Attorney sanctions as a way to stop blaming

[VIDEO: "What is parental alienation?"]

In the midst of a difficult divorce and custody battle with suspected BPD ex. Representing myself in court and broke, I discovered the night before an Ex Parte appearance (at her frivolous request) last week that I was allowed to ask for attorney fees in open court (she's hidden money). So I was sitting here over Independence Day weekend, working away on my Declaration supporting that oral request... .I was planning to ask for attorney fees under Californida Family Code § 2030 (needs based) and § 271 (attorney fees imposed as sanctions for bad litigation behavior). I was having a really hard time of it, working so painfully slowly, squeezing out ten pages or so over two fourteen hour days.

I found myself caught in the same place I had been previously - my Declarative Response to her Ex Parte was in my opinion at the time a slam-dunk; a neat tabulation of all her offenses against our custory orders, with extensive video, audio, and text message evidence. It was all rejected by the judge. Anyway, I've become convinced that my ex's attorney is a scumbag enabler of the first water. I was planning to seek sanctions against him personally, under a recently resurrected law, California Code of Civil Procedure 128.5, that just came into effect this January.

Today I had a brain-wave. Everything I've been reading about alieanated children (the oldest of our three children, a boy of 14, feels that he hates me suddenly) says that the two worst things for children is parents who blame each other, and differing takes on reality - on what "really happened." How could I not blame her? She was attacking me, had made false allegations against me, was trying to cut me out of our children's lives, is using the alienation of our oldest as a wedge issue, was hiding money, driving me to banktruptcy, etc. etc.

All true.

But then I thought - why not pull away all blame (or as much as I can) from my pleadings, and direct them all, or as much as I can, to her attorney? That's only been possible in California since January.

It's actually an 3-year experiment by the legislature - you have to send a copy of your caption page to the Law Research Library in Sacramento. They're going to track how that law helps to reduce bad-faith negotiation tactics by attorneys.

My ex's attorney, I'm convinced, is such a bad-faith actor. He senses her personality disorder, and he knows she and her parents have tons of money, and he's milking it. That's wrong. I'm going to try to stick it to him. We'll see how that goes. Maybe if I direct all my "blame" to him, and keep it to a minimum towards my ex-, the judge will take it as "in the best interests" of our children to sanction this ass. His behavior is really making everything worse.

Although I find myself resisting the fantasy of thinking that my ex will get any better (I'm reading Tara Palmatier's excellent Say Goodbye to Crazy), at least neutralizing somewhat the power of noxious bystander might help.

[tangentcity]

In the midst of a difficult divorce and custody battle with suspected BPD ex. Representing myself in court and broke, I discovered the night before an Ex Parte appearance (at her frivolous request) last week that I was allowed to ask for attorney fees in open court (she's hidden money). So I was sitting here over Independence Day weekend, working away on my Declaration supporting that oral request... .I was planning to ask for attorney fees under Californida Family Code § 2030 (needs based) and § 271 (attorney fees imposed as sanctions for bad litigation behavior). I was having a really hard time of it, working so painfully slowly, squeezing out ten pages or so over two fourteen hour days.

I found myself caught in the same place I had been previously - my Declarative Response to her Ex Parte was in my opinion at the time a slam-dunk; a neat tabulation of all her offenses against our custory orders, with extensive video, audio, and text message evidence. It was all rejected by the judge. Anyway, I've become convinced that my ex's attorney is a scumbag enabler of the first water. I was planning to seek sanctions against him personally, under a recently resurrected law, California Code of Civil Procedure 128.5, that just came into effect this January.

Today I had a brain-wave. Everything I've been reading about alieanated children (the oldest of our three children, a boy of 14, feels that he hates me suddenly) says that the two worst things for children is parents who blame each other, and differing takes on reality - on what "really happened." How could I not blame her? She was attacking me, had made false allegations against me, was trying to cut me out of our children's lives, is using the alienation of our oldest as a wedge issue, was hiding money, driving me to banktruptcy, etc. etc.

All true.

But then I thought - why not pull away all blame (or as much as I can) from my pleadings, and direct them all, or as much as I can, to her attorney? That's only been possible in California since January.

It's actually an 3-year experiment by the legislature - you have to send a copy of your caption page to the Law Research Library in Sacramento. They're going to track how that law helps to reduce bad-faith negotiation tactics by attorneys.

