American family courts, the First Amendment, and violations of free speech: Part II

Editor’s note: This article is being published under a pseudonym, for fear of retribution by the family courts. —SM


My apologies to all the readers for the delay in publishing this Part II of this article. After the publication of Part I, I was warned by my counsel that publishing this article, even under a pseudonym, would be very dangerous to the case I am currently fighting in family court. Counsel has advised that the judge would the take the criticisms and analysis in this article personally, and would likely rule against me because of it. However, such threats should never chill the reporting, publication, and information contained in these articles. Additional delays came from a couple more interviews I had to complete for the article and a Men’s Issues Conference that I had to attend. However, here is Part II, and I thank you for your patience.

Part II

When inherent fundamental rights clash with the immediate power structure in place, those rights are the first to fall. Under the direction of corrupt institutions the ideal of inalienable rights becomes a misnomer—since the structures in place have the immediate power to deny you those rights, they are no longer inalienable by instant circumstance.

And so it is with the family courts. Although they co-exist in a land where federal constitutional rights abound, and where such rights are legally controlling, these courts routinely ignore them. The federal “inalienable” right to parent one’s child is barely ever mentioned or entertained.

A fundamental right is not to be infringed upon unless that right was forfeited by the person. Thus, for example, a person found guilty of some offense, via due process, can be denied the right to his freedom. And yet, federal constitutional parenting rights are violated in family courts all the time. Through no fault or action of their own, parents are routinely stripped of their parental custody rights, and of their free speech rights. Later after months or years of such constitutional denial, a hearing may be held that in itself can take months to complete. In practice, and likely by design, it rarely happens or it is too late to mean anything; usually a “settlement” is extorted from the parent.

In combined attrition, parents are beaten down psychologically and financially, through money spent on attorneys and mental health evaluators, and the continuing corrosive denial of their children. During all that time, CPS and social workers, always looking to justify their existence, are constantly yapping at the ankles of parents, ready to pounce upon the slightest anonymous complaint or contrived folk wisdom, eager to interject themselves into the custody proceedings and shift the presumption of parental fitness using hysterical claims, usually against the father.

Thankfully absent throughout the years of the intact family, it is when a family is dissolving CPS workers pop up like cow patty mushrooms, and like blowflies that are attracted to the whole mess. Suddenly neglect and abuse is seen everywhere it was never seen before. Their mere proximity, armed with official henhouse gossip, is enough to dirty the reputation of the target parent in the custody actions, again usually the father, irrespective of either the legitimacy of their accusations or eventual findings of innocence. And it is no accident, CPS agencies are overwhelmingly staffed and driven by ideological feminists.

And all this is considered a perfectly normal template, applied to the assembly line of families to be processed through their machine; milking parents of their resources, time, money, and quality of life. Most importantly to the system, it is the money that can be gouged from them, through threats of fines, imprisonment, loss of their children, and public defamation. With such extortionate powers, the money pours into the family court system like water—the attorneys, psychologists, therapists, evaluators, visitations centers, the filing fees, and transcripts costs. Judicial orders and threats move these things along, with police, tasers, guns, and jail cells not far behind for those who don’t play ball.

As I mentioned in Part I of this article, all these things, traditionally very hidden from public view, provide a backdrop of corruption that would otherwise be prime for public criticism and expose. But the thing thrives in the dark, and can fester only when not being criticized or revealed. Much as a tyrant like Idi Amin was able to get away with atrocities in Uganda, but only while he kept it hidden within his borders, when it spills over into the rest of the world such regimes collapse under their own top-heavy, brittle, and self-justifying existence.

Similarly, the allergic reaction that most family court judges respond with, to anything even approaching public attention or criticism, is a consequence of their guilty knowledge of what they do, and their need to cover it up. Such judges will misuse the power of their office to silence, sanction, remove children from, and even imprison those who dare criticize their system. It makes no difference to them that everything they do is public record by law and a constitutional right of the public to see them. Aware of the zero-tolerance attitude of family court judges to public revelations, savvy attorneys will naturally attempt to game the system by filing motions in these courts seeking to shut down the opposing side’s public speech, motions that in any other court would be considered legally frivolous, and sanctionable.

