2010, the year in family law.

As 2010 comes to a close, I can’t help but look back and realize how much “family law” was in the news (click on the stories for articles on each). There was the Goldman international custody case between U.S. and Brazilian citizens as well as gay marriage debates, laws and rulings nationwide, culminating with perhaps the most reported case of all, Proposition 8 in California (click for Associated Press Video).

There were countless celebrity divorce and family law cases in the news. Just think of Mel Gibson, Tiger Woods, Octomom, Kate Gosselin, Sandra Bullock and perhaps the biggest of all, The McCourts (Owners of the L.A. Dodgers).

There is the Tony Parker v. Eva Longoria case and the Charlie Sheen divorce.

It is time for the media to start looking back and summarizing the stories that made news. CNN has already written one on celebrities’ troubles.

Still, what continues to amaze me, is how interested the public is in other people’s lives. Have we become a voyeuristic society? Or do we simply take comfort in knowing that even those who seem to have it all are not immune from the same type of pain and emotional (and often financial and physical) agony the rest of us may endure?

As a family law attorney it is often difficult to see so much hardship. But our role as lawyers is to help reduce that pain. To counsel and to make a bad situation a little better, or at least tolerable. Often we are the only ones who can see the light at the end of the tunnel; that there will be a tomorrow. So perhaps the most important thing we can do is to reassure our clients that tomorrow does come. And look, here it is, 2011. Many people have suffered in 2010, but many have made it through to a new year. Here’s to hoping that things get better for those who had a rough 2010, and that those who didn’t, continue to be blessed in 2011 and beyond.

Judicial Elections, what is a lawyer’s role?

Most people don’t know much about judicial elections, and most don’t care. Why should people care? What are the chances that the particular judge up for election will actually be asked to decide an issue for an individual voter? Very small. On the other hand, Governors, Senators and Representatives in the House will vote on issues that affect everyone.

But here’s the rub. If a judge does end up deciding an issue for an individual (a criminal case, divorce, business dispute or other matter), that elected official will have more input into that voter’s life than any other elected official, including the President of the United States. In Georgia we elect our judges so we have a choice in who we want resolving our disputes. Many people complain about judges, but we (or they) voted them into office.

I have heard judges discuss how interesting it is that judicial races are so far below the radar. There is no general polling and not much interest in judicial races compared to other elected offices. Yet judges, of all elected officials, carry so much power. Who else has the ability to impose a sentence of life imprisonment (or sometimes death), to remove your children from you, to kick you out of your home, to order you to pay or receive large sums of money following a car wreck? Yes, sometimes a jury can answer these questions, but judges still govern the courtroom and in child custody cases, there are no jury trials.

So what can we all do? Get educated. Learn about the current judges and those running against them. And who best to learn from? Lawyers, especially trial lawyers. Those of us who are in the courtroom regularly have a duty to tell our friends, our clients and anyone we know what we think about judges. Who the good judges or candidates are. True this will just be our opinion and may be no more valid than anyone else’s, but we have at least seen the judges in action and heard about the judges’ general reputations from our respected colleagues. And perhaps even more importantly, judges are at a disadvantage. To maintain their professionalism, there are severe limits on what they can or should say. They cannot comment about certain cases and generally stay out of public debates. So who will speak for them? We must.

So if you are a lawyer and if you are concerned about our future as a society governed by laws, spread your knowledge. And if you are not a lawyer, or not a trial lawyer, ask the trial lawyers you know what they think. That spot on the ballot for “judge” may just be the most important box you check.

ABA Family Law Section to meet in Fort Worth

This Wednesday through Saturday, the ABA Family Law Section hosts it’s annual Fall seminar (next October we are meeting in Las Vegas). True to form, the programming is excellent, filled with excellent speakers on excellent topics of interest to family law practitioners. New and interesting topics include “Using Stock Options and other Executive Compensation to fund Alimony” and “Parenting Plans for Children Under 3”. There will also be debates/discussions about many far reaching issues, including the need for a uniform act on child support guidelines and the Model Act of the Representation of Children.

Of course, the informal education that comes from the interaction of lawyers from across the country between sessions cannot be overestimated. I look forward to seeing many old friends and to meeting new ones this week in Fort Worth.

If I can answer questions, before during or after the program, please let me know.

Temporary Custody should not automatically = Permanent Custody

Often in divorce court, a temporary ruling on the issue of custody means there is a near certainty the same result will follow the final trial. But this is not what the law suggests or even allows as a presumption. Nonetheless, many divorcing parties and/or their lawyers focus heavily on temporary custody so that they may be in a much better position to achieve an award of custody on a final basis (I know, I hate the terminology like “achieve” or “winning” when we are talking about the lives of children). However, a recent Georgia case has made it very clear that a trial judge may not simply “do the same thing, based on what he or she already heard at the temporary hearing”. The case is Pace v. Pace, in the Supreme Court of Georgia and has been given the number No. S10F0843 (Oct. 4, 2010).

