Psychologist Can’t Be One Sided Expert

CHILD CUSTODY – EVIDENCE – PSYCHOLOGICAL EXAM

Kelly v. Kelly
No. 46748
(Idaho Supreme Court, September 10, 2019)
The magistrate court abused its discretion by permitting husband to retain psychologist to perform a parenting time evaluation as his expert, in divorce proceeding when child custody was a contested issue; parenting time evaluators can be selected only by stipulation of the parties or by appointment of the court, in either case, the chosen expert must be neutral, and not beholden to either side, and psychologist was ultimately paid over $105,000 to conduct the parenting time evaluation on behalf of husband. Further, the magistrate court abused its discretion when it ordered wife to undergo a psychological evaluation and counseling, as recommended by psychologist, husband’s expert, during child custody portion of divorce trial; a judge had no authority to order medical or psychological treatment in a child custody case unless there was direct testimony that such treatment would be in the best interest of the child, and there was no language indicating a psychological evaluation was in the best interests of child

H.B. 1501 amends the Family Code to include a child custody evaluator among the individuals appointed in a suit affecting the parent-child relationship who are immune from liability for civil damages arising from an action taken, a recommendation made, or an opinion given in the suit.

https://capitol.texas.gov/tlodocs/85R/analysis/html/HB01501H.htm

HB01501I

C.S.H.B. 1501
By: Thompson, Senfronia
Juvenile Justice & Family Issues
Committee Report (Substituted)
BACKGROUND AND PURPOSE

 

Interested parties note the need to clarify and update the law relating to child custody evaluations. C.S.H.B. 1501 seeks to provide that clarification and update.

 

CRIMINAL JUSTICE IMPACT

 

It is the committee’s opinion that this bill expressly does one or more of the following: creates a criminal offense, increases the punishment for an existing criminal offense or category of offenses, or changes the eligibility of a person for community supervision, parole, or mandatory supervision.

 

RULEMAKING AUTHORITY

 

It is the committee’s opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

 

ANALYSIS

 

C.S.H.B. 1501 amends the Family Code to include a child custody evaluator among the individuals appointed in a suit affecting the parent-child relationship who are immune from liability for civil damages arising from an action taken, a recommendation made, or an opinion given in the suit. The bill includes in the required components of an order for a child custody evaluation a list of the basic elements of such an evaluation and a list of any additional elements of an evaluation required by the court to be completed. The bill excludes an order appointing a child custody evaluator who is qualified on the basis of the evaluator’s employment or contract with a domestic relations office from the orders that must contain the required components. The bill includes any additional element ordered by the court in the requirement for a child custody evaluator to complete each basic element of an evaluation before offering an opinion regarding conservatorship of a child who is the subject of a suit or possession of or access to the child and creates an exception to the requirement if the failure to complete an element is satisfactorily explained. The bill establishes four years of age as the minimum age at which a child who is the subject of a suit may be interviewed and revises the basic elements required to be included in an evaluation. The bill specifies that the additional elements of an evaluation provided under state law may be ordered by a court.

 

C.S.H.B. 1501 authorizes a child custody evaluator to request additional orders from the court if the evaluator considers psychometric testing necessary for the evaluation but lacks specialized training or expertise to use specified tests or if the evaluator identifies the presence of a potentially undiagnosed serious mental illness experienced by an individual who is a subject of the child custody evaluation and the evaluator is not qualified to assess a serious mental illness.

 

C.S.H.B. 1501 entitles a child custody evaluator appointed by a court to obtain records that relate to any person residing in a residence subject to a child custody evaluation from a local law enforcement authority, a criminal justice agency, a juvenile justice agency, a community supervision and corrections department, or any other governmental entity. The bill makes such records obtained by a child custody evaluator confidential and exempt from disclosure under state public information law or from disclosure in response to a subpoena or a discovery request. The bill authorizes a child custody evaluator to disclose such information in the child custody evaluation report only to the extent that the evaluator determines that the information is relevant to the evaluation or a recommendation relating to the evaluation. The bill creates a Class A misdemeanor offense for a person who recklessly discloses such confidential information in violation of the bill’s provisions.

 

C.S.H.B. 1501 replaces the requirement for a person conducting a child custody evaluation to file with the court on a date set by the court a report containing the person’s findings and conclusions with the requirements that such a person file with the court on a date set by the court notice that the child custody evaluation report is complete and provide a copy of the report, on a specified date, to each party’s attorney, each party who is not represented by an attorney, and each attorney ad litem, guardian ad litem, and amicus attorney appointed in the suit. The bill specifies that the disclosure to the court of the contents of the report is subject to the rules of evidence.

 

C.S.H.B. 1501 amends the Government Code to entitle a child custody evaluator who has been appointed to conduct a child custody evaluation to obtain from the Department of Public Safety (DPS) criminal history record information that relates to a person involved in the evaluation. The bill requires DPS to provide the evaluator with the information not later than the 10th day after the date on which the information is requested and prohibits a child custody evaluator from releasing or disclosing the information to a person other than the court ordering the applicable evaluation, with certain exceptions.

 

EFFECTIVE DATE

 

September 1, 2017.

 

VIOLATION OF 8th AMENDMENT (bond shall not be excessive…..)