My ex's attorney, I'm convinced, is such a bad-faith actor. He senses her personality disorder, and he knows she and her parents have tons of money, and he's milking it. That's wrong. I'm going to try to stick it to him. We'll see how that goes. Maybe if I direct all my "blame" to him, and keep it to a minimum towards my ex-, the judge will take it as "in the best interests" of our children to sanction this ass. His behavior is really making everything worse.

Although I find myself resisting the fantasy of thinking that my ex will get any better (I'm reading Tara Palmatier's excellent Say Goodbye to Crazy), at least neutralizing somewhat the power of noxious bystander might help.

[livednlearned]

Hi tangentcity,

I'm sorry you're dealing with all of this at once, and the alienation of your 14 year old on top of everything. It's so stressful and unrelenting.

That's an interesting law. Is it too new for there to be case law you could research? What the laws say and how they are tried (and the outcomes) seem so unpredictable. Will the Law Research Library in Sacromento counsel you at all? Is the law specifically for family court? I wonder what led to the creation of this law, that usually guides how it will be interpreted.

My experience is that you cannot ask for attorney's fees if you are pro se. Could be different where you live, best to check into it to be sure.

Why do you think the judge rejected your declarative response? Did you have a specific request or solution that was denied?

[tangentcity]

livednlearned,

The law allowing sanctions against an attorney personally was just made into law on January 1 2015 by Governor Brown. It's a ressurection of an old law, California Code of Civil Procedure 128.5. It replaces 128.7, which had a "safe harbor" clause, where you had to ask the offending party to withdraw their bad-faith motion, and if they didn't for a period of 20 days, only then could you seek sanctions against them. 128.7 made it impossible to draw attention to bad-faith tactics that have already happened, since you can't undo something that's past, the "safe harbor" provision gave immnunity against any possible sanctions under 128.7.

128.5 is so new, there's very little case law about it that I can find on Google Scholar; no Family Law cases that I can find. From what I read about how the bill was voted into law, typical "bad faith" tactics in Family Law are the problem this law is meant to address. For example of just such a banal, routine, but nonetheless harmful bad-faith tactic, consider my ex's attorney saying in court  at our preliminary custody hearing (I quote from the transcript) "He would not eat with the family because he has his own separate dietary needs. He has his own meals," which makes me sound like I belong somewhere on the spectrum of autistic disorders, whereas I have actually been following a paleo diet for three years now, that my ex actually really started appreciating as well. Just bog-standard mud-slinging - it got worse than that of course: I got close to being accused of being a child abuser. Total character assassination. This in the context of a custody hearing where children's lives will be affected.

Here's another thing I'm thinking of including in my request for attorney sanctions: objective proof that her false allegations have caused me prejudice. My ex tried to paint me as an alcoholic. The judge didn't buy it. And yet I was dismayed to read in the Minute Order the phrase "Court admonished Respondent about alcohol use in front of the children." That's just not what you can read in the actual full transcript not at all. But my ex and her attorney expended a lot of effort trying to get that to stick. So some of it stuck with the Court Reporter. I don't blame her (the Reporter) at all; Minute Orders are written the same day by someone who sits there processing non-stop talk from dozens of petitioners and respondents and attorneys a day. They're supposed to boil it all down to its essence. That she got that bit wrong show the proof of the adage that if you throw enough mud, some of it will stick.

Why do you think the judge rejected your declarative response? Did you have a specific request or solution that was denied?

I think I annoyed the judge by the sheer volume of my Declarative Response. I had a maximum of ten pages. I looked up the Court Rules, and used 1 ½ interline, rather than double (1 ½ is allowed, by almost every attorney uses double-space, all the time), and used up my full ten pages. Then, I included fourteen attachments, evidence that was cross-referenced in my declaration (it was all neatly tabulated and organized in a legal binder (with the holes at the top); the clerk said it was "beautiful!" when she accepted it); there were about 200 pages of texts between my SBTX and I; there was a thumb drive containing a video of a confrontation with my STBX, as well as an mp3 of a conversation I'd taped with her mother. (I also included case law to show that it's not a crime to surreptitiously tape a conversation you're part of, if you don't use the conversation for tortuous or criminal purposes); I included a transcript of that conversation.

Those two pieces of evidence were for me, slam-dunk proof of the sick coalition that my ex- and her mother have formed with our older alienated son against me.

