Raleigh, NC lawyer Lee Rosen has been THE cutting-edge lawyer for every new innovation in law practice and firm management for the past 20 years, at least in my field, family law. When a friend of mine got a job with him in the late '90s, she wasn't given her own office or cubicle -- no one was. Instead, the firm had different areas for doing different kinds of work, like a hospital. It was exactly what she needed, as someone who, like many of us, had trouble focusing and staying on task without some social and environmental reinforcement. Already, back then, The Rosen Firm had a form on its web site where you could check boxes for all the different issues in your family law case and get a quote for the firm's flat fee, a billing practice that eliminates most of the worry, friction, heartache and regret from the attorney-client relationship. Later I got a notice that the firm was closing its offices and replacing them with home/mobile offices and small conference centers. If it had been anyone else, it would have been a self-parodying last hurrah of a quickly-disappearing business, but since it was from Lee, I knew it was the wave of the future -- indeed, a long-overdue adaptation to the present. Lee -- still the owner of a relatively large law firm for our field -- posted a picture of his office -- his Macbook Air on a small folding bookcase in his kitchen. Then I heard he was getting rid of all his books via a service that scans them for a flat fee of a dollar apiece. Then most of the stuff in his house. Then his house, following the same principle he already applied to office equipment, software, data storage, and most clerical services: why own when you can rent, why lease when you can month-to month, why that when you can on-demand? Today he's more prominent as a firm management consultant, trainer and speaker. He has always kept a hawk's eye on customer service, and on what everything we do looks and feels like to potential clients, and what they expect from other businesses they deal with.
Anyhow, today's issue of Divorce Discourse, Lee's longtime blog/newsletter, is titled "How Family Law Is Like Pornography". Its news was shocking and frustrating, at least to divorce lawyers: A message from Google's web advertising service said that "interest-based" banner/sidebar advertising would no longer include several sensitive subjects, including divorce. A sobering reminder of where family law stands.
And yet, when you think about it, it makes sense. These are ads that tell you, and anyone looking at your computer, what you have been searching for and reading. And of course it's not really censorship, that's just a shorthand, in a twitter-length headline, for a decision by a private company about who to do business with and what unsolicited images and words to stick into people's computer screens.
This also explains how to legally be your own grandpa.
In a case that has gone on for years now, a couple found a sperm donor on craigslist instead of going to a sperm bank or fertility clinic. States have laws that say sperm donors won't be considered fathers, but they require several procedures, standards and safeguards, and a licensed clinic must be responsible for the procedure.
Some media coverage has perpetuated the inhumane, patriarchal, but still widespread notions that children are property to be bought and sold by contract, and that child support is a trade-off for visitation. Fox's WHTI TV 10 in Terre Haute, Indiana says in today's story on the case, "Kansas sperm donor fights back after state forces him to pay child support":
"'Angie and Jennifer are the parents,' Marotta said. The state of Kansas won’t accept that. Despite the fact that the lesbian couple and Marotta signed a contract giving up all parental rights to the child."
"According to Marotta his lawyer has only found one other case in the United States where this has happened, but in that case the sperm donor had changed his mind and requested visitation with the child. Something Marotta’s never wanted, or asked for."
The social services spokesperson quoted in the article has it exactly right:
“If an individual wants to have the protections of a sperm donor, he needs to follow the law. ... Parental rights can not be signed away without following adoption laws.
And that's exactly what those involved should have done, at least after Kansas's Supreme Court upheld a trial court decision recognizing gay co-parenthood in February of 2013. The Court's opinion in that case shows how it differs from this one:
The coparenting agreement before us cannot be construed as a prohibited sale of the children because the biological mother retains her parental duties and responsibilities. The agreement is not injurious to the public because it provides the children with the resources of two persons, rather than leaving them as the fatherless children of an artificially inseminated mother.
I am for freedom of contract and against government interference, far more than almost anyone else I know. But your freedom of contract ends where your children's fundamental rights and interests begin. Including the child's right to parents, recognized in the UN Convention on the Rights of the Child.* Because of that, courts and other government agencies are in charge of investigating and approving adoptions. That authority is exercised pretty minimally in cases that are based on mutual consent, particularly where one biological parent remains a parent, but it is still crucial for the government to have a role in any change so fundamental as changing who a person's parents are. This gives the state and judges a chance to oversee the process, to verify the parents' informed consent, to step in when it looks like the adoption is not in the child's interests, and to have uniform official records confirming legal parent-child relationships.
