Saturday, July 26, 2008

An interesting article on Gag Orders and Domestic Violence survivors

This story is from 2006...

However I'm posting it today for the "UNNAMED" Richmond County IDV judge.. And for the "UNNAMED" penguine co counsel.. and of course for Mr. Wonderful (tongue in cheek) my estranged husband to see...

Do they think I'm a flippin idiot?

Custody case raises energy, awareness


WAUKEGAN - A group of about 10 women waved documents and talked to reporters outside of a courtroom of the Lake County 19th Judicial Circuit Court.

Little of interest had happened in their case; it will continue on Oct. 4.

Yet the women exuded energy as they chatted.

Annette Zender stood watchfully on the periphery of the group.

Zender, of Woodstock, attended court on Sept. 20 to continue to appeal a 2001 custody decision that gave her ex-partner Thomas Boettcher, of Silver Bay, Minn., custody of their child. The couple lived in Lake County at the time.

That day, Associate Judge Jorge Ortiz ordered Zender to pay fees to her child's guardian ad litem, Gary Schlesinger, a Libertyville attorney who has practiced family law for 20 years.

The Illinois Marriage and Dissolution of Marriage Act defines a guardian ad litem as a person, whom the court appoints to make recommendations to the court in the best interests of the child. Those recommendations come only after he or she has interviewed "the child and all parties."

Though Zender and Boettcher did not marry, provisions under acts that govern paternity and adoption extend certain provisions of the Marriage Act regardless of a parent's marital status or biological relationship to the child.

The women who gathered outside of the courtroom belong to the Illinois Coalition for Family Court Reform (ICFCR), which Zender spearheads. The coalition alleges corruption in, and maltreatment by,(Sound familiar to my case?) Cook, DuPage, Kane and Lake Counties'
family courts in their dealings with divorce disputes and custody cases. Zender has said she has more than 200 women whose cases illustrate these claims.

On Aug. 30, Judge Joseph Waldeck issued a gag order in Zender's case, which has received extensive coverage by Chicago-area media because of Zender's activities with the coalition. (Again do you see the similarities to my case)

The order prohibits all parties in the case from speaking to the media regarding the case.
(OK... Here is a difference from my case--I'm only banned from naming names--to protect the corruption-- the abuse and blatent disreguard of the law ---being used against numerous domestic violence survivors by Judges including an IDV judge-- or the innocent.. you decide)

Schlesinger, a member of the Illinois State Bar Association, said he had sought the order to protect the child. (Once again notice the similarities in my and this case)

Zender claims the order violates her rights to free speech under the First Amendment. She contends the order intends to prevent putting Lake County's family courts under the microscope.

Larry Schlam, professor of law at Northern Illinois University School of Law, has published several articles on child custody. Schlam contributes to a guide to which Illinois family court judges refer for guidance in some instances. He declined to give the name of the publication, saying that it is not available for public view.

"Trial judges have substantial leeway," he said of the balancing act between a custody case's parties' rights to free speech and the protection of the child.

State law, he expained, provides for the court's prevention of parties from disclosure of a minor's identity. This is not unconstitutional, so long as the identity has not already been disclosed elsewhere, he said.

Zender has published the child's name on the Internet; however, "For Someone Special," a section on the coalition's Web site where Zender had posted messages to her child, whom she has not seen in five years, now reads, "By court order we are no longer able to post personal messages. We hope you understand."

Schlesinger pointed out that, in addition to Internet publishing, the public could determine the child's identity through parents' names.

Once disclosure of the child's name has occured, Schlam said, it cannot be restrained. However, the gag order would hope to diminish further damage to the child, he said.

Schlam said a gag order should be based upon evidence that the child's need for privacy and on evidence that the child would suffer emotional trauma.

"It's common sense," he said. "The kid has a future ... Maybe in 10 years, as a teenager, you might not want people to know what your parents did."

But New Orleans attorney Richard Ducote said the gag order violates Consitutional rights. His child advocacy work spans decades and continents. New Zealand adopted legislation based upon legislation he drafted in 1992.

"[A gag order is] only appropriate in legal proceedings ... to prevent [the] jury from being tainted," he said.

Ducote explained that when judges issue gag orders in custody disputes that lack juries, they do so to "protect the judge and abusers from exposure and accountability."

New York attorney Barry Goldstein, who represents battered mothers, agreed.

"It’s a First Amendment issue," Goldstein said. "Just as the court in New York couldn’t legally do that, nor can Illinois.”

Goldstein said exceptions could be made, but only in “very specific instances [that involve] graphic sexual abuse of child."

Zender has accused her ex-partner of domestic abuse. In July, a former nanny who said she worked for him in April and June contacted Zender with horror stories about his behavior toward her, the child and others.

"If the child is being cared for properly and ... being protected, then no one would need to make comments to the media," Ducote said. "The guardian ad litem [and the] court might not want criticism [or] ... scrutiny."

Ducote said such orders happen often and are rarely appealed or overturned, which Goldstein attributed to parties' fear that antagonizing the judge could compromise their chances to retain or gain custody of their children.

"They have lives of children in their hands," Goldstein said. "Annette has nothing more to lose in terms of antagonizing the judge."

Goldstein met Zender through the Battered Mother's Custody Conference, which will host its fourth summit in January 2007.

Goldstein said he has witnessed decisions based on inaccurate information and the advice of unqualified experts.

"I believe that most cases are not about corruption," he said. "[But] once the court makes a mistake in a domestic violence case, it's not willing to correct it."

Ducote also attributed judicial deficiencies to legal and mental health professionals' misinformation and lack of training, rather than corruption.

Yet he said that gag orders typically stem from a desire to obscure judicial proceedings.

"When courts operate without scrutiny and when fundamental rights are taken away in violation of constitution, it aids - in these family court cases, I have found it to aid abusers getting custody," Ducote said.

"I have just seen too many problems in the court system and abusers getting custody, and accountability of the highest value has to be embraced here."

Link to original Article - Weekly Journals - Custody case raises energy, awareness

Another link ..Great First Amendment web site About

Don't miss this article .. Gag Orders

Where in part it states..

A split among circuits

Over time, a split has arisen among federal appeals courts on the standard for evaluating a gag order on trial participants. The Second, Fourth, Fifth and Tenth Circuits have held that a trial court may gag participants if it determines that comments present a "reasonable likelihood" or "substantial likelihood" of prejudicing a fair trial. (In re Dow Jones & Co.; In re Russell; U.S. v. Brown; U.S. v. Tijerina)

Some states have followed the same rule. (Sioux Falls Argus Leader v. Miller; State ex rel. Missoulian v. Montana Twenty-First Jud. Dist. Ct.)

However, the Third, Sixth, Seventh and Ninth Circuits have imposed a stricter standard,
rejecting gag orders on trial participants unless there is a "clear and present danger" or "serious and imminent threat" of prejudicing a fair trial. (Bailey v. Systems Innovation, Inc.; U.S. v. Ford; Chicago Council of Lawyers v. Bauer; Levine v. U.S. Dist. Ct.)

Hawaii and New York have followed this standard as well. (Breiner v. Takao; People v. Fioretti)

Yet another interesting story of a custody case... a book exposing corruption... and a gag order.. - Court Order May Violate First Amendment - Opinion

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