Custody

International custody

There are hundreds if not thousands of horror stories about international custody/kidnapping and support. This entry will not cover the Sean Goldman case or many of the other ones recently in the news, but I decided to write this post when I read an article about a man in Germany who has finally been relieved of paying child support for a child wrongfully taken from him, 10 years ago (click here to read the story).

While getting off the hook for child support may be a relief, the big issue of retrieving an unlawfully removed child still remains. This is an issue that not only causes much pain and suffering for children and their parents, but also haunts many family law attorneys who have been unable to effectuate the release or return of a client’s wrongfully taken child. During my year as Chair of the Family Law Section of the American Bar Association I intend to work on this issue and shine more light on this problem. There are International Laws, but not every country has agreed to them, and the rules are not applied uniformly and consistently. Educating our politicians is one good way to start and I hope the ABA can help in that regard and others.

For those of you who are lawyers practicing in Georgia, we will try to address this issue at our annual Family Law Institute which I urge you to attend next Spring. On a national level, we will try to also address it at future Continuing Legal Education Seminars throughout the country. These cases are so important and time passes so fast that unless we as family law attorneys understand the rules and laws, children may go unreturned for too long, and in many cases they may never be returned. We must all be diligent, as citizens, and those of us in the legal business, must remain educated and up to date on this issue and the rules and laws in this area.


When should 3rd parties step in to protect children?

Apparently a Southwest Airlines Flight Attendant stepped in to take a young child away from a mother who may have slapped the child (click for link to the story).

Given all of the news about parents harming their children, such as the South Carolina mother who appraently suffocated, then drowned her children, perhaps we should revisit our rules and laws allowing third parties to protect children.

Many of us like to say “how can our government let that happen?” Or “why didn’t the appropriate government agency step in?” But why don’t more individuals step in? Perhaps for fear of “getting involved”. But getting involved is important. Not just when an obvious issue arises (like child abuse in public), but also in custody and visitation disputes. Most custody cases end up being “he said-she said” with each parent pointing the finger at the other but no other witnesses (except maybe a close family member). True, being a witness is inconvenient and time consuming. But in custody or visitation cases, the true benefiiciary of the witness’ time and effort is the child. So why not get involved? All it costs is a little time, and it may help ensure a child grows up with the best possible chance to succeed in life.


NY last state to go to “no-fault” divorce.

Today, August 15, 2010, the Governor of New York announced that he signed a bill permitting “no-fault” divorce in New York. So what exactly is “no-fault”? Well it varies across the country, but generally it means that one need not prove the other spouse was at “fault” in the break up of the marriage. That is, if one person believes the marriage is over, that is all that needs to be proved. And that will make “uncontested divorces” easier.

But does that make fault irrelevant? In many states the answer is no. Georgia and many other states permit introduction into evidence, proof of “conduct” such as adultery, drug use, spousal abuse and gambling. These types of conduct can affect the decision of the court on issues such as alimony, custody and division of property in some states.

But what no-fault divorce allows, is a less confrontational divorce for many who have peacefully and amicably come to the decision that their marriage should end. The removal of the need to prove “fault” removes the need to accuse anyone of being the cause of the divorce. While such conduct issues may be relevant in some states for some issues, many people simply desire to move on and resolve their differences in a non-confrontational manner. This new New York law makes it a bit easier in New York to do what people elsewhere in America have done for years, to divorce without pointing fingers or laying blame. It is about time.


ABA Annual Meeting 2010

In just over a week, the American Bar Association holds it’s annual meeting. This year it will be held in San Francisco. It is a time for leaders in all legal areas to come together, share ideas and learn from each other.

At the meeting, I will have the good fortune of being sworn in as the Chair Elect of the Family Law Section of the American Bar Association. It will truly be a privilege to serve. I have been fortunate to have had some wonderful mentors during my career, and each, without fail, have encouraged bar participation. In 1997 I served as Chair of the Family Law Section of the Atlanta Bar Association and I also will soon serve as Chair of the Family Law Section of the Georgia Bar Association.

