by Barry Goldstein
The most common question those of us who work to protect battered women and their children is about how they can find a good attorney. Many of the moms complain that their attorneys refuse to present the evidence of domestic violence or child abuse because they want to avoid offending the judge. They are concerned that if they do their job by zealously representing their client it might negatively impact other cases they have with the same judge. The legal ethics in these situations are clear. Lawyers have an ethical obligation to zealously represent their clients and to avoid taking cases that may result in a conflict of interest. Many attorneys assume that they will never be in the position of presenting evidence of abuse because they expect the case to settle. Indeed over 96% of custody cases result in a settlement. The problem is that virtually all of the cases that cannot be settled are domestic violence cases in which the father uses the common abuser legal tactic of seeking custody to regain control over his victim. Inadequately trained court professionals rarely examine the father’s motivation for seeking custody despite limited involvement in caring for the children during the relationship. They just assume he is acting out of love for his children. In these extreme cases, however he is willing to hurt the children in order to pressure the mother to return or punish her for leaving. The abusers understand the best way to hurt the mother is to hurt her children. So the attorney takes a substantial retainer, but cannot settle the case because the father will only agree to arrangements that place the safety of the mother and children at risk. The mother expects her attorney to put the evidence together and present the strong case she has to protect her children. The attorney is concerned that aggressively presenting the evidence of the father’s history of abuse will undermine their relationship with the judge. Some attorneys in this situation recognize the conflict and seek to withdraw from the case. They are not interested in returning their legal fees, much of which was wasted by their refusal to do their job. This often results in mothers being forced to go to trial pro se or with a new attorney less familiar with the case. Other attorneys continue to be the attorney of record but undermine their client’s case.
Most attorneys, like judges and evaluators, have had some training in domestic violence. The Saunders’ study recently released by the US Dept. of Justice, however found that the standard and required training they receive does not give them the necessary information to handle domestic violence cases. This is the worst possible situation in that they do not have the needed expertise but think they do.
This is a serious problem that places women and children in danger. The court system tends to underestimate this problem because of the widespread practice of blaming the victim. It would be useful to consider some of the remedies the court system might adopt to ameliorate this problem. They could encourage or require consultation with domestic violence advocates and better training that would be based on current scientific research and a multi-disciplinary approach. This would be a response supported by the findings in the Saunders’ study. They could encourage judges to be more open to domestic violence evidence and avoid retaliation against mothers making abuse allegations. They could enforce ethical rules about zealous representation and conflicts of interest. All of these responses would improve the courts’ response to domestic violence cases and the reputation of the courts. Most importantly it would make it easier for courts to protect children.
The New York Court System had another idea. Refuse to enforce ethical rules regarding zealous representation and conflict of interest. Protect abusive judges from any criticism of their biased decisions that place children in jeopardy. Use lawyer disciplinary procedures to attack the rare lawyer who understands domestic violence and zealously represents protective moms as ethically required. I know this because I am that attorney and the New York Appellate Division just gave up their last chance to correct their errors or even discuss the merits of the cases for the first time. I cannot ever practice law again because I would have to promise to act unethically. I will continue to speak out against these practices because the safety of children is being compromised. It is tempting to speak about the individual judges and lawyers who mistreated me and so many others, but this is not about individuals. This is a systemic problem and we need a systemic solution.
The Notorious Shockome Case
In many ways the Shockome case was a typical kind of custody case in a broken system that is described in the Saunders’ report as cases with harmful outcomes. The judge, law guardian and evaluator did not have the necessary training to recognize the father’s abuse, but had a false sense of confidence in their abilities and substantial bias against the mother. This led to the all too common outcome of custody to an abuser and supervised visitation for a safe, protective mother.
The Shockome case also had some major differences which is why it is so often used to illustrate improper court practices so common in domestic violence cases. The mother’s parenting ability was unusually excellent so that even the judge and law guardian who were hostile to the mother acknowledged it. She received the mother of the year award in Dutchess County because so many other parents said they learned to improve their parenting from watching Ms. Shockome interact with the children. There was an unusually strong and clear record that made it easy for an objective observer to recognize the mistakes and made it impossible for the appellate court to discuss the merits without reversing the decision. Newsweek Magazine selected the Shockome case to illustrate the problem of abusers using PAS to obtain custody because the record was so strong. The reporter reviewed thousands of pages of documents and interviewed parties and attorneys on both sides. The trial judge had an unusual level of sense of entitlement and intolerance for any criticism.
This should have been an easy case to resolve with the mother being an outstanding parent and the father having limited involvement and a long history of abuse. The father used a series of abuser tactics to manipulate the court. One of his common practices was to tape phone calls with the mother and children. He would often make a series of harassing calls and then tape a call in which he acts appropriately while the mother was upset from his previous calls. His calls to the children gave him an opportunity to interact with them, but he spent most of the time asking about their mother and demanding she speak with him. He often called at different times than were scheduled and if he was not able to speak with the children treated it as the mother interfering with the relationship. The mother was later diagnosed with PTSD and suffered panic attacks triggered by his abusive phone calls. Nevertheless the judge continued to act as if her response to the phone calls proved she was interfering with his relationship.
The trial judge would later comment that one of the other custody judges in Poughkeepsie was a member of the “fathers’ rights” group but he was more “neutral” and spoke with both “fathers’ rights’ and domestic violence groups. This was an unusually clear example of a judge creating a false equivalency with domestic violence organizations supporting laws and policies designed to promote practices to end domestic violence and the abuser groups seeking to undermine laws that required payment of child support and penalizing domestic violence. The judge strongly supported abuser rights approaches to treat both parents equally (regardless of past parenting) and encourage joint custody.
