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Child Custody Case Study - Part 2

Tuesday, 09 December 2014

child-custody-coloradoCourts can’t just make up the rules as they go along. Our entire system of justice is based upon the idea that a judge will look at the evidence that both sides present, hear the evidence from any other witnesses, and then make a decision based upon that evidence, not personal speculation.

The appeal filed by Marrison Family Law in Colorado Springs claimed that the trial court essentially picked its “favorite” party here, the father. Judge Bristol ignored evidence presented by the evaluator, and gave no credibility to information presented by Maggie Bright.

By doing that, he basically abdicated his role as an impartial judge, and became a supporter, or an advocate.

THE COURT FACTORED IN UNFOUNDED SPECULATION INTO ITS DECISIONS WHICH WAS UNSUPPORTED BY THE EVIDENCE

The First Unfounded Speculation of the Judge – Why the Child was Hospitalized before Trial

Judge Bristol had set this case for trial in the first quarter of 2012.  This was after the appellate court instructed him to make decisions about Steve Smith’s long-term parenting time, without leaving those key decisions to a court functionary.

Approximately eight days before the hearing, Maggie Bright got a call from the community officer at her son’s elementary school. Ethan had displayed unacceptably violent behavior at school, and the officer was asked to intervene.

It was a serious problem, the officer said.

Either Maggie Bright had to pick up Ethan from school immediately and take him to the hospital for evaluation, or the officer would take the child himself.

Maggie rushed to pick up Ethan and took him to the hospital. Physicians there wanted to keep Ethan for several days due to his extreme behavior. Maggie did not think to question their decision about what was medically, and emotionally, in her child’s best interests.

Testimony about Why Ethan was Hospitalized was Undisputed

When Maggie Bright gave testimony in court before Judge Bristol about why Ethan was hospitalized eight days before the hearing, it went into evidence undisputed. The father had no opposing witnesses that saw Ethan on the day he was hospitalized, suggesting the child was fine. And no surprise witness appeared on the eve of trial with some mysterious tale suggesting that Ethan’s mother put him up to it.

In fact, a day care provider who was at the elementary school and witnessed the event backed up Maggie’s version.

The child was later diagnosed with serious mental health issues. But at the time of trial, and even at this first hospitalization, there had been no formal diagnosis beyond the observation that Ethan was doing and saying things that were tremendously inappropriate.

The Speculative Conclusions Made by the Trial Court

The conclusion Judge Bristol reached? Maggie Bright had faked it. She had somehow worked and orchestrated the whole event, according to the judge, creating a school crisis and hospitalizing her child just to delay the trial and get a continuance.

Marrison Family Law, point by point, showed how Judge Bristol had ignored Maggie’s testimony, the testimony of the eyewitness day care provider, and underlying information about the child’s hospitalization to reach its own speculative conclusions.

There was not a shred of testimony from Steven Smith that supported Judge Bristol’s theory.

According to the transcripts, the court evaluator had never raised such a ruse as a possibility.

Somehow, Judge Bristol had taken straightforward, clear and uncontested testimony showing that the child had suffered a mental health episode less than two weeks before trial, and concluded that Maggie Bright was the kind of person that would create a fantastical mental health fiction just to push back a court date.

What the Appeals Court Said About the Hospitalization  

Maggie Bright’s attorneys had a steep hill to climb to show that Judge Bristol’s decision was “clearly erroneous.” But the appellate court agreed with the Colorado Springs law firm, underscoring that there had been “no testimony” that Ethan’s hospitalization was some manipulative attempt to stall the hearing.

The Second Speculation – That Maggie Bright Suffered From Borderline Personality Disorder

During the pre-trial process, the mental health of both Maggie Bright and Steven Smith were evaluated.  Sometimes, mental health problems are indicated by how parents act towards their children, how they raise them, how they protect them, or even maybe how they fail to protect them.

So it was appropriate that Judge Bristol look at the mental state of the parties. He has an obligation under Colorado law to factor in mental health to parenting decisions.1 No judge wants parties in his court to be tomorrow’s headlines because one parent with a diagnosed case of schizophrenia or bi-polar disorder hurt or injured the child.

The evaluator Richard Holmes had performed routine psychological testing on both parents and provided no written or oral testimony suggesting Maggie Bright suffered from Borderline Personality Disorder.  In fact, his report indicated that her test results were normal.

What Speculative Findings about BPD were made by Judge Bristol

And yet in its order of April 1, 2012, and its follow-up order of April 20, 2012, Judge Bristol found that Maggie Smith showed signs of Borderline Personality Disorder.

So how could a respected member of the judiciary make such an extraordinary claim that was not based on the evidence, but seemingly on personal animosity and bias towards Maggie Bright?  

