While Tempe attorney Barbara Ross was preparing to represent a client in a civil trial, her former husband was busy, too. He was quietly convincing a Maricopa County Superior Court judge that Ross had suffered a serious relapse of mental illness. She was, the ex-husband contended in mid-July, unfit to care for their two children.
With little more than a signed statement based largely on secondhand information, the ex-husband, Arizona Attorney General Joel Grant Woods, asked Judge Paul A. Katz for an emergency order. The order discontinued Ross' unsupervised access to their children, ages 8 and 11. It was a drastic change in a long, involved dispute over custody of the children. During the previous two months, the children had been spending alternating weeks at the mother's and father's homes. The custody arrangement was an expansion of a previous visitation agreement, under which Ross had custody of the children on alternating weekends. Woods suddenly was asking to suspend all unsupervised custody for Ross.
Arizona law requires judges to act carefully on requests to modify custody--especially when such a request comes from just one parent. Emergency requests are particularly sensitive. Such requests almost always require notice to the other parent, and an opportunity for that parent to be heard in court, before a ruling is made. If a hearing can't be held immediately--because a child is in danger, for example--then one must be held as soon as possible afterward.
These are basic rules of law.
In this case, however, no one bothered to alert Ross on July 15, when Woods asked the court to slap severe restrictions on her access to her children.
Ross never had a chance to counter Woods' allegations, which a state appeals court judge would later say were, at least in part, deceiving.
Katz signed the emergency order prepared by Woods' attorney on Monday, July 18. It immediately discontinued Ross' unsupervised access to the children "until her mental condition stabilizes." Katz had concluded Ross was mentally unstable without talking to her. This action would later be criticized by a state appeals court judge, who said it was a "finding of fact" without benefit of a hearing.
Although Ross has had a difficult mental-health history (she has been diagnosed as a manic-depressive), she claims there was nothing wrong with her when Woods asked to restrict her access to the children. In fact, she says, witnesses who were never allowed to appear before Katz would have testified to her stability. There is other evidence that Ross had control of her mental faculties in mid-July. She conducted a difficult civil trial in front of another Maricopa County Superior Court judge the same week that Katz declared her mentally unstable. In subsequent months, she has conducted complex legal work on international business deals while preparing numerous legal documents to battle her ex-husband.
The legal tactics employed by Woods and his attorneys were played out in secret, because the entire divorce case has been sealed from public scrutiny. But Ross, whose motion to have the case unsealed has been rejected by Katz, had had enough of private battle.
Over the last month, she has turned over sealed court records and audio tapes to New Times.
Those records paint a distressing picture. They show that the Arizona attorney general, his lawyers and a Maricopa County Superior Court judge trampled a fundamental legal right: the opportunity to have a day in court. It's called due process of law.
And in Ross' case, it was ignored. Not once, but twice.
These legal actions, however, came at the end of a long, tragic story that does not clearly display any heroes or villains. It's a story about a family's efforts to deal with divorce, two young children and the ups and downs of mental illness.
On a warm October afternoon in 1993, Barbara Ross orders a large iced coffee at the Coffee Plantation in Tempe and walks to an outside table, where she sits down. She picks a table in a corner, with a clear view of a plaza filled with an eclectic mix of office workers, students and slackers basking in pleasant fall sunlight.
Fortyish, slightly heavy, with long, blond hair and dangling earrings, Ross begins to describe her firsthand experience inside the county and state mental hospitals. Embarrassment and shame are absent in her description of the sad and confusing events of the previous few years. Instead, she fills the emotional space with frequent soft laughter, a sort of self-deprecating therapy to carry her through the afternoon. She uses psychomedical jargon like "acting out" and "therapeutic model" throughout the interview, lending an air of detachment to an intensely personal experience.
The meeting had been arranged to discuss a complicated business deal she was part of in 1985. But the talk soon turns to the emotional roller coaster that engulfed her after her divorce from Woods and during subsequent battles over the custody of their children.
Ross tells tales of bizarre behavior, acknowledging that she "freaked out" on several occasions. Those episodes, she says, came after Woods told her he planned to ask the court for full custody of their children in early 1990, after he was elected attorney general. Ross knew she didn't have the resources to match Woods in a costly custody fight.
