Mom’s Suit Against Judge in Child Custody Case a Red Herring

December 9, 2013 by Robert Franklin, Esq.

This case has gotten the attention of the New York news media, mostly because of the unusual tactics used by the mother (New York Post, 12/2/13). Those tactics allowed bottom-feeder news outlets like the Post to spin the facts to suggest scandal where there likely is none.

Maggie Rhee Karn has sued the judge in her child custody case against her soon-to-be-ex-husband Kenneth Karn. Her reason? The judge took too long to make a final decision in the matter. And indeed, the case does raise issues that many litigants are forced to grapple with. The Karn case has taken over three years and is still ongoing. Maggie claims that’s partly because the longer the case drags on, the more money is made by guardians ad litem, psychologists, custody evaluators and the legions of other experts routinely employed in contested custody matters.

I don’t necessarily argue with any of that, at least as a general rule. It’s true that child custody cases, when the parents can’t agree, last too long and cost too much. It’s also true that parents who vigorously contest custody tend to be parents with the money to do so. The overwhelming majority of child custody cases are agreed by the parents and most of them don’t even employ attorneys. The reason is that they can’t afford lawyers or the process of litigation once they’re hired.

That usually means that, when lawyers are involved, there’s enough money to pay them, and that supply of money tends to expand not only what the lawyers do, but includes all those other experts as well. I suppose it’s a corollary to Parkinson’s Law, something like “In child custody cases, work expands to absorb the money allotted for it.”

And of course, all that work takes time, so, whether Maggie Karn knows it or not, three years in a hotly contested custody case is not the least bit unusual.

Still, as far as it goes, she’s got a point. We ought to be able to get child custody decided far quicker and far less expensively than we do. The best way to do that of course would be to presume equal parenting time for parents who are fit to care for their children. That would take the great majority of the acrimony out of child custody fights, as a considerable body of social science on the matter demonstrates. And the less conflict there is, the less time and money are required to dispose of a case.

Another effective measure would be to simply remove most child custody cases from the legal profession. The simple fact about 95% (or so) of child custody cases is that they don’t involve legal issues that need to be resolved by the legal system. Oh, of course there are those that do. If there’s a real issue about paternity, for example, legal rights and responsibilities come into play and should be dealt with judicially. If real issues about fitness are involved, those too should be adjudicated by lawyers and judges because parental rights are legal rights and must be decided by the judicial process.

But those cases make up a small percentage of all the child custody cases courts deal with every day. Again, most parents agree on custody and don’t even hire lawyers. But more importantly, the issue of what post-divorce parenting arrangement is best for the children is not, at its core, a legal determination. It’s a decision that’s best informed, not by a knowledge of the law and legal processes, but by a knowledge of the social science on child welfare – a science I might add of which judges and lawyers are astonishingly ignorant.

So Maggie Karn has sued Referee Marva Burnett, a step that (a) has no chance of success and (b) reveals something about Maggie Karn.

It turns out that Maggie is one of those parents who’s, shall we say, not so good at taking responsibility for her own actions. You see, Kenneth has had temporary custody all this time with Maggie being relegated to the unenviable position usually occupied by fathers. That is, she’s got every-other-weekend visitation with their daughter.

How’d she come to play the daddy role in her custody case? Well, apparently one of those guardians ad litem Maggie so dislikes reported to the judge that, if she were given custody, Maggie would move away with the child. Apparently that would have meant Kenneth would have had a hard time seeing his daughter and probably that the nine-year-old would have had to change homes and schools. Judges usually like kids to have stability in their lives so that played a significant role in the decision to give temporary custody to Kenneth.

Likewise, Maggie’s court filings demand sole custody for her while Kenneth’s request equal parenting time for Mom and Dad. That plus the GAL’s findings indicate a strong preference by Maggie to marginalize Kenneth in his daughter’s life, while he seems to want to ensure that both parents maintain meaningful relationships with their child.

So, part of Maggie’s angst about the case stems from the fact that the judge is holding her accountable for her actions. That doesn’t seem to sit well with her.

As to the time it’s taken for this to play out,

Kenneth’s attorney, Cheryl Solomon, told The Post that Maggie is partly to blame. Solomon noted that the mother has switched counsel twice and filed appeals that have slowed down the process.

Ah, comes the dawn. It turns out that, when a litigant makes a habit of firing her lawyers and filing appeals that have little hope of success, it takes time. So this is less a case about a malingering judge than it is about a mother who can’t see why she should bear the consequences of her own actions.

It doesn’t make much of a story when told that way, which is why the Post didn’t pay attention to that angle. A mother scorned by a callous court system plays so much better in Flatbush.

But here’s a prediction: Maggie Karn won’t get sole or primary custody of her daughter. She’s already proven herself opposed to Kenneth’s having a meaningful relationship with his child and she’s sued a judge for not moving the case more quickly when it’s her own actions that have slowed things down. That all indicates a mother who has difficulty with the concept of personal responsibility — not the finest parenting qualification.

We’ll see.

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