Fighting Fathers of Florida will begin a series on Garbage Attorneys - they will explore how their excesses harm our children, how the courts are complicit in allowing this to happen so that their fellow Florida Bar members can profit, and what YOU can do to stop it.
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"There is no crueler tyranny than that which is exercised under cover of law, and with the colors of justice "
"There is no crueler tyranny than that which is exercised under cover of law, and with the colors of justice "
Excerpts from the Preamble: A Lawyer's Responsibilities
"No disciplinary action should be taken when the lawyer chooses not to act or acts within bounds of such discretion.... The rules simply provide a framework for the ethical practice of law..... Violation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached.... They are not designed to be a basis for civil liability....
Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such duty."
As one can see, these rules have very little significance in relation to the ethical conduct of members of The Florida Bar and Florida lawyers' implied duty to the public as officers of the Court. What the rules seem to give, the preamble nullifies with a few skillfully crafted sentences carefully embedded within it. Therefore, these rules are apparently nothing more than window dressing to disguise an ugly and vile commercial industry that reaps its rewards from the miseries and misfortunes of others. The Rules of Professional Conduct appear to be a cruel hoax upon the public which gives clients a false impression that the practice of law is honorable and ethical. The Supreme Court of Florida approved every word contained in these rules. So, who do you believe the Court is really trying to protect--the client or the Florida lawyer?
If you feel the need to file an official complaint with The Florida Bar against a Florida lawyer, click here to get the official form. This form is in Adobe Acrobat Format (PDF) so almost anybody can print it using their own computer and printer. It is certainly a lot easier than getting someone at The Florida Bar to mail one to you. Use the free Adobe Acrobat Reader software to print it or any other PDF document you encounter. Download Acrobat Reader here if you do not already have it on your computer.
Before filing your complaint you should peruse the Rules of Professional Conduct and pick out the particular rules that were violated. Cite the specific rules violated in your complaint and describe how they were violated. Keep your complaint reasonably short and stay on point. Attach additional pages and copies of documents, etc. that will help illustrate the rule violations. It does no good to rant and rave even though it may feel good at the moment.
Good luck!
If you need to file a judicial complaint against a Florida judge or judicial officer click HERE.
4-1. CLIENT-LAWYER RELATIONSHIP
4-2. COUNSELOR
4-3. ADVOCATE
4-4. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
4-5. LAW FIRMS AND ASSOCIATIONS
4-6. PUBLIC SERVICE
4-7. INFORMATION ABOUT LEGAL SERVICES
4-8. MAINTAINING THE INTEGRITY OF THE PROFESSION
Christopher Pearsall - Fathers - Aug 1, 2013
Does anyone know of case law or a West Key Note Number addressing a person's right to a hearing in a family court case? Or a way to pierce judicial immunity when a hearing is denied and children are injured as a result of the denial? If not, how about delay of a hearing preventing the attendance of key witnesses for a father defending against the loss of his children under an emergency temporary ex part emergency order?Serious matter that needs to be addressed. |
Glen Gibellina ~ 2 YEARS LATER, STILL HAVEN'T SEEN MY ONLY CHILD IT'S TIME TO DISMANTLE THE CURRENT FAMILY COURT SYSTEM "IN THE BEST INTEREST OF THE CHILD" CHIEF JUDGE ANDREW D. OWENS RESPONSE, I ONL...
12th Circuit Court Judge Janette Dunnigan Moition to Disqualify
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Once again folks, you just can’t make this stuff up. For decades we’ve all wondered why lawyers lose their conscience, look the other way or undermine long overdue reforms to our justice system. Well, when a conscientious attorney, unblemished over 23 years, tried to do just that, his reform efforts were made subject to a succession of false claims by ethics lawyers masquerading as public watch dogs.
Jul 15, 2013
Courts empower alienation in divorce child custody battles when they deprive a parent of the ability to exercise their equal parental rights and time with their child. This leads to parental alienation syndrome a form of psychological child abuse.
Family Courts
WLYB............court-determined custody as not a right to parent one's children but as the power to prevent the other partner from parenting.[37] Members of the fathers' rights movement state that family courts are biased against fathers and shared custody.[38][39] Baskerville states that the outcome of divorce is overly one-sided and is initiated by mothers in more than two-thirds of cases – especially when children are involved. He also states that divorce provides advantages for women such as automatic custody of the children and financial benefits in the form of child support payments.[40] Members of the FR movement also state that family courts are slow to help fathers enforce their parental rights,[41] expensive and time-consuming.[42]
Baskerville has also stated that family courts are secretive, censoring and punitive towards fathers who criticize them.[37] He also claims that employees and activists within the courts support and benefit from the separation of children from their parents[43] and that family law today represents civil rights abuses and intrusive perversion of government power.[44]
Thanks for all the great comments!
This is alarming: check this out! Here's a true feminist at her worst! (name removed) is a licensed attorney in four jurisdictions, and has been practicing law since 1988. She is a graduate of Penn State and Pepperdine University School of Law. Prior to entering private practice, Lisa worked as outside counsel to the Trump Organization, as a municipal court prosecutor, and as the in-house corporate counsel to Tropicana Casino in Atlantic City. Currently, her practice includes family and constitutional law, litigation and appeals. She also hosts the award-winning Justice Hour radio talk show.
ReplyDeleteNote from Lisa: For those interested in getting involved in Florida: One way to get involved is through the "Court Watch" program run by the South Palm Beach County National Organization for Women (NOW). Volunteers are needed to help oversee and to improve our family courts for the good of everyone. Free training is available for volunteer opportunities throughout the county. If you are interested, contact Adele at 561/394-3717.
Exposé is defined ~
ReplyDelete1. the act or an instance of bringing a scandal, crime, etc., to public notice
2. (Communication Arts / Journalism & Publishing) an article, book, or statement that discloses a scandal, crime, etc.
"Our lives begin to end the day we become silent about things that matter." - Dr Martin Luther King Jr
DeleteA judge ordered to pay excessive child support and medical costs---Look what happened:
ReplyDeletehttp://www.theoaklandpress.com/articles/2013/08/09/news/local_news/doc520447cf75856632570506.txt?viewmode=fullstory
As a paralegal I agree it sounds to me that it might be an FCA article 10 proceeding to my understanding someone from the mandatory reporting section started a proceeding against you and they are trying a child removal order. To my understanding you should have counsel given to you and you might be able to find out who your counsel is by the clerk of the court. It is also to my understanding that you should be able to present to the judge anything that could help you. Remember time is very important make sure you have counsel that knows how's this type of proceeding works.
ReplyDeleteQuoting Lincoln:
ReplyDeleteDiscourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.
Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.
There is a vague popular belief that lawyers are necessarily dishonest…. Let no young man choosing the law for a calling for a moment yield to the popular belief — resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.
I am yet another victim of the family court system that is totally biased against men.. on our first court appearance I requested a drug test, she failed it and I passed it yet the judge did nothing. Then she filed a protective order, without even having the chance to defend myself against blatant lies it was granted and my kids were taken away for 2 months. After I beat that we went through almost three years of divorce proceedings, getting nothing but continuances and fat bills from my lawyer. Due to the lies she told a public defender was appointed to protect the kids interests, now we're at the end of the divorce and I can't even get the final mediation done because the so-called "public defender" has to be there and won't even return my calls or cooperate in any way. So my only option is to pay the lawyer a bunch more money and agree to a bloody trial where all the conflict of the past will be brought back up again. The family court system has made getting a divorce almost impossible, so I'm so overwhelmed I'm just going to call it off.
