Friday, February 29, 2008

Joint Custody Presumptions - And Now For The Opposing View

While we in Massachusetts are debating, most recently in the Boston Globe, the wisdom of the proposed joint custody presumption here in Massachusetts, it seems the legislature of Minnesota is studying a similar proposal in that state. In Minnesota Divorce and Family Law Blog: Joint Physical Custody Presumption Subjected to Study, Minnesota divorce lawyer Gerald Williams points out many reasons why he believes the proposed custody presumption there would not be a good thing.

I haven't read the Minnesota bill, but certainly his comments are generally relevant to our conversation here in Massachusetts. Although I am in support of the proposed shared custody presumption here in Massachusetts, I do acknowledge, and even agree with, many of the points often raised against such presumptions. Many of the best arguments against such presumptions are contained in Gerald William's post. It would be good to read it if you are interested in this.

Specifically, Williams explains why the proposed shared custody presumption in Minnesota might very well increase the likelihood of conflict, both in and out of court (many proponents of such a presumption often argue that such a presumption would decrease conflict). I think this is a very important point. I have never joined with other supporters of the shared custody presumption in believing that conflict would magically disappear once we have such a presumption in place. I'm not at all sure whether there would be more or less conflict as a result and no one knows for sure.

Perhaps even more troubling, he further points out that the Minnesota proposal, by including the obvious exception to the presumption in cases of domestic abuse (there is also this in the Massachusetts proposal) would actually be likely to lead to an increase in the use of false allegations in domestic abuse proceedings, as more litigants would have an incentive to make such claims to escape the joint custody presumption:
One other concern is the domestic abuse exception that is written into the bill. The domestic abuse laws of Minnesota are good laws, with a very bad downside: false accusations. Domestic abuse proceedings are the classic, quintessential "he said, she said", and many litigants use the laws, in bad faith, as a tactic for undue advantage. This unfortunate practice would become only more common in the instance of a joint physical custody presumption with a domestic abuse exception.

Of course, one obvious answer to that is that we also need reforms to reduce the incidence of such false allegations and fraudulent restraining orders, and fathers' groups, including Fathers and Families here in Massachusetts, have long called for such reforms as well. But still, we have to consider the very real possibility that mudslinging and false allegations would increase under a shared custody presumption, as we decide both whether we want to adopt such a presumption, and if so, how exactly we want to craft such a new law.

I certainly believe neither the current unstated presumptions or assumptions, nor a new, formal presumption in favor of joint custody can lead to a perfect system that will equally suit every type of family conflict. We have to make a choice, and the choice we make will likely cause more conflict in some instances and less conflict in others. But we can really only speculate as to how much more, or less, conflict we would face if such a presumption were adopted.

Of course, there are other concerns and interests, besides the degree of conflict in and out of court, which should guide us, and chief among them, I believe, is the interest in truth. The better, fairer, and more efficient are the mechanisms for getting to the truth in court, the more likely we will be to effect the best interests of children. That is so because, even though judges are quite fallible, they do generally desire to achieve what they believe is the right result. I believe most, if not all, of the apparent bias of judges would disappear once specific facts appeared to rescue them from their hunches and prejudices. The easier it is to get to the truth, the more often the right result will follow, whether the judge decides the case or not. And that is so because litigants - once they believe the truth would be likely to come out in court before either parent could gain an irreversible, unfair custody advantage - would be more likely to settle on that right result, whatever it is, rather than go to battle in court.

The bulk of cases will still be resolved by agreement, and mostly sooner rather than later, no matter whether we keep the current system or move to a formal presumption, and whether we have slightly more or less conflict in those toughest cases. The most important question for me, then, is what kind of system will lead to the fairest, best result for the most children. On balance, and speaking only for Massachusetts, based on my experience here, I think the shared custody presumption proposed here in Massachusetts, unless we can get the better reforms I proposed (see links to my posts below), would be a good move for us. However, there are certainly valid concerns on the other side, many of which you can find in the Minnesota blog.

For my recent posts on the proposed Massachusetts shared custody presumption, see my main post here and the follow up here. And for one of the best articles I know favoring a presumption of joint custody, see Cathy Young's 2004 article for Reason Magazine: Reason Magazine - Quis Custodiet?.

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

Thursday, February 28, 2008

Shared Parenting Bill: Some Responses to the Boston Globe

Just a bit more on the issue of shared parenting presumptions, the shared parenting bill, and the Boston Globe's recent editorial, which I criticized the other day here. In the following two letters to the editor, Paul Sawyer of Westford and Donald Miller of Boston both made some very good points. I especially like Donald Miller's analysis, which is in most respects just a more concise, and better-written, version of my own critique:

IN A perfect world, where judges could know everything accurately and quickly, simply leaving it for them to decide would be appropriate. The Massachusetts court system is not that world. It is encumbered and overscheduled, so divorce cases are often prolonged and acrimonious, with incomplete and biased information presented. Quick judicial decisions must be made at the beginning, and, without the presumption of joint custody, these often separate the father from the children and begin a destructive process that could have been avoided.

Your editorial presents opinions that seem fair, calling for more research and for trusting judges. However, it makes no reasonable argument for not passing the bill currently in the Legislature. In the absence of domestic violence, why shouldn't the presumption be joint custody? This presumption may change the course of many divorces - albeit with less income for adversarial lawyers - and would be better for our children as they grow up and eventually become parents themselves.


