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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
For more information email: tflynn@clarkstonlegal.com

Wednesday, July 8, 2015

The Power of a Family Court Judge

Maya Tsimhoni
Children's Village is not the place you want to be as a child, especially if you come from a background of relative privilege. You'll see things there that your mom and dad never explained; for the first time in your life, you'll need to check your six.

Yet that is where three young Oakland County siblings wound-up over the past two weeks when they refused to comply with Judge Lisa Gorcyca's ruling that they spend parenting time -a lunch- with their father. The three minors were housed among the unruly teens that have seriously run afoul with the law at a very young age.

The case is a headline-grabber and we here at the Law Blogger expect that it will acquire some national media legs by the weekend now that Fox2 News broke the story on their evening newscast last night.

The facts are simple enough: after a series of protracted court hearings to litigate parenting issues, the children were ordered to spend time with their father; when they refused, they were confined to the Village for civil contempt of court. Family law judges do have powers over all those folks under their jurisdiction, including both parents and all the children in a divorce proceeding.

This case is different because it features putting the children, rather than the recalcitrant parent, into confinement. Judge Gorcyca, no doubt frustrated when the siblings became obstructionist -perhaps with their mother's encouragement- elected to exercise some of that power as a sanction for the contempt shown for her parenting order. Were other options available on the family judge's menu? Yes, of course there were; but this is the one she chose.

Over the years, we have seen the dynamic of older children faced with court-ordered parenting schedules they deem onerous. The well known rule-of-thumb in the industry is that the older the child, the more difficult it is to get him or her to comply with a distasteful court order.

But the Tsimhoni children are relatively young [ages 14, 10 and 9]; apparently, they banded together in defiance of the judge. This defiance has been honed from protracted disputes between the parents for the past five years.

The Tsimhoni case, grinding on since December 2009, features a long-list of family court professionals well-known in the industry, brought into the divorce proceeding to assist with the deep-seated and seemingly irresolvable parenting disputes. The case has featured pitched allegations of parental alienation and kidnapping.

Here is a copy of the GAL William Lansat's report to the family court judge, posted online as the story was breaking. The GAL report sets out the context within which the judge made her decision.

When an emergency motion to readdress the children's incarceration was denied by Judge Gorcyca, an appeal was lodged and a petition for a writ of habeas corpus was filed Monday by the mother's new law firm. A petition for habeas corpus alleges that a person is being incarcerated by the state in violation of a constitutional right.

Even though Judge Gorcyca, obviously frustrated by the children's defiance of her parenting order, placed the children into the Village until they emancipate at age 18, we predict they will be released shortly. The question here is whether their inevitable release comes at the hands of Judge Gorcyca or through some other jurist.

Family court judges have vast powers at their disposal. This case will stand as an example of the measured limits of those powers.

July 9th Post Script: As we predicted, a two-hour hearing was conducted by Judge Gorcyca yesterday, which concluded with her ruling that all three children should be released from the confinement of Children's Village.

For those among our readers that are students of the family court and for the family law professionals, here are two comprehensive articles in the Detroit News that provide a more detailed context for the judge's decisions in the Tsimhoni case. Take a look here, and here. Of course, the two top writers for the Freep joined in: Brian Dickerson and Mitch Albom. The Observer published an interview with the father.

The case, now making huge traction on the State Bar of Michigan's family law listserv, features articles that have posted large chunks of the critical hearing that led to the children's commitment to the Village. Here is an example from the Daily Tribune.

September 9th Post Script: Continuing to deliver headlines, this case featured a hearing today that resulted in the Court being advised that the Tsimhoni children successfully completed their court-ordered stint in a summer camp, have completed intensive therapy for parental alienation, and have been reunited with their father. The court has scheduled a hearing for October to determine whether Mother's physical custody of the children should be switched to Father. The court file remains sealed.

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18 Comments:

Blogger biscuitboogie said...

