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Easy Answer

Posted in Family on Thursday March 04 2010 @ 7:56pm

Ooooh, pick us pick us pick us!

Slate's Mary Adkins asks why court mediation programs don't take domestic violence cases: Breaking Up Is Hard Enough to Do, Slate (March 3, 2010).

Answer: because that's the way the advocacy community wanted it. Some programs had a very tough start back in the day due to this very dilemma. This was so even when mediators argued that mediators were probably better at handling extremely conflicted parties and dysfunctional dynamics than many judges were. Nevertheless, every family mediation rule we've ever seen includes language from the advocates keeping victims out of the process.

So, perhaps it is time to revisit this question. If the answer changes, then every single family mediation rule, statute, etc., will have to be rewritten.

Wanna Be Startin' Something

Posted in Family on Sunday June 28 2009 @ 6:48am

Does Michael Jackson's ex-wife, Debbie Rowe, have a claim to custody of their (?) children? Rowe relinquished her rights to the children after a brief marriage. Now what?

A new fact pattern is born every minute, it seems, at least in the wacky intersection of family law and international popdom.

Let's hope the young Jacksons are spared being stuck in the middle, and that someone decent will be there for them. May they get plenty of visits with La Liz!

L.A. family judges have their work cut out for them. We wish them luck, too.

See Court Fight over Jackson's Children Looms, Anthony McCartney, Washington Post (June 28, 2009).

Wonks, Rejoice!

Posted in Family on Tuesday May 26 2009 @ 9:53pm

Tuesday was an exciting day in legal news, but with all due respect, the real story emerging is California, not Judge Sotomayor.

Sure, there's an exciting confirmation process to look forward to, long discussions of empathy v. hard-hearted legalese, and the elusive what-makes-a-good-justice answer.

But family law, including same-sex marriage, is deeply concerned with policy. Empathy has always guided this policy because real people's lives are radically affected by it. Family law touches people in a way other areas of law does not. Hence, we have more to talk about when it comes to determining the fate of same-sex couples in California.

Forget about same-sex marriage; consider the charmingly retro opposite-sex marriage. How do we deal with conflicting state rules for these couples? Unless the jurisdiction's strict public policy goes against the type of marriage brought into the state, the marriage stands.

Thus, a polygamous marriage would not be recognized. Everybody hated Mormons back in the day, and suspicion still surrounds them. Polygamous families are quite complicated.

Similar alternatives to traditional marriage have likewise not caught on. For example, except in certain circles, polyandry has not risen above its definition of swinging for the non-beautiful in our society.

OTOH, a jurisdiction is likely to recognize a couple married ala common law -- even if such a marriage could not occur in that jurisdiction.

Why? Because family law policy favors marriage. This dates back to the days of illegitimacy, where laws and society were a whole lot nicer to legitimate folks than to bastards, and when women depended on men economically. Stability and relief at fewer members of the singles scene were added bonuses.

There's a distinction between how a marriage is formed and the marriage itself. A jurisdiction might not like the way it's done, but the end result -- marriage -- makes for good policy.

Too, there is the difficulty of determining what people did and said in another time and another jurisdiction. Again with the common law couple, did they hold themselves out as married? Did they consider themselves married? Did they live together? For how long? Who knows?

The trouble with marriage is that it boils down to an agreement between two people and a witness. Grounds for divorce lost favor after it became apparent that two people who couldn't agree on anything else could at least join forces to convince the court that they belonged apart.

So in California, couples already married stay married. Even the will of the people, expressed in legislation, can't stop these existing marriages. The strong public policy argument -- noting that Prop 8 signifies that the jurisdiction is against same-sex marriages -- might well have tossed these couples back into singledom. The strongest public policy is pro-marriage.

What's the future of same-sex marriage? Wait and see. As more jurisdictions allow same-sex marriage, the more confusing it will be from place to place. The more marriages, the more children. Simultaneously, the general public may grow more used to the idea. Several pickles will result -- who's married? Who isn't but thinks they are? What about the children? Who cares?

The California opinion is a fractal: a microcosm of all that's happening in the same-sex marriage realm, and now a portion of the bigger picture.

Thanks to the Sexual Orientation and the Law Blog for providing the link to the 185-page opinion.

