Toby and his brother and sister are psychological time bombs.

The three children, all under 10, are moving headlong into a variety of mental illnesses—some of which, say psychologists, have already begun. Those psychologists say the trouble boils down to two primary reasons: Their mother and father's love for them.

And their parents' deep-seated, venomous antipathy toward each other.

Toby and his siblings are the victims of divorce—in this case, a particularly ugly one fraught with charges and countercharges of child abuse, neglect and vengefully motivated brainwashing. Charges have been leveled by one parent at the other and then returned by counter salvo. Under the guise of love, the parents have fought for custody by trying to turn the children into allies—vilifying their former mates and using an arsenal of incriminating charges so the children will choose them as the victor, that is, the parent who gets the kids.

The case has been in and out of the Marin Family Court for several years—and the toll on the children cannot be overestimated.

These children, and others like them in other contentious custody battles, are among the centerpieces of a 10-year long battle waged by a group of zealous reformers hellbent on overhauling the Marin Family Court system—a system they claim is rife with corruption and infused with cronyism. And, in general, not following the law in the determination of custody cases.

Investigative reports have been made; some court reforms have been instituted. But critics maintain they are superficial.

As a result of this highly charged controversy, state Sen. Mark Leno, whose district includes Marin, is asking the Legislature's Joint Legal Audit Committee to investigate the Marin courts—as well as numerous others in the state—to ascertain if, in fact, there is a problem.

And, if so, what to do about it.

Keeping it in the family

Marin Supervisor Charles McGlashan, who has endorsed the idea of a state audit of the courts, said in an interview he is hopeful an audit would "settle the matter one way or the other." He indicated the issue is not simple. "The courts believe they have made very complicated decisions, and in many cases with mental health issues" adding to the complexity. It would be good, says McGlashan, to settle this in a business-like fashion rather than the "he said, she said" nature of the controversy that has been the hallmark of the decade-old dispute.

For at least some there is no doubt serious problems exist.

Kathleen Russell, staff counsel to the Marin-based Center for Judicial Excellence(CJE)—which has become a primary critic of the family courts—says, "Mothers, fathers, professionals and advocates all agree that the current family court system is broken—and it needs a complete overhaul."

Russell, who helped found the CJE in 2006 and has a take-no-prisoners zeal about court reform, adds, "The system desperately needs oversight, accountability and sunshine, since problems will always fester in the dark as they are now."

Linda Bernard is a mental health professional who operates primarily in Sacramento—another place under fire for its family-court practices—but has also worked from time to time on Marin custody disputes. She describes her experiences in the Marin courts as akin to being shunned as an outsider.

Bernard says that on occasion she's been brought in to evaluate the children in a particular case and found that she was largely ignored; the court and lawyers, she says, paid attention only to the small number of mental health professionals who customarily are involved in these cases.

She says she typically has not been allowed to talk to clients or even the attorneys. So she has been left with reviewing documents and talking to people with the intention of "looking at the case for red flags." Bernard adds, "I don't recall ever having a positive outcome from a case."

And that is because, she says, those associated with the family court are "an incestuous part of the court system—with buddy therapists, buddy mediators."

"If you are from the outside you are ostracized very quickly," says Bernard. "The court tends to think the rest of us are just hired hacks, yet I am considered one of the top people in my field."

Kim Turner, executive officer of the Marin Superior Courts, says she and other court officials are aware of this perception. It is precisely why they have launched a series of new programs aimed at helping those who cannot afford lawyers—a chief complaint of the critics—as well as other steps aimed at making the family court more accessible and user-friendly.

"We are trying to develop programs that will really, really help people, even if they are self-represented [with no lawyers pleading their case] so that they will have a fighting chance," says Turner. "We are making sure to provide as much service as we can for self-litigants because they are at a little bit of a disadvantage, including putting [legal documents and procedural requirements] into plain English and Spanish. We want to make sure the court is open and available to all who need it."

The kids aren't all right

In the meantime, Toby (not his real name) and his siblings—and numerous other children in similar circumstances—continue to bounce around in the legal system as their parents relentlessly maneuver for custody. And the children are suffering.

"Without some kind of [psychological] intervention," warned a psychologist who performed an evaluation on Toby and his sisters, "prognosis for the mental health of the children is grim." The little girl, according to court documents, is particularly worrisome. The psychologist's concern, states one document, "is about the integrity of her personality; she could become more fragmented than she already is, with the risk of serious mental illness." The two other children exhibit symptoms of depression and anxiety because, according to the documents, they are being tugged first by one parent then the other in the parents' attempts to enlist them as allies.

Court critics charge that cases such as Toby's have become explosively fractious and overheated because of a court system that works at a snail's pace and depends too heavily on a coterie of judges, lawyers and mental health professionals who are more interested in the fees they are paid than in working toward settlements that are acceptable to parents and, most important, in the best interest of the children.

Referring to Toby's case and other custody disputes like it—some of which have been tied up in the courts for as long as six or seven years—Turner says, "These are very difficult cases...and my heart breaks for children who should not be exposed to these kinds of perpetual conflicts." Referring to Toby's case and two others that have been embroiled in bitter fights between parents and disagreements about evaluators, lawyers and judges, Turner says the court has bent over backwards to be fair.

