What I Have Learned at the Courthouse – Expose: “The Failure of Family Courts to Protect Children from Abusers”

Internationally renowned attorney, author, and widely acknowledged expert in the field of abused children’s and battered mother’s rights, Ducote represents battered mothers and their children in 44 states. His Post-Separation Family Violence Relief Act (R.S. 9:361-369) prohibiting abusers from gaining custody of children was passed unanimously by the Louisiana legislature in 1992; he has now drafted similar federal legislation, 42 United States Code § 5105a Protective Parent Reform Act. Ducote’s article in the Spring, 2002 Loyola Journal of Public Interest Law, Guardians Ad Litem in Private Custody Litigation: The case For Abolition has gained much attention.   FEDERAL LAWSUIT FILED BY RICHARD DUCOTE FOR 18-YEAR OLD ALANNA KRAUSE AGAINST HER FATHER, THERAPIST, AND COURT -APPOINTED ATTORNEY

Richard Ducote

Richard Ducote & Associates, PLC

Attorneys & Counselors at Law

______________________________________________

731 Fern Street, New Orleans, Louisiana 70118

504.314.8400 Fax 504.314.8600 ducotelaw@aol.com

Richard Ducote has achieved a rare record of child advocacy successes in his twenty-three years of practicing law. Always conscious of the importance of the relationship between social services and the legal profession, just six months after his admission to the Louisiana Bar he conceived, co-authored, and then directed a grant proposal submitted to the National Center on Child Abuse and Neglect to improve the court handling of child protection and foster care cases in the Jefferson Parish, Louisiana, Juvenile Court where he had served as a probation officer. The proposal was one of only four funded nationwide and created the Tulane University School of Law’s Juvenile Law Clinic. The project jointly trained law students and School of Social Work students to vigorously advocate in teams for dependent children. In 1980 the federal Department of Health, Education, and Welfare chose the project to showcase nationally as an example of innovative and successful initiatives.

While personally representing hundreds of abused children from 1978-1981, he helped strengthen and unify the local and state foster parent associations to reform the foster care system through legislation and administrative advocacy. Following the Louisiana legislature’s enactment of Mr. Ducote’s package of statutory changes, including three amendments to the termination of parental rights provisions, the state’s Secretary of the Department of Health and Human Resources was still frustrated that changes in the laws alone were insufficient to move children from foster care to adoption. His solution was to create a special post for Mr. Ducote to act, in essence, as the state’s TPR “czar” mandated to “do what needed to be done” to appropriately free kids for adoption. Starting from scratch and often confronted with a skeptical cadre of caseworkers who had little faith that anything would change, since promises of new initiatives were routinely broken over the years, Richard Ducote kept his word and exceeded all expectations. Tirelessly he traveled the state negotiating agreements with every prosecutor, compiling decision-making and referral packets, and conducting his motivational and training seminars for the social workers, lawyers, and mental health professionals involved in the cases. At every session he invited the workers to present their most troublesome cases, which he would then digest overnight while typing up TPR court petitions to present to the pleasantly startled case managers for filing the next day.

In the 2 ½ years that he held that position, Mr. Ducote, himself a former foster parent and an adoptive parent, freed more than 750 foster children for adoption in contrast to the 10 freed in the previous five years. He personally tried TPR cases in 40 Louisiana courts, served as a special assistant district attorney in 19 parishes (counties), and argued in every appellate court in the state. His reported decisions include: State in the Interest of A.E., 448 So.2d 183 (La.App.4thCir.1984); State in the Interest of D.L., 457 So.2d 141 (La.App.2ndCir.1984); State in the Interest of a Minor, 446 So.2d 1385 (La.App.3rdCir.1984); State in the Interest of Two Children, 477 So.2d 883 (La.App.4th Cir.1985); State in the Interest of a Minor Female Child, 470 So.2d 595 (La.App.1st Cir.1984) and State in the Interest of Hodges, 459 So.2d 634 (La.App.5th Cir.1984). In 1984, Mr. Ducote began his nationwide practice representing victims of sexual abuse and domestic violence in custody, tort, and TPR cases. His primary concentration has been in cases where courts have granted custody of children to child molesters and domestic violence perpetrators. He has been an ardent opponent of the bogus “Parental Alienation Syndrome” concocted by Richard Gardner and used to discredit victims of child sexual abuse and domestic violence. This role has taken him to courts in 44 states, appearances on Donahue, Oprah, 60 Minutes, CNN, and Good Morning Britain, Leeza and interview quotes in Parade Magazine, Good Housekeeping, Money, and the National Law Journal. The New Orleans Times-Picayune described him in a 1987 feature story as “raising hell for children in courtrooms all over the country.” In 1988 he won the then largest jury verdict ever in Washington County, Maryland, history – a $1 million award to a four year old girl sexually abused by her father. On his first attempt to take a case to the United States Supreme Court he won a unanimous reversal of the 5^th Circuit Court of Appeals in Ankenbrandt v. Richards, 504 U.S. 689, 112 S.Ct. 2206 (1992). In that decision he obtained the right of abused children to sue their parents in federal court and eliminated the hundred year old “domestic relations exception” to federal diversity jurisdiction. In May, 1998, he won a $19 million verdict on behalf of a 19 year old woman against her sexually abusive father in Arlington County, Virginia. In April, 1999, he won a $4.5 million Judgment in Louisiana on behalf of a 19 year old woman who had been molested by her father while she was ages ten through twelve years. He has also represented many victims of clergy abuse in civil suits.

