Thursday, December 27, 2007

Massachusetts Appellate Cases of Last Twenty Years Now Free Online

The Massachusetts Trial Court Law Libraries blog, Massachusetts Law Updates, reported here today that the Massachusetts Trial Court Law Libraries now provide online, for free to all, each and every Massachusetts appellate case, from 1986-1996, here at Masscases.com, in supplement to the effort of Massachusetts Lawyers Weekly, which already provides all Massachusetts appellate cases from 1997 to date (also free to all) on its website here. As a result, now all of the past twenty years of Massachusetts appellate cases, both Court of Appeals and Supreme Judicial Court opinions, are easily accessible for free to all online at these two websites.

"Late last summer, we surveyed our users to find out what legal information you would find most useful online. Over 68% of you wanted Massachusetts cases from the past 20 years. Cases from 1997 to date are already available on the web from Lawyers' Weekly, so over the past five months, the seventeen Trial Court Law Libraries have worked together to prepare a group of older Mass. cases to mount on the web. We are pleased to announce the availability of all Supreme Judicial Court and Mass. Appeals Court cases from 1986-1996 at http://masscases.com. Cases are accessible by citation, case name, or through a Google custom search on the site. The collection also includes hundreds of the most-cited older Mass. cases...."


For information about Massachusetts divorce and family law, see Law Offices of Steven Ballard.

Divorced Parents Do As Well As Married Parents, Canadian Study Suggests

Thanks to this recent California Divorce and Family Law blog post for pointing me to the following LiveScience article, by Jeanna Bryner, about the results of a recent Canadian study which suggests that divorced parents may be just as good at parenting their kids as married parents are: Study: Divorced Parents Do a Good Job - By Jeanna Bryner, LiveScience.

"Divorced parents do just as good a job as married couples in raising kids, a new study claims.

This new research overturns a commonly held belief that families fractured by divorced parents become inferior havens for children compared with stable homes.

'My findings that parenting practices are unrelated to divorce appear to fly in the face of accepted wisdom,' said Lisa Strohschein, a sociologist at the University of Alberta in Canada.

Some divorced couples may overcompensate for a split-up by focusing more attention on their kids, which could partially explain why divorced and married households scored similar child-caring marks.

'Some parents may overcompensate and be extra-conscientious, and there are definitely some parents who do have problems parenting afterwards,' Strohschein told LiveScience. 'But on average, parents don't change their behavior.'

Strohschein examined data collected as part of the National Longitudinal Survey of Children and Youth (NSLCY) in 1994 and 1996. The surveys followed about 5,000 Canadian children living in two-parent households as of 1994 and compared changes in parenting practices among the 200 households with subsequent divorces and those that remained intact...."



For information about Massachusetts divorce and family law, see the Divorce & Family Law Page, Law Offices of Steven Ballard.

Tuesday, December 25, 2007

In Search of the Kinder and Gentler Divorce: Mediation and Collaborative Divorce vs. "Traditional" Divorce

What is the best way to get a divorce? It appears there are more options these days than ever. What used to be called simply "divorce" is now being labeled "traditional divorce" as purportedly new methods of resolving divorce disputes are increasingly being promoted, through marketing efforts which are surfacing throughout the media.

Everywhere I turn, I am reading articles about what advocates tout as alternatives to "traditional divorce." Most of these articles appear to be warmed-over press releases from proponents of the purportedly new methods of divorce, including mediation (which is not really new but which has received a great deal of recent attention in the media), and that latest flavor of the month, which is known as "collaborative law" or "collaborative divorce." Mediation and collaborative law may be the right choice for some divorcing individuals, but they will definitely be the wrong choice for many others.

On December 19, the following article, by Associated Press writer David Crary, appeared everywhere, or at least in two of the many reading spaces I regularly visit, namely, the Worcester Telegram and Gazette - Worcester Telegram & Gazette: "Divorce doesn’t have to mean going to war in court; Collaborative approach or mediation replacing more costly litigation," By David Crary, Associated Press, December 19, 2007 - and Findlaw.com. This Associated Press article is a great place to start if you want to know something about collaborative law and particularly if you want to know how its champions are promoting it.

To get a more balanced perspective, however, you should also read Caryn Tamber's recent article in the Maryland legal periodical, the Maryland Daily Record, Maryland Daily Record: "Proponents love it, but traditional divorce lawyers see little use for ‘collaborative divorce’" by Caryn Tamber, which examines some of the most troubling problems, both practical and ethical, with the collaborative law method, and projects a helpful spotlight on the inflated claims and hype surrounding collaborative law.

Last week, when I first saw the AP article in the online version of the Worcester Telegram and Gazette, I also did the accompanying online collaborative law poll on that website (see below). This poll had only a small sample of respondents (60 including me) at the time I did the poll to get the results you see here. Nevertheless, these results, which show far less faith in the success of collaborative law than the accompanying article does, may be closer to the truth than the article is. Of course, neither the poll nor the article is scientific, and neither provides the answer to the question of whether collaborative law will be successful in any given case.



"STAY OUT OF COURT!" EVERYBODY SAYS

Most people, including even "traditional" divorce litigators like me, are fond of saying it is best to resolve differences and settle divorces "out of court." Indeed, I think lawyers are the most likely to want to avoid personally ending up in a strange court, just as doctors are perhaps most likely to fear landing in a strange hospital, because lawyers and doctors are most aware of all the things that can and do go wrong in their respective arenas.

Yes, it's true that we should try to stay out of court whenever possible. But what do we mean when we say that? It's not as simple as is often imagined. Divorce is a legal process that, at least to some degree, must be handled in court. At a minimum, there must be approval by the court of the divorce agreement of the parties, after mediation or some other process, whether involving litigation or not, has led to such an agreement. Furthermore, divorce is also a process that almost always requires some form of negotiating, involving compromise and mediation of some sort, and ultimately settlement, whether it is through "traditional divorce" or "collaborative divorce" or "mediation" and whether issues are hotly contested and litigated or not.

It is the rare case on which nothing is agreed upon and everything is determined by a trial. In fact, it is the rare case, even among the hotly litigated ones, that results in any trial at all. However, most divorce cases actually do end up "in court" for at least one or two contested hearings, before final resolution of the divorce is reached by agreement of the parties.

I always ask prospective clients who have come to me if they have attempted family counseling to save their marriage, and if they have attempted mediation or other "outside of court" methods to resolve their marital disputes. Most of them say either that they have indeed already done so, and it was a waste of time and money,or that they have not done so, as it would have been a waste of time and money, or that the other party would not agree to do so.

As my law practice does not offer mediation services, but only "traditional" divorce, I am more likely to encounter people who have the more difficult problems that require some litigation of various issues in court. Most people who come to see me are indeed in that very uncomfortable, unfortunate situation - that is, they will need to attend one or more hearings in court, even though they will most likely never need a full-blown trial.

It is great when people can be mature and "divorce well," but that is not often the case. To understand why, you must simply consider that divorce for most is inherently a deeply personal, painful, and unwelcome disruption. Even "no-fault" divorce is described as an "irretrievable breakdown of the marriage" to use the Massachusetts legal language, as divorce involves the severing of a most important relationship that affects all aspects of a married person's life. Consequently, there is certainly some truth to the cliché "criminal defense lawyers handle bad people on their best behavior, and divorce lawyers handle good people on their worst behavior." (I should know, as in my practice, I handle both criminal defense and family law. But I would actually amend that cliché as follows: Divorce lawyers handle all kinds of people on their worst behavior.)

WHEN MEDIATION & COLLABORATIVE DIVORCE WON'T WORK

And, despite what you may read to the contrary in some of the articles on this subject, it is not only the toughest cases - involving mental health issues or accusations of abuse - in which parties to divorce are unsuitable for collaborative divorce or mediation. All it takes is for one of the two parties to a divorce to be very angry, confused, or unreasonable, and you have a situation in which the so-called "kinder and gentler" means of divorce (mediation and collaborative divorce) either won't work, or will actually both not work and cost litigants more time and money than "traditional divorce" as the parties will ultimately have to use both methods, one followed by the other.

