Reprimand handed St. Joseph County magistrate over custody hearing issue
Handling of a custody case issue brought a reprimand to St. Joseph County Probate Court magistrate Barbara Johnston. (WSBT-TV File Photo / July 5, 2012)
In an admonishment handed down Thursday, St. Joseph County Probate Court magistrate Barbara Johnston was reprimanded by the Indiana Commission on Judicial Qualifications, which provides ethical oversight of state and local courts.
According to a finding by the commission, Johnston’s handling of a child custody case in August 2011 was unethical because no effort was made to contact the child’s father about the pending custody case after the child’s mother had died.
According to the commission — which uses initials to protect the identifies of the parties involved — the child’s grandparents, who live in Kenya, asked the judge to grant them custody of the child, who they wanted to take to live in Africa.
“Rather than making any efforts to contact Father to determine whether he had received notice ... or setting another immediate hearing in order for Father to be heard, Magistrate Johnston issued an ‘Order on Change of Custody’ on August 4, 2011 granting custody of (the child) to (its) Maternal Grandparents and allowing them to take the child to Kenya,” the commission wrote in its findings. But the father — who had separated from the child’s mother but who also had made regular child support payments and had never missed a previous court date — didn’t find out about the custody change until October, despite a state law that requires parental notification, unless the child faces irreparable damage. But even when danger or injury is imminent, a parent not present for a custody case has a right to have a second hearing within 10 days of the first.
According to the commission, by not notifying the father, Johnston violated the father’s right to due process.
Eventually, after learning of the custody hearing that had already taken place, the father then hired a lawyer and sought full custody, which was granted in January of this year.
With the admonishment, Johnston becomes only the second judge or magistrate to be publicly admonished by the commission in the past 20 years. In 2009, Walkerton town court judge Roger Huizenga was admonished by the commission for employing his wife as court clerk.
Today, after the commission announced its admonishment — which carries no other disciplinary actions other than the public statement, and which formally ends any charges of misconduct — Johnston said she wanted to take responsibility for what happened.
“I will more diligently inquire and attempt to ascertain, to the best of my ability, whether all parties have been notified of the hearing,” Johnston wrote in an e-mail to The Tribune. “This particular case seemed, at the time, an urgent matter where the grandparents sought to take their daughter's remains back to Kenya. Father had not seen the child for some period of time. While that does not erase my error, I hope that it helps to explain why I made the decision I made at that time.”
Johnston said custody was not granted to the father until January because it was the first time all the parties involved in the dispute could be present.
The child, who had been taken to Kenya by the maternal grandparents, was returned to the father in January, Johnston said, after she ordered the child returned to the United States.
“I accept the admonishment,” Johnston said of the commission’s findings, “but certainly am disappointed that this occurred.”
Staff writer Dave Stephens: