January 2012 Archives

How to Avoid Bias in California Family Courts

January 24, 2012, by

Given the high divorce rate in this country, just about all of us have been impacted in some way by divorce and custody/support matters. Perhaps it was our own family or parents or our own divorce, or simply a very close friend or family member. And with few exceptions, a majority of folks in these situations feel they lost too much or paid too much, received too little, or had a custody/visitation order that was "unfair" to them, and worse. 
Based on these experiences, we develop opinions and biases about how such matters should be handled. And of course, every judicial officer, as well as recommending Family Court Services mediators and custody evaluators, have their own personal biases. Consequently, the reality is that the same exact case may have very different results in different court rooms.

This is not to disparage family court judges who deal with complex issues (permanent removal of children to another state, custody, visitation, domestic abuse, determining real income, valuing assets (eg, closely held businesses) on a daily basis, with honor and integrity. But the inherent bias based on one's experiences in many cases cannot help but bias the judge's factual findings, their discretion, and how they decide to apply the law. This bias probably exists more in family law than in other areas. No amount of bias elimination training can make a judge forget about their life experiences, assumptions, personal beliefs/views and biases. Consequently, family law litigation can be unfair and inequitable.

However, most judges it is hoped, exercise enough self awareness to check in with their personal biases before making a ruling. And it is important to note that mediators and Collaborative professionals are no less immune to being impacted by personal experience as judges and others in the court system. We too are human beings with biases and must guard against forming opinions based on them. However, we are not judging and making orders, rather our role to facilitate a full and constructive dialogue between the parties that will enable them to reach their own agreement, so our biases have less impact. And ethical and conscientious mediators are very aware of the potential for bias and work hard to be neutral and unbiased.

Alternative dispute resolution processes, however, such as mediation or Collaborative Divorce allow you to fashion your own outcome instead of having a stranger (judge) decide your future and that of your children. Mediators and Collaborative attorneys do not decide - they help you make your own decisions. And furthermore, why pay the always substantial legal fees incurred in litigation, when a much less expensive process means those funds could instead be used to pay for your child's college education. More often than not, litigation usually means going through the court process, several hearings, perhaps settlement or case conferences until, worn down by the conflict and fast becoming broke, you settle anyway. Why not focus on resolution (settlement) from the outset rather than pretending you're going to go to trial and then settling anyway but only after wasting tens of thousands of dollars to get there. And last ditch, in front of the courthouse door settlements are almost always hasty, last minute agreements, rather than the well thought out and thoroughly discussed agreements generally produced in out of court processes.

I recently had of a case where the litigators managed to spend tens of thousands of dollars in legal fees before the clients decided to try mediation. It was readily apparent that the husband was willing to give the wife more than her lawyer would likely have obtained through litigation. And both clients felt that their attorneys would not be reasonable unless the retainer was used up and either no more money was available or the client refused to replenish the retainer account. All in all, a tragic waste of emotional and financial resources for nothing. The mediation, however, was positive, constructive and successful.

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Conflict Resolution Quotes for the New Year

January 17, 2012, by

As a Collaborative Family Law Attorney and Mediator, I am privileged to work with those who, because of their divorce, are undergoing a significant life change. Although a mediated or Collaborative divorce is far less painful, emotionally, psychologically, and financially, than a litigated divorce, it is still a divorce, and according to the Surgeon General, divorce is one of life's greatest stressors.

So it is often helpful to rely on insights from some our spiritual leading lights to help lead the way and remind us to be present when stress and anxiety arise. These sayings can also help us get in touch with our own inner wisdom as we move forward into a new life after divorce. They are also useful reminders for all of as a new year begins.

"Be kind whenever possible. It is always possible." ~ Dalai Lama

"If you want others to be happy, practice compassion. If you want to be happy, practice compassion." ~ Dalai Lama

"There is no way to happiness, happiness is the way." ~ Thich Nhat Hanh

"It is what it is, while it is." ~ Elisha Goldstein

"If we learn to open our hearts, anyone, including the people who drive us crazy, can be our teacher." - Pema Chodron

"As soon as we wish to be happier, we are no longer happy." ~ Walter Landor

"The fact is, we are not islands and we are far more connected than we know." ~ Elisha Goldstein

"There is no enlightenment outside of daily life." ~ Thich Nhat Hanh

"Realize that this very body, with its aches and it pleasures... is exactly what we need to be fully human, fully awake, fully alive." ~Pema Chodron

"After the ecstacy, the laundry." ~ Jack Kornfield

Grandparent Visitation in California

January 7, 2012, by

A recent California Court of Appeal opinion upheld a grant of visitation to a grandparent over a father's objection.

Child custody and visitation issues often give rise to the most high conflict disputes in a California divorce. If parents can't agree about living arrangements, vacation schedules and the best educational environment for their child or children, these decisions may very well be made by a family court judge based on his or her assessment of the best interests of the children and the parents' capabilities.

A recent California Court of Appeal Opinion in Hoag v. Diedjomahor considered a less common scenario: the court's grant of visitation to a grandparent over a parent's objection. The maternal grandmother filed for visitation following the death of her daughter, the mother of couple's daughters. The parents had lived at the grandmother's home, as had the mother and children alone during a period of legal separation. After the parents reconciled, the grandmother moved in with the family.

Soon thereafter, the mother filed for divorce, but died about a month later. The grandmother then petitioned for guardianship, claiming that the father was an unfit parent, and the father then countered with evidence of the grandmother's prior drug use and the loss of custody of her own children years before. The court found that no issues of concern were raised from a Child Protective Services investigation and did not grant the guardianship request to the grandmother, but it did grant her temporary visitation.

Several months later, the grandmother petitioned for permanent visitation rights. The court granted the petition based on a mediator's recommendation of a visitation schedule that included three hours of weekly visitation plus every other weekend. The court's decision was based largely on its finding that the father was opposed to reasonable visitation and that his offers were "feigned at best and without any substance."

Appellate Court Upholds Grant of Visitation to Grandmother

The father appealed the judgment for permanent visitation based on his constitutional due process rights. The California Court of Appeal reviewed the case primarily on the standard provided by the U.S. Supreme Court in Troxel v. Granville, which stated that the Due Process Clause does not permit state governments to infringe on the fundamental rights of parents to make child-rearing decisions "simply because a state judge believes a 'better' decision could be made."

On review, the California court emphasized that child-rearing decisions are not immune to judicial review. While the law presumes that a parent is acting in his or her children's best interests in proceedings involving a non-parent who seeks custodial recognition, the father had acknowledged to the trial court that visitation with the children was in the children's best interests. Therefore, denial of visitation was essentially spiteful, and the court's grant of grandparent visitation was proper.

Clearly, the specific circumstances behind every California family law dispute can make a big difference in the outcome. A California divorce lawyer will help a client understand the facts of his or her situation in light of current legal standards.

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