DeleteThe father's rights movement isn't an anti-mom or anti-woman movement; it's an anti-unfairness movement. Our aim is to champion the cause of equal parenting, family law reform and equal contact for divorced/separated parents with their children. The fathers' rights movement is a movement whose members are primarily interested in issues related to family law, including child custody and child support that affect fathers and their children. Many of its members are fathers who desire to share the parenting of their children equally with their children's mother—either after divorce or as unwed fathers, and the children of the terminated marriage. The movement includes women as well as men, often the second wives of divorced fathers or other family members of men who have had some engagement with family law. Most of the members of the fathers' rights movement had little prior interest in the law or politics. However, as they felt that their goal of equal shared parenting was being frustrated by the family courts, many took an interest in family law, including child custody and child support. Though it has been described as a social movement, members of the movement believe their actions are better described as part of a civil rights movement.
ReplyDeleteBy Darby Jay @ Target Children Parents Relatives Society
ReplyDelete"I am a father...Not a deadbeat...Not a coward...Not a man that runs away from being a father, or a deserter of my own flesh and blood. Not a sperm donor or a court appointed ATM, but a Father in the purest form of the word. And while choosy “Moms choose Jif”; I sit, at 3:05 am holding the hot hands of a sick 7 year old princess. But that’s my job. Because...I am a Father.
I would speak to my daughter while she was in utero. She would respond with little kicks and from the womb...we interacted, and hadn’t even seen each other yet. When you immediately accept that, even before your child takes its first breath, you are already a Father; you immediately begin to bond with your child. (I am a Father)
The Family Law Court System as a whole, and it’s Judges, destroy the lives of children and in turn entire families by violating a Father’s right to "Due Process" and "Equal Protection" under the law. But we’ve known that for decades. Anyone that thinks or believes that there is "Due Process" for Fathers in the Family Law Court System should be placed in a padded room and heavily sedated. Why is it ok for Fathers to miss their children? Why is it ok for a Father to be sick and wrapped in worry? Why is it permissible for “Non Custodial” parents to start legal proceedings at an immediate disadvantage? Why is there no legislation in place to safeguard Fathers that are being swept in amid the men that make us all look bad? We are judged before the first hearing? It physically hurts on days (that) I don’t have my daughter with me. “DEPRESSION HURTS!” as the commercial for anti-depressants says...right? (It hurts because...I am a Father.)
Ask yourself, what parent wouldn’t be stressed sleepless concerned about their child? Therefore forcing time away from a parent and child would reasonably cause a great deal of stress and worry.. .to truly say the least. But the Family Law Court (and) its Judges are far from reasonable. Now, just imagine that you’re sitting at your desk at work, and two armed Sheriffs approach the receptionist’s desk, then your intercom buzzes, and you are then summoned to the front desk The Sheriff asks you for your name. And then politely informs you that you have been served with child support papers. And that’s just the beginning. Keep in mind that you are the same father that went through the entire pregnancy, CPR classes, ultrasounds, the Birth...ya know Dad stuff. For the record, (a sidebar really); Any man that has stood side by side, each day and night for nine months with a hormonal, morning, noon and night vomiting, habitual mood swinger knows that Fathers don’t exactly have it easy during a nine month pregnancy either. Weather you are an amazing Father, or a deadbeat looser, Family Law Court will filter your life through Hell all the same. I am a Father.
With no criminal record, never been arrested, no history of violence, domestic or other; At what point did I ask to be Non-Custodial.? There is nothing “Non-Custodial” about me! I have never needed a Court's Order to care for my Daughter. Since when have I not been a Father? I clinch my fist and grit my teeth while, the very system set in place to protect our families not only fatally fails, but spits in my face and violates my rights." (I AM A FATHER!)
"There is no system ever devised by mankind that is guaranteed to rip husband and wife or father, mother and child apart so bitterly than our present Family Court System." -Judge Brian Lindsay Retired Supreme Court Judge, New York, New York
"What Social Services is good at is removing "Power" from people. When this is accomplished, then there go choices." -Mr. Sharles Johnson
Rhode Island Divorce Lawyer and Family Law Coach ~
ReplyDeleteThat could be true of most attorneys. I am thankful to say it is not me. I don't thrive on litigation. I thrive on resolution for my clients, the least cost, the least emotional consequences, the least trauma or exposure for any children and the best intact family that could result in the future. I wish there were say there were a lot more like me, but I can't. If I can, my goal is to save the family. I wish others would follow my path as I have urged but to no avail. One can hope for the future.
Fathers rights campaigner for UK Family Law Reform
ReplyDeleteChild Contact: Understanding the Reform Process
Introduction
The article below summarises the anomalies in the UK legal system and the history of UK family law reform The piece was first published in the June 1999 edition of Public Eye shortly before the accelerated departure of the Lord Chancellor's Head of Family Policy, William Arnold. Points to consider are:
(i) the Family Court Welfare Service (FCWS), to which frequent reference is made, was the predecessor service to CAFCASS.
(ii) the FCWS, which came under the Home Office, was disbanded in April 2001.
(iii) by the time that the Home Office conceded that its FCWS staff were untrained, no time remained to train them.
(iv) untrained FCWS staff were transferred without (re)training to CAFCASS.
The Way Things Are
Hence the same defective FCWS system, described in the article below, continued unaltered as from 2001, but under the auspices of CAFCASS instead of the FCWS. Things were otherwise unchanged. Developments thereafter were:
1999-2003
The major reforms (described at the tail-end of the article) went ahead, by-passing CAFCASS. These measures collectively known as EI - were eventually agreed by the legal establishment and by the Government, which announced them, funded them, passed them for implementation and set aside parliamentary time to draft the enabling statute
2003-2006
A rogue DfES civil servant, acting without authorisation, discarded the EI file he was meant to implement, without reading it; and replaced the agreed reforms with a concept of his own, which he thought was the same, but which was actually:
the reverse of the agreed reforms
the same as the existing system
Meanwhile, this civil servant continued to tell Ministers that the agreed reforms were still going through. Hence the current position:
the agreed reforms have been (a) announced and (b) destroyed
the legal system is now the reverse of what it is now said to be
the substitute DfES reforms have disappeared without trace
the 2006 Contact and Adoption Bill has disappeared without trace
Prospects
No useful reform measures are currently in process or envisaged. Nor can they take place until reinstatement of the agreed EI reforms. As set out above, the existing legal system is now the opposite of what it is said to be. It does the opposite of what it said to do: it prevents rather than facilitates the attainment of reasonable contact. Hence refinements to this legal system merely make it better at doing the reverse of what it is said to do. That is, they make things worse.
The role of the current Ministers in this Government is limited to the advice from their civil servants; and the role of these civil servants is to prevent Ministers finding out what went wrong.
Nothing will change until the Government changes
Attorney Mediator
ReplyDeleteHow about we propose a new section in the Family Law Code that requires that all family law attorneys prior to accepting any dissolution of marriage proceeding or post judgment dispute be required to advise their potential client of the availability of consensual dispute resolution methods? Seems to me this would go a long way to solving the problem of educating clients that they have options other than litigation for resolving family law matters.