Information Wants to Be Set Free

As our culture evolves, and since information just wants to be free, we now see increasingly, [1] the popular dissemination and publication of public criticism of governmental institutional abuses, and [2] the reactionary backlash by those same institutions who have grown complacent, sloppy, and self-righteous with the abusive and hidden activities regularly committed out of public oversight.

As they see it, who needs quality control when there are no consequences?

Like cockroaches, the functionaries making up these institutions run for cover when exposed to the light of public attention and will therefore try to subvert any attempt to do so. It is the same dynamic that drives police officers across the nation to falsely assert their right to commit atrocities in public, yet demand that no one be permitted to record them doing it. Similarly, we can see the NSA’s reactions to Edward Snowden’s revelations of their illegal activities, seeking to shut him down preemptively. Even on trivial matters, the NSA sought to shut down even a T-Shirt manufacturer for selling shirts that mocked the NSA.

With the same mentality, family courts have reacted similarly to public disclosure of their normally hidden inner sanctum. With the fortress-like edifice that family courts hold against any review or oversight, the only thing they seem to respond to is public attention and outrage, and have developed ways to keep their violations out of public view. Illegal edicts, threats, and orders often get conveyed to parents in far more subtle ways, ways that lack a formal written record or order that they can be held accountable for. Family court judges will order or threaten parents from the bench, not issuing a formal written order that they know can be appealed or republished to the public. In this way they avoid the disinfecting sunlight of public attention, yet still manage to convey their threats and censorship.

Case Study #1

For example, on January 19, 2011, Nassau County, New York, Judge Anthony Falanga issued a from-the-bench directive and threat to Anthony Pappas, a Professor of Economics at St. John’s University, and litigant in family court. Prof. Pappas had gone public with his complaints and experiences in the courts, of which the judge did not want him to continue, and stated to him:

“I am admonishing you right now, you are not to communicate with anybody inside the court system, outside the court system, about how you feel you were being treated or anything like that. If you feel I am violating your right to free speech, you have the absolute right to feel that way and do whatever you feel is appropriate. If I decide to hold you in contempt, we’ll cross that bridge when we come to it. Do you understand?”

More egregious examples abound, and often occur within the context of counsel seeking to conceal egregious behavior of their clients, and the court’s complicit willingness to permit it. Such attorneys will seek a restraining order to prevent the public speech of fathers, who merely want to share or vent their experiences in court.

Often, judges will threaten the father with sanctions if they continue to express their opinions and experiences; sometimes judges will become retaliatory if the father uses other collateral legal avenues to support his efforts while the litigation is occurring in family court. Such judges will threaten to limit access and/or legal custody of their children as a method of control, punishment, and sanction against such “uncooperative” fathers.

Case Study #2

In Indiana, on April 29, 2009, Judge James D. Humphrey gave an ultimatum to Daniel Brewington: If Brewington continued to post and publish his experiences related to his custody efforts in the Indiana Dearborn Circuit court in his Internet blogging, it would be at the risk of losing custody of his children.

Eventually, when he continued to report to the public of his experiences, Brewington was stripped of all access to his children. When that did not stop him from expressing his free speech, Indiana officials eventually convicted and jailed him, by divining in his writings an unstated hidden threat to a judge.

Case Study #3

On March 11, 2013, Gary L. Jacobs, a candidate for the Suffolk county New York legislature, was called into Suffolk County Family Court (Hon. Julianne S. Eisman presiding) to face a family offense petition for harassment, with his ex-wife seeking a restraining order to prohibit his publishing of his family court experiences on his private Facebook page.

After issuing denigrating admonishments from the bench, accusing Jacobs’s postings as “bad parenting” and “bad ex-husbandry”, and suggestions that he be sued civilly for defamation by his ex-wife, the judge fortunately denied the restraining order and dismissed the family offense petition.

Case Study #4

From 2012, Jason Patric, a celebrated actor, had conducted a public campaign, Stand Up For Gus, to publicize his family court case. He highlighted the inequities where he was denied even the presumption to argue his fatherhood of his child, and he also established a public foundation to fight parental alienation.

