Monday, December 20, 2010

French Civil Unions: "Marriage Lite"?

There's a reported substantial upswing, in France, of young opposite-sex couples electing to contract "civil unions" instead of marrying. The French 1999 "pacte civil de solidarité" ("civil union") statute was apparently originally enacted, (as with the "civil union" and "domestic partnership" laws of several American states), as a"sort-of-marriage" for same-sex couples, but, as the New York Times reports, as of last year, 95% of the civil unions contracted in France were between mixed-sex couples.

P.S.: My thought, two months after I originally posted this, is that I'd like to know what happened to the marriage rate for the mixed-sex couples of the same age group during this period. Is it possible that having this option available for mixed-sex couples who were reluctant to marry, as the anecdotes suggest, actually increased the number of mixed-sex couples who were willing to make some sort of formal commitment?

Tuesday, October 5, 2010

Another Child Custody and Religion Case which nobody seemed to raise the Constitutional issues. This time, it's Georgia; by agreement, Mom was to have the authority to make decisions about child's religious training and upbringing. Mom wanted to give child Jewish religious training and practice, and Dad had, it appears, originally agreed. Then, it appears, Dad changed his mind, and (as is sometimes the case in these sorts of cases) also began acting like sort of, well, a jerk.

The Court warned Dad that he risked being found in contempt, and provided the following admonition as to how to "purge" the contempt, from which one might reasonably infer additional details of Dad's behavior:

(a) Mr. Greene may not indoctrinate the child in a manner which promotes the child's alienation from Judaism.

(b) Mr. Greene shall not take the child to church (whether to church services or Sunday School or church education programs); nor engage the child in prayer or Bible study if it promotes rejection rather than acceptance, of the child's . . . Jewish self-identity.

(c) Mr. Greene shall not share his religious beliefs with the child if those beliefs cause the child emotional distress or worry about the child's mother or the child herself. Thus, for example, Mr. Greene may have pictures of Jesus Christ hanging on the walls of his residence. But, Mr. Greene may not take the child to religious services where they receive the message that adults or children who do not accept Jesus Christ as their Lord and Savior are destined to burn in hell. Further, he may not pray Christian prayers with the child, play Christian songs with the child present, read the Bible to the child or in any way attempt to indoctrinate the child into the Christian Faith.

(d) Neither party is to talk negatively or derogatory about the other party's religion in the presence of the child, and there shall be no derogatory comments that could be construed as anti-Semitic of any nature, meaning Mr. Greene shall no longer refer to Ms. Greene's parents, who are Jewish, by any numbers or anything similar to that.

Mr. Greene shall ensure that these rules are followed by persons whom he allows the child to be in the presence of or have contact with. No secondary person shall teach or read the Bible to the child, or pray any Christian prayers, or otherwise attempt to indoctrinate the child into the Christian faith.

Even assuming that Dad was doing the obnoxious stuff we can infer from the details, why didn't making any of this order trouble the judge?

Friday, September 24, 2010

Are You and Your Fiancee Working From The Same Blueprint? The Pre-Nup Conversation as Marriage Insurance

Over at Gitlin Law Blog, Illinois family law attorney Joe Gitlin muses that marriages break down when (to use a metaphor which dates both him and me) the spouses aren't "building from the same blueprint".

This is consistent with my take: the crux of the decision to divorce isn't usually specifically about money, or sex, or intimacy, it's that moment, a year, a decade, four decades into the marriage, when one spouse says "This ISN'T the deal I thought I signed on for!"

I consult with folks frequently about whether they need, or want, a pre-marital agreement. The first part of that conversation explores whether the client, and the spouse-to-be, have ever talked seriously about the sorts of things that a pre-marital agreement might address: who's going to control the money? Are both spouses going to have accounts for "their own" money, and a joint "pot" out of which they'll pay joint expenses? Is the plan that one spouse will work, and the other will be a stay-at-home parent for a number of years? If one owns a house, what's the other's expectation as to what's going to happen with that house after the marriage?

Even if folks are okay with the "off-the-shelf" marriage contract, if they understand it, and each understands in advance what the other's expectations are, the chances that they'll manage a lasting marriage are increased.

With all respect to my friends in the floral, couture, and catering industries, marriage planning's less romantic, but more important than wedding planning, and almost nothing is less romantic than divorce court...

Wednesday, September 15, 2010

Parents and Pot: Michigan

It seems that under Michigan's Medical Marijuana Act, a parent may not be denied custody or visitation of a minor for acting in accordance with the act [i.e., possessing pot with a properly issued "registry identification card"] unless his or her behavior is such that it creates an "unreasonable danger to the minor which can be clearly articulated and substantiated".

