Family Law Goes To The Movies

There’s a “Winter RomCom” which bears on family law this season: Vince Vaughn’s comedy of assisted-reproductive-technology, “Delivery Man” (short non-spoiler synopsis: he’s been a artificial insemination donor, and discovers that, due to a paperwork snafu, he’s the father of 500+ children). Haven’t seen it yet, but I’m hoping it has a bit more of legal reality infused in it than past “family law” movies, comic or serious, including “Mrs. Doubtfire”, “Kramer v. Kramer”, “Intolerable Cruelty” (a prenup comedy) and “Next Best Thing”, a fairly dismally received film (Rotten Tomato-meter: 19%)  on which, I must admit, I received a screen credit (I and my partner are right there, between the caterer and Madonna’s yoga consultant), but couldn’t manage to get director to make the courtroom scenes quite right.

Believe Half of What You See*: The "Skier's Fetus Custody Case", And Other Internet Rumors

To say that the Uniform Child Custody Jurisdiction and Enforcement Act   (UCCJEA) isn't usually the stuff of the internet tabloids, and the "entertainment news" shows and sites is an understatement.   So when it does make an appearance,  it's frankly not horribly surprising when the tabloids, reputable online news outlets, and even the "Grey Lady" of American news media, don't get the details exactly right.

The short version of the story (and I haven't read the full trial court record either in New York or in California) seems to be that in May, a New York judicial officer made an odd, and fairly clearly wrong-headed decision on the issue of custody jurisdiction, kicking the case back to California.  A judge in California, faced with an apparent "we don't want it!" from the New York court, then decided to act, since, at that point, no other court was willing to do so.  Several months later, the appellate court in New York, in what is characterized as a "scathing" opinion, reversed the New York trial court's mistake.

Is any of this really news?   Judges (and other judicial officers) sometimes make wrong decisions.  Sometimes, they even make stupidly wrong decisions.  That's what the appellate process is about.






*"People say believe half of what you see, and none of what you hear."   Norman Whitfield and Barrett Strong:   Heard It Through the Grapevine

4000 Answers

I just answered my four thousandth question on Avvo.  Think I'll rest.

SAME-SEX UNIONS: THE STATE IN THE STATES

    A decade ago, my (law) partner* and I worked on writing same-sex “union” contracts from scratch.**   There’s been a sea-change since then, but the wave is still rolling in, and exactly where it is on a given day, and what we’re advising our clients on a given day, is still very fluid.

IN CALIFORNIA

    In 2004, California adopted “new” Registered Domestic Partnerships (NDP’s).  California NDP’s were thereafter to be treated as having the same legal rights and responsibilities as spouses under California law.  

    This was, however, the era of state and Federal “Defense Of Marriage” Acts.   Under Federal law, and under the law of (then most other) states, NDP’s were not recognized as “spouses” for any purpose, notwithstanding whatever California law had to say about the subject.  By a rough count at that time, Federal laws and regulations referred to “spouses” in a couple of thousand places. This meant, among other things, that California NDP’s had no spousal federal tax rights or benefits, had no spousal rights in connection with any employee benefit plan covered by ERISA, could not file a joint bankruptcy, had no spousal or family rights in regard to immigration, and that none of the spousal rights California conferred were necessarily “portable” to any other state. 

    Following years of court battles, California now permits same-sex couples to marry, i.e., they’re “spouses” not just in effect, but by actual label.  The NDP framework however, still remains available and in place.

IN THE REST OF THE COUNTRY: LABELS STILL MATTER

   
    Federal law and Federal practice, in regard to same-sex partnerships, is slowly changing.  Since Congress has not yet acted to make wholesale changes in Federal law, or to explicitly repeal all parts of the Federal DOMA, these changes are still being made on a department-by department basis.  As noted elsewhere on the blog, both the Treasury Department (IRS) and the Labor Department (ERISA) have now stated that they will recognize any couple designated as “spouses” by the law of a state to be “spouses” for purposes of their Federal regulations.      To date, they have indicated that couples labeled as something other than “spouses” by the law of the state or country where they “contracted the relationship” will not be treated as spouses.

    Exactly how and when remaining Federal laws, regulations, and practice will change remains unclear; equally unclear is whether any of the changes will be given any retroactive effect.

    It also seems likely, after the Supreme Court next addressees the issue that states will no longer be able to decline to recognize “marriages” contracted between same-sex couples from other states.  This result too will probably not carry over to “civil unions”, “domestic partnerships” etc., since those states don’t recognize such status for their own citizens.