She says she quickly fell into despair, marked by episodes of outrageous and unpredictable behavior.
There was the time she trashed the bathroom of an automobile-repair shop after mechanics failed to fix her car on schedule.
And the incident at the Heard Museum, when she began dancing by herself and was arrested by police, who took her to the county mental hospital.
There was even an incredible day when she was locked inside her house, sobbing uncontrollably. That time, she was pulled out of the home through a window by U.S. Senator John McCain, who is a family friend, and taken to the county hospital.
"It was very surreal. All of a sudden, you're sitting there having a panic attack and the next thing the senator is sitting there talking to you," she says of that day in early 1990 when her world collapsed into tears, panic and confusion.
Throughout those ordeals, Ross says, she was nonviolent and never considered suicide. "I always thought this would pass," she says. Midway through the afternoon, Ross points out a man standing about 20 feet away with a camera and a telephoto lens aimed directly at her. The photographer takes a few photos and ignores a query from a reporter before walking away.
"Grant warned me not to talk to reporters," Ross says nonchalantly.
She continues her saga. Her mental breakdown led quickly to other problems. She was forced to file for bankruptcy. Her home was sold. Her promising legal career lay in shambles. She was placed under court-ordered psychiatric treatment. Her access to her children was severely curtailed. No, Ross isn't about to deny she experienced emotional problems that required treatment. She lays it all on the table. She was diagnosed as manic-depressive in 1992 and began taking medication, which, she says, appears to help.
Now she laughs about the diagnosis, noting it is the mental illness of choice. "It's not uncommon. It's really sort of trendy," she says.
A year had passed since her last stay in the state hospital in 1992, and her life is on as even a keel as it has been in years. A lengthy stay in California with old friends had given her a time of stability. She was making regular visits to Arizona to visit the children under strict supervision.
She moved back to Arizona in August 1993, and is making steady progress toward expanding her visitation rights with her children. Unsupervised visitation every other weekend has been expanded to include overnight stays.
All and all, things are looking up.
The 1993 interview ends as the sunlight begins to wane. Ross gets into her car, a 1984 Porsche 944 she paid for years ago, and drives away. The license plate reads "Mumms."
Less than a year later--on July 11--Tempe attorney J. Ruth Sproull met with Ross to discuss the joint writing of a nonfiction book. The women had become friends a few months earlier while attending a campaign rally for congressional candidate Carol Cure.
The meeting began a series of confrontations that would change Ross' access to her children and leave her certain she had been deprived of a basic constitutional right--the right to appear in court.
According to a sworn affidavit, Sproull drove Ross, who had just begun taking a new medication and didn't want to drive, to Woods' home late that Monday afternoon to pick up the children as scheduled. At that point, the baby sitter suggested the children stay a few hours longer to play with some kittens and a neighborhood friend.
The women agreed, returning to Woods' home several hours later. Ross then entered the house to pick up the children.
Sproull says in her affidavit, which was filed as part of proceedings in an appellate court, that she waited "many minutes," then walked to the door, announced herself and entered. She moved into a room where the children were playing with the kittens; Ross and Woods remained in the foyer.
The affidavit describes the scene in detached legalese: "I could not hear Mother's voice, but I was startled to hear Father's voice from the foyer, angrily demanding that Mother, then and there, deal with his desire for a change in their week-to-week custody schedule.
"Concerned about the anger I heard Father express, I turned to reenter the foyer and saw him stepping toward Mother, to within a few inches of her face, as she stepped backward.
"When Father saw that I had reentered the foyer and witnessed his physical movements toward Mother, he stopped still."
Sproull, who declined to be interviewed for this story, says in the affidavit that she defused the incident by insisting that she and Ross immediately leave because she had to prepare for a dinner engagement.
"The children, Mother, the kittens and I left Father's house, with Father looking at my vehicle from the open door," Sproull's affidavit says.
The group drove home, where another storm awaited.
"Upon arrival at Mother's house . . . we encountered an enraged maternal grandmother, Louise Ridge, who verbalized anger at the children for bringing kittens home," the affidavit says.