Rhode Island Divorce Lawyer and Family Law Coach
ReplyDeleteDo you think it is lawyers who fuel the confrontational competitiveness that keeps litigations going as opposed to proceeding with ADR proceedings which may or may not be mentioned by attorneys when meeting with clients?
OR,
Do you think it is clients who fuel the litigations because they don't know about the ADR methods because of some attorneys' short-comings in not advising clients of alternative ways of resolving disputes?
Just curious.
Independent Research Professional
ReplyDeleteThat's a very inspirational message! The litigations prevail due to a spirit of confrontational competitiveness. Alternative approaches provide less expensive and faster way to resolve not only family-related but also commercial disputes.
Rhode Island Divorce Lawyer and Family Law Coach
ReplyDeleteClearly you have strong feelings over what happened when the services of the Children's Rights Council was removed from the system.
I, however, must disagree with you at least as it relates to myself as a family law attorney. Though we may know how to litigate and oppose, that does not mean that we always do so. Lawyers can function in a number of capacities and they can also act in the best interests of families as a whole.
Those who know me, know that I have been an advocate for years for people to represent themselves Pro Se in divorce proceedings and work things out with their spouse but not without some legal counsel to know their rights and to know the process. People still need to make informed decisions. To make decisions without lawyers who advise them of their rights and how the court system works is akin to walking blindly into a minefield. Ignorance is certainly no way to proceed in any aspect of life.
I'm not sure what you are referring to when you say "Stop blaming the parents." If this relates to a specific comment or statement I made, please call it to my attention. Perhaps a global statement in response on your part is not correct because you may have taken it out of context. If you are referring to Parental Alienation which is a separate topic from this discussion, then I am not blaming "the parents" but rather I am focusing on the persons creating the alienation of a child from a parent, though most seem to be the parents, but this can be better addressed in the proper discussion.
I agree about creating a unified court for marital dissolution and I have written about this on my website. This would be a huge advancement in our system and I am all for it.
Your third statement is off-topic here so out of respect for the topic poster I would be happy to address it an my views in the topic I posted on Parental Alienation if you would care to re-post your comments there.
Your fourth statement I would have to disagree with unless you are talking about GAL's who are also law trained. Please remember that GAL's (at least in Rhode Island) are appointed to look out for the best interests of the Minor Child and report regarding the same. However, "the best interests of the Minor Child" is a legal standard set forth by case law and therefore removing the law trained component of a GAL undermines the GAL purpose when reporting back to the court.
Again you state "Stop blaming the parents." Since this is clearly related to comments on Parental Alienation and not fully informing the client, please feel free to address me on this in my Parental Alienation topic.
I will be more than happy to read what you have to post in that regard.
Mediator and Founding Director, The Toby Center for Family Transitions
ReplyDeleteI read your comment and agree that all parties are affected when parents divorce. The degree to which they will be affected will depend upon the support they receive during that process. It will depend, too, on the nature of the advocacy in representation. Given the adversity in litigation, divorce without counsel is best for most. Attorneys are trained to litigate, to oppose. Collaborative attorneys pose a modest improvement, but do not offer what most need, they need to be heard, to be acknowledged, they need guidance for coparenting. The courts in general fail miserably here.
I provuded counseling, supervised visitation services at URI with the initial support of family chief judge Jeremiah Jeremiah in 2003-6. Until your fellow family attorneys realized they could charge hundreds of dollars for visitation services themselves.
It was an outrage, as my organisation, the Childrens Rights council provided these services for a nominal fee and provided through trained students from URI.
Today, the Toby Center provides auxilliary court services, psychotherapy, family therapy and parenting education. We have found that our approach has reduced high conflict among many client families.
I recommend for you two things, 1) stop blaming the parents, 2) create a unified court for marital dissolution, 3) create opportunities for intervention when it becomes clear a parent is brainwashing a child, and blocking visitation, and 4) require that only those trained in child development be assigned GAL positions as well as parenting coordinators.
Stop blaming the parents.
Begin to look at supporting them through their unexpected nightmares.
Dr. Mark Roseman
Certified Family Mediator (FL)
Certified Family Life Educator
Director, The Toby Center
Delray Beach and Pompano
Family Law Attorney, Mediator, Collaborative Divorce Practitioner / Author / Lecturer / Keynote Speaker
ReplyDeleteThe mediators thought that I did exactly what a consulting attorney in a mediation should do. Unfortunately, their experience is similar to mine in that most attorneys (regardless of whether or not they claim to be mediation-friendly or collaborative) do not understand that role and instead are deal breakers and cause unnecessary trouble.
They did a co-mediation because there were apparently two mediators involved. One is a lawyer mediator and the other is a divorce financial specialist mediator. They worked together as mediators and apparently do so rather frequently.
Family Law Attorney, Mediator, Collaborative Divorce Practitioner / Author / Lecturer / Keynote Speaker
ReplyDeleteThe benefits of mediation-friendly consulting attorneys. I want to be careful because apparently many attorneys who believe they are mediation-friendly or collaborative have a self-awareness issue.
I was recently retained as a consulting attorney to review a proposed stipulated judgment to a divorce that was reached in mediation. My role as a consulting attorney was to make sure that she understood the terms of the agreement and was making an informed decision. I determined that she was making an informed decision, but that some of the language in a rather extensive agreement was not drafted properly in order to meet the terms of the agreement, as understood by her. I made crossed off certain language and wrote out replacement language. I attached articles and materials that provided my reasoning behind many of my proposed changes. I referred the client to a CPA in my area that specializes in divorce matters to go over the tax aspects with the client and make sure that she was aware of those issues.
I did not attend any of the mediation sessions themselves, but my client’s spouse agreed to all of my proposed changes and the mediator sent me an email that stated as follows: “Thanks for your great ideas and all of your help on this! With anyone else, this case would never have settled. THANK YOU!”
This morning, I received a call from the co-mediator on that case, who told me that they would be referring someone who lives over an hour from my office to me as the consulting attorney. I was thankful, but asked what I had done that was so extraordinary. I was told that rather than doing things to cause the deal to fall apart, I participated in creating a better agreement that addressed the needs and interests of my client. Apparently, this is a concept that the vast majority of attorneys just don’t grasp. Nevertheless, this is what I mean when I refer to mediation-friendly attorneys and collaborative attorneys. Too bad that so few fall within that definition.
Rhode Island Divorce Lawyer and Family Law Coach
ReplyDeleteHaving been in court with even the most civilized of people who are willing to co-parent effectively for their children's sake and work out every issue. There is a huge difference between civility and even friendship. There is never a winner in a divorce. There are always feelings either by the parties or by the minor children either now or in the future that give rise to problems, dysfunction, etc.... I have yet to see a single family that is unaffected by it. I have seen one family that is "close" to that standard in 13 years. That's one out of what I would estimate are thousands of clients big or small in their cases. Civility is not the same as a divorce ending without personal, emotional, mental health, or even unanticipated financial consequences. I'm open-minded and I've seen virtually everything I ever care too from breakins to computer tampering to stalking to physical attacks on me or my client, to drug use beyond belief with minor children sleeping on feces stained mattresses because the children were secondary to the dog while mom shot up in the next room. I've also seen the civil matters all of which end up coming back to me because of some obscure issue that couldn't possibly be anticipated and causes the destruction of the family because of the divorce itself.
Saving money, civility, benefiting the children, etc... are only a small part of a decent divorce proceeding. There is a legal divorce and there is a divorce "at heart." There is a huge difference in which the child or children are involved.
