The Family Law News Blog

Japan to sign Hague Convention on Child Abduction.

Link: Japan to sign Hague Convention on Child Abduction.

Fathers need to do more; mothers need to let them

Link: Get Ready to Step Up, Dad - washingtonpost.com.

A great article from the March 25 Washington Post about how mothers and fathers set up their parenting roles, and how fathers need to get, or take, more responsibility and equal dignity in dealing with children, especially as women gain equality or superiority in the workplace. It quotes some of the wisest experts out there.

Quote: "If the latter, some things are going to have to change, not the least of which are women's attitudes toward their men as parents. A male friend who has three children put it this way, "Women have a way of making a father feel like the paralegal to her lawyer.""

Mills v. McCartney: Entertaining but irrelevant

Link: Text of full judgment: Heather Mills v Sir Paul McCartney - Times Online.

I agree with the Mills opinion -- the idea of deserving to be supported "in the manner to which she has become accustomed" is not the law, and in fact it has not been the law in most people's lifetimes.

However, I worry that people who are facing divorce themselves will not realize that the facts which the judge dwelt on -- at least in the parts of the opinion that were extensively quoted in the press -- are completely irrelevant in nearly all divorces.

Lawyers and judges generally don't want to hear all that detail about how much the spouses supported each other's careers, how they treated each other, etc. Yes, it is technically part of the property-division law in my state, Virginia, and it occasionally comes up in a case, but you only bring it up when you are going to trial anyway on more important issues, since your client is testifying anyway. Nearly always, when it does come up, the judge says that he has carefully considered all those factors and finds that they are a wash, and the marital property will be divided 50-50.

It's not about the wife!

Some more perspective on Spitzer and the Mrs., from one of my gurus on such matters, Diane Sollee of smartmarriages.com, discussing another one of our mutual gurus, Dr. Frank Pittman:

"I didn't see the Today Show but dozens of you did and were appalled that Dr.
Laura was blaming the wife....I guess the thought is she didn't bake enough
pies or perform well enough in bed??  Or, maybe it's because she only gave
the Gov three daughters, no sons?  Puleeze!  As Frank Pittman points out, the
performance or non-performance of the wife doesn't predict squat when it
comes to infidelity.  Pittman says to look, instead, at what a man was
taught by his father and uncles (his tribe) about what it means to be a
successful man. Is a successful man the one with the most stuff including a
wife, kids and as many mistresses as he can afford and get away with?  Or,
is a real man one who is committed to his marriage, his family, his vows?
If you want to understand this whole Spitzer conundrum and what we can do
about it, I highly recommend you start with Frank's books: "Private Lies:
Infidelity & the Betrayal of Intimacy"; "Man Enough: Fathers, Sons & the
Search for Masculinity"; and, "Grow Up! How Taking Responsibility Can Make
You a Happy Adult" -- and IT his Smart Marriages keynote: "What Are Men for,
Anyway?"  You can order the keynote at 800-241-7785."

Columnist: Stop pressuring wronged wives to divorce.

Maggie Gallagher came out with one of those observations that has been vaguely bothering me for years, but which I probably couldn't have articulated in a million years, in her column today, "SPITZER, STOP TORTURING THE WIFE" --

"Can we end the public practice of trying to shame these wives into divorcing their husbands?  There's a reason we feel impelled to do this these days. ... Because we no longer have any public punishments for adultery, we have turned wives into instruments of the public morality; if she doesn't punish him by divorcing him, he will go unpunished, which is intolerable.  (Without some punishment, won't all husbands stray?) I'm tired of this transference of the sins of the husband onto the wife. Leave the wives alone."

Judges' Bad "Intuitive Decision-Making" only partly mitigated by procedural requirements, adversary system

Link: Judges Flunk Story Problem Test, Showing Intuitive Decision-Making | ABA Journal - Law News Now.

A study of 295 Florida trial judges, reported in the ABA Journal online and forthcoming in the Cornell Law Review, showed they consistently used "intuitive", superficial, unreflective thought processes in (wrongly) answering three basic logic-testing questions, in the form of word problems typical of a high school algebra test or "brain teaser". None of the problems was long or difficult; each required just a moment's thought to realize that the easiest-sounding, off-the cuff answer was wrong and to then figure out the right answer.

