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Master's Orders

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Terri Groat-Ellner

When warring parents choose a special master, they're giving away more than their rights. They might even be giving away their kids.

By Richard Sine

LATE IN the evening of Jan. 22, Dr. Michael Kerner faxed an order to Nancy Hart stating that before dawn the next day, two strangers would arrive at her home to whisk away her 13-year-old daughter, Lisa, to a wilderness camp in Idaho. Then the psychologist--and, in this case, the judge, jury and executioner--called Nancy to warn her that if she told her daughter of what was to happen, she would be held in contempt of court.

The next morning at 5:30am, the escorts arrived at Nancy's Cupertino home along with Lisa's father, his wife, and a brother of Lisa's who now lives with his father in Hillsborough. The escorts told her she was going to a wilderness school in the Rockies, but didn't say for how long. They showed Lisa a pair of handcuffsand said they would use them if she resisted.

Awakened from sleep and taken by surprise, Lisa did not put up a fight. Instead, she walked to the van with the two strangers, sobbing. Nancy's eyes also redden as she tells this part of the story. She says that as she climbed into the van, Lisa looked at her mother and said, "I can't believe you let dad talk you into this."

In fact, Nancy did not approve of what was happening to Lisa. Worse yet, she didn't have the opportunity to tell her this for several weeks, as communication with her daughter was closely guarded at the camp. She claims Michael Kerner, the court-appointed "special master" in her custody case, had never mentioned that children at the camp sleep in a teepees in the snow. Nor, she says, did he indicate that the six-week camp might only have been the precursor to a much longer stay at a boarding school connected to the camp.

Though she has mixed feelings about the camp's effect on her daughter, Nancy Hart (the names of the Harts have been changed to protect the child from the glare of publicity) has turned her wrath against Kerner, whom she feels has abused his powers as special master in the case. Nancy Hart's lawyer has requested in a briefing to the judge that Kerner be removed from his position.

Santa Clara County's family court, long esteemed as a pioneer in family law, is apparently the first in the country to make formal use of special masters to manage custody and visitation battles. Whether appointed by a judge or by the battling parents themselves, the special master's role is to give the detailed attention to visitation and custody issues that a judge has neither the time nor expertise to handle. Once appointed, the special masters gain judicial immunity. Their orders have the same effect as those of a judge unless a judge overturns them.

Special masters, who are usually mental health professionals, mire themselves voluntarily for $100 to $200 an hour into the most contentious and emotional divorce cases in the county. Most attorneys and divorced parents in the court system praise their role in saving time, anguish and court costs. But some of those same attorneys can name the occasional case where they feel special masters have overstepped their bounds, wreaking havoc on carefully wrought agreements. "It's pretty easy for them to get a God complex because they have so much power," said Anne Mitchell, a Palo Alto attorney who nonetheless generally praises the program.

Everyone involved in Hart vs. Hart agrees that Lisa, one of three children of a successful biotech executive, is an insolent and rebellious child. How difficult she is, and what kind of help she needed, depends on who you talk to.

Nancy Hart acknowledges that as Lisa entered the sixth grade last September, her grades had begun a downward spiral. She was suspended twice from school. She began striking her mother in fights. And she played her parents off each other. Her father, Tom, suggested sending her off to a military-style boarding school, but Nancy balked at the option.

Also in September, the second of Nancy's children suddenly left to live with his father, who had moved to Hillsborough in 1994 after three years of living on the East Coast. Now the couple, who had been battling over money matters for years, faced a new problem: visitation schedules for all three children.

Neither parent had spoken to each other amicably since 1990, when the couple separated and Nancy got a restraining order against Tom. After a family court official designed a visitation schedule, the official recommended appointing a special master to implement it. Nancy and her lawyer were especially enthusiastic about the idea: "With a special master, we wouldn't have to go to court over every little thing," Nancy says.

Both parents' lawyers agreed on Kerner, a Campbell psychiatrist who teaches classes in psychological assessment and law and ethics at Santa Clara University Law School. Though he had acted for years as a special expert before family court judges, Kerner was relatively new to special mastering; he estimates that the Harts are his fourth or fifth case.