Sproull says she was aware from previous conversations with Ross that Ridge had become increasingly distraught after a new housing arrangement for her--one outside Ross' home--had not worked out. Sproull left, returning the following morning, July 12, to meet with Ross. Once again, Ross' mother was enraged, Sproull says.
"Ms. Ridge was so beyond self-control in her conduct that . . . Mother and I left the house with the children and enjoyed a peaceful lunch," the affidavit says.
Upon their return home, Sproull says Ridge was still emotionally distraught and "began screaming and threatening me as the 'source of all our problems,' with accompanying threats invoking the attorney general's name and office."
Sproull says she left the home at this point, extremely concerned about the confrontation Ross had with her ex-husband on the evening of July 11 and the ongoing emotional meltdown of Ridge. Sproull says she prepared a letter outlining her thoughts and faxed it to Woods on July 12.
The fax dealt with Ridge's behavior, not with Ross', Sproull says.
Soon after Sproull departed, Ross also left the house to pick up her older child, who was at a nearby video arcade. While Sproull and Ross were gone, Ridge placed a phone call to Woods.
"Louise sounded panic-stricken," Woods would state later in documents filed in court. "Louise told Father that things were in a terrible mess and that he should immediately come and get the children."
Woods says he promptly went to Ross' house, but Ross had gone to pick up the older child from the video store.
"In Mother's absence, Louise described current behavior of Mother, which was bizarre and irrational and indicated that Mother was having a relapse of her mental-health problem," Woods said.
When Ross returned, Woods "told her he was going to take both of the children back to his house because of the many indications that Mother was having a relapse," the attorney general says in court documents.
Ross says in affidavits and interviews that she allowed Woods to take the children from her house because she wanted to avoid an ugly confrontation in front of the children. She believed the problems with her mother could be quickly addressed. The custody situation would return to normal, she felt.
The day after Woods removed the children, Ross and Woods met again.
At 8:14 p.m. on July 13, Tempe police responded to a domestic-violence call at the home of Barbara Ross. There they found Ross alone, displaying swelling on her arm where, she says, she had been struck by Attorney General Grant Woods minutes earlier. According to police reports, Woods and Ross met earlier that evening to discuss child custody arrangements. Those arrangements had suddenly changed the day before, when Woods entered her house and removed the children.
Woods told police that he told Ross he wouldn't let her see the children if she did not agree to take medication prescribed by a particular doctor, a doctor Ross was no longer regularly seeing. This demand enraged Ross, Woods told police. Ross would tell police she didn't want Woods dictating how she would conduct her medical treatment.
The discussion continued for a few minutes before Woods concluded that Ross wasn't going to accept his demand. He decided to leave, police reports say. Ross says she followed Woods outside to his car, because she wanted to go to his house to see the children, who were supposed to be spending the week with her.
Ross says Woods threatened to have her arrested if she tried to see the children. In court documents, Ross says she told Woods she wasn't afraid of being arrested and that she intended to exercise her legal right to see her children.
The passenger door was locked; Ross attempted to keep Woods from closing the driver's-side door. Unable to pull the door closed, Woods began striking Ross on the forearms with a karate-chop motion, attempting to force her to release her grip on the door, police records say.
That action was unsuccessful. Woods then said he wanted to call the police. Both Woods and Ross walked toward the house, but before entering, Woods turned around, got in the car and drove away.
Police told Ross she could be charged with disorderly conduct because she had attempted to prevent Woods from freely leaving. And, they said, he had the right to use reasonable force in order to leave.
Woods declined to assist a prosecution, and the case was closed.
The sordid scene was another twist in a tumultuous divorce and custody fight the couple had pursued since their divorce in August 1988. But Ross did not yet know that the scene would be followed by courtroom tactics that can be described most charitably as questionable.
There is no such thing as a routine case in domestic relations court. Each dispute carries its own chemistry of battling spouses, who are often agitated and volatile. And 60 percent of the 30,000 divorce cases filed this year in Maricopa County will be litigated without attorneys. Confusion reigns.
Further aggravating this disorder is a lack of judges to hear new cases and a steady stream of ongoing cases, in which custody battles and other disputes can last for years. There are only 11 judges and six commissioners assigned to handle the case load. Frustration runs high for everyone involved.
"I've been pulling my hair out for years," says Kenneth Fields, Maricopa County's presiding domestic relations judge. "I'm bald now."
