SHRINKS GRANTED IMMUNITY
Duane Okken is a relatively short, apparently fit man with a boyish face, soft hands and blow-dried hair. Seated at a conference table, he wears tasseled loafers, socks selected with some care and a neatly ironed shirt, its top two buttons open.
His pale-blue eyes do not betray the fire of a kamikaze. But for almost three years, the 34-year-old real estate attorney has launched wave after wave of legal sorties in a nonstop war with his former wife, and virtually everyone involved in the couple's divorce.
He has sued his ex-wife, claiming she deliberately tricked him into marriage by becoming pregnant. He has sued her parents for racketeering, claiming that they helped try to defraud him out of child-support money.
He sued both his divorce attorney and his ex-wife's divorce attorney for allegedly mishandling the case. He even sued the psychologist who performed evaluations to determine custody of the couple's son, claiming the psychologist was biased.
The targets of his attacks call them the bitter thrashings of a revenge-driven man. All of the cases were withdrawn before they went anywhere.
In late September, one of Okken's lawsuits rose above the background noise of the thousands of divorces granted in Maricopa County each year, and broke new legal ground.
As a result, Arizona parents lost their ability to legally challenge the psychologists who are routinely called in to help decide which parent should have primary custody of children of divorce.
In an unusual pre-emptive ruling, a panel of the state Court of Appeals decided that psychologists used in such cases enjoy absolute judicial immunity for their actions and recommendations.
In short, they cannot be sued, even if they foul up or are clearly biased toward one of the parties in a custody case. A parent who believes he has been badly treated now has no recourse, except to file a complaint with the board that grants psychology licenses.
Hundreds of times each year, psychologists are called in to advise judges on which parent is best suited to retain the most control over a child's life.
Although generally both parents share custody of their children in some judicially decreed fashion, one must be picked to have "primary custody," or the final say, in major decisions about the child's life.
The psychologist's recommendations are not binding, but attorneys say they are most often taken on faith by judges faced with the Solomon's task of deciding a youngster's fate.
"It's my experience that courts will defer extensively to psychologists in custody cases," says James Bruce, one Phoenix divorce lawyer.
It is not an exact science, attorneys and psychologists agree. Instead, it calls for a subjective assessment of which parent is best suited to shepherd a child through life.
"It's a voodoo science. This is psychology, not math, where two times two equals four every time," says Okken. "It's pretty much a beauty contest." But now psychologists who perform custody evaluations have been handed a cloak of immunity, their findings not subject to question by affected parents.
The court's decision has rippled through the close-knit world of child-custody work to mixed reactions. Many psychologists and attorneys welcome it, saying it affords psychologists a buffer from wounded parents, like Okken, who might be tempted to file harassing lawsuits in the wake of their divorces.
"In almost any situation, one of the parents is distressed with the outcome, and that leaves the court-appointed expert in jeopardy," says Thomas DiBartolomeo, past president of the Arizona Psychological Association. "[The ruling] just takes out of the realm of possibility the legal liability of a lawsuit."
But Okken and, ironically, one of the attorneys who has been a target of his lawsuits say the ruling unfairly prevents parents from scrutinizing people who play a key role in shaping the future of their families.
"Judicial immunity is one of the last vestiges of 'The King is sovereign and the King can do no wrong,'" says Okken. "You now have no protection against this."
Joseph Richter, the attorney representing Okken's ex-wife, feels the same way. "I'm not in accord with anybody getting absolute judicial immunity that would include even immunity if they acted with malice," he says. "That's repugnant to me."
One of the appellate judges agreed, noting in his dissent that psychologists are paid by the parents in custody cases, and should be willing to defend their conclusions. "The risk and expense of defending one's actions is inherent in the business of offering on the open market one's professional services," Court of Appeals Judge John Taylor wrote.
@body:The January 1987 wedding of Okken and Crozier was not a happy day for the bride's father. His 25-year-old daughter, pregnant and deeply in love, exchanged vows with a "true asshole," William Crozier says.
Duane and Robin had met in church, Crozier recalls. Duane was an attorney working for a real estate developer, and Robin was a saleswoman for General Mills. After several months of dating, Robin became pregnant, Crozier says. She wanted to marry for love, and Okken agreed because he felt he had to.
