Money a Potent Factor in Thomas Custody Case

TIMES STAFF WRITER

He spent more than $100,000 in legal fees on the bitter custody case. She blew her savings on a single $6,000 retainer fee.

Kevin Thomas' lawyer is a prominent paternity-rights specialist. Catherine Thomas has relied on lesser-known attorneys working virtually for free.

He won sole custody of her 5-year-old daughter, Courtney, and lives with her in Van Nuys. She faces prosecution for felony child stealing.

In the unusual Thomas case, many complicated factors led to the birth mother losing custody to a former family friend. Among other things, she twice violated court orders by running off with her child. But money has been a big piece of the puzzle, say Catherine Thomas and her lawyers, just as it is in many custody cases where women face opponents with greater financial resources.

The link between money and building an effective legal case is nothing new. But experts say it is particularly acute in custody disputes--where emotions, endless hearings and dueling psychiatric evaluations can quickly ratchet up fees.

When one side is able to hire witnesses and conduct background checks that the other is not, experts say, it can skew the facts judges see and how they ultimately perceive the competing parents.

"I would say that in most family-law cases the advantage is to the person who can pay for representation," said Los Angeles attorney Sheila Kuehl, a founder of the California Women's Law Center.

One measure of the formidable cost of custody disputes is the number of people braving the courts without lawyers. In California, four out of 10 people in custody cases appear pro per , or on their own behalf, according to a 1992 report by the state Administrative Office of the Courts.

In some courts, the pro per rate for custody matters was as high as 53%, the report found.

Another study, by the state Commission on Gender Bias in the Courts, found that the majority of the lawyerless are women, many of them single mothers living in poverty or divorced women whose husbands earned more money and controlled the family's assets.

The same 1990 study reported that 36% of judges surveyed said that pro per litigants received "unfair results or treatment."

Although judges can order the richer person to pay the other's legal expenses, actual awards rarely cover costs and usually do not come until the end of the case, practitioners say. And while defendants in criminal cases are entitled to free lawyers, there is no blanket protection in civil suits.

Men's groups argue that 90% of children in single-family households live with women, according to government figures. That's evidence, they say, that women still prevail in the courts.

But women's rights advocates say those numbers, though technically accurate, are misleading because they do not reflect cases in which the men fought for custody.

"The truth of the matter is, most of the time men don't want custody of their children, and even if they say they do early on, they're using that as an economic ploy," said Nancy Polikoff, a law professor at American University.

Moreover, women tend to lose custody disputes more often than men, feminists say, although there have been few scientific studies on the subject.

One study of 60 custody disputes in the United States and Canada described by feminist psychologist Phyllis Chesler in her book "Mothers on Trial" found that men had prevailed 70% of the time, even in traditional households where women had been the primary caretakers.

A 1977 study based on a random review of Los Angeles cases that is still cited today found that men won 63% of contested custody cases.

Men win not only because of the economic advantage they generally enjoy over women, Chesler said, but because "men are still seen as more credible witnesses than women ever are." There is also a double standard at work, Chesler and other feminists argue.

"Men can be OK parents," Chesler said. "Women have to do everything, and perfectly, and if they do not, they are damned forever."

Fathers' rights activists say the costs of litigation hurt everybody, and they deny that men have an advantage. It is women, they say, who still enjoy the courts' paternalistic sympathy and are presumed to be the better parent.

"Women have victim power, and they're not subject to scrutiny in the same way men are," said state Sen. Charles Calderon (D-Whittier), who went through a messy divorce and custody suit. "Money doesn't make a bit of difference except in helping men overcome that presumption."

"Even if you have a financial advantage, you're still fighting a mind-set that's so great that money can't overcome it," said Dave Whitman of Bakersfield, who is president of a statewide group called COPS, or Coalition of Parent Support.

But women's advocates say that, more often than not, the lack of money colors, if not decides, custody disputes.

Santa Monica attorney Jeanne Lowell recalled a recent pro bono case in which a woman's abusive ex-husband had never paid much attention to their five children. Once they divorced, however, he saw joint custody as an opportunity to avoid child-support payments and continue exerting power over the family.

The man insisted on seeing the children two hours every day and bullied his lawyerless ex-wife--who had moved two hours away and could not afford an attorney--to commute with their brood, four hours round-trip.

The situation continued for about three months until the woman was referred to Lowell through a legal aid agency. Lowell said it was easy to correct the grossly inequitable arrangement, once an attorney was present.

"If she had continued to try to negotiate with him, she'd still be driving," Lowell said.

Pam Besser--the former Ventura County resident who has become a spokeswoman for divorced mothers--says she was lucky that civil-rights attorneys took up her cause. Besser nearly lost an eight-year custody fight for her son Joshua after she and her second husband moved to Northern California, away from the boy's biological father in Ventura.

Besser, who says she gave up her teaching career to help her ex-husband set up a business, estimates that the American Civil Liberties Union and the Women's Law Center in Los Angeles racked up $50,000 to $100,000 in legal fees on her case, which she won last year on appeal. She had exhausted her resources long before.

