The background check. It sounds intimidating, all-encompassing, legally binding and almost invasive in scope. Many people — employers or employees — never deal with them directly, and have only the vaguest ideas of what they really are or what they might reveal. In the childcare industry, though, background checks can be life-changing documents, for both nannies and families. They can guide parents to make hiring or firing decisions; they can proudly vouch for a nanny or haunt them for years. For these and many other reasons, it’s important for you to learn about background checks no matter what part of the hiring process you’re in. When you truly understand what a background check is and what it isn’t, you can use them to make the best decision possible regarding childcare.

Background Checks: A Definition

A background check isn’t just a phone call to someone’s former employer to verify work history. If you’re dealing with childcare, it doesn’t mean just verifying that your nanny worked where she or he said they did. There’s a lot more to it than that. In fact, the phrase “background check” is so broad it’s almost meaningless.

In the context of employment, a background check is a thorough investigation of criminal and automotive history, and it’s performed to give employers the most information possible when it comes to making a hiring decision. According to the National Association of Professional Background Screeners — a trade group devoted to ethics and best practices in the field — these types of background checks are typically conducted by licensed third-party consumer reporting agencies that are governed by the Fair Credit Reporting Act. The FCRA regulates the method of collecting and distributing consumer information as a way to protect employees and consumers. It’s crucial to note that fair and legal background checks require the consent of the person you’re investigating. If an agency tells you they can run a background check on a nanny you want to hire without actually telling the nanny, that’s a red flag. You need their authorization for the search.

Things That Will Appear on a Background Check

A proper background check can cover a variety of areas, including (but not limited to):

• Drug test information.

• Verification of employment, and if the applicant has earned any licenses or degrees they claim to have earned.

• Criminal record checks verified through local, state, federal and even international courts.

• Registry investigations, including searches of sex offender registries and child abuse registries.

• Credit history (minus an applicant’s actual credit score).

• Driving records.

As you can tell, the point of a good background check is to give an employer as much information as possible about the applicant in front of them. This is important in any job, but it’s especially important when you’re hiring a nanny, someone who will spend long, unsupervised hours every day with your children for months or even years. A nanny needs to be able to transport the children, make purchases for household items and be trusted caring for the kids; all things that tie into the areas covered in a background check.

To find this information, consumer reporting agencies check a variety of databases, including a family of systems at the FBI. There’s the FBI Identification Record, which covers criminal history and information connected to arrests. There’s a caveat here, though: some state laws prohibit using arrest and conviction records when making hiring decisions, so even if you find out an applicant had some criminal issues in their past, you might not be allowed to let that bias your decision. According to the NAPBS, California restricts the use of some marijuana-related convictions in the decision-making process if the applicant’s conviction is more than two years old. You should always consult with your consumer reporting agency about the findings of a background check to see what’s clear for you to know and use for employment purposes.

There’s also the Interstate Identification Index System (aka, the III), which allows for federal and state law enforcement agencies to share information about misdemeanors and felonies for background check purposes. However, the burden falls on the states to keep the databases updated, so sometimes the III might not have the latest data, especially about someone who’s lived in many states.

In addition to database checks there are also primary records searches. Considered the “gold standard” in criminal background checks, the county courthouse criminal records check requires a court runner to manually check the records at county courthouses if the records aren’t current and available online. Since sometimes records for felonies and misdemeanors are stored in different courts within a county, it is imperative that the proper court house records are checked to get an accurate picture of what, if any, records are available on an applicant.

The point of all this is that, though there are many helpful resources available for conducting background checks, there remains no single unified system that contains complete and updated criminal history for people. Searching multiple databases and sources is a good measure, but it’s also the only one we have.

Things That Won’t Appear on a Background Check

This naturally leads people to wonder: if there’s no single database for background checks, is it possible for some things to be overlooked? Yes.

Some things won’t appear on a background check because they’re not relevant or allowable to the scope of employment. For instance, medical records are out, as are records for anything that might have happened to the applicant as a juvenile. As mentioned above, while credit history is covered, specific credit score isn’t. Minor things like parking tickets may not be included, either, because they’re not fingerprintable incidents.

But the biggest thing that a background check won’t catch is obvious: if the applicant committed a crime and got away with it. That, and if the applicant committed a crime outside of the area that was searched. By definition, a background check can only turn up things that made it to the courts. A check can list a person’s criminal history, but that doesn’t mean it lists their entire history. Such a thing would be impossible.

That’s why it’s so important to remember that a background check is not a shield against future criminal activity, but merely an information-gathering tool designed to give employers the most information possible to help them make the best decision they can. You should absolutely perform a background check on anybody you’re considering hiring as a nanny, but you should never let that check give you a false sense of security. Just as old criminal history can be a sign that someone’s turned their life around and gotten their act together, so too can it indicate someone who might be willing to break the rules again if given the opportunity.

The bottom line is that there’s no such thing as a bulletproof background check. A background check should be used in conjunction with other interviewing tools, ranging from fact-finding questions to time spent with someone to gauge their personality. Using as many information gathering tools as possible and pairing what you’ve gleaned with good judgment will help you to make an educated and informed hiring decision.


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TOP LESSONS I’VE LEARNED AS A NANNY By Kellie Geres (guest blogger)

I am approaching 25 years as a professional nanny/household manager. I’ve been fortunate to work for some amazing families, and am blessed with friends and colleagues near and far. I’m not the perfect nanny nor the perfect household manager, but I am the best I can be in a profession I love.

Here are a few of the lessons I’ve learned along the way that have helped shape me into the professional I am today.

