Proud Member of the “Rakofsky 74″
Rakofsky badge (by Amy Derby ©)
Recent Posts
Subscribe via email

Technology 4 Lives

Posts Tagged ‘Family Law Follies’

May I serve as a cautionary example to young lawyers everywhere (UPDATED)

As I attend the South by Southwest Interactive Festival this week, I suppose one could say my transition from a law-focused career to a writing-focused career is turning a corner or something. I’ll have to work on that sales pitch a bit more.

It got me thinking about anything I might have to offer young lawyers trying to do what I did over the past decade, and a few tweeting colleagues helped me realize the biggest piece of advice I could possibly give: get a freaking mentor.

'Manta Ray, Kona Coast, Hawaii' by SteveD on Flickr

I couldn't find a good stock photo for "mentor," so here's a manta ray instead

If you are a young, newbie lawyer condemned by the economy to solo practice, get a mentor. Stop whatever you are doing, I don’t care if it’s cooking breakfast, driving down the interstate, or even getting some. Just stop, ponder the type of law you are trying to practice, and find a mentor. A Twitter exchange yesterday between veteran lawyer Antonin Pribetic and newbie Stephanie Toronto encompasses the importance of mentoring. (Of course I had to respond too, and that inspired this post).

As a second, somewhat-related piece of advice, I’d say this: don’t obsess over technology. Gadgets are awesome, but technology changes constantly and the practice of law changes pretty much never. Young lawyers, myself included, can get hung up on having the most-efficient doo-dads. Read Scott Greenfield’s post about the dangers of tech innovation in a law practice, especially when you deal with serious legal matters like criminal or family law, where the cost of an inconvenient computer crash could mean someone goes to prison or loses custody of their children. Sometimes taking notes on a legal pad makes sense, is what I’m saying.

I did not have anything resembling a mentor for years after I started practicing, and it showed. In my first year, I left the courthouse almost in tears on multiple occasions (at least I waited until I got to the car, most of the time) out of a sense of shame, embarrassment, or just plain ol’ fear. Fear because I never quite knew what to expect when I walked into a courtroom. Of course there is always uncertainty when you go into court, but I mean I sometimes literally had no idea what was going to happen. That was bad for me psychologically, but it was potentially far, far worse for my clients. I was doing family law, and my then-law partners’ criminal practice had several assault with family violence cases that led to divorces. These were not simple cases. They were highly emotional and combative, with every conceivable issue that could be disputed in dispute. Luck was an enormous factor in warding off disaster.

I went to CLE seminars on divorce, and I took advantage of the list of more-experienced lawyers who had agreed to offer their wisdom to us upstarts. I always called them with a strange sense of fear or shame, as if I was exposing too much of my ignorance by admitting there was something I did not know. I have no idea where that notion came from but it is (and let me be clear) utter, complete, and highly destructive bullshit. Of course you don’t know what you’re doing – you just started doing it!

The only people who expect a brand new lawyer to perform perfectly in court are clients, judges, and juries.

And they are the only people whose opinions matter at the end of the day.

So how do you find a mentor? Again, I was never very good at it, but here are a few tips anyway:

1. The courthouse. If you’re there all the time, try talking to other lawyers there. You might get blown off a lot, but you never know who you might meet.

2. Local bar associations. Many cities and towns have their own lawyer organizations that offer opportunities for CLE, networking, and even mentoring. Some even have official mentoring programs.

3. Actually, that’s a long enough list for now.

Where should you not go to find a mentor? A few places spring to mind:

1. Craigslist


3. Bus stops

4. Bars frequented by college students

5. Me

As a final note, if you are in court, arguing an objection, and you suddenly realize that you just recited nearly-verbatim an objection you heard Jack McCoy make on “Law and Order,” it is time to get a mentor. Or a new career. Up to you.

UPDATED (03/23/2012): Corrected an unfortunate spelling error.

Photo credit: ‘Manta Ray, Kona Coast, Hawaii’ by SteveD on Flickr.