And what is so inherently expensive and necessarily vexatious about the traditional divorce process, anyway? In Massachusetts, the divorce procedure, for contested divorce, has some built-in provisions to encourage parties to resolve their disputes "out of court": there is a six-month waiting period after the filing of a contested action for divorce before one may mark the case for a pretrial conference.

Before the pretrial conference, at which a trial date is set if the case has still not been settled by that point, there must be a four-way meeting, in which both parties and their attorneys are required to sit down and try to resolve every issue in the divorce. At any point in the litigation of a contested divorce case, the parties and their attorneys may decide to have a four-way meeting even when not required, or otherwise resolve their divorce through negotiation between the attorneys, and settle the case, much as would a couple through mediation or collaborative law.

In fact, in many of my divorce cases, which are often litigated to some degree as contested cases in court, at least one party frequently chooses not to do complete discovery, or otherwise chooses not to do all that is presumed to be required in litigated cases, either out of the belief that there is full knowledge and disclosure of relevant information needed about the other party, or on account of some degree of trust of the other side regarding basic issues or information. That is so even though there may nonetheless be one or two difficult issues to resolve, and thus there remains a need for the pressure of litigation, and the uncertainties of a pending trial, to help bring the other side to the negotiating table before any trial actually takes place.

In collaborative law, the lawyers agree at the outset not to litigate, and voluntarily exchange information, rather than engage in formal discovery, all with a view toward reaching an agreement that will preclude the need for litigation in court. But many times, such cooperation and efficiency is similarly possible between parties and their attorneys in traditional divorce cases, in which a contested divorce complaint is pending in court. In my experience, a lot of these so-called traditional divorce cases end up being as cheap or cheaper than they would be if handled by lawyers formally trained in collaborative law, and are often conducted in a much similar manner, although without the built-in difficulties of formally renouncing many of the normal tools of the attorney's trade, as in collaborative law.

There are so many variables in divorces, and really, any good divorce lawyer should be able to handle divorce in a collaborative law manner, or in a hotly litigated manner, as the case may require. That is just good lawyering, in my view. I am indeed very impressed with some of those who are highly skilled in mediation and collaborative law, as the more tools in an attorney's toolkit, the better. And on those occasions when my prospective clients do seem to be good prospects for mediation (but not collaborative law, which I think can be performed quite well by me or by any other good "traditional" divorce lawyer), I send them to a good divorce lawyer who practices mediation.

WHATEVER YOU DO, CONSULT A DIVORCE LAWYER FIRST

I would only say, at the risk of sounding self-serving, that one should avoid divorce mediators who are not lawyers. In my experience, such mediators have often misled clients in applying the law to the facts of their cases. I have had more than one case in which a psychologist acting as a mediator helped divorcing individuals to reach an agreement, only to have one of the parties discover after going to an attorney (like me) "just to check over the agreement" that the agreement had incorrectly calculated child support, or otherwise had included provisions which were really not "fair" to one of the parties, as these provisions would not have been negotiated by equally informed and equipped attorneys knowledgeable about the law and how it is applied in the courts by judges. Then the parties had to revise their agreements, or start over in their negotiations, with a competent mediator, or with two "traditional" lawyers.

Lest you assume I am self-serving to my profession in this stated preference for lawyers as mediators, I should add that I often express a bias in favor of mental health professionals over lawyers when suggesting or choosing guardians ad litem, to investigate issues of custody and parenting time, because I have found mental health professionals are more likely to be competent in that particular task, and for the same reason - i.e., their training has prepared them for it. Divorce is a legal process, involving the law of divorce. Divorce mediators should be lawyers.

Those who are contemplating a divorce should know that whether they ultimately decide they need a mediator, a collaborative lawyer, or a traditional lawyer, for their divorce, they should always pick a lawyer who is experienced and knowledgeable in the area of divorce law, and preferably one who has had recent experience in the family court where their divorce case will be heard, no matter how simple or complex they think their divorce may be, and even if they think their case can be handled mostly "out of court."

When so much is at stake, divorcing parties owe it to themselves and to their family to try to do their divorce right the first time. Simplistic slogans are not to be believed. All who are contemplating divorce should go alone to see a good divorce lawyer who can explain all of the options and give them a clear idea of their individual rights and obligations, and an honest assessment of their particular legal situation. Then, and only then, will they be confidently able to determine if they should use a mediator, collaborative lawyer, or traditional lawyer for their divorce.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Friday, December 21, 2007

Great Article on Recent Federal Sentencing Developments

I have recently commented on the US Supreme Court and the US Sentencing Commission's recent positive moves in the area of sentencing for crack cocaine offenders in posts last week and last month. But finally, on Wednesday, Mark Allenbaugh, an expert in the field of federal criminal sentencing, has published an article on Findlaw.com which is a must-read for those interested in the topic: FindLaw's Writ - Allenbaugh: A Positive Development in All the Sentencing Insanity.

For information and links related to Massachusetts criminal law (not federal) see the criminal defense page of my law firm website.

Thursday, December 20, 2007

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.

Thursday, December 13, 2007

Starting to Make Sense in Sentencing Crack Offenders: Supreme Court & Sentencing Commission Do Some Good

Both the US Supreme Court and the US Sentencing Commission did some good things this week, and are helping to move our federal system a bit closer to sanity in the treatment of federal drug offenders. However, draconian mandatory minimum sentences for drug offenses remain, and we will continue to spend lots of tax dollars to lock up lots of people in this country for a long time. Don't think too much has changed, but this is welcome news. Read the CNN article of yesterday, Panel says 19,500 crack inmates can seek reduced sentences - CNN.com (Panel says 19,500 crack inmates can seek reduced sentences; Panel votes unanimously to make change in sentencing guidelines retroactive; Monday Supreme Court ruling allows judges to ease harsh crack sentences) for news on both developments.

My previous post on this issue can be found here. For basic information about criminal law in Massachusetts (not federal law) see the criminal defense page of my law firm website.

"WASHINGTON (AP) -- The U.S. Sentencing Commission voted unanimously Tuesday to allow some 19,500 federal prison inmates, most of them black, to seek reductions in their crack cocaine sentences.

Advocates argue that crack-cocaine offenders are unfairly targeted under sentencing guidelines.

The commission, which sets guidelines for federal prison sentences, decided to make retroactive its recent easing of recommended sentences for crack offenses.

Roughly 3,800 inmates could be eligible for release from prison within a year after the March 3 effective date of Tuesday's decision. Federal judges will have the final say whether to reduce sentences.

The commissioners said the delay would give judges and prison officials time to deal with public safety and other issues.

U.S. District Judge William Sessions of Vermont, a commission member, said the vote on retroactivity will have the 'most dramatic impact on African-American families.' A failure to act 'may be taken by some as particularly unjust,' Sessions said before the vote.

The seven-member commission took note of objections raised by the Bush administration, but said there is no basis to treat convicts sentenced before the guideline change differently from those sentenced after the change.

....

In two decisions Monday, the Supreme Court upheld judges who rejected federal sentencing guidelines as too harsh and imposed more lenient prison terms, including one for crack offenses.

In the crack case, Justice Ruth Bader Ginsburg's majority opinion said Derrick Kimbrough's 15-year sentence was acceptable, although guidelines called for 19 to 22 years. 'In making that determination, the judge may consider the disparity between the guidelines' treatment of crack and powder cocaine offenses,' Ginsburg said.

Kimbrough is black.

So are 86 percent of the 19,500 inmates who might see their prison terms for crack offenses reduced after the commission approved retroactive easing. By contrast, just over a quarter of those convicted of powder cocaine crimes last year were black.

The sentencing commission recently changed the guidelines to reduce the disparity in prison time for the two crimes. New guidelines took effect November 1.

'The Kimbrough decision is a tremendous victory for all who believe that the crack and powder cocaine disparity is unjust,' said Mary Price, vice president of Families Against Mandatory Minimums.

Kimbrough's case, though, did not present the ultimate fairness question. Congress wrote the harsher treatment for crack into a law that sets a mandatory minimum of five years in prison for trafficking in 5 grams of crack cocaine or 100 times as much powder cocaine.