Get Me to the Courthouse on Time

Posted in Family on Saturday May 02 2009 @ 8:08pm

Getting married in the morning? Check to see when the courthouse opens.

More couples are choosing courthouse weddings for economic reasons. In Jackson County, Oregon, the fee is just $25. The rotten economy has combined with deployment of locals in the military to make courthouse weddings the new white.

The Jackson County clerk has performed 220+ wedding ceremonies over the past year.

See Courthouse Commitments, Damian Mann, Mail Tribune (May 2, 2009).

Meanwhile, Hawkeyed friends of Dorothy are rushing to tie the knot. Caterers, florists, wedding planners, and surrogate bridezillas eagerly await the new business. See Iowans Eager to Cash in on Gay Weddings, Kilian Melloy, Edge (April 30, 2009).

So, is marriage -- any kind -- good for courts? From a public trust and confidence angle, it's great to get people into the courthouse for a happy event. People dislike court because of what it reminds them of -- divorce, an ugly probate battle, fighting for (or against) child support, or traffic tickets.

Weddings are a happy occasion, a good chance to promote goodwill between courts and communities, and they bring in a small fee. The fees are probably not enough to cover the actual time and talents of judges, magistrates, and court staff, but cashing in on the goodwill is priceless.

It Takes a Terrier

Posted in Family on Friday January 09 2009 @ 12:00pm

Court is stressful for everyone, most of all the children caught up in adult-sized conflicts. We've heard of day care in the courts and teddy bear projects, but never a courthouse pet.

So we were intrigued by the Howard County (Maryland) clerk keeps a teacup Yorkie in her office to brighten sad occasions. We wonder if the small and furry Shayna Madel gets to ride the conveyer belt through security, or may simply be carried through the entrance.

See Clerk's Tiny Terrier a Big Hit at Howard County Courthouse, Mike Santa Rita, Howard County Times (January 8, 2009).

Traditional Family Earspin

Posted in Family on Thursday November 27 2008 @ 9:15pm

Thanksgiving often means spending time with family and honoring traditions. Our very notion of "family" is fraught with tradition. But would we recognize a traditional family if one invited us over?

Professor Stephanie Coontz has two things to say about this: one, our concepts about what constitutes traditional family are misguided (at best), and two, traditional families were nothing to write home about anyway.

In Coontz's hands, family myths shatter like plates against a wall during a nasty argument. Polygamy, lopsided divorce policies (e.g., men could, women couldn't), and the lack of property (or other) rights for women all made for not-so-happy days. Marriage was a business and/or political agreement between families. Do we miss that type of arrangement? (Uh, feel free not to answer!)

As for the separation of church and marriage, Coontz tells the story about a pope who wanted to decree that the only recognized marriages would be those which had taken place in a church. Some kind advisor whispered to him that this wouldn't be such a good idea, as the moment the plan went into effect the majority of children in Europe would be illegitimate.

In fact, Coontz says the real breakdown of the institution of marriage came when we destigmatized illegitimacy. So it's already come and gone. We got rid of illegitimacy laws and policies for good reason -- children shouldn't suffer for their parents' choices. Sometimes the good reasons come with bad side effects, such as a soaring divorce rate.

Why do people wax nostalgic for the 1950s? It's not the racism, the isolation of women to the home (many had worked throughout WWII), or the hairdos. Yet (we're told), many do long for the time when Richie and Potsie could hang out at Arnold's without fear of thugs (Fonzie wasn't really a thug) or societal evils.

The irony? Those who pine for the stability of postwar years refuse to re-institute the programs that made that stability possible. Citing expansive veterans' benefits, high taxes for the wealthy and corporations, home financing, affirmative action, and public works spending, Coontz argues handily that working-class people had real hope of advancement.

Whether you celebrated with hand-picked family, friends, neighbors, just your sweet self or a large group from the community, whether you had an 18-lb. turkey or tofu surprise, be ye pilgrim or native, court-o-rama wishes everyone a Happy Thanksgiving (or harvest festival of your choice)!

Nebraska's Not-So-Safe Haven

Posted in Family on Friday November 14 2008 @ 6:20am

Earlier we noted that the broad safe haven law in Nebraska has people talking. Its no-child-left-behind approach allows parents to leave children of any age in designated hospitals.

