Senior Judge Admonished for Facebook Posts

GeorgiaLeeLang009Hard to believe that a Senior Judge in Minnesota would post frank comments about cases he was hearing on his Facebook page, even though he believed only his 80 “Friends”, made up of family and close associates, would see them.

However, the posts were available for all the world to see and Judge Edward W. Bearse, who has an exemplary record, was formally reprimanded this month by the Minnesota Board on Judicial Standards, the Board noting that even to disseminate his private views to his family and friends was unacceptable.

In the evening, after the first day of trial in a case alleging the accused had engaged in sex trafficking, Judge Bearse wrote:

“Some things I guess will never change. I just love doing the stress of jury trials. In a Felony trial now State prosecuting a pimp. Cases are always difficult because the women (as in this case also) will not cooperate. We will see what the 12 citizens in the jury box do.”

Three days later the accused was convicted, case closed. However, the prosecuting attorney saw the judge’s Facebook post and alerted the accused’s defence counsel to the posting. On application by defence counsel another judge vacated the guilty verdict and ordered a new trial. The Court found that Judge Bearse’s Facebook remark implied that the accused was guilty of the charge and that the victim of sex trafficking was a prostitute.

While hearing a felony case without a jury the accused’s lawyer was taken to hospital by ambulance after experiencing a panic attack in the courtroom. Judge Bearse posted this:

“Now we are in chaos because defendant has to hire a new lawyer who will most likely want to start over and a very vulnerable woman will have to spend another day on the witness stand. . . . I was so angry that on the way home I stopped to see our District Administrator and told him, “Michael, you are going to have to just listen to me bitch for awhile.” . . . [W]e know the new lawyer (probably quite justifiably) will be asking for another continuance. Terrible day!!!”

The Chief Justice asked Judge Bearse to delete the post. He did and then recused himself from the case.

In another posting, the judge wrote:

“My day yesterday in the Hennepin County District Court in Minneapolis: . . . Criminal Vehicular Homicide where defendant stoned on Xanax supplemented it w/a lot of booze and then drove wrong way down a freeway colliding w/an innocent citizen driving the right way down the same freeway killing him. . . . and most interesting — three kidnappings . . . where the three were physically tortured to try and find the drugs.”

Among other postings Judge Bearse made pejorative remarks about offenders with long records saying “We deal with a lot of geniuses!” He also referred to his courtroom as a “zoo”.

While a judge’s work is both interesting and challenging, it is also often exhausting ( as he or she listens to marginally relevant evidence ad nauseam), and brings with it a degree of public and social isolation to ensure that judges cannot be said to be biased.

Lawdiva aka Georgialee Lang



Judge Must Follow the Law Despite His Personal Beliefs

GeorgiaLeeLang100Under international media scrutiny and political pressure Utah judge Scott Johansen reversed his recent decision to remove a 9-month old foster child from the home of  April Hoagland and Beckie Peirce, a married lesbian couple in Price, Utah.

Ms. Hoagland and Ms. Pierce had fostered the baby for three months and expected to adopt the child. They had the approval and consent of the child’s mother and the local department of child welfare. During the initial hearing when Judge Johansen ordered the child welfare authorities to remove the child within seven days, he  remarked that he had read literature stating that children were better off being raised in a home with a mother and a father.

But the intervention of Utah’s Republican Governor Gary Herbert and the media maelstrom, including tweets from Hilary Clinton and a variety of anti-discrimination organizations led to a follow-up ruling from Judge Johansen who amended his original order and scheduled a hearing on December 4, 2015 to determine the best interests of the infant.

Judge Johansen is no stranger to controversy. In 1995 while interviewing a 16-year old young offender in his chambers, he slapped the youth after he tired of the boy’s belligerent insults. More recently, in 2012 a female child appeared in juvenile court for cutting the hair of a 3-year old child. Her punishment included cutting off the juvenile’s own pony tail, a sanction that led to the filing of a complaint by the juvenile offender’s mother.

While judges have significant discretion, where a legislature passes laws legalizing same-sex marriage and same-sex adoption, it is not open to a judge to inject his personal views into the decision. Only the Supreme Court of Canada and the Supreme Court of the United States can do that, although if asked, I suspect they would vigorously deny it.

