Shat terd

I have one son who is almost 21 now and was 19 when the latest nightmare began. He has been in his mother's custody for 10 years notwithstanding the fact that a court psychologist put us both through a battery of tests and concluded that her custody would present problems, but he (then only 11 years old) wanted to be with his mother so that was the recommendation. Had I known that an 11 year old would ultimately be making this important decision, I would have saved the $4,000 paid to the "expert" and simply asked my son in whose custody he wanted to be.

The predictable happened. Within two years my ex-wife accused me of molesting my 18 year old daughter who suddenly remembered what happened to her when she says she was 6 months old. My ex-wife sued me for her damages and this was thrown out by reason of her failure to make a legitimate claim. I learned quickly that if I wanted any peace in my life, I had to stay away from her. This made it difficult for me to spend as much time with my son as I would have liked.

His mother was seldom around and I now know that she was leaving him alone while she was out-of-town on weekends when he was 12 and 13. He became a behavior problem in school, studied very little, and was thrown out of several schools. He was diagnosed with a petit mal seizure condition though no diagnostic tests were ever able to confirm it. When he was 16, this was under control and he was authorized to get his driver’s license. He has been seizure-free now for over three years.

She named two psychiatrists as her witnesses, one of whom my son had not seen in about one year. I asked for my son's medical records to prepare for hearing. Since he was an adult (age 18 in Arizona), he could refuse to waive his physician/patient privilege and did so. An attorney was appointed at my cost to determine if he was capable of asserting such a privilege. He visited my son at the 3300 square foot home that he had been occupying by himself for over one year at that point, and said that my son was perfectly capable of asserting the privilege and said that he understood that the failure to waive the privilege may result in his mother losing her case since we had been denied discovery in preparation for trial. He also told the attorneys involved that there was nothing wrong with my son except laziness, and that he could work like any other 19 year old. Again I was forced to pay for an expert whose opinion was ignored and ultimately used to my disadvantage.

Rather than order the case dismissed if we were not permitted discovery to prepare for trial, the Superior Court judge was perfectly content to force us to trial without adequate preparation. I was faced with the irony of going to trial without medical records to use for cross-examination because my son was capable of understanding his rights, in a case alleging that he had a diminished mental capacity.

Because it was obvious that this court was prepared to require us to go to hearing without medical records, and to permit the very experts to testify whose records we were denied, two weeks before hearing I had my son examined by the neurologist who had been court appointed to review records had they been ordered produced as I expected. Instead he conducted an independent medical examination, without the benefit of past psychiatric records, at my expense and issued a report that said there was no cognitive impairment whatsoever. This report was submitted and a request made to permit the neurologist to testify. The neurologist was going to be out-of-town the day of the hearing, but could be available later. I named myself, my son, and the court appointed above mentioned attorney as witnesses and requested permission to call the doctor later. The judge said that he could only permit two hours for hearing of this complicated, multi-expert witness case.

On the day set for hearing, my ex called herself, the two psychiatrists, and one school teacher as witnesses. We cross-examined her on issues including her taking of $70,000 from a trust account I established for my son with my sole and separate property some 10 years before. We had discovered this while taking my daughter's deposition in preparation for hearing two months before. My daughter and her mother had conspired to remove this money since my daughter was the trustee for my son. The explanation was that her mother was entitled to recover retroactively for all birthday and Christmas gifts she had purchased for my son during the prior 8 years, and for all vacations. During all of that time I was paying just under $900 per month for child support mind you. With all of her attempts to justify this taking, she could only come up with $32,000 using rounded and estimated numbers. The remaining $38,000 they attempted to justify as for "...depletion of natural resources". Clearly we felt that this cross-examination was justified since this trust account was to be for my son's education and this is why they were bringing this action against me for continuation of child support. My point was that if he had his own money, he did not need more from me. They countered by saying that the money was gone since my ex had taken it two years before.

The current treating psychiatrist said that he could not say whether my son could be employed, but he could take care of himself in this big home. The prior psychiatrist said he could not be employed. Her testimony and the other witnesses', including cross-examination, took about 1 1/2 hours. We then tried to call our witnesses and the judge announced that he had no further time and we was going to rule without hearing our testimony. I was flabbergasted and appalled that this was happening under the guise of "due process". Two weeks later he ruled that the "uncontradicted" testimony supported her case and ordered me to pay child support retroactively increased to $1400 per month back to the year before, $5000 for her attorney fees, and some $1500 in unpaid medical expenses that arose out of her unwillingness to take my son to physicians covered under my health insurance as she was ordered to do under the divorce decree. He of course did not know that because he would not permit me to testify. Some of those expenses were attributable to costs for testing which she incurred in preparation for hearing and not for actual costs of treatment.

When I objected to what was happening at hearing, the judge responded on the record "that it probably was not fair but it was not fair that he had so many cases either". So much for justice and due process. We moved for a new trial and he allowed each side 5 minutes to argue that motion.

The judge said that I had wasted his time by attacking my ex with the history of her taking money from my son's trust account. He obviously could have cared less about the taking of the money even though it reduced my son's ability to have the funds to care for himself. He said that he hoped that I would appeal because if the appellate courts ordered him to hear evidence it would mean that they would have to hire more judges and he did not think that they would do that. It would certainly appear that I was being made a scapegoat for a court system that felt it was being overworked.

The trial judge also said that I was not in a position to call the witnesses that I wanted even though I was obviously sitting in the courtroom; my son was sitting in the hall waiting to testify; and the other attorney said he would appear upon call if it appeared that we needed him. The only witness not there was the neurologist who had been called at the last minute when the review of the records ordered by the judge himself was made impossible. The judge then denied my motion for new trial and ordered me to pay another $5000 for her attorney fees by reason of the 5 minute hearing.

I have borrowed $40,000 to pay my attorney fees, hers, back support for one year before the hearing, and the medical expenses. I had to continue to pay $900 per month while all of this was going on through hearing, but because the judge increased the support retroactively, I was still behind about $6,000 when the final order was entered. This was my reward for religiously paying my child support as previously ordered.

I have now filed an appeal, a judicial complaint, an action in probate court to recover the $70,000 taken from the trust account, and a motion to modify the support. I have also learned that many other fathers in this state are suffering the same fate as I, with no time permitted to present evidence.

Most recently our State Bar magazine had an article wherein it was said that at a recent seminar in Tucson, four visiting attorneys from ouside this state sat in stunned silence when they learned that the Superior Court in this state is allowing just 20 minutes to hear evidence to determine child custody.

We need to have checks and balances on a court system that has gone berserk and has lost sight of its purpose. We need to change laws to permit election of judges once again and hold judges accountable for the failures of the system. Otherwise, we will all be the victims of what was supposed to protect us. We must WAKE UP!!