The one thing I wish I had done from the start of my career was save. Even if it was just $10 a paycheck, over time that adds up. Instead I accrued debt, believing there’s always time to save. The debt has been paid and the savings is building, but I wish I had done things differently. Find a system that works for you. I have money automatically withdrawn each week from my account that gets put into an another account.

Over the years, I have come to know my strengths and weaknesses. I excel at organizing, time management and details. My weakness is I take things very personally, tend to take on too much at a time and give too much to my job without leaving enough time for me. I’m a work in progress, as I think we all are throughout our lives. That I recognize these traits helps me do my job well, and recognize when it’s time to just stay in my pj’s on a Saturday, read a good book and clean off the DVR.

Embrace your nanny community! If there isn’t one in your area, create one. I’ve been fortunate to be part of several nanny groups in each area that I’ve worked – Northern NJ, Atlanta, Philadelphia and DC. I’ve been a member and a leader. No one knows what your day and job are truly like other than another nanny. Reach out and meet others. If it’s just coffee once a month or daily online communications through a Facebook group – connect with other nannies.

Check out my advice on creating a nanny community for ideas on how to get started.

With any profession, information and techniques change. Continue your education by attending conferences, workshops, nanny group meetings, agency offerings, online classes, webinars, podcasts and more. Check out my recommendations for conferences you should attend and how to get the most out of your conference experience. Additional opportunities can be found at NannyTrainings.com.

Be a mentor. Take all your years of experience and share that with others. Open the lines of communication with other nannies and help them learn, grow and understand this profession and industry. Invite new nannies to meet for coffee and get to know them. Engage with others on Facebook groups and offer your insight and expertise. Step out of your comfort zone and offer to do a presentation at a local nanny group, or even submit a proposal to INA or Nannypalooza. Host a NNTD event in your area, for other nannies to learn from.

Our industry is ever evolving with information and new faces. Friendships are formed and legacies are created. What have you learned on your career road?


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Meet with your nanny (guest blog)

The following was written and submitted to us by Hannah Anderson of
Fulltimenanny.com. More about her and this company at the bottom:

Let’s face it; nanny employers are busy. And so are their nannies. When things are going well in the employment relationship, it’s easy to skip regular nanny/family meetings. You talk to your nanny at end of her workday and she fills you in on what’s happening with your child, so what else is really needed? Actually, there are lots of good reasons to have regular meetings with your nanny. Here are a few.

Only the basics really get covered in the daily check in. It’s essential that you and your nanny check in with each other at the end of each day. This is when your nanny can let you know what happened during the day, including any issues or problems that you should be aware of. However this limited time doesn’t allow for discussion about more serious or more complex issues. And those will come up. When you have regular family meetings scheduled, your nanny has the opportunity to talk with you about concerns she has about your child, plans she has for handling a behavior challenge or making an ages and stages transition, questions she has about your expectations, along with anything else that needs your attention. Without these family meetings, these bigger issues may get overlooked or rushed through. This can be harmful to your child and keep your nanny from doing the best job possible.

Family meetings ensure you and your nanny continue to be on the same page. Things with your nanny can change fairly quickly as your child grows and develops. What you need from her may change as your child moves from one stage to the next. What your expectations are may change as the needs of your child change. What your nanny needs from you may change the longer she stays in the position. Family meetings give you and your nanny the opportunity to check in with each other and make sure that you both continue to be on the same page. If either side has changed their ideas, perspectives, needs or approach, this is the perfect time to talk about it.

Meetings give you and your nanny the chance to talk about problems. Sometimes there are big problems in the employment relationship, and either you or your nanny will call an immediate meeting to discuss them. More often, there are small but bothersome issues that come up. They don’t require an emergency meeting; however, they do require conversation and action. But when? Neither you nor your nanny are likely to call a special meeting to talk about these non-critical issues. If you did that, you’d be spending a lot of time in family meetings. However, when you have regularly scheduled meetings, both sides know they can add their issue to the agenda and they’ll have the chance to talk about what’s happening and come up with a plan of action. This built-in opportunity means small problems won’t grow into big problems because they were never addressed. It means things that might otherwise get swept under the rug and cause real damage to the long term success of the relationship will be dealt with as they come up. This type of regular attention to potential stumbling blocks can be the difference between the nanny leaving after her contract is up and her staying in the job over the long haul.

You have the chance to have input into your child’s daily environment. Your nanny is responsible for planning a well-rounded day for your child. She’s also responsible for supporting his physical, social, emotional and cognitive development. What exactly does all that mean? Family meetings are a great time to talk with your nanny about her goals and plans for your child. It also allows you the chance to give real input into what you want her to be doing. Do you want your child to have more opportunities to play with neighboring kids? Are you concerned that he’s having a hard time transitioning into a one nap per day schedule? Would you like a more detailed plan on how she’s going to help him get ready to enter kindergarten in the fall? Regular family meetings are your opportunities to ask questions, outline and update your expectations, share resources and get input from your nanny. All of that information can help your nanny do a great job for you and make sure that she’s providing the type and level of care that you’re happy with.

It is hard to find the time to sit down and meet with your nanny regularly. However, the benefits to your family far outweigh the effort involved.

Hannah is a frequent contributor to “fulltimenanny.com” & you can check out her recent submission http://www.fulltimenanny.com/blog/why-you-shouldnt-skip-regular-meetings-with-your-nanny/http://www.fulltimenanny.com/blog/why-you-shouldnt-skip-regular-meetings-with-your-nanny/. You can get in touch at her e.mail at “hannah.anderson355ATgmail.com”.