The judge probably thought he was benefitting the parties and children by pressuring the parties to accept joint custody. There is good research that shared parenting works poorly for children under the best of circumstances. There is some outdated research that would support shared parenting under the best of circumstances which would include parents able to cooperate, both wanting to parent together and living nearby. In this case the parents were clearly hostile to each other and the mother was afraid of the father. These were exactly the circumstances that the law and research say are totally inappropriate for joint custody. Nevertheless the judge pressured the parties to accept joint custody and the mother’s attorney joined in this pressure despite clear safety issues. The mother agreed under tremendous pressure and the transcript showed that she complained about the pressure on the record and still the court demanded joint custody. She agreed on the record under threat of losing all custody. This is exactly the common practices that ought to discourage legislatures from permitting shared parenting because it is so often abused even with exceptions in the law that shared parenting should not be considered in domestic violence cases or when the parents cannot cooperate. The judge threatened the parties that if the arrangement did not work he would take all custody away from the parent that caused it to fail.
The Second Incarnation of the Shockome Case
Many courts and legislatures promote shared parenting because they think it saves court time and resources. Research, however demonstrates that it leads to much more post custody litigation. This is particularly true in domestic violence cases where the abuser would be unlikely to gain custody initially because the mother has provided most of the child care. Once the abuser received shared parenting he has equal rights to the children so can then cause incidents and problems as an excuse to seek sole custody. In the Shockome case the father continued to harass the mother with phone calls and otherwise and she eventually sought a protective order.
The father would later admit that he would call the mother 15-20 times in a day and as late as 1 AM when he knew the mother and children would be sleeping. In New York this constitutes the crime of harassment and would entitle the victim to an order of protection. The mother did not have an attorney at the time so prepared her own petition which included past incidents as well as his more recent abuse. Another judge heard the initial petition and granted the mother and children protective orders and limited the father to visitation the mother would agree upon. In practice, although she had complete control she allowed him daytime visits with the children.
The gender bias committee in New York had found that one of the common examples of gender bias involved courts blaming victims for the actions of their abusers which is exactly what the trial judge did. He was upset that the protective order interfered with the joint custody arrangement and blamed the mother for seeking protection for her and the children instead of blaming the father for his illegal actions that necessitated the protections. The judge quickly moved up the hearing on the protective order so that the mother could not obtain representation.
When the mother first described to me the judge’s behavior at the hearing, I thought she was exaggerating even though she had always been reliable. When we obtained the transcript of this hearing it confirmed everything the mother said and demonstrated her honesty. The father retaliated in response to the family offense petition by seeking sole custody. The judge started the hearing by allowing the father’s attorney to give their version of events. The mother was never permitted to give her side of the story. In all my years as an attorney I had never seen even the most biased judges listen only to one side of the case. When the mother asked when it would be her turn to respond she was threatened with contempt and jail. Every time she tried to speak she was talked over, yelled at or threatened. By the end of the hearing, without ever hearing what the mother had to say, the judge had lost any semblance of objectivity and said he was inclined to give the father custody. From at least this point on the judge was never open to anything anyone on the mother’s side had to say. We referred to the transcript as the “smoking gun” because it demonstrated the extreme bias of the judge and violated the mother’s due process and equal protection rights. The judge immediately modified the order to take away the protections that had been given to the mother in response to the father’s abuse and actually made it a mutual order. This was illegal as judges were not permitted to create mutual orders of protection when only one party had filed a family offense petition.
The mother retained another attorney who undermined her case. He agreed to a new evaluation where the judge said he would only rely on the report if it was unfavorable to the mother. The report included a statement that the mother was a strong and articulate woman so could not possibly need a domestic violence advocate. This ignorant statement demonstrated the evaluator was unqualified to work on domestic violence cases, but the judge who prided himself on being a domestic violence expert treated the report as if it were credible. The evaluator recommended that the father be given custody and the judge took it a step further and limited the mother to supervised visitation although this was not recommended by the evaluator.
Under New York law, it was illegal for a judge to change custody under these circumstances without an evidentiary hearing. I repeatedly pointed out that this decision was illegal and it later became one of the grounds in the retaliatory complaint against me by the judge. The decision was upheld by the appellate division. Presumably that would mean that my position was so frivolous and unreasonable that it merited disciplinary action. The judge claimed that because he had heard some testimony in the earlier action so my claim he took action without an evidentiary hearing on the new issues was somehow unethical. The New York Court of Appeals later made a ruling that confirmed my interpretation of the law was correct. Presumably based on the decision in Goldstein the entire Court of Appeals acted unethically. This would be one of the many grounds in my motion asking the appellate division to correct their errors and reverse their decision. Even the Court of Appeals was not persuasive to them and they denied my motion without any discussion.
My Entry into the Shockome Case
Ms. Shockome deliberately sought an attorney from outside the Dutchess County area because she was concerned that the local attorneys were unwilling to present a strong case that would challenge the trial judge who seemed to have already made up his mind. This was important because any issue that was not raised could not be used for an appeal and it seemed likely only the appellate division could save her children.
The local domestic violence movement was deeply concerned that the courts were routinely supporting abusive fathers and punishing safe protective mothers. The abuser rights groups seemed to have tremendous influence in the county and many of the judges, lawyers and evaluators supported their positions. Ms. Shockome was viewed as a good mother with a strong case and the local advocates provided strong support sending at least a dozen observers for each court appearance. Their extraordinary involvement and stories they shared made it clear to me that the county suffered from a strong bias against battered mothers.