The lawyers and parents agreed on an order which gave Kerner an impressive array of powers. "The Special Master may make the following types of orders," it read: "a. Changing any time share, visitation schedule or supervision; b. Changing educational plans for the children; c. Changing religious observances by the children; d. Preventing one parent from changing the children's residence; e. Determining appropriate medical treatment (including psychotherapy and substance abuse); f. Ordering both parents/children to individual/family counseling or for psychological or substance abuse testing and have access to any generated reports or results; g. Issuing personal conduct and stay away orders."

The order did put some restrictions on Kerner as special master, however. It said he "shall not change custody" and "shall at no time function as an evaluator" without written consent from Tom and Nancy.

For a kid-eye-view, listen to Lisa's story.

AT THE time Kerner was appointed, Nancy was undergoing a difficult stage in her life. Her father and mother had died within a few months in that year, and she had lost her job as a nurse. Nonetheless, she says that she had started to make headway with her daughter using techniques learned from the Tough Love program. In the final months of last year, Nancy says Lisa began obeying curfew and doing her chores. She abandoned her baggy gangsta gear in favor of Sassy-stylish dresses. In December, she left public school for a special private school where she could receive more personalized instruction.

But things started falling apart again quickly in January. During a weekend visit to her father's house, Lisa and a friend slipped out of the house late at night. Police found the two walking on the street near the father's home. A police officer described Lisa as "rude" and hostile compared to her friend, who broke down in tears.

The next day, a Sunday, Kerner suggested to Nancy that the girl be sent to Ascent, a six-week wilderness camp in Naples, Idaho. A Harvard psychologist friend of Tom's had recommended the program. Kerner had also known one other child who had benefited from Ascent. Kerner told Nancy that the intensive Outward Bound-style program could help break through Lisa's tough exterior and teach her self-reliance. After a conversation with the director of the program, Nancy agreed that it might be a good idea and said she would discuss it with her lawyer the next day. Kerner immediately made arrangements to have Lisa picked up Tuesday morning.

On Monday, Nancy's lawyer tried, in vain, to slow the process down. Donelle Morgan raised concerns about whether Tom was really willing to pay the entire expense of the program, which clocked in at a stunning $20,000. Nancy balked at donating her share of Lisa's child support to the program, arguing that her mortgage was too expensive and she was unemployed. And Nancy had begun to suspect that the transport was a "ruse" by Tom for a permanent change in custody.

Morgan left a message with Kerner stating her objections. But Kerner never returned the call. The escorts from Ascent, who charge $3,000 for their services, had already left for California. Kerner wrote up the order and faxed it to Nancy's home after business hours Monday. Lisa was picked up at dawn the next day, as described above.

Over the coming days, Nancy fretted over her daughter. She says she learned that complaints against Ascent had been lodged with Child Protective Services in Idaho. (The agency refused to comment.) She learned that there was no formal schooling at Ascent, putting Lisa behind in her studies. Lisa and her parents were only allowed to talk through weekly letters, all of which were monitored by the camp staff. In her letters to her mother, Lisa complained of a painful case of frostnip. But she also talked about how she was "learning alot about myself" through the program, including how to be "honest" with her feelings.

On Feb. 2, Morgan filed an objection to Kerner's order with Judge Catherine Gallagher. At the hearing seven days later, Gallagher ruled to keep Lisa at Ascent so she could finish the program. Gallagher also retained an educational consultant, Miriam Bodin, to discuss placement options for Lisa. After talking to Kerner, Bodin suggested placing Lisa directly into a six- to nine-month residential program outside of the state. When a Metro reporter spoke to Nancy Hart in March, she feared that she might not see her daughter for nearly a year.

JUDGE GALLAGHER has advised Kerner not to talk to reporters about the Hart case because of confidentiality rules. But in an April family-court hearing that was open to the public, Kerner was effectively on trial. He defended his actions under questioning from attorney Morgan, who wants him removed from the case.

Before sending her to Ascent, Kerner said he met with Lisa twice, her other brothers at least once, and each parent several times. He'd also gotten several calls from a school official. On that basis, he said Lisa had a "conduct disorder" and was at "grave risk" in her "chaotic" household. Lisa's brothers told Kerner that older boys were climbing in her window late at night. He believed she was using drugs, and had seen an address book that contained clues that she was selling them. He suspected she had an eating disorder. And an official from her public school had called him several times to tell him that she led a clique of campus bullies.

