By Caleb O. Brown
Staff Writer (Snitch)
Custody battles, charges of bias spark nationwide class-action suit
Any child of divorced parents knows the drill. The weekend is over and it's time for Dad to say his goodbyes and send his progeny back to Mom's house. The parents meet up for the handoff at a restaurant, rest stop or any other large concrete structure with a parking lot, provided it's about halfway.
The handoff — awkward, quick and joyless — means moving luggage and a child from one car to another. The kid wants none of the stilted discussion, avoiding the sight of the two most important people in her life exchanging mirthless pleasantries just long enough for Dad to give his goodbye kiss and then pull away.
The marriage wasn't perfect, the breakup wasn't clean, and no one is happy with the result. Still, for many splintered families, the above handoff would be a dream. Some fathers and mothers are trapped in legal battles without end, fighting not for scheduled visitations, but for any visitations. Spending significant time away from their young children has left these non-custodial parents depressed, worried their own young children may begin to forget them. In some cases, the custodial parent realizes the power of wielding a child as an emotional, legal and financial weapon to injure a former spouse.
In an adversarial court system, there are always two sides. In child custody cases, one side — the non-custodial parent — seems to lose more than the other. Sensing a pattern, hundreds of thousands of non-custodial parents are signing on to a nationwide class-action lawsuit that seeks a redress of what they feel are serious, consistent problems and biases in court systems across the country. The end result of those problems, the parents claim, is a consistent violation of the constitutional rights of parents to be parents.
The following Kentucky fathers represent one side of this contentious battle.
The first thing she took was our lawyer
Michael Peters got divorced in 1995. His two kids (neither the ex-wife nor the children will be named here) were 4 and 6 at the time.
Peters won't say precisely that he hates his ex-wife, but he'll say this: "I despise what she does."
Those actions, he says, include: absconding with the children to another state when they were supposed to be with him for the Christmas holiday; telling the kids it's their father's fault she has to go to court; three contempt of court orders for interference with court-ordered visitations; and — the winner by a comfortable margin — moving to another state without notifying him or the court.
Peters says his "personal struggle" has been made worse by a slow family court system that, nearly 10 years later and in spite of regular illegal interference from his wife, has not granted him anywhere near half his children's time.
"It's not equal time, not equal financial support. It's very much stacked. My ex-wife gets the lion's share of my children's time. I've done my part. I've followed the court rules. I've never had a negative issue in my own personal case. The only ground that I feel like I can maintain is when I petition the court. But that's time and money, and there's only a finite amount of that. There's not much incentive to do anything different. You fight so long, and years go by, and it goes on and on."
And fight he has. Peters says he's had to develop several means to get his wife to comply with his court-ordered child visitations.
"With my case, that has been the only way that I can really see my kids," he says. "If I were to do nothing, I would not get to see my kids, even with a court order. There's a well-documented history of visitation interference. I go to pick up my kids and they're not available."
When his ex-wife remarried within a year of their divorce, it was to a man in the military. When he was moved, she went with him, taking the kids and not informing the court, or her ex-husband, that she was doing so.
"She just left, packed up in the middle of the night," he says. "The kids didn't know they were going. So it was this big secret. Three months later, I finally get a call from the kids, but they don't know where they live."
The children were 5 and 7 at the time. It took Peters another three months to learn the location of his children and get a court order to see them. They met in Oklahoma City, spending a few days with each other in a hotel room, but he says it took a year and a half in court to get a physical address for his children.
To deal with other violations that he says are ongoing, Peters sends registered mail to document communication with his ex-wife. With child support checks, he encloses the court-ordered terms of upcoming visitations. Shelling out a few bucks for registered mail is far cheaper than hours of attorney time, which he says has consumed about $30,000 over the past nine years. At $125 an hour, Peters says access to his children definitely carries a pricetag.
"I'd just get angry if I kept a tab on it," he says.
Other expenses have included having off-duty police officers come with him to collect his children, even if it's only to prove the children weren't available when his ex-wife said they would be, and to have a credible witness to testify to that fact.