    So, for the moment, “labels still matter”.

*Not my law partner any more, but still my wife, now a judge...
**or from duct tape and general contract law.  See Gould-Saltman, D. J., and Gould-Saltman, R.F. (2002) "Gay and Lesbian Marriage and Its Alternatives"  2002 Family Law Update, Brown, R. and Morgan, L. eds,  Aspen Law & Business.

SCOTUS To Look At Hague Appeal Issue

The Hague Convention on Civil Aspects of International Child Abduction* is intended to permit speedy resolution of disputes as to which nation is the appropriate place to resolve child custody disputes, by assuring return of the child(ren) to their "habitual residence", except under extraordinary circumstances.  While generally the problem with Hague proceedings is that they are not speedy enough, sometimes they may be too speedy.

Last week, the U.S. Supreme Court heard argument in Chafin v. Chafin, to address the issue.

While it's not as headline-worthy as the DOMA cases, for the increasing number of parents with international, and intercontinental child custody arrangements, it may be more critical.


*I note the full title, because any treaty between nations signed at the Hague will be titled as a "Hague Convention", and simply searching those two words may end you up, for example, at the Hague Convention on the Launching of Explosives From Balloons.

American Court Upholds, Enforces UAE Divorce Decree

...and in so doing, holds a decree to enforce a "mahr"  (dowery) is enforceable under U.S. law, under some circumstances.   Tip o' the Stetson to Prof. Volokh.

The State of Engagement Ring Law, Nationwide

This update, thanks and a tip of the "professor hat" to Eugene Volokh.

Pre-Nuptial Agreements In India

While "pre-nups" are apparently becoming more popular between Indian couples, their validity is still unclear.

Thanks and a tip of the Summertime seagrass fedora to Jeremy Morley's International Family Law.

Child Custody and Religion, Pre-Holiday Edition

Can you be held in contempt for baptizing your child, when you've previously agreed with your divorced spouse that you won't make "major religious decisions" for your children without agreement?   Maybe.  

Thanks and a tip of the pre-Good Friday/Passover hat to Religion Clause.

Some Additional Ideas About Maximizing Your Success In Custody Cases

From Joseph Cordell on HuffPo

Very similar to, although not as detailed, as my California-specific advice:

WHAT SHOULD I DO TO “MAXIMIZE” MY PARENTING?

1.   Exercise all your time, plus more

If you go to court for a review of your custodial situation, the Court will be more interested in what the parents actually are doing, than in what any prior court orders say they should or must be doing.  Use all your custodial time that you are financially,  physically, and logistically able to use.    If you can accommodate the other parent's scheduling by offering to have the child(ren) with you, more than the order says you “must”, do so.   This is not “baby-sitting”, it is spending time with your kid(s), i.e., parenting.   Some of the time may not necessarily be spent going to Disneyland.  

2.    Exercise your rights (and responsibilities) beyond the custodial time-share.

Parenting is different from running a dormitory.  There is more to parenting than whose house your child sleeps, on which nights of the week: 

    A.    Education:  Request scheduling information about all your child's pre-school/ school functions, and attend them whenever possible.  Whether or not the other parent provides you with copies, take independent steps to arrange with your children's schools to receive scheduling information, report cards, etc.   If you get any of this information, and have any reason to think the other parent did not, send a copy.

Know your kids’ teachers.  Make sure that your kids' teachers, and school personnel, know you. 

Make sure you are on all parental notification, and emergency notification cards. Keep your notification information on those records absolutely current.

If your child is having any sort of trouble in school, find out from the school (not just from your child or the other parent) what is going on, why it is happening, and what can, or must,  be done to fix it. 

The days (in California) when you could deliver your child to a public school, starting in September, do nothing besides going  to two parent-teacher conferences during the year, and expect to have your child pop out in June with another year’s worth of education, are long gone.  Both public and private schools are now hands-on efforts for parents. 

The more time you spend volunteering in your child’s classroom, fund-raising for your child’s school, running computer cables through the walls at your kid’s school, coaching soccer or helping to build sets for the school play, the better the education your child will get, and the more you will know about what kind of education she is getting, and how.  Incidentally, your community will also be better off.

    B.     Health care:  When (not if) your child needs health care, find out what is going on, whether it is a regular dental check up or physical exam, the treatment of a cold or earache, or an ongoing course of treatment for a serious chronic condition.  There is no better way to stay informed than to take your child to the doctor yourself.   If you can’t, ask the other parent regularly for information.   Again, if you get any of this information, and have any reason to think the other parent did not, send a copy.

