Judge: Kids Can Live With Child-Killer, For Now

VIDEO: Mother fights ruling allowing sons to live with woman who killed her own kids.PlayABC News
WATCH Custody Battle Involves Child Killer

Trisha Conlon's teenage son will continue to live with a woman who shot and killed her own daughters 20 years ago, ruled King County Superior Court Judge William Downing in Seattle today. The judge issued the order pending an investigation of the welfare of both of Conlon's children.

For the past month the highly publicized custody battle between Conlon and her ex-husband, John Cushing, has made headlines in Seattle, where Conlon is fighting to make sure her children don't spend time with her husband's first ex-wife, Kristine Cushing, who currently lives with him on Vashon Island in Washington.

Judge Downing granted Conlon's motion for a custody modification today, overturning a commissioner's earlier ruling that her custody arrangement with her ex-husband didn't need to be changed. Even so, in his decision Downing asked that a court-appointed child advocate investigate on behalf of the children's interests and submit a report within 90 days.

Conlon's son Sam, 13, typically lives with his father, John Cushing, as a result of the couple's unusual split custody arrangement, set up in 2005. Conlon's other son, Stephen, 14, usually lives with her.

At the end of the investigation, the court will decide if the teenagers' residential schedules ought to change.

But in the meantime, there will be no change in either of the kids' primary homes. The judge also asked that John Cushing remove any firearms or weapons from his house, stop residing with Kristine Cushing if she isn't in compliance with the recommendations of her treatment providers, and comply with any "safety plan" imposed by Child Protective Services.

"Trisha's primary concern is protecting the best interest of her children and the appointment of a Guardian Ad Litem [the court-appointed child advocate] is the first step in making sure her children are safe," Conlon's attorney, Todd DeVallance told ABCNews.com today.

Conlon has declined interview requests via her attorney.

"Judges in these child custody cases are often weighing very complex issues against each other. Here the commissioner was clearly impressed with the fact that the boys had a longstanding ongoing relationship with their father," said Dr. Paul Appelbaum, a professor of Psychiatry, Medicine, and Law at the Columbia University College of Physicians and Surgeons in New York. "The boy who lived with him appeared to be doing very well .... to upset that apple cart at a sensitive time in the life of two young teenagers carries risks of its own."

Cushing v. Conlon: A Brief History

Conlon, of Silverton, Ore., had two boys with her ex-husband, John Cushing, after they married in 1995. Nine years later they divorced, and arranged split custody of the boys, alternating holidays.

The arrangement was working out fine until Conlon says she discovered her teenage sons had been spending time with their father's first ex-wife, Kristine.

John Cushing, a retired Marine fighter pilot who works for Boeing, had been married to Kristine Cushing for 17 years.

The couple lived with their two young daughters in Laguna Niguel, Calif., where Cushing was a stay-at-home mom. She filed for divorce in 1991, and, in the same year, began taking Prozac and seeing a psychiatrist.

Then, at home one night in October, she killed their 4-year-old, Stephanie, and their 8-year-old, Amy, with a .38-caliber handgun.

John Cushing eventually got back together with Kristine Cushing, remarrying her in 2005, one year after divorcing Conlon. That same year California authorities ruled Kristine Cushing posed no risk to others.

After discovering Kristine Cushing was spending time with her sons, Conlon eventually hired an attorney to change their 2005 custody agreement so that her kids no longer have contact with Kristine Cushing.

Ideally, said attorney DeVallance, Conlon wants to make sure that if John Cushing continues to live with Kristine Cushing, his visitation will be in Oregon, where Conlon lives.

"And once it is confirmed she is no longer part of the children's lives he can have a regular visitation schedule in Washington," DeVallance told ABCNews.com.

It might sound like a reasonable request, but it is hard for a court to say whether Kristine Cushing could still pose a risk to the kids.

At the end of July, Conlon asked a court commissioner for a change in their custody agreement, but he ruled against Conlon, in part because her boys had not had any problems with Kristine Cushing, even after spending years in her company.

"She is a very sweet, quiet, gentle person," one of Kristine Cushing's fellow church parishioners told the Seattle Post-Intelligencer.