"He had as much as said that he wasn't really in love with her," Crozier says. "I tried to talk her out of marrying him. I sat there on her mother's couch, with her on the floor and him right alongside of me and I said, 'Robin, how could you possibly want to throw your life away marrying a jerk like this?' She just said, 'Dad, because I love him.' Hey. What am I going to do?"
Though he will not discuss it in detail, Okken disputes his ex-father-in-law's recollection. "I remember the conversation. That's not what happened," Okken says. "He was not trying to dissuade the marriage, he was trying to enforce the marriage."
William Crozier says the marriage was troubled from the start. Okken declined to talk about it. Robin Crozier, through her attorney, also declined to discuss the situation.
By late 1988, Robin Crozier-Okken and Duane Okken separated. She kept their son, Tyler, who was then 2 years old, and filed for divorce. She hired Joseph Richter as her attorney. From the outset of the case, Richter says, Okken was one angry husband.
"Every time we got involved in a telephone communication, without a doubt it ended with me going ballistic and him going ballistic," Richter says. "He made members of my staff--secretaries, receptionists--cry. He is a very aggressive, confrontational person."
After months of tempestuous negotiations, the couple agreed to the terms of a divorce, which was granted in February 1990.
The terms do not appear out of the ordinary. The couple divided their property, Okken was ordered to pay child support and the couple reached an agreement on child custody that essentially gave each about half the time with their son. Robin was awarded primary custody.
The custody agreement was reached after Ronn Lavit, a psychologist, evaluated the couple and recommended that Robin be given the upper hand. Lavit's attorney says he did so primarily because Okken was so "headstrong" that it seemed likely he would shut Robin out of decisions concerning their son's life if he won primary custody.
"In his opinion, Mrs. Okken would allow Mr. Okken input in major decisions concerning the child," says Steve Maseros, Lavit's attorney. "Mr. Okken was so headstrong he wouldn't let her have any input."
After the divorce was granted, Okken set upon his ex-wife and everyone else involved in the case, like a terrier after a rat.
In various court filings and letters, Okken appeared to be a wounded, and frequently sarcastic, man. He claimed he should not have been forced to divide community property with his ex-wife, because she ensnared him in marriage by ceasing to take her birth-control pills and becoming pregnant.
He charged in one lawsuit that his ex-wife purposefully got pregnant so that Okken "would feel obligated to marry [Robin Crozier] and she would thereby appropriate his present and future assets," a charge her father says is nonsense.
He contested the agreement that his ex-wife have primary custody of their child--even though he has ample visitation rights--arguing that she is unfit and threatened suicide to force him to marry her.
In a suit against Robin, her parents, Richter and all of Richter's law partners, Okken charged racketeering, saying that they conspired to cheat him out of money on child-support payments.
Okken even tried to force the law firm that referred him to his own divorce attorney, Doug McVay, to pay him $15,000 to $25,000 and give him legal work in exchange for avoiding a legal battle with him.
"I write this letter to try to elicit some reasonable response from you as to how we can settle this in the most amiable fashion available," Okken wrote to John Furman of O'Connor Cavanagh. "Of course to make any progress, OC will have to lay aside its self-righteous holy shield (which I'd suggest to you is really a holely [sic] shield) and evaluate the issues in terms of your exposure."
Furman says Okken never followed through on his threat to sue the firm.
All of the efforts--the lawsuits and bombastic letters--went nowhere. Okken withdrew most of the cases. But, ultimately, like a fisherman seeking a pearl among the oysters, Okken found one case on which he could focus his efforts.
That was his suit against Lavit, the psychologist who did the evaluations to determine custody of son Tyler.
@body:In the course of his postmarital crusade, Okken discovered what he considered to be a disturbing closeness between Lavit and his ex-wife's attorney, Joseph Richter.
In 1979, psychologist Lavit's own ex-wife had taken their son and moved to Oklahoma City. Lavit sought to have her held in contempt of court. In court filings, he claimed that his ex-wife had refused to let him see or speak to his son despite their visitation agreement, and then had "spirited" him off to Oklahoma City.
Richter, Okken learned from the court paperwork, was Lavit's attorney in the case. It was resolved when Lavit's ex-wife agreed to new arrangements for sharing custody.
Several years later, Richter had formally witnessed Lavit's second wedding. And the two men socialized, as did their children, Okken found.