Seventy percent of crack defendants get the mandatory minimum.

Kimbrough is among the remaining 30 percent who, under the guidelines, are supposed to receive even more prison time for trafficking in more than 5 grams of crack.

Neither the court's decision nor the commission's guidelines affect the minimum sentences, which only Congress can alter.

In previous years, the sentencing commission reduced penalties for crimes involving marijuana, LSD and OxyContin, which are primarily committed by whites, and made those decisions retroactive."

Tuesday, December 11, 2007

Joanna Grossman on Rhode Island Supreme Court's Denial of Same-Sex Divorce

For an excellent article critiquing the majority decision of the Rhode Island Supreme Court, in Chambers v. Ormiston, which ruled that a lesbian couple, married in Massachusetts, cannot get a divorce in Rhode Island's Family Court, for lack of jurisdiction, see Hofstra Law Professor Joanna Grossman's findlaw article of today, "The Rhode Island Supreme Court Denies a Divorce to a Same-Sex Couple That Was Married in Massachusetts: Why This Case Was Wrongly Decided" by Joanna Grossman.

As Grossman explains, state courts are obliged, for the purpose of considering claims for divorce, to recognize couples joined in marriage under other state's laws, even though state laws on marriage and legal restrictions and requirements for marriage differ greatly among the states. I basically agree with Grossman's points, and also question the Rhode Island Supreme Court majority's reasoning on the same basis. I think the dissenters had the better view, but read the majority and dissenting opinions and decide for yourself.

I disagree with this Rhode Island ruling, even though I also recognize problems with the reasoning of Goodridge et al. v. Department of Public Health et al., the Massachusetts Supreme Judicial Court decision which established gay or same-sex marriage in Massachusetts. (Despite my issues with the reasoning in Goodridge, I do, however, celebrate the resulting expansion of marriage to include gay and lesbian marriage, which I think has been a good thing, for gay and straight alike.)

But whatever you may think about the Massachusetts case establishing same-sex marriage, you must realize that it is this very Massachusetts decision that has created the current conflict of laws issue, by expanding greatly the definition of "marriage" in Massachusetts in a way that has had, and will continue to have, an effect far beyond the borders of the Bay State. It remains to be seen how exactly, and to what extent, gay marriage - and divorce - will become a part of the life of the rest of the nation. This Rhode Island case hardly provides an answer to that question, or any end to such jurisdictional questions. This story is far from over.

For more on this Rhode Island case, including links to my previous posts, news articles from the Providence Journal, and to legal briefs filed in the case, see my most recent post, Rhode Island Supreme Court Decides Lesbian Couple, Married in Massachusetts, May Not Divorce in Rhode Island.

For information about Massachusetts divorce and family law, see Law Offices of Steven Ballard.

Saturday, December 8, 2007

Rhode Island Supreme Court Decides Lesbian Couple, Married in Massachusetts, May Not Divorce in Rhode Island

The Rhode Island Supreme Court has just ruled that the Rhode Island courts may not grant a divorce to a lesbian couple married as a same-sex couple in Massachusetts, but now living in Rhode Island (see below). The high court found that its state's Family Court has no jurisdiction to grant the divorce, based on the fact that Rhode Island does not itself recognize this "same-sex marriage" as a "marriage" and the couple would not have been able to marry in Rhode Island. If these two women want a divorce to be issued by a court, they may have to come back to Massachusetts, where our highest court, in 2003, established the right to marriage by same-sex partners in Goodridge et al. v. Department of Public Health et al. (2003 Massachusetts Supreme Judicial Court Opinion).

For more information, in my previous posts on this case, see Having married in Massachusetts, may a lesbian couple now get divorced in Rhode Island? and Amici Briefs in the Rhode Island Case.


"R.I. high court rules against divorce in same-sex marriages," The Providence Journal, by Edward Fitzpatrick, December 8, 2007:

PROVIDENCE — In a 3 to 2 decision, the state Supreme Court yesterday ruled that two Providence women who married in Massachusetts cannot get divorced in Rhode Island.

The court’s majority concluded that Family Court lacks jurisdiction to grant a divorce to Margaret R. Chambers and Cassandra B. Ormiston because under the law that lets Family Court handle divorces, the word 'marriage' means just one thing: the union of a man and a woman.

"It is possible that today’s members of the General Assembly might have an understanding of the term ‘marriage’ that differs from the understanding of those legislators who enacted [that law] in 1961, but our role is to interpret what was enacted and not to speculate as to what some other not-yet-enacted statute might say or mean," Justice William P. Robinson III wrote for the majority.

"There is absolutely no reason to believe that, when the act creating the Family Court became law in 1961, the legislators understood the word marriage to refer to any state other than ‘the state of being united to a person of the opposite sex,’” Robinson wrote, citing definitions of marriage from 1961 dictionaries.

Supreme Court Chief Justice Frank J. Williams and Justice Francis X. Flaherty joined Robinson in the majority while Justices Paul A. Suttell and Maureen McKenna Goldberg dissented.

Suttell said he and Goldberg saw no need to consult 46-year-old dictionaries to answer the legal question before the court. “A brief survey of current dictionaries reveals that the same definition of the word ‘marriage’ predominates today as it did when the Family Court Act was enacted in 1961,” he wrote. “Nevertheless, the majority, in our opinion, overlooks the one central and unassailable fact upon which the certified question is predicated,” Suttell wrote. “On May 26, 2004, Ms. Chambers and Ms. Ormiston were lawfully married under the laws of the Commonwealth of Massachusetts.” And Family Court can grant divorces whether or not a marriage is considered legally valid in Rhode Island, he said....

Wednesday, December 5, 2007

Is Raising Kids a Fool's Game? Business Week Asks

A recent article by Karyn McCormack in Business Week discussed the high cost of raising a child: Is raising kids a fool's game? - BusinessWeek.com ("Is raising kids a fool's game? Parenting is fulfilling, but the financial burden can be overwhelming" Business Week, November 14, 2007). As the article points out, and as many of those who complain about high child support payments often fail to acknowledge, the actual direct costs to raise a child are very substantial. The U.S. Department of Agriculture's latest survey, for the year 2006, USDA Report: Expenditures on Children by Families, 2006, shows those in the top-third income bracket (gross income of $118,200 average) will spend approximately $289,380, or about $17,000 a year (in 2006 dollars) until their child is 18. That is nearly 15 percent of gross income for the extra costs for one child. The increased costs of housing, child care, education, and health care have taken an increasingly greater share of the earned income in most families over the past several decades.

And for this group of high earners, that may not be all. "Indeed, the USDA survey is probably understating the cost of raising kids," according to the article. "Considering extras like sports equipment, summer camps, private school, Disney vacations, and a full-time nanny, raising a child through age 17 could cost $1 million or more. Some parents throw extravagant birthday parties and won't hesitate to buy their kids the latest video games and cell phones and splurge on Spanish and painting lessons."

As for those below the top third, it is my suspicion (though I haven't yet looked at the recent data from the latest Agriculture Department Study myself) that those in lower income brackets spend an even greater percentage of their incomes on child-related costs than do those in the high income brackets.

Furthermore, the costs for parents, at all income levels, to raise a child do not end when the child is 18, if the child attends a college or other post-secondary institution. And of course, in addition to these direct expenses there are the hard-to-quantify "opportunity costs" of having a child: parents generally could earn more if they had no children to raise.

For some informative links regarding the costs of raising a child, including a link to a helpful "What does it cost to raise a child?" calculator, scroll down for the links in the bottom, righthand column of the child support worksheet page of my law firm website, at Massachusetts Child Support Guidelines Interactive Worksheet Page.


"....The Agriculture Dept.'s latest survey found that households in the top-third income bracket (with average pretax income of $118,200) will spend $289,380 by their child's 18th birthday—or about $17,000 a year (in 2006 dollars).

Parents' largest expense is housing, which makes up roughly a third of expenditures, given that it costs more for a larger home in a town with good schools. In terms of growth, the outlays for child care and education have climbed from just 1% of overall expenses in 1960 (when the USDA started tracking these costs) to 10% in 2006.