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New Florida Alimony Law?

I recently appeared on Fox Business on the Willis Report to discuss the proposed new alimony law in Florida (interview can be seen by clicking: video.foxbusiness.com/v/2330991181001).  It is an interesting law.  While many have summarized it as a vehicle to eliminate lifetime alimony and to shorten or limit other alimony, the drafters have done a very careful job in creating the bill.  Yes the overall intent seems to be to reduce alimony, but the wording is very interesting. Instead of mandating certain results, burdens are shifted.  For instance, under the proposal, certain alimony would only be allowed upon “clear and convincing” evidence which is different and harder to achieve than the usual standard in a civil case of “preponderance of the evidence”.  The full bill can be viewed at: http://www.flsenate.gov/Session/Bill/2013/0718/BillText/e2/PDF.  Let me know your thoughts.

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My role as ABA Family Law Section Immediate Past Chair

When my term as Chair of the Family Law Section of the American Bar Association ended in August of 2012 in Chicago, I thought that my travelling days were headed for a significant reduction.  And I enjoyed the travel and the ability to meet family law professionals worldwide.  Fortunately or unfortunately, in my year as Immediate Past Chair, I have travelled just as much (although certainly when my year as Immediate Past Chair ends this August in San Francisco, it will slow down significantly).

As an example of how the travel has continued, in this short year so far, I have travelled to Miami, Austin, New Orleans (twice), Mexico, Las Vegas and have plans this month and next to head to Alaska, Louisville, Memphis, Las Vegas, New York and Destin, FL (all except two are for family law events).  But this, I know, is the end of the hectic two year travel schedule.  It is flattering to be asked to come speak to a group in another state.  To be flown in as “the expert”.   And I have been able to practice law around and during these trips (it’s amazing what can be done remotely now that our office has gone to the “cloud”).  But I look forward to spending much more time in Atlanta, practicing much more law and being with my peers and colleagues at home.  And of course, even though my family has travelled with me on the majority of my trips, staying home will ensure even more time with them.  The nice thing is I hope to be able to continue to travel, to meet new and old friends and colleagues across the country, but to appreciate those trips even more, as they will be fewer and farther apart.

But most importantly, my service to the ABA and my being available to organizations accross and outside the country has only been possible because of our wonderful attorneys and staff.  We work well as a team and support each other.  Our clients know there is always at least one other attorney involved in any case in which I am involved, in case of an emergency.  So while it has been a pleasure to serve the ABA and to serve other groups trying to educate themselves and their peers about family law issues, it has been and remains even more of a pleasure and honor to work with the people in our firm.  Yes there are tough times, days and cases, but it is truly a blessing to enjoy coming to work each day, and I do.

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The benefits of a Smart Phone

Here is a blog entry I was asked to write by LinkedIn. It was published there earlier this week:

I consider myself an early adopter. It is fun to try new things, to explore, and it keeps me in the know. Years ago, no one had websites. Then they began gaining in popularity, but lawyers are typically late adopters. When I set up my first one, apparently only eight lawyers in Georgia had them. The way I figured, if Coca-Cola, IBM and Delta had websites, and they were real companies, I wanted to be a real company too.

Then one day I was in court and opposing counsel and I were discussing dates for depositions (this was back in the 1990’s). He whipped out a device and told me what dates he had available. I was amazed since I had to call my secretary to go into my office to look at my paper calendar to perform the same task.

I had to get one, so I did — my first Palm Pilot. Thus began my path of using smart devices, hand held devices, to save time and create efficiency.

For a lawyer who bills by the hour, the time I can save on logistics (like setting dates for depositions), creates more time I can spend on what’s important for my clients, like researching the law (which I now often do on my smartphone), reading their file and talking to them.

Then of course the Palm Pilot evolved: Instead of just being a device which had to be carried in my “man purse” together with my cell phone, car keys and wallet, it morphed into a combination cellphone and PIM (Personal Information Manager).

Then it got smaller, eventually becoming a clamshell phone (us “old” folks remember those days). And we no longer had to manually connect it to our desktop to get email or to send email from or on our Palm phone. We just pushed a button on the phone whenever we wanted it to send and receive our email.

Then, a new era dawned: the Blackberry. It did everything Palm did, but better and quicker. And those got smaller and sleeker, until one day, my law partner (younger by 10 years and instrumental in keeping me moving forward with technology) said he was switching over to the new iPhone and so was I. I thought I had been through enough change and what could be so great? Well he was right and again I moved forward with the first version of the iPhone and have purchased each new edition the day they arrived to market (and iPads, Mini too).

Whether it’s an iPhone, Samsung or whatever, a smartphone, to me, is invaluable. In fact, I carry two (on different cellular networks in case of a network issue, dropped calls or a phone failure). It is what keeps me connected at all times, especially with my often hectic travel schedule.

So why is this device so important to me that it outweighs all other things I could carry with me? Because it is not one “thing”, it is a thousand. For anyone reading this, you are apparently already very technology literate and very likely reading this on a smartphone. So how is it a thousand things?

It is a newspaper. I read my Atlanta Journal Constitution, the Associated Press, WSJ and NYT on my phone each morning. No need to walk up the driveway, the whole paper is in my hand. Of course I still check emails and write emails on my phone. Like many of us, even when sitting at our desktop, I often simply pick up my phone and check my emails on it so I do not have to switch windows (I know, I could have two monitors at work, but I don’t).

