Battered women's advocates are increasingly concerned about the difficulty for protective mothers to find ethical and competent attorneys to protect them in the broken custody court system. Attorneys for mothers often take all their money and then abandon their client when her money runs out. Even worse, these attorneys pressure women to accept unsafe settlements, fail or refuse to present important information to the court and too often cooperate with the judge and other professionals in undermining her case. Attorneys often have a conflict of interest in that they will be appearing before the judge in many other cases and do not want to act in a way that could undermine their position in other cases they might consider more important. Such practices violate legal ethics that require attorneys to zealously represent their clients. Although many protective mothers have filed complaints about such unethical practices, the complaints are not taken seriously. The legal system often refers to the victims as "disgruntled litigants" to justify the failure to investigate such ethical lapses. The fact that such unethical behavior makes it easier for judges and discourages accountability for the court system's failure to protect battered mothers and their children encourages the system's practice of dismissing these complaints.

What is an ethical attorney supposed to do when the rewards for going along with unethical practices are great and challenging improper practices is actively discouraged? They don't teach about this in law school, but this is a common dilemma in the present custody court system.

I faced this issue when I agreed to represent a protective mother in the Shockome case in Dutchess County. Although the mother was the primary parent, a gifted mother
and the victim of extensive abuse by the father, the court had given custody to the abuser and limited the mother to supervised visitation without an evidentiary hearing on the merits of the petitions in front of the court. Three prior attorneys had represented the mother. They charged large sums of money while failing to challenge the court's use of gender bias and discredited domestic violence practices. The prior attorney agreed to a second evaluation under terms that it would only be used if it were unfavorable to his client. At the initial conference I attended, the judge said all her prior attorneys agreed she was not credible. If that were true it would mean her attorneys acted unethically. The statement also supported my belief that the judge had fostered an atmosphere to pressure court professionals to support his beliefs.

The domestic violence agencies in Dutchess County were concerned that the custody court was favoring abusers and had severely mistreated many of their clients. In much the way civil rights leaders selected Rosa Parks to challenge segregation laws on buses because of her outstanding moral character, the domestic violence agencies picked Genia Shockome as a case to devote their resources because her case was so strong and parenting skills enviable. Throughout my involvement in the case, domestic violence advocates filled the courtroom in support of the protective mother. Although I have a long history of representing battered women, I have never seen that level of support in any other case.

Domestic violence agencies are an important resource in any community. They are the only professionals who work full time on domestic violence issues. They have more training and experience about domestic violence than the "experts" courts often rely upon because of the letters after their names. These agencies have limited resources and
must screen their clients before providing services. This means a woman receiving such services is extremely likely to be a victim of domestic violence.

During my first appearance in the Shockome case, the judge immediately called for a conference with attorneys only. The first thing he said was that he would not be intimidated by the women in the back of the room. The domestic violence advocates had not made any threats so this extremely defensive reaction raised grave concerns about his ability to give my client a fair hearing.

After this first appearance, we decided to make a motion to recuse the judge. This was based upon his statements about the domestic violence advocates and prior attorneys, the extreme action he had taken without a hearing, unfair and improper practices including use of the Parental Alienation Syndrome which is illegal in New York (the judge admitted PAS is illegal to use but claimed he was using parental alienation not PAS. The law guardian, however admitted the decision was based on PAS) and stories I had heard from other abused women and their advocates. The grievance committee, ignoring the other grounds for the motion claimed it was unethical to make a motion for recusal after only one appearance when I had not read the entire file of the women who contacted me about their cases (I did not plan to represent them). This was a standard that was not applied to the grievance committee lawyers, judge and appellate division judges who made statements unquestionably wrong after failing to review basic information in the record.

The New York Court system's own Committee on Women in the Courts had issued a report finding extensive gender bias and specifying common examples of the use of gender bias in the courts. Courts most often engage in gender bias without realizing
they are doing so. Accordingly if an attorney representing a client victimized by gender bias fails to raise the issue, the client has no chance of receiving fair consideration of her claims. This is exactly what was happening in the Shockome case that was permeated by gender bias.

