Lawyers with Three Hats

A Knight-Ridder wire story raises questions about the ethics of a lawyer mediating a divorce settlement for both spouses. If a couple comes to you wanting you to draft a dissolution agreement, the best policy is to designate only one spouse as your client, and make it clear that you cannot represent the other spouse. (That's what Lee Borden does--see his description of his uncontested divorce services.)

Mayo Clinic on Children and Divorce

The Mayo Clinic offers a very good report on how parents can help their children deal with divorce. The source so authoritative that you might consider printing it and providing it to clients with children.

Parents really do believe in putting their children first during a divorce. But sometimes they need help keeping this goal in mind.

Psychiatrists with Two Hats

In his introduction to the basics of psychiatric evaluations in divorce cases, Dr. Mario Testani insists that a treating clinician should not act as an expert witness:

Parents ought to be aware, and insist, that any clinician treating the children or parents must not act as an expert witness. Wearing legal and clinical hats at the same time contaminates both roles. A treating clinician may receive a subpoena but should testify only as a "fact witness," offering no opinions or conclusions.

Experts in Family Court

The American Academy of Matrimonial Lawyers offers several useful articles about challenging the opposition's expert witnesses:

• An article by Leonard Dubin about using motions in limine to limit expert testimony. The article includes a sample motion.

• An article by Stewart Gagnon and Miryam Mitchell on the effect of Daubert on family law cases.
  

• An article by John Nichols about preparing your expert for a Daubert challenge.

Getting Paid

The ABA Journal has a nice little article on improving your collections: Paid Not Played. In a nutshell, estimate fees in advance, take a big retainer, and don't be shy about asking for payment.

Prudence or Prudery

In the recent case Petty v. Petty, the Tennessee Court of Appeals considered whether a father’s “penchant for pornography” justified (1) requiring that his overnight visits be supervised and (2) giving the mother sole authority to make major decisions for the children. The Court of Appeals determined that the trial court’s decision was not justified.

The Loudon County Chancery Court found that the father had a penchant for pornography based upon the following facts: he made late-night visits to adult web sites, he exchanged email of a sexual nature, and he placed a personal advertisement on SexyAds.com. The trial court therefore restricted the father’s overnight visits with his children to supervised visits at the paternal grandparents’ home. The trial court indicated that this restriction would continue until the father could convince the court that the father had stopped visiting adult web sites.

The Court of Appeals conceded that the father’s time could have been better spent pursuing other activities, but it found no evidence that the conduct had affected the father’s relationship with the children or exposed the children to pornography. The court therefore remanded the case with instructions that the restrictions be removed.

This case highlights two disturbing aspects of divorce litigation. First, judges too often seem to rate parents on a single scale from “good” to “bad” without considering the complexities that go into each individual’s personality. This tendency encourages pure mudslinging, where each side submits evidence of the other parent’s every failing and character flaw. Second, judges sometimes seem to use their control over custody issues to impose their personal moral views upon the litigants: no overnight visits with boyfriends or girlfriends, no Internet pornography, no bad language.

Although it is not always easy to draw the line, the Petty case is well on the other side. A father’s interest in Internet pornography – or even in casual sex with strangers – does not make him a danger to his children. And a court should not use its power over child custody to regulate a parent’s private sexual conduct.

More on Parental Alienation Syndrome

The October 2004 issue of Family Court Review has articles on each side of the PAS debate. According to one of the articles, proponents of PAS seems to be winning out in the courtroom:

[T]here are at least 147 articles (by over 175 authors) on the PAS in peer-review journals and 74 citations from courts of law in which the PAS has been recognized. Furthermore, in November 2000, after a Frye hearing, a court of law in Florida concluded that PAS has received such widespread acceptance in the scientific community that it warrants admission in courts of law (Kilgore v. Boyd). This ruling was subsequently upheld by a Florida Court of Appeals (Boyd v. Kilgore) [773 So. 2d 546 (Fla. 3d DCA 2000)]. In January 2002, a court in DuPage County, Illinois, ruled that the PAS satisfied the Frye criteria for admissibility (Bates v. Bates) [18th Judicial Circuit, Dupage County, IL, Case No. 99D958, Jan. 17, 2002]. In August 2002, a criminal court in Durham County, Ontario, Canada, ruled that the PAS satisfied Mohan requirements for admissibility (Her Majesty the Queen v. KC) [Ontario, County of Durham, Central East Region, Court File No. 9520/01, Aug. 9, 2002]. The Mohan test is the Canadian equivalent of the Frye test, but it has additional criteria and is more stringent.

