Part One of a Two Part Article
(Editor’s note: This article was published under a pseudonym, for fear of retribution by the family courts. For Part-II of this article click here – SM)
What a friendly sounding name. A court for families, so open and inviting.
A place where families are welcome and invited, a place for families to bring their troubles and disagreements, where there are people specially trained to help them with their problems, and where issues can be resolved in a fair compromise, so that everyone can be happy.
By its name it would seem offer all these things and more.
And yet, nothing could be better Orwellianly named than this institution; there is nothing friendly about it. It is a snakepit of anguish and despair, impacting millions of people each year.
Although these places look just like traditional courts, and have all the usual trappings you would expect – judges, bailiffs, clerks, witness stands – well, in the world of judicial courts, one of these things is just not like the others.
In fact, it is an open secret among working legal professionals in the field, Family Courts are just not like other courts.
A freakish hybrid stepchild of state judiciaries, these creatures were spawned by the legislative effort at the conjoining of several normal courts, and forged in an unholy pact by legislators to impose state determined resolutions on interpersonal relationships among a family.
These efforts produced the abomination that we call “Family Court” today. (Other proto-family courts with similar jurisdictions have been variously named domestic relations court, divorce court, or even domestic violence courts.)
These statutory courts, ostensibly set up for specialized attention peculiar to familial claims and disputes, were also supposed to subsume the social stigma that defendants had during and after criminal litigation, into a kinder, gentler, criminal-lite type proceeding.
Hidden in the agenda however, and actually driving the legislative conversation, was the subversive statist appeal of side-stepping all the traditional rights and due process guarantees that normally accompany court proceedings, while concurrently enriching their brethren in the law practicing guild.
The wholesale abolition of rights and due process in these courts, was considered a feature, not a bug, in what was to come.
Such was the conceptual inspiration for one of the most intrusive and noxious government institutions in modern times, and the formalized obliteration of personal civil rights in an American court – and apparently to most of modern Western world as well.
Considering all the unprecedented and radical changes morphed into this institution, one hesitates to actually dignify it with the term “court” in the modern jurisprudent sense, as the conduct is more like Napoleonic Inquisitions than American Courts.
As NY Supreme Court Judge Brian Lindsay observed,
“There is no system ever devised by mankind that is guaranteed to rip husband and wife or father, mother and child apart so bitterly than our present Family Court System.”
By re-casting all familial issues into a mutated type of civil court action variously termed “special proceedings”, and by radically recasting the concepts of just what a judicial court is, e.g., its procedures, discretions and evidentiary standards, the state had effectively done away with all the inconvenient and expensive due process and constitutional protections required in every other American court.
While retaining the traditional powers of a judicial court – enforcement, fines and imprisonment – none of the checks and balances against those powers were concomitantly retained. Expedience of process and the legitimization of raw state power was the goal.
In creating these special “People’s Courts” – not-quite-criminal, not-quite-civil – dozens of due process protections were sloughed away leaving a raw, grinning changeling in its place.
Constitutional procedural protections against self-incrimination, right to an attorney, presumptions of innocence, right to jury were done away with.
Inviolable substantive rights to federal parenting guarantees, property and liberty, became optional concerns and subordinate to statutory directives. Legal financial obligations to others persons were created out of whole cloth and determined from the flimsiest allegations.
The rights to financial and medical privacy were extorted away, as was the Constitutional right to free travel.
The very fundamental right to association with your child was abrogated and made conditional.
Even your right to not be forced into involuntary servitude was abolished.
The high standards of proof whenever fundamental Constitutional and human rights are at stake, standards that must pass clear and convincing evidence or reasonable doubt everywhere else, were degenerated to the lowest standards of “some credible evidence” or “a preponderance of evidence” for dispositive determinations.
Hearsay evidence exceptions were expanded and became the norm, permitting all kinds of dubious accusations, outbursts and implausibles to be legitimized as presumptively true, standards of evidence not seen in America since the Salem witch trials.
Relaxed enforcement of perjury laws encouraged even these low standards of proof, to the point where gossip equates to proven fact.
