The Family Law News Blog

Joint custody: Generations of "overwhelmingly consistent" expert research, reviewed by two of the wisest people I know

SUMMARY OF RESEARCH RELATED TO THE DEBATE ABOUT JOINT PHYSICAL CUSTODY AND SOLE PHYSICAL CUSTODY

By Lisa Herrick, Ph.D. and Adele D’Ari Ed.D. 

July 28, 2021

Excerpts:

"These are social scientists who have devoted entire careers to exploring that question. Many of the authors of the studies we will reference have been publishing research results since the 1990’s. Some of them have followed the same families for 25 years in an effort to draw valid and trustworthy conclusions."

"... shared parenting couples are not an exceptional, rare group among divorced parents ..."

"Misconception: 'Joint Physical Custody is a “grand experiment” being conducted without our knowing the impact on children and without the support of a full body of research.' In fact, Sole Physical Custody has been shown to have strong correlations to emotional and behavioral problems in children of all ages in many countries and yet has been codified in most states. There is a large body of research indicating repeatedly that families in which there are absent fathers, or minimally involved fathers produce children with the worst outcomes of adjustment. There is, in fact, a paucity of data in favor of Sole Physical Custody. There is a plethora of data in favor of Joint Physical custody."

"The social science evidence on the development of healthy parent–child relationships, and the long term benefits of healthy parent–child relationships, supports the view that shared parenting should be the norm for parenting plans for children of all ages, including very young children. . . . In general the results of the studies reviewed in this document are favorable to parenting plans that more evenly balance young children’s time between two homes. Child developmental theory and data show that babies normally form attachments to both parents and that a parent’s absence for long periods of time jeopardizes the security of these attachments. Evidence regarding the amount of parenting time in intact families and regarding the impact of daycare demonstrates that spending half time with infants and toddlers is more than sufficient to support children’s needs. Thus, to maximize children’s chances of having a good and secure relationship with each parent, we encourage both parents to maximize the time they spend with their children. . . . Research on children’s overnights with fathers favors allowing children under four to be cared for at night by each parent rather than spending every night in the same home.” (Quoting Warshak, 2017)

"Children in [joint physical custody] report no weaker attachment to Mothers than do children in [primary physical custody]. (Kelly, 2012; Fabricius 2012; Sokol, 2014; Warshak 2016)"

Children in [joint physical custody] look more similar to children in intact families on various measures of psychological and physical health than they look to children in [primary physical custody]. (Bergström, 2017; Fransson et al., 2016)

"With less access, fathers tend to have [even] less contact with children over time ..."

" When young adults are surveyed or interviewed about their own perspectives on the custody arrangements their parents had created for them, a significant majority report they did not see their fathers enough, and felt - as college students - that an equal division of time between their parents would have been their top preference. Most subjects in these studies perceived that their mothers were satisfied with the status quo while their fathers wished for more custodial time.  Children as young as 3 years old have reported in some studies that they want more time with their fathers. (Kelly, 2012; Warshak, 2016)"

"No one in this field of study is suggesting that joint physical custody would be beneficial to children when a family does have a history of domestic violence."

"In each study that shows the best outcomes for children in joint physical custody are in families where parenting conflict is low, the only reporters were mothers. No study that has found conflict to be a significant variable modulating outcome ... has included the perspectives of both parents and the children. (Fabricius et al., 2018; Berman and Daneback, 2020; Pruett et al., 2012; Steinbach and Augustijn, 2021)

"When young adults are surveyed or interviewed about their own perspectives on the custody arrangements their parents had created for them, a significant majority report they did not see their fathers enough, and felt - as college students - that an equal division of time between their parents would have been their top preference. Most subjects in these studies perceived that their mothers were satisfied with the status quo while their fathers wished for more custodial time."

"Studies of JPC and SPC receive careful scrutiny by all journals considering their inclusion and these scholars are considered to be leaders in their field."

"Scholars who support JPC universally acknowledged that symmetrical arrangements are not always best for families, and that JPC is not necessarily a 50-50 division of time. Researchers generally define JPC as providing each parent with a minimum of 35% of parenting time."

"Co-parent relationships are more cooperative over time when fathers are more engaged with their children and coparent from early on.  This suggests that father engagement positively contributes to positive parent cooperation and counters the argument that only parents who are cooperative from the get-go ultimately find ways to keep both parents involved.  This study also found that covert conflict in the early months after a divorce predicts later overt conflict. The authors suggest that when there are custodial arrangements that enable fathers to remain centrally involved in children’s lives, conflict over time may be mitigated."

"Virtually all studies to date support the idea that JPC is correlated with more positive outcomes for children even when one parent opposes it.   ...  Even when parents are in conflict, and JPC is assigned by a Court, outcomes appear to be better for the children in those families."

Governor Approves 59 Bills Changing Family Law, 46 More Affecting Family Life, But Modifies Gun Restrictions

Updated 4/23/20

By John Crouch and Sarah Panariello

This year's legislative session included many modest but salutary amendments to make family life and family law a little more efficient and fair. There were also immense amounts of mostly political legislation that will have various side effects on families and work their way into family law cases. 59 of the former and 46 of the latter passed. But another 109 of the family law/family life bills we were tracking are now dead, at least for this year.

The Governor has now acted on all such bills that both houses passed (except for joint resolutions, such as the ones passing the ERA, which do not involve him). He suggested amendments or substitute versions for a few, slightly relaxing new gun-control restrictions and penalties, and signed the rest.

This post has been updated throughout the legislative season to track all family-law bills, and many bills on other topics that will affect family life and family law cases. They are listed below based on what stage of the becomes-a-law process they are at, and then, within that, by subject. If anything is incomplete or not up to date, please inform us by commenting.

