Judges’ Orders Place Limitations on Defendants’ Sex Lives

DSC00447_2 (1)Another American judge has made an order regulating a litigant’s sex life. In the most recent case a court in Kansas sentenced a career criminal to a lengthy prison term for being a felon in possession of a weapon and also imposed a probation order to follow the jail sentence.

In an unusual move, U.S. District Judge Howard Sachs inserted a probation condition that Christopher Harris be barred from having unprotected sex while on probation, for the very simple reason that Mr. Harris had sired ten children with seven different women. He made the order over the protestations of Harris’ lawyer saying that Harris’ behaviour was creating severe social problems.

A week later Judge Sachs amended his order to read:

“The defendant shall use contraceptives before engaging in sexual activity that may otherwise cause pregnancy unless such use would violate his religious scruples or is expressly rejected by his sexual partner.”

However, unlike a similar order made in Wisconsin, the US Court of Appeals struck down the Sachs’ order saying the condition imposed was not related to the nature and circumstances of the offence, and did nothing to protect the public from future crimes.

In Wisconsin, Corey Curtis was sentenced to three years probation for falling behind in his child support payments. Mr. Curtis had nine children with six mothers. During the sentencing Judge Tim Boyle mused about whether he had the authority to order the sterilization of Mr. Curtis.

The alert prosecutor then advised the Judge there was precedent in Wisconsin to control Mr. Curtis’ sex life, referring to a 2001 case where a payor father was ordered not to father any further children until he had paid the arrears of child support he already owed.

This precedent setting case, State v. Oakley, was upheld by Wisconsin’s highest court and later appealed to the United States Supreme Court, who declined to hear the case, thus explicitly recognizing the legitimacy of the trial court order.

The Justices of the Wisconsin Court held that the “no-procreation” condition of probation was not unconstitutional. It was also preferable to the eight-year prison sentence that otherwise would have been ordered.

Different states, different judges, different results. That’s what makes the law so challenging.

Lawdiva aka Georgialee Lang

Part 2: Alienated Kids Released From Jail

BarristerIn yesterday’s post I described the court hearing in Michigan that led Judge Gorcyca to send three children, ages 15, 10 and 9 to Mandy’s Place, a juvenile detention centre for children under 18.

Many people expressed outrage at her decision. Comments from American lawyers writing in the American Bar Association Journal ran at about 99% against. A few examples:

“Really. Sending kids to jail. This judge has no judgment. She should be removed from office. Clearly she is power mad.”

“If we saw this case on some TV lawyer show, no one would believe it. Yet here it is, in all it’s pathetic grandeur.”

“In loco parentis, with the emphasis on “loco.”

“It is painfully clear these children have already been destroyed. I am often skeptical about parental alienation syndrome even being a thing (and I do
matrimonial law) but this transcript proved it to me. A kid says they would prefer to go to juvie than to eat lunch in the courthouse cafeteria with his father? That is just appalling. And bespeaks some nasty business by mom-who also apparently went off on the judge personally in the past. This is not the insanity it reads like, I’m afraid. There is a back story and it’s ugly.”

The Michigan media later reported that the children spent two weeks at Mandy’s Place, a facility they had been ordered by Judge Gorcyca to tour earlier in March of 2015, an indication that she had the juvie hall in mind months before she made the order. The facility later reported that the children had settled in and were making friends, although they had been kept apart from one another, until their unexpected release earlier this month.

The children’s father and the court appointed guardian ad litem jointly applied for an order that the children be released from Mandy’s Place and be sent to a Jewish summer camp with the costs to be divided equally between the parents.

Judge Gorcyca, previously a prosecutor, granted the order saying:

“While this court’s remedy in this particular situation may seem drastic and offensive, so too, is the notion … that the only way to maintain a stable and loving connection with the mother is to vilify and reject the father.”

While Judge Gorcyca’s initial order may have been draconian, my twenty-seven years of experience provides me with a perspective that is less critical and more understanding of the judge’s dilemma.

Mrs. Tsimhoni knew that in the absence of a genuine attempt at reunification between the children and their father, their removal from her custody was inevitable. She and the children toured the Children’s Village three months earlier.