My initial appearance for a preliminary conference confirmed the extreme bias and hostility the mother was facing. The law guardian was a strong “fathers’ rights” supporter who strongly supported the father throughout the case. The only time he communicated with our side was to criticize or threaten the mother. When I asked him the basis for giving the father custody and mother supervised visitation he told me it was based on parental alienation syndrome.
When we entered the court room the judge immediately ordered a conference with just attorneys. The first thing he told us was that he would not be intimidated by the women in the back of the court meaning the domestic violence advocates. He was obviously very defensive about their presence. Later in the case he yelled at them and threatened them with jail after one of the advocates signed an affidavit in support of the mother.
I introduced myself to the judge as we had never met before and told him a little about my extensive domestic violence background. He couldn’t wait to tell me about his domestic violence credentials and he considered himself an expert on the subject. I discussed the research that demonstrated the arrangement he created of limiting the mother to supervised visitation was harmful to the children and that I would make a motion to modify it immediately in the best interests of the children. He indicated he would not change the order at that time but hoped to do so in the future. I pointed out that case law in New York did not permit the use of PAS because there was no scientific basis for it. He claimed that he did not use parental alienation syndrome but just parental alienation. I pointed out that the extreme remedy he created and lack of any evidence that the mother’s actions caused the children to dislike the father confirmed that PAS was used no matter what it was called. The judge also said that the mother’s prior attorneys indicated that she is not credible. If they said that it would have been unethical and it appeared they would have been saying what they thought the judge wanted to hear.
My client had told me that the judge regularly called these conferences and they always resulted in decisions against her. When we returned to the court room I immediately made a record of what had been discussed and my motion to at least restore normal visitation. The judge rarely called for a private conference thereafter.
It was obvious that the judge was hostile towards my client and was personally invested in justifying the extreme actions he had taken without an evidentiary hearing. This was the kind of harmful outcome the Saunders’ study would later find to always be against the best interests of children. We decided we needed to make a motion to recuse the biased judge, but were also concerned that the other judges in Dutchess County were similarly hostile to protective mothers and were likely to try to support the actions of their colleague. Accordingly, the motion also sought to move the case out of Dutchess County so that the mother could obtain fair consideration of the case. In the course of my affirmation in support of the motion I provided substantial research and information that demonstrated the problems in the approach of the trial judge and many cases in Dutchess. I offered to help train court professionals about domestic violence so that these harmful practices could be avoided in the future.
The judge denied our motion, but promised to consider our concerns and make sure the mother received a fair trial. It was only later I learned how angry he was about the motion when he included it in his retaliatory complaint against me. In responding, I pointed out many valid reasons for the motion including the extreme action taken by the court, unfair treatment of the mother when she was not permitted to give her side, potential need for the judge to testify in the mother’s dispute with her prior attorney (the judge’s statement that her attorney agreed she was not credible), the illegal use of PAS, his hostility to the advocates in the court and the long history of hostile decisions in Dutchess against protective mothers. Clearly any of these would justify my agreement to make this motion and it would certainly never be a justification for disciplinary action. As part of my testimony I also mentioned that when it became known I would be representing Ms. Shockome, a few other women told me about their mistreatment by the Dutchess courts and asked me to take their cases. The grievance committee claimed that I should not use this information without reviewing the entire record of their cases even though I did not plan to represent them and this became the “justification” for the later charges against me.
Here is the charge against me that was supported by the Appellate Division. “The respondent submitted to the court an Order to Show Cause dated February 10, 2003, seeking, inter alia, to have the court recuse itself, in which he stated: “Clearly something is wrong with the system in Dutchess. Already I have seen both the court and the evaluators relied upon by the court, to provide decisions based on popular misconceptions of domestic violence instead of the expertise that is needed ․ That there is no reason that Dutchess County has to remain on the side of the abusers.” The respondent offered to help fix the system “so we don't put other victims of domestic violence at such a disadvantage.”
In the course of the proceedings in my case, I warned the court that penalizing me for my zealous representation of a protective mother and raising concerns about the failure of the court to respond properly to domestic violence complaints would place the lives of battered women in danger. My reasoning was that the retaliation would have a chilling effect on the ability of battered women to obtain strong representation which was already a problem. This would result in battered women staying with their abusers and some would not survive this decision. I would have presented other experts to confirm this risk, but was not permitted to submit this evidence. They obviously thought I was exaggerating or did not know what I was talking about, but unfortunately my concerns proved all too real.
In a period of less than one year the small county of Dutchess with a population of 300,000 suffered a series of domestic violence homicides that resulted in nine deaths including five battered women and a brave police officer who was shot by an abusive father after rescuing a young child whose mother had been murdered by the father. As a result of these tragedies, the Dutchess County Legislature asked its Citizen’s Advisory Committee on Domestic Violence which consists of professionals in the community from law enforcement, domestic violence and others responding to domestic violence to investigate the county’s response to domestic violence and for recommendations to reform the system. I am sure the court would like to believe the series of murders were the exception or in some way unrelated to their response to domestic violence cases, but the committee findings show otherwise. The committee released an extensive report that considered a large range of issues and their findings regarding the courts confirmed everything I was punished for saying.
The committee report included the following, “Some victims do not ever enter the court system or choose, after experiences with the court system, not to use it. Some have found that they do not trust the system and feel that rather than protecting them from their batterer the system will actually cause retaliation and greater harm by their batterer. In other cases, victims have felt further victimized by the system due to the lack of understanding of domestic violence. Other victims feel lost or confused by the system and in cases such as with family court, they do not feel safe having to appear several times before a judge with their batterer in the same room.”
Later in their report they continued:
“There is a growing concern expressed that batterers have become more manipulative about using the court system to further abuse their partners. They seek and sometimes are awarded custody over a non-offending parent by using debunked theories such as Parental Alienation Syndrome.”
