While it is obvious, the Goldman saga confirms the need for family court to resolve matters as quickly as possible. That case was obviously impacted by the international complications–but what about the cases our courts do have control over. There is no excuse for custody cases to span years. The turmoil to the family is awful while the case is pending and no there is no chance of any healing. 

Why are cases typically delayed? Poor lawyering–certainly. Judges who have trouble making hard decisions–absolutely. Inefficient procedures and poor case management–undoubtedly.  But these are simply not good excuses. Technology allows us to be so much more efficient. We need to brainstorm ways to harness its powers for the good of families in distress. We need to enhance our management skills to more efficiently manage the conflict. While the system cannot solve everyone’s problems, its role is to resolve them–in a fair, timely and efficient manner.

The Goldman family had little choice but to endure their nightmare. Let’s try to make sure other families don’t similarly suffer, where we can control the outcome.

Lex just read an interesting article by W. Bradford Wilcox published in National Affairs. The article, “The Evolution of Divorce,” examines how divorce has evolved since the concept of no-fault divorce emerged. http://bit.ly/16zwKB

Wilcox persuasively argues that divorce, as it has evolved since the advent of no fault laws in the 1970s, has disproportionately affected poor and working class communities.  He calls for divorce reform including rethinking notions of  fault.

Wilcox recommends allowing courts to consider the behavior of spouses in its decisions concerning alimony and property division. This would arguably act as a deterrent against such behavior.

Other than possibly prolonging litigation while people attempt to argue their respective culpability, consideration of fault makes sense.

First, no-fault divorce is counterintuitive to litigants.  It denies the intense feelings of loss and betrayal that people frequently feel when their spouses violate their vows.  Shouldn’t they be allowed a controlled forum to express this sense of loss?  Why shouldn’t a court be able to consider an extramarital affair, especially in a short marriage, when it is determining issues of alimony or division of property?  Is it implicitly improper to reward or punish someone for their behavior in divorce court? Lex doesn’t think so.

I started my career long after the fault debate was resolved in favor of no fault. But as the world turns and the awful results of “casual divorce” play out, it might be time to rethink this issue. Any thoughts?

One of the problems family courts regularly  confront is lawyers and litigants who improperly use domestic violence proceedings as expedited ways to either procure custody or block visitation. Instead of filing appropriate pleadings (where full discovery and preparation are allowed), certain people choose the more expedient option to seek immediate relief under the pretense of a claim of abuse.

Here is the problem. First, the system gets overloaded with claims and that detracts it from being able to effectively address  legitimate claims of abuse.  Next, courts understandably are reluctant to ignore serious claims, even if  they simply are based upon unsupported testimony.  Manipulative people exploit this fact to achieve their goals. It then takes many months, if not years to unwind the matter and the truth may never be ascertained. During the process, people run out of money or the will to soldier on, and the perpetrator of the false claim is rewarded with their desired result.

And regrettably there is no solution. The system cannot impede people’s access to a domestic violence proceeding because some improperly use the proceeding for their nefarious ends. However, courts should monitor lawyers who regularly bring domestic violence proceedings as companions to new case filings.  Perhaps those lawyers should be scrutinized a bit more closely than others who file claims that more in line with societal averages.  Shame on them!

Even well intended lawyers get caught up in client’s oftentimes hysterical claims. We must probe and determine whether the claims are real, imagined, exaggerated or pure fiction. We must, like courts, err on the side of safety but we must also try to discern the circumstances before reflexively responding with a quick trip to the courthouse.

Lex finds it absolutely despicable when people exploit the system’s well intended efforts to protect victims of domestic violence.  The abuse of abuse proceedings are real and regrettably irresolvable.

” But the job of a lawyer rendering advice is not to seek to satisfy the client’s wishes, but it is to inform the client, as objectively as possible, what the law requires or permits and make every effort to ensure compliance. I think that is a lawyer’s duty whoever the client is, a public official or a private enterprise, and however anxious the lawyer is to please the client, the advice should be informed, honest, and as objective as possible. It should not depend on the client’s desires or even on a view as to the desirability of the end sought.”

