Critics and would-be reformers call the district court’s family division a dysfunctional nightmare. Is it as bad as they claim? And can it be fixed?
The video of the June 2016 incident that got family court Judge Rena Hughes in trouble is hard to watch. A 12-year-old girl sits alone at a litigant’s table in Hughes’ courtroom, sobbing and pleading with the judge repeatedly to let her see her mom and not send her to her dad’s house. A stone-faced Hughes looks down from her bench and tells the child that the decision has been made, and it’s final. When the girl persists, the judge threatens her: If she doesn’t go with her father, she’ll go with child protective services. “It’s not fun, Child Haven,” she says. “In fact, they put you in a holding cell. It’s like jail.”
After the video ends, the father takes his daughter home. The mother — who was representing herself in court that day and whom the judge had banished from the building while legal and physical custody were being transferred to the father — won’t see the girl again for months. When she finally does, it’s only for 24-hour visitation.
Eventually, a new judge will implement 50-50 shared custody between the parents. The Nevada Commission on Judicial Discipline will publicly chastise Hughes for her actions in court that June day and sentence her to take a class on managing challenging matters. The father and mother will settle their custody dispute and go on with their lives as a tattoo artist and ballet teacher, respectively, though the mother will also find new purpose in a virulent court protest group. Reputable family law attorneys and judges will cringe at the mention of the incident, insisting it’s a rare exception in their world that unfortunately confirms public misperceptions and wrongly taints the entire field. Perhaps the most damaging result: The daughter, now a teenager, will have to live with the permanent, visual documentation of her trauma, viewed thousands of times online and readily available for any curious gawker to see.
Who won this case? No one, clearly. And that’s the nature of family court.
“It’s a very emotional environment,” says Stephanie McDonald, the attorney who runs the family court’s self-help center for Legal Aid Center of Southern Nevada. “In family law, there’s very rarely a winner and a loser. At the end of the case, everyone’s going to walk away still feeling hurt. The legal system can’t solve the personal pain that someone is going through because of a divorce or custody crisis.”
Mixed among the emotions of family court, however, are tangible problems that McDonald and others are working to fix. The case involving Hughes and the little girl illustrates some of them — the high proportion of litigants representing themselves in a byzantine process that wasn’t designed for laypeople; an imbalance of power that favors those with enough money to hire attorneys; and the need for more, and more competent, adjudicators. Other problems, such as the apparent corruption of a system where elected judges solicit campaign funds from the attorneys who appear before them, are larger than any single case, but they are increasingly part of the public discussion about reform as well.
And that was 2016; this is 2019. What has changed recently? What’s left to be done — indeed, can anything really be done — to minimize the negative impact of unraveling families? With elections on the horizon, it’s time to give these questions serious thought. In an era of skyrocketing school violence and teen suicide, when fostering kids’ good mental health is a high priority for community leaders, what goes on in family court is everyone’s business.
Emotions and motions
Welthy Silva is among the 60-70 percent of family court litigants who represent themselves.
Welthy Silva embodies the image of a ballerina — a petite sprite with her hair pulled back in a knot. She has the accent and manner of her native North Carolina, no-nonsense grace. But when the subject turns to her experience with family court, there’s a shift. She fidgets in her chair, gesticulates stiffly, calls people involved in the case “corrupt bitch” and “f---ing lunatic.” I no longer see the woman I’d chatted with a few times in the late-aughts at neighborhood cocktail parties, the ballet teacher I took my stepdaughter to for a couple of lessons. This Welthy is filled with rage — the inevitable result of dealing with family court, she says.
It all started several years before she and ex-husband Rogerio Silva split up in 2013. In Welthy’s version of the story (Rogerio did not respond to our requests for an interview), he began having temper tantrums and became increasingly critical and unpredictable over time. Finally, tension between the two grew too oppressive to bear. Rogerio moved out, and Welthy stayed with their daughter (whom she asked that we not name) in the family home.
Court records show the divorce, which Welthy filed for soon after the split, was acrimonious. The Silvas fought over the usual things: money and parenting. She complained that he was late with child support and alimony; he complained that she hadn’t refinanced the mortgage as agreed. But nothing was a source of greater contention than their increasingly divergent views on what was best for their daughter.
Welthy describes herself as “alternative” (think: naturopath over MD), and this mindset applies to her parenting style. She gives her daughter latitude, believing that a child should be free to create, explore, and make up her own mind about things. Take schooling, for instance.
“(My daughter) wanted to be homeschooled,” Welthy says. “She’d been going to a Montessori school, which I liked, but I never objected to homeschooling. … I didn’t want her artistic abilities to be suffocated. I didn’t want her to be put in a box. I don’t think that everyone learns the same way, so why should they be taught the same way?”
