Judge’s Decision Results in Tragedy

BarristerHave you ever thought about how judges make decisions? Frankly, I rarely think about this as my focus is simply on persuading a judge to see it my way. But learned scholars have studied and researched the psychology of judicial decision-making with interesting results.

The authors of “Blinking on the Bench: How Judges Make Decisions”* say that judges are predominantly intuitive decision makers, a characteristic that unfortunately can lead to flawed decisions. Of course, some intuitive decisions are accurate, but as between those kind of decisions and  the more academically rigorous “deliberation” method,  acting on gut feelings or hunches can be a dangerous way to adjudicate matters of critical importance to participants in the justice system.

A case this week out of Madison, Kentucky highlights the impact of judges’ “getting it right”.

Local prosecutor Chad Lewis was in court in Madison on October 6, 2016 seeking an arrest warrant against Laura Russell’s husband, Anthony Russell, age 51. The couple was divorcing and it was going far from well. Charged in August 2016 with strangulation and domestic battery for allegedly attacking his wife on several occasions. Mr. Russell was out on bond of $500.00 and subject to a restraining order, that he apparently ignored.

This court appearance was scheduled after Ms. Russell advised the police that her husband was continuously stalking her. She was upset, intimidated and frightened.

Judge Michael Hensley presided at the hearing, however, he refused to issue a warrant for Mr. Russell’s arrest and instead issued a summons requiring Mr. Russell to attend court on  October 11, 2016 after the three-day long weekend.

Mr. Russell did not show up at court on October 11 and neither did his estranged wife. They were both dead. Mr. Russell went to Ms. Russell’s home on October 7 and stabbed her multiple times. He then  committed suicide, blowing his head off with a pistol…a tragedy that devastated Judge Hensley.

The judge released a statement to the press expressing his condolences to Ms. Russell’s family, saying he felt “horrible about her death” and understood that his sincere regret would not “bring her back”. He explained that he didn’t believe there was “probable cause” to issue a warrant and said “I made what I thought to be the correct legal decision…obviously I made a decision that had the most tragic result possible”.

Prosecutor Lewis criticized Judge Hensley for failing to accede to his request for a warrant for stalking. Meanwhile, Ms. Russell’s lawyer suggested that it was Mr. Lewis’ fault as he could have asked for a warrant for multiple breaches of the restraining order, instead of seeking a probable cause hearing for a new charge of stalking.

Judge Hensley also announced that he would institute a new procedure in respect of arrest warrants, by ensuring that a hearing be scheduled for the day the warrant request is made.

 Lawdiva aka Georgialee Lang

*Chris Guthrie,  Jeffrey J. Rachlinski & Andrew J. Wistrich

Guest Post: Abduction by Adoption

Could your teenage child be secretly adopted without your knowledge? If New Jersey sets the example, then the answer looks like yes.

The New Jersey horror story started out typically enough. Parents of three children got a divorce. To make the transition as easy as possible on their children, these parents agreed to custody arrangements outside of court.

The children would remain in the family home with their father. The mother moved into a home 15 minutes away and the two parents shared parenting duties and privileges as well as parents from two households can. Things went well, and the parents never needed the courts to intervene to enforce any of their arrangements.

It was the good divorce that we want and expect should our marriages fail.

A few years later, when the eldest was a young teenager, the mother remarried. The new couple began holding the children at their house.  It was not a power play as much as a bid for control. The new husband came from a fatherless home. The mother was adopted. Together, they had a view of fathers as replaceable, and it would make their life so much easier to simply cut the ex-husband away.

As they worked to cut the father’s connections with his children, one time even snatching them from the lawn, the father had to resort to the courts to enforce their custody agreements. There were multiple hearings, interviews, and appeals. By 2015 the court had issued various orders upholding the shared custody plan and instructing the stepfather not to interfere with any of the father and child relationships.

Things got so bad that the judge even openly entertained the idea of awarding sole physical custody to the father so he would have more enforcement options. (As many divorced parents know, states have various laws and assumptions about equal legal custody, but in practice custody agreements mean as much as the parent with physical custody wants them to mean.)

The mother and step-father did not like this development. They did not want to abide by the custody agreements or have to appear in court when they ignored the agreements. Therefore, when the eldest daughter turned 18 the step-father used an odd adoption provision in New Jersey law and petitioned for an adult adoption in another court. It was granted.

The Adoption Loophole

The adult adoption provision is typically used for inheritance issues. For instance, prior to the legalization of same sex marriage, one member of a homosexual couple might adopt the other so they would have tax advantaged inheritance rights.  It is a simple process. The adopting parent petitions for the adoption and certifies that there are no obstacles to the adoption.

