Civilize Family Law Now!

February 29th, 2012

CIVILIZE FAMILY LAW NOW !

Can we act to make the maddening, the stressing, the enraging process of divorce more sensible, more civilized so fewer people are killed? Maybe.

First, replace “custody” and “visitation” from family law codes with “parenting plans.” Fourteen other states have already done so, but the California legislature rejected this change in 1989. This would also require a change in the forms for requesting divorce which now force a parent to as for “custody” and give the other “visitation.”

Second, separate parenting plans from property and support issues. The divorce process would be that when a person with children files a petition for dissolution of marriage, both parents are forthwith called in and assisted in writing up a parenting plan. Every court currently has mediation departments than can be adapted to this work. The people who are not capable of doing this would be assigned to an appropriate team of professionals who will work to achieve the best possible results on behalf of the children.

Third, parenting plans must be apart from child support. Presently, in California, the more time the higher earning spouse has with the children, the less that parent pays in child support. Or, conversely, the less time, the more money the other parent receives. This is a formula for induced conflict. This is not a formula for sensible parenting. What is good for the child’s life, not the parent’s, must be the motivation for a parenting plan.

It has been known for years that this divorce system damages people, especially children. In 2008, the California branch of an international and interdisciplinary organization of judges, psychologists, lawyers and others, The Association of Family and Conciliation Courts, declared the treatment of children in family courts a “public health crisis.”

Since then, 12 other family-court related organizations have signed on to this resolution. The board of the California chapter declared, “there is a clear and present danger to the public health of the children of this State based on our society’s failure to adequately address the impact of child custody proceedings upon children as a chronic, system-wide, statewide, public health crisis which impacts the previous, current and future generations of California’s most precious resource–its children.”

But no one has yet done anything about systemic changes. “You can’t solve a problem with the same kind of thinking that created it,” said Albert Einstein. Well, duh! Obviously.
February 28, 2012

Divorce Lawyers, Attorneys and Mediation

January 24th, 2012

The business of divorce is undergoing drastic changes. About 70% of people are doing their divorces without lawyers. Divorce attorneys are now calling themselves mediators.
If you are looking for a mediator/lawyer, be sure to check credentials, such as mediation training. There are no legal requirements for calling oneself a mediator.
Basic divorce mediation calls for 40 hours of training.
Ask how long a person has been mediating. But a new mediator with good training should not be rejected.
Ask how many divorce mediations the attorney has completed.
Meet with more than one mediating attorney before choosing the one you feel comfortable with for your divorce.

Letter from Supervising Judge, Family Law, Los Angeles

August 16th, 2011

Here is the letter that is sent to every petitioner for a dissolution of marriage (divorce) in Los Angeles County.  Do people ever read this?  It is good and wise advice.  Today I had lunch with a lawyer who was just back from a morning in court in LA; he told of the horrible way parents are treating each other in court, meaning their children suffer also.

CHAMBERS OF THE SUPERIOR COURT, FAMILY LAW DEPARTMENTS
LOS ANGELES, CALIFORNIA 90012   TELEPHONE (213 )9741234
MARJORIE S. STEINBERG,  SUPERVISING JUDGE

Dear Petitioner or Respondent:

You have a Family Law case in our court. During this time in your life, you have a number of decisions to make about your future and perhaps the future of your children. I would like you to know that our court would like to help make this process as easy as possible for you and your family.

You may have a dispute with your spouse regarding where your children will live, what support will be provided and how you will divide your property. You have the right to have a court hearing and have a judicial officer decide these matters for you, which may be the most appropriate way to proceed, especially if you feel threatened by or fearful of your spouse.

However, going to court is not the only way to resolve family law disputes. Some other ways include having attorneys negotiate directly, having a neutral third party help both sides negotiate a solution (mediation) or using a method such as collaborative law. These other ways may help people find solutions that are mutually acceptable and may be preferable for several reasons: 1) You will directly participate in finding solutions; 2) You probably will be able to resolve your dispute sooner; 3) It may be much less expensive; 4) You may end the process with a better relationship with your former spouse; and 5) You will likely find it less stressful than court hearings. You can speak with your attorney, if you have one, about all of these methods of resolving your case so the two of you can decide which method may be best for you.