Rogerio supported the idea of homeschooling initially, Welthy says, which is obvious because their daughter was homeschooled for a couple of years before he moved out. After the split, however, Rogerio expressed disapproval of the arrangement, requesting that their daughter be enrolled in public school. The divorce decree says, “All schools, health care providers, day care providers, and counselors shall be selected by the parents jointly. In the event that the parents cannot agree to the selection of a school, the child shall be maintained in the present school pending mediation and/or further Order of the Court.”
In other words: If you can’t agree — or let it go — take it to court.
The legal battle the Silvas waged other over their daughter’s schooling encompasses dozens, if not hundreds, of pages of documents and illustrates a pattern in the case: Mom cites Daughter’s wishes to back up her view; Dad files legal action to enforce his. And this is just one disagreement among many.
This kind of combat is exhausting … and expensive. Rogerio and Welthy both went through several lawyers. By early 2016, she had racked up more than $5,500 in attorney’s fees that she couldn’t pay. Her lawyer withdrew from the case, and she was on her own.
Up to this point, there’s nothing unusual about the Silvas’ divorce and custody dispute. Local attorney Ishi Kunin, a keen court observer who’s been practicing family law for almost four decades, says, “In a lot of cases, it’s ‘I don’t care if I end up in the gutter, as long as you’re in the gutter, too.’”
According to lawyers.com, the average cost of a contested divorce in Nevada is $13,700, with $10,800 of that going to attorneys. When children are involved, the cost goes up to $20,600. Alimony and property disputes add thousands more. High net-worth couples pay an average of $35,000 — again, most of it in legal fees. Prominent family lawyer Marshal Willick charges from $110 per hour for paralegal services to $600 per hour for his own. At the other end of the spectrum, handwritten signs on telephone poles advertise “Divorce $200, (in very small print) not including filing fees.” Samples of those filing fees are $299 for a divorce complaint; $259 for a child custody complaint; and $200-$215 for answers and motions.
It’s easy to see why so many people, like Welthy, are tempted (or have no choice but) to represent themselves. Called “pro se” litigants, they make up 60-70 percent of all plaintiffs and defendants in the Family Division of the Eighth Judicial (Clark County) District Court, experts estimate, and that range has increased steadily over time. Moreover, a high percentage of all civil cases are family cases. In 2018, family division accounted for 22 percent of all non-traffic district court cases. Among those that go to trial, that number jumps to 58 percent. That means that some two-thirds of litigants in the county’s busiest trial court are appearing with no lawyer.
Pro se representation is one of the family division’s greatest challenges. The Family Law Self-Help Center’s McDonald says, “The law is complicated. The family courthouse wasn’t built for the everyday person to just walk in, fill out a form, and get what they want. Anything you’re trying to do at family court is going to involve multiple steps, and the self-represented litigant is responsible for accomplishing all those steps.”
Kunin agrees the system is too complicated for most people to navigate alone, and adds that attorneys do sometimes take advantage of their clients’ rancor to run up the tab.
“It’s zealous advocacy combined with the fact that these are families and people who have to continue to raise children together,” she says. Her advice? “We’re a no-fault state, so get over it. Both of you need to walk down the aisle with your daughter when she gets married or go to your son’s graduation someday. Attorneys need to care more about that than the advocacy part of it.”
Lawyers also have a greater likelihood of getting what they (or their clients) want when the opponent is pro se. Around the time Welthy ran out of money for an attorney, a visitation issue between her and Rogerio was coming to a head, and the final result definitely didn’t go her way.
On his designated days, Welthy says, she took their daughter to the appointed place and time for the handoff, but the girl would refuse to go with her dad. So, Welthy would take her daughter home. She tried sending a friend to make the handoff in her place; same result. Disinclined as she was to force her child to do anything against her will, Welthy didn’t see any alternative.
Rogerio’s desire to spend time with his daughter was apparent in his persistent requests for it and cooperation with court-ordered strategies to make it work, such as reunification therapy. He argued that abiding by the visitation agreement is the parents’ responsibility, not the child’s choice — and Rena Hughes, who’d taken over as judge in Silva v. Silva following Hughes’ election in 2014, agreed. A final failed visitation handoff precipitated the infamous June 2016 incident, where Hughes grilled the Silvas’ daughter, alone and off-record, for nine minutes in her court; had her marshal banish Welthy to the parking lot; called Rogerio and his counsel back into the courtroom; transferred temporary physical and legal custody to him and canceled his child support obligation: and ordered Welthy to pay child support and her ex-husband’s attorney’s fees, and to have no contact with her daughter.
