CHICAGO — A Hinsdale attorney has about two weeks to explain to a federal appeals court why he shouldn't pay the legal fees of a court-appointed psychologist he has been suing after her expert opinion allegedly cost him custody of his two children.
In a blistering seven-page decision, a U.S. Seventh Circuit Court of Appeals three-judge panel rejected the appeal of attorney Dana A. Alden in his dismissed lawsuit against psychologist Mary K. Gardner. Gardner evaluated the children of Alden and his former wife following their divorce in 2009 and in Alden's subsequent attempts to have custody arrangements overturn.
"This is abusive litigation," the appeals court said in its decision. "Alden, a lawyer representing himself, seems determined to continue the child custody litigation in another forum even if that means exposing an innocent person such as Gardner to travail and expense. He concedes - indeed, he trumpets - that he has sued someone who he knows is not responsible for enforcing the state's child custody laws."
U.S. Seventh Circuit Court of Appeals Judge Frank H. Easterbrook | Photo provided by Easterbook to Wikipedia
The appeals court gave Alden 14 days from the date of its July 14 decision to show cause why he should not be ordered to reimburse Gardner's legal expenses or sanctions be imposed.
"And we will send a copy of this opinion to both state and federal bodies with authority over the conduct of the bar, so that they can determine whether Alden's misuse of the legal process calls into question his fitness to practice law," the decision said.
Judge Frank H. Easterbrook wrote the decision in which judges Diane S. Sykes and Amy C. Barrett concurred.
Alden was admitted to the bar in Illinois Nov. 10, 1994, according to his Illinois State Bar Association profile.
Alden and his former wife initially shared custody of their two minor children, identified in the decision as "E.A." and "J.A.." Then Alden's ex-wife filed a complaint, alleging "Alden was trying to turn the children against her," the appeals court said in the background portion of its decision.
"Gardner concluded that Alden was using 'severe alienation tactics' to drive a wedge between Alden's children and their mother," the decision said. "Gardner recommended that the court limit Alden to supervised visitation and give full custody of the children to their mother."
Alden was allowed supervised visitation, an arrangement an Illinois appellate court affirmed in 2014.
After three unsuccessful attempts in state court to regain custody of his children, Alden "changed his strategy" and sued Gardner in federal court, asserting his children's rights as their next friend.
"He says that he does not challenge Gardner's actions as an expert witness but rather denies the validity of the Illinois Marriage and Dissolution of Marriage Act to the extent that it permits a state court to change or terminate custody arrangements after a divorce on a showing that one parent endangers a child’s physical, mental, moral, or emotional health," the decision said. "And this creates a problem. Gardner does not enforce any state law."
Alden maintained the state statute is invalid because it violates the First Amendment by regulating speech as "it takes parents' speech into consideration when deciding on the best interests of the child," the decision said. "Second, he contends that the statute violates the 14th Amendment's equal protection clause because it treats parents differently based on whether they are divorced."
A Chicago federal judge dismissed the suit, ruling the district court lacked jurisdiction and that Alden lacked standing.
"He didn't show that any of the injuries he alleges is traceable to Gardner as opposed to the independent action of the state judiciary," the appeals court decision said. "Nor did Alden contend that victory in this suit would change custody arrangements."
In his appeal Alden offered "the curious argument" that Gardner couldn't challenge his standing because Gardner lacked standing, the decision said.
That argument "doesn’t help Alden in the least," the appeals court decision said. "First, it's irrelevant whether Gardner has standing. Alden's standing is essential to the existence of a case or controversy, and a district court must inquire into every plaintiff's standing no matter who the defendant is or what the defendant argues."
Alden's argument effectively admitted "that he has sued the wrong party," the appeals court decision said. "That by itself is enough to sustain the district court's dismissal."
Alden also attempted to litigate the case anonymously, as "John Doe," but the appeals court would not have it.
"We have changed the caption accordingly," the appeals court's decision said. "And we have given Alden's own name in the caption and throughout the opinion. He is an adult and has not provided a reason that could support allowing him to litigate in secret. Only 'exceptional circumstances' justify the use of a fictitious name for an adult party."