Father Defeats Bogus Guardianship of His Sons

May 1, 2014 by Robert Franklin, Esq.

Sometimes the anti-father bias of courts and the press is so obvious, it fairly screams from the page. But, while it’s obvious to many of us, to others it’s like the elephant in the living room – huge, but completely unseen. People’s ability to not see what’s squarely in front of them never ceases to amaze me. Here’s one example (Albuquerque Journal, 4/30/14).

It’s an article by Joline Gutierrez Krueger and she gives it the tone of a deeply and carefully considered piece. But she’s either doing exactly what I said – missing the obvious – or she’s going to great lengths to avoid saying what she knows.

If Krueger’s “take-away” is that “the law can’t always make things right,” then she’s just saying what everyone already knows. Or maybe her point is that family life can be complicated to the extent that fathers and their kids don’t always see eye to eye. But again, there’s nothing unusual about that.

My guess is that what Krueger wants her readers to conclude from her article is that this thing called “fathers’ rights” can be a serious inconvenience, particularly when it conflicts with children’s desires. To me her piece looks like a thinly-veiled slap at fathers. Dads, they’re always getting in the way!

The article is about a woman named Ruth White-Kitchen from Grady, New Mexico. She married Carl Lunsford who lived about an hour outside of Dallas. The two lived in his home town of Pilot Point, Texas and had five children, the youngest two of whom are Adrian and Adam Lunsford. But in 2002, they got divorced and, in the first hint that Krueger sees fathers’ rightful place as somewhere out of the family picture, she writes, “When the marriage soured in 2002, White-Kitchen packed up her youngest boys and returned to Grady.”

“Her youngest boys?” No, actually the children were theirs, not hers. And her act of having “packed up” the children and moved 450 miles away is noticeably devoid of detail. There was a divorce; we know this because there was a child support order. So did White-Kitchen get leave of court to move away, thereby depriving Lunsford of the ability to see his children regularly? Did he try to prevent her? Was he unable to do so due to a lack of funds? He’s a mechanic, so that may well have been the case, but Krueger doesn’t think her readers need to know those details that could cast White-Kitchen in a less than favorable light.

Come to think of it, Krueger never did that thing journalists so often do – pick up the phone and call someone with information about the subject of her article. As we see so often, she was content to let Carl Lunsford remain voiceless.

White-Kitchen was diagnosed with cancer in 2006 when Adam and Adrian were 10 and eight respectively. She succumbed to it in 2012. So of course that meant the kids went to live with their father in Texas, right? Wrong.

It seem that neighbors of White-Kitchen in Grady, Stanley and Kelly Jones had helped care for Adam and Adrian during her illness and, when she died, they decided they had some sort of legal rights to them. Just where they got that notion I couldn’t guess and Krueger only gives one suggestion.

It was her dying wish for the boys to remain in Grady, if they chose to, said attorney Richard Queener of Clovis.

Krueger, apparently along with White-Kitchen, seems to think that her “dying wish” had some legal effect. It’s as if the two believe the children are objects, property, assets of the decedent’s estate, to be willed to whomever White-Kitchen wished. Into the bargain, it looks like the Joneses thought the same thing. Otherwise, why’d they do what they did next?

There’s no serious doubt in the law that, once a custodial parent dies, the next person in line to care for the children is the non-custodial parent. After all, the U.S. Supreme Court has said time and again that states may not interfere in parent-child relationships without first proving the parent to be unfit. No one had done any such thing regarding Carl Lunsford for the good and sufficient reason that he seems to have been a pretty good and responsible father, at least insofar as he could be at a distance of 450 miles.

The boys spent summer and holiday vacations in Pilot Point with their father, often working side by side with him in the mechanic shop he owns…

Both attorneys say Lunsford’s fitness as a parent was never in question. While the boys’ mother was alive, Lunsford paid $260 a month in child support, Queener said.

So how was it the Joneses decided they should have Adam and Adrian? I can’t guess, and Krueger, who once again didn’t ask that obvious question, doesn’t tell us. But whatever the case, they went to court and had themselves appointed guardians of the two boys.

It’s here that Krueger’s lack of inquisitiveness undoes her. The simple fact is that children with a fit father don’t need a guardian; they’ve got him, after all. And yet the Jones’s motion to appoint them was granted by a New Mexico judge. How was that possible? Again, Krueger didn’t ask the obvious question, but it seems perfectly clear what happened. The Joneses lied to the court.

