It must be something in the water.
I’ve written several times about Peter Spitz whose wife attempted to kill him seven years ago with three pistol shots to the head before killing his mother. She’s spent the ensuing years in a psychiatric facility from which she’s now in the process of being released.
Peter, meanwhile has been condemned to a lifetime of blindness. Over the years, he’s worked hard at rehabilitation and, for a time had increasing custody of his young son who was placed with guardians when Peter was too disabled to care for him.
One of the most remarkable aspects of Peter’s case is that the guardians have announced their intention of adopting his son. That would mean terminating Peter’s parental rights despite the fact that he has never been found to be unfit or in any way incapable of caring for his son.
That Peter Spitz does not now have full custody of his son looks from here like an outrage. With luck, he’ll still be able to stop the adoption and gradually regain custody of the boy.
Now comes the David Shubert case that’s also pending in Arapahoe County, albeit before a different judge. As I said, it must be something in the water. Is it in fact more outrageous than the Peter Spitz case? I’d say that’s possible. You be the judge.
David and Shirley Schubert married in 2001 in the United States. She already had a son, James, who was 22 months old at the time. James’s father had passed away before David and Shirley married. The pair later had a daughter, Chianne in December of 2004. David was always a caring, hands-on father to both children.
Until 2007, things seemed to be going pretty well, but on June 26, Shirley abducted the children to her native Australia. Three weeks later, David filed for divorce and requested custody of both children.
Since Shirley had fled the country, he had to pursue his remedies under the Hague Convention on the Civil Aspects of International Child Abduction. He filed suit in November, 2007 in Sydney, Australia and, 13 months later the court ruled that Shirley should return the children to David in Colorado where he resided.
She refused. She appealed the order of the Austalian court and in that proceeding too, David prevailed. She then threatened to kill the children and herself, although fortunately she didn’t do so. Under threat of arrest and prosecution for kidnapping, she returned to Colorado to face the district court’s inquiry into custody of the children.
She needn’t have worried. In what must count as one of the most remarkable judicial decisions to come along in a good while, the judge listed all the issues required under Colorado law to be considered in allocating parental responsibility, found that Shirley violated most of them and promptly gave custody to her.
Judge Robert H. Russell did so by the simple expedient of importing his own consideration about custody that’s found nowhere in the statute and allowing it more weight than all the other statutory considerations combined.
His order, issued June 23, 2009, is an act of judicial legerdemain that would impress a Judge Houdini.
For example, the court recited that Colorado statute law requires it to consider “(c) the interaction and interrelationship of the children with anyone that may significantly affect the children’s best interests.”
In that regard, Judge Russell noted that the mother abducted the children, refused all contact between them and David, refused to give him a telephone number to contact them, refused to send him photographs of them and refused to take his calls.
The court noted that Colorado law requires it to consider “(f) the ability of the parties to encourage the sharing of love, affection and contact between the children and the other party.”
Regarding that, Judge Russell pronounced himself “very concerned” about Shirley’s ability to comply with the statute and noted that she had in fact failed and refused to do so.
Colorado statutes also require the court to consider “(g) whether the past pattern of the involvement of the parties reflects a system of values, time commitment and mutual support.”
Again, Judge Russell noted that the mother had at all times resisted sharing parenting with David and that her doing so indicated a lack of mutual support.
Other provisions of the statute require the court to consider whether either parent has (i) abused or neglected the children or (j) abused the other spouse.
As to (i), Judge Russell found no abuse of the children by either party, indicating his complete ignorance of the opinions of many mental health professionals that parental kidnapping of children is itself child abuse. Neither of course did he recognize the abusive nature of keeping young children apart from the other parent for years at a time.
But in any case, he found no child abuse by David.
As to (j), Judge Russell found no spousal abuse by either party, although he did note that Shirley made false allegations of same to the Australian court. That court found those claims to be baseless and Judge Russell correctly stated that she never got around to making them until the Hague case had been decided against her.
What really troubled Judge Russell was “(h) the physical proximity of the parties to each other as this relates to the practical considerations of parenting time.” He correctly observed that Shirley had been living in Australia and David in Colorado, but never wrapped his mind around how that had come about.
