Family Law Prof Blog

Marriage Stronger than Ever

The New York Times summarizes a range of studies on the impact of infidelity on marriage and concludes that most marriages weather these storms and that the marriage tie is stronger than ever in today's society.

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

Recession and Divorce

While previous reports have noted that the recession may make divorce too expensive an option for some couples, the National Law Journal recently reports that high-end divorce attorneys are seeing an increase in their work despite the recession.  The article reports a recent survey of the American Academy of Matrimonial Lawyers, in which 39 percent of the academy attorneys cited an increase in requests for smaller child support payment and 42 percent of the members reported a rise in the number of changes made to alimony payments. bgf

Incarceration for HIV-Positive Pregnant Immigrant

An immigrant woman from Cameroon was arrested for allegedly having false immigration documents. Shortly after her arrest, she learned she was both pregnant and HIV positive. On May 14, 2009, a US District Court Judge extended Ms. Tuleh's sentence to 238 days in prison to ensure that she remain incarcerated for the duration of her pregnancy.   This week,the  U.S. District judge on Monday ordered that she be released on personal recognizance bail while her appeal to the 1st U.S. Circuit Court of Appeals is pending in Boston. 

The emergency amicus brief filed by the National Advocates for Pregnant Women, the Center for HIV Law and Policy and attorneys Elizabeth Frankel and Valerie Wright of the Maine firm Verrill Dana, LLP on behalf of  Ms. Tuleh is available online.

Read the news report in the Bangor Daily News. (last visited June 18, 2009 bgf) 

Sham Divorces

Students sometimes come to the study of family law thinking that "no fault" divorce is the same as "on demand" divorce.  These students need to be reminded of the necessity to prove "irreconcilable differences" or "irretrievable breakdown" in order to obtain a divorce even in "no fault" states.  

There is precedent for collusive divorces being vacated for fraud (see Family Law Prof Blog post of July 26, 2006); however, recent news stories regarding sham divorces emphasize the role of third parties in preventing sham divorces or reversing their financial outcomes. 

The Connecticut Post reports that federal prosecutors have requested to intervene in the divorce proceedings filed by the wife of Walter Forbes, former chairman of Cendant Corporation, who is serving prison time for one of the biggest accounting scandals in U.S. history.  The feds allege that the  divorce is an attempt to evade a $3.275 billion restitution order.  The couple have been married for 27 years.  Walter was convicted and sentenced in January 2007.  

In another recent news story reported by ABC news in Houston, Continental Airlines is suing nine pilots who allegedly obtained a sham divorce in order to trigger a cash pension payout to their ex-spouse, who they subsequently remarried. In a lawsuit filed in Federal Court, the company alleges the pilots obtained uncontested divorces in which the pilot would assign 90-100% of their pension benefit to the other spouse, who was then able to obtain a Domestic Relations Order (DRO) in state court that resulted in the Continental pension play paying out a cash lump sum to them. After receiving the pension payout, almost all of the pilots and their ex-spouses remarried.

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Case Law Development: Preference for "Traditional Family" Insufficient Justification for Removing Child from Foster Care Placement

The West Virginia Supreme Court, writing for the first time on the issue of the propriety of same-sex parenting, granted a writ of prohibition against a trial court's order to remove a foster child from the home of a lesbian couple.  The trial judge had premised the removal on his theory that state adoption statutes prefer "traditional families" (i.e., headed by a heterosexual married couple).   However, the supreme court noted that no adoption petition had been filed and the issue of adoption was not presently before the court -- only the placement decision.

The child had been placed a few days after birth with the couple, who also fostered other children.  The GAL filed a motion to remove the child and an order prohibiting DHHR from ever placing children with gay foster parents.  The Department of Health and Human Resources opposed the motion and the trial court denied it. After mother's rights were terminated in fall 2008, at the permanency hearing, the GAL renewed the motion to remove the child, now arguing that since the department had placed an additional foster child with the couple, they now had exceeded the statutory maximum for foster children. 

The judge granted the removal order now supported by the department as a means of curing their error in placing too many children in the foster home.  However, the supreme court granted the writ of prohibition on the basis that, in the meantime other children had left the home so the statutory maximum was not violated.  Even if it were, however, the court noted that the court did not approach the solution to the excessive placement with the proper focus on the child.

The situation before us involves a removal decision where the foster home environment or care provided in a foster home is not in question, and removal of a child is necessary to correct problems created by bureaucratic error. When presented with such situations, courts need to safeguard the best interests of the children by examining evidence of the emotional, physical and mental needs of the individual children under the particular circumstances of a case, and then balancing the relative interests of the children in order to decide which child or children would be less traumatized or detrimentally affected by being removed from the home. No such examination or balancing occurred in the present case.