Just what they said, I can’t know, but what they can’t have said is any form of “Judge these kids have a fit father in Texas with all the rights the Supreme Court says parents have, but we want these two boys anyway.” Indeed, it’s hard to see how they could have acknowledged his existence to the court at all.

And sure enough, that’s exactly what it looks like happened.

Back in Pilot Point, Cliff Lunsford had made plans to travel to Grady to take the boys home with him after their mother’s funeral. But on the day of the funeral, he was served with a summons from the 9th Judicial District in Clovis notifying him that the Joneses had been appointed temporary guardians for his sons.

The boys were staying put.

“My client had never met these people. He had no idea who they were,” said Lunsford’s attorney, Eric Dixon of Portales. “He wasn’t given the opportunity to talk with his children or talk with anybody else. It was a fait accompli.”

Stated another way, he wasn’t given notice of the guardianship proceeding. And if the Joneses had let anyone know he existed, he would have known about it and had the opportunity to intervene and make his existence and his wishes known. But none of that happened.

What was it, a few days between White-Kitchen’s death and her funeral? Those boys didn’t need guardians during those few days. They didn’t need guardians at all. They had a father who could have made any decisions necessary to ensure their protection and care.

Put simply, what the Joneses did was a power play. They wanted to keep Adam and Adrian so they rushed to court to do the one thing they could to come between a father and his children – establish a temporary guardianship. They apparently did so fraudulently, although it’s hard to know exactly what they did and didn’t tell the judge.

Again, these issues virtually shout from the page to be considered, but Krueger’s not interested.

Lunsford of course went to court immediately to stop the bogus guardianship in its tracks. But, as we see as a matter of course in child custody cases, temporary orders have a way of becoming permanent. They create “facts on the ground” that courts are loath to overturn later. And so it was here. So intent was the judge on wresting children from their father that he simply ignored the law and ordered the guardianship made permanent.

In August 2012, and after several delays caused by the recusal or excusal of several judges, state District Judge Drew Tatum in Portales ordered that the Joneses’ guardianship be made permanent under the Kinship Guardian Act. Tatum did so citing “extraordinary circumstances,” even though the boys had not resided with the Joneses for 90 days before the petition was filed, nor was the boys’ father unwilling or unable to care for them – both required under the Guardianship Act.

The law. It can sure be an inconvenience. So, when the New Mexico Guardianship Act required certain things to be proven that weren’t and in fact couldn’t be, Judge Tatum just ignored the law in order to get to his preferred result – that a fit father not have custody of his children.

He did so citing the fact that Adam and Adrian were doing well in Grady and wanted to remain there. Those would have been appropriate considerations in a custody hearing, but that’s not what this was. Custody cases involve two parents who enter the fray with equal rights to their kids. In that situation, courts consider the child’s best interests and, if the child is old enough, his/her wishes in the matter.

But this was not a custody hearing and the two parties were not on equal footings regarding the custody of the children. Lunsford is their father; the Joneses legally are strangers to the whole affair.

Fortunately, a New Mexico appellate court and the state Supreme Court had judges who can read.

Last November, nearly two years after the custody battle had begun – and while the boys continued to live with the Joneses and visit their father – the state Court of Appeals reversed the District Court order, thus dissolving the Joneses’ guardianship. In February, the state Supreme Court chose not to hear the case, meaning the appellate decision stands.

So in the end, the right thing was done, even if it did take two years of legal wrangling that should never have occurred. During that time, it seems Lunsford’s once-good relationships with his sons went south. Krueger admits as much but seems to think Lunsford should have just rolled over and allowed the Jones’s plainly illegal bid for the children to go forward uncontested.

But Lunsford did the right thing and he’s to be commended for it. The wrongdoers in this whole sorry affair are the Joneses who never had a legal leg to stand on and their lawyer who should have told them so. And of course there’s Judge Tatum who should have known the simple black-letter law and abided by it.

Plus, there’s Krueger who, apparently to this day, has never grasped what really happened in the case about which she wrote.

Ms. Krueger, this is a case about how easy it is to deprive a fit father of his children. See? Even people with no possible legal claim can do it.

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