HIGHLIGHTS

A bill makes pendente lite spousal support guidelines apply in Circuit Court as well as Juvenile, and reduces them slightly to account for the recent federal tax law change to taxing payors instead of payees for alimony. Another clarifies that after "reserving jurisdiction" to award spousal support, such support can only be awarded based on a material change of circumstances, unless the agreement or divorce decree expressly says otherwise.  There is also a tweak to the new statute that made alimony awards in new separation agreements be presumed modifiable unless they expressly said otherwise. That would still be the rule, but the statement that prevents or limits modification will no longer have to be in the exact words prescribed by the Code.

A bill splits unpaid expenses of pregnancy and childbirth in proportion to the parents' incomes, if a support case is filed in the child's first six months. Another clarifies that courts can award child-related tax credits, not just dependency exemptions. The cap on what is considered reasonably-priced court-ordered health insurance is lowered significantly.

Targeted for demolition this year is the rule that in Juvenile Court, fee awards are only based on relative economic circumstances, and nothing else. 

Several bills tweak the factors and presumptions in child custody and visitation decisions, but probably with little effect anytime soon. Judges could consider the motives of both parties in grandparent visitation disputes; and should consider a party's history of violent or sexual abuse even if it involved their other partners and children, not the ones the case is about.

Also affecting custody cases is a bill saying both parents must have equal access to day care records and information. Speaking of day care, a huge change is being proposed that would create a comprehensive system of public and private day care for everyone, like unto the K-12 school system. Similar proposed comprehensive social programs include, at the other end of the cradle-to-grave spectrum, a state-run retirement account that private employers could opt into.

Many others are nice little changes, but frankly minor. One bill would have abolished the requirement for  third-party corroborating witnesses to prove divorce grounds. It passed the House, and the Senate's committees, but was defeated on the Senate floor by four votes. Others put legal notices into online publications and take them off of the courthouse door, and let you send notice of publication orders by email, sometimes.

One perennial minor annoyance is the requirement to file an original of the return or affidavit of process-service within 72 hours. When you're having people served in faraway states or on other continents, as I regularly do, that's often impossible.  The questionable 72-hour rule remains, but there is a bill that allows copies, faxes, scans etc. instead of the original.

As always, there are many bills cracking down on domestic violence and sexual abuse, but there is so little of this still left to do that they are either exceedingly marginal, or so imaginative that their net effect may be to give the bad guys more destructive ideas, such as filing lawsuits to retaliate against, or deter, victims' pursuing civil or criminal remedies. 

Adult guardianship and conservatorship are facing a major overhaul, aiming much more scrutiny at guardians and other fiduciaries.

Sexual freedom and discrimination: One bill abolishes the requirements for children to get a parent's or a judge's permission for abortions. Others all but outlaw "conversion therapy" for minors, and do several things to banish all forms of anti-gay or anti-trans discrimination. And among the first bills to pass both houses are two ratifying the federal Equal Rights Amendment. 

A few bills aim to decriminalize school and adolescence. A couple assure schools that they do not have to involve the police every time a child does something that might be a misdemeanor. Another says that schools and school buses are not "public places" when applying criminal laws against "disorderly conduct."  Sunscreen would no longer be contraband in school, but the kids would have to stay out of tanning salons. After all, how do we know that they aren't getting "conversion therapy" in those tanning beds? Other bills aim to put fewer children on the sex offender registry for the rest of their lives, and send most teenage "sexters" to counseling instead of child-pornographer prison.

Many bills incrementally restrict minors' access to guns. Almost all of them seem mostly harmless, requiring locking weapons away from minors, extending to age 18 the crime of  recklessly allowing minors under 14 access to firearms, making it a felony, and changing that "recklessly" standard to "negligently." Such rules should be fine if they actually are applied with factually informed standards for what is reasonable, what is reckless, and what is negligent in that particular community and household. But it's also understandable that people are vigilant about "for the children" legislation being twisted to take huge bites out of the freedom and self-sufficiency of adults and youth.

In the big picture, hunters, gun owners, religions, tanners, guardians, sunscreen police, divorce corroborators, wife-beaters and conversion therapists shouldn't feel singled out for cultural genocide. There's also legislation to begin licensing and regulating art therapists, music therapists, naturopaths, doulas and court reporters. If only because once they're state-licensed professionals, they won't be allowed to do conversion therapy.

DEAD BUT NOT FORGOTTEN (UNTIL NEXT YEAR, ANYHOW)

Who says there's no free lunch, or that the General Assembly has no family-law visionaries? One bill says child and spousal support can only be based on net income -- not on gross, and not on earning capacity or imputed income. Another says if support is going through the DCSE, the payee gets paid even when the payor doesn't pay. Sadly, despite much talk about transforming the Old Dominion, Virginia is not yet the Big Rock Candy Mountain, the place where, as Captain John Smith promised, "Evereey manne shall cavorte and bee fruetfulle and multiplye under his owne vyne and figge tree."  These two were among the very first bills to die.

A tiny and I hope redundant addition to child custody law would have urged judges to assure frequent, continuing contact with both parents -- of course only "where appropriate" (sigh). This slight whimper was then watered down to get through subcommittee, and again in committee, only to be killed anyway on the House floor, 52-41.

Next came reforms to contempt of court. One bill said that if you bring a contempt case and you lose, you can appeal the "not in contempt" finding to the Court of Appeals, fixing a disconcerting oddity in the law that has come to light in the last few years. As for judge-initiated "summary" contempt punishments, someone considered it helpful to extend the maximum jail time to 30 days. Dead, and dead.

While the great cavalcade of bills aimed at protecting the incapacitated from their own guardians almost all survived, two worthy efforts that failed said that the beneficiaries of guardianship should have a voice in their own guardianship cases, and generally should not be cut off from any other family members.

As if people didn't have enough to worry about, the House refused to let Protective Orders prohibit using electronic remote control of things in and around the victim's home. Well, we don't want protective order forms to become a long checklist suggesting new ways to abuse people.

