Destroying the Polygamist Village to Save It

I, like Robert Ambrogi at Legal Blog Watch, have been amazed to see such silence in the legal blogging community after the Texas raid on the polygamist sect in Eldorado, in which hundreds of children were taken away from their parents, in what has been appropriately called the biggest custody case in Texas, if not national, history. Despite claims that this is simply a case of the government's stepping in to protect children from abuse, this case strikes me to be just as much An Unusual Prosecution of a Way of Life, to use the precise words of the headline from the Washington Post article of a few days ago.

There are many obvious problems, constitutional and otherwise, with the Texas government's abrupt dismantling of hundreds of families, but I have seen precious little protest in the legal blogosphere, or elsewhere even. In fact, I've only found the posts of David Bernstein and Eugene Volokh at The Volokh Conspiracy to be seriously critical of this troubling state action, even though they seem, to me at least, just to be stating the obvious.

And so basically, like Katie Granju, in Knoxville, Tennessee, I wonder Where is the ACLU? Although the Texas ACLU initially expressed some concerns, we have lately heard nothing further from them, and, to my knowledge, nary a peep from the national headquarters of the ACLU. Perhaps this silence is somewhat understandable, as we may certainly find the idea of state intervention justifiable in order to protect children from abusive cultures.

But we should not be so quick to judge and condemn, and jump to conclusions about issues of freedom and abuse, at the expense of the Constitution, as the very good posts from the Texas blog Grits for Breakfast have indicated. Interestingly, as Ambrogi pointed out in his Legal Blog Watch post, there is more of substance to be found from this Texas journalist at Grits for Breakfast, and from the Salt Lake City reporter at The Polygamy Files than from either the major media sources or the legal blogosphere.

Well, it certainly doesn't take a lawyer to figure out that there are problems with the law having been interpreted and applied in such a way as to permit the round up of a whole group of individuals, based on the fraudulent word of one alleged informant, followed by the forced separation of a multitude of children from their parents, without a showing of any particularized threats of harm to those individual children. As a result, hundreds of small children will most surely be harmed in a very real way (and indeed that is already happening right now!) on account of the abrupt separation, at the hands of the state, of these children from their parents. Until recently, the judge even had ordered the separation of babies from mothers who were nursing them.

The state says: "Gee, we got a report of abuse, and it looks like the whole sect has children who may have been, or may be, subject to abuse by their parents, i.e. the girls as teenagers might be brainwashed or forced into sexual relations and marriage with older men." But is it really that simple, though? Are all of these children truly at risk? Will all of them be involuntarily forced into unions with older men? Are all of them in immediate risk of abuse? Can the government legitimately step in? So far the evidence provided by the state, for such a broad, sweeping action, has been pretty lame.

There appear to have been Fourth Amendment problems, and there probably will be Fifth Amendment problems as well, depending on how this sweeping DNA testing order is used. There was likely no probable cause for the warrant to issue, and both the arrest and resulting detentions were and are seriously constitutionally suspect. Of course, if individual crimes were committed, then individuals should be apprehended and charged. If children were abused, and crimes committed, the parents or others responsible should be charged. But how can the state round up a whole religious community, take all the children from their parents, take every one's DNA, and then try to make their case or cases after the fact?

I guess what I am trying to say is: What the hell?!

The "answer" to that question is just as lame as one might expect in response to such a question that is hardly ever asked: Oh, well. What's done is done. Now, we will just have to try to make everything right, now that we've broken up these families in order to protect them. Just trust our government to make the right choices in placing these traumatized children with appropriate foster parents, while we try to figure out what to do next.

This Texas case reminds me of our federal government's move in claiming there were weapons of mass destruction in Iraq, followed by its invasion and occupation of that country, against the will of the UN Security Council, after which it was then revealed that the justification for the invasion had been flawed and dishonest, but our government then shrugged its shoulders and claimed that "we can't get out now - we have to finish the job."

The federal government used fear to promote its aims, and the Texas state officials have done the same. In both cases the public was swept up in fear - in the first place, by fear of "terrorism" and in the second, by fear of "abuse." But in both cases, it seems these fears were and are overblown, and that such fears have been accompanied by, and intimately related to, quite a huge dose of government ignorance and incompetence. And it is quite certain that these fears projected upon the public - of "terrorism" and "abuse" - are also very tightly bound up in a distasteful, prejudicial fear of The Other.