I would just take a few important, related exceptions to Mr. Miller's comments, with which I otherwise generally agree: 1) There will always be parents who cannot agree and will choose to fight, and so judges will still have to decide custody cases, and make many difficult decisions, both at the outset and later in the litigation process, whether we have the new presumption or not (that's why I advocate a better, and earlier, use of evidentiary hearings in such cases) and 2) I very much doubt that the shared parenting bill would lead to "less income for adversarial lawyers." That's probably just wishful thinking on his part, unless perhaps it's just a snarky remarky. But I'm sorry to say I'm sure we will continue to have great need for adversarial lawyers just as surely as we will continue to have adversarial parents, whether we adopt the new shared parenting presumption or not. (Now, maybe you think this is wishful thinking on my part, but believe me, I would gladly transform my law practice in exchange for greater post-marital peace in Massachusetts. I prefer to consider this simply realistic thinking, or healthy cynicism, on my part.)

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

Bush, McCain, Big Oil, Tort Reform, and The Supreme Court

If you're interested in some real journalism, and would like to read a really great article that manages to deal with Exxon, Bush, McCain, the US Supreme Court, taxes, tort reform, and many other things we should all be concerned with, you have to read the latest article from probably our nation's best reporter, Greg Palast:

Exxon suxx. McCain duxx.

No, this is not the common kind of "journalism" that pretends not to have a point of view. This is real investigative journalism with an attitude. But it is journalism that seeks to tell not just the truth, but the whole truth and nothing but. And so it pulls no punches. Among other things, it will explain some of the ways in which McCain has increasingly caved in, and sucked up, to the most powerful special interests as he tries to make his way to the White House.

If you want the real Straight Talk Express, you need Greg Palast, not John McCain.

And by the way, for some more conventional news accounts today on related stories, see Supreme Court Could Limit Damages in Exxon Valdez Case - by Tony Mauro, The Legal Times, regarding the Exxon Valdez damages case argued in the US Supreme Court the other day, and James Baker Backs McCain - Washington Post Blog for the news that James Baker III, who has worn quite a number of hats, including as lawyer for Exxon Mobil, lawyer for Saudi interests, and of course, big foreign policy guy in Republican White Houses, has joined Papa Bush in throwing his support behind McCain. Wow, this latest "news" about Baker and McCain is just about as shocking as the news Britney has a new lawyer again.

Greg Palast is author of the New York Times bestsellers Armed Madhouse and The Best Democracy Money Can Buy. Subscribe to his investigative reports at

Wednesday, February 27, 2008

New York Trial Judge Will Allow Lesbian Couple to Divorce There

One trial court judge in New York has just decided that a lesbian couple married in Canada can indeed divorce in New York. See New York Divorce Law Blog: Lesbian Couple Married In Canada Can Divorce In New York and for a bit more detail on the case see GLBT Couples Law: NY Court Allows Same-Sex Divorce to Proceed. The judge in this case relied on a recent decision from the New York appellate division (intermediate-level appellate court) that same-sex marriages from other jurisdictions should be given effect in New York. (For information on that appellate case, see my recent post here.)

But the basic question, whether the New York courts can give a divorce to a same-sex couple married in another jurisdiction even though the couple could not have married in New York, and answered in the affirmative here by a trial judge, is quite similar to the question which was answered in the negative by the Rhode Island Supreme Court recently. (For background on the Rhode Island case, see my latest post on that here.) This recent New York case is only, at this point, the decision of a trial judge (beware: New York confusingly calls its lowest level trial courts "Supreme Courts" and they are actually not appellate courts - the intermediate level appellate courts are in the Appellate Division, and the highest court is called the Court of Appeals) and should therefore not have the same legal force (or "precedential value") in New York as the Rhode Island Supreme Court's decision does in Rhode Island. But certainly these two recent judicial decisions from New York already do indicate some disagreement between New York and Rhode Island.

We should expect more "votes" on these issues to come in from other states - and they may be expected to come from any states to which same-sex couples have decided to move. Stay tuned.

Excerpt from the GLBT Couples Law Blog:

New York, NY—In what is believed to be a groundbreaking ruling a New York City judge says that the ruling by the state's highest court that found there is no constitutional right for same-sex marriage does not apply to divorce.

The ruling by Supreme Court Justice Laura Drager allows a Manhattan woman to sue for divorce from her same-sex partner whom she married in Canada in 2004.

Drager found that out-of-state same-sex marriages are properly recognized under our law, and therefore Beth R. can proceed with her case against Donna M..

R is seeking the divorce and the awarding of joint custody of M's two children. Because the children are minors the women are identified only by letters.

M had sought to have the divorce petition quashed on the grounds that New York State does not recognize same-sex marriage.

In her ruling Drager said that New York does not recognize an out-of-state marriage in only two instances: if it is specifically named by the Legislature as prohibited or is abhorrent to New York public policy.

The written ruling noted that the Legislature has not specifically outlawed out-of-state same-sex marriages, and that the abhorrence exception is so narrow that it has been applied only to marriages involving polygamy or incest.

An attorney for M told the New York Post he will appeal.

The case will likely be decided by the New York Court of Appeals, the state's highest court in light of an appeal of a similar ruling this month by an appeals court in Rochester.


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

Sunday, February 24, 2008

Fairness for Fathers -The Boston Globe Weighs In, But Doesn't Really Get It

The Boston Globe yesterday opined on the shared parenting bill, introduced by State House Representative Colleen Garry, a Dracut Democrat, and cosponsored by about 50 other legislators, including many of the legislature's most thoughtful and courageous members, as well as the progressive Fathers & Families organization. In A fair role for fathers - The Boston Globe, the Boston Globe paternalistically (or should I say "maternalistically"?) condescended to admit that the idea of shared parenting is appealing, even while it predictably rejected the idea without any convincing explanation or any alternative proposals for reform.

