Wednesday, December 30, 2009

The Year's Most Interesting Custody Cases Wind Up!

Sean Goldman has been returned to the United States, after many months, and many tens of thousands of dollars, of litigation by his father to get him back from Brazil. His Brazilian "step-father"* was able to delay the return to the United States seemingly required by the Hague Convention, and a last-minute review by the Brazilian Supreme Court threatened to delay the final order being carried out until well into 2010. Others, including some on my blogroll** have discussed both the unwillingness of the Brazilian authorities to meet their obligations under the Convention, and the media sideshow which followed the final order, at length.

The willingness or unwillingness of countries to "sign on" to the Hague Convention and, once on, to comply with its terms, does not seem to correlate in a clear way with the degree of "modernity" of the country and government in question; the Japanese legislature is still vigorously debating whether Japan will sign on at all, and some western European signers are notably uncooperative in returning children.

Rifqa Barry is in foster care in Ohio; the Ohio court is attempting to facilitate some kind of dialogue between her and her parents, while the clock ticks by to her 18th birthday, at which time the law says she's an adult, and can go live with whomever she pleases. Based on the facts as I know them, it seems far less likely that her father will hunt her down for an "honor killing" than that she's easily swayed and influenced by others generally, and may find others who are all too willing, for good or ill, to make decisions for her.

Parents: Cherish your children. Children: cherish your parents.

Have a happy, and maybe even more prosperous, new year.

*There now seems to be at least some question as to whether deceased Mom was divorced from Sean's father at the date she remarried, and thus the quotes.

** In particular, Family Law News Blog and

Wednesday, December 9, 2009

Just In Time for The Holidays: When Is That Porsche With The Big Red Bow NOT A Gift?

Ms. Buie was married to Mr. Neighbors. Ms. Buie had previously sold a piece of real estate, and had some money in the bank, so shortly before Mr. Neighbors' birthday, she allowed him to take $60,000 of that money and buy himself a Porsche. . . . . . or so he thought.

As a California court has already observed, ". . . divorce unsettles many of the parties' significant plans and assumptions, no matter how carefully crafted. . ."*

There was, you see, apparently no writing from Buie to Neighbors saying something like "Here is my gift to you!", or if there was, nobody could find it by the time Buie and Neighbors got to court.

California law requires that there be a writing for such a "transmutation" of community property to separate property, except as to a

". . . gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage." **


The trial court said "Gift!", perhaps reasoning that a Porsche was, for a middle-aged husband in Southern California, of a "personal nature", the way clothing or wearing apparel or jewelry is for a middle-aged wife. He would, after all, no more expect her to drive his Porsche than he'd expect her to let him wear her fur coat and diamond earrings.

Not so fast, said the Court of Appeal. The legislative comments to the 1984 enactment of F.C. 852 were fairly explicit that an automobile isn't "a tangible article of a personal nature". In the absence of a writing, there's no gift transmutation of the car from community to Mr. Neighbor's separate property. Even more dismaying for him, since the money used was traceable to Ms. Buie's separate property house proceeds, and she also had never made a written waiver of her right of reimbursement, she was entitled to be reimbursed for her contribution, up to the remaining equity in the car. The car was in essence, all hers, not all his.

If you find a car in your driveway this month, with a card from your spouse on it, save, treasure and keep that card!


* Marriage of Destein (2001)
**
California Family Code Sec. 852

Wednesday, October 28, 2009

McCourts: Minding (And Dividing) The Family Store

Jamie McCourt has now filed her action for dissolution, along with a request for somewhere between $300,000 and $500,000 per month in spousal support (depending on whether she immediately gets back all her perks of being a Dodgers co-owner) and about two and a half million dollars in attorney fees and litigation costs.

What's interesting about this case, beyond the usual tabloid stuff, is that it involves almost all of the issues any married couple in business together faces when the marriage goes bad.

The questions aren't that different from those which have to be answered if the McCourts together had purchased and operated, let's say, a sandwich franchise, except that there's a much longer string of zeros after all the numbers, which makes it worthwhile to take a long hard look at the issues, rather than just sort of "washing them out". If either of them wants to air the dirt, as it appears that both may be in the process of doing, their employees, and their business competitors, are of course watching from the sidelines.