I can assure you. There are no winners in any divorce.
Independent Research Professional
ReplyDeleteDivorce can be civilized without painful long term litigation, if a skilled mediator explains that collaborating trough mediation will save them and their children $$$$.
I met a woman who was able to bring her ex-husband to a meeting with a Tax Advisor to consult on tax laws for the benefit of their children. It was a collaborating approach to the tax benefit issues, wasn't it?
Rhode Island Divorce Lawyer and Family Law Coach
ReplyDeleteI have to agree with a resounding shout. In a divorce there is neither a winner nor a loser. EVER! Would that I could make it so that divorces were so friendly and so easy that everyone, especially the children, were WINNERS by having a divorce in which they part friends and co-parent perfectly for the sake of the child.
Yet there I go dreaming of utopia again. Reality is .... there is never a winner. Of this I am certain.
Conflict Consultant specializing in workplace/business conflict
ReplyDeleteSorry for the last sentence in my previous post! It should have read: "It seems to me that collaborative/integrative law is viewed by some (many?) in family-oriented conflict as effective (or at least a possibility) because this approach combines the consideration of both rights and interests."
Bob - What if there didn't have to be a "winner" or "loser" in divorce? This is what mediation contemplates. By considering the interests of the parties, they may be able to find common ground. For example: What's in the best interest of the children? What's in the best interest of our emotional well-being (individually and relationally)?
Does that make sense?
Owner at Divorce45.com LLC
ReplyDeleteAnd how do you determine the "winner" in a divorce? This is perhaps easier in post divorce motions etc, which is why "loser pays" language appears in many mediated agreements...but for the divorce itself there is no winner.
Conflict Consultant specializing in workplace/business conflict
ReplyDeleteI'm involved in mediating disputes in which legal rights are often not a factor - although, if the parties went to an attorney, a legal issue could be conceived (even when the legal right doesn't necessarily fit the situation). For example, interpersonal disputes or bullying in the workplace could be made into discrimination cases. The result: lots of money spent on escalating a dispute that might be more simply resolved by having the parties sit down with a mediator or having the "bully" work with a third-party experienced in coaching abrasive employees.
I don't know that we're necessarily a "litigious" society. However, we are definitely a rights-based society as opposed to an interest-based society. Rights-based cultures tend to lean toward adversarial conflict engagement ("right" vs. "wrong"). Interest-based cultures tend to lean toward non-adversarial conflict engagement.
It seems to me that collaborative/integrative law is viewed by some (many?) in family-oriented conflict because this approach combines the consideration of rights and interests.
Family Law Attorney, Mediator, Collaborative Divorce Practitioner / Author / Lecturer / Keynote Speaker
ReplyDeleteIt is true that "a client is free to choose the lawyer of his or her choosing." However, I tend to question the competency of "non-mediation friendly attorneys." I know that I have not specifically said so in my writings, but I am afraid that I believe that "non-mediation friendly attorneys" cause more trouble than good and are being more paternalistic than they are anything else. I have written about the problem of lawyer paternalism, specifically in the field of family law. Being a competent lawyer involves skills far beyond merely the knowledge of the law. Clients are not necessarily able to determine an attorneys competency, when they making a hiring decision. I don't think that clients should be placed in that position.
Of course, if a client entered into a mediated agreement without knowing their rights, that is a completely different story. For example, when someone is entering into a premarital agreement, they must be advised how the terms of that agreement alter the default prenuptial agreement known as the Family Law Code. Maybe as with premarital agreements, the "default provisions" should be included in the agreement, so that a client knows how the terms of the agreement may vary from such terms. For prenuptial agreements to be legally binding in California, each party must have legal counsel, among other things. Why is that not true for divorce agreements? Of course, I am referring to "mediation-friendly attorneys."
LOL - Whether or not a "collaborative lawyer" is really collaborative is subject to debate. In any event, I do think there is a difference between involving a true neutral vs. involving two collaborative attorneys. Nevertheless, two collaborative attorneys are certainly better than a mediation involving a non-mediation friendly attorney, in my opinion.
Rhode Island Divorce Lawyer and Family Law Coach
ReplyDeleteI have to agree that the lawyers involved who are "non-mediation friendly" may be the problem. However, a client is free to choose the lawyer of his or her choosing. How does one insure that the mediation form of ADR is respective if (1) one of the parties to the mediation chooses a "non-mediation friendly lawyer", or (2) now knowing his or her rights and not having been advised of those rights in advance they choose to want to deviate from the mediation agreement in favor of asserting their legal rights on an issue that was already factored into a completed mediation agreement?
It would seem then that without two people knowing all their legal rights in advance of a mediation that no two parties would properly reach a mediation agreement unless all their legal rights were anticipated at, prior or during the mediation before agreeing to each and every part of the mediation process thereby insuring that each of the parties makes a legally informed decision.
If this is the case this could come into a significant amount of money to say little of the time and energy devoted to finding a just the right mediator and just the right attorneys would could be "allowed" to participate in the mediation process in order for it to work.
While I can see how it would work. It seems more like an "ideal" than a practical situation that the average couple might be able to use to resolve their conflicts.
Wouldn't the use of two good collaborative lawyers in good faith accomplish the same purpose?
Rhode Island Divorce Lawyer and Family Law Coach
ReplyDeleteI'm not sure if that would have the desired effect by adding the principle Code of Law you mention. It may simply prevent those who may be right (for lack of a better word at the moment) less likely to assert their legal rights because they can could never afford to pay everyone's counsel. I understand that is the deterrent effect that you are referring to in order to avoid litigation but it is likely only to deter the one with lesser financial means from asserting and/or protecting their legal rights.
Adding that Code of law would also leave room for abuse by those with more financial means who may, with the greater likelihood of winning of their means are spent wisely on counsel, experts, etc... have reason to abuse their own resources to expand costs in order to frighten the opposing party into settling or abandoning litigation altogether.
While these items may both be deterrents, they do so at a cost of being able to assert one's rights. Shouldn't we all have access to and the ability to assert our legal rights in our legal system?
Have I missed another deterrent effect that I am overlooking?
Family Law Attorney, Mediator, Collaborative Divorce Practitioner / Author / Lecturer / Keynote Speaker
ReplyDeleteHaving been on the receiving end of a judge deciding "facts" that were not reality, I am afraid that making such a change makes no sense unless and until we make some changes in how judicial officers are selected.
Family Law Attorney, Mediator, Collaborative Divorce Practitioner / Author / Lecturer / Keynote Speaker
ReplyDeleteSuch a thing cannot work in family law. Let's discuss parenting plans and timeshare agreements. How would such a thing work? Let's discuss the fact that someone will most likely pay some amount of support. Does their lawyer pay a portion of that support? Remember, it was always known that some support would be paid, but the amount was at issue. I can go on and on. The problem is the types of people who are practicing law and the training they receive.
Owner at Professional Mediation Services
ReplyDeleteIn Texas at least one of the parties must appear before a judge with a divorce decree signed by both parties. A blank form can be downloaded free from the internet and completed by the parties. As long as the judge signs off on it they are done.
Christopher-In your example you stated the husband gave 15% or more to the wife than she was legally entitled to. In cases like this do you know if the higher amount requested was actually awarded or was the award less than the mediation agreement called for? I wonder if the wife’s attorney actually believed she was entitled to more or was he was trying to run up his hours by going to court. Is it greed or a disagreement with your interpretation of the law involved?