Moreover the supreme court noted that the removal was more obviously based on a dissaproval of the same sex foster parents and a blurring of the adoption code and the abuse and neglect code. Because adoption was not at issue in the permanency placement hearing, the court found that the trial court's ruling as a matter of law on the propriety of adoption by same sex couple was unnecessary and inappropriate:

    Central to our deliberation in this case is the reason or motivation underlying Respondent's decision to remove a child from her foster care home. The motion to remove the child was not supported by any allegation that [the child] was receiving improper or unwise care and management in her foster home, or that she was being subjected to any other legally recognized undesirable condition or influence. ... As a matter of fact, the court was never presented with any actual evaluation of the home or evidence of the quality of the relationship [the child] had with Petitioners. ... Without any information that the foster care placement with Petitioners was not proceeding well, there was no legal reason for the court to remove [the child] from the only home she has known. 
    It is more than apparent that the only reason why Petitioners were being replaced as foster care providers was to promote the adoption of [the child] by what Respondent called in his November 12, 2008, order a “traditionally defined family, that is, a family consisting of both a mother and a father.” It was only by addressing issues he anticipated would develop and believed would be problems at a later point in this case that Respondent was even able to reach the subject of this conclusion. The conclusion itself thus represents a blurring of legal principles applicable to abuse and neglect and adoption. Moreover, even if our current statutes, rules and regulations could somehow be read to support the adoption preference proposed by Respondent, such a newfound principle would need to be harmonized with established law. Under our current law which encourages adoption by qualified foster parents, one of the Petitioners seeking to adopt B.G.C. individually would at the very least need to be considered if not favored in the selection of the prospective adoptive home.

State ex rel Kutil & Hess v. Blake, (West Virginia Supreme court of Appeals, June 5, 2009)
opinion online (last visited June 15, 2009 bgf)

Facebook & Divorce

Taking the time to address the use of electronic data in divorce in our classes and clinics is becoming increasingly important.  A recent survey of American Academy of Matrimonial Lawyers members indicated that 88% had noted an increase in the use of this evidence.  Last week's Time's article on Facebook and Divorce comments that  "...as the age of online-social-network users creeps up, it overlaps more with the age of divorce-lawyer users, resulting in the kind of semipublic laundry-airing that can turn aggrieved spouses into enraged ones and friends into embarrassed spectators."  The article includes a slideshow of five facebook "no-nos for divorcing couples." 

Students may not appreciate the extent to which the use of this type of evidence may raise difficult ethical and legal issues.  A brief analysis of the issues is available online from The Legal Intelligencer.  Recent scholarship on the issues includes:

Laura W. Morgan, "Marital Cybertorts: The Limits Of Privacy In The Family Computer," 20 Journal of the American Academy of Matrimonial Lawyers 231 (2007).

For an older, but comprehensive review of the law in this area, see  Richard Turkington,Legal Protection for Conversational and Communication Privacy in Family, Marriage and Domestic Disputes: An Examination Federal and State Wiretap and Stored Communications Acts and the Common Law Privacy Intrusion Tort, 82 Neb. L. Rev. 693, 702 (2004).

For a discussion of the marital communications privilege when spouses talk by email, see Mikah Thompson, Twenty-First Century Pillow-Talk: Applicability of the Marital Communications Privilege to Electronic Mail, 58 Santa Clara Law Review 275 (2006).

Finally, for a lesson on how not to ask students about this topic: see this law student's blog posting responding to a family law prof's quiz question regarding awareness of the implications of social networking on family law litigation. 

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Case Law Development: Juvenile Curfew Held Unconstitutional

The New York Court of Appeals found that the City of Rochester's curfew conflicted with more general state law and with the constitution. 

The court found that provisions of the curfew that applied to minors under the age of 17 violated the Family Court Act by impermissibly allowing police to take children into custody for non-criminal violations.

As for minors under the age of 18, the court conducted a constituitonal analysis, concluding that an strict level of scrutiny was required because the ordinance interfered with freedom of movement, though the court acknowledged that many other courts apply only intermediate scrutiny to laws affecting fundamental rights of juveniles.  The court noted that the ordinance would not pass even intermediate scrutiny however, because the city had not established that the ordinance advanced its stated objectives.  The court pointed out that most juvenile crime occurs during the day and that most nighttime crime is by adults.  The sweeping application of the curfew and the limited exceptions provided made for unconstitution interference with juvenile rights: "minors are affected by crime during curfew hours but from the obvious disconnect between the crime statistics and the nighttime curfew, it seems that no effort . . . [was] made by the [City] to ensure that the population targeted by the ordinance represented that part of the population causing trouble or that was being victimized."

