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.

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?

Now Why Didn't I Think Of That?

A divorce gift registry. Those Brits are so far ahead of us in handling matters of etiquette.

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

Jeremy Morley's International Family Law