To the extent that either airs dirt, and the business suffers, there then will arise the equally interesting question of who it is (to mix metaphors) who killed the golden-egg-laying goose. Since California spouses have an ongoing fiduciary duty to their spouses, and to the community, NOT to kill the golden goose, if each takes a drumstick and pulls hard, it'll take a lot of sorting out to find the cause of goosey's death.

Thursday, September 24, 2009

Tuesday, August 25, 2009

We're saying the same thing; we're just saying it differently

My learned colleague Mark Chinn** from Jackson, MS, posted a deliberately provocative title to his blog this week: said Mark: "If you get a prenuptial agreement in the days before the marriage, don’t sign it!"

My thought was: "If your fiance hands you a prenuptial agreement at the church door, stop the music, and postpone the wedding! You've just learned something very valuable about your fiance, before you've married him!"


Mark's point, as we kicked it around on Facebook afterwards, was: "If you are going to sign a life time contract, you better have counsel and some time to think about it."

Mine was: "That INCLUDES that big contract you sign on when you say "I do!"




** Mark's a great guy, and a wonderful lawyer, but he's about as different from me as someone who would fit my superficial police description (6'2"+; 200 lb. + white male, brown hair, glasses, over 40, lawyer, married, parent) could be: he's perpetually cheerful when I'm saturnine; he's relaxed and Southern and small-towny where I'm a perpetual pent-up Northern cosmopole, etc.

Teenagers, the State and Religion: do hard cases make bad law?

Rifqa Bary, who's seventeen, ran away from her parents in Columbus, Ohio, and turned up in Orlando, Florida, under the "care"of a pastor whom she met over the internet. The pastor held a press conference in which Rifqa announced, under the pastor's eye (or more exactly, under his arm) that she had run away because she had converted to Christianity, and that she was afraid that her Muslim parents would either kill her, or "send her back" to Sri Lanka, from where the family had come in the last decade, and that she would be killed there by Dad's family as an "honor killing".

Working only from the newspaper accounts, a number of things immediately struck me as troubling: first, how do you "send" a seventeen-year-old on a series of overseas flights against her will, if you are evidently unable to keep her from walking out of the house, hitchhiking to a bus station, and taking a Greyhound bus to Florida? Rifqa doesn't seem to have been kept in purdah; she apparently attended public school, where she participated in cheer-leading and tumbling, and had a Myspace page. Although she'd apparently converted a while ago, she hadn't reported her fears to anyone she dealt with in Ohio.

Even if she really was legitimately afraid of Dad, why the run across several states? Last time I looked, the city of Columbus, Ohio (where I went to school, and where my son goes to school now) was not an Islamic republic under Sharia law; it's the state Capitol. Thenotable religious fanatics in Columbus are the ones who worship at the altar of Brutus Buckeye..

What dog does Florida have in this fight, and does Florida have enough extra resources in their "social safety net" that they, rather than Ohio, should be dealing with this? (Florida has placed her in foster care in Florida pending more investigation.)

The bigger question, however, is, absent a real plausible showing of danger, what's the state's job in intervening between teenagers and their parents when a minor child, even a 17 year old, says "I've decided X" and one or both parents say "You're a minor, and I'm still supporting you. I say 'Not X, Y!', and as long as you're a minor, you're under my legal control."

Except in unusual cases, the state doesn't intervene in these disputes in intact families. Where the PARENTS disagree, and are going through a divorce, or a custody dispute, the State is much more willing to say that one parent's (or both parents') choices are not in the child's best interest, and is more willing to intervene.

Back in the 1970's, a group of Wisconsin Amish parents objected to the mandatory school attendance laws in effect at the time, and asserted that it interfered with their, and their children's, rights of free exercise of religion. The Supreme Court, in Yoder, agreed. Justice Douglas, always a trouble-maker, raised a thorny question: what's the State to do when a seventeen-year-old, who's clearly a "minor child' for some purposes, but a "person" under the Bill of Rights, says "Here I stand; I cannot do otherwise!" to one or both parents?

Can I say to my child "You'll go to the church [mosque, temple, Kingdom Hall] I say you go to, or you don't get [a driver's license/an I-phone/to go out Friday night/me to pay for college]"? Short of a threat of physical harm, when is it, and when isn't it, the State's business?