It is hard to imagine a more clear and compelling finding that the grievance committee and appellate division were tragically wrong in their findings against me. This would become a major part of my motion asking them to correct their errors based on new events and research. They never addressed these issues because the only way to do so would be to admit their mistakes.
At the first court appearance I was shocked to hear the judge repeatedly say that he did not know this was a domestic violence case. The father had been arrested for domestic violence, the mother sought protective orders and there was substantial evidence about the father’s abuse. Clearly he was minimizing the father’s abuse so I started referring to the father as an abuser in order to emphasize that it was a domestic violence case. Although that is a proper word in the English language to describe the coercive and controlling tactics by the father, the judge ordered me to stop using this term until it could be proven. This seemed like a violation of free speech but I complied with the judge’s order. After we presented substantial evidence of the father’s abuse, I resumed using this term in compliance with the judge’s order. He again objected to the term and so in compliance I started referring to the “alleged” abuser. He never complained about this term which obviously does not prejudge the outcome and is often used in court before findings are made. Only years later when he made his retaliatory complaint against me did he inform me he objected to the common term alleged. The appellate division supported him without discussing his failure to tell me there was an objection to this formulation. Interestingly when the law guardian and father’s attorney continually made personal attacks against the mother such as calling her a liar and an ugly woman the judge never objected. It is this kind of discrepancy that demonstrates the different standard used against women by professionals engaged in gender bias.
The Custody Trial
I have rarely if ever seen a contested trial in which the evidence so overwhelmingly favored one side. The only witness for the father was the father and he made many admissions that would have been devastating with a neutral judge. He admitted that he regularly called the mother 15-20 times a day as late as 1 AM when he knew she and the children were sleeping. He unwittingly explained his motivation for seeking custody by saying he brought the mother here from Russia so she had no right to leave. He also said she would never get away from him. Throughout the trial the main basis for alienation claims against the mother was that she told the children to eat healthy food, dress appropriately for the weather and avoid adult oriented television shows. This is the kind of advice any good parent would give their children but it was treated as if it was alienation because she complained the father did these things. The father denied this throughout the trial and the evaluator testified she thought it was false or exaggerated. During his rebuttal testimony the father admitted the children often ran around outside in cold weather without jackets. He admitted this after learning a witness had seen his children running around a parking lot by a convenience store without jackets on the coldest day of the year.
In contrast, the mother had 11 witnesses including five expert witnesses. The witnesses included three neutral professionals. This was the son’s therapist, the couple’s counselor and the school nurse. The nurse described the impact of the judge’s decision on the parties’ daughter. When she was living with the mother she would skip around school, holding hands with another girl, laughing and giggling. When she was taken from her mother and forced to live with her father she wondered school alone, head down and depressed. She often went to the nurse complaining of stomach or other illnesses or injuries until her father forbid her to see the nurse.
The nurse had testified during the earlier trial and was problematic for the court because she was a neutral professional and her testimony undermined the judge’s decision to remove the children from their primary attachment figure. During her testimony the judge asked her if she testified the first time that the mother had done the same thing she accused the father of doing. This referenced behavior that two neutral experts believed constituted sexual abuse and at the very least involved a boundary violation. The nurse said she did not remember making such a statement. Nevertheless, in his decision the judge made a major point of claiming the nurse said the mother admitted doing the same thing as the father. When we finally obtained the transcript from her earlier testimony it confirmed the nurse never said that. This false claim by the judge might suggest he was lying, but I believe he so wanted to believe the father’s side that he convinced himself she had said this based on confirmation bias.
As the trial continued, the judge appeared to grow more concerned that all of the expert testimony confirmed the father abused the mother and children and the court’s change of custody was harming the children. Accordingly he called one of the now rare conferences to discuss whether we needed a new evaluation in the middle of the trial. I was happy to have the monopoly on expert testimony and aware that few evaluators have the domestic violence expertise necessary to understand these cases. This was later confirmed in the Saunders’ report. My position was that we would only agree to an evaluation if the evaluator had expertise in domestic violence. The judge said he wanted someone who knew a little bit about domestic violence and child abuse, but not too much because such experts always find abuse. He later repeated this statement on the record but it somehow did not appear in the final transcripts. I did reference his statement in several letters and motions and no one ever denied he said this. The judge then appointed an evaluator over my objections.
The resume of the evaluator who was appointed gave us some hope because it said she had worked with the Women’s Justice Center at Pace Law School. This is a well respected organization with a strong record on domestic violence. When the evaluator demonstrated a lack of expertise I contacted the Women’s Justice Center and learned her involvement with them was actually very limited. They wrote to the judge to make sure their reputation was not harmed by the misrepresentation and to avoid having the court be misled. The judge was furious, not with the evaluator for the misrepresentation but with me for making the Center aware of the case. I was able to confirm their concerns in my cross-examination of the evaluator, but the judge did not want her discredited.
The court asked for the evaluator’s assistance on two key issues, the mother’s complaints about domestic violence and father’s claims of alienation. In her report the evaluator said that she could not determine the extent of the father’s abuse to a CERTAINTY and then said the mother PROBABLY made more negative statements than the father. She repeated her use of the certainty standard for the mother and probability for the father several times during cross-examination and seemed not to understand the fundamental unfairness of using different standards. In fact the NY court-sponsored Committee on Women in the Courts had specifically mentioned the use of higher standards against women as a common example of gender bias. This is usually recognized by seeing courts treat the parties differently under similar circumstances. We saw this for instance when the judge objected to me referring to the father as an abuser but accepted the mother being called a liar and ugly woman. It is exceedingly rare for the different standards to be stated explicitly in an evaluation report and the transcript of the evaluator’s testimony.
