Prodded by Sen. Mark Leno and other lawmakers, the state Joint Legislative Audit Committee voted Wednesday to investigate the family courts in Marin and Sacramento counties.
The audit will focus on the use, and potential misuse, of court-appointed specialists in family-law disputes, such as mediators, investigators and therapists.
Critics say such appointees can form incestuous and incompetent networks more concerned with generating fees than helping children through painful custody fights.
“It becomes a service mill, a cottage industry of sorts,” Leno said in an interview Wednesday. “Maybe state law needs to be changed.”
Marin and Sacramento counties were chosen for the audit because of the number of litigants reporting problems and filing complaints, said Ali Bay, a spokeswoman for Leno. But any changes recommended by the auditors could inspire new statewide legislation.
The audit is expected to take four months and cost about $160,000. The start date has not been determined.
Leno said that because of the state budget crisis, the audit committee – which consists of seven assembly members and seven senators – could only approve two audits Wednesday. Six were under consideration, he said.
Leno, a Democrat representing Marin and parts of San Francisco and Sonoma County, said the committee voted unanimously for the family court audit, demonstrating the widespread doubts about the system.
“People are concerned the health and well-being of children might be at risk,” Leno said. “I’ve had mothers and fathers in tears in my office, telling me their sad stories. Minimally, we have to look into this and see what the truth is.”
State audit triggers new scrutiny of family courts
In January, State Auditor Elaine Howle released a long-awaited report on the family courts in Marin and Sacramento counties. In measured, bureaucratic language, Howle laid out the problems her office found. Her audit followed years of complaints about family court operations.
In Sacramento, Howle said the court failed to “demonstrate that its staff met the minimum qualifications and training requirements to perform mediations and evaluations.”
Others use less measured language.
Fourteen-year-old Suraj Nair, in a video that he recorded and sent to his father, said that he was “kept absolutely in the dark about everything going on in the court. It’s ridiculous because, you know, it’s my life, my family that’s being taken away from me.” Suraj hadn’t seen his father, Jayraj Nair, in two years.
On Feb. 20, 2009, then-12-year-old Suraj was removed by police in handcuffs from his father’s home and placed, against his will, in the full custody of his mother, by court order. This custody case has been playing out in neighboring Placer County, but involves multiple attorneys and court specialists active in Sacramento.
Jayraj Nair has filed numerous complaints against a court-appointed therapist who recommended Suraj be placed with his mother, alleging professional misconduct. That therapist, in turn, has sued Jayraj Nair for defamation for comments he has made online and to a radio reporter about the case.
In November, the Board of Behavioral Sciences forwarded Nair’s complaint to Attorney General Kamala Harris’ office, though her office does not comment on pending complaints.
A Sacramento County litigant, Betsy Vail, has also had a BBS complaint against the same therapist sent to the AG’s office.
“The therapists for the court sell their testimony to the highest bidder,” Vail said. “There is so much collusion involved that it’s almost rare to find a therapist who will accurately convey what the child is saying.”
One of the people who auditors interviewed for their report is Mike Ferrini, who served as Family Law resource specialist for the Sacramento courts from 2005 to 2008. He painted a picture of a broken system.
“There are a lot of things wrong with the way the referral system works,” he said, and questioned the court’s process of issuing restraining orders for domestic violence and other reasons.
“There’s no real solid evidentiary standard. The orders are often hearsay, there’s no requirement for physical evidence.” He added that often “it’s a power play to get immediate custody of the children.”
The audit was requested nearly two years ago by Sen. Mark Leno, D-Sacramento. While it had a longer to-do list for Sacramento than Marin, it ordered both courts to improve their processes for ensuring court-appointed specialists had the proper credentials, and to do more to ensure complaints are dealt with in a timely and fair manner.
In a statement, representatives from the Sacramento Superior Court said: “The court has met with the judges and management on each of the recommendations made by the State Auditor and has already begun implementing a great majority of the recommendations. Other recommendations will be implemented over the next year. We will advise the bureau of our progress concerning the recommendations over the course of the next year through status reports.”
But the head of the Marin Courts characterized the audit as much ado about nothing.
“Had they found evidence that we were breaking the law or doing something grossly unfair, their ethical duty would be to scream that loud and clear in their audit,” said Terrence Boren, the presiding judge of the Marin courts. “None of these things deals with the fundamental fairness of the process or with the quality of justice.”
Boren said the Marin courts are implementing the audit’s recommendations, such as doing a better job vetting the qualifications of court-appointed mediators. He said the scope of the report was not what court critics, such as the Marin-based Center for Judicial Excellence, had hoped. For instance, he said, the audit found only one official complaint against the Marin family courts over the last 11 years.
Leno has dueled publicly with court officials in Marin about their response, but praised officials in Sacramento.
