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Michael Newdow thinks California’s family-law courts are broken. He’s not alone.
PHOTO BY KYLE MONK
Michael Newdow is no stranger to controversy. First, in 2000, he filed a lawsuit against the Elk Grove Unified School District in an attempt to ban the Pledge of Allegiance, arguing that the phrase “under God” was an endorsement of religion. Then, in 2006, he attempted to have “In God We Trust” removed from U.S. currency. At the end of 2008, Newdow filed a suit to keep Supreme Court Chief Justice John Roberts Jr. from uttering “so help me God” at the conclusion of President Barack Obama’s inaugural oath.
For various reasons, all three lawsuits were dismissed. But that hasn’t kept him from focusing on a new target: the family-law system.
“The entire family-law system is unconstitutional,” Newdow told SN&R. “It deprives people of their rights to their relationships with their children.”
In 2005, 2006 and 2007 Newdow informed the speaker of the Assembly of his intent to file suit under California Code of Civil Procedure Section 526(a), which allows taxpayers to file grievances against government waste.
“You waste incredible amounts of money,” said Newdow. “People spend millions of dollars—literally—on individual cases that should be going towards the family.”
The complaint names as defendants California Superior Court Judge James Mize, Presiding Judge Eugene Balanon, State Attorney General Edmund Brown, Gov. Arnold Schwarzenegger and state Controller John Chiang.
But when Senate President Pro Tem Darrell Steinberg’s office responded to his notice, suggesting that Newdow send his complaint to the Senate Judiciary Committee, he decided to hold off. In the meantime, he’s looking for additional plaintiffs.
“Maybe I’ll file it anyway,” Newdow said. “I doubt the Legislature will do what I want.”
Newdow believes that pitting two parents against each other from the outset of custody cases just sets the stage for trouble.
“My argument is that that’s why we have custody battles and custody wars, because we set things up to be that way,” he said.
Like Newdow’s previous cases, the chance that he could revamp the family-court system by way of a taxpayer complaint is a long shot. But reform is needed; ask just about anyone who’s trudged through the legal muck of child-custody disputes, and you’re certain to hear a horror story.
Connie Valentine is a founding member and current policy director of the Sacramento-based California Protective Parents Association. CPPA was formed 10 years ago partly to deal with what she calls abuses in the family-court system. In those 10 years, Valentine’s organization has assisted with thousands of cases. She said that the biggest problem in family-law court is a lack of oversight.
“When there’s no effective oversight, things fester and abuse of power can occur without any ability to change it,” she said. “The reason that there is no effective oversight is that most of the people who are involved in family court do not have lawyers. And if you do not have a lawyer, that means you don’t have money.”
Having no money in the family-court system, explained Valentine, means you can’t file costly appeals to challenge court rulings.
Valentine said that a second pressing problem is the unregulated cottage industry of mediators and other professionals who hold enormous sway over court rulings.
“The court has, in good faith, decided that they need assistance,” Valentine noted. “One judge is not enough to handle all the problems that they’re seeing.” The solution has been to hire mediators that hear cases and make recommendations to the court. “Now if it’s a good mediator, that may not be such a bad thing if they’re balanced and unbiased,” she continued. “But if you happen to have a bad mediator who’s biased and decides they like one person over the other—because of their looks or their gender or their persuasiveness—then you’ve got big problems, because the judges rely tremendously on their mediators.”
Another problem, said Valentine, is that children often don’t have a direct say in custody cases. Instead, attorneys report on behalf of minors. Oftentimes what the attorneys report conflicts with what the children themselves say. The solution is to let children speak directly with the judge.
“A 4-year-old in criminal court can testify against their abusers,” Valentine said. “We can certainly take children and talk to them in family court.”
Family-law attorney Barbara Kauffman feels another problem is a lack of uniform training in domestic-violence and child-abuse issues among judges and court appointees. “There are theories being taught that are all over the map,” she said.
Kauffman recounted one instance where she sat in on a training session taught by a fathers’ rights advocate. Judges and mediators were in attendance. “He was spouting off about how most domestic violence is mutual. And [the judges and mediators] were just sitting there raptly listening to this.”
Efforts are underway to fix these and many other problems.
State Sen. Mark Leno has asked the Legislature’s Joint Legal Audit Committee to investigate Sacramento and several other counties’ family courts. The audit will look at, among other things, the criteria used to assign mediators to cases.
Assembly Bill 612, sponsored by Jim Beall, would eliminate the use of controversial theories—namely Parental Alienation Syndrome—from family-court proceedings. Adherents of PAS argue that one parent alienates their child against the other. PAS opponents argue the theory is unscientific and is often used to place children into the hands of abusers.
A.B. 375 would prohibit courts from using last-minute ex parte hearings to determine child custody, except in cases where the child is in immediate danger.
A.B. 1050 “would require the family court to consider and give due weight to the wishes of a child in making an order granting or modifying custody, if the child is of sufficient age and capacity to form an intelligent preference as to custody or visitation.”
Of course, reforming the system itself isn’t the only problem. As Kauffman, puts it, “In family law, everybody’s on their worst behavior. There is an incentive to lie about finances, about children.”
With attorneys, mediators and child psychologists collectively raking in millions of dollars in fees for their services, there’s an invested interest in making custody cases as nasty as possible.
Newdow’s case, even if it seems far-fetched, may simply be effective in the way it calls attention to a broken court system.
“The things that happen to these people are absolutely horrific, but it’s such a typical thing. That’s what’s so amazing,” said Newdow.
At stake here is more than just winning legal battles.
“Every parent, if you gave them the choice of being paraded around naked on a leash or losing their right to be a parent to their kid, all of [them] would say, ‘Hey, take my clothes off right now,’” said Newdow.