Atty. Barbara Johnson Challenges Judges While Defending Father Sues Judge in Federal Court to Attack 'Gender Bias'

Atty. Barbara Johnson pushed an empty wheelchair into the courtroom last week when she arrived for pretrial conferences. "Justice is handicapped," she said. "We're going to resuscitate due process and equal protection."

Atty. Barbara Johnson Sees What's Happening to Father As an 'Outrage'

By John J. Xenakis
June 12, 2002

A custody trial now in a Boston court has Atty. Barbara Johnson, Fitchburg, challenging the judges of the state about "gender bias" against fathers.

She is raising issues which may set precedents for other custody cases.

The trial began in Suffolk Probate Court on Monday, with Judge Lisa A. Roberts presiding.

The mother in the case, Dori Gouin, earned $160,000 per year as a lawyer during their marriage while her husband, Jake Gouin, stayed home as "househusband," taking care of the children.

After the divorce, Dori decided to quit her job and move out-of-state to Maine, and take the children. Probate court Judge Nancy Gould, who presided over the case last year, awarded custody to Dori. She required Jake to pay child support to Dori.

Atty. Johnson then sued Judge Gould in federal court, charging gender bias against the father. Thereafter, Judge Gould recused herself from the divorce case in October, 2001.

Two well-known Boston lawyers agree with Atty. Johnson that the facts appear to favor the father in this case. They are Gerald L. Nissenbaum, who was appointed by the judge to serve as "deposition master" in the case, and Sanford A. Kowal, a divorce lawyer in Brighton.

"Jake was a househusband and took care of those children day and night for years," says Nissenbaum. "That's clearly in his favor."

According to Kowal, Judge Gould was in error in giving custody to Dori.

"Judge Gould was way out of line," says Kowal. "The idea that the mother should have custody when she was working full time, earning $160,000, while he was the primary caretaker taking care of them, and she changes her mind and moves to Maine, why should she get the kids?"

According to Kowal, this kind of issue was settled several years ago, in a case where a father gave up a high-paying job and became a taxi driver to reduce his child support payments. "The court required him to pay child support based on his salary at his former job," he says. "Judge Gould should have done the same thing in the Gouin case."

Can Parent Tape Record Kids During Visit?

Another issue is whether a parent is permitted to tape record his children while they're visiting.

The father, Jake Gouin, has a tape recording of his son in which the boy makes a statement indicating he had been sexually abused by his mother's father.

In defense, the ex-wife, Dori Gouin is claiming, among other things, that the recording was illegal and may not be used as evidence.

"It's illegal to tape someone without his consent," says Atty. Nissenbaum, who made clear to me that he was stating his opinion about general principles of law. He didn't want to comment on the specific facts of this case.

"If the mother of the children has sole legal custody, and the father wants to tape record the children and the children are too young to legally assent to the tape recording, then the father, who has no legal custody, cannot give substituted consent. That can only come from the mother," according to Nissenbaum.

This principle, if affirmed by the court, would prevent any parent from tape recording his children during parties or any other activities while the children were visiting with him.

That's stretching the law too far, according to Atty. Kowal

"I wrote the wiretap statute in 1968, and it does require consent," says Kowal.

"However, I've never studied the question of whether visitation gives the father permission to tape the kids. As far as I know, there's no case law on it. This is a very esoteric question, but it sounds ridiculous. I know I have a problem claiming that a father can't tape his own children while they're visiting him. And if he can tape them while at a party, or playing in the swimming pool or saying that they love him, then he can record them for any reason."

Criminal Charges Against Atty. Johnson

Unfortunately, these substantial issues have become eclipsed because of disagreements that have lead to wild accusations and criminal charges on both sides.

The problem began two years ago when Dori got an appraisal on jointly owned real estate, but then didn't make the appraisal report available to Jake. Atty. Johnson tried to get the report, but was repeatedly rebuffed by Dori's lawyer at the time, E. Chouteau Merrill, who was appointed as a judge by Jane Swift in October of last year.

Dori is currently represented by John G. DiPiano of the Boston firm, Mauser & Mauser, and by Raymond Sayeg Jr., of Jeffrey A. Denner Associates.