While some may think this takes away from my practice of law, the opposite is true. My practice, including every member of our firm benefits from the leadership roles and active participation in which I, my partners and our associates engage.

Attending scores of legal education seminars each year and maintaining relationships with the finest lawyers and judges in the country keeps us all on the cutting edge. If there is a new idea, trend or significant case, we are giving ourselves every opportunity to learn about it first.

While in San Francisco, I fully intend to take advantage of everything the ABA has to offer. From Hot Tips in Family Law, to programs on presentation techniques for the courtroom, I plan to soak in as much as I can. The nice thing is, most of the other lawyers there too are similarly motivated and that is exciting. I look forward to learning from my peers and returning to Atlanta with at least a few pearls of wisdom, learned, borrowed or stolen from some of the best legal minds our country has to offer.


Mel Gibson

What an example of how different homelife can be from someone’s public personna. The things said on the tapes are despicable and certainly will change many people’s opinion of Mel Gibson. But how it will affect his likely visitation dispute is unknown. Clearly most judges will believe anger management and other counseling is needed. And an expert psychological opinion may be needed before the judge or the mother agree to Mr. Gibson being alone with the child. But there is likely much more to the story. Without being an apologist for Mr. Gibson, other facts, once known, may change our opinion again. Perhaps he was so drunk that he couldn’t even stand up? If so, then he may still be disliked for what he said, but he may then seem less of a physical threat if he has never acted like this when sober or when physically capable of inflicting harm.

The point is, no one really knows anyone else, if their only information comes from the media, or even if it is just from public, social observation. One thing is clear, especially to me as a family law attorney: abusive behavior is certainly not limited to the poor or uneducated. Human traits are specific to humans, all humans. And each situation should only be judged after all the facts are known. Unfortunately, our court systems are overwhelmed and sometimes the full story isn’t told. But a thoughtful, careful review of all the facts is important, even if, as may potentially be the case for Mel Gibson, they ultimately all lead to the same conclusion.

The most telling fact for me, in this situation, is that Mr. Gibson had his second chance. His previous racist comments became public, and he was given a second chance. But it seems, if these tapes are indeed of him and not “doctored” in any way, that he truly has some tough issues to tackle. All anyone can hope is that he acknowledges them and does whatever it takes to overcome them. America loves a comeback, but this one may take some time.


Mediation and Settlement

[youtube]http://www.youtube.com/watch?v=HaZP92d4kk8&feature=player_embedded[/youtube]I recently served as a mediator for a contested divorce case. Each side was well represented and prepared. But it still was a difficult situation. While the details of the case including whether it or did or did not settle are confidential, I am confident the process was beneficial. I enjoy serving as a mediator and do it three or four times each year. As an advocate, when representing someone going through a divorce or family law matter, I am probably involved in ten or twelve additional mediations per year.

After a full day of mediation, parties often realize that failure to reach resolution only ensures more attorneys fees, more stress and delayed closure. Spending time together, even if separated during the day, allows the professionals and the parties to focus on resolution. Smaller areas of disagreement succumb to discussion of the larger issues. Having a neutral third party (mediator) often helps refocus everyone on total resolution which often means foregoing minor goals.

Family Law mediation and resolution is a complicated process. Rarely does anyone get all they want. But if the goal is closure, finality, cessation of fees and hostility, it can be accomplished. Why, because those goals are worthy of significant concession on lesser matters.

There will always be cases where settlement is impossible, but as a lawyer and mediator, if everyone has really given settlement a good try, litigating the case is much easier on the conscience. Litigating without giving your best to get it resolved short of trial is, in my opinion, a shame. But once all efforts at settlement have been exhausted, then we are of course left with the remaining alternative of presenting the strongest case we can to the court. A well presented case can achieve good results, but if if we can achieve those results via settlement, even better (and usually less expensive) for our clients.