The trial judge used the evaluator’s recommendation despite the fact it was based on the use of the certainty standard against the mother and normal probability standard for the father. This is a clear violation of equal protection and due process that any first year law student would recognize. The only possible basis to refuse to reverse a decision based on this violation would be if the mistake did not affect the outcome. During my cross-examination, however, the evaluator admitted the father probably abused the mother physically, verbally and emotionally throughout the marriage, the children probably witnessed his abuse and the mother’s PTSD was probably caused by the father’s abuse. The evaluator also testified that there was no alienation and the mother always provided good care of the children.
Significantly none of this critical information was included in the evaluator’s report. The evaluator was inexperienced having only performed a few evaluations previously. She was trying to develop an evaluation practice. She testified that she was influenced by her belief that the judge and law guardian wanted the father to have custody. Nevertheless, the evaluator was treated as if she was neutral.
The use of different standards of proof was central to the appeal in the custody case and my defense in the retaliation against me. One of the complaints was that I called the judge biased and surely his acceptance of the different standards even without all his other biased behavior was enough to justify my statement. In the course of the many motions and appeals in Shockome and Goldstein at least 15-20 different judges reviewed the case. Not one of them even discussed the violation of using a certainty standard against the mother. Every judge and every lawyer involved in the case knows that such a fundamental violation requires a reversal. This creates the appearance that some kind of fix was in. I believe it is more likely that this was another example of confirmation bias. The involvement of a colleague and mistakes by the appellate division made the judges reluctant to correct these errors. These judges would never make such an obvious mistake in any other kind of case and could only occur in a broken system in which they have gotten used to questionable practices in domestic violence custody cases and extreme deference to trial judges. The findings in the Saunders’ report demonstrate that these practices are extremely harmful to children. The failure of any of the judges to correct the obvious errors demonstrates why an outside investigation is needed.
The court’s decision to obtain an evaluation in the middle of the trial meant that our expert witnesses had testified by the time we had the report. The judge announced that he would only permit a psychologist to rebut the psychologist’s evaluation. This was unfair to begin with and this was further demonstrated by the Saunders’ report finding that social workers provide recommendations that work better for children than those provided by psychologists and psychiatrists. The finding might seem to go against popular beliefs but is explained because social workers are more likely to take a holistic approach which is particularly important in domestic violence cases while psychologists and psychiatrists are more likely to rely on psychological tests that were not made for the populations seen in family court and provide little information regarding domestic violence or parenting. We had the opportunity to benefit from expert testimony from the executive director of the NY State Coalition Against Domestic Violence. It is hard to imagine a better source of expertise about the domestic violence issues but the judge refused to consider her because she was “only” a social worker. The judge immediately agreed that we could recall Dr. Mo Therese Hannah who is one of the leading national experts regarding domestic violence and had already testified as an expert in the case. Despite repeated promises, the judge suddenly refused to allow her testimony so that we had no opportunity to rebut her report. Clearly the judge did not want a record that included the testimony exposing the numerous mistakes of the inexperienced evaluator.
Early in the evaluator’s testimony, I asked if she had read any books or articles in preparation for the evaluation. I learned I had struck gold when she said she read The Batterer as Parent which was the leading authority about domestic violence and custody. Unfortunately she had read it only after she had written her report. Based on her testimony and recommendations it was clear she did not understand the book because following its research and information would have led to the opposite result.
I started by asking the evaluator if she read the book because the book and the authors are considered authoritative. She agreed to this because otherwise it would not have made sense for her to choose to read the book. This provided the foundation to discuss the wonderful content in the book. She later tried to backtrack and say they thought they were authorities. The judge and law guardian tried to use this to prevent my discussion of the book, but she had already admitted it was authoritative so they could not prevent these questions.
I continually discussed passages in the book that made recommendations that were the opposite of the approach by the evaluator and judge in the Shockome case. In some cases she would say she agreed with these experts, but had no answer for why she did not apply it to the case. In other cases she disagreed with their findings which meant an inexperienced evaluator was disagreeing with the leading experts.
I continued to force the evaluator to make numerous admissions that undermined her recommendations and the result favored by the judge. He continually interrupted my cross-examination about the book to say he did not find the information useful. Under ordinary circumstances this might have caused me to move to other topics. Even if the material was important it would not benefit the case if the judge did not want to hear it. In this case there was almost no chance this judge could be persuaded to act in the best interests of the children so I continued to ask questions based on the research in the book in order to make a record for appeal. As I made more progress the judge decided to limit the amount of time I could cross-examine the evaluator. Even with limited time remaining he continually interrupted my questions to harass me about using the research in this book. Just as I was trying to make a record to support an appeal, the judge wanted the record to support the decision he had already decided to make. The value of The Batterer as Parent was again confirmed by the frequency it was cited in the Saunder’s study and in our book, Domestic Violence, Abuse and Child Custody. In other words the leading experts all recognized its immense value but the judge viewed the information as not useful. Even worse, he was not open to information and research that undermined his existing beliefs.
A year after the mother sought a protective order, we found ourselves in the middle of a trial with no end in sight. The judge would give us a few dates for trial and then when we needed more wait months for more dates. This was a huge disadvantage because while the case was pending the father had control of the children and the mother was without needed protections. When you consider that family offense petitions are emergency issues that overwhelmingly impact women, the ability to create an unreasonable delay created a fundamental equal protection and due process violation. We decided to make a motion to demand a resolution of the family offense so that the mother could either be protected or appeal to another court. We included an affidavit in our motion from one of the advocates who attended the court sessions to support Ms. Shockome.