On the sexual freedom front, much ground is being won, but many sweeping efforts are dead, for this year at least. One of them puts absolute reproductive freedom in the state constitution. Others require employers and insurers to pay for abortion, sterilization, and everything in between on the spectrum of contraception; repeal the "conscience clause" that lets religious institutions with traditional moral beliefs keep operating adoption agencies, and even redefine child abuse and neglect to include "inflicting, creating, allowing or threatening any physical or mental injury based on gender identity or sexual orientation". 

BILLS AND THEIR STATUS

PASSED BOTH HOUSES: 

• SJ 1 Ratifies Equal Rights Amendment
• HJ 1 Ratifies Equal Rights Amendment

GOVERNOR REQUESTED CHANGES INSTEAD OF SIGNING: 

• SB 479 as passed by both houses: No guns for people under any protective orders, not just those for family violence. 24 hour grace period to transfer guns. Anyone under a protective order has 48 hours to certify in writing that he or she now possesses no firearms; failing to do so is a misdemeanor. The governor's amendment changes that failure to certify from a criminal misdemeanor into civil contempt of court. It makes other changes that clarify the wording but do not change the substance. The legislature has approved the governor's amendment.
• HB 1004: No guns for people under any permanent protective orders. 24 hour grace period to transfer guns. Anyone under a protective order has 48 hours to certify in writing that she now possesses no firearms; failing to do so is a misdemeanor. The governor's amendment changes that failure to certify from a criminal misdemeanor into civil contempt of court. It makes other changes that clarify the wording but do not change the substance. The legislature has approved the governor's amendment.
• SB 71 Expands the prohibition of weapons on school property to include daycare and preschool property, including the entire building (such as a church) that the day care or preschool is in, but only during the hours when the day care, etc. is open. Does not apply to day care operated in the residence of the provider or of one of the children. But still bans weapons in churches during day care/preschool hours. Daycare may have armed security; that is added to many existing exceptions, such as knives being used for food service or other employment, school-sponsored programs, law enforcement, unloaded and properly stored weapons, and otherwise-legal weapons kept safely in vehicles. The governor's substitute adds that the provisions governing day cares and private or religious preschools "(i) shall apply only during the operating hours of such child day center or private or religious preschool and (ii) shall not apply to any person (a) whose residence is on the property of a child day center or a private or religious preschool and (b) who possesses a firearm or other weapon prohibited under this section while in his residence." Makes a couple other wording changes, which are not substantive. The legislature has approved the governor's amendment.

APPROVED BY GOVERNOR, BECOMING LAW AS OF JULY 1, 2020: 

Divorce

• SB 247 Gender-neutral terms in no-fault divorce law.
• HB180 Race information not required in marriage records, divorce/annulment reports, VS-4s, nor divorce statistics
• SB 433  Repeals Code  § 8.01-223.1, which said that if you take the Fifth it can't be used against you in a civil case. (Original text, in contrast, changed the penalty for adultery from a Class 4 misdemeanor to a civil penalty of not more than $250.)

Marriage

• SB 62 Race information not required in marriage records, divorce/annulment reports, VS-4s, nor divorce statistics
• SB 955 Civil celebration of marriage fee maximum increased to $75  

Custody/Parenting Time

• HB 436 Uniform Child Custody Jurisdiction and Enforcement Act; disclosure of identifying information when one party claims it would be dangerous: Currently, once one party claims this, it cannot be disclosed unless the court decides to in a hearing within 15 days of the filing of a pleading. This bill adds "or affidavit" after "pleading." 
• SB 430 Each parent to have access to child-care records, regardless of custody. 
• HB 137 Guardians ad litem for children must give certification of compliance with standards.
• HB 861 Requires courts in custody and visitation cases to consider  "any act of violence, force, or threat as that phrase is defined in § 19.2-152.7:1 against an intimate partner or the intimate partner's child, or any history of sexual abuse or child abuse," in addition to the current requirement to consider any "history of family abuse." no earlier than 10 years prior to filing of petition.
• SB 105 Requires courts in custody and visitation cases to consider  "any act of violence, force, or threat as that phrase is defined in § 19.2-152.7:1 against an intimate partner or the intimate partner's child, or any history of sexual abuse," in addition to the current requirement to consider any "history of family abuse." no earlier than 10 years prior to filing of petition.
• SB 214 GALs to review and report on Individualized Education Plans in young-adult guardianship cases

Child Support

• SB 434 Court may award either parent the right to claim child-related income tax credits as well as dependency exemptions. 
• HB 637 "Reasonable cost of health care coverage," in law on ordering coverage as part of child support, to mean no more than 5% of providing parent's income, instead of 5% of parents' combined incomes.
• SB 428 Any unpaid medical expenses for pregnancy and birth to be split
• HB 690 Temporary Assistance to Needy Families (TANF): Repeals the prohibition on increasing the amount of Temporary Assistance for Needy Families (TANF) that a family receives upon the birth of a child during the period of TANF eligibility or an adult recipient is ineligible because of child support compliance issues

Spousal Support

• SB 432 Material change of circumstances required before court may use post-divorce "reserved" jurisdiction to order spousal support, unless a contract, stipulation or court order says otherwise.
• HB 1500 Pendente lite spousal support guidelines shall apply in Circuit Court as well as Juvenile, and are reduced slightly to account for federal tax law change taxing payors instead of payees for alimony.
• HB 1501 Spousal support in a stipulation or contract made after 7/1/18 is still modifiable if the contract does not expressly say that it is not modifiable, or limit modifiability; but that express statement will no longer have to be in specific wording required by statute.

Adoption

• HB 94 Must give proper notice of adoption proceeding to legal custodian.
• HB 721 Post-adoption contact and communication agreements; parents whose parental rights were involuntarily terminated may enter such agreements.