Rich Guy Does Something Creepy: Deluxe Edition

Polo playersJust sit with this story for a while:

A wealthy Florida man has adopted his 42-year-old girlfriend as a daughter in a move critics say will protect the man’s assets during an upcoming lawsuit surrounding a deadly car accident.

Polo Club Palm Beach founder John Goodman, 48, adopted his longtime partner Heather Laruso Hutchins in October, The Palm Beach Post reports.

The strategy could shore up Goodman’s wealth as he confronts a wrongful death lawsuit filed by the parents of Scott Patrick Wilson, The Associated Press says. Wilson was killed in 2010 when Goodman allegedly ran a stop sign. The trial begins March 27.

Goodman had previously set up a trust for his two minor children. If Wilson’s parents win their civil suit, they cannot receive any compensation from the trust, The Post reports.

Hutchins, as Goodman’s third legal child, is now entitled to a third of the money in the trust. However, another court could later rule that Hutchins isn’t entitled to a share of the trust, Fox News reports.

A lawyer for the Wilson family claims it’s a ploy for Goodman to keep money for himself. But Dan Bachi, Goodman’s lawyer, told The Palm Beach Post, the adoption is to guarantee his children’s future and denied that it was spurred by the lawsuit.

He’s now dating his daughter. There, I said it. Based on my reading of Florida criminal statutes, this does not legally constitute that thing that begins with the letter “i.” It still seems creepy. And opportunistic. Also, what happens if they break up?

Photo credit: By Siddha (Own work) [Public domain], via Wikimedia Commons


Plotting the murder of your child could cost you your visitation rights. Who knew?

A judge in Connecticut has denied visitation rights to a man who served two years in prison due to a murder/suicide plot involving his child.

Judge Frank D’Addabbo Jr. ruled against Daniel Swoverland, who served just under two years for the plot to kill his daughter and himself. Swoverland had laid out funeral clothes, wrote a note saying where the bodies could be found, armed himself with a gun and took his daughter to Halls Pond in Ashford. State police found father and daughter, unharmed, in his car after the two had left the pond.

I now present my reasoned, detailed legal analysis of the judge’s ruling in this case:

Well, duh.

I believe in second chances (I think I probably say that a lot on this blog). It is entirely possible that Swoverland has fully paid his debt to society and is truly reformed. But this is not about his rights.

This is about his daughter’s right to not be around people who have tried to kill her. The key consideration in any child custody determination is the “best interest of the child.” It is an ill-defined, subjective concept almost entirely left to the discretion of the trial judge, but it is also the best standard anyone has been able to come up with.

By all accounts, the Judge D’Addabbo looked at every possible perspective and did not just railroad Swoverland. Swoverland and his attorney also only asked for highly-supervised visitations. Still, it seems hard to argue that the child’s best interests are served by some time away from dad. The door is open for future visitation, but only when the child is ready.

The judge adopted the position of the sentencing judge, Superior Court Judge Joan Alexander, who held open the prospect of visitation at some future time, but only when the daughter, 8 at the time of the crime and now 12, was old enough to protect herself and seek help if she felt threatened or uncomfortable. D’Addabbo noted that Alexander envisioned that the child would be at least 18 before any visits occurred.

Even the mom agrees that some visitation should occur someday. But not now. This case is a good, albeit extreme, example of when a parent’s rights to their child are secondary to a child’s “best interest.”


“Bad mothering” can lead to even worse lawsuits

The world is full of bad parents. Some parents give their daughters a new car that’s the wrong color. Others lock them in the basement and father multiple children by them over decades. There is obviously a vast, yawning gulf between those two examples, but I think it is fair to say that the legal system only needs to intervene in cases closer to that utter waste of genetic code from Austria.

Others may disagree with me.

Others like Steven A. Miner II and Kathryn R. Miner, feeling dissatisfied with a childhood free of basement imprisonment but also devoid of clever birthday cards, may decide to sue their mother, Kimberly A. Garrity, for the emotional distress caused by  such omissions (h/t Geri Dreiling).

