Private Judges & the Jolie-Pitt Custody Battle Explained

Angelina Jolie and Brad Pitt at the premiere of Maleficent in 2014

[Source: Bloomberg]

Celebrity Divorce Lawyer Christopher C. Melcher Explains Private Judges & the Jolie-Pitt Custody Battle on Bloomberg News

Top family law attorney Christopher C. Melcher of Walzer Melcher LLP, which was named best family law firm in 2021, discusses a victory for Angelina Jolie in her celebrity divorce battle with Brad Pitt, with a California appeals court agreeing with her that the private judge deciding who gets custody of their minor children, should be disqualified.

June Grasso: In real life, Pitt and Jolie are involved in another kind of fight, a drawn-out custody battle over their five minor children. And Jolie has won the latest round. Winning a court decision that means the custody fight, which was nearing an end, could just be getting started. Joining me is celebrity divorce attorney, Christopher Melcher of Walzer Melcher.

To put this into context, this is a custody fight that’s been going on for something like five years. One of the kids is 19 and not subject to custody arrangements. So, this has been going on for a long time.

Christopher Melcher:  It is. The divorce started in 2016 and they’ve been fighting over custody from the beginning with allegations by Angelina that there was some kind of violent or abusive problem on an airplane. And that led to investigations. And I think some monitored visitation that Brad had submitted to, and it’s just been going on and on for five years, which is just damaging the kids.

June Grasso:  I’ve heard about divorce where there’s a custody battle, and then years later, there’s a renewed custody battle to change the visitation schedule or whatever. Has this been just going on continually? This is the first time there’s been a decision in the case?

property issues, and then custody has been coming in and out of the case over the years. There was a request by Brad last year for equal custody time. And that’s when Angelina really started to oppose this and was also being criticized by the judge going back to 2018, I believe, of her refusal to share more custody time with Brad.

Understandably, Angelina’s claiming that it wouldn’t be safe for the kids to be with Brad so much time. That’s her view of the world. The judge didn’t agree with that and wanted Brad to have more custody time. And it was after the judge was making those moves that Angelina sought to disqualify the judge. I understand in cases where a parent claims the other is abusive, that sometimes they need to go in and fight for custody and it can go on for a long time, but a parent needs to see that the cost of the litigation, the harm that’s done by an ongoing custody dispute in it of itself has an effect on kids.

June Grasso: So, a California appeals court agreed with Jolie that the private judge deciding who gets custody of the children should be disqualified because he failed to sufficiently disclose business relationships with Pitt’s attorneys. First of all, what exactly is a private judge?

Christopher Melcher: In California, under our constitution, our state constitution, the parties to a case may agree to the appointment of a temporary judge. This is usually somebody who’s a retired public judge, as in the case of Judge Ouderkirk here or it can be an attorney with 10 or more years of experience. So, our law allows for the appointment of a decision maker and the superior court or trial court would then appoint that person to serve and be granted pretty much all the powers that a regular judge would have. And that’s commonplace in bigger cases because the parties get to select someone who they think would be fair and who was experienced in the type of matter that they have.

It gives the parties the full attention of that judicial officer rather than going to public court who may have 20 matters on their calendar per day. Just really talking about minutes rather than hours that can be spent on each case. So, this is something that’s a feature of pretty much every celebrity case, and certainly the big dollar cases they’re are using these temporary judges, but the controversy is that they’re paid and does this create two systems of justice? One for the very wealthy and one for everybody else. And so, there has been debate over the years about this, and we saw it crop up in this opinion by the California Court of Appeal that’s been critical of that system.

June Grasso: And how much are these private judges paid?

Christopher Melcher:  So, the parties can select this temporary judge by agreement. So, it cannot be forced on a party. And the hourly rates for a private judge in California would range from $500 to maybe $1,000 an hour. And that’s pretty much in line with what these parties would be paying their counsel. And just depends on how long the case would go on. We’ve seen certainly hundreds of thousands of dollars in fees be paid to a temporary judge and even millions of dollars in fees in the very long cases. It sounds like a lot of money and certainly is to pay this decision-maker, but there is a cost of going to public court for the parties, not really in paying the court, of course, but a cost to the litigants of having to pay their attorneys and expert witnesses for a hearing that may never happen. It actually could cost them less money to pay this temporary judge to hear their matter rather than the uncertainty of going to a public court and wasting perhaps many, many thousands of dollars for a hearing that never went forward.

June Grasso: So, the custody battle has been going on for about five years. Judge Ouderkirk makes a tentative decision giving Pitt joint custody of the children. And Jolie says the judge has a conflict, but he officiated at their wedding. So, both parties know him.

