A Mother's Struggle Las Vegas-woman perseveres in a lengthy custody fight to protect her daughter

Oct. 19, 2008 Copyright © Las Vegas Review-Journal
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FAMILY TORN APART

December 1998: Tiffany Barney and Malakai "Sonny" Kaufusi marry in Las Vegas.

August 1999: Barney files for divorce.

October 1999: The estranged couple's daughter is born.

October 2001: Barney and Kaufusi are legally divorced; Barney is granted primary physical custody.

July 2002: Barney's 2-year-old daughter makes what family members interpret as a sexual gesture and comment. Barney contacts police.

August 2002: Kaufusi passes a polygraph exam administered by Ron Slay.

March 2003: Kaufusi files a motion seeking an increase in his visitation time.

May 2003: Family Court Judge Jennifer Elliott hears the case for the first time, orders Barney to take a polygraph exam with Slay.

June 2003: Barney fails the polygraph exam administered by Slay.

August 2003: At a settlement conference in Elliott's courtroom, Barney agrees to share custody equally with Kaufusi.

February 2004: Elliott removes the child, now 4, from both parents and sends her to live with the Evans family.

April 2004 to October 2005: Child lives with Evans family part time and Barney's parents part time.

February 2005: Barney spends 48 hours in jail after denying Kaufusi a visit with his daughter.

October 2005: Elliott removes the child from the Evans home and places her full time with Barney's parents.

March 2006: Barney regains custody.

May 2006: Kaufusi sees his daughter for the last time.

January 2007: Elliott terminates Kaufusi's parental rights.

Review-Journal

Tiffany Barney sits with her daughter in September at their northwest Las Vegas home as the girl, who is now 9, shows off her collection of stuffed animals. Barney claims various professionals’ bias and negligence exposed her daughter to years of sexual abuse.
Photo by John Gurzinski.

Family Court Judge Jennifer Elliott hears a case in September.
She presided over the custody dispute between Tiffany Barney and Malakai Kaufusi for nearly five years. “This is probably one of the longest cases I’ve ever heard in my almost six-year career,” she said.
Photo by John Gurzinski.

Tiffany Barney is shown in a 2005 mug shot taken at the Clark County Detention Center after Judge Jennifer Elliott sentenced her to 48 hours in jail for contempt of court. Tiffany Barney’s daughter plays piano in September at their northwest Las Vegas home. Photo by John Gurzinski.

Ron Slay displays the results of a polygraph exam in September at his Las Vegas business. “You’ll get to know people better in two hours of polygraph than in five years of friendship,” he said. Photo by John Gurzinski.

Campaign signs, including a sign for Judge Jennifer Elliott, appear in September in front of the Maryland Parkway business where Ron Slay conducted polygraph exams on Malakai Kaufusi and Tiffany Barney. Barney claims Slay had a conflict of interest when he tested her after having tested Kaufusi, an allegation Slay denies. Photo by John Gurzinski.

Tiffany Barney found this photo of her ex-husband, Malakai “Sonny” Kaufusi, on the planet-tonga.com Web site in 2007. According to the Web site, it is the largest online community for Tongans and other Pacific Islanders. The image can be found by clicking here.