Child Abuse/Foster Care

• HB 778  60 instead of 45 days for "family assessments" when children alleged to be at risk.
• HB 287 Extends from one year to three years the period of time for which the Department of Social Services must retain records of unfounded investigations of child abuse or neglect before purging.
• HB 933 State-Funded Kinship Guardianship Assistance program created to facilitate child placements with relatives, including "fictive kin", and ensure permanency for children in foster care. "Fictive kin" means persons who are not related to a child by blood or adoption but have an established relationship with the child or his family.
• SB 178 State-Funded Kinship Guardianship Assistance program created to facilitate child placements with relatives, including "fictive kin", and ensure permanency for children in foster care. "Fictive kin" means persons who are not related to a child by blood or adoption but have an established relationship with the child or his family.
• SB 472 Foster care; encourages termination of parental rights improves training and information about voluntary and involuntary termination, independent living needs assessments.
• SB 156 Fostering Futures program to provide services and support to former foster care children now between 18 and 21
• HB 904  Public sports programs' volunteers and employees shall be mandated reporters of suspected child abuse/neglect

Domestic Violence/Protective Orders

• HB 880 Protective orders; expedites process to dissolve order when petitioner requests it.
• HB 674 "Red Flag" Firearms removal from person posing substantial risk of injury to herself, etc.
• SB 70 Commercial firearm transfers; criminal history record information check, penalty.
• SB 240 "Red Flag" Firearms removal from person posing substantial risk of injury to himself, etc.

Elder Laws/Wills/Trusts/Probate

• HB 1378 Codifies the Uniform Directed Trust Act, allowing and governing the role of a "trust director"
• HB 305  Fee for lodging, etc., of wills increased from low to mid-single digits
• HB 362 Physician assistants, not just doctors, can make determinations that patient has no capacity to make informed decisions
• HB 641 Funeral homes must accept caskets provided by third parties, but need not store them
• SB 261 Accounts filed by fiduciaries and reports filed by guardians must be signed under oath; not to do so is a misdemeanor
• SB 553 Uniform Partition of Heirs Property Act -- rules for selling, preserving, or partitioning inherited tenancy-in-common property.
• HB 839 Probate tax exception/refund for Virginia Beach mass shooting victims
• HB 775 Directs Virginia College Savings Plan to analyze private retirement plans; report
• HB 1222 When notarizing for someone in nursing home or assisted living, a passport or driver's license that expired in the last 5 years may be used to prove identity.
• SB 700 Wills must be indexed in the name of executor named in the will
• SB 355 Assisted living facilities; audio-visual recording of residents to be studied, stakeholder-grouped, then regulated.
• SB 1072  Prohibits the court from appointing, as guardian or conservator for an incapacitated person, any attorney who is engaged to represent the person who is asking the court to order the guardianship, whether representing them in that case or in anything else. Includes other attorneys or employees of such attorney's law firm.
• HB 887 ABLE Savings Trusts may be passed to a survivor.

Procedure

• HB 1378 Pleadings, motions, and other papers with missing or defective signatures are void unless defect is promptly cured, or unless there is no timely objection to the defect. 
• HB 834 Courts may permit notice of an order of publication to be given by electronic means in addition to or in lieu of publication in a newspaper
• HB 60 District court substitute judges will retain power to sign final orders for 14 days after hearing a case.
• HB 780 Courts to accept copies of proofs process-service in place of originals
• HB 1346 Makes it easier to get attorney fees paid out of money that is under control of the court
• SB 451 Juvenile and domestic relations district court; awards of attorney fees shall be determined based on all relevant factors, not just the relative financial ability of the parties.
• SB 229 Pleadings, motions, and other papers with missing or defective signatures are void unless defect is promptly cured, or unless there is no timely objection to the defect.
• SB 771 Interlocutory appeals to Court of Appeals: Just listing it here to note that it does not apply to family law cases.
• SB 693 Common-law defense of intra-family immunity abolished in wrongful death cases.
• SB 408 Notices of civil case appeals shall not have a hearing until parties have been served or waived service

Sexual Abuse/Assault

• SB 724 Misdemeanor sexual offenses; increases statute of limitations, when victim was a minor.
• HB 475 Virginia sexual assault forensic examiner coordination program; established, report.
• HB 870 Sexual abuse: 10-year statute of limitations. keeps 20-year when victim was a minor
• SB 297 Creates Sexual and Domestic Violence Prevention Fund, administered by Department of Social Services, in coordination with Department of Health and the Virginia Sexual and Domestic Violence Action Alliance, to develop and support programs that prevent sexual and domestic violence;  promote healthy practices related to relationships, sexuality, and social-emotional development; and counteract the factors associated with the initial perpetration of sexual and domestic violence.
• HB 298 Misdemeanor sexual offenses; increases statute of limitations, where the victim is a minor.
• SB 579 Streamlines & reorganizes Sex Offender and Crimes Against Minors Registry process; lower-level offenders will no longer have to register annually.
• SB 42 Sexual abuse via false representation or subterfuge that is part of a massage by a massage therapist, a medical procedure, or physical therapy, shall be aggravated sexual battery. Regardless of victim's age or competence. 1 to 20 years, fine of up to $100,000.00.

Child Safety

• HB 1083 Minors; allowing access to firearms, Class 1 misdemeanor recklessly allowing access under age 14; Class 3 misdemeanor for recklessly leaving a loaded and unsecure firearm around a child under 14; no unsupervised use under age 12.
• HB 402 Public school lock-down drills, frequency, exemptions for kindergarteners.
• HB 578 Smoking; illegal in motor vehicle with a minor under 15 present (current law only covers minors under 8)
• SB 173 Stun weapons; prohibits possession on school property, exempts holder of concealed handgun permit, but only if it remains in vehicle
• SB 593 All firearms in a licensed in-home day care provider's home must be stored unloaded and locked up.
• HB 600 In-home day cares must store guns and ammo separately, and locked up in a container, cabinet, etc.
• HB 38 Tanning facilities prohibited for minors.
• HB 799 Day cares must test all drinkable water sources for lead.
• HB 1080 Firearms or other weapons; unauthorized to possess on school property.