I myself believe that, short of other, more comprehensive reforms that would make the family court fairer to children, the shared parenting presumption proposed in this bill makes a lot of sense. Some of the reforms I would prefer to see include mandatory evidentiary hearings at the temporary orders hearing stage of all divorce and family law proceedings where physical custody is in contention, and other reforms designed to force judges actually to hear facts, presented as evidence in court, rather than to make conclusions based on short motion hearings, followed by delegation of investigatory authority to guardians ad litem, who are very often incompetent, biased, or both, after which the temporary orders often become permanent orders, without regard to what would truly be in the best interests of the children. Also, I would like to see standards raised for judges, greater accountability for judges, for judicial pay to be raised, and many other badly needed reforms to make the judicial process more competent, fair and efficient.

We need facts, and custody cases should be fact-driven, and decided on a case-by-case basis, and should not be prejudiced by procedural obstacles to having those important facts presented in court. It is interesting that the Boston Globe argument actually seems to make just this point, but in doing so quotes the very knowledgeable Professor Kindregan, with whom I usually agree, in an attempt to discredit the shared parenting initiative and to defend the status quo:

Charles Kindregan, a law professor at Suffolk University, soundly argues that a presumption of joint legal and physical custody could handcuff judges who should be free to consider the best interests of children on a case-by-case basis. "You don't need a presumption when you have facts," Kindregan says. The relevant facts include children's age, temperament, emotional development, and medical needs, as well as how parents get along and how far apart parents live from each other.
Amen. Well, of course we need facts. I agree you don't need a presumption when you have facts. That's why I think we should hear the facts immediately. Without facts, there will be presumptions or assumptions that govern behavior, whether written into the law or not, and these presumptions or assumptions will lead to "temporary" custody orders that are hard to change. The problem is the current system generally presents obstacles and long delays for those who would benefit in the early presentation of those facts.

That's why there should be immediate evidentiary hearings in court when custody is in dispute, not 15-minute temporary orders hearings where no evidence is heard, but failing that, there should be no premature award of custody to one of the two parties until the facts are presented. When a couple is married, they both have custody by operation of law. It is not clear why that should so quickly be taken away from one party, right at the point of the marital split, as it so often is, before any evidentiary hearing, or trial, takes place.

Actually, the shared parenting bill aims to do much the same thing as would my proposal for more - and earlier - fact-finding, evidentiary hearings, by requiring that the court actually hear evidence and enter findings before giving sole physical custody to just one of the two parents.

Unless and until we can get the greater, more comprehensive reforms I favor, I think shared parenting presumptions, or at the very least some change in the direction of more enlightened states, such as California, and even New Hampshire, which have progressively reformed their family law language and procedure, should be implemented. I support this bill just as I have long supported affirmative action for minorities, and gay and lesbian rights, and for similar reasons: there is irrational discrimination and it needs to be remedied. We need a push in the right direction. We needed a push in the civil rights arena, and we got it with civil rights legislation and affirmative action. We needed a push for gay and lesbian couples and the Supreme Judicial Court gave us one.

Let's face it. If decisions have to be made without the presentation of facts, presented by witnesses under oath, under cross examination, "temporary" custody decisions will necessarily be made based on less reliable things, including self-serving he-said, she-said allegations in short motion hearings by attorneys about what the facts will supposedly show at trial. In such cases, there will always be presumptions or assumptions. The question then becomes: What kind of presumptions or assumptions do we want to have?

Indeed, in the absence of such a presumption of joint physical custody, or shared parenting, we will continue to have the unstated, actual presumption or assumption that favors the illusory status quo, that unstated assumption that purports to keep things as closely consistent with how they appeared to have been before the splitup by keeping things as they appear to be now, i.e. the children would remain as they happen to have been placed through the chaotic, anarchic process of domestic splitups, which far too often leave the children under the sole control of the mother. Of course, often the children happen to be with the mother during this anarchic process because the mother is and was in fact the primary caregiver and the more active parent; however, when that is true, the mother should not suffer on account of a requirement that the court actually look at the facts and make findings before awarding custody to her alone. (Indeed it should help her to fend off, very early in the litigation process, any frivolous claims for custody.)

Yes, now we need a push in the family law arena that we can accomplish through a change in the language and attitude of family law. Such a change would help people, including our decision makers, to see the light and stop discriminating in the inadvertent, unthinking way they often do. But the dilemma, I'm afraid, is that we may in fact need more people to see the light before any changes will be made. There are several facts that a majority of voters will probably need to acknowledge before any real reform will happen, and to do so, they will have to open their minds and overcome their predilection to side unthinkingly with the politically correct:

1) Most judges are, like all of us, stuck in the past, and limited by their own experiences growing up in a more conservative, traditional world, in which mothers were presumed to be the better caregivers. But as the saying goes, the more things change the more they stay the same. Although judges are getting better and better about acknowledging the expanded role of fathers in children's lives and in entertaining the possibility of shared or even sole physical custody for fathers, they are still, like most of us, stuck in the past, and are, like all of us inclined to decide based on their hunches, biases, and their limited life experiences, when they don't actually see all the facts.
2) Mothers are not necessarily better caregivers, and many fathers are far better caregivers than the mothers.
3) It is very hard, and it takes a long time if it ever even happens, to have the facts presented in court in custody cases. Usually witnesses and evidence are not ever presented, as by the time the parties can proceed to trial, the result is already a forgone conclusion, based on the precedent set by temporary orders and preliminary custody determinations and agreements made without the benefit of any evidentiary hearings on the matter.
4) A mother is more likely to get custody, even in situations where the father is the better parent and the children would be better off with him. All other things being equal (such as access to financial resources to fight, ability to parent the children, level and degree of parenting involvement with the children), mothers have an unequal advantage, and are in a much superior bargaining position in custody disputes.
5) The family court procedure gives advantage to the person with present control over the children, and gives the mother easier means of securing that kind of control, including but not limited to the ready availability of restraining orders, which can be, and often are, easily brought and obtained through fraudulent, false allegations. Securing this kind of control of the children through manipulation or fraud is much more available at present to women than to men, and there are many ways in which the current domestic violence system is very discriminatory toward men.
6) It is usually, but not always, true that mothers are the more involved of a child's two parents in traditional relationships, as that has historically been the case. But even in those typical situations, it is not always true that children are better off having one parent have the children 70 percent or more of the time after their parents split up. Most children will benefit from having time with both parents on schooldays and on weekends, no matter what the division of labor was in the family before their parents split.
7) Fathers had unfair advantages in custody cases, until the "tender years doctrine" and restraining orders gave the upper hand to women in this country in custody battles. The subsequent replacement of the "tender years doctrine" with the "best interests of the child" standard has not resulted in evening the scales of justice. Mothers and women generally still are strongly favored in many ways by the law itself, even though it generally appears on its face to be gender-neutral now, and are favored even more so in the way that law is implemented in family courts in this state.

