Raleigh, NC lawyer Lee Rosen has been THE cutting-edge lawyer for every new innovation in law practice and firm management for the past 20 years, at least in my field, family law. When a friend of mine got a job with him in the late '90s, she wasn't given her own office or cubicle -- no one was. Instead, the firm had different areas for doing different kinds of work, like a hospital. It was exactly what she needed, as someone who, like many of us, had trouble focusing and staying on task without some social and environmental reinforcement. Already, back then, The Rosen Firm had a form on its web site where you could check boxes for all the different issues in your family law case and get a quote for the firm's flat fee, a billing practice that eliminates most of the worry, friction, heartache and regret from the attorney-client relationship. Later I got a notice that the firm was closing its offices and replacing them with home/mobile offices and small conference centers. If it had been anyone else, it would have been a self-parodying last hurrah of a quickly-disappearing business, but since it was from Lee, I knew it was the wave of the future -- indeed, a long-overdue adaptation to the present. Lee -- still the owner of a relatively large law firm for our field -- posted a picture of his office -- his Macbook Air on a small folding bookcase in his kitchen. Then I heard he was getting rid of all his books via a service that scans them for a flat fee of a dollar apiece. Then most of the stuff in his house. Then his house, following the same principle he already applied to office equipment, software, data storage, and most clerical services: why own when you can rent, why lease when you can month-to month, why that when you can on-demand? Today he's more prominent as a firm management consultant, trainer and speaker. He has always kept a hawk's eye on customer service, and on what everything we do looks and feels like to potential clients, and what they expect from other businesses they deal with.
Anyhow, today's issue of Divorce Discourse, Lee's longtime blog/newsletter, is titled "How Family Law Is Like Pornography". Its news was shocking and frustrating, at least to divorce lawyers: A message from Google's web advertising service said that "interest-based" banner/sidebar advertising would no longer include several sensitive subjects, including divorce. A sobering reminder of where family law stands.
And yet, when you think about it, it makes sense. These are ads that tell you, and anyone looking at your computer, what you have been searching for and reading. And of course it's not really censorship, that's just a shorthand, in a twitter-length headline, for a decision by a private company about who to do business with and what unsolicited images and words to stick into people's computer screens.
OK, not the whole truth, but the wholest truth I've ever seen in one place in a child custody case, is in the guardian ad litem report (via Michigan international family lawyer Jeanne Hannah; may no longer be online) These GAL reports are generally not made public, but any damage from that is minor compared to what all members of this family have inflicted on themselves for the past five years.
[UPDATE: The court later did exactly what the GAL report, and this blog post, suggested! Here's the latest: "Dad in bitter divorce wants mom blocked from contact", Detroit News, 9/9/15]
The GAL report DOES NOT recommend jailing the children. It recommends a far simpler and more direct solution: immediately giving the father visitation with each of them separately, one on one. Supervised, but reluctantly and only to protect the father from accusations. The court in this case has imposed endless￼ shows of governmental force and therapy on these children, who were not impressed by any of it. But in my experience, what really works is placing them directly with the other parent, and in many cases, changing custody permanently. Many children in divorces will go to extremes to do what they think pleases and aligns with the parent who appears to have the power and control. And when that control changes, they can turn on a dime.
Almost every experienced family lawyer has had several cases like this. Something to remember when we are told that the government and society should not care whether a marriage can be saved.
(There has been a lot of very informed discussion on family lawyers' discussion forums, including very prominent leaders in the profession, and they almost all sympathize with the father although they don't support jailing the kids. I "red shirted" this posting while I got permission to quote some of the best comments from the lawyers' listserv. But that effort has languished what with new family law news coming along, and a whole lot of work on an upcoming custody trial, an appeal brief, a book revision and preparing materials for a continuing-ed seminar. I hope to post them in the future the next time this is in the news.)
Meanwhile, Maryland family lawyer and family law professor Dawn Elaine Bowie, an early local advocate of Collaborative Divorce, makes a similar point, but not exactly the same, in wonderfully brief and to-the point fashion:
By Dawn Elaine Bowie, Owner and Managing Partner, Maryland Family Law Firm, L.L.C. -- Sep 6, 2015
"This is not actually unusual in family law." That's the most typical thing we say on this blog, and the main reason I started it. To give the public and journalists background whenever -- and ideally before -- the media blows up with some story that essentially says, "In a shocking and unprecedented development which must be caused by corruption, politics or ideology, a mother lost 'full custody'! / was barred from moving her baby across the country / an American citizen was forced to return her children to the foreign country where they were born and raised! / a soldier was forced to share his pension with his slutty ex! / a child was forced to spend time in the care of his father when she could instead be in quality day care! / a white woman was jailed for disobeying a court order! / an orphaned child was sent to his non-custodial father instead of the heirs whom the mother left custody to in her will!"
