Tuesday, July 29, 2008

Massachusetts House Joins Senate In Voting To Repeal 1913 Law

The House voted overwhelmingly today to repeal the 1913 law. Now that both the Senate and the House have passed the bill, the bill will go to Governor Patrick, who is expected to sign it. As a result of the repeal of the old statute, gay and lesbian couples residing in other states will now be permitted to marry in Massachusetts even if their home states would not permit them to marry in their home states. See the Blue Mass Group Blog for more. My previous post on this story is here.

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

Monday, July 28, 2008

YouTube Divorce - A Failed Strategy

To follow up on the YouTube Divorce of Tricia Walsh-Smith, which I discussed here this past April (after which Tricia continued her tirades and crazy antics on YouTube, all of which I ignored), it appears that Tricia's adventurous approach to fighting her contested divorce has not helped her one bit.

Back in April, I thought Tricia had the craziness out of her system, as she appeared to have gotten smart after her first YouTube video by hiring a good lawyer who would prevent her from using YouTube again. But I was wrong. She apparently either ignored good advice from her lawyers (most likely) or she didn't get any. Thus she persisted in smearing her husband in further YouTube videos.

Now the judge has found that Tricia conducted a "calculated and callous campaign to embarrass and humiliate her husband and his daughters." The judge both ordered her to leave the New York apartment from which she complained on the first video that her husband had tried to evict her, and also refused to void her prenuptial agreement as she had sought. See Family Lore: Walsh-Smith: "Calculated and callous" .

If you really feel like airing dirty laundry in public, you should consult a good lawyer first. But then you should follow that good lawyer's advice, even though the advice will almost always be: No, don't do it. Keep it private.

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

Sunday, July 27, 2008

Massachusetts Legislature Moves Toward Equality for Gay and Lesbian Couples

Despite the fact that the Massachusetts Senate recently passed Senate Bill 800, which would repeal the 1913 law that prohibits non-resident gay and lesbian couples from marrying in Massachusetts unless their home state also would recognize their marriage, the House has yet to take up and pass the bill, and has until July 31 before its current session ends. See the New England Blade's most recent article from Thursday: House Ends Week Still Silent on 1913 Law; Bill Sent for Third Reading; Session Ends Next Week, and for more background the earlier article of Wednesday, July 23 (quoted below). Pressure from the advocates for marriage equality may overcome some political resistance in the House. Hopefully the advocates will prevail, and then the measure will go to the desk of Governor Patrick, who is expected to sign it into law.

In other, more decidedly positive news, also from the New England Blade: "The Massachusetts State Senate on Wednesday, July 23, by voice vote, passed the MassHealth Equality Bill H.B. 4107, which would grant married same-sex couples in Massachusetts the same access to Medicaid benefits as heterosexual couples. Currently, federal Defense of Marriage Act regulations prohibit same-sex couples legally married in Massachusetts from being treated as each other’s spouses for the purposes of federal benefits programs, including Medicaid, which is uniquely funded by both state and federal dollars. The bill passed in the House last week. Once the House and Senate agree on slight differences in language, the bill will go to Gov. Deval Patrick’s desk, who is expected to sign it into law...."


The House of Representatives, by the New England Blade print deadline, had not taken up Senate Bill 800, which, if passed, would repeal the 1913 law thatprohibits non-resident same-sex couples from getting married in Massachusetts unless their home state would recognize their marriage.

But despite the looming end of the current legislative session — July 31 — House Speaker Sal DiMasi remains committed to bringing the issue before the full House soon, said his spokesperson, David Guarino.

“It is something we hope to bring up in the next few days,” David Guarino, spokesperson for DiMasi, said on Tuesday. “Speaker DiMasi is a strong supporter of it and hopeful to get this done this session.”

Guarino did not return a call made to him on Wednesday.

MassEquality said on Wednesday that“it’s still very likely that it will come up before the end of the session,” and asked its membership to contact their respective legislators. The Massachusetts Gay and Lesbian Caucus has also urged its membership to contact their legislators.