Richard A. Gardner, Commentary on Kelly and Johnston's "The Alienated Child: A Reformulation of Parental Alienation Syndrome," 42 Fam. Ct. Rev. 611, 617 (2001).

Considering the frequency with which PAS claims are asserted, it is surprising that there are not more cases addressing the admissibility of PAS testimony under a Frye or Daubert test. Here are a few:

• In re Marriage of Bates, 794 N.E.2d 868 (Ill. App. Ct. 2003) (noting that the trial court allowed PAS testimony under a Frye test).
• C.J.L. v. M.W.B., 879 So.2d 1169 (Ala. Civ. App. 2003) ("Although we might, if faced squarely with the question whether evidence concerning an actual diagnosis of PAS was admissible under Frye's 'general acceptance' test, be inclined to agree with the mother and find that PAS had not been generally accepted in the scientific community, we do not need to make that decision in this case.").
• People v. Fortin, 735 N.Y.S.2d 819 (2001) (affirming a decision to exclude PAS testimony under a Frye test).

Parental Alienation Syndrome

Kansas lawyer Grant D. Griffiths has an interesting post on Parental Alienation Syndrome. Although testimony regarding this condition is becoming more common, the diagnosis is of questionable scientific validity. For example, the diagnosis is not included in the latest edition of "Diagnostic and Statistical Manual Disorders." If you have a case where Parental Alienation Syndrome is an issue that could hurt your client, you should consider challenging the admissibility of testimony on the subject.

Collaborative Divorce

The newswires are full of stories lauding the concept of collaborative divorce:

San Diego Union Tribune
Free New Mexican

Alabama lawyer and family law blogger Lee Borden is more skeptical. He contends that a collaborative divorce can cost almost as much as a conventional adversarial divorce, and that it is not a smart way for most people to get divorced.

Cohabitation and the Constitution

The ACLU has filed suit in North Carolina to overturn a state law criminalizing cohabitation:

If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a Class 2 misdemeanor.

The ACLU contends that this law violates the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution.

Cohabitation is illegal in seven states: Florida, Michigan, Mississippi, North Carolina, North Dakota, Virginia and West Virginia. Notice that Tennessee is not on the list. Arizona and New Mexico decriminalized cohabitation in 2001.

Even though Tennessee does not have a cohabitation law, the ACLU lawsuit could have implications for matrimonial law in the state. Some courts routinely prohibit cohabitation in orders dealing with child custody. But if cohabitation enjoys some degree of constitutional protection, this practice could be subject to challenge. Although the best interests of the child would likely remain the most important consideration, courts might be required to make specific findings on a case-by-case basis.

Court-cost Standardization Moves Ahead

The Knoxville New Sentinel reports [registration required] that a bill to standardize filing fees and litigation taxes is likely to pass this year. The bill would standardize fees and taxes in every county except for Knox. (Apparently Knox County has the desire and the political clout to maintain its own system.)

The version of the bill that passed the House would standardize divorce filing fees at $200, or $125 if no minor children are involved. If the Senate approves the bill, the new system will go into effect on January 1. The legislation has the added benefit of providing additional money for courtroom security, which is an important issue in family law proceedings.

Driven to Divorce by TennCare Cutbacks

The Memphis Commercial Appeal has published an article [registration required] focused on the hardships that will be caused by pending TennCare cutbacks. Prominent in the article is a married couple that considered divorce as an option for preserving TennCare benefits. Let's hope it doesn't come to that.

Making Friends is Good for Business

North Carolina law firm Rosen Divorce is reaching out to mental health professionals who assist clients in divorce-related situations. The firm recently held a half-day seminar called Clinicians in Court [at last check this link was not working] and it has added a section to its website with resources and information for mental health professionals involved in divorce litigation.

Rosen Divorce's new initiative is an example of how to do well by doing good. The firm is providing a valuable service while also building relationships with mental health professionals. These professionals are not just potential witnesses -- they are also a good source of referrals.