I've heard lawyers say some evil things, but this is the absolute worst:

'... Lawyer Bruce Christensen confirmed that the author has never met the boy, but denied that the youngster has expressed an interest in seeing his dad or is suffering from his absence.

“This is the first time I’m hearing about this,” Christensen said. “When a child never had a father, how would he know what to miss?

“This is no different from the hundreds of thousands of other children who have to live without a parent.”'

‘NO LOVE’ CHILD OF BUCKLEY


Governor approves 11 of 12 bills reforming family law, offers substitute for domestic violence bill

GOVERNOR PROPOSED SUBSTITUTE INSTEAD OF APPROVING:

SUBSTITUTE FOR:

  • HB 2042 Assault and battery against a family or household member; prior conviction; mandatory minimum term of confinement. Provides that upon a conviction for assault and battery against a family or household member, where it is alleged in the warrant, petition, information, or indictment on which a person is convicted, that such person has been previously convicted of an offense that occurred within a period of 20 years of the instant offense against a family or household member of (i) assault and battery against a family or household member, (ii) malicious wounding or unlawful wounding, (iii) aggravated malicious wounding, (iv) malicious bodily injury by means of a substance, (v) strangulation, or (vi) an offense under the law of any other jurisdiction which has the same elements of any of the above offenses is guilty of a Class 1 misdemeanor and the sentence of such person shall include a mandatory minimum term of confinement of 60 days. Amended, PREVIOUSLY final version in Conference report.

 

APPROVED BY GOVERNOR:

  • HB 1945/SB 1541 No-fault divorce; waiver of service of process may be signed before suit filed. Clarifies that in the case of a no-fault divorce, waivers of service of process may occur within a reasonable time prior to or after the suit is filed, provided that a copy of the complaint is attached to such waiver, or otherwise provided to the defendant, and the final decree of divorce as proposed by the complainant is signed by the defendant. Where a defendant has waived service of process and, where applicable, notice, the bill further permits depositions to be taken, affidavits to be given, and all papers related to the divorce proceeding to be filed contemporaneously. Bill text as passed Senate and House.
  • SB 1144 Guardianship; annual report filed by guardian. Provides that, upon receiving notice from the local department of social services that a guardian has not filed the required annual report within the prescribed time limit, the court may issue a summons or rule to show cause why the guardian has failed to file such report.
  • SB 1307 Uniform Transfers to Minors Act; transfer of property; age 25. Permits a transferor to transfer property under the Uniform Transfers to Minors Act to an individual under the age of 21 to be paid, conveyed, or transferred to such individual upon his attaining 25 years of age, unless the minor attaining age 21 years of age delivers a written request therefor to the custodian. Under current law, such property must be paid, conveyed, or transferred upon the individual's attaining 18 years of age, or 21 years of age if specifically requested by the custodian.
  • SB 1186 Financial institution; payment or delivery of small asset by affidavit, check, etc. Provides that a financial institution accepting a small asset that is a check, draft, or other negotiable instrument presented by an affidavit is discharged from all claims for the amount accepted.
  • HB 1979 Assisted conception; amends statute to provide gender-neutral terminology, etc. Allows an unmarried individual to be an intended parent, paralleling the ability of an unmarried individual to adopt under the adoption statutes. Allows for the use of an embryo subject to the legal or contractual custody of an intended parent in a surrogacy arrangement. 
  • HB 1988 Military retirement benefits; marital share. Requires that the determination of military retirement benefits in a divorce be made in accordance with the federal Uniformed Services Former Spouses' Protection Act (10 U.S.C. 1408 et seq.).
  • HB 2059 Nonpayment of child support; amount of arrearage paid; time period to pay arrearage; repayment schedule; suspension of driver's license. Provides that an individual who is delinquent in child support payments or has failed to comply with a subpoena, summons, or warrant relating to paternity or child support proceedings is entitled to a judicial hearing if he makes a written request within 30 days from service of a notice of intent to suspend or renew his driver's license. Current law provides such an entitlement if such request is made within 10 days from such notice. The bill further allows the Department of Motor Vehicles to renew a driver's license or terminate a license suspension imposed on an individual if such individual has reached an agreement with the Department of Social Services to satisfy the child support payment delinquency within a 10-year period and has made at least one payment of at least five percent of the total delinquency or $600, whichever is less, as opposed to whichever is greater under current law, under such agreement. The bill further provides that, where such a repayment agreement has been entered into and such an individual has failed to comply with such agreement, the Department of Motor Vehicles shall suspend or refuse to renew such individual's driver's license until it has received certification from the Department of Social Services that such individual has entered into a subsequent agreement to pay within a period of seven years and has paid the lesser amount, as opposed to greater amount under current law, of at least one payment of $1,200 or seven percent, as opposed to five percent under current law, of the current delinquency. The bill provides that an individual who fails to comply with such a subsequent agreement may enter into a new agreement if such individual has made a payment in the lesser amount, as opposed to the greater amount under current law, of $1,800 or 10 percent, as opposed to five percent under current law, and agrees to a repayment schedule of not more than seven years, which is consistent with the timeframe provided by the current law. Amended text as passed House and Senate.
  • HB 2317 Custody and visitation orders; exchange of child; history of family abuse; law-enforcement officers. Provides that in custody and visitation cases, at the request of either party, the court may order that the exchange of a child take place at an appropriate meeting place. Amended  text as passed House and Senate.
  • HB 2542 Temporary delegation of parental or legal custodial powers; child-placing agency. Allows a parent or legal custodian of a minor to delegate to another person by a properly executed power of attorney any powers regarding care, custody, or property of the minor for a period not exceeding 180 days. The bill provides that a parent or legal custodian who is a service member, as defined in the bill, may delegate such powers for a period of longer than 180 days while on active duty service, but specifies that such a period is not to exceed such active duty service plus 30 days. The bill provides that any such power of attorney shall be signed by all persons with authority to make decisions concerning the child, the person to whom powers are delegated under the power of attorney, and a representative of a licensed child-placing agency that assists parents and legal guardians with the process of delegating parental and legal custodial powers of their children. The bill specifies that such licensed child-placing agency will be subject to background checks and must develop and implement written policies for certain services and provide staff and provider training. The bill further requires that any person to whom any such powers are delegated shall comply with background check requirements established by regulations of the Board of Social Services or otherwise provided by law.
  • HB 1944/SB 1542 Civil actions; determination of indigency.  In a no-fault divorce proceeding, a person who is a current recipient of a state or federally funded public assistance program for the indigent shall not be subject to fees and costs, and  shall certify to the receipt of such benefits under oath.  House substitute agreed to by Senate.
  • SB 1758 Specific findings of fact; Custody and visitation cases; jurisdiction of court. Allows a circuit or district court in which there is a proceeding related to the custody or visitation of a child, upon the request of any party, to make any finding of fact required by state or federal law to permit such minor to apply for a state or federal benefit. Passed with House subcommittee amendments and substitutesSenate amendments, Conference amendments.

Leading child advocate calls for trained, respected, funded legal defenders for parents

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.

Full text of article 


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.

The Bay Area is so expensive divorced parents can't afford to live separately:

A perspective from Mommy Files' Amy Graff

SF Gate, May 8, 2018

via Family Law Prof Blog


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."

 


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,


It's not a "right to custody" -- here's what the Saudi justice minister actually decreed

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.

--  quoted in "Saudi mothers can now retain custody of children without filing lawsuits" by Habib Toumi in Gulf News

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.

-- "Divorced Saudi mothers win new rights to child custody" by RUBA OBAID in Arab News

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