However, it would have been difficult, nearly impossible, to
order a change in custody in the circumstances presented. Mr. Tsimhoni had returned to live in Israel with his new wife and child. The prospect of allowing the children’s mother to continue to “brainwash” them was intolerable. I have no doubt that Judge Gorcyca had considered many other options before choosing the Children’s Village.

The mother had so empowered her children that even she could not obtain their cooperation to speak to or have lunch with their father. In my view, because of her self-centered need to obtain revenge against her ex-husband she turned three innocent young children into victims, and she alone is to blame for their predicament.

Typically in these cases, the children are ordered to live with their grandparents or other relatives who will adhere to a court order that the mother not be permitted any contact with the children. In the Tsimhoni case, the immediate family lived in Israel, including both sets of grandparents.

I recall a case of mine many years ago where two young boys were taken by their mother to Germany on the pretence of a holiday. They didn’t return, leaving a devastated father in Vancouver. His court applications in Germany were of no assistance in recovering his children.

Over the years the eldest boy begged his mother to allow him to visit his father, but she refused. Finally, when he turned twelve-years old she consented and he flew on his own to visit his father for two weeks.

At the conclusion of the holiday, I received a phone call from the father. His son was refusing to fly back to Germany. I told him that he had no choice but to take his son to the airport and see that he got on the plane.

Father and son arrived at the British Airways counter and the check-in process began, but suddenly the young boy started emptying his suitcases, throwing the clothes on the floor, and yelling that he would not board the plane.

His actions so distressed the clerks at the counter they called the captain of the 747 to come and speak to the boy. The pilot’s overture was of no use, as the boy still would not budge. With that, the captain advised my client that he would not allow his son to board the aeroplane for safety reasons. The boy remained with his father and a custody order was obtained in British Columbia.

But that was not the end. Two summers later I received a phone call from my client who advised his younger son, now approaching twelve-years old, had surreptitiously left Germany and showed up on his doorstep in Vancouver. His mother in Germany was frantic, as he left under cover of night and she had no idea where he was. He too escaped the clutches of the mother who had abducted him years before, and remained in Vancouver.

A dynamic in my client’s case and in the Tsimhoni case is that the younger child or children will often follow the older sibling, which is exactly what occurred in Judge Gorcyca’s courtroom.

So what is a judge to do? In certain jurisdictions reunification programs have been established for children who have, for no legitimate reason, refused to see a parent. In British Columbia, parental alienation expert, Dr. Katherine Reay runs “Family Reflections”, a residential program where children receive intensive therapy over a prolonged period of time. She reports a significant success rate.

As for those who still insist that parental alienation is a pseudo-syndrome that doesn’t really exist, I have seen it with my own eyes for many decades, as have hundreds of other lawyers and psychologists across North America. It is one of the most insidious forms of child abuse, rivalling the inexplicable tactic of falsely alleging a parent has sexually abused his or her children.

Lawdiva aka Georgialee Lang

Children 15, 10, and 9 Sent to Juvie for Contempt of Court in Access Case

_DSC4851It’s been a long time coming, but finally some family court judges are starting to understand the insidious nature of mothers and fathers who brainwash their children in an effort to prevent a normal parent/child relationship with their estranged spouse.

It is a twisted, selfish parent who would warp a child’s mind only because of their hatred of their former spouse or partner, and it happens much more often that most people realize.

A stark example of the extreme edge of parental alienation was on display in a courtroom in Michigan last month. Judge Lisa Gorcyca of Oakland County, Michigan, presided over yet another hearing in the five-year high conflict custody/access case involving the children of Maya and Omer Tsimhoni, named Roee, Liam, and Natalie, ages 9, 10, and 15.

The Tsimhon’s marriage broke down in 2008 when Mr. Tsimhoni accepted a transfer from his employer, General Motors, to work in Israel where the parties were born and raised, and where both their extended families resided. Mrs. Tsimhoni did not wish to accompany her husband and remained with the children in the United States, filing for divorce and preventing her husband from communicating with the children.

Several months later she changed her mind and the family was reunited making their new home in Israel, that is, until Mrs. Tsimhonages suddenly left Israel, taking the children back to Michigan.