I was arrested for parental kidnapping after my daughter had pled with the FOC and Judge to save her from her abusive father. After hearing her pleas the Judge signed a “pick up” order for her immediate return to her abuser. I refused and was arrested for parental kidnapping. The arresting State Police were our heroes; once they seen the fear in my daughters face they went to a neighboring county and had her placed in the custody of my oldest daughter pending a complete investigation. (I was in jail)

*The State Police sent an officer to the jailhouse the night I was arrested to let me know my daughter was safe.

First “In camera” bond hearing *I shared with the Judge how the police had sent an officer to the jailhouse to let me know my daughter was safe and in the custody of my oldest daughter” (written in the police report). Judge “$250,000 cash surety bond” and the Camera was shut off.

Second hearing for reduction (in courtroom) the Judge refused to lower bond stating (lying) *“The police were frantically looking for the child until after I imposed the bond.”

Third hearing for reduction (in courtroom) in front of a different Judge; The DA had no objection of allowing me a low bond or PR bond. New Judge looked confused and called the original Judge and after speaking to him the presiding Judge refused to lower bond stating “I have to consider the protection of the community”. (I had never harmed a sole in my life.)

Criteria for bond –

(1) Except as otherwise provided by law, a person accused of a criminal offense is entitled to bail. The amount of bail shall not be excessive. The court in fixing the amount of the bail shall consider and make findings on the record as to each of the following:

(a) The seriousness of the offense charged – Maximum sentence for parental kidnapping is one year one day and/or $2,000 fine.

(b) The protection of the public – I had never harmed or even threatened one person in my entire life.

(c) The previous criminal record and the dangerousness of the person accused. I had NO criminal record.

(d) The probability or improbability of the person accused appearing at the trial of the cause 100% probability I would appear.

$250,000 cash surety (2.5 million regular 10% bond) is excessive my annual income $34,000. Plus I had complete defense I was protecting my daughter from immediate, imminent harm. All parental kidnapping dismissed 5 months later after FIA substantiated that my daughter had endured four years of (court ordered) emotional, mental and physical abuse while in the custody of the father.

I filed a grievance on the Judge(s) with the Judicial Tenure Commission attaching the transcripts from the three bond hearings and the police report proving the Judge lied when stating “The police were frantically searching for the child prior until after I imposed the bond”. I enclosed the eighth amendment and the criteria for setting bond as written above. I also provided proof that I had been handcuffed to a cold metal bench for the first 32 hours of my incarceration. The Judicial tenure commission concluded – “No wrong doing on the part of the Judge(s).”

Lawsuit filed was dismissed – Judicial immunity.

United States Supreme Court Rulings rendering CORRUPT Judges IMMUNE

Bradley v. Fisher, “A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority….”

Stump v Sparkman, the Supreme Court ruled that the judge could not be sued….” it was irrelevant that the judge’s decision may have been contrary to law and morally reprehensible.”

Pierson v Ray, the Supreme Court said that judges are protected by absolute immunity even if they act unconstitutionally. A state court judge was ruled absolutely immune from damages liability, even though he convicted the plaintiff under an unconstitutional statute….” it did not matter even if the judge did so knowingly.”

Judicial IMMUNITY allows corrupt Judges to remain on the bench and continue their malicious, morally reprehensible, harmful, baseless, lawless, unconstitutional rulings.

TRUE STORY – Letter written to Judge from Child pleading for help

After receiving letter the Judge signed an order for the childs’ immediate return to abusive father. Plus an arrest warrant for parental kidnapping on mother.

“I have expressed to two court employees my desire to live with my mother and instances of my father’s abuse. Recently, I told Allen Schlossberg of an incident that happened on Tuesday, October 7th. What had happened was that my father came back from court while my sister was still at his house. I was prepared for him to be ignorant and take what he would say. Like I expected, he came in yelling and jumping around. He would be talking to my sister but pointing towards me like talking behind my back but right to my face. He was being over the top and yelling about money, how everybody’s going down, and how I have no common sense. He went on for a half an hour, approximately, and was being venomous but I honestly couldn’t say all he did because what happened after my sister left is what I remember most.

I hadn’t defied him (as he likes to say) or even said anything at all; he was the only one yelling. After she left, I was not going to start anything with him and was going to go into my room when he started yelling at me. Saying he’d never let me go back to my mother’s to live because they’re all trash and accused me of doing drugs and wanting to be there to be a delinquent. He said even if I was to go back there he wouldn’t quit fighting them. He started threatening me with my CD’s. He had already taken them away a few weeks earlier for having the TV on in the morning and having it on at 11:03pm when it was supposed to be off at 11pm.

He knows well that they are my prized possession and the only thing he could take away from me that would really matter because music is an escape for me. And sometimes the only thing that keeps me from going off the edge. He said he had them where I couldn’t find them and if I went into the court the next Friday and told my “stories” and “lied” I would never see them again; that he would burn them or throw them away. I always tell the truth and he’s the one who lies. So he was saying go in there and tell the truth and I’ll burn your CD’s. He also said he had things I had written and that I’d never see them again but that they would be at the courts by the time I was going to talk to them. I asked what they were and he said it was “mother f’er this mother f’er that” and said thing’s about all of my family. He was making fun of my writings saying I was so stupid I put dates on them and signed them.

