Previous month:
April 2018
Next month:
June 2018

New Virginia joint custody law probably changes nothing -- except maybe hearts and minds and expectations

"When parents split, new Virginia law will make it easier to get joint custody," Saleen Martin writes in the Virginian-Pilot. Looking at what the final version of the bill actually contains, I just don't see how it changes anything. But it is nice to think so, and if articles like Martin's change the public's idea of what is in the normal range, that can eventually affect litigants' and judges' attitudes, which already have changed a lot in that direction in the 22 years I've practiced.

The language added to the Code is: ""The court shall consider and may award joint legal, joint physical, or sole custody, and there shall be no presumption in favor of any form of custody."  

The original language of the proposal actually had some meat in it: "The consideration of "joint physical custody" means the court shall consider custody and visitation arrangements that are reasonably constructed to maximize a child's time with each parent to the greatest extent possible in the child's best interests."

For a real joint-custody reform, look at what Kentucky just enacted: 

"There shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child. If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child's welfare."

 


The reality behind "Divorce Corp."? Divorce lawyers differ.

 

 


Where did we get those old law books? It's quite a story. It starts when Washington was president ...

These law books have been handed down from lawyer to lawyer, including:

Richard_Henry_Lee_at_Nat._Portrait_Gallery_IMG_4471
Richard Henry Lee,
1732-1794. Justice of the Peace, Delegate to the Virginia House of Burgesses and the Continental Congress, signer and leading proponent of the Declaration of Independence, President of the Continental Congress 1784-85. But most importantly, he did more than anyone to ensure that a Bill of Rights was added to the Constitution. He bought and inscribed some of these books for his son, Francis Lightfoot Lee II, 1782-1850.

10_1139_003
John Janney,
1798-1872, was a Quaker, Unionist lawyer in Leesburg, Virginia. Among his many great works was the successful defense of free-born Underground Railroad conductor Leonard Grimes of Leesburg. He was almost President: in a pivotal Virginia Whig caucus, he tied with John Tyler on the first ballot for the 1840 vice-presidential nomination. Henry Clay said, “He is the first man in Virginia and has no superior in the United States.” He was a delegate to the 1851 Virginia Constitutional Convention, which tried to heal the breach between eastern and western Virginia, and President of the 1861 convention that he hoped would preserve the Union. It swung in favor of secession when Lincoln called for troops to march against the South. He then had the bitter honor of formally giving Robert E. Lee charge of Virginia’s forces.

“Squire” Lawrence Bowers, 1810-1901, was called that because he was a local magistrate in Boone’s Creek, Washington County, Tennessee. He helped found the Boone’s Creek Academy. Ralph Waldo Crouch, Sr. was his grandson.

 Matthew Harrison, 1822-1875, was a Leesburg lawyer, known in the legislature as “The Loudoun Lion”.

9792666_1485038965
The Rev. Alexander Broadnax Carrington,
1834-1912, from Charlotte Court House, Va., studied at Washington College and practiced law, but then chose the Presbyterian ministry. He was chaplain of the 37th Virginia Infantry under Stonewall Jackson. His final pastorate was at Greenwich Presbyterian Church in Nokesville, Va.

Landon C. Berkeley and James P. Harrison of Berkeley & Harrison were prominent Danville, Va. lawyers in the late 19th Century.

E.S. Oliver, owner of our French Code Napoleon, was a New Orleans lawyer and businessman in the mid-19th Century. He won Lavillebeuvre v. Cosgrove, about the right to reopen a boarded-up window through a common wall between two properties, under the French version of easement law, called “destination du père de famille.” He lost a case against his agent for letting a debtor pay him in Confederate money and investing it in Confederate bonds, because he didn’t complain when he heard about it, thinking he could “sit on his rights.”

Samuel Ferguson Beach, a Connecticut-born Alexandria lawyer, city councilman, and banker, lost a Northern Virginia congressional race in early 1861, then filed a challenge to election practices at Ball’s Crossroads, now Ballston. He was a leading member of the Constitutional Convention for the "Restored Government of Virginia," and unionist Northern Virginians elected him to Congress, which refused to seat him. He represented the Lee family of Arlington House, and other former Confederates, in Virginia and U.S. Supreme Court cases overturning the wartime seizure of their land. He won Colston v. Quander, upholding a Fairfax marriage that was illegal when made because it was between a slave and a free Negro. In other cases he argued for upholding a law preventing free blacks from testifying against whites, and that Congress’s return of Alexandria and present-day Arlington to Virginia was unconstitutional. He helped lead efforts to give black Virginians voting rights, and was appointed United States Attorney for Virginia. He was once co-counsel with future President James A. Garfield.