Anyone can imagine a mother’s panic when she learns all this transpired while she wasn’t even there. It would be one thing if she’d been properly warned of a hearing with these possible consequences and didn’t show up to defend herself, but that isn’t what happened. In June 2018, the Nevada Commission on Judicial Discipline determined that Hughes had violated Welthy’s due process rights — and that she’d used the custody transfer to punish a mother she found to be uncooperative.
“The Commission found that the change in custody was not primarily motivated by the best interest of the child,” the decision read, citing case law establishing that the child’s best interest must be the court’s sole consideration in making custody determinations. “This court has made it clear that a court may not use changes of custody as a sword to punish parental misconduct; disobedience of court orders is punishable in other ways.”
Judge Hughes was publicly reprimanded and required to take a corrective judicial college course within a year or be removed from the bench. According to a spokesperson for the court, Hughes fulfilled her obligation in April of this year by taking a class called Advanced Bench Skill: Procedural Fairness. She declined to be interviewed for this story, but sent the following statement:
“As a Family Division judge, I am prohibited from commenting on specific cases. Commenting generally, my priority with custody cases is to serve the best interests of children. My experience with the commission has provided me with an opportunity to enhance my knowledge of managing challenging family law cases to better serve families in our community.”
Welthy Silva struggled to put her life back together. At first she scraped together enough money for a paralegal to write her pleadings; later, she found an attorney who helped her on an issue-by-issue basis. Four months after the June 2016 hearing, she was granted 24-hour visitation. Another seven months on, Hughes recused herself from the case, and the new judge, Sandra Pomrenze, gave Welthy and Rogerio shared custody.
The worst of the saga was over. But scars remain, and probably always will. When we asked Welthy for a selection of documents to verify her story, she handed over a huge box filled with stacks of papers — the entire court case. She couldn’t bear to go through them, she said, because of the pain they revive. It’s because of the protracted court battle, of course, but something else suggested the deeper loss that all family court litigants seem to have in common.
“I wanted that happy family,” she’d said, remembering her early years with Rogerio and their daughter. “I really wanted mama, papa, baby.”
What is it good for?
It’s approaching 90 degrees at 9 a.m. on the last Friday in July, and muggy, due to the previous week’s monsoons, which may explain why only seven people have gathered on the corner of Pecos and Bonanza roads for a family court protest. (More than a dozen showed up later.)
“Give kids a voice,” reads one woman’s sign, bearing a picture of a boy with tape over his mouth.
Two marshals stand about 50 feet away, in the shade of the District Court Family Division parking lot, watching passively, their thumbs in their belts.
VIPI president Steve Sanson catalyzes litigants’ dissatisfaction in protests and heavy media traffic.
Under a parasol on the street corner sidewalk, Steve Sanson is busy unpacking boxes and arranging protest materials on a table. The retired Marine wears a Veterans in Politics International (or VIPI) T-shirt. As I approach, he jokes about the months that have passed since our first interview: “Heidi … Christmas came and went, and no card, nothing under the tree.” I hesitate, confused, since our first interview was in May, so he goes on, “You didn’t think that was funny, huh?” Sanson’s brand of charisma is lost on those outside his social criticism niche.
Protesters tell us horrific stories of kidnapping, substance abuse, violence, and other family crises. They believe family court at best didn’t help and at worst exacerbated their problems.
Earnest Horvatin was among those picketing family court in July.
“They don’t follow the evidence,” says Frank Switzer, repeating a common refrain. Switzer won his case, gaining full custody of his daughter from his ex-wife, but he says justice was unreasonably delayed, violating a central tenet of family court.
“They got the evidence,” he says, “they got it two and a half years ago, that she was an incompetent parent. It took that long to get it to this point and her wanting to terminate her own rights. Not the drug tests, not the child abuse, not the neglect, not the constant lying in court — which is perjury and also burglary, technically, by Nevada state law (we could not verify this). ... I just happened to keep my nose clean, and I followed the evidence.”
Switzer and other protesters think judges act out of bias for or against a certain demographic — say, white people or women. They think that attorneys bribe judges by donating to the judges’ campaigns (a point we’ll return to later). Some, such as Welthy Silva, who was also at the protest, think bad judges simply relish in tearing families apart and seeing people suffer. One protester, Matthew Phillips, even told us family court is a part of Agenda 21, a conspiracy theory that the U.N.’s sustainability plan is a cover for world domination by the Clintons/communists/various other villains. Family court’s goal, Phillips said, is to create a society of fatherless children, because it’s “well-proven” that children from single-parent homes end up addicted to drugs and incarcerated; hence, easier to control. (Sanson didn’t allow Phillips to join other protesters on the sidewalk because he refused to wear a VIPI T-shirt, so Phillips carried his sign around the parking lot instead. It bore the number of days — 313 — since, he says, he’s seen his son.)