The fact that they are mine and I wrote them made me mad that he refused to give them back or even show me. I’ve written things in anger, I have over exaggerated at times and some things I don’t mean because they are not something I’m planning on showing people. I, for the record, keep most of the things I write at my mother’s house because I don’t trust my father to not look through my things like he has in the past.

I, myself, came in and talked to you people and shared my feelings and stated clearly where I wanted to be and you should hear that, not things I wrote however long ago if I even wrote what he has. And wouldn’t it be bad for him since I wrote those things while in his care? I’ve looked through my stuff and there’s only one notebook missing, one I had at the end of 6th grade. Maybe that’s what he’s talking about, maybe that’s what you’ve seen but that isn’t even important to me. I didn’t even realize it was gone till he said all these things. But still you should have enough respect to not try to blackmail me with it.

He stated that I thought he was a liar, although I hadn’t even said that to him, and he thought I was a liar. I explained that he said before that he never looked through my things and why he thought it was fair to do that. He got angrier and said you look through my stuff and I look through your stuff. He is so sure of what he says even though I don’t look through his things. I said that I didn’t but he didn’t believe me and continued to say that he owned the air I breathe and every inch of the house (though he rents it). I questioned the explanation and said “It’s fair to do that because you own the air I breathe?” That was the first time the whole night I had gotten the courage to question him like that. He also said no one could make him give back the CD’s- he owned them as well, etc.

I was getting teary eyed and he said it was bull shit that I would even say I was afraid of him that he KNEW I wasn’t afraid of him because I questioned him and “defied” him. I stood up for myself and my family he saw it as defying him and trying to be a gangster. I was crying at this point and with a crackly voice said “This isn’t fear?” He was like “oh yeah, yeah” and was not taking me seriously and yelled at me to get in my room. The whole time he was sitting down and I was in the doorway of the kitchen about 10 ft from him because I was heading into my room when he first started yelling at me. He was pointing his finger and it made me think of all the other times I had bowed down and, tail between my legs, went to my room. I just stood there not yelling back or even talking back I was just standing motionless.

He got up and got right in my face and grabbed my arm and started to push me into my room. I knew I couldn’t do anything but was desperately wanting to do something for all the times he had hurt me, made me feel useless, etc. I asked if I could call my mother, he just got angry and said “Get in there!” I asked can I call one of my two sisters at least he said I wasn’t calling anybody that he owned the phone. I, calmly, asked if I could then call from a payphone and knew he wouldn’t let me. I was now in my doorway and I turned and said “Why do you do this to me?” and he just kept pushing me in the room, yelling. I finally lost it and throughout the whole night it was the first time that I yelled. I said “I hate you” because I do.

He then looked at me with this fury in his eyes and raised his left hand (he’s left handed) and smacked me across the face. It was very hard and I fell on the futon in my room, grabbing my face and neck bawling at this point. Even then I didn’t want to be defeated but I was and it was clear but even after he just kept yelling. I remember “Now, you fucking moron, you stupid shit! You don’t talk to me that way!” He ordered me to stay in the room. He said other things but I was mostly in a daze realizing that he had just hit me. He left and went into the kitchen, bringing the phone with him. I heard him talking, very calmly, to someone and realized it was his attorney. He said what happened in court and that I would go in there on Friday saying I hated his guts (I didn’t) but didn’t give a reason why I would.

I went into the bathroom and looked in the mirror. My face was red from my nerves and being mad. But where he had hit me, my upper neck and cheek, it was beat red. The tears on my face were dry since I didn’t even think to wipe them away. I thought to myself I could try to get to the cops and they would get me out of here, but I knew I would have to physically fight him to be able to call the police. I grabbed a bag and started packing things because I knew I couldn’t stay there. I would go crazy if I had to. He came into my room and asked me what I thought I was doing. He said I wasn’t going anywhere that it wasn’t the end of the world and told me to take the clothes out. Then he said if I didn’t unpack then he’d take me to Hurley, a hospital, to have me committed. I knew he might even try something like that but was sure I wouldn’t be committed. But then again I knew he would lie to them and maybe make me look like a crazy person. He left and got on the phone again, this time to my sister. I didn’t start taking my clothes out yet because I was trying to hear what he was saying.

He came in and ordered me again to unpack and even as I was putting them in the dresser he was yelling at me. He finally handed me the phone and stood there as I talked to my sister. I tried to talk but was crying and started to hyperventilate. She asked me if he hit me and if it was hard and I said yes. I couldn’t breathe properly and it started to scare me. She has hyperventilated too and told me I just needed to take deep breaths and blow the air out slowly. I tried but still couldn’t regulate my breathing. After she said she’d come over I handed the phone to my father and tried to stay calm although I felt like I was going to die. He said that I was faking it and just wanted sympathy. She said she didn’t think so and that I might pass out and he said “let her pass out so we can take her to Hurley.”