Mr. Ducote has authored articles for publications of the American Bar Association’s National Legal Resource Center for Child Advocacy and Protection, the National Council of Juvenile and Family Court Judges, and the Florida State Courts Legal Affairs and Education Division. Many of the positions he advanced in his 1986 article, “Why States Don’t Terminate Parental Rights” in Justice for Children (Winter, 1986) have been included in the emerging consensus of foster care reform ideas. That article was cited with approval in “Effective Permanency Planning for Children in Foster Care,” Social Work (May, 1990), and by the New Jersey Supreme Court in D.Y.F.S. v. A.W., 512 A.2d 43 (1986), as justification for one of the rare instances where an appellate court reversed a trial court’s refusal to terminate parental rights.

His Post-Separation Family Violence Relief Act (R.S. 9:361-369), passed unanimously by the Louisiana legislature in 1992, has been widely praised by the National Center on Women and Family Law, the National Council of Juvenile and Family Court Judges Journal, and the Harvard Law Review. Many states, as well as the nation of New Zealand, have enacted similar laws based on his legislation. It prohibits sexual abusers and violent parents from obtaining custody of children, and sets up tight controls over visitation, while forcing the abusers to pay all costs and attorneys fees. He has won appeals under those statutes in Bruscato v. Avant, 660 So.2d 72 (La.App.4th Cir.1995) and Lewis v. Lewis, 771 So.2d 856 (La.App.2nd Cir. 2000).

In addition to serving as a Clinical Assistant Professor of Psychiatry at the Louisiana State University Medical Center, Richard Ducote has lectured across the country to foster care review boards, national and state child welfare conferences, and adoption advocacy organizations. In June, 1997, he addressed an international audience attending the Second World Congress on Family Law and the Rights of Children and Youth on child sexual abuse and custody cases. At the invitation of the Domestic Violence Project of the National Council of Juvenile and Family Court Judges and the Violence Against Women Office of the United States Department of Justice, in October, 1997, he trained judges, advocates, and court administrators on complex interstate child custody situations involving various types of abuse. In 1998, he lectured at the annual conference of the National Association of Forensic Social Workers, and trained federal and tribal judges on sexual abuse issues in South Dakota. He also trained judges and attorneys in Denver attending a conference of the National Coalition Against Domestic violence. In April, 1999, he trained lawyers and other professionals for the Illinois Coalition Against Domestic Violence on complex custody cases involving violence and sexual abuse. In March, 1999 after Mr. Ducote successfully defended a woman criminally prosecuted in Pennsylvania for “kidnapping” her sexually abused child to protect him from the child’s father, as he has done in other states, the trial judge took the unusual step of telling the jury that they had witnessed the finest example of a trial and lawyering he had ever seen, and that law schools would have been wise to take the week off for students to observe the proceedings. Mr. Ducote has been honored by the Louisiana Foster Parent Association and the Baton Rouge Battered Women’s Program for his work. In 1989, he was named Citizen of the Year by both the Louisiana and New Orleans Chapters of the National Association of Social Workers. In March, 1998, he was invited by Florida Governor Lawton Chiles to be the keynote speaker at the Governor’s Peace at Home Awards, which recognize successful domestic violence prevention initiatives. He was awarded the American Bar Association’s Young Lawyers Division’s Child Advocacy National Certificate of Recognition for “significant legal contributions advancing the welfare of our nation’s children” in 1997. In 1999 he was appointed to a task force created by the National Council of Juvenile and Family Court Judges and the U.S. Department of Justice to find solutions to the problem of abusers winning custody in family courts.