The judge thought this somehow violated his gag order (discussed below) that said the case could not be discussed outside the court. When he saw the affidavit, the judge yelled and screamed at the advocates and threatened them with contempt and jail. He kept saying he ordered that they were not to speak with anyone and would slam the bench hard when he said anyone.
It happened that our next witness was the mother’s domestic violence advocate. I took advantage of the opportunity to make a record of the role of an advocate. She explained that being in court with an abusive partner is an emotional situation and victims often do not hear all that is said. Accordingly it is vital that the advocate be able to discuss what happened in the court with the client. After her testimony the judge said he did not mean to say that the advocates could not speak with the client (which is exactly what he had said). His diatribe against the advocates was missing from the transcript when it became available. It demonstrated the hostility he had towards domestic violence advocates.
Illegal Gag Order
The judge’s objection to publicity about the case was based on a fundamental misconception. He believed that judges needed to make the best decision possible based on the evidence and should not be influenced by popular beliefs of the public. This much was correct. He failed to consider that judges not only need to avoid unethical behavior such as conflicts of interest and bias, but also the Appearance of such unethical behavior. This is significant because parties, lawyers or the public usually cannot know what is in a judge’s heart but can recognize how their actions appear. In other words publicity can be valuable in holding up a mirror for the judge to see what his actions look like. This is especially important regarding an issue like gender bias where it is so easy to engage in biased practices without realizing you are doing so.
The judge seemed oblivious to the suffering he had caused the children by denying them any meaningful relationship with the mother and forcing them to live with their abusive father. The mother, of course, was extremely pained by the suffering of her children. We decided to seek publicity in hopes it would demonstrate the improper appearance the existing court approaches were causing. One day we met on the court house steps with the producer of a radio show. He took our picture and made arrangements for us to appear on his show. The judge passed by while he was taking our picture. When we started court that morning the judge announced a temporary gag order and refused to listen to any arguments concerning the propriety of this First Amendment Violation. The parties were forbidden from using the last name of the parties or allowing pictures of the parties or children. We complied with the gag order by referring to my client as Genia “Victim.” The father’s attorney was interviewed for the same program and used the name Shockome in violation of the judge’s order.
The next time we were in court the judge and other attorneys were yelling and screaming at me claiming I had violated the order because the web-site for the program contained the picture the producer had taken of us before the gag order. Somehow they thought it was my web-site. They calmed down a little when I pointed out it belonged to the program and I had no control over it. When I mentioned that the father’s attorney had used the Shockome name, he did not care and did not even tell him to be more careful. In other words, the judge was only concerned with enforcing the gag order against the party that would be critical of his actions.
We always complied with the gag order despite its questionable legality. When we appeared on a television program, the mother appeared in the shadows and we again did not use her last name. The order expired when the final decision was made. This decision did not provide for a gag order but rather said the parties should avoid anything that would be against the best interests of the children. Publicity was in the children’s best interests. If they learned of the publicity they would know their mother was still trying to protect them and the information might cause legislative reform or other changes that could protect them. Although the only person who violated the gag order was the father’s attorney, the judge claimed I violated the gag order by using the Shockome name after the gag order had expired. Ironically, the judge had released a transcript of the case to try to justify his actions so if he interpreted his final decision as restoring the gag order, he had violated it.
The custody decision was completely predictable from a judge who had decided what he wanted to do during the appearance that that produced the smoking gun transcript. He continued the extreme result of custody with the alleged abuser and supervised visitation for the protective mother who is the primary attachment figure for the children. This is the result the Saunders’ study would later confirm is always harmful to the children. The judge, who later filed charges against me for criticizing him, included personal attacks against the mother and myself. With one bizarre exception he never addressed any of the legal and factual issues raised in the case or compared the benefits he thought he was creating with the unquestionable harms he was imposing.
The only issue that he attempted to respond to was the overwhelming evidence that the father’s abuse had caused the mother to suffer PTSD. The mother’s medical doctor and therapist had diagnosed her with PTSD and this was supported by testimony from the mother’s therapist and our other experts. They explained that there was no other possible cause for her PTSD. Even the judge’s own evaluator confirmed the father’s abuse probably caused her PTSD.
This was a critical issue because even the judge said that if the father was shown to have abused the mother he would have to give her custody. The mother experienced panic attacks that were triggered by her abuser’s phone calls. The mother suffered a panic attack when she unexpectedly saw her abuser as she went into a restaurant with her children after an evaluation appointment. The evaluator had carelessly scheduled the father’s appointment right after the mother’s. The supervisor, who strongly supported the court’s position and was hostile to the mother, confirmed the panic attack triggered by unexpectedly seeing her abuser.
All of the expert witnesses confirmed the difference between panic attacks and PTSD. It was possible to suffer panic attacks from benign causes such as stage fright and a victim could be more or less susceptible. PTSD, however could only be caused by an extreme traumatic event (i. e. terrorist attack, rape, kidnapping, hurricane, earthquake etc) or a series of traumatic events such as occurs in domestic violence cases. The mother was diagnosed with the latter form of PTSD. This was important because the father and the court sought to minimize the seriousness of his abuse, but PTSD could only be caused from severe domestic violence.
The judge felt compelled to respond to this issue and concocted an explanation unsupported by any of the experts in the case that would have been physically and scientifically impossible. It appears that he misunderstood the difference between causes of panic attacks and PTSD. The experts were clear about this so I do not know whether his mistake was intentional or not. He claimed that the mother badly wanted custody and when he (the judge) warned her that she could lose custody if she did not stop complaining about the father, this caused her PTSD.
