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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.
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Saturday, January 28, 2017

Oakland County Family Court Judge Gets Amicus Assist

Legal professionals have mixed views of what the Michigan Supreme Court will do with the Judicial Tenure Commission's misconduct finding and suspension recommendation regarding Oakland County Family Court Judge Lisa O. Gorcyca. Here at this blog, we've asserted the position that the JTC was not the appropriate forum to conduct what amounted to a review on the merits of one of Judge Gorcyca's decisions in a highly-contentious child custody case.

The case gained world-wide media attention in the summer of 2015 when Judge Gorcyca held the three Tsimhoni children in contempt of her court and put them in jail for refusing to spend time with their father pursuant to her orders. Judge Gorcyca has since recused herself from the case, but her contempt ruling has burgeoned into a challenge to her professional standing as a family court jurist courtesy of the Michigan Judicial Tenure Commission.

Last fall, a special master made a series of findings regarding how Judge Gorcyca handled the matter; several of those findings addressed Gorcyca's decision to use her contempt powers. Based on the special master's findings of misconduct, the JTC has recommended Judge Gorcyca be suspended.

As is her right, the judge has requested a trial -really an oral argument- before the Michigan Supreme Court; the argument has been scheduled for March. Last week, the Michigan Supreme Court granted the request of the Oakland County Bar Association and the Michigan Chapter of the American Academy of Matrimonial Lawyers to file an Amicus Curiae brief.

In the introductory paragraphs to the Amicus brief, the OCBA states:
It is often said: “In criminal cases, judges see bad people at their best; and in family law cases, judges see good people at their worst.” In family law, where emotions often run high, judges require both broad authority to issue orders and a full arsenal of powers to implement their orders. They cannot and should not be burdened by “political correctness”. Indeed, one of the cornerstones of our judicial system is the recognition that judges provide justice for all, including, when appropriate, supporting the minority or unpopular causes.
The Amicus brief highlighted points of contention with two of the JTC's findings: 1) the alleged intemperate comments made by Judge Gorcyca; and 2) the alleged error in the mechanics of her contempt ruling.

Characterizing the proceedings as a "disingenuous prosecution", the Amicus concluded, and we here at the Law Blogger wholeheartedly agree, that Judge Gorcyca, in the worst case, made an error of law; she did not transgress judicial norms or canons; she did not commit judicial misconduct.

At the heart of the Amicus brief is the rationale that if judges are subjected to punishment based on their substantive rulings, then a chilling effect will seep into the judicial fabric of our county court system like a damp cold fog. This chilling fog will distort the mechanism of justice for many families at the very time they need the county family court the most.

This blogger recently experienced the chilling effect of the Gorcyca case first hand. During argument in a parental alienation case, we represented the target parent, attempting to break through a stubborn wall of parental alienation. In her reluctance to enforce the terms of a previously entered parenting order, the family court judge specifically referenced Judge Gorcyca's case.

For all of these reasons, we here at the Law Bogger sincerely hope that the Michigan Supreme Court is persuaded by the OCBA's amicus brief. Errors of law belong in the Court of Appeals, not before the Judicial Tenure Commission.

Post #577

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Blogger Unknown said...

Why is this writer referring to a case of "Parental Alienation"? The American Psychological Association does not acknowledge this phenomena nor do they have a test to determine when this is happening. If the judge is supposed to be applying rules and laws, why is a judge determining whether this phenomena, that the APA doesn't acknowledge, exists or doesn't?

Judges need to stick with interpreting law and not diagnosing mental health issues. They are not qualified to diagnose nor are they payed to diagnose. Putting families back together is better left to the professionals that have a post secondary education and a license to treat.

January 28, 2017 at 9:52 PM 
Blogger Timothy P. Flynn said...

Dear "Unknown", thanks for taking the time to read and comment on our post. And you are right, the DSM IV does not recognize "parental alienation" as a mental condition or syndrome; although some psychology professionals tried to cloak it with such recognition several years ago.

In highlighting a high-profile case, our post certainly does not intend to claim that "parental alienation" is a psychological syndrome or mental condition. Rather, as any family court professional recognizes, parental alienation exists; it exists as deplorable conduct by one parent [the alienating parent] toward the other parent [the target parent]. In cases where a parent exhibits such conduct, the children are negatively impacted. They are also empowered by the alienating parent to disobey, disrespect and disregard a valid court order.

At the turn of the Century, some psychologists attempted to elevate the conduct of "parental alienation" to status as a syndrome; this attempt failed because the effort did not have support among psychology professionals; also because the concept was not supported with peer-reviewed studies. Essentially, the attempts to elevate parental alienation to the status of a recognized syndrome or mental condition were relegated to realm of "junk science".