In September, 2000, 2001, and 2002 he taught at the International Domestic Violence Conference in San Diego on the “Parental Alienation Syndrome”, or PAS, and participated in a highly rated mock trial. In October, 2000, he was an invited presenter at the American Bar Association’s Section on Family Law’s Fall CLE Conference, where he lectured on PAS and high conflict custody cases. In July, 2001, he trained judges, attorneys, and court evaluators in Oakland County, Michigan. In October, 2001, he trained lawyers and lay advocates in Savannah, Georgia, at the National Coalition Against Domestic Violence’s seminar, Advocating for Battered Women & Children in Custody, Visitation & Child Protection. His workshops included: “Handling Expert Witnesses in Custody Cases”, “Federal Laws on Jurisdiction”, “Ethical Representation in Domestic Violence & Child Sexual Abuse Cases”, and “Evidentiary Issues: Child Witnesses, Working with Guardians and Evaluators.” In October, 2001, he was an invited trainer by the American Bar Association’s Commission on Domestic Violence for their Domestic Violence Civil Law Institute: Raising the Standard of Practice-Justice in Civil Courts for Domestic Violence Victims. His presentations there included: “Guardians ad Litem in Domestic Violence Custody Cases” and “Cross Examination of an Abuser in Divorce/Custody Cases; Cross-Examination of Opposing Party’s Expert Witness.” He was also the featured luncheon speaker. In 2002, he began training psychologists and other California court appointed mental health professionals as part of a mandated accreditation program established by the California Judicial Council

Several recent awards have highlighted Mr. Ducote’s career. In August, 2000, he was presented a special ceremonial eagle blanket by the Northern Plains Tribal Institute in South Dakota for his participation in the training of over 350 Indian tribal and federal judges from over 90 different tribes on child sexual abuse issues. In January 2001, he was honored by the national child advocacy organization “ Justice for Children,” for “Pro Bono Service With Sincere Appreciation for [His] Commitment to the Abused Children of Our Nation.” On May 10, 2001, he received the Louisiana State University School of Social Work Alumni Recognition Award for his contributions to the prevention of family violence through the legal system.

He has served on the boards of the Jefferson Children’s Council, Schools Combating Abuse and Neglect, and the Region VI Adoption Resource Center.

In June, 2002, he published his widely acclaimed article, Guardians ad Litem in Private Custody Litigation: The Case for Abolition, 3 Loyola Journal of Public Interest Law 116 (Summer 2002).

 

What I Have Learned at the Courthouse

By Richard Ducote, Attorney at Law

From the publication

“Expose¢: The Failure of Family Courts to Protect Children from Abusers”

A resource book for lawmakers, judges, attorneys,

and mental health professionals

Elize T. St. Charles & Lynn Crook, Eds.

About the Author

Richard Ducote, J.D., is a New Orleans attorney with twenty-one years of child advocacy in over twenty-eight states. In his first year after law school, he wrote the grant which funded the Tulane University Juvenile Law Clinic. He has written over fifteen child welfare laws enacted by the Louisiana Legislature, including the widely praised Post-Separation Family Violence Relief Act. In nineteen parishes (counties) he served as a special assistant district attorney, responsible for the entire state’s termination of parental rights efforts. He has been widely recognized and commended for his national work on behalf of victims of domestic violence and sexual abuse in custody, tort and criminal cases. He frequently conducts seminars for judges, attorneys, and health care professionals. In 1992, he successfully argued the case of Akenbrandt v. Richards in the United States Supreme Court, and opened the federal courts to suits against abusive family members. He has won million-dollar judgments for abuse victims in several states.

The generalization is frightening, but like all broad statements there are many exceptions: After twenty years in family law courtrooms throughout the country, I confidently say that no woman, despite very abundant evidence that her child has been sexually molested by her ex-husband or that she has been repeatedly pummeled by the violent father of her child, can safely walk into any family court in the country and not face a grave risk of losing custody to the abuser for the sole reason that she dared to present the evidence to the judge and ask that the child be protected. Why is that? The fault does not lie with the "law" except to the extent that judges are granted discretion under the law. No statute, codal provision, or court rule was ever designed for the purpose of hurting kids. If the law fails kids, the judges are failing kids.

There are several paradoxes that terribly frustrate those in these trenches. First, criminal courts — with the heavy burden of proof beyond a reasonable doubt–will convict people for crimes of abuse on the same evidence that family court judges deem to be no evidence at all. Second, normal reactions of mothers to abuse of themselves or their children are viewed by family court judges as evidence that the abuse never occurred. Third, mental health evaluations are considered more reliable and desirable "evidence" of whether or not an event occurred than eyewitnesses, physical evidence, or even admissions by the perpetrator. And fourth, the lack of eyewitnesses, physical evidence, or admissions is considered proof that the event did not happen, despite its rejection as meaningless when present.

We live in an era professing condemnation of child rape and wife beating. We spend countless advertising dollars seeking to persuade mothers to protect themselves and their children, and when they do not act quickly enough, they are found unfit for choosing the abuser over their own child.