The trial judge may rely on evidence adduced at the temporary hearing, with advance notice to all, presumably so that the parties will know what evidence the court has in front of it even before the final trial begins. But the court may do so only after “notifying the parties of its intent to do so [rely on evidence from the temporary hearing]”.

One thing the Pace decision did not clarify, is what amount of weight the evidence from the temporary hearing should be given: “Neither the statutory provisions nor the court rules governing the conduct of child custody proceedings addresses the extent to which a trial court may rely on evidence from the temporary hearing in reaching its determination on permanent custody.” The court did however point out how limted temporary hearings can be and that final trials offer the parties a much better ability to present evidence.

Another thing the Pace case did not emphasize, is that even if the evidence was strongly in favor of a custody award to one party at the temporary hearing, things change. Child custody and visitation decisions must always be made with an eye toward what is going on presently. There are many parents who have done bad things. This goes for parents who are not in a divorce or custody struggle. But the real question should be what is in the child’s best interests right now and going forward. Yes the past is important, but if there were poor decisions made years ago that have not been repeated, we should closely examine how best to ensure a good future for the child or children instead of punishing a parent who has made mistakes in the past. There is no question that custody decisions are difficult. No one can predict the future. But if we, and importantly the judges, can know the very present, then we are more likely to formulate plans for our children that will work now, and hopefully into the future.

Recalling the first test tube baby

In 1978. That was the first time in the history of the world that a child was conceived outside of a mother’s body (an egg being fertilized in a dish), and then successfully carried through pregnancy to life by the mother. Until then, we were always certain that if a mother delivered a child, it was her biological child since her egg was fertizlized within her body, even if the sperm was donated. In 1978, everything changed. The child was Baby Louise and her story can be found via an easy internet search (you can read more about her story by clcking here). That was the start of successful in vitro fertilzation and the start of a brand new area of law.

I write about this since a guest lecturer for the Domestic Relations Law School course I teach discussed it last night. Ruth Claiborne is a leader in the legal field of assisted reproductive technology (ART) and her insights made for an exciting and interesting class.

From that day back in 1978, the field of ART has exploded. So have legal quandries surrounding it. Frozen embryos, inheritance by an embryo, custody battles between a surrogate mother and the biological mother, adoption of children not yet born and other legal quagmires have made this area of the law fascinating. There is a growing interest in ART among lawyers and non-lawyers. At our Spring and Fall ABA Family Law Section seminars, we are seeing more and more programs dealing with these topics. The leaders in this field, including attorney Steven Snyder and Professor Charles Kindregan and many others have generously given their time and talent to educating other lawyers about this new and emerging are of the law.

And these issues are everywhere. They have impacted almost every area of family law. For instance, some opponents of gay marriage used to argue that marriage was only for people who could procreate. Well that argument is now gone, or severely dimished since a same sex couple can now have a baby using donated sperm or a donated egg.

By no means am I an expert in this area. To the contrary, I still feel often like a little boy in science class learning new things. Last night during my law school class, I had that feeling again, and it was great.

Closing a door, opening a window (Sandra Bullock for example)

The saying “When God closes a door, he opens a window” can sometimes be very appropriate in family law settings. Sandra Bullock’s situation is a prime example. While a door was closed for her (divorce with ugly allegations that her husband Jesse James cheated), perhaps a more important window was opened, the adoption of a baby boy (Washington Post story can be viewed by clicking here). Her love for her child is so apparent that it is clear that perhaps she was freed of a bad marriage to make time for a person who she could love even more and who could return the love equally and unequivocally.

In our experience as divorce lawyers, we are often fortunate enough to see clients after the divorce has passed. While some struggle for years, many, if not most, move on and find happiness that they may not otherwise have found. That is one of the most gratifying parts of our job. Since the future is never certain, and is almost always frightening for anyone going through a divorce, the ability to watch people go through it and survive and succeed is an awe inspiring experience. Almost everyone who goes through a divorce, never ever dreamed of the possibilty of a separation or divorce. Then, to accept the failure of their marriage, a project they worked on, planned and tried their very best to make work, is always difficult. And much more so when children are involved. Yet inevitably life moves forward. New relationships are formed, different connections are made, and life goes on.

The bottom line is that change is inevitable and when it is as significant as a divorce, everything changes. But as human beings we strive to improve our circumstances, no matter what is thrown at us. And guess what, many people succeed in that. No, not everyone moves on and is better off for divorce. Money is tighter, logistical difficulties preventing non-custodial parents from seeing their kids arise, but we learn to cope with these issues. Of course there are times when the path of divorce was too quickly chosen. But in the majority of cases we see, the die has been cast, as in Sandra Bullock’s case. When the couple has passed the proverbial “point of no return” (one party cheating with porn stars?), then the real question is how to move on respectfully and with dignity. And I suggest that Sandra Bullock, at least from what we can glean through the press, has done exactly that. It is refreshing to see and likely inspirational to many.

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][/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.

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