By Ray Stern
By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
Ultimately, two members of a three-judge panel--Rudolph Gerber and Eino Jacobsen--decided that Lavit's relationship with Richter was not subject to litigation.
Although the Okkens chose Lavit for their case, and paid him, he was technically appointed to the case by court order, the judges said, and therefore is entitled to absolute judicial immunity.
The judges noted that several other states have granted immunity in such cases and said that "without immunity, these professionals risk exposure to lawsuits whenever they perform quasi-judicial duties."
The ruling applies only to psychologists appointed by the court as experts, the judges noted, not those that might be hired by either side of a case to testify on one party's behalf.
Judge John Taylor disagreed with his colleagues, noting that Lavit was paid by the Okkens to conduct his evaluations. Lavit's decision not to tell Okken about his friendship with Richter raised a valid question, Taylor wrote, that should not be dismissed with judicial immunity.
"Judicial immunity, with its absolute cloak of protection against liability for judicial acts, should be jealously guarded and sparingly extended," Taylor wrote in his opinion.
Despite Taylor's dissent, however, the court's ruling effectively quashed Okken's lawsuit. He is not appealing to the state Supreme Court, he says, because he cannot afford to continue pressing the case.
Until it is challenged, the ruling stands as the law of the land in Arizona. Leibow, who represented the psychological association, says it is a welcome precedent for members of the profession.
"This protects the psychologists, who are essentially assisting the court," Leibow says. "They're acting as a court-appointed professional to assist in solving a complex, emotional problem."
But what if a professional fouls up a case and the affected parent cannot sue?
Maseros, Lavit's attorney, says that is the price to be paid for asking psychologists to do custody work.
"Immunity is an area where, for the greater good, some individuals may have to suffer some damage," Maseros says.
Lavit and Thomas DiBartolomeo point out that disgruntled parents can still file complaints with the state Board of Psychologist Examiners if they feel they have been mistreated.
Okken says good luck trying.
That body's handling of his case, Okken says, demonstrates what a weak remedy the board provides. Last December, the board held an informal hearing on his complaint against Lavit. A transcript of the hearing shows that Lavit was scarcely asked about his relationship with Richter or the appearance of a conflict.
Okken was not allowed to speak at the hearing, and the details of Lavit's relationship with Richter were never explored, the transcript shows.
Instead, board members asked questions about how Lavit did his psychological evaluations, and discussed the results. Although he was at the meeting, Okken was barred by the board's rules from speaking to the committee.
The board decided to take no action against Lavit. Okken has requested a second hearing to attempt to present more evidence to the board of Lavit and Richter's relationship.
Blocked from pursuing the matter in court, the board complaint may be Okken's last blaze of kamikaze attack.
Richter believes that Okken should just give up and get on with his life.
"I don't know how he can get up in the morning with all that inside him," Richter says. "I really don't. The only way I do domestic [cases] is that I know when I see people strung out and emotional and doing stupid things--which they all do--I know that given six months from now, they'll be better. But Duane has been on this campaign and is so bitter."
Robin Crozier, her father says, is tired of the "living hell" Okken has put her and their son through, and would like the lawsuits to end.
But Okken fires back that he is the one who lost primary custody of his son in a deal where the cards were stacked against him.
"What's the custody of your son worth to you?" he says. "If [Lavit] is going out and ripping people off for fees when he's in bed with one of the attorneys, it doesn't matter if I'm the biggest sleazeball in the world. These guys have a clean ticket. They can go do whatever they want.