Christopher Melcher: I don’t know how he found himself in that role, but he officiated their marriage, and then he was selected to officiate their divorce. He was agreed upon by counsel, by both parties when they appointed him years ago. And when they selected Judge Ouderkirk, he was obligated to make a disclosure of other cases that Judge Ouderkirk had with the counsel for either party, and he made that disclosure. Judge Ouderkirk disclosed that he had some cases with Brad’s counsel, and he also had some cases with Angelina’s counsel at the time, Laura Wasser. And they were all fine with that knowledge that Judge Ouderkirk was handling cases for counsel for other parties that either Brad or Angelina’s counsel were representing them in those other matters for compensation.

Judge Ouderkirk’s appointment was given for a limited duration, and each time that expired, he was reappointed by further agreement of the parties and he made some further disclosures of other cases that he had with counsel for either party. Eventually, Laura Wasser exits and Angelina is now represented by a different lawyer who’s in San Francisco. And after Judge Ouderkirk had been reappointed, his appointment order went through December 31st, 2020 or until a judgment of custody was made, whichever was later. So, he had been appointed. He made his disclosures at the time and after Brad had filed for joint custody, Angelina’s new lawyer innocently apparently asked for an updated disclosure. Out of the blue, even though the appointment order was not coming up for renewal, and Judge Ouderkirk responded with two or three additional matters that he had with Brad’s counsel and that’s when Angelina and cried foul. It smacked of strategy and tactics. And this was noted by Brad’s counsel. And even by one of the justices at the Court of Appeal argument, there was a comment that why was it okay for Angelina to accept Judge Ouderkirk knowing that he had 12 prior paid assignments by Brad’s counsel, but it was not okay when she learned it might be 14 or 15. And I thought that remark was cynical, critical of Angelina’s position that would have been telegraphing that she was raising really a technical argument, not an ethical breach.

June Grasso: But the Appeal’s court found that he had committed an ethical breach that might cause an objective person aware of all the facts reasonably to entertain a doubt as to the judge’s ability to be impartial. Why did they come to that decision considering all that you’ve told us?

Christopher Melcher:  That’s what makes cases unpredictable that the court could have found that the failure to disclose these two or three additional matters were technical, weren’t enough to cause a reasonable person to entertain doubt as to Judge Ouderkirk’s impartiality. And that was what I was foolishly predicting would happen because why would a reasonable person entertain doubt as to Judge Ouderkirk’s impartiality, knowing that there were 12 disclosed matters that Angelina Jolie and her legal team was accepting of. And then adding these two or three other matters were really of the same type with all of a sudden cast doubt as to whether Judge Ouderkirk could be impartial. It makes no sense to me, but I’m not the decision maker. And the Court of Appeal said that every matter essentially could count and that these matters count and that this was an ethical breach.

I think what’s happening behind the scenes is more of a criticism of the private judging system than anything that Judge Ouderkirk himself did because if we just look at it on the facts of this case, I would think it’s more of a technical than an ethical breach. And we do have the criticism in the opinion of the private judging system. And this may have been a message to private judges that if you’re going to undertake this work and be paid for it, which the Court of Appeal seemed uneasy with that concept, that they better follow the rules to the T. And they’re the Court of Appeal. They get to make the rules, and that’s what they said.

June Grasso: And tell us about the concurring opinion.

Christopher Melcher: A justice wrote a concurring opinion to express his reservations about the private judging system. And he wrote separately because that wasn’t an issue that was even raised by Angelina in her briefing. Angelina was attacking Judge Ouderkirk’s failure to disclose. She said that Judge Ouderkirk was biased against her because he had wanted Brad to have equal custody time despite this prior alleged incident, and wouldn’t let the children testify at a hearing, but she never attacked the private judging system because she had agreed to that system. Justice [inaudible] on his own brought up this question of, “Can we pay a private judge?”

June Grasso: So, what happens now? Do they pick another private judge and go through all the proceedings again?

Christopher Melcher: So, Judge Ouderkirk has been disqualified. And the decision that Judge Ouderkirk had made about joint custody for Brad never became final and is certainly void. Angelina in her briefing was careful to say that she was okay with what Judge Ouderkirk was doing before he failed to disclose these two or three additional matters and was really offended just by the actions that he took after he failed to disclose those matters and was making that argument, I believe, because she wanted to preserve the other rulings that Judge Ouderkirk had made, including divorcing them.

And if Judge Ouderkirk’s rulings were invalidated from the get-go,  they would still be married to each other and all the property division orders, everything else in the case would also be invalidated. So, I don’t think she wanted that. There will be a new judge appointed. That judge will be a public judge unless Angelina and Brad Pitt agree to another privately compensated judge. And that we’ll have to go back to the LA Superior Court for assignment and delay would benefit Angelina because the status quo is the parenting plan that exists right now, which presumably is in her favor in terms of the amount of time that she’s allocated, and so the longer it goes on, the longer she has that time.