California Family Courts Helping Pedophiles, Batterers Get Child Custody

Attempts to curb the system's capacity for enabling abusive parents have thus been perceived in the past as antimale activism. When state Assemblyman Jim Beall, a San Jose Democrat and chair of the Assembly's Human Services Committee, introduced legislation in 2009 that would have banned the use of Parental Alienation Syndrome in California family courts, strong opposition from fathers' rights groups helped doom the bill.

Some observers say the family courts can be meaningfully reformed only by improving their methods of fact-finding, perhaps through introducing procedures or personnel borrowed from the criminal courts. Seth Goldstein, a former police officer and investigator for the district attorney's offices in Napa and Santa Clara counties who now practices family law, suggests creating interdisciplinary panels — composed of a range of professionals with expertise in child abuse and domestic violence, such as doctors and social workers, or former prosecutors and police officers — to thoroughly evaluate abuse allegations when they arise. "The way that the courts have to work is evidence-based, not theory-based," he says.

Courtesy of Joyce Murphy

Joyce Murphy (right) fled California with her daughter because family-court officials wouldn’t listen to her accusations against her ex-husband. He was later sentenced to prison for sex crimes.

Courtesy of Califonia Department of Justice

Rex Anderson (left) and Henry “Bud” Parson were both convicted of child molestation after family courts awarded them custody of their daughters.

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Geraldine Stahly, a psychology professor at California State University at San Bernardino, likewise says that the family courts need to be revamped so as to devote more attention to evidence — as do other courts of law — rather than the opinions of individuals such as psychologists, mediators, or even judges. "I would like to see judges relying a lot less on psychological evaluations and a lot more on the facts of a case," she says.

What is the likelihood of such changes? With limited audits of two counties' family courts complete, and a third one on the way, it appears that government officials are starting to pay attention to this little-scrutinized branch of the judiciary. Meanwhile, some of the dramatic mistakes of California's family courts have begun to resonate with the public. One such case is that of Katie Tagle, a Yucca Valley woman who paid the ultimate price for the system's lapses.

On Jan. 21, 2010, Tagle appeared before San Bernardino County Family Court Judge Robert Lemkau to ask for a protective order against her ex-boyfriend, Stephen Garcia, who shared custody of their 9-month-old son, Wyatt. Over the previous few days, Tagle had received disturbing messages from Garcia threatening to kill their son if she didn't reunite with him. She described "e-mails saying that [Garcia is] going to take his life and our son's life at the lake the next time he gets him, and if he doesn't do it that day, he will finish the job later."

Lemkau refused to modify the joint custody order that was in place. "My supposition, ma'am, is that you're lying," he said. "But if I'm incorrect, you can always bring another ex parte motion, but don't misrepresent the situation. If you're lying about this, there's going to be adverse consequences."

Adverse consequences were imminent, though not the ones Lemkau imagined. Within two weeks, Garcia sent Tagle a suicide note while Wyatt was in his custody. When police tracked him down, a car chase ensued through mountains above San Bernardino. Just after 1 a.m. on Sunday, Jan. 31, Garcia shot his son, and then himself.

The community's reaction was swift. Picket lines formed outside Lemkau's courthouse. In the fall, when he was up for re-election, he lost his seat to James Hosking, a deputy district attorney whose upstart campaign was fueled by public outrage over the case.

Lemkau could not be reached for comment. His phone number and address were redacted from campaign forms filed in San Bernardino County during last year's election, and messages sent to the e-mail address listed for his campaign were not returned. On March 3, 2010, at another hearing in family court, he apologized to Tagle and said he could not have predicted what would happen at the time he refused to issue the restraining order, the Daily Press of Victorville reported. "I deeply apologize for my comments to you," he said, according to the newspaper.

Hosking, who just ascended to the bench in January, said that while Tagle's case presents a clear picture of a family court failing to assess dangers to children, the question of systemic reform is more complex. At bottom, he says, the courts are "concerned with trying to predict future behavior," a task at which people in any profession have never excelled. "Family law judges like myself face difficult decisions every day," Hosking says.

Speaking through tears today as she recalls her son's death, Tagle, who has moved to Las Vegas, talks about the reform she would most like to see: a stripping of the legal immunity enjoyed by judges, evaluators, and all the other personnel who make up the complex apparatus of the state's troubled family courts.

At present, litigants are barred from suing such court employees for official misconduct under the doctrine of judicial immunity that applies to judges in the civil and criminal courts. Evaluators and mediators enjoy similar protections with respect to their court functions. When decisions about child welfare turn out to be disastrous, parents like Tagle have no recourse.

"If they had no immunity, they would think twice," she says. "It was [Lemkau's] job to protect our son, and not give him to the person who admitted to me, multiple times, in e-mails, that he was going to kill our son."