I think I need to move to Rhode Island, I have never made $1000 on a single mediation, let alone $3000.
Rhode Island Divorce Lawyer and Family Law Coach
ReplyDeleteThanks for the info about Texas. It is very interesting to learn about other state procedures.
Since I don't have a crystal ball, it could have been either greed or a lawyer trying to run up hours. However, I do know that in the case I mentioned that it didn't have to do with a disagreement of my interpretation of the law. It was merely additional demands that went beyond what the wife would get in court. There were no legal issues to speak of. Either the wife just wanted more, or the wife was given the impression by the attorney that the attorney could get her more.
In many of the cases involving mediation that I have had it has never been a legal issue. In fact, by my recollection it has been one generous spouse who gives more than he was legally required to receive and more than what I confidently believe (based upon the law) she would get at trial. It was simply a demand for more and more by the other party.
It was akin to "Hey, if he'll give you 85% of the assets then there's a good chance he'll give you 90% or more." In my estimation these cases involving mediation have been absurd because all the good work done in mediation has been undone either by a party's greed or a lawyer's desire to increase billable time.
As for mediation, clients come to me and bills are consistently from $2,500 to $6,000. Unless you like a high cost of living I don't think you'd want to move here. :
Family Law Attorney, Mediator, Collaborative Divorce Practitioner / Author / Lecturer / Keynote Speaker
ReplyDeleteThe attorney that wife retained in your example is not a “mediation-friendly attorney.” This is a serious problem, about which I have written extensively. Mediation is bound to fail when a “non-mediation-friendly” attorney is involved. Such attorneys do not understand or appreciate the consensual dispute resolution process. They do not recognize or care that the client entered into the agreement because it was in accordance with their personal values and goals. Instead, they exercise lawyer paternalism over the client and cause them to follow the values and goals of their attorney instead.
“Paternalism occurs ‘when people in authority think or act in a way which results in them making decisions for other people which are often to their advantage but which prevent those people from taking responsibility for their own lives.’ (Cambridge University Press, 2013)
In the chapter titled ‘Paternalism, Power, and Respect in Lawyer-Client Relations’ in Handbook of Justice Research in Law, W. L. Felstiner explains how and why lawyer paternalism results in unsatisfactory results and dissatisfied clients. Due to their emotional state, family law clients are often unable to make informed and competent decisions. The ‘temporary incompetence’ of clients due to their emotional state and the attorneys’ paternalistic attitude toward clients create a lack of understanding on the part of both the attorney and the client. (Felstiner, 2000) This is the legal equivalent of a ship that hits rocks, runs aground, veers off course, and possibly sinks. As with ships, this tends to occur as a result of a malfunctioning navigation system. By restoring or at least improving the clients’ decision-making capacities, we repair the navigation system and thus solve the problem.” (http://theworldofcollaborativepractice.com/?p=1791).
In any event, mediation is not the problem in the scenario you described. The lawyers are the problem.
Rhode Island Divorce Lawyer and Family Law Coach
ReplyDeleteTypically the ADR facilitator will have the parties sign the agreement in front of him or her whether is it a bullet point Memorandum of Understanding or a more detailed Marital Settlement Agreement, but that is not binding in family court for purposes of the court approving the agreement which is required for the agreement not to be challenged later as a valid contract. Personally I think it is being addressed incorrectly by our judiciary. I don't believe the agreement should have to be considered "fair and equitable" to him or her at the very time they testify, but rather that as long as the husband or wife considered it fair and equitable at the time of signing then the verification of the signature should be sufficient, but that's not the way it has ever worked in Rhode Island.
Rhode Island Divorce Lawyer and Family Law Coach
ReplyDeleteIn Rhode Island there must be at least one divorce hearing and the agreement between the parties must be confirmed by the parties. If it is not, then despite our state's contract laws, the RI Family Court will not approve the agreement. I've seen this happen on countless occasions even though contract law would say that the parties entered into an enforceable contract. This is not isolated to a single judge; it is court wide though I have not had the same exact issue in front of each judge about the validity of the contract. The testimony of the parties must unequivocally validate the contract to insure no undue pressure by the opposing party or a 3rd party.
Carroll, do you mean to say that there are no court appearances to validate the contract or request for divorce?
Rhode Island Divorce Lawyer and Family Law Coach
ReplyDeleteNow, one could take the position that the Wife learned of more things she was entitled to from her lawyer and more rights she should assert. In truth, the husband was overly generous and still cared about his wife and wanted to make sure he did right by her so she received approximately 85 to 87% of the assets a good 15% of which the wife could make no legal claim to whatsoever in court. Still, he was a good man and his objective trumped the legal considerations and I understood and respected that.
However, I certainly didn't see the initial mediation as successful because of an attorney's intervention in the process later. I have been counsel to numerous parties in which the same scenario played out.
In my professional opinion, the successful mediation contributed very little to the end result of the various proceedings I was involved in. That being the case I find it very hard to recommend mediation when it might well cost more in the end to have both a mediation procedure and litigation on top of it.
Perhaps this has caused me to be somewhat jaded in this respect. I do identify mediation to clients but I also relay to them what could happen. Such as the case described.
I find that ADR methods are only successful when they are fully binding and there is a guarantee that they will not be undone by counsel or the court because of a single line of testimony.
I'd be interested in comments on this scenario. However, I can tell you that in Rhode Island an agreement becomes virtually worthless if either party does not testify with clear certainty that at the time they are giving testimony that they consider the agreement a "fair and equitable division of the marital estate." Thoughts or input please. Does this work differently in other states?
Family Law Attorney, Mediator, Collaborative Divorce Practitioner / Author / Lecturer / Keynote Speaker
ReplyDeleteThe selection of the person you use in an alternative dispute resolution process. In litigation, we are supposed to know the credentials of the experts we use, even if they are neutral experts. Why would we have any less of an obligation when selecting a mediator? This is where we need to know that different types of mediation and which mediators are good at which type(s) of mediation. The type of mediator used should depend upon the needs of the parties and what is important to them. Although I don’t believe that “evaluative mediation” is really mediation, it does serve a valuable purpose. If both parties respect the expertise and neutrality of an evaluative mediator, they may well agree to resolve issues sooner, rather than later. This can be useful in “Early Neutral Evaluation” in order to narrow the issues and decrease the amount of discovery conducted.
I agree that “evaluative mediation,” also known as “soft arbitration” or a settlement conference, is an adversarial form of ADR, as is arbitration and other such processes. Those must be distinguished from consensual dispute resolution.
I also agree that if the parties have consulting attorneys and if the issues involve family law, landlord/tenant, disputes between neighbors, probate, and other such cases, the mediator may be very well-skilled at resolving interpersonal conflict, even though they are not familiar with the particular field of law. Again, this goes back to the needs of the parties and what is important to them.