All of this further reminds me of that famous line of the American officer who was quoted as saying, of the town of Ben Tre, Vietnam, that "it became necessary to destroy the town to save it." But did we need to destroy Iraq in order to save it? And must we now destroy the families in this polygamist sect in order to save them? Call me crazy, but I think the answer to both questions is no. I think we have already been tragically trigger-happy and foolish in both cases.

Now, don't get me wrong. I'm no fan of polygamy, or of the pressuring of 16-year-old teenage girls into marriage with older men; heck, I'm no fan of organized religion of any kind. What I have heard about this, and other, cults is none too attractive to me. Nor was I a fan of Saddam Hussein.

But I'm no more a fan of ignorant, incompetent government action that violates individual rights to life or liberty and that leads to certain harm, in the name of protection against uncertain harm.

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

Massachusetts and New England Tops for Children

More evidence that Massachusetts, and its sister New England states, are great places for children has just been released by the Every Child Matters Education Fund. Susan Scully Petroni, editor of the Bay State Parent magazine, reports on the good news at the Bay State Parent Blog here. The full report itself: Geography Matters: Child Well-Being in the States.

Excerpt from the Bay State Parent Blog:

"Massachusetts is the second best state in the nation for U.S. children, based on a diverse set of 10 child well-being standards, including lack of access to prenatal care, premature deaths, malnutrition, poverty, child abuse and teen incarceration, according to a major new report released by the non-profit and non-partisan Every Child Matters Education Fund.

In revealing a nation that is starkly divided with what are often 'deadly differences' in how it treats its youths, the report shows 'geography matters' greatly when it comes to the ability of U.S. children to be healthy and survive to adulthood.

For example, children in the bottom of all the states are three times more likely to die before the age of 14; five times more likely to be uninsured; and eight times more likely to be incarcerated as teens.

The states with the best performance for children are (in order) Vermont, Massachusetts, Connecticut, Rhode Island, New Hampshire, Hawaii, Iowa, Minnesota, Washington, & Maine. In fact, all 6 New England states made the top 10, making it the best region in America for children....."

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

Incarceration Nation

The New York Times yesterday published a good basic primer on a most embarrassing type of American Exceptionalism, i.e., America as Incarceration Nation: Inmate Count in U.S. Dwarfs Other Nations’ - New York Times. The first part of the article, written by Adam Liptak, is excerpted below:

"The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.

Indeed, the United States leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment. Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations.

Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences.

The United States has, for instance, 2.3 million criminals behind bars, more than any other nation, according to data maintained by the International Center for Prison Studies at King’s College London.

China, which is four times more populous than the United States, is a distant second, with 1.6 million people in prison....

...."

For information about Massachusetts criminal law, see the criminal law page of my law firm website.

The Divorce Generation

Now here's an interesting read, the cover story from the April 21 edition of Newsweek: The Divorce Generation Grows Up ("The Divorce Generation Grows Up - Grant High School's class of '82 were raised on 'The Brady Bunch'—while their own families were falling apart. These are their stories—in their words").

As I was born in 1965, right on the line between the Baby Boom Generation and Generation X, I sometimes don't know to what generation I should say I belong. I have characteristics of both Boomers and Xers.

The author, David J. Jefferson, just a few years older than I, has described us 40-something-year-olds, who grew up watching the Brady Bunch, as the "divorce generation." Maybe that will do, although I don't particularly like the term, and I sincerely hope that this author has exaggerated the impact of divorce on my "generation."

But I can certainly relate to the stories told by the author's classmates, as I graduated from high school just one year later than they did, in the early 80s, when the divorce rate in this country was at its highest point. Many of these stories sound all too familiar to me, as they resemble so many stories of others my age.

Since the early 80s, the divorce rate has fallen. And as this article indicates, as we now-40-something-year-olds of the "divorce generation" have grown up, the national divorce rate has fallen, though not back down to the very low level of the 50s and 60s. The relatively lower rate of today may have a lot to do with the fact that we of the "divorce generation" have been more reluctant to make commitments, and more hesitant to marry, and as a group have been waiting until later to do so.

The author of this article indeed suggests that our hesitancy may be partly a consequence of having grown up in the period, from the late 60s through the early 80s, when marriages were becoming so much more vulnerable to termination by divorce. More than just an interesting footnote to The Unexpected Legacy of Divorce, this feature story should be but one of many studies and musings on this topic that I suspect, and hope, will follow in the years to come.