What this blog usually says in such cases is no, that's actually routine and what happened in this case was for reasons that we in the family law field have come to accept as normal. So if you don't like it, you should realize that the problem is not with one judge who is corrupt, or anti-female or anti-male, rather, this is just one of thousands of similar cases of widespread suffering and irrepressible conflict that our current system, and perhaps any system of widespread family breakup, imposes on men AND women! And children.
We've also been able to say when a court decision truly is a wrongheaded outlier, such as the one forcing skier Bode Miller's ex-girlfriend to move across the country to give birth.
The case that's breaking the internet today is a little bit of both kinds:
By JOE PATRICE on abovethelaw.com, 9/2/15
The court opinion in the case includes two good and routine reasons to dismiss both parties' dueling divorce claims -- failure to prove the divorce grounds, and non-compliance with the court's procedural rules. Independently of the bad, creative, and publicity-attracting argument that the US Supreme Court has preempted any action on marriage by any other levels or branches of government.
If you read it to the end, it dismisses the divorce claims not only for for one bad reason, which is, as I had suspected when I first heard of this, a counterpart to the liberal judges who used to deny DV protective orders based on DOMA just to make DOMA look savage and harmful; a very good reason (failure to prove the divorce grounds), and a so-so but widely accepted reason (complete failure to comply with procedural requirements of local rules, such as filing financial statements).
It looks like the parties had normal relations the very night before the divorce complaint was filed and/or served. This cast doubt on the "irretrieveable breakdown" claim and also on the credibility of other claims in the complaint. And there were other problems with the parties' credibility. Quotes:
"The Court is also compelled to comment upon its observations concerning the credibility and demeanor of thePlaintiff and Defendant. As noted when the Court announced its decision, this matter suffers from a bad case of excellent cross- examination. Perhaps the Court's observation as announced was less than delicate, but the fact that the parties were gutted like a fish during cross-examination is nonetheless accurate."
... "The only excuse for Plaintiff' s decision to be intimate with Defendant after she had executed her 'fear for her safety' verification page in support of the divorce and request for a TemporaryRestraining Order was 'I wanted to give him one more chance' to avoid the filing."
Tennessee often has cases denying divorces because "irrevocable breakdown" was not proven. Even in Virginia, where no-fault is a matter of six or twelve months of separation with intent to permanently separate, I've had that happen, rarely but always with very good reason. (In one such case, the couple later reconciled and the wife became a marriage therapist.) Divorce cases also get dismissed for procedural reasons, such as failure to prosecute with a speedy trial, since they don't want cases hanging around on the court's open-case docket forever, making the court's statistics look bad. (Even if there are good reasons for the delay, such as the parties working on reconciliation or dealing with other more pressing issues such as a child's medical or mental health crises.)
It's very disappointing that abovethelaw.com, which I believe is a blog specifically about the law, merely calls the judge "stupid" instead of looking at the actual law and reasoning involved in the case.
Virginia appellate court expert J. Steven Emmert put his finger on the main reason I founded this blog:
"News reporting of a trial is often not a good indicator of how the case is actually going. You may have seen skeptical views of the evidence from this news story or that opinion writer, but trust me: you cannot evaluate the evidence in a case unless you watch the evidence and listen to the testimony, just as the jurors do. News reports sometimes don’t convey the main thrust of the evidence or the nuances of the testimony."
Emmert, "FOURTH CIRCUIT AFFIRMS McDONNELL’S CONVICTION", posted July 13, 2015.
Reading the fact summary in a court opinion can also be a lousy way to learn the real facts -- my father and law partner Richard Crouch used to say that when he read the opinion in one of his own cases, he could barely even recognize that it was the same case. One reason is, as Emmert writes about gov. Bob McDonnell's case:
"An appellate court has to set out the facts in the light most favorable to the lower-court winner. So if today’s factual recitation seems slanted in favor of the government, that’s both understandable and completely normal."