Friday, June 26, 2009

Divorce, Tabloid News, and the First Amendment

The Connecticut Supreme Court has held that once someone with a "celebrity divorce" signs an agreement that gives away the right to blab about the divorce to the media, in exchange for money from her ex, that agreement will be enforced, and isn't an improper violation of the would-be-blabber's First Amendment rights.

Wednesday, June 17, 2009

A Cup of Coffee on the Way, Part 3: Pre-Marital Agreements: Romance-Killer or Marriage Insurance?

Back in February, I started down a path of discussing what we, as a society and as a state, intended when we set up our "family law" and rules, and how, and whether, that should change. I've been contemplating those issues since then and talking to lots of people, about 'em.

One of the issues which has nagged at me is the relative ease with which we as a society let (some) folks undertake the "off-the-shelf" marriage contract, but for various reasons, make them jump through complicated hoops if they want to fine-tune and customize that contract (which is what a pre-marital agreement really does) , and refuse to let some other couples (that'd be the same-sex couples) enter into that contract at all.

Pre-marital agreements have finally made their way into popular song*, but they're still regarded by much of the public as something that only the celebrity rich need or want, and as a "romance killer" no matter who's considering them.

My view** is that they're exactly the opposite; they're a form or marriage insurance. I believe that the discussions which fiances have with each other in regard to the terms of a pre-marital agreement are the conversations which they should be having already if they're getting married. I'll offer the anecdotal observation, based on 30 years of family law practice, that the biggest cause of divorce isn't specifically sex, or money, or power, or boredom, it's that moment when one spouse says "This isn't the deal I thought I'd made when I signed up."



. . . and in other news, in at least one state, you can still get a jury verdict for "alienation of affection" (someone stealing your spouse) by someone who's engaged in "criminal conversation" (adultery).


*"If you aint no punk, holla 'We Want Prenup! WE WANT PRENUP!" Kanye West: "Gold-Digger"
** about which I rant and rave all the darn time

Tuesday, June 2, 2009

For Those Who Thought I was just Goofing Off In New Orleans

AFCC Annual Meeting, New Orleans Saturday, May 30, 2009, 9:15 am (now available for download)

"You Signed WHAT?"


Mental health professionals have an ethical obligation to provide an “informed consent” process to the families they serve and attorneys are obligated to advise parents and protect their rights. This includes reviewing consent forms presented bymental health professionals. This interactive workshop will identify problematic provisions in consent forms encountered in practice and present essential elements of any informed consent process. Risk management strategies for both attorneys and mental health professionals will be discussed.

  • Lyn R. Greenberg, Ph.D., Los Angeles, CA
  • Richard Gould-Saltman, J.D., Gould-Saltman Law Offices, Los Angeles, CA
  • Michael C. Gottlieb, Ph.D., ABPP, Dallas, TX

Thursday, May 21, 2009

Now They're Chopping Down The Totem Pole We're the Low Guy On...

In the wake of the vote-down of the Governor's various last-ditch "budget-rescue" bills, the Los Angeles Superior Court has announced that they will be closing all courtrooms one Wednesday per month, commencing in July, and continuing for the next fiscal year.

This is, in a word, not likely to improve the functioning of the family court system, and not likely to make it more responsive to the needs of the public.

As I've noted in these pages earlier, the system is already working short-handed and short-budgeted.

This change will mean that family law court calendars will be, on average, five percent longer, or one or two extra cases, per day, per judge. That may not seem like much, until you consider that family law judges are often already hearing fifteen to twenty cases per day. Assuming a judge is on the bench hearing testimony, or calling calendar, six hours per day (the rest of the time is to READ the reams of stuff) that's a total of 24 minutes per hearing per case. . . . whether or not anyone involved in the matter speaks English, or has brought along a real interpreter. . . . . .and whether or not anyone can coherently explain why they're in court, or what they want the court to do about it...

It means that the time before someone can get into court to address what they, at least, regard as important issues (where their kids stay, with whom; who pays to feed the kids; who stays in the house, when there's been domestic violence etc.) will be on average, five percent longer (custody hearings are already being set two months plus from the date of filing, with support hearings often following along with that delay)
.