It took approximately an hour and a half for my two sisters to get to the house and while they were on the way he was on the phone with my sister. I listened, as hard as it was, to him trying to convey to my sister that I was asking for it and that I was defying him the whole time. He said that I was just trying to turn them against him. He even acted like some sort of a victim saying that I have all the control and the example he gave was that I don’t even ask if I can have the remote for the TV I just take it, and that my two sisters couldn’t dream of having that sort of privilege. As much as that is a ridiculous reason it isn’t true. Sometimes, I’ll grab the remote and turn the TV on if we’re just getting back from somewhere because we’ll be watching the same thing. Sometimes, when I have it he’ll just put his hand out and I give it to him. But, no way did I ever just rip it out of his hand.

I can’t remember all of it but it was just ridiculous. When they finally got there I was scared that they believed him and tried explaining the whole thing as soon as my sister came in my room. But, to my relief she knew what he was saying was lies and was not on his side what-so-ever. She said that she could see his handprint still on my face. After a half an hour of her talking to him she finally got him to say it was ok for me to stay the night at her house. But he said I could only pack one pair of clothes and only gave in after Sarah told him that her phone couldn’t call long distance. As we left, I tried to avoid him once again but once again as I was going down the stairs he said “So, you’re not going to say good-bye to me, huh” and I looked and said good-bye; he didn’t deserve it.

I went back the next day, though I didn’t want to the threats continued till on the way to the courthouse. He once again stated he had my CD’s and he would hand them over if I told the “truth” but if not he would throw them away. But, I did what I had to do and I told the real truth and said where I wanted to be. And at the end Allen told me that they would get something done as soon as they could. He said that there would be a hearing within a week or two. My mother was trying to protect me by not returning me. She is trying very hard to get everything done to get me back in school. My mother is the only one looking out for my best interest. And you are just ignoring me and now there’s no mention of custody change it’s all about being in contempt of court.

And Matthew Moreau changed his recommendation. Now he suggests that petition for change of custody be denied. After what I shared with him and what I told Allen Schlossberg. I thought the court MIGHT just listen after I told them that he had PHYSICALLY abused me along with everything else. But the FOC changes the recommendation. I have no faith in the legal system, or anything else for that matter because it was very hard getting the courage to finally say I wanted to live with my mom. And nobody has listened to my mother in the last 4 years and nobody is listening to me. I know what is best for me it is highly unlikely that you would know more than me. You have not lived with my father for the last 4 years, I have. And you don’t know what I’ve been through. I’ve lived in hell and if you can’t do something about it my mother and I will. I do not want to go back and I don’t know why it is so important that I be returned to the person that abused me.

The last time I talked to Matthew Moreau I expressed my wanting to live with my mother. I said I was always depressed at my father’s and was not at my mother’s. He asked me how many 10-year-olds I thought took anti-depressants. I said probably not that many and he said how many 14-year-olds take anti-depressants because of hormones. I said it wasn’t hormones and that he didn’t understand. Matthew said if my father would sign something I could go back to my mother’s at that time. I stated that he would never do that. I said I didn’t want to tell him then because I wouldn’t want to live with him with that constant tension. And I didn’t know what he would do and was afraid. He said well, why don’t you just stop playing games and I immediately said I wasn’t playing games.

I didn’t even want to go into everything that happened on October 7th but I thought if I did maybe someone would listen. Well, so far no one has listened so I’m going to do whatever I have to do. Although I am concerned how my two sisters will take it I realize this is the least that he deserves; my words telling the truth. I’m very tired of writing letters and talking to people. I could go on and say what happened the day he got the first recommendation but what I have already written should be enough. I just don’t know why it’s taking so long and it is so hard to get back to my mother’s when an ex-parte was signed for my father in an instant. I was 10 years old and now I’m 14. I thought people listened to a minor child more and more as they got older. If you really cared about what’s in my best interest (after everything I honestly don’t believe that you do) you would listen to me and respect my wishes.”

I lost custody of my son due to biased evaluator

www.msnbc.com/the-docket/watch/i-lost-custody-of-my-son-due-to-biased-evaluator-568588355717

Mothers Civil Liberties Union (MCLU) Director Rachel Alintoff says “unless you’re in the court system, you would have no idea this was happening” discussing sexist biases of New Jersey’s court systems.

TRUE STORY – VIOLATION OF 14TH AMENDMENT

On February 6, 2013 Judge Janice Cunningham refused to allow me to file “MOTION TO REOPEN CHILD SUPPORT CASE AND REINSTATE THE ORIGINAL ORDER OF SUPPORT BASED ON FRAUD ON THE COURT BY THE DEFENDANT-xxxxx”. Denying me my constitutional right to ‘DUE PROCESS OF LAW”

Laws supporting Motion –

MCR 2.612 (3) This sub-rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding (B) or to set aside a judgment for fraud on the court.

Motion also requested the court to disregard FOC’s October 17, 2005 Child Support Recommendation for failure to follow the order of the court to re-calculate year by year support calculations and mistake, oversight or omission in failing to acknowledge the properly submitted proofs of childcare in Recommendation.

MCR 2.612 (A)(1) states that the Court may correct clerical mistakes, oversight or omissions at any time. (C)(1)(a) Mistake, inadvertence, surprise, or excusable neglect.

I FILED APPEALS “VIOLATION OF 14TH AMENDMENT” TO BE DENIED “LACK OF MERIT”; MICHIGAN SUPREME COURT “NOT PERSAUDED”.