Detractors dismiss VIPI as fringe band of disgruntled rabble-rousers. But even the staunchest opponents acknowledge Sanson’s power is no joke.
Consider Welthy Silva’s case. She attributes Hughes’ recusal to a complaint about the judge having been filed with the Nevada Commission on Judicial Discipline and the negative publicity surrounding the June 2016 incident. VIPI was responsible for both.
“We filed a judicial disciplinary complaint against Judge Hughes for violating Welthy Silva’s constitutional rights,” Sanson says. “We also encouraged mom to do the same. We placed the videos of the Silva case on our YouTube channel, exposing Judge Hughes, and wrote an article about it. … The mainstream media picked up the story and started to broadcast the video. I was receiving death threats at this time for exposing Hughes.”
Sanson goes on to say that he paid Silva’s travel expenses to Hughes’ judicial discipline commission hearing in Reno, got a media pass to attend and record the hearing, posted the resulting video on his website, and interviewed Silva on his talk show, an internet radio program that contains hundreds of interviews, including some with attorneys and judges, as well as city, county, and state officials.
So, why would a veterans advocacy group take a nonveteran mom’s side in a family court fight?
Sanson says his interest in family court started shortly after he took over Veterans in Politics in 2005. He learned that family court judges were garnishing veterans’ benefits for child support and requiring deployed military members to attend hearings by phone or Skype, a practice he objected to. He took on the issue, using contacts and knowledge he’d developed in the court system while doing collections for a directory publisher in the ’90s. From there, it was a short leap to political advocacy, promoting judges who supported veterans and opposing those who didn’t. Along the way, he embraced the struggle of all he saw as disenfranchised, not just veterans.
Thus, his involvement in Silva’s case, which could objectively be counted as a win for him (although he complains that the judge’s punishment was a “slap on the wrist”). And it’s not his only one. People he’s campaigned against, such as family court Judge William Gonzalez, have lost. People he’s filed complaints about, such as Judge Jennifer Henry, whose discipline commission hearing was last month, have been investigated. Issues he’s taken up, such as open-hearing rules, have been addressed to his liking over the course of his advocacy (VIPI volunteers regularly observe court proceedings). He takes credit for all this, and much more.
“We have filed many cases against current elected judges, senior retired judges, hearing masters, attorneys, and deputy marshals,” Sanson says. “We are currently involved in over 40 cases, including the entire state of Nevada. Because of our actions to date, several judges have been disciplined and two judges retired early.”
Sanson may be overstating his role. For one thing, VIPI has campaigned for losing candidates and against winners, so the group’s endorsement doesn’t guarantee an outcome. Sanson himself has lost multiple runs for political office, at the city, county, and state level.
For another thing, it’s tough to determine when an activist’s relationship to change is causal and when it’s coincidental. Take judges’ work hours. Sanson says his letters to the chief district court judge outing certain family court officials for not working full days led to their schedules being tracked via key cards showing when they’re in the building.
“Absolutely not accurate,” a district court spokesperson says, when asked if this is true. “We have had the same system of entry into and out of the courts for years.”
In some instances, his outrage requires context. Sanson insists family court judges are overpaid, but their starting salary of $160,000 annually, which is set by law, hasn’t been raised since 2009 and equals the national average of judicial compensation, according to the National Center for State Courts. That’s not to say that judges shouldn’t work full-time for their pay, but his assertion that they take $8 million out of taxpayers’ pockets each year to work three days a week is exaggerated. (The judges themselves contend that they regularly spend evenings and weekends preparing for hearings and trials, so their time inside the building isn’t the only gauge of how much they’re working.)
Not everyone believes that Sanson’s working for the common good, either. In fact, some believe he’s engaged in a systematic attempt to fashion a judiciary he can control, using his many broadcasting platforms as a megaphone to incite backlash against anyone who disagrees with him.
“Sanson claims to run an ‘advocacy’ group but actually runs an internet-based extortion and defamation service intended to alter political races and judicial proceedings – essentially a modern-day ‘protection racket,’” wrote family law attorney Marshal Willick, in a petition asking the Supreme Court to reverse a family court judge’s decision allowing Sanson to keep an objectionable hearing video on his website and social media pages. Willick says the video was excerpted to intentionally misrepresent the facts and cast Willick’s girlfriend, family law attorney Jennifer Abrams, and her client in a negative light. The Supreme Court denied Willick’s petition, but the conflict lives on in Abrams’ and Willick’s pending civil suits against Sanson — suits from which numerous judges have recused themselves because they’ve appeared on Sanson’s internet show.