Lawdiva aka Georgialee Lang

Gay Couple Need Adoption Annulled In Order to Marry

In the not-so-distant past it was not unusual to hear about gay couples who arranged for one to adopt the other to gain rights of inheritance and other family benefits. I recall a case I handled 20 years ago where a wealthy, elderly gentleman adopted his younger partner, much to the distress of the adopting partner’s other biological children.

A gay couple in Pennsylvania did the same thing, convinced that during their lifetime the law would never recognize or legalize their relationship. But to their delight the United States Supreme Court did, a happy event that was marred by the realization that as father and son they faced a hurdle to become lawfully wedded spouses.

Nick Esposito, age 78, adopted his partner, Drew Bosee, age 68, in 2012, two years before same-sex marriage was legalized in the United States. The couple had been together for over 40 years. They determined that they would not allow the adoption to stop them from their goal of marriage and filed a Petition in Allegheny County seeking to annul the adoption. They learned that judges in other states had granted such orders in situations like theirs.

But Allegheny County Judge Lawrence O’Toole ruled that state law barred him from doing the same. He ruled that while same-sex partners could marry, parents could not marry their children. Of course, that makes sense, except that Mr. Esposito and Mr. Bosee were never really parent and child; the adoption was intended to ensure that upon death family benefits would be available to them. Judge O’Toole suggested that it would take a higher court to rule on the issue and provide guidance to lower courts.

The couple have appealed and are also finding political support from Pennsylvania’s Democratic Senator Bob Casey who has written to United States Attorney General Loretta Lynch asking her to intervene in the case.

I expect that along with an inevitable surge in same-sex divorce, attorneys will be kept busy obtaining orders for the annulment of same-sex adoptions.

Lawdiva aka Georgialee Lang

Husband Sues Wife’s Divorce Lawyers for Fraud

GeorgiaLeeLang025Statistics suggest that 98% of family law cases settle out of court. For the unlucky few who can only obtain finality and closure with the aid of lawyers and judges, the journey is long, tortuous, and expensive.

Kenneth Felis of Vermont found himself engaged in divorce court proceedings that drained him emotionally and financially.

The parties had one child and a family estate worth between $12 to $15 million dollars, made up of cash, real estate and business interests.

HIs wife, Vicki, retained the law firm of Downs, Rachlin Martin to represent her in the court action. They, according to Mr. Felis, escalated the conflict by implementing a strategy that generated exorbitant legal fees and was intended to “harass and injure” him.

He sued the law firm for fraud and breach of fiduciary duty for “pursuing unreasonable legal positions, demanding extensive and unnecessary discovery, promoting and claiming outrageous asset valuations, raising claims without proper foundation . . . and billing excessive time.”

The firm had retained business valuators Gallagher, Flynn and Company on behalf of Ms. Felis, who were also named as defendants in Mr. Felis’ lawsuit.

Felis argued that at the outset of the multi-year litigation the “red fee-building flag went up” when Vicki Felis’ lawyers twice asked the court  and obtained  large distributions of cash to fund her lawyers and the business valuators.

Many jurisdictions permit family law litigants to request advances of cash or assets to enable them to pay for their litigation. It is only recently that British Columbia’s family law legislation was amended to permit these applications as well.

Mr. Felis was particularly incensed by his wife’s claim that he had “wastefully dissipated” millions of dollars from the family assets. To respond to the allegations, Felis’ lawyer was compelled to review and produce copious, detailed financial records and accounting documents, a process that required extensive time and generated additional legal fees.

The Court found Ms. Felis’ allegation of dissipation of funds to be without merit and dismissed her claim.

As for the business valuators, Mr. Felis argued that after years of discovery and production of all relevant documents, Gallagher, Flynn and Company “intentionally and wrongfully put up false expert testimony in an attempt to influence the court to improperly value [plaintiff’s] business assets and achieve an exorbitant and outrageous property distribution for Ms. Felis that was not grounded in the law.”

Mr. Felis also alleged that his wife’s lawyers submitted a false financial affidavit that incorrectly identified her debts, in an effort to gain increased child support.

By the time the divorce proceedings were finalized Ms. Felis’ lawyers’ bill was over $800,000 not including the business valuators’ bill of $248,000, all of which would be paid from the parties’  family assets, meaning that Mr. Felis was on the hook for one-half of over a million dollars in legal and valuation fees.