Below is motion I was denied the right to file –

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF EATON

MOTION TO REOPEN CHILD SUPPORT CASE AND REINSTATE THE ORIGINAL ORDER OF SUPPORT BASED ON FRAUD ON THE COURT BY THE DEFENDANT-xxxxx

FACTS AND HISTORICAL BACKGROUND

1. June 14, 1991 Order of Child Support was entered; $75 for child support and $55 childcare weekly; retroactive to birth of child August 1, 1989. The original Order includes Section 552.531 MCL “That a child support Judgment on and after the date each support payment is due, with the full force, effect, and attributes of a Judgment of this state, and is not, on and after the date it is due, subject to retroactive modification.” (Matthew Moreaus recommendation Exhibit A)

2. Then, barely 2 months after the Order was made, on August 26, 1991 the Defendant-xxxx filed a petition for child support modification falsely claiming his “lifetime” VA benefits had been terminated; this assertion was proven false in 2004 per a subpoenaed VA income statement. (Petition, Exhibit B; VA Statement, Exhibit C)

3. Despite a complete lack of justification to review or modify the Order of June 14, 1991, Wendy Braford on March 3, 1992 recommended an order of $79 a week support and -0- childcare. The Plaintiff-xxxx who had no legal counsel had unknowingly completed the childcare form herself instead of having the childcare provider do so. The Plaintiff was never asked for clarification from Braford, nor did she receive any additional recommendations, orders, or notifications of any kind from the Court or FOC. As such, it was assumed the Defendant had dropped his petition due to the second recommendation of support being $4.00 higher than the Order that was in force. The Defendant acknowledged and accepted that the Plaintiff had childcare expenses and there was no request in his petition challenging the childcare portion of the support Order or asking for it to be reviewed.

4. October 7, 2000 in the child custody hearing in front of Judge Eveland the Defendant had testified to having full knowledge he had been ordered to pay $130 per week child support; that he had no problem with the ordered amount of $130 per week. When Judge Eveland informed the Defendant that he had filed a petition in ’91 and there was a subsequent March 1992 recommendation….the Defendants response “Say what? In ‘91 I asked to have it be reduced?” “I don’t remember in ‘91 asking that.” (Testimony attached Exhibit D)

5. April 19, 2001 the Defendant filed a Motion through counsel to cancel his $54,000 of child support arrearage claiming he never knew he had been ordered to pay $130 a week in child support and that he had thought the March 1992 Recommendation of $79 per week was an Order. (Defendants under oath testimony Exhibit E)

6. September 12, 2001 Judge Eveland ruled that the Defendant had a right to be heard on his then 10 year old “pending” 1991 petition per his *proven fraudulent April 19, 2001 petition. *Ex. D & E.

7. July 2, 2003 Judge Eveland ordered both parties to provide the FOC with their 1991 – 2002 income tax returns. In the hearing Judge Eveland addressed the Defendant-father directly, in brief “So make sure there’s no mistake of what we’re to need is your tax return, sir, or statements, and we need a statement from VA that’s a better statement then we have here. Because I can’t tell from here how much money you received from VA for the years 1993, 94, 95, 96, 97, 98 all the way up to present. If you don’t get us the information, I’m not going to consider it. I’m not going back and make any changes.” (Entire Direct, Exhibit F)

8. September 10, 2003 Mathew Moreau provided his report which stated “Defendant provides W2’s and tax forms, yet the tax forms have been altered.” “…provides an incomplete statement from Veteran Affairs which is not consistent with the previous statement”. Despite Judge Evelands directive regarding the obviously altered and inconsistent documents, Moreau performed year by year calculations using the knowingly altered, incomplete, and inconsistent documents to determine Defendant’s income. (Report, Exhibit G)

9. After the Plaintiff received a copy of Moreaus’ report she subpoenaed the Defendants incomes from 1991 – 2002 and showed on the record, that the Defendant had under-reported his annual income by amounts ranging from $2,765.24 up to $28,474.68 per year. (Subpoenaed income v Moreaus’ report Exhibit H; subpoenaed income statements in FOC file.) The VA Statement was very clear that the Defendants VA benefits were never terminated as he had claimed, and which was the entire basis of review contained in his August 25, 1991 petition, and also proved his under oath testimonies regarding his VA benefits being terminated perjury.

10. April 11, 2005 Plaintiff-xxxx filed a Motion to have the Defendant’s April 19, 2001 child support petition dismissed per the Defendant providing the FOC with altered, incomplete; inconsistent income documentation; quoting Judge Evelands’ directive to the Defendant from the July 2003 child support hearing. Despite Judge Evelands direct to the Defendant to provide the FOC with a complete, to date, statement from VA; he provided an incomplete, under reported benefit statement for years 1991 – 1995 only.

11. August 17, 2005 Judge Eveland ruled that is would be fair to redo the year by year calculations using the subpoenaed statements obtained and paid for by the Plaintiff. He ordered Court employee Wendy Braford to redo the year by year calculations 1991 – 1999.