It means, unfortunately, that the job of being a family law judicial officer, already generally recognized as a high-burnout judicial assignment, will be regarded as even less of a "plum", and even more of a "lemon".

Friday, May 1, 2009

A new month, some big pieces pending, and some miscellaneous

Pardon the twenty-day hiatus; had to get through tax season, and some business issues. I also started but didn't finish a couple of long pieces, which will yet see the light of day here, having to do with what needs to be done, by government, lawyers, and YOU, readers, the public, to salvage a usable family law system from the rapidly unraveling social safety net.

On that "note", a pair of uncommonly frank footnotes in a recent California appellate opinion note the long-standing problem of judicial assignments in family law matters, (see notes 8 and 11) echoing the "low-man-on-the-totem pole" complaint of Justice Robert Gardner in Marriage of Brantner, some thirty-two years ago:

"Actually, in its use of courtroom time the present judicial process seems to have its priorities confused. Domestic relations litigation, one of the most important and sensitive tasks a judge faces, too often is given the low-man-on-the-totem-pole treatment, quite often being fobbed off on a commissioner. One of the paradoxes of our present legal system is that it is accepted practice to tie up a court for days while a gaggle of professional medical witnesses expound to a jury on just how devastating or just how trivial a personal injury may be, all to the personal enrichment of the trial lawyers involved, yet at the same time we begrudge the judicial resources necessary for careful and reasoned judgments in this most delicate field—the breakup of a marriage with its resulting trauma and troublesome fiscal aftermath. The courts should not begrudge the time necessary to carefully go over the wreckage of a marriage in order to effect substantial justice to all parties involved. "

Meanwhile:

The Connecticut legislature passes, and a Republican governor signs, a same sex-marriage bill, and Maine appears on the verge of approving one; there's even rumblings in Rhode Island.

and

An eight-year-old girl in Saudi Arabia is allowed, finally, to end her arranged marriage-in-absentia (arranged by her father) to a 50 year old man.

Friday, April 10, 2009

Chief Justice, Georgia Supreme Court, Says We Need to Combat Divorce The Way We Discourage Smoking

Georgia Chief Justice Leah Ward Sears (a divorcee) said "As a mechanism for signaling to young people the right time and the right person with whom to have a baby, marriage has no peer. . .
. . . Marriage is also the best child welfare, crime prevention and anti-poverty program we have. We must, therefore, protect it."

The good Justice did not elaborate on how she proposes to do this, though I'm guessing she would not go along with my proposal to make getting married significantly harder...

Canadian Appeal Regarding Dad's Grounding 12-Year-Old Daughter

Actually, the end result of high-conflict parenting.

Volokh Conspiracy has a
link to the original opinion in French, a rough translation into English, and comments including my own two cents worth.

Tuesday, April 7, 2009

Same-Sex Marriage: The Dominoes Falling?

In the wake of the Iowa's Supreme Court's ruling, noted below, two somewhat less surprising developments:

In Vermont, the state legislature overrode a veto by the governor of that state's same-sex-marriage legislation;

and

in Washington D.C. , the Council, the city's governing body, has voted to recognize same-sex marriages contracted in other states and countries.

Friday, April 3, 2009

Iowa Supreme Court Finds Limitation of Marriage to Opposite-Sex Couples Unconstitutional

. . . or at least, under the Iowa Constitution. Those who thought that this idea was confined to the "loony Left Coast": here's the opinion, care of, and thanks to, Howard Bashman's "How Appealing".

Also, perhaps less surprisingly, Sweden has now legalized same-sex marriag
e.

Wednesday, April 1, 2009

After the Love Is Gone, After The Pink Slip Arrives...

All over the country, as the employment picture becomes gloomier, folks all over who were previously ordered, or agreed to pay moderate amounts of child and spousal support, based on their previous moderate earnings, are going back to court to modify those orders, because they no longer have the moderate earnings to pay from. As with the down-turn in economy generally, the phenomenon, noted first on the East coast, has rolled slowly westward, like a big ugly snowball. Recession, like divorce, "unsettles many of the parties' significant plans and assumptions, no matter how carefully crafted during"* better times.