On or about February 6, 2014, attorneys for the mother of his child filed a motion for a restraining order to stop his campaign, gag his public speech, and prohibit him from posting on the Internet. Fortunately there too, the judge denied the motion, correctly ruling that such an order would be a prior restraint in violation of the 1st Amendment, U.S. Const.

Case Study #5

On February 14, 2013, Juvenile Court Judge Joseph Johnston suspended Lou and Linda Pelletier’s parental rights by remanding custody of their daughter Justina to Department of Children and Families (DCF) agency. In that order was the directive that the Pelletiers were forbidden from discussing or communicating the circumstances of their daughter’s removal from their care to anyone.

After almost a year of attempting to regain custody of their daughter, Lou Pelletier decided to break the court order, and in February 2014 went to the public with his story. He had brought his daughter to Boston Children’s hospital for a stomachache and cramps, but the hospital then refused to release her back to her parents, asserting that the parents refused to accept their diagnosis of mental illness, not a physical ailment.

DCF then filed a contempt of court petition, citing the Pelletiers’ discussion of their case to the media. DCF then later dropped the charge, after 1st Amendment lawyers criticized the gag order as unconstitutional, and public condemnation descended upon DCF and the court

Citing the parents behavior as unacceptable, in [1] being profane to hospital workers, [2] having publicized the case in the media, [3] objecting to the minimal one hour per week visits they were permitted to see their daughter, the judge concluded that the Pelletiers were “impeding progress in this case” and that they were not cooperating with treatment and conditions that were being imposed upon them and their daughter.

Due to the parents’ insufficient cowering and refusal to validate the removal of their child for no legal reason, the judge asserted that the parents’ custody of their own daughter was against her best interests, and again remanded custody to the state. There were no findings of actual unfitness to conclude this, rather because these parents complained loudly to the media, held obvious animosity to their daughter’s captors, and refused to legitimize this treatment, the court ruled they were unfit to raise and care for their child.

Case Study #6

On December 29, 2013, a father, Christopher Mackney, having suffered the removal of his children, destruction of his life, and further judicial abuse upon himself in the family court beyond his limits, drafted a suicide letter detailing exactly how these courts brought him to kill himself. After his suicide, the letter made its way to the media, where it was then published in various Internet publications and websites.

Soon after, on April 15, 2014, not liking the content of the message Mackney had published to the world with his last dying declaration, his estranged wife asserted legal privilege, claiming copyright control, over the letter and sought via cease and desist demands to remove Mackney’s letter from publication. These efforts are still pending, and the legal threats still ensuing to the publishing outlets.

Case Study #7

On November 23, 2011, Mark Byron of Cincinnati, Ohio, posted on his private Facebook account the statement:

“. . . . if you are an evil, vindictive woman who wants to ruin your husband’s life and take your son’s father away from him completely — all you need to do is say that you’re scared of your husband or domestic partner…”

The page was only accessible to his friends, but his ex-wife hacked into the account and read what had been written. She then went to the judge to complain about it. For this generalized free speech lament, on January 25, 2012, Judge Jon Seive of Hamilton County Domestic Court sentenced Mark Byron to 60 days in jail for expressing his angst and observations to his friends. Issuing an order to compel Byron’s speech that was just as violative as the order to restrict it, the judge then extorted Byronoffering to suspend and replace the jail sentence if he posted for 30 days on his Facebook page an apology written by the judge and speaking as if he were Byron to his wife.

Initially Byron complied, but after 26 days he took down the counterfeit apology, and went back to court to face the jail time he was threatened with for his expressing his opinions. By that time, a maelstrom of criticism from over the country had descended upon the Hamilton County Court, accusing it of blatant violations of the 1st Amendment’s protections of free speech, and Judge Seive capitulated the point, and did not imprison Byron, trying save face by stating that he felt Byron had been punished enough.

Case Study #8

Gary Trieste, a Kingston, NY, father embroiled in a three-year custody case starting in 2011, had at an early stage publicized his case on the Internet and media, his case was written up and commented upon, he appeared in documentaries and radio programs, publishing articles and video exposés on the family court system. In January 2014, during the ongoing custody trial, a 50-page motion was filed against him by his ex-wife, seeking a court ordered injunction preventing him from either publishing, speaking to the media, writing articles, or releasing videos of anything related to the family court proceedings, his family, or his experiences in court.