Rights to appeal were conformed into requests for permission to appeal, which then are rarely granted.
Ex parte (one party accusation) applications and orders were streamlined, standards for restraining orders were reduced to lower than probable cause, to almost any cause.
Preemptive orders without evidence or hearings were normalized and made routine – throwing people out of their homes, pre-emptive removal of children from their parents, pre-emptive seizure of legally owned arms, the presumptive shackling of GPS tracking devices to people, ad hoc property seizures, contradictory or ambiguous conditional orders, restraining orders separating family members on virtually no evidence at all.
All without an avenue for meaningful remedy or review to curtail rogue judges outrageous orders.
In another oxymoron pulled from its standard bag of dirty tricks, euphemistically termed “temporary orders” were used like never before, allowing family courts to get away with things that would never reach constitutional muster as final orders.
Temporary orders, which sound like, and are supposed to be, placeholders that would not last for more than a couple weeks; such orders in their original form are supposed to keep the status quo in place while the situation can be assessed and dealt with conclusively.
But in fact such orders, as in the family courts’ rendition, are not temporary at all, nor do they maintain the status quo; such orders usually go on for much, much longer, very often for years. If in place long enough, any order becomes de facto permanent simply by the inertia of being that way for so long.
Dispositive determinations and legal rights that are supposed to be attained only by deliberative due process, effectively become permanent through the abuse of these orders, side-stepping the required hearings, decisions or trial.
(As an example, a “temporary order” placing a quart of milk on a table, so as to maintain the status quo, will similarly not achieve it. After a few days there is nothing temporary about it, it is no longer milk, and the status quo has been lost forever.)
Civil contempt powers were expanded to know no legal bounds, permitting debtor’s prison, capricious fines, “innovative punishments” and indefinite imprisonments, e.g., see H. Beatty Chadwick 14 years in prison on domestic court civil contempt (Philadelphia PA), Manuel Osete 3 years civil contempt (Nogales AZ).
In sum, very little was left to resemble what a judicial court traditionally was, nor was there left any semblance of respect or protection of the guarantees of American Constitutional rights.
As Dr. Steven Baskerville observed:
“Special courts to try special crimes that can only be committed by certain people are a familiar device totalitarian regimes adopted to replace established standards of justice with ideological justice. New courts created during the French Revolution led to the Reign of Terror and were consciously imitated in the Soviet Union. In Hitler’s dreaded Volksgerichte or “people’s courts,” only expediency in terms of National Socialist standards served as a basis for judgment.”
In modern courts such as these, standards of guilt have devolved from “innocent until proven guilty”, to “guilty till proven innocent”, to “guilty even after being proven innocent”.
Compounding this judicial heresy, this abuse is meted out in a typically gender genocidal fashion.
Fathers in family courts face a situation similar to discrimination black defendants were subjected to in pre-civil rights Jim Crow courts – the judges were as prejudicially corrupt as the police and prosecutors, a virtual cartel of unconstitutionality.
Defendants/Respondents appearing before them, have had virtually no way to redress the discrimination.
The brunt of the war hammer mentality in these courts is doled out and targeted against men and fathers, 90% of time.
Confronted with this insurmountable edifice, and seeing no way out, it is no wonder that fathers involved in family courts/divorce courts commit suicide at a rate nine times greater than mothers, rather than continue the steady abuse and despair coming from such prejudicial courts.
In sum, by their very creation, Family Courts, so called “courts of equity”, are an emotionally driven and politically motivated charade of court practice, a changeling where calm rationality and adherence to law takes a backseat, a place where the judges that control them have taken their cues from the slash and burn “gitter-dun” mentality of their inception.
These judicial high priests are given power by the state to do almost anything with legal impunity, side-step almost every law and ignore every human legal right, as long as it is accompanied by a talismanic invocation of “It is in the best interests of the child”, aka – BIOTC.
But just as the ancient high priests abused their unquestioned supposed divine channel to the gods, and could justify anything they wanted in the gods names, the BIOTC invocation becomes a hexbag token, a placeholder, and a hollow excuse to do anything the judge wants to do.