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

Divorce By YouTube

Wow! Recently we had a disgruntled husband in Vermont airing dirty divorce laundry on his blog (see my posts here and there). Now a disgruntled wife in New York has broadcast her grievances on YouTube (see below). This YouTube video has been widely viewed, and has been widely reported and blogged about already. See Family Lore and New York Divorce Report for some good posts on this.



This YouTube woman, named Tricia, reminds me of Heather Mills in many ways. Tricia is the much younger wife of a wealthy man in a bitter divorce battle, and she happens to be English; furthermore, she appears to be somewhat unhinged, and judging from this video, she would probably make a very bad witness in court, just like Heather Mills apparently did.

But one difference is Heather Mills started out with lawyers, then bumbled about in an apparent, misguided attempt to try her case in the media, and finally ended up handling her case herself, while still running to the media to whine. But this YouTube woman appears first to have started out by trying her case on YouTube, but then now apparently has the good sense to have hired high-profile New York divorce attorney, Raoul Felder, who represents her now but not until after she made this video.

Now that's a better ordered approach, I'd say. Maybe Heather should have gotten it all out of her system with her crazy antics in public, if she had to, and then hired a good army of lawyers in London, and not the other way around.

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

Britney to Pay $400K to Various Lawyers

People Magazine reports that Britney Spears was just ordered to pay $400,000 to several lawyers working in various ways to manage the never-ending Britney Disaster.

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

Single Parenting Costs Over $112 Billion Per Year in Taxes, Study Claims

As recently reported by the Associated Press, a new study, by Georgia State University economist Ben Scafidi, and sponsored by several "marriage movement" groups, including the New York-based Institute for American Values, purports to show that divorce and unwed childbearing costs Americans over $112 billion a year in extra taxes.

But after my initial, very quick review of the report, I believe this study really does little more than highlight a correlation between single parenthood and poverty. I certainly don't think it proves that the claimed extra billions in tax costs are a direct consequence and result of single parenting itself; in the language of law school torts class, there is no "but for" causation here. Surely, divorce and nonmarital breakups are very costly to splitting families themselves, whether they are in affluent or poor neighborhoods. And yes, some of these costs, not only for the poor but also for the affluent, are passed on to the rest of us through extra taxes.

But the study seems to focus mostly on the most vulnerable of broken families and the supposed extra tax costs of welfare dependency by poor single parents. And for that lower strata of society, this may be like the question about the chicken and the egg. Which comes first, poverty or broken homes? Certainly there is a correlation, but is there causation, and if so what and where is that causation, and which way does it run? I'm not sure. I don't think this study comes close to answering those questions.

Can we really "strengthen marriage" as the sponsors of this study want to do, without first improving economic conditions for people in this segment of our society? I tend to think the critics, who suggest we would do better to focus on education and full employment policies rather than "marriage strengthening" plans, make more sense. You know, it's the economy, stupid. But on the other hand, I am sure there are in fact other, non-economic forces that contribute to the pulling of families apart, and that in turn lead to the duplicate expenses that make life so hard for them, and more costly for all of us.

So it's good that someone is seriously looking at this issue. I hope that further such studies will follow. I have only briefly looked at the study, and I already see some big problems with it, but still, there is a lot of interesting data there and it's well worth a look. You can find the study and related information about it at the Institute for American Values website here, where you can sign up to download the study for free.

EXCERPT FROM AP ARTICLE, APRIL 15, 2008:

NEW YORK - Divorce and out-of-wedlock childbearing cost U.S. taxpayers more than $112 billion a year, according to a study commissioned by four groups advocating more government action to bolster marriages.

Sponsors say the study is the first of its kind and hope it will prompt lawmakers to invest more money in programs aimed at strengthening marriages. Two experts not connected to the study said such programs are of dubious merit and suggested that other investments -- notably job creation -- would be more effective in aiding all types of needy families.

There have been previous attempts to calculate the cost of divorce in America. But the sponsors of the new study, being released Tuesday, said theirs is the first to gauge the broader cost of "family fragmentation" -- both divorce and unwed childbearing.

....

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

$30 Billion of "Fed's Money" Well Spent?