Adopting a step-child is an entirely different matter and New Jersey law has provisions for step-parent adoptions. As common sense suggests, those adoptions require notice to the biological parent and a waiver of parental rights, as well as background assessments of the adopting party. The law knows — the public knows — that adoptions of children are not to be taken lightly.

In the New Jersey case, the mother and stepfather waited until the eldest girl turned 18 so they could use the adult adoption provision. The step-father did not inform the new court about the many and current restraints set to keep him from interfering with the father and daughter relationship.  He simply verified there were no controversies and adopted the eldest daughter away from her father.

The father was never notified. He even continued paying child support, un-aware that legally, according to the State of New Jersey his daughter was no longer his. The next time he tried to enforce the custody arrangements the adoption rendered them meaningless.

Such is the tale told by the pleadings in the New Jersey Supreme Court where the father has asked the court to vacate the adoption of his daughter.

In addition to this new use of the adult adoption statute, the ultimate interference with the father and child relationship, and the lack of notice to the father and protections to the child, the court must also consider the implications of letting this adoption stand. Custody agreements will mean nothing if one parent can simply find someone, anyone, to adopt a child away from a biological parent. It’s a custody loophole, abduction by adoption.

According to Alice M. Plastoris, attorney on the Board of Directors of the New Jersey Association for Justice and Chair of the Matrimonial Committee, “This is not how the legislature intended for this statute to be used and the courts have cautioned against using the adult adoption provisions without notice.”

In a surprise move, the New Jersey Court denied the petition last month while agreeing to hear a related case. Another New Jersey couple’s divorce decree stated that neither parent could move the children out of state — and then the mother promptly moved the couple’s children to Utah. A parent’s ability to rely upon custody agreements is clearly in question in New Jersey. The father in the adoption case has asked for reconsideration.

If the New Jersey courts allow these events to stand, then what comfort could any divorced parent take in child custody agreements? The agreements can be ignored by legally or physically removing the children from one parent. And thus, New Jersey could set a new standard in child custody: the first parent to capture the kids wins.

AUTHOR: LESLIE LOFTIS,  LAWYER AND WRITER: Her writing typically covers feminism, law, politics, parenthood, and pop culture, particularly where they intersect. A member of LEADING WOMEN FOR SHARED PARENTING.

NOTE: In British Columbia an adult may be adopted based on the criteria in section 44 of the Adoption Act.

44 (1) One adult alone or 2 adults jointly may apply to the court to adopt another adult.

(2) The court may make the adoption order without the consent of anyone, except the person to be adopted, as long as the court

(a) is satisfied that that person, as a child, lived with the applicant as a member of the family and was maintained by the applicant until the person became self supporting or became an adult, and

(b) considers the reason for the adoption to be acceptable.

(3) An adoption order made with respect to an adult has the same effect as an adoption order made with respect to a child.

Lawdiva aka Georgialee Lang



Bob Dylan: Nobel Prize in Literature and Legal Muse

GeorgiaLeeLang057This past weekend I saw Bob Dylan perform in concert in Indio, California, a musical extravaganza that featured Dylan, Neil Young, the Rolling Stones, The Who, and Paul McCartney, but it was Dylan’s weekend, as he was feted by his fellow artists for his Nobel Prize in Literature. He joins luminaries such as Jean Paul Sartre, Alice Munro, Doris Lessing, John Steinbeck, Albert Camus, Boris Pasternak, Harold Pinter, Toni Morrison, and many others, 113 awarded thus far.

As relevant today as he was in the turbulent 60’s, Dylan’s music and lyrics captured the imagination of a whole generation and became the soundtrack for America’s civil rights and anti-war movements. And his poetry remains as profound today as fifty years ago.

University of Tennessee  Professor Alex Long scoured legal databases for the year 2007 and found that Bob Dylan’s lyrics were cited in Reasons for Judgment 186 times, compared to 74 for the Beatles, 69 for Bruce Springsteen,  Paul Simon, 59; Woody Guthrie, 43; the Rolling Stones, 39; the Grateful Dead, 32; Simon & Garfunkel, 30; Joni Mitchell, 28; and R.E.M., 27.

Several appellate judges in California have said “You don’t need a weatherman to know which way the wind is blowin’ ” from the song “Subterranean Homesick Blues” in reference to the fact that an expert isn’t required to offer an opinion when any layperson could discern the facts.

Even the United State Supreme Court has relied on Dylan’s lyrics to make a point. Chief Justice John Roberts Jr. quoted Dylan’s line “If you ain’t got nothing, you’ve got nothing to lose” from his song “Like a Rolling Stone”.

