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") , 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 or at 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, 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:


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 : ("Heather Mills Calls Her TV Outburst 'Cathartic'" THURSDAY NOVEMBER 08, 2007 10:00 AM EST,, 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 - ("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, November 7, 2007:

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,, 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.


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 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.)


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 -, 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

Friday, November 2, 2007

How Much Child Support Do You Pay if You Earn A Million A Month? Ask Britney Spears and Willie Gary.

Sometimes child support can be expensive. Take two recent cases in the news, one involving wealthy Florida lawyer Willie Gary, who pays $28,000 per month for two children in the care of his ex in Georgia, based on income of over a million dollars a month, and the other involving an alleged singer, Britney Spears, who is paying one Kevin Federline $15,000 a month in child support, plus spousal support of $20K, on current income (as most recently reported by her) of about $737K per month.

The train wreck known as Britney recently lost temporary physical custody of her two kids to Kevin Federline, with whom she shared physical custody until her latest blunder. Apparently her spousal support obligation to Kevin Federline will end very soon, but not the child support obligation. In fact, if Kevin Federline ends up holding onto sole physical custody on a more permanent basis, that child support number could go up.

Meanwhile, trial lawyer Willie Gary apparently just got the bad news that his high child support order of $28,000 will continue, after an appeals court shot down a Georgia judge's recent reduction of his support from $28,000 to a mere $5000 per month. Sorry, Willie, but the $28K per month still stands, at least until you can argue your case again on remand.

LINK TO ARTICLE ABOUT WILLIE GARY on, from reporter Alyson M. Palmer, in the Fulton County Daily Report (Georgia), October 31, 2007: Lawyer Still on the Hook for $28,000 per Month in Child Support

LINK TO ARTICLE ABOUT BRITNEY SPEARS on, from the Associated Press: Papers In Britney Spears' Custody Dispute Reveal Lavish Spending, No Investments

Thursday, November 1, 2007

Access to Justice Commission Proposes Role for Non-Lawyers as Advocates in Court

This just in from the Massachusetts Lawyers Weekly, concerning a well-intentioned, but not so well-reasoned or articulated, proposal for permitting the use of non-lawyers as advocates in certain civil cases, including domestic violence/restraining order cases: 'Access' panel favors use of non-lawyers in some civil cases ('Access' panel favors use of non-lawyers in some civil cases; Bar leaders voice skepticism) By Barbara Rabinovitz, Massachusetts Lawyers Weekly, October 30, 2007

There are a number of good points made in the report, but I think many of the actual proposals are either not clearly articulated, or otherwise are unworkable or unwise. But read the report and decide for yourself. The full report of the Access to Justice Commission is available on the Boston Bar Association's website:

"A statewide commission that has been examining barriers to access to justice in Massachusetts has recommended that trained non-lawyers be allowed to speak in court on behalf of low-income parties embroiled in certain civil matters — a recommendation that has ignited renewed debate over the use of lay advocates.

The 21-member commission, chaired by former Supreme Judicial Court Chief Justice Herbert P. Wilkins, spent much of 2006 and this year conducting public hearings in Boston, New Bedford, Lawrence and Springfield and compiling a 47-page report for submission to the SJC.

The panel was charged by the court with suggesting ways for making legal assistance more readily available to poor people caught up in civil cases involving such issues as evictions and domestic violence. High on the panel's list of suggestions is permission for the use of non-lawyers in some court settings ....

Wilkins told Lawyers Weekly that the proposal dealing with non-lawyers is 'not talking about a general permission' for them. 'We're talking where a person is indigent, and no lawyer will take the matter.' ....

But Boston Bar Association President Anthony M. Doniger voiced reservations. 'The fundamental issue is that one of the great virtues of having lawyers do things is that lawyers are a regulated profession and there are standards they have to follow,' he said. 'As soon as you're talking non-lawyers, it's not at all clear what the quality control will be, what the training will be, who's in charge'.... "

Reported Domestic Assaults Are Up in Worcester This Year

The Worcester Telegram informs us that reported domestic assaults are up this year in Worcester. LINK to Worcester Telegram Article By Scott J. Croteau TELEGRAM & GAZETTE STAFF, Tuesday, October 30, 2007: Domestic assault numbers rising

"WORCESTER— Reports of domestic assaults in the city are up this year, an increase police officials say shows the need for a continued working partnership with a battered women’s advocacy agency. Police Chief Gary J. Gemme and Ginger L. Navickas, director of the YMCA of Central Massachusetts’s Daybreak program, said resources are in place to help victims of domestic violence and continue increasing awareness of the problem in the community. Crime statistics for Jan. 1 to Sept. 30 show 279 domestic aggravated assaults have been reported, which is a 24.6 percent increase over last year. There were 224 reported in 2006. The number is also 13.4 percent higher than the seven-year average.

The statistics also show simple domestic assaults increased by 20 percent so far this year, compared to last year. There have been 861 simple domestic assaults reported compared to 717 last year. This year’s number is well above — or 29.5 percent — over the seven-year average of 665.... "

Note: One little correction to the Telegram article: it is of course the YWCA, not the YMCA, where the Daybreak Program is housed.