Sanson admits that he has “haters,” but dismisses their accusations as a deflection of their own guilt. “They would rather focus on us than the problems that have been going on for a very long time in Clark County family court,” he says. “Unlike many attorneys you might interview for this story, they get paid, and we don’t.”
He repeats this often — that he doesn’t get paid, that he uses his own money to fund his activities, preferring not to be indebted to anyone he might have to report on. “If any of our sponsors decided to donate, we paid for the airtime of the talk show, we paid for our email blast account, we paid for venues to hold endorsement interviews, we paid for food for our interview panel, we paid for protest signs, we paid for parade entry fees, and the list is endless,” Sanson says, adding (in a reference to himself in the third person), “Most of the money comes out of Steve Sanson’s personal account.” His income, he says, comes from his military disability and work as a medical coder.
Asked what kind of organization VIPI is, he said it was a 501(c)4 nonprofit whose mission is “to educate, organize, and awaken our veterans and their families to select, support and intelligently vote for those candidates who would help create a better world, to protect ourselves from our own government(s) in a culture of corruption, and to be the political voice for those in other groups who do not have one.”
According to the IRS, a 501(c)4 is a social welfare organization that “may not inure to the benefit of any private shareholder or individual.” The Nevada Secretary of State’s business registry lists Veterans In Politics International Inc. as a domestic nonprofit corporation that’s been active since July 2006. The “solicits charitable donations” box is marked “no,” and there is “no data to display” under the business details tab for any year the company is listed. On the IRS’s website, the tax forms that nonprofits are required to file, 990s, are posted for 2016 and 2018 only. The filings don’t include expense details.
Equally eyebrow-raising, Sanson enjoys the same insider status he accuses attorneys and judges of abusing. “You know, I’ve been in this town 24 years in November,” he says, describing how he sought advice in the Jennifer Abrams video situation, “and I called up some judge friends I know, and some of them are retired, and I said, ‘What are my grounds on this?’” Later in the interview, he notes, “The reason why I know they (judges and attorneys) have little meetings that are not open to the public is because I have a lot of judges that are still friends of mine, and I have a lot of people that are friends of mine who work with judges, and I have a lot of people that are friends of mine who carry a badge and gun and roam those courtrooms. So, what I’m saying is that a lot of people in that capacity don’t like what’s going on … and they come back and tell me stuff.” And still later, he gets a call on his cellphone that he answers, “Hey, judge. Yeah, we’re on. Yeah. You said noon, right?”
Sanson does make some good points, family court observers concede. He’s a fierce defender of pro se litigants’ rights who draws attention to the socioeconomic hurdles — not to mention the stone-cold fear — average people face when going to court. But even when making good points, he relies on sensationalism, such as his 15-page July 2017 missive sent to a dozen state and local officials. In it, Sanson coherently outlines many troubling allegations of misconduct, ranging from one judge renting a room from an attorney who had cases pending before her, to another denying a litigant’s request to postpone a trial days after his attorney committed suicide. Titled “War Declared on Clark County Family System” (also the name of his Facebook group), it warns that “100 litigants will protest against judges’ failure to follow the laws and unethical behavior,” illustrated by an image of an atomic bomb mushroom cloud. For many, any valid service he might provide is drowned out by the negativity of his approach.
Yet, for a certain online contingent, that approach works. VIPI has 2,800 followers on Facebook, and its videos are routinely shared hundreds of times. And Sanson’s most loyal supporters either don’t believe he’s in it for the money or they don’t care.
When we asked Welthy Silva what she thought his motivation was, she said, “I think, you know, people feel like they have a mission in life. And that’s what gets you out of bed in the morning, right? I think that he feels strongly that that is his place in the world, to fight corruption.”
Is she worried he might be exploiting her to further his own agenda? “You know,” she says with a laugh, “if he is, good. Exploit away. Because I need all the attention on this that I can get. I would be happy if it was (profiting him in some way). I could give something back.”
She is now secretary of Veterans In Politics Foundation, which Sanson founded in December 2018.
Beneath the robe
Family Court Presiding Judge Bryce Duckworth says custody issues “weigh heavily” on families and judges.
Even sitting in a chair on the floor before his bench, Bryce Duckworth fills his courtroom with a reassuring authority. Part of it is his size — he’s been playing recreational basketball since he was a student at the University of Utah — part of it’s his warm smile, and part, his decade of experience deciding cases in which children are taken away from parents, estranged spouses cry, and heartbreak is sorted out through reams of tedious documents.