"Had the ACLU not gotten involved," Besser said, "I would not have my child today."

Although the Thomas case has been sealed, its notoriety has provided a closer look at how these usually private matters unfold and the role that money can play. Kevin Thomas could not be reached for comment, and his attorney did not return repeated phone calls.

A single mother of three who lived in the San Fernando Valley and Thousand Oaks, Thomas earned $40,000 a year working for a Woodland Hills insurance company. Her youngest, Courtney, required special schooling and doctors because she was born with a rare congenital condition that left her mildly retarded.

Advocates for Catherine Thomas say that for all the mistakes she made, money kept her from sharing an even playing field with Kevin Thomas, a former friend who sought paternity rights to Courtney in September of last year.

"She simply couldn't prepare the case properly," one of her criminal defense attorneys, Michael D. Chaney, said recently, after Thomas was released from the county's Sybil Brand jail for women. Unable to post a $120,000 bond, the 46-year-old woman spent a week behind bars after she and Courtney, who disappeared together July 29, were seized in Pittsburgh, Pa., on Sept. 17.

It was not the first time Thomas had fled with her daughter to avoid what she claimed was a hostile court. She also fled to Canada last fall, shortly after Kevin Thomas filed suit to gain custody of the girl. When she returned from Canada six months later, she faced a series of legal battles, both criminal and civil.

Kevin Thomas--who changed his surname from McCain to match Courtney's--manages a bill-collection agency. The openly gay, 43-year-old Van Nuys resident says he and Catherine Thomas had informally agreed to raise the girl together and that she knew him as her "daddy."

He retained Glen H. Schwartz, a prominent family-law attorney based in Encino who has won several highly publicized paternity cases on behalf of "non-biological fathers."

Schwartz is chairman-elect of the Los Angeles County Bar Assn.'s Family Law Section. He was chairman of a family-law symposium in May in which Los Angeles Superior Court Judge Martha Goldin, who decided the Thomas case in June, served on a panel on the subject of custody.

Catherine Thomas, meanwhile, has had a series of lawyers who say that without a steady infusion of cash they have been hard-pressed to compete with Schwartz.

Her first attorney, an old friend who took the case for free as a favor, assured her that there was no way an unrelated man could win paternity rights. So when Kevin Thomas was granted temporary visitation rights, Thomas panicked, she says, and ran off with her daughter to her native Vancouver--a move her attorneys say turned the court against her.

When she returned, Catherine Thomas found a second attorney, this time a family-law practitioner. But a $6,000 retainer was quickly used up and within a few weeks Lawrence C. Samuels asked her to find someone else. "Justice is not for the poor," he said.

She was finally referred to Arnold Freedland, a solo practitioner in Alhambra. Relatives put up a $1,000 retaining fee but that was quickly exhausted and Freedland continued to work for free.

Though Freedland has declined to discuss details of the sealed case, Thomas and others say there was no money to get a deposition from Kevin Thomas. Depositions--sworn pretrial statements usually taken in attorney's offices--are crucial preparation tools, both for background and catching opponents in lies. But they also can cost from hundreds to thousands of dollars.

Kevin Thomas, meanwhile, deposed her.

More money might have also enabled Catherine Thomas to hire her own psychiatric witness to counter a damaging evaluation by an expert selected by the court.

The court's psychiatrist, Dr. Lionel Margolin, found that Kevin Thomas had been more directly involved in Courtney's schooling, which is particularly important because of the child's mild retardation. Though he called both Kevin Thomas and Catherine Thomas loving parents, he recommended that Courtney live with Kevin during school sessions and visit her mother on weekends and weekday afternoons. This was the arrangement approved by Goldin, who also ordered that the visits be monitored, since Catherine had fled once with the child.

Her lack of money also led to the appointment of Robert Johnson, Kevin Thomas' longtime lover, as the monitor of her visits with Courtney.

Professional monitors cost a minimum of $25 an hour, Freedland said, so Catherine Thomas' only alternative was to find a mutually acceptable friend or relative willing to work for free. Kevin Thomas vetoed all her nominations and finally the only way she could spend time with Courtney was by accepting his choice of Johnson.

Johnson's presence--he slept on the couch or floor of Catherine Thomas' Thousand Oaks apartment during weekend visits--exacerbated an already tense situation and indirectly led her, she says, to take Courtney and run a second time.

These days, Thomas faces further legal battles on civil and criminal fronts. And again, her attorneys are working unpaid--Chaney and David Kestenbaum, who are handling her criminal case, and a new civil attorney, Michael Goch Jr., who is scheduled to appear in court Friday to seek a new trial.

"She doesn't even have the money to fight for her own child," said Patricia Diulus-Myers, a lawyer who assisted Thomas in Pittsburgh. "We're not talking about suing someone on a breach of contract. We're talking about fighting for your own biological child."

* DAY IN COURT: Thousand Oaks woman's lawyers see misapplied law. A15

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