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An East Bay woman embroiled in a nasty divorce battle will try to convince a federal judge today that Contra Costa County’s court procedures violate her constitutional rights. The case before Senior U.S. District Court Judge Thelton Henderson challenges county rules that call for written �� instead of live �� testimony in certain family law proceedings. The plaintiff, identified in court papers as Margaret F.-G., hopes that live testimony will help prevent her ex-husband from obtaining unsupervised visits with their two children. According to court documents filed by her attorney, the ex-husband stalked his ex-wife and is accused of child molestation. The attorney general’s office, which represents Contra Costa County Superior Court Judge John Kennedy in the case, argues that the case falls outside federal jurisdiction. The ex-husband’s attorney �� who disputes the stalking and molestation accusations �� says his ex-wife is using federal litigation to delay the visitation issue before Kennedy. Typically, case law prohibits federal courts from wading into such family law matters. But Margaret F.-G.’s case has attracted the attention of at least one national women’s group. The National Organization for Women’s state chapter, which filed an amicus brief in support of Margaret F.-G., urged Henderson to examine the rule. Live testimony is important because judges erroneously stereotype women who claim domestic violence or child abuse as being “hysterical and vindictive,” argued Gloria Allred in NOW’s brief. Allred is a name partner at Los Angeles’ Allred, Maroko & Goldberg and is president of the Women’s Equal Rights Legal Defense and Education Fund. “The reason for the rule is judicial economy and efficiency for the court,” Allred said in an interview. “It deprives the complaining party of her day in court.” Deputy Attorney General John Devine notes in court papers that the Contra Costa rule gives judges discretion to allow oral testimony and that federal courts routinely use the same types of written testimony that Margaret F.-G. objects to in state court. Also, the federal court is barred from jumping into child visitation matters, Devine argued. “It is just a straightforward jurisdictional issue,” Devine said in an interview. As in many family courts around the state, Contra Costa County’s rules of court do not allow live direct examination in law and motion matters unless approved by the judge. Instead, parties submit information through written declarations. Although a witness who submitted written testimony can be cross-examined in person, that questioning is limited to what was submitted in the declaration. Kennedy on Wednesday denied a motion by Margaret F.-G.’s attorney objecting to the testimony restriction rule. Seth Goldstein, a Pacific Grove attorney who also runs a research and referral group called the Child Abuse Forensic Institute, said his client’s due process rights are at stake. “Without live testimony, the ability to observe the witness’s body language, emotion or lack thereof � is lost,” Goldstein argues in court papers. Goldstein said he wants live testimony in the case to be able to introduce allegations against the ex-husband of domestic violence and child molestation, as well as a previous conviction that was expunged from his record. The federal case is a red herring, said Merritt Weisinger, the ex-husband’s Walnut Creek attorney. The Recorder has withheld the names of the parties in the case to protect the identity of their children. “The wife has done what she can do to cut off his contact with his children,” Weisinger said. He said his client has a habit of “shooting himself in the foot” and has had some legal problems. They include violating a restraining order against his wife and a 20-year-old misdemeanor conviction for “harassing” a woman in which he had a romantic interest. The conviction was expunged from his client’s record and should not be considered in the family law case, Weisinger said. The father was recently accused of molesting his sister and daughter, but those accusations were never substantiated. His client has supervised visitation of his children because of minor “parenting” issues �� not because of any alleged abuse, Weisinger said. The attorney accused Goldstein of distorting the facts. Goldstein initially wrote in court papers that the ex-husband is a convicted child molester, which isn’t true. Goldstein’s child abuse institute has interest in fanning abuse allegations, Weisinger said. “He is playing fast and loose with this stuff because it will get the attention of the appellate court.” The case is Margaret F.-G. v. Superior Court, C03-1175.

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