Judge Presides Over His Own Divorce Case

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How would you feel if your jurist husband filed for divorce and coincidentally had his divorce petition assigned to his courtroom?  Hard to believe, but that is exactly what occurred with Texas Judge Miguel (Mike) Herrara.

 

In Judge Herrara’s discipline hearing he acknowledged that the same day he filed his divorce petition he learned it had been assigned to his courtroom. He didn’t think it was a problem because he and his wife, Melissa Carrasco were “trying to save the marriage and he did not want to do anything on the case”. (In my 28 years of practicing family law I have never seen a litigant file a divorce petition, while seriously “trying to save the marriage”).

He explained that he saw his role in the divorce as that of a husband, not an attorney or judge and justified his behaviour, saying:

“I did not care to place my family in the same position as other litigants find themselves, in conflicts and court hearings, which, for the most part only benefit the attorneys financially. It is really sad and embarrassing to see the reputation of some of the litigants being dragged in the mud in these court proceedings.”

Judge Herrara’s breach of ethics may have escaped scrutiny if he and his wife reconciled, but that didn’t happen. Instead, she retained lawyer Angelica Carreon who filed a counter-petition for divorce against Judge Herrara.

This did not please the judge who asked his wife why she was involving Ms. Carreon  who he alleged did not like  him. In his testimony he admitted that he refused to recognize the “legitimacy” of Ms. Carreon’s representation because she had improperly solicited his wife as her client, had campaigned against him during judicial elections, and was “dishonest, unethical and unreasonable”.

Several months after the judge’s original filing he terminated his divorce petition, leaving his wife’s counter-petition to be determined. At this stage, Ms.  Carrasco’s lawyer filed a motion requesting the judge to produce certain documents. Judge Herrara responded by filing a motion in his court for an order to extend the time beyond the normal time-frame for responding to the document request. He also filed a motion for a protective order.

Again, Judge Herrara did not recognize the absurdity of filing motions in his own court, saying that he did nothing wrong as he did not rule on the motions. But that wasn’t the end of his problems. His wife’s lawyer began filing motions requesting that he recuse himself from officiating over a number of other cases that were scheduled to be heard in his courtroom. Ms. Carreon alleged that Judge Herrara could not be fair and unbiased, because of the difficult professional relationship that had developed between them over her representation of Ms. Carrasco.

Many of the recusal motions were resolved by moving the cases to another judge, but several others remained in his courtroom and were not referred out. But, Herrara wasn’t done yet. He filed yet another motion to intervene in certain recusal cases because he wanted his views to be heard by the court. He testified that if he agreed to recuse himself he would be admitting the truth of Ms. Carreon’s allegations and would suffer at the polls in the next election.

The Texas Discipline Commission found that Judge Herrara failed to comply with the law, demonstrated a lack of professional competence, and engaged in wilful and persistent conduct that was inconsistent with his judicial duties.

They also determined that Judge Herrara showed no genuine remorse and continued to believe his conduct was justified.

His discipline? Six hours of instruction with a “mentor”. In 2016 he was re-elected for an additional four-year term.

Lawdiva aka Georgialee Lang

Katie Holmes First Mistake: She Wants Sole Custody

One of my pet peeves is lawyers who allow their clients to file divorce proceedings where they ask for sole custody. That’s what Katie Holmes has done in her divorce filing against Tom Cruise.

It’s an utter waste of time and a surefire way to escalate the conflict in a divorce case. Why do I say this?

Mainly because the days of “ownership” of children are thankfully, long gone. In asking for sole custody a parent is suggesting their partner is not fit to participate in decision-making when it comes to their children and often the notion of sole custody implies drastically limited access time for the non-custodial parent.

As well, parents who accede to their lawyer’s admonition to claim sole custody do not have the best interests of their children in mind and…let me go further…in doing so they display a significant character flaw.

Now before I go too far, I should say that where a parent is a child abuser, an out-of-control drug addict or alcoholic, or has a debilitating psychiatric disorder with little hope of redemption, sole custody may be appropriate. But most custody cases involve two adequate parents who can work together for the good of their child and put aside their anger, disappointment, resentment, and distress over the marriage breakdown.

For the last decade or so, joint custody is the parenting norm. However, many people don’t understand what that entails. Joint custody does not mean equal parenting time, although that may be one aspect of it. Joint custody means shared decision-making with respect to the important decisions required to raise a child: medical, educational, and religious upbringing.

Oh, you say, no wonder Ms. Holmes sought sole custody. She obviously wants to prevent her 6-year-old daughter Suri from being raised in the Church of Scientology. That may be her motive, but I suggest it’s too late for that now.

As I understand it, Katie embraced the doctrine of Scientology, hook, line, and sinker. To persuade a judge that Scientology is now the root of all evil will be an uphill argument. But she is still one step ahead of Mr. Cruise, having moved to New York City with Suri and establishing a new residence. A good strategy for a parent who is wants to exclude the other.

There’s no doubt that the Cruise/Holmes’ family could wage war over their daughter and make several lawyers very rich. I sincerely hope they are smart enough to do the right thing: settle a parenting plan discretely and privately.

Lawdiva aka Georgialee Lang