It is nice to hear, from Alice Rivlin, in an op-ed article in the New York Times yesterday, that the Fed's money was well spent on the $30 billion guarantee ("loan") to JP Morgan in the unprecedented bailout of Bear Stearns. Rivlin, as a former vice chairman of the Federal Reserve Board, is just doing what most others in the mainstream press are doing: she's spouting the conventional words of wisdom Wall Street wants us all to believe.

Naturally we're likely to find more wisdom, truth, and honesty - not to mention humor - on this topic elsewhere, and by elsewhere, I mean somewhere closer to Main Street, and definitely not on Wall Street. Indeed I just found all of those virtues in Peter McKay's funny column: Save Me, Federal Reserve!

And for a more serious discussion, see economist Dean Baker's recent article on this. Or better yet, get the big picture by reading Dean Baker's inciteful tome from a few years ago, available for free online and all too relevant today: The Conservative Nanny State - How the Wealthy Use the Government to Stay Rich and Get Richer.

Pink Paper Again

Just when I was getting used to using regular white paper for financial statements, the Massachusetts Probate & Family Court has changed the rule again: all financial statements (both long and short) filed in family court are once again required to be printed out on colored paper. The new rule, which went into effect on Monday, April 7, requires that both types of financial statement be printed on pink paper only, and child support guidelines worksheets once again be printed on yellow paper.

There had long been a requirement that all short statements be printed on pink paper, long statements on purple paper, and child support guidelines worksheets on yellow paper. Then last year, the court briefly permitted all statements to be printed on white paper - a sensible move, I thought.

But now fans of colored paper have complained and apparently contend that the use of colored paper will make it easier for court workers to avoid inappropriately putting these financial documents in the public court files. Financial statements are supposed to be kept in separate files, unavailable to the public. The court's press release says "requiring that the forms be printed on colored paper will assist our staff and judges in identifying the forms in the case folder and that they remain unavailable for public inspection."

Colored paper will be no guarantee. In fact, the only financial statements I have ever found to have been wrongly placed in public court files were in fact on colored paper. Of course, that's probably just because the white paper rule only lasted a short time - eventually I'm sure I will find a white financial statement form in a public file. Still, as a realist, I expect to continue on occasion to find colored financial statement forms in public court files, only now, thanks to the new rule, they should all appear to be pink, and never purple.

If you have read this far, I am very sorry if you feel you have completely wasted your time!

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

First Circuit Court of Appeals Rules on QDROs

For analysis of a recent decision by the U.S. First Circuit Court of Appeals in Boston on qualified domestic relations orders (QDROs), see the recent post Boston ERISA Law Blog: Some Quirks About QDROs. The post mainly discusses the federal appellate court's recent ruling that the state probate courts, not just the federal courts, have jurisdiction to determine whether a particular order is a QDRO. As Stephen D. Rosenberg, a specialist in ERISA law, put it in that blog post, "the First Circuit emphasized that the state probate court has jurisdiction to determine whether a particular order qualifies as a QDRO and to thereafter enforce it, and that this particular issue does not have to be severed off from a particular probate court/divorce action and brought to federal court." For more on this, please read his excellent post.

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

Professional Women More Likely to Get Divorced

Women with MBAs, medical degrees and law degrees are much more likely to get divorced or separated than their male counterparts, according to Robin Fretwell Wilson, a professor at Washington & Lee Law School, and a study she will be publishing next week. Her study is apparently based upon her analysis of a National Science Foundation survey of over one hundred thousand professionals.

Although it is unclear exactly what these data mean, Wilson herself has talked about the findings in relation to the current tendency of many professional women to "opt out" of having a family. As Wilson is quoted in yesterday's Wall Street Journal article on this by Anita Raghavan: "'It's like the Virginia Slims ad -- we've come so far -- but, man, we haven't come so far,' says Prof. Wilson, herself a divorcée. 'In a lot of ways women aren't getting the same deal as men.' Unlike men, she says, 'women can't have it all because there is a social stigma to having or being a stay-at-home spouse.'"

For more on this story, see the Wall Street Journal article (link above) and the ABA Journal article on this by Debra Cassens Weiss.

And if you are interested in some provocative, gender counterpoint on professional careers and marriage, look at the Forbes opinion piece from 2006, Careers and Marriage, which includes both "Point: Don't Marry Career Women" by Michael Noer and "Counterpoint: Don't Marry A Lazy Man" by Elizabeth Corcoran.

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