If you have any questions or concerns, discuss them directly with the health care provider.    Medical school studies reveal that the doctors’ advice that patients hear and understand is significantly different from what doctors think they have said.  The other parent is not your best source of this information; the child is an even poorer one.

"Health care" does not just mean your child’s pediatrician.  It includes the dentist, the orthodontist, the chiropractor, and any psychotherapist or counselor.

Know who is paying for health care, who’s carrying the insurance, and who is entitled to reimbursement.   Keep records.

    REMEMBER:  Even if you do not have joint legal custody, under California law you are entitled to information about your child's education and health.  As a joint legal custodian, you have both a right and a responsibility to keep informed and to be involved in decision-making.   If you don’t participate in decision-making, the Court may conclude that you have no further interest in having a hand in decision-making.
   
3.    Behave, in all of your transactions with the other parent, as if everyone was watching you; ultimately, they are.
   
Assume that at some point in the future the Court, and any Court evaluator, will consider both the content and tone of all your communications with the other parent, and the other parent’s new spouse or significant other.   

So:

Be appropriate.  Not only shouldn’t you use your child as a telephone (“Tell your mother you can’t spend the whole weekend next weekend....”)  you shouldn’t use your child as a mail-carrier, or send messages to the other parent via your child’s e-mail, or telephone.

Be polite.  Send and say nothing to the other parent you wouldn't want the judge in your case to read now.   Send nothing to the other parent that you wouldn't want your children to read, twenty years from now.    Even if the other parent is acting like a jerk, don’t act that way.

If scheduling changes need to be made, give more notice than the minimum amount required, whenever it is possible.   If you are running late, even a little bit, call.

If you need to make logistic arrangements (different clothing, school books and materials, sports gear, etc.)  communicate with the other parent the need for those arrangements.

Confirm your conversations with the other parent by short, polite notes, or the electronic equivalent.  Do not include in any such note any discussion of the other issues of the case, discussion as to why the relationship or marriage failed, blame for any events which have happened in the past, etc.  Like a telegram for which you are charged by the word, these notes should be the bare minimum number of words necessary to convey the information, plus "Please", "Thank you", and "You're welcome".  Even if the other parent is acting like a jerk, don’t act that way.

4.   Your children are not the parents/litigants, you are; don't treat them as if this is THEIR case

It is appropriate to discuss resolving your case with  the other parent, or between the attorneys.  Children, however, are not  litigants: they have no obligation to settle their parents’ cases. 

    Children should not be burdened with any discussion of the financial aspects of the case,  ever.    Your financial responsibility to your kids is yours; it is not dependent upon the other parent’s, or how well the other parent meets that responsibility.

Your children have no obligation to tell you, or discuss with you, their preferences regarding custodial arrangements.  They do not even have an obligation to have such a preference.  Your children should never be obliged or expected to decide their own custody arrangements, although you should consider their wishes.

5.   Remember: this is your custody case, not everyone else's.

Unless there is no other appropriate way to communicate directly with the other parent, don't use anyone else as a messenger. (Except in an emergency, this will almost never be the case.)  Your relatives, your new spouse or significant other, the other parent's relatives, your friends (mutual or otherwise) and your child's friends are not obliged to take sides, or act as tie-breakers.  Don't ask them to.  Don't expect them to.


   
                

"That Magic Moment", Revisited (A Belated Valentine's Day Post)

       While the legal wrangling over same-sex marriage continues apace (see my next post) as the economy looks like it may be improving, the divorce rate seems to be edging up again. 

  

            ....and why is this seemingly depressing thought in a Valentine's Day post?  

         Because I really want starry-eyed folks  (music swells, here, please)  to have successful marriages.  How to come as close as possible to guaranteeing it?  Talk to each other BEFORE the deal is struck.  If you and that special someone need to change the "marriage contract" to meet YOUR needs and expectations, then, whether you're eighteen or eighty*,  the time for that conversation is BEFORE you "sign on the dotted line"**. 

* Belated tip of the purple and gold,  Fat Tuesday fedora  (from Meyer The Hatter) to Randy Kessler for the pointers.

**those who've followed this space for a while know that my paternal grandfather remarried at 75, after being widowed, and was happily married on the day he died; my father remarried at 79 after my mom died, and was happily married until he passed last year.

All of You: Time to Pester Your Elected Representatives

Those of you who've followed this blog for more than a post or two have long since tired of my, and others' yelling about the fact that trial courts, and particularly family law trial courts, have been getting a raw deal in terms of funding.  Now, it's official.