In Kerner's view, Nancy backpedaled on her decision to send Lisa to Ascent mostly on the basis of money. "She went from [saying there was] a kind of desperate need of treatment to asking what's wrong with me [as special master], why didn't I talk to anybody." Kerner testified that Nancy attempted to turn her daughter against him. Nancy has admitted she discouraged her daughter from cooperating with Kerner because she thought he would use Lisa's statements to keep her out of her mother's home.

Nancy and her attorney contend that Kerner should have arranged a thorough psychological exam for Lisa before sending her off to camp or a boarding school. Kerner admitted in testimony that he expected such an exam to occur at Ascent, but that it was not as complete as he had hoped. "I'm guilty of not performing a thorough evaluation of [Lisa]," he admitted in court. "I also feel that with the benefit of hindsight, I made the right decision." He said Lisa believed her mental health had greatly improved from the program.

Undaunted, Morgan called to the stand Los Gatos psychologist Anthony Atwell. Atwell testified that he recommended out-of-home placements only after exhausting "the entire armament psychology had to offer," including individual and family therapy. Atwell said he believed Lisa's trip to Ascent, and the recommendation of a boarding school, was "a treatment without a diagnosis."

Outside the court after the hearing, Kerner began discussing with Nancy the option of sending Lisa to her mother's home by early May. He later ordered that she return to her mother's house and her private school and begin a course of intensive family therapy. (See accompanying article for more about Lisa.)

Morgan, however, still wants Kerner removed from the case. She believes Kerner acted as a de facto psychological evaluator for Lisa, violating the order that appointed him. And she believes Kerner rushed the decision to send Lisa away. After all, she was taken to Idaho only two days before the parents were scheduled for a custody hearing.

'BEING A special master and evaluator is one of the most difficult and high-risk things a mental health professional can do," says Terry Johnston, who shares an office with Mike Kerner. Johnston is the informal leader of special masters in the county.

Judges have long relied on masters to oversee details in complex legal areas such as construction or patent litigation. Special masters also perform touchy tasks: When defense lawyers for O.J. Simpson found a stiletto knife at the football star's home, Judge Lance Ito appointed a special master--a retired judge--to retrieve it. The use of special masters in custody cases is a much more recent phenomenon, so recent that it is nearly impossible to find a mention of the practice in law journals.

Family court observers say that the intensity of divorce battles has been rising along with their burgeoning numbers, clogging up the courts and delaying important hearings. At the same time, changes in state law have pushed cases of emotional abuse that would formerly have been handled by the juvenile court into family court.

Presiding family court Judge James Stewart says the court became aware in the late 1980s of a series of cases that were simply "intractable." "We would try to put a permanent custody order in place, but they came back and back into court. They were just hemorrhaging money. The attorneys were sick of the battle, and so were the parties themselves."

The whole goal of the family court system is to avoid the expense and emotional turmoil that can accompany a divorce trial. Stewart hoped that the use of special masters might get courts and attorneys out of the divorce equation. In 1990, a committee of judges, attorneys and psychologists who had acted as court experts wrote up draft orders for the new program.

THERE ARE no standard qualifications for the role of special master. Theoretically, a couple could authorize anyone to take on the role. In practice, most are mental health professionals and a few are attorneys. They get the job of special master largely out of word of mouth, or because court officials are familiar with their work as evaluators in previous family court cases. Johnston also runs occasional training sessions for special masters on legal and child development matters.

Johnston says there are about 25 people whom judges regularly recommend as special masters in family court cases. They are assigned to about 200 cases, though some of these require much more intervention than others. She adds that there are more cases in which masters are appointed privately.

Since its inception, Stewart feels the program has been a success at keeping battling couples out of court. He says that once both parties in a divorce case agree on a special master, they "almost never" challenge the master's decisions before a judge.

Johnston did a study in 1994 which seems to confirm Stewart's impression. Before a special master was appointed to their case, divorced couples in the program had appeared in court an average of six times during the previous year. In the year after the appointment, the average number of court appearances dropped far below even one per year. Cases as dramatic as the Harts' appear to be rare.