*Relevant Parts of the United Nations Convention on the Rights of the Child:
The family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community." (CRC Preamble)
The child ... shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents. (CRC Art. 7)
States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. (CRC Art. 8(1))
States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. (CRC Art. 9(1))
States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests. (CRC Art. 9(3))
States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. (CRC Art. 14(2))
Jennifer Weiner is a first-rate writer, bestselling novelist, old-style newspaper journalist and Princeton grad who gets dismissed as "chick lit" because she chooses to write about something that was long one of the main subjects of Literature but is now considered "Romance" or "Young Adult" -- the mating and marriage habits of young-to-middle-aged people who are fairly normal, at least compared to most characters in Literature. For those of us who aren't up for one of her novels right now, she shows off what she can do in:
It's really refreshing to hear Atlanta divorce lawyer Randy Kessler say why he thinks mediation is "wonderful" and needed in almost every family law case that is in contested litigation or heading for it. ("High-Conflict Cases: Q&A with Randall Kessler" on familylawyermagazine.com, 9/1/15)
For me, just like for Randy, actually working as a neutral Mediator is just the tip of the iceberg. I act as a mediator in family law cases, but almost as often, I represent one person as their lawyer in a mediation that involves lawyers as well as clients and the neutral mediator. Even more often, I counsel clients who are in mediation on their own. I help them review their written agreements and their personal and legal situations before they finally sign a contract settling all the issues between them and their ex. But far more often than that, I help people through divorce and other family disputes as a negotiator and drafter, as a litigator, or in Collaborative Law, which combines the conflict-resolving techniques of mediation with the things that mediators cannot provide but lawyers must: complete, frank legal advice; loyalty and fidelity to the client's goals and interests; and advocacy which makes sure that clients' views are heard, that their interests and concerns are carefully and adequately considered in the process, and that before making any final decision, they have enough time, information, advice, and are in a mental and emotional state to understand and make such life-changing decisions safely.
I'm not a touchy-feely "new age" or "granola" mediator or lawyer, so I have always really liked Randy's style. He mentions one virtue of mediation that I always thought was necessary and should be recognized and developed, but which went against the purist therapeutic, facilitative, non-directive ideal of mediation which I was trained in over 20 years ago. Many people in disputes want, and need, to make their case for justice, as they see it, to someone who represents their community (however they define it), and/or an authority figure, or at least to someone who will understand their situation, and whom the other party will have to respect and listen to. I always thought of this aspect as "A Mediator is a Person in Your Neighborhood."
Here's the mediation part of Randy's interview:
Let’s be clear that I'm a litigator who also mediates. I did get trained 20 years ago as a mediator and I do serve a few times a year as a mediator, but I'm an advocate and often hired because people think they need to litigate.
Sooner or later, people will understand that mediation is almost inevitable in any divorce case. It's a wonderful process and it's almost necessary in every case, except when there’s domestic violence or it's clear mediation won't work. It is worth trying for so many reasons and that's why I recently wrote a book on mediation and how I feel about it. If done properly, mediation gives you a chance to settle the case, save the aggravation of litigation, and prevents you from hearing the unkind words of your spouse on the witness stand that will ring in your mind forever. It’s invaluable if you can solve the case without litigation.
There are additional secondary and tertiary benefits to mediation. You may learn something about your opponent's case that makes you re-evaluate your case, or you may learn something about your own client and realize they can't stand up to the other side. For example, if your client falls apart when the other side is present, you cannot go to trial. You may learn that the other lawyer is brilliant or not so brilliant. Maybe the most important point is that mediation allows your client to have a brief catharsis and say the things that many people feel they need to go to court to be able to say. While it might not matter to the judge what your client’s ex-spouse did to them, it matters to the client and they may not be able or willing to settle the case until they've said it to somebody besides their attorney – somebody neutral like a mediator.
Mediation and litigation are not mutually exclusive. They’re part of the process. Most judges require or urge mediation if for no other reason than they know it will reduce their calendar. If half of the cases that go to mediation can settle, there are 50% fewer cases that the judge has to handle. More than 50% of cases that go to mediation in domestic cases do settle.
Mediation is a wonderful tool. When I first started, I remember lawyers saying that they didn’t need a mediator to help settle their cases; however, fewer clients felt like they'd had their chance to speak. I could talk about mediation for hours, which is why I wrote a book on it. ...