Unreal.
This woman made a horrific decision.
Absolutely unbelievable, I don't care WHAT went on between the parents, you do not punish (or incarcerate! OMG) children for their PARENTS screw ups.
GORCYCA should be disciplined, ie: taught a lesson. She tried to "teach a lesson" to defenseless children, she overstepped all bounds of human decency and compassion, and I hope she gets what she deserves. As a MOTHER, an supposed judge and a human being...she should be absolutely ashamed of her actions.
BTW, Judges are not Gods. She can't blithely screw these kids and get away with it, and I sincerely hope she is not allowed to.
I also hope she doesn't conveniently drop dead before they turn 18 and can then safely (meaning can't do a damn thing to them, ever again) write a letter to her outlining her role in the destruction of their lives.
The incompetent, arrogant judge that pulled this with my child did just that, and my lovely, intelligent, compassionate son will now never feel he has closure with the judge who destroyed his childhood, and impacted the rest of his life. And yes indeed, he cut off all contact with his other parent once the FORCED visitation was over due to him achieving a certain age, 18. He also cut off contact with the grandparent that also got involved in it and ALSO treated him like crap and abused him (which the judge consented to and court ordered to, to add insult to injury)
If the judge had just listened to him, maybe things could have been mended at a later time.
Now...no way.
Both a 9 year old and (especially!) a 14 year old know exactly what is going on, if they don't want to see someone, there is a damn good reason for it. And it's not "parental alienation".
They know when pp are toxic and want nothing to do with them. Kids are far smarter than we give them credit for. A bad ruling is sometimes just that...a bad ruling. And if a child recognizes that, should he or she be locked up for objecting?
Vast powers, indeed. Too vast, and with no apparent oversight.
*Flynn, you ALMOST wrote a balanced piece, but it's clear you leaned toward the supposed judge. Go back and read what you wrote, this time while imagining you were the CHILDREN'S ATTORNEY

July 9, 2015 at 4:45 AM 
Blogger Timothy P. Flynn said...

Wow, biscuit, tell us what you think. Well, we certainly appreciate that you've taken the time to read our post and comment. We're also very sorry to hear about your sad case; divorce is never easy and its often so hard on the kids; we understand.

You also called us out and we welcome when our readers do that: it is certainly your right to assess our post and express your opinion. So thank you for taking the time.

July 9, 2015 at 6:47 AM 
Anonymous Anonymous said...

Here are the problems with this outrageous ruling:

1. First and foremost, why did the father not protest this remedy? Did he endorse the judge’s actions? Does he feel it was appropriate to enforce his rights in this manner? Does he think his kids will now be more likely to have a good relationship with him?

2. What business did this judge have insulting a child by saying she doubted he had a high IQ?

3. In most states, minor children are not parties to a divorce. Compliance with parenting plans is -- or should be -- the responsibility of the parents, not the children. The remedy should be against the mother, not the children.

4. That's not what juvenile detention is for. It's a waste of taxpayer dollars, at an average of $200+ per day, per child. These kids are not a danger to society.

5. Under the Juvenile Justice and Delinquency Prevention Act (federal legislation) status offenders cannot be held in secure confinement. Violation of a valid court order is an exception to this law, but it is overused and its use is being discouraged nationwide.

6. Further, although status offenses are officially offenses such as drinking alcohol, skipping school, and breaking curfew – things that are against the law for juveniles only because of their age and would not be crimes if done by adults, I argue that a parenting time order is in that category because no adults would have to visit their parents against their will.

7. Here are some sobering facts:

a) Incarceration increase[s] the likelihood that a youth would drop out of high school by between 11.1 and 18.3 percentage points.

b) Nearly two-thirds of youths leaving detention never re-enroll in school, Those who do often drop out quickly, and around half are rearrested within three years.

c) A court appearance nearly quadruples the odds of dropout."

d) "First-time arrest during high school nearly doubles the odds of high school dropout." (OJJDP: Sticker Shock, 28)

Judge Gorcyca has no business wearing the black robe. I’m all for giving family court judges latitude, but this is so clearly an abuse of discretion that will almost certainly accomplish nothing productive and will likely result in irreparable harm to these children and to their assessment of whether adults can be trusted.

In Michigan, “the Judicial Tenure Commission serves to promote the integrity of the judicial process and preserve public confidence in the courts.” How can anyone have confidence in the judicial process in Michigan?

Any media wanting an interview or commentary, contact me: media@mediatormatthew.com.

Matthew House, J.D.

July 9, 2015 at 2:51 PM 
Anonymous Anonymous said...