I'll have some year-end thoughts

...after a somewhat more exciting year than I really needed... watch this space....

An Ad Hoc Fix of the Interstate Same-Sex Divorce Problem

has now been signed into law.

Parenting, Custody and Realistic Risk Assessment

Which is more risky for a nine-year old: letting the child wait alone at a bus stop for ten minutes, in mid-day, or letting the same child ride a bicycle for a half hour near his house? How about letting the same child visit a friend who has a swimming pool? A friend whose parent owns firearms and keeps them in the house? (See Dubner and Levitt's Freakonomics for that dyad.) Which are most parents likely to think are acceptable and appropriate? Which are judges likely to think demonstrate responsible or irresponsible parenting?

Should parents or judges make these calls based on their "gut sense" or "intuition", or should real EVIDENCE be required before the court injects itself into this sort of decision?

Zero to Three: Parenting Issues and Parenting Plans For Young Children My ABA Teleseminar materials for 7/21/11 with Aaron Robb

Zero to Three: Parenting Issues and Parenting Plans For Young Children

We open with three disclaimers:

We will not address the evidentiary adequacy of child custody evaluations, research bearing on custody issues performed by mental health professionals, or the adequacy of the social science underlying them.[1]

We are also will not address, in other than a general way, the efficacy of custody/time-share orders as a cost-effective way of managing risk in parenting.[2]

Finally, throughout this topic we are going to be speaking about generally healthy families. The vast majority of cases that attorneys will encounter will transition from their pre-divorce lives into their post-divorce co-parenting roles with minimal disruption. Serious consideration needs to be given to more restrictive parent-child contact in cases with violence, substance abuse and untreated serious mental illness.[3]

California Child Custody: What's Going On? Is It Broken? How?

"Believe half of what you see, and none of what you hear. "*

Last week, a Northern California newspaper published an extended piece, asserting, yet again, that the family law system is (quoting the cover headline) "helping pedophiles, batterers get child
custody".

While buried in the body of the piece was an acknowledgment that " it is impossible to say how common such cases are", that isn't exactly the same impression conveyed by the headline.

The same week, the Los Angeles Times ran a story regarding a psychiatrist/child custody evaluator in Los Angeles**. While that story was less obviously agenda-driven than the Northern California piece, it seemed short on well-verified facts, and long on "it is alleged, in documents filed with the court". Again, those authors implied that the problems that they referenced were systemic and pervasive. They offered no evidence for that implication.

There's little to offer.

The "studies" and "research" on the issues of the adequacy of the child custody/family court system in protecting children and victims of domestic violence, including those cited by outlets as reputable as Newsweek, are, if cited in support of any generalization about the system, are thin soup, perilously close to scientific junk.***

It may be that these problems are grossly under-reported, and systemic; my thirty-two years of practice makes me think otherwise, and leads me to conclude that the California system is actually quite child-centered, and victim-protective. I'm certainly unconvinced by the "studies", and by the information in the two articles. While I've railed about the lack of real objective information for nearly a decade, since the last such "scandal' erupted, the quality of the information has not yet noticeably improved.

The problems with the family law system are not, as far as I can tell, mostly the result of some system-wide bias or agenda; they're mostly from (a) the lack of adequate financial resources for the system to address these issues, and (b) the gross mis-allocation of resources within the judicial system. As I've said before, nobody ever successfully ran for statewide office in California on the platform: "I promise to spend more of your tax money on divorce court!"


* Ben Franklin, or E.A. Poe, or Marvin Gaye.

** Note that I have not provided links to the pieces above; they're here: "Helping" "Evaluator"
*** "That's not 'thin soup'. It's rat pee." Prof. Michael Shapiro.
"The plural of 'anecdotes' isn't 'data.' " Frank Kotsonis.

Child Custody and Religion: The Hits Keep Coming, Folks!

An interesting case about medical decisions in child custody cases, with a religious issue overlaid on top of it. A judge, presented with giving either Dad, (who wanted child vaccinated) or Mom (who wanted the child NOT vaccinated, for ostensibly religious reasons) the decision-making authority to over-ride the other parent's preference, chooses Dad's view.

Query whether the outcome would have been the same had Mom's articulation of the religious basis for her objection been clearer, or if it had originated in a more "organized religion".

Hat tips to Doc Volokh and Howard Friedman for the pointer.

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?

Pre-Nups Valid in the U.K.

Maybe, says the U.K.'s Supreme Court. Thanks and a big 'ol Texas hat tip to Randy Kessler for the pointer.