• HB 2 - Criminal history record information check required to transfer firearm; Family exception, which may be illusory. This bill, in the substitute version that passed the House, has extensive exceptions for transfers within the family -- in one of its code sections, an entirely new Section 18.2-308.2:5. That "exceptions" subsection begins, "Notwithstanding the provisions of subsection A [of this new Section] and unless otherwise prohibited by state or federal law, a person may transfer a firearm to another person if ..." 

        But the same bill also adds a sweeping statement with no such exceptions at the beginning of existing Code Section 18.2-308.2:2: "All firearm sales or transfers, in whole or in part in the Commonwealth, including a sale or transfer where either the purchaser or seller or transferee or transferor is in the Commonwealth, shall be subject to a criminal history record information check unless specifically exempted by state or federal law." 

        I for one am completely unsure which section is supposed to trump the other. The exceptions clause is framed only as an exception to that particular Code section, and includes the caveat, "unless otherwise prohibited by state or federal law". Such a "state law" would likely include the existing section with its new amendment requiring a lengthy background check process for all transfers, no exceptions. But that section, in turn, says, "unless specifically exempted by state or federal law." Would that include an exemption whose text is only written to apply within its own Code section? Seems like a chicken-or-egg problem. Although I would hope that any future interpretation would conclude that the legislature could not have intended a ten-point list of exceptions to be completely inoperable.

Education

• HB 410 Parents must be notified when student gets  literacy or "Response to Intervention" screening and services
• HB 256 Criminal disorderly conduct does not include things students do in school, on bus, or at school-related activities
• SB 3 Disorderly conduct; student not guilty of disorderly conduct in a public place if incident occurred on school property, on school bus, or at school sponsored event.
• HB 257 Schools don't have to contact police about all conduct that might be a misdemeanor
• SB 729 Schools don't have to contact police about all conduct that might be a misdemeanor
• SB 186 IEP teams must consider appropriate instruction about sexual health, self-restraint, self-protection, respect for personal privacy, and personal boundaries
• SB 238 Increases required kindergarten hours 83%
• HB 999 Schools must have epinephrine constantly accessible, along with staff trained to administer it 
• SB 44 Lets students keep and bear sunscreen without a doctor's note, etc.
• HB 1012 Early childhood care and education; establishes comprehensive public-private system basically like the school system, and operated and regulated by the Department of Education.

Health

• HB 134 IEP teams must consider appropriate instruction about sexual health, self-restraint, self-protection, respect for personal privacy, and personal boundaries
• HB 687 Doulas to be state-regulated, registered and certified
• SB 423 Health insurance; mandated coverage for hearing aids for minors.
• SB 213 Study increasing the Personal Maintenance Allowance for people receiving Medicaid, etc.

Mental Health

• S.B. 713 Establishes state licensing for art therapists; emergency regulations shall issue to implement this.
• SB 633 Music therapy to be strictly licensed and regulated
• S.B. 1046 Adds clinical social workers to the list of providers who can disclose or recommend the withholding of patient records.
• HB 308 Students' excused absences for mental and behavioral health reasons, DOE to create guidelines
• HB 42 Health care providers must be trained in screening patients for prenatal and postpartum depression

Military Families

• HB 967 Military service members' spouses: expediting the issuance of professional credentials
• HB 143 Unemployment compensation for leaving employment to follow military spouse

LGBT Issues

• HB 145 Statewide minimum guidelines on treatment of transgender students to be developed; public elementary and secondary schools must adopt or exceed them.
• HB 386 Conversion therapy: state-licensed health care providers, and other state-licensed professionals who do counseling, must not do conversion therapy for minors. No state benefits, funds, contracts or grants to any entity that does it for minors.
• SB 161 Statewide minimum guidelines on treatment of transgender students to be developed; public elementary and secondary schools must adopt or exceed them.
• HB 1490 Repeals laws against same-sex marriages and civil unions.
• SB 17 Repeals laws against same-sex marriages and civil unions.
• SB 657 New birth certificates to show change of sex: an affidavit of appropriate gender-transition treatment from a health care provider may be required, but no evidence of any medical procedure shall be required
• SB 245 Conversion therapy: state-licensed health care providers, and other state-licensed professionals who do counseling, must not do conversion therapy for minors. No state benefits, funds, contracts or grants to any entity that does it for minors.
• HB1041 New birth certificate for sex change may require proof of clinically appropriate treatment, but shall not require any medical procedure.
• HB 623 Gender-neutral terms throughout the Virginia Code, including laws that punish incest, defaming a lady's "virtue and chastity", or leaving one's wife in a "bawdy place", whether that is for the purpose of prostitution or for "unlawful sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus"; removes prohibitions on same-sex marriage and civil unions. Seems a bit of a mixed bag for the cause of gay rights.

Abortion

• HB 980 Abortion: Informed consent no longer includes ultrasound, provision of specified information, or offer to review certain printed materials; physician's assistants and nurse practitioners can perform abortions, abortion facilities will not have to comply with regulations for hospitals.
• SB 733 Abortion: Informed consent no longer includes ultrasound, provision of specified information, or offer to review certain printed materials; physician's assistants and nurse practitioners can perform abortions, abortion facilities will not have to comply with regulations for hospitals.

Criminal

• HB 1071 Legalizes profanity in public.
• HB 245 Repeals the crime of fornication, i.e., voluntary sexual intercourse by an unmarried person.
• SB 378 Computer trespass; expands the crime. No longer requires "malicious intent" if done "through intentionally deceptive means and without authority." Eliminates "without owner's authorization" element in prohibition on installing keylogging software "on the computer of another" -- the "without authority" element still applies, but that element is only an alternative to the "malicious intent" requirement.