After the commissioner's ruling, Conlon took her case to a judge, and began speaking out to the media.

Judge Considers Whether Kristine Cushing Should Be Kept from Trisha Conlon's Sons

Judge Downing had been expected to rule during last Thursday's custody hearing.

Instead, he asked for more time to evaluate the case.

At the hearing, John Cushing's lawyer, Nancy Sorensen, argued there was no new evidence suggesting Kristine Cushing is a threat.

"The sole evidence presented by the mother is one tragic episode that happened 20 years ago," she said.

She added Conlon's son Sam, who is still living with John Cushing, is "excelling in all aspects."

Sorensen did not respond to an interview request from ABCNews.com.

Her current psychiatrist told the court she "does not present any danger to [Mr. Cushing's son]" and she "should have no problems living in the home with [him]."

Conlon's attorney, DeVallance, is of a different opinion, telling ABCNews.com, "If you harm children in any capacity, let alone killing children while they're sleeping -- their own children -- I don't care how long ago it was, there are consequences when you harm children and those consequences are for life."

The question remains: after decades of therapy, has Kristine Cushing healed?

"Could she recover? Sure -- people recover from mental illness all the time," said Stephen Morse, professor of law and psychiatry at the University of Pennsylvania, adding that some illnesses can also be successfully managed.

"The behavioral history is the really important thing -- how has she been behaving for the past 10 years."

That behavioral history is unclear.

Conlon says in September 2007 she received a call from a social worker for Children and Family Services in Washington's King County. It was then that she learned her ex-husband had remarried his first wife, and that her psychiatrist had "a significant concern regarding the boys' well being" and had reported the living arrangement to Child Protective Services.

As a result, Conlon says, Children and Family Services ordered Kristine not to reside with Sam, and to avoid all contact with him. In an email message to Conlon, John Cushing said he was complying with "the stipulations put in place by the King County CPS."

But, Conlon says she found out that September that her son Sam had been visiting Kristine Cushing and having meals with her. The following month, in October 2007, she says she discovered Kristine Cushing was still in the home.

"The question is whether the 'concerns' in 2007 were based on Kristine's current or recent mental state or conduct or whether they stemmed from the 1991 events," Morse said. "If there was no new basis, then everything still depends on inferences from the 1991 events."

The boys may have known her even longer than 2007.

According to court documents, John Cushing stated both Sam and Stephen had been introduced to Kristine Cushing in 2004 as "Miss M," and instructed not to mention her to Conlon.

Is Kristine Cushing Truly a Threat?

In an email to Trisha Conlon dated Oct. 25, 2007, John Cushing said his current wife was assessed by King County Mental Health Services in Seattle, who determined she is "no threat to herself or others." But Conlon states in court documents that Kristine Cushing was "released in March 2008 from the treatment to try to restabilize her mentally," suggesting she may have undergone another hospitalization.

When Conlon threatened to petition the court for a change in their custody agreement, John Cushing told her he and Kristine Cushing had already filed for divorce. Conlon dropped the matter, until she discovered in May of this year that they had been living together since 2008, the year their second divorce was finalized. In court documents Conlon calls the couple's divorce a "scam" meant to appease her and CPS.

A private investigator hired by Conlon's legal team found Kristine Cushing currently shares the same post office box as John Cushing.

Kristine Cushing's therapy records have not been disclosed in the court proceedings, and the opposing parties in the legal case differ on how she is doing. Conlon stated in court documents that Kristine is still under the care of a mental health professional, and "taking mind altering drug(s) with guns in the home." John Cushing has said Kristine Cushing is "doing well," and "enjoys life and loves me and my sons."

Complicating issues further, even if Conlon has been recently diagnosed with a psychiatric condition, it doesn't necessarily mean she would harm Conlon's sons.

"Mental disorder alone is not a good predictor of future violence," Morse said.

In addition, there are no complaints in the court documents obtained by ABCNews.com from either of Conlon's boys about Kristine Cushing.

A judge cannot make a decision simply based on doubt, Dr. Appelbaum said.

"There is some doubt about all of us. Nobody is ever beyond suspicion when it comes to the potential for violence."