Sunday, October 28, 2007

Amici Briefs in the Rhode Island case-Having married in Massachusetts, may a lesbian couple now get divorced in Rhode Island?

I just found the following amici curiae briefs for the Rhode Island case, available on the website of the Gay and Lesbian Advocates & Defenders (GLAD), including GLAD's own brief, authored in part by Mary Bonauto, who was lead counsel in the Goodridge case; another brief by various conflict of laws, civil rights and family law professors, with California's Barbara Cox, Erwin Chemerinsky and Boston's family law professor Charles Kindregan among them, concurring with the GLAD position; and yet another brief by other amici, including Brigham Young University law professor Lynn Wardle, coming down on the other side of the question.

There were also many other amici, and all the briefs in this case seem to be available on the GLAD website at

Cox, Chemerinsky, Kindregan et al:

Lynn Wardle et al:


Fire in San Diego and Water in New Orleans: the latest from the trenches of the Class War - from Greg Palast

See the latest article on the website of investigative reporter Greg Palast, who provides yet another great commentary on our sad times, and a reminder that the Class War is alive and well: Greg Palast: "BURN BABY BURN The California Celebrity Fires"

Saturday, October 27, 2007

No Longer Mere Chattel: The Rising Status of Pets in Family Law

I am surprised it hadn't happened before, but I'm certainly not surprised that it now appears to have finally happened in California: as reported a few days ago by California lawyer John Harding in his post California Divorce Blawg: Power To The Pets, Arnold Schwarzenegger recently signed into law, on September 11, 2007, a California statute that gives pets a status somewhat similar to that of human beings in some cases, by specifically providing for their inclusion in protection orders, authorizing orders providing for their exclusive care by one party and prohibiting any abuse of the animals themselves. Here in New England, Maine last year became the first state in the nation to provide for the inclusion of pets in restraining orders. At least a few other states, including New York, Vermont and Connecticut, have similar new laws pending or recently enacted. Connecticut's new law just went into effect on October 1.

The California Divorce Blawg posted a link to the new California law, at and there is some pretty interesting information here on the legislative history of this bill, including reference to recent studies supposedly showing a correlation between domestic violence (concerning human beings) and the abuse of animals.

In my cases in Massachusetts I have been a part of wide-ranging disputes over pets. Sometimes judges have made temporary orders regarding pets in family court proceedings, and even in restraining orders, despite the lack of any such law to guide them. Most judges, however, have been reluctant to deviate from the historic common law treatment of animals/pets as chattel, and so the fate of pets is often not determined in divorce cases until the marital property division occurs, often at the very end of the process, at settlement or trial.

It shouldn't be long before animal lovers in other states prod their legislatures to follow the lead of Maine, Vermont, Connecticut, New York and California.

Thursday, October 25, 2007

Having married in Massachusetts, may a lesbian couple now get divorced in Rhode Island?

The Rhode Island Supreme Court is about to decide whether its courts can approve the divorce of a lesbian couple who were joined in marriage in Massachusetts three years ago. This case appears to be the first case in which a state outside Massachusetts has had to deal with the issue of whether it can grant a divorce to a couple previously married in a same-sex marriage in Massachusetts, even though it does not itself recognize same-sex (gay and lesbian) marriages. Oral arguments have been made and a decision from the court is expected within a few weeks. Stay tuned.

LINK to Article in The Providence Journal: Woman in historic same-sex divorce case did not seek the spotlight "Cassandra Ormiston sees her court battle to end her marriage as a human-rights — not a gay-rights — issue. 'I have the same right to fail as anyone else.'"October 22, 2007, By Edward Fitzpatrick, Journal Staff Writer

"....Chambers and Ormiston married in Fall River in May 2004, shortly after Massachusetts became the first state to issue marriage licenses to same-sex couples. Chambers filed for divorce last year in Rhode Island Family Court, and Ormiston filed a counterclaim, with both citing 'irreconcilable differences.'

The case is receiving national attention because it’s believed to mark the first time any of the same-sex couples married in Massachusetts have sought a divorce in another state. The Rhode Island Supreme Court is weighing this question: 'May the Family Court properly recognize, for the purpose of entertaining a divorce petition, the marriage of two persons of the same sex who were purportedly married in another state?'...."

Judicial Activism on the US Supreme Court - Two Recent Views Posted in the LA Times

Judicial activism is alive and well, not just here in Massachusetts in our Supreme Judicial Court, but also in the conservative U.S. Supreme Court. Recently, there appeared an interesting debate in the LA Times on judicial activism in the U.S. Supreme Court.

