Help Your Client By Helping the Judge

Persuasion involves more than impassioned speeches and surly cross-examination. Often the best way to persuade a judge is to make it easy for the judge to rule in your client's favor. When planning strategy, think about what the judge will have to decide and what you can do to make the judge's job easier.

Michigan Family Court Judge Kathleen M. McCarthy provides one example of how a lawyer can help a judge in her article Advice From A Judge. Judge McCarthy recommends employing a Certified Divorce Financial Analyst to help your client analyze financial issues and to help you present those issues to the court.

I'm not sure that the CDFA designation is so crucial. What is really important is communicating financial information, and discussing financial issues, in a way that is helpful to the court. If your presentation is coherent and comprehensible, the court is more likely to rely upon the information you have presented. And if the court relies upon your presentation, it is more likely to accept your proposed resolution.

For more information about CDFAs, take a look at the Institute For Divorce Financial Analysts' website. You can find Certified Divorce Financial Analysts in your area by doing a search on IDFA's Referral Search Page.

Defense of Marriage Act Upheld

A California federal district court recently issued a decision upholding the constitutionality of the Defense of Marriage Act. The plaintiffs alleged, in part, that the statute violates their equal protection rights because it has a disproportionate impact on homosexuals. The court agreed that there was a disproportionate impact, but found that the law was rationally related to a legitimate government interest: encouraging "the stability and legitimacy of what may reasonably be viewed as the optimal union for procreating and rearing children by both biological parents." The court also rejected a substantive due process challenge, holding that there is no fundamental due process right to same-sex marriage.

Thanks to Alexander Rhoads of the Iowa Family Law Blog for the heads up on this decision.

Family Law Software Worth Exploring

Cornell University's very good Legal Information Institute links (surprisingly) to a commercial software package from Family Law Software, Inc. The software is described as financial planning software, and it can help collect financial data and run various financial analyses. It offers a trial download, and is definitely worth a look. The software company used to be called Split-Up Software -- I wonder why it changed its name . . .

By the way, LII has a divorce law page and other family law resources.

Post-Judgment Interest on Alimony

The Tennessee Court of Appeals recently confirmed, in Graves v. Graves, that post-judgment interest is mandatory on unpaid alimony. But the key word is "unpaid." Where alimony is payable in installments, interest accrues on each unpaid installment from the date it is due rather than from the date of the judgment. Price v. Price, 472 S.W.2d 732, 734 (Tenn. 1971).

By the way, a stay of execution does not postpone the due date of an alimony payment. Post-judgment interest will accrue on unpaid alimony even if the judgment is stayed. Polk v. Polk, 1989 WL 17463 (Tenn. Ct. App. 1989).

Enforcing Visitation

Family law blogger Lee Borden offers some good advice about enforcing visitation rights. If you follow this advice you will simultaneously encourage compliance and build a good record if court action is necessary.

Pro-Father Rhetoric and Proposals

Preserving the divorced father's role in the lives of his children is a worthy goal. But as with many issues, the loudest voices are not always the most persuasive.

David R. Usher, Legislative Analyst for the American Coalition for Fathers and Children, Missouri Coalition, has published a lengthy article touting a custody plan called "Time-Shift Shared Parenting." The basic idea is to avoid routine custody disputes by implementing a "time-shift" custody plan in all cases in which both parents are minimally fit. Under a time-shift plan, the parents would alternate as primary custodian at intervals of four-years or longer. Usher claims that the research supporting the efficacy of such a plan is too extensive for him to cite any of it.

Usher states that bills implementing such a plan have been unsuccessfully introduced in the Tennessee legislature, and that several courts have issued time-shift custody orders in Tennessee. He says that such plans were initially upheld on appeal, but that a later appellate decision now forbids them. I have not been able to identify these opinions.

Obviously, any proposal that could reduce "I'm good, you're bad" custody litigation, and help promote paternal involvement in children's lives, would be welcome. But you are not going to win many friends with this kind of rhetoric:

I anticipate great resistance by the Courts, Bar associations, Social Service agencies, and psychologists who make their living working divorce wars. We can expect this. I have done battle with the Bar before and won. Here is what will happen. They will spew reams of fear-laden anecdotal stories in support of keeping divorce a free-for-all.

Look who's spewing fear-laden anecdotes now.

Keep Records of Alimony Payments

Arizona lawyer Alexander Nirenstein has posted a blog entry describing the records that an alimony payer or recipient should maintain. Considering the frequency with which alimony disputes arise, this article should be required reading for parties in any case involving alimony.