“The Sacramento court, on the other hand, said, ‘Yes, we recognize that there have been problems,’” Leno said.
Leno also added that the close look at the family courts was not yet complete.
The state auditor will be checking in on both courts in two, six and 12 months to see how they’ve done in complying with the report’s recommendations. Leno said he hoped the courts would improve, especially when it came to training and certifying court-appointed specialists, and in tracking and dealing with complaints.
“Keep in mind, these are people making life-and-death decisions, and making a lot of money,” Leno said.
But when asked if he was considering legislation to mandate these changes, he said, “It’s a little early for that.”
Another legislator who has been following the situation is Assemblyman Jim Beall, D-San Jose. He, too, is keeping his powder dry, for now, noting “there wasn’t a lot of enthusiasm” for his earlier legislative efforts.
In February 2009, Beall introduced a bill designed to bring a measure of standardization to the courts. Specifically, he tried to take on a controversial theory called “parental alienation syndrome,” or PAS.
Under this theory, one parent can brainwash a child into believing things that aren’t true in order to alienate them against the other parent. Mental health professionals disagree about the viability of PAS, with some saying it is a valid theory and others claiming efforts by one parent to alienate a child against the other backfire or have no effect far more often than they succeed.
In any case, there is no standing of PAS in California law. But this hasn’t stopped courts from using PAS in custody rulings.
Beall’s bill would have barred a “court from relying upon an unproven, unscientific theory,” including “alienation theories.” It made it out of the Assembly on an 80-0 vote but died in the Senate after he decided not to take it before the Senate Judiciary Committee. He said his bill was gutted in Assembly Judiciary, and he decided to let it die when his efforts to restore it were unsuccessful.
“They took everything out of the bill, everything about parental alienation,” Beall said. “It was a failure on my part. We had hundreds of people testify and write letters, but they weren’t able to convince the Judiciary Committee.”
Vail said PAS came up in her own legal case. The litigation started when her current husband tried to adopt her daughter, Rebecca Knox, then 12. Knox said she hadn’t seen her biological father since she was four, and the few memories she had of him involved him being violent and abusive.
Yet, as Knox testified in front of the California Commission on the Status of Women last August, a therapist appointed by the Sacramento family court ordered her to reunify with her biological father against her will. Her testimony can be viewed online in archive maintained by the California Channel (www.calchannel.com).
“I told her many times that I hated him, he physically abused my family, and I would never choose reunification with him,” Knox said in her testimony, describin
g a meeting with the therapist the previous year. “She grabbed me by the wrist and started to drag me out of her office to force me into a small room with my biological father.”
Knox continued: “She turned around and looked at me with a face of pure hatred and disgust. She walked towards me and put her cheek right against mine and said she would charge me with contempt if I did not do reunification with my biological father.”
Suraj Nair has documented complaints about the same therapist — and several others — in a series of letters and videos sent to his father. He tells his father that he wants to be with him and not with his mother. He describes being forced into numerous therapy sessions, and said that he fears being drugged. If he is not free by next week — Feb. 20, the two-year anniversary of being forced to live with his mother — he says ominously in one letter that he will “take matters into my own hands.”
Ed Friedberg, an attorney for the therapist, notes that several courts have ruled against Jayraj Nair, whom he contends has been trying to sway decisions he doesn’t like by filing bureaucratic complaints.
The restraining order has been upheld on appeal, Friedberg noted. Jayraj Nair was also ordered to pay $75,000 in attorneys’ fees to his ex-wife because of his “repeated attempts to frustrate both the spirit and the letter of the Court’s rulings,” according to a Dec. 29, 2009, opinion issued by the Third District Court of Appeals.
Friedberg said that he is well aware that Suraj does not want to be with his mother, but that this needs to be taken in the context of his father’s influence.
“He’s intelligent, but that doesn’t mean he can’t be indoctrinated or brainwashed,” Friedberg said.
Jayraj Nair tells a different story, one of a son who is wilting in an environment where he doesn’t want to be. At the time he was taken away, Jayraj said, Suraj was already in the ninth grade, two years ahead of most kids his age. Two months earlier, he had won the statewide ninth grade division of the 2008 CalChess Grade Level Championships, going undefeated in the tournament where the other top players were two years older than he was. He was also accepted to Stanford University’s Education Program for Gifted Youth (EPGY), a selective online program for exception high school students, and in the fall of 2008 received all “A”s there, including one in AP Physics, a course more commonly taken by high school seniors.
Two years later, according to Suraj’s letter, he has given up chess and music lessons, and he’s still in ninth grade.
“I’ve lost so much valuable time,” he writes.
“Nobody believes that this can happen to a family like ours,” Jayraj Nair said.