What a thorough abuse of power and a wanton disregard for the best interests of the youth. How is this a bad idea? Let me count the ways:
1. Peer Contagion- Low risk youth who are put into groups with high risk groups are more likely to engage in high risk behaviors later. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3523739/
2. Youth who are incarcerated have much worse outcomes than those who were never incarcerated (including when compared against youth who had offenses but were diverted from the system). While these youth do not have the criminal background of others who are incarcerated, they now will certainly have the stigma and the trauma afforded by it. http://www.voxeu.org/article/what-long-term-impact-incarcerating-juveniles
3. You cannot "order" a child to have a healthy relationship with a parent. What an utterly ridiculous notion. Frankly, if you have to court order it, then it probably isn't healthy to begin with! These things take time and process. Several therapies have been set up to do just that! Why not "order" family reunification therapy with a trained provider? https://www.psychologytoday.com/blog/co-parenting-after-divorce/201305/parent-child-reunification-after-alienation
4. Making the children responsible for the relationship with their father (to the point of incarcerating them for not participating in it) is amazingly bad. Children have a small amount of power to wield over their life, yet they were just held solely responsible for the situation. How the judge failed to take into account that the brief time that she spent in court issuing orders did not come close to addressing the amount of time that has been spent outside the courtroom in fear and distress over this situation is totally beyond me. These children clearly have more than just a passing defiance over being forced into this relationship (which is what they think is going on). Pushing harder will only cement beliefs, not change them.
5. I believe that this was, in part, the judges way of removing the youth from the custody of their mother, without truly having the power to do so. Her ordering that the mother COULD NOT have visitation with her children is essentially doing just that. Everything that we know about what is good for youth who are incarcerated says that keeping contact with those outside of the facilities who will support them when they get out is highly important. The judge just cut off that contact. http://www.vera.org/sites/default/files/resources/downloads/family-visitation-and-youth-behavior-brief.pdf

I also want to point out that according to the national standards set forth by the Coalition on Juvenile Justice section 4.1 regarding Policy and Adolescent brain development "State and Local Policymakers and Advocates Should Eliminate Juvenile Court Penalties and Sanctions for Behaviors Labeled Status Offenses and Ensure that Systems are Accurately Responding to Behaviors as Either Episodes of Normal Adolescent Behavior, or Critical Unmet Youth and Family Needs that are Best Resolved through Non-judicial Interventions and Supports". This judge overstepped her boundaries when she chose to incarcerate these children for disobeying her in court and failed to take into account both best practices for juvenile services. Shame on her for this act.


July 9, 2015 at 4:23 PM 
Anonymous Anonymous said...

Black Robe Syndrome, without a doubt. I think I see a Judicial Tenure Commission grievance on the horizon. The fact that she placed the children in a locked detention facility, clearly demonstrates her lack of knowledge regarding "the best interests of the children." She should be removed from the bench for this power and control tactic.

July 10, 2015 at 1:24 PM 
Anonymous Anonymous said...

I was in a decade-long custody matter with my abusive former husband. The children were 7 & 1 when we separated. The oldest had witnessed abuse to me and been a victim of abuse by her father. She was afraid of him, and as time went on he did everything he could to try to drive a wedge between me and the kids, yet he was accusing my of alienating them from him. The court bought into it. This behavior by judges is all too common. They latch on to alienation theories so easily, all the while failing to believe the victims of abuse.
This judge has no idea what the best interests of children is. She was verbally abusive to them and forcibly separated them from each other and from their primary parent and safe parent and all safe extended family members. You couldn't exact much more emotional trauma on already distressed children than she did with this cruel behavior. This is straight out of Richard Gardner's playbook. Richard Gardner came up with the alienation theories to protect abusers (often sexual abusers). His "cure" for alienated children was to forcibly separate them from their mothers until they recanted abuse. Too many reunification therapists use his methodologies and do more harm than good. The cure is to allow the kids to remain with their mother, heal from the trauma of witnessing domestic violence and the controlling behaviors of their father. The father should be only seeing the kids during therapy sessions until they are willing to see him for short visits working up to more if he they are comfortable. You can not force human relationships.

July 10, 2015 at 6:01 PM 
Blogger Timothy P. Flynn said...

Well, we knew this case was going to touch a nerve, and it has. We've received many comments on this post; some we could not even print. The case continues to be discussed in the local and national media, bringing scrutiny to the family court system in general and what to do about children who refuse to follow a court-ordered parenting schedule; a problem that is quite common. We do appreciate the many points of view that some of our readers put forth in their comments.

