In the nearly two years I have been absent from the blogosphere (from November of 2009 until today), I have noticed a number of good Massachusetts legal blogs that either weren't around before, or just hadn't caught my attention yet. There are in particular two I would suggest that you check out, and add to your blogroll as well:
1) Scaling the Summit: A Family Law Blog. This blog is primarily the work of Justin Kelsey and his associate Jonathan Eaton and is published by their law firm, Kelsey & Trask in Framingham. Much thought and analysis has gone into this blog, and there is very helpful information about recent, and pending, legislation in the area of alimony reform (which is about to become law at last) and proposed custody law reform.
2) Massachusetts Elder Law Blog. This is an excellent blog I have recently enjoyed reading by elder law attorney Sasha Golden of the Golden Law Center, a practice devoted to elder law and disability planning in Needham.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Showing posts with label Guardianship. Show all posts
Showing posts with label Guardianship. Show all posts
Men As Caregivers
There was an interesting blog post by Leanna Hamill at the Massachusetts Estate Planning and Elder Law Blog yesterday commenting on a recent report that more men have in recent years taken on caregiving roles for aging parents or other relatives: Massachusetts Estate Planning and Elder Law: More Men Taking Over the Caregiving Role. It's interesting to see that just as men have become more active in recent years in caring for children, they are also becoming more active in caring for aging parents as well.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.EXCERPT, MASSACHUSETTS ESTATE PLANNING & ELDER LAW BLOG:
The image of a caregiver for an aging parent or relative is usually a woman in her 40's or 50's who is raising her own children, probably working outside the home, and then trying to care for her aging loved one at the same time. But according to a recent article in the New York Times, more men are serving as caregivers than ever before.
[Quoting the New York Times - link directly above:] "The Alzheimer’s Association and the National Alliance for Care- giving estimate that men make up nearly 40 percent of family care providers now, up from 19 percent in a 1996 study by the Alzheimer’s Association. About 17 million men are caring for an adult.
Often they are overshadowed by their female counterparts and faced with employers, friends, support organizations and sometimes even parents who view care-giving as an essentially female role. Male caregivers are more likely to say they feel unprepared for the role and become socially isolated, and less likely to ask for help."
....
Massachusetts Legislature Acts to Reform Child Abuse Laws, Prevention Measures, and Bureaucracy
Here's the best article I could find on the very important bill passed by the Massachusetts House and Senate on Tuesday, reforming child abuse laws and prevention within this state: Worcester Telegram and Gazette, by John Monahan: Child abuse protections approved/Legislature redefines laws, intervention. (It is interesting that when both the Boston Globe and the Worcester Telegram and Gazette - the New York Times-owned newspapers of our two biggest cities - run similar legal stories about a development in family law or crime, it is often the considerably smaller Worcester paper which has the more comprehensive and better article.)
The bill, which is expected to be signed by Governor Patrick, will among other things formally establish the Office of the Child Advocate in the governor's office (this office was actually already created by Governor Patrick by executive order as earlier discussed on this blog), give college benefits to children in foster care, and make many other changes designed to improve the Department of Social Services (DSS) - which the law will in fact rename "Department of Children and Families."
Unfortunately, as State Rep. James J. O’Day, himself a former DSS social worker, points out in the article (see the end of the excerpt below), the bill doesn't exactly put its money where its mouth is. The overburdened and often incompetent DSS will now be mandated, as the newly named DCF, to improve its performance, raise its standards, and do more work. But how exactly will that be possible if we do not also pay for more, and better, social workers to do the extra work? New rules and new methods of oversight can only do so much.
It's certainly hard to ask for more tax money for abused children, especially in a down economy, even here in Massachusetts. After all, it's been a long time since Bill Clinton declared that the era of Big Government is over. (And of course, the era of Big Government is indeed still over, at least for welfare and social services, though not for corporate welfare and federal war spending... but I digress.)
I am afraid this new law will prove far less effective than it promises to be, much like other unfunded, or underfunded mandates, such as No Child Left Behind. But I sincerely hope I am wrong about that.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
The bill, which is expected to be signed by Governor Patrick, will among other things formally establish the Office of the Child Advocate in the governor's office (this office was actually already created by Governor Patrick by executive order as earlier discussed on this blog), give college benefits to children in foster care, and make many other changes designed to improve the Department of Social Services (DSS) - which the law will in fact rename "Department of Children and Families."
Unfortunately, as State Rep. James J. O’Day, himself a former DSS social worker, points out in the article (see the end of the excerpt below), the bill doesn't exactly put its money where its mouth is. The overburdened and often incompetent DSS will now be mandated, as the newly named DCF, to improve its performance, raise its standards, and do more work. But how exactly will that be possible if we do not also pay for more, and better, social workers to do the extra work? New rules and new methods of oversight can only do so much.
It's certainly hard to ask for more tax money for abused children, especially in a down economy, even here in Massachusetts. After all, it's been a long time since Bill Clinton declared that the era of Big Government is over. (And of course, the era of Big Government is indeed still over, at least for welfare and social services, though not for corporate welfare and federal war spending... but I digress.)
I am afraid this new law will prove far less effective than it promises to be, much like other unfunded, or underfunded mandates, such as No Child Left Behind. But I sincerely hope I am wrong about that.
EXCERPT FROM TELEGRAM AND GAZETTE ARTICLE, BY JOHN MONAHAN:
BOSTON— The Legislature yesterday adopted broad changes in child abuse laws and prevention measures, beefing up police and social worker intervention programs, requiring closer monitoring of child abuse cases and more certain investigation requirements in cases of injured children.
Perhaps the largest change calls for the establishment of a powerful new Office of the Child Advocate in the governor’s office, independent of the state Department of Social Services, whose name is being changed by the bill to the Department of Children and Families.