First, Thomas Miles and Cass Sunstein of the U. of Chicago Law School discussed the judicial activism of the right in Scalia et al. (you know, those Republican hacks who voted for Bush in Bush v. Gore) in their article Who are the bench's judicial activists? ("Looking at the Supreme Court justices' voting records, the lines between activism and restraint may surprise you.") Then in reaction, we heard rebuttal from Edward Whelan who suggested the true judicial activism is from those more liberal justices who voted for Gore: Judicial activism awards fixed! ("Another view of a recent Times Op-Ed on Supreme Court decisions.")

Taken together these two very different views seem to point out the obvious: there is judicial activism on the left and on the right. There's the kind we like, and the kind we don't like, depending on our perspective.

I still agree with Alan Dershowitz that the five majority justices in Bush v. Gore were "corrupt" and deserve our ongoing contempt. But can we ignore the judicial activism of the left, such as that of our own Massachusetts Supreme Judicial Court, in the Goodridge decision that legalized gay (or same-sex) marriage in this state? And if we're really honest, don't we have to admit that even Bork had a point about Roe v. Wade?

We seem to like our judicial activists, however intellectually dishonest they may be, when they do what we want them to do, and we dislike them when they don't. I'm in favor of abortion rights and gay marriage, even if I recognize they were brought about by judicial activists, but I am not in favor of the convoluted, corrupt political decision of Scalia et al in Bush v. Gore. I think one could make a distinction that would explain why the former types of judicial activism are more justified than the latter. But still, if we are going to be intellectually honest, we have to recognize that judicial activism is both a leftwing and a rightwing phenomenon.

CORI Reform Urged By Worcester Telegram, But Caution Urged

LINK to Worcester Telegram Editorial: CORI reform
Tuesday, October 23, 2007 "CORI reform: Fix it, but not at the expense of public safety"

"Gov. Deval L. Patrick has called upon the Legislature to reform the state’s Criminal Offender Record Information Act this year. Any changes should be approached with caution. Mr. Patrick has not filed new legislation. Instead, he is urging lawmakers to work out a compromise from among the 30 or so CORI bills already filed. Many of the proposals stem from a campaign by advocates and former offenders who argue that the 35-year-old CORI is an impediment to rehabilitation. Many employers refuse to hire anyone with a criminal record, they say, even if it includes not-guilty findings and dismissals....."

The Worcester Telegram gets it almost right here, except that they wrongly state that CORI is already all public information (it is not), and they are too apparently eager to err on the side of "caution." We need CORI reform, both for the sake of reformed criminal offenders who need to work so as not to return to crime, and for the sake of those with restraining orders on their record, many of which were brought by ex-partners in divorce or other domestic disputes, and many of which were both fraudulently brought, just to get them out of the home and/or to gain an advantage in their divorce case, and too easily obtained, whether or not there was any real abuse. Employers should not have such easy access to this information, which can lead to other kinds of problems even if it doesn't always prevent candidates for jobs from being unfairly disqualified. And of course this information certainly does lead candidates to be unfairly, and foolishly, disqualified for jobs, jobs that can be used to keep them out of the criminal and welfare systems, and that can be used to pay for things like child support.

Past criminal offenders should be allowed to work again so that they don't slip back into a life of crime. Also those who have been accused of domestic abuse should be allowed to work again, and should not be prejudiced by the disclosure of the information on their CORI. Many of those with restraining orders on their record have indeed been guilty of domestic abuse, but most have changed and have had these restraining orders vacated. Many others never committed any abuse in the first place, but were themselves the victims of partners who manipulated the court system. The Telegram urges caution in CORI reform. Ironically, the judges are cautious in another sense. The judges in the district courts and family courts regularly err on the side of caution and issue restraining orders to many who have not truly reached the legal standard that is supposed to be required, lest their wonderful judicial names appear in the Telegram or other media along with the unsavory news that they refused to issue a restraining order and something bad happened (like a real abuser actually hurt a real victim).

And if these defendants, when they land in court to answer to these requests for restraining orders against them, happen to be too poor to hire a lawyer, they are not given a court-appointed lawyer, to protect them from having their children taken away and from being thrown out of their home. They will, however, be assigned a court-appointed lawyer to help them with the simple assault charge just brought against them, even though that assault charge is very unlikely actually to lead to any jail sentence or make them suffer any great punishment. (Gideon's Trumpet doesn't sound loudly enough for these folks. A lawyer is constitutionally required for indigents facing the mere possibility of temporary jail time for a crime, but not, at least according to the current prevailing opinion, for indigents facing the immediate temporary loss of their home and their children in a restraining order case.) Furthermore, even if the restraining order is very soon vacated, and indeed even if it is done so at the request of the complaining witness, the record of the issuance of this restraining order will stay on their criminal record to haunt them.

