Harsh judgment from some parents for Probate judge
Allegations of bias center on custody cases in Essex County
WALTER SORENSON WAS in the midst of a child custody battle with his ex-wife in 2018 when Essex Probate and Family Court Judge Abbe Ross was assigned to his case. Pretty quickly, he says, he came to the conclusion that Ross was biased against him.
Over the next two years, the Groveland resident said, the judge repeatedly refused to allow in evidence that supported his side, dismissed and denied his motions, and took months to consider his filings. After Ross granted custody of his children to their mother, Sorenson said, the children ran away from their mother and were living for a time at various people’s houses and on the street.
“She rules by favoritism. She’ll pick one side and she’ll run with it,” Sorenson said.
Sorenson filed seven appeals against Ross, most of which were dismissed or denied. One is still pending, and one resolved partially in his favor, relating to a procedural issue. In July 2020, after Sorenson filed for an emergency change of venue alleging bias, Ross was removed from his case. The decision by Probate and Family Court First Justice Jennifer Rivera-Ulwick did not state the reason for assigning a new judge.
While a constituent-filed bill without broad legislative support stands little chance of becoming law, the petition, Mirra said, “is taking on a life of its own.” Mirra said he has no personal knowledge of Ross, but since he filed the petition on behalf of Sorenson at the start of this year’s legislative session, he has gotten more than 100 calls from litigants who feel they have been wronged by her.
Petitioners unhappy with a judge do have other recourse. If a judge is guilty of overt misconduct, they can be sanctioned by a Commission on Judicial Conduct. A judge’s ruling can also be appealed to a higher court. A petition for a judge’s removal is a rarely taken step, and illustrates the unusual nature of this situation.
It also reflects the adversarial and emotionally charged cases that are heard in Probate and Family Court, where judges have a large amount of discretion in deciding what is “fair” in heated divorce and custody cases. A number of the litigants upset with Ross shared their stories and, while they all feel they were wronged by the judge, there is no clear pattern to their complaints other than strong feelings of bias and favoritism. Meanwhile, several attorneys who have appeared before Ross, who is a 2014 appointee of Gov. Deval Patrick, say they have seen no evidence of problems with her. They say complaints are common in Probate Court, where many of the most contentious, personal cases are heard.
“Judges have a tremendous amount of discretion in Probate and Family Court,” said Michael Xavier, a family law attorney with Prince Lobel, who has argued before Ross. Xavier said there is a systemic problem with Probate Court, which is flooded with cases and not enough resources to handle them, which leads to unhappy petitioners. “I think it’s a tough field to be working in and there’s a lot of disgruntled litigants who are unhappy with the results of their case,” he said.
Two members of the Governor’s Council, the eight-member elected body that approves judicial nominations, whose districts include parts of Essex County, Terrence Kennedy and Eileen Duff, both said they have not heard complaints about Ross. But Kennedy said the most complaints he gets are about probate court, because of systemic problems like trials getting broken up over multiple days and weeks, and because of the emotional cases that are heard there and the high level of discretion judges have. “There’s a saying, I’d rather have a criminal defendant on his worst day than a divorce client on his best day,” Kennedy said.
Over a half dozen people unhappy with Ross, who have, along with others, formed an informal group of “victims,” told their stories to CommonWealth, all alleging bias and improper rulings. While some questioned whether they were treated unfairly due to gender, race, profession, or lack of an attorney, the individuals who complained included men and women of different races, ethnicities, professions, and sexual orientations, with and without attorneys. Several offered similar complaints of Ross not hearing evidence that benefited their side and appearing to personally dislike one party. Most of the individuals were reeling from loss of custody of their children. Some questioned her allocation of alimony payments.
Mate considers it a case of extreme bias against her, and of ignoring the evidence Mate presented. “It’s sort of like you enter her courtroom, she has already predetermined a decision of who’s going to be a winner. Then she’ll write her own findings of fact, accommodate the language she wants to justify her decision,” Mate said. Mate prepared a 110-page document illustrating what she views as problems with the trial judgment and listing evidence and facts she said Ross declined to consider. For example, she told CommonWealth that the judge ignored reports from the Department of Children and Families and testimony from her daughter’s pediatrician that supported Mate’s argument for custody.
Mate took her case to the state Appeals Court, which affirmed Ross’s decision. A three-judge panel agreed that Ross generally credited the testimony of the father, not Mate, but the Appeals Court did not question that decision. “The record is replete with examples of the mother’s destructive relationship with the father, the child’s school, and treatment professionals,” the Appeals Court judges wrote.
Mate complained to the Commission on Judicial Conduct about Ross. The commission’s executive director responded to her that Mate had not alleged that Ross’s decisions were the product of bad faith, fraud, or another clear violation of judicial conduct, and the commission does not have authority to second guess a judge’s legal and evidentiary decisions.
Mate started an online petition to support Ross’s removal, which has gotten over 450 signatures.
Christina Daviaux said Ross improperly awarded custody to her ex-husband, who pled guilty to felony charges of larceny for insurance fraud. Ross acknowledged the charges in her written decision, but gave multiple reasons for her decision, including the mother moving far away from the father and the mother’s apparent unwillingness to co-parent with the father. Daviaux said Ross “was biased and condescending to myself and my attorney and blatantly favored the other party.”
Cassandra Kierstead said her ex-wife never parented their children and acted disrespectfully on the witness stand – yet was still granted sole custody of the three children. “It’s almost like she looked at this evidence and said I’m going to rule in opposition to the evidence,” Kierstead said.
Lisa Christensen said she lost custody in a case before Ross due to allegations made by the Department of Children and Families, which were later proven to be unfounded.
Ross, through a Trial Court spokesperson, declined to comment.
Probate and Family Court Chief Justice John Casey said in a statement that judges in the Probate and Family Court “are held to a very high standard and processes are in place to ensure that those standards are met.” Casey said all judges receive judicial performance evaluations on an ongoing basis and the chief justice of their department reviews those evaluations with the judge. The Commission on Judicial Conduct investigates complaints regarding judicial conduct.
Proceedings of the Commission on Judicial Conduct are confidential unless formal charges are filed with the Supreme Judicial Court or the judge agrees to a public disclosure. No complaints against Ross have been made public on the commission’s website.
Several attorneys who practice regularly in the Essex court said they were surprised to hear about the complaints against Ross –– although attorneys who have cases before a judge may be hesitant to publicly criticize that judge out of fear it may impact their case.Jean Porcello, an attorney who practices family law in Salem, painted a picture of a jurist who bears no resemblance to the judge described by Sorensen and others who have organized against Ross.
Porcello said she has had multiple cases before Ross and has not observed any bias in her work. Porcello said she thinks a lot of people are generally disgruntled with the probate court system, but she called Ross a judge who is reasonable, fair, and gives petitioners a “roadmap” to follow to regain custody. “She’s probably one of the best judges in Essex County,” Porcello said. “One of the fairest, one of the most hardworking.”