I have hope as I see some improvement in the attitudes and wisdom of members of the family law community, and I feel very encouraged by the success of organizations like Fathers & Families. However, I really strongly believe that we should do our best to effect the best interests of children in every case, and unfortunately, the best interests of the children are actually not being served in many, many cases. Frankly, and to put it bluntly, too many children are being placed with their mother when they should instead be placed with their father, and even more children are being placed solely with their mother when they should instead be placed with both parents in a shared parenting arrangement. Although I would prefer more comprehensive reforms, as I have indicated, I certainly believe this proposed shared parenting law would help us to achieve the best interests of many more children than we now do.

Over the years, as I have practiced family law in Eastern Massachusetts, representing both women and men, in every kind of situation - mothers with sole physical custody, fathers with sole physical custody, and both mothers and fathers with joint physical custody - I have watched this state adopt progressive reforms benefiting gay and lesbian couples, while simultaneously failing to make equivalent progress, and real justice, for the vastly greater number of children, mothers, and fathers who come from "traditional" homes with a father and a mother.

Massachusetts is my adopted, not my home, state. I have often been attracted by the progressive spirit of this state, but perplexed often by its seemingly contradictory, traditional, conservative, even reactionary forces. I find in the family law field that this contradictory nature, this strange blend of progressive and regressive forces, may be responsible for the strange alliance and synergy I have witnessed between traditionalists - and I mean in fact "paternalistic" traditionalists - and radical feminist ideologues who have demonized men, often without any sense of reality. It is in part this strange combination of forces, and distorted ideas, that has led to the inequality so obvious in family court today.

Of course, there are many people who are, and will continue to be, in denial about these basic facts. There are actually even some women's groups who claim they are still discriminated against in family court. It wasn't that long ago that they were, but now it is men who are discriminated against in family court. However, real gender equality, like Cathy Young has advocated, is what we need, and it will require all of us, not least of us opinion makers such as the Boston Globe, to understand and acknowledge reality, both that of the workplace and that of the home. Until then, we will continue to watch real progress on this front take place in other states like neighboring New Hampshire.

But why, I wonder, can't we have feminism, fathers rights and gay rights all at once? They are not mutually exclusive. We have the potential to be the best state in the nation, in terms of equality, tolerance and acceptance in our family and social life. I mean, can't we all just get along? Am I just a crazy dreamer?

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

Saturday, February 23, 2008

More Massachusetts Legal Blogs

Thanks to Doug Cornelius of the Real Estate Space Blog for providing a rather long list of Massachusetts Blawgs, much longer than the one I recently posted here. His list includes lots of blogs I have not yet read, but which I will certainly try to explore soon.

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

Arizona Republicans, Drug Abuse, and Hypocrisy

QUESTION: What do John McCain and the late former Chief Judge William Rehnquist have in common besides that they were both Republican political hacks from Arizona? (Oh, did you think Rehnquist was just our former Supreme Court Chief? Well, he had a not-so-well-known role as a Republican hack challenging Hispanic and African-American Democratic voters in Phoenix, long before he became the Republican Hack-in-Chief of the US Supreme Court. For more background on Rehnquist, see Alan Dershowitz: Telling the Truth About Chief Justice Rehnquist - The Huffington Post.)

ANSWER: These two Republican politicians have both been drug abuse hypocrites.

Attorney and psychologist Stanton Peele wrote the following piece for the LA Times, back in 2000 when McCain was running for president against the convicted drunk driver from Texas: McCain's Double Standard: Hawk In The Drug War, Yet His Wife Got No Penalty. Here's the opening of that article:

"Much has been made of allegations of possible youthful use of illegal drugs by Republican presidential candidate George W. Bush. Meanwhile, his chief GOP opponent, Arizona Sen. John McCain, has admitted that his wife not only illegally used drugs but walked away from criminal charges. The McCains have worked to make Cindy McCain's addiction into a political asset--despite the fact that she stole the drugs from a charity she directed and used them while mothering four young children."
And as for Rehnquist, see the following: Chief Justice Rehnquist's drug habit. - By Jack Shafer - Slate Magazine. One would think Rehnquist's own drug addiction would have led him to have the slightest sympathy for criminal defendants over whom he sat in judgment, but one would be wrong.

Perhaps it is naive to think the War on Drugs should ever affect drug abusers in power.

Federal Judges in Massachusetts Are Releasing Crack Offenders After Sentences Were Retroactively Reduced

As reported a few days ago in the Boston Globe, federal judges in Massachusetts are now releasing several prison inmates pursuant to the federal government's retroactive reduction in sentences for crack offenders. If you read this Boston Globe article, you should know that the newspaper yesterday issued a correction to point out that its headline and first paragraph inaccurately stated that the total number of prisoners affected could be 30, when the real number likely to be affected is actually at least 91, as later indicated in the article itself.