It is to your benefit to consider opportunities to reduce conflict and reduce expenses  incurred in the Family Law process. I recommend that you focus on what is most important.  Many people spend time, effort and money attempting to obtain satisfaction by prolonging the dispute with the other party, but this does not guarantee either party will be fully satisfied with the outcome.

If you have children, you must be particularly careful in choosing how to proceed.  Everything you can do to avoid involving them in the dispute or engaging in conflict concerning them will benefit them and you. Your agreement does not need to be perfect. It does need to be acceptable to both of you. For the mediation of disputes regarding your child(ren) and how they will spend time with each parent after the divorce, the court offers a free mediation service through Family Court Services. To make an appointment, call (213) 974-5524.

Please save this letter. Please read it several times during the dissolution process.

Sincerely,

Marjorie S. Steinbert, Supervising Judge, Family Law Departments

Review and Reform

July 5th, 2011


CONTEMPORARY DIVORCE WITH GOOD JUDGMENT

June 30th, 2011

CONTEMPORARY DIVORCE WITH GOOD JUDGMENT.

The old-fashioned mythology of divorce still lingers on television and in the popular concept of splitting up.  But do you really need to linger in emotional limbo for two years (the average in Orange County) and use up your child’s college fund or your 401(k)?

Sensible people are finding their way to divorce mediators.

The essentials of a divorce are not complex:

-Identify all property (real, personal, financial) and debts;
-Characterize all property or debts as separate or community;
-Establish values for all property;
-Divide property and debts fairly between the two people;
-Decide what if any spousal support is appropriate; and
-(If you have children) Work out a parenting plan and  child support.

A trained and experienced divorce mediator can assure that you acquire enough information and have enough analysis so you are able to carry on effective negotiation.

Maybe you need a divorce financial planner.  Maybe you need a consultation with a divorce attorney or a forensic accountant.  Whatever each party needs in order to have informed consent to an agreement is a constructive step towards the  objective – a decent divorce.

Judicial Council statistics show that over 65% of people are filing their divorces without attorneys.  But this does include those who are using mediators.  By the end of their cases, 80% are without lawyers.

The divorce sharks are an endangered species.

Is Custody a Fighting Word”

May 5th, 2011

IS CUSTODY A FIGHTING WORD?

A mother and a grandfather were killed this week by a father who apparently had “lost custody” of their daughter.  Four more people died in a  ” custody battle” recently in Orange County.  In October a woman was killed in a custody exchange.  A cursory review of Register articles concerning deaths related to divorce in the past year shows more  mayhem:  “Suspect in slaying testifies;”  “Man gets 15 years to life in slaying;”  “Man gets life term in estranged wife’s killing;”  “Man accused of killing wife, burning her body;”  “Man accused of killing wife to keep kids;”   “Jury selection begins in boy’s drowning;” “Husband arrested in standoff after wife’s killing.”

Then there were the attempts:  ”Costa Mesa man gets 17 years in prison for bomb, weapons case;”  “Suspect in Wife’s beating, kidnaping surrenders;” “Man accused of threatening pair during child exchange is arrested.”  This only in Orange County.   We have 58 counties in this state.

And the poignant article in December about the woman recovering still from the murder of her three children by their father six years ago.  We remember the horror of the boy set afire by his father in a motel in 1983, recalled last November as one of “The 50 Most Notorious Crimes in Orange County History.”

There was another Orange County case in 1989 when three boys were shot by their father (one survived, crippled) that became the occasion for a major change in court mediation protocols thanks to the efforts of domestic violence expert Mildred Pagelow with the mother testifying before a state senate committee.

An international and interdisciplinary organization of judges, psychologists, lawyers and others, The Association of Family and Conciliation Courts, has declared the treatment of children in family courts a “public health crisis.”    Founded in California in 1963 to improve the lives of children and families through the resolution of family conflict,.the California chapter recently noted in a “Declaration of Public Health Crisis” that an estimated half of  the state’s children, or 4,775,939, have been touched by or involved in the court system as a result of their parents’ actions–separation, divorce, guardianships, paternity actions, domestic violence, dependency actions.  One of every two children they estimate, are likely to be involved in a family court case.