12. October 17, 2005 Wendy Braford did calculations for only the year 1992 when she had been ordered to do year by year calculations for ALL of the years at issue. She recommended child support at $79 a week and -0- childcare; same as her March 1992 recommendation. Braford falsely stated the Plaintiff-mother had not provided her with any childcare verification and she had not claimed childcare on her income tax returns. Plaintiff did claim childcare expenses on her 1992 tax return. The childcare form 2441 had been properly submitted with tax return to Braford in 2005 as required by the order of Judge Eveland. (paragraph 7) Plaintiff prefers to believe that Braford’s mistake, oversight or omission was unintentional rather than intentional or gross negligence; or an example of intentional or gross misfeasance or malfeasance of her duties to follow the Order of the Court. In addition, Plaintiff provided to Braford affidavits and letters from her childcare providers and proof she was employed full time at General Motors. It should be noted that the Child was only 2 years old in 1992 the Plaintiff most certainly did not leave her home alone without childcare. (Recommendation Exhibit J)

13. The Plaintiff-xxxx filed an objection to Brafords’ recommendations and on May 19, 2006 filed a petition requesting year by year child support calculations as ordered by the Court and for the Court to dismiss the Defendant’s 1991 petition since his VA benefits had never been terminated as he had falsely alleged. As such, the Defendant had no change of circumstance as required by law to merit a review of an Order that had just been made a mere 2 months prior. Thornton v Thornton and Rappaport v Rappaport. “Change of circumstance must appear in record.”

14. September 4, 2007 Judge Eveland assumed that Braford had followed his order and followed her flawed Recommendation Ordering child support at $79 a week and -0- childcare retroactive back to June 14, 1991, the date of the original Child Support Order. The date childcare had been verified by court employee Matthew Moreau; childcare expenses were documented in his report. ( Exhibit A) The Judge ruled the childcare provider (who had testified) was not a “credible witness” and denied the Plaintiff any childcare support.

15. Despite all of the childcare proofs the Plaintiff had provided Brafords recommendation denied the Plaintiff any childcare support. Judge Eveland ruled the Plaintiff had not provided sufficient proof, even those he had previously found acceptable and credible as it pertains to other children of the Plaintiff, unrelated to Defendant.

16. The Plaintiff immediately filed a petition attaching the childcare verification she had provided to Wendy Braford, and additional letters, affidavits from her children (adults in 2007) and others attesting to the fact she had childcare expenses. (All affidavits and letters in FOC and Court file.) The Judge denied the Plaintiffs petition stating she could not present “new evidence”.

17. The 16 year retroactive Child Support Modification (reduction) erased approximately $60,000 of the Defendants arrearage; instantly placing the Plaintiff owing the Defendant over $16,600 in “overpayment”. Judge Eveland ordered the State Child Support agency to garnish the Plaintiff’s income claiming the Plaintiff was “severely behind in child support” even though the Plaintiff had never been ordered to pay child support and an order not based on the law since this was a case (albeit flawed) where the Defendant allegedly overpaid child support. (CLASP, PIQ-03-02 and PIQ-002-01- an individual must obtain a civil judgment to collect child support overpayment.)

18. December 22, 2008 the Plaintiff filed a motion for dismissal of the Defendants fraudulent 1991 petition. Attached to the petition was an affidavit authored by VA staff attorney Thomas K. Maher. “…. (3) The figures in Exhibit A were, and are, accurate and correct, and reflect monthly payments in the amounts shown throughout the stated year(s). (4) VA benefits based on duty-related causes are lifetime benefits, ……” The affidavit proves with no doubt the Defendants VA benefits had never been terminated. (Affidavit and Statement, Exhibit B) The very nature of “lifetime” benefits is that they can only be terminated by death. It also proves the Defendants under oath testimonies perjury. “My VA records were cut. I brought in proof.” “…… It was, like, maybe a six months period.” “My VA was terminated for eighteen months to two years. And, I can prove that.” (Transcript pages attached Exhibit I.) Despite Defendant’s claim he could “prove” his “lifetime” benefits were periodically terminated, no such proofs were ever tendered, and in fact the only proofs offered showed that “lifetime” benefits are only terminated by death.

19. January 12, 2009 Judge Eveland denied the motion claiming “The Plaintiff has presented the same issue with the same arguments and evidence that has already been ruled on by the court. Additionally, the plaintiff has not demonstrated a palpable error by with the court has been misled and has not shown that a different disposition of the motion must result from correction of the error.”

20. The Court overlooked that the entire basis of all related proceedings was contingent upon a change in circumstances that Defendant offered no proofs showing it to have occurred (all alleged proofs he provided were “lost” by the Court). However there was an overwhelming amount of highly credible evidence that show the change had never occurred and would not have occurred. Defendant’s claim his VA benefits were terminated; which are “lifetime benefits” were never terminated at any point in time.