But more than the basics of email and news, my phone is connected, so I am connected. All of our client files are in the cloud, so they are available on my iPhone. So many ancient tools are subsumed into this device that it is really something we could not have imagined twenty years ago. It has replaced so much, a Rolodex or little black book, a camera, a video camera, a video phone, a pager (texting does the same thing, just better), a mirror, a copy machine (yes, think about it, taking a photo of a document is all your copy machine does), a file cabinet, a photo album, a translator (try Google translate and you can speak any language), a map, a navigation/gps device, a dictionary, a thesaurus, a tape recorder, a flashlight, restaurant menus, a “Walkman” (portable music player), a radio, a TV (yes, you can watch live TV), a bible (can be saved on your device), the U.S. Constitution, a laptop for playing powerpoint programs (try SlideShark or others to play your powerpoint programs to a projector), a remote control for your TV, your AC, your home security system or even to start your car, thus replacing car keys.

And soon smartphones will replace your entire wallet or purse. Credit card payments can now be made (or received) via smart phone, so no need to carry a credit card. Driver’s licenses and eventually passports will all be on your Smartphone, leaving you nothing to carry.

And to continue, a Smartphone can also be a VCR, a DVR, a weather radio, an emergency roadside flare, a magnifying glass, a security camera, a TV guide, a portable DVD player, games for your kids, a chessboard, checkers, video arcade games, bowling, golfing, a diary and so much more. The list is as endless as the human imagination.

Then there’s social media. The need for instant connection. What better way to facilitate it than a hand held device? If social media is what allows us to stay connected to friends, business colleagues or leaders in our field, smartphones are what give us instant access to social media. We take a photo and post it or read an article and share it, and we have socialized, we have networked, instantly. We can debate all day long whether this need for instant and constant interaction is healthy, but it is certainly human.

I certainly have written much more than originally intended, but it is clear to me, there is one thing I carry that is much more important than anything else, in fact it is a thousand things. My smartphone has consolidated my life.

Of course, we need more self-discipline to put it down to play with our kids, to interact with the ones we love and to be a part of the real, not just the virtual world. But it certainly has made things easier for me.

So now I’ll hit “save” on my smartphone and conclude this entry, and look forward to your comments and thoughts.

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How You Can Help Your Divorce Lawyer Do a Good Job

This is a guest post by Scott Morgan a board certified family law attorney in Texas and founder of the Morgan Law Firm a Houston based firm with an additional office in Austin.

As soon as you’re certain that a divorce is imminent, it is of the utmost importance that you hire a lawyer that you can work comfortably with. Your lawyer will help you to navigate through the tedious and often confusing divorce process. This process can be complex and may take a long time to work through, so it’s necessary that you’re able to maintain a good working relationship with your attorney. Just by following some basic tips you can make it easier for your lawyer to assist you in getting what you deserve out of the process.

1.    Don’t Lie or Withhold Information

Telling lies or withholding information is a guaranteed way to destroy both your case and your working relationship with your lawyer. This person relies on you to provide them with accurate and in-depth information so that they may figure out how best to go about arguing your case. The better and more truthful your information is, the more likely you are to get what you want out of the ordeal.

2.    Don’t Harbor Lofty Goals

No lawyer can tell you with certainty how your case will turn out, but they should be able to provide you with a basic picture of how you can expect things to go and how the courts typically handle such situations. If you expect your lawyer to do things that are unrealistic, you will only serve to hurt your case’s chances as well as your client-lawyer relationship.

3.    Stay Organized

Getting and staying organized will make your life much easier when you’re going through a divorce. Your lawyer may need to look at a large variety of different records depending on your case.  These could include financial records, bills, pay stubs, emails, medical and school records and other pertinent documents. It can be a big job to gather these things but it is absolutely essential that compile whatever documents your lawyer asks for. The better you are at compiling and organizing these records the less time and resources your lawyer will have to waste on doing it.

4.    Control Your Emotions

Divorce is an emotionally charged situation but the better you can control your feelings and keep them from affecting your choices, the easier it will be for your attorney to work with you. Judges generally are not very compassionate towards people who are out for vengeance. If it seems too difficult to put your emotions aside consider seeking the aid of a therapist. They can help you work through your feelings and come to terms with them, enabling you to go about your case with a more strategic approach.

5.    Listen to Your Lawyer

Your lawyer can’t help you if you’re not willing to cooperate. The less time you spend being resistant, argumentative or stubborn, the quicker your lawyer can proceed with your case. If your lawyer says that you should or shouldn’t do something, you should comply to the best of your ability.

Having an excellent lawyer is extremely important in a divorce but it is not a panacea.  You have to do your part as well if you expect to get a good outcome in your case.  If you follow these tips you will stand a very good chance of achieving your goals in the case.

For more information on Scott, see: http://www.houstondivorce.com or http://morganlawaustin.com.

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What it’s like being a divorce lawyer on Valentine’s day.

This is a copy of my recent blog written for LinkedIn:

It is very interesting being a divorce lawyer on Valentine’s Day. Yes, at times I feel bad being in a profession that is part of the process of breaking up, except that I know in my heart that I did not cause the break up; rather, my job is to bring closure and to get it done so that each side can move forward. I did not create the often bad feelings that exist between divorcing spouses. At times I can help reduce them, but often it is a matter of time until each side recognizes that they really must resolve things so that they, and more importantly their children, can put this stuff behind them. Interestingly enough, Valentine’s Day sometimes seems to do the trick. Perhaps it is because divorcing spouses see how things could and should be and perhaps they then recognize how far they are from that place, that they then try harder to resolve things. Yes, we see many more offers of settlement around and after Valentine’s Day. It may be subconscious, but it is a time of hope and caring. And this is the person you used to care so much about, how can your feelings towards them be so harsh? Valentine’s Day and the surrounding ads, aisle displays in stores and TV shows related to Valentine’s Day force us to see how good love is (and by implication how bad it is not to love or not to have someone to love).