The Michigan Court of Appeal, in addressing other issues under the MMMA, opined that their Act was "inartfully" [polite for "terribly"] drafted.

Given the vast proliferation of "medical marijuana clinics" "dispensaries", and "cooperatives" in California, I'll be extremely interested to see what California, which also has a MMA, will do with the issue in the context of child custody litigation.

A post-Labor Day [felt] fedora tip to Jeanne M. Hannah for the pointer.

Sunday, August 1, 2010

Separated, But Never Divorced?

The New York Times on some of the reasons that some folks (including, apparently, Warren Buffet) continue in marital limbo, for years, and in some cases, decades. The record, in my own practice, was a client who had cohabited with his new spouse just long enough to conceive, and for her to give birth to, a child; now that their son was finally reaching adulthood, they thought it would be a good time to finally dissolve the marriage...

Sunday, July 4, 2010

Prenups On The Way Up For Boomers

...or so says the Wall Street Journal.

Possible explanations (none exclusive, and none clearly verifiable) include:

that boomers divorce more frequently, and live longer, than their parents, and thus have a higher rate of re-marriage;

or that our lives are simply overwhelmed by fear of litigation; or

that the financial crisis has simply taken some of the romance out of romance.

. . . and apparently the Australians, who've only had pre-marital agreements recognized for about the last decade, are way ahead of the U.S., with a recent report saying that ten percent of couples are using them.

Thursday, July 1, 2010

Wednesday, June 30, 2010

On-Line Marital "Tune-Ups"?

Per the New York Times, a number of efforts are afoot to provide on-line tools for "preventive maintenance and assessment" for married couples. (Providing relationships with something between scheduled maintenance/inspection visits by your car dealer, and your annual physical?)

Professors from UCLA and University of Miami are soliciting 500 married couples to participate in a study of on-line self-help couples therapy.

Researchers at Brigham Young offer an (inexpensive) on-line martial/relationship assessment which, they say, yields a graphic report depicting a couple’s communication and conflict style, and how much effort each partner puts into the relationship.

A similar assessment tool is also being studied in Australia as part of a telephonic and remote program of marital counseling, intended for those in remote areas who simply cannot practically arrange for face-to-face contact with a counselor.

Sunday, June 13, 2010

Custody and Religion Part 4: Something in the Water in Chicago?

I won't really get incensed (pun intended) until I read a clearer and more definitive description of the facts and order in the underlying case, but a recent report suggests that Chicago judges are willing to make intrusive orders not only against divorced parents, but against new step-parents, in regard to issues of religious upbringing, seemingly pretty much ignoring that stuff about "establishment of religion" it mentions in my pocket Constitution.

. . .and another hat tip (diamond-crown two-tone straw) to Howard Friedman at Religion Clause for the pointer.

Tuesday, May 18, 2010

I've Always Wanted to Be A Cover Model!

There we are, on the cover of this month's CEB catalog!

Abbott: Supreme Court Decision on International Child Abduction Issues

The SCOTUS has decided, 6-3, in Abbott v. Abbott, a lingering issue in international child custody abduction cases. Only a parent with a "right of custody" can invoke the Hague Convention to compel the return of the child. Lower Federal courts have disagreed as to whether a parent with only "visitation" rights, but with a "ne exeat" order (forbidding the removal of the child from that country) could request return of the child under the Convention. The Supremes (or at least six of them) say that he can.

Monday, May 10, 2010

Divorce, Italian Style?

The New York Times reports Italy's first "divorce trade show". I guess "Divorce, Italian Style" no longer carries quite the significance it once did.

Friday, April 23, 2010

Custody and Religion, Part 3

An Illinois trial judge has modified the earlier order noted below and decided that, although Dad in the case appears to have engaged in fairly self-centered and obnoxious behavior in regard to parenting issues, (see pages 7 and 8 of the decision) Dad's taking his daughter to church during his custodial time is within his Constitutional rights, in the absence of some showing of true detriment to his child.

A tip of the brown teardrop-crown (Meyer the Hatter, New Orleans) to Religion Clause for the pointer.

Tuesday, March 30, 2010

Why Do People Divorce, and Should We Make it Harder To Do?

A family law blogger colleague argues against Maryland’s pending reduction of the minimum waiting period for entry of a divorce judgment.

In support of his argument that this is a bad thing, he republishes a study which notes a statistical correlation between a state’s minimum time for completion of divorce proceedings and the divorce rate in the state (and also cites a similar correlation as to foreign countries).

Leaving aside a myriad of science/statistics problems with the underlying study, I’ll ask, provocatively, “So what?”

