Custody

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.

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.

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.

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.

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: /video).

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.

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.

Double Duty, Quadruple Duty Family Law Day; Divorce Seminar, Child Abuse Seminar and 2 TV interviews (Kelly Rutherford Custody Case and Paparazzi and Divorce, and yes, it started with the Kate Middleton Story)

On Friday, September 14, 2012, in addition to working on client cases and matters, I had a full, quadruple duty family law day.  I had scheduled a day without trials so that I could present at two very important programs.  The day started out with my presenting as the lead-off speaker at our annual “Nuts & Bolts of Family Law Seminar” sponsored by the State Bar of Georgia, Family Law Section.  I presented on “How to Present Your Case When Time is Short”.  I think I was effective, and at least I finished on time, since going long would have been disastrous, given my topic.  The program agenda can be viewed at: http://www.iclega.org/programs/8025.html.

As soon as I finished speaking there, I left to go Chair and speak at maybe the most important seminar I have ever been a part of (there were well over 200 people attending the “Nuts & Bolts of Family Law Seminar”, so I had to try my best to leave discreetly, but that was impossible). The program I then went to was called “Stewards of Children” and it was a training session to teach people how to prevent or help prevent, child sexual abuse.  The numbers of sexually abused children astounded me.  I thought I knew something about children and the issues they face.  I had no idea.

The seminar was a success and everyone who attended was moved by it and motivated to do more.  For information and full brochure: http://www.iclega.org/programs/8030.html

That was the “Double Duty”.  Then came part two.  As we went to break during the second seminar, I received a call from CNN/Headline News.  They invited me to come comment on the Kelly Rutherford Custody case, where her former husband who now lives in France was just awarded custody of their two very young children.  I agreed, studied up, and went over as soon as the “Stewards” seminar ended.  As I walked over, the telephone rang again and it was CNN/Headline News.  I thought perhaps my segment was getting cancelled. Instead it was another department asking if I could appear on the Jane Velez Mitchell Show to discuss paparazzi and celebrities, including Kate Middleton.  I agreed, especially since I was on my way to their studios anyway.  Without getting into much detail, it was a whirlwind of an afternoon.  The bodies of the Americans who had perished in Libya at the Consulate attack had just arrived in the U.S. and Secretary of State Clinton and President Obama each gave speeches right when my segment was scheduled.  Needless to say my segment was delayed for a while.  But I can’t tell you how interesting it is to be there and to watch the news unfold.  This happened once before as I was at CNN to discuss a custody case and right between my two segments, the news broke that Michael Jackson had died.  I tell you, reputable news organizations like CNN/HLN work so hard.  You should see the experts and professionals scrambling to ensure the news is accurate and that it is delivered quickly and professionally.  They have to learn the story and then explain it to the world, all in a matter of moments, and they do and they do it well.  AND IT IS A LOT HARDER THAN IT LOOKS!  Imagine trying to learn all about ten stories you will cover in just one hour.  Stories about the far east, the middle east, medical stories, celebrity stories, politics, weather, sports and other topics.  No one can be an expert in every area, but they become experts in all of it.  But I digress.  I eventually made it from one interview to the next and enjoyed every second of it, including the last second changes, personnel changes and time changes.  The first interview can be seen by clicking here.

So why do I feel good about all of this?  I guess part of it is to be able to accomplish a lot of different things within a day.  But as I think about it, I know I had a chance to help.  On a day to day basis I hope I help my clients (and yes, I spent about four hours in the office on client matters to on Friday).  But on this day, I hope I helped family law attorneys learn to present their cases more efficiently, other lawyers to be able to better help protect children from sexual abuse, and viewers across the country to better understand the custody laws and concepts as well as how travel and international diversity can affect court rulings.  I didn’t do anything complex or change anything or anyone, but I did my little part, using the knowledge I have, to try to improve lives.  And that made the day wholly worthwhile.

I have recently been asked to appear on Headline News to discuss family law cases. One recent one is the woman who has cancer and lost a custody hearing (click here for a link to the video).

It seems like it was a really difficult case, but like all child custody cases, this one must have been, and likely was reviewed by the judge with the focus being “What is in the best interests of the children”. Like any case, it is easy to second guess. But the factors the judge likely focused on were those that affected the children and what would give them the best shot at good, stable futures. We must resist the temptation to judge the headlines and hope that if we ever need a judge to help determine our disputes, the judge will listen to all the evidence and do what is right, especially in the case of children. We can never know, but let’s hope this judge made the right decision and these children and this woman heals (and that the whole family heals).

The Annual American Bar Association meeting, held this year in Toronto, has been quite interesting.  I have gone to meetings for all sorts of committees (Commission on Youth at Risk, and many others) and seminars on all sorts of topics (including gay marriage and the future of marriage and family law).  At a committee breakfast, I learned of a social media initiative to educate parents on how their children may perceive their parents or other’s views on homosexuality.  They have created a video that may go viral (thekidsarelistening.org).

There are also programs on line to help lawyers learn how to represent children including how to interview children located on the website of the Litigation Section of the ABA. This was done by the Litigation Section’s Children’s Rights committee.

But most importantly, as always, is the camaraderie. Seeing local metropolitan Atlanta judges and lawyers as well as family law attorneys and judges from across the country is very enjoyable for me. We are all here to learn and help and the amount of energy that lawyers are putting into improving our society and our communities is evident.  Lawyers and others rising early and going to working meetings at 7:00 am on a Sunday to address the needs of foster children and child trafficking is really heartwarming.

I am glad to be an active lawyer and part of something bigger.  Even though the ABA may support various ideas that often generate much discussion and disagreement, it is a peaceful way to effectuate change, and a most valuable endeavor.

A new law was enacted this week in the Georgia Legislature. It grants certain protections to military personnel in their custody and visitation disputes. An AJC article outlines it well (click here for the article). The bill was passed with overwhelming support and prevents final orders changing custody to be entered simply because a parent is deployed. A draft of the proposed Act can be accessed by clicking here.

For years advocates for military personnel have complained that armed services members were often penalized for simply serving our country. The delicate balance is between rights of those serving our country and the best interests of children. No answer will be perfect for every situation, but this bill was drafted, considered, reviewed, debated and finally passed. No law is perfect, but hopefully this law will help military families and their children, and hopefully does not reduce the emphasis that must always be placed on ensuring that we do what is in the best interests of the child.

Why shouldn’t we allow divorce records to be sealed? Since when is the public’s right to know more important than a couple’s right to keep private the division of their assets and the whereabouts of their children. Married people need not publicly disclose how they share assets or time with their children. So why must divorcing couples be subject to public scrutiny of their most personal dealings?

This has always seemed odd to me. In Georgia a few years ago, much was made of the Speaker of the House’s divorce being sealed (click for wikipedia info). But I think the outcry was not so much about his case being sealed, but more about why was his case sealed, when many others weren’t. The answer should have been: “Let’s seal them all”. Instead, the opinion of the majority seemed to be: “no special treatment for him”.

Currently, as reported by the Washington Post, the Montana Supreme Court is considering restricting public access to such records (click for story). As a family law attorney, I think the potential benefits are tremendous. Why should information about where children are being dropped off be public? What about agreements to sell property for a certain price? It may take a philosphical shift about court records, but family law is different. The parties, if they have children, will continue to interact and be somewhat interdependent on each other after the divorce. Why allow more roadblocks, like allowing outsiders to know their private business, to make their life any harder than it already will be?