But that is not to say that parental alienation does not exist. It exists simply as the bad conduct of a parent that negatively impacts the relationship of the children with the other parent. What we are saying is that when such poor conduct exists, it should be addressed by the family court judge, as in the now infamous case with Judge Gorcyca. Cases such as this one, and the one I referenced on my docket, exist and are acute examples of poor parental conduct. We are saying that when a judge observes such conduct, she should address it as Judge Gorcyca tried to do, albeit unsuccessfully, with the various tools judges have at their disposal, up to and including contempt of court.

And the law you say judges should interpret would include the Child Custody Act with its 11 enumerated factors, one of which is the conduct of the parents and their ability [or refusal] to encourage a strong loving relationship with the other parent.

In this regard, Judge Gorcyca did her best and is now paying the price for addressing a problem that rears its head often in the family courts.

January 29, 2017 at 1:38 PM 
Anonymous Anonymous said...

another factor of the child custody act is, "domestic violence whether it occurred in front of the child or not" But somehow that's not important in this instant case.

January 29, 2017 at 1:47 PM 
Blogger Timothy P. Flynn said...

Dear "Anonymous", thank you for taking the time to post a comment on this important topic. When a child does not wish to be around a parent because that parent has abused or neglected the child, family law professionals characterize that as "estrangement" rather than alienation. Often, there are justifiable reasons why a child shuns a parent that may have nothing to do with the other parent.

Also, there are hybrid cases that feature abuse from the "target" parent that results in estrangement, along with a dose of alienation courtesy of the alienating parent.

Every case, of course, is different. The challenge to family court judges is to assess those differences and apply the specific facts to the law. This is preferred over having the parents taking matters into their own hands.

January 29, 2017 at 2:15 PM 
Blogger Theodore Hamilton said...

Is this article asserting that it is within "judicial norms or canons" to hold young, non-violent children in contempt for refusing to eat or meet with a parent? Is it within "judicial norms or canons" for the judge to humiliate and denigrate a child who is trying to articulately explain their point of view in a civil manner? Why did the judge sentence the children to jail instead of ordering further psychological investigation and/or intervention? It appears to me that this judge - and this blog - is trying to use clever legal maneuvers and arguments to try to justify behavior that was grossly unprofessional, uncompassionate and mean-spirited.

January 29, 2017 at 4:48 PM 
Blogger Anonymous said...

Sadly, you are still trying to practice outside the realm of your profession as an attorney if you are trying to diagnose "target" parents, alienators, etc. Estrangement is probably used the least by legal people as a reason for children to be uncooperative with their parent. I would guess that has to do more with attorneys being paid to 'win' for their clients and estrangement doesn't work towards 'winning'like alienation does.

In fact, most of these children are estranged just like the Tsimhoni children were. As you all debate this case, you all forget that Mr. Tsimhoni was abusive toward Mrs. Tsimhoni and the children and this is documented. You can also bet that if he got caught abusing, there are probably countless other times that he did not get caught.

The fact that Mr. Tsimhoni put his wants and needs ahead of his family when he took a position with GM and moved to Israel to live is chronically neglected when everyone debates whether the children are alienated or estranged. He rarely saw the children according to court records and expected them to drop everything on their schedule to see him when he flitted into town for business. This was continually demonstrated during this case when he left for Israel for weeks the day after he had his children locked up for contempt that only he could get them out of.

Shall we even mention that he still has charges filed against her for kidnapping in Israel so that she can never return to visit family and/or bring the children for a visit with their father? These charges were supposed to have been dropped by a U.S. court order but they never were. She was found innocent of kidnapping by the Federal Court here in the U.S.. Let's all do our homework before accusing these children and their mother of alienation tactics when father has done far worse things to the children and their mother.

Why did Judge Gorcyca not acknowledge that what she did only made their relationship worse? You may assume that Mrs. Tsimhoni told them to hate their father and be uncooperative but in fact you have absolutely no evidence that this ever happened and therefore, these children should never have been forced into "lunch with their father" but in fact should have been set up for family therapy AFTER Mr. Tsimhoni had successfully completed DV therapy. Let's face need to fix everything if you're going to play God and Mr. Tsimhoni apparently never went to individual therapy either. Let me put it like this, you have to fix the legs on the broken chair before you expect the children to sit in it.

January 29, 2017 at 6:20 PM 
Blogger Timothy P. Flynn said...

Another Anonymous. Well, ok, thanks for your thoughtful commentary on the case; you obviously have a connection to it; we merely have a professional interest.

January 30, 2017 at 5:30 AM 

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