The 4-year-old girl pleaded with her mother as they headed to her father's home, even saying she wanted to hit him with a baseball bat.
"I want to go to your house," she whimpered, in a secretly recorded 2004 conversation. "I'm scared. I want Mama. Mama. Mama. I'm tired of Sonny's house."
"Why are you scared to go to Sonny's?" her mom, Tiffany Barney, asked.
"I don't want him to touch my cootie," the child replied, using the last word to describe her genitals.
For 18 months, Barney had tried to convince authorities that her ex-husband, Malakai "Sonny" Kaufusi, was sexually abusing their daughter. They had joint custody at the time, but on that January evening, Barney refused to turn her daughter over. Three weeks later, a judge removed the girl from both parents and placed her with relatives of Kaufusi's who had seven other children.
The bitter and fractured situation would only get worse. Before the Family Court case finally ended, there would be 71 different hearings. Was Kaufusi molesting his daughter or, as he contended, was Barney simply using the charges to alienate his daughter from him?
For two years after losing custody, Barney was not allowed to spend time alone with her daughter. The UNLV law student would even go to jail in connection with the case, which involved allegations of substandard performance against a polygraph examiner, a psychologist and a court-appointed attorney who went almost 16 months without seeing his client -- the young girl.
Charges of bias were leveled against the judge, Jennifer Elliott, who heard the case between May 2003 and February, and a complaint was filed three years ago with the Nevada Judicial Discipline Commission. Elliott denies any favoritism and says the case was one of the longest and most difficult she has heard in six years on the Family Court bench. However, at one hearing late in the proceedings, she concluded that Kaufusi had fooled her.
When Barney lost custody of her daughter in 2004, she made plans to take the child, head north and go underground. She got an oil change in preparation for the trip and returned home, where she found her mother in tears.
A friend was there, too, telling her, "If you're in jail, you're no use to your daughter."
So Barney stayed, and fought. But first she had to surrender her daughter to strangers.
"I had to pack her bags to go to a place I didn't want her to go," Barney now recalls. "To try to explain that to her was horrible."
And in the end, it would be Kaufusi who would run.

'A LOT IN COMMON'

Tiffany Barney met Sonny Kaufusi in April 1998 and married him eight months later.
They shared an interest in music: She played piano; he sang and played guitar. Both belonged to the Church of Jesus Christ of Latter-day Saints, and both wanted to start a family.
"I thought we had a lot in common," said Barney, now 33.
She said relatives initially tried to dissuade her from marrying Kaufusi, whom they considered selfish.
"They warned me not to, but I was so stubborn," she said.
She had cold feet before the wedding, but a church bishop told the couple they were meant to be together. Barney also said Kaufusi had a "silver tongue" and knew how to use church doctrine to sway her.
Kaufusi, whose parents emigrated from Tonga, was 10 years her senior. He had been married before but had no children.
He received a bachelor's degree in psychology from the University of Utah in Salt Lake City and was working as a child development specialist when Barney met him. A spokesman at the University of Nevada, Las Vegas said Kaufusi took graduate courses in social work between 1995 and 2000 but did not earn a degree.
Barney, one of seven children, was born and raised in Las Vegas. She received a bachelor's degree in zoology from Brigham Young University in Provo, Utah.
She and her brother Tony, the children of a stay-at-home mother and longtime Las Vegas dentist, are the only lawyers in the family.
Barney said Kaufusi, one of 10 children, wanted to establish a rehabilitation center in Tonga for troubled teens and often asked her to give money for the project. She refused.
But she did help him pay off his debts, which she discovered after their marriage. She said she soon realized she didn't know her husband. And she said he made her feel "ugly" and "stupid."
In June 1999, shortly after learning she was pregnant, Barney left Kaufusi.
"I was dying," she said. "I was not me."
The couple's divorce was final in October 2001, and Barney was granted primary physical custody of their 1-year-old daughter, whose name is not being used in this story at the request of her mother. Kaufusi was allowed to have visitation with the girl each week from Friday evening until Sunday morning.
For several months after the divorce, Tony Barney recalled, "There was a period of peace."
But it didn't last.