And the late Justice Antonin Scalia, in a case involving privacy protection for employees that use company email, said “The times they are a-changing’ is a feeble excuse for disregard of duty”.

I wonder if a Judge will ever recite this line from Dylan’s “Hurricane” , Dylan’s ode to wrongfully convicted Rubin “Hurricane” Carter.

“The trial was a pig-circus he never had a chance”

Lawdiva aka Georgialee Lang

“Bill Cosby” Law to Take Effect in California

DSC01152_2 (2)_2In Canada there is no statute of limitations for criminal offences. If you committed a robbery,sexually assaulted a person, or even murdered a person decades ago, the law is coming for you, if they find sufficient evidence to prosecute. Admittedly, historical cases are more difficult to prove: evidence is lost, witnesses die, and memories fade, but Canadians recognize that a crime is a crime is a crime and the passage of time ought not to excuse an offender of his or her criminal wrongdoings.

Not so in the United State, where criminals can beat the system if they have not been prosecuted within certain proscribed time periods.  Justification for limitation laws include that an alleged offender ought not to have to defend himself after a lengthy period of time has passed, again because of lost evidence, faded recollections and other “fairness” arguments. That this approach clearly prejudices victims has apparently fallen on deaf ears, until now.

This week California’s Governor Jerry Brown signed a new law that changes the limitation period in California for rape and other sexual molestation cases from 10 years to 20 years commencing in  2017. California’s limitation law reforms are not at the leading edge as  Nevada and Colorado amended their laws earlier this year, again expanding the period to 20 years. All of these legal reforms arise from the allegations of at least 30 women who say they were drugged and assaulted by Mr. Cosby.

According to the California Women’s Law Centre, 17 other States in America have no limitation period for rape.

California attorney Gloria Allred represents 30 women in the Bill Cosby case, most of whom have no legal recourse because of the limitation laws on the books in most states. She notes that the legislation is not retroactive, so it will not apply to her clients.

Proponents of the new law explain that it “tells every rape and sexual assault victim in California that they matter and that, regardless of when they are ready to come forward, they will always have an opportunity to seek justice in a court of law.” California state Senator Connie Leyva who brought the bill forward said in a statement. “Rapists should never be able to evade legal consequences simply because an arbitrary time limit has expired. There must never be an expiration date on justice!”

Lawdiva aka Georgialee Lang

Why Would Angelina Jolie Demand Sole Custody?

GeorgiaLeeLang025When I read this morning that Brad and Angie were kaput, I didn’t believe it. After all, every month for the past several years some gossip magazine has splashed this headline across their cover page. Only it was never true.

But today it is, and to my surprise the liberal heroine of human rights, Ms. Jolie,  wants to deprive her children of a basic human right: the right to have a full relationship with their father.  Yes, children have a right to know both their parents, a right so precious that the United Nations Convention on the Rights of the Child includes this provision in Article 18:

“State parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.”

In this day and age when a mother, like Ms. Jolie, asks a court to award sole custody of the children to her,  it can only be interpreted as a denunciation of the children’s father. In most family courts, a claim for sole custody in favour of one parent usually signals that the other parent is a drunk, an addict, a child molester, is in jail,  or so mentally ill that he or she is incapable of taking care of the children.

Sole custody means that the custodial parent alone will decide where the children live, where they go to school, what kind of school they will attend and what religion will be taught to them.

In Canada a judge of the Supreme Court held that a non-custodial parent has no more rights than an “interested observer”- A shocking pronouncement for a parent who finds him or herself estranged from his children by virtue of relationship breakdown.

If reports that the Jolie-Pitt’s are frequently on different continents is accurate, it will be difficult to craft an equitable parenting schedule. Note that I didn’t say equal. That may be impossible, but children need stability as much as they need both parents in their lives.

Ms. Jolie has a reputation as a compassionate humanitarian and has undertaken massive charitable projects throughout the third world focusing on children’s rights.  I believe that if she understood what her claim for sole custody really meant, she would resile from it.

I hope that for the children’s sake she does and does so very quickly.

Get Over It Hillary…

GeorgiaLeeLang057In a recent interview with HUMANSOFNEWYORK.COM Hillary Clinton explains why she may appear to be “cold and unemotional”.

