The Importance of Family Defense
By Martin Guggenheim, ABA Family Law Quarterly Volume 48, No. 4 (Winter 2015) pp. 597-607
This article describes the growing field of “Family Defense,” which involves lawyers and other advocates working on behalf of parents or other family members whose children are at risk of being placed in court-ordered foster care. Although lawyers have been doing this work for several decades, a national movement to consolidate and enhance the field’s status in the legal profession is less than a decade old. Based in the American Bar Association’s Center on Children and the Law, this movement’s purpose is to achieve procedural and social justice for all families involved with child welfare systems, through legal, legislative, and policy advocacy. Above all else, it seeks to ensure that every parent who is in jeopardy of having a child removed from his or her care by a child welfare agency is able to secure excellent legal representation during the entire length of the court process. This article explains the importance of the field and how it differs from criminal defense. Finally, it offers some insight into why the field is relatively unknown in the legal profession despite the important work that it does.
Divorce/separation not affordable for Bay-area lawyers, other professionals, so here's what they do:
Bay area couples who separate or divorce are increasingly sharing a home for economic reasons, Amy Graff writes in SFGATE. The example she leads with includes a lawyer in private practice. For actual separation to be affordable, at least one parent would have to move so far away that caring for, and transporting, the children would be unworkable. And this arrangement is actually optimal for the children, when the parents can remain civil with each other, she says after looking at several couples who are doing this.
SF Gate, May 8, 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."
"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."
"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."
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 Jesse Singal's analysis of how President Trump deals quickly and authoritatively with issues he admittedly knows nothing about. Singal 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?
See also, for example,
- Study: Judges interpret legal precedent mostly based on parties' personalities, & won't admit it.
- How Bias Actually Works -- Everywhere, Even in Family Courts
- Supreme Court silently ignores clear text of Indian Child Welfare Act, "needlessly demeans parenthood"
- On First Looking Into Posner's Opinions, and Finding One Where He Didn't Exactly Hit a Homer
The headlines are misleading, but the truth behind them is strange and elusive, from a Western perspective. A "right to custody" has appeared in headlines on CNN, in Khaleej Times, and in news links circulated on social media. That wording, at least the way it would commonly be understood in the U.S., is completely wrong.
Just as divorced or separated parents in the U.S. do, Muslim Saudi women who get divorced, or whose children later reach the age for living with their fathers, have the right to ask a court to decide who gets custody, and to have the court consider the case.
What is new this month is apparently a procedural reform: IF the parents have no disputes on child-related issues, the mother can get custody by filing an application with the court, instead of going through a full-scale court case. The Justice Minister's circular says, in part:
A mother may submit a probate application to the competent court for certifying her custody of her children, provided she signs an acknowledgement that there were no existing disputes ...
For granting custody to a mother, the judicial panel considers her capacity for custody and then determines her application in accordance with Sharia and legal requirements, without the need for initiating a lawsuit, as is the case with all probate certifications indicated in Chapter 13 of the Law of Civil Procedure.
Almost all the news stories include that key phrase, "provided there are no disputes," but the headlines and lead sentences, and indeed the rest of the wording of each article, totally ignore it, as if it were a technicality or an unthinkably rare and meaningless exception. This is as bad as the reporting on no-fault divorce laws or covenant marriage laws -- blowing up changes to sound far more drastic than they are, by making crucial exceptions sound like meaningless recitations, and naively ignoring or belittling the role of agreements and disagreements between divorcing spouses.
There is no change in favor of foreign or non-Muslim women, as far as I can tell.
Other substantive changes the Minister announced:
The circular also gives the mother the right to carry out all formalities related to her children at government departments, embassies, education offices and schools, and to apply for and collect her children’s passports.
She will also be able to collect all child support and maintenance from government and civil entities, but may not travel with her children outside the Kingdom without a judge’s permission.
To see what this is a change from, here is what looks like the most up-to-date background on child custody in Saudi courts:
"THEMATIC REPORT ON MUSLIM FAMILY LAW AND MUSLIM WOMEN’S RIGHTS IN SAUDI ARABIA," report to CEDAW, February 2018, by Musawah: For Equality in the Family
Constitution doesn't require expanding parenthood & marriage until they lose all meaning - Va. appeals court
2018 Va. family law legislation: Alimony, court reporter reform, abuse prevention, child support, inheritance, violence, legalized adultery?
UPDATED APRIL 10, 2018
MODIFICATION BY THE GOVERNOR
- HB 1351 Joint legal or physical child custody; custody and visitation decisions, communication to parties. Governor added: In any case or proceeding involving the custody or visitation of a child, to enable the child to apply for a state or federal benefit and upon the request of any party, the court shall make any finding of fact required by state or federal law in order for the child to receive such benefit. The existing language, which the Governor did not change, 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 bill's original text, completely replaced as it went through both houses, was, "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." At least the statute still says, "The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children."