First, in the video, my ex openly flouts the court order: "If he fights it, I will fight it," she said of our son, who was right there with us on the sidewalk. It was my custody time, and she was refusing to leave; basically waiting for me to force him into my car. I wouldn't, and she wouldn't leave. It was a Mexican standoff for a good hour.

Second, in the taped conversation, my ex-mother-in-law says at one point, "A father is not a school." I had told her that you don't allow children to decide whether or not to go to school. You could listen to their fears, soothe them, but you don't make it an option. When she said that, and also said, "Make them feel comfortable, make them feel loved, then maybe they'll be more comfortable staying with you... ." to my ears it was flagrant how she was saying in effect that I wasn't making them feel loved; that the apartment I'd rented was a cold, unloving place, and that's why our oldest (of three) children hated me and didn't want to come with me.

The judge said that she had a more "child-centered attitude" than I did. And somehow me videotaping (with my iPhone) the confrontation with my ex while our son was there was painted (by her attorney) as a worse act than that of openly (on camera) defying the court order (my ex siding with our son against me). That's how the judge saw it too.

I know a lot of these details get boring very quickly. At a higher level, I was shocked to experience something I'd read about, about the almost magical ability of BPD-people to SEEM more "together", more loving, more stable, than the "target parent", the one who's the focus of all the hatred and vengefulness that others (judges, therapists, bystanders) see as tender mercy towards the children.

Dr. Craig Childress in a post just the other day www.drcraigchildressblog.com/2015/07/02/be-kind-relentless-but-kind/, made an important point about "how we come off". I think in my zeal, with that two-pound binder (a 10-page declaration with 200 pages of exhibits), I came off as somehow "unhinged" in a way. It's not fair, of course.

Another thing that blew up in my face: I made a complaint the the Behavioral Sciences Board about a "therapist" we saw with our alienated son; the man was shockingly bad; as I wrote in my complaint, in the first five minutes of our meeting, when I said that  my ex- had told our children of my affair, spittle flew from his mouth, and he yelled at me, "What do you want me to do, take her by the neck and say `don't do that?'"

He was a horrific "therapist", but there again, the judge told me that I lost credibility by walking out of therapy and complaining. He said there was no evidence before the court that that therapist was not competent. I had included my complaint in my filing. The mine-field of therapists not knowing about parental alieanation is frightening. Karen Woodall has written eloquently about this in her blog post "the lesser spotten alienation aware professional" https://karenwoodall.wordpress.com/2014/11/14/alientation-watch-the-lesser-spotted-alienation-aware-professional/. Ignorance predominates; in spite of that, as Dr. Childress reminds us, we have to be kind. Difficult. I think I came off as too hard. Too harsh.

It's another no-win situation. If you don't fight it, "give her everything she wants" as I've been counselled to do by many men who've done just that, and have had extremely tenuous relationships with their children as a result, well, she wins, I lose, the children lose. If I fight it, I'm "keeping the conflict going." That's why I got momentarily excited by the resurrenction of CCp 128.5 - in theory, it would allow some blame-shifting away from one's ex towards sometimes the really guilty party in an action, that is to say, an unscrupulous dirt-bag of an attorney milking and goading a woman's psychological wounds and unawareness to extend a profitable conflict, without regard for the children involved.

That's the theory. I'll let you know how it works out!

[Sunfl0wer]

Our state allows this.  Our last attempt at court we were asking for attorney sanctions.  Our L didn't want to, I think he felt it would alienate him among his colleges.  We insisted that we were going to follow through with the sanctions with or without him and he eventually agreed.  Interestingly enough... .that was the issue that didn't make it to court and actually got negotiated... .painfully negotiated ... .in mediation.  I think the L of the exW after that helped to counsel his client more effectively... .as I could hear it in her email language.

[calidad]

Curious - why did the judge reject your evidence? I'm in a similar boat. 5 years of records with an uPBD/NPD and tons of evidence showing she refueses to co-parent, many accusations, blaming, uniliateral decisions, direct orders to me, suicide threats and more. I want to learn from your situation if you're generous enough to share. Thank you!