In 1960 education costs averaged around $362 per year (out of total expenses of $25,229 for middle income families). Health care is also sucking up more of parents' hard-earned cash given that premiums and co-payments have been rising, says USDA economist Mark Fino...."

Monday, December 3, 2007

The Bush Regime: Human Rights Violator & Home Wrecker




“Families is where
our nation finds hope,
where wings take dream.”
George W. Bush, Oct. 18, 2000




Another great article by Human Rights Watch attorney Joanne Mariner appeared today, this one on the current, open question of whether our US Supreme Court will do the right thing, six years too late, for some of the unjustly imprisoned at Gitmo, in her findlaw article The Supreme Court Faces the Kangaroo Courts.

Also today, one example of our government's sad moral failure at Gitmo is chronicled in the Boston Globe opinion piece of Boston attorney Sabin Willett, who describes how the Bush administration, and our federal court system, have played the role of homewrecker in the case of one particular family man, whom our government will not release from incarceration even though our military has repeatedly admitted he is innocent. Consequently, this poor innocent man, who is concluding he will never be allowed to leave Guantanamo to return to his family, has decided to "release" his wife. 'I will never leave Guantanamo' (Op-Ed Piece in today's Boston Globe, by Sabin Willett).

Kids, the moral of this story is: It's hard to practice family values when you're violating human rights.

Saturday, December 1, 2007

When Child Support Doesn't Get to the Children - Another Way Our Children Are Being Left Behind

Today's New York Times article on child support by reporter Erik Eckholm deserves to be read in full: Mothers Skimp as States Take Child Support - New York Times (December 1, 2007 New York Times Article, By ERIK ECKHOLM)

Not often can one read such an intelligent discussion of the child support collection system. This article examines a particularly troubling current nationwide failure of our child support collection system - that is, the particular failure of our child support collection system within the lower income population of child support obligors and recipients. Sadly, our current system of collecting child support on behalf of poor custodial parents, which does not simply pass on child support to poor custodial parents but funnels collected money first back to the government to reimburse the government for public assistance benefits and collection costs, has failed miserably to do what it was originally designed to do - i.e., actually support children.

As the information in the article suggests, budget and political priorities have stood in the way of reforms desperately needed to protect those who have the weakest political voice, namely the poor, both mothers and fathers, child support recipients and obligors alike. Our child support collection system, even though increasingly effective in collecting more and more money, is about as effective in helping the poor as is "No Child Left Behind" - you know, that educational national law/policy that doesn't put its money where its mouth is, gives unfunded mandates to the states, and is more appropriately called "No Child Left Untested." But of course we are told we have more important things to do, like, for example, we have a few wars to pay for right now....Class War too, you say?

"MILWAUKEE — The collection of child support from absent fathers is failing to help many of the poorest families, in part because the government uses fathers’ payments largely to recoup welfare costs rather than passing on the money to mothers and children. Close to half the states pass along none of collected child support to families on welfare, while most others pay only $50 a month to a custodial parent, usually the mother, even though the father may be paying hundreds of dollars each month. Critics say using child support to repay welfare costs harms children instead of helping them, contradicting the national goal of strengthening families, and is a flaw in the generally lauded national campaign to increase collections.... "

Thursday, November 29, 2007

To Spank or Not to Spank

The answer is no. Don't spank.

The trend, throughout the US, is away from corporal punishment, even if there is no trend to outlaw it explicitly. While spanking is not clearly outlawed in Massachusetts, our case law does not clearly condone it either. And there is currently proposed legislation here that would indeed explicitly outlaw it; if the legislation is passed, Massachusetts could become the first state to prohibit parents from using corporal punishment.

I just read an interesting post on the subject in today's Massachusetts Law Updates, the Massachusetts Trial Court Law Library's blog: Spanking and the Law. Although I'm not sure a law banning parents from spanking their children is necessary or even a good idea, I am sure myself that spanking itself is a bad idea. I believe parents should act as though such a law is already in effect.

I say don't spank, first of all, because as a parent I don't believe spanking is a good means of discipline, I have never used it myself, never needed it, and never would use it. (Of course, my current aversion to spanking may have something to do with the fact that my son is now old enough and big enough to spank me back...)

Second of all, I say don't spank, because I am a divorce and family law attorney. As such, my clients are by and large parents who are in the process of getting divorced, parents who are already divorced, or parents or other parental figures in divorce, guardianship or paternity disputes. Such parents in particular often have to worry about potential or ongoing disputes with other parents or other rivals in custody and visitation matters, and it's not generally a good idea to be giving your potential enemies ammunition to use against you.

But finally, and most importantly - and this is strongly related to my own personal objection to spanking - I say don't spank because there is a fine line between physical discipline and abuse. Where there are children, there are mandated reporters. In our schools and hospitals, and elsewhere, there are officials, teachers, counselors, medics, medical and psychological professionals, who are mandated to report any suspected neglect or abuse to the Department of Social Services.

Really, it's just better not to spank. There's a better way.

Massachusetts Law Updates: Spanking and the Law

Monday, November 26, 2007

Coontz v. Marquardt on "Taking Marriage Private"

Interesting comments today from Stephanie Coontz, in the New York Times, Taking Marriage Private - New York Times ("Taking Marriage Private, New York Times Op-Ed, By Stephanie Coontz November 26, 2007") were quickly and heatedly countered by Elizabeth Marquardt in her Family Scholars Blog post COONTZ.

Do we need a new way to assign legal benefits and responsibilities for partners that used to be available only through traditional marriage, now that we have so many different alternative forms of domestic relationships and partnerships, both gay and straight, some legally sanctioned and others not? Chew on these two opinion pieces if you're interested in this oh-so-current issue.

Hague Convention on the International Recovery of Child Support

The Hague Convention on the International Recovery of Child Support has just been finalized, and the US has already signed onto the convention (only signer so far), as reported by the International Family Law Blog. See its post of today: International Family Law: Hague Convention on the International Recovery of Child Support.

"Delegates from sixty-eight States and the European Community have finalized the Convention on the International Recovery of Child Support and other Forms of Family Maintenance at the 21st Diplomatic Session of the Hague Conference on Private International Law.

Basically, the states that ratify the convention agree to assist citizens from other states who have also ratified the convention to recover child support.

The United States immediately signed the Convention, the first (and, thus far, only) State to do so...."

Thursday, November 22, 2007

Massachusetts Youthful Offender Law Challenged in Worcester

The Massachusetts "Youthful Offender Law," passed in 1996, under which children between the ages of 14 and 17 charged with first or second degree murder are automatically tried as adults in Superior Court and face the same sentences as adults, including mandatory life in prison without parole for first degree murder, is being challenged as violative of the US and state constitutions in Worcester Superior Court in a case involving a 16-year-old recently charged with murder in the first degree. The law is being challenged, according to the article in the Worcester Telegram and Gazette (Worcester Telegram & Gazette News: "Adult trial law challenged/ Milford teen faces life sentence in fatal stabbing By Gary V. Murray TELEGRAM & GAZETTE STAFF gmurray@telegram.com") , as violative of constitutional prohibitions against cruel and unusual punishment and on due process grounds.

As mentioned in my recent post Deadly Delinquents, Deadbeat Dads, and the Dangers of Demonization, there is also international human rights law support available to challenge such laws. Unfortunately, state and federal courts all the way up to the US Supreme Court often do not show the appropriate respect for, or even attention to, international law. But I say pile it on. This looks to be an interesting challenge to a bad law, one that in my opinion is violative of human rights law and of US and state constitutional law.

"WORCESTER— Lawyers for a Milford teenager charged in a fatal stabbing are challenging the constitutionality of a state law requiring that juvenile murder suspects between the ages of 14 and 17 be tried as adults. Lawyers John G. Swomley and Kenneth J. King, who represent Patrick I. Powell, contend in a motion to dismiss the murder charge pending against Mr. Powell in Worcester Superior Court that subjecting their client to a mandatory sentence of life imprisonment if he is convicted would expose him to cruel and unusual punishment under the state and federal constitutions and deny him due process. Mr. Powell was 16 when he was charged with murder in the Jan. 6, 2006, stabbing death of 21-year-old Daniel Columbo during an altercation outside Mr. Columbo’s home at 26 Carroll St. in Milford. Mr. Columbo died as a result of a stab wound to the chest allegedly inflicted by Mr. Powell.....
....

