Do Family Judges Believe they Can Get Away with Anything?

March 20, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

File this post under “Family Court Judges Think They Can Do Anything.”

First is the “scary clown” case. Here’s Constitutional scholar Eugene Volokh’s take on the child custody case out of Kentucky (Washington Post, 3/18/15).

It seems the mother, Brandy Buchanon wanted the father, Kyle Rainer out of their 6-year-old’s life. So she filed various allegations of domestic abuse that the trial court, after first issuing a temporary restraining order against Rainer, eventually found to be less than credible. But just as the judge was about to downgrade the restraining order, Buchanan introduced into evidence images from Rainer’s Facebook page.

Among the images were a picture of a “scary” clown, a photograph of Father’s living room where a Walking Dead doll can be seen, and a picture of a head of hair with horns projecting from it.

Faced with that, the judge kept the restraining order in place and intact. Rainer appealed and the appellate court reversed the trial judge’s order.

In assessing whether a preponderance of evidence supported the trial court’s DVO order, we must first consider the relevance of Father’s Facebook posts, if any. The posts concerned some of Father’s home interior decorations and some of his personal tastes in television shows and other matters of pop culture. There was nothing to either explicitly or implicitly connect those posts with any prior or future acts of domestic violence by Father.

And, considering all the allegations, the appellate court said the original restraining order had been inappropriately issued altogether.

Eventually justice was served although it’s unclear just how long it took for Rainer to vacate an order that should never have been issued in the first place. How long did his child go without its father because of (a) the judge’s willingness to restrict the father based on the slimmest of pretexts and (b) the length of time it took for the appellate court to overturn obviously faulty orders?

And of course there’s the fact that the overwhelming majority of parents don’t have the money to take a wrongly issued order to a court of appeals. So, while Rainer eventually won, the great majority of parents are forced to swallow family court orders whether they like them or not, whether they’re lawful or not.

My guess is that very fact is what led the judge to be so sloppy in the first place. The idea that a picture of a “scary clown” and other decorations should be sufficient to keep a parent out of a child’s life is not only beyond absurd. It also is plainly contrary to the child’s best interests. And finally, it strongly indicates that this family court judge at least believes he/she can do pretty much anything and get away with it.

Ditto for this case, also courtesy of Prof. Volokh (Washington Post, 3/17/15).

1. Andrea and Kurt were never married, but they have a now-2-year-old daughter, M.A.R.R. After the parents split up, the trial court eventually gave custody of M.A.R.R. to Kurt.

2. But Kurt had a gun collection — four pistols, one shotgun, and six rifles. “The guns are kept in a safe in his bedroom, and the door to his bedroom has a key pad access code on it. He keeps his bedroom door locked when the children are around.”

With regard to Kurt’s gun collection, in its letter opinion the trial court noted that Kurt, Andrea and both of Andrea’s parents testified that guns were kept in a locked safe in a closet and behind a locked door to Kurt’s bedroom. Although Andrea’s father testified that he once saw a gun in the garage, the court found that he had no specific information about this incident and no one else corroborated it.

However, then the court found that it did “not wish to minimize the concern it has for the child’s safety, and finds that it is not in the best interests of a child to have multiple guns and ammunition in a home.” In the judgment order, the court ordered Kurt to remove all guns and ammunition from his home within 24 hours and ordered that guns were not permitted back into the home at any time until the child has attained the age of 18.

Let’s see. Kurt is obviously a good enough parent that he was awarded custody of the child. As is his constitutional right, he owns firearms. The uncontradicted testimony by witnesses on Kurt’s side and those against him was that he’s scrupulously safe with his guns keeping them behind two locked doors. And of course there was no evidence that anything untoward had ever happened regarding his guns.

Given all that, the court decided that it would restrict his exercise of his Second Amendment rights and apparently conditioned his custody of his child on Kurt’s removal of his weapons from his home.

Needless to say, Kurt appealed and the appellate court overturned the trial court’s ruling.

3. Kurt appealed, arguing, in relevant part, that the no-guns order was unjustified and violated the Second Amendment. Andrea appealed, arguing in part that one of the custody factors, “the mental and physical health of all individuals involved, favors her because while there was no expert testimony of Kurt’s mental health, [his gun collection, among other things,] indicates that he has mental health issues and is a risk to M.A.R.R. We are not persuaded.”

No, really. Andrea actually claimed that owning guns reflects adversely on one’s mental health. So I guess the Founding Fathers were crazy, along with 47% of present-day Americans. Of course the court made short shrift of that nonsense.

4. The court quickly rejected this argument of Andrea’s, holding that “the fact that he legally collected guns has no bearing on his mental health status.” And it accepted Kurt’s argument that he shouldn’t have been ordered not to possess guns…

Based upon the evidence presented at trial, as well as the trial court’s own specific findings, it was not reasonable for the court to place such a restriction on Kurt’s lawful possession of ammunition or guns without any evidence of danger to the child.

Once again, it took an appellate court to insert basic legal concepts and common sense into a trial court’s decision. Both these cases strongly suggest that family courts are used to acting without oversight by higher courts. In the process, they seem to think the law is something they can dispense with when they see fit. My guess is they’re mostly right.


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