DEAD (BY VARIOUS METHODS AND EUPHEMISMS):

Custody/Parenting Time

• HB 485 Requires courts in custody and visitation cases to "when appropriate, assure frequent and continuing contact with each parent" -- BUT WATERED DOWN EVEN FURTHER TO MERELY ADD "when appropriate, frequent and continuing contact with each parent" TO THE LIST OF FACTORS TO CONSIDER. And even that was apparently too much for a majority of the House, who, in a move I haven't noticed before, approved the committee substitute for the bill but then voted against "engrossing" the bill instead of voting against passing it. I assume that kills it.
• HB 350 Requires courts in custody and visitation cases to "when appropriate, assure frequent and continuing contact with each parent"
• SB 571 Grandparent visitation when parent dead: factors court must consider, including parties' motivations
• SB 431 Mental health professionals may not restrict parents' access to health records, or refuse to testify, as a condition of providing services.
• SB 61 Using cannabidiol oil or THC-A oil on doctor's written advice shall not be the sole reason for denying or restricting custody, visitation, adoption or foster parenthood.
• SB 872 Circuit or district court may appoint GAL in custody or visitation case, subject to standards, payment governed by Code § 16.1-267 which seems to provide for extremely low payment and to be designed for various other kinds of cases.

Support

• SB 502 When child support is paid through Department of Social Services, the Department must pay the recipient even if the payor does not pay.
• HB 82 Spousal support to be based net income, not gross; earning capacity may no longer be considered when determining spousal or child support; spousal support shall not exceed payor's net income.

Marriage

• SB 19 Records of marriages shall not require identification of race.
• HB 863 Person to perform marriage may be designated by marriage license applicant instead of by a judge's order; may perform it anywhere in the state; no bond required for such persons, nor for Quakers performing marriages; record of marriage may be filed by one of the newlyweds or the celebrant; no jail for performing unlicensed marriage or issuing unlawful marriage license.

Divorce

• HB 291 Uniform Collaborative Law Act
• SB 844 Computer trespass; expands the crime. No longer requires "malicious intent" if done "through intentionally deceptive means and without authority." Eliminates "without owner's authorization" element in prohibition on installing keylogging software "on the computer of another" -- the "without authority" element still applies, but that element is only an alternative to the "malicious intent" requirement. [Incorporated with SB 378]
• HB 1530 No-fault divorce grounds corroboration requirement repealed

Adoption

• HB 1662 Repeals the 7/1/20 "sunset" of requirement to consider results of nationwide criminal background check in a stepparent adoption

Child Abuse/Foster Care

• HB 580 Child abuse and neglect includes inflicting, creating, allowing or threatening any physical or mental injury based on gender identity or sexual orientation.
• HB 289 Requires that interviews of child victims of alleged sexual abuse be conducted as a forensic interview at the local child advocacy center
• HB 252 Causing or encouraging acts rendering children sexually abused; penalty.
• HB 288 Criminal sexual assault; definition of sexual abuse, complaining witness under age 13
• SB 32 Corporal punishment of a child with an object; penalty.
• HB 920 State-Funded Kinship Guardianship Assistance program created to facilitate child placements with relatives, including "fictive kin", and ensure permanency for children in foster care. "Fictive kin" means persons who are not related to a child by blood or adoption but have an established relationship with the child or his family.
• HB 809 Welfare department must investigate any report of child abuse and neglect by any "relative by blood, marriage, or adoption, caretaker, or other person with supervisory control over the child or responsible for his care or ... person who resides or is regularly present in the same household as the child."
• HB 1051 Repeals "conscience clause" that allowed child-placing agencies to refuse to perform, assist with, counsel, recommend, consent to, refer, or participate in any child placements that violate the agency's written religious or moral convictions or policies.  Prohibits the Department of Social Services from contracting with or providing funds, directly or indirectly, to any child-placing agency that discriminates against the child or otherwise eligible prospective foster or adoptive parents on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, marital status, or status as a veteran.
• HB 673 Cruelty to children; increases penalty to a Class 4 felony.
• SB 878 Court-appointed counsel for parents in child welfare cases to get additional compensation in the very low three figures
• SB 501 Adoption and foster care home studies may be done by anyone who has completed the training program; regulations to be issued.

Sexual Abuse/Assault

• SB 440 Electronic transmission of sexually explicit visual material by minor: misdemeanor, if the perpetrator is the only person in picture or if less than 10 pictures of another minor; alternative sentencing, rehabilitation programs, community service, avoiding permanent record or sex offender status.
• HB 462 Certified sexual assault nurse examiners; Secretary of HHR to study shortage.
• HB 251 Prostitution-related crimes; minors, including taking minors or spouse to "a bawdy place", expands sex offender registry, trafficking, pimping, racketeering

Domestic Violence/Protective Orders

• HB 1001 Assault and battery against a family or household member; prior conviction, term of confinement.
• HB 628 Lets courts sanction people for filing certain claims in retaliation for, or in order to discourage, actions taken by victims of violence to obtain an order of protection or to pursue criminal charges. This "includes any claim of defamation, intentional infliction of emotional distress, malicious prosecution, or abuse of process that is filed in retaliation for or in order to chill, discourage, or limit any legitimate action taken by a victim of (i) family abuse; (ii) an act of violence, force, or threat; (iii) stalking; or (iv) sexual assault to obtain any order of protection or criminal charges based on such family abuse, act of violence, force, or threat, stalking, or sexual assault. Any such pleadings found by a court of competent jurisdiction to lack either justification in existing law or a good faith argument for the extension, modification, or reversal of existing law shall be presumed to have been filed for an improper purpose."
• SB 76 No guns for people under any protective orders, not just those for family violence. But keeps 24 hour grace period to transfer guns.
• SB 145 Assault, assault and battery, or bodily wounding of a person protected by a protective order is a Class 6 felony. Currently, this is only if it results in serious bodily injury.
• HB 159 Protective order may prohibit using any electronic device to remotely control anything in or around petitioner's home
• HB 1077  Lets minors petition for a protective order on their own behalf
• HB 498 Anyone with a permanent protective order will get a wallet-sized "Hope Card" with basic info about the order and the people it protects and restricts.
• SB 82 Protective order; violation of order, armed with firearm or other deadly weapon.
• SB 89 Protective orders; violation of order while armed with firearm or other deadly weapon, etc.
• SB 372 Protective orders; possession of firearms, surrender or transfer of firearms, penalty.
• SB 574 Protective orders; petitioning court on behalf of incapacitated persons.
• SB 490 No guns after conviction of stalking, domestic violence or sex assault; criteria for restoring gun rights.
• HB 867 Single-sex domestic violence shelters allowed.
• HB 78 No guns after even one misdemeanor household-member assault & battery conviction; criteria for restoring gun rights.
• HB 470 Protective orders; non-lawyer social services department employees can petition court for protective orders on behalf of incapacitated persons
• HB 625 Redefines family abuse, as grounds for protective order, to include identity theft
• HB 1288 No guns after two misdemeanor household-member assault and battery convictions; criteria for restoring gun rights.
• HB 1182 Protective order may include temporary spousal support and restitution for property damage, medical bills and other financial loss caused by abuse.
• SB 534 Anyone with a permanent protective order will get a wallet-sized "Hope Card" with basic info about the order and the people it protects and restricts.

