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 


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

 


Judicial independence is threatened because self-satisfied courts & lawyers don't listen, don't explain, don't adapt to public's needs

So says Jesse Rutledge of the National Center for State Courts in Williamsburg, Virginia, based on the Center's annual surveys of public opinion about the courts, and decades of working on how the courts interact with the population:

"It’s really easy to blame efforts to erode the independence of our courts exclusively on shrill politicians or the fragmented news media. ... With all this outside pressure, is it any wonder that public trust in the courts—the stock and trade that underpins the ability of the courts to be independent—continues to erode?

"Unfortunately, those of us on the inside of the system may have myopia. ...  The data shows that Americans who have had direct interactions with courts trust the judiciary less than those who haven’t. Put differently, those who come to our courthouses aren’t as impressed with what they see as we are with ourselves.

"... Courts must take swift action to improve customer service, simplify forms and processes, and move as much of their routine business online as is practicable for their community. Americans perceive judges and the lawyers who appear in their courtroom as sharing an interest in delay, and at the same time an increasing number feel they are being shut out of the legal system entirely. Simplifying byzantine forms and procedures could go a long way to allowing more people to help themselves. ...

"Americans are sending a clear message about their courts. They don’t need another lecture on the virtues of jury service. Instead, they want courts that are accountable, connected to their communities in meaningful ways, and where they are able to take care of routine business expeditiously. Court users—whether they are litigants, jurors, or those seeking to pay for a traffic infraction or to file a simple form at a clerk’s window—should be placed in the middle of every equation, not treated as an afterthought."

Supporting independent courts—from the inside out


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."

 


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

 

 


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Kentucky enacts 50-50 custody presumption

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

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

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

Full text of bill and amendments

h/t Larry Gaughan, Creative Divorce Network