The study recommends some antidotes to the problem:

• more time to deliberate
• written opinions explaining their decisions
• training
• peer review
• checklists

Some commenters likewise noted that the best remedy was the legal "adversary system"-- "If these were presented in an adversarial context, with an advocate for the right answer and an advocate for the wrong answer, I think they would get these simple questions right, pretty much every time."
Another said, "illustrates the importance of written opinions:  element-by-element analysis highlights errors before they become holdings."

Very true. But it's important to realize that we do not have a perfectly Adversary legal system. And many trial court judges never write opinions.

Many of the worst judicial decisions I have seen in my family law career are "sua sponte" afterthoughts by judges, which neither side ever asked for, and which thus did not get to be vetted by the adversary process of legal argument. These include rulings that cost people hundreds of thousands and cause years of extra litigation. How do they happen? Usually the judge gets an idea about something he thinks would be good for the family, and whips it out from under his robe at the end of the hearing. Other times it comes up when he is making a decision "on the papers" where no lawyers are around to argue with him.  Once a judge went through a whole trial applying the wrong statute of limitations to my evidence, and I never heard about it until her final ruling, because no opposing counsel had argued it. Also, the adversary system is muted in modern, therapeutic-minded, "problem-solving courts" such as family courts, juvenile courts, and drug courts, where judges, and various experts not identified with any party, take a lot of initiative (and make a lot of intuitive decisions, according to a critique of such courts in the latest Family Court Review (Jane M. Spinak, "Romancing the Court", 46 Fam. Ct. Rev. 258 (April 2008)).

Some commenters, who evidently have ethereally pure law practices that have nothing to do with money, said that judges don't need to know math anyway. Tell that to my client whose fee award was cut from 150K to 22K by a judge's post-trial "on the papers" math error. Or to the lawyer who would've gotten those fees.

Court: 1st Amendment protects blogging about divorce details

A Vermont family court has mostly reversed an order that censored a man's blog postings complaining about his wife's conduct in their divorce. The order had banned "all postings about plaintiff [wife] and issues in the parties' marriage."

Like it or not, government, in the form of family law and family courts, is deeply involved in families' lives. And therefore many people's complaints about what happens in their divorces are conceived as political complaints, of general public interest, and not just as private matters. Americans think they have a right to tell other Americans what their government is doing in their family; what unjust behavior by other family members government has tolerated or enabled; and what unimagined, un-American horrors might be visited on any of us.

People who do this usually do further harm to themselves and their families. They either were kind of weird all along or the things that are happening to them are making them a little crazy. Or completely crazy. But complaining to the general public about the government's mistreatment of you is what America is all about, and it's at the core of our Constitution.

And our family court system will only decrease its ability to understand and reform itself if it censors information and complaints about family law cases.

The earlier order is part of a disturbing trend of judges censoring people who complain publicly about court cases. Here in Virginia,  judges tried  to  have the bar discipline a prosecutor who accused them of ignoring the law in their handling of certain criminal cases. It's funny how people with considerable training in the Constitution sometimes see an exception to free speech rights where others see the kind of speech that the Founders were most interested in protecting.

Court says unwed father's rights natural, inherent

In this week's "Family Law Reporter," I  see that a high school classmate of mine,  a deputy county attorney in Missoula, Montana, was on the right, and winning, side of a significant criminal/family law case, State v. Young, at http://pub.bna.com/fl/060382.pdf.

The court opinion says that an unwed father's rights as a parent are natural rights, not just rights granted by a court. In this case, the mother disappeared in order to keep the father out of the child's life. At that time, the parents were not married and there had not been a formal establishment of paternity under the paternity statute. Therefore, when she was caught and prosecuted, the mother argued that the father had had no rights that she violated at the time when she disappeared.

A Good Choice: Collaborative Divorce

If you or anyone you care about is contemplating divorce, or going through one, read this story, and buy the book. This is an entirely new way of handling the end of a marriage or relationship.

read more | digg story

Recent media about collaborative divorce and the ABA ethics opinion

Boston collaborative lawyer David Hoffman has an op-ed in today's Christian Science Monitor about collaborative law and the new ABA Ethics Opinion approving of it.

Ontario social worker Gary Direnfeld has posted a short television interview about collaborative divorce.