A SHOCKING REVELATION

Everything changed in July 2002.
Barney was at her parents' home, and her father was wearing a swimsuit. Barney watched as her 2-year-old daughter reached toward his penis, prompting him to ask his grandchild what she was doing.
The girl then gave this shocking answer: "I want to see if milk comes out."
Barney said she and her younger sister both heard the remark.
"It was just very concerning," Barney said.
Barney called a friend who was a private investigator, who in turn gave her the name of a Metropolitan Police Department detective.
The detective interviewed the child and told Barney not to return her to Kaufusi. The child also underwent a medical exam, which showed no evidence of sexual abuse.
Child Protective Services then took over the investigation and asked Kaufusi to submit to a polygraph exam. Examiner Ron Slay tested Kaufusi and found him truthful, supporting the father's statement that he had not sexually abused his daughter.
After about a month, a CPS worker told Barney to resume the visitation.
Barney said her daughter then started telling her, as well as Barney's sisters and mother, about incidents of sexual abuse. Barney began hiding a recorder in her bra to capture her daughter's words, and she began taking the child to a therapist.
In March 2003, Kaufusi filed a motion seeking increased visitation time with his daughter. As a result, the case landed in Elliott's courtroom two months later.
Things quickly went Kaufusi's way.
At the first hearing Elliott conducted, she ordered Barney to submit to a polygraph exam with Slay regarding the allegation that Kaufusi was molesting his child, and the judge referred the family to psychologist Stephanie Holland for an evaluation.
The next month, Barney took the polygraph exam and failed, though she would later find experts who challenged that result.
Holland prepared her report for Elliott in August 2003. The psychologist's report noted that she had discussed the results of both parents' polygraph exams with Slay.
"With that information, she was already biased in her head," Barney now contends.
Among those who supported Kaufusi during Holland's evaluation was longtime Clark County Commissioner Bruce Woodbury.
In a July 2003 letter to Elliott, Woodbury gave his assurances that Kaufusi was "a young man of the highest character and integrity with strong personal values."
"I believe he will always be a loving, caring father who will do what is right for his child," Woodbury wrote on Board of County Commissioners letterhead.
When asked about the letter recently, Woodbury said he wouldn't have gotten involved in the court case if he had known about the allegations of sexual abuse against Kaufusi.
"If he is guilty of these accusations, that would come as a great shock to me, since he was a friend of my daughter and seemed like a kind, caring individual," Woodbury said.
The commissioner said he hasn't seen Kaufusi in many years and didn't know the outcome of the Family Court case.
Holland met with Barney and Kaufusi before preparing her report.
According to the report, Kaufusi felt that Barney's family disliked him. "He reports that for the past sixteen years he has worked as a social worker with children of abuse and adds that Tiffany's family has 'found a road they could take to destroy me.'"
Holland asked Kaufusi to complete a sexual interest assessment, which revealed that he did "not appear to have a persistent sexual attraction to preschool children" but did "appear to have persistent sexual attraction to grade school children."
The Abel assessment referenced in Holland's report typically attempts to gauge a person's interest in various images he views on a computer screen.
"Note that this assessment has questionable validity," Holland wrote. "Therefore the results have to be interpreted with caution."
Holland suggested that the child had a hard time going to and from Kaufusi's home because she knew her mother would "interrogate" her when she returned.
The report indicated Holland met with the child once individually, but that the child gave inconsistent information. According to the report, the girl told Holland "that her father touched her private parts inappropriately."
"This examiner feels moderately strongly that there has not been any inappropriate interaction of a sexual nature between Mr. Kaufusi and his daughter," Holland wrote. "Of course, there is always the possibility that Mr. Kaufusi has strong sociopathic tendencies and is able to present favorably, but this is felt to be doubtful."
According to the report, Holland "strongly felt" that Barney "wholeheartedly" believed that Kaufusi had sexually abused their daughter.
But the psychologist added that "the situation is ripe for false allegations and fabrications to be made to gain attention, but more likely and more importantly, to gain her mother's approval."
Holland concluded that the child was not at risk when in the presence of her father and added, "If Tiffany does not stop seeking unnecessary medical attention she will continue to send the message that Sonny is dangerous."
The child's relationship with her father "will not be able to withstand this and it will deteriorate rapidly," the psychologist wrote.