In April 2014, the Ulster County Family Court ruled that such an order would be a prior restraint of free speech and denied the motion; however, in the closing pages of the order, although Trieste’s publications had nothing to do with his fitness as a parent, the judge admonished Trieste’s public activism and criticism as reckless and bad parenting, and threatened that such 1st Amendment activity would nonetheless be used as evidence in the trial, putting at question his fitness as a parent in the custody case.

Case Study #9

In 2010, W. David Kimbrell was in the middle of a heated custody battle in Santa Fe County, New Mexico. The court had assigned a Guardian Ad Litem (GAL) for the children, to which Kimbrell vehemently objected to and attempted to have removed as biased and in conflict of interest. The lower court ruled that Kimbrell’s attempts to remove the GAL were relentless and improper, and issued an order that Kimbrell should cease and desist those efforts; that order included a provision that Kimbrell could not even communicate his displeasure and complaints to the media. Kimbrell then formed an organization called (now defunct), from which he continued to publish his issues and criticisms of the GAL.

On July 1, 2011, the court issued an injunction preventing Kimbrell from publishing anything related to his misgivings about the GAL on the Internet. Kimbrell appealed to the NM Court of Appeals, and this order was reversed on the basis that such publications were protected by the freedom of speech clauses of the U.S. Constitution and the New Mexico Constitution. The court sent the case back with instruction to the lower court to determine whether Kimbrell’s publications constituted defamation.

Case Study #10

In early 2014, pursuant to a family court custody proceeding, Surrender Malhan was stripped of custody of his two children by New Jersey Essex County Superior Court Judge Nancy Sivilli without even a hearing, as was required by law. After he was interviewed by Channel 9’s newsprogram “Chasing New Jersey,” and he complained about what the court had done and the improper procedures, Judge Sivilli went ballistic, and on May 1, 2014, she issued a censorship restraining order prohibiting Malhan from discussing, reporting, or expressing himself to any of the press, media, or even on his Facebook or Twitter accounts, and ordered him to take down any and all information he had posted online. The judge’s post hoc justification of this order was that any discussion of the court, judge, or proceedings in published or broadcast form would harm the children, using the BIOTC invocation as an excuse to trump his Constitutional rights.

However, in response to the order, Paul Nichols, a reporter for the Bergen Dispatch who wanted to interview Mulhan, filed a lawsuit in the U.S. District of New Jersey court, asserting that such capricious orders were a violation of the 1st Amendment to the Constitution, see Dkt #2:14-cv-03821 WJM/MF. In the lawsuit, Nichols argues that BIOTC analysis can never trump fundamental federal rights, and that Sivilli’s order was unconstitutional. The case is still pending review.


The efforts at suppression of public speech is an emerging and accelerating trend in family and domestic courts in America. People are forcibly thrust into an unrecognizable maelstrom of demands and directives, legal wranglings, and Looking-Glass logic; the conflict of interests between those people’s right and inclination to express themselves, complain, or publish their experiences to others via the Internet and other media, unavoidably bumps into the insular and cloistered world of courts, judges, and adjunct professionals (e.g., psychologists, CPS workers, social workers, evaluators, attorneys).

Abuse of the power coming from these courts is nowhere more apparent, self-serving, and hypocritical than family courts. They consider provisional what should be absolute—constitutionally protected free-expression and speech, the right to redress grievances against the government, the right to public court proceedings, and the freedom of the press to publish such information.

Modern technologies are providing such easy broadcast capabilities for speech so as to now become as common place as making a phone call. What once was a major hurdle in information dissemination is now not a hurdle at all, and actually a normal mode of communication, e.g., Twitter, YouTube, blogging sites, Facebook, and special interests websites.

No longer is it acceptable to punish a parent’s expression of his experiences in court. Claiming a best interests of the child as an excuse to silence unrelated speech will be seen for what it is—an obvious excuse to protect the judge, not the child.

Threatening a parent’s custody or access to his child, solely because of such public expression and criticisms, is the province of sadists and sociopaths, and should have no place in an American court of equity.


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