Mr. Swomley, who was appointed to represent Mr. Powell, now 18, and Mr. King, who is affiliated with the Suffolk University Law School’s Juvenile Justice Center, argue in their motion to dismiss that a juvenile offender is less culpable than an adult who engages in similar misconduct because of 'psychological and cognitive immaturity.'

'Recent advances in neuroscience explain that a juvenile’s lack of impulse control, inability to consider consequences of actions or foresee alternative courses of action and propensity to take risks that an adult would not take are products of the juvenile’s incomplete cognitive development,' according to their motion. Mr. Swomley and Mr. King are seeking to introduce expert testimony at a Jan. 16 hearing on their motion, contending 'that when a juvenile’s incomplete development is understood, it becomes apparent that juveniles are sufficiently different from adults that they cannot constitutionally be subjected to the same mandatory penalties as adults. That is, a life without parole sentence implies a determination that a juvenile offender is as culpable as an adult who commits similar acts and is irredeemable. Evidence from neuroscience demonstrates that neither premise can withstand scrutiny,' the lawyers wrote."


Legal Briefs of Supreme Judicial Court Cases Now Available on the Internet

As the Massachusetts Bar Association reports, the Massachusetts Supreme Judicial Court is now making legal briefs filed in cases filed with the full court easily accessible to the public on the internet.

Massachusetts Bar Association : Legal briefs of SJC cases available on court Web site: "Legal briefs of SJC cases available on court Web site As part of a continuing effort to make the court system more easily accessible to the public, the Supreme Judicial Court is now providing legal briefs filed with the full Court available on the Internet at www.ma-appellatecourts.org or at www.mass.gov/sjc. Lawyers, law students, or individuals who have an interest in particular cases can readily obtain the attorneys’ legal briefs, which are filed in the Supreme Judicial Court’s Clerk’s Office for the Commonwealth. Previously, these materials could only be obtained in hard copies by individuals requesting them in person in the Clerk’s Office. The briefs are scanned and posted with the case docket on the Court’s website about a month in advance of the Court’s scheduled sitting. The Supreme Judicial Court Clerk’s Office for the Commonwealth maintains the court records, docket, and court calendar for the cases heard by the seven Justices of the Court. Approximately 200 cases are decided by the full Court each year from September through May. In addition, single justices hear cases throughout the year. "

Tuesday, November 20, 2007

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.

Sunday, November 18, 2007

Noncustodial Parents and Access To Records: Problems On Both Sides of the Pond

I felt a great sense of connection with our friends on the other side of the pond when I read the recent post in the British family law blog Bloody Relations (now isn't that a great name for a family law blog?!) about the problem many noncustodial parents over there sometimes have trying to get their children's school and medical records, as it is an all-too-familiar problem to me here in Massachusetts. The attitude of other agencies to non-resident parents, Post on Sunday, 11 November 2007:

"Other agencies such as doctors and teachers are not always familiar with the rights of a non-resident parent. They may know they have legal responsibilities to share information but may have practical constraints. Schools, for example, may have a duty to inform parents (whether or not with parental responsibility) but they tend to take the practical short cut. The child is given information in an envelope to take home to the main carer. This does not reach all the relevant people. Maybe you need to get in touch with the school directly and ask for arrangements to be made about copies of reports or the school calendar. GPs are under so much pressure. They do not want to produce anything in writing and do not usually do so when someone attends for an appointment. They have little or no access to legal advice and do not know what to do or what their legal responsibilities are. If in doubt, they will take the line of least resistance and will not necessarily put themselves out just because you share parental responsibility...." [ Note: "GP" (General Practioner) in the UK = "PCP" (Primary Care Physician) in the US; "non-resident parents" in the UK = "noncustodial parents" in Massachusetts]

It seems noncustodial parents have similar problems on both sides of the pond - well at least both in England and New England, I should say. Here in Massachusetts - just like, apparently, in the UK - many physicians and school officials often are confused about their responsibility to provide records to noncustodial parents ("non-resident parents" in the UK vernacular). Such information generally should be provided, so long as both of a child's parents share legal custody, as they most often do, regardless whether a parent seeking such information is the "custodial parent " (i.e., the one with physical custody) or the "noncustodial parent" (i.e., the one who usually shares legal custody but has visitation rights or "parenting time" rather than physical custody). Legal custody, which carries with it the authority to make important decisions about schooling, medical care, and other important issues not strictly tied to the day-to-day concerns of physical custody, is now generally shared between parents of divorce, and is quite often shared even between many parents of children born out of wedlock, even though physical custody is still most often granted to one parent alone.

However, many school officials and medical providers, accustomed to dealing more often with mothers than fathers, oftentimes assume that the separated and divorced mothers have custody and assume they have complete, sole authority over the children and their records; thus such officials are often reluctant or unwilling to give fathers records or information when these fathers seek such documents directly, and these officials are not certain whether they are required by law to do so. This confusion or reluctance most often happens, in my experience, to affect "noncustodial fathers" who have full legal custodial rights, but who are nonetheless denied access to such information due to the ignorance of the officials and/or due to the custodial mothers' attempts to prevent such information from being given to the fathers. I have on a few occasions encountered custodial fathers (those who have both legal and physical custody) who have experienced difficulty acquiring records that were required to be given to them. (I have not yet witnessed a case in which any mother, whether a custodial parent or not, has been denied access to information, but such a case is bound to have happened somewhere, and will likely happen more frequently, as more and more fathers gain sole or shared physical custody.)

Many separated or divorced parents fortunately do work with their counterparts and share information freely between themselves, thus manifesting the appropriate sense of cooperation that benefits their children. Also, many school systems make dual sets of information available to both parents, especially for joint physical custodial parents and for parents with a high level of conflict. But these duplicate arrangements are not automatic. It is usually easiest for teachers and administrators to give out the information to only one parent, the one who is most involved with the children, often the mother (it is certainly still the case that there are many more mothers, whether single, married, or divorced, who are the more active of a child's two parents, and who are the more directly involved with their children's schools, than there are fathers in such dominant parenting roles). However, the costs of such duplicative efforts are fast disappearing, as email and the internet are increasingly used for communication.

When my clients have trouble getting records, usually from school officials, I always point them to Massachusetts law and the Massachusetts Department of Education regulations promulgated pursuant to that law, which state that, generally absent a specific court order prohibiting the release of this information to a parent with legal custody but not physical custody (i.e., most of those whom we call "noncustodial parents") records should be given to such a parent. (See the exact wording of the education department regulation, below, which explains the procedure that is supposed to be followed by school administrators.) The ultimate burden is on the parent trying to prevent the other one from getting records to prove that the other is not entitled to such records. In practice, however, it often does not work out that way. A noncustodial parent is wise to be prepared to prove he/she shares legal custody, even if not physical custody, with the other parent, and also to show the law and regulations to the school principal and/or medical provider. The best family law practitioners in Massachusetts, furthermore, very wisely seek specific language in agreements and court judgments/orders that clearly spell out the precise rights of the noncustodial parent to such information, even at the risk of being superfluous and redundant.

The current applicable Massachusetts laws and regulations for school records in particular are as follows:

MASSACHUSETTS GENERAL LAWS, Chapter 71, Section 34 D (Student records; maintenance, storage, destruction, etc.; inspection by parent or guardian): "The board of education shall adopt regulations relative to the maintenance, retention, duplication, storage and periodic destruction of student records by the public elementary and secondary schools of the commonwealth. Such rules and regulations shall provide that a parent or guardian of any pupil shall be allowed to inspect academic, scholastic, or any other records concerning such pupil which are kept or are required to be kept."