ENACTED, SIGNED BY GOVERNOR
- HB 613 Child and spousal support; access to case files.
- SB 101 Erin's Law, having schools educate children to recognize, resist and report molestation
- SB 78 Trust decanting; authorized fiduciary must be disinterested, may be appointed by court, majority of trustees may act
- HB 743 Judges; maximum number in each judicial district and circuit
- HJ 132 Judges; election in circuit court, general district court, etc. [Governor has no role in this]
- HB 754 Elective share claim; calculation of the augmented estate, role of "separate property"
- HB 1142 Qualification of fiduciary without security; asset or amount with no monetary value, tightens bonding requirement that previously allowed $25,000 minimum. [Senate passed, but with amendments -- went into Conference Committee, both houses approved Conference Committee revision]
- SB 540 Spousal support; modification when person reaches retirement age.
- HB 262 Protective orders; cases of family abuse, cellular telephone numbers or other electronic device.
- HB 746 Wills and revocable trusts; eliminating certain inconsistencies so that living trusts, like wills, can be reformed by a court to achieve their intended goals in changed circumstances.
- HB 1360 Child support; guidelines for determination of obligation, child support orders.
- HB 1361 Child support; calculation of obligation, multiple custody arrangements.
- SB 545 Court reporters; prohibited actions, civil penalties: Regulates court reporters' dealings with lawyers and litigants [CONFERENCE COMMITTEE resolved differences between versions, both houses approved conference committee substitute]
- SB 614 Spousal support; modification. -- Makes it easier to change alimony. Any new agreements setting a nonmodifiable alimony amount must say, "The amount or duration of spousal support contained in this [AGREEMENT] is not modifiable except as specifically set forth in this [AGREEMENT]."
- SB 615 Spousal support payments; employer withholding allowed.
- SB 426 Victims of domestic violence; list of local resources. [House committee approved with an amendment removing lines 578, 579, and 580; Senate approved House amendment]
KILLED (incl. passed by, stricken, tabled, continued to next year ...)
- HB 599 Child support; nonpayment, amount of arrearage paid, suspension of driver's license.
- HB 1223 Erin's Law, having schools educate children to recognize, resist and report molestation
- HB 661 Assault and battery against a family or household member; enhanced, penalty. [Passed house, passed senate with substitute, each house insisted on its own version, time ran out for Conference Committee]
- HB 411 Assisted conception; gender-neutral as to same-sex.
- HB 998 Parental or legal custodial powers, temporary delegation of; child-placing agency. [Passed House, continued to 2019 in Senate committee]
- HB 807 Custody and visitation agreements; best interests of the child, violent abuse of other family members
- HB 412 Marriage-related criminal laws; gender-neutral terms, adultery repeal, penalty.
- HB 413 Adoption; gender-neutral as to same-sex.
- HB 414 Same-sex marriage; marriage laws, gender-neutral terms.
- HB 478 Domestic violence-related misdemeanors; enhanced, penalty.
- HB 1237 Assault and battery against a family or household member; first offense, enhanced penalty.
- HB 149 Child support order payee; change in physical custody of child, orders involving DSS.
- HB 1331 Child support; review of guidelines federal compliance.
- SB 64 Custody and visitation decisions; communication to parties required in writing.
- SB 70 Custody and visitation; rights of parents with a disability.
- SB 178 Parental or legal custodial powers, temporary delegation of; child-placing agency.
- SB 596 Victims of domestic violence, etc.; firearms safety or training course.
- SB 603 Same-sex marriage; gender-neutral terms.
- SB 612 Assisted conception; parentage presumption.
- SB 727 FOIA; exemptions for courts of record, courts not of records and Office of the Executive Secretary
- SB 938 Child support; withholding of income, contracts with an independent contractor.
- HB 216 Guardians, licensed physician, etc.; annual reports to include medical examination.
- HB 383 Missing-heir search firms; void contracts.
- HB 406 Guardianship; protects communication between incapacitated persons & others, notification of relatives.
- HB 406 Guardianship; communication between incapacitated persons & others, notification of relatives.
- HB 1403 Electronic wills; requirements.
- HB 1565 Presumption of death; missing person reports.
Compiled by John Crouch, updated by John Crouch and Sarah Araman
Federal "diversity jurisdiction" exists to prevent unfair home-court advantage, so why doesn't it apply to family law?
By Joseph A. Carrol, Dickinson School of Law
ABA First Place Schwab Essay Contest Winner, 2017