I was interviewed this week, Valentine’s Day week for two stories, one in the New York Times (see article at: http://www.nytimes.com/2013/02/14/garden/the-secrets-hidden-at-home.html?pagewanted=all&_r=0) and one for DailyFinance.com (see article at: http://www.dailyfinance.com/2013/02/15/prenuptial-argreement-finance-love-money/).

The New York Times piece discussed hiding information from a loved one…and getting caught. The other piece focused on prenuptial agreements. Interesting that articles relating to marital discord or potential discord ran on Valentine’s Day (The NY Times piece was on Valentine’s Day, the other was the day after).

For me, it was also a time to reflect. Of course I am reminded daily of how bad things could be, as I watch other people’s difficulties. But I am also reminded that there is hope for everyone. And more importantly, that divorce is not an end, it’s a beginning. By the time people hire me, their marriage has often been over for years. What my firm and other firms like mine are hired to do, is to help make the transition as smooth as it can be and to allow the parties to start over. There has to be a financial division and arrangements for the children. Without such formalized arrangements there would be chaos. Parents would take kids when they felt like it, empty bank accounts, etc. Giving structure to a separation is vital. But at the same time, we must know and feel that we are offering hope. Hope of a new life. While money is always tighter after a divorce and while children certainly struggle, if there is organization and structure within this chaos and upheaval, and more importantly, predictability, people will fare better. They will be able to focus on other things, their relatives, their jobs, their hobbies, their art or whatever it is that makes them really happy. And this helps them heal and get back into the real world and out of the divorce world. And once there, it is my hope they again find love and a future with someone they love.

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Divorce lawyer goes to New Orleans, why?

Why would I be going to New Orleans for the Super Bowl?  Well, even though there are certainly many business related benefits such as seeing clients, their agents and advisors, and while this is also the “place to be” this weekend, the honest reason is that it is home.  And New Orleans, where I grew up, is always having a party.  I have been asked why not go home when it’s quiet?  Well, New Orleans is never quiet.  And I do go at other times.  And there are business reasons to go, and introductions and connections to make, too.  But there’s something about not being in New Orleans when something big is happening there.

Will it be good for business? I imagine so. I will meet many people and make more connections and if and when a family lawyer is needed, maybe our firm will be called upon to help. But more importantly, it is home.  I will stay with my family, go to a parade or two, eat crawfish and King Cake and listen to great music.  And by the way, I may just happen to see a great game.  But no matter the outcome, a trip to New Orleans, is always fun, and this one should be as well.

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Family Lawyers meet to help improve things

As written for my “Influencers” post:

Once a year I travel to meet with about 20 of the finest family law attorneys in the country. This is that week.  I always learn something and gain an optimism after each yearly meeting that lawyers can make a difference.  We deeply explore systemic problems and ways to fix them. We discuss helping individual clients as well as how to assist the legislatures and the courts to better understand the needs of individuals embroiled in family law cases. But most importantly, the sometimes very depressing work we do on a day to day basis looks and feels much more positive when we realize we all struggle with the same dilemmas. How to convince a client that settlement is better than court. How to explain to a client that even though their spouse cheated, the children still love them both and want them to get along.  How to ensure they are financially protected without spending all their savings on discovery and other legal procedures.  These are dilemmas. But I know that my colleagues are good, decent people trying their best to help. This is refreshing and inspiring. I respect them and am honored to be able to join them. And I look forward once again this year to being inspired and educated.  I owe it to my clients to learn as much as I can to help them. And learning from experts from around the country is one of the best ways to do that.

Posted in alimony, Articles, Attorney, Child custody, Custody, Discovery, Divorce, Family, Family Court, Family Law, Financial, Judge, Lawyer, Legal Leave a comment

Every New Year the divorce cases pile in

Another blog I recently wrote for LinkedIn:

It’s a New Year. Why does that so often mean divorce? Every year in January we receive more calls from people who want to learn about, discuss or file for divorce. Some may think January is a time to renew efforts to keep a relationship together. But in my experience many people often think and believe a new beginning at the beginning of the year makes sense. It’s a fresh start.

But really, it means it will be a year of transition. Very few divorces happen quickly. Aside from disputes over money and children, delay is most often the result of one party not being ready to “let go”. Divorce is seldom a simple business transaction between two reasonable and willing negotiators. The idea of reaching a “settlement”, to many people, is the ultimate in giving up on the relationship. While almost certainly one party has made that decision, often the other has not (yet). And thus the source of much friction. The one who is ready for the relationship to end is often impatient. Maybe due to a belief that their life will improve once the relationship is over. It may be because they are anxious to begin a new relationship. It maybe because they have already begun a new relationship? Whatever the rationale, when one side wants closure and the other is not ready, problems arise.

So filing for divorce in January rarely means an immediate new beginning. It may well be the start of a new beginning. But filing for divorce in January or at anytime, must be well considered and thought out. And if done peacefully, especially when both sides are ready, it can be a shorter, less costly and maybe even positive experience. If both sides see a benefit to a divorce, then they should do so in a cooperative fashion. And that means compromise and more compromise. And if there are kids, there is no price you can place on the value of cooperation and avoiding litigation.