Sections of the bill require the independent advocate’s office to investigate all critical incidents, receive and investigate complaints, and staff a 24-hour hot line for children in foster care. It also grants the office subpoena power to acquire witness statements and documents needed in child abuse investigations from private nonprofit agencies.
The bill is a compromise between two versions approved earlier in the House and Senate; it was adopted on unanimous votes in both chambers and sent to the governor yesterday for his review.
House Speaker Salvatore F. DiMasi said the bill followed up on findings from a House task force set up to investigate flaws in state child protection services and foster care, after revelations in the case of Haleigh Poutre, an 11-year-old foster child from Westfield.
In 2005, she was hospitalized in a coma from severe brain injuries allegedly suffered in beatings by a foster parent.
The bill would offer state assistance to pay not only tuition, but also college fees for state foster children and children adopted through the state Department of Families and Children, preventing an interruption of public services when they turn 18 as required under the existing system.
It also calls for social workers to have at least a bachelor’s degree and for supervisors to hold master’s degrees, and calls for police to investigate all cases of child injuries from the outset, and would bring police in to investigate situations that result in three child abuse complaints against a family.
Other provisions exempt information obtained by the Office of the Child Advocate from public records, and require more police training on handling minors when parents and guardians are arrested.
....
State Rep. James J. O’Day, D-West Boylston, a former DSS social worker, said while the bill improves child protection oversight and extends services past age 18 for foster children, it fails to invest in an expansion of the state’s social worker staff to provide better services and protective programs for children.
“This is not a panacea. There is always going to be, regrettably, child abuse,” he said.
“Oversight is oversight, but we need bodies out on the street dealing with families and helping families,” which is not accomplished in the bill, Mr. O’Day said.
“Without the workers to actually go out and do all the new work they are asked to do, it’s going to be an additional burden, to do more with less — the same old story,” Mr. O’Day said. “I would like to see more workers, more staffing, more services and the ability for workers to really do the work they are supposed to do with families. You can do that with 12 or 13 cases. You can’t do that with upwards of 22 cases.”
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Britney to Pay $400K to Various Lawyers
People Magazine reports that Britney Spears was just ordered to pay $400,000 to several lawyers working in various ways to manage the never-ending Britney Disaster.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Single Parenting Costs Over $112 Billion Per Year in Taxes, Study Claims
As recently reported by the Associated Press, a new study, by Georgia State University economist Ben Scafidi, and sponsored by several "marriage movement" groups, including the New York-based Institute for American Values, purports to show that divorce and unwed childbearing costs Americans over $112 billion a year in extra taxes.
But after my initial, very quick review of the report, I believe this study really does little more than highlight a correlation between single parenthood and poverty. I certainly don't think it proves that the claimed extra billions in tax costs are a direct consequence and result of single parenting itself; in the language of law school torts class, there is no "but for" causation here. Surely, divorce and nonmarital breakups are very costly to splitting families themselves, whether they are in affluent or poor neighborhoods. And yes, some of these costs, not only for the poor but also for the affluent, are passed on to the rest of us through extra taxes.
But the study seems to focus mostly on the most vulnerable of broken families and the supposed extra tax costs of welfare dependency by poor single parents. And for that lower strata of society, this may be like the question about the chicken and the egg. Which comes first, poverty or broken homes? Certainly there is a correlation, but is there causation, and if so what and where is that causation, and which way does it run? I'm not sure. I don't think this study comes close to answering those questions.
Can we really "strengthen marriage" as the sponsors of this study want to do, without first improving economic conditions for people in this segment of our society? I tend to think the critics, who suggest we would do better to focus on education and full employment policies rather than "marriage strengthening" plans, make more sense. You know, it's the economy, stupid. But on the other hand, I am sure there are in fact other, non-economic forces that contribute to the pulling of families apart, and that in turn lead to the duplicate expenses that make life so hard for them, and more costly for all of us.
So it's good that someone is seriously looking at this issue. I hope that further such studies will follow. I have only briefly looked at the study, and I already see some big problems with it, but still, there is a lot of interesting data there and it's well worth a look. You can find the study and related information about it at the Institute for American Values website here, where you can sign up to download the study for free.
EXCERPT FROM AP ARTICLE, APRIL 15, 2008:
NEW YORK - Divorce and out-of-wedlock childbearing cost U.S. taxpayers more than $112 billion a year, according to a study commissioned by four groups advocating more government action to bolster marriages.
Sponsors say the study is the first of its kind and hope it will prompt lawmakers to invest more money in programs aimed at strengthening marriages. Two experts not connected to the study said such programs are of dubious merit and suggested that other investments -- notably job creation -- would be more effective in aiding all types of needy families.
There have been previous attempts to calculate the cost of divorce in America. But the sponsors of the new study, being released Tuesday, said theirs is the first to gauge the broader cost of "family fragmentation" -- both divorce and unwed childbearing.
....
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Still More On Proposed Joint Custody Presumption
After coming out against the proposed shared custody presumption last month, the Boston Globe has just this past week, on March 11 - in a welcome, even-handed gesture - published an opinion piece by a lawyer in favor of the presumption: Don't leave fathers out of custody cases - The Boston Globe. Penned by attorney Rinaldo Del Gallo III, this op-ed article makes his case for the proposed joint physical custody presumption.
For more on this topic, see my three posts from February on the shared custody presumption, and the debate about it in the Boston Globe and elsewhere. Here's the first, the second, and the third.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
For more on this topic, see my three posts from February on the shared custody presumption, and the debate about it in the Boston Globe and elsewhere. Here's the first, the second, and the third.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Divorce and Estate Planning
All individuals who happen to be going through divorce should get an estate planning attorney to prepare for the future by helping them to plan and draft some basic estate planning documents, usually at or near the end of the divorce process. In fact, it is best to see an estate planning attorney before the divorce judgment becomes final.