MASSACHUSETTS GENERAL LAWS, Chapter 71: Section 34E (Inspection of student records; persons authorized): "Each school committee shall, at the request of a parent or guardian of a student, allow such parent or guardian to inspect academic, scholastic, or any other records concerning such student that are kept or are required to be kept, regardless of the age of such student. Each school committee shall, at the request of a student eighteen years of age or older, allow such student complete access to all school records relative to him or her."

MASSACHUSETTS GENERAL LAWS, Chapter 71, Secton 34H (Noncustodial parents; receipt of information for child enrolled in public elementary or secondary schools; notice to custodial parent): "(a) Each public elementary and secondary school shall provide student records, including, but not limited to, the following information, in a timely and appropriate manner to the parents of a child enrolled in the school if the parents are eligible for information under this section and request the information in the manner set forth in this section: report cards and progress reports; the results of intelligence and achievement tests; notification of a referral for a special needs assessment; notification of enrollment in an English language learners program established under chapter 71A; notification of absences; notification of illnesses; notification of any detentions, suspensions or expulsion; and notification of permanent withdrawal from school. Each school shall also make reasonable efforts to ensure that other written information that is provided to the custodial parent but not specified in the preceding sentence be provided to the requesting parent if that parent is eligible for information under this section. All electronic and postal address and telephone number information relating to either the work or home locations of the custodial parent shall be removed from information provided under this section. Receipt of this information shall not mandate participation in any proceeding to which notification pertains, nor shall it authorize participation in proceedings and decisions regarding the child’s welfare which are not granted through the award of custody. For purposes of this section, any parent who does not have physical custody of a child shall be eligible for the receipt of information unless: (1) the parent’s access to the child is currently prohibited by a temporary or permanent protective order, except where the protective order, or any subsequent order which modifies the protective order, specifically allows access to the information described in this section; or (2) the parent is denied visitation or, based on a threat to the safety of the child, is currently denied legal custody of the child or is currently ordered to supervised visitation, and the threat is specifically noted in the order pertaining to custody or supervised visitation. All such documents limiting or restricting parental access to a student’s records or information which have been provided to the school or school district shall be placed in the student’s record.
(b) A parent requesting information under this section shall submit a written request to the school principal.
(c) Upon receipt of a request for information under this section, the school shall review the student record for any documents limiting or restricting parental access to a student’s records or information which have been provided to the school or school district and shall immediately notify the custodial parent of the receipt of the request. Notification must be made by certified mail and by first class mail in both the primary language of the custodial parent and in English. The notification shall also inform the custodial parent that information requested under this section shall be provided to the requesting parent after 21 days unless the custodial parent provides to the principal of the school documentation of any court order which prohibits contact with the child, or prohibits the distribution of the information referred to in this section or which is a temporary or permanent order issued to provide protection to the child in the custodial parent’s custody from abuse by the requesting parent unless the protective order or any subsequent order which modifies the protective order, specifically allows access to the information described in this section.
[There is no subsection (d).]
(e) At any time the principal of a school is presented with an order of a probate and family court judge which prohibits the distribution of information pursuant to this section the school shall immediately cease to provide said information and shall notify the requesting parent that the distribution of information shall cease.
(f) The principal of each public elementary and secondary school shall designate a staff member whose duties shall include the proper implementation of this section.
[There is no subsection (g).]
(h) The department of education shall promulgate regulations to implement the provisions of this section. Said regulations shall include provisions which assure that the information referred to in this section is properly marked to indicate that said information may not be used to support admission of the child to another school."

MASSACHUSETTS DEPARTMENT OF EDUCATION REGULATION: 603 CMR 23.07(5): "Access Procedures for Non-Custodial Parents. As required by M.G.L. c. 71, § 34H, a non-custodial parent may have access to the student record in accordance with the following provisions.
(a) A non-custodial parent is eligible to obtain access to the student record unless:
the parent has been denied legal custody or has been ordered to supervised visitation, based on a threat to the safety of the student and the threat is specifically noted in the order pertaining to custody or supervised visitation, or
the parent has been denied visitation, or
the parent's access to the student has been restricted by a temporary or permanent protective order, unless the protective order (or any subsequent order modifying the protective order) specifically allows access to the information contained in the student record, or
there is an order of a probate and family court judge which prohibits the distribution of student records to the parent.
(b) The school shall place in the student's record documents indicating that a non-custodial parent's access to the student's record is limited or restricted pursuant to 603 CMR 23.07(5)(a). (c) In order to obtain access, the non-custodial parent must submit a written request for the student record to the school principal.
(d) Upon receipt of the request the school must immediately notify the custodial parent by certified and first class mail, in English and the primary language of the custodial parent, that it will provide the non-custodial parent with access after 21 days, unless the custodial parent provides the principal with documentation that the non-custodial parent is not eligible to obtain access as set forth in 603 CMR 23.07 (5)(a).
(e) The school must delete all electronic and postal address and telephone number information relating to either work or home locations of the custodial parent from student records provided to non-custodial parents. In addition, such records must be marked to indicate that they shall not be used to enroll the student in another school.
(f) Upon receipt of a court order that prohibits the distribution of information pursuant to G.L. c. 71, §34H, the school shall notify the non-custodial parent that it shall cease to provide access to the student record to the non-custodial parent."

Friday, November 16, 2007

The Battle for Same-Sex Marriage in California

Andrew Koppelman, in the blog Balkinization, recently discussed efforts to bring same-sex marriage to California. In his post Bad same-sex marriage strategy in California
(Tuesday, November 13, 2007, 11:01:29 AM Andrew Koppelman), Koppelman states his fear that a pending lawsuit before the California Supreme Court challenging Proposition 22, a law initiated by ballot initiative in 2000 ("Only marriage between a man and a woman is valid or recognized in California"), and seeking a ruling that same-sex marriage is required by the state constitution, may actually energize opponents of same-sex marriage and put in jeopardy even the decent domestic partnership laws already in place there.

This sounds a little familiar to those of us here in Massachusetts, but the roles now being played by citizens, the legislature and the judiciary in California are quite different from those that were played by their counterparts in Massachusetts. In California, so far it has been the legislature that has voted for same-sex marriage, only to be held back by the citizen initiative (Proposition 22) and Governor Schwarzenegger (through his vetoes), and the California Supreme Court has not yet been heard. Here in Massachusetts, it was our Supreme Judicial Court that created same-sex marriage, in the face of a divided, and relatively passive, legislature, and with no threat from any ballot initiative like that of California.

It should be interesting to see what ultimately happens in California.

"I just spoke on a panel in San Francisco, with a group of activists supporting same-sex marriage. (I’m also a supporter, and defend my views here.) Afterward the panelists had some conversations about what’s been happening in California, and they explained their current strategy to me. I came away convinced that my allies are out of their minds.

Last month, the legislature for the second time passed a bill legalizing same-sex marriage in California, and the bill was vetoed for the second time by Governor Schwarzenegger. The governor argued that the bill was inconsistent with Proposition 22, a law enacted by ballot initiative and approved by a landslide 61 to 39 percent in March 2000, which states, "Only marriage between a man and a woman is valid or recognized in California."

Same-sex marriage proponents are now pinning their hopes on a lawsuit, now pending before the California Supreme Court, arguing that the initiative law is unconstitutional and that same-sex marriage is required by the state constitution.

All of the proponents with whom I spoke, including Assemblyman Mark Leno, the author of the marriage bill, acknowledged that if they win in court, it will certainly energize the other side and lead to a new ballot initiative that would outlaw all legal recognition of same-sex relationships in California. This would be a very big deal, because California now has one of the strongest domestic partnership laws in the country, giving same-sex couples all of the rights of heterosexual married couples except the name...."

Monday, November 12, 2007

Ballard's Best: The 11 Best Family Law Bloggers In the US

Although I have been practicing divorce and family law in Massachusetts for many years, I only recently decided to start my own blog, the one you're wasting your time reading now, of course.

As part of my new adventure, I have read lots and lots of family law blogs over the last few months. I have done this for purely selfish reasons. I need to find the best blogs, so that I can shamelessly steal ideas from them until I can find my own way and maybe my own voice. So, here's the list of the best American family law blogs I've found, a list I'll call "Ballard's Best" (in the interests of alliteration and self-promotion).