Of course there are times when parties reconsider and thus the slowness of the process has given them time to keep it from ending. But really, if two people want to remain together, or to reunite, it should not matter whether they have finalized their divorce or not. Divorce is about setting rules for interaction between two people who are not married and how to divide their assets and debts. Once they reunite, these issues should become irrelevant. And my hope is that whether or not they reunite, either way, the more civil they can be to each other, and the better their cooperation on all issues, the better for their children and our society.

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Welcome 2013

This was my 2013 post for LinkedIn Influencers (posted in December):

Welcome 2013. While the years roll by quickly, laws are often slow to catch up to the times. Legislatures move slowly, politicians worry about how their votes on new laws will affect their chances for reelection. And judges have much incentive to take the safe road, follow the rules and laws that have been around forever and to be sure they are themselves upheld on appeal. To accept a novel argument or interpretation of the law opens a judge up to much scrutiny and criticism. But there remains so much room for improvement in the area of family law. Not just to our laws, but within our profession as well. We need increased civility between lawyers and between parties. We need better education about the process and the tools available to achieve resolution. And we need better, more modern laws, to handle the new realities of our society.

On a national and state by state basis we must address how to help same sex couples dissolve their relationships in a civil manner. If they are not allowed to marry, perhaps they should still be allowed to divorce? Otherwise they will still end their relationships, but the process will continue to be confusing, frustrating and sometimes violent. When human beings have no recourse under the law, they engage in self help (sometimes called vigilante justice). Why not permit these tax paying and law abiding citizens to use our court system to resolve their disputes like other citizens? Wether you approve of same sex relationships or not, they exist and prohibiting same sex marriage, or same sex divorce, does not and will not stop same sex relationships. Instead, it helps avoid land disputes, child custody disputes, title disputes and many other problems that ultimately cause all of us money since our tax dollars pay for courts, policemen and other services that are needed when disputes get out of hand. Courts, when permitted to help members of society, for instance in same sex divorces, will reduce cost, tension and resources across the board and thereby help all taxpayers.

So what about DOMA (Defense of Marriage Act)? Will it fall this year? It seems inevitable. The federal government which has historically left family law matters to the states, stepped deep into family law when it approved DOMA. It seems the current trend is to to see DOMA as overreaching. I believe DOMA will be undone (by the courts, since a majority of legislators will likely never vote to do something that implies that they approve of gay marriage).

And international custody issues including abductions, denial of visitation rights and even simple communication via new technology should be reviewed. We all remember the Sean Goldman custody case in Brazil. There are so many cases like his that are not reported in our press. Kids get taken from (or to) the U.S. and are never returned. Even in countries that have signed the relevant Hague Treaties, it is often difficult to get a child back. And in others such as Japan, it is nearly impossible. We need to work on this in 2013.

But again, civility. Handling our family matters in a civil and peaceful way is a must. It all starts with family. And we as lawyers must do our part. Yes family matters such as divorce and custody disputes fall into our adversarial system of justice. And for some disputes, it must be so. But so many family disputes can be resolved amicably if we just let emotions subside. If we pause and think about how we want our children to know we handled our differences. Wouldn’t we all be prouder if family law disputes were resolved by the parties involved and not by lawyers and judges who had never known the family when they got along? Alternative Dispute Resolution (ADR) has played an increasing role in family law. Be it mediation, arbitration, late case evaluation or collaborative law, there are many more options in 2013 than there were in 2003 or in 1993. Let’s take advantage of these resources, and lets all, lawyers, judges, mediators, expert witnesses, psychologists and parties, pledge to work amicably. Court decided resolution is never as good as a result agreed to by the people involved. And that can best be accomplished if we act civilly. Especially us lawyers. We do not have to continue seeing the other side after the dispute is resolved. But our clients do. They will go to their kids’ weddings and other events together. Lets commit to doing our best to ensure that these future events and life itself, will be better and easier for our clients because of the efforts we undertake. That’s my commitment for 2013. I look forward to a positive year of helping people and doing my best to ease their burdens and not to increase them.

Posted in Attorney, Child custody, Custody, Divorce, Family, Family Court, Family Law, Gay Adoption, gay marriage, Judge, Lawyer, Legal, same sex marriage Leave a comment

Bar Mitzvah Year?

Bar Mitzvah year, 2013

2013, a future has arrived. Just the name of the year, 2013, still sounds to me like a science fiction title. While the number 13 has to many been a symbol of bad luck, it seems that 2013 is starting off right. 2012 (not 2013) was, per the Mayans, to be the end of the world and the fiscal cliff dilemma seems to have subsided. But whatever your superstitions or concerns may be, it really is a time and chance to move forward. 13 is a magical number. It is the year a Jewish child becomes an adult through a Bar Mitzvah. It is the first “teen” year. And it is a brand new year for all of us.

Despite the instability in the Middle East and many other troubles worldwide, we have still avoided a world war, even though after the first one, barely twenty years elapsed before a second one arose. We have found ways to work together, despite so many differences. And in my profession, that is the key, both for lawyers and litigants. People who sue each other obviously have differences. But even in litigation, we are all human and owe each other the basic respect and civility which makes us human beings. There will always be those who battle for every last inch. And when pushed, even the mildest mannered lawyer can return the favor. But as lawyers, as counselors, we must stay on task. Seek our clients goals, while advising them competently during the process. Help them decide which goals are unattainable, or will only come at too high a price. We must give them good, reliable advice that will help guide them to make good, informed decisions. Variables include not just the financial cost of litigation, but the cost in terms of lost time, damage to relationships with children and actual damage to children which expands the longer litigation lasts. Yes this is our duty and if done well, can help families and society.