CORI reform is long overdue. Judges will always be cautious and will give out restraining orders even when these judges are not really convinced there is an imminent threat of serious bodily harm, or other abuse, as defined by the M.G.L. Ch. 209A statute (restraining order law). But we should be at least as cautious (and here I do not mean in the judicially cowardly way, but in the practical, reasonable way) in giving away this information so freely to employers, and in making more and more of such information public, regardless of the consequences.

Wednesday, October 24, 2007

My Comment On: New York Judge Threatens Parents in Custody Dispute

LINK: - Judge Blasts Parents for Using Court to Attack, Demean Each Other

A family court judge has threatened to deal "harshly" with the mudslinging parents in a custody/visitation dispute if they do not stop attacking each other in court. These parents are calling each other pathological liars, among other things. This threat is coming from Judge Singer, from New York, but it could just as well be coming from any number of other family court judges in Massachusetts, or probably many judges from any other state, I suspect. The judge is angry, and therefore, both parties must settle their dispute "out of court" lest they be punished for further mudslinging.

The theory is that the parents are putting their children in the middle and are thus hurting the children by attacking each other in this way. They should get along, for the sake of the kids, at least in order to reach some kind of reasonable parenting agreement. Otherwise, they are guilty of using their kids as pawns in their own personal battle.

The problem with this thinking, so prevalent in the family law community, as expressed by the frustrated judge quoted here (and some of the other quotes in this article demonstrate the prevalence of this thinking), is that it leads the family court, a forum designed for adversarial confrontation that is supposed to help the judge find the truth, to shirk from its own duty. This approach instead forces the litigants, who are in court because they can't stand each other and can't agree on anything, nonetheless to reach some kind of agreement out of fear that the angry judge would otherwise punish them if they actually were to continue to litigate.

But would not the children also be punished, indirectly, by such an angry decision of the judge? Then, would it not be the judge, rather than the angry litigants - one of whom is likely to be more in the right than the other, and might be vindicated if the facts could come out - who would then prove most irresponsible? The parents are being threatened not to continue with their litigation in court because the judge is frustrated, and is disgusted with the protacted conflict which he does not want to have to resolve himself. So he expects the angry parents (both of whom are upset as they are fighting over their own children and are going through a most stressful divorce) to be more reasonable than the supposedly reasoned, dispassionate judge is, and to agree on something so that the judge won't have to decide for them.

Maybe, the judge's threats and coercion will lead to the best result in this case. I don't know. This news report gives us some of the alleged facts in this case, but the court will probably never know what the facts really are, as the angry litigants have been forced to settle their issues out of court.

I don't know what the solution is in cases like this. But I don't accept the conventional wisdom quoted throughout this article that somehow the adversarial system is not good for children, so it should not be used. The children are not actually themselves in court, and can and should be shielded from the actual dispute. That doesn't mean, however, that the dispute should not be aired in an adversarial proceeding. The court is actually there for people like these. What other system would work for them? We can't just have them ordered to talk to Dr. Phil and then expect everything to be all right.

Certainly judicial threats and coercion will work if all we want is for the parents to reach an agreement, and we don't really care if the terms of that agreement would be in the best interests of the children. But if we do care, the litigation often needs to be allowed to run its course, and the court must have the courage actually to do what it was designed to do: find the facts in an adversarial, evidentiary hearing, so the best interests of the children can be determined.

Sorry to be such a contrarian, Judge Singer. Let's just hope the decision these parents will be forced to reach will be a good one for their kids.....and they won't end up in court again anyway.

New York Judge Threatens Parents in Custody Dispute

LINK: - Judge Blasts Parents for Using Court to Attack, Demean Each Other: "Judge Blasts Parents for Using Court to Attack, Demean Each Other Vesselin Mitev New York Law Journal October 24, 2007

"A New York Family Court judge has issued an unusually blunt rebuke to two parents -- one a former doctor and the other a lawyer -- engaged in a 'vitriolic and venomous' dispute over child custody and visitation.

'The parties fit the profile of that breed of litigant that the family court tends to encounter all too often; the career or habitual litigant,' wrote Judge Conrad D. Singer of Nassau County. 'The moving documents in this current proceeding alone dispense such vitriolic and venomous allegations as to make it clear that the parties, the parents, while each claiming to be the true protector of the children's best interests, simply appear to be using the Court as a vehicle to attack and demean one another.........."