If he was saying that his benign statements caused her PTSD, this was impossible because only severe traumatic events could cause PTSD. Accordingly, for the judge’s actions to cause the mother’s PTSD, the judge would have had to severely abuse and mistreat the mother. I discussed this in some of my court papers saying that the judge was claiming that he caused the mother’s PTSD. At the next court appearance the judge disagreed with my interpretation. I checked with Dr. Hannah who confirmed my interpretation was the only one possible. I also always said that in fact the judge did not cause the mother’s PTSD although he certainly retraumatized her. As all the experts agreed it was the father’s abuse that caused the mother’s PTSD.
The judge would later treat my accurate interpretation of his theory as if it were a lie. He did this despite the fact that only my explanation is supported by the facts and science on this issue. The grievance committee and appellate court supported the judge without any explanation and refused to permit evidence by experts that would confirm everything I was saying.
Leaving the Case for Medical Reasons
The remainder of the divorce case had been put on hold to resolve the custody issue so once that decision was made, the court proceeded to the divorce issues. I received a call to go to Poughkeepsie on short notice on a non-emergency issue. It was the same day I needed to be in court in the Bronx in the afternoon. After the call I found that I had an unusual rapid heartbeat and did not feel well. I had suffered a heart attack several years earlier. I requested an adjournment based on my heart issue, but the judge refused. I suffered similar symptoms when going to court and made an oral motion to withdraw from the case based on my health. The judge demanded affidavits from my doctor and therapist. At my last appearance in front of the trial judge he looked at me and said I looked ok so could not have a legitimate health issue. He was surprised when he received affidavits from my medical doctor and therapist saying it was unsafe and unhealthy for me to continue in the case because the judge repeatedly mistreated and harassed me and my client and refused to accommodate my health needs. The judge did not want to deal with findings from medical professionals that his improper behavior had contributed to my health problems. He waited a few months during which I did not participate and eventually permitted my withdrawal on other grounds. Shortly thereafter I suffered a heart attack that forced me to postpone oral arguments on the custody appeal. The affidavits of my doctor and therapist became part of the record in the case against me, but the appellate court never dealt with this inconvenient evidence of the mistreatment by the trial judge.
The Shockome Case Continues
Although the law required the court to give a party time to find a new attorney when the prior attorney withdraws, the trial judge continued the case without giving her this opportunity. The court acted in a punitive manner to try to bankrupt her so that she would not have funds to challenge the mistreatment she was receiving. The father made a motion for permission to move with the children to Texas where they were likely never to see their mother again. Ms. Shockome was forced to respond without representation and went to court without any advocates to observe the proceedings.
As the court continued to make statements she disagreed with she would say “objection.” She did this to preserve her right to appeal as only the appellate court held any promise of protecting her children. When I was representing her, I would say objection and eventually the judge would say I had my exception and then I could be quiet as he continued. This was even more important for the judge to do for a pro se litigant. Instead he repeatedly yelled at her and told her to stop interfering with the proceedings. He threatened to hold her in contempt and send her to jail. She continued to say “objection” because she was afraid she would lose her ability to appeal. He responded by holding her in contempt and sending her to jail for almost a month even though she was seven months pregnant.
I believe this is an example where the practice of deferring to judges and protecting them from the consequences of their improper behavior made it harder for him to realize how wrong this was. An online petition drew over a thousand signatures demanding the mother be released. Interestingly many other women victimized by this same judge came forward after hearing about his mistreatment of Ms. Shockome. One family court judge in New Jersey said a mother would have to pull a knife on him to convince him to take such an extreme decision. The judge had lost all sense of objectivity and had such hatred towards the mother that he failed to realize the harm he was doing not only to his own reputation, but also the court system’s. He seemed to believe the problem was in people criticizing him rather than the wrongful actions he had taken.
I wrote an article on the internet that described the judge’s mistreatment of the mother and asking the state legislature to pass what I called “Genia’s Law” to make sure other mothers would not be similarly victimized. I expressed my strong opinions and provided facts and research to support them. This is at the heart of the purpose of the First Amendment, but it became the chief basis of a retaliatory complaint against me by the abusive judge and uncritically supported by the grievance committee and then his colleagues on the Appellate Division.
Ms Shockome asked me to make a motion to get her released and I pursued this on a pro bono basis. I filed an Order to Show Cause requesting her immediate release. The judge hearing the case initially indicated he was inclined to grant the relief. This would be the normal response because if they granted relief and later decided that was a mistake they could always send her back to jail, but if they kept her in jail and it turned out that was a mistake they would cause irreparable harm. The hearing was then delayed so that then Attorney General Eliot Spitzer could intervene. He was under no legal obligation to intervene but decided to support the abusive and sexist judge. His involvement led the judge to deny our motion and keep the mother in jail. It was only much later we learned of Spitzer’s sexist beliefs when he was involved with hiring prostituted women. It is likely that Spitzer was personally aware of the circumstances because national media programs were considering a story about Ms. Shockome and contacted Spitzer’s office.
The appeal in the custody case included several important issues including the use of the certainty standard, use of PAS despite case law that said it is invalid, refusal to permit a rebuttal witness to the evaluator, the erasure of a substantial part of the transcript that included most of the mother’s testimony, the overwhelming evidence in support of the mother’s position and the extreme nature of the result that was clearly harmful to the children.
The appellate court never discussed these or any other issues raised by the briefs. Instead they issued a one paragraph decision deferring to the trial judge and including only one factual statement. The statement said that the trial court was correct in minimizing the testimony of the mother’s expert witnesses because none of them had spoken to the children or the father. This statement was a repetition of something said by the trial judge in his opinion and was unquestionably wrong. One of our experts was the son’s therapist who obviously spoke with the children. The father submitted a transcript of his phone conversations with the therapist as part of his evidence. Another was the couple’s counselor who obviously met with both parents and they both discussed their meetings with her during their testimony. I do not know what caused them to get their information so completely wrong, but it is hard to imagine how they could make this obvious mistake if they had read the briefs and transcripts. It appears that in their zeal to support a colleague they never gave the mother fair consideration.