“The Senate acted quickly and decisively but the House may be a more difficult battle,” says the Caucus in an e-mail to its membership on Tuesday. “Our opponents have generated thousands of calls and e-mails to Representatives to stop our Repeal lobbying, and they’re having an impact. Now is the time to act. We need you to e-mail your state Representative and urge her/him to support the repeal.”

The State House News reported on Monday that some House members are concerned about taking up the repeal of the 1913 law during an election year, which has left doors open, says MassResistance, for opponents of the bill to talk with representatives.

“Last Thursday we sent people to personally visit every House office at the State House. They sat down with staff members and made them read our handouts explaining the facts about this issue,” said MassResistance in its blog(http://www.massresistance.org/). “They got both good and bad responses. Some were very supportive, some quite hostile. But we got the message across.”

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

Saturday, July 26, 2008

Double Standards and Gender Inequality

I want to point out a few more articles on gender equality (or inequality) I have read while on vacation this past week. I'm always interested in debates between those looking for fairness for women and those who seek fairness for men. If I can't find common ground, I at least hope to get a little closer to the Truth by paying close attention to the gender dialectic.

First, I recently read the following article by Jed Hresko, Deputy Director of Fathers & Families, UK Equality Commission Chief: Maternity Leave Hurts Women in the Workplace, from the Fathers & Families Blog. It discusses the inequality of granting maternity leave, but not paternity leave, and the negative policy impacts, on women and men, of such policies of gender inequality. The article discusses current circumstances in the UK, but also alludes to the recent Massachusetts Commission Against Discrimination pronouncement that our own Maternity Leave Act would be held to apply to men, despite the discriminatory text that remains in the written law. (I have already discussed this MCAD news here.) Hresko's article is insightful, and in my view, its message is spot on.

Also I came upon the following book review in the New York Times: Endangered Species or Still the Enemy? by Liesl Schillinger, in the July 13, 2008 New York Times. The article discusses both Save the Males: Why Men Matter, Why Women Should Care, by Kathleen Parker, and He's a Stud, She's a Slut And 49 Other Double Standards Every Woman Should Know, by Jessica Valenti.

I have read earlier writings by both of these very different social commentators, and have found much of great value in each. I will definitely be looking for these books the next time I find myself in a bookstore.

AT last: Dan Quayle has a defender. In “Save the Males,” a scorching jeremiad against the forces that have demoralized the American male over the last 20 years, the conservative columnist Kathleen Parker writes that Dan Quayle “was right” to blame the TV show “Murphy Brown” for injuring family values. In 1992, when the show’s title character (played by Candice Bergen) decided to have a baby on her own, Ms. Parker writes, she “attractively delivered the message that men are not essential for family.”

The result of our society’s absorption of this message? “A new generation of child-men, perpetual adolescents who see no point in growing up.” Judd Apatow... got any quibble with that?

Sharp, silver-tongued and greatly exercised, Ms. Parker identifies many other agents of male distress as well — from “pole-dancing moms and prostitots decked in baby hookerware” to films and music that portray men as “dolts, bullies, brutes, deadbeats, rapists, sexual predators, and wife beaters.”

Ms. Parker was raised by her father and by four stepmothers (her mother died when she was little). Today, she is the mother (and stepmother) of sons only.

As a result of her “total immersion in maledom,” she understandably feels great sympathy for the troubles that boys and men have in building a secure, reputable identity in go-girl America. She makes the charge that our society discounts the importance of men as fathers and husbands, and does too little to make men feel self-assured in schools, in the workplace, the family and even the military.

Judging by a plethora of recent magazine articles, books and even presidential campaign speeches, this may be true. But if it is, who’s to blame? While the author doesn’t let Hollywood and the intelligentsia off scot-free, the chief offenders in her mind are the people in push-up bras ... liberated women.

As she sees it, an entire generation of men have lost their moral compass because women decided to flash skin instead of flashing behavioral cue cards that say: Respect. Protect. Marry. Provide.

If empowered women choose to look out for themselves, she asks, what are men to do? She raises the specter of “fake wombs,” which would allow men “weary of being used as sperm donors and human A.T.M.’s” to at last “enjoy a level playing field.”