Mr. Tsimhonages returned to Michigan as well, in order to maintain his relationship with his children. But the children’s mother had long been poisoning the children against their father, behaviour that led to June’s court hearing, where Judge Gorcyca held all three children in contempt of court and ordered they be sent to Mandy’s Place at Children’s Village, a youth facility for children under 18 who have been removed from their homes by the court due to neglect, abuse and status offenses.

Children assigned to Mandy’s Place stay there until the Court returns them to their family or foster care, or until they are are placed in a separate live-in program at Children’s Village.

You might be thinking by now: if the children’s mother has alienated them from their father, why punish the children? Shouldn’t it be the alienating parent that is rebuked? Yes, normally that occurs, but a bizarre dialogue took place between each child and Judge Gorcyca. The Court transcript tells the story.

The Court initially ordered Mrs. Tsimhoni to tell her children they must speak to their father and go for lunch with him in the Courthouse cafeteria. Their mother passionately implored them to do so, with no results. Then the Judge spoke directly to each child and their state-appointed lawyer informing each child that they would obey her order or be sent to Children’s Village.

The 15-year old son, on advice from his lawyer, apologized to the Court for defying the order but maintained his refusal saying:

“He’s violent and he—I saw him hit my mom and I’m not going to talk to him.”

Judge Gorcyca responded to the teenager:

“I ordered you to have a healthy relationship with your father, I witnessed your mother at 11:30 tell you very impassionedly that she wants you to talk to your dad, to talk to your dad, that he loves you, that he’s not gonna hurt you, that he’s not gonna hurt her. You are a defiant, contemptuous young man and I’m ordering you to spend the rest of the summer–and we’ll review it when school starts, and you may be going to school there.”

But the boy wasn’t done yet and challenged the Judge by asking wasn’t hitting somebody against the law?

Judge Gorcyca replied:

“I ordered you, I will say this again, and apparently you’re—you’re supposed to have a high IQ, which I’m doubting right now because of the way you act. You’re very defiant, you have no manners. … There is no reason why you do not have a relationship with your father. Your father has never been charged with anything. Your father’s never been convicted of anything. Your father doesn’t have a personal protection order against him. Your father is well-liked and loved by the community, his co-workers, his family [and] his colleagues. You, young man, have got it wrong. I think your father is a great man who has gone through hoops for you to have a relationship with you.”

A less confrontational dialogue unfolded between the Judge and the two younger children who also refused to have any contact with their father. Judge Gorcyca confirmed her order and added additional terms including a no contact or visitation order between mother and children and stipulated that when the children agree to see their father she would review their case.

Mrs. Tsimhoni immediately commenced a media campaign protesting the Judge’s order, an order made over the objections of the children’s father. The media, not surprisingly, excoriated the Judge, alleging a severe character flaw and general incompetence in her job. They weren’t the only ones, as scores of lawyers weighed in on the decision, most of them urging her removal from the bench.

Of course, if the children had been witnesses to spousal violence their refusal could be explained, however, when asked why the children accused him of physically abusing their mother, Mr. Tsimhoni said:

“The one incident that happened was five years ago I had a five-hour unsupervised visit. We were in a park and Maya was circling around the park the whole time, trying to sabotage the visit. Two hours into the visit, the children ended up in her car and she was trying to leave. I tried to prevent her from leaving because it was my time with the children. I was very careful not to do anything but she claimed that I pushed her. She screamed at the children, ‘Call 911! Call 911!’ The police showed up and Maya was screaming and the police confirmed that nothing happened. But in the children’s mind, that’s what happened.”

This story will continue in tomorrow’s edition of Lawdiva.

Lawdiva aka Georgialee Lang

Winnipeg Family Law Lawyer Critically Injured in Bomb Explosion

IMG_0311 - Version 2Earlier today a bomb exploded at Winnipeg family law firm, Petersen King. The National Post reports that lawyer Maria Mitousis, age 35, is the only victim and has lost a hand in the blast. Other sources suggest she may also lose her other hand. She was rushed to hospital in critical condition.

No other details are available, such as whether the bomb was mailed or couriered to the firm and police are on the scene.