Thank you for taking the time to read our blog and comment.

July 11, 2015 at 6:23 AM 
Anonymous Anonymous said...

I'm appalled by the generalizations. Just because you can spell "abuse" doesn't mean it occurred. Violence between adults may be abusive to children, but may not constitute spousal abuse. What might appear to be violence can instead be self-defense. The smaller weaker spouse is not necessarily a victim but can be an aggressor.

Parental alienation is the natural escalation of a battle of wills in which one spouse fails, or declines, to accuse the other spouse of criminal violence or abuse. The alienating spouse is continuing spousal violence by other means (to paraphrase Clausewitz, "diplomacy is the continuation of war by other means").

In the context of any discussion of domestic violence or spousal abuse, it is critically important to identify aggressor and victim. The accused perpetrator of domestic violence may not be the aggressor. Rather, he or she may be defending himself, or defending property, against aggression by the other party who seeks to use the authorities to punish the victim.

July 12, 2015 at 7:19 AM 
Anonymous Curious-Questions said...

technically:
1) Was the judge allowed to sentence the children to prison for direct contempt of court (even though the oldest boy was not even supposed to be there on that day)

2) Was it really possible for her to sentence them until they are adult or comply - or is there a maximum incarceration for contempt of court?

3) Was she allowed to send the children to Mandy's place in this hearing or would the assignment to such an institution require another type of hearing?

4) Can the fact that children are present, but do not interact with their father during visitation be counted as a violation of visitation time (against them or against their mother)?

5) Can mother be sent to prison for contempt of court in such a case?

6) Could the contempt of court be renewed at every supposed visitation or is there a limit?

July 24, 2015 at 6:03 AM 
Anonymous Curious-Questions said...

If a 14-year-old in Michigan who suffers from cancer refused chemotherapy (out of his own will), could a judge also put them in contempt of court until he complied with chemotherapy?

I am asking you, since you are an attorney familiar with those laws, in order to get a better grasp of the concept of "contempt of court".

July 27, 2015 at 3:52 PM 
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July 28, 2015 at 4:44 AM 
Blogger Shri Mukesh Aghori ji said...

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July 28, 2015 at 7:25 AM 
Blogger Timothy P. Flynn said...

For the "Curious Questions" person, I would respond that I family court judge does have contempt powers to enforce her orders. If the judge believed that an order for the parents to follow is in the child's best interests, there are ways the judge can enforce the order, including a contempt of court ruling with its attendant power to punish the person in contempt with a fine or even jail time. There is also criminal contempt and civil contempt. If you are interested in learning more, contact me to schedule a free consultation.

July 29, 2015 at 6:18 AM 
Anonymous Curious-Questions said...

As a foreigner, I have some difficulty finding the pertinent laws on the possible duration of contempt of court jailings for minors.

I am a bit disappointed to see that you cannot answer this question off the cuff, as a family law specialist practicing in michigan.

July 30, 2015 at 3:51 PM 
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September 14, 2015 at 7:35 AM 
Blogger Timothy P. Flynn said...

Safe Future,

Thanks for the vote of confidence and the RSS feed; we appreciate it.

September 14, 2015 at 10:16 AM 
Anonymous Anonymous said...

How many of you have actually dealt with custody cases where one parent is alienating the children from the other. I agree the mother should have been the one in jail. About time some one in the court system takes a stand against this type of behavior. I am personally experiencing this in my life. Where the EX is filling the kids heads full of her issues. Some have learned to manipulate the system and allow kids to make decisions for them selves.. They are KIDS may be mom should be a PARENT ... This judge is AMAZING.. GOOD FOR HER.

October 14, 2015 at 12:49 PM 
Blogger Timothy P. Flynn said...

Anonymous from 10/14, we deal with many custody cases where a parent exhibits what is known in our industry as "parental alienation". While the push to have that phrase formally classified as a syndrome by the American Psychiatric Association has been debunked, it does occur. As family law attorneys and professionals, "we know it when we see it."

It certainly appears to us that Judge Gorcyca is faced with the most difficult of cases in this matter; no right or wrong answers here. It is a shame that she had garnered so much negative [and even abusive] attention over this matter.

Thank you for your input.

October 15, 2015 at 2:50 PM 

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