A state could reduce its divorce rate to zero, quite simply, by either making divorce a sufficiently long or expensive process, or by simply eliminating it completely, by repealing its divorce statute. That would not mean, obviously, that the families in such state would be “less dysfunctional”, or that the children in those families were better-adjusted, or anything like that.

The more significant argument is buried within the discussion: there is some reason to think that divorce has a better outcome for kids if we allow married parents to finalize their divorce more quickly if they reach a complete agreement regarding the custodial arrangements for their children (or stated more realistically, that we don’t allow couples to dissolve the marriage quite as expeditiously if they DON’T reach an agreed resolution of their issues).

There also is some evidence that suggests that some sort of dispute resolution counseling may both reduce the rate of divorces completed, and result in a substantially better outcome for the kids involved.

Which is lovely, except that the budget for any such intervention (custody mediation, dispute resolution education and counseling) has never been adequate, and at least in California, is now evaporating.

A while ago (in the last century, actually) I’d argued that the best way to lower the divorce rate was to remove some the impediments to divorce (cost, minimum waiting periods, congested court calendars, etc.) , but to add similar impediments to marriage. Originally my feeble attempt at Swiftian satire, I’ve now come around to the view that this is an idea worthy of serious consideration; if you put the counseling and waiting period in at the front end, the outcomes are likely to be far better at the back.

. . . or should we just say “. . . those that are married already. . . . . . shall keep as they are”?

Tuesday, February 23, 2010

Kentucky Nixes Arbitration in Family Law, As, Among Other Things, Classist?

The Kentucky Court of Appeals has held that an agreement to submit all or a portion of a family law dispute to binding arbitration, without independent review by a sitting "real" judge, is an impermissible delegation of the court's power.

Among the more notable comments the court made, however, was the following, made without any citation of further authority:

Notwithstanding that the parties agreed to pay the arbitrator fees, what is most distressing about this scenario is that arbitration is obviously not a viable alternative or available to parties with lower incomes who can not afford to pay an arbitrator the sum of $225 per hour. This effectively creates a class system within Jefferson Family Court proceedings where more affluent individuals have the opportunity to pay for a “private judge” to conduct their proceedings – while
parties of lesser means and income must have their case heard by constitutionally elected judges in perhaps a less expeditious time frame.

Regardless of how noble
the intent of utilizing arbitration in divorce proceedings, such a system that permits affluent individuals the opportunity to expedite the disposition of their domestic
relations cases in family court that is otherwise unavailable or cost prohibitive to persons of lesser incomes, appears to be both unconscionable and unconstitutional on its face, in our opinion.

Now I know, from reading the rest of the opinion, that commercial arbitration is permissible in Kentucky, and I'll bet that, whether they know it or not, Kentucky bank customers, HMO patients, customers of real estate brokers, and lots of other folks have entered into arbitration agreements regarding the services of those providers, just like their California cousins.

I also know that there are a significant number of folks in Kentucky who end up going to family court without a lawyer, because they can't afford to hire a lawyer. I'll also guess that in general, they don't do as good a job in presenting their cases as attorneys would have done for them.

So, seems to me, there's a "class system" in place already. It also seems to me that if litigant couples have the resources and the mutual willingness to take their cases "out of the system" to an arbitrator, mediator, psychologist, clergyperson, or even a guy who'll adjudicate their dispute using a Ouija Board, this actually works to free up scarce judicial system resources for everyone else.

Am I missing something?

A tip of the big grey fedora to Diana L. Skaggs of Kentucky for the pointer.

Friday, February 19, 2010

Custody and Religion, Again.

A Chicago court may be about to jail (link repaired, see also here and here ) a law student/parent for taking his child to church in what seems, from the interview he gave, to be a clear and deliberate violation of a court order.

While a California court would clearly not make a similar order, the manner in which the issue arose here raises a couple of interesting questions:

To what extent can/should a court in a custody case consider, or attempt to govern, conduct of a parent which, without context, is pretty clearly within that parent's core Constitutional rights (whether it's this case, or publishing the details of the custody litigation on a blog, or saying critical things in a public forum about the other parent, or the parent who named his kid "Adolph Hitler") but is actually done in a manner which is clearly calculated to have an impact on the other parent, or at least is reasonably foreseeable to have a substantially unfavorable impact on the child?

You'll note, if you read the story, that Mr. Reyes took his three-year-old daughter to church with a television news crew in tow.

Is parental selfishness, or even plain bone-headedness or vindictiveness, entitled to additional protection if it occurs in the context of parent's exercise of a protected constitutional right?

Monday, January 25, 2010