Even in the chaos of domestic relations court, there are statutes and rules that must be followed. Those rules are particularly precise for emergency custody orders requested by only one party in a case--orders like the one Woods obtained from Judge Katz.
The No. 1 rule when it comes to such one-party (or, in legal terminology, ex parte) orders is simple: Avoid them.
"Start with the proposition that the court shouldn't be entering ex parte orders in any event, unless there is a dire emergency," Fields says.
The reason for avoiding such action, when possible, is also simple.
The right to free contact with one's children is considered to be fundamental. Actions abridging that right must strictly conform with constitutional due-process requirements.
Judges are expected to proceed carefully when they cut off or modify parental access to children. In general, they are also expected to make sure both parents have an opportunity to be heard before any change in child custody is approved.
There are times when custody changes can be made without a hearing. Ordinarily, however, such a change should occur only if it is determined that the well-being of a child is in immediate danger, domestic relations experts say.
Such a determination is typically made only with supporting documentation, such as police reports or psychological evaluations. Rarely are ex parte orders granted on the basis of one parent's statement, says Kathleen McCarthy, chairwoman of the Arizona State Bar Association's Family Law Section.
Once an ex parte order is entered, it is imperative that the other parent be immediately notified, given a copy of the order and a date for a hearing.
"If you choose to sign the [ex parte] papers without notice, then you have got to set it for a hearing and give notice of all that," says Barry Brody, a domestic relations attorney who also serves as a temporary domestic relations judge in Maricopa County.
Once an emergency order is issued, if no hearing is scheduled, the affected parent may request a hearing, and that hearing must be held within two days, says McCarthy, an 18-year veteran of the family courts.
Scheduling is a juggling act for domestic relations judges, who have such full calendars that they often schedule trials as much as eight months in advance. But hearings on emergency orders can be held within the proper time frame, and with no serious effects, Fields says.
"It's not painful for us," he says. "It's painful to another citizen that has to be bumped [from a scheduled court date]."
While the rules for hearings are clearly laid out, the actual implementation of these rules can become muddled. There is some leeway in regard to due process for domestic relations cases that have been before the same judge numerous times. In these situations, a judge may issue an emergency order based on past knowledge of the case. In such cases, hearings may wait until experts have a chance to evaluate the parents and, if necessary, the children.
Although he declines to comment on the Woods/Ross case, Katz says it is often cheaper, and, in the long run, faster, to have outside experts evaluate specific family problems rather than to sort out conflicting versions of family dynamics in a judicial setting.
But if a parent insists on his or her right to a hearing after an emergency ex parte order is filed, Fields says, a hearing must be held.
In general, Katz says the appointment of outside experts, or the lack of an immediate hearing, doesn't necessarily mean an infringement of a parent's due-process rights.
"Due process requires someone to be given notice and an opportunity for a hearing," Katz says. "They probably, in certain instances, can get in faster, and have a more honest evaluation of their circumstances, before someone who is professionally trained to do it than before a judicial officer."
But Katz's suggestion--that nonjudicial review by experts may substitute for due process in a courtroom--certainly did not prevail in the Woods/Ross case.
It was August. Ross knew that Judge Katz had issued an emergency order restricting her access to her children. She knew that her ex-husband had taken her children. But she couldn't get a copy of the July 18 court order, because her divorce records were sealed.
They could not be seen, even by her.
Ross asked for a court order to see her own divorce file on August 2, hoping to read the emergency order on access to her children.
Acting as her own attorney, the supposedly unstable Ross prepared formal pleadings on August 9, requesting an immediate hearing.
It was a request that Katz would ignore. On the same day, however, Katz appointed an expert consultant, Dr. Brian Yee, to review Ross' mental-health records, interview her doctor and make a report to the court.
Ross wouldn't get a look at the emergency custody order until Katz granted her access to the divorce records on August 17. That access did not come until 30 days after the custody order was issued.
"All this time, I have no access to the file, and I have never seen the order. It was an effective denial of my access to the children," she says. After Katz declined to set the hearing Ross had requested, Ross again asked for a day in court, this time in pleadings prepared by Phoenix attorney Bruce W. Griffen.