For an excellent primer on this issue, please read the following series of articles from Leanna Hamill, a Massachusetts estate planning and elder law attorney from Hingham, and author of the Massachusetts Estate Planning and Elder Law Blog:
Estate Planning and Divorce - Part 1
Estate Planning and Divorce - Part 2: Post Divorce, and
Estate Planning and Divorce - Tips on Trusts for the Family Law Attorney.
Every individual's situation is different, but all people going through a divorce will have lots of reasons to hire an estate planning attorney to do an estate planning do-over, or to make a first-time visit if they have yet to do any estate planning. And more generally, most individuals with any kind of family law issues or disputes, whether in divorce or not, would be wise to get a good estate planning attorney, one who concentrates either primarily or exclusively in that area, to go over their particular situations, and provide the appropriate menu of options available to them. Fee arrangements for estate planning are more like those of criminal law than those of family law, in that flat-fee, rather than hourly billing, is the norm.
I am often asked by my clients if I can prepare wills, trusts, health care proxies, and other estate planning documents for them. As a licensed Massachusetts attorney, I can in fact do all of these things, and I have taken courses both in law school and outside of law school on estate planning and elder law, but I prefer not to take on even the most basic of such cases. Estate planning is a distinct area of practice, as are my primary areas of practice which are both in the litigation arena - divorce and family law, and criminal law. I choose, as do most attorneys, to concentrate in a few areas of the law so that I can do the best job possible. Concentrating or specializing in one or more areas of practice leads to more effectiveness and efficiency in service as it leads to greater expertise in those areas.
Many other areas of the law often intersect with family law, and that is one of the reasons I like family law. However, I often find it best, or even necessary, to refer cases or issues in other fields to practitioners in those separate fields. Sometimes, for example, I find a need to refer clients directly to attorneys who concentrate in matters of trusts and estates, in order to handle such matters as complicated trusts, education trusts, special needs trusts, or other matters. In many other cases, clients already have other attorneys for estate planning and I have found it a pleasure to work with them on behalf of the client's various needs when they are related in some way.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
For an excellent primer on this issue, please read the following series of articles from Leanna Hamill, a Massachusetts estate planning and elder law attorney from Hingham, and author of the Massachusetts Estate Planning and Elder Law Blog:
Estate Planning and Divorce - Part 1
Estate Planning and Divorce - Part 2: Post Divorce, and
Estate Planning and Divorce - Tips on Trusts for the Family Law Attorney.
Every individual's situation is different, but all people going through a divorce will have lots of reasons to hire an estate planning attorney to do an estate planning do-over, or to make a first-time visit if they have yet to do any estate planning. And more generally, most individuals with any kind of family law issues or disputes, whether in divorce or not, would be wise to get a good estate planning attorney, one who concentrates either primarily or exclusively in that area, to go over their particular situations, and provide the appropriate menu of options available to them. Fee arrangements for estate planning are more like those of criminal law than those of family law, in that flat-fee, rather than hourly billing, is the norm.
I am often asked by my clients if I can prepare wills, trusts, health care proxies, and other estate planning documents for them. As a licensed Massachusetts attorney, I can in fact do all of these things, and I have taken courses both in law school and outside of law school on estate planning and elder law, but I prefer not to take on even the most basic of such cases. Estate planning is a distinct area of practice, as are my primary areas of practice which are both in the litigation arena - divorce and family law, and criminal law. I choose, as do most attorneys, to concentrate in a few areas of the law so that I can do the best job possible. Concentrating or specializing in one or more areas of practice leads to more effectiveness and efficiency in service as it leads to greater expertise in those areas.
Many other areas of the law often intersect with family law, and that is one of the reasons I like family law. However, I often find it best, or even necessary, to refer cases or issues in other fields to practitioners in those separate fields. Sometimes, for example, I find a need to refer clients directly to attorneys who concentrate in matters of trusts and estates, in order to handle such matters as complicated trusts, education trusts, special needs trusts, or other matters. In many other cases, clients already have other attorneys for estate planning and I have found it a pleasure to work with them on behalf of the client's various needs when they are related in some way.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Fairness for Fathers -The Boston Globe Weighs In, But Doesn't Really Get It
The Boston Globe yesterday opined on the shared parenting bill, introduced by State House Representative Colleen Garry, a Dracut Democrat, and cosponsored by about 50 other legislators, including many of the legislature's most thoughtful and courageous members, as well as the progressive Fathers & Families organization. In A fair role for fathers - The Boston Globe, the Boston Globe paternalistically (or should I say "maternalistically"?) condescended to admit that the idea of shared parenting is appealing, even while it predictably rejected the idea without any convincing explanation or any alternative proposals for reform.
I myself believe that, short of other, more comprehensive reforms that would make the family court fairer to children, the shared parenting presumption proposed in this bill makes a lot of sense. Some of the reforms I would prefer to see include mandatory evidentiary hearings at the temporary orders hearing stage of all divorce and family law proceedings where physical custody is in contention, and other reforms designed to force judges actually to hear facts, presented as evidence in court, rather than to make conclusions based on short motion hearings, followed by delegation of investigatory authority to guardians ad litem, who are very often incompetent, biased, or both, after which the temporary orders often become permanent orders, without regard to what would truly be in the best interests of the children. Also, I would like to see standards raised for judges, greater accountability for judges, for judicial pay to be raised, and many other badly needed reforms to make the judicial process more competent, fair and efficient.
We need facts, and custody cases should be fact-driven, and decided on a case-by-case basis, and should not be prejudiced by procedural obstacles to having those important facts presented in court. It is interesting that the Boston Globe argument actually seems to make just this point, but in doing so quotes the very knowledgeable Professor Kindregan, with whom I usually agree, in an attempt to discredit the shared parenting initiative and to defend the status quo:
That's why there should be immediate evidentiary hearings in court when custody is in dispute, not 15-minute temporary orders hearings where no evidence is heard, but failing that, there should be no premature award of custody to one of the two parties until the facts are presented. When a couple is married, they both have custody by operation of law. It is not clear why that should so quickly be taken away from one party, right at the point of the marital split, as it so often is, before any evidentiary hearing, or trial, takes place.
