MAXWELL:  The deck was stacked against unwed Mexican mother in custody battle

8/15/2001 – Printed in the EDITORIAL section of the St Petersburg Times Newspaper

 

Correction and clarification (8/26/01): An Aug. 15 column by Bill Maxwell incorrectly described a judge’s order on custody of the 20-month-old child of Theresa Noelle Ponce of St. Petersburg and Gary Minda of Gulfport, Fla. and Brooklyn, N.Y.. See end of column for complete correction.

 

The child custody struggle between Theresa Noelle Ponce of St. Petersburg and Gary Minda of Brooklyn, N.Y., is a classic battle between David and Goliath. The difference this time is that Goliath’s power, his easy movement inside the legal world and his financial wealth are winning the day.

The court has granted primary residential responsibility for Ponce’s 20-month-old daughter, Madeline, to Minda, who intends to move her permanently to New York on Aug. 21. Ponce has filed an emergency motion for a stay of the order pending appeal. Minda’s attorneys have until noon today to respond to the motion.

Ponce, a 33-year-old Mexican, is a trial support employee for Best Evidence, a private St. Petersburg firm that prepares evidence for court trials. She earns $18,000 a year. She never has been married and lives in an apartment in St. Petersburg.

Minda, 54, has been a law professor for the last 22 years at Brooklyn Law School, where he earns $150,000 a year. He also has taught at Stetson Law School, a distinction he shares with the judge handling the case in question. Minda owns a house in Gulfport and recently married for the third time.

After studying court documents and other papers related to the case and after speaking with many of the principals involved, including Pinellas Circuit Judge John C. Lenderman, I am convinced the court handed down an unfair judgment by punishing the mother and, therefore, harming the child’s future. I told Lenderman during a telephone interview that I think he made the wrong decision.

In his Final Judgment of Paternity, Lenderman writes that he did not consider the “fault or defects in character of either party” in making his decision, arguing he followed Florida law and based his judgment on the “central theme of “the best interests of the child’ ” and the 13 factors listed in the state’s custody and support-of-children statutes.

In his decision, Lenderman, whom I respect and have worked with on an awards committee, seems to have used the “faults or defects in character” of the mother. He excoriates Ponce for allegedly hiding from Minda shortly after discovering she was pregnant. The judge flatly dismissed as “unfounded” Ponce’s statements that she feared Minda after he verbally abused her and threatened to strike her.

“The mother’s broad, sweeping allegations of abuse are her excuse for attempting to exclude the father from Madeline,” Lenderman writes. “Hiding from the father during her pregnancy was the mother’s artifice in the beginning of her trend to isolate the father from his parental rights and responsibilities.”

I must point out here that, during a telephone interview, Minda denied all of Ponce’s allegations. His attorney, Sarah Chaves, also said Ponce’s allegations were untrue. My main question remains, however: What caused Ponce to become so afraid of Minda that she hid from him? Minda and Chaves argue that Ponce sees herself as a perpetual victim.

In her own words, Ponce explains why she feared the man who had fathered her child:

Ponce says Minda ordered her to keep the pregnancy secret. She said he gave her two options: Either marry him immediately or get an abortion. She says she did not know him well enough or care for him enough to marry him. She didn’t want an abortion. She was in control of her life and wanted a baby.

While contemplating marriage, Ponce says, Minda agreed that they should try to establish a stable relationship and live together. She went with him to Miami, where he had a temporary teaching assignment. Then, they traveled to Ireland, where Minda had a previously scheduled legal project. While in Ireland, Ponce says, Minda became “very controlling.”

“Gary said he would get serious once the date for a legal abortion was passed, that he would take the baby away from me if I did not give it up for adoption. He even tried to suggest that I could make some money off giving the child up for adoption. Gary said he would be willing to sign away his parental rights, and he would look into it but he didn’t believe the court would allow it. He was also worried about being sued at some later date for retroactive child support. He said he could afford the best attorneys in the country, and he knew what moves to make to win and to embarrass me and destroy me.”