Ballard's Best may not be the definitive list. I do suspect I have missed some really good blogs. However, all of the blogs on this list are excellent, among the best to be found on divorce and family law in the U.S. I have found other good family law blogs, but they are not on the list either because they have recently gone to sleep, or they are not based in the U.S. (I hardly feel competent to judge family law blogs based in the U.S., so I certainly wouldn't judge those in other countries - I have, however, included the International Family Law Blog, by a British blogger based in New York.)

These winning blogs are very different from one another but all have in common the following four characteristics:

1) They regularly contribute original posts about issues in their own particular family law practice, usually specific to their own state's jurisdiction.

2) Despite having that particular focus, they post articles that should nonetheless prove useful, relevant, and informative to others, both lawyers and non-lawyers, in other jurisdictions.

3) They post regularly.

4) They have been around for some time, usually a year or more.

The blogs that made my list are the family law blogs that appear on my blogroll. In case you're wondering, most of these bloggers have not put my new blog on their own blogrolls nor have I asked or expected any of them to do so.* Indeed, I don't meet the criteria for my own list. No matter. If you can't beat 'em, judge 'em.

Now, here they are, in alphabetical order:

BALLARD'S BEST - THE 11 BEST FAMILY LAW BLOGGERS IN THE US


1) California Divorce and Family Law
2) California Divorce Blawg
3) Family Law Prof Blog
4) Florida Divorce Law Blog
5) Georgia Family Law Blog
6) Indiana Divorce & Family Law Blog
7) International Family Law Blog
8) Kentucky Divorce Law Journal
9) New York Divorce Report
10) Pennsylvania Family Law
11) Updates in Michigan Family Law

*Of course, if anyone wisely decides to link to me, I won't complain - and I might just be more inclined to link to you and to put you on my next list - ha, ha, just kidding...I think.

Sunday, November 11, 2007

Heather Mills and Her Lawyer Call it Splits

I thought Heather Mills had finally learned her lesson and would now shut up, but wondered, in my post a week ago, if she was she too late. Heather Mills Finally Learns To Shut Up, But Was She Too Late? As it turns out, Heather Mills has still not learned her lesson, still will not shut up, and yes, she was too late - at least if she wanted to keep her current counsel. She went on TV again this week and defended her TV outburst of the week before, which she claimed had been "cathartic." Heather Mills Calls Her TV Outburst 'Cathartic' - Scandals & Feuds, Heather Mills, Paul McCartney : People.com: ("Heather Mills Calls Her TV Outburst 'Cathartic'" THURSDAY NOVEMBER 08, 2007 10:00 AM EST, People.com, By Monique Jessen.)

Finally on Friday it was reported that her divorce lawyer from Mishcon de Reya Solicitors has called it splits with her, and that Mills has also lost her "media spokesman." Mills McCartney splits with lawyer - CNN.com ("Mills McCartney splits with lawyer/Story Highlights: Heather Mills McCartney parts company with law firm Mishcon de Reya /Mishcon de Reya had represented her in her divorce from Paul McCartney/ Mills McCartney has also split with her media spokesman").

Obviously Heather Mills doesn't need a spokesman. She needs a muzzle. Let's see who will be next in line to handle the damage control.

Saturday, November 10, 2007

Dorf on Law: Controlling the Courts, American-style

Dorf on Law: Controlling the Courts, American-style

Mike Dorf, Columbia Law Professor, reports today on his blog Dorf on Law about a very interesting conference being held tomorrow and Monday in New York, where he will talk, together with lots of national VIPs, about the US Presidency and the Supreme Court, and specifically about the "Culture Wars." Hopefully the conference will be recorded in some way and its contents broadcast or otherwise distributed after the fact. Big issues in the law, and lots of influential people weighing in. Click the above link and read Dorf on Law for more.

"Tomorrow (Sunday Nov 11) begins a two-day conference on the Presidency and the Supreme Court to be hosted by the Franklin D. Roosevelt Presidential Library and Museum. The program features historians, law professors, journalists and a keynote address by Justice Sandra Day O'Connor. I'll be on a panel on Monday with Judge Michael McConnell and Yale Law Professor Heather Gerken, moderated by NPR's Nina Totenberg. We'll be talking about what the organizers of the conference have called The Presidency, the Supreme Court and the "Culture Wars", and part of our discussion will focus on what exactly makes something a "culture war" issue.For my part, I intend to say (among other things) that whether an issue is part of the culture wars is (rather obviously) subject to change over time. Today's issues include abortion, church-state relations and gay rights, but national politics has picked up and dropped various issues over the course of American history...."

Thursday, November 8, 2007

Kudos to Barney Frank for ENDA, from Dale Carpenter at The Volokh Conspiracy Blog

The Volokh Conspiracy - Barney Frank's ENDA:: "Barney Frank's ENDA" November 8, 2007 Post in The Volokh Conspiracy Blog, by Constitutional Law Professor Dale Carpenter.

Let's join with Con Law Prof Dale Carpenter in giving kudos to Massachusetts' own Barney Frank for helping to get this historic, gay civil rights legislation passed in the US House. On to the Senate, with Ted Kennedy introducing the bill there. Yes, it's still Massachusetts leading the way on this important issue.

"Barney Frank's ENDA:
Yesterday the House passed the Employment Non-Discrimination Act. The vote was 235-184, with 35 Republicans in favor and 25 Democrats against. It's the first time either house of Congress has ever passed a gay civil-rights bill.

Ted Kennedy is expected to introduce ENDA in the Senate soon. Some Senate Republicans are predicting it has a good chance of passing early in the new year, assuming it's not expanded. The bill would then go to President Bush, whose advisors suggested a presidential veto two weeks ago. But now the White House is telling the New York Times that it will examine changes made to the bill before a final decision is made.

However it comes out this session, the fact that the bill has passed even a single house of Congress is a sign of tremendous political progress for gay Americans. Similar attempts to pass employment-discrimination protection have languished in Congress for more than three decades. Now a strong majority of the House is on record in an actual recorded vote supporting the bill. This record can be used to reinforce their resolve should ENDA need to be reintroduced after the next election. The vote creates political momentum for eventual enactment...."

More Britney Woes: Britney Spears To Pay $120K of Kevin Federline's Attorney Fees

LINK to Associated Press Article on Findlaw.com, November 7, 2007: http://news.lp.findlaw.com/ap/o/51/11-07-2007/c9c10005cbeb49ca.html

More Britney news. Tired of it yet? $120K more to Federline, this time for some of his attorney fees. Wouldn't it be great if everybody could afford to pay for that much justice in their own divorce cases and even have it paid by the other side? (Yeah, yeah, and it would be nice to be the lawyer getting those fees too - don't think I don't know what you're thinking I'm thinking...)

Disturbing Stats in "A Guantanamo Index" - From Human Rights Watch Lawyer Joanne Mariner

FindLaw's Writ - Mariner: A Guantanamo Index: "A Guantanamo Index" By Joanne Mariner, Findlaw.com, November 7, 2007

Disturbing stats on Gitmo from Human Rights Watch lawyer Joanne Mariner.

Tuesday, November 6, 2007

Sentencing Guidelines Revised for Crack Cocaine Offenses, New York Times Reports

Crack cocaine offenses now carry a reduced point value in the US Sentencing Guidelines, after revised sentencing guidelines just went into effect this past week, guidelines that will shorten somewhat the ridiculously long sentences for federal crack cocaine crimes and that will move us a bit closer to the goal of fairness for crack cocaine offenders vis-à-vis powder cocaine offenders. Let's hope that next week's sentencing commission meeting will lead to a decision to apply the new sentencing guidelines retroactively, so we can reduce even more of the waste of this war on drugs.

