The state is threatening to subpoena family courts in Sacramento and Marin counties to force them to fully cooperate with an audit investigating how those courts decide where to place children at the center of custody disputes.

State Auditor Elaine Howell has been seeking access to court records since July, in response to concerns raised by child advocacy groups that allege the family court judges are overly chummy with their appointed investigators and return too many children to dangerous parents.

Howell accuses the courts of delaying the audit, which was mandated by the state Legislature. She has told the Judicial Council of California – the policy-making arm for state courts – that her office will issue subpoenas unless the courts allow "full and unfettered" access to the records requested.
The Judicial Council responded that the Marin and Sacramento Superior Courts want to cooperate, but have concerns about how the probe will be performed and the types of documents the Bureau of State Audits wants.

"The courts have never opposed such access," Mary Roberts, the Judicial Council's general counsel, wrote in a letter to the auditor's office this week. Rather, she said, court administrators want to make sure they protect confidential and sealed documents in family law matters. "We do not believe that subpoenas are necessary" to complete the process, Roberts said.

The audit is a response to allegations of conflicts of interest between Sacramento and Marin family courts and the court-appointed investigators who help judges decide custody disputes.

One of the groups raising concerns is the California Protective Parents Association in Sacramento, a judicial watchdog and child advocacy group. The group has charged that judges are too friendly with some of the attorneys, psychologists and others who evaluate custody disputes in Sacramento and Marin, and based on that association, are sending children back into dangerous situations.

In many custody disputes, the parent with the most money to pay evaluators gets a favorable result, even if he or she has a background that includes spousal battering or accusations of child sexual abuse, the group charges.

"This is a very influential cottage industry that has sprung up of professionals who are completely unregulated," said Kathleen Russell of the Center for Judicial Excellence, a Bay Area watchdog group that also urged the audit.

"We don't have evidence of kickbacks, but this is very much a clubby environment, particularly in Sacramento and Marin counties."

As a result, she said, "it is widespread practice for children who have been beaten and raped to be placed back with the abusive parent."

Philip Carrizosa, a spokesman for the Judicial Council, said he was unfamiliar with such allegations.

"But it is our hope that if these are issues in either of the two courts, they'll be corrected during the audit process," he said.

Among other things, the audit would review procedures and standards the courts use to investigate custody disputes, the backgrounds of court appointees and how they are selected and paid.

State Sen. Mark Leno, D-San Francisco, said he requested the audit after hearing "heartbreaking stories from mothers, in particular, who said their child was wrongly placed in the custody of an abusive father."

"We need to look at the broader issues of what is going on in the family courts of Sacramento and Marin counties,"
Leno said.

The Sacramento court already is facing legal scrutiny from a federal lawsuit charging that the system is overburdened and has neither the time nor resources to protect the children it oversees.

Russell, of the Judicial Excellence center, agrees. Because judges have so little time to evaluate each case, she said, they are inclined to make decisions based on the recommendations of favored evaluators.

But the key issue in the audit, Russell said, is the alleged lack of oversight of court appointees. "We know there are some very good and competent custody evaluators, but we believe the audit will show virtually no oversight or accountability."

Leno said he wants the audit to go forward, but stopped short of accusing the Judicial Council of stonewalling.

"I don't want to pass judgment on them yet," he said. "They may feel that they are doing their due diligence on behalf of the courts. But the more smoke they put up, the more likely that there is a fire."

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