If your experiences are as you have described, I think that you are not properly using ADR and/or are not selecting the right professionals. I firmly believe that at least 85% of family law matters can be successfully resolved through mediation, if handled properly.
http://www.americanbar.org/groups/dispute_resolution/resources/mediator_ethics_opinions.html
ReplyDeleteIndependent Research Professional
ReplyDeleteI think that a Good Lawyer should outline all options available to his client. He also should let his client know the opportunity cost and moral hazard involved in his choice to pursue one action over another
Great article and comments! Can anyone comment on "Legal Abuse Syndrome"? Here's a video of Dr. Karin Huffer http://www.youtube.com/watch?v=XeGdK2cvNY8&feature=share
ReplyDeleteFamily Law Attorney, Mediator, Collaborative Divorce Practitioner / Author / Lecturer / Keynote Speaker
DeleteThe following is a quote from one of my blog articles: "Another therapist stated, 'I treat the trauma people experience as they are going through that process. Despite what I tell them to expect they just come in week after week more deflated. Evidence doesn't get entered into the process despite information being provided by the child's therapist. They are dumfounded by how the system is so willing to give the wrong parent primary custody.' [emphasis added]" (http://www.markbaeresq.com/Pasadena-Family-Law-Blog/2012/January/Judicial-Bias-A-Variable-That-Is-Often-Overlooke.aspx).
The following is a quote from another one of my articles: "'A variation on the flight response is the freeze response, often noted with post-traumatic stress disorder, when a person simply freezes.' (Seaward, Managing Stress: Principles and Strategies for Health and Wellbeing, 2006) Moreover, recent psychological research has found that 'people from the general population whose worst event is a life event, such as chronic illness, marital discord or unemployment, on average have more PTSD symptoms from this event than people whose worst event is traumatic, such as an accident or disaster…. This finding perhaps implies that in the very long run the impact of a life event wears out, in terms of PTSD, whereas that of a traumatic event is more persistent.' (Mol, Arntz, Metsemakers, Dinant, Vilters-Van Montfort, & and Knottnerus, 2005)" (http://theworldofcollaborativepractice.com/?p=1791)
Conflict Consultant specializing in workplace/business conflict
DeletePlease take a look at the article at:
http://www.huffingtonpost.com/jerry-clay/win-lose-or-mediate_b_3883772.html
Fathers rights campaigner for UK Family Law Reform
ReplyDeletehttp://www.ivorcatt.co.uk/x31f.htm
Family Courts.
I now think that by dragging me back into this dreadful subject, Dave Mortimer has done something very useful. It is interesting to realise that even after all these years studying the subject, I am now be coming to a deeper synthesis, which Robert Whiston may well already understand.
Robert Whiston has been on various government and police committees, and adds an important insight into the problem. I now recollect that I myself have been on at least one government committee.
For decades, no representative of fathers was allowed on any government or similar committee. This remains almost the truth today. Radfem representatives like Stanko are always on these committees.
The Stanko – Catharine MacKinnon ideology is much easier to grasp than the truth, which Robert will try to tell a committee, and for doing which he will be ejected from the committee.
(The Stanko - MacKinnon – Butler-Sloss ideology is that half of women get raped during their lifetime, one quarter of women are assaulted in the home, women are never violent, the reason why fathers want access to their children is in order to batter them and sexually molest them, violence or threat of violence is the way the patriarch maintains control of his family.)
The truth is in contrast very complex.
Men’s representatives struggle to get heard, and to get onto government committees. When there, they try to give information to government officials before they are ejected for confusing the situation – presenting a conflicting story which confuses the one they have already learnt from radfem media. In any case, all the officials are merely passing through, and will be working on something else in a couple of years. Out of the two officials Dave Mortimer finally managed to meet recently, one transferred to working on “hate crime” and the other became a TV presenter. That includes the relevant (passing through) Minister. That is why recently the current Minister when writing to my MP in response to my letter, gave the official government definition of domestic violence, which was copied from radfem websites. He was not long enough in post to analyse where that came from, and whether it was proper. (This definition includes “financial violence” etc.)
Fathers rights campaigner for UK Family Law Reform
DeleteAny legislation which tries to stop judges from cutting children off from their fathers will be ignored by judges, who “know better than our MPs”. http://www.electromagnetism.demon.co.uk/zbbsloss.htm . Tim Loughton MP says judges are biased against fathers. He is adding an amendment to the current legislation so that “shared parenting” is right at the start of the new law. However, he does not realise when he adds “so long as the child is not in danger”, the amendment will be valueless. Judges will say “the interests of the child come first”, and the child must be protected. Since one quarter of all fathers are violent, any allegation of violence is probably true on the balance of probability, so it is safer to cut the child off from its father.
My approach is not to take the matter out of the hands of judges, courts and social workers, as is currently proposed by “meteorite”, but to force these people to behave.
(Periodically, a meteorite like Matt O’Connor appears in a blaze of glory, and correctly points out that previous campaigners have achieved nothing in thirty years. He has the new approach, or even the answer. There is of course no point in learning anything from the previous failed campaigners. A few years later he joins the ranks of the failed.)
Only recently I realised that when judges ignore legislation which tries to protect a child’s access to its father, they are breaking the law. This is a new concept, that our judges actually break the law. With this realisation, my proposals of twenty five years ago that rogue judges should be targeted becomes even more reasonable. If a judges exploits the ever present caveat “so long as it is safe for the child” to ignore the rest of the law, he is breaking the law. Since writing this I realise that in 1994 I already said that the head of the family courts was breaking the law in this matter. See [http://www.electromagnetism.demon.co.uk/zbbsloss.htm . She cited previous legal precedent to justify going against the new law, which had been specifically passed in order to overcome previous precedent. The judiciary placed themselves above Parliament.]
Now we realise clearly that a judge who breaks the law should find no hiding place. His children, wife and neighbours should be told about his illegal behaviour, and also told about any scandals in his life. They must also be told the statistics on the outcome for children of divorce treated the way he treats them. When we went after Judge Munby, we forced him to get the Plymouth man out of jail. A judge who decrees a court order and then refuses to enforce it is bringing the law into disrepute. Everyone, including his children, needs to be told of this.
I am not really concerned about whether excluded fathers, when targeting judges and social workers, should avoid themselves breaking the law. They are, after all, involved in an illegal framework created by judges and social workers.
Independent Research Professional
DeleteSomething is fundamentally wrong with the system where people don't trust their lawyers
Integrative Lawyer, Mediator, Writer and Core Professor. TUI, Visionary HSP/INFJ
ReplyDeleteSomething is fundamental wrong with a system that makes a family a battleground. and rewounds the wouded. But hey-- so far global society still thinks violence is an answer to.. something. Of course... It never is.
Fathers rights campaigner for UK Family Law Reform
DeleteLawyers are motivated by money not what's in their clients best interest or their children's.
Owner at Professional Mediation Services
DeleteI think Lawyers are motivated by the same things that motivate all of us; food, shelter, love, reproduction, meaningful work, financial security, all the other things the sociologists have come up with over the years. Unfortunately the majority of those things require a measure of financial means to achieve. Lawyers make their living fighting for what they believe is “right and just” as determined by laws dreamed up by, usually, other lawyers; a self-perpetuating system going back a few centuries. Unless humans make a basic change in their ways of doing things; like using mediation instead of litigation, things are not going to change.
Independent Research Professional
DeleteThe issue is that some lawyers are not motivated by the principle of 'Rule of Law',
Fathers rights campaigner for UK Family Law Reform
Deletehttp://ukfathers.wordpress.com/2013/09/13/child-contact-understanding-the-reform-process/
Owner at Professional Mediation Services
ReplyDeleteI agree “some lawyers are not motivated by the principle of 'Rule of Law'” and some doctors are motivated more by making their Porsche payment than helping people. It is the same in every profession and every walk of life; it’s human nature for a (I hope small) percentage of people to be that way. Some of us are motivated by love for others, some for love of ourselves.