(Even modern day self-proclaimed religious prophets do this very same thing today – substitute their view and put the moniker of divinity/god/sacredness onto it to make it unquestioned, and unquestionable.)
And unlike ordinary humans, their actions are fully immunized from civil suit or review, the wanton discretion coronated to them, is unchecked by any personal responsibility, and knows no bounds of indecency or turpitude, it is in essence a modern rendition of the ancient divine right, “the king can do no legal wrong”.
(See Indiana Judge Harold D. Stump, in a family civil matter, unilaterally ordered a 15 year old girl permanently sterilized, on an ex parte request. When sued later for this by the girl, the U.S. Supreme Court ruled he was absolutely immune from suit, no matter how horrendous his orders were. Shockingly, not only are these judges immune, but they can confer their immunity in a king-like fashion even onto lowly civilians who surround him.)
Giving this power to regular constitutional courts is questionable enough, but giving it to the statutory family courts, rogue courts masquerading as real ones, is beyond reason.
Layered upon bad, the situation compounds that bad with even worse . . .
Lawyers At Play in the Great Green Fields of Money
Awakening to the new rivers of cash forcibly seized from parents through the family courts, law schools and the legal guild began to develop whole new course curricula exploiting family law to entice and encourage attorneys into this new lucrative area of practice. What was once an obscure and belittled area of law, suddenly became sexy, in vogue, and bright with opportunities.
Career law students began to take notice of this specialty, which now shined with prestige and possibilities.
Building upon itself, new federal/state family court enrichment laws were enacted that encouraged family courts to enhance the likelihood and amounts of child support payments that could be imposed. Such incentives encouraged granting custody to the parent with a lower income, irrespective of the parent who is actually the best for the child.
These laws matched dollar amounts from the federal government to be paid directly to the state(s) for every dollar that they would force one parent to pay another for child support. (Title 42 U.S.C §651, IV-D Federal to State Disbursement funding)
Since a non-custodial but richer parent could be forced to pay far more money, the family courts are financially disincentivized to grant custody to them; such parents are relegated to non-custodial second class parents, visitors actually, and where the poorer parent is favored for custody.
The inevitable result was, that as the traditional wage earner and provider for the family, fathers become the targets of these policies.
Furthermore, as a bonus side-effect from this graft, came the kowtowing to the lobbying efforts of feminist organizations, and resulting in further gender discrimination to fathers seeking custody of their children. Some may say this was not a side-effect at all, but rather the motivating cause.
Much like the civil forfeiture laws encourage the state to effect cash seizures from innocent people, these child support funding laws encourage custody determinations that are in the best (financial) interests of the state, not of the children.
All your Base Are Belong to Us
And yet the courts that are supposed to make fair and equitable judgments upon fundamental core rights, as fundamental as any in a criminal proceeding, have abrogated that responsibility. In fact these matters go beyond constitutional rights, these are even more dear to us than life itself, our children, and our biological rights to be parents to them.
The social engineering and moral presumption of these courts, almost ecclesiastical in nature, manifests in the incipient hysteria embedded in their day-to-day operation; what would be considered outrageous and unacceptable in any other court, is routine and standard fare in these forums.
These courts have become a case study unto themselves of showing corruption flowing from absolute power – of catering to the politically favored litigant, of issuing capricious ad hoc ruling and orders. The steady practice of flippant expedience, and the casual dance of domestic judicial abuse upon perpetually indentured litigants who are literally forced to come before these courts, over and over again, hundreds of times over decades. The orders are never really final, and the cases never really closed.
Even when there is state mandatory statutes limiting their discretion, such as the duration of custody proceedings, the courts ignore them as well without sanction.
The traditional standards of jurisprudence, painstakingly developed and fought for over centuries, standards formed and moored by common law, statutory and Constitutional guarantees, are treated in these courts as casual suggestions and optional guidelines, if they are even considered at all.
Instead, these courts are run in the frontier, shoot-from-the-hip style of ‘justice’ presided over by jurists like Judge Roy Bean.