“Save the Males” is one of two new books, each of them arresting, entertaining and serious in its own way, that inspect the battlefield of the sexes in America, and come to opposing conclusions about the nature of the conflict. The disparity would almost be funny if the outcome didn’t matter so much.

THE other book, “He’s a Stud, She’s a Slut,” was written by Jessica Valenti, a gutsy young third-wave feminist. (As Ms. Parker vividly puts it, first-wave feminists “got women the vote,” the second wave “got them employed and divorced,” and the third wave “is busy making them porn stars.”)

Ms. Valenti is the founder of the blog Feministing.com, and published a book called “Full Frontal Feminism.” Her new book tracks 50 double standards that punish female assertiveness (for instance, “He’s Angry, She’s PMSing,” “He’s Dating a Younger Woman, She’s a Cougar,” “He’s Childless, She’s Selfish.”)Eerily, both Ms. Parker and Ms. Valenti single out some of the same signs of change for comment. Both are freaked out by Bratz dolls. To Ms. Valenti, they show that, when toymakersaren’t telling little girls that they should grow up to be happy homemakers, they’re telling them to be sexual.” To Ms. Parker, the dolls prove that little girls are “in training to drive boys wild,” inculcating sluttish dress habits that booby trap the workplace when they grow up to wear “provocative clothes that get men’s mind off their business.”


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

Friday, July 25, 2008

Obama: Can We Have a Choice, Not an Echo?

I have come out in favor of Obama, and have contributed to his campaign, just as I did to John Kerry's four years ago. But I have, like others, been very unhappy with Obama's flip on FISA, and his other moves to the "center." I always really hate this point of presidential campaigns when we seem to get an echo, rather than a choice, with the Democrats running to the middle and trying to look tough and presidential on war ("defense") issues, and the Republicans trying to act "compassionate" in their "conservatism."

Well it didn't really work for Dukakis when he appeared in an army tank. It didn't work for Gore when he chose as his running mate the warloving, empire-building de facto Republican Joe Lieberman. It didn't work for Kerry when he tried to convince us that not only was he a windsurfer, but also a hunter who loved guns. I wonder if Obama's new gunloving gestures will work. Of course, it is the Iraq and Afghanistan (and possibly Iran) wars and related issues that worry me most about our prospective new commander in chief.

Will we have the Republicrats and the Demopublicans again, as Ralph Nader has justifiably complained in elections past? I keep hoping that this time will be a real break, a real change, a choice not an echo.

Obama, please prove me wrong. I'll support you to the end. I supported Kerry through his flip-flops and his pandering to the "middle" and I will support you as well. But let's please have a choice, not an echo. The echos of Kerry and Gore to the "compassionate conservatism" of Bush led to close elections - close elections that, whether actually won by Bush, put Bush in the White House where he proved to be neither compassionate nor conservative.

We need to win by a convincing margin, by offering up a real alternative to more of the same bullshit. End the war now in Iraq, bring home the troops, and start no further wars for the neocons or oil industry lobbyists. Maybe after we change our foreign policy, we will then be able to make some progressive changes in spending and taxing priorities, after decades of irrational policies that have shifted more and more wealth from the poor and middle class to the rich. I'm doubtful we will be so lucky to get to that point any time soon. But here's hoping.

Monday, July 14, 2008

More On Same-Sex Marriage Recognition in Other States

It's hard to keep up, but here are two more recent articles from Findlaw's Writ on issues related to same-sex marriage. These both deal with issues regarding the legal treatment of same-sex marriages in states that do not have same-sex marriage:

*The Virginia Supreme Court Enforces Vermont's Custody and Visitation Order Regarding a Same-Sex Couple's Child: Why an Anti-Same-Sex-Marriage State Recognized a Same-Sex Union For This Purpose, by Joanna Grossman, whose writing thus far proves her to be, at least to me, the foremost academic expert on these issues.