“I think the emotional aspect is not always a negative,” says Duckworth, who became family court’s presiding judge in January 2018. “The issues we’re dealing with are of a heightened emotional level, particularly issues of custody. Those issues weigh heavily, not just on the litigants, but also on the adjudicator. Those are the decisions that weigh on your mind after hours. … I think you just want to make sure that the emotional aspect never clouds what’s in the best interest of the child.”
Such an attitude has earned Duckworth respect among his peers. In the Las Vegas Review-Journal’s 2011 and 2013 (its most recent) Judicial Performance Evaluations, 94 and 93 percent of surveyed lawyers, respectively, recommended that he be retained.
Duckworth is no fan of VIPI. That became clear two years ago when Steve Sanson was observing hearings in a divorce and custody case before Duckworth. Marshal Willick was representing the plaintiff, and Sanson (who, by then, already had bad blood with Willick over the Abrams video) felt the judge was being unnecessarily generous with the attorney. So, Sanson called the judge to complain about it.
Marshall Willick believes in improving the court from within the system.
Sanson asked Duckworth why he allowed Willick to “get away with so much crap,” in the case, using the defendant’s name to specify which case he meant.
The judge hung up and, soon after, summoned the activist to appear before him in the matter.
“I find that there has been an effort to influence this court outside of the four walls of this courtroom,” Duckworth said, during Sanson’s appearance, “and given these influences, I find that complete transparency of these proceedings is in the public interest to maintain confidence in the judicial system. … Communication with a judicial officer about a specific case inclusive with veiled threats is corrupt. … This is about outside interference in the administration of justice through intimidation, threats, and improper influence. This is an attack on our system of justice in which an individual seeks to remove the symbolic blindfold of lady justice. This matter should be investigated.”
He then recused himself from the case.
Sanson responded by asking the judicial discipline commission to investigate Duckworth for misconduct. The commission found there were no grounds to do so.
“So, maybe I did something I shouldn’t have,” Sanson says today, acknowledging the call to Duckworth. But mostly, he seems to harbor resentment for Duckworth having called out his volunteer court observers as “disgruntled” recruits during the hearing. “So, in essence, because they’re disgruntled, they must be stupid,” Sanson says. “I know a lot of people that are disgruntled that are very smart and are right on point. And the reason why they’re disgruntled is because somebody in the system made a bad decision.”
All this drama does make it tempting to see family court as “crazy town,” the term a friend who went through a custody matter there used to describe it when I told her I was working on this story. But family lawyers bristle at this characterization. Family court judges and lawyers are no different than any other division’s, they say; there’s no more misconduct there than in any other court.
“If you’re trying to focus on family court having more corruption, I think it becomes more difficult” to make that argument, attorney Ishi Kunin says. “If you focus on family court by its very nature, having more concerns that need to be addressed by the selection of the judges, by the process, I think that’s fair.”
The idea that family court is no worse or better than any other court isn’t supported by judicial discipline commission records. Since state legislation established the family division in 1993, one-third of all 65 formal disciplinary actions have been against Clark County family court judges. Three have been removed from the bench: Fran Fine, in 1998, for having ex-parte communications and hiring a cousin as a case mediator; Nicholas Del Vecchio in 2008 for multiple cases of sexual misconduct and harassment; and Steven Jones, in 2014, because of his conviction in a federal fraud case (he was suspended with pay in 2012, banned for life in 2016). Most recently, Judge William Potter was disciplined for berating and handcuffing attorney Michancy Cramer, who he felt was being difficult during a court discussion of document production, and then sentenced her to three days in jail for contempt of court. During his disciplinary hearing, Potter described his own behavior as cringeworthy. The discipline commission suspended him without pay for two months and ordered him to do 10 hours of community service, pay $5,000 to an anti-bullying organization, undergo a psychiatric exam, and attend a class on dealing with difficult parties/attorneys. He’s on the bench today and declined to be interviewed for this story.
(Sources told us off the record they actually like Potter’s style. While using a clapper toy to shut people up in court probably isn’t a good idea, they say, his no-nonsense way of cutting to the chase and sticking to the law is refreshing.)
Family law attorneys’ performances are more difficult to assess than judges’, because not all attorneys practice family law exclusively, and the state bar lawyer referral doesn’t list disciplinary actions by type of practice. The state Supreme Court reports that, between 2008 and 2018, appeals from family and juvenile cases accounted for 4-7 percent of the statewide total.
As for Kunin’s other point, that special training would help to improve family court judges, that was actually part of the original intent.
“It is important the judge who is to hear these matters be thoroughly familiar with family and child welfare issues,” said Nancy Angres, a state welfare official who testified before a legislative committee considering a bill to create family court in 1989, according to a history of the court’s creation written by U.S. Representative Dina Titus, who was a state senator at the time. “In every jurisdiction, the court has the social and moral responsibility for ensuring the provision of adequate services to children under its care.”