The second request, filed with Katz on August 25, asked for a hearing within two days and included an affidavit from Ross' psychiatrist, Dr. Mariam Cohen.
Cohen's affidavit states that she had met with Ross in 45-minute sessions, twice a week, since April 22, and that Ross has cooperated with the treatment. Cohen said she and Ross will be able to detect any tendency toward manic or depressive behavior and initiate a proper response.
Ross says such a circumstance arose earlier this year, when she checked herself into a private psychiatric hospital for a couple of days because of stress. Woods did not attempt to change the custody arrangements at that time, she says. Cohen also directly addressed Ross' relationship with her children.
"I do not believe that Ms. Ross is in any way dangerous to her children," Cohen said in her affidavit.
Katz once again declined to set a hearing and informed Griffen's office that he did not plan to do so until after he received Dr. Yee's report.
Ross' difficulty in getting a routine hearing convinced her that she was railroaded during the custody dispute by an engineer named Grant Woods.
"He signed the affidavit, he knew the game and he knew exactly what the attorneys could maneuver," says Ross. "He didn't tell the lawyers to back off."
Ross says she's no longer afraid of repercussions that may come from challenging Woods and his domestic relations lawyers, a firm led by Daniel Cracchiolo that does more than $200,000 per year in contract work for the Attorney General's Office. "What can they do to me that they haven't already done?" she asks.
Woods declined to comment. Woods' attorneys dismiss her claims as nonsense, saying that the emergency order grew from a long, tragic history of mental illness and custody disputes.
Cracchiolo insists that Ross' rights were not violated. "There's been no lack of due process, I can tell you that right now," Cracchiolo says.
The evidence suggests otherwise. Ross' attorneys took her case to the state Court of Appeals, where she won two stunning victories in a period of nine days last month.
After Katz refused, twice, to grant a hearing, Ross filed a special action before the state Court of Appeals, claiming that her rights to due process had been violated.
It was clear from the start that the appeals court was mystified by Katz's refusal to hold a hearing, according to an audio tape of appellate proceedings obtained by New Times. At a hearing before presiding Judge Joe W. Contreras and judges Philip E. Toci and Edward C. Voss, the court asked Woods' attorney, Donald Lindholm, why Katz didn't set a hearing, even after Lindholm submitted the proper motions.
"I believe what Judge Katz is doing is taking a problem in which he is somewhat familiar and saying the court isn't equipped to determine the mental stability of the mother," Lindholm replied. The judge apparently wanted the advice of an outside expert, Dr. Yee, Lindholm said.
"But don't you recognize the wife's right to a hearing?" Contreras asked.
Lindholm responded by saying he doesn't "have any problem with a hearing."
But, he said, "I believe that Judge Katz probably felt that the hearing would not be truthful until he had information from the various mental-health experts that were familiar with the case. He probably just wanted to have time and assistance to make the determinations in what was in the best interests of the children."
This answer clearly upset Contreras.
"This is a real disturbing feature, because the [emergency] order was signed and issued on July 18. On August 9, the mother . . . filed a response requesting that this order be vacated and [she filed] accompanying affidavits. That same day, the trial court goes ahead and just appoints Dr. Yee and does nothing in response to the request for the hearing by the mother," the presiding judge said.
Lindholm said he would have made the same ruling that Katz did.
"Without further information, what's he to do? He is using the tools that are available to him," Lindholm said.
The court's response was direct.
"He can use the tools that are available, but at the same time, he's got to accord to the mother, it appears to me, her due-process right to a hearing so that he can tell her why he's going to keep it [the order] in effect or dissolve it," Contreras said.
Judge Voss appeared even more agitated.
If Lindholm were representing Ross, he would "be all over the judges" who refused to allow a hearing, Voss said. Katz made a finding of fact concerning Ross' mental condition without benefit of a hearing, the justice said.
A few minutes later, Voss raised another issue underscoring the importance of prompt hearings when emergency custody orders are issued.
"In this case, the applicant [Woods] deceives the court, the trial court, because the applicant, Mr. Woods, hedged [and said] that the doctor, Dr. Klebanoff, has recommended a treatment program and [Ross is] not following the program, when, in fact, she's been treated by a different physician," Voss said.
