EJF Newsletter — Ask Not What You Can Do For Your Country

July 18.2018

Mike's story is regrettably similar to thousands of other veterans in Colorado, tens of thousands of civilians, and for millions of men every year across the United States. But Mike was a fighter!

Mike served in the Army and was deployed to Iraq the first time in March 2006 until August 2007. He was deployed to Iraq a second time from late 2009 into 2010. He was then deployed to Afghanistan in 2012 where he was wounded and recommended for a Bronze Star. During these deployments he served as a medevac crew chief, evacuating wounded warriors by helicopter; not one of the safest jobs in the Army.

He met his future wife, Clare, in August of 2004 in Denver. She was 28 and Mike was 31. They went together for several years. After he returned from his first tour in Iraq they decided to buy a house together in Aurora, Colorado; and established a common-law marriage. Their first child was born in 2008 and a second one in 2011.

Due to wounds he suffered in Afghanistan during his third deployment, he was required to undergo physical rehabilitation for eight months in 2013.

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Clare seemed very cold and distant and didn't make any effort to help Mike get through rehabilitation; intensifying his suspicions of her infidelity during his last deployment. His children, ages 2 and 5 at the time, helped him the most during this difficult time and he decided to be a stay at home Dad for them while he recovered from his injuries.

On November 18, 2014 the children's day care found some odd-looking scratches or marks on his oldest son's back and subsequently Mike was presumed guilty and charged with child abuse. However, the very great majority of real child abuse is perpetrated by females, usually the mother. But Clare was presumed innocent.

Mike spent about two hours with the Aurora Police listening to their threats and accusations. After dealing with Al Qaeda and the Taliban, the treats didn't sway him, and Mike wisely exercised his right to remain silent. Clare, however, was terrified of not cooperating with police and eventually gave in to the threats that she would never see her kids again if she didn't talk. Clare took the kids and moved out to her mother's that night.

Child Protection Services did an investigation and concluded that Mike had spanked his son with a belt to the point of leaving an asymmetrical curve on his back. Mike was further told that he was in denial and needed help for anger problems. Mike denied everything and maintained that the asymmetrical curve found on his son's back could not have been caused from spanking a child with a belt. Mike was further warned to take a plea bargain or he would serve a year in jail. He told them no and the case was set for trial.

Then, on November 24th Clare, who was now 38 and probably beginning the emotional instability commonly associated with perimenopause, filed for divorce and asked for a motion to restrict Mike from the children. A hearing was held on December 5th and Clare was given a temporary protection order naming her and the children and, by default, she was also given temporary custody of the children (case no. 14DR2322, Colorado 18^th Judicial District). Magistrate Moschetti also limited Mike to two supervised visitations with his children each week.

Supervised visitation is feminist dogma that believes most fathers, especially veterans, are too dangerous to be alone with their children. It also provides a great deal of income for feminist social workers, who charge the father $40-$60 per hour for supervising the visitation. Fathers report supervised visitation is a very degrading and humiliating experience.

On January 9, 2015, Clare filed a motion for temporary orders and requested an expedited hearing. Since there was already an agreement in place concerning the children, this motion was to simply address Clare's desire to move back into the house and have Mike removed. The house was in both their names. If they had taken out a license and been married, Mike would have been removed from the home automatically, but the previous court, Magistrate Clay Hurst, who was rotated to another division after that hearing, had informed Clare and her attorneys that he could not make decisions regarding the home because they were not married and both owned the house. However, on January 27th Magistrate Frank Moschetti, who rotated in to replace Hurst, ignored all arguments that the court had no jurisdiction in the matter, and then ordered Mike to move all belongings out and vacate his home within three days so that Clare could move back in. This order was supposed to be temporary.

As is virtually always the case with restraining orders, this action caused Mike to become literally homeless. Due to his decision to be a stay at home father while recuperating from his wounds suffered in Afghanistan on his third combat tour, he was not employed. Only through friendships in the military, was he able to survive by sleeping in his car or sofa surfing.

Mike was due in court on June 23, 2015 for the criminal case of child abuse against him that began this nightmare. But all charges against him were dropped by the District Attorney the day the trial was supposed to begin. That is a standard tactic by prosecutors who use delayed dismissals as one more tactic in their attempts to coerce defendants into taking a plea bargain even when they know full well the defendant is innocent and that they couldn't possibly convince a jury of his guilt. This tactic also requires a defendant and his attorney to spend the time, energy, and cost of preparing for trial in the event the case is not dismissed; grossly adding to the expense and distress of the defendant. And bear in mind that Mike had already endured three combat tours and wounds.

Mike and his attorney were able to show, and were prepared to argue, that the asymmetrical curves found on his son's back matched the snow sled that he had been playing with just one day prior to the discovery by the day care of the marks on the child's back. The District Attorney claimed that she didn't buy that argument and, as noted, simply tried to pressure Mike into pleading guilty and taking a deal. Although a plea bargain would have been easier and cheaper in the short term, it would have been a lifetime penalty had he been cowed into such a fatal mistake. Mike and his lawyer knew for a fact that the District Attorney's office typically plays this game of chicken in cases they know they cannot win and routinely dismiss at the last minute. Mike stuck to his guns and this is exactly what happened.