Nicholas deB. Katzenbach, Esq. (Former Attorney General of the United States). Remarks at the Opening Session of the 2009 American Law Institute, upon Receiving the Judge Friendly Medal.

Lex just met a former public defender who recently became a family lawyer. She formerly handled death penalty cases. Life or death stuff. And what she told me was interesting. The practice of family law was similar to criminal law; but the major difference was that the family lawyers are much more contentious and tend to personalize things (present company excluded, of course).

Why is that? Is there something inherent in the practice that makes many lawyers personalize their client’s angst? Or is the type of person who is attracted to this practice prone to this, oftentimes, anti-social behavior?

Maybe the marketplace promotes this behavior. If we get reputations as bellicose warriors, willing to take extreme positions for the sake of “justice”, we will be rewarded with a full book of business (but who really wants that business).

For whatever reason, divorce lawyers do tend to personally download the conflict way too often. It is unhealthy for the client,  the family, the legal system, and for the lawyer. While sometimes it is hard not to get angry with despicable behavior, periodic reality checks are necessary to maintain objectivity. If everyone is a villain–nobody is.  

Do your job and then go home and hug your spouse and  kids. A better way to practice.

Lincoln

“True, we build no bridges. We raise no towers. We construct no engines. We paint no pictures—unless as amateurs for our own amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men’s burdens and by our efforts we make possible the peaceful life of men in a peaceful state.”     

 John W. Davis, Address at 75th Anniversary Proceedings of the Association of the Bar of the City of New York (March 16, 1946).

Compassion contemplates concern for another’s suffering, accompanied by a subsequent need to alleviate the suffering. Compassionate family law advocacy requires both a concern with a client’s pain, coupled with appropriate action to address and help reduce that pain.  To be an effective and compassionate advocate, it is not enough to simply feel the client’s pain– no matter how well intended.  Legal  judgment, skill and firm action are all necessary to be a compassionate advocate.

Some  believe that  in order to be  a compassionate lawyer, caring about  clients is enough. They conclude the mission is accomplished simply by being a good listener and sincerely sympathizing with their plight.  True compassion, however, requires both the heart and the head.  True compassion is not passive.

On the other hand, there is another contingent of lawyer who thinks compassion is unnecessary; that acting on the particular dilemma is the only duty. They believe  that  being superb legal technicians excuse their humanity. And there are those lawyers that  actually exploit their clients emotions as a source of profit, excusing  their profiteering with the excuse,  “that’s what they want me to do.”

None of these views of the practice are compassionate advocacy or effective lawyering for that matter. As Karl Llewellyn observed,

“Compassion without technique is a mess; and technique without compassion is a menace.” 

Lawyers must work to understand their clients, and only then take the appropriate action to address the problem. In family law, the grief, anger, fear, and pain must be appreciated in order to effectively advocate. But then we need to take action–in a logical and reasonable way– to help address the pain.  Neither a passive do nothing attitude, nor angry advocacy that mirrors the client’s pain, serve the client, or the legal system at large for that matter.

As family lawyers we have a sacred trust. We bear our client’s burdens. People trust us with their children’s lives and their financial futures. We must understand the human condition and remember our own humanity, neither succumbing to  cynicism nor impotence.

