Eeny Meeny Miny Moe – Enforcement Unequal Treatment

A father is facing felony charges for recording a custody conference and then posting it on Facebook. “I wanted to show people that the court was acting corruptly,” Cline said Monday in a phone interview. “They weren’t fighting fair. They’re doing everything they can so I can’t have my kids.””1

Do you blame this father for wanting to show others what he was going through? He was probably being bullied. And most likely they were demanding that he give in to their demands or be further disadvantaged. If you have ever gone through this you might have found yourself wishing you had recorded one of your hearings. There are parents who have complained that their records are changed and do not reflect what was said in the hearing. There are parents that live in States where having a court reporter make a transcript of the hearing is not required, yet they are not allowed to record the hearing. They can provide their own reporter, but that gets super expensive. And there are meetings that aren’t allowed to be recorded or discussed outside the meeting, like mediation and arbitration. So this leaves a lot of room for shady methods and bullying and intimidation tactics. Especially when you probably walked in there in the dark because their procedures and rules aren’t transparent. They want privacy while they are invading your private life and not following proper due process. But then who could prove that if you cannot expose their practices because you have no record of it right?

Have you ever felt that you were treated unfairly and that they were using corrupt tactics in a custody hearing?

I sat in a hearing where a parent complained that she had felt bullied, coerced, and lied to so that she would give in to their demands in mediation. But because mediation is private she was not allowed to have anything that was said to coerce or bully her considered in the hearing where she was objecting to the order from an order based on the mediation being entered.

Did you feel you were treated fairly in mediation?

I remember my first time in mediation. The mediator walked in and gave me a list of demands from the other side. The rest of the time just felt like the mediator and my attorney were ganging up on me and trying to bully me into giving in to the demands. Who would ever believe me though, they would just deny it or say that it wasn’t admissible in the court. Good thing I didn’t give in. It was tempting though when you’re not getting to see your children and you’re running out of money. They wanted me to think that if I just did what they wanted that they would consider letting me see my children again. Unbelievable. They didn’t even have to prove anything. They just took the other side’s word for everything. No due process at all. And if I had given in there would be no changing it.

So what do you do when you feel that you are being trapped and being treated fundamentally unfair?

“Asked if he thought he did anything wrong, Cline said no. “They hate that I’m calling out their corruption. … I want to expose them,” Cline said. “The reason they’re taking this so seriously is they’re so deep in their lies. They’re making this into a felony.”2

How many of you, if you weren’t experiencing this yourself would have thought “Geez, this guy just needs to do what they tell him” or perhaps you might have thought “Well he broke the law so he deserves to be busted”?

But if you are going through this, your thoughts will probably reflect something more like this: “What about the parents who interfere with child custody and alienate children from the other parent? Why aren’t they being vigorously pursued and enforced they way they are pursuing this father for recording their hearing?” Or you might have thought “What about the parents who commit fraud who aren’t held to the standards of the laws? Why don’t we see this kind of aggressive enforcement of them?”

While enforcement of the laws may not be mandatory, proper due process is.

For now, we are left to wonder whether this father will be lucky enough to have the family court require that a District Attorney take up the prosecution like the one in El Paso, Texas, Jaime Esparza, who might just say that he doesn’t meet the elements of the law to prosecute. As some might argue that the charge of “intercepting communications and failing to disclose interceptions.” Since the facts that this article posts seem to show that the father did disclose to them that he recorded them. They didn’t like it and now they are acting like spoiled brats that always get their way.

Well perhaps the District Attorney in Pennsylvania will say that they don’t have enough evidence or that his actions don’t meet the standards of the law to prosecute? Probably not. Why not? When the custody authorities want something enforced they do. But if a parent wants something enforced, and court authorities weren’t a party to it would there be this same aggressive enforcement going on? Would they, do they send someone to shake the other parent down when they refuse to surrender your children when it is your time to have them? Do they shake them down when they present false numbers for child support hearings? Nope. I’ve certainly never heard of “plain clothes detectives” showing up and shaking someone down at the insistence of another parent.

And how about when the courts themselves violate color of law? Who shakes them down? Who is protected by the rule of not being allowed to record these custody conferences and hearings anyway?

So I leave you with this thought that the evidence that this man collected should be allowed to be used to request prosecution of the hearing master for violating due process and for presiding over a fundamentally unfair hearing regardless of how he had to get the evidence, if the evidence collected would lead to the prosecution of that hearing master. And when the hearing master requests that the evidence that this man collected be suppressed, he should be held to the same Fourth Amendment review for deciding whether or not evidence collected illegally can be used to prosecute an individual. See what the 10th circuit court of appeals has to say about evidence collected without proper warrants in US v. Gordon (2014): “The extended seizure was a de minimis intrusion on Gordon’s rights and cannot justify suppression of the shotgun as evidence,[8] particularly when the error was seemingly benign and the curative remedy of inevitable discovery is palpably present (even though it was not raised).[9] “Under these circumstances, the safeguards of a warrant would only minimally advance Fourth Amendment interests.” Id. at 125, 104 S.Ct. 1652.”3

Pennsylvania is in the 3rd District and here is some of what they have said about violations of color of law and using evidence collected without a warrant. This ruling holds that evidence may be used even if collected without proper legal authority if the person collecting the evidence can show the following: “Ordinarily, the burden of proof in a suppression motion is on the defendant. SeeUnited States v. Lewis, 40 F.3d 1325, 1333 (1st Cir. 1994). Where the search being challenged was made without a warrant, as is the case here, the burden shifts to the Government to demonstrate that the warrantless search was conducted pursuant to one of the exceptions to the warrant requirement. SeeUnited States v. Herrold, 962 F.2d 1131, 1137 (3d Cir. 1992). The Government must demonstrate by a preponderance of the evidence that the challenged evidence is admissible. See United States v. Matlock, 415 U.S. 164, 178 n.14 (1974) (“The controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence.”).”

Many opinions ask the questions of whether the outcome of the case would be the same if the evidence had been gathered legally, and if so then should the person be allowed to use the evidence for prosecution. This father hopefully will try to prosecute for improper use of authority and abuse of power? It’s time that parents start using the same things that the authorities use to their advantage and give them a taste of some of their own medicine.

Hopefully this father will have good representation that will flip this fiat on these corrupt officials and know to file to prosecute them for color of law violations. (We have only the information that has been published by third-party news sources and make no claim that there is or isn’t enough evidence in this father’s specific case to make any claims. We are merely suggesting that if there is, we hope that an attorney will seriously consider taking this up the chain and challenging these corrupt and what we believe to be unconstitutional practices so that parents cannot be bullied out of their rights and time with their children.)

We hope that if you are being subjected to this same kind of treatment that this post will have given you a starting point to help you shut down their abuse of power.

 

 

Disclaimer: Please remember that we are not attorneys and this is not written for purposes of practicing law or giving legal advice. This is a thought column and only being used for informational and discussion purposes.

1. http://www.lehighvalleylive.com/lehigh-county/index.ssf/2014/09/man_illegally_recorded_custody.html

2. http://www.abajournal.com/news/article/litigant_is_accused_of_illegally_recording_custody_conference_and_posting_i

3. US v. Gordon, 741 F. 3d 64 – Court of Appeals, 10th Circuit 2014