In removing the children from the mother's custody, the court relied on an evaluation that said the mother is a strong and articulate woman so could not possibly need a domestic violence advocate. All of the experts who testified in the case were outraged by this statement and understood the statement demonstrated the evaluator was not qualified to participate in a domestic violence case. The judge ignored the problem when it was presented to him.

The basis of the court's approach was to blame the mother for her fear of the father and attempts to protect the children from the abuser. In other words the judge blamed the mother for her normal reaction to the father's abuse. Even though the abuser never missed a visit he was entitled to when the children lived with the mother, the court treated the mother as if she was trying to interfere with the father's relationship with the children.

Throughout the case, the father's claims were disproved by other evidence including his own admissions when confronted with neutral evidence. The mother's claims were supported by multiple witnesses and other evidence. Nevertheless, as is common in gender bias, the court gave the abuser more credibility than his victim. The judge did not know what to look for to recognize domestic violence and understand the pattern of coercive control by the father. The court also imposed a higher standard of
proof on the mother that was demonstrated later with its use of a certainty standard for the mother and probability standard for the father.

What is an ethical attorney supposed to do when his client cannot receive fair consideration of her case because of the court's gender bias? I attempted to educate the judge both about domestic violence in general and how it applied to the immediate case. I cited and discussed a brilliant article "Evaluating the Evaluator" by Lynn Hecht Schafran. This is a wonderful example of gender bias because it shows how even a woman, acting in good faith can unintentionally engage in gender bias against a mother. I described some of the work I do and training I receive as an instructor in a domestic violence program for men. The approach is to focus on how systemic issues can make it normal for men to engage in sexism without realizing they were doing so. I also provided historical context for the research in domestic violence to demonstrate the approaches the judge was using had been discarded after they were shown to be ineffective. There was a good reason I used the most benign approach in my attempt to help the judge see the mistakes he had made. He was extremely defensive and I needed to find a way not only to give him the up-to-date research he needed, but also to give him a chance to hear it. Despite my good faith approach, the judge and grievance committee repeatedly took my statements out of context, without basic domestic violence understanding to create the illusion I was engaging in baseless attacks on him.
After the judge ignored the overwhelming evidence and gave custody to the abuser and continued to limit the protective mother to supervised visitation, and the appellate division affirmed the case by blindly deferring to the judge and ignoring significant legal issues, Newsweek magazine made a thorough investigation of the case.
The reporter took months speaking with myself and the protective mother, abuser and his attorney, national experts in domestic violence and representatives of male supremacist groups. Most important she reviewed the extensive records of the case.

The result was a powerful article and one of the few times the national media has exposed the pattern of abuse in the custody court system. Newsweek used the Shockome case to illustrate the problem in the custody court system where the use of PAS has resulted in thousands of children being sent to live with abusers. PAS is a bogus theory, unsupported by scientific research that is used by male supremacists to prevent investigation of domestic violence and child abuse allegations. Although it is not used by mental health professionals for any purpose outside of giving custody to abusers, and it not permitted in other courts because of a lack of scientific justification, custody courts have frequently admitted this voodoo science with tragic consequences.
Upset that their cruel practices had been exposed, the male supremacists launched an attack on the Newsweek article. Using incomplete material and statements from the abuser in the Shockome case (without using his real name) the male supremacists claimed there was no evidence that the father had committed any abuse. These were the same male supremacists who gleefully hailed the unprincipled decision against me.
In reality, just the evidence of those supporting the father proved him to be an abuser. The abuser acknowledged that he told his wife that he brought her here from Russia and she has no right to leave. He also said she would never get away from him. These statements demonstrate the father's motivation for seeking custody although he had little involvement with the children before the separation. The judge, looking only for evidence of physical abuse ignored this revealing evidence.