The firm has had its share of misfortune over the past several years. The “King” of Petersen King is lawyer Jack King, the wife of Madam Justice Lori Douglas who became known as Canada’s bondage judge. You may recall it was Mr. King who introduced his wife to a client who complained he was sexually harassed by Justice Douglas and her husband.

A high-profile judicial inquiry of Lori Douglas’ behaviour finally ended with her resignation as a Superior Court judge, but not before the first panel of judges adjudicating Judge Douglas’ future resigned en masse, and inquiry counsel, George McIntosh, now Mr. Justice McIntosh of British Columbia’s Supreme Court, was criticized for his vigorous cross-examination of several witnesses.

Sadly, Mr. King recently died of cancer.

It is reported that victim Ms. Mitousis is in a common-law relationship with Barry Gorlick, a Winnipeg lawyer who was recently disbarred after he admitted to 15 counts of professional misconduct. Gorlick practices at another firm in Winnipeg.

During a discipline panel hearing last fall, he pleaded guilty to 15 counts of misconduct, including failure to serve a client, failure to conduct himself in a courteous manner, breach of duty to act with integrity, and misappropriating client funds.

The misappropriation included the deliberate creation of false documents, as well as misleading his staff and partners. A total of $59,129 of client trust money was diverted for his personal use.

A terrible tragedy that hopefully will result in the speedy arrest of the perpetrator.

Lawdiva aka Georgialee Lang

Big Law Partner Bears the Brunt of Madoff Fraud During Divorce

10950859361151CDPIn 2011 I wrote a story about Steve Simkin, a prominent real estate lawyer at New York mega-firm Paul, Weiss. An unwitting victim of Bernie Madoff’s ponzi scheme, Mr. Simkin signed an agreement with his wife, lawyer Laura Blank in 2006, before Madoff’s massive fraud unravelled, dividing their family assets between the two of them. Part of the deal saw Ms. Blank receive compensation for her one-half interest in Mr. Simkin’s investment portfolio valued at $5.4 million dollars and held by Bernie Madoff.

In 2008 Mr. Simkin realized he was a victim of Madoff’s criminal scheme. The truth was there was no account with Madoff’s company and the monthly statements were forgeries. Simkin filed a lawsuit against his ex-wife seeking to recover the funds he paid her for her share of the portfolio. Simkin’s lawyer argued that Ms. Blank had received a “windfall” on the basis of a “mutual mistake”. He sought a variation of the agreement and reimbursement from his ex-wife.

A Manhattan trial judge didn’t see it that way and tossed out Simkin’s lawsuit. She ruled there had been no mistake, because at the date of the separation agreement the account held funds. The fact the account was later worth nothing was not a “mutual mistake”.

Mr. Simkin immediately appealed and in a 3-2 decision in his favour, the Appeal Court ruled that Simkin’s claim was legitimate and ought to proceed in the lower court.

In a stinging dissent Justice Karla Moskowitz held that the majority decision trampled on years of well-settled law that “a deal is a deal”. She opined that when the agreement was signed the account had value and to adjust the division of assets because one asset had declined in value was “divorced from reality”.

The legal concepts set out in the dissenting opinion, mirror the laws in British Columbia with respect to a Court’s hesitancy to overrule or set aside a separation agreement negotiated by the parties in good faith and with independent legal advice.

The reason why separation agreements should not be easily varied is exemplified by the Simkin case. Another example? If a couple divorced, with the wife retaining the family home and the husband retaining other assets of equal value, it would be ridiculous for the wife to come back two years later and say, “The real estate market has dropped and my home is now only worth half the value it was at the date of the separation agreement, please pay me more money to account for this change in value.”

Of course, Ms. Blank appealed the Court of Appeal decision and in 2011 I made the following prediction:

“I believe at the end of the day, which could be years away, the pain caused by Madoff’s swindle will be suffered only by Mr. Simkin. Do I believe that is fair? Not really, but the law set out in the fourteen page dissent is compelling.”

Sure enough, with all appeals now completed, Mr. Simkin alone bears the burden of Madoff’s fraud, while Ms. Blank is permitted to retain the “overpayment” of $2.7 million.