But there was still the matter of a divorce and custody of the children to be settled. On August 6, 2015, at a permanent orders hearing, Magistrate Frank Moschetti presiding, Mike endured allegations by Clare and her attorney of having anger control issues resulting from his three deployments to the Middle East; and insisting that he needed help.

A statement by the woman that she is in fear is essentially a requirement to obtain a restraining order. Aside from her testimony, Clare provided no factual evidence to substantiate her claims. After a half-day hearing Moschetti berated Mike for being in denial, continued to restrict him from his children and ordered him to undergo a psychological evaluation. Such evaluations are typically done by a court crony and rarely favor the man.

At this hearing, Magistrate Moschetti also informed Mike and Clare that he had no authority over the property and could not issue orders regarding the home — although he had previously ignored the same argument in January from Mike and ordered him to find somewhere else to live within three days. Note that in Colorado's judicial system a petition for dissolution is to be heard by a district judge, two levels above Magistrate Moschetti, unless the parties in the action specifically and jointly agree to allow a lower court to hear the case.

From January 27, 2015 until August, Mike, having been ordered out of his home, slept on people's couches, in his vehicle, and never had any contact with Clare or his children except during supervised visitation. To Mike, it felt as if his fate was being orchestrated by some kind of a plot; a suspicion well based in facts he was unaware of at the time. Despite having served his nation on three combat tours; based on false allegations and injustice he lost his children and his home.

On April 17, 2015, although there was a default protection order in place since the petition for dissolution was originally filed, Magistrate Moschetti gave Clare a permanent domestic abuse protection order. She claimed that Mike was likely to continue to go back to the property if he wasn't further restrained.

Permanent orders hearing for the dissolution of their relationship was held on August 6, 2015. As is usual, Mike was treated like a trained killer out to destroy Clare and his children. As a result, Clare was left in possession of the house and Mike could only visit with his children under supervision.

A couple of weeks after the permanent orders hearing Mike went to his home, since the Magistrate had informed him of his lack of authority to address the property, and went inside to have a look around. It was then that Mike discovered that Clare was indeed having an affair and that her boyfriend had moved in with her. He also found excessive amounts of hard liquor and evidence of BDSM with sex toys everywhere.

Following this, Mike hired a moving truck and crew and, while Clare was absent, took his personal items. He also began to try and sell their rather expensive home.

When Mike confronted Clare about what he had found, Clare changed the locks, installed an alarm on the house and asked the court (Magistrate Frank Moschetti) to give her a protection order to keep Mike from entering his former home. Clare claimed Mike was in violation of the court order that the Magistrate had already indicated he had no authority to give.

Mike petitioned for district court review of the Magistrates orders two months after the August 6, 2015 permanent orders hearing. Magistrate Moschetti, however, never entered any permanent orders nor did he put anything in writing and sign it — thus there was nothing to review.

In October 2015, Mike returned to court to have the restriction lifted that prevented him from visiting his kids except during supervised visitation. The psychological evaluation he was ordered to undergo surprisingly did not support any of the allegations against him as Mike had it done by a VA doctor. At the hearing Magistrate Moschetti refused to lift the restriction and instead entertained new false allegations against Mike, e.g., he was “frequently late” and didn't “feed the kids snacks,” although it had been many months since Mike had enjoyed unrestricted visitation with his children. These falsehoods were used to claim that the children were in “danger;” standard feminist tactics in custody battles. In rebuttal, Mike argued that Clare clearly had an ulterior motive since she was having an affair. Nonetheless, Mike continued to be restricted from visiting his children. Additionally, Mike was ordered to pay Clare $1,043.44 a month for child support even though he was an unemployed, disabled combat veteran and was not allowed visitation with his kids except under supervision.

Mike had heard of people getting screwed over in this manner in the past and was determined not to suffer the same fate — he decided to fight back. Mike knew Magistrate Moschetti clearly wasn't following the law and had no legitimate legal basis for anything he was doing. Mike had been recovering from his injuries from deployment and hadn't been working, and he was ordered to pay child support for his kids he had to be supervised to visit. He couldn't afford an attorney — thus he had to fight back pro se on his own while Clare had four attorneys through the years and, no doubt, feminist support as she was a “victim” by her own definition.

Mike continued his battle and on March 3, 2016, he filed a lawsuit against Magistrate Moschetti for Injunctive relief in the federal Colorado District Court (case no. 1:16-cv-00530). However, he ran up against the requirement that all possible remedies in state court be exhausted before a federal court can step in and his suit was denied.

Mike did extensive legal research and subsequently filed a Rule to Show Cause with the State Supreme Court (case no. 2016SA331, filed January 18, 2017) but was denied pending issuance of final orders from the presiding judge, Magistrate Moschetti. However, the Colorado Supreme Court did require that the lower court timely issue a signed written order.