Child Safety

• HB 939 Public high schools must teach firearm safety education, and must do so without firearms.
• S.B. 129 Public high schools must teach firearm safety education, and must do so without firearms.
• HB 955 Children's online privacy protection; release of personal information prohibited.
• SB 16 Assault firearms and certain firearm magazines; prohibiting sale, transport, etc., penalties.
• SB 18 Firearms; restricting access under age 18, purchase under age 21
• HB 72 Allowing access to firearms by children; recklessly leaving loaded, unsecured firearm. [incorporated into HB 1083]
• SB 75 Minors; allowing access to firearms, penalty.
• HB 463 Minors; allowing access to firearms [incorporated into HB 1083]
• SB 117 Day care operated in homes needs license if caring for three or more children (current law is five)
• SB 581 Minors; allowing access to firearms, Class 6 felony. Limits
• HB 356 Child labor; employment of children on tobacco farms
• HB 675 License restrictions for minors; use of handheld personal communications devices.
• HB 853 Firearms; recklessly allowing access to certain persons (including minors, but with major exceptions, see Va. Code § 18.2-308.7)

Elder Law/Wills/Trusts/Probate

• HB 736 State estate tax reinstated, unless most assets are in a working farm or closely held business
• HB 96 Powers of attorney must be signed in presence of a witness or notary public
• HB 76  In suits on written contracts subject to 5-year statute of limitations; if a potential party is a missing person judicially declared dead and the cause of action accrued after they went missing, executor of estate has one year from the declared-dead order to file suit.
• HB 862 Guardianship; limits on how guardian may restrict communication with close relatives and friends; procedure and standards for courts to resolve disputes about such communication; guardian who restricts communication in bad faith or in his own interest may have to pay others' costs.
• HB 304 Guardianship and conservatorship petitions must include identifying characteristics/description of the respondent, which shall be included in the information sent to the Criminal Records Exchange.
• SB 352 Encourages avoiding guardianship and conservatorship when a "supported decision-making agreement" is feasible instead; GALs in adult guardianship cases must consider and report on that alternative.
• HB 841 Guardianship suits: person it's about shall have right to counsel and to participate and be heard. If not represented, counsel must be appointed. 
• HB 1321 Supported Decision-Making Act: allows an adult with an intellectual or developmental disability to enter into an agreement with another person, called a "supporter," who will assist the adult in making decisions to manage his affairs, giving them a less restrictive means of receiving assistance than being appointed a guardian or conservator by a court.
• SB 308 Accounts filed by fiduciaries and reports filed by guardians must be signed under oath under penalty of felony perjury
• SB 697 Execution of wills; requires the witnesses to be disinterested, meaning having no personal or beneficial interest in the will. Being a fiduciary, guardian or counsel does not prevent someone from being disinterested.
• SB 359 Deed of gift of real estate requires title search for recordation
• HB 331 No one particular clinical diagnosis automatically means you're incapacitated.
• SB 1042 Wills; codifies common-law presumption of undue influence. There is a rebuttable presumption of undue influence on a testator if the testator (1) was mentally feeble when his will was made, (2) named a beneficiary who stood in a relationship of confidence or dependence to the testator; and (3) previously had expressed an intention to make a contrary disposition of his property.

Procedure

• S.B. 663 All health practitioners must assist and cooperate with their patients' litigation and attorneys
• SB 1060 For good cause shown or upon agreement of all parties, the court may dismiss a case without prejudice.  Plaintiff may re-file within the original period of limitation.
• SB 334 Court Reporters to be licensed and regulated
• HB 712 Lets legal notices appear in online publications [Incorporated into HB 588] 
• HB 588 Lets legal notices appear in online publications
• HB 95 Decisions that a person is not in contempt of court can be appealed to the Court of Appeals.
• HJ 22 Study deficient/outdated training of substitute and retired district court judges
• HB 163 Contempt of court "summary punishment" -- increases max penalty to 30 days
• HB 1206 Court may order state payment of GAL for good cause shown in any civil case.
• HB 401 Court-appointed counsel for parents in child welfare cases to get additional compensation in the very low three figures
• SB 529 Slight change to hearsay exception for past statements by a person who is now dead or incompetent.

Education

• HB 158 Tax deduction for K-12 school tuition or home instruction expenses
• HB 332 Students must receive "rapid automatized naming" and "rapid alternating stimulus" (RAN/RAS") tests for dyslexia and other reading difficulties
• HB 678 Parental Choice Education Savings Accounts
• HB 1277 Public schools; reduces number of Standards of Learning assessments, report.
• SB 390 Reduces Standards of Learning assessments to the federally-required minimum
• HB 926 Income tax, state; credit for employer contributions to Virginia College Savings Plan accounts.
• HB 223 Education, recommendations for improving civic education.
• HB 197 Financial literacy objectives; study incorporating them into math SOL
• HB 455 TANF (welfare) receiving families to get community college scholarships in pilot program

Health

• HB 823 Health Insurance Premium Payment program coverage expanded
• S.B. 858 to license and regulate naturopathic doctors
• SB 104 Vaccinations and immunizations; certain minors given authority to consent.
• HJ 18 Universal health care; study cost of implementing in the Commonwealth
• HB 529 Universal health care; study options for financing.
• SB 946 State medical-assistance funding for doulas' services.