Compassionate Advocacy

The Idaho Supreme Court recently issued a decision  that explores the role of familycourt. While generally unremarkable, the ruling is insightful in its examination of the limits of the court’s power. In Allbright v. Allbright, http://tinyurl.com/phk9tj, filed August 21, 2009, the Court reversed a trial court that held that a custodial parent could not relocate a distance that would interfere with the non- custodial parent’s parenting time. In  its ruling, the Idaho  high court mused on the role of  family court in resolving family disputes. Specifically it held that, ” a court presiding over a child custody matter does not become a family czar with unlimited authority to order the parents to do anything the court believes is in the best interests of the child. The court’s authority comes from the Idaho code…”

Daily people bring their problems to the court, and the court responds with decisions on such matters as soccer camp vs. football camp, or whether junior should wear red pajamas versus blue ones. But family micromanagement is not what a court should do.  Family courts need to be more circumspect in the exercise of their powers, not becoming czars over  all domestic turmoil. Family courts, while unique in the subject matter they adjudicate, are nevertheless courts,  subject to definite statutory and jurisdictional limitations.  And frankly, if the courts refuse to adjudicate petty matters, maybe litigants will find a way of resolving these matters on their own, without the seductive need to “go to court…”

In 2004 Lex published an article in the Loyola University Chicago law Journal entitled, “Who’s Your Daddy? : An Analysis of Illinois’ Law of Parentage and the Meaning of Parenthood.” The premise of the article was a criticism of the Illinois statutory scheme that defined parenthood exclusively in genetic terms. In Illinois, paternity rights are absolute for a man who impregnates a woman, regardless of any competing circumstances.

At the same time, I successfully had the Illinois parentage act declared unconstitutional by a courageous Kane County trial Judge (In re John M) on the basis that the statute deprived families of due process rights by its exclusive reliance on a genetic based definition of parentage, regardless of the circumstances. In other words, if a child is born to an intact marriage, and the husband is not the bio-dad, should he automatically be denied the label of father in favor of the adulterous interloper? I argued, unsuccessfully before the Illinois Supreme Court, that a statutory scheme that did not consider the best interest of the child in determining parentage, denied that child their constitutional rights as well.

Recent events in the infamous California kidnapping remind me that the state needs to regulate parentage, considering the best interest of children. Why is it abhorrent to public policy to allow a trial judge to adjudicate parentage based upon the best interest of the child rather than relying exclusively on genetics? Should a sperm donor automatically be entitled to the rights of a father because of that genetic connection? Our society is rapidly moving away from a genetic based definition of parentage. Advances in assisted reproductive technology and non-traditional families have confused the simplistic notion of parentage exclusively based upon gametes.

As I argued five years ago in “Who’s Your Daddy”:  ”A parent-child relationship involves so much more than shared genes. The bond of the parent and child is built on love, patience, nurturing and the time spent helping a child develop and thrive. A policy that ignores this reality in favor of a sterile scientific certainty weakens this sacred and permanent bond, and devalues our society, which is based upon these relationships.”

In light of our legislature’s review of its family laws, it should relook at this issue and redefine parentage in child-centric terms. Parentage is too important to ignore the reality that sperm donation should not confer automatic rights of parentage, when it would be detrimental to a child.

Just as technology has changed society , it has significantly altered the divorce landscape. Divorce mail, or D-mail is a modern phenomenon in family court. More and more lawyers deal with the use and abuse of  technology. E-mail and text messaging , and other issues we didn’t confront, even 5 years ago, are becoming common.  And while before, parental access issues were limited to physical time spent, now an additional digital layer has been added. Is it appropriate for the children to text mom when they are in dad’s care?  Or vice versa?

Feuding parents  now frequently communicate via D-mail as opposed to telephone or face to face contact. Perhaps this is a good thing inasmuch as it limits acrimonious face to face contact.  But sometimes the communications are so obsessive and frequent they become near abusive.

And speaking of communication, spouses monitor each other’s e-mail communication if passwords or privacy controls are not used. To be allowed insight into a spouses private communications during a divorce is an unbelievable godsend for an angry, if not curious, soon to be ex-spouse.

 Another implication is the evidentiary trail this digital communication leaves.  How many angry e-mails have been presented as evidence, whereas a couple of years ago an angry comment made in a phone call would have simply been denied. And what goodies are left on the home computer, to be nabbed by the aggrieved spouse’s forensic expert?

Not unlike  modern life in general, technology can either be a useful enhancement to the quality of our lives, or a torturous complication. Divorce is no different.