/tindall.htm

Reproduced under the Fair Use provisions of 17 USC Sec. 107 for noncommercial, educational use.

Those words are particularly fitting for Tindall this year because he's made a name for himself - and not always a complimentary one - by criticizing and suing the Wayne County Friend of theCourt system over what he considers the agency's bias against fathers, blatant profit motives and due process violations.

As an attorney and divorced father, Tindall has been personally involved with the FOC system over the past several years - including being taken to jail for alleged nonpayment of support - and, accordingly, has witnessed its problems. When you question Tindall about his motive for pursuing the perceived problems, he says, "I'm a lawyer. And I happen to believe in our legal system. What is going on in domestic-relations litigation is wrong and I think I have a professional duty to do something about that."

Tindall currently has a handful of actions pending against the FOC, the most notorious being the FOC's appeal of a federal declaratory judgment earlier this year. In Tindall v. Wayne County FOC, et al., Eastern District Judge Denise Page Hood declared certain FOC practices in Wayne County, and other Michigan counties, unconstitutional. (See "Already-Prepared Warrants And Orders Ruled `Unconstitutional,'" Feb. 14, 2000.) That ruling also prompted Tindall to attempt a class-action suit against the FOC. Counterclaims are currently underway, and an appeal looms in the future.


Though he is often attacked for criticizing the FOC, which supposedly exists for the purpose of protecting children, Tindall considers himself to be the true children's advocate.

"People often categorize any criticism of the FOC as just `deadbeat dads' who don't want to pay child support," he points out. "That has made the system almost immune from supervision. The truth is that this is a big money business they are operating and the way they run it is hurting children."

Q. Here's a blunt question: Why don't you just pay the FOC [the amount of child support it says you owe], even if it's not accurate?

A. It is a matter of principle. What the FOC is doing is wrong. They are operating outside of the law. Worse still, they are destructive to families while hiding behind this reputation of being family advocates. And they are perpetuating this myth that fathers are somehow not important as parents and don't have parental rights.

The vast majority of fathers out there love their children. During divorces, they do whatever they can to make the best of a bad situation and fall all over themselves to make sure their kids are taken care of.

Are there bad fathers? Of course, just as there are bad mothers. But this tiny minority of bad fathers has been turned into a myth that the majority of fathers are "deadbeat dads." This myth has been used to run roughshod over the rights of fathers to be a part of their children's lives. Children need fathers.

What we end up with is this out-of-control FOC, violating the rights of fathers and mothers alike, and operating outside of any sort of constitutional restrictions.

Q. Specifically, what is your criticism of the FOC?

A. That it is out of control and that it has turned into a system of private administrative law, not bounded by the constitutional restraints that are supposed to operate in courts of law.

Currently, each county's FOC is operated like its own little kingdom, like renegades. They each create their own system and run it pretty much as they like. These systems have become very efficient little cash machines, generating profits rather than working for the best interests of children and their families.

The way they do this is by ignoring the niceties of due process.

In my case, they overstated the amount of my support payments. I knew I was paid up, so I wasn't paying much attention until they hauled me off to jail. I found out later that some FOC employee had just upped my support. There was no order from a judge. They just did it. In court, they admitted that they do this all the time.

I was in a trial recently in St. Clair County and the local FOC referee got up on the stand under oath and explained how it was the county's policy that if a child support payer lost his job, the support payment would not be lowered. When I asked this person to point to that policy, to explain where it came from, the FOC referee admitted that it was just their opinion.

That's how they run the system.

In my case, I also found that the Wayne County FOC was operating as if its employees had the authority to issue warrants and show-cause orders. Of course, in our system only judges can adjudicate our constitutional rights by issuing such warrants and orders. But for some reason, many judges have allowed FOC referees to make these decisions.

In federal court, Judge [Denise Page] Hood determined that this was a violation of my due process rights, and of the rights of all the other people who the FOC had subjected to this treatment.

Q. What is your goal in this lawsuit?

A. To legally establish the fact that Michigan courts do not provide a fair, or impartial, tribunal for any domestic relations litigant. Instead, they customarily and regularly deprive litigants
of due process of law.

By doing that, I want to once again make it possible for a domestic-relations litigant to walk in to a Michigan courtroom and have their case litigated according to the rules.

The rules apply to everyone.

Q. Do you see yourself as a "Fathers' Rights" advocate?

A. I see myself as an advocate for children.


When the rules are applied properly, you get good decisions and that can only work for the benefit of the kids. When they are not applied properly, you get bad decisions and that works to the detriment of children.

Any attempt to hold the FOC accountable to its own rules and procedures is just dismissed as the groundless complaints of disgruntled dads. That is frightening and has caused tremendous damage to domestic litigants.

Of course, as in every other area of human interactions, there are your minority percentage of bad actors. There is no question about that. There are child support payers who don't pay.

But the overwhelming majority of so-called "deadbeat dads" are just judicially created - rather than surgically created - eunuchs. These are fathers who have been turned into geldings by virtue of a judicial attitude that is anachronistic and has as its primary goal to make the cash register ring for the State of Michigan.

This does not benefit mothers, it does not benefit children. It just serves to collect cash for the State of Michigan.

There is a $200 million per year profit motive driving this system. It dances at the string of federal money. The FIA [Family Independence Agency] yanks the chain of the FOC and the FOC is pressured to run up these basketball-score type statistics.

Why all this talk about so-called "deadbeat dads"? Because there is a lot of money to be made through that myth. The current system is the most sexually discriminatory system this country has ever seen. And it is permitted.

Q.To what degree are you willing to pursue this? At what cost?

A. At least to the successful conclusion of the federal appeal. I want to open the courthouse door to all of these people whose constitutional rights have been violated, the way that mine were.

At what cost? So far, I have spent about $750,000 of my own funds and dedicated three years of my life to this fight. I've had to give up a large part of my law practice. This has been a huge detriment to my business and my personal financial situation.

So why do I continue? Many people ask me why I don't just walk away. I guess I just can't. I went to school to be a lawyer. I'm the proud son of a lawyer. I grew up believing in this system and it really upsets me to see what it has turned into.

I guess I'm not going to leave this alone until I have made my own statement: This is not how the system is supposed to work. And not everyone is just going to roll over and take it.

Of course, I could write the FOC a check for the $9,000 whenever I feel like it and could get on with my life. I've had other people offer to do the same. But for me, this isn't about money. This is about something else.'

Michael E. Tindall
Born: 1953
Education: University of Detroit Mercy, J.D.;
John Carrol University, B.S., B.A.
Admitted to bar: 1978

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