BARNEY BACKS DOWN

A pivotal event in the Family Court case occurred in August 2003, when Elliott conducted a settlement conference after receiving Holland's report.
Barney said the meeting left her fearing that Kaufusi would receive full custody if she continued to fight. Rather than take that risk, she settled for joint custody.
But, Barney said, her daughter continued to tell her and others she was being abused. So on Jan. 22, 2004, Barney recorded her daughter's haunting words as the girl resisted returning to Kaufusi's home.
Barney turned the tape over to police and refused to take the child to Kaufusi, prompting him to file a motion for full custody.
Back in court three weeks later, Elliott appointed attorney Christopher Tilman to serve as the child's guardian ad litem and represent her interests.
Although the judge denied Kaufusi's motion, she granted his request to remove the girl from Barney's custody and place her in the home of Roy and Lela Evans, distant relatives of Kaufusi's.
Barney had to give up her child that day. She said she knew nothing about the Evans family, and neither did Elliott, who limited both parents to supervised visits with their daughter.
The mother said she soon learned that Roy and Lela Evans both worked and that they had seven children. She also learned that her daughter slept on a couch in the family's Henderson home.
Barney hired a private investigator, who conducted surveillance at the Evans home for three days in mid-February 2004. In an affidavit, the investigator offered his opinion that Kaufusi had spent those days at the Evans home "in the company of his daughter."
In an emergency motion to protect the child's safety, Barney claimed her ex-husband had unrestricted and unlimited access to his daughter at the Evans home, "while denying this right to her mother."
In an interview last week, Roy Evans said the girl and her father never were alone at his home.
"If I wasn't around, my mom was around," he said.
Barney said Tilman never went to the home to visit the child.
Tilman could not be reached for comment on this story. Last year, Tilman was named in a Review-Journal story that called into question the billing practices of court-appointed attorneys.
The newspaper reported that Tilman had billed the county for more hours than a day contains on numerous occasions in 2006. In interviews, Tilman said he did not know he had overbilled and speculated that the work he reported doing might have included other attorneys helping him.
Between April 2004 and October 2005, as a result of a new court order, Barney's daughter spent half of each week with the Evanses and the other half with Barney's parents.
The girl's mother and father were to continue having only supervised visits with her.

AN 'UNSUITABLE' HOME

Barney said her attorney sought Tilman's assistance in early December 2004 when it appeared Kaufusi was planning to have an unsupervised visit with the child, but Tilman failed to respond to numerous phone calls from Barney's attorney.
On her lawyer's advice, Barney and her mother refused to turn the child over to Kaufusi on Dec. 4, 2004.
At a February 2005 hearing, Elliott held Barney in contempt of court for doing so and sentenced her to 48 hours in jail.
"It was just unbelievable," Barney recalled. "I was in shock."
Barney said Tilman met with her daughter for the first time in nearly 16 months on July 22, 2005. Four days later, Barney filed a motion seeking his removal from the case.
Tilman was allowed to withdraw at a September 2005 hearing, and Elliott appointed attorney Jeanne Winkler as his replacement.
According to a lawsuit Barney would later file against Tilman and others, Winkler met with the child at both homes and reported at an October 2005 hearing that the Evans home was an unsuitable placement for the girl. Winkler also said the child had "disclosed details relating to instances of sexual abuse perpetrated by Kaufusi while she was staying" at the Evans home, according to the lawsuit.
Elliott then placed the child full time in the home of Barney's parents.
In the interview last week, Roy Evans adamantly defended Kaufusi and said he still believes the man never abused his child. He accused Barney of coaching her daughter to make incriminating statements about Kaufusi, and added, "It's a racial thing."
"The only reason she married Sonny was to spite her family," he said.
Winkler's law license was suspended earlier this year amid allegations that she misappropriated funds from her attorney-client trust account.
Despite those allegations, Barney said she will always be grateful to Winkler for her efforts to ensure her daughter's safety.