Their resolution stated that “…the resources allocated to family law cases involving children do not reflect the ratio of family cases to the overall work of the court.  This is ineffective and ultimately unacceptable,” adding that 175 judges handle the half-million new filings every year, plus the older cases, and at least 459 judges are needed.

The board of the California chapter declared, “There is a clear and present danger to the public health of the children of this State based on our society’s failure to adequately address the impact of child custody proceedings upon children as a chronic, system-wide, statewide, public health crisis which impacts the previous, current and future generations of California’s most precious resource–its children.”

In 1996 there was an official committee, “Family Court 2000,” that was supposed to fix family law.  Now there is a task force named Elkins to try again, and Orange County member Judge Nancy Weben Stock said “the culture of divorce” will be changed.

Said Albert Einstein, “You cannot solve a problem with the same kind of thinking that created it.”

One woman testifying last October to the task force said, “The system forces you into combat.”  One bit of culture the task force draft recommendations cite is to change the word “custody” to “parenting plans.”

That “custody” is a fighting word one can see from every newspaper headline using it–it always goes with “battle.”  The family law killings almost always occur in custody cases.  But in order to get a divorce in California, one must check a box asking that “custody” be “awarded” (after the battle, presumably) to one or both parents.  And two other words go with “custody” — “win” and “lose.”  Then one must also check a box referring to “visitation.”

How insulting is that?  If you do not have “custody” of your own children, you have “visitation.”  And if you do not live full time with your children, child support agencies refer to you as an “absent” parent.  One can see how the “culture of divorce” is one of aggravation and the fostering of hostilities.

What lawyering does to that mix is another aspect.  But people are opting out.  The statistics from the Judicial Council, the folks who run the courts of this state, show that 65% of people doing divorces in this state are doing so without lawyers–and that by the end of their case, 80% are without lawyers.

Will changing “custody” make a difference?  Psychologist say words do make a difference.  Twelve states, including Texas, Montana and Florida, have made the change to “parenting plans.”  But this, the Golden State, rejected that proposal in 1989.  And a retired appellate court judge, famous for his family law writing, said, “Don’t count on the legislature for anything.”  Initiative, anyone?

The Elkins Family Law Task Force submitted their recommendations to the Judicial Council April 2010.   They are now an implementation task force.  http://www.courtinfo.ca.gov/jc/tflists/elkins-meetings.htm


What Price Having Lawyers Battle For You?

March 9th, 2011

What Price Having Lawyers Battle It Out For You ?

Lawyer fees (could be up to $600 an hour) at $450 an hour:

Initial meeting and information gathering         10 hours     =           $  4,500
Discovery                                                                          50 hours    =             22,500
Trial preparation                                                         100 hours    =            45,000
Pretrial motions                                                              30 hours    =             13,500
Court time                                                                          15 hours    =                6,750
Total                                                                                 205  hours    =       $  92 ,250

Expert Fees

Custody evaluator            40 hours at  $250                                    $10,000
Actuary                                 15 hours at  $200 (if you are lucky)      3,000
Vocational evaluator       20 hours at  $200                                         4,000
Deposition costs                                                                                               2,500
Lawyer for the child         20 hours at  $400                                          8,000
$27,500

Possible total:                                                                                             $119,750

Ditto for your spouse = $239,500 of your retirement, home equity, kids’ college money

The following five guidelines explain the legal basics of divorce:

* Most divorces are settled out of court in the hallways and cafeteria–after all of the above.
* Don’t expect the legal system (or a lawyer) to take care of you.
* Your future is in your hands — not the court’s.
* It’s easier to write laws than to enforce them.

Thinking about a better way

February 23rd, 2011

WHEN IT STARTED WITH ME

In 1993 I assisted a deputy sheriff with custody of his small son.  He and the mother had not been married.  He had been telephoned by the boy’s maternal grandmother that her daughter was living with the child in a house with drug users, drug parties, and the daughter was stoned most of the time and the little boy, she felt, was at risk of abuse from the men in the house.  The grandmother said if the father didn’t come take charge of the boy, she would file for a guardianship.