For more on the story of sentence reductions for crack offenders, see my last post on this subject here.

For information about Massachusetts criminal law (not federal) see the criminal defense page of my law firm website.

Thursday, February 21, 2008

Supreme Court to Hear QDRO Case

The US Supreme Court has accepted a case involving a question regarding Qualified Domestic Relations Orders (QDROs). In the case from the Fifth Circuit Court of Appeals, the Supreme Court granted cert on the following question only: "Was the Fifth Circuit correct in concluding that ERISA’s Qualified Domestic Relations Order provision, 29 U.S.C. § 1056(d)(3)(B)(i), is the only valid way a divorcing spouse can waive her right to receive her ex-husband’s pension benefits under ERISA?"

For more information, see the SCOTUS Blog's story here, the Boston ERISA and Insurance Litigation Blog's post here and the Iowa Divorce and Family Law Blog's post here.

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

Tuesday, February 19, 2008

Mothers, Fathers, Families & Gender Issue Blogs

Following up on my recent post, in which I recommended two very different blogs, one from fathers and the other from feminists, I now want to supplement that post by listing several other blogs that are contributing, in their own particular way, to the dialogue we should be having on gender issues - issues that should be of concern to anyone in the family law field, and, for that matter, anyone who cares about our social and family life.

These blogs are quite different from one another, so much so that it is unlikely they will ever appear together on any other list. And even though I often disagree with specific things they say, I find that generally they all do a better job than most commentators in contributing thoughtful, provocative posts that really try to tackle these important issues head on. Of course I do find much with which to agree in each of these blogs, and I highly recommend them all:

Family Scholars Blog
Fathers & Families Blog
Feminist Law Professors Blog
Glenn Sacks Blog

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

Sunday, February 17, 2008

Sex Toys Now Legal in Texas

I like to joke that our nation owes a huge debt of gratitude to the legislature of Georgia for aiding in the development and refinement of civil liberties and constitutional law. More recently, however, we have the Texas legislature to thank.

Less than five years after the US Supreme Court struck down the Texas sodomy law, in Lawrence v. Texas, on 14th amendment substantive due process grounds, the Fifth Circuit of Appeals (US Court of Appeals) has now struck down another similarly ridiculous Texas law, also on 14th amendment substantive due process grounds, and has thereby lowered the price of sex toys in the state of Texas. See Appellate Law & Practice's post, Appellate Law & Practice: Price of Dildos Lowered in Texas and the Feministing post "Obscene devices" now legal in Texas!.

And if you want more background on the fascinating recent history of sex legislation in Texas, and lots of laughs, spend some time with Molly Ivins:

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

Saturday, February 16, 2008

Indigent Parents In CHINS Cases Now Get Free Attorneys

The Massachusetts Supreme Judicial Court (SJC) recently looked at two CHINS (children in need of services) cases, one from Worcester County and the other from Essex County, in both of which a juvenile court judge had denied a mother legal right to court-appointed counsel. The SJC ruling in this consolidated case In the Matter of Hilary has now established that parents in these cases do indeed have a right to be heard, may have an attorney representing them in these proceedings, and further have a right to an appointed attorney if they cannot afford one.

For more information about the case, see the February 11, 2008 article by David Frank in the Massachusetts Lawyers Weekly, SJC gives parents right to counsel in CHINS cases.

About this expanded access to justice, the Boston Globe, in an editorial from February 14, A Break For Desperate Parents opined: "Providing lawyers for poor parents could cost roughly $1 million to $2 million a year, according to Mike Dsida, a deputy chief counsel for the state's Committee for Public Counsel Services. This is only fair. Parents accused of abusing their children already have the right to a lawyer if they risk losing custody. Parents in CHINS cases should also have that right."

I completely agree with this recent SJC ruling, which expands in a reasonable way access to justice to parents in CHINS cases, and with its analysis and rationale. I similarly agree with the Boston Globe's commentary.

Furthermore, I believe that this case, and its basic rationale, lend great support to my longstanding position that the SJC should also require the appointment of lawyers to indigent individuals in district courts and family courts when and where they are challenging restraining orders, at the very least when these individuals have children in their home and they risk losing custody. See my previous post touching on this issue here.

The specific issue of access to justice for individuals defending against restraining orders has not yet been before the SJC. I hope that important issue will also be before it at some point soon, and the SJC will fairly and appropriately continue to expand access to justice in a sensible way, as it has done in this recent CHINS case, for which it should be applauded.


"The issue of first impression that we decide in these consolidated cases from the Worcester County and Essex County Divisions of the Juvenile Court Department, which are here on a reservation and report, without decision, from a single justice of this court, is whether, after a child is adjudicated a child in need of services (CHINS), a parent is entitled to counsel at the dispositional phase of the proceeding, if custody of the child is at issue. G.L. c. 119, § 39G. Two Juvenile Court judges denied, among other things, the indigent mothers' requests for such court-appointed counsel. Because we conclude that, pursuant to G.L. c. 119, § 29, parents are entitled to counsel at the dispositional phase of a CHINS proceeding if the judge is considering awarding custody to the Department of Social Services (department), and have a concomitant right to intervene in the case, see note 18, infra, we reverse the decision of the Worcester County Juvenile Court judge and remand that case for further action consistent with this opinion.


For the reasons set forth above, we conclude that, pursuant to G.L. c. 119, § 29, after a child is adjudicated a child in need of services, a parent is entitled to counsel at the dispositional phase of the proceeding if custody of the child could be granted to the department. We reverse the decision of the Worcester County Division of the Juvenile Court Department and remand the case for further proceedings consistent with this opinion.So ordered. "

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

Thursday, February 14, 2008

Military Deployment Often Means Loss of Custody to the Other Parent Back Home

This morning I just heard, on National Public Radio's Morning Edition, the following feature story about a female soldier who lost custody of her child after she was deployed to Iraq: NPR, Morning Edition, February 14, 2008: "Soldier Loses Custody of Child After Iraq Tour". The story discusses the vulnerability of deployed military men and women, especially during a time of war, when they happen to be caught up in custody battles back at home, either in divorce or other family law proceedings, as the courts tend to favor the parent who has stayed behind.