Marriage of Destein (2001) 91 CA4th 1385, 1394

Tuesday, March 24, 2009

Child's Immigration Status Does Not = "Wrongful Retention" in the U.S.; 9th Circuit Speaks

The 9th Circuit U.S. Court of Appeals has reversed a Federal trial court and denied an petition under the Hague Convention on the Civil Aspects of International Child Abduction for return of the child to Mexico, pending an actual custody determination. Said the progressive (or, depending on who you talk to, "notoriously liberal") Court, in an opinion by Justice Reinhardt:

[W]e must decide here whether a child of Mexican origin, whose mother wrongfully retained her in the United States, should . . . . . . be returned to Mexico while the proceedings are conducted there. To decide this issue, we must consider . . . . . . whether a court may find that a child is not “settled” for the purposes of Article 12 of the Hague Convention for the reason that she does not have lawful immigration status.

To both of which questions, the answer is apparently, "No".

Monday, March 23, 2009

Egyptian Fatwa: Your Neighbors Can Make You Get Divorced

It seems that under a recent determination of Muslim law as it applies in Egypt, if a couple doesn't get along, but doesn't proceed to get a divorce, the neighbors can do it for them.

"Sheik Gamal Qutb, former head of Egypt's top religious institution, the Fatwa Committee at al-Azhar, said Sunday during a meeting at the Egyptian Press Syndicate that his fatwa states that neighbors and family members can file for a couple's divorce if the pair's differences appear irreconcilable, al-Arabiya reported Friday. Qutb said community members should first attempt to help solve a couple's marriage problems, but should then present evidence of the marriage's failings to a court if the husband and wife cannot live together in peace."

If we could get a similar law passed here, I'm seeing a phone-in-your-votes reality TVshow that'll potentially leave "American Idol" in the dust.

Thanks to Warren Shiell's "Los Angeles Divorce And Family Law" blog for the pointer.

Friday, March 20, 2009

Possibly History's Coolest Divorce Settlement Offer

Per the books-on-disc version of Walter Issacson's biography of Albert Einstein, when Einstein became estranged from his wife, he proposed to her that in exchange for her consenting to a divorce, when he won the Nobel Prize, he would give her the prize money. He eventually did both.

Wednesday, March 18, 2009

How Bad Is "Egregious" (As Opposed To Just Plain "Really Bad")?

New York, among other idiosyncracies in their family law, continues to have "fault divorce"; if you fail to prove fault, the court can refuse to grant a divorce.

I've been practicing my entire career in a "no-fault" state, and the idea that the state has some interest in telling someone who wants to get divorced, "No, even though you've filed a divorce, you must stay married..." strikes me as odd.


Odder still, however, is the following:

If your spouse engages in "
egregious" conduct, a New York court can change the division of property to punish the "at fault" spouse. You might think that think that a court would have no hesitation in finding wife's affair, resulting pregnancy, telling husband that child was his (for four years) and a subsequent affair, taken together would rise to the level of "egregious" conduct and that wife had "deliberately embarked on a course designed to inflict extreme emotional or physical abuse upon" husband.

Apparently, you'd be wrong.

California has an explicit statute confirming that spouses have fiduciary duties to each other. This has, to date, been interpreted to mean that if one spouse secretly does funny business with the finances, the innocent spouse doesn't bear the risk of the funny business.

I had a similar "Surprise, you're not daddy!" case, briefly, years ago, and always wondered: would California have recognized my guy's claim for the breach of fiduciary duty?

Monday, March 16, 2009

Divorce Across The Border, or Madness Across The Water

As the world economy (or the world's economies) slumps*, different aspects of law come into sharp focus, while others, momentarily, lose relevance making them worthy of attention. I'm now far more interested than I've been in a couple of decades, in the possible remedies my clients' refinance mortgage-holders may have when the mortgage doesn't get paid**. The formulas by which the parties get to divide up the appreciation on a parcel of real estate, on the other hand, seem at least for the moment like debating the number of angels who can dance on the head of a pin.

As money and employment shift around, so do the people holding them; again, where people have gone, from economic necessity, is affecting whose law governs what happens when someone feels the marriage is over and files something. At all levels, from the user of "free-divorce-advice-on-the-internet" , to the "multinational couple," I'm answering more "I'm here, she's there; can I file here, and what happens if she files first, there?" questions than I've seen in a long time.

