Running with Gauntlets

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 with Lester.

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 Appellate Court…

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.

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