The visitation supervisor (later jailed for fraud in an unrelated matter) admitted the mother suffered a panic attack when she unexpectedly encountered her abuser. The court appointed evaluator supported the abuser because she said she was influenced by her belief the judge and law guardian wanted him to have custody. Under cross-examination, however she admitted the father probably abused the mother physically, verbally and emotionally throughout the marriage and the children probably witnessed his abuse; there was no alienation, the mother is a safe parent and the father's abuse probably caused the mother's PTSD. What the male supremacists were saying was there wasn't any evidence of the father's abuse in the judge's decision and that is because he ignored inconvenient evidence. In reaching their demonstrably false conclusions no court handling the Shockome or Goldstein case, nor their male supremacist supporters has explained how they can claim their was no evidence in light of the full record nor how to justify decisions based upon a certainty standard for the mother and probability standard for the father.

Recent research confirms that courts have made all too frequent mistakes in giving custody to abusers. This, however, does not mean the judges have acted unethically. Most judges never received any domestic violence training in law school and the professional training is often inadequate. Accordingly it is quite possible for judges to make serious mistakes while acting in good faith. From an ethical standpoint, the cases of most concern are those with extreme outcomes and where retaliation is used. Judicial ethics require not only that judges avoid improprieties, but also that they avoid the appearance of conflicts of interest or other unethical behavior.

Many of the mishandled cases involve allegations of domestic violence or child abuse that the court fails to recognize and retaliatory allegations of alienation that the court believes and acts upon. I can understand when the court believes the alienation allegations and fails to recognize his abuse it would award custody to the alleged abuser. Too often, however the court wants and expects the protective mother to stop believing that the father is an abuser. When she continues to present evidence of the father's abuse, many judges are not open to the idea they made a mistake and instead seek to punish mothers for their beliefs. The result is often supervised visitation or no contact with the children. These extreme results create an appearance of bias and impropriety because the decision appears to be based upon the mother's failure to accept the court's conclusions rather than the best interests of the children.

This appearance of impropriety occurred in the Shockome case when the court imposed supervised visitation against the mother and children and tolerated the father's decision to end all visitation. Ironically this was after the judge said his approach was designed to make sure the children kept both parents in their lives. The court never reconsidered its approach after its approach failed to meet this goal. If there was a basis for these extreme orders, there would be evidence and research that not only demonstrates that the alleged alienation is harmful to the children, but that denying them a relationship with their primary attachment figure is less harmful than risking the chance the mother might say something unflattering about the father. In reality there is no research that taking a parent out of a child's life because she might make alienating remarks benefits the child. There is, however substantial research of the tremendous harm done to children by taking their primary attachment figure out of their lives.

Similarly the research establishes long term harm to children of living with an abuser. Since the evidence and research in no way supports the extreme measures, they create the appearance that the court is retaliating against the mother for challenging the court's (mis)understanding of the case. Punishing children because the court disagrees with a mother is improper.

These extreme results illustrate the double standard commonly employed by the court system. There are numerous cases in which the child's father has been found to be a rapist or even convicted of murdering the mother. These abusive fathers usually will receive at least supervised visitation, but numerous protective mothers including Ms. Shockome have been denied any contact with their children. Only a broken system can take disparaging comments by a mother more seriously than rape or murder.

As courts have created more Custody-Visitation Scandal Cases and received justified criticism for their mishandling of these cases, we have seen more retaliatory practices by the courts. Contempt, jail, unfair financial burdens, constant litigation and attacks on professionals helping protective mothers are some of these retaliatory practices. It appears the purpose is to silence and destroy the credibility of someone complaining about the court's mistakes. This creates the appearance that the judge is using his power to promote his personal interest. There are complex psychological explanations for why a judge might take such actions and I am willing to accept that some judges may be unaware of their motivations. This does not matter. If the judge creates an appearance of impropriety, he has violated judicial ethics. Ironically in the attempt to justify past mistakes by silencing victims, the court is confirming the impropriety of its actions.

In the Shockome case the mother was forced to appear without representation after I had to leave the case for medical reasons. The court held the seven-months pregnant woman in contempt and jailed her for a month after she repeatedly said "objection" in her attempt to preserve her right of appeal. Instead of telling the mother she had preserved her right to appeal, the judge took her objections as if she was trying to interfere with the judicial process.