Regrettably for Mr. Felis, both the trial and appeal courts held that his wife’s lawyers owed no “duty” to him on which he could base a claim of breach of fiduciary duty. The law firm’s duty was to their client, not their client’s spouse. They also held that Felis had not alleged or  proven the requisite elements of fraud and thus, that claim failed as well.

The simple fact is that spouses may choose the lawyer they wish. Some divorce lawyers approach all their cases as a full-scale battle and unfortunately, unsophisticated clients tag along for the ride, while more discerning clients put a stop to strategies that only increase the conflict.

Mr. Felis’ complaints may have been legitimate  but there is no basis in law for the  courts to intervene.


No couple imagines that the vows they once exchanged would cease to ring true one day. But we are all human, and things happen. Relationships dissolve. Divorce is hard for every couple that has to go through the process, especially those who had children together.

At the end of the day, you both want what is best for your children, but often that can get lost in the hurt and anger that surrounds the separation. However, with hard work and patience, you can have a healthy relationship with your ex, and you both can be happy with the new arrangement.

Blended families work best when a divorce happens and small children are involved. You both need to be on the same page parent-wise, while also moving on with your lives in other aspects. Despite what you may think, this can be done.

Working toward a happy arrangement with your ex, and each other’s future spouses, creates a happy environment for everyone. Plus, your kids will be relieved that you aren’t at each other’s throats. A happy divorce happens when the separated couple can at least speak to each other in a civilized manner while sharing custody and a role in their children’s lives.

Jumpstart the process to a happy divorce with these steps:

  1. Visualize Your Goal

Think of how you wish the relationship to be with your ex. This could means anything from interacting cordially when dropping the kids off, to vacationing together. Make a realistic goal for your circumstance.

  1. Create a Pause

Before interacting with your ex, gauge your emotions and what you expect would be your emotional reactions when you see him or her. Identify your problem areas and what you believe you need to work on. Calm yourself before the face to face, and teach yourself certain tricks to stay cool and collected, rather than blowing up out of anger. Preparing yourself on what to expect and how to react will help you to remain calm when it is actually go-time.

  1. Think Positively

Positive thinking can go a long way. Every conversation will probably not go smoothly, but, with a positive outlook, you will be able to better work toward your goal of achieving a happy divorce.

  1. Persistence

Along with your positive mindset, you will need persistence. There will be tough times and obstacles, but you cannot let that get you down. Also, try not to let your ex’s personal actions get to you.

Perhaps they seem to be moving on faster than you, or have had a better success at bouncing back financially. Don’t let these insignificant things trigger your ugly side. You don’t want your kids to witness an altercation, nor do you want to disrupt the mutual arrangement to strive for a happy medium.

  1. Keep the End Goal in Mind

Remember that, in the end, this is all for your children. Never take your eyes off that prize. You two are the adults here, so suck it up and work hard to set good examples for your kids. Divorce isn’t what greatly affects children – it’s the way the divorce was handled.

 Guest Post from Atlanta, Georgia family law boutique firm Naggiar & Sarif

Naggiar and Sarif LLC focuses exclusively on  Family and Divorce Law litigation. They provide unparalleled and personalized legal counsel to those facing family law  issues and have earned numerous awards and distinctions.

Judge Says “NO” to Grandparents Who Want to Take Their Grandchild to Church

They say it “takes a village to raise a child” but the law is clear in Canada that a child’s parents or guardians are the sole arbiters of who in the “village” may participate and what a villager can say or do with their child.

This week a Vancouver judge refused to permit the grandparents of a 4-year-old child to take their grandchild to church (Kingdom Hall) or discuss religion with their grandchild. (AR and BR v. MW and LR 2015 BCPC 0285)

The child’s mother had a brief sexual encounter with the grandparent’s son, who apparently neglected or ignored his legal and moral obligations to his infant baby and was never in a relationship with his child’s mother. However, his parents pursued a relationship with their grandchild with the agreement of the child’s mother and eventually had their grandchild stay in their home 2 or 3 days a week.

Early on it came to mother’s attention that her child’s paternal grandparents were taking the child to church with them and showing her videos about their faith. Initially, mom was reticent to voice her concerns, but later she told them she would prefer they not take the child to church.

Instead of complying with the request, they continued to proselytize and take the child to church. This caused the child’s mother to disallow the grandparents to have contact with the child on church days and later, mother reduced the grandparent’s contact to one supervised visit per month.

