A broken system: stewards of fraud
- Category: Fixing the broken system
- Created: Tuesday, 20 September 2016 23:08
- Written by Stephen Krasner - Public Service and Advocacy - Husband and Father
Matrimonial litigation and proceedings can often be a house of cards where the interests of the players in court outweigh the parents and child.
Perhaps if it was a fictional novel, feature story in a magazine or a posting online about an individual going through a nightmarish divorce situation it would be one of those reads where you scratch your head at what’s being described and the allegations on display. As a mother or father you continue to read while a feeling of disbelief and shock sets in that might not cause you to have such a pronounced reaction normally—except that each paragraph—word—accusation— is directed at you and now on file in a court of law.
Foundations Built on Abusive Motion Practice
The allegations within the motions and supporting materials range from things such as accusing a parent of having malnourished a child because they purchased a happy meal for them once or twice a month to complete fabrications claiming a mom or dad is hostile or provides unsafe environments for a child. They range in scope and levels of seriousness but all of them will need to be answered.
On some occasions, these papers listing allegations are accompanied with temporary protective orders, demands for financial payments and passive aggressive threats of things to come regarding child custody. Upon review of the documents a parent sees such things as orders to show cause that request your presence at a hearing asking you to present reasons why the other parent should not be granted things like sole-custody suggesting the court order you to receive minimal parenting time or worse, supervised visitation for a couple hours a week with your child. After all you now have been served with a litany of filings framing you as something far different than a caring and responsible parent and leaving a distasteful first impression of you on the court.
At this stage, in many situations, a parent is now forced to respond to all these things and likely will have to retain legal representation and spend thousands of dollars within an adversarial legal system designed to hurt good parents financially. The foundation and tone of the divorce and custody litigation has now been set, and with those initial wave of filings you immediately know that an amicable solution cannot be reached and your child’s future life as part of mom and dad’s world is about to be forever strained.
Settlement Discussions, Perjury and Fraud
At the start of these ordeals you have been forced into a situation where you now not only have to safeguard your rights as a parent but clear your name of hearsay allegations brought against you in a tactic so often used in the industry sometimes described as, “everything and the kitchen sink” or “throw it against the wall and see what sticks”. Regardless of the unethical tactics or disingenuous nature of things the opposing party has filed all these items in the court that would take an enormous amount of financial resources and effort to undo, unless of course that party uses this “fraudulent” leverage to offer a magical settlement and wash everything away. Albeit a settlement that heavily benefits and favors one parent at the expense of what is best for the child and other parent.
A popular forum in divorce and custody litigation when both parties are represented is to have 4-way meetings. Often times such meetings can be very fragile as the substance centers around areas very near and dear to the hearts of the parents, that being the relationship they will have with their children and the means to provide and care for them going forward. These meetings often happen prior to a hearing or juncture where decisions of custody and/or assets and property are being determined by the court. It is the comments and discussions transpiring in these meetings that often expose solid proof of the disingenuous intentions within all the filings and court actions aimed against you under the stewardship of the other parents attorney.
At this juncture a parent is now sitting at this meeting having had accusatory petitions, affidavits and sometimes protective orders filed at them and hanging over their head where the other parent is demanding sole-custody while requesting the court award you a couple hours of parenting time a week under supervision. So it is with almost the same sense of disbelief and shock that you as a parent now listen to the other parent offer to split time in increments of percentages such as 80/20, 70/30 or 60/40 with divisions of holidays and other such proposals.
After all is said and done at such a meeting, what happens now with all these things filed against you should you disagree with what’s been offered? The answer many times is nothing!
The substance of the very 4-way meeting itself has illustrated the true nature of the filings for what they really were, a leverage tool to be used as part of a strategy for advantage in custody and financial outcomes. The disconcerting thing is that after these types of discussions you would think that the allegations and demands filed with the court can now be removed or would have to be changed given what transpired. Unfortunately that is hardly ever the case whereby these items on file with the court remain unaltered and not withdrawn. Thus, the problem of false allegations and abusive motion practice thrives with one parent after another continuing the trend.
Even with settlements being reached you still have the evidence from these types of documented and memorialized scenarios as to the intent behind them and instances of perjury revealed. Many states have professional rules of conduct, all citing similar language, that address these types of scenarios yet they are rarely adhered to in the context of divorce and custody cases where fraud and perjury are overtly on display via sworn affidavits, testimony, motion practice and protective orders.
Trail of Bread Crumbs
It’s the practice of intimidation and use of force from someone in a position of greater influence or power to obtain desired outcomes. It is that person we teach our children to stand up to and not tolerate. It’s the person who picks on the weak, the helpless, the disadvantaged and the one who is vulnerable. This person is the bully.
With the web of information available, and understanding what is unavailable, it is sometimes difficult to know where to start looking for indicators of someone in the industry engaged in fraudulent and abusive motion practice. Often times the fraud transpires in the details, such as the presenting of false numbers in net worth statements, altering income and salary information of one or both parties in order to gain advantages for things such as child support calculations by painting inaccurate financial pictures to the court.
One area that indicates this type of motion activity could be transpiring, is looking for those cases that result in one or both parties having to file for bankruptcy. By examining case dockets you can determine the approximate number of motions and hearings playing out and which lawyers are involved in them. Once you have an idea as to which players have more activity transpiring with motion practice and hearings you can start looking at the details of whats being filed.
