Cumberland County district attorney asks court to throw out lawsuit against her

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PORTLAND — The district attorney for Cumberland County did nothing wrong when she intervened in a child custody battle on Jan. 27, according a federal court filing.

District Attorney Stephanie Anderson filed a motion Wednesday in U.S. District Court to dismiss a lawsuit filed last month by Igor Malenko, a South Portland man who claims Anderson acted unethically and violated his civil rights when she became involved in the custody dispute over his 5-year-old daughter.

Anderson’s lawyer, Maine Assistant Attorney General William Fisher, said in an interview Wednesday that even if a judge accepts all the allegations in Malenko’s lawsuit, his client did not break the law.

“Ms. Anderson simply attempted to help law enforcement resolve a dispute that (the child’s) parents should have been able to resolve on their own,” he said. “There was nothing improper, unreasonable or unlawful about her doing so.”

The lawsuit stems from an incident Jan. 27 when the girl’s mother, Lori Handrahan, allegedly tried to take her daughter from Malenko’s wife, who was dropping off the child at a Cape Elizabeth day-care center.

Handrahan said a court order granted her visitation rights on the first, third and fourth weekend of every month, according to a police report.

The order also gives Malenko, the girl’s custodial parent, decision-making authority over the child’s well-being, which he interprets to include barring the child from seeing her mother. The lawsuit claims Malenko had reason to believe he’d never see his daughter again if she went with her mother.

According to a police report, Anderson called a Cape Elizabeth police officer and said she had consulted with Maine District Court Judge Jeffrey Moskowitz, who issued the order, and determined that Malenko’s decision-making authority did not grant him the right to deny visitation to Handrahan.

Anderson allegedly said the girl could go with her mother, but the officer chose to have the state Department of Health and Human Services mediate the matter. A case worker determined that barring a new order from Moskowitz, the girl ought to go with her father.

Malenko’s attorney, Michael Waxman, has said questions of custody cannot be decided behind closed doors. He said it was inappropriate for Anderson to consult with a judge and instruct the police to send the girl home with her mother.

But Fisher said there’s nothing illegal about a district attorney consulting a judge or directing local law enforcement.

In the court filing, he also claimed Anderson is entitled to “qualified immunity,” which provides public officials with protection from lawsuits stemming from their work, as long as the official didn’t violate any clearly established law. 

“A district attorney who confers with a judge about the meaning of a custody order and who relays that information to a police officer attempting to resolve a visitation dispute does not violate clearly established law,” he said.

Waxman has until March 21 to file a response to the motion for dismissal. Then it will be up to the court to decide whether to dismiss the case.

Mario Moretto can be reached at 781-3661 ext. 106 or mmoretto@theforecaster.net. Follow him on Twitter: @riocarmine.

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