It is likely that Steve Simkin’s plight will attract little sympathy, given the enormous salaries earned by “biglaw” partners in New York City. Website abovethelaw.com suggests a salary range of $600,000 to $900,000 per annum. Nice work if you can get it!

5 Reasons to Fire Your Divorce Lawyer

10950859361151CDPWhy do clients of divorce lawyers change lawyers so frequently? It’s because they are caught in an emotional vortex, facing the unknown and dreading the journey. However, there are legitimate reasons to fire your divorce lawyer. Consider the following:

1. YOUR LAWYER PULLS A BAIT AND SWITCH

This occurs when you hire a lawyer with a big reputation and never see him or her after your first consultation. Many busy, successful lawyers work with junior lawyers and paralegals and this is beneficial for a client. The usual, mundane paper-pushing can easily be done by a junior and at a far cheaper rate than “big lawyer’s” rate.

However, if this is the way your lawyer works you need to know up front. I always tell my clients that what they need from me is strategy and courtroom presence. The rest can be done by others with my supervision. Far better to have basic family law forms filled out by a junior who bills $250.00 an hour than by “big lawyer’s” charge-out rates. If you can’t accept your lawyer’s work style, time to find a new lawyer.

2. AFTER MANY MONTHS YOU HAVE NO IDEA WHAT YOUR BEST AND WORST CASE SCENARIOS ARE

After a few months your lawyer should have received from you or your spouse’s lawyer certain financial documents and information and if you have children, details about your kids and the parenting arrangements during the marriage. You have every right to expect that once a clear picture of the family finances emerges and the roles of each spouse in the marriage is elucidated, your lawyer will tell you the good, the bad and the ugly.

I am often asked to provide a “second opinion” and am always surprised when the client cannot tell me what their lawyer’s plan is to resolve the case. If four months have passed and you have no idea of where you stand, it may be time to challenge your lawyer.

3. YOUR LAWYER HAS NEVER DONE A COSTS/BENEFIT ANALYSIS

Unless you are a multi-millionaire and money is not an issue, you will want your lawyer to consider the financial viability of unleashing the hounds of hell on your spouse. By now, everyone knows how expensive court is and not just court, but the cost of two business valuators, two property appraisers, two child development experts, two accountants and the list goes on and on.

If you are fighting over a sum of $100,000 but it will cost you $150,000 to litigate, you would be a fool to proceed to court. Ah, but what about custody of kids? You can’t put a price tag on that. Yes, you can and you should. The worst battles of all are over children and usually the outcome does not justify the “go to war” tactics and accompanying costs.

A good lawyer will do everything he or she can to find a way to compromise on children’s issues, short of court proceedings. If you have not had a realistic “money” talk with your lawyer, beware.

4. YOUR LAWYER PROMISES BIG, BUT DELIVERS SMALL

An experienced, competent lawyer should be able to give you the odds of success for any court application he or she brings on your behalf. Legal cases are decided on decisions made in earlier legal cases, called precedents, and your lawyer should be fully aware of how cases like yours have been decided.

While you cannot expect lawyers to guarantee a particular outcome, before you can make an informed decision as to whether to proceed to court you need some idea of the lawyer’s opinion of the likelihood of success. If your lawyer promises the sun, the moon and the stars, but delivers space junk you may want to think twice.

5. YOUR LAWYER NEVER SENDS YOU A BILL

While at first blush this may sound like the perfect lawyer, it is not. A lawyer who is unable to bill you is a lawyer that is likely highly disorganized, overworked, has taken on too many clients and is generally overwhelmed. No one likes surprises, and when you finally receive your bill, and you will, it will come as a big shock. Insist that your lawyer bill you monthly so you can see how much this is costing you. Usually lawyers who fall behind on their billing, also avoid conversations about cost and benefits obtained. Not a good combination.

A divorce lawyer’s day is never boring and yet most other lawyers agree that divorce lawyers do the hardest work of all, they work with clients who are emotionally devastated who may become financially spent in the process. It’s a tough job, but someone has to do it.