Samuel McCormick, 1849-1937, son of Justice Francis McCormick of Weehaw, briefly served in the Confederate Army, then studied law at the University of Virginia, where he owned these books, and then at Washington College, now Washington & Lee University. He was an honorary pallbearer for Robert E. Lee. He was a lawyer, farmer and businessman in Clarke County, Virginia, and was Court Clerk there from 1904 to 1912. 

Joseph J. Darlington, 1849-1920, was a leading Washington lawyer, citizen, prize pig breeder, and president of the City Orphan Asylum. He taught law at Georgetown University, and gave Ralph Waldo Crouch, Sr. a copy of his treatise on The Law of Personal Property. They were neighbors in Herndon and commuted together on the W&O.D. Railroad. A memorial to him at Judiciary Square has been criticized for its utter lack of resemblance to him. 20130705_150437

Ralph Waldo Crouch, Sr., 1881-1968, was youngest of ten children of a Baptist preacher, and his inheritance was one horse, which he sold to buy a ticket to Washington to seek his fortune. He did a variety of jobs, including streetcar conductor, and went to school at night while raising a growing family. He graduated from Georgetown Law in 1912, and was a tax lawyer and estate-tax auditor for the U.S. Government, commuting by train from his in-laws’ farm in Herndon. He later joined Crouch & Crouch, practicing in Arlington and Richmond. In retirement he moved back to the farm his great-grandparents had settled in the late 1700s in Boone’s Creek, Tennessee.

George Edelin, 1891-1938, Georgetown Law 1918, joined Julius Peyser’s general and administrative-law practice in Washington, D.C., where his early work included U.S. Supreme Court cases. He was a law professor at the University of Maryland.

George J. Schultz, 1885-1961, earned doctorates in law, medicine and divinity, and was a law professor at the University of Maryland. He married George Edelin’s brother’s widow. After his death his law books were entrusted to her goats, in his barn in Hyattstown, Maryland, until Richard Edelin Crouch retrieved a few of them.

John Walter Edelin, Jr., 1905-1980. His naval career started on President Coolidge’s yacht, where he assisted the President in an unannounced amphibious landing at George Washington’s birthplace, to fierce combat in the Battle of Peleliu, to the military governorship of the Palau Islands.

John W. Jackson, 1905-2006, was a legendary Arlington prosecutor and lawyer. He taught trial skills at the George Washington University Law School. In semi-retirement he was still an eminence and mentor to everyone in the office suite of John Perkins, where Richard Crouch had his first full-time law office after leaving Family Law Reporter.

Howard Wade Vesey, 1906-1969, was a Washington lawyer who later moved to Santa Barbara, California where he was also a real estate developer. He died in a plane crash and his wrongful death case ascended as high as the federal Ninth Circuit Court of Appeals.

Thomas Gordon Crouch, 1910-2004. His practice with Crouch & Crouch in Arlington and Richmond emphasized tax, business, probate and estate planning law. A dedicated hunter, fisherman, sailor and Shriner. He led the funding and organization of the restoration of his great-great grandfather Jesse Crouch’s log house.

Leroy E. Batchelor, 1926-2012, served in World War II, including the Battle of Iwo Jima, and the Korean War. He was a criminal defense and general practitioner in Arlington. He represented Arlington County in a school desegregation case. He once argued before the U.S. Supreme Court. An accomplished seaman and boating instructor, he retired at 62. He and his wife spent much of the next two decades at sea.

Jack L. Melnick, 1935-2013, was an Arlington/Falls Church legislator, prosecutor, civic leader and lawyer. In the legislature, he led the effort for a crime victims’ compensation fund. He taught at George Washington University Law School. He restored and drove a Model A Ford. His probate and elder law practice continues with his son, Paul Melnick.

The Hon. W. Richard Walton, Sr., b. 1938, is a civic leader, former prosecutor and retired Common Pleas Court Judge in Ironton, Ohio.