*The Case for a Right of Marriage Recognition: Why Fourteenth Amendment Due Process Should Protect Same-Sex Couples Who Change States, an interesting piece by Chicago attorney Steve Sanders.

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

Sunday, July 13, 2008

Supreme Judicial Court Refuses to Permit Retroactive Same-Sex Marital Benefits

In No Pre-Marriage Benefits for Same-Sex Couples Massachusetts Law Updates blog has reported on the latest Massachusetts Supreme Judicial Court case, Charron v. Amaral issued this past Thursday, in which the court put a very sensible limit on the reach of the Goodridge same-sex marriage case, in deciding that its prior constitutional holding in that case would not justify now ordering pre-marriage benefits (in this case, loss of consortium benefits in a medical malpractice case) to be applied retroactively for the benefit of a lesbian couple, for a cause of action that accrued before the couple was actually permitted to get married.

Although there were no dissents, it is interesting to see that Chief Justice Margaret Marshall, and two others, set out a different rationale in a separate concurrence, and thereby delineated some apparent differences on the court regarding the meaning of the Goodridge decision.

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

Friday, July 11, 2008

Christie Brinkley Divorce - Winner Takes All?

The Christie Brinkley divorce case has just been settled, and Christie will walk away with sole custody of the children and all but $2 million in cash, from assets estimated to be worth around $60 million, including 18 properties in the Hamptons, all of which she will keep. For more see the latest stories from People Magazine, and The New York Post.

Looks like Christie won big, after choosing to insist on a public trial. But as Dahlia Lithwick said at Slate.com last week("Le Trainwreck-The Christie Brinkley divorce is a lesson in how not to cure a broken heart" July 2, 2008, Slate.com), her win may have come at a big price. As Lithwick put it:

Brinkley is about to become another victim of the fiction that you can use the tabloids more efficiently than they can use you. Won't happen. Brinkley, Cook, and their two kids will get spit out the other end of this trial, and the only real winners will be the chesty adulteresses—each of whom will have her own reality show/recording contract/clothing label by the end of the summer. I have watched enough nasty custody battles to know that if you really want your children to know the unfiltered truth, you sit down with them (when they are 18 or 21) and tell it to them. You don't run it through the double noise machine of a four-week custody trial and the 24-hour tabloid press. Whatever it is about divorce that sets the parties to behaving like children..., it would be good of them to get out of the way of the real children—whose best interests are meant to be the polestar of any custody fight. If raising children in the media spotlight isn't its own form of child abuse, subjecting them to four weeks of Daddy's dirty laundry surely is. If you can name me one celebrity who won her celebrity divorce, I'll name you a kid who lost one.

I'm not sure I completely buy her argument, but it's got some merit. I do think it is an open question how much kids really need to be sheltered from their parents' mistakes. And especially when they have been "raised in the media spotlight" how successful can we be in sheltering them? It may be that these children already knew most, if not all, of what was going on, and no further damage was done by the public airing of dad's dirty laundry. But there are those who would be in a position to know what was in the best interests of those children, including the lawyer for the children. Lithwick's best point is that the lawyer for the children wanted to close the trial, yet Christie insisted on going forward with her public trial.

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


....After an intense, all-night negotiation at a Long Island hotel, the pair agreed that she would get full custody of their two children, final parental decision-making power and ownership of the large number of properties they had amassed during their 10-year marriage.

In the end, all Cook ended up with was the cash - most of which will go to pay his legal expenses, sources said.

Brinkley agreed to pay him a flat amount of $2.1 million - a drop in the bucket when compared to her fortune, which a source close to her estimated to be around $60 million.

"It's to me a very bittersweet moment because it really is the death of a marriage. It's also a new start for all of us," Brinkley said after the settlement was announced in Suffolk County Court in Central Islip. "I'm very pleased with the results today. I was here fighting for custody."

Following five bruising days in court, the two sides holed up at a Marriott in Islandia until the wee hours of the morning hammering out the final details of the settlement. They reached an agreement at 6:15 a.m.

A little more than three hours later, the 54-year-old stunner and her 49-year-old architect husband appeared in court to before Judge Mark Cohen to announce a deal.