In addition to violating the rights of minors, the Court found the law violated the substantive due process rights of parents in that it provided an exception for parental consent only if the child was physically accompanied by a parent or other responsible adult authorized by the parent to accompany the child. The court concluded that "an exception allowing for parental consent to the activities of minors during curfew hours is of paramount importance to the due process rights of parents." The Court stated that if "a parental consent exception were included in this curfew, it would be a closer case — courts have upheld curfews having, among other things, such an exception as only minimally intrusive upon the parent's due process rights."

Associate Justice Eugene F. Pigott, formerly of the Appellate Division, Fourth Department, wrote a dissenting opinion in which Judge Robert Smith concurred: “The decision to enact a curfew, while based in part on objective data, was also based in substantial part on the subjective judgment of experienced civic leaders, who believed the ordinance to be the best way of dealing with a very troubling problem. Their judgment is, in my opinion, entitled to considerable deference.... Equipped with a parental consent exception, I think it might have been a model city curfew,” Justice Pigott wrote. “It is regrettable that a curfew was determined to be necessary in Rochester; but it is equally regrettable if this court prevents Rochester from implementing a reasonable plan to protect its youth.”

Jiovon Anonymous v. City of Rochester, June 9, 2009

Read the opinion online (last visited June 12, 2009 bgf)

The ACLU amicus brief, which focused on the parental rights aspect of the curfew is available here.

Idaho too has recently held a similar ordinance unconstitutional: State of Idaho v. Doe, (ID Ct. App., March 31, 2009), an Idaho appellate court held that Wendell, Idaho's juvenile curfew ordinance is unconstitutionally overbroad. "A minor's freedom of speech, freedom of religion, and freedom of association are all curtailed by the curfew ordinance."

Case Law Development: Parent has no Right to Read Scripture to Kindergarten Class

Mitchell H. Rubinstein at Adjunct Law Prof Blog notes the recent Third Circuit decision in Busch v. Marple Newton School District, No. 07-2967 (3d Cir. June 1, 2009), in which the Third Circuit  held that a school district did not violate a student’s or his parents’ free speech or Establishment Clause rights by telling his mother she could not read the Bible to his kindergarten class. Read Professor Rubinstein's summary of the case here and the full court opinion here. (bgf)

Call for Papers - Collaborative Law

Hofstra Law Review has issued a call for papers for an upcoming special symposium issues on Collaborative Law and the Uniform Collaborative Law Act: Opportunities, Challenges, and Questions for the Future

In addition to featuring the Uniform Collaborative Law Act, sponsored by NCUSL for which Hofstra Professor Andrew Schepard serves as reporter, this issue will highlight various topics discussed at Hofstra Law School’s Conference on Collaborative Law to be held on November 20, 2009.  The Law Review is seeking contributions from scholars, practitioners, judges, public policy makers, and experts in all professional disciplines on which Collaborative Law has an impact. We expect to publish a broad range of topics, including: professional responsibility obligations and collaborative law; interdisciplinary approaches to collaborative law; collaborative law in particular disputes and practice settings (for example, divorce, child protection, commercial disputes, environmental law, poverty law, governmental practice, labor law); legal education and collaborative law; collaborative law as it compares to other forms of dispute resolution such as arbitration and mediation; the implications of collaborative law for the role of lawyers in society; and collaborative law in other countries and cultures.

To be eligible for publication, papers must be submitted by January 1, 2010. Articles submitted should be around 30 double-spaced pages, including citations, notes, references, tables, and figures. Authors may also submit Ideas pieces, which are typically 10-15 pages and more lightly footnoted. Authors are requested to follow the Bluebook: A Uniform System of Citation (18th ed.). Publication decisions will be made shortly following the submission date and the publication of this special issue is expected to be completed in June, 2010.

Please direct all inquiries to Editor-in-Chief Michael de Matos by e-mail at [email protected], or by phone at (516) 463-5910. Article submissions by e-mail and in Microsoft Word format are preferable. Please e-mail articles to: [email protected]. Articles may also be sent by regular mail to:
Hofstra Law Review
Managing Editor of Articles
Hofstra University School of Law
121 Hofstra University
Hempstead, New York 11549-1210

BGF

New Hampshire Allows Same-Sex Marriage

For an analysis, see Constitutional Law Professor Blog here.

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Reactions to Murder of Doctor Tiller

One of the most difficult aspects of teaching family law is helping students to explore issues such as abortion, marriage, parenting and the like in a manner that advances understanding of the issues while also being prepared to be effective advocates for their cause. The assasination of abortion provider Dr. George Tiller provides a sobering reminder of the dangers of extremist rhetoric as an advocacy tool.

Recent news coverage includes:

the New York Times' article on the debate over the role of rhetoric in the murder;

the Topeka Capital-Journal's coverage of Kansas Governor Parkinson's call to "ratchet down inflammatory dialogue";

an article in the Washington Post on the reaction to Dr. Tiller's death;

National Public Radio's story on the effect of Dr. Tiller's death in galvanizing pro-choice advocates.

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