Summer Visitation and Custody Issues

Each summer, thousands of parents reach for their custody papers.  They need to re-read them to confirm which week is theirs, or if their ex can really insist on a certain schedule with the children.  Inevitably, visitation issues arise which were not anticipated, or for which no arrangements had been made.  While many standard visitation schedules include parenting plans and “notice” provisions to ensure each parent may have some uninterrupted time with the children, there are always things which were not considered or planned for.  For instance, family weddings and funerals.  These events happen, and it often seems that they happen when the party who wants the children to attend them does not have parenting time scheduled with the children.  So what can be done?  Obviously foresight is the best plan.  Adding language to settlement agreements that allows a party to have the children at such events may help.  But the next best option is to always consider what is best for the children.  Even though a parent may have the right to have the children during a certain time period, if it is best for the children to go with the other parent (due to a wedding or other event), then hopefully an accommodation can be made.  This issue will almost always come back eventually and hopefully a favor will be returned.

Another related issue is what to do about step, or half siblings?  While a non-custodial parent may prefer to only take their own biological child to Disney World, if there is a step or half brother, perhaps that child should come along too?  That certainly will not always be best or even possible, but from a child’s perspective, think of the dilemma for the child.  They get to go to Disney World or somewhere fun while their sibling stays home and becomes jealous.  Wouldn’t it be better, in some cases, to let them both go, so they could both enjoy it and reminisce together about the fun trip they had?  Certainly there are other issues that go along with this, but perhaps the parents, and step-parents ought to at least consider this, even if it means spending money on their “ex’s other child”.  That child is also their child’s brother or sister.


Families Matter

Last week in Baltimore, MD, the University of Baltimore Law School and the ABA Family Law Section co-hosted a very special event, The Families Matter Symposium.   The “Families Matter” idea is a platform of three consecutive Chairs of the ABA Family Law Section with the goal of reducing the negative consequences of Family Law on families, and most importantly children.  65 experts from across the country convened, at their own cost, to explore and share ideas on how to achieve this goal.  There were large working groups which broke into small working groups and then reported back to the whole group over the two full days of the Symposium.   There were judges, psychologists, financial experts and lawyers, all working together.  Former Georgia Supreme Court Chief Justice Leah Sears was a featured speaker as was Maryland Supreme Court Chief Judge Bell.

While the program was a great start, it was only that, a start.  There were great ideas that will take a lot of effort and time to implement.  There was a consensus that it is impossible to create a flow chart for a family law case that would work perfectly. Every case is different.  But there was agreement on many needed changes to the family law system.  The concept of “triage”, immediately figuring out what a case needs and prioritizing situations based on different priorities (violence, kids needs, foreclosure?) was considered.  “Early case intervention” was another popular (and similar) thought.  Another discussion focused on law school preparation (and encouragement) of students to practice in this area.   

So what are the next steps?  One step is a comprehensive CLE Program which will be worked into the ABA Family Law Section‘s next Spring CLE seminar. Beyond that we must figure out how to assimilate these and other great ideas into the general practice of family law. Judge and lawyer training and specialization? More frank discussions between the bench and bar (and mental health experts)?  Family law is becoming more, not less complex.  Relocation issues, gay marriage issues, international custody issues are all on the rise.  Without consistently taking the time to study and try to improve our family law system, we do a disservice to our community.  

Kudos to all those (and there are so, so many) that take the time and effort to work to better our system.  Our superior court judges and their staffs, the many governmental agencies that are overburdened, and the legal and mental health practitioners who see the problems daily are all doing their part.  The question is what else can we do.  Certainly we all agree more needs to be done.  So let’s keep exploring what can be done, and of course, lets do as much as we all can.

Please visit the blog maintained by the Center for Families, Children & the Courts: http://ub-cfcc.blogspot.com/