These are thorny questions at best, and often the best answer is no more than "It depends, and my best educated guess is..."

* "dives"? "tanks"? "enters a flaming death-spiral"?
**
because only one party's living in, and paying for, the house where "wedded bliss used to dwell".

Friday, March 13, 2009

Naming Your Children: Just Because You Have The Right to Do Something , Doesn't Always Make It a Good Idea...

It appears that at least for the moment, the New Jersey court will not be restoring full custody of little Adolf Hitler Campbell, and his siblings, Joyce Lynn Aryan Nation Campbell and Honszlynn Hinler Jeannie Campbell (there's some reason to think that ol' Honszlynn's middle name was supposed to be "Himmler") to their parents.

These would be the parents who put their children into the public eye by getting into, and then publicizing, a dispute with a local grocery store arising from the store bakery's refusal of their patronage for the making of a swastika-bedecked cake, reading "Happy Birthday, Adolph Hitler!" for little A.H.'s third birthday.

Thursday, March 5, 2009

Do Fries Go With That Divorce?

A New York City firm is advertising that, if you drag your spouse into their offices, they'll prepare all the documents for an uncontested (no kids/no property disputes/no support claims) divorce, for a bargain price, and give you a certificate so you can go have lunch at McDonald's while you wait the hour for the papers to be prepared.

I await the "Divorce three, the next one's free!" card. Maybe they could throw in a certificate for a discount marriage license?

Child Support in California: Never "Locked In"

A California appeals court has now come a step closer to saying that parents simply can't ever make a binding agreement to "lock in" an amount of child support, regardless of changes in parents' fortunes. As long as everyone agrees that an amount of support is correct, there's no problem, but as soon as someone has a change of heart an agreement that child support can never be modified downward is of no more effect than an agreement to cap its modification upward.

This wasn't as comforting to the paying Dad requesting the modification as it might have been, since the same court also affirmed the trial court's considering a continuous stream of cash "gift" or "loan" payments from his mother, (some of which Dad then paid back to his mother as rent) in setting the new amount of support Dad was to pay.

This decision bookends neatly with a series of California decisions which seem to suggest that once there's been a court order for the payment of child support, that money remains due and payable, and the parties likewise can't make a binding agreement waiving any payment, or accepting a reduced amount, for any payment due.

Marriage of Alter 2/26/09

Wednesday, February 25, 2009

The Parenting Debate, times eight (or fourteen)

OK, although I've got an opinion about the woman with the IVF octuplets, plus six other kids (as does everyone else, apparently) I'm keeping it to myself. I'm not only not going to call any government agencies to "report Mom to the authorities", I won't debate about what "Octo-Mom" * should or shouldn't have done. I will talk, or at least raise annoying questions, about why this set of events is prompting public debate, how that debate's being conducted, and what else should be being debated.

How is the public busy-bodying and involvement of celebrity lawyers and therapists, and the work of Mom's (now former) public relations firm/agent in brokering offers for exclusive interview rights, morally different from the offer to pay Mom money to star in a porn movie? Would Mom's being in the porn movie in some ways be less morally objectionable than, say, putting the kids in a "reality show", or a series of commercials, once they're out of the NICU? Is it, after all, one thing to sell yourself, and something different to essentially sell (or lease) your kids?

If I culled through all the cases on calendar at our support enforcement court departments, in any given week, I could probably turn up at least one guy who has fathered fourteen children, all still minors, although probably it would turn out to have been with four (or five or six) different women. I've watched support enforcement attorneys, and the judge, wrestle with the complex math of recursively recalculating support for some guys like that. Why isn't my not-so-hypothetical Mr. Fertile Deadbeat Defendant on TV?

For that matter, where's and who's Octo-daddy? The information I've seen to date is that Octo-daddy was not an anonymous donor, and Octo-Mom was not married to anyone else at the time. Octo-daddy may be on the hook for one heck of a large medical bill, and a really interesting amount of child support going forward maybe he should be looking for that TV deal?