21. Plaintiff has been severely harmed by the FOC and Courts endorsement of the Defendants proven fraudulent petitions and perjury. By the mistake, oversight or omission of Braford in failing to properly carry out the order of the court. Due to the garnishments on the Plaintiff-mother income and all of her other expenses from the child support and child custody cases she had to file bankruptcy, in fact it was when the Plaintiff was collecting information for her bankruptcy attorney she discovered her 1992 tax return with attached 2441 childcare form. Plaintiff also lost her home of over 16 years to foreclosure due to the financial hardship caused by the Defendants fraudulence and Brafords mistake, oversight or omission in carrying out her duties. Despite Braford receiving the Plaintiffs (unaltered) tax returns and the subpoenaed incomes of the Defendant (obtained and paid for by the Plaintiff to provide the FOC with Defendants factually accurate incomes) for the years in review she willfully ignored the order of the court to conduct a year by year analysis of support and willfully ignored the order to review the tax returns, the subpoenaed incomes and childcare verifications she was provided.

22. January 20, 2010 the Plaintiff-mother filed a motion to have the child support case reopened naively believing that if the Court were made aware of Braford’s omission that the Court would correct the “mistake, oversight or omission” attaching her 1992 tax return and 2441 childcare form and Braford’s October 17, 2005 Recommendation. (Exhibit J & K to this motion) Judge Eveland denied the Plaintiff a hearing ruling “the information was available to her earlier and the she did not show “due diligence” in presenting the evidence’” even though it was the same evidence that had been previously provided all along, but which Braford refused to acknowledge.

23. MCR 2.612 (A)(1) states that the Court may correct clerical mistakes, oversight or omissions at any time. (C)(1)(a) Mistake, inadvertence, surprise, or excusable neglect.

24. The Plaintiff has proven with evidence Braford provided the Court with flawed information (claiming the Plaintiff had not provided her with any childcare verification) in her October 2005 Recommendation which became a retroactive Order in September 2007.

25. MCR 2.612 (C) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party. (2) the motion must be made within a reasonable time.

26. Plaintiff’s motions have been made in a reasonable time. Plaintiff has diligently been trying to have this corrected since the error was made. All of the facts support the Plaintiff’s claims yet the court to this point has refused to consider them.

27. MCR 2.612 (3) This sub-rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding (B) or to set aside a judgment for fraud on the court.

28. The Plaintiff has offered numerous proofs that the material allegations at the core of the Defendant’s petitions were/are fraudulent. The Defendants “lifetime” VA benefits were never terminated. The Plaintiff has offered numerous proofs in a timely basis that her claims of childcare were true; even though childcare expenses should have never been under review per the Defendant never questioning or requesting review in his 1991 petition. Furthermore, the Plaintiff has proven the Defendants April 19, 2001 fraudulent per his own sworn testimony from the October 7, 2000 custody hearing.

29. The only way the Order can be found acceptable is for the Court to accept the Fraud on the Court by the Defendant-father.

WHEREFORE PLAINTIFF-MOTHER PRAYS THAT THIS HONORABLE COURT:

A. Dismiss the Defendant-xxxx August 26, 1991 and April 19, 2001 child support petitions for Fraud on the Court.

B. Disregard Court Employee Wendy Braford’s October 17, 2005 Child Support Recommendation for her failure to follow the order of the court to re-calculate year by year support calculations and her mistake, oversight or omission in failing to acknowledge the properly submitted proofs of childcare in her Recommendation.

C. Reinstate the original Order of child support of $130 a week, $75 support/$55 childcare, retroactive to June 14, 1991, when childcare expenses had been verified by Matthew Moreau. To include all interest and penalties to present date.

I DECLARE THE STATEMENTS ABOVE ARE TRUE TO THE BEST OF MY INFORMATION, KNOWLEDGE AND BELIEF.

________________________________
Plaintiff-xxxxx; PRO PER
February 6, 2013

Texas Derived Judicial Immunity

JUDICIAL IMMUNITY OF JUDGES, JUDICIAL OFFICERS, DERIVED JUDICIAL
IMMUNITY

derived judicial immunity provides broad protection. “Once an individual is cloaked with derived judicial
immunity because of a particular function being performed for a court, every action taken with regard to
that function—whether good or bad, honest or dishonest, well-intentioned or not—is immune from suit.

Once applied to the function, the cloak of immunity covers all acts, both good and bad.” Ramirez v.
Burnside & Rishebarger, L.L.C., No. 04-04-00160-CV, 2005 Tex. App. LEXIS 6065, at *5 (Tex. App.-San
Antonio Aug. 3, 2005, no pet.) (mem. op.) (citing B.K. v. Cox, 116 S.W.3d 351, 357 (Tex. App.-Houston
[14th Dist.] 2003, no pet.)). REHABWORKS, LLC v. Flanagan, Tex: Court of Appeals, 3rd Dist., Austin 2009

THE JUDICIARY ENDORSES, ENCOURAGES AND REWARDS FRAUDULENCE AND PERJURY!!!!!!

CONDENSED HISTORY OF CORRUPT CHILD SUPPORT CASE (Order erasing $60,000.00 child support arrears was based 100% upon fraudulent petitions, fraudulent documents and perjury; ALL known by Judge prior to his ruling) –

June 1991 Original child support order $130 a week; $75 child support and $55 childcare.

August 1991 the Defendant filed a petition for child support modification falsely claiming his “lifetime” VA benefits had been terminated.

March 1992 the subsequent recommendation; $79 a week support and -0- childcare. The Plaintiff-mother had unknowingly completed the childcare form herself instead of having the childcare provider do so. Plaintiff never heard anything from the Court thereafter and assumed the Defendant had dropped his petition due to the second support recommendation being $4 higher than original and knowing the Plaintiff had childcare expenses.