Voss' comment related to a sworn statement submitted to Katz as evidence he should grant the emergency order. In that statement, Woods said he spoke with a Dr. Klebanoff and a Dr. Zuener. Those doctors told him Ross was refusing to take her medication, and "there can be no assurance that her behavior will be rational or stable," Woods said in his statement.
The statement says that "based on Father's conversations with Mother's physicians, Father decided to tell Mother that she must take her medicine or he would be compelled to keep the children."
Nowhere did Woods say that he ever talked to Ross' current physician, Dr. Cohen.
That omission would have been brought to light if Katz had held a hearing, Voss said.
"The procedures are this way for a purpose, so that this kind of error can be timely corrected," Voss said. "And in this case, that procedure has not been followed."
Later the same afternoon, the court ruled that Katz's July 18 emergency order restricting Ross' access to her children had expired. The appeals court then reinstated the order for another five days, ordering Katz to hold a hearing on the matter within that time. The appeals court also accepted Woods' motion to seal all records of the hearing. Katz finally called a hearing to order in the case of the Marriage of Joel Grant Woods and Barbara J. Ross at 4:35 p.m. on September 14.
Except that it was never really a hearing.
Witnesses were present and prepared for direct testimony and cross-examination. The presumed purpose of the hearing was to determine whether the July 18 emergency custody order should stay in place or be dissolved. The hearing had been directed by the Court of Appeals. The importance of the hearing was underscored by the presence of an additional attorney on Woods' side. Joining Donald Lindholm, who had argued the emergency custody case before Katz and the Court of Appeals, was Daniel Cracchiolo. It was the first time Cracchiolo had attended a hearing before Katz on the Woods case.
Cracchiolo is a well-known name in the Katz family.
It was Cracchiolo who represented Judge Katz's father, Democratic party fund raiser Earl Katz, in a crucial federal hearing in 1989. The hearing kept the elder Katz from becoming swept into the heart of the financial and legal inferno set ablaze by Charles Keating and Lincoln Savings and Loan.
Earl Katz had been named as a possible defendant in a federal class-action lawsuit filed by investors who bought $266 million worth of junk bonds from Keating's thrift.
Bondholders wanted Earl Katz included in the suit because of his ties to R.A. Homes, a company that had secured more than $110 million in loans from Lincoln Savings. Although not an officer of R.A. Homes, Earl Katz was paid more than $400,000 by the company in consulting fees.
Bondholders alleged that R.A. Homes entered fraudulent loan transactions with Keating's thrift. The alleged purpose of the loans was to make Lincoln appear healthier than it was, thereby inducing the public to purchase the institution's worthless bonds. Cracchiolo, however, argued that Earl Katz was not a prominent player in R.A. Homes, that he had been named in the suit only to smear Senator Dennis DeConcini. Earl Katz was then DeConcini's chief fund raiser.
U.S. District Court Judge Richard Bilby dropped Katz from the suit.
In 1989, Cracchiolo also extended a helping hand to 38-year-old Paul Katz, then corporate counsel and secretary for R.A. Homes. Cracchiolo wrote one of four letters of recommendation submitted on Katz's behalf to former Democratic governor Rose Mofford, who subsequently appointed the younger Katz to his judicial post. Paul Katz was not named as a defendant in the bondholders' suit. He did, however, work at R.A. Homes from August 1987 until his judicial appointment in July 1989. During that period, Lincoln Savings made several loans to R.A. Homes that bondholders alleged to be fraudulent.
Paul Katz says in his judicial application, completed in 1989, that he was then "involved in the active management and decision-making process of" R.A. Homes.
The suit against R.A. Homes was later settled with company officers neither denying nor admitting guilt, but agreeing to pay $200,000.
Both Judge Katz and Cracchiolo contend there is no conflict of interest in Cracchiolo's appearance in the Woods case, and that no special influence was brought to bear.
"Well, first of all, Dan Cracchiolo is someone who I know but I don't do anything with socially," Judge Katz says. "He's never represented me in any matters. I have never co-counseled a case with him. He I know barely better than I know you."
Cracchiolo says there is nothing improper in his appearing before a judge after writing a letter of recommendation for him.