What horrible acts gave rise to their claim? The Chicago Bar Tender blog reported at the time the suit was filed:

- Garrity will invite one child to an event without inviting the other.

- Garrity would purchase things for Kathryn without purchasing anything for Steven.

- Garrity offered to provide college financial assistence to Steven and not Kathryn.

- Garrity did not provide Christmas or birthday gifts to Steven from 1996 through 2005 or Kathryn in 2007.

- When Steven took back a popsicle jewelry box he made Garrity, she called the police because she asserted there was a diamond necklace in it.

- Garrity told Steven that if he didn’t wear his seatbelt, she would drive to a local police station and tell the cops.

- Garrity smacked Steven on the head for no reason in 1994.

- Garrity did not provide “so much as a care package to Steven while he was away at college, while other parents send their children items and packages on a continuous basis.”

- Garrity “refused to assist Kathryn with the purchase of a dress but, provided Kathryn with the use of an automobile for homecoming; and then proceeded to contact her at midnight while she was with her friends and made her return the automobile.”

Photo by Scott Liddell

I picture the Miners' childhood being exactly not like this (photo by Scott Liddell)

I read the complaint, and while it sounds like there was certainly a strained relationship between the children and their mother, nothing sounds too different from the thousands (if not millions) of other children of divorced parents around America. Some of the allegations relate to payment of child support and reimbursement of medical expenses, claims usually made by the other parent or the state (but maybe Illinois is different). Lest you wonder where their father has been through all of this, don’t worry. He’s one of the kids’ lawyers.

Maybe their childhood really was pretty awful. I know for a fact that it is hard to view one’s own childhood through a perfectly objective lens. We tend to remember our childhood with a child’s mind, not a rational adult mind, no matter how old we are. Still, once you are an adult, you are supposed to be able to deal with life on life’s terms, or to seek help from those qualified to offer it. A crappy childhood is not an excuse for misbehavior as an adult (except in some pretty extreme circumstances). The plaintiffs in this case are adults–barely adults, but adults nonetheless. They don’t need a lawyer to confront their maternal abandonment issues. They clearly need better therapists. However bad their childhood may have been, this is not the way to deal with it.

This is really, I suspect, just a case of a post-divorce parenting plan that did not work out very well. Happens all the time. It doesn’t sound like Garrity would have ever won any mothering awards, but that’s not exactly actionable. They allege some abuse by the mother but never really delve into it. Is this some contorted way of confronting real childhood demons, or a couple of teacup children acting out? I guess we’ll never know.

And what the H-E-double-hockey-sticks was their dad doing helping with this???

The case was dismissed, and the plaintiffs appealed. No, really.

An appellate court dismissed the appeal this week, renewing some semblance of my faith in our judicial system.

“Such alleged actions are unpleasant and perhaps insensitive, and some would arguably fall outside the realm of ‘good mothering,’ but they are not so shocking as to form a basis for a claim for intentional infliction of emotional distress,” said Judge Kathy Flanagan in a court statement, adding that ruling in favor of the children ”could potentially open the floodgates to subject family child rearing to … excessive judicial scrutiny and interference.”

Garrity’s lawyer had some choice words as well:

In court papers, Garrity’s attorney Shelley Smith said the “litany of childish complaints and ingratitude” in the lawsuit is nothing more than an attempt by Garrity’s ex-husband to “seek the ultimate revenge” of having her children accuse her of “being an inadequate mother.”

“It would be laughable that these children of privilege would sue their mother for emotional distress, if the consequences were not so deadly serious” for Garrity, Smith wrote. “There is no insurance for this claim, so (Garrity) must pay her legal fees, while (the children) have their father for free.”

On very rare occasions, “loser pays” doesn’t sound like such a bad idea.