Thursday, July 10, 2008

How Can You Stand It In Family Court?

As a divorce attorney, I sometimes ask myself, and I am sometimes asked by my clients, this very good question: How can you do this family law litigation every day?

Shortly after I read John Bolch's recent Family Lore entry posing this question, I found myself outside a divorce courtroom and suddenly called a "douchebag" by an irate husband. He called me this in the presence of his own lawyer and his wife, who was my client. The husband's lawyer and I had been having a calm, rational discussion, when suddenly the man stormed off and called me a douchebag.

My response? I actually smiled as I looked at opposing counsel, who seemed appropriately embarrassed by his client's sudden outburst. I then asked the other attorney, "Did you hear what your client just said?" No response. We quickly moved on. Back to business.

Parties to disputes sometimes say horrible things to the opposing parties and to the opposing attorneys, and occasionally even to judges as well. Incidents like this don't affect every attorney on every day in family court. But I would venture to say that an incident somewhat like the one I recently experienced does happen every day in each and every family courthouse I know, involving at least one divorce lawyer. When these things happen, and they have happened to most if not all of us divorce litigators, it is our job as lawyers to keep our cool. We as lawyers had better not respond in kind to any such taunts, threats or verbal assaults - or worse yet, take it up a notch and get physical.

And although we are indeed required to keep our cool, I was not too surprised to read the following article yesterday by Dianne Williamson, Divorce Court: He said, he said, in the Worcester Telegram and Gazette reporting on an apparent incident in one of the family courts where I regularly appear. Read the piece. Wow, what testosterone! This reads more like a story about barely grown, drunken dads fighting at their kids' hockey game, than about mature, respected professional men in suits in a courthouse. The facts, of course, are in dispute, but there's little doubt there was an altercation and it is likely that both a litigant and a lawyer were out of line, possibly way out of line.

For every story like this that makes the news, I bet there are dozens of similar stories you will never read. And given what is at stake in divorce and family law disputes, I sometimes wonder why we don't all witness more of such incidents.

A criminal defense attorney once questioned how I could possibly stand it in family court, and then he said to me, "If I had to go into probate [and family] court, I might have to kill someone." Of course these words should not be taken literally, or too seriously. They were spoken in a restaurant and after the consumption of a few drinks. However, his words do indicate he well knows he has no business being in family court, and that's why he stays out.

Some attorneys, probably most in fact, and even many very good civil and criminal litigators, just can't stand the heat of family court and should stay out for their own good, and for the good of their clients. Litigation is by its very nature contentious. But there is just nothing quite like the heat of family court.

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

Monday, July 7, 2008

New Massachusetts Law on Child Passenger Safety

Recently, and as previously noted by Massachusetts Law Updates Massachusetts has passed a new child passenger safety bill. The new law provides: "No child under the age of eight and measuring less than fifty-seven inches in height shall ride as a passenger in a motor vehicle on any way unless such child is properly fastened and secured, according to the manufacturer’s instructions, by a child passenger restraint."

As explained on the Massachusetts government website, the new Massachusetts Child Safety Passenger Law, as of July 10, 2008, will

require children to ride as passengers motor vehicles in a federally approved child passenger restraint that is properly fastened and secured until they are 8 years old OR over 57" tall. The expanded law will require a booster seat/safety belt combination for children who have outgrown a child safety seat - typically when they are above age five or 40 pounds - until they are 8 years old OR over 57" tall. The Massachusetts Safety Belt Law requires safety belt use by those 13 years of age and older.

The federal regulations for child safety seats can be found at 49 CFR 571.213. For comprehensive information on passenger safety for children of all sizes, see the following from the website of the American Academy of Pediatrics: Car Safety Seats: A Guide for Families 2008.