Thomas W. Murtaugh had a general, criminal, juvenile and family-law practice in Leesburg, Virginia. He represented people from all walks of life and excelled at presenting the human reality of his cases in everyday terms. He was gentlemanly and kindly to a fault. Richard and John Crouch learned much from him. He gave us John Janney’s books when he moved to West Virginia, where he practiced occasionally but is now fully retired.

Bill Findler 1948-2007 was widely admired as an Arlington lawyer, but even more as a Washington-Lee high school track coach, pillar of the church, and father of five. When he died suddenly after a morning run, his obituary on the sports page of the Northern Virginia Sun quoted John Crouch: “He was a leader for all of us. He was strong and honest. He told it like it is. He dealt with every situation with humor and integrity.”

Bryan Garner is a leading authority on legal writing and drafting. He redrafted the Federal Rules of Civil Procedure and several similar sets of rules, edits Black’s Law Dictionary, and wrote several books on legal writing, including two coauthored with Justice Scalia. It’s a stretch to include him here, because I don’t have a book from his personal collection; he gave me a copy of his Black’s as a sort of party-favor for answering a question right in a seminar. As I look up to him as a life-changing guru and kindred spirit, I cling to it like Dobby the House Elf clung to his employer’s discarded glove.

Richard Edelin Crouch, b. 1940, is a prolific lawyer, author, and activist.  He had a military, criminal, civil liberties, public interest and general practice before limiting his practice to family law and legal ethics and malpractice, and especially international and interstate family law. At the same time he edited BNA’s Family Law Reporter and other publications, then the Virginia State Bar’s Family Law News, and several family law books and practice guides. He is now retired.


Kentucky enacts 50-50 custody presumption

"There shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child. If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child's welfare." ...

"When determining or modifying a custody order pursuant to Section 1, 2, or 4 of this Act, the court shall consider the safety and well-being of the parties and of the children. If domestic violence and abuse as defined in KRS 403.720 is alleged, and the court finds that it has been committed by one (1) of the parties against another party or a child of the parties within three (3) years immediately preceding the custody hearing in question, the court shall not presume that joint custody and equally shared parenting time is in the best interest of the child."

HB 528, recently signed by Kentucky's governor. There are other provisions, but those are the wholly new and most important ones.

Full text of bill and amendments

h/t Larry Gaughan, Creative Divorce Network


Shocked by cheerfully ignorant, arrogant decision-making? Not if you've seen a judge learn family law on the job.

There was a lot of interest on social media in 's analysis of how President Trump deals quickly and authoritatively with issues he admittedly knows nothing about.  was thunderstruck at how monstrously dangerous it was to have major decisions made in cheerfully-admitted ignorance, by what the decision-maker thinks is simple common sense. But as a family law attorney, I really couldn't tell any difference between the President's performance and watching a judge who's new to Family Law, trying to puzzle out why the law seems to want both parents involved in a child's life after a breakup, why unwed fathers have the few rights they do have, etc. Or what the Hague Convention on child abduction is for, and what in the world is wrong with a mom taking her children halfway around the world just to get them far away from the father. Or the times I've watched Supreme Court Justices do the same thing as they debate the Hague Convention, or paternity law, assume the validity of wildly wrong speculations about what happens in custody litigation, and snort with equal contempt at the parents in these cases and the Congress that passed such seemingly pointless laws and treaties. Even experienced trial judges sometimes just reinforce their bias and irrational rules-of-thumb over time. 

Here's the Trump version of this routine:

SHERIFF AUBREY: And the other thing is asset forfeiture. People want to say we’re taking money and without due process. That’s not true. We take money from dope dealers —

THE PRESIDENT: So you’re saying – okay, so you’re saying the asset-taking you used to do, and it had an impact, right? And you’re not allowed to do it now?

SHERIFF AUBREY: No, they have curtailed it a little bit. And I’m sure the folks are —

THE PRESIDENT: And that’s for legal reasons? Or just political reasons?

SHERIFF AUBREY: They make it political and they make it – they make up stories. All you’ve got to do —

THE PRESIDENT: I’d like to look into that, okay? There’s no reason for that. Dana, do you think there’s any reason for that? Are you aware of this?