Minda and his attorney say that Ponce invented the allegations, explaining that paranoia drove her actions, especially her determination to keep Minda away from Madeline.

Ponce was disappointed when Minda demanded a DNA test to establish paternity. After the first test confirmed he was the father, Minda sent the results to a second lab for re-evaluation. “He said he was overjoyed upon finding out he was a father, so why did he send the results out to be re-evaluated?” Ponce asked.

Minda started paying voluntary child support when Madeline was 9 months old, Ponce says. He and his attorneys determined the amount. Lenderman later agreed with the amount, but he did not order arrears.

Ponce, her relatives and friends say that she is a good mother. Ponce breastfed Madeline and read to her until the child was taken away July 18. Even Chaves, Minda’s attorney, says evidence indicates that Ponce is a good mother. Just as important, Ponce has a large, local extended family for seven-day, 24-hour support.

Why, Ponce asks, should she lose primary residential responsibility of her child?

Citing Ponce’s initial hiding from Minda and her alleged later attempts to keep Minda from the child, Lenderman explains: “No doubt the mother sincerely loves Madeline and has binding emotional ties with Madeline. The father has binding emotional ties to Madeline, but his ties have been deliberately thwarted by the mother’s actions. In fact, the Court is instructed to look at the willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent. . . .

“In making the decision about primary residential responsibility, the Court cannot solve the personal differences between the parties. The Court can only ameliorate the influences of the parties and their relationship in the best interests of Madeline. From the evidence presented, if the child were to maintain her primary residence in St. Petersburg with the mother, the mother would be a constant obstacle to the father’s secondary parenting and access to Madeline.”

I am not an attorney, but I read the statutes and know that Lenderman had another option. He had no mandate to do what he did. He could have been fair to everyone _ child, father and mother, who, until now, cared for the baby every day of her life. The judge could have left the child with Ponce, while ensuring that the father enjoyed reasonable custody. Instead, he removed the child from the home of a good mother.

I told Lenderman on the telephone that I think he is wrong. I know too many crack addicts and worse who have been permitted to keep their children. I do not understand taking a child away from a good mother, a good home and a loving extended family.

“It’s not easy being a good mom, especially a single one,” Ponce says. “Where is it right to punish someone who has done the right thing?”

My gut feeling _ and I told Minda and his attorney so _ is that the deck was stacked against Ponce from the outset. She, an unmarried Mexican without financial means, was up against an attorney, a university law professor, who knows how to work the system, a system run by his professional peers.

I hope that I am wrong. I hope the law is blind. But I do not think so. Although Minda may wind up being an exemplary father, Ponce was treated unfairly. And such treatment was unnecessary.

Correction and clarification

An Aug. 15 column by Bill Maxwell incorrectly described a judge’s order on custody of the 20-month-old child of Theresa Noelle Ponce of St. Petersburg and Gary Minda of Gulfport, Fla. and Brooklyn, N.Y. Rather than saying the court did not consider the fault or defects in the character of either party in making its decision, as the column reported, the order in fact stated, “The Court is of the opinion that it does not well serve the parties or the future best interests of the child to point out the faults or defects in character of either party. Accordingly, the Court will discuss in generalities the weighing of the factors considered.” The order then described factors listed in the Florida Statutes which include faults and defects of the parties. The order did not permanently take the child away from the mother but ordered that the child’s primary residence will be with the father, with monthly and other visitation with the mother to take place in Florida at the father’s expense.

The column failed to state that the mother was represented in the case by several lawyers, including attorneys with the Carlton Fields law firm. In addition, the court has made the basic findings which would entitle the mother to an award of attorneys’ fees, costs and suit money to be paid by the father. The mother’s request for particular amounts will be the subject of a future court hearing.

The mother, while of Mexican descent, is a U.S. citizen. The column may have been unclear on this point.

The Times apologizes and is pleased to set the record straight.