Chapter 8. Courts of Equity


        . . . judges . . . are liable to be tempted by bribery; that they are misled by favor, by relationship . . . and that the opinion of twelve honest jurymen gives still a better hope of right . . .

—Thomas Jefferson, 1789


        In my world, there are no juries. I’m more comfortable with that.

—Hon. Thomas Zampino, presiding family court judge, retired

ULF CARLSSON, THE SACRAMENTO MAN WHOSE WIFE’S ATTORNEY HAD A close relationship with the judge, was lucky in one respect: his attorney had convinced him to pay a court reporter to transcribe the entire proceeding. The cost for three days was roughly $2,000, but Carlsson considers it money very well spent. Unlike Danielle Malmquist, owning a copy of the transcript allowed him to immediately file an appeal.

In family court, however, the “right” to file an appeal means little more than the “right” to spend $40,000 more on legal fees in order to go back to square one. As Mike Newdow points out, family court judges are effectively protected by the vagueness of the “best interest of the child” standard. Appeals courts cannot reverse a judge’s assessment of character or weighing of the evidence unless it would be inconceivable that any judge in the state would make such a ruling. They can only reverse legal errors, and so, if a family court judge decides that it’s better for a child to be with one parent rather than another, which, in effect, allows the judge to game the child support calculation, the parent losing custody has no recourse. No appellate court will second-guess such a determination. “What is there to appeal?” Newdow asks rhetorically. If the family court judge evaluated the parents first-hand in the courtroom and decided that one parent was more “fit” than the other, what can an appellate court say? Appellate court judges do not meet the parents; they merely read legal briefs and search for legal errors. They cannot claim that they can make a better assessment of character by reading a document. As a result, in California, where both Newdow and Carlsson were divorced, only a small fraction of family court cases are overturned on appeal. Buy the book to read more…

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