This story is really just sort of a variation on a common theme in family court. There is usually a strong custody presumption or assumption, whether stated or not, in favor of the parent who is currently most available to the children, and with whom the children already primarily reside, or can most easily reside, on a regular, and stable basis. In other words, at the huge risk of oversimplifying, possession is nine-tenths of the law. (And here I use an old common law adage, which may in fact be more apt now in family law than in property law, and particularly so long as we continue to use property-based language such as "custody" in our family law).


"Advocates for military families say a growing number of soldiers are losing custody of their children, not because they're bad parents but because they've been deployed overseas to Iraq and Afghanistan.

A bill signed by President Bush last month strengthens protections for service members and their families. But legal experts say some military moms and dads are still vulnerable....


Pentagon officials and military-family support groups say there are no statistics on the number of military parents who have lost custody of their children following deployments.

But they agree that the number is increasing, sending waves of anger and fear through the military.

The Army Times newspaper published a scathing editorial on the subject last month, written by managing editor Chuck Finch.

'We have a volunteer military, and the idea of volunteering to serve your country and then facing the prospect of losing your children — it's a little mind-boggling,' Finch says.

In January, President Bush signed a bill that included new language designed to strengthen protections for military parents in custody cases.

Now, custody cases must be delayed for at least 90 days during overseas deployments. The bill also requires that attorneys be appointed to represent military parents in such cases.

But Greg Rinckey, a former Army attorney who specializes in military law, says judges are still free to rule that lengthy and repeated deployments have disrupted a soldier's home life to such a degree that a child's custody should be altered.

'In my experience in the JAG corps, I can say that this happens hundreds of times across the nation, if not even more,' Rinckey says.


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

Tuesday, February 12, 2008

California Supreme Court To Hold Hearing on Gay Marriage

From Jeffrey Lalloway at the California Divorce and Family Law Blog, comes the news that the California Supreme Court will hear oral arguments on gay marriage on March 4.

Excerpts from the California Divorce and Family Law post:

"The pros and cons of same-sex marriage will get an airing here March 4 in oral arguments before the California Supreme Court, the court announced Wednesday.

In dispute is the constitutionality of the state's marriage statutes, which currently limit marriage to couples of the opposite sex.

The contentious issue, launched in February 2004 when San Francisco Mayor Gavin Newsom began furnishing marriage licenses to gay and lesbian couples, reached the high court in 2006. In re Marriage Cases, S147999.

Three issues are key for the court: whether the state's exclusion of same-sex marriage violates the equal protection rights of lesbians and gay men; whether that exclusion violates the right to personal autonomy protected by the California constitution's privacy clause; and whether the exclusion violates the fundamental right to marry protected by the state constitution's liberty clause.

The most important differences between domestic partnerships and marriage are cultural, according to attorney Kate Kendall of the National Center for Lesbian Rights.

'Mothers and fathers do not ever say they want to dance at their daughter's domestic-partnership registration ceremony,' Kendall said last year. 'Marriage is imbued with a very inspiring, intense and significant cultural acceptance that for many couples, long after the day happens, the fact of that ceremony is burned into their memory.'

Mathew D. Staver, the lead attorney for Liberty Counsel, a Florida traditional-family lobby, countered, 'Those who are seeking same-sex marriage are not doing so for the benefits but for the state's seal of approval that comes with marriage. The state does not have to put a stamp of approval on any relationship.'

The Supreme Court granted same-sex marriage proponents' petition for review after a divided panel of the 1st District Court of Appeal voted 2-1 that only the Legislature can define marriage.

The appellate court reversed San Francisco Superior Court Judge Richard Kramer, who upheld [San Francisco Mayor] Newsom's right to issue the licenses.

From the Daily Journal. (Registration Required)"

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

Monday, February 11, 2008

McCartney Chainsaw Massacre

Thanks again to English family lawyer John Bolch and his Family Lore blog, for helping us here on the other side of the Atlantic to keep up with the ever-fascinating McCartney-Mills divorce.

In his recent post Family Lore: The Bishop, the Beatle and the Beards, Bolch points to another wonderful English family law attorney and blogger, Marilyn Stowe, whose Marilyn Stowe Family Law and Divorce Blog describes the horror show that is in store for Heather Mills when she goes it alone to her final divorce hearing to face Sir Paul McCartney and his dream team.

Marilyn Stowe says if there were ever to be a film about the court proceedings, it might be called the "McCartney Chainsaw Massacre, with Heather Mills as the victim." If you're foolishly considering representing yourself in a high-stakes divorce, perhaps you should first read Marilyn Stowe's entire, vividly descriptive post Heather Mills minus the divorce lawyer, and not just my excerpts from it, below. (By the way, I'm finding these British family law bloggers are just way more creative and better writers than we are over here in America. I'll probably have to keep adding more of them to my blogroll.)

"When Sir Paul McCartney and Heather Mills face one another other in court next week, Sir Paul will be flanked by some of the country’s toughest lawyers. Ms. Mills, meanwhile, has elected to represent herself. To my way of thinking, having represented a client in a similar scenario only last week in London’s High Court, to go into court unrepresented is as foolhardy as anyone could ever imagine.

For those unfamiliar with the facilities at the Royal Courts of Justice, let me describe the atmosphere in the sombre courtroom. Until a final deal is signed and approved by the Court, a fully fought contest could yet take place. Even an agreement reached 'in principle' does not guarantee a done deal - and could still break down.