PEDOPHILE ISSUES

Elliott appointed another psychologist, Louis Mortillaro, to evaluate the allegations that Kaufusi was sexually abusing his daughter, and his testing was completed in March 2006. After receiving his report, which remains confidential, Elliott ordered Kaufusi to undergo counseling with an expert in pedophile issues and returned the child to her mother's custody.
Mortillaro previously had instructed that the child be seen by psychologist Melissa Kalodner. In May 2006, Kalodner wrote Elliott a letter in which she urged the judge to end Kaufusi's visitation with his daughter. Kalodner had been treating the child for 16 months.
"The bottom line and the main reason for my writing of this letter is to let you know that this six-year-old girl's mental disorders will not be mended any time soon if she is continuously forced to visit the man who violently raped her and threatened to kill her mother and herself," the psychologist wrote.
According to the letter, the girl had "begged" Kalodner to make the visits with her father stop "because she is scared of him."
Elliott heeded the psychologist's warning. The next day, the judge put an end to Kaufusi's visitation and ordered him to remain 12 feet away from all children.
At a deposition in June 2006, Kaufusi was questioned by Barney's lawyers about the sexual abuse allegations, and he repeatedly denied molesting his daughter. He also denied that he had threatened to kill her and her mother if the child told anyone that he had abused her.
"The sexual abuse that you guys made lies about is very offensive," said Kaufusi, who also expressed his belief that Barney was "coaching" their daughter to make the allegations.
The next day, Elliott had an emergency hearing after receiving evidence indicating that Kaufusi had been intercepting e-mail messages between Barney and her lawyers.
Elliott ordered Kaufusi to turn over his computer by 5 p.m. He did, but he never returned to court, and the judge issued a warrant for his arrest for contempt of court. The warrant remains active, and Barney has evidence that Kaufusi fled to Tonga, an archipelago in the South Pacific Ocean.
Review-Journal records show that Kaufusi worked part time for the newspaper's circulation department from late March 2006 until he resigned in mid-June 2006.
At the May 2006 hearing, Kaufusi was served in court with a legal document known as "requests for admission."
The document, prepared on Barney's behalf in preparation for the custody trial, asked Kaufusi to admit that he had committed various sexual acts with his daughter. It also asked him to admit that two other men had sexually molested the girl at his Las Vegas apartment.
Kaufusi, the defendant in the Family Court case, was advised in court that his responses were due in 30 days and that his failure to respond would mean that the statements would be considered admissions.
In July 2006, after Kaufusi failed to respond, a court order was entered declaring that Barney's requests "shall be deemed admissions by defendant."
Requests for admission are used during the discovery process in civil cases, and experts said it is unlikely that the court order based on Kaufusi's failure to respond could be used in the prosecution of a criminal case. Kaufusi has never faced criminal charges related to the sexual assault allegations.
In January 2007, Elliott terminated his parental rights, almost five years after Barney first raised the sexual abuse allegations.
Roy Evans, who now has eight children, said Kaufusi will speak with his daughter again after she turns 18.
"He doesn't have money to fight it in court," Roy Evans said.
He said he e-mails Kaufusi "once in a while." Asked whether he knows the man's whereabouts, he replied, "I do, but I'm not going to tell you."

POLICE INVESTIGATE

Lt. Ray Steiber, who heads the Metropolitan Police Department's special victims unit, said records show that detectives conducted three investigations of Kaufusi, and all were closed because of insufficient evidence.
"There was no probable cause to believe a crime had been committed by the father against this little girl," said Steiber, who was not involved in the investigations.
None of the detectives involved in those investigations remains in his unit, and Steiber said he knew nothing about the investigations before the Review-Journal asked him to review the records.
He said police have received no new information since the last investigation was closed in July 2005, and he was not aware of Kalodner's May 2006 letter, which said the child had told the psychologist that her father had "brutally vaginally and anally raped her on many different occasions."
With those types of allegations, Steiber said, "it's fair to say that there would be physical evidence."
Barney said her daughter underwent two medical exams that revealed no evidence of sexual assault, but she did not take the child for any exams during the 16-month period when Kalodner was treating her.
"I was afraid of getting in trouble, because they crucified me in court for having done the two exams," said Barney, noting that a police detective had requested the first exam.
A 2004 officer's report indicates that police had been informed about the results of the polygraph exams Slay had conducted.

JUDGE: EVERYBODY FOOLED

Elliott said she still doesn't know the truth behind the sexual abuse allegations because the Family Court custody case never went to trial and "was never decided on the merits."
The judge said she can draw no conclusions from Kaufusi's disappearance. He could have left because he was guilty or because he was tired of the litigation, she said.
"Conflict is painful for people," said the judge, who referred to Barney as a "disgruntled litigant."
Elliott said litigants often attack "neutrals" in a case when they can't punish their opponents: "It's human nature to feel that there are loose ends."
However, Elliott had a different tone in court on July 6, 2006, when she said Kaufusi had fooled everybody involved in the case and that she, as a judge, had "been played."
"I'm not saying that he's a guilty man in terms of the allegations in a criminal manner, but they have a right to pursue that," Elliott said from the bench. "But what he isn't is he is not here, and if he's not here, why not? If he is so innocent, why is he not here in court?"
"Because he believes the tide has turned against him and now he is being railroaded," answered his attorney, Phil Beuth. "And that's what he's expressed to me."
Elliott unsealed the case at that hearing and lifted a gag order she had placed on the parties.
Neither Beuth nor attorney Carol Menninger, who previously represented Kaufusi, responded to messages seeking comment for this story.