[Then-acting Attorney General Dana Boente]: I am aware of that, Mr. President. And we have gotten a great deal of criticism for the asset forfeiture, which, as the sheriff said, frequently was taking narcotics proceeds and other proceeds of crime. But there has been a lot of pressure on the department to curtail some of that.

THE PRESIDENT: So what do you do? So in other words, they have a huge stash of drugs. So in the old days, you take it. Now we’re criticized if we take it. So who gets it? What happens to it? Tell them to keep it?

MR. BOENTE: Well, we have what is called equitable sharing, where we usually share it with the local police departments for whatever portion that they worked on the case. And it was a very successful program, very popular with the law enforcement community.

THE PRESIDENT: And now what happens?

MR. BOENTE: Well, now we’ve just been given – there’s been a lot of pressure not to forfeit, in some cases.

THE PRESIDENT: Who would want that pressure, other than, like, bad people, right? But who would want that pressure? You would think they’d want this stuff taken away.

SHERIFF AUBREY: You have to be careful how you speak, I guess. But a lot of pressure is coming out of – was coming out of Congress. I don’t know that that will continue now or not.

THE PRESIDENT: I think less so. I think Congress is going to get beat up really badly by the voters because they’ve let this happen. And I think badly. I think you’ll be back in shape. So, asset forfeiture, we’re going to go back on, okay? I mean, how simple can anything be? You all agree with that, I assume, right?

Watching Donald Trump Try to Puzzle Out What ‘Asset Forfeiture’ Means Is Deeply Discomfiting

By  in New York Magazine

See also, for example,


Tainted Love? Let Us Count the Cost. Forbes Magazine Audits Adultery's Accounts.

"How Much Does Infidelity Cost?", Forbes.com asks. I'm just glad someone is asking the question, and acknowledging that such choices, and divorce, have costs and are not "value-neutral."

The article starts with costs so trivial as to be ridiculous, but then follows out some very foreseeable and common consequences -- separate vacations, faraway hideaways, therapy, marriage counseling, separation, restraining orders among new partners and old, loss of security clearances and arms-bearing rights for people under restraining orders, divorce, increased divorce-lawyer costs as the adultery makes every issue in the divorce more vicious and hard-fought, job loss for workplace affairs, a few months of unemployment, and finally a new job that pays 20% less. 

The writing tone is a little bit like a typical canned article, what Helen Fielding's Bridget Jones called "a two-shrink, five-friend" article, except that the subject is so rarely brought up in the media, though it has always been a huge topic in life, art and literature. There's a bit of copy-editing, or lack thereof, that's really surprising in a top-flight source like Forbes. A couple times I thought I was reading one of those odd articles that are taken from real ones, then run through a couple translators and/or some guys in India who didn't qualify for jobs with the gang that calls people up pretending to be "Windows." That's happened to many of my own articles. It ends oddly, like a freshman term paper ending at the exact turn-in deadline with a neat balancing of supposed opposites that actually makes no sense, resting on assumptions and definitions that reveal the author to know far less of the basic terms and context than it appeared from the introduction as it rose slowly through 50 shades of obvious, or from the body of the paper as the student could lean this way and that on quotations and cautiously slight paraphrases of opposing authorities on the topic. Anyhow, back to the Forbes article.  No, wait, this lamest conclusion that I've seen, except in term papers that potential interns send me as writing samples, goes on for two paragraphs of appalling shallowness, totally betraying the whole point of the article by nattering about these things as if they were subjects one would encounter for the first and last time in a college class, and never in real life:

"Who are the people engaging in these covert relationships? Nika Kabiri, Director of Strategic Insights for Avvo, the company which offers a fixed fee uncontested divorce, recently conducted a relationship study to uncover this answer.

Avvo is where you go for reliable studies of marriage? I mean, they're a great company for what they do, and I'm sure Kabiri and his team are good at studying their potential customers, but there are actual disinterested scholars, statisticians and therapists who study these things, many of whom are studying how to keep more marriages healthy and together, not to grow the number of people who get ensnarled in family/legal problems.

"Kabiri found that 61% of Americans are unhappily married.

[I've never seen a figure over the high 40s.] 

"Yet only ¼ of these people say that divorce is inevitable if one no longer wants a romantic relationship with his/her spouse. In fact, nearly 80% believe in staying together so much so that they are open to exploring alternatives to breaking up. Only half of these people say that if their partner wanted an open relationship they would leave him or her. [What about those who respond with, "Oh No, you won't,", among many others?]  In other words half who are confronted with a partner who wants to stray are willing to talk about it, work through it, maybe even be part of an open relationship. 