[tangentcity]

"Accepted" as evidence by the judge has (so far as I know) at least two completely different meanings: admitted as evidence in the sense that it doesn't flout rules against hearsay, it's recognized as authentic, etc. My exBPD's attorney of course tried to get all my attachments and declaration, in their entirety, rejected as lacking a foundation of personal knowledge! Twenty five years I've known this woman, three children with her. Okay... .I think it all got accepted. One of the major difficulties of being self-represented is that you can read up on the rules all your want (for example, I included a single-point "Points and Authorities" document stating that I had a right to submit as evidence a conversation I had surreptitiously taped, because (a) I was part of that conversation, and (b) my use of it and no criminal or tortuous intent), but you won't know the unwritten rules about what happens in family court. Another example: just from reading Sunfl0wer here, did I understand the "in-club" mentality that allows so much straight out lying and slime-bucket tactics to happen unopposed: lawyers don't want to "attack" other lawyers. I hope all California "in pro per" men and women going through a hellish divorce with a BPD ex aided and abetted in her or his pathology by a slime-bucket attorney avails him or herself of CCP 128.5 in the three-year window we've got here.

The other aspect is, why wasn't the judge swayed by my to-my-lights overwhelmingly convincing evidence that my ex was alienating our older son against me?

Simply put, the things that were convincing to me were no so seen from those players on the outside. Maybe they would have been convincing to people "on my side", my friends. But not to the judge.

I walked out of one session with a horrifically incompetent "therapist" against whom I wrote a complaint letter with the Board of Behavioral Sciences. That therapist wrote a letter saying I was the angry one, that the problem was with me and between my son and I; I used that letter to amend my complaint, and included that in my filing with the court too. How could anybody read that and not see how horribly biased this guy was? Well, maybe because I also declined to continue therapy with a SECOND therapist, one I had chosen myself (because of her having been trained by Bill Eddy's High Conflict Institute). I didn't complain about that second therapist mostly because I didn't want to seem like a crank. But this second stated she did had never heard of Dr. Craig Childress and was not interested in reading any articles by him. As Dr. Childress says, a patient should never be in the position of having to educate the doctor.

I suppose it's not too difficult to see how that could make me seem like the stuck-up, emotional one. It's part of the nightmarish aspects of being the "targeted parent" that to the outside world, you  can indeed come off worse.

The judge said that there was no evidence before him that either of those two therapists were not competent. I thought that the content of my complain letter would give him a clue about that, but no.

The conversation I taped with my ex-mother-in-law. I included the mp3, and a full transcript. "Make them feel comfortable, make them feel loved, and then they'll be happy to spend time with you." Said in such a sweet voice. Nightmarish to me. Witch-like! Here, eat this sweet apple, deary. Implying that it was all my fault, that I wasn't making them feel comfortable and loved.

I had a video of my ex saying, about the custody order and our alienated son, "If he wants to fight it, I will fight it." Openly siding with our son against me. Saying that right in front of him. I had panned the camera to show that he was there with us. (This was outside on the sidewalk after the first therapy session.) Her lawyer tried to spin that as I was the bad guy: "And did he pan the camera to show your son crying?" As if i was doing that to humiliate or manipulate him. I was doing that because I was shocked that my ex could so openly flout the custody order, so openly side with our son against me, with him right there. I don't know why that didn't get traction with the judge. It's part, again, of the weird nightmarish situation (calling for "ju jitsu" techniques www.drcachildress.org/asp/admin/getFile.asp?RID=63&TID=6&FN=pdfI evidently don't have yet) with BPD + alienation, where the alienating parent comes off as normal and child-centered, and you're the one who comes off as unhinged and suspiciously emotional.

The ONE THING that semi-impressed the judge was my testimony that our son had thrown a ball in my face from two feet away, and that my ex had yelled, "You deserve it."

The judge asked her what kind of ball it was. A bouncy ball, says she. (Ok, it wasn't a baseball, but it wasn't a mushy little toddler's ball, it was like a smaller basketball, should we bring that ball in and examine it - and right away you're caught in the spider's web of irrelevancies.)

Then the judge said that her yelling that I deserved it was maybe a sign that there was something going on here. I think he might have said the word "alienation." (I also asked for the transcript, and it'll probably be several months before I get it.)

My ex then tearily justified her saying that: "I ran across the field to find my son being chased by his father." I had indeed ran after him after he threw the ball in my face & yelled "I hate you." I had just caught up with him when she showed up and asked what was happening; it was when I told her that she yelled (again, right in front of him) that I deserved it. It's a fascinating thing in a way, like cognitive distortions can be fascinating, but I can totally see why somebody, like a judge, hearing this story can side with Mom over Dad here. Mom's the one, along with her mother, who has a "child-centered" attitude. Dad's a little high-and-mighty and angry and full of himself. Firing off complaint letters about therapists!