We're at a point in our country's economic downturn where the availability of basic child health care is a serious concern for a growing number of parents. Should there be some restriction on access to "assisted reproductive techology" and fertility treatments, to those who meet some sort of means test, so that we're not spending health-care dollars to assure the need to spend more health-care dollars? If we do that, and the "means" go away after the fact (let's say someone was a banker, broker or a motor company exec) what happens to the kids? Should there be across-the-board limitation of the expenditure of financial medical resources to enable someone to have her or his seventh or eighth child, or as long as someone piles up the dollars on the counter, should we facilitate someone's, anyone's having as many children as they want?

RFG-S

* Wasn't that a Spiderman bad guy?

Friday, February 20, 2009

A Cup of Coffee On The Way, Pt. II: Why Is Getting Married Easier Than Joining a Health Club?

When I was younger, and even more cynical, I once joked that the best way to reduce the divorce rate was to make it a lot more difficult to get married.

It's not as funny as I used to think it was.

When you buy a house, or even a car, you get a stack of many pages full of tiny type, which you are expected to read. Some really important paragraphs are in BOLD TYPE, with lines for you to sign or initial, confirming that the BOLD TYPE got your attention, and that you at least read those parts, and that you say that you understand them. Then, if you change your mind within a day or so, within some limits, you can back out. Heck, in California, if you just want to join a gym, you have to go through a similar ritual*.

If you want to get married, on the other hand, you pays your money, and you gets your license. There's a contract there, all right,** it's just that nobody really demands that you read it, let alone that you have any idea what it says before you sign on for it.

I've spent 29 years wrestling with what the terms of that contract really are, and I've got sort of a handle on it, says the State Bar***
. I used to keep the terms of that contract in a shelf-full of books, which had to be updated annually; now I keep it on my computer, where it occupies a swath of virtual space. Most of those young folks lining up at ring stores in the Jewelry District haven't a clue what's in there.

Next topic up: If you want the "off-the-rack" marriage contract, we've made it fast, cheap, and easy; if you want to think about, and change, what you're signing on for, even if you and your spouse-to-be agree, it's expensive, complicated and takes at least a week.

Why would we discourage people from looking before leaping?



* California law regarding this implies that it came to the attention of our Legislature that miscreants were going out and signing up, say, 90-year-old ladies to expensive "lifetime" installment contracts for gym or "dance studio" memberships, and swindling the heck out of them; thus there are now fairly comprehensive rules for what you have to read, before you can get those mambo lessons.
**Says so, right there in California Family Code 300: " Marriage is a personal relation arising out of a civil contract between a man and a woman. . .". Don't send me a comment about the validity of those last five words; I'll be coming around to THAT debate presently.
*** "Family Law Certified Specialist, State Bar of California Board of Legal Specialization"

Monday, February 16, 2009

Sorry, Folks, You'll Just Have To Stay Married... Pt. I.

As the State Legislature finishes up a three-day weekend of not-entirely-successful budget negotiation, I'll be interested to see if just possibly, those who are taking a "no new taxes, ever!" stand really want to bring some of the operations of civil government to a grinding halt, or at least are willing to try and play an increasingly ugly game of "chicken".

The civil justice system in California is teetering, and they may give it a push (Anyone notice that last year, one California county stopped civil trials completely for months, because of the criminal case backlog, until they got a task-force of judges from elsewhere to come in and clean up?) If we essentially close down the system of civil justice for most folks, (and family law is the part that the most folks use) we've pretty much abandoned one of the two roles of state government which have previously distinguished this country and state from others far less fortunate. (The other big hole in the fabric of civil government has been, and will probably continues to be, the final evisceration of what was, once long ago the best system of public education in the country.)

California law still requires any pair of parents with a child custody dispute to go and talk to a court-employed mediator to try and resolve the issue, before presenting the issue to a judge to decide.

In the heyday of this system, pairs of parents could expect to set their hearing, walk into the mediation office, and be seen that morning.
My best recollection of the statistics is that Los Angeles County's mediation staff had about a 70/80% success rate in getting these folks to resolve at least some of their issues. If a pair of parents had a case pending, they could even get a mediation appointment without setting a hearing, and sometimes avoid the expense of setting it.

Unfortunately, the budget for this hasn't come close to keeping up with the population increase. Couples can no longer get a mediation appointment unless they've actually set a hearing, and are required to set a mediation appointment whenever setting a hearing on custody issues, so that mediation can happen before the hearing. The backlog of mediations is now so deep that, depending where in the County someone is looking, the earliest available appointment may be six to ten weeks out.