Actually, the shared parenting bill aims to do much the same thing as would my proposal for more - and earlier - fact-finding, evidentiary hearings, by requiring that the court actually hear evidence and enter findings before giving sole physical custody to just one of the two parents.
Unless and until we can get the greater, more comprehensive reforms I favor, I think shared parenting presumptions, or at the very least some change in the direction of more enlightened states, such as California, and even New Hampshire, which have progressively reformed their family law language and procedure, should be implemented. I support this bill just as I have long supported affirmative action for minorities, and gay and lesbian rights, and for similar reasons: there is irrational discrimination and it needs to be remedied. We need a push in the right direction. We needed a push in the civil rights arena, and we got it with civil rights legislation and affirmative action. We needed a push for gay and lesbian couples and the Supreme Judicial Court gave us one.
Let's face it. If decisions have to be made without the presentation of facts, presented by witnesses under oath, under cross examination, "temporary" custody decisions will necessarily be made based on less reliable things, including self-serving he-said, she-said allegations in short motion hearings by attorneys about what the facts will supposedly show at trial. In such cases, there will always be presumptions or assumptions. The question then becomes: What kind of presumptions or assumptions do we want to have?
Indeed, in the absence of such a presumption of joint physical custody, or shared parenting, we will continue to have the unstated, actual presumption or assumption that favors the illusory status quo, that unstated assumption that purports to keep things as closely consistent with how they appeared to have been before the splitup by keeping things as they appear to be now, i.e. the children would remain as they happen to have been placed through the chaotic, anarchic process of domestic splitups, which far too often leave the children under the sole control of the mother. Of course, often the children happen to be with the mother during this anarchic process because the mother is and was in fact the primary caregiver and the more active parent; however, when that is true, the mother should not suffer on account of a requirement that the court actually look at the facts and make findings before awarding custody to her alone. (Indeed it should help her to fend off, very early in the litigation process, any frivolous claims for custody.)
Yes, now we need a push in the family law arena that we can accomplish through a change in the language and attitude of family law. Such a change would help people, including our decision makers, to see the light and stop discriminating in the inadvertent, unthinking way they often do. But the dilemma, I'm afraid, is that we may in fact need more people to see the light before any changes will be made. There are several facts that a majority of voters will probably need to acknowledge before any real reform will happen, and to do so, they will have to open their minds and overcome their predilection to side unthinkingly with the politically correct:
I have hope as I see some improvement in the attitudes and wisdom of members of the family law community, and I feel very encouraged by the success of organizations like Fathers & Families. However, I really strongly believe that we should do our best to effect the best interests of children in every case, and unfortunately, the best interests of the children are actually not being served in many, many cases. Frankly, and to put it bluntly, too many children are being placed with their mother when they should instead be placed with their father, and even more children are being placed solely with their mother when they should instead be placed with both parents in a shared parenting arrangement. Although I would prefer more comprehensive reforms, as I have indicated, I certainly believe this proposed shared parenting law would help us to achieve the best interests of many more children than we now do.
Over the years, as I have practiced family law in Eastern Massachusetts, representing both women and men, in every kind of situation - mothers with sole physical custody, fathers with sole physical custody, and both mothers and fathers with joint physical custody - I have watched this state adopt progressive reforms benefiting gay and lesbian couples, while simultaneously failing to make equivalent progress, and real justice, for the vastly greater number of children, mothers, and fathers who come from "traditional" homes with a father and a mother.
Massachusetts is my adopted, not my home, state. I have often been attracted by the progressive spirit of this state, but perplexed often by its seemingly contradictory, traditional, conservative, even reactionary forces. I find in the family law field that this contradictory nature, this strange blend of progressive and regressive forces, may be responsible for the strange alliance and synergy I have witnessed between traditionalists - and I mean in fact "paternalistic" traditionalists - and radical feminist ideologues who have demonized men, often without any sense of reality. It is in part this strange combination of forces, and distorted ideas, that has led to the inequality so obvious in family court today.
Of course, there are many people who are, and will continue to be, in denial about these basic facts. There are actually even some women's groups who claim they are still discriminated against in family court. It wasn't that long ago that they were, but now it is men who are discriminated against in family court. However, real gender equality, like Cathy Young has advocated, is what we need, and it will require all of us, not least of us opinion makers such as the Boston Globe, to understand and acknowledge reality, both that of the workplace and that of the home. Until then, we will continue to watch real progress on this front take place in other states like neighboring New Hampshire.
But why, I wonder, can't we have feminism, fathers rights and gay rights all at once? They are not mutually exclusive. We have the potential to be the best state in the nation, in terms of equality, tolerance and acceptance in our family and social life. I mean, can't we all just get along? Am I just a crazy dreamer?
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
I myself believe that, short of other, more comprehensive reforms that would make the family court fairer to children, the shared parenting presumption proposed in this bill makes a lot of sense. Some of the reforms I would prefer to see include mandatory evidentiary hearings at the temporary orders hearing stage of all divorce and family law proceedings where physical custody is in contention, and other reforms designed to force judges actually to hear facts, presented as evidence in court, rather than to make conclusions based on short motion hearings, followed by delegation of investigatory authority to guardians ad litem, who are very often incompetent, biased, or both, after which the temporary orders often become permanent orders, without regard to what would truly be in the best interests of the children. Also, I would like to see standards raised for judges, greater accountability for judges, for judicial pay to be raised, and many other badly needed reforms to make the judicial process more competent, fair and efficient.