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

Thursday, July 3, 2008

Massachusetts Legislature Acts to Reform Child Abuse Laws, Prevention Measures, and Bureaucracy

Here's the best article I could find on the very important bill passed by the Massachusetts House and Senate on Tuesday, reforming child abuse laws and prevention within this state: Worcester Telegram and Gazette, by John Monahan: Child abuse protections approved/Legislature redefines laws, intervention. (It is interesting that when both the Boston Globe and the Worcester Telegram and Gazette - the New York Times-owned newspapers of our two biggest cities - run similar legal stories about a development in family law or crime, it is often the considerably smaller Worcester paper which has the more comprehensive and better article.)

The bill, which is expected to be signed by Governor Patrick, will among other things formally establish the Office of the Child Advocate in the governor's office (this office was actually already created by Governor Patrick by executive order as earlier discussed on this blog), give college benefits to children in foster care, and make many other changes designed to improve the Department of Social Services (DSS) - which the law will in fact rename "Department of Children and Families."

Unfortunately, as State Rep. James J. O’Day, himself a former DSS social worker, points out in the article (see the end of the excerpt below), the bill doesn't exactly put its money where its mouth is. The overburdened and often incompetent DSS will now be mandated, as the newly named DCF, to improve its performance, raise its standards, and do more work. But how exactly will that be possible if we do not also pay for more, and better, social workers to do the extra work? New rules and new methods of oversight can only do so much.

It's certainly hard to ask for more tax money for abused children, especially in a down economy, even here in Massachusetts. After all, it's been a long time since Bill Clinton declared that the era of Big Government is over. (And of course, the era of Big Government is indeed still over, at least for welfare and social services, though not for corporate welfare and federal war spending... but I digress.)

I am afraid this new law will prove far less effective than it promises to be, much like other unfunded, or underfunded mandates, such as No Child Left Behind. But I sincerely hope I am wrong about that.


BOSTON— The Legislature yesterday adopted broad changes in child abuse laws and prevention measures, beefing up police and social worker intervention programs, requiring closer monitoring of child abuse cases and more certain investigation requirements in cases of injured children.

Perhaps the largest change calls for the establishment of a powerful new Office of the Child Advocate in the governor’s office, independent of the state Department of Social Services, whose name is being changed by the bill to the Department of Children and Families.

Sections of the bill require the independent advocate’s office to investigate all critical incidents, receive and investigate complaints, and staff a 24-hour hot line for children in foster care. It also grants the office subpoena power to acquire witness statements and documents needed in child abuse investigations from private nonprofit agencies.

The bill is a compromise between two versions approved earlier in the House and Senate; it was adopted on unanimous votes in both chambers and sent to the governor yesterday for his review.

House Speaker Salvatore F. DiMasi said the bill followed up on findings from a House task force set up to investigate flaws in state child protection services and foster care, after revelations in the case of Haleigh Poutre, an 11-year-old foster child from Westfield.

In 2005, she was hospitalized in a coma from severe brain injuries allegedly suffered in beatings by a foster parent.

The bill would offer state assistance to pay not only tuition, but also college fees for state foster children and children adopted through the state Department of Families and Children, preventing an interruption of public services when they turn 18 as required under the existing system.

It also calls for social workers to have at least a bachelor’s degree and for supervisors to hold master’s degrees, and calls for police to investigate all cases of child injuries from the outset, and would bring police in to investigate situations that result in three child abuse complaints against a family.

Other provisions exempt information obtained by the Office of the Child Advocate from public records, and require more police training on handling minors when parents and guardians are arrested.


State Rep. James J. O’Day, D-West Boylston, a former DSS social worker, said while the bill improves child protection oversight and extends services past age 18 for foster children, it fails to invest in an expansion of the state’s social worker staff to provide better services and protective programs for children.

“This is not a panacea. There is always going to be, regrettably, child abuse,” he said.

“Oversight is oversight, but we need bodies out on the street dealing with families and helping families,” which is not accomplished in the bill, Mr. O’Day said.

“Without the workers to actually go out and do all the new work they are asked to do, it’s going to be an additional burden, to do more with less — the same old story,” Mr. O’Day said. “I would like to see more workers, more staffing, more services and the ability for workers to really do the work they are supposed to do with families. You can do that with 12 or 13 cases. You can’t do that with upwards of 22 cases.”

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