COMPLAINTS FILED

Barney and her lawyers, brother Tony and Lisa Rasmussen, filed an ethics complaint against Elliott with the Judicial Discipline Commission in June 2005. The complaint, which is confidential, is still pending.
"I think when the court fails to protect the child, it's really unforgiveable," Rasmussen said.
She said Elliott made a "snap decision" early in the case and refused to back down from it. The lawyer argued that Elliott "believed everything Kaufusi said, and she didn't ever believe anything that Tiffany said."
Elliott said no one from the discipline commission has interviewed her about the ethics complaint.
Barney argues that Elliott wanted to believe she was lying about the sexual abuse and, in turn, alienating her daughter from Kaufusi.
"It's easier to say it's not happening than to do a thorough investigation and find out that it is," Barney said.
She said Elliott "almost made it seem like parental alienation was worse than sexual abuse."
Elliott, who also is a licensed marriage and family therapist, said she doesn't think the two can be compared. "They each can uniquely damage a child very, very badly," she said.
Last year, Barney filed a lawsuit on her daughter's behalf against Slay, Holland and Tilman. Barney claims their negligence, combined with Elliott's bias in favor of Kaufusi, exposed her daughter to years of sexual assault.
Earlier this year, Barney filed a separate lawsuit against Kaufusi and Tilman. Judicial immunity prevented Barney from suing Elliott.
"Change has got to be made to protect the children in this court system," Barney said.
Holland declined to comment on Barney's lawsuit, which accused the psychologist of conducting a "substandard and invalid evaluation."
District Judge David Barker has dismissed the claims against Holland and Slay. Although Barney is appealing the judge's ruling regarding Slay, she dropped her claims against Holland in January.
Barney said the Nevada Supreme Court previously has ruled that court-appointed psychologists are immune from liability, but the high court never has granted that protection to polygraph examiners.

POLYGRAPH EXAMS DEFENDED

In her lawsuit, Barney claims Slay had a conflict of interest when he tested her after having tested Kaufusi "concerning the same legal issue." She also claims Slay's "compound and complex questions" caused her to fail the exam.
During a recent interview at Slay's Maryland Parkway office, where he has conducted thousands of polygraph exams over the past three decades, he discussed the first lawsuit he has faced in connection with his lie-detection work.
Slay said Barney seemed to understand the questions he asked, and he denied that his exams of both parents amounted to a conflict of interest.
"I've done both sides many times," he said.
Sometimes both sides pass their tests, Slay said, and sometimes they both fail.
"It doesn't occur to me even remotely that having done the first test and reached a decision should in any way influence the decision of the test I'm about to do," he said.
Nevertheless, Slay said, when Barney arrived for her polygraph, he did not know about her connection to Kaufusi. Slay said Barney informed him that he had tested her ex-husband.
"She told me the outcome of his test," said Slay, who defended the validity of the results from both exams.
Barney said she had no idea Slay had previously tested Kaufusi.
According to the lawsuit, Kaufusi was ordered to take another polygraph exam with a different examiner in July 2005, and he failed that test.

A DAUGHTER RECOVERS

Barney said her daughter, who recently turned 9, is doing "remarkably well" now but still fears her father will return.
"I think she thinks I can't protect her, and that's her fear, her big fear," Barney said. "And maybe I can't."
The two live in a guest house behind the home of Barney's parents in northwest Las Vegas.
Barney gives credit to God for the "little miracles" that happened in her case. "I think the Lord was watching out for my daughter," she said. "I think he wanted her to have a good life."
Barney, who still carries the guilt of forcing her daughter to visit Kaufusi for so many years, said everyone has their trials to endure. She believes the hardships she and her daughter have faced will make both of them appreciate goodness.
Barney also believes her daughter's experience will make her a positive force for other abused children.
"I truly believe that, and I think that's why she was saved," Barney said.
On a recent afternoon, Barney's daughter chomped on bubble gum while showing a visitor her collection of Webkinz stuffed animals. She also played some of the songs she has mastered on the piano. She told stories and frequently laughed.
Asked how she felt about her father, she paused and answered softly:
"I'm happy that he's gone. I feel more safe."

Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or 702-380-8135.