"Three of five cases had full trials in the last couple of years," she says. The cases have been "very difficult" and the complaints are now coming from the "aggrieved parent who did not end up with custody, [even though] the judges reviewed mountains of documents from clinicians and evaluators and mediators who are clinical psychologists. There has been a lot of focus on getting these cases right."

The CJE argues that rarely is the family court system "getting cases right." Which is to say there is a growing chasm between the courts and those who want to reform them. Ironically, the CJE, according to Russell, began with the notion of working cooperatively with the court to see what could be done to improve allegations of a fractured system. But things quickly turned sour as first one side and then the other dug in their heels, resulting in lines being drawn in the sand and each side lobbing charge after charge after charge. The atmosphere has become so toxic that it is virtually impossible to get below the smoke of exploding verbal bombshells to determine if there are indeed some fires.

"Our concern is that CJE and other special interest groups are trying to politicize the judiciary," says Turner. Judges and lawyers, she says, "should answer only to the rule of law. The judges have to block out all distractions and rule on the facts in front of them. The Legislature has worked and enacted laws over the years [and they include] that the judge's primary requirement is to protect kids. Family mediation and custody evaluation were created to make sure that judges have good information."

Not surprisingly, CJE's Russell has a different take on the situation.

"Lawmakers need to wake up and start listening to the parents and children who survive these ordeals," she says. "They must get over claims that any sort of judicial oversight is an attack on judicial 'independence.' Judicial oversight is a legislative mandate."

Besides Russell, there are numerous other critics of the county's family courts—some of them plainly disgusted with experiences they have had when working on child custody issues. Their criticisms are numerous, but time and time again, one after the other, they wind up in the same place: cronyism. Specifically, they mean there is a small group of lawyers, counselors and mental health professionals involved in most custody cases. They say outsiders—including those appointed by the court to offer independent evaluations of custody-fight participants—are treated with condescension and rarely listened to when recommendations are made.

Adventures in 'baby-sitting'

Leslie Johnson, a retired social worker who for 23 years worked for the county's Child Protective Services, says she was relegated to a "baby-sitter" for the children involved in a dispute—rather than as someone who was there to evaluate and make recommendations. The lawyers for the children (in some instances the court appoints a lawyer to represent the children) rarely saw them. "In some cases I was seeing the kids more than the court-appointed attorney." She says she was involved in cases where two children from the same family were telling her different things about their situation. One child accused a parent "of doing something wrong," from an emotional-abuse standpoint, and the other kept asking why they could not see that particular parent. In the end, she says, the court awarded the children to the parent who had been accused of the emotional abuse. Johnson says she was "unnerved" that nobody was listening to the children or to her. "The attorneys were really ticked off that I was not playing favorites and they did not want me to supervise anything," she says. "There is no reason for that. Kids are being put into the middle of issues that they should not be in the middle of. Parents are getting the divorce—not the children."

Johnson says the system needs to change. "There are laws on the book and the laws need to be followed. I don't tell attorneys what to do, I don't want them to tell me what to do. The law has to be consistent; kids need to have attorneys that are there for the kids. If [the court] can't find one then the court needs to hire social workers to do it—because we won't take sides. Things need to change!"

No one could agree with this sentiment more than Barbara Kauffman, a Marin family law attorney who is representing clients in some of the most contentious and troubling cases now before the court. She is not one to couch her criticisms and charges in the diplomatic niceties of her profession, often dripping with inferences and innuendo but seldom aimed at the heart of the target. Kauffman's target in this case are the judges, family law attorneys and mental health professionals most frequently involved in bruising custody cases. She flatly accuses some of them of brazenly breaking the law—by ignoring disclosure requests or impeding attempts at mediation—in the interest of prolonging cases to make more money and forcing the opposing lawyer, frequently representing less affluent clients, into one-sided custody decisions that do not reflect the best interest of the children.

As a result, her clients and others like them "get embittered because they didn't get justice."

"The majority of judges are good and try to do their job," Kauffman insists. "But there are a few bad judges—and when not brought into line it gives the entire judicial system a bad name."

She said that, despite some changes in the family court system (a number aimed at helping lower-income individuals who represent themselves), the sometimes arcane legalities of court proceedings are more difficult to understand than ever because "the same group of people are in the system."

And it is the children in custody battles who pay the price.

Angela Browne-Miller is a Corte Madera psychologist who frequently deals with children of divorce. Though she has never worked directly with the Marin Family Court she has strong feelings about what the children go through in a contentious, bitter custody fight.

"I hear young people sitting in my office say that they feel no one really understands what they are going through, that even they do not really understand what they are feeling," said Browne-Miller. "These children and teens want to know that they are safe and secure. They want to know what is going on around them, and want to know why they have no control over the process.

"They want to know whether any of this is their fault; they also want to know what to do about their own anger."

Many of these young people experiencing prolonged litigation are angry and not sure what to do with their anger, says Browne-Miller. "We have to find effective means of expression for these children and teens before the anger and pain get expressed in damaging and dangerous ways."

