In 1997, Judith Lester (age 36) was a local Sacramento, California radio
show host and single mother of a ten-year old daughter (Brittany). James
Lennane (age 58) was a successful businessman (worth $35-50 million dollars)
from Sacramento and living with his wife and eight-year-old daughter (Jamey)
in Naples, Florida. He made frequent trips to Sacramento for business
and family purposes. Lester invited Lennane to be a guest on her show.
He appeared, and took her out socially afterward. They engaged in sexual
intercourse but did not continue their relationship, and Lennane returned
to Florida. Six weeks later, Lester informed Lennane that she was pregnant
with his child. He urged her to get an abortion. She refused, but underwent
DNA testing that confirmed paternity. She then filed a Uniform Parentage
Act paternity complaint with motions for custody, child support, and health
and dental costs, for their as-yet unborn daughter, and attorneys'
fees and costs. She requested sole physical custody and joint legal custody.
She also said she now was unemployed. Lennane responded to her suit conceding
paternity and requesting an evaluation regarding custody and support issues.
He told the court that he would not relocate to Sacramento and demanded
the court decide now whether the child lived with him in Florida or California.
He argued that it was necessary to begin the evaluation before the birth
of the child to prevent a de facto custody situation from occurring. (In
other words, since she was birthing the child, the child would automatically
be with her before he could begin an evaluation.) Thus, the proverbial
gauntlet was thrown, and the battle begun…
Lester opposed Lennane's requests for an evaluation and custody, and
now demanded she be awarded sole legal and physical custody. She also
claimed she feared the child would be born early because of all the stress
Lennane had subjected her to, including his demands for an abortion (including
a late-term abortion) and having a private investigator invade her privacy.
In May, 1998, Family court Judge Charles C. Kobayashi heard the parties'
motions, and refused to determine whether the child belonged in Florida
or California. "[Lennane] can stay here and parent the child with
the mother if he wants to. He could move here. He's the one that came
to Sacramento and impregnated [Lester] who is now going to bear this child.
Why should we suddenly take the child away to Florida because he lives
there? The sexual intercourse took place in Sacramento. The jurisdiction
is here. If you want to decide the issue of whether [who should have custody],
we could do that in Sacramento."
In June, Lester and Lennane began confidential mediation, but after the
second session, Lester walked out claiming it was too stressful. She went
into labor and delivered their daughter Ava. Lennane was not present during
the delivery. Ava's birth was premature, and she was placed in an
incubator for five days. Two days after the birth Lennane asked the judge,
without Lester present, to give him immediate joint legal and physical
custody of Ava. Or, he suggested, that Ava live in a "nesting residence"
and Lenanne would visit there for 12 hours of the day and Lester would
visit there the other 12 hours of the day. The judge refused his custody
requests, but granted the request for non-confidential mediation. Because
of the precarious health of the child, he granted temporary custody to
Lester and one hour visitation per day to Lennane. The judge also ordered
a custody evaluation by a court-appointed expert.
Lennane did not like Judge Kobayashi's orders, and for the next five
months, continued to file motions to change custody from Lester. He also
advised the judge that he had "sway" with the state legislature
and could get the laws changed to get custody. Lester continued to fight
Lennane's motions. Each time, Kobayashi increased Lennane's visitation
time with Ava, but continued to grant temporary custody to Lester until
the custody evaluation was complete. He set the motions for trial in December.
When Lennane could not get relief in court, he filed his requests with
the Appellate Court citing Kobayashi's temporary custody orders and
Lennane's perceived gender bias by Kobayashi. (At the same time unbeknown
to Lenanne, Kobayashi transferred the case to Judge Gail Ohanesia, making
that issue moot.) In November, the dreaded custody evaluation issued recommending
physical custody to Lennane in Florida. Now, the previously thrown gauntlet
was retrieved and used for slapping…
At trial, Lester testified that she shared custody of Brittany with her
ex-husband; that she came from a troubled home with alcoholic parents;
became emancipated at 16, was uneducated and unemployed; had two abortions
by age 19 and another at age 35; and had been subjected to physical abuse
once in 1995.
Lennane testified that he was Jamey's care giver, even though she had
always had a nanny; that he had at least three other extra-marital affairs
within the previous two years; and that he and his wife had marital problems
and currently were in marriage counseling.
The court-appointed custody evaluator, Dr. Susan Fossum, testified that
Lennane should receive custody of Ava because of Lester's traumatic
childhood and Lennane's greater maturity and judgment overall (aside,
she stated with a straight face, from his sexual escapades).
Lennane followed up Fossum's testimony with his own expert psychologist,
Dr. Frank Dougherty. Dr. Dougherty stated that Lennane should have custody
because he had a spouse and, even if there were problems in the marriage,
it was a better situation for Ava, because Lester was a single parent.
Lester retained her own team of psychologists who disputed Fossum's
findings. Dr. Herbert Weissman opined that Fossum "…violated
almost every applicable professional and ethical norm in this case."
According to him, she based her conclusions on Lennane's wealth versus
Lester's austere lifestyle, and failed to evaluate Lennane's wife
and other daughter in making her decisions. Dr. Larry Nicholas agreed
with Weissman that Fossum was biased against Lester, and said that Fossum
reviewed the sexual relationship between the parties in a "voyeuristic
and moralistic manner." Dr. Cynthia Newman stated Fossum's evaluation
was below the standard of care, and believed custody of Ava should remain
Judge Ohanesian ultimately gave physical custody to Lester, basing her
findings on the continuous contacts in Sacramento from conception to family
and business interests and that there was no reason to move the baby to
a place without familiar ties. But she also commented on their "…recklessly
irresponsible conduct … [and] equal lack of good judgment."
Naturally, Lennane picked up the gauntlet and threw it at the California
The Appellate Court upheld Judge Ohanesian's decision stating there
was no gender bias, and the temporary custody orders were non-appealable.
It also found that the trial court did not err in awarding physical custody
to Lester with visitation to Lennane. The California family Code states
that it is important for a child to have continuous contact with both
parents. It also states that custody must be awarded in the best interests
of the child. The best interests of the child may not always be joint
physical custody. In this case, with parents living 3,000 miles apart,
joint physical custody was impossible, and since most of the factors favored
Sacramento, it was in Ava's best interests to remain there with her
mother. However, custody of a minor is not always permanent. If there
are substantial changes warranting a change, custody can always be changed.