After all, it was Shirley’s unilateral and flagrantly illegal act of abducting their children that had caused the dramatic difference in their respective locations. Did it not seem crystal clear to the judge that the fact of (h)’s presence in the statute indicates the legislature’s preference for co-parents to live near to each other? Did it not occur to him that, by making that impossible, Shirley violated the intent of the legislature that in order to keep both parents in children’s lives, they should live fairly close to each other? Apparently not.
So, the judge correctly recited the subsections of the applicable statute and found that Shirley had flagrantly violated many of them. To most folks, that would essentially require him to give custody to David with at most supervised visitation to Shirley.
In fact, other courts in other states have done exactly that based only on the failure of one parent to promote a child’s relationship with the other parent, i.e. those states’ versions of (f) above. In this case, Judge Russell has found Shirley to have violated far more than that single subsection.
In the event, having recited the applicable law, the judge simply ignored it and stated that “additionally,” i.e. a consideration not part of the statute, the mother had been the primary caregiver for the children and therefore she should have custody and be allowed to return to Australia. That is, even though essentially all the statutory considerations militated in favor of David and against Shirley, the judge’s own sense of what’s right – who’s been the primary caregiver – prevailed.
This is a judge, after all who somehow managed to write that “this court has no information concerning whether the parties can revert to their previous ability to make joint decision (sic) currently.”
Really? No information? The facts that she’d abducted the children for two years, allowed no contact between them and their father and made spurious allegations of abuse provides the judge “no information” about her ability to get along with David and engage in joint decision-making? What planet does this guy inhabit?
David reliably informs me that people familiar with international child kidnapping cases were aghast at Judge Russell’s ruling.
That of course was back in 2009. After the decision, Shirley ran back to Australia and proceeded to completely ignore each and every one of David’s rights under the order. The court had ordered certain visitation provisions most of which were to be accomplished by telephone and Skype. She’s refused them all without exception.
David’s also entitled to have his kids during their summer holiday and no less than 25 days per year during that time. It’s never happened.
Shirley is required to consult with David about all major decisions about the children. She’s never done it.
She’s required to send him all pertinent records of their schooling. He’s never received a thing.
By the way, the same judge that found multiple violations of the Colorado statute governing parenting time also stated that he’d had the opportunity to observe the mother and he was “confident that she understands that should she fail to cooperate in performing responsibly in mutal decision-making obligations in the future, she would be required by the Family Court of Australia to answer for her omissions, or be required to return to this Court to do the same.”
Wrong on both counts. Shirley had no more intention of cooperating after the order than she had before it. And neither the Australian court nor the Colorado court has lifted a finger to do anything about it.
It’s not for lack of trying on David’s part. He’s been back in court seeking contempt orders four separate times, but Shirley’s never showed up and her behavior has never changed. He tried to get custody, but was denied. He tried to get expanded visitation but the court ignored that completely.
He’s still trying. He’s got a hearing in the near future to once again try to convince a recalcitrant judge to comply with the law of the state that pays his salary.
Let’s be clear. David Shubert loves his children deeply and always has. Indeed, one of the few things Judge Russell got right was his finding that, even though he’s not James’s biological father, David was, at the time of his abduction, the only father the boy had ever known. The same of course is true for his daughter Chianne.
There is a term for what’s happened – court-approved kidnapping. It’s very simple; the mother kidnapped the children for no good reason – no abuse, no brutality, no neglect. And because the judicial system works slowly (in this case it took two years), she possessed the children to the exclusion of the father. And it is precisely for that reason that, contrary to Colorado statute law, she was awarded custody.
We’ve seen it before, often in adoption cases; just get hold of a child and keep it long enough and some court somewhere will decide it’s yours.
Judge Robert Russell rewarded Shirley Shubert’s blatantly illegal actions by giving her 100% custody of the two children. That – complete custody to the exclusion of David – was what her abduction accomplished; it’s what she wanted all along. That what’s called a court of law put its stamp of approval on her multiple legal violations and distorted Colorado statutes beyond recognition to do so surely set a new low for family courts. That it’s subsequently refused to enforce the meager visitation it awarded David sets the mark lower still.
It is past time for this court to admit its errors and return David Shubert’s children to him.