As a result of the Supreme Court's order, on February 22, 2017, almost eighteen months after Magistrate Moschetti permanently restrained Mike from custody of his children, the district court ruled on his petition and ordered that a final, written, and signed order be produced within seven days.

The next day, Magistrate Eric White ruled that the transcript of the August 6, 2015, hearing before Magistrate Moschetti would be held to be permanent orders.

With permanent orders in hand, Mike was finally able to file an appeal, 2017CA307, on March 13, 2017.

More than three years after Clare filed for dissolution on November 24, 2014, on January 16, 2018, the Colorado Court of Appeals reversed Magistrate Moschetti's permanent orders restricting Mike from his children. The Court of Appeals held that the Magistrate had not followed the clearly established guidelines of the case — additionally the Court of Appeals acknowledged Magistrate Moschetti's interference with the appeal.

After a long three-year battle, a lawsuit in federal court against Magistrate Moschetti, who didn't even try and follow the law, an order from the State Supreme Court, and a Court of Appeals reversal and acknowledgement that the prior magistrate interfered with the appeal, Mike returned to court in April 2018 with a new Magistrate, Don Toussaint, presiding. Clare and her attorneys continued with the same false allegations as before.

After a full day hearing, Magistrate Toussaint followed the law to the letter. He determined the children were never in any danger throughout the three-year period of restriction and did the right thing by ordering that Mike was to have equal parenting time and decision making with his children.

Through Mike's efforts, in 2017, the State Supreme Court made a few changes to their rules. Magistrates are no longer allowed to preside over hearings concerning proceedings ending in permanent orders unless they specifically have permission from both the parties. In the past, they still needed this permission but if the parties didn't know they had to object then consent was given by the lack of objection. Now, as it should be, a magistrate or county judge must inform the parties that it needs consent and cannot preside over the case if an objection is made. And it is always advisable to have a district court judge, who presumably has more experience and is not simply an employee of the court like a magistrate, preside over a dissolution of marriage case.

Secondly, as Mike and everyone else have found, it is extremely difficult to address blatant judicial misconduct. Although the State Supreme Court has now made it easier to file a complaint against a judge alleging an intentional or unnecessary delay in making a ruling. Mike contends that Magistrate Moschetti's unwarranted delay in issuing a ruling was intentional and the sole reason his case took nearly three years to complete.

Mike subsequently lodged a formal grievance against Magistrate Frank Moschetti regarding this issue with the Colorado Office of Attorney Regulation. Note that normally a complaint about a judge would be filed with the Colorado Commission on Judicial Discipline, which Mike originally did. But that commission passed the buck and told him that they only deal with complaints about state judges. In Colorado, magistrates serve at the pleasure of the chief judge of the judicial district in which they are located and are not considered state judges.

The Attorney Regulation Office accepted the complaint and has reportedly been investigating the matter for a few months now. Mike also filed a complaint with the District Court Administrator for the 18th Judicial District against the Magistrate. The response Mike received was that Magistrate Moschetti was “handled internally.” However, as corrupt and incompetent as Magistrate Frank Moschetti has been shown by his actions in this case, and no doubt others, he is still on the bench as of July 2018. Apparently, he is favored by Chief Judge Michelle Amico. The Equal Justice Foundation has previously expressed reservations about Judge Amico as she teaches gender-based violence seminars and appears to be gender biased. Mike's case appears to confirm our concerns.

But Mike's travails with Colorado courts is far from over. As of July 2018, District Court Judge John Wheeler, whom the Equal Justice Foundation recommended not be retained in 2014, has now entered Mike's case and ordered him to sign a quit claim deed to the house he and Clare still jointly own. As Mike estimates there is about $200,000 in equity in the home that he was illegally ordered to leave by Magistrate Moschetti, he is currently petitioning the Court of Appeals yet once again for redress.

Although Mike now has joint, 50/50, custody of his two children, Clare, her lawyers, and the court claim he is in arrears for more $30,000 in child support. These alleged arrears were incurred although Mike filed a motion to modify child support orders and an appeal of the custody orders eighteen plus months ago and the court simply sat on the motions until recently.

It is reasonable to expect that after Mike hears from the Colorado Court of Appeals, and is denied certiorari by the state Supreme Court, that he will have to go back to federal court again. This time after exhausting all avenues for redress in the state courts. Sadly, his case will probably not be settled for another four or five years unless the Court of Appeals miraculously rules in his favor again.

Mike's heroic service to our country has been used against him, as it commonly is in Colorado courts. Even though the initial accusations were shown to be false and unwarranted, it took three years of not giving up and the tenacity of the real victim in this case to achieve even a modicum of justice or the right to share in the custody of his children. But the sad fact is that most likely Mike is just half way through his court battles.

In conclusion, this is a blatant case of misuse of justice, judicial misconduct, and the railroading of an innocent father. This is just one story, sadly there are many like this. Hopefully, Mike's sustained efforts and the resulting changes from the State Supreme Court will work to prevent, or, at least curb, such blatant occurrences by lower court Magistrates and judges in the future.

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