You can't perform a legally binding marriage with an online fake ordination: So what else is new?

Yesterday's Philadelphia Inquirer (see the continuation of this post, courtesy of the Smart Marriages listserv) has one of those stories that family lawyers notice so often in the media, that takes something that has been going on for decades in the courts and labels it an alarming new trend. This time it's that states don't recognize marriages performed by people with mail-order fake ordinations as clergy. That has always been the rule, but now many of them are online ordinations instead of mail-order ones, and supposedly that's somehow different.

This is an area where the line between church and state is very narrow and twisty, but it has been in place for 30 or 40 years and has been very stable. It has been articulated in case law and is laid out in statutes whose wording varies between states, but basically, if something that looks and acts like a religion, with enough people exclusively involved in it even to have a wedding, names you some kind of leader and authorizes you to perform marriages, then the state authorizes it, too, automatically.

Some states, like my own, let people apply for one-time authorization to perform the marriage of friends or relatives. Both my father and I have had the great honor and responsibility of doing this, with court orders in hand. Conversely, even the great pastor and musician Andrae Crouch once caused a legal snafu here in my hometown of Arlington, Va. because he is an out-of-state clergyman and he didn't get a court order before marrying four couples at a shopping mall.

ABA Ethics Opinion Endorses Collaborative Divorce

The American Bar Association has issued an Ethics Opinion endorsing Collaborative Practice (a.k.a. Collaborative Law, Collaborative Dispute Resolution, or Collaborative Divorce), and responding to the concerns raised by the Colorado bar association opinion that got so much attention in the media and on this blog.

The opinion is available via the ABA web site, but right now it can be viewed and downloaded only by ABA members. At some point in the near future nonmembers will also be able to download it for a small fee.

South Carolina passes UCCJEA

June 11, 2007

South Carolina has become the 46 state to adopt important state legislation which is part of the continuing effort to put an end to child kidnapping by warring parents. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), introduced as SB 13 by Senator Robert W. “Wes” Hayes, was signed into law by Governor Mark Sanford on June 8.

The UCCJEA, promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL), is now the law in every state except Massachusetts, Missouri, New Hampshire, and Vermont The UCCJEA is an important step forward in establishing clarity and predictability with regard to interstate custody rules, and resolves several significant jurisdictional questions that arose over the years concerning the Uniform Child Custody Jurisdiction Act (UCCJA) of 1968. The UCCJA was designed to prevent a fairly common legal standoff of the day, whereby one parent gained legal custody of a child in one state, and the other parent managed to take the child to a "haven state"; in search of a court willing to change the initial lawful custody order. Under the UCCJEA, this kind of conduct is no longer legal. The UCCJEA harmonizes federal law and developments in case law by prioritizing home state jurisdiction. Additionally, the UCCJEA sets forth the concept of continuing exclusive jurisdiction. The order of a state with continuing exclusive jurisdiction is entitled to be enforced in every other state. No other state can modify the order unless the first state relinquishes jurisdiction. These changes bring certainty to custody and visitation determinations within South Carolina. Moreover, the UCCJEA provides enforcement mechanisms which prevents kidnappers from hiding behind divergent state laws and ensures that missing children return home even if they cross state lines. The act also expands protections for victims of domestic violence. Additionally, the act establishes procedures for interstate enforcement of custody orders including registration, expedited enforcement, and the use of other civil remedies by prosecutors and law enforcement. In this and other respects, the UCCJEA accomplishes for custody and visitation determinations the same certainty that has occurred in interstate child support law with the promulgation of the Uniform Interstate Family Support Act, now the law in every jurisdiction.

The Uniform Child Abduction Prevention Act (UCAPA), a companion bill to UCCJEA, was also introduced in South Carolina as SB 486. The UCAPA expands abduction preventions found in the UCCJEA to all custody cases. The prevention mechanisms under the UCCJEA apply only to post-decree cases. The UCAPA was enacted in six states during the 2007 legislative season: Nebraska, South Dakota, Utah, Kansas, Colorado, and Nevada.

With South Carolina's enactment of the UCCJEA, only 4 states and Puerto Rico remain as jurisdictions within the United States that do not have the UCCJEA in effect. Those states are Missouri, New Hampshire, Vermont, and Massachusetts. The UCCJEA was introduced to the Missouri Legislature in the 2007 session, but was caught up in a busy session.