Yet, let them heed our advice, let them go to the courthouse — often for the first time in their lives, to ask the judicial branch to honor its end of the social contract- and request simple physical safety, and they face destruction in the backfire of a system beating its chest to the hollow chant of the "child’s best interest." The "child’s best interest," a phrase so insidiously potent that appellate courts are loathe to question some trial judge’s irrational, unsubstantiated, gender-biased, self-contradictory, absurd, off-the-wall interpretation of it.

In 1993, when the Louisiana Supreme Court was assessing the constitutionality of Revised Statute 9:364, the Post Separation Family Violence Relief Act (which required the suspension of visitation upon a finding by a preponderance of evidence that a parent had sexually abused his or her child), one of the justices remarked during the oral argument, "I don’t get it. Just because you molest your child, you lose visitation? That’s very Draconian. What if it was just a little molestation?" How does one respond to that basic attitudinal, psychological, legal, common sense, judicial, and judgmental flaw? Can such be legislated away, when he was sitting there judging the legislature’s perfectly fine solution to this problem? That judge represents one facet of the courtroom chaos.

I recall another judge in Spokane, Washington, who was deciding whether to allow a sexually abusive father unsupervised visitation after a couple of months of monitored contact with the child. His reason for doing so? "I’ve heard no evidence whatsoever that the man did anything untoward with the child during the supervised visits. He didn’t even say an obscene word to the child." As if this were a valid test to determine if the abuse had occurred or would happen again. Surely, this judge thought that if the man could hold it together enough to keep his dirty hands away from the child while under the scrutiny of peering eyes, his vulgar mouth would certainly betray him. Maybe this simply reflects inadequate training or a defect in basic reasoning ability.

Then there was the bright, well-intentioned judge in New Orleans hearing the case of the nurse who, until then believing that she had a great marriage, twice unmistakably caught her husband in the middle of the night in their eighteen-month-old son’s bed fondling the child’s penis. When she moved for sole custody and no visitation with the father, the court, with every good intention, punted in the de rigueur family court style. He ordered psychological evaluations for all. One for Dad: Is he a child molester? One for Mom: Is she the type to fabricate? One for the son: Is he sexually abused? He opted for hocus-pocus while rejecting competent direct eyewitness testimony that would open and shut any other type of trial. There is no evaluation of Dad that would determine if he is an abuser, unless he admits as much in the process. There is no evaluation of Mom that would smoke out the fabricator. And there is no evaluation of the child, under this scenario, that would establish his victimization. But in due course, Mom would be frazzled and angry and anxious–all red flags in this Kafkaesque world. Dad would be calm and collected and shocked at the allegations. Applying the paradigm of the standard custody evaluation, Dad emerges as the better custodian in the "child’s best interest." Thus, despite solid evidence of the truth, the court opts for a process that is designed to find just the opposite.

The handiest aspect of molesting children and beating women is that these crimes come with their own defense. The vindictive women made it up to get back at their men. In virtually every court allegation of these crimes, the defense is the same. In that regard, Richard Gardner’s foolish "Parental Alienation Syndrome" simply calls evidence that abuse did indeed occur-evidence that the child was programmed by the ever-evil mother. And unfortunately for the victims, the abusers find willing accessories on the bench who will find those motivations lurking in the accusers despite a total lack of any evidence to support those notions. Criminal court juries usually see through the bogus wall of desperation. Family court judges–the supposed gatekeepers of protection–instead typically help lay the bricks.

Since the adoption of no-fault divorce, the fact-finding role of family courts has atrophied. It is no longer necessary to determine the existence of any fact other than the passage of a certain number of months. What is and is not evidence of an occurrence is often foreign. And the seasoned family court lawyer is not typically a litigator, except to the extent necessary to attempt to uncover hidden cash for property settlements, alimony or child support. But let an abuser be caught, and he goes directly for the aggressive criminal lawyer whose cross-examination and obfuscation talents bewilder those advocates already uncomfortable in an intense factual adjudication.

Even after twenty years of this, my despair has recently waned–maybe only for the moment. The Louisiana Supreme Court, now absent the justice quoted above, is redeemed. On June 29, 1999, in the case of Folse v. Folse (No.98-1976 1999 WL 451026 [La]) the court ruled that clear and convincing proof in a custody case of sexual abuse, sufficient to terminate the abuser’s visitation under the Post-Separation Family Violence Relief Act, R.S. 9:361-369, is established by the child’s specific complaints and demonstrations of sexual abuse to her mother and others, including her therapist, and the child’s age inappropriate knowledge of adult sexual behavior. In the most important pro-child, pro-truth decision to come from an appellate court during my career, the Louisiana Supreme Court has demonstrated that the legal system can rationally synthesize statutory evidence and clinical evidence to reach the correct result.

©2003 Richard Ducote