Lame practical jokes: post-divorce edition

I’m not sure this story even needs my commentary:

Saying his ex-wife Isa had always wanted a “big rock,” Dany Lariviere of Montreal gave her one last weekend for her birthday. She will not be wearing it on her finger, though, because it weighs about 20 tons:

Bonne Fete

Bonne fête, Isa

As you may have surmised, the two have not been getting along very well since they were divorced last year, after being married for ten years. Apparently they have continued to argue about financial and custody matters, and each has accused the other of harassment. From the report it’s not really possible to tell who has the better argument there, although I guess Lariviere has now dropped off 20 tons of evidence that it’s not him.

He may have a hard time convincing a court of law that he is not being harassing, I suspect. Incidentally, he is the mayor of the town where they live, and he owns an excavation company and a quarry. Even if he didn’t admit to doing it…

Do people get all of their ideas about how to behave in a divorce from TV? It’s as though this guy watched The War of the Roses without realizing it was supposed to be a comedy.


Sexy pics online = custody trouble

Photo by radioher

Yeah, like I was going to post one of the photos from the case (photo by radioher)

Here’s an interesting case that was discussed at the Family Law CLE last week. In In re: J.A.S., a case in the Texas 11th District Court of Appeals, a mother appealed the trial court’s ruling that the father be named the parent with the exclusive right to establish the child’s residence (in English, the court said the child could live with the father instead of the mother). The trial court based its decision in part on testimony and evidence that the mother had posted photos of an erotic nature of herself on, and that the child’s best interest would not be served by remaining with the mother. The appeals court ruled that there was no abuse of discretion in considering evidence of the photos:

There was no evidence that [the child] had seen or was otherwise aware of any of the photos. But the fact that someone would post photographs like these of oneself on an internet website has some relevance because it bears upon their character. The trial court could, therefore, consider the photographs when making its best interest determination.

The court noted that there were other factors introduced that were relevant to the question of the mother’s character, including claims of fraud and attempts to alienate the child from the father. The issue on appeal was the pictures, though. Lawyers, divorce lawyers in particular, have been hearing about the dangers of social media for as long as there has been social media. Perhaps this is just an extreme example of how the things you do online can come back to haunt you.

I am curious, in a purely hypothetical way, about whether the online photos by themselves would have raised sufficient character issues for the trial court, or if they only worked in conjunction with the fraud issues to convince the court. The court acknowledged that tghere was no evidence of any harm to the child, and I’m not sure what potential harm could be alleged. Personally, I think a person can have unusual hobbies and still be a very good parent, but it’s still probably not a good idea in general to post nude pictures online. Be warned, dear reader(s).


When “best interest of the child” meets the First Amendment

A Pennsylvania man has started a free speech debate, of sorts.

A bitter, divorced Pennsylvania man’s blog has triggered a free-speech debate, officials say.

Doylestown resident Anthony Morelli created his blog,, in 2007 as a way to blow off steam about his ex-wife, The Philadelphia Inquirer reported Sunday.

But then his ex-wife, Allison Morelli, found out about the Web site and became very upset, calling it “heartbreaking” and potentially harmful to their 9- and 12-year-old sons.

At a June 6 custody hearing, Bucks County Court Judge Diane Gibbons ordered Anthony Morelli to take down the Web site and banned him from mentioning his ex-wife “on any public media” or saying anything about his children online “other than ‘happy birthday’ or other significant school events.”

At that point, Mr. Morelli did not stop posting, and the judge ordered that the site be taken down. Did this violate Mr. Morelli’s free speech rights? Many people believe it did, to the point that a campaign has begun to bring his website back:

We are asking for help in this defense because it is an issue that faces any parent that is divorced. Imagine a judge telling you that you cannot talk about your children on “any public media” – which would include things like Facebook updates, Twitter, or your personal blog – or you will lose custody.  Imagine the far-reaching consequences for bloggers everywhere if orders such as this one are left unchallenged?  There goes your online support group.  There goes your Facebook and Twitter updates.  Your website, personal OR commercial – ordered gone under threat of incarceration and having your beloved children removed from your custody.  This order flies in the face of our civil rights, and your civil rights, too! Imagine trying to protect your children from abuse and a judge telling you that you must hide the abuse and protect the abuser by not allowing you to talk about the abuse in public, we can’t let this stand.