"I have recommended a lot of people to be judges. If that is going to disqualify me or any lawyer who writes that, then every lawyer is going to have to stop recommendation letters," Cracchiolo says.
Ross has a distinctly cynical opinion of Cracchiolo's sudden courtroom appearance.
"Cracchiolo was there to intimidate [Judge] Katz," Ross claims.
Ross' concern about Cracchiolo was heightened by the unusual events that occurred in Katz's courtroom on the afternoon of September 14.
Katz did not hear witnesses, as is standard in an evidentiary hearing, and as clearly was envisioned by the Court of Appeals. Instead, Katz listened briefly to comments from the attorneys before issuing a lengthy series of rulings.
No witnesses were called. No testimony was heard. No cross-examination took place. Ross had no day in court--again--despite objections from her attorney and an appeals court order.
"It was a nonhearing hearing," Ross says.
Katz reappointed Dr. Yee as an outside expert for "the purpose of investigating and monitoring Mother's mental-health status, and to make prompt recommendations to the court."
Until those recommendations were made, Katz ordered the restrictions on Ross' custody rights to remain in place--except for one two-hour, supervised visit per week.
Finally, Katz admonished Ross for failing to schedule an appointment earlier with Yee, so that his report could be prepared. Ross "would already have had her initial day in court if she had promptly scheduled an appointment and made her mental-health records available to Dr. Yee for evaluation and recommendation to the court," Katz said in his ruling.
The court appearance concluded at 5:40 p.m.
One week later, Ross was back before the Court of Appeals, and it responded immediately to Katz's surprising failure to hold a proper hearing:
"Although this Court on September 14, 1994, ordered and directed the trial court to conduct a hearing . . . the trial court has not afforded [Ross] due process, since the trial court has failed to conduct an evidentiary hearing as contemplated by this Court in its September 12, 1994, order."
The appeals court then overturned Katz's July 18 custody order, replacing it with an earlier agreement that provided for Ross to have the children for unsupervised custody every other weekend. Appellate courts typically avoid decisions directly affecting child custody unless it appears that the trial court has ignored or mistaken the evidence.
Here, however, the appeals court clearly chastised Katz for failing to hold the hearing. It again ordered him to hold an evidentiary hearing. That meeting was finally scheduled for last Friday, nearly three months after Katz initially ordered a change in Ross' child custody arrangements.
Although he emphasized he wasn't talking about the Woods case, Katz says appeals courts' orders can sometimes be difficult to understand.
"The Court of Appeals sometimes drafts easy-to-understand orders and oftentimes drafts orders that are difficult for the trial judges or the litigants to understand," he says.
One of the appellate court judges also offered Katz some cover, saying he doesn't believe the trial judge purposely ignored the appeals court order.
Appeals court Judge Toci says Katz held a hearing, but not the type the appeals court had in mind--that is, a hearing in which evidence from both sides could be heard.
McCarthy, the Arizona State Bar Association's family law expert, scoffs at such a notion, saying there should never have been a doubt in anyone's mind what the appeals court wanted Katz to do.
"It would mean nothing to have anything but an evidentiary hearing," she says.
Barbara Ross arrives at the Southeast Judicial Courthouse about 1:30 p.m. last Friday and heads for Katz's courtroom for the long-delayed evidentiary hearing on custody arrangements for her children. She's stylishly dressed, with a couple of small medals pinned to her white blouse.
The courtroom doors are locked.
Inside, attorneys are hammering out details of an agreement she reached with Woods moments earlier. The agreement allows her unsupervised custody of the children on alternating weekends, as long as her psychiatrist, Dr. Cohen, gives her a clean bill of health.
It's a win, and Ross is clearly delighted. But it's not the victory she's seeking. She wants joint, week-to-week, unsupervised custody.
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The last-minute agreement eliminates the need for an evidentiary hearing, at least for now. The terms of the arrangement will be reviewed in 60 days.
Ross wants to get into the courtroom to examine documents relating to the agreement. She says Woods should show up at any time, but he never does.
Ross knocks on a couple of doors, then starts answering a reporter's question.
"It's not over. We're just in a . . . we're just in a . . ."
A clerk opens the door and motions Ross to enter.
She drops the conversation in midsentence and heads into the courtroom.