The courtroom is imposing. The High Court judge, Mr Justice Bennett, will sit on a raised dais, without robes or wig. Ranks of lawyers will be seated opposite him. The formidable Queen’s Counsel Nicholas Mostyn, who pulls no punches - he once fearlessly cross-examined an entire opposing team of lawyers, including one by video link while she holidayed in Japan - will sit on the front row. I do not expect him to spare Heather Mills. Behind them will be the barristers and solicitors.

The junior lawyers assisting with the case will bring up the rear. Teetering piles of files, all numbered and paginated, will be stacked on the desks. Individual sets will be placed before the judge, every one of the lawyers and both parties involved. Microphones will be suspended from the ceiling, for an accurate taped record of the hearing. The air will be cold; the atmosphere will be tense and thunderous.

When Heather Mills steps into this courtroom, she will face her husband, this menacing phalanx of lawyers ranged against her, and the judge - who will, I expect, keep the proceedings strictly private. It is only then, I suspect, that she will begin to realise what she is in for. In this courtroom, there will be no prisoners and if an agreement is to be made into a final order, she will be expected to sign up to a draconian agreement drafted by Sir Paul’s lawyers....


Admittedly, Ms. Mills’ experiences representing herself in court, up against her idolised husband and the pillars of the legal establishment, could have all the makings of a great film. She could even play herself as the heroine. However, I fear that single-handed battle in the High Court is a labour for which she is ill-qualified. Even if she does settle, she could succumb to an unbalanced deal that she will regret for the rest of her life. With this in mind, a movie version may end up resembling the McCartney Chainsaw Massacre - with Heather Mills as the victim."

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

Sunday, February 10, 2008

Wal-Mart - Health Care Reformer?

From Massachusetts attorney David Harlow at the HealthBlawg comes this interesting new post about Wal-Mart, discussing Wal-Mart's purpurted innovations in the health care business: HealthBlawg: Wal-Mart: The 51st State?:

"When it comes to health care reform, I've long held the view that we should let the states act as laboratories, experimenting with new and different approaches to health care financing, delivery and quality assurance. Now it seems that Wal-Mart views itself as one more such laboratory. First it was promoting $4 generics, then it started offering more in the way of employee benefits (though it's drawn a line in the sand on employment-based health insurance), and now it's pushing a bold new PBM (pharmacy benefit manager) plan and getting directly into the retail clinic biz.

The PBM plan was predictably pooh-poohed by potential competitors.

The news came out today that
Wal-Mart will be getting into the retail clinic biz directly, through alliances with local providers, rather than continuing to lease space to outside operators -- one such operator suddenly closed up shop last week. Wal-Mart is looking at 2,000 clinics over the next 5-7 years. "The Clinic at Wal-Mart" will allow for greater standardization across all of these sites. I've discussed pros and cons of retail clinics in other posts...."
I am skeptical. It is hard for me to imagine anything good coming from Wal-Mart in the health care arena, but I admit I am biased after seeing the documentary High Cost of Low Price, which explained how Wal-Mart, in Massachusetts as well as many other states throughout the nation, worked the system to bleed the taxpayer, most remarkably by not insuring its own employees and having its employees sign up for taxpayer-funded benefits, such as MassHealth (in Massachusetts). Wal-Mart has been very successful at making huge profits on the backs of the taxpayers throughout the nation, in so many ways, including by setting up a system whereby public benefits are provided to its own working-poor employees, for whom the company has failed to pay a living wage. See the Facts in the Wal-Mart documentary.

Now we are supposed to trust Wal-Mart with innovative new health care ideas the states can emulate? It may be that we should, but if so, I would find that ironic to say the least. Looking to Wal-Mart for ideas on health care reform seems a little like looking to Chevron for innovative ideas in environmental protection.

This particular irony calls to mind for me the similarly disturbing fact that Hillary Clinton - the supposed progressive champion of women, labor, and health care - was once on the Wal-Mart Board from 1986 to 1992, when Wal-Mart was busy with its union busting, sweatshop labor, and anti-women policies, as a run-up to its successful maneuvering to make taxpayers pay what should have been some of its own costs of doing business, such as health care costs of its own underpaid employees. See the recent ABC news story on Hillary and Wal-Mart here: YouTube - Hillary Clinton on Walmart.

To be fair, Hillary has recently distanced herself from Wal-Mart and its policies, and I believe it is clear that Hillary's mind and heart are in the right place on health care, even if, as her own relatively unambitious positions indicate, our national prospects for universal coverage, and certainly for the single-payer system we really need, are much diminished. Of course, I may myself be in fact too optimistic about this, as AlterNet: TRex: Hillary's Heath Care Sham Won't Cure What Ails Us points out Hillary's universal health care plan is really a mandatory universal health insurance plan, probably no better than what Romney ushered in here in Massachusetts, and that is a health care reform for which the jury is still out.

But I think my point, as we wait to see what wonderful, innovative ideas come from Wal-Mart, is this: We should all question the far-too widespread, collective faith in Corporate America to solve our problems, especially when corporations are themselves such a huge part of these very problems.

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

Friday, February 8, 2008

McCartney v. Mills & Mills v. Her Lawyers

Check out the Family Lore blog's recent post on the McCartney-Mills divorce: Pools of Sorrow, Waves of Joy. Apparently the McCartney-Mills divorce saga has still not ended with an agreement between Paul and Heather. In fact, it seems Paul and Heather may be going to court next week for a five-day hearing to resolve their divorce, and in that important proceeding Heather may continue to be without a lawyer after she and her longtime law firm parted ways. Also, apparently her former solicitors are claiming she owes them up to two million pounds for legal representation in her divorce, but she may in turn be suing them. For more, see Lady McCartney 'set to sue divorce lawyers' - Telegraph.