Mental Health

• HB 40 Public schools must have mental health break spaces
• SB 315 Emergency rooms must screen for depression, provide info/referrals

LGBT Issues

• HB 966 Limits regulation of Conversion Therapy to protect "the fundamental right of an individual to select for himself, based on an informed and voluntary choice, a form of counseling that involves nothing more than 'talk therapy,' regardless of the age of the individual, including in situations where the patient is seeking such counseling to assist him in reducing or eliminating unwanted attractions or behaviors or concerns about gender identity."

Military Families

• HB 930 Military service members' and veterans' spouses: expediting the issuance of professional credentials [Was incorporated into HB 967]

Abortion

•  SJ 2 Constitutional amendment; right to personal reproductive liberty
• HB 1473 Surrogacy contract provisions requiring abortion or selective reduction unenforceable, void, against state public policy.
• S.B. 635 Right to reproductive choice, fundamental right to choose or refuse contraception or abortion. Even for persons under state control or supervision. Any state or local official charged with violating this can be sued in state or federal court, for injunction or damages, by any person or entity.
• SB 21 Abortion; repeal of parental/judicial consent requirement for minors, and other restrictions (incorporated into SB733)
• HB 1445 All health insurance plans must cover abortion, contraception and many other "reproductive health" and women's health services. Extremely narrow exception for "religious employers".
• HB 526 All health insurance plans must cover contraception and many other "reproductive health" and women's health services. Covering abortion is required when mother's life endangered or after rape or incest. Extremely narrow exception for "religious employers".
• SB 917 All health insurance plans, including state ones, must cover abortion, voluntary sterilization, genetic mutation screening/counseling, domestic violence screening/counseling, STDs, all forms of contraception, and many other "reproductive health" and women's health services. A very few strictly-defined "religious employers" might get an exception from abortion-funding requirement.
• SB 920 Surrogacy contract provisions requiring, or prohibiting, abortion or selective reduction are unenforceable, void, against state public policy.

Criminal

• HB 1070 Legalizes spitting

Teasingest headline ever in Virginia Lawyers Weekly: "No-fault divorce law unconstitutional, judge rules"

No-fault divorce law unconstitutional, judge rules

By: Peter Vieth September 9, 2019 - Virginia Lawyers Weekly

(Actually, what Fairfax judge Steven Shannon ruled was that in a husband-free marriage, it was unconstitutional for the law to require that a “husband and wife” live apart in order to qualify for a divorce. He said he could invalidate the law providing for no-fault divorces until the legislature fixed it, but it would be more consistent with the law's purpose for him to extend its "benefits" to include same-sex couples instead.)

Family law attorneys saw Kelly Rutherford case as something completely different.

"Everything the Media is WRONG about in Kelly Rutherford Custody Case" on the Divorce Matters Blog

Martha Raye: Bigger than Henry VIII in Divorce, Marriage

Singer and actress Martha Raye, honored for her tireless work with the troops in WW2, had <a href="https://en.m.wikipedia.org/wiki/Martha_Raye">seven marriages, lasting between 4 months and 9 years and averaging 3.5 years. She had 6 weddings in 19 years, 1937-1956. After her 6th divorce in 1960,</a> she abstained from marriage, or maybe marriage abstained from her,  until 1991.  She died in 1994, at 78 years old and still married and living with her husband,  and was buried with military honors at Fort Bragg, North Carolina. 

 

Forbes & "Above the Law" get one wrong -- there's no tax on divorce settlements

"Examples of settlements facing tax on 100% include recoveries ... from your ex-spouse for claims related to your divorce or children," tax lawyer Robert Wood wrote in Forbes recently. "Defamation, financial fraud, divorce, malpractice, false imprisonment — clients will be paying taxes on 100 percent of their recovery on all of these." --  Joe Patrice blogged at Above the Law. 

Nope. What you get in a divorce is not taxable as income, and that is absolutely unchanged in the new tax act. Tax Code Sections 102 and 1041 ensure that. They do so by treating a divorce settlement as a "gift", which is mostly wrong, archaic, and insulting to women, but it gets the job done. As the IRS's guide to all things divorce-related, Publication 504, puts it, 

"Property you receive from your spouse (or former spouse, if the transfer is incident to your divorce) is treated as acquired by gift for income tax purposes. Its value isn’t taxable to you."

The latest edition of Publication 504 is from before the 2017 tax reforms, but again, the relevant parts of tax law weren't changed at all.

New Tax On Lawsuit Settlements -- Legal Fees Can't Be Deducted

By Robert W. Wood in Forbes

Tax Law’s Latest Victims: Our Clients

 By JOE PATRICE at Above the Law

 

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

• Divorce Corp Movie: All-or-None Thinking? By Bill Eddy
• Divorce Corp Movie Review Pt. 2 By Bill Eddy
• Rosenblum: 'Divorce Corp.' is stark reminder of high costs of U.S. breakups 
• "An Essay on Divorce Corp., The Movie" By family law attorney Diana Mercer on Huffingtonpost.com
• "Divorce ‘documentary’ shows little to no reality" by family law attorney Gregg Herman in Wisconsin Law Journal

 

 

Movie from family law's good old days

In The Big Broadcast of 1938, Bob Hope got out of "Alimony Jail" and joined his three ex-wives and one girlfriend on W.C. Fields's ocean liner for a race to France. They don't make divorce like they used to.

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

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.