Family Law Prof Blog

Case Law Development: Rude Behavior of Attorney Tipped the Scales in Favor of Protective Order Against Client

In a good example of the lesson that rude or aggressive lawyering is not effective advocacy, a California

trial court issued a protective order based on the aggressive conduct of examination by the defendant’s attorney.  While the California Court of Appeals reversed, the case nonetheless is a good reminder that respectful treatment of opposing parties is not bad advocacy.  The case involved an 83‑year‑old father who had filed a request for a protective order against his 56-year-old daughter, alleging that she had hit him, emotionally abused him, and caused caregivers for his 88-year-old wife to quit. 

The court of appeals rejected the daughter’s interpretation of the Elder Abuse and Dependent Adult Civil Protection Act as requiring a risk of future abuse and concluded that a protective order under the Elder Abuse Act could issue based on past actions alone.  However, the court nonetheless found that the trial court in this action had erred in issuing the protective order based on the attorney’s conduct at the hearing. The court of appeals noted “the trial court’s express acknowledgement that the attorney’s questioning and [the daughter’s] failure to intervene were “the straw that made the difference” in reaching its conclusion.”  However, the court pointed out that attorneys, rather than clients, are responsible for the conduct of examination.  “To require a client to correct his or her counsel’s behavior during the examination of a witness in order to avoid inferences as to the client’s prior actions outside the courtroom would go against all these accepted principles of the attorney‑client relationship.” 

Gdowski v. Gdowski, (Cal. Ct. App. 4^th District June 23, 2009)

Opinion online (last visited June 27, 2009 bgf)

What New Family Law Attorneys Need To Know

At a conference on the Future of Family Law Education yesterday, a group of attorneys and mental health professionals were asked to advise the law professors present on what new lawyers need to know about family law.  Here is a summary of their responses:

• The Honorable Doris Huspeni of the Minnesota Court of Appeals, who began her career as a family court referee,  advised, “Be realistic.  You need to be able to counsel your client as to reasonable expectations.”  She urged the importance of civility among members of the bar as necessary to effective advocacy.
• Marty Swaden of the Swaden Law Offices echoed these sentiments.  He emphasized the importance of knowing the people involved in a family law dispute – the judge, the client and opposing counsel.  He was especially concerned that young attorneys sometimes believe that they have to have a tough, aggressive, and defensive attitude to be effective.  He emphasized the need for new attorneys to appreciate that there needs to be a good working relationship with opposing counsel so that the case can get resolved.
• Nancy Zalusky Berg of the firm Walling, Berg, & Debele said, “Get yourself out of the way.”  She commented on the importance of family law attorneys understanding themselves and how their own experience of family can impact their representation of their clients.   Gary Debele of the same firm advised new lawyers to think of themselves as problem solvers first rather than advocates and litigators.  As a problem solver, he suggests three key questions: “What does the client want? Is what the client wants, reasonable and feasible? And How do you get to that result?”
• Angie Banga, who serves as a Guardian ad Litem in family court, reminded the group of the importance of teaching the damage that high conflict divorces does to children.  She suggested, “Remember to be flexible – a good family court attorney is flexible; able to shift their thinking when they get new information.  They need to understand when they have drawn the short straw – everybody gets a client who’s case is weak."
• Attorney Andrea Niemi of Niemi, Jerabek, & Kretchmer was concerned at the degree to which new attorneys are advising each other rather than finding a mentor.  She emphasized the need for new attorneys to learn how to find someone who knows what they are doing and how to access their expertise.
• Karen Irvin, of the Minnesota Mediation and Counseling  Center, urged family law professors to teach family law student to think in terms of family systems: to think beyond the individuals they are representing to understanding the impacts on the entire family system. 
• Mindy Mitnick, of the Uptown Mental Health Clinic, emphasized the importance of learning to work with mental health professionals.  “Lawyers are from Mars; mental health professionals are from Venus,” she quipped.

The conference was hosted by the Midwest Family Law Consortium, a collaboration of the University of Missouri Kansas City School of Law, William Mitchell College of Law, and the University of Indiana - Indianapolis College of Law.  Additional sponsors included the American Academy of Matrimonial Lawyers, Minnesota Chapter; Hofstra University School of Law, Center for Children Families and the Law;  the Association of Family and Conciliation Courts and the Association of Family and Conciliation Courts, Minnesota Chapter.

Case Law Update: Voluntary Acknowledgement Wins in Competing Presumptions of Paternity

In an extremely messy case involving dramatically differing stories from the parties and the intersection of four separate statutory provisions governing paternity, the California Court of Appeals held that a voluntary acknowledgment of paternity trumped the presumption created by holding oneself out as a father.

While she was pregnant and for a time after the child was born, Mother lived with the petitioner, a man (who happened to be a family law attorney) .  Though he knew he was not the biological father, the petitioner held out the child as his own.  This established petitioner as a presumptive father under the Uniform Parentage Act.  The biological father, as determined by a private pre-birth DNA test, had filed a voluntary acknowledgement of paternity, but, because he had another family, had not publicly acknowledged the child as his own.  The voluntary acknowlegment established the biological father's paternity under the voluntary declaration of paternity act, which states that a volunatry acknowlegment is the equivalent of a judgment of paternity. 

Thus the court was left with the question, "Does a man's voluntary declaration of paternity—if properly signed and filed after 1996 and never rescinded or set aside—rebut a rebuttable presumption of paternity under [the UPA]?"  The lower court had held both presumptions equal and had found that petitioner's actions outweighed the presumption favoring biological father.  The court of appeals reversed, holding that California's statute clearly establishes that a properly executed and filed voluntary acknowlegment of paternity has the effect of a judment of paternity and that the statute limits judicial discretion to set aside this judgment.  Given that that UPA states that a judgment of paternity outweighs the presumption of paternity created by holding out oneself as a father, the trial court erred in weighing the two presumptions equally.  Rather, the biological father's paternity should have been treated as conclusively presumed.

The case presents a fairly rich description on the competing versions of Mother and petitioner and would make a fine starting point for crafting a problem on competing presumptions.

Kevin Q. v. Lauren W., (Calif. App. 4th Dist. June 19, 2009)
Opinion online (last visited June 22, 2009 bgf)

Father's Day Facts

New York Times Magazine columnist Lisa Belkin compiled a list of facts about contemporary fathers that provides a nice snapshot of the changing roles of fathers.  Her column notes that fathers are more involved in their children's education and more openly affectionate than a previous generation of fathers.  The desire to become a full-time parent has gone down in recent years however.

Read the column online