LINK to Article by Solomon Moore, November 2, 2007, New York Times: Rules Lower Prison Terms in Sentences for Crack - New York Times: "Crack cocaine offenders will receive shorter prison sentences under more lenient federal sentencing guidelines that went into effect yesterday. The United States Sentencing Commission, a government panel that recommends appropriate federal prison terms, estimated that the new guidelines would reduce the federal prison population by 3,800 in 15 years. The new guidelines will reduce the average sentence for crack cocaine possession to 8 years 10 months from 10 years 1 month. At a sentencing commission hearing in Washington on Nov. 13, members will consider whether to apply the guidelines retroactively to an estimated 19,500 crack cocaine offenders who were sentenced under the earlier, stricter guidelines."

Monday, November 5, 2007

Deadly Delinquents, Deadbeat Dads, and the Dangers of Demonization

In handling a very sad case in court today (a case I am sure I "won" but which brought no joy or triumph), I had a bright moment early on when I had the opportunity to speak at some length with a wonderful psychologist who works regularly with children, and spends a lot of time in juvenile court trying to help children to recover and to rebound from truly horrific circumstances. The optimism of this wonderful man cheered me up somewhat. When I complained about how depressing the juvenile cases often are, he told me he rather enjoys his role in helping to protect these children in court, and nurture these children through therapy.

DEADLY DELINQUENTS

It is easy for most of us to forget that just as children are resilient as victims, they also are capable of redemption and rehabilitation as offenders. If they can overcome the trauma of abuse, and other horrible experiences, and go on nonetheless to lead healthy adult lives, as so many do, they can also redeem themselves and be rehabilitated, even when they themselves have committed horrific acts. But we are all too quick to demonize and discard them just as we do adult perpetrators.

In some circumstances, for example when children engage in inappropriate sexual contact with other children, contact that would be considered abuse if initiated by older individuals, we don't actually label these child actors "perpetrators" but instead treat all the children in the situation, both the actors and the acted upon, as the unfortunate "victims." But there is a line that can't be crossed, it seems. If a child's crime is too horrific, these days we just give up on the child, forever, and lock him up and throw away the key, just as we would do with an adult perpetrator of such a crime. Our favorite way to rationalize this approach is to pretend that the child is actually an adult.

There recently appeared an excellent article by Sherry Colb, in a Findlaw Column on October 29, 2007, exploring the question of why we are now so quick to lock children up and throw away the key: Why Does the U.S. Sentence Adolescents To Life Without Parole? As Colb points out in her article, we did not always have this harsh approach, and our attitude seems somewhat dissonant with our basic sense of optimism. She postulates that we are somehow afraid of our own optimism, and lock up the children out of a sense of fear of that optimism. I am not exactly sure I agree with this theory, if I even understand it correctly, but it may be right. But I think there may be a simpler explanation for our harsh policy toward deadly delinquents. It is in our entire criminal justice system, that is, in our system for actual adults (not just the adolescents whom we selectively and inconsistently treat as adults), that we have become less forgiving, more punitive, and more willing to give up on people. Demonize. Discard.

I'm not sure that we should blame our harsh penal approach on any fear of our own optimism. I think there is something more distasteful at work here. It is fear, Colb is right, but it is a kind of fear that is making us lose our humanity. The U.S., in permitting its states to lock up children for life without parole (and Massachusetts is one among the vast majority of US states that presently do this), is quite arguably in violation of international human rights law. In 2005, the U.S. Supreme Court finally outlawed, in Roper v. Simmons, capital punishment for juvenile offenders, but that hardly brings the U.S. in compliance with human rights law, as I understand it.

Colb in her article provides a history of the developments in international law on the specific issue of life without parole for children. For more information about the issues of juvenile justice and human rights law, see the Human Rights Watch report of 2005 http://hrw.org/reports/2005/us1005/. We have moved away from state-sanctioned killing of juvenile offenders, but we are still guilty of a lesser international human rights law violation by locking up children and throwing away the key. That is because we let our anger cloud our minds and we allow ourselves to demonize these children. We inevitably lose some of our own humanity when we do so. (Just as we do when we lock up "enemy combatants" as we did in Guantanamo. Just as we do when we commit acts of torture....but I digress.)

DEADBEAT DADS

I have witnessed a lack of humanity in many prosecutors, who often find it easiest to view perpetrators, of whatever age, as purely evil, subhuman creatures for whom no punishment is too great. This inhumane, simplistic prosecutorial attitude was bizarrely evident in a recent guest article, on October 13, 2007, in the Washington Post by Wisconsin "deadbeat dad" prosecutor Mary Wagner - LINK to Washington Post article, Mary T. Wagner - Corralling Deadbeat Dads - washingtonpost.com, which is a tale about her experience prosecuting deadbeat dads.

Wagner seems to take delight in demonizing and punishing these men (I say men because we do not hear about the prosecution of any deadbeat moms in this article), and appears to lose all perspective. Particularly troubling for me was the following passage:

"The case is never about whether the deadbeat dad failed to make any payments for 120 consecutive days, earning himself up to a year and a half of 'maximum confinement' in prison and two additional years of 'extended supervision' reporting to a probation agent. It's about how the parent who stayed with the children had to work two jobs, never caught a break and sometimes had to take government assistance, and how the kids in the middle of it all felt abandoned -- how their world fell apart when Dad left.

Sometimes it's about a 10-year-old child coming to court with Mom, smiling but nervous with anticipation, wondering if the father who's been gone for years will recognize her in the gallery as he sits on a bench up front, wearing an orange jumpsuit and chains, waiting for our dance to begin. Those scenes never end well...."


It is terrible, Wagner says, that this dad has not paid child support. Yes, absolutely. But why not object to the sad fact that this child has been brought into the courtroom to witness her father in an orange jump suit and chains. The child, despite the child support arrears, apparently was fed and clothed while sitting in court, but how was that child feeling? It is horrible that the father doesn't know this child, agreed. But is it not also horrible that this mother brought her child into court to see her father in this circumstance? Have we all been desensitized by Jerry Springer?

I'm bothered that while Wagner can so easily demonize this dad, and discard him as a useless, evil deadbeat, there is not even the hint of the possibility that he might be worthy of some respect, and that after he finally gets out of jail, he might actually pay child support and even spend some time with his child.

There is a strong correlation between the payment of support by noncustodial parents and the degree of contact they have with their children. If we're really concerned about both support and parenting time, about the best interests of children, we should have a broader perspective. Sometimes there are deadbeat dads, and deadbeat moms as well, and sometimes they truly are demonic. Sometimes they never come around. But parents, and prosecutors, and judges, should always leave room for redemption, at least as long as these children are still children.

I'm reminded of a wonderful adult-like line of Lisa Simpson on an episode of the Simpsons, when her Aunt Patty was criticizing Homer in front of Lisa and Aunt Patty admitted she was "just trashing your father."

"I wish you wouldn't," said Lisa, "because aside from the fact that he has the same frailties of all human beings, he is my only model of manhood, and my estimation of him will govern the prospects of my adult relationships. So I hope you bear in mind that any knock at him is a knock at me, and I'm far too young to defend myself against such onslaughts."

Well said, Lisa.

Saturday, November 3, 2007

Heather Mills Finally Learns To Shut Up, But Was She Too Late?

Often the very best advice a lawyer will ever give a client is as simple to understand as it is difficult to follow: Keep your mouth shut. Don't say anything to the press. Remain silent. For most divorcing individuals, and certainly most criminal defendants, the last thing they should do is talk to anyone except their lawyer, especially the press.

The problem is when your strategy actually requires you to talk, to go to the press, as it sometimes does in a "Hollywood Divorce," by which term I mean a high-profile celebrity divorce, whether actually in Hollywood, or somewhere else, say in England, for example, where a certain super-famous billionaire musician happens to be getting divorced.

Sometimes you may say a little too much and shoot yourself in the foot. Saying the wrong thing can be costly.

Of course I am speaking of the case of Heather Mills and her husband Sir Paul McCartney, who is now thought to be in a better bargaining position in his divorce negotiations, both respect to financial settlement and maybe even custody issues, thanks to Heather Mill's recent TV rant in which she admitted she had been suicidal.

Heather now knows to shut up already, but is it too late? For the article today by Richard Simpson in the Daily Mail, check out this link: What have I done? Heather warned her TV rant could cost her dear in custody and cash fight