We need facts, and custody cases should be fact-driven, and decided on a case-by-case basis, and should not be prejudiced by procedural obstacles to having those important facts presented in court. It is interesting that the Boston Globe argument actually seems to make just this point, but in doing so quotes the very knowledgeable Professor Kindregan, with whom I usually agree, in an attempt to discredit the shared parenting initiative and to defend the status quo:
Charles Kindregan, a law professor at Suffolk University, soundly argues that a presumption of joint legal and physical custody could handcuff judges who should be free to consider the best interests of children on a case-by-case basis. "You don't need a presumption when you have facts," Kindregan says. The relevant facts include children's age, temperament, emotional development, and medical needs, as well as how parents get along and how far apart parents live from each other.Amen. Well, of course we need facts. I agree you don't need a presumption when you have facts. That's why I think we should hear the facts immediately. Without facts, there will be presumptions or assumptions that govern behavior, whether written into the law or not, and these presumptions or assumptions will lead to "temporary" custody orders that are hard to change. The problem is the current system generally presents obstacles and long delays for those who would benefit in the early presentation of those facts.
That's why there should be immediate evidentiary hearings in court when custody is in dispute, not 15-minute temporary orders hearings where no evidence is heard, but failing that, there should be no premature award of custody to one of the two parties until the facts are presented. When a couple is married, they both have custody by operation of law. It is not clear why that should so quickly be taken away from one party, right at the point of the marital split, as it so often is, before any evidentiary hearing, or trial, takes place.
Actually, the shared parenting bill aims to do much the same thing as would my proposal for more - and earlier - fact-finding, evidentiary hearings, by requiring that the court actually hear evidence and enter findings before giving sole physical custody to just one of the two parents.
Unless and until we can get the greater, more comprehensive reforms I favor, I think shared parenting presumptions, or at the very least some change in the direction of more enlightened states, such as California, and even New Hampshire, which have progressively reformed their family law language and procedure, should be implemented. I support this bill just as I have long supported affirmative action for minorities, and gay and lesbian rights, and for similar reasons: there is irrational discrimination and it needs to be remedied. We need a push in the right direction. We needed a push in the civil rights arena, and we got it with civil rights legislation and affirmative action. We needed a push for gay and lesbian couples and the Supreme Judicial Court gave us one.
Let's face it. If decisions have to be made without the presentation of facts, presented by witnesses under oath, under cross examination, "temporary" custody decisions will necessarily be made based on less reliable things, including self-serving he-said, she-said allegations in short motion hearings by attorneys about what the facts will supposedly show at trial. In such cases, there will always be presumptions or assumptions. The question then becomes: What kind of presumptions or assumptions do we want to have?
Indeed, in the absence of such a presumption of joint physical custody, or shared parenting, we will continue to have the unstated, actual presumption or assumption that favors the illusory status quo, that unstated assumption that purports to keep things as closely consistent with how they appeared to have been before the splitup by keeping things as they appear to be now, i.e. the children would remain as they happen to have been placed through the chaotic, anarchic process of domestic splitups, which far too often leave the children under the sole control of the mother. Of course, often the children happen to be with the mother during this anarchic process because the mother is and was in fact the primary caregiver and the more active parent; however, when that is true, the mother should not suffer on account of a requirement that the court actually look at the facts and make findings before awarding custody to her alone. (Indeed it should help her to fend off, very early in the litigation process, any frivolous claims for custody.)
Yes, now we need a push in the family law arena that we can accomplish through a change in the language and attitude of family law. Such a change would help people, including our decision makers, to see the light and stop discriminating in the inadvertent, unthinking way they often do. But the dilemma, I'm afraid, is that we may in fact need more people to see the light before any changes will be made. There are several facts that a majority of voters will probably need to acknowledge before any real reform will happen, and to do so, they will have to open their minds and overcome their predilection to side unthinkingly with the politically correct:
1) Most judges are, like all of us, stuck in the past, and limited by their own experiences growing up in a more conservative, traditional world, in which mothers were presumed to be the better caregivers. But as the saying goes, the more things change the more they stay the same. Although judges are getting better and better about acknowledging the expanded role of fathers in children's lives and in entertaining the possibility of shared or even sole physical custody for fathers, they are still, like most of us, stuck in the past, and are, like all of us inclined to decide based on their hunches, biases, and their limited life experiences, when they don't actually see all the facts.
2) Mothers are not necessarily better caregivers, and many fathers are far better caregivers than the mothers.
3) It is very hard, and it takes a long time if it ever even happens, to have the facts presented in court in custody cases. Usually witnesses and evidence are not ever presented, as by the time the parties can proceed to trial, the result is already a forgone conclusion, based on the precedent set by temporary orders and preliminary custody determinations and agreements made without the benefit of any evidentiary hearings on the matter.
4) A mother is more likely to get custody, even in situations where the father is the better parent and the children would be better off with him. All other things being equal (such as access to financial resources to fight, ability to parent the children, level and degree of parenting involvement with the children), mothers have an unequal advantage, and are in a much superior bargaining position in custody disputes.
5) The family court procedure gives advantage to the person with present control over the children, and gives the mother easier means of securing that kind of control, including but not limited to the ready availability of restraining orders, which can be, and often are, easily brought and obtained through fraudulent, false allegations. Securing this kind of control of the children through manipulation or fraud is much more available at present to women than to men, and there are many ways in which the current domestic violence system is very discriminatory toward men.
6) It is usually, but not always, true that mothers are the more involved of a child's two parents in traditional relationships, as that has historically been the case. But even in those typical situations, it is not always true that children are better off having one parent have the children 70 percent or more of the time after their parents split up. Most children will benefit from having time with both parents on schooldays and on weekends, no matter what the division of labor was in the family before their parents split.
7) Fathers had unfair advantages in custody cases, until the "tender years doctrine" and restraining orders gave the upper hand to women in this country in custody battles. The subsequent replacement of the "tender years doctrine" with the "best interests of the child" standard has not resulted in evening the scales of justice. Mothers and women generally still are strongly favored in many ways by the law itself, even though it generally appears on its face to be gender-neutral now, and are favored even more so in the way that law is implemented in family courts in this state.