OK, not the whole truth, but the wholest truth I've ever seen in one place in a child custody case, is in the guardian ad litem report (via Michigan international family lawyer Jeanne Hannah; may no longer be online) These GAL reports are generally not made public, but any damage from that is minor compared to what all members of this family have inflicted on themselves for the past five years.
[UPDATE: The court later did exactly what the GAL report, and this blog post, suggested! Here's the latest: "Dad in bitter divorce wants mom blocked from contact", Detroit News, 9/9/15]
The GAL report DOES NOT recommend jailing the children. It recommends a far simpler and more direct solution: immediately giving the father visitation with each of them separately, one on one. Supervised, but reluctantly and only to protect the father from accusations. The court in this case has imposed endless￼ shows of governmental force and therapy on these children, who were not impressed by any of it. But in my experience, what really works is placing them directly with the other parent, and in many cases, changing custody permanently. Many children in divorces will go to extremes to do what they think pleases and aligns with the parent who appears to have the power and control. And when that control changes, they can turn on a dime.
Almost every experienced family lawyer has had several cases like this. Something to remember when we are told that the government and society should not care whether a marriage can be saved.
(There has been a lot of very informed discussion on family lawyers' discussion forums, including very prominent leaders in the profession, and they almost all sympathize with the father although they don't support jailing the kids. I "red shirted" this posting while I got permission to quote some of the best comments from the lawyers' listserv. But that effort has languished what with new family law news coming along, and a whole lot of work on an upcoming custody trial, an appeal brief, a book revision and preparing materials for a continuing-ed seminar. I hope to post them in the future the next time this is in the news.)
Meanwhile, Maryland family lawyer and family law professor Dawn Elaine Bowie, an early local advocate of Collaborative Divorce, makes a similar point, but not exactly the same, in wonderfully brief and to-the point fashion:
By Dawn Elaine Bowie, Owner and Managing Partner, Maryland Family Law Firm, L.L.C. -- Sep 6, 2015
"This is not actually unusual in family law." That's the most typical thing we say on this blog, and the main reason I started it. To give the public and journalists background whenever -- and ideally before -- the media blows up with some story that essentially says, "In a shocking and unprecedented development which must be caused by corruption, politics or ideology, a mother lost 'full custody'! / was barred from moving her baby across the country / an American citizen was forced to return her children to the foreign country where they were born and raised! / a soldier was forced to share his pension with his slutty ex! / a child was forced to spend time in the care of his father when she could instead be in quality day care! / a white woman was jailed for disobeying a court order! / an orphaned child was sent to his non-custodial father instead of the heirs whom the mother left custody to in her will!"
What this blog usually says in such cases is no, that's actually routine and what happened in this case was for reasons that we in the family law field have come to accept as normal. So if you don't like it, you should realize that the problem is not with one judge who is corrupt, or anti-female or anti-male, rather, this is just one of thousands of similar cases of widespread suffering and irrepressible conflict that our current system, and perhaps any system of widespread family breakup, imposes on men AND women! And children.
We've also been able to say when a court decision truly is a wrongheaded outlier, such as the one forcing skier Bode Miller's ex-girlfriend to move across the country to give birth.
The case that's breaking the internet today is a little bit of both kinds:
By JOE PATRICE on abovethelaw.com, 9/2/15
The court opinion in the case includes two good and routine reasons to dismiss both parties' dueling divorce claims -- failure to prove the divorce grounds, and non-compliance with the court's procedural rules. Independently of the bad, creative, and publicity-attracting argument that the US Supreme Court has preempted any action on marriage by any other levels or branches of government.
"The Court is also compelled to comment upon its observations concerning the credibility and demeanor of thePlaintiff and Defendant. As noted when the Court announced its decision, this matter suffers from a bad case of excellent cross- examination. Perhaps the Court's observation as announced was less than delicate, but the fact that the parties were gutted like a fish during cross-examination is nonetheless accurate."
... "The only excuse for Plaintiff' s decision to be intimate with Defendant after she had executed her 'fear for her safety' verification page in support of the divorce and request for a TemporaryRestraining Order was 'I wanted to give him one more chance' to avoid the filing."