Complaints to the Grievance Committee
My first contact with the Grievance Committee involved a totally unrelated case. I did a lot of work on behalf of poor tenants for a couple of community organizations, particular CLUSTER. I represented a group of tenants that had been denied fundamental services over an extended period of time. We succeeded in winning one of the biggest settlements ever for the tenants in the Yonkers Landlord-Tenant Court. The landlord was angry at being held accountable and retaliated by making a complaint against me with the Grievance Committee.
The attorney for the committee spent enormous time and resources to obtain all of the records and required several days of depositions in order to understand the situation. There was never any claim that I took any money not belonging to me, comingled money, was missing any money, there was any delay in tenants or landlords receiving money once a stipulation or order was entered, had a check bounce or any other issue that would indicate a problem. At the end of the extensive investigation when the committee had every document and fully understood the case their attorney told me that they knew I had done nothing dishonest.
The arrangement we had was that tenants would deposit money with the Cluster office. When I came to the office I would sign a receipt and pick up the money orders. The next time I would get to the bank I would deposit it in the Cluster account that held the tenant’s money. When I knew I would be writing checks I would then transfer funds from the Cluster account to the master account or sometimes deposit directly to the master account. After the Shockome judge complained about me, the grievance committee put together a group of charges in order to support the judge and prejudice my hearing with claims I acted dishonestly. All of the charges against me in Shockome and the escrow issues were based on taking things out of context. So at any given time parts of the tenant money could be in the Cluster office, my office, the Cluster account or the master account. The grievance committee looked at each account separately at a given time to create the illusion that money was missing. In any other case they would have been asked how they could admit I did nothing dishonest and then claim otherwise despite no additional information. I was never allowed to investigate what kind of pressure was applied to change what they said but clearly it had to do with the involvement of a powerful judge. Neither the grievance committee nor the court ever discussed the evidence or explained their admission except that the lawyer said it was a private statement. It may have been a private statement but it was also a true statement without the bias caused by the judge’s involvement.
One of the common practices of abusers is to complain about their victims by taking their actions out of context. I was reminded of this when I saw the judge’s complaint against me. Most of what he did was to take various letters, affirmations and articles I had written that contained substantial research and information and pick out statements critical of him. As he admitted during his testimony, I never cursed him, threatened him or anything inappropriate like that. He just seemed to believe that judges or at least he were not subject to criticism. One of the oddest charges was that while in court as I thought about the harm he was doing to the children my voice cracked and there were tears in my eyes. Somehow he thought this violated some disciplinary rule. This would be the only charge the grievance committee did not support.
The Grievance Hearing
A referee was appointed to get the case ready for trial and then conduct the hearing. The referee acknowledged that he had no expertise about domestic violence. In many ways this was good in that he didn’t have a false sense of confidence in his understanding of domestic violence. The other side was that he did not always understand the relevance of domestic violence information and limited my ability to present this evidence. He did, however try to be fair and act in good faith.
The position of the grievance committee was that I should have had a separate escrow account for each of the dozens of tenants I represented instead of the Cluster account for all tenants. There was little support for this claim and the referee ruled against them. They also intended to use the decision in the Shockome case to establish the facts of the case. This would be the equivalent of res judicata but the problem was that I was not a party in Shockome and had an obligation to follow the decisions of my client as long as they were legal. Accordingly the referee ruled they could not rely on Shockome and we entered into a stipulation to that effect. This should have resulted in the dismissal of many of the charges as the committee made no attempt to provide any evidence for many of the charges other than I made certain statements. There position was that the facts and opinions I expressed were false but there was never any evidence offered to support this proposition. The referee recognized this in his decision, but the appellate division later ignored the stipulation and made rulings against me unsupported by any evidence. This was particularly problematical because it created the appearance of bias or worse.
I could have called dozens of witnesses, particularly on the Shockome issues but the referee severely limited me to just a few witnesses and I had to provide a witness list in advance. My therapist was a domestic violence expert and familiar with the abuse I suffered from the trial judge. She was an approved witness but got sick at the last minute and I could not replace her. Dr. Mo Therese Hannah is a psychologist who had testified as an expert witness in Shockome and is one of the leading experts about domestic violence. On the day she was scheduled to testify there was a severe snowstorm in Albany that prevented her from testifying. I requested to allow her to testify by phone or give me an extension but the referee refused to do so after the grievance committee objected. The only thing I was allowed was a limited stipulation that she agreed with my interpretation of the trial court’s decision about the cause of the mother’s PTSD.
Judge Mary Ann Scattaretico-Naber testified for me under subpoena. She provided an interesting contrast with the trial judge. She had worked closely with me as the court attorney in Yonkers City Court. She observed my involvement in hundreds of cases and had no personal interest in the case. In contrast the trial judge knew me from only one case and had a deep personal interest in the outcome. She testified that I was always cooperative with judges and other attorneys and had a good reputation. She also confirmed there was never any problem regarding my escrow account.
My wife, Dr. Sharon Goldstein had come to court one day to observe the case and testified at the hearing. She said that she noticed the trial judge treated men and women in the court room very differently. When speaking to men he would look them in the eye but did not do so for women. He also questioned women closely but for men the questioning was pro forma.
Phyllis B. Frank, the director of the batterer program where I have taught for many years also testified. Much of the information and perspective I have and shared in my