The original headline is definitely misleading. Depending on what you think is unconventional. The story is about marriages of "one man, one woman."
Bills would let unregulated gov't non-lawyers file serious court cases against parents, without a lawyer's signature
A bill now in Virginia's Senate and House of Delegates would let Virginia welfare agencies file court cases against parents without a lawyer signing off on the case -- fundamentally changing the traditional role of law practice as a regulated, accountable profession bound by ethics rules. These are very serious cases that can take apart families, destroy parents' finances and livelihoods, and lead to their being jailed for contempt.
Currently, legal ethics rules, court rules, and the Sanctions statute require all lawsuits to be signed by a lawyer (except for people who represent themselves), and require the lawyer to believe, after due investigation, that the suit is well-founded in the facts and the law and not filed simply to harass, impoverish or delay the other party. They also require lawyers to be truthful to courts, opponents and others involved. The bill, and the statutes it amends, do not do anything to make these new case-filers subject to those rules. And even if it did, that would not be the same as requiring a lawyer to put her credibility and hard-earned license on the line every time she signs a court filing.
Welfare agencies do great work but like anyone, they do get things wrong, out of negligence or simply normal human imperfection, not malevolence or corruption. Requiring a lawyer to sign off on these case filings is an important protection for the public, reducing the chances of a completely groundless prosecution, ensuring due process of law, and providing accountability when things go wrong. An example, where a judge felt strongly that sanctions and lawyers' fees should be awarded to the victim of a groundless civil child-abuse suit, is FAIRFAX COUNTY DEPT. OF HUMAN DEV. V. DONALD, 251 Va. 227 (Va. 1996).
The drafters seem to think that providing standard, foolproof check-box forms (which already exist) removes the need for lawyers. But having non-lawyers draft the forms is never a problem and is not the issue. The issue is protecting citizens and courts, by holding even the do-goodingest government agencies to the same basic rules that govern any other person, corporation or agency that takes someone else to court.
The bill adds to Code § 16.1-260 on Juvenile Court filings:
"designated nonattorney employees of a local department of social services may complete, sign, and file with the clerk, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, and motions for a rule to show cause;"
[Note: "Motions to amend or review" includes modification of any existing child custody, visitation or placement order. "Rule to show cause" means contempt of court, including up to a year in jail and setting amounts of support arrears to be paid in order to get out of jail.]
It adds to § 54.1-3900, on who can practice law:
Nothing herein shall prohibit designated nonattorney employees of a local department of social services from appearing before an intake officer to initiate a case in accordance with subsection A of § 16.1-260 on behalf of the local department of social services.
Nothing herein shall prohibit designated nonattorney employees of a local department of social services from completing, signing, and filing with the clerk of the juvenile and domestic relations district court, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, or motions for a rule to show cause.
And it adds to Code § 63.2-332, "The local director shall designate nonattorney employees who are authorized to (i) initiate a case on behalf of the local department by appearing before an intake officer or (ii) complete, sign, and file with the clerk of the juvenile and domestic relations district court, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, or motions for a rule to show cause."
The proposal is in two bills which appear identical: House Bill 589 and SB 417. SB 417 passed the State Senate 20 to 17, with three Senators not voting. I'm proud to say my William & Mary law classmates Jennifer Wexton and Ryan McDougle, Fairfax Senators Chap Petersen and Scott Surovell, my old Senator Tommy Norment, and Donald McEachin all voted Nay. It is now in the House Courts of Justice - Civil Law Subcommittee. It is on the Committee's agenda for this coming Monday, Feb. 22. The subcommittee's members are Delegates Habeeb (Chairman), Kilgore, Loupassi, Minchew, Leftwich, Campbell, Miyares, Toscano, McClellan, and Krizek. The full Courts committee's members are Delegates Albo (Chairman), Kilgore, Bell, Robert B., Cline, Gilbert, Miller, Loupassi, Habeeb, Minchew, Morris, Leftwich, Adams,Campbell, Collins, Miyares, Watts, Toscano, Herring, McClellan, Hope, Mason, and Krizek.
HBl 589 passed the House almost unanimously and is now in the Senate Courts of Justice Committee, which also meets this coming Monday.
Almost as bad, I see that Code § 54.1-3900 already has existing language allowing this practice for child-support filings. Even though Social Services already has its own internal administrative tribunals that can make and review child support orders without lawyers. It reads:
Nothing herein shall prohibit designated nonattorney employees of the Department of Social Services from completing, signing and filing petitions and motions relating to the establishment, modification, or enforcement of support on forms approved by the Supreme Court of Virginia in Department cases in the juvenile and domestic relations district courts.
If I understand correctly, this was added a few years ago to protect the validity of existing support orders after it was discovered that some non-lawyer social services employees were already doing this. But they could have done that without allowing the practice to continue and be authorized by the state. The existing language is bad enough but the new version would cover many more kinds of cases. Ideally, an amendment-as substitute should delete that existing language and drop all the new language currently in SB417.
If you want to see what protections this bill takes away from parents, Here is Code § 8.01-271.1:
§ 8.01-271.1. Signing of pleadings, motions, and other papers; oral motions; sanctions.
Except as otherwise provided in §§ 16.1-260 and 63.2-1901, every pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, and the attorney's address shall be stated on the first pleading filed by that attorney in the action. A party who is not represented by an attorney, including a person confined in a state or local correctional facility proceeding pro se, shall sign his pleading, motion, or other paper and state his address.
The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, written motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.
An oral motion made by an attorney or party in any court of the Commonwealth constitutes a representation by him that (i) to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and (ii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
If a pleading, motion, or other paper is signed or made in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed the paper or made the motion, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper or making of the motion, including a reasonable attorney's fee.