A bipartisan coalition, including Virginia's Rep. Robert Scott and Senate Judiciary Committee Chairman Chuck Grassley of Iowa, is working with the American Bar Association to update the 1974 Juvenile Justice and Delinquency Act to incorporate the latest scientific findings on juvenile psychology and development, crime prevention and community safety. A key feature is the end of jailing youth for "status offenses" -- things that would not be crimes if committed by adults -- and jailing them even temporarily with adult criminals.
The development of holistic, therapeutic juvenile courts over the past 100 years has done much good, but has also given them great power and discretion and little accountability. Children who merely misbehave can be sucked into the system, bring their whole families with them, get permanently defined as troubled youth, and be supervised so constantly that they can never get out of the legal system until they age out, having missed the opportunity to grow up. My father and law partner Richard Edelin Crouch sounded the alarm about this in the William & Mary Law Review 50 years ago, inspired by the Juvenile Court saga of his younger brother, the late Howard R. Crouch, which started when he idly walked by a restaurant, stuck his head in the door and yelled, "This place stinks!". The police were called, the social workers who followed in their wake declared the Crouches a "broken family" because their father had died, and it all helped inspire Richard's lifelong work for civil liberties and the rights of children, parents and families.
BY RHONDA MCMILLION @ abajournal.com, SEP 1, 2015
For divorce lawyers, the breach in the firewalls of Ashley Madison is like the breach in the walls of Jericho, when the trumpets did sound for seven go-rounds and the walls came tumbling down. Soon we'll be making money hand over fist.
It's also a reminder of how silly we are when we suppose that adultery is a contract that promises mutual silence and non-entanglement, even at a time when marriage itself is less of a real contract than ever. There are so many ways for the truth to get out.
For the rest of the story, as told by Northern Virginia family lawyer, bar leader, and tech-security guru Sharon Nelson, see:
Virginia appellate court expert J. Steven Emmert put his finger on the main reason I founded this blog:
"News reporting of a trial is often not a good indicator of how the case is actually going. You may have seen skeptical views of the evidence from this news story or that opinion writer, but trust me: you cannot evaluate the evidence in a case unless you watch the evidence and listen to the testimony, just as the jurors do. News reports sometimes don’t convey the main thrust of the evidence or the nuances of the testimony."
Emmert, "FOURTH CIRCUIT AFFIRMS McDONNELL’S CONVICTION", posted July 13, 2015.
Reading the fact summary in a court opinion can also be a lousy way to learn the real facts -- my father and law partner Richard Crouch used to say that when he read the opinion in one of his own cases, he could barely even recognize that it was the same case. One reason is, as Emmert writes about gov. Bob McDonnell's case:
"An appellate court has to set out the facts in the light most favorable to the lower-court winner. So if today’s factual recitation seems slanted in favor of the government, that’s both understandable and completely normal."
This is a short and great article. I think it is equally valid for any religious community and even for non-religious communities that fulfill some of the same mutual-support functions.
>As more single-led households emerge, the issue of free-range parenting becomes more evident. Issues abound, such as how old should a child be to walk to school alone, for how many blocks, or what age can children be left alone by themselves and for how long? We’ve even seen cases where parents have been threatened with jail if their child was overweight. Where is the line drawn between free-range parenting and neglect? Hear from our esteemed panel and special guest Lenore Skenazy, Founder, Free-Range Kids movement, as they discuss:
• Handling media-distorted perceptions of risk
• Vagueness of child neglect statues
• Using expert testimony
• 14th Amendment Due Process
Tuesday, July 7, 1:00 PM - 2:30 PM Eastern Time.
1.5 CLE credit hours depending on state
New York joined the rest of the U.S. and most of Europe a few years ago by allowing no-fault divorces that were unilateral -- not requiring a separation agreement on the economic and child-related details of the divorce -- and quick -- well, quick to start, anyway. Not so quick to finish. Now the divorce lawyers who pushed for the change are dumbfounded to discover that divorce in New York is starting to look exactly like divorce in the rest of the country, the New York Law Journal reports.
In the past, couples who lacked grounds for a divorce or didn't want to assert grounds had to work out an interim agreement and wait a year, said Lee Rosenberg, a partner at Saltzman Chetkof & Rosenberg in Garden City. Rosenberg, a fellow with the American Academy of Matrimonial Lawyers and former chairman of the Nassau County Bar Association Matrimonial Law Committee, said that while he is writing far fewer separation agreements now, he is seeing more divorces—and an inexplicable elevation in hostility. "There is a proliferation of litigation," Rosenberg said. "The amount of recalcitrance and expectations which are illegitimate, the amount of infighting amongst the litigants, and to some degree amongst counsel, is from my perspective at an all-time high."