At this point the grandparents hired a lawyer and brought a court application to be permitted to take their grandchild to church and discuss their faith with the child. Their first mistake was alienating the child’s mother by ignoring her requests. The second was filing a court action to obtain what mother would not agree with.

While we hear the public and media talk about “grandparent’s rights”, the truth is they really have no rights at all. Although the Family Law Act in British Columbia and the federal Divorce Act allow for “persons” to apply for access or “contact” as it is called in BC, without willing parents the applications usually fail.

Why do they fail? Because of the way judges have interpreted the laws allowing grandparents to apply to have a relationship with their grandchild. Some of the longstanding legal principles that are used to oust grandparents from a grandchild’s life include:

1. It is the right of the child to have a relationship with a grandparent, not the right of a grandparent;

2. Parents and guardians are the only parties who have the “responsibility” (notice I didn’t use the term “rights”) to make decisions for their children;

3. There is a presumption in law that in the absence of clear evidence suggesting otherwise, parents and guardians are presumed to know what is in their child’s best interests and are entitled to implement or terminate certain activities.

4. The very fact there is a dispute between a parent and a grandparent is often sufficient in and of itself to limit or bar access to a grandparent on the theory that such a conflicted relationship will destabilize the child and is not in his or her best interests.

5. Religious freedoms enshrined in Canada’s Charter of Rights and Freedoms provides no assistance to shut-out grandparents, as the Charter does not apply to private disputes.

So what can a grandparent do? In cases where the grandparent’s child is the biological parent of a grandchild, it is only through their influence on their child that their views may be expressed and again, only if their child agrees with them. Most cases are like this one, however, and involve situations where the grandparent’s child is not on the scene or has abdicated parental responsibility. In these cases it is useless to buck the remaining parent or guardian’s views, unless they can be shown to be potentially harmful to the child and not in the child’s best interests.

If grandparents want to maintain a relationship with a grandchild, they must often “bite their tongues”, put on a “happy face” and take comfort in the knowledge that children are influenced by their grandparents, even if church and faith discussions are not allowed…and children turn into independent adults.

Judge Releases Wrongfully Convicted Man (And Gives Him a Pumpkin Pie)

GEO#1While British Columbia’s Ivan Henry fights to receive compensation for his 29-year wrongful imprisonment, this week a Texas judge released Steven Mark Chaney, a man who served 28-years for the murders of John and Sally Sweek, on the basis of now-discredited “bite-mark” evidence and the almost commonplace charge of prosecutorial misconduct. The latter allegations have yet to face scrutiny in a court room.

In 1987 Dentist Jim Hales was one of two dentists that testified at Chaney’s trial that there was a “1 to a million” chance that someone other than Chaney made the bite marks found on the male victim’s body.

The jury, like other juries before and after this trial, relied on the expert evidence to convict Chaney. It is not uncommon that medical testimony from seemingly qualified doctors is considered to be scientifically infallible because of the elevated positions physicians hold in society. This, despite alibi testimony from nine of Chaney’s friends who said they saw him the day of the slayings and he couldn’t have killed the Sweeks.

Chaney’s attorney and the New York-based Innocence Project asked Judge Dominique Collins to overturn their client’s conviction after prosecutors admitted that bite-mark analysis was unreliable and flawed. Chaney received a pumpkin pie from the judge who wanted him to enjoy the taste after eating bland prison food for so long.

Steven Chaney is among a group of alleged murderers and rapists whose convictions were secured by bite-mark evidence. Since 2000 at least 24 men in the United States have been exonerated of heinous crimes after convictions based on this junk science.

The field of forensic odontology captured public and media attention during the televised trial of serial murderer Ted Bundy in Florida in 1979 when dental experts testified that Bundy’s crooked teeth matched a bite in one young victim’s flesh.

In 2009 the United States Department of Justice released a report titled “Strengthening Forensic Science in the United States: A Path Forward”. The authors criticized the use of bite-mark evidence. Since then the FBI will not rely on it and the American Dental Association will not recognize it as bonafide science.

Nonetheless, as recently as 2013 a judge in New York accepted it as evidence in the trial of Clarence Dean, a registered sex offender accused of killing a woman near Time Square in 2007.

Meanwhile Chris Fabricant, director of litigation with the New York Innocence Project says “Bite mark evidence is the poster child of unreliable forensic science.”

Lawdiva aka Georgialee Lang