And the People who Run Them . .
Attorneys don’t just accidentally become family court judges, they lobby hard to get there.
Unfortunately, it is the very same personality dynamic of presumptive self importance that would bring such people to a place where they would come to impose moral, interpersonal and intra-familial decisions upon other people. It is the same personality traits that leave them uniquely ill-suited to lord over those who are most in need of measured objectivity and the impartial application of the law.
These are the type of people who we come across in normal daily life who are self-opinionated and snap-judgmental, people who impose their will in social situations. The difference is when they achieve the powers of a judge, you cannot just walk away from their distasteful behavior.
No kindly sages of wisdom, they come to these positions with the feral mores and self-preservation instincts of an attorneys, politicians and schoolmaster, absolutely the opposite of the composure or training with the social responsibilities entrusted to them. They often come with an insular life experience and limited worldview, inflexible mores, and parochial attitudes and prejudices. Their area of expertise and training is political science and adversarial based resolution of legal disputes.
Family court judges are not schooled or trained in psychology or child psychology, they come with no sophisticated knowledge of inter-familial dynamics other than their own personal experiences, no schooling in human social interaction, no knowledge of intra-societal dynamics and are suspicious and wary of any non-standard, but perfectly healthy familial lifestyles and communities.
As such Family Courts, and the judges who run them, have developed into islands of mini-tyrannies, almost entirely unaccountable, and attracting the type of people that thrill over exerting the kind of one-on-one personal power over others that can rarely be experienced legally elsewhere in modern America.
Accustomed to that stance in society, family court judges are loathe to be restrained from their otherwise almost unlimited power that they wield over others coming through their courts.
How it was, and Change is in the Air
Long used to playing in their little exclusive sandbox, Family Courts (and their professional codependents – CPS, DSS attorneys, assigned attorneys and guardian ad litems, mental health evaluators) have routinely abused the people sucked into their web, unconcerned to the wreckage visited upon them.
Traditionally, the outrages suffered have been mostly contained and muted. Even though the judicial abuse affects millions, the public at large just didn’t hear much about it, because most people want to put such pain behind them, or are embarrassed by the proceedings. When people did complain it is assumed that they were just whining about not winning, and not much sympathy or attention is spent upon sore losers. The facade of fair and evenhanded justice in these courts was and remained intact.
In the not-so-distant past, family court judges generally did not concern themselves about litigants’ discontent. Whining or complaining, no matter how outrageous the circumstances, it was just a matter of course, and ignored as such.
Unless the litigant was a public figure, a government official, or a journalist, such complaints usually went nowhere anyway, and judges knew that.
Inevitably only the politically connected, or those with a public voice were treated deferentially.
The aggrieved literally had no one to complain to. Friends and relatives were disempowered to do anything about it. Local officials were often part of the same institutional mindset as the abusive judge. Reporters and journalists didn’t care, as it was not much of a public interest news item to write about.
Judicial complaint procedures and appeals take thousands of dollars, intricate expertise, and months to be even heard. They are unlikely to be entertained, and by which time if they do, it makes no difference anyway. Although these are supposed to be the “correct” avenues to undo illegitimate behavior by a judge, they are ineffective by design, and actively serve to delay and keep the status quo.
Principled attorneys who have an issue with family court judicial abuse, similarly cannot complain (e.g., see Leon Koziol, Esq., Barbara C. Johnson, Esq.)
Practicing lawyers in front of such judges are effectively silenced by the sheer occupational hazard of having to practice in front of the same judge they were complaining about. In many jurisdictions any such criticism is presumptively considered professional misconduct; for many such reasons attorney criticism would be professional suicide and all attorneys know it.
But, intuitively over the years, though effectively covered up, many knew that something was fundamentally sick with the system. Albeit, most victims of the system were either unable to articulate it, were kowtowed into silence, afraid to rock the boat lest their children be taken away, or through ignorance and lack of resources have been unable to complain or to publicize the abuses.