The judge received substantial and deserved criticism after the Newsweek article exposed his mishandling of the case and as a result of the needlessly cruel decision to jail a pregnant mother. I exercised my first amendment rights by writing an article calling for a "Genia's Law to reform the broken custody court system. The judge again retaliated, this time by filing a frivolous grievance against me.

The reasonableness of the judge's complaint can be understood by looking at the only charge the grievance committee refused to persecute. The judge complained that when I thought about the harm the court did to the children I had tears in my eyes. The grievance committee took statements I made out of context and made them into multiple charges. At the start of the investigation I requested that they consult an expert in domestic violence so they could understand the domestic violence issues that are at the heart of the Shockome and Goldstein cases. The attorney said it wasn't necessary because they would believe what I said, but they failed to do so. Much of the complaint concerned my exercise of my first amendment rights. Indeed the referee who heard the case expressed concerns that my first amendment rights were being violated. The grievance committee took the most extreme positions with little or no support in the evidence to argue against my opinions and statements. This is perfectly reasonable in an adversarial proceeding where each side uses the facts and arguments most favorable to their side. It is not appropriate in a disciplinary proceeding. They created an illusion that if they disagreed with my position, even on issues that I am far more knowledgeable about, I have to be a liar and therefore unqualified to practice as an attorney.

The appellate division had a serious ethical problem because they had a fundamental conflict of interest. The appellate division had issued a decision in the Shockome case in which they blindly deferred to a biased judge and they never responded to the serious legal issues raised including the use of the certainty standard for the mother and probability standard for the father. The one factual statement they made in support of their decision claimed the mother's expert witnesses were not credible because none had spoken to the father or children. This mistake proved embarrassing to the appellate division because the experts included the couple's counselor that both parties testified met with both parties as the essential part of her work and the child's therapist. The abuser submitted tape transcripts of his conversations with the child's therapist. Accordingly the appellate division was in a position where following the law and evidence would confirm that their colleagues had mishandled the previous case and failed to review the actual record.

In fairness to the appellate division, this was similar to the case involving pay for judges. There is a conflict of interest, but it has to be decided by the court because there is no one else available. Accordingly it might be ethical to make a ruling against me, but judicial ethics would require that they be careful to demonstrate the basis for the ruling in their decision. They made a decision that totally failed to explain why they reversed the parts of the case the referee got right or why they were ignoring the law and facts that seem to bar the decision to suspend my right to practice. More specifically they failed to explain how I could be disciplined for calling the judge biased when he used the certainty standard for the mother and probability for the father. They failed to respond to the referee's concerns about the violation of my first amendment rights. They failed to respond to the problem of the decision having a chilling effect on the ability of battered mothers obtaining proper representation or the unchallenged evidence that the decision would result in the death of women who stayed with their abuser because they were afraid of losing their children if they went to the broken custody court system. They failed to explain how they could accept without evidence the conclusion of the judge after the parties stipulated that such conclusions could not be used because I was not a party in the Shockome case. They failed to explain how a tape could be admitted into evidence without the authentification that would be required in every other lawsuit in which a judge does not have an interest in the outcome. Judicial ethics required that if they decided to make such an extreme decision they had to at least answer such fundamental questions.

I was a student in Washington during the May Day demonstrations in 1971. The Nixon justice department orchestrated a police riot in which over ten thousand mostly innocent people were jailed and the wholesale misuse of pepper gas sickened thousands more. Many students were arrested walking to or from class. As someone who grew up with a white, middle-class background, this was extremely frightening. We were taught that if something was wrong or someone was creating a danger you should call the police. What do you do if the police are the ones causing the danger?
The courts responded by declaring the arrests illegal and compensating the victims. A few brave journalists exposed the abuses of Nixon and his aides and eventually the public demanded action. Congress responded by starting impeachment proceedings and our democracy was saved.

What do we do when the broken court system is causing the danger?


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