Homosexuality Not Per Se Bar to Custody

The Tennessee Court of Appeals recently held that "[h]omosexuality is not a per se bar to custody," and that the effect on a child of a custodial parent's homosexuality is not a proper subject of judicial notice. Berry v. Berry, No. E2004-01832-COA-R3-CV (Tenn. Ct. App., May 31, 2005).

The trial court had granted a change in custody to the father in part because of the "changed circumstance" that the mother was leading an openly gay lifestyle. The court found that the couple's child was doing well in school and was generally well-adjusted. But the court also found that as the child grew older, his mother's sexual orientation would cause him problems.

The Court of Appeals focused on a lack of evidence supporting this conclusion (including a concurring opinion written for the sole purpose of emphasizing the importance of the absence of evidence). And the court cited a wide range of authority in support of its conclusion that a parent's homosexuality is relevant only to the extent that it has an actual negative effect on the child's welfare:

In re Parsons, 914 S.W.2d 889, 894 (Tenn. Ct. App. 1995); H.J.B. v. P.W., 628 So.2d 753 (Ala. Civ. App. 1993); S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985); Taylor v. Taylor, 110 S.W.2d 731 (Ark. 2003); Downey v. Muffley, 767 N.E.2d 1014 (Ind. Ct. App. 2002); Lundin v. Lundin, 563 So. 2d 1273 (La. Ct. App. 1990); Bezio v. Patenaude, 410 N.E.2d 1207 (Mass. 1980); Hollon v. Hollon, 784 So. 2d 943, 949 (Miss. 2001); Hassenstab v. Hassenstab, 570 N.W.2d 368 (Neb. Ct. App. 1997); M.P. v. S.P., 404 A.2d 1256 (N.J. Super. Ct. App. Div. 1979); Guinan v. Guinan, 477 N.Y.S. 2d 830 (1984); Conkel v. Conkel, 509 N. E. 2d 983 (Ohio Ct. App. 1987); Stroman v. Williams, 353 S.E. 2d 704 (S.C. Ct. App. 1987); Van Driel v. Van Driel, 525 N.W. 2d 37 (S.D. 1994); In re Marriage of Cabalquinto, 669 P.2d 886 (Wash. 1983), later appeal, 718 P.2d 7 (Wash. Ct. App. 1986); Bruce Gill, Best Interest of the Child? A Critique of Judicially Sanctioned Arguments Denying Child Custody to Gays and Lesbians, 68 Tenn. L. Rev. 361 (2001); Christopher Carnahan, Inscribing Lesbian and Gay Identities: How Judicial Imaginations Intertwine with the Best Interests of Children, 11 Cardozo Women’s L. J. 1 (2004); Julie Shapiro, Custody and Conduct: How the Law Fails Lesbian and Gay Parents and Their Children, 71 Ind. L.J. 623 (1986).

Divorce Arbitration

The American Academy of Matrimonial Lawyers recently released the Model Family Law Arbitration Act. The model act is meant to make arbitration available for divorcing couples, while recognizing the important differences between divorce cases and other civil disputes.

For example, the model act allows couples to agree before marriage to arbitrate any issue except child support, child custody, or the divorce itself. During or after marriage couples can agree to arbitrate any issue except for the divorce itself. And even after arbitration, a party can ask a court to vacate an award for child support or child custody if it is not in the best interests of the child.

These special rules seem necessary -- but they also remove many of the benefits of arbitration. Proponents of the model act say that family law arbitration helps protect privacy and that it can speed case resolution. North Carolina enacted a family law arbitration act in 1999.

For more information, see the AAML press release or the ABA Journal eReport.

Uniform Parenting Plan Form

The Administrative Office of the Courts, in consultation with the Family Law Section of the Tennessee Bar Association and the Tennessee Judicial Conference Domestic Relations Committee, has developed a new parenting plan form. As of July 1, 2005, courts that approve parenting plans under T.C.A § 36-6-403 or § 36-6-404 will use this form.

The TBA offers links to the form in PDF, Wordperfect, and Word formats. One of the Word files is set up as an automated fill-in-the-blank form.

Catholic School Pagans

A judge in Indianapolis has ordered the Wiccan parents of a 9-year-old boy to "protect" their child from "non-mainstream religious beliefs and rituals." The boy attends Catholic school, but under the order he is banned from practicing his parents' Wicca religion. The court's ruling has drawn justified criticism from conservative and liberal groups, and the Indiana Civil Liberties Union has filed an appeal on the parents' behalf.

For more information you can read the AP report at the First Amendment Center website.