However, as these rogue courts began casting a wider net, with ever so much more finer mesh, exerting jurisdiction over more and more people, and as their orders and laws became increasingly more onerous and widespread, a new and better informed crop of people have begun to show up in front of these judges.
Lacking the funds to proceed traditionally in “the right way”, these new types of litigants often had no choice other than to proceed pro se (self represented) in court, without the unctuous attorneys who would normally buffer their interactions with the judges. These new litigants were far less reflexively deferential to government and its officious despots. These were people who were necessarily more informed of their civil rights, more willing to educate themselves, and were more willing to share their experiences to the public.
The proliferation of legal self-help resources abounded as they had never before, and people took advantage of them. (e.g., Nolo Press, Legal Zoom, Youtube legal tutorials)
The predictable thin skinned responses of family court judges to these uppity pro se litigants, soon led such people to become pro se antipathists, and then full blown pro se activists, and loud public critics of the family court judges.
Affronted by such independence, and tolerating nothing less than complete obsequient obedience, family court judges have treated such litigants more harshly, and subject them to disproportionate hardships and punitive conditions, often using their children as pawns and victims to punish the parent.
This treatment in turn motivated them to speak up even more loudly and critically about their cases, and about the courts that are assaulting them, in an ever escalating response.
Often in doing so there is the sense that they simply have little or nothing to lose.
It has been said that extortion only works, when an alternative path is offered to the extortionee.
The Petulant Judges
Change comes slowly in the insular and entrenched society of family court judges.
Judges are conservative and don’t keep up with societal changes. With no need to change, judges’ styles, expectations, attitudes and professional habits and prejudices pretty much stay the same. Their protected little fiefdoms stay moored in time as the world goes by them.
Having grown complacent and entitled to the unquestioned power they wield within their bulletproof enclave of absolute immunity, where they are insulated from any personal responsibility of their actions, these judges develop the emotional expectation of absolute obedience and submission.
When confronted with independent or reasoning people, the anger and ire they experience, is emotional and retributive in nature. Entitlements they have always had and that was never questioned, now someone, anyone actually, has the gall to criticize them, and in the public no less.
Given the background of the people involved and the artificially charged situation in place, it is almost predictable that such judges’ response would be petulant and feverish, overreaching beyond their legal authority or jurisdiction in trying to hold onto and control the public narrative.
Yet, because they have the presumptive power to do so, with no immediate oversight or correction, these judges will lash out their umbrage upon those who would report their behavior to the public – they will sanction, punish, curtail and extort such critics’ speech through various judicial devices, including denying access of a parent to their child even when the speech has nothing to do with parental fitness.
Change comes in unexpected ways.
But the world moves forward in ways no one expects, particularly to those who have been entrenched in power for so long.
In the past 15 years or so, the phenomena known as “The Internet”, has become a new societal wildcard that most family court judges aren’t quite familiar with – they are not aware of it as the phenomena that intrinsically is, or of the passionate online communities it supports and nurtures, or the popular journalistic publishing medium it has become, reaching millions of new readers and viewers.
Journalists and writers who in the past had the insurmountable cliff-face to broach via the traditional gatekeepers of the mainstream media and publishing houses before ever reaching a viewer’s eyes, are now empowered with an easy path and ready audience of millions, who could now view newly produced content and reporting.
Just as technologically clueless as many older politicians (e.g., “The internet is a series of tubes”, Sen. Ted Stevens ), most of these judicial dinosaurs still don’t understand either the magnitude, significance or impact of the internet upon society at large; they try to abbreviate it, and pigeonhole it into their small minded worldview as just some newfangled hobby that young techy people waste their time with these days.
Staid, ossified family court judges treat bloggings, internet articles, facebook postings and youtube videos with an annoyed scorn and umbrage, quite differently than their respect for traditional media (radio, tv, print magazines and newspapers). Because of this old worldview, they will often treat litigants involved in internet activities as unruly children needing to be curbed and disciplined. These judges live in the past, anachronistically not yet recognizing that the Internet IS the contemporary media of journalism and public social commentary today.
As the 9th Circuit recently held:
“The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable.”
