COMMENTARY
Family Court is the WMD
By Peter Mu–oz
Judge Douglas McNish's Law Week column of May 5, "WMDs in the Family Court," was welcomed because any judiciary acknowledgment of problems in family court requires an open and honest evaluation of the causes.
Unfortunately, Judge McNish missed the target with an errant assessment of the essential root causes, by summarizing:
• "What is in the best interest of the children" is the court's legal standard.
• The court process of decision-making "can be abused by those (families) determined to do so."
• Resolving disputes outside of the courtroom is good and "Hawai'i's family courts systematically provide services and programs to encourage and help families to do so."
• Litigants are the "weapons of mass destruction" who are "unsatisfied with having their grievances addressed in the established safeguard mechanisms (appellate courts for judge errors and the Commission on Judicial Conduct for ethical violations by the judge)."
In essence, what he's saying is that a few individuals destroy the court's ability to efficiently serve children's best interests.
Yet the court system must remain "open" to them in order to serve the children's best interests — which is a contradiction, not to mention that the so-called "safeguards" apparently do not safeguard the children's best interests at all if the system allows such "destructiveness."
Judge McNish's rationalizations undercut his own explanations.
The Family Court itself is the weapon of mass destruction. Children's best interests are trumped by profit or other motives, and trampled by officers of the court and other insiders — not litigants.
Ask any judge, lawyer or court-appointed guardian to write a short, understandable paragraph defining what is in the "children's best interests" — they cannot, because no such definition exists.
This gives officers of the court, guardians, judges and other insiders tremendous independent power to churn child-custody cases for profit, because there are no definable and accountable standards, just an idealistic, shallow catch phrase.
Too often, the temporary restraining order system is abused in Family Court in order to gain custody of the kids and the house, while smearing a spouse in the process. The standards for issuing such orders, and then deciding whether to maintain them, are so broadly and loosely defined, including fraught-with-gender-bias issues, that lawyers typically recommend not even fighting the allegations.
In a classic he said/she said case, with each side denying the other's allegations and no other evidence or witnesses, the side the judge determines has 51 percent of the proof succeeds at trial. Such cases, decided by a 1 percent margin, can result in permanent findings of abuse that affect custody, and technical violations of the resulting civil order can have horrific criminal consequences, including mandatory jail time.
The incredible leverage that false allegations, coupled with a 1 percent margin of proof (how does a judge differentiate, say, 1 percent from 2 percent or even 10 percent?), make terrible abuses of this process a certainty. Appeals claiming a judge wrongly determined this 51 percent of the proof in a he said/she said situation are not successful because it is the duty of the trier of fact to assess the weight of the evidence and the credibility of witnesses. An appeals court will not pass upon issues dependent upon credibility of witnesses and the weight of the evidence; this is the province of the trial judge.
Lawyers, guardians, social workers and accomplices can easily conspire to abuse Family Court processes for their own ends. Real expertise is needed to build a WMD, and such insiders bring years of experience (that litigants acting without attorneys do not have) to focus on "exploiting legal principles" in their own quest for money and power. There are litigants (customers, really) who fight this abusive system, and they should be commended for their strength and perseverance. Such Family Court customers rarely prevail, because judges are willing or unwitting accomplices to the proliferation and use of WMDs in court processes, as demonstrated by the allegations in Judge McNish's article.
The Maui Family Court's ability to promote mediation and negotiation on behalf of children's best interests has been negligent, if not outright derelict. Lawyers are allowed by the court to reduce proceedings to a win/lose contest where the lawyers make money but the family in crisis is not helped. Family Court is the bat and children are the ball in a game played by unethical social workers, guardians and lawyers, refereed by lawyers in black robes. Also, the written rules do not apply to the networked insiders; the strict rule of law only applies to litigants who have no attorneys or those who fight the system, thus ensuring favorable decisions for only the insiders. The best option is to not play, and this facade of justice is clear to veteran Maui court customers.
Few families, after being rendered destitute by this system, can afford an appeal. Even then, the years required for a decision create irreparable harm for parent-child bonding and relationships that were wrongly affected by a trial judge. An appeal is no safeguard that a just result will be reached, and the now huge fee required to file an appeal is just another disguised tax levied on citizens, which is used to pay for a bigger WMD, judiciary computer system.
In April 2002, a state Senate Concurrent Resolution (SCR-82) requesting an investigation of the Maui Family Court was approved by the Senate Judiciary Committee. In a signed statement, more than 60 Maui residents expressed willingness to testify under oath about violations of state laws within the Maui Family Court system. Many others declined to add their names out of fear of retaliation.
This number of dissatisfied customers alone indicates that Judge McNish's anecdotal evidence of "only a few in number" must be erroneous. The resulting resolution was an insufficient compromise measure: a state audit of Family Court complaints processes, which effectively defused the issue and satisfied the insiders. Not surprisingly, the audit showed that the senior Family Court judge withheld correspondence from the auditor, that the Family Court lacked a system to manage complaints, that it did not recognize a need to document complaints, and that it considered complaints "venting" and of apparently little value. There was no apparent follow-up to correct these or the other cited problems.
Proof of wrongdoing, perversion of ethics rules, laws and abuses of discretion in Family Court are abundant. The truth is that Family Court judges have too much power, that they are not accountable to the public for neutrally applying the law to their customers and families, and that they allow or encourage abusers to run rampant.
Why did Judge McNish not mention the Hawai'i Rules of Professional Conduct, and the number of lawyers disciplined or complained about by court customers? Worse, Child Welfare Services, social services, guardians, Maui police and other special interests are linked into this incestuous system, which victimizes too many families and children.
The first step toward removing the WMDs is open inspections. If the judiciary truly espouses openness, justice and fairness, its independence, public trust and respect would only be improved by a real and independent evaluation of its Family Court processes and their measurable performance results.
The second step is not to ignore allegations but to sanction all false allegations by any person (party, lawyer, guardian, social worker, etc.) so court resources are not wasted and innocent parties are not prejudiced or harmed.
The third step is to sanction and punish officers of the court who repeatedly pursue reckless, adversarial tactics or violate ethics rules.
There are good lawyers, judges and others, but their silence implies consent and condones the described abuses and misconduct. In any such real investigation, I would bet Judge McNish that highly adversarial, malicious litigation would be highly correlated to specific lawyers, law firms and related insiders — NOT to families or parents!
Care to wager, Judge?
Pete Mu–oz is director of Citizens for Truth & Justice — Maui County. Reach him at flygad2000@yahoo.com, (808) 575-2350, or P.O. Box 791071, Pa'ia, HI 96779.