The vision of a family court was realized, but the dream of it being run by judges who specialize in family and child issues was not. Duckworth has practiced family law for his entire legal career, but that was his choice, not a requirement for his current position.
The judicial selection process in general may be the biggest problem with family court in particular. In Nevada, judges are elected. Any licensed, practicing attorney with 10 years’ experience (including two years in Nevada) can run. Or, as local attorney Dayvid Figler put it in a recent Nevada Independent op-ed, “Any jerk with a law degree can become a judge, and as a former judge, I’m living proof.”
There’s no requirement of experience in the field you’ll be overseeing.
What’s worse, most campaign donations come from — you guessed it — attorneys. And as many press reports, most notably a lengthy 2006 Los Angeles Times investigation, have pointed out, having a case before a judge doesn’t preclude an attorney from donating to his or her campaign. On the contrary. The Times detailed several cases where attorneys with financial ties to judges appeared before them in active litigation. Sanson has also claimed that attorneys who oppose him use the threat of withholding campaign donations as a means of persuading judges to shun VIPI.
“The process of seeking financial assistance in running a campaign is extremely problematic,” Duckworth says. “That’s one of the benefits of going to a merit selection process. I did not enjoy that aspect of it at all. And if there’s one thing that, to me, even more than informed decision-making, stands out as a reason not to have judges go through that process, it is the need to finance campaigns. If there’s some way to get out of that, I think, as a community, we benefit.”
Figler and many others before him have proposed alternatives to judicial elections, involving various combinations of who gets to pick and how they do it. An elected official could choose appointees from a vetted selection, as the governor does now for vacancies, and then voters could decide whether to keep or eject the appointees in the next election cycle. Or, a committee could regularly assess appointees to approve them for continued service. In any case, voters would have to approve a change in the process. And so far, voters have rejected every proposal to get rid of judicial elections.
The same voters, that is, who picked all those judges who’ve been disciplined and lacked experience.
“I have no problem with the election process if those making the decisions are informed,” Duckworth says. “The challenge — and I know this from when I was out on the campaign trail … — is, you wonder how much information voters are able to attain. My preference is that, ultimately, the decision be made by informed individuals.”
It’s the only point that every source we spoke to for this story agreed on. Attorneys joked about the number of ballots they’ve “filled out,” by giving their friends and neighbors advice on who to vote for, because the general public simply has no idea who judges are.
“This is a big deal,” Welthy Silva says. “People really need to pay attention to who they’re voting for. ‘Oh, that name looks good… Check!’ Right? I mean, I was guilty of it, too, before I went to family court. But these judges, they can affect your life.”
The Review-Journal is bringing back its Judicial Performance Evaluations this year, with revisions recommended by UNLV researchers. Responses to the 3,000 surveys were due at the end of August, and the results will be available to voters before the next election. Voters can also easily see which judges have been disciplined or are under investigation on the judicial discipline commission’s website. They can look up attorneys’ license status, specializations, disciplinary records and more on the state bar’s website. And they can see judges’ campaign donations on the Secretary of State’s website. But all those resources have been available for many years. Will people use them in 2020, when all the family court judges will be on the ballot? If history is any indicator, they’re more likely to rely on the endorsements of groups such as VIPI.
Reformers aren’t waiting to find out. They’ve got plenty of other work on their plates already.
Inside job
Family law attorney Marshal Willick works to reform family court from within the system.
Whereas VIPI’s seeming hatred of family court makes them want to scrap it altogether and start over, others’ affection for it makes them want to change it from within.
One of the latter is Marshal Willick, due, in part, to his deep ties to the system. Willick was one of those charged with creating the rules and regulations to set up family court up in the early ’90s, and he has been heavily involved in efforts to revise those rules ever since. He’s sat on innumerable committees, is a substitute judge, helped design software to ease access to court records, and has written volumes of blogs, books, and web copy to guide people through the local family law landscape.
“The problem with people who protest family court being awful,” Willick says, “is they don’t remember what it was like before it existed,” when sensitive family matters were aired in a general district courtroom, with criminal and personal injury parties waiting in the gallery.
His sense of ownership fuels a drive to keep making it better. He’s led efforts to improve the judicial selection process, judges’ performance evaluations, and the way cases are heard. For instance, he supports Clark County judges making more decisions “on the papers” — that is, based on the merits of a case, as documented in legal filings — rather than holding so many hearings (which also happen to be the hub of family court’s emotional tension).