New group says immigration laws tear families apart

Link: New group says immigration laws tear families apart

Alec Baldwin Was Right

I don't know the rights and wrongs of the Baldwin family's private life, but Alec Baldwin's explosion sounded like several dedicated, self-sacrificing long-suffering clients I've represented over the years, who continue to do their damndest to be there for their kids as a parent even when the children go years on end without letting the parent have a normal visit or conversation with them. These are parents who aren't even accused of any kind of abuse; their only crime is leaving, or being left by, their ex.

Hank Stuever in the Washington Post Magazine has the best remarks I've seen about Baldwin:

You can't yell at them anymore? Even if it's the only way to get them to look up from what their petulant little thumbs are texting? With language that, although intemperate, is still cleaner than most of what they've heard on YouTube? Well, this explains a lot.
...
I don't know about your childhood, but in mine, you could get away with about two minutes of primadonnitis before getting screamed at ...

[Here's the rest of his article]

How social science is used and abused

The January, 2007 Family Court Review, Vol 45, Issue 1 has some very good articles about how social science is used and misused in the courts and in policymaking:

INTRODUCING PERSPECTIVES IN FAMILY LAW AND SOCIAL SCIENCE RESEARCH Janet R. Johnston pages 15–21

 

ASSESSING AND COMMUNICATING SOCIAL SCIENCE INFORMATION IN FAMILY AND CHILD JUDICIAL SETTINGS: STANDARDS FOR JUDGES AND ALLIED PROFESSIONALS -- Robert F. Kelly and Sarah H. Ramsey pages 22–41     *

 

THE POLITICS OF RESEARCH: THE USE, ABUSE, AND MISUSE OF SOCIAL SCIENCE DATA—THE CASES OF INTIMATE PARTNER VIOLENCE -- Richard J. Gelles pages 42–51

 

SOCIAL SCIENCE RESEARCH AND SOCIAL POLICY: BRIDGING THE GAP -- Kyle D. Pruett pages 52–57

IACP official response to Colorado ethics attack

The International Academy of Collaborative Professionals has issued their official response to the recent Colorado informal ethics opinion that said it was unethical to practice collaborative dispute resolution using a "four-way" agreement signed by clients and lawyers.

[NOTE: IACP Director Talia Katz explained a few days later that this was only and  "abbreviated portion of a longer and more definitive memorandum on
the ethics of collaborative practice. This initial piece was made available for
the convenience of collaborative practitioners and intended only to answer
some of the more pressing questions regarding the implications of the
Colorado opinion. However, it is just the beginning of our response. Stay tuned -
much more to follow..."

Court in India issues injunction against U.S. divorce case

Link: International Family Law News & Analysis: Court in India issues injunction against U.S. divorce case.

(Not that it's necessarily binding in the U.S.)

Hiring hit man to kill husband doesn't affect alimony

Just like the recent alimony-sex-change story, this one from Missouri is not really legal news, because the result is totally unexceptional -- legally, that is. But I must admit that even this lawyer's cold heart and hard head grow a little uneasy as I expound on why nothing, even attempted murder, can be allowed to undo the deal a couple makes in their Property Settlement Agreement. [Full court opinion here.]

Now, if she had done this and been caught before alimony was determined in the first place, it could have prevented or decreased the alimony in some states, like my own state of Virginia, that consider "fault" conduct when making economic decisions.

Speedy New York Divorce Needs Proof of Fault :: WRAL.com

An AP story that's being reprinted all over, for example, here, says:

"New York is the only state that won't allow the speedy dissolution of a marriage without proof that one spouse is somehow at fault, experts say."

Not exactly. New York allows no-fault divorce after one year of living apart in a legal separation, and the separation can be procured either by mutual consent of both parties, or by court order on fault grounds.

But several other states also require one year of separation for a no-fault divorce, although  none of those states absolutely requires fault or mutal consent in order to get a divorce. In Maryland and Pennsylvania, the wait is two years if there is no mutual consent, and one year if there is. They don't require a formal separation order or agreement in order to start the one-year clock, though.

Arkansas probably has the longest minimum waiting time for a consensual no-fault divorce: 18 months, regardless of mutual consent.