I have hope as I see some improvement in the attitudes and wisdom of members of the family law community, and I feel very encouraged by the success of organizations like Fathers & Families. However, I really strongly believe that we should do our best to effect the best interests of children in every case, and unfortunately, the best interests of the children are actually not being served in many, many cases. Frankly, and to put it bluntly, too many children are being placed with their mother when they should instead be placed with their father, and even more children are being placed solely with their mother when they should instead be placed with both parents in a shared parenting arrangement. Although I would prefer more comprehensive reforms, as I have indicated, I certainly believe this proposed shared parenting law would help us to achieve the best interests of many more children than we now do.
Over the years, as I have practiced family law in Eastern Massachusetts, representing both women and men, in every kind of situation - mothers with sole physical custody, fathers with sole physical custody, and both mothers and fathers with joint physical custody - I have watched this state adopt progressive reforms benefiting gay and lesbian couples, while simultaneously failing to make equivalent progress, and real justice, for the vastly greater number of children, mothers, and fathers who come from "traditional" homes with a father and a mother.
Massachusetts is my adopted, not my home, state. I have often been attracted by the progressive spirit of this state, but perplexed often by its seemingly contradictory, traditional, conservative, even reactionary forces. I find in the family law field that this contradictory nature, this strange blend of progressive and regressive forces, may be responsible for the strange alliance and synergy I have witnessed between traditionalists - and I mean in fact "paternalistic" traditionalists - and radical feminist ideologues who have demonized men, often without any sense of reality. It is in part this strange combination of forces, and distorted ideas, that has led to the inequality so obvious in family court today.
Of course, there are many people who are, and will continue to be, in denial about these basic facts. There are actually even some women's groups who claim they are still discriminated against in family court. It wasn't that long ago that they were, but now it is men who are discriminated against in family court. However, real gender equality, like Cathy Young has advocated, is what we need, and it will require all of us, not least of us opinion makers such as the Boston Globe, to understand and acknowledge reality, both that of the workplace and that of the home. Until then, we will continue to watch real progress on this front take place in other states like neighboring New Hampshire.
But why, I wonder, can't we have feminism, fathers rights and gay rights all at once? They are not mutually exclusive. We have the potential to be the best state in the nation, in terms of equality, tolerance and acceptance in our family and social life. I mean, can't we all just get along? Am I just a crazy dreamer?
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Guardian ad Litem or Attorney for the Child?
The Family Law Prof Blog yesterday issued the following post, which in discussing a recent Iowa appellate case also pointed to several other useful sources that explore some issues regarding the appropriate roles of, and distinctions that should be made between, guardians ad litem, appointed by courts to investigate issues in custody and abuse and neglect cases, and lawyers appointed to represent children:
Family Law Prof Blog: Case Law Development: Attorney for Child May Not Act as GAL
"The confusion between the status of attorney for the child and guardian ad litem was the target of appeal in Marriage of Anderson, an Iowa Court of Appeals decision. In this case, Mother requested appointment of a guardian ad litem in a custody case. However, the trial court's response was to appoint an attorney under the Iowa statute allowing appointment of an attorney for the child. The court then rejected the attorney's report and request to testify, finding that the attorney had not been appointed as a guardian ad litem.
Read In Re Marriage of Anderson (Iowa Court of Appeals, Dec. 28, 2007) (Last visited January 7, 2008 bgf)
The case is a fine example of the continuing debate regarding the role of attorney representatives for children. The Standards of Practice for Lawyers Representing Children in Custody Cases require that a judge appointing a lawyer for a child specify whether the attorney is a “Child’s Attorney” or a “Best Interests Attorney.” The ABA’s Standards of Practice for Attorneys Who Represent Children in Abuse and Neglect Cases, while recognizing the hybrid attorney/guardian ad litem role for lawyers under certain circumstances, expresses a clear preference for the attorney for the child model. Based in part on these standards, the National Conference of Commissioners on Uniform State Laws is preparing a Uniform Representation of Children in Abuse and Neglect and Custody Proceedings Act. Professor Atwood's fine article exploring the policy choices in the uniform act can be accessed from her SSRN page: Atwood, Barbara Ann, "The New Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act: Bridging the Divide Between Pragmatism and Idealism" . Family Law Quarterly, 2007 Available at SSRN: http://ssrn.com/abstract=938211
...."
For information about Massachusetts divorce and family law, see Law Offices of Steven Ballard.
Governor Patrick Issues Executive Order Creating Watchdog Child Advocate Office
Gov. Patrick is to create an Office of the Child Advocate that will track cases of child abuse and neglect, and that will oversee the Department of Social Services, Department of Youth Services, and other agencies with responsibilities relating to children. This is a good idea, especially given the problems we have had with the performance of our state agencies. Such oversight authorities have already been set up in some other states. There is justified hope that this new office may improve the competence and effectiveness of our state agencies. See today's Boston Globe article on this news by Andrea Estes: Patrick order will create watchdog child advocate office - The Boston Globe, December 20, 2007, by Andrea Estes
"Governor Deval Patrick today will create the state's first Office of the Child Advocate, a watchdog with power to investigate allegations of child abuse and neglect and to monitor state agencies that provide services to children, state officials said yesterday.
The office will not have the broad powers of child advocates in some other states, who can issue subpoenas, hold public hearings, and even sue state agencies.
Nonetheless, Massachusetts child welfare advocates said it was an important move after a spate of high-profile abuse and neglect cases in recent years.
'Finally,' said MaryLou Sudders, president of the Massachusetts Society for the Prevention of Cruelty to Children. 'You need someone who can ask tough questions and has the backing of the governor. The office of child advocate is in response to a series of tragedies and legislative oversight hearings. There's no question about it.'