That means that if a family's falling apart, and they need to get issues resolved, they're looking at two months' wait. Unless they've got enough resources and knowledge so that they can set another hearing on financial issues separately from the hearing on custody issues, they'll be deferring the hearing on financial issues as well. That'd be the hearing originally intended to "preserve the status quo".

Times are tight, people are stressed, and their patience may be a little frayed. What, exactly are parents in inolerable family situations supposed to do? "Suck it up"? Take matters into their own hands? If someone needs to be told to provide financial support for their children, are those children supposed to survive for two months on IOU's? (Some people really don't get it, until they're told. By someone in a black robe with a bailiff nearby. Some don't get it even then...)

We're still running on the tail-end of last year's budget. The coming one will, I expect, only be grimmer. Stay tuned....


Wednesday, February 11, 2009

Have a cup of coffee on the way: marriage and conversation

When I was a young research clerk at L A Superior Court (1979 or so) the court where I worked, (the Supervising Judge's Department for all of Los Angeles County's family court departments) was on the second floor in the Hill Street courthouse. In those days the County Clerk's marriage license bureau was still on the first floor; there was even a duty "wedding commissioner" to perform weddings on the spot.

From time to time, someone would come in to our department to find out what had happened to the paperwork finalizing his divorce, and would grumble, pound on the clerk’s desk, and generally make himself a nuisance. Usually, after some searching around, the clerks were able to locate the errant judgment papers; sometimes they were able to find the problem that had held them up, and sometimes they even fixed that problem and sent complaining guy on his way with a newly signed judgment, the ink still drying on all the seals, stamps and stuff.

At which point, from time to time, the guy’d walk out into the hall, where there would be a woman anxiously waiting; they’d get on the escalator, ride down one flight, show the clerk that our guy was in fact now divorced and free to marry, and get themselves, as we say in the biz, hitched.

For two years, I diplomatically resisted shouting: "Hey, you know there's a snack bar at the other end of the floor? Why don't you two stop, have a nice cup of coffee, talk about what you're planning to do, and then get on the escalator?"

All of which is a long way of getting around to my project for this year: to get folks who are thinking getting married to think about what they're doing and why, and then to sit down with their fiances and talk about what they're doing and why.

You're going to hear a recurring theme in this project: that being clear about what you expect and intend when you get married, before you say "I do", increases the chances (if it doesn't guarantee) that the "death do you part" stuff really works out that way. Even if you don't believe in prenuptial agreements, or talking to lawyers, finding out what marriage really means legally, and what you and your fiance expect it to mean, is still more romantic than hiring a lawyer to divorce you.

Tuesday, February 10, 2009

Off and Running (at the mouth)

Herewith will begin all the news, thoughts, rumination and ranting about:
  1. California family law,
  2. family law, and why we have it;
  3. law in general in this man's United States, and
  4. pretty much anything else which crosses my radar

that you choose to read.

Some of the axes which will be ground, and idees about which I may be fixe * will likely include:
  • Why do people get married? Why do they think they're getting married? Why should the state (both in the poli sci sense, and specifically the Golden State) be involved?
  • Should it be harder to get married, and easier to get divorced?
  • More people in California "go to court" about their family issues than for anything else besides traffic tickets. The California family court system, once the model for the rest of the country, is slowly being reduced to complete gridlock/system crash/meltdown. How do we make the family court system work better than it does? Why has no politician in recent memory won elective office on the campaign promise: "I'll make the family law courts work better, even if we have to spend money to do it!"?
  • Why do we let folks who can't keep themselves out of jail, support themselves, or get and maintain a driver's license, raise kids, even their own? If we, as a society, think this is OK, how do we keep these folks from messing up their kids? Should we?
  • Is raising a child to be a good citizen more important than raising him/her to be a good Christian/Muslim/Jew/Buddhist? Is it more important that children be happy, or successful? Is any of that the government's business?
So you know what you're getting. I haven't decided on a comments policy yet, but it'll be along soon, along with guest posters, links both useful and entertaining (to me, at least) and whatever else I cook up.


rfgs

*The version of the posting tool I'm using doesn't seem to feature multinational fonting, so I can make that look appropriately Francophone.