“When we proposed getting rid of hearings, maybe 15, 20 years ago, we had a bunch of solo practitioners that came and started screaming that if they did that, the world would end,” Willick says. “Those of us who are rules reformers run into opposition from people who see the law as financial institution as opposed to an instrument of justice. … Bureaucracy, inevitably, over time, starts to favor the people running it.”
Nevertheless, the family court bureaucracy has undergone some positive change, a fair amount of it focused on people who represent themselves.
The Family Law Self-Help Center completed its first year of operation in 2000, and Legal Aid took it over in 2013, with Stephanie McDonald at the helm. McDonald, her staff attorney, and 10 legal information facilitators assisted 49,669 customers in 2018, compared to 37,742 five years ago. Those customers run the gamut, McDonald says, from people who’ve gotten their first summons and have no idea what to do, to those who’ve completed a divorce years earlier and are returning to modify a custody agreement. Some are in and out in half an hour; others will spend all day, waiting, getting advice, filling out forms, and filing paperwork. The center is open to everyone, and all forms and services are free.
“Everybody thinks I’m crazy because I love my work,” McDonald says. “The issues are difficult, but the rewards are really great. We have a lot of happy customers. They are coming to see us at probably the worst moment in their life, where there is no hope, they don’t see an end in sight, and they are just lost in a legal system that is confusing them at every turn. We get to play the role where we are helping them in small bite-sized pieces to understand the system. … They may not be completely happy with the outcome, because most family law cases involve some sort of compromise somewhere along the line. But in the end, they’re relieved that they felt like they were heard. They got their day in court.”
In addition to the self-help center’s in-person services, it has a website full of articles, interactive forms, and video tutorials that lead users through the process of completing paperwork and attending hearings. Nearly 860,000 people used it last year.
As far as getting a lawyer is concerned, Legal Aid gives priority for its pro bono family law services to income-qualified applicants who are victims of domestic violence. But the nonprofit center offers free community legal education classes covering paternity, custody, and guardianship, as well as a litigation trial preparation class. It also hosts free lawyer consultations for pro se litigants through the Ask-A-Lawyer program at the Family Division courthouse.
“We offer it once a week,” McDonald says. “We sign up 50 people for 15-minute sessions. Attorneys will evaluate their case and suggest what they should do, shouldn’t do, what forms to file, etc. It gets fully booked every single week.”
The Nevada State Bar also has a lawyer referral service for reduced-cost representation. Legal Aid has given both Willick and Ishi Kunin multiple statewide awards for taking so many pro bono cases.
McDonald’s vantage point from inside the system has helped her advocate for procedural changes to improve the public’s experience. She gives the example of a glitch that had been potentially endangering people applying for temporary protective orders.
“We operate under the one judge-one family rule, where every case between a family is assigned to the same judge,” McDonald says. “When a case is filed and accidentally assigned to the wrong judge, the system automatically sends out a notice of a new case assignment. It was doing that in cases where someone had applied for a temporary protective order … tipping off the adverse party that a new case had been filed, creating significant safety concerns for the applicant. We quickly identified that issue and worked with the court to create a new process, so the applicant is the only one notified of a case reassignment.”
Duckworth touts several other procedural improvements, such as an online dispute-resolution system that launched this year. People who’ve been referred to mediation have to complete it, helping them get cut-and-dried matters such as work schedules and income statements out of the way before discussions start, and getting them familiar with the concepts and terms they’ll encounter with their human mediator.
The changes, insiders hope, will help family court both shed its reputation as a miserable morass and take its rightful place among the other, more prestigious areas of the law.
“Family law is the ugly red-headed stepchild of the legal system,” Willick says. “There’s a certain degree of truth in that. There’s not enough respect for how complicated this stuff is. People walk in and say, ‘How hard can it be?’ I can’t tell you how many of them leave saying, ‘I’ll never do this again.’”
He, Duckworth, Sanson, and everyone else concerned about the workings of family court will soon have official word on the matter. In August, a third-party evaluator completed a comprehensive assessment of Clark and Washoe counties’ family courts. The Supreme Court ordered the review “to determine whether the family courts are meeting expectations of lawmakers and families, following state and local court rules, and resolving legal disputes timely and effectively.”
“Family courts are an important part of our judicial system,” Supreme Court Justice James Hardesty said in a news release about the report’s imminent release. He added that various aspects of the court have been looked at in the 28 years since its creation, but a full review was “timely and appropriate.”
About time, that is, for the circus to leave town.
Correction: A previous version of this story incorrectly stated that the Nevada State Bar has a pro bono lawyer referral service. The State Bar’s referral service is free to use, but the attorneys listed work on a reduced-fee basis. This story has also been corrected to reflect that the Legal Aid Center of Southern Nevada issues the pro bono service awards won by family law attorneys Marshal Willick and Ishi Kunin.