Independent Research Professional
DeleteThere are too many lawyers and doctors that are mostly motivated by making their Porsche payment these days. It would be nice to have a Mediator who can help to deal with them :-)
Owner at Professional Mediation Services
DeleteI agree, but I can't be every where; we all have to do the best we can.
Family Law Attorney, Mediator, Collaborative Divorce Practitioner / Author / Lecturer / Keynote Speaker
ReplyDeleteI am afraid that it is far more complicated than a motivation of making a Porsche payment. I have an article coming out in the next edition of the American Journal of Family Law. Unless the title is changed, it will be "How and Why Lawyers’ Limitations and the Adversarial Model for Handling Family Law Matters Has Created the Perfect Storm."
Owner at Professional Mediation Services
DeleteMark-I look forward to reading your article.
What can I do? I have not seen my daughter for 6 months all due to false allegations coerced by CPS. My wife has blocked all communications between me and my daughter. How far can one go and how much can one sustain if you are fighting the system that is blinded towards truth. There is no Justice in this country. It is all a big drama and a disgrace. email: raporeilly@yahoo.com
ReplyDeleteTort Remedies - The traditional alternatives available have been ineffective in preventing the recurrence of Parenting Time violations. Non-custodial parents therefore have turned tort theories to recover damages from the custodial parent and to accomplish uninterrupted Parenting Time. The current trend suggests that the threat of financial liability will discourage a custodial parent from interfering with Parenting Time rights.
Delete1. Intentional Infliction of Emotional Distress
The first case to recognize a non-custodial parent’s cause of action based on the tort of intentional infliction of emotional distress was Sheltra V. Smith, 392 A. 2d 431 (Vt. 1978). In this case, the non-custodial parent brought suit for damages alleging that:
“defendant willfully, maliciously, intentionally, and outrageously inflicted extreme mental suffering and acute mental distress on the plaintiff, by willfully, maliciously, and outrageously rendering it impossible for any personal contact or other communication to take place between the (plaintiff and child).”
Id. at 433.
The Superior Court, Caledonia County, dismissed the complaint for failure to state of cause of action on which relief could be granted. The Supreme Court of Vermont, however, found that the plaintiff stated a prima facie case for outrageous conduct causing severe...
1. Right to a copy of the order to show cause alleging facts supporting the contempt charge.
2. Right to an explanation of the nature and the consequences of the proceedings.
3. Right to legal counsel and the right to have legal counsel appointed by the court if the individual is indigent.
4. Right to confront witnesses.
5. Right to present witnesses.
6. Right to have a transcript or record of the proceeding.
7. Right to appeal to an appropriate court.
HOW DID CHILDREN OF DIVORCE GET STUCK WITH THE VISITATION PLAN THAT AFFORDS THEM ACCESS TO THEIR NON-RESIDENTIAL PARENT ONLY ONE NIGHT DURING THE WEEK AND EVERY OTHER WEEK-END?
ReplyDeleteWhat is the research that supports such a schedule? Where is the data that confirms that such a plan is in the best interest of the child?
Well, reader, you can spend your time from now until eternity researching the literature, and YOU WILL NOT DISCOVER ANY SUPPORTING DATA for the typical visitation arrangement with the non-residential parent! The reality is that this arrangement is based solely on custom. And just like the short story, "The Lottery," in which the prizewinner is stoned to death, the message is that deeds and judgments are frequently arrived at based on nothing more than habit, fantasy, prejudice, and yes, on "junk science."
This family therapist upholds the importance of both parents playing an active and substantial role in their children's lives----especially in situations when the parents are apart. In order to support the goal for each parent to provide a meaningfully and considerable involvement in the lives of their children, I affirm that the resolution to custody requires an arrangement for joint legal custody and physical custody that maximizes the time with the non-residential----with the optimal arrangement being 50-50, whenever practical. It is my professional opinion that the customary visitation arrangement for non-residential parents to visit every other weekend and one night during the week is not sufficient to maintain a consequential relationship with their children. Although I have heard matrimonial attorneys, children's attorneys, and judges assert that the child needs the consistency of the same residence, I deem this assumption to be nonsense. I cannot be convinced that the consistency with one's bed trumps consistency with a parent!
Should the reader question how such an arrangement can be judiciously implemented which maximizes the child's time---even in a 50-50 arrangement----with the non-residential parent, I direct the reader to the book, Mom's House, Dads House, by the Isolina Ricci, PhD.
Indeed, the research that we do have supports the serious consequences to children when the father, who is generally the non-residential parent, does not play a meaningful role in lives of his children. The book, Fatherneed, (2000) by Dr. Kyle Pruitt, summarizes the research at Yale University about the importance of fathers to their children. And another post on this page summarizes an extensive list of other research.
Children of divorce or separation of their parents previously had each parent 100% of the time and obviously cannot have the same arrangement subsequent to their parents' separation. But it makes no sense to this family therapist that the result of parental separation is that the child is accorded only 20% time with one parent and 80% with the other. What rational person could possibly justify this?
“Relationship Estrangement and Interference is a form of Domestic Violence using Psychological abuse.”
ReplyDelete~ Joan Kloth-Zanard of PAS Intervention.
www.pas-intervention.com
PAS Intervention stands for Parental Alienation Support and Intervention. It is an International Non-profit organization to End Child Abuse and Parental Alienation
Presumptive Best Interest of Child and Equal Time-Sharing
ReplyDeleteThere is no question that our family law statutes need to be reformed and that there is a great deal of "judicial discretion" in family law matters. Often times, the outcome of your case depends more on the judge that you have been assigned than the facts of your particular case. If you were to have your case in front of one judge, the outcome may be very different if you were to have your case in front of a different judge. The legislature is trying to change that, in particular when it comes to time-sharing with children. There are changes to alimony as well that I will address in a later blog, but I wanted my readers to be aware of the changes that are being proposed for time-sharing because it is substantial. If the Bill passes, there will now be a presumption that equal (50/50) time-sharing is in a child's best interest, with very limited exceptions. The exceptions would be in the nature of real harm to a child that a parent is incarcerated, a parent is unfit, or the parent's geographical distance would hinder the ability for a 50/50 time-sharing schedule to work. If this passes and is signed into law, most families would be automatically forced into a 50/50 timesharing arrangement if one party were to want that. I have had plenty of cases in the past and some cases right now where one parent does not want an equal time-sharing schedule for a variety of different reasons. Some reasons are valid; some reasons are not valid enough to take the issue before the Court. With this new law, if it is passed, every family will be forced into a 50/50 schedule provided that one parent is requesting it. We do a lot of 50/50 time-sharing arrangements and have had a Judge rule many times that 50/50 is what a couple is going to have, but there are many families who want to alter or adjust this schedule after the final hearing because the schedule is simply not working. Absent a substantial and permanent change of circumstances, couples are going to be stuck with these schedules, regardless of whether or not it’s "working". I agree with the idea that if we have a presumption that 50/50 is in the children's best interest, there will be less room for argument and people would have to acquiesce on this issue. Taking any argument off the table that 50/50 is not good because a parent simply doesn't want it will help insure that less litigation ensues over "best interest of the children". However, what I don't agree with is that we should take the approach of "one size fits all" when it comes to dealing with children. It'll be interesting to see how this develops and if you have issue with this potential law, I urge you to contact your representative. By Christine Bauer - A Florida Family Law Attorney
Posted FRIDAY, MARCH 22, 2013
PRO SE RIGHTS:
ReplyDeleteBrotherhood of Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1; v. Wainwright, 372 U.S. 335; Argersinger v. Hamlin, Sheriff 407 U.S. 425 ~ Litigants can be assisted by unlicensed laymen during judicial proceedings.