Lawdiva aka Georgialee Lang

No Gender Bias in Family Courts Says Irish Academic

GEO CASUALA key finding in a new report on gender bias in family courts declares there is no indication of gender bias in contested cases about where a child should live.

The May 2015 report authored by Dr Maebh Harding, from the University of Warwick and
Dr Annika Newnham of the University of Reading is based on a document analysis of a retrospective of 197 case files from five county courts in England and Wales over a six month period in 2011. Of the 197 cases, 23 were custody disputes between a parent and another relative, usually a grandparent.

In the “two parent cases”, fathers initiated 70% of the applications, whereas only 30% of the cases started with an application by a mother.

The most common type of court application was for an order to allow contact or access, making up 41% of their sample. Fathers brought 96% of all access applications. The majority of these applications were made in order to initiate or restart contact.

Applications which sought a sole residence order made up 43% of the sample. Similar numbers of applications for sole residence were made by fathers (32) and mothers (30) but their reasons for going to court differed.

Joint custody and joint residence applications amounted to only 7%.

Notably, in 2011 there was no presumption in the British law that the involvement of a non-resident parent would further a child’s welfare. In 2014 this presumption was added to the governing statute, the Children Act 1989.

In my view, the analysis of the data in the report suffers from the absence of real-life experience in the family law trenches. Let me give you some examples:

1. The authors discovered that in 51% of cases the father had been cut off from contact with the child and that in almost half of the parent cases (86 out of 174) mothers had made allegations of domestic violence against fathers. However, in only 45 of the 86 cases was their sufficient evidence of family violence.

The report reads “Court investigations into the truth of domestic violence allegations were rare and took place in only 21 of the 86 cases in which allegations of domestic violence were made.

Where fact-findings were held, few ended in a clear determination on the alleged facts. Instead, the question of domestic violence tended to be reconceptualised as being primarily about reducing the risk to the child and facilitating as much contact as was possible in the circumstances.”

In other words, even unproven domestic violence was used to minimize a father’s role in parenting.

THESE FACTS ACCORD WITH MY EXPERIENCE THAT MANY FATHERS ARE MARGINALIZED AFTER MARRIAGE BREAKDOWN AND ALLEGATIONS OF DOMESTIC VIOLENCE ARE USED AGAINST GOOD FATHERS TO THWART A CHILD/PARENT RELATIONSHIP.

2. The authors found that many of the cases took two years to resolve but expressed little concern about the delay saying:

“Time taken in the court process should not always be viewed as unnecessary delay. Cases need time to build trust between the parties and reach a workable child-centred conclusion ensuring contact was safe.”

THE REALITY IS THAT IF FATHERS BRING MOST OF THE APPLICATIONS FOR RESIDENCE OR ACCESS AND A RESOLUTION IS TWO YEARS AWAY, THE STATUS QUO CARRIES ON TO THE DETRIMENT OF THESE FATHERS AND THEIR CHILDREN.

3. The authors opine that going to court did not amplify or entrench the conflict between the parties finding that the vast majority of cases were resolved by consent orders. Only 25 of the 174 parent cases ended in a contested final hearing.

THE NAIVETY EXPRESSED IN THE AUTHOR’S FINDINGS ABOUT CONSENT ORDERS IS DISAPPOINTING. THE TRUTH IS THAT FATHERS ARE COMPELLED TO GO TO COURT TO OBTAIN RESIDENCE OR CONTACT ORDERS, AND MANY FATHERS SETTLE FOR WHAT THEY CAN GET AFTER YEARS OF FAILED NEGOTIATIONS WITH ADVICE FROM THEIR LAWYERS THAT FAMILY COURT JUDGES WORSHIP AT THE ALTER OF THE STATUS QUO.

Perhaps if academics conferred with family law lawyers when analyzing court data they would gain insight into the dynamics between feuding parents; understand the nuances and strategies employed by parents who seek to discount or eliminate the other parent; understand that children need both parents in their lives; and resist the attraction of the “primary parent” philosophy that is no longer relevant in today’s world.

The report is titled “HOW DO COUNTY COURTS SHARE THE CARE OF CHILDREN BETWEEN PARENTS?” and can be found at http://www.nuffieldfoundation.org.

Lawdiva aka Georgialee Lang