Disorder in the court

The controversy involving the Marin Family Court began nearly a decade ago when a group of critics claimed the court was infested with cronyism and corruption. They also charged that the system favored well-connected lawyers who were professional and social friends of judges and others in a tight-knit circle of family law practitioners.

This led to a recall campaign targeting judges and a former district attorney that went down in defeat.

Subsequently, critics hired New York journalist Karen Winner to investigate the courts. Her report in 2000 confirmed the suspicions and allegations of those who had hired her. The report, however, was filled with innuendo and charges many believed were unsubstantiated; as a result, the report was largely discredited.

The court then went on the offensive and requested and received an independent review of its operations by the National Center for State Courts (NCSC). This report, released in 2002, "did conclude that allegations of favoritism and cronyism might have resulted from the small size of the bench, the family law bar and the professional mental health community in Marin County." The NCSC did not investigate any specific charges against particular lawyers or judges, saying it was beyond the scope of its examination.

The report said the "negative perception" of the Marin Family Court "is not atypical of family courts across the country. The courts...are 'disfavored'...because family and juvenile matters are often considered unworthy of the best judges, attorneys or court facilities and often rank well below civil and criminal matters in importance. As a result, family law courts are often underfunded and underresourced." Because of this, the report states, "they are courts in which only a few exceptionally dedicated professionals are willing and able to commit their careers."

The report said many who were interviewed by the NCSC believed that "court managers and judges themselves undervalue the Family Law Division. This is evidenced by the fact that judicial staffs and program resources are disproportionately underrepresented in the Family Law Division."

In one telling finding, the NCSC report states, "Public trust and confidence in the family court system is eroding." And in another place it adds, the Marin Family Court system "suffers from chronic community and internal devaluation."

State Sen. Leno, in a recent interview, said he was particularly concerned with allegations that abusive parents had been given custody of children in some Marin cases, which is what the CJE is focusing on at the moment.

At play here is something called the Parent Alienation Syndrome (PAS), which essentially is a theory that one parent can manipulate his or her children to dislike or fear the other parent through hostile statements made about the other parent in a custody dispute. There are those, the CJE among them, who say this syndrome has masked true cases of abuse under the theory that such charges by children are inaccurate and the result of PAS. It is yet another layer of the multilayered controversy that continues to cast shadows over the workings of the family court.

"I think the argument can be made that the intent of the audit is to put questions to rest," said Leno.

While the audit attempts to lay questions to rest, Toby and his brother and sister will remain pawns in a psychologically damaging battle between two parents.

Both believe they are fighting for the best interests of their children—in a system they are convinced is corrupt.

The Center of the judicial hurricane

Kathleen Russell of the Center for Judicial Excellence is a person in constant motion. One day she is at the organization's office in San Rafael, the next day she is in Sacramento lobbying for her cause, the next two days find her in Washington, D.C., doing the same thing—always armed with her cell phone from which she shoots off countless messages to supporters and those she is hoping to enlist.

Her energy level is as remarkable as her commitment to her cause: reform of the court system in Marin...but also in the state...as well as throughout the country.

She puts it this way: "The Center for Judicial Excellence is primarily focused on our mission of improving the judiciary's public accountability and strengthening and maintaining the integrity of the courts."

Russell came to Marin by way of the northwest and Montana where she was on the staff of Democratic U.S. Sen. Max Baucus. Her former direct boss, Jim Messina, is White House deputy chief of staff. She knows the political system as well as the press and how and why it covers stories, and she uses this ability to get the CJE's message out and convince others, from journalists to politicians, to join her cause.

CJE, she says, began in 2006 when, as she puts it, a small group of concerned Marin residents got together in the living room of former civil grand juror Martin Silverman and decided to work on Marin courts to improve "transparency and accountability."

"We wanted to be proactive in helping improve our local courts," says Russell. "The founders were concerned about persistent reports that the rule of law was routinely being ignored due to cronyism and the influence of money in Marin County's family, civil and probate courtrooms."

But, she says, the CJE almost immediately hit a stone wall and, "sadly, Marin judges and the court executive officer have steadfastly refused to meet with CJE from day one, despite numerous invitations from CJE to work with us." So, Russell took her crusade public with the aim of putting pressure on the courts—through legislation, contacts with the media and putting a film together about the alleged judicial wrongdoings—to reform.

Russell says the CJE is a nonprofit that is funded through a combination of foundation and government grants and individual donations. She also says money comes from sales of the CJE film Family Court Crisis: Our Children at Risk.

Its staff consists of Russell—a consultant on contract with CJE's board of directors—another consultant, Steve Burbo, and a part-time administrator, Jean Cabonce, who manages the small office on San Rafael's Fourth Street.

Asked how the change she wants to see should come about, Russell said: "First and foremost, the state Legislature needs to step in and ensure that the family courts are following the laws that are on the books. The Legislature gives the California courts more than $4 billion per year, and yet there is little to no oversight in terms of actual judicial performance, despite this massive expenditure of state taxpayer dollars. That is neither good business nor good government."

—Don Speich

Contact Don Speich at dfordonny@yahoo.com