We filed an action to establish parental relationship.  Mother responded, and I negotiated an appropriate parenting plan between her and the father of the little boy, with the child’s residence with father and his wife..  The mother had become more sober.  She was getting her life back together.  A month after she signed the parenting agreement, her lawyer filed for custody, saying that now that she had more time with the child, she should have custody.

The court ordered a psychological report.  The psychologist  over the three months of the evaluation process caused such stress with my client and his wife that they nearly divorced.  The psychologist used invalid tests, wrote 53 pages, and charged $4,800.  I hired another psychologist for $1,000 to rebut the first.  I had a dynamite trial brief I had worked and re-worked to perfection.

In court at last for a hearing, the judge–not the one who had ordered the psychological report, did not want to hear testimony of any expert.  He did not read the 53 page report.  He did not read the trial brief.  Instead, he addressed each parent, questioning them as to their interests in their child and in parenting.  In 20 minutes, he had their mutual agreement to a parenting plan.

I drove back to my office with visions of the climactic scene from “The Bridge Over the River Kwai,” the scene where after  British prisoners of war sweat blood, toil, tears and sweat to build a bridge for the Japanese army, American commandoes blow it up as the first train is crossing.

All that time, all that stress, all that money – for what?!   The judge blew up the whole construction.      What that judge did, I reasoned, should have been done as a  first step, not the last step.
I thought of similar cases – people fighting for custody not to get custody but to bargain the children for a better property settlement; filing for custody when the other parent asks for an increase in child support; refusing reasonable settlement to run up fees for the other party when you have rich parents to pay on your side; and most commonly, hostility created between people by aggressive lawyers.  Attorney fees mounting to $100,000 for nothing but two children, a house and a pension!  Children’s college funds gone.

What was needed, I came to think, was a gatekeeper, a guide, a process to review the problems between the parents or divorcing couple.  A guide.  And a disinterested decision as to whether an issue warranted an evidentiary, adversary hearing.

Kaluzny at Mediation Conference

February 16th, 2011

Judith Kaluzny, long-time North Orange county divorce lawyer and mediator, has  been accepted as a presenter for family law mediation at the 19th annual Mediation Week observances, Therese Gray, member of the OC Mediators Committee, announced yesterday.

This year’s event, “Celebrating Mediation Week in the OC,” will be held March 18 at Coastline Community College Garden Grove campus. Download the Mediation week flyer.

“We anticipate the conference will attract approximately 200 dispute resolution practitioners from all over California and beyond, said Ms. Gray.  The Orange County Mediation Conference committee sponsors include CSP, Inc. – Dispute Resolution Services; Mari Frank, Esq. and Associates; Gray Mediation; OC Human Relations Commission; Scott Mather and Debra Rocha.

Judith Kaluzny’s topic is, “The Elkins Family Law Task Force: Do Private Mediators Have a Role in the new Regime?”  She has attended nearly all the public meetings of the Elkins Task Force which was appointed by the California Judicial Council to fix family law courts.

Kaluzny, who practices in Fullerton, was a presenter at the first mediation week observance in Orange County, instituted by then-chair of the Board of Supervisors, Roger Stanton, in 1992.         Other areas of mediation that will be addressed include     the Community Practitioner – landlord-tenant, neighbor, HOA, peer, school; the Civil Mediation Practitioner – small claims, limited civil, unlimited civil, unlawful detainer, civil harassment; the Restorative Justice Practitioner – victim-offender, criminal restraining orders, restitution, talking circles, spiritual; the Business Practitioner – construction, employer-employee, labor contracts, malpractice, personal injury, insurance, real estate; and the Face of the Practitioner – ethics, dispute resolution styles, practice building

Words are important.

February 2nd, 2011

The task force appointed in California to reform family law uses the word “litigant” in their chapter titles in their report. They assume every person who wants a divorce should fight it out it court? Not necessary! Interview a mediator! Save your child’s college fund for your child, not the lawyer’s.


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