Obsidian Finance v. Cox #12-35238 (9th Cir. 2014)
“With the advent of the Internet and the decline of print and broadcast media . . . the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352″
The most ironic thing about these family court jurists, supposedly learned scholars of law, chartered protectors of human rights, and dispassionate arbiters of disputes, is that they have in fact become petty tyrants of their domains.
Jealous keepers of the standard narrative, they see red when any view critical of themselves or their domain makes it to public awareness, and like sadistic ant-burning, fly-leg pulling bullies, they will abuse their powers and breach their public trust by punishing anyone expressing such criticisms.
Worst of all they will punish the truly innocent in their zeal to sanction such parents.
Treating children as pawns – collateral damage in fact – these judges will exploit the parents’ love for their children in order to extort, blackmail and shame them into submission.
For these judges it is the institution they work for, and its image, that is far more important than any children they purport to revere, much as how the Catholic church had protected its own priests and public image before ever being shamed into protecting children from abuse of its own clergy.
The Evolving Law on Free Speech, The Internet, and introducing Family Court Judges to the 21st Century.
Although it is illegal to criticize family court judges in many countries (Australia, Britain), such is not the case in America.
The high ideals of American exceptionalism in protecting free expression and free speech is explicit in our Constitution, and covers the right to public trials, freedom of the press and freedom of public speech. The complementary guarantees of free association, freedom to parent one’s child, freedom to express grievances with governmental action and agency, and freedom of religion or personal belief, are part of the same set of ideals, in protecting personal freedoms under American jurisprudence.
The absolute sounding nature of Constitutional rights notwithstanding, the courts do permit intrusion upon them by the government if they find a compelling reason.
Governmental intrusions into our lives are ranked differently as to their civil rights offensiveness in modern jurisprudence, some acts receiving greater presumptive deference from the courts than others. Of these standards, “strict scrutiny” is the most stringent standard to be overcome before an official action is allowed to trump a Constitutional right.
The right to free speech and free expression is in that category.
This rule, applying to any form of governmental prohibition against a person for the act of simply expressing oneself to others, or publishing one’s views in a public forum, is considered one of the foundations a free society, and a core freedom indicative of a true democracy.
When the government, in any number of its methods (e.g., by statute, regulation, court order, or forced agreement), prohibits the speech of a person before he even says it, this is known in legal terminology as “prior restraint”.
Prior restraint of free speech occurs when a person is threatened with punishments, sanctions, fines or imprisonment, prior to actually even saying or publishing the subject speech or analysis, and it is considered the most heinous and odious official acts any governmental actor can presume to command upon another.
As the Supreme Court observed:
“[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights . . . If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it.”
Nebraska Press Association v. Stuart, 427 U.S. 539 (1976)
also see Near v. Minnesota, 283 U.S. 697 (1931), Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)
Rare exceptions to this very fundamental rule, run only where there is an immediate risk of danger (e.g., yelling “FIRE!” in a crowded theatre), an explicit incitement to violence (“KILL HIM NOW!”), or undermining exigent and immediate criminal or military operations (“Get ready, they are at your door!”), in all these examples prior restraint relates nothing to the content of the speech, and all relating to immediate irreparable danger inherent in the form or circumstance of the speech.
This standard is determined by the so-called Imminent Lawless Action standard of review, where prior restraint is acceptable if the subject speech is presumptively dangerous, and incites a violation of law that is both imminent and likely.
Hess v. Indiana, 414 U.S. 105 (1973)
The Constitutional courts have held that all other speech can be legally addressed after its utterance or publication, through the use of traditional legal avenues such as defamation suits, breach of contract actions, improper disclosure sanctions, etc.
Yet, the rogue courts that Family Courts have become, recognize no federal authority over their own discretion, and free speech is one the first federal rights to be derided, laughed at, and casually throttled with impunity by family court judges.
In Part Two of this article, through investigations and interviews I have made, I report upon this exact behavior by Family Court judges across the nation, and reveal the flagrant, and illegal, imposition of “prior restraint” imposed in widespread patterns of judicial abuse.