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Tuesday, January 6, 2015

A few words about custody disputes

Most of my work, whether a new case or a revisit of an old case, seems to stem from custody disputes. Nothing is more emotional or potentially expensive than litigating your custody arrangement. How you raise your kids is so integrally tied to who you are as a person that it is nearly impossible to separate out your own needs, desires and beliefs from what your children need in planning for how they are going to grow up. Yet, that is exactly what the court expects. If both parents were capable of doing that, they probably wouldn't be hiring attorneys and going to court.


Before you file a scathing declaration in support of a motion to get the arrangement that you want, here some things to consider:
  • Joint custody allows each parent to have his or her own parenting style. Neither parent is supposed to get to micro-manage the other. When you are tempted to complain about something the other parent is doing with the kids, take a moment to reflect on what is really bothering you about the behavior--is it actually inappropriate or dangerous, or is it just not how you would prefer that things be done? Complaints about anything less than harmful will likely raise the ire of the judge.
  • Your kids deserve to have a relationship with both their parents to the fullest extent it is possible and it is both parents' responsibility to make sure this happens. 
  • If you go to court to request to move away, remember that the judge automatically doesn't think it's in the children's best interest for the parents to live far apart. The court would like to see your children going back and forth between their parents' homes easily with as little interruption to their lives as possible--that is what is presumed to be in their best interests. The court cares less about the lives of the parents, and the judge will be fairly unconcerned about inconveniencing either parent.
  • If you do live far away from the other parent, or if you're going to ask to live far away, then you may well be expected to take responsibility for nuturing your child's relationship with the other parent, even if that parent can't be bothered to do it. If this seems unfair, remember that it is for your child's benefit, not the other parent. Failure to do this may be characterized as spite towards your ex without regard to your children's needs.
  • Kids are smarter than they get credit for. They know when their parents are arguing no matter how hard you try to keep it from them. Different kids react in different ways. Some may use the information to their advantage and become manipulative. Don't be surprised when your kids use your inability to communicate with their other parent to get something they want. And if they do, realize that the cause was your failure to co-parent.
  • If you are tempted to talk disparagingly about the other parent, remember that person is your child's mother or father. Your kids may well internalize the criticism and make judgments about themselves based upon what you have to say about their other parent. 
  • Assume that your children will one day read everything and anything filed with the court, including the transcript of every hearing. Think twice about what you are putting on the court's record.
  • In raising your child, like anything in life, you only have control over what you do. You have no control over the rest of the world that will influence your children, including their other parent. Remember that court orders don't control behavior--they merely provide you with a clunky means of punishing contrary behavior.
  • Try to put yourself in your children's shoes before making big changes. When you get caught up in the dispute, sometimes it's hard to step back and think about the effect it is having on your kids. Be sure to take time to reflect throughout your proceeding on how you would feel in your kids' position, and consider the effect the proceeding has on their lives. 
  • Don't be afraid to back down from a position out of fear that you will appear weak. I truly believe that the ability to tell a mediator, judge, or even the other party that you have reflected on your prior position and no longer think it is the best course of action shows a degree of maturity that is not often seen in family law and that will reflect well on you.

Monday, July 7, 2014

Improving Access to Justice in Family Law

Legal advice is pricey. There is a reason for that--see my previous post; this doesn't mean every attorney charging hundreds of dollars an hour is rich. Bar associations, judges, and already rich attorneys like to make a lot of noise about how we need to improve "access to justice" in the family law area for people who can't afford it--which these days is 90%+ of the population. But when it comes down to what should actually be done, all you ever hear is the same suggestion every time--unemployed new law graduates should handle these cases for free because they don't have anything better to do. This suggestion is tone deaf and dismissive of the larger issues involved in providing legal assistance to people without adequate funds. Young graduates would be happy to volunteer some time to get some experience. Unfortunately, without guidance in these matters, the young attorneys are likely to get into cases over their heads and possibly leave clients worse off than they found them. 

Young attorneys come out of law school with little experience in handling any type of case and no experience in managing clients. Attorneys new to family law are often blindsided by the extensive written and unwritten rules of family law. Other attorneys and judges are rarely sympathetic or helpful to the new attorneys. Attorneys taking on their first few family law matters need help from experienced attorneys to meaningfully train them and assist on their cases. Without a program set up to facilitate such training, modest means clients aren't going to get much help from brand new attorneys and the new attorneys aren't going to get much meaningful experience. To bring in experienced attorneys to assist in this way will require programs to be set up, oversight, management, and money. And new attorneys, unless they are already independently wealthy, need to make money to pay their rent and their student loans. Even if they are still training, they deserve to make money for their work. New attorneys don't know how to value their work, and they have difficulty even figuring out a reduced rate to offer to clients; they shouldn't have to do this on their own. 

The only solution is to set up a program of free and low-cost legal assistance which will train new attorneys in family law. Setting up a program like this is never going to organically happen on its own. It will have to come from an expansion of services already offered in a limited manner such as self-help clinics and the Legal Aid Society, or through the funding and creation of new programs. But this is only one part of what is needed in the family law court.

In family law, like in many other areas of law, legal problems are often symptomatic of other problems that the litigants are going through such as depression, unemployment, and substance abuse. Often these problems are related to the family law proceeding and they usually have the effect of increasing the level of antagonism in such cases. If the underlying problems are not addressed, these cases take disproportionate resources from the family law courts, which are not well equipped to address or assist with such underlying problems because, after all, that is not the purpose of any court. In my first couple years practicing family law I began keeping a file of resources for drug rehabilitation, suicide prevention, housing assistance, and anything else that came up. Many of my clients have had such issues and other issues for which there are few resources available. Social workers or other appropriate staff (acting independent of the court but available to all) would be an enormous help to family court litigants and could help ease the load on the family law courts. Attorneys are not trained or well equipped to help such people out or even know what resources are available to help them. 

Funding family law programs only captures the public's attention in regard to certain issues. People sympathize with and want to support domestic violence victims and children, but other family law litigants are not particularly sympathetic. After all, they have at least contributed to their own problems, and their complaints often seem petty to others who have gone through divorces and custody disputes. When we don't want to fund basic assistance, these people end up wasting public money by coming back to court over and over again often because they just don't know how to finalize their cases or don't know how to properly seek the assistance they need. When people don't know how to use the courts they also resort to self-help, which can be even more expensive to the public. The police are called, Amber Alerts are issued, and law enforcement and the public become increasingly desensitized to domestic issues that should have/could have been resolved through the courts.

This short post only briefly touches on a couple of the issues involved in providing better access to justice in family law. Until we commit to funding assistance to family law litigants, people of limited means are not going to get the assistance they need and are going to increasingly view the courts as unjust and only serving the needs of the rich--which is not entirely untrue. 

Tuesday, March 4, 2014

Pre-nups are always difficult

Theoretically, pre-marital agreements (pre-nuptial agreements, or pre-nups) make perfect logical sense. After all, the state has decided what is fair if you get divorced, why shouldn't you come up with your own rules if you don't agree? But every time I sit down to discuss and draft one with a client, it is a difficult thing to do. Here are some reasons why:


Wednesday, February 19, 2014

Veracity in Family Law Court

Recently I've been inundated with calls from potential clients who are very concerned with proving the other party has not told the truth about something. I have to blame TV and movies for this somewhat because courtroom dramas often culminate in a satisfying climax where a witness is shown to be a liar and the protagonist wins the case. In real life and in real court, true vindication is rare. I would say it's even rarer in family law court. Here are some reasons why.

Rollins Band - Liar
for your enjoyment