I remain proud to be in a profession which has the ability to help in so many ways. If practiced well, the profession of law can and should benefit us all. Without laws, without civilization, we lose our unique characteristics that make us human. Might becomes right, and we become like any other creature on earth. Laws are valuable, perhaps invaluable, but the manner in which they are enforced, argued and used, is up to us. And it is this duty, (the duty to act civilly and ethically) which can make the law work for all of us.

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Kids Rules

Again I wrote for LinkedIn and want to share it here as well:

Parents, even parents not going through a divorce, often ignore what is in their children’s best interests.  I do not mean forgetting meals or not educating them, I mean basic, common sense things.  I read a recent Huffington Post piece that made that clear and that I want to share. Click on the link in the next sentence to read the brief piece:

If Your Kids Could Make The Rules of Divorce http://huff.to/uY9K7g,

But generally, the piece is what parents are taught in most court-ordered parenting classes.   Things such as “Don’t make children be the messenger”, or “Don’t tell them you hope they don’t grow up to be like, or marry someone like, their father/mother”.   Even though this advice makes perfect sense, in the heat of the moment it is easy to turn to a child to complain about your partner; don’t do it!  As divorce lawyers, our role is to be a lawyer, but ideas like these are part of why we are also referred to as counselors at law.  Let’s take that role seriously and help remind people of the obvious: kids are innocent and their needs and desires, including their needs and desires to love both parents, should be respected at all costs.  It is the least we can do for the ones we have brought into this world.

Posted in Attorney, Child custody, Custody, Divorce, Family, Family Court, Family Law, Judge, Lawyer 1 Comment

Teens v Parents, at what age to cut the cord?

I wrote the following for LinkedIn as an “Influencer”:

I was asked to comment on HLN last week on the story about the young actress (14 years old) from the TV show Modern Family who wants to be out from under her mother’s care. Apparently her mom doesn’t like catching her in bed with boys and is very protective. Well that may be the best evidence of good parenting I have seen in quite a while. But young stars, like most young people, want to spread their wings. But they have more ability, more resources, more money, more friends (her older sister, in this case, took temporary guardianship of her) and more “supporters” making them feel powerful.  But they are kids and need guidance. Soon enough they will have the freedom to make many of their own mistakes, but even though some parents are not great at parenting, the natural parent seems to be the one most likely to want what is best for the child. Sure there are some parents who abuse this situation, but unless it is clear that such is the case, why shouldn’t they be given every chance to guide their child that they brought into this world as they deem best?

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A view on our election, from Mexico

It is eerie to have landed in Mexico as our U.S. presidential election draws to a close. Whatever your personal beliefs, we are in for a very interesting four years, at least on the family law front. Same sex marriage, assisted reproductive technology, women’s right to choose and many other issues are and will be developing over the next four years. And what if new U.S. Supreme Court Justices are appointed? This election has certainly set us on a definite course. Will congress offset or delay it? Who knows, but this will be an interesting decade. Let’s hope our economy rebounds and our country remains the world leader in the areas it has led in historically, freedom, helping the downtrodden and being the symbol of so many great things human beings can accomplish. Whatever your politics, we are a great nation and stronger for these serious debates and discussions. So many of us are interested. So many care. And in so many countries, people have no voice and are resigned to their status quo. Here’s to our country and to our ability to disagree civilly and to be able to campaign hard, and then work together to make all of us better.

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NY Federal Court holds DOMA unconstitutional

The following is a copy of my recent post for LinkedIn:

I was interviewed today (October 21, 2012) on CNN about the new Federal Court decision declaring section 3 of the Defense of Marriage Act (DOMA) unconstitutional (click here to see the interview: http://youtu.be/TErI_O9nQ6E).  This is another step towards the U.S. Supreme Court eventually addressing it, and in my opinion, declaring sections 2 and 3 to be unconstitutional.  The case was EDITH SCHLAIN WINDSOR, IN HER OFFICIAL CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER, – v.- UNITED STATES OF AMERICA. The case can be read in full at http://www.aclu.org/files/assets/windsor_2d_cir_opinion_pdf.pdf .

To summarize, the case held that an elderly woman (83 years old), could not be forced to pay over $300,000.00 in federal estate taxes on assets her partner had left to her when she (her long time partner and wife) died. They had gotten married in Canada and lived in New York, where same-sex marriage is legal.

The Court said “Homosexuals have suffered a history of discrimination” and used a  heightened scrutiny test treating gays like other minorities which made it easier to find the law unconstitutional. They said: “[W]e conclude that Section 3 of the Defense of Marriage Act violates equal protection and is therefore unconstitutional”

Here is what Section 3 says:

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

Same Sex marriage licenses are issued in: Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York and the District of Columbia so according to this opinion, the federal government must recognize same sex marriages in these states and thus federal laws applying to married people should apply to married same sex partners.

Will the United States Supreme Court review this case? Who knows?  Perhaps.  But they may want to await a future decision that also raises the constitutionality of section 2 of DOMA, which seems to violate the full faith and credit clause of the constitution by stating that states need not recognize marriages in other states between same sex individuals if such state itself does not want to deem such marriages valid.  But surely this case makes the issue more noticeable and in need of clarification.  And since congress isn’t likely to try to fix this or address the constitutionality (the congress actually paid to defend the law in this case since president Obama would not), it seems the supreme court is where it will ultimately land.