The state agency that handles foster care, the Department of Social Services, has come under fire for several high-profile tragedies in recent years. In 2005, 4-year-old Dontel Jeffers died at the hands of his foster mother. Haleigh Poutre was left comatose in 2005 after a beating by her adoptive mother, who was under DSS supervision. And 4-year-old Rebecca Riley of Hull died after being given an overdose of psychotropic medications in 2006 by her parents, who had been monitored by DSS...."
For information about Massachusetts divorce and family law, see the Massachusetts Divorce & Family Law Page of my law firm website.
"Governor Deval Patrick today will create the state's first Office of the Child Advocate, a watchdog with power to investigate allegations of child abuse and neglect and to monitor state agencies that provide services to children, state officials said yesterday.
The office will not have the broad powers of child advocates in some other states, who can issue subpoenas, hold public hearings, and even sue state agencies.
Nonetheless, Massachusetts child welfare advocates said it was an important move after a spate of high-profile abuse and neglect cases in recent years.
'Finally,' said MaryLou Sudders, president of the Massachusetts Society for the Prevention of Cruelty to Children. 'You need someone who can ask tough questions and has the backing of the governor. The office of child advocate is in response to a series of tragedies and legislative oversight hearings. There's no question about it.'
The state agency that handles foster care, the Department of Social Services, has come under fire for several high-profile tragedies in recent years. In 2005, 4-year-old Dontel Jeffers died at the hands of his foster mother. Haleigh Poutre was left comatose in 2005 after a beating by her adoptive mother, who was under DSS supervision. And 4-year-old Rebecca Riley of Hull died after being given an overdose of psychotropic medications in 2006 by her parents, who had been monitored by DSS...."
For information about Massachusetts divorce and family law, see the Massachusetts Divorce & Family Law Page of my law firm website.
Natural Parents, De Facto Parents, Psychological Parents, and Confusion in the Courts
Natural parents get custody of their children if they are fit parents. It's a pretty simple rule, and it is a basic rule of family law. But sometimes even the judges get confused on this one.
I just read the post West Virginia Mother Wins Back Legal Custody From … Babysitters in the Florida Divorce Law Blog, which described an unusual West Virginia Supreme Court case (for more, see the West Virginia Record article Supreme Court restores full custody to mother from babysitters) in which, remarkably, two trial judges and an intermediate appellate court got confused on this one, and gave custody to babysitters over the natural mother, until the West Virginia Supreme Court reversed these erroneous decisions of the lower courts. As Janet Langjahr of the Florida Divorce Blog aptly put it:
"It’s a very strange case. The kind that is hard to believe had to go up to the highest court in the state of West Virginia to get straightened out … any court at all really. It was not disputed that the mother here was fit (or at least not seriously disputed). But two West Virginia judges actually ruled that a biological mother had to share custody with distant relatives of her child, who had acted as babysitters for the child. And an intermediate level appellate court upheld those rulings. (In fact, at one point in the case, the sitters briefly had primary physical custody and the mother had visitation!) The judges found the relatives to be coparents - and therefore ordered shared parenting and rotating custody (where the child “bounces” from home to home) - before the mother could relocate to another state. On the second appeal, the Supreme Court of West Virginia reversed the courts below, ruling that the relatives had no standing to intervene in the relocation case and ordering full custody restored to the natural mother. The high court affirmed that a natural parent has the right of custody unless that parent is unfit or willfully gave up custody."
This West Virginia babysitters case reminded me of a very recent case in Massachusetts, in which a very thoughtful and well-meaning judge here was similarly reversed by the Massachusetts Court of Appeals when he created a "co-guardianship" between both the natural father, whom the judge had not found to be unfit, and the maternal aunt and uncle, in its October 29, 2007 decision in the Guardianship of Estelle (decision available at http://www.socialaw.com/slip.htm?cid=17588&sid=119), which begins:
"The biological father of the minor child, Estelle, appeals from a judgment of the Probate and Family Court granting a guardianship of the child to the child's maternal uncle and aunt, with the father appointed as coguardian. The father asserts that, given the judge's finding that he is not an unfit parent, he is entitled to outright custody of the child without the limitations inherent in the vesting of guardianship authority in others. In support of the judgment, the uncle and aunt argue that they had parented the child for seven years by the time of trial; she is happy, well adjusted and developing normally; she visits regularly with her father; and a precipitous transfer of custody would be harmful to her.We credit the judge with a sensitive attempt to sort out the complexities of the case and arrive at a compromise that was in the child's best interests. His solution, however, cannot stand as a matter of law because the father is correct that, absent a finding of unfitness on his part, the judge is without authority to require that he share parenting decisions with others...."
When natural parents are not together, that is, if they are separated or divorced, they may fight between themselves over custody, and then the issue is what is in the best interests of the children. But if there is only one natural parent available to have custody, and he or she is fighting with a non-parent, whether an aunt, uncle, grandparent, other relative, or non-relative, the question becomes: Is this natural parent fit? If so, that parent gets custody, period. Judges occasionally are confused about this basic principle of parental rights. They are so accustomed to looking at the facts of a given situation and trying to do what they think is right, because in their normal course of inquiry, in the typical kind of case they have to resolve, between two natural parents, they apply the "best interests of the child" standard, which generally allows them to place the child or children in the best of the two home environments presented to them.
As the old adage goes, tough cases make bad law. Appellate courts are supposed to prevent "tough cases" from making "bad law." These two recent cases, one from here in Massachusetts, and one from West Virginia, illustrate this very well. Appellate courts in each case had to prevent seemingly tough cases from making bad law, by reaffirming this basic principle of parental rights, which sometimes does indeed conflict with what a fact finder may find to be in the best interests of children. Parental rights sometimes trump the perceived best interests of the children, because the legal standard of parental fitness is really pretty low. If any natural parent is minimally fit, the law says he or she should win custody over a non-parent, even if the court in its fact-finding role determines that the other would-be guardian, whether a "psychological parent" or a "de facto parent" (one who may actually have truly parented the children while the minimally fit parent has been on the sidelines, and one who has in fact created a strong parental bond with the children) would be a far better caretaker of the children than the natural parent. Doesn't always seem fair or right in some situations, but that's the law. Natural parents rule. And it makes sense.
