Columnist Sandra Thompson: Retried cases emphasize family violence impact

Sandra Thompson

Sunday, Jan. 31, 1999 | 9:33 a.m.

TWO CONTROVERSIAL cases that were part of a Judicial Discipline Commission complaint against former Family Court Judge Fran Fine have been retried.

Not surprisingly, the new rulings were the opposite of Fine's.

In both cases, Fine had given primary custody of the children to the fathers despite incidents of domestic violence.

Last October the Judicial Discipline Commission found that Fine had engaged in ex parte communication and other judicial misconduct in the cases. The commission removed her from the bench, and her rulings on the two cases were thrown out.

The cases were randomly assigned to other Family Court judges and retried.

"The result reached by the two judges in these two cases is the rational, obvious result that should have been reached originally (by Fine) and with little fanfare," Marshall Willick, the attorney for the two mothers in the cases, says.

"The sad part about the course of these proceedings is that it took three years and enormous sums of money to reach results that should have been reached immediately and for nearly nothing."

Willick says the cases were not "close calls" when first litigated.

In Greisen vs. Morse, the Judicial Discipline Commission said that the mother (Morse) was denied due process and that Fine engaged in ex parte communication.

Fine had awarded primary physical custody of two girls to the father, saying there was no evidence of domestic violence as alleged by the mother.

Yet in retrying the case, Family Court Judge Gloria Sanchez found there was "clear and convincing evidence that Husband has engaged in domestic violence against Wife ... ."

Noting that both parents loved the girls and there was no evidence of violence against them, Sanchez gave the mother primary physical custody and the father liberal visitation.

Nevada Revised Statute 125.480 states that in determining custody, "the sole consideration of the court is the best interest of the child." In determining the best interest of the child, the court "shall" consider whether a parent has engaged in an act of domestic violence against the other parent.

Domestic violence also was an issue in the second case, Lofnik vs. Lofnik, which was retried by Judge Steven Jones. Fine had given a "temporary" order that awarded primary physical custody of the children to the father. Willick says Fine refused to certify her decision as final, even though it had been in effect more than a year.

In retrying the case, Jones conducted a five-day evidentiary hearing and found that the father had a "lengthy history of engaging in acts of violence, intimidation or otherwise acting inappropriately, whether it is with animals, other people, his children or the plaintiff herself." The court found that the father committed more than one act of domestic violence.

Although Jones said both parents "deeply love and care for their children," he gave primary physical custody to the mother, who had moved out of state. He ordered the father to attend long-term counseling sessions.

One of the criticisms of Family Court is that judges don't always consider domestic violence issues when deciding custody.

Although allegations of abuse are sometimes false, it would behoove the court to at least conduct a hearing to determine if there's evidence.

While Fine has said she does not condone domestic violence, it was not a primary consideration in her decisions in the Greisen or Lofnik cases.

In retrying the cases, Sanchez and Jones clearly considered domestic violence a reason not to award primary custody.