“I was taking a law school admissions test in a big classroom at Harvard. My friend and I were some of the only women in the room. I was feeling nervous. I was a senior in college. I wasn’t sure how well I’d do. And while we’re waiting for the exam to start, a group of men began to yell things like: ‘You don’t need to be here.’ And ‘There’s plenty else you can do.’ It turned into a real ‘pile on.’ One of them even said: ‘If you take my spot, I’ll get drafted, and I’ll go to Vietnam, and I’ll die.’ And they weren’t kidding around. It was intense. It got very personal. But I couldn’t respond. I couldn’t afford to get distracted because I didn’t want to mess up the test. So I just kept looking down, hoping that the proctor would walk in the room. I know that I can be perceived as aloof or cold or unemotional. But I had to learn as a young woman to control my emotions. And that’s a hard path to walk. Because you need to protect yourself, you need to keep steady, but at the same time you don’t want to seem ‘walled off.’ And sometimes I think I come across more in the ‘walled off’ arena. And if I create that perception, then I take responsibility. I don’t view myself as cold or unemotional. And neither do my friends. And neither does my family. But if that sometimes is the perception I create, then I can’t blame people for thinking that.”

Imagine if Hillary had faced real trauma as a young woman: like civil war, rape, incest, addictions, eating disorders, other psychiatric problems,serious illness, catastrophic accident, losing a parent, or living in poverty.

Lawdiva aka Georgialee Lang


BarristerTERRY BRENNAN is the co-founder of “LEADING WOMEN FOR SHARED PARENTING”, an organization based in the United States, with invited members located world-wide. Members include women who are Senators, members of the House of Representatives, state and municipal politicians, social workers, psychologists, scientists, psychiatrists, journalists, attorneys, child custody experts, domestic violence experts, and many other professional women. I am a member of LEADING WOMEN FOR SHARED PARENTING and proud of it.

Terry Brennan’s  letter to the editor  of the Kearney Hub, a Nebraska publication, dated August 30, 2016, has caused quite a stir in the Cornhusker State, a state whose Bar Association actively lobbied against shared parenting in an attempt to maintain the revenue they earn from custody litigation. They were successfully sued for their misguided efforts.

The Kearney Hub deserves praise for calling out the largest social issue impacting America. Fatherlessness is an epidemic connected to virtually every social pathology in children. More local papers, who are in the trenches of America’s problems, are calling out the desperate need to address fatherlessness, even as the national media stays silent.

However, it’s ironic to see a Nebraska paper calling out fatherlessness. Why? Because while fatherlessness has multiple causes, using the low estimate, family courts create a fatherless child every single minute of every single day, and Nebraska courts are among the worst offenders.

Every mother of a son should know, a 10-year study found Nebraska family courts gave children an average of five days a month “visitation” with their non-custodial parents, a.k.a. “father.” Recently, Nebraska family courts showed they prefer that convicted pedophiles spend time with children rather than their loving and capable fathers. It’s shameful, considering the overwhelming research that shows shared parenting is best for children.

Shared parenting is endorsed by 110 world experts, supported by 43 peer reviewed papers, favored by 70 percent of the population, and was the conclusion of the largest study on children of divorce, reviewing 150,000 kids. The 110 experts stated they’re “united in their concern that flawed science is leading to parenting plans and custody decisions that harm children.”

Cordell & Cordell, a law firm with offices in 30 states, noted: “It is becoming increasingly clear that any argument against shared parenting is not based on empirical data. Logic would dictate that it should be painless to pass laws that grant children more equal access to each parent following a divorce.”

With such support, 20 states recently considered shared parenting with Arizona, Utah and Missouri changing laws, allowing children more time with the paternal side of their family.

Although bills are put forth annually, shared parenting hasn’t advanced in Nebraska as it reduces the income of lawyers. In reviewing the implementation of shared parenting in Australia, Professor Edward Kruk found a marked reduction in child custody litigation has also been noted since the new legislation, with applications to court over child custody falling by a staggering 72 percent. Court-determined parenting arrangements fell from 7.8

percent to 2.8 percent of cases and lawyer negotiation from 10.6 percent to 5.8 percent of cases, Kruk found.

Corresponding to decreased litigation has been a marked increase in the use of family relationship centers and family mediation services. And most Australian parents (72 percent) now resolve parenting arrangements without the use of any legal services. (“The Equal Parent Presumption”)

The Nebraska Bar Association so feared this loss of revenue it acted illegally and was sued for lobbying against shared parenting, resulting in its dues being halved, the elimination of staff, and sublet of office space.

If we’re to pay more than lip service to addressing fatherlessness, follow the advice of psychiatrists, psychologists, child development experts and domestic violence practitioners who’ve endorsed shared parenting as best for children.

Until the Nebraska Legislature follows the lead of other states, the fatherless crisis will continue.”

Terry Brennan, Newtonville, Mass.


Several bills  advocating shared parenting have been voted on in Canada’s Parliament. None have passed.

Lawdiva aka Georgialee Lang