While you're busy blogging, your children might be lost in a cornfield!

This does not appear to be a question of defamation, in that I don’t think the mother is specifically charging that statements on the blog were untrue, but rather that they would be harmful to the parties’ children if the children saw them. Most states, Pennsylvania included, follow the “best interest of the child” doctrine when determining child custody and orders relating to parenting. The question is, does the best interest of the children trump the father’s First Amendment rights?

I am very hesitant to support curtailing anyone’s freedom of speech and expression based on the extremely fuzzy “best interest” standards. In my experience, though, judges often place “best interests” above any rights of the parents, basic common sense, and the laws of gravity. Since I cannot directly review the blog in question, all I can say is that it seems to have contained some rather unpleasant stuff (just as anything at the forefront of a free speech debate does). I can see how the contents of the blog would be relevant to an ongoing custody case, since the nature of the parents’ relationship affects the children  on a daily basis. I can see a judge exercising some sort of review to make sure neither parent is defaming the other (in any medium, really). To issue a blanket injunction against most forms of communication with (or about) the children, though, does not sit well.

The blog seems petty, to me at least. Even if his ex-wife is a psycho, he is taking the low road. The point is that the low road ought to be his to take if he wants.


One of the (many) dark sides of divorce litigation

A friend and colleague sent me a link to an article about adultery issues in divorce cases in Texas.  The article, from the Beal Law Firm in Dallas, Texas, addresses issues that rarely if ever come up in my cases, but that got me thinking about how much I value collaborative law and the collaborative process.

A good litigator will always look for the facts or legal principles that will best serve their clients’ interests.  At the same time, a litigator wants those facts or legal principles to negatively impact the opposing parties.  Litigation is usually a zero-sum game this way; if it helps my client, it probably hurts the other guy.  This is often why litigation is such a poor mechanism in many (not all) divorce matters.  These are not litigants in a business dispute or opposing sides of an auto accident.  These are people who are married, who once felt confident enough to stand up in front of their family and friends and recite vows.  When such a relationship ends, as many must, is it ideal to impose a zero-sum framework like litigation?  While it may be unavoidable in some cases, I would say no, it is not ideal.  The article begins with a thought that could apply to any financial dispute as easily (if not more easily) than a marriage:

When those clients [whose spouses have committed adultery] come in, the first question any creative attorney would ask himself is, “What can I do to gain an advantage and really give the other side something to lose?  You want something more than just the threat of a “disproportionate division” using adultery as a fault ground – that’s often not much of a threat.  “I’ve got it, there must be a Tort that will work,” you think.  Maybe there is.

The article goes on to describe various civil tort claims (claims for injury or negligence) that have been brought against a spouse who has committed adultery, or even against the person who was the other party to the adultery.  The gist of the article is that such claims are generally barred in the state of Texas, either by statute or by court ruling.

Make no mistake, it is not for anyone, let alone me, to discount the emotional (and perhaps financial) toll when a spouse has committed adultery.  Perhaps the lack of trust that would obviously result would make such a divorce a poor candidate for collaborative law.  What this article brings home for me is the type of situation in which the collaborative model would not work at all.

I would therefore add “significant distrust” to the list of situations in which litigation in a divorce is necessary. Elizabeth J. Kates, writing for Collaborative Lawyers, Inc., offers an excellent summary of the types of cases where collaborative just won’t work:

[T]here are cases for which collaborative law is not appropriate. These would include cases involving serious domestic violence or coercive control, elder abuse, child abuse, or mental illness. Additionally, if one party can intimidate the other because of matters other than the issues involved in the case, collaborative law would not be appropriate.