[Uh, you're not curious about defining who wants to fix the marriage versus who wants an 'open relationship'?]

"While on the surface it seems that having an affair is financially a more affordable road than divorc'em this is not necessarily the case. Clearly the emotional, mental and financial hardship could end up being more detrimental than enduring a divorce."

Huh? Despite everything in the first half of the article, now  "Having an Affair"and "Divorce'Em" are not cause-and-effect, but the two mutually exclusive alternatives for a Smart Shopper to thoughtfully consider? All that talk about how a marriage that grows unhappy doesn't have to devolve into divorce, and in fact 80% of them recover, and suddenly the only alternatives to divorce are affairs and "open relationships"? Sick.

"How Much Does Infidelity Cost? The Real Dollars & Cents", by Kerri Zane ,on Forbes.com


US divorce rates up slightly; latest state, international, military & age-based rates


Think family court is a big racket? You're not alone ... until you get to court. Then you truly are.

One of those crank lawsuits of a kind that gets filed and discarded every day has, for once, gotten big coverage in a mainstream newspaper. "Lawsuit claims divorce court is a racket: Dismissed at district level, case is being appealed to 9th Circuit". San Diego Union-Tribune

If you polled people on the street, you'd find that to be a pretty common view, perhaps not a majority but a plurality of the same kind that makes the presidential primaries so interesting. But in the family court system, people who have cases there, and start saying things like that, are treated like the lunatic fringe. To the judges and everyone else involved, the issue is no longer whatever substantive question was originally in dispute. The issue is now the disgruntled litigants' extremism and behavior.  They are sometimes put under special orders keeping them from filing anything unless and until a single, permanently-designated judge has reviewed it and allowed it.

These litigants too often put their "last stands" on principle ahead of their actual parenting of their children. They are unwilling to bow and bend to a system they see as illegitimate and corrupt, even if they understand that that is the way to be treated better and get more time with their children.

Is the system a racket? No. Not where I work, anyway. But it doesn't have to be. It still works in a way that looks irrational to most people. It still takes people, some already cranky, and some fairly normal, perhaps even too nice, processes them, and cranks out a huge number of cranks.

When our state legislators and all those of us who help mold our culture, all the "second-hand dealers in ideas," as Hayek called us, decided decades ago to encourage widespread divorce, this was a major part of what we created. 

Americans are not brought up and educated in how a family court system works. In the courts which we learn about on TV and in civics class, a jury of 12 average local people makes the big decisions, and the judge is just a referee. And those decisions are about who did something wrong and who gets punished.

Parents who have chosen divorce or unwed parenthood, or had it thrust upon them, have no idea that instead of that system, they are going into a system where regardless of fault or faultlessness, a judge will tell them in great detail how to live and move and raise their children, now and forever until they all are grown. Nor that instead of one big trial to establish guilt or innocence and resolve everything, they may be back in court every few weeks, months or years, for enforcement, monitoring, and revision of those orders.

In that way, the family law courts work like the ecclesiastical and chancery courts that used to handle family issues, the ones that Dickens savaged in novels like Bleak House. And for good reasons, because a family is not like a business contract or a car accident.

But they also feature the most delaying, expensive, and inflammatory features of the American legal system, because this is America -- you always have the right to your day in court, to litigate about everything, to insist on strict compliance with the rules of evidence -- even when dealing with areas of life where people don't generally keep the relevant evidence, or where no witnesses are there when the really important stuff happens, or where evidence and testimony are easily faked. You can always appeal, and appeal. You have to go through all the expensive, exhausting procedures that were designed for big business litigation. Your lawyers have the ethical duty to do what you say you want, after doing their ethical duty to advise you about a bewildering array of awful things that you could do to your ex and your ex might even now be doing to you. And each of these individual things is necessary and proper, as part of the greatest legal system in the world. Even if you hate to comply with them and hate it when the other side does those things, you want the other side to comply and you want to be able to do those things to them.

That's the system we put far more families into when we tried to make divorce easier and more humane by enacting quick, unilateral, no-fault divorce, letting far more people jump straight into court without first working things out in an agreement.