Conley v. Gibson, 355 U.S. 41 at 48 (1957) ~ "Following the simple guide of rule 8(f) that all pleadings shall be so construed as to do substantial justice"... "The federal rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." The court also cited Rule 8(f) FRCP, which holds that all pleadings shall be construed to do substantial justice.
Davis v. Wechler, 263 U.S. 22, 24; Stromberb v. California, 283 U.S. 359; NAACP v. Alabama, 375 U.S. 449 ~ "The assertion of federal rights, when plainly and reasonably made, are not to be defeated under the name of local practice."
Elmore v. McCammon (1986) 640 F. Supp. 905 ~ "... the right to file a lawsuit pro se is one of the most important rights under the constitution and laws."
Federal Rules of Civil Procedures, Rule 17, 28 USCA "Next Friend" ~ A next friend is a person who represents someone who is unable to tend to his or her own interest.
Haines v. Kerner, 404 U.S. 519 (1972) ~ "Allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient"... "which we hold to less stringent standards than formal pleadings drafted by lawyers."
Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233 ~ Pro se pleadings are to be considered without regard to technicality; pro se litigants' pleadings are not to be held to the same high standards of perfection as lawyers.
Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938) ~ "Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment."
NAACP v. Button, 371 U.S. 415); United Mineworkers of America v. Gibbs, 383 U.S. 715; and Johnson v. Avery, 89 S. Ct. 747 (1969) ~ Members of groups who are competent nonlawyers can assist other members of the group achieve the goals of the group in court without being charged with "unauthorized practice of law."
Picking v. Pennsylvania Railway, 151 F.2d. 240, Third Circuit Court of Appeals ~ The plaintiff's civil rights pleading was 150 pages and described by a federal judge as "inept". Nevertheless, it was held "Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff's Pleadings without regard to technicalities."
Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA) ~ It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above, Pro Se Rights Section).
Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982) ~ "Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices... the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law."
Sherar v. Cullen, 481 F. 2d 946 (1973) ~ "There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights."
Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239. ~ "The practice of law cannot be licensed by any state/State."
Sims v. Aherns, 271 SW 720 (1925) ~ "The practice of law is an occupation of common right."
Review from the late Carl Fredrich, founder of the American Pro Se Association
ReplyDelete2012 ~
" "How to Win a Lawsuit Without Hiring a Lawyer" is a very informative book -- and for those who find themselves in certain circumstances it can be said to be indispensable. The book might be more appropriately entitled: "Pursuing A Lawsuit Without A Lawyer: Even Against the Authorities." This book, as far as we know, is the only simplified low cost resource addressing an area of increasing need -- where one's rights have been trampled or denied by police or other officials and how you can do something affordable about it. The book actually contains an enormous amount of information and legal theories and specific instructions on how to proceed with respect to a number of issues. Considering it is a generic law book written to address both Federal and all 50 states laws, it possesses both the advantages and drawbacks inherent in covering so much territory. The book also addresses this difficult problem and stresses the need to consult specific state statutes and/or the necessary specific information on any administrative law forums should they be applicable. (These are often called 'administrative law court' but they are really central panels of the administrative branch -- not judicial branch of government.)
The National Association of Pro Se Litigants ~
DeleteOur Mission
1. Enable pro se litigants and fight to protect their rights and interests.
2. Raise public awareness that constitutional rights are not guaranteed and pinpoint the three major reasons average citizens are denied rights.
a. Judicial Corruption and Incompetence
b. Lawyer Corruption and Incompetence
c. Flaws in the design of the Judicial System
3. Hold lawyers and judges personally accountable when they betray public trust.
4. Correct the picture that the corrupt elements of our justice system have painted of pro se litigants.
a. We are not ignorant. Many of us have advanced degrees and understand the law better than those licensed to practice it.
b. We are not crazy.
c. We are not anti-government.
d. We are American Citizens, many who have served our country, and we are merely seeking what our Constitution purports to guarantee -- Liberty and Justice For All!
Our message to the Legal Community
ReplyDeleteWe have had enough! We will follow the rules of the system, but we now demand that you follow those same rules. If you conduct yourself with honesty and integrity, then we have no qualms with you. But if you are one of the corrupt, overpriced, lazy or incompetent members of the legal community; we will shine a spotlight on you. Every blunder, every unjust ruling, every dirty trick you've ever played, every incompetent, unethical act will be broadcast to the public. Every case you handle will be publicly scrutinized until you make right the lives you have ruined or you are out of business, whichever comes first.
We are not afraid to call you out! We are not afraid to picket in front of your law offices or any place where you present yourself as a respectable, credible, trustworthy member of society, which you are not. We are not afraid to boycott you; and we will not be intimidated by defamation or any other type of lawsuit or harassment techniques that you cook up.
Despite our disgust at the corruption that has overtaken our justice system, we will treat you more fairly than you've treated us, so we do not need to defame you. If we put a spotlight on you, you have already defiled yourself. We will simply convict you in the Court of Public Opinion using your own words and deeds.
And we will leave it to the public to sentence you. Loss of business, respect, credibility, standing on the Bench or in the Bar, or denial of political advancement are what we predict the sentence will and should be.
THE BENEFITS
We provide benefit to pro-se litigants through our services; to the legal community by pointing out and providing solutions to corruption and inefficiencies in the system (so that you may fix them) and we provide benefit to society by facilitating an alternative for aggrieved people -- who without equal access to the law -- may take justice into their own hands -- as vigilantes. Therefore, it is in everyone's best interest that pro-se litigants be treated with respect, and fairly.
FLORIDA TODAY - OPINION
ReplyDeleteWritten by Gordon E. Finley, Ph.D., Miami
While I applaud columnist Paul Flemming for a sound review of the issues in Saturday’s “Alimony bill will be great — for lawyers,” his bottom-line conclusion is dead wrong.
The proposed state alimony reform bill will reduce litigation, not increase litigation. A bit of history: For years, the divorce vultures (a.k.a., the Family Law Section of the Florida Bar) have conned the Florida Legislature into writing divorce legislation that maximizes litigation and thus maximizes their income. In part, they have accomplished this by maximizing judicial discretion, which in practice means endless conflict and, of course, endless paid litigation.
No matter what they may say, the divorce vultures are interested only in one thing — maximizing their income.
I can irrefutably demonstrate this point with Flemming’s own words: “Thomas Duggar, an attorney in Tallahassee and a member of the Florida Bar’s Family Law Section, said last week at a Tallahassee Bar Association meeting that the section has a $100,000 war chest to sway public opinion against the legislation.”
Do your readers honestly believe they are spending all this money so they will lose income? The divorce vultures get the message in terms of what alimony reform will cost them — and save the children, fathers and mothers of divorce. I regret Mr. Flemming did not do the same.
Full Disclosure: I am an alimony-paying divorced father of two young adult daughters and retired university divorce researcher with multiple research and scholarly publications on this topic.
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