I can't wait to see what the judge will think of my request for sanctions against her lawyer personally. To my lights, I have documentary evidence (the hearing transcript) that he lied to the judge, and caused me prejudice. (The minute order states that I was admonished by the Court about alcohol use in front of the children; the trial transcript shows no such thing; rather, my ex's attorney made allegations, which I denied, and which the judge did not find credible. But fling enough mud, some of it sticks - which is why the judge himself cited Evidence Code 352 (evidence that is more inappropriately prejudicialy than probative (that is, helping determine the truth of a matter), can not be admitted) to stop her lawyer from flinging any more mud against me.

To a large extent, the adversarial system might be a huge cock-up that doesn't make sense to us, the bit players, but to the main actors, it's all business as usual. Perjury is routine. Mud-slinging is par for the course. It's sick.

The take-home message is, don't stop. Don't stop documenting everything. Don't stop simply telling the truth. Always be ready to engage in self-criticism. Invite criticism, but don't give up on your take on things.

My son who feels he hates me now only is with me six nights a month, whereas his two siblings are with me eight nights a month. The judge at the ex parte hearing gave me a lecture about how sometimes children go through a normal reaction of scorn towards the parent who was unfaithful. He said he wasn't supposed to know it, but he knew that I had had an affair,  and that though sometimes the marriage was broken a long time before a person has an affair due to the fault of the person who didn't have an affair, which is why California is a no-fault state, the children can't see that.

So he modified the custody order so that the son who hates me now has the option of going back to Mom on Saturday morning rather than Sunday night when it's his Dad's weekend. Which of course he has been availing himself of since the hearing.

I have a hearing scheduled for 9-02-2015 for my request for a 2-5-5-2, 50:50 shared parenting schedule. At that point it'll be almost a year since I left the house and was sued for divorce after my ex had discovered I had had an affair. I can just see it now: before, it was, well, give you son a chance to get over his scorn for you; you rocked his world, you hurt his Mom. A year later it'll be, well, that's what he wants. He's fourteen now, you can't force a 14-year old to be with one parent or the other. And so in some ways I feel the battle's already lost to save him. I don't expect we'll ever have the close relationship we used to have before all this began. This summer's gone for me: I've used up all my vacation days working on my case, so I can't take them on a "detox" vacation where we'd be able to just be and have fun like we used to.

The stark truth is that no matter how hard you work, how carefully you marshall evidence and tell the truth, without the weight of the mental health field (therapists who understand alienation) and the Courts (enforcing custody orders), it's almost impossible for a targeted parent to win (to successfully fight the alienation process set in motion by the BPD parent's personality issues). That's where Rudyard Kipling's poem "If" comes in handy!

Good luck, and keep us posted!

[momtara]

didn't read all the responses, but are judges loathe to sanction lawyers?

also, it may not be wrong for your attorney to take your wife's money unless he is intentionally misleading her.

there was a local case here where I live where 3 attorneys got sanctioned for a different kind of case because they knew they had no evidence and still went to court with it, so you might have something there. maybe post on avvo for free to get some thoughts?

[tangentcity]

Momtara, absolutely there are loathe to. Or maybe it's the District Attorneys - apparently perjury is a criminal, not a civil matter, and the DA would have to press charges. And so day-in, day-out mudslinging and lying by lawyers is allowed to take place. But 128.5 doesn't actually specific perjury, rather it's about bad faith tactics meant to harass or delay. Perjury I certainly qualify as a harassment.

But I'm taking the new law here in California (CCP 128.5) as an invitation to change "business as usual." I don't expect my attorney would have have agreed to seek sanctions against my ex's attorney, but I don't have an attorney anymore, having run out of money. So that gives me the freedom to do what I think is right and just.

By the way, my ex's attorney is seeking Family Code 271 sanctions against ME, for daring to submit a Motion to Set Aside a child support order that was based on fraud and perjury (my ex hiding money). He is seeking $1,500 sanctions. I just added a zero to that to come up with a figure for the sanctions I'm seeking against him.

Like I said elsewhere, I have no expectations that all this will actually work. But it's worth a shot.

Like Homer Simpson said, trying is the first step to failure. You got to take that first step! ; )