Otherwise, if we expanded the use of the "best interests of the child" standard so as to put non-parents more on an equal footing with natural parents, we would be allowing the tough cases to create "bad law" - that is, a "bad law" that would make custody contests, already an unfortunate but necessary intrusion of the state into family life, more of a free for all. Such a bad law would lead to a situation in which parental rights and authority - already greatly eroded over the years by the increasing involvement of the government and other third-parties in the lives of children and by other social developments - would be further weakened. And this kind of further weakening of parental rights is something our society and our US Supreme Court (e.g., most recently, in the Troxel v. Granville grandparent visitation case), have thus far shown they will not permit.
I just read the post West Virginia Mother Wins Back Legal Custody From … Babysitters in the Florida Divorce Law Blog, which described an unusual West Virginia Supreme Court case (for more, see the West Virginia Record article Supreme Court restores full custody to mother from babysitters) in which, remarkably, two trial judges and an intermediate appellate court got confused on this one, and gave custody to babysitters over the natural mother, until the West Virginia Supreme Court reversed these erroneous decisions of the lower courts. As Janet Langjahr of the Florida Divorce Blog aptly put it:
"It’s a very strange case. The kind that is hard to believe had to go up to the highest court in the state of West Virginia to get straightened out … any court at all really. It was not disputed that the mother here was fit (or at least not seriously disputed). But two West Virginia judges actually ruled that a biological mother had to share custody with distant relatives of her child, who had acted as babysitters for the child. And an intermediate level appellate court upheld those rulings. (In fact, at one point in the case, the sitters briefly had primary physical custody and the mother had visitation!) The judges found the relatives to be coparents - and therefore ordered shared parenting and rotating custody (where the child “bounces” from home to home) - before the mother could relocate to another state. On the second appeal, the Supreme Court of West Virginia reversed the courts below, ruling that the relatives had no standing to intervene in the relocation case and ordering full custody restored to the natural mother. The high court affirmed that a natural parent has the right of custody unless that parent is unfit or willfully gave up custody."
This West Virginia babysitters case reminded me of a very recent case in Massachusetts, in which a very thoughtful and well-meaning judge here was similarly reversed by the Massachusetts Court of Appeals when he created a "co-guardianship" between both the natural father, whom the judge had not found to be unfit, and the maternal aunt and uncle, in its October 29, 2007 decision in the Guardianship of Estelle (decision available at http://www.socialaw.com/slip.htm?cid=17588&sid=119), which begins:
"The biological father of the minor child, Estelle, appeals from a judgment of the Probate and Family Court granting a guardianship of the child to the child's maternal uncle and aunt, with the father appointed as coguardian. The father asserts that, given the judge's finding that he is not an unfit parent, he is entitled to outright custody of the child without the limitations inherent in the vesting of guardianship authority in others. In support of the judgment, the uncle and aunt argue that they had parented the child for seven years by the time of trial; she is happy, well adjusted and developing normally; she visits regularly with her father; and a precipitous transfer of custody would be harmful to her.We credit the judge with a sensitive attempt to sort out the complexities of the case and arrive at a compromise that was in the child's best interests. His solution, however, cannot stand as a matter of law because the father is correct that, absent a finding of unfitness on his part, the judge is without authority to require that he share parenting decisions with others...."
When natural parents are not together, that is, if they are separated or divorced, they may fight between themselves over custody, and then the issue is what is in the best interests of the children. But if there is only one natural parent available to have custody, and he or she is fighting with a non-parent, whether an aunt, uncle, grandparent, other relative, or non-relative, the question becomes: Is this natural parent fit? If so, that parent gets custody, period. Judges occasionally are confused about this basic principle of parental rights. They are so accustomed to looking at the facts of a given situation and trying to do what they think is right, because in their normal course of inquiry, in the typical kind of case they have to resolve, between two natural parents, they apply the "best interests of the child" standard, which generally allows them to place the child or children in the best of the two home environments presented to them.
As the old adage goes, tough cases make bad law. Appellate courts are supposed to prevent "tough cases" from making "bad law." These two recent cases, one from here in Massachusetts, and one from West Virginia, illustrate this very well. Appellate courts in each case had to prevent seemingly tough cases from making bad law, by reaffirming this basic principle of parental rights, which sometimes does indeed conflict with what a fact finder may find to be in the best interests of children. Parental rights sometimes trump the perceived best interests of the children, because the legal standard of parental fitness is really pretty low. If any natural parent is minimally fit, the law says he or she should win custody over a non-parent, even if the court in its fact-finding role determines that the other would-be guardian, whether a "psychological parent" or a "de facto parent" (one who may actually have truly parented the children while the minimally fit parent has been on the sidelines, and one who has in fact created a strong parental bond with the children) would be a far better caretaker of the children than the natural parent. Doesn't always seem fair or right in some situations, but that's the law. Natural parents rule. And it makes sense.
Otherwise, if we expanded the use of the "best interests of the child" standard so as to put non-parents more on an equal footing with natural parents, we would be allowing the tough cases to create "bad law" - that is, a "bad law" that would make custody contests, already an unfortunate but necessary intrusion of the state into family life, more of a free for all. Such a bad law would lead to a situation in which parental rights and authority - already greatly eroded over the years by the increasing involvement of the government and other third-parties in the lives of children and by other social developments - would be further weakened. And this kind of further weakening of parental rights is something our society and our US Supreme Court (e.g., most recently, in the Troxel v. Granville grandparent visitation case), have thus far shown they will not permit.
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