Finally, in May of this year, Atty. Johnson learned the name of the appraisal company that prepared the report. She subpoenaed the company, and obtained a fax copy of the report. She saw, as she had expected, that the appraised amount was substantially lower than the value declared by Dori in her financial statement.

Atty. Johnson brought fraud and larceny charges against Dori, her former lawyer, E. Chouteau Merrill, Gerald Nissenbaum and two others in federal District Court. (Fraud is a civil charge, larceny is the corresponding criminal charge.)

Johnson alleged they had all withheld the appraisal report from Jake to defraud him of $150,000 in the divorce settlement.

In response, according to Johnson, she is being threatened by Dori's current lawyers, DiPiano and Sayeg, with charges of criminally violating court orders of confidentiality and of subpoenaing the appraisal document past a court-ordered deadline. Calls to DiPiano and Sayeg were not returned.

According to Atty. Kowal, both sides are getting hysterical with these charges.

"Big deal!" says Kowal. "People always come in with wrong appraisals, and this is just pre-trial discovery. Eventually someone comes in with the correct appraisal, and the facts are settled at trial." Kowal believes that the charges on both sides will be dropped.

John J. Xenakis supports Atty. Johnson's candidacy for governor. (See http://www.barbforgovernor.com Xenakis is author of "Fraternizing With The Enemy: A book on gender issues for men ... and for women who care about men." His website is http://www.fraternizing.org, and his e-mail address is john@fraternizing.org)

Atty. Barbara Johnson Sees What's Happening to Father As an 'Outrage'

Can't be 'Wimpy,' Must be a 'Little Outrageous'

Atty. Sanford Kowal empathizes with Barbara Johnson for bringing charges in federal court against Judge Nancy Gould.

"Johnson sees what happened to her client as an outrage," says Kowal.

"She's trying to make a point that the system isn't treating men very well," he says. "She may go to extremes on occasion, but she's only pushing the system on behalf of men the same way that women's groups have always pushed the system on behalf of women. It's for the judge to call it; but if you don't push, then the judge won't even
listen."

Johnson herself agrees with that description. "I can't be wimpy, and I have to be a little outrageous," she says.

"They'll roll over any wimpy lawyer with a steamroller. The judges are so automatically knee-jerk, anti-father that they just don't listen to the evidence. Had Dori Gouin been a man making $160,000, he's had to pay considerable child support and alimony, but because she was a woman, the judge didn't make her pay any."

Kowal agrees that things have gotten so bad that probate judges don't rule on the evidence any more, and refuse even to listen to the evidence.

"All a woman has to say is, 'I'm afraid,' and the judge will simply rule in her favor without even considering the evidence, for fear of what people will say. It's almost impossible for a father to get custody, even if the mother is a whore or a drug addict. It
shouldn't be that way."

Atty. Kowal has no patience with judges who claim they don't have time to consider the evidence.

"Any judge who says that ought to leave the bench," he says. "We put people on the bench to look at the evidence. Once she goes off the evidence and rules strictly on what people will say, she should stop being a judge. I have strong objections to judges worrying about what people have to say -- she's not doing her job. They're going by their preconceived views, their notions, their impulses -- they're not even using common sense."

The main weapon being used by women is the false domestic violence charge. "A woman just has to say two magic words, 'I'm afraid,' and the father can never see his kids again."

Should be Jury Trials

Things have gotten so bad that Kowal says he intends to file legislation that would allow men charged with domestic violence to demand jury trials. "If you want to say your husband is abusing you, then tell it to a jury and let them decide. I don't see how anyone can say that's unfair."

If a judge knew that her decision was going to be reviewed by a jury, she would be able to rule on the evidence, rather than on public opinion, according to Kowal. He believes that the mere threat of a jury trial would cause judges to rule more fairly, and that few actual jury trials would be necessary.

"You can say a judge is prejudiced -- but you can't say that about a jury," he adds. "Furthermore, the losing party is more likely to accept a jury verdict, and that's one of the things that make juries so important."

Kowal says that he intends to file this legislation by December, in time for the filing deadline for next year's legislative session.