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

Thursday, February 7, 2008

Obama: Help Him Win!

From the Obama website: Obama Wins Super Tuesday: Wins Most States, Wins Most Delegates:

"Campaign Manager David Plouffe...
By winning a majority of delegates and a majority of the states, Barack Obama won an important Super Tuesday victory over Senator Clinton in the closest thing we have to a national primary. From Colorado and Utah in the west to Georgia and Alabama in the south to Senator Clinton’s backyard in Connecticut, Obama showed that he can win the support of Americans of every race, gender, and political party in every region of the country. That’s why he’s on track to win Democratic nomination, and that’s why he’s the best candidate to defeat John McCain in November."


It may be too late to vote for him (and it is if you're in Massachusetts) but it's not too late to contribute to his campaign. Go to

Obama's the best candidate still in the race. Although he and Clinton are now positioning themselves similarly on the issues in their race for the White House, Obama is the only remaining candidate who has neither said nor done the wrong thing on Iraq. He had no part in the hideous mistake that got us into Iraq.

Furthermore, he's right on more of the issues than any other remaining candidate, and he probably has a better chance than Clinton at winning the race against the horrible war-mongering frontrunner in the Republican race, who is no more a moderate Republican in reality than Romney was a conservative Republican (until he started running for President while still Governor of Massachusetts). A recent Time Poll shows Obama has a better chance against McCain than Clinton: TIME Poll: Clinton More Beatable than Obama.

Out with the Republicans. They are phony, have no credibility, and are destroying our country. We need the kinder, gentler Establishment Party (the Democrats). These years of Republican neocon, big oil, and general corporate rightwing madness must come to a final end.

We must support Democrats, even though they have had no courage and have regularly sold us out to big business interests, like the Republicans. However, the Democrats will govern far better than the Republicans. If not sure about this, just compare the Clinton presidency with these crazy years under the current Bush. I will certainly vote for Hillary Clinton in November, if she's our nominee, but I'd rather be able to vote for Obama.

OBAMA. Send him a small or large contribution now.

Wednesday, February 6, 2008

Two Great Blogs - From Feminists and Fathers

At the risk of offending everyone, I want to recommend two very different blogs I regularly read. They are so different that they may in fact appear to be polar opposites. One is a group blog with lots of interesting posts by self-described feminist law professors: Feminist Law Professors. The other is the blog of the Massachusetts-based Fathers and Families organization, written by its founder Ned Holstein, in collaboration with fathers' rights advocate Glenn Sacks: Fathers & Families Blog.

I like to think of myself as both a feminist and an advocate for men. I believe feminism and fathers' rights need not be in conflict with each other. Of course, much of what many feminists (that is, the radical ones) say is not only quite extreme but in fact demonstrably false, and similarly, much of what many men's advocates say is also extreme, ridiculous, and over the top.

But there are many valid, reasonable points made by both feminists and men's advocates. The issues they raise should be addressed in our society, and should lead to changes in our legal system. Many of these valid points are being made, and these important issues are being discussed, on the Fathers & Families Blog and the Feminist Law Professors Blog.

We all should pay attention to the sane, rational voices who cry out for true equality for men and women - in the workplace, at home, in our legal system, and everywhere else in our society. This is the kind of true equality that the feminist movement set out to accomplish in its earliest years, and is the kind of equality that its reasonable proponents continue to seek.

I am very attracted to the thinking and writing of Cathy Young, whose former column for the Boston Globe is greatly missed, and not just by me, I'm quite sure, as her voice is to me the very calming sound of Reason in a sea of angry, strident voices in the Battle of the Sexes. Her book Ceasefire! Why Women and Men Must Join Forces to Achieve True Equality should be required reading for all in the family law world and all concerned with gender issues.

I believe that much of the unfairness faced by women, both in the workplace and elsewhere, is intrinsically related to the unfairness faced by men in domestic relations situations. Thousands of years of history have prejudiced most of us, whether we realize it or not, to act on the apparent belief that men and women have certain determined roles and should remain in those historical roles. The same conservative attitudes that stand in the way of women in the workplace also stand in the way of men at home. But Cathy Young has already said it, far better than I could ever say it, in her book years ago.

I don't always agree with what I read in either one of these two very different blogs, one from fathers and the other from feminists. However, I do find I actually agree with quite a lot of what I read in both, and I think both blogs are contributing in a very important way to a crucial debate that we all need to engage in, without fear, if we are to move forward and progress toward a better society. And when I say a better society, I mean especially for our families and our children.

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

Tuesday, February 5, 2008

New York Appellate Division Recognizes Canadian Gay Marriage

Thanks to this recent New York Divorce and Family Law Blog post for reporting on the recent New York Appellate Division (intermediate level state appellate court) case of Martinez v. County of Monroe, which recognized a same-sex marriage of a lesbian couple which had been performed in Canada, and gave it effect in New York, despite the fact that New York, like all U.S. states save Massachusetts, does not permit its own residents to enter into same-sex marriage.

For more information, see the New York Legal Update blog, and the excellent analysis of Joanna Grossman in her Findlaw article of today.

Although not from the highest appellate court in New York, this is significant as it is apparently a case of first impression in New York, and is an appellate decision at odds with the rationale and holding of the Rhode Island Supreme Court, which recently held that its family court could not grant a divorce to a lesbian couple, married in Massachusetts, but now residing in Rhode Island. (For more on the Rhode Island case, see my last blog entries on it from last December, here and here.)

We will have to keep watching to see what other states will do. I do think it is only a matter of time before we will actually receive some guidance from the US Supreme Court, whether we want it or not, on some of the legal issues presented by the problem of same-sex couples looking for legal recognition in states without same-sex marriage.

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