"We have a colossal case history," Peters says. "They say we have eight volumes and over a thousand pages of case history. It is quite literally a foot-thick court record of all the actions that have passed through there." It would be even thicker, he says, if he'd learned right away to use the tactics he's using now to see his kids.
With registered mail setting the tone for his relationship with his ex-wife and a series of fines and court orders keeping his children visiting regularly, Peters says he shouldn't have to fight so hard in a situation that's already slanted heavily against him.
He also says he loves being a dad and wonders why the court system continues to "just put a Band-Aid on the problem" of bias.
The court seems capable only of dealing with his wife's violations with contempt of court orders and fines or awarding him make-up time for missed visits, he says.
"Make-up time is fine, but it doesn't fix the problem," he says, adding "the court system is so biased in favor of women in general," that it's hard to see how his situation could change.
"I want to see my kids. I want to be an important part of their lives," he says. "It's a frustrating road as an individual, and that's where this class action is very appealing. There is strength in numbers. I'm not the only person. Together we have a louder voice, and maybe we can make a difference. For me, personally, this likely won't impact my situation with my children, but it might help somebody else."
Judgment days
Robert Wilkins has joint custody with his ex-girlfriend, Amanda, of their daughter, Camille. In the last two years — since Oct. 6, 2002, by Wilkins's recollection — he has spent 19 hours with his daughter.
Wilkins knows he's not the best example of a non-custodial parent, but says that doesn't change his right to be one. He says he owns his mistakes.
A few months into dating Amanda, a woman he admits he "had no business with," she became pregnant. He was 30. She was 21. Feeling the obligation he'd helped create for himself, Wilkins and she moved in together. He worked as she stayed home with their daughter. As the relationship began to crumble atop its poor foundation, the pair agreed to separate.
It was all going well until they had to get down to the nuts and bolts of custody of their daughter.
In August 2001, as Wilkins was emerging from a shower, he says, Amanda had taken a sleeping Camille from her bed and was ready to leave the house once and for all. It ended in a Domestic Violence Order against Wilkins.
"We were in a confronation. She wanted to take my daughter who was asleep upstairs." Wilkins says he pulled Amanda's hair in an attempt to keep her from taking Camille from him, but says that was the extent of any physical confrontation.
"I made a dumb mistake," he says. "I've paid for it for three years."
That DVO, he says, was used as a club against him in court as he's tried to fight for some arrangement for regular time with his daughter.
"It took five and a half months for me to even get visitation with my daughter," he says, and that came only after the case was, perhaps mistakenly, bumped into another courtroom, that of Juda Hellman.
"Once I got into Judge Hellman's courtroom, I started seeing my daughter every other weekend and every Wednesday," he says. "Thank God for her."
This went on for seven or eight weekends in a row. Over the same time, his ex-girlfriend's attorney somehow got the case bumped back in front of his original judge, Joan L. Byer.
"Ever since then, I haven't seen my daughter but 19 hours," he says.
The DVO, combined with ongoing allegations of abuse and drug use from his ex-girlfriend, meant Wilkins is stuck without his daughter. All of the allegations, Wilkins says, were thrown out. All except the guilty plea on a DVO, a "nightmare" for Wilkins to overcome.
"Since then, I'd been able to see her through supervised visits, one hour a week at Family Place."
Family Place proved to be an emotional roller coaster for Wilkins. Through a steel door in the lower portion of the building, Wilkins says staff ran magnetometers over his body, a police officer patted him down before allowing him to sit in a 10-by-12-foot room with Camille for one hour.
Those visits, Wilkins says, were often observed by young volunteers who would author reports and submit them to the judge. And though he treasured those hours (among the final 19 he spent with his daughter), the experience proved to be too much for him to take anymore.