The key is deciding whether any of the above factors present a “point of no return,” where the risks inherent in pursuing litigation in something as personal as a divorce case are outweighed by the risks of trusting the other spouse or leaving oneself open to further abuse or duress by that spouse.  I suspect (without any real scientific backing, I realize) that cases where litigation is absolutely necessary are not the norm.

I therefore wish to respectfully disagree with at least one point of the above-quoted article: where the author argues that “any creative attorney” would first ask how to gain an advantage in a divorce case, I believe the first question should be whether looking for an advantage is even necessary.


Two things you should know about divorce (part 2)

Last week, I talked about the first of two things you should know about divorce: that a divorce is a lawsuit just like any other lawsuit, with lawyers, judges, document review and (if you’re on television) dramatic background music. Now let’s move on to the second thing you should understand about divorce: that it is unlike any other kind of lawsuit under the sun.

2. A divorce is nothing like a lawsuit

In a typical civil lawsuit, after a trial there is a clear winner and loser: person A sues person B for breaching a contract, and the jury finds for person A and awards him/her damages. In a suit for divorce and/or child custody, there are too many issues and too many “shades of gray” for a simple winner/loser analogy. Suppose a wife and mother “wins” custody of her children, but the husband/father is ordered to pay ½ the amount of child support that she had requested? Suppose each spouse wants the house awarded to them, and a judge orders the house sold and the proceeds split 50/50?

When filing a lawsuit, a lawyer (or plaintiff) must state claims for which a court is allowed to provide a remedy—this could include breach of contract, negligence, assault & battery , and so on. A divorce suit can include claims such as these, such as fraud or assault, but most of the time they present completely different sorts of questions: how to divide the assets (made even more complicated in community property states like Texas), and how to deal with the task of parenting children post-divorce. These issues are very different from those found in any other type of lawsuit.

Another difference involves the parties to the suit themselves—in a suit for, say assault & battery, once the lawsuit is resolved, it is unlikely that the two parties would want anything to do with each other, and there is often no reason to think they would need to see one another again. After a divorce, it may be inevitable that the now-ex-spouses will continue to see one another for some time, especially if there are children involved. If parents of an infant go through a nasty divorce, they still have 18 or more years of interacting with one another in order to raise the child (this of course assumes both parents want a role in raising the child, but courts usually don’t give a parent an out on this issue, and I like to believe that parents will stick around for their kids in some form or another.) The sort of animosity usually developed in a lawsuit does not serve the parties to a divorce well.
In many, but not all, non-divorce lawsuits, a court is being asked to make a decision based on past events, reviewing whether one party is entitled to compensation in some form for a past act. Divorce undoubtedly involves acts and events from the past, but there is a key component that solely involves the future—in particular, the future of the spouses’ care for the child(ren). By taking a divorce and/or child custody dispute before a judge, spouses/parents are asking a stranger, who has never met these people before and may never see them again, to make decisions affecting huge parts of their lives and their child(ren)’s lives. My particular county, Travis County, Texas, has a central docket system , meaning that you may not know for certain who your judge will be until the day of your trial. It is one thing to ask a judge you have never met to decide whether events occurring a year ago constitute a breach of contract. It is quite another thing to ask that judge to decide how best to handle your child’s future summer vacations.

So how can a divorce be handled differently?

I am not arguing that every divorce case should be handled outside of the litigation model. For example, cases of abuse, fraud, or extreme emotional volatility are best handled within the court system.

For many divorcing spouses, there is a better way.

Collaborative law allows spouses to work out the issues of a divorce in an environment specifically designed to facilitate communication, as opposed to the lawsuit environment. Even in a mediation or settlement conference in a regular divorce lawsuit, the implicit threat of a court hearing is always just below the surface. Collaborative law involves a commitment to conflict resolution—only the spouses and the professionals they have chosen to assist them are involved in the process. Ideally, by the end of the divorce itself, the spouses can still work together on any matters requiring their attention, most obviously their children.

Make no mistake: divorce is an unhappy, emotional process. In the absence of serious conflict, it does not have to be war.


The family lawyer's nightmare

funny pictures
moar funny pictures