Judge Stewart says that he appreciates the personalized attention and expertise in child development that special masters bring to their jobs. "Special masters get to see these parties on a more regular basis and for a longer period of time than when you meet in your chambers. And they are trained in child behavior and needs at each age. They feel very comfortable, for example, interviewing a child. I do not. I'm not trained to do that, I don't know the dangers to look for. They are more able to see if one party is trying to subvert a parenting plan, or if a child has been programmed by a parent [to speak negatively about the other parent]."

Special masters plunge themselves deeper into the affairs of some very dysfunctional families than most judges ever will. But they also have powers that approach those of a judge. The combination of power and intimacy can make the job downright dangerous. Special masters enjoy the privilege of judicial immunity with none of the protections or pretensions of a judgeship. "The judge has a bailiff at the door," Johnston observes. "They have metal detectors, and metal is detected."

Johnston says parents who are unhappy with a special master's decision sometimes retailiate. They refuse to pay their fees. Johnston has received obscene and threatening phone calls. And in one extreme case, an angry father tried to throw a Molotov cocktail into her home. (The explosive was incompetently designed and only scorched the side of the house.)

Johnston admitted she was reluctant to talk to a reporter. She says she was afraid that a story highlighting a controversial case might only stir up a pot already poisoned by the bitterness of highly charged custody battles.

FAMILY COURT lawyers interviewed for this story generally praised the use of special masters in custody cases. Some were glad to have the chance to duck out of some of the toughest divorce cases in the system. Others pointed out that hiring one special master at $100 to $200 an hour, with the expense shared by the parents, was much cheaper for their clients than hiring two lawyers and several court-appointed experts every time a minor visitation issue had to be resolved.

"It keeps attorney costs down because you don't have to run to court to decide whether Johnny has to go on holiday with mom or dad," says San Jose attorney Lynne Yates-Carter. She adds that special masters give a continuity to dispute negotiations that previously would have involved a raft of family court officials.

But some attorneys mentioned cases where they felt special masters had gone beyond their charter (though they are limited in discussing specifics because of client confidentiality):

* Campbell attorney Mark Erickson recalls a case where his client was abroad on vacation when the special master ordered a change of custody to the father. The mother, who had not yet met the special master, returned home to find that her children were at their father's house. The mother later convinced the master to change his order.

* In another of Erickson's cases, the master ordered a change of custody away from a woman the master had not seen in over a year. In both cases, Erickson said, the order appointing the master forbade a custody change. "I've seen special masters disregard that order completely and completely change custody, even when they have the order read to them," he says.

* Anne Mitchell, a Palo Alto attorney, says she has handled one case where one parent acknowledged that the other parent was an excellent caretaker, but the special master limited the other parent's time anyway.

* Donelle Morgan, Nancy Hart's attorney, has another client who is unhappy with her special master. The client, a secretary in Cupertino, says the special master forbade her daughter from going on a school camping trip to punish the girl for not wanting to spend overnight visits with her father. The girl later went on the trip after her psychologist intervened with the master.

"In the vast majority of cases, special masters work very well," says Erickson. But he adds, "It's important to make sure the person you're appointing really understands what their duties are." Erickson believes that it may be unnecessary to hire a mental health professional as special master when the main issues at stake are technical visitation issues, like exactly what time Johnny should be expected at his father's house.

Mitchell recommends that parents in the market for a special master ask attorneys and therapists about their candidate's reputation. She says some special masters have had reputations for a bias against either mothers or fathers. But she adds family court judges have also been known for bias, and at least you can choose your special master. In any case, parents unhappy with a master's order have the right to appeal to a county judge, and then to a state appeals court.

In Morgan's view, "the best special masters are the ones who do the least." Her favorite masters don't jump into action every time one parent complains about the other and stick closely to their original intended assignment, which often simply involves tending to visitation details about pick-up times and overnights.

Morgan says that for all the scorn heaped upon the idea of settling visitation and custody issues in a courtroom, court procedures at least retain the virtue of preserving rules of due process: the right of both sides to be heard, to present witnesses and to lay out their case in an orderly manner. Parents who agree to use a special master agree at least temporarily to forgo those rights. They are handing over to the special master a tremendous amount of power--power to protect, power to change lives and, in some cases, power to abuse.

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From the May 16-20, 1996 issue of Metro

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