Half of the 33 children dropped off to date were not infants. Nebraska is trying to rewrite its law to mirror other safe haven laws, which were written to shelter infants only.

The argument against dropping off older children is that they will be traumatized by the event, whereas babies won't remember. It seems, though, that the situations in which these older children find themselves are already quite traumatic. Abject poverty, mental illness, missing and/or deceased parents -- all have deep impacts on the children. Abandonment might be better than the alternative.

Families struggling with older children are canaries in the mine. Rewrite the law, and they'll still exist. The widowed father with several children won't get his wife back or win the lottery. Social services won't step up to assist hopeless parents around the country.

We know foster care is a last-ditch option. What other options exist? Emancipation of the minors? Transferring (formally or in-) custody to another relative or friend? Providing mentors, parent education, or other resources to those in need?

Orphanages still exist -- these days they mainly care for children who were removed from the home rather than for the average Dickensian waif. Are they stepping up efforts to fill this gap?

What's your state doing? Let us know.

Listen to Nebraska's Legislators Evaluate Safe-Haven Law, Ari Shapiro, Morning Edition (November 14, 2008), and read The Dilemma of Dropped-off Kids, Cincinnati Enquirer (November 13, 2008).

Every Court Is Veteran's Court

Posted in Family on Tuesday November 11 2008 @ 7:55am

The veterans' court getting the most ink is located in Buffalo, NY. But do all such cases end up in the so-called "speciality courts" for which those courts were designed? Of course not.

What happens to veterans in courts everywhere else? Rather than cover the veterans' court yet again, we want to call attention to everyday cases in everyday courts, some of which happen to involve veterans.

Take your typical dissolution. Only it's not so typical -- mom has been deployed multiple times over the past several years. The couple has a son. The father works an hour away from home, so the paternal grandparents become de facto caretakers.

The mother returns. The reunited family does not stay that way long -- let's guess that stress, unmet expectations on all sides, money problems, and undiagnosed mental health issues contribute to the breakup.

Is this case going to veteran's court? No, the family proceeds to juvenile and domestic relations court in, say, Virginia Beach. (This is pretend, btw, but it could happen.)

Are the judges, mediators, deputy clerks, etc., aware of the situation? Probably -- they've seen it time and again living, as they do, in a military area. Sure the tables appear to be turned -- here the "military wife" is the one being deployed -- but we would guess it's not an unheard-of scenario.

So how does the ordinary court deal with the parties? Are they able to apply what they've experienced day in and day out to make things run more smoothly for this particular case, the latest in a trend? Does their knowledge accumulate, allowing them to handle each case better than the last?

Or do they keep on digging the same holes, perhaps being insensitive to the "stay-at-home" dad, perhaps blaming (even indirectly) the mother for taking on such a high-impact job, perhaps missing underlying (or even obvious) issues (PTSD, attachment, inter-generational conflict, gender bias of any kind, etc.)?

What about more basic problems -- custody, when one parent could be moved around without much notice? How does the slow pace of military benefits affect the support agreement? What about those grandparents? What if estate planning comes up, as an aside? Does the lawyer for the military spouse require any special knowledge?

One way judges, lawyers, and court staff can rise to the occasion is to talk amongst themselves. Whether formally or in-, sharing experiences helps people recognize trends, issues, and solutions that might otherwise go unnoticed.

Another step in the right direction is to educate themselves about the issues. Those who are new to a military area, for example, can read up on military matters, visit families, talk to their new neighbors. Take a JAG to lunch!

Whatever side of war or peace we find ourselves on -- red or blue, elite or blue-collar -- we all live in the same country asking the ultimate sacrifice from a few volunteers. That's reason enough to try to figure out what goes on in hearts and minds and households, even (especially?) for those of us not working in a designated veteran's court.

New veterans' courts are popping up in Tulsa and Maricopa County (Phoenix).

See Interviewing and Counseling Military Service and Family Members in Family Law Cases, Law Offices of Donald L. Williams (September 8, 2005); Preparing the Military Client to Deploy, Mark Sullivan and Lori Kroll, from GP Solo: The Legal Face of War (no date because ABA publications are apparently timeless!); and the GAO's Military and Veterans Health Care and Disability Benefits topic collection.