In a case that has gone on for years now, a couple found a sperm donor on craigslist instead of going to a sperm bank or fertility clinic. States have laws that say sperm donors won't be considered fathers, but they require several procedures, standards and safeguards, and a licensed clinic must be responsible for the procedure.
Some media coverage has perpetuated the inhumane, patriarchal, but still widespread notions that children are property to be bought and sold by contract, and that child support is a trade-off for visitation. Fox's WHTI TV 10 in Terre Haute, Indiana says in today's story on the case, "Kansas sperm donor fights back after state forces him to pay child support":
"'Angie and Jennifer are the parents,' Marotta said. The state of Kansas won’t accept that. Despite the fact that the lesbian couple and Marotta signed a contract giving up all parental rights to the child."
"According to Marotta his lawyer has only found one other case in the United States where this has happened, but in that case the sperm donor had changed his mind and requested visitation with the child. Something Marotta’s never wanted, or asked for."
The social services spokesperson quoted in the article has it exactly right:
“If an individual wants to have the protections of a sperm donor, he needs to follow the law. ... Parental rights can not be signed away without following adoption laws.
And that's exactly what those involved should have done, at least after Kansas's Supreme Court upheld a trial court decision recognizing gay co-parenthood in February of 2013. The Court's opinion in that case shows how it differs from this one:
The coparenting agreement before us cannot be construed as a prohibited sale of the children because the biological mother retains her parental duties and responsibilities. The agreement is not injurious to the public because it provides the children with the resources of two persons, rather than leaving them as the fatherless children of an artificially inseminated mother.
I am for freedom of contract and against government interference, far more than almost anyone else I know. But your freedom of contract ends where your children's fundamental rights and interests begin. Including the child's right to parents, recognized in the UN Convention on the Rights of the Child.* Because of that, courts and other government agencies are in charge of investigating and approving adoptions. That authority is exercised pretty minimally in cases that are based on mutual consent, particularly where one biological parent remains a parent, but it is still crucial for the government to have a role in any change so fundamental as changing who a person's parents are. This gives the state and judges a chance to oversee the process, to verify the parents' informed consent, to step in when it looks like the adoption is not in the child's interests, and to have uniform official records confirming legal parent-child relationships.
*Relevant Parts of the United Nations Convention on the Rights of the Child:
The family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community." (CRC Preamble)
The child ... shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents. (CRC Art. 7)
States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. (CRC Art. 8(1))
States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. (CRC Art. 9(1))
States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests. (CRC Art. 9(3))
States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. (CRC Art. 14(2))
Leading Minneapolis family lawyer Nancy Zalusky Berg shared this article, commenting that "the law in Minnesota is very clear - every parent is expected to work - there is no such thing as a stay-at-home mom anymore."
For many men and women, that's reality, that's modernity, that's how it should be. "Alimony" strikes them as a form of medieval serfdom. But for many other families I deal with in Northern Virginia, contemporary life is not really as modern as that idealized vision of economically autonomous individuals. And in fact, maybe that vision is not truly modern at all. Minneapolis family lawyer Michael Boulette says that for many, marriage is still more than a passing association of economic producers and consumers. People still sacrifice individual career goals for the family's overall well-being. I agree.
Maryland family law specialist Hadrian Hatfield notes that the new "Phased Reitrement" offered to federal employees will change now we divide their pensions in divorce cases, and may also affect alimony; but fortunately the government has anticipated this and its new regulations on the subject address how it affects family law, including both new pension-divisions and pased-retirees who already have court orders prospectively dividing their pensions.
"Six in 10 women describe themselves as the primary breadwinners in their households, and 54% manage the family finances, according to the poll by Allianz Life Insurance Company of North America. Even so, 49% fear becoming a bag lady ..." This includes 27% of women earning more than $200,000 a year"and 43% of married women.
More: "Almost half of American women fear becoming bag ladies, study says" - By Walter Hamilton, L.A. Times
". . . On Monday, the CFPB updated existing regulations so it will be easier for stay-at-home spouses to get credit cards. . . . At a Congressional hearing last June, Shelley Moore Capito (R-WV), chair of the House Financial Services Subcommittee on Financial Institutions and Consumer Credit challenged the CFPB and said the rule was a threat to women in abusive relationships and could create an added burden on those who are divorced or widowed, or who don’t work while their spouse is serving in the military."
- ABA Jnl. via Kansas family lawyer Ron Nelson
This is one of those things divorce lawyers really dislike in certain cases, but we pretty much take it for granted and don't think much about the possibility of changing it. It's a huge issue for unemployed and underemployed women -- and men, too. Although the article below doesn't even bother to report how many men become uninsured.
I've always thought that the movement away from alimony -- regular support money for a separated or divorced spouse -- has gone way too far in many parts of the country. Maybe it's because of its old-fashioned name, or because it's older than no-fault divorce, but many of the men and women I counsel in my practice seem to think it's medieval and oppressive and they want no part of it. Many men, proletarians at heart, don't seem to care about holding on to property, but when their ex has a claim on their earnings, or their pensions, it feels like slavery or serfdom.
But marriage still often involves one spouse giving up a career, permanently or for several years while the children are small, and so I believe alimony still has an important role. People need money to live on, and not just as child support. The law in Virginia reflects that, but in many states it does not. Huffington Post blogger and divorce reformer Beverly Willett has a new, interesting posting on this and other ways in which divorce law disadvantages stay-at-home parents.
When alimony is set by a court, both parties' needs, earnings and abilities are taken into account. Yes, there are individual cases where the amount is excessive and leaves the payor with nothing, or where it goes on too long while the payee is cohabiting with someone, but even in Virginia, there are probably just as many cases where it is too little and too short-lived.