The number divorces jumped from 49,816 in 2009 to 56,382 in 2010 and 58,556 in 2012* . "If there are more cases filed, there are more cases in the pipeline and less resources to deal with them. We have judges triple-booked for trials through the end of the summer," Rosenberg said.
"Data from the New York State Department of Health showed that in 2012, only one of every 32 divorces followed a separation agreement, compared with one in seven in the pre-no-fault era."
"Just a few years ago, separation agreements consistently preceded about 7 percent of divorces, providing a cost-effective way for unhappy couples to start dissolving their marriage and a steady source of income for matrimonial attorneys drawing up the agreements." Richard W. Cole of the Albany Law firm of Tully Rinckey said: "Previously, separation agreements were like a two-step divorce because you didn't want to fight over fault grounds. So, the parties would reach a separation agreement and wait out the year without having to prove cruel and inhuman treatment or any of those other unpleasant things that come up in divorce complaints."
Rosenberg said court system is being strained due to an influx of unrepresented litigants and budgetary constraints. The Judiciary, which has been functioning for years with flat budgets, is seeking about a 2.5 percent increase from the Legislature for the fiscal year that begins April 1.
"It is extremely burdensome on the judiciary and court staff to try and manage these cases," Rosenberg said. "If there are more cases filed, there are more cases in the pipeline and less resources to deal with them. We have judges triple-booked for trials through the end of the summer."
Richmond lawyer and professor Rodney Johnson, who died last Wednesday, was one of my most important teachers, although only through his formbooks and continuing-education course. He and William & Mary Prof. John E. Donaldson gave me an outstanding model for how the content and practice of law should intersect with real people’s lives, and how lawyers should interact with legislatures. They were my first instructors in drafting, a dark and mysterious art that I care about deeply. All of their teachings affect my techniques in family law and mediation just as much as in drafting wills, trusts, powers of attorney, etc.
I still use Prof. Johnson’s forms for my wills, etc., though I have painstakingly translated them into plainer English and have made them even more modular, and even easier to customize efficiently while avoiding common revision mistakes and unintended consequences – i.e., building on his inspiration to make them even more “Johnsonian”. Documents should have the legal effect that people intend, across time, but should also be worded so that non-lawyers understand them: two goals that can be mutually exclusive, and require great effort and imagination to combine. They must be built to withstand every possible unexpected sequence of events, continuing to carry out the client's wishes even though most clients don't want to think about the possibilities. To minimize the need to go to court, or even to lawyers, to figure out what they mean. And to discourage and survive the tampering of clients who know a little bit about the law and terminology, most of it wrong, and think they know everything.
I came into law school already believing in the ideal of the Common Law as explained by Bruno Leoni in Freedom and the Law: that the law, at its best, reflects the rules of life, adapted to local conditions, which most people find fair and workable when they actually have to apply them to resolve real disputes. And that therefore, common law, forged and evolving in jury trials and judges' decisions, is better than legislation, which can be made up in a vacuum and based on ideologies and grand systems that look impressive on paper but are irrelevant to real life. What I learned from Johnson, Donaldson, and other teachers did not change that, but gave me a solid idea of how to achieve those objectives in the legal system as it actually is. Legislation about wills, trusts etc. should work so as to provide "default" rules, and rules of interpretation, to carry out what most people would want, intend and mean if they thought about it and had a chance to spell it out expressly. But also make it easy for people with different wishes to put those into effect. Legislation can be an efficient way to tweak the common-law rules, and older statutes, to make the laws and personal documents do what most people directly affected by them most often want them to do. This can and should make litigation and adjudication less necessary. It should also make it less necessary for people to hire lawyers and make or update their wills, contracts, trusts, powers of attorney, etc. Lawyers should work with legislators, as Professors Johnson and Donaldson did, by telling them what kinds of laws make things easier, fairer and more peaceful for clients and families, and what laws have had, or might have, unintended consequences; not lobbying for any particular faction based on gender, age, class, or some other special interest, but to increase everyone's welfare by lubricating the system and reducing conflict and court involvement in people's lives. That's the kinds of laws and lobbying that we heard about in law school, and it is what I and others try to to when informing legislators about the pros and cons of family-law legislation, as well.
By ELLEN ROBERTSON Richmond Times-Dispatch