Charting out matrimonial matters for each of the active players gives clues as to the aggressiveness of the actions. If you see a lot of contempt hearings, orders to show cause and miscellaneous proceedings the next area to check is searching the bankruptcy court dockets for the names of the parties from the matrimonial matter. It becomes interesting when you start seeing the number of bankruptcies filed in correlation to cases involving the same attorney at a disproportionate rate when compared to other cases in the same courts with different players. These attorneys also stick out, from the many others practicing in the same courts, because they tend to have a higher number of motions seeking relief in conjunction with contempt proceedings, orders to show cause, and miscellaneous proceedings.
It is important to note that if one party initiating motions has greater financial resources than the one on the receiving end, very little can prevent them from continually creating and provoking litigation that the other side has no choice but to respond to, and pay for, which often results in financial hardship that later is used against them when they cannot afford to continue to protect themselves from the abusive litigation. This so often creates outcomes resulting in the financial disparity between both parents whereby one is now struggling and the other doing quite well and even rewarded with an arsenal of tools at their disposal to continue abuses in litigation and custody matters that are rooted in fraud.
Arithmetic of Child Support vs. Computation of Common Sense
First and foremost if you are a father or mother and bring a child into this world you become a parent at that point in time and have the inherent responsibility to provide for your child and contribute to their healthy standard of living. All states have developed various standards, laws and formulas over the years in addressing how parents support children after they separate. The intent of child support is to ensure basic needs are provided for such as food, health, clothing, shelter and overall care. At its very core this type of support is designed to distribute money from one parent to another to compensate for the differential in costs of supporting a shared child. This of course is reasonable in its intent and common sense to the many mothers and fathers who understand their inherent responsibility as a parent.
Problems happen when the systems and formulas set up are used intentionally in a disingenuous manner to financially harm the other parents quality of life and in turn hurt the child’s overall standard of living. Many times parents are forced into dire economic situations defaulting on bills, mortgages, and even having to file for bankruptcy as a direct result of one parent using money as a weapon.
While several states have various formulas for computing child support, some are certainly open to being manipulated and abused more so than others. Part of the problem is the archaic formulas and junk arithmetic used in reaching figures and amounts.
In the State of New York you can have a real situation where one parent is considered the custodial parent and the other one the non-custodial parent whereby they share one child together yet provide in a manner that doesn’t make sense. The custodial parent can be given this title because they have anywhere from one day to two weeks more of overnights with the child per year, while the other parent is labeled as the non-custodial because they have minimally less amount of time with the child. If all things (shared expenses, involvement with child, benefits etc...) were equal and you had the situation where the custodial parent and non-custodial both made the same exact amount in salary (or even whereby the custodial made a bit more) this small difference in time with the child now sets off a series of adverse events for one parent, while the other benefits.
A parent who had been providing for half of all expenses and costs for their child can now be subjected to having to pay disproportionate sums of income to an agency who than distributes funds to the other parent and keeps a fee for themselves for providing that service. The non-custodial parent has the agency now tracking their employment, salary and payments with the authority and power to enforce a host of goodies on them should they miss a payment, lose a job, become ill etc... This agency is the child support enforcement unit that can now be utilized in a manner that demoralizes and puts a negative stigma on a parent for no other reason but the custodial parent, their lawyer and sometimes the judge wanted it that way. The irony is that the custodial parent in such a circumstance can do what they please with the funds being received without accountability to any agency or court. When these situations occur whereby flaws exist in these systems, and thus are exploited, that lack all common sense and fair distribution it is not in a child’s best interest or the states.
NO FORMULA—NO LOGIC—NO CALCULATION—NO LAW can argue the merits or math behind such a system when it applies to these types of scenarios as well as many others.
Illustration of how laws in New York would impact parents that share one child. This illustration uses lower rounded numbers to demonstrate the breakdown in a viewer friendly format
Fraudulent and disingenuous actions take place in abundance in divorce and custody ordeals. When lawyers and judges engage in them, or look the other way when presented evidence of the transgressions, it hurts those who seek real help from the system.
Each time a parent seeks or files for a protective order in these ordeals that is disingenuous in nature, and more for leverage, it undermines those who seek such things for genuine circumstances. When a parent is forced to the breaking point financially, while the other collects on the misfortune due to technicalities, outdated and archaic laws and manipulating procedures it is not in the best interest of the child.
The courts have rules of conduct for themselves and those lawyers that practice before them. It is long overdue, for the sake of many of the problems that exist in the area of matrimonial cases, that these rules and standards of conduct be practiced and enforced.
ARTICLES BY STEPHEN KRASNER
A Broken System: Court Sanctioned Legal Abuse
A Broken System: Veteran and Service Member Mistreatment
A Broken System: Child-Parent Sanctity (CPS)
A Broken System: Parental Alienation
A Broken System: Misconduct and Whistle-Blowing
All Politics is Local: Is Corruption That Way as Well?
A Broken System: Fighting To Be A Dad
A Broken System: Motions for Money
A Broken System: Halls of Justice
Source : http://m.huffpost.com/us/entry/us_57dd4659e4b0d5920b5b2c48?timestamp=1474393810128