Marrison Family Law argued that such an extraordinary finding had to be supported by some apparent evidence of illness. But Maggie did not even meet one of the established criteria to diagnose BPD as noted in the DSM 4TR medical reference.

"Maggie did not even meet one of the established criteria to diagnose BPD..."

Sometimes, even if a judge or party commits an acknowledged error at or before trial, other evidence against that person is so strong that the appellate court could find the error to be “harmless”.

But that was not the case here, insisted Marrison Family Law. There was substantial, extremely harmful error, and it harmed the interests of Maggie Bright in every stroke of Judge Bristol’s pen that was used to approve the court orders of April 1 and April 20th.

Judge Bristol’s Improper Findings were Clearly Not Harmless Error

Judge Bristol’s improper speculation about BPD not only sorely injured Maggie Bright’s legal case, but could put her career in jeopardy. As a chemist working in the defense industry, Maggie Bright regularly worked on high level government jobs that involved potential military applications. If her employer thought Maggie was mentally unstable, she could lose her job as well as the security clearance she held, so essential to obtaining any other employment in her field.

The appellate court “will reverse a decision if we can say with fair assurance that error so undermined the final fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction,” noted the Marrison Group in its brief, quoting a 1987 Colorado case.2

What the Appellate Court Said about the Trial Court’s Finding of Borderline Personality Disorder

The appellate court noted that there had been testimony about borderline personality disorder presented in court by the evaluator Dr. Holmes.  Apparently, the evaluator had much experience treating people with Borderline Personality Disorder.

However, there was absolutely no evidence that Maggie Bright had been diagnosed or treated for Borderline Personality Disorder.  The evaluator did not even testify that her profile suggested or showed signs of BPD. In fact when Judge Bristol made his ruling, he expressly relied on other cases in his court – which he cannot do – and his personal opinion based on those other cases that, despite the testing showing Maggie was normal and had no mental health issues, she was in the Court’s opinion suffering from borderline personality disorder.  

In a way, the appellate court required Judge Bristol to connect the dots, which it completely failed to do.

The first dot would have been testimony about the criteria used to diagnose BPD. The second dot would have been testimony or documents which suggested Maggie Bright’s behavior and actions appeared to fulfill some or all of the criteria. Then, the third dot would have been testimony from an expert saying that Maggie Bright had or showed signs of BPD.

Instead, Judge Bristol just connected all of the dots on his own, and then added a few for good measure, which was in part why the appellate court agreed with the arguments of Marrison Family Law and found that allegations of BPD were “unsupported by the record.”

The Third Improper Speculation by Judge Bristol – Child Abuse

Maggie Bright also claimed that Ethan had been abused by Steven Smith on at least two occasions. Her local social services agency had investigated two claims of sexual and physical abuse against Steven Smith, and could not find sufficient evidence to indicate that abuse occurred – so the claims were dismissed.

The evaluator Dr. Holmes testified that a parent who continues to make “false” child abuse allegations could be charged with a criminal offense. But there appeared to be no actual evidence at trial that anyone suggested her claims, even if unproven, somehow themselves became “child abuse.”

Maggie Bright had argued throughout that just because the investigations did not find sufficient evidence of abuse did not mean the abuse didn’t occur.

What Speculative Conclusions Judge Bristol Reached about Abuse

From this “evidence,” Judge Bristol had found that the father had not physically or sexually assaulted Ethan, and that Maggie Bright had herself committed child abuse by putting the child through the abuse investigations.  In other words, a report of child abuse was itself  child abuse.

What the Appellate Court Thought of the Trial Court’s Child Abuse Finding

Again, it all comes down to what is necessary for a trial court and judge to make a finding. There has to be some credible evidence that Maggie Bright’s several child abuse claims persistent in a way that constituted child abuse that would be recognized under Colorado law.3

But the evidence wasn’t there. Instead, the appeals court said that assertions that Maggie Bright committed some kind of child abuse at most was a “legal conclusion,” and not supported by the record. 

The Court of Appeals thankfully stated unequivocally that a report of child abuse does not constitute child abuse. 

Any other interpretation would inhibit victims of abuse, or their caretakers, from reporting abuse.

Because the trial court’s finding that Maggie Bright had committed a form of child abuse were “unsupported by the record,” said the appellate court, the court was ordered to vacate its previous order and make specific findings based upon  section 14-10-124(1.5) of the Colorado statutes.

    1 C.R.S., Sections 14-10-124(1.5)(a)(V) and (IX), and 124 (1.5)(b)(IV).
    2 Wilson v. People, 743 P.2d 415 (Colo. 1987).
    3 C.R.S., Section 18-6-401, (2012).

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MPatMarrisonFor over a quarter century, we have helped people during what is often the darkest time in their lives. Divorce is not easy even under the best of circumstances. For most people, family is central. Having something go wrong in the family can have a ripple effect that extends beyond the home and into other areas.

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