Brad Pitt appeal over custody case rejected California Supreme Court

October 27, 2021
American actors Brad Pitt, left, and Angelina Jolie arrive on the red carpet for the film 'Inglourious Basterds', during the 62nd International film festival in Cannes, southern France, Wednesday, May 20, 2009. (AP Photo/Matt Sayles) ORG XMIT: CAN330

California’s Supreme Court has rejected Brad Pitt’s appeal in his bitter custody battle with ex-wife Angelina Jolie, upholding a lower court ruling that will force them to relitigate the custody of their kids and possibly dismantle the state’s network of private judges.

The high court issued its decision Wednesday with no explanation other than: “Petition for review & application for stay denied.”

USA TODAY reached out to Pitt’s lead appellate lawyer, noted First Amendment attorney Theodore Boutrous Jr., and to Jolie’s lead appellate lawyer, Robert Olson, for comment. 

For Pitt and Jolie and their protracted split, which began in 2016 after only two years of marriage and a previous 10 years together, the appellate court’s decision, which now stands, means that their custody fight over their five minor children, which was nearing an end, would have to start over with a new judge.

The former couple’s the eldest, Maddox, is 20. Their other children are Pax, 17, Zahara, 16, Shiloh, 15, and twins Vivienne and Knox, 13.

The decision means the high court won’t review the July decision by a state appeals court which handed Jolie a major victory by disqualifying the private judge the couple hired to handle their divorce and their even more contentious custody dispute over their six kids, five of whom are still underage.

By rejecting Pitt’s appeal, the high court appeared to be signaling that the issues raised by Pitt’s legal team are not relevant beyond a long-running dispute between two A-list movie stars over whether they will share equally in custody of their kids.

Pitt’s legal team has said the decision not to hear the actor’s appeal could determine the future of private judges in California, affecting tens of thousands of legal cases in the state, including non-celebrity divorcing couples and their children, and blocking the continued functioning of the state’s overwhelmed judicial system.

In civil matters, such as divorces or custody cases that prefer to move behind closed doors, the California judicial system depends on private judges who are paid by the litigants, under the supervision of the courts, to read briefs, conduct trials and issue rulings.

Enshrined in California’s constitution for decades, the private judging system aims to provide quicker resolution (and more privacy) in legal cases involving people who are willing to pay, leaving the official state judges and court system more available for criminal cases and for citizens who have fewer resources. 

After a virtual public hearing on July 9, the 2nd District Court of Appeal in Los Angeles agreed with Jolie that the couple’s private judge, John Ouderkirk, didn’t sufficiently disclose in a timely manner other business relationships with Pitt’s attorneys, thus raising potential questions about his impartiality. 

Pitt’s lawyers argued in their brief that Ouderkirk’s failure to disclose two links to Pitt’s divorce lawyer, Lance Spiegel, was “a minor and inadvertent administrative error” unrelated to the merits of the custody dispute itself. 

The appeals court disagreed. “Judge Ouderkirk’s ethical breach, considered together with the information disclosed concerning his recent professional relationships with Pitt’s counsel, might cause an objective person, aware of all the facts, reasonably to entertain a doubt as to the judge’s ability to be impartial. Disqualification is required,” the court ruled.

Private judges in California are usually retired state court judges who often have extensive professional links to local lawyers, so the issue of full disclosure matters. But during the virtual appellate court hearing, some of the justices questioned in blunt terms whether California should even have a system of private judges.

Ouderkirk declared the couple divorced in April 2019, but took up the issue of custody as a separate matter and behind closed doors. 

The vitriol that has peppered this divorce from the beginning started up again in the spring of 2021, as Pitt was tentatively awarded joint custody and Jolie’s team criticized Ouderkirk for not allowing the couple’s children to testify in the custody proceedings. This was after she filed a petition to disqualify the judge from the case because of the disclosure issues. 

“If you’re going to play the role of a paid private judge you have to play by the rules and the rules are very clear, they require full transparency,” Jolie’s appellate attorney, Robert Olson, argued before the appeals court. “Matters that should have been disclosed were not disclosed….If rules have no consequences they are empty.”

Pitt’s legal team has argued that Jolie’s team was aware of disclosure issues for months but acted only after Ouderkirk’s tentative joint custody decision.

Boutrous condemned Jolie’s strategy as “a stalling tactic” and legal “gamesmanship,” which California courts usually frown upon, to keep Ouderkirk’s tentative joint custody decision from going into effect.

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