October 2000 custody hearing – The Defendant testified to having *“full knowledge he was ordered to pay $130 a week child support and that he had no problem with the ordered amount of $130.00 a week”. Then Judge Thomas S Eveland questioned the defendant about the petition he had filed August of 1991. The Defendant replied “What petition? I never filed a petition.”

April 2001 the Defendant filed a petition to retroactively modify child support; falsely asserting *He never knew he had been ordered to pay $130 a week. He had thought the subsequent recommendation from his August 1991 petition of $89 a week was an order. I presented transcript pages to the FOC and Court proving the Defendants petition fraudulent..

September 2001 Judge Eveland ruled that the Defendant had a right to be heard on his then 10 year old “pending” 1991 petition per his *proven fraudulent April 19, 2001 petition.

July 2003 Judge Eveland ordered both parties to provide the FOC with their 1991 – 2002 income tax returns. In the hearing Judge Eveland addressed the Defendant-father directly, in brief “So make sure there’s no mistake of what we’re to need is your tax return, sir, or statements, and we need a statement from VA that’s a better statement then we have here. Because I can’t tell from here how much money you received from VA for the years 1993, 94, 95, 96, 97, 98 all the way up to present. If you don’t get us the information, I’m not going to consider it. I’m not going back and make any changes.”

September 2003 Mathew Moreau provided his report which stated “Defendant provides W2’s and tax forms, yet the tax forms have been altered.” “…provides an incomplete statement from Veteran Affairs which is not consistent with the previous statement”.

October 2003 I subpoenaed the Defendants incomes from 1991 – 2002 and showed on the record, that the Defendant had under-reported his annual income by amounts ranging from $2,765.24 up to $28,474.68 per year. The VA Statement was very clear that the Defendants VA benefits were never terminated as he had claimed, and which was the entire basis of review contained in his August 25, 1991 petition, and also proved his under oath testimonies regarding his VA benefits being terminated PERJURY.

April 2005 I filed a Motion to have the Defendant’s April 19, 2001 child support petition dismissed per the Defendant providing the FOC with altered, incomplete; inconsistent income documentation. Per the Defendant providing the FOC with an incomplete, under reported VA benefit statement for years 1991 – 1995 only when the Judge had ordered him to provide a complete statement for all years in review.

August 2005 Judge Eveland REFUSED TO DISMISS the Defendants FRAUDULENT petitions and ruled that is would be fair to redo the year by year calculations using the subpoenaed statements obtained and paid for by the Plaintiff. He ordered the FOC to redo the year by year calculations 1991 – 1999.

October 2005 FOC did calculations for only the year 1992 only and recommended child support at $79 a week and -0- childcare; same as her March 1992 recommendation. Braford falsely stated I had not provided her with any childcare verification and I had not claimed childcare on my income tax returns. The childcare form 2441 had been properly submitted with tax return to Braford in 2005 as required by the order of Judge plus I provided affidavits from childcare providers throughout years under review.

May 2006 I filed an objection to Brafords’ recommendations and filed a petition requesting year by year child support calculations as ordered by the Court and for the Court to dismiss the Defendant’s 1991 petition since his VA benefits had never been terminated as he had falsely alleged. As such, the Defendant had no change of circumstance as required by law to merit a review of an Order that had just been made a mere 2 months prior.

September 4, 2007 Judge Thomas S Eveland after receiving all proofs of fraudulence retroactively modified (reduced) child support back to date of original child support order (the date FOC had physically verified childcare); he denied any childcare support erasing over $60,000 of the Defendants arrears. Instantly placing the Plaintiff owing the Defendant over $16,600 in “overpayment”. Judge Eveland ordered the State Child Support agency to garnish my income falsely asserting I was “severely behind in child support” even though I had never been ordered to pay child support and an order not based on the law since this was a case (albeit flawed) where the Defendant allegedly overpaid child support. (CLASP, PIQ-03-02 and PIQ-002-01- an individual must obtain a civil judgment to collect child support overpayment.)

FACTS –

The Defendants 1991 and 2001 petitions are FRAUDULENT and his under oath testimonies PERJURY. The FOC FALSELY asserted I had not provided any childcare verification; FACT childcare expenses should have never been under review per the Defendant never questioning or requesting review in his 1991 or 2001 fraudulent petitions. FACT Judge Eveland denied any childcare expenses when if had attached childcare verification to my objection to October 2005 FOC recommendation.

All Appeals were denied “lack of merit’.
All grievances concluded”No wrong doing on the part of the Judge.”

Section 552.531 – “Child support is not, on and after the date it is due, subject to retroactive modification”

Thornton v Thornton and Rappaport v Rappaport. “Change of circumstance must appear in record.”

MCR 2.612 (A)(1) states that the Court may correct clerical mistakes, oversight or omissions at any time. (C)(1)(a) Mistake, inadvertence, surprise, or excusable neglect.

MCR 2.612 (C) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party. (2) the motion must be made within a reasonable time.

MCR 2.612 (3) This sub-rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding (B) or to set aside a judgment for fraud on the court.