See also Hofstra Anti-War Protesters Plead Not Guilty, Ann Givens, Newsday (November 11, 2008).

Within these virtual walls see Veterans' Court Update (May 8, 2008), and Old Problems, New Venue: Buffalo's Veterans' Court (April 29, 2008).

Oklahoma is for Mediators

Posted in Family on Sunday October 26 2008 @ 6:01pm

Oklahoma has long had a wonderful state court ADR office headed by Sue Tate. Sue considers herself misnamed, saying she is, rather, "someone who tries to get people not to!"

Later this week the state will bring mediators, judges, and other interested parties together for Conflict Resolution Day. Presentations include:

Mediating the Family Case

Mediation Bloopers and Blunders

Mediation as Seen from the Bench

Review of changes since the 1998 adoption of the Oklahoma District Court Mediation Act

Victim-Offender Mediation

Mediation in Cases of Domestic Violence

The event happens Thursday, October 30, 8:30 a.m. - 4:30 p.m., at Family and Children's Services Central Office, 650 South Peoria Ave., Tulsa. Cost is $75. Contact Alison Ball at 405-443-5656 or Cheryl Conklin of the Oklahoma Academy of Mediators and Arbitrators, 918-596-8741 to register or to obtain more information. See Mediation Focus of Conflict Resolution Day, Bixby Bulletin (October 21, 2008). Yes, Oklahoma, this has been approved for some continuing education credits.

The Ombuds Blog notes various Conflict Resolution Day Teleconferences. BTW, the Ombuds Blog is written by Tom Kosakowski, not elves, as previously noted in these virtual pages. Apologies to Mr. Kosakowski (and elves) for our confusion!

Sweet Haven

Posted in Family on Saturday September 27 2008 @ 7:19pm

Remember safe haven laws? Still around in most jurisdictions, these laws were all the rage about a decade ago. Their drafters promised great things: a decrease in child abuse, increase in child safety, and a decrease in abandoned and/or murdered babies, and (perhaps, though these goals often went unspoken) an increased number of adoptable children/decrease in abortions.

The idea was as old as Moses. In fact, the idea came from Moses! Safe haven laws allow a parent (or, in Moses's case, older sister) to deposit an infant at a safe haven, usually a hospital, no questions asked and no charges filed.

The concept gained momentum after a few high-profile stories about high schoolers who somehow faked non-pregnancy for 9 months, gave birth on prom night, and stuffed the unwanted child into the nearest dumpster. If only they had a safe place, the thinking went, these crimes would go away. Decriminalize abandonment, save a child.

Did the laws work as intended? There is no national data on the number of abandoned children. It could be that the horror stories made headlines because they were so rare. Thus, no decrease would be discernible. It's hard to say whether a parent who leaves a baby in a safe haven would consider a dumpster as an alternative -- surely, most do not. Rather, the alternative might be to keep the baby, give it up for adoption, or have relatives care for it. So, it's hard to compare what surrendering parents would have done if not for the safe haven.

The Dickensian tale of a Nebraska widower, the father of ten children, who left nine of his brood on various hospital doorsteps, has safe havenists talking. Is this what the laws were supposed to do? Proponents had envisioned cute babies in baskets, not scraggly teenagers. The National Safe Haven Alliance says it "is dedicated to support states' efforts to prevent infanticide and unsafe newborn abandonment through safe-haven relinquishments." Most laws do specify infants of a very young (say, 5 days) age.

These laws were drafted in better times, during the economic boom of the 90s. The first such law was enacted in Texas in 1999; most states followed soon after. Today, families struggle more as the financial picture tanks, one parent is sent overseas, elderly relatives require more help, abortions are down, unemployment is up, and health care is slashed by companies in dire straits.

At the time they were first enacted, safe haven laws were little-known and, hence, little-used. One of the great challenges was to publicize the existence of the laws. Looks like the secret is out. Now the question is: who is a child? Do safe haven laws have to be about babies, or are tweens and teens welcome, too?

Back to the drawing board...either to more strictly define "child," or (one hopes) to broaden the concept and provide yet more alternatives.

See Neb. Lawmakers Consider Revising Safe-Haven Law, Timberly Ross, AP (September 25, 2008), and Infant Safe Haven Laws, Child Welfare Information Gateway (July 2007).

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