"Camille would cry and say, 'I miss my Daddy already.' It was heartbreaking. It was a happy moment when we'd see each other, and then heart-wrenching when she would leave because you'd have one or two minutes until the clock hits 12 and you're just watching the clock go away. You're thinking, 'My God, I'm not going to be able to see her until next Tuesday. How horrible can this be?'"
Wilkins says Family Place staffers would then whisk his daughter out of the room and the "three-day letdown" would commence. The cycle of the letdown after a visit and the buildup over the weekend to the next visit left Wilkins drained.
"I couldn't work," he says. "I couldn't do anything but focus on hatred for her mother, for the judicial system, for her family, for what they'd done. I just had to let it go."
The last time he saw his daughter was during a court-ordered custody evaluation. That evaluation, at a cost of $3,000 and several months, turned out favorably for Wilkins, and he's currently waiting for the judge to decide how to weigh the report. That won't happen until his next hearing in January.
The DVO has fallen off Wilkins's record, but he says more allegations against him are forthcoming.
"They're using new things now — I'm a druggie. I'm a steroid user. I have manic-depression."
Wilkins says he's at least thankful his ex-girlfriend has recanted her claim of child sexual abuse against him. He's hopeful the class action lawsuit will help him "have a healthy relationship" with his daughter.
"I can't get back the time, but I don't want her to be 15, 16 or 17 years old saying, 'Where were you, Daddy?' I want to be able to tell her, 'I was there fighting for you and I was waiting for you.'"
Unstacking the decks
Wes Collins is coordinating Kentucky's class-action lawsuit on behalf of non-custodial parents.
The stress of trying to literally build a home with his wife and two children was too much. His wife took the children and left while he was at work one day. The resulting legal mess and the alienation of his older child have left him jaded about the legal system.
Much of the systemic problems he sees in the court system dealing with non-custodial parents deals with poor controls in how cases are handled and too much judicial discretion. Add what he sees as a prevalent and often open bias against men and he says that's a recipe for the violation of parental rights. He says tapes of his own pretrial hearing in his Fayette County divorce exist, but he's been unable to find them. Fayette is among counties that record pretrial conferences.
Just after the divorce, Collins's now ex-wife was awarded full custody of both children following a hearing in which Collins had no counsel.
A weekend visit from Collins's son ended with a terse phone call in which says his ex-wife's boyfriend threatened to "bust his f***ing head."
He didn't want to return his young child to a home he felt was threatening to him and his son, he told his ex he would call her back to make final arrangements. She did not answer the phone again.
Within days of calling police to report the threat, Collins says he was facing a claim from his wife of refusing to return their son as scheduled.
Collins's attorney asked to be dismissed, and Collins's request for a continuance to get an attorney to represent him was denied in the hearing.
Collins says he attempted to explain his call to police, but was ordered by the judge to undergo a mental evaluation at a facility she chose. After the evaluation, the social worker involved recommended Collins attend her domestic violence class.
"Boy, I sure wish I could rule business in my favor," Collins says. "It's been a nightmare."
Collins hasn't seen his 5-year-old son in seven months, and is now limited to speaking with him by telephone. He says his ex-wife interferes with the scheduled calls.
Legal mumbo jumbo
The nationwide effort at organizing the class action on behalf of the parents is organized by the Indiana Civil Rights Council (indianacrc.org). That group has been so swamped with requests for information, the coordinator of the national class-action effort, Council president Torm L. Howse, is now just sending out an informative e-mail to potential plaintiffs.
The basic parameters for parents who want to be a part of the suit is that they be a legally designated non-custodial parent with a minor child for whom child support is still being paid. The parent must also have never been convicted of any serious abuse or neglect of the child.
Collins says the claims against the courts are fairly broad in attempting to bring abuses to light: the violation of rights of both parents and children and the willful mismanagement of government. The violation of rights, the plaintiffs say, is as simple as freedom of association and equal protections under the First and 14th Amendments.
The Indiana Civil Rights Council estimates — the group calls it a conservative estimate — more than 16 million non-custodial parents could sign onto the suit, which they estimate will seek an estimated $48 trillion.
