Running with Gauntlets

In 1997, Mother [M] (age 36) was a local Sacramento, California radio show host and single mother of a ten-year old daughter. Father [F] (age 58) was a successful businessman (worth $35-50 million dollars) from Sacramento and living with his wife and eight-year-old daughter in Naples, Florida. He made frequent trips to Sacramento for business and family purposes. M invited F 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 F returned to Florida. Six weeks later, M informed F 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. F 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…

M opposed F'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 F 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. "[F] 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, M and F began confidential mediation, but after the second session, M walked out claiming it was too stressful. She went into labor and delivered their daughter [D]. F was not present during the delivery. D's birth was premature, and she was placed in an incubator for five days. Two days after the birth F asked the judge, without M present, to give him immediate joint legal and physical custody of D. Or, he suggested, that D live in a "nesting residence" and F would visit there for 12 hours of the day and M 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 M and one hour visitation per day to F. The judge also ordered a custody evaluation by a court-appointed expert.

F did not like Judge Kobayashi's orders, and for the next five months, continued to file motions to change custody from M. He also advised the judge that he had "sway" with the state legislature and could get the laws changed to get custody. M continued to fight F's motions. Each time, Kobayashi increased F's visitation time with D, but continued to grant temporary custody to F 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 F's perceived gender bias by Kobayashi. (At the same time unbeknown to F, 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, M testified that she shared custody of a daughter 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.

F testified that he was his other daughter'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 F should receive custody of D because of M's traumatic childhood and F's greater maturity and judgment overall (aside, she stated with a straight face, from his sexual escapades).

F followed up Fossum's testimony with his own expert psychologist, Dr. Frank Dougherty. Dr. Dougherty stated that F should have custody because he had a spouse and, even if there were problems in the marriage, it was a better situation for D, because M was a single parent.

M 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 F's wealth versus M's austere lifestyle, and failed to evaluate F's wife and other daughter in making her decisions. Dr. Larry Nicholas agreed with Weissman that Fossum was biased against M, 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 M, 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, F 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 M with visitation to F. 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 D'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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