The psychologist Okken thought was an independent expert in his divorce, he says, turned out to be a close friend of his ex-wife's attorney. That might explain, he believes, why Lavit recommended that Okken's ex-wife receive primary custody of their son.
"To most people, that would appear to be a relationship," Okken says. "I was outraged."
According to a handbook used by the Maricopa County Superior Court in training sessions for court-appointed psychologists, such experts are supposed to tell clients if they have any "prior and current personal or professional activities, obligations and relationships that might produce a conflict of interests."
Okken says he was never told that Lavit and Richter are friends, and that if he had known, he would have sought another psychologist during his divorce.
Richter and Lavit, while acknowledging that they are acquaintances, both downplay the relationship. Each says he can barely remember if Richter was a witness to Lavit's second marriage.
And each emphatically says that there is nothing about their friendship that affected the outcome of Okken's child-custody negotiations. They say they treated the case with utter professionalism, just as they have many others.
In the realm of child-custody cases, they say, almost all are friends. Only about a dozen psychologists and 50 or 60 lawyers in Phoenix routinely handle child-custody cases, Richter says, and it is inevitable that most know each other.
"Of course I've used Ronn a lot," Richter says. "I knew that whatever the case was, he has a certain philosophy about shared parenting. I like shared parenting. . . . I used Ronn because I felt that I could trust him to come up with what was best for the kids."
Lavit, a quiet 50-year-old, says he is wounded by the suggestion that he would let friendship affect his recommendations in a case, Okken's or any other.
He almost seems befuddled by the question, sitting in his small office, where dispassionate Southwestern art hangs over couches much abused by the legion of parents and children who have passed through, picking and punching at the upholstery.
Speaking with his attorney present, Lavit acknowledges that he and Richter are friends, as are many of the other attorneys with whom he works. "I have relationships with lots of attorneys," Lavit says. "Your professional judgment is not affected by the fact that you know someone."
The world of child-custody determinations is a small one, Lavit agrees. Only a handful of psychologists wants to take on the task of stepping into the crossfire of squabbling parents to render an opinion on what is best for a child.
"When a psychologist does this, they have to make a recommendation," Lavit says. "Someone's always unhappy. That's not your job, to make the parents happy."
Both men reject the idea that there is even an appearance of a conflict between their friendship and the cases they handle.
Okken's dogged pursuit of the cases after the divorce, Richter maintains, proves that Lavit was right in his recommendation. In fact, the attorney says, he was also unhappy with Lavit's recommendation because he felt Okken should be given less time with his son than he received.
"The results of this case were not to my liking," Richter says. "I thought Duane was clearly not appropriate for a shared-parenting agreement."
Lavit dismisses the occasion when Richter was his attorney as minor, something that he scarcely recalls.
"It was a visitation dispute over a Thanksgiving visit," he says. "That's all it was. . . . It was resolved by the two attorneys over the phone very amiably. It was very minor."
Similarly, Lavit says he places little weight on the fact that Richter witnessed his second wedding. "It was a very small wedding," he says. "There were only a couple of people there."
Richter also downplays his social connections with Lavit. "If somebody asked, 'Were you a witness in Ronn's wedding?', I would have to think about it," Richter says. "I would say yes."
But Okken contends that someone--Richter or Lavit--should have told him about their relationship before he agreed to use Lavit in his custody case.
"It came to light as a fluke," Okken says. "The whole thing, this whole issue, is an 'I don't have to tell you' routine."
But so far, Okken has found no one who will listen to his lament.
@body:After Okken sued him, Lavit asked Superior Court Judge Edward Rapp to throw out the case. Lavit's attorney, Steve Maseros, argued that Lavit should not be subject to legal action over his recommendations because he served as an appointee of the court while making the custody determination.
Judge Rapp says he thought Lavit should have to answer the charges, and denied the motion. "I felt there was a question of fact as to the issues raised by [Okken]," Rapp says.
After losing in the trial court, Maseros filed a special action asking the state Court of Appeals to block the lawsuit.
Citing the case as "an issue of statewide importance for court-appointed psychologists," the appeals court agreed to consider the matter before the case came to trial.
The Arizona Psychological Association joined in the case, filing a friend-of-the-court brief supporting Lavit's request. Attorney Howard Leibow, representing the association, argued that divorce cases, with their high potential for emotion and drama, are a breeding ground for complaints by disgruntled parents.
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.
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.
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