One interesting line from the opinion is: “The law is not concerned with holy matrimony. Government deals with marriage as a civil status–however fundamental–and New York has elected to extend that status to same-sex couples.”  This statement, to me, makes it clear that the legal definition of marriage, can, may and often will differ from the religious, moral and philosophical definitions of marriage espoused by different people, different religious experts and others. But the fact that same sex marriage has been declared legal by some states seemed to carry the day in this case.  This decision stated clearly that the federal government cannot contravene the state’s determination that same sex marriage is authorized and that in this case, the federal law, DOMA which attempts to override state law, is unconstitutional.

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Spyware and Divorce

(The following is a blog entry I contributed to LinkedIn as one of their “Influencers”):

Gosh the laws are in a state of flux on this topic.   I contributed to a front page story in the wsj a week or two ago and have received a lot of feedback.  Where are we in the electronic age?  Well eavesdropping still seems to be bad.  But is looking at your spouses email really the same as tapping their phone calls? Is it perhaps worse?   It again all comes down to the expectation of privacy that our country tries so hard to protect. The South Carolina Supreme Court just weighed in on the issue saying that looking at your spouse’s email may not be wrong?  See: http://www2.counton2.com/news/2012/oct/15/supreme-court-rules-favor-women-who-hacked-mans-e-ar-4761793/.  But other courts differ.

My real question, is should there be a divorce exception?  It is one thing for a company to steal important information from a competitor, but the desire of a spouse to know whether their companion has been faithful (romantically or even financially) is a hard desire to suppress.   Not that wiretapping or invading privacy should be legalized for divorcing couples, but perhaps the punishment should be lowered?  It is just such a hard urge for mst people to suppress, and while ignorance of the law is no excuse, most do not know they are committing a crime. After all, keystroke and other software is so readily available, and spouses usually feel that they are only “invading” their own computer, since after all, they are married and everything they own, they share, right?

It will be interesting to see what happens next.  I am looking forward to the development of this issue as more cases reach the courts.

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Guess what? You are not the mother, the kids are mine!

HLN (formerly “Headline News”) recently called me to help them explain/discuss the legal issues in a very interesting case about whether a “surrogate” mother is also a legal mother (To see the interview, click here: http://www.ksfamilylaw.com/tv-and-radio/local-broadcasts/).

The case arose when a woman who could not have kids of her own agreed to have a child with a long time male friend.  They decided to use a donor egg, his sperm and she would carry the baby.   But when she gave birth, she was immediately served with papers saying that he was the only legal parent and would be raising the child with his male lover/partner.   They even obtained a restraining order to prevent her from breastfeeding.  We don’t know what documents were signed (but it was likely a “surrogacy” agreement disclaiming any rights to the child, probably thinking she was merely signing documents needed to get the donated egg), but no matter what, she was devastated.  And the interesting legal point is: Is a surrogate mother a legal mother?  What happened? What did she sign? Was she defrauded? Do the normal rules of contracts (meeting of the minds, absence of fraud) even apply, or should there be a higher standard to meet before the father can enforce such a contract.  As of the time I was interviewed, the father had custody and the woman (should we call her the mother?) was suing to get rights to the children. The original story by ABC is here: http://abclocal.go.com/ktrk/story?section=news/local&id=8823108.

So why is this such a new thing? Because artificial insemination is only thirty years old.  Before that there was no possibility of such a problem.  And even then, it was all very controlled.  Now that surrogacy and ART (Artificial Reproductive Technology) is becoming commonplace, this issue, and many like it are arising and challenging us.  Law vs morality.  Social values vs. strict contract terms.  And that is where we as lawyers can help.  Until the legislatures of the states and perhaps of the United States can predict and resolve all such dilemmas in advance, great lawyering and judging will have to get us through.

Posted in Assited Reproductive Technology, Attorney, Child custody, Custody, Discovery, Divorce, Family, Family Court, Family Law, Gay Adoption, gay marriage, High Profile Cases, Judge, Lawyer, Legal, same sex marriage, Uncategorized Leave a comment

Family Law Lecture in Hawaii, Yes, Hawaii!

I have again been fortunate to have been invited to address the Hawaii State Bar Family Law Section as their keynote speaker this Friday.  I have worked very hard on my 3 hour, yes 3 hour presentation.  But this time it’s different.  I will not be speaking about the rules of evidence, or recent caselaw.  Rather, I will discuss how to practice with a passion.  I am lucky to be passionate about what I do.  The rewards are not immediate, but I know I am doing my best to help people, and any lawyer who practices family law should feel that way, IMHO (in my humble opinion) as the young texters say.  This program will cover not only practicing with a passion, but how your passion can help your practice and your life.  And how it can lead to better time management and in fact, the creation of time.  If we can create time by how we practice, we can spend more time focusing on what’s important. Things like our family, our colleagues, and even the big picture of our cases, instead of drowning in the details.  This idea is a work in progress for all of us, but I hope to help the lawyers who attend.  I am nervous and excited.  I hope I merit the invitation.

The program information can be found at: http://www.legalspan.com/hsba/catalog.asp?ItemID=20120802-299250-141330

I am looking forward to this opportunity and already know that I have learned so much, just in thinking about what to say.  Teaching is always a great learning experience.

Posted in alimony, American Bar Association, Attorney, Celebrity Cases, Child custody, Custody, Divorce, Family, Family Court, Family Law, High Profile Cases, Judge, Lawyer, Legal, Prenuptial agreement, Uncategorized Leave a comment