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Did President Obama "Declare War on Marriage" by Expressing His Support for Same-Sex Marriage?

Pasadena Family Law Attorney — Thu, 10 May 2012 00:15:00 GMT

On May 9, 2012, President Obama made the following statement regarding his personal view on the issue of same-sex marriage: "I have to tell you that over the course of several years as I have talked to friends and family and neighbors when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together, when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that Don't Ask Don't Tell is gone, because they are not able to commit themselves in a marriage, at a certain point I've just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married."

Immediately thereafter, both the media and individual citizens began commenting on the issue of same-sex marriage and on their view toward President Obama for expressing his personal opinion on the issue. While some expressed their support for same-sex marriage and for President Obama's views on that issue, others criticized the President and expressed their opposition to same-sex marriage. In fact, Fox News made the following announcement: "Obama Flip Flops, Declares War on Marriage."

We are living in what is known as the "Age of Information" because of the "ability of individuals to transfer information freely, and to have instant access to information that would have been difficult or impossible to find previously."

Why not take advantage of the fact that we are all living in the "Age of Information"? My question is not limited to the information available regarding the issue of same-sex marriage. Rather, it applies to everything. Why are we continuing to allow others to feed us information without questioning that information? In the past, it "would have been difficult or impossible" to verify such information or learn more about the issues and topics. In the "Age of Information", this is no longer true. Although "curiosity is common to human beings of all ages from infancy through adulthood", many people seem to ignore that "innate basic emotion." Instead, they accept the information they are fed by those they respect as the final word on the subject. "Curiosity is trying to find answers to the whys that we've asked and continue to ask." By the way, "because", "because I said so", and "because [fill in the blank] said so" are not answers.

Each and every one of us has our own unique background and life experiences, which shapes our personal beliefs, values, assumptions, and biases. In his book "Mediating Dangerously - The Frontiers of Conflict Resolution", Kenneth Cloke made the following statement: "[T]here is no such thing as genuine neutrality when it comes to conflict. Everyone has had conflict experiences that have shifted his or her perceptions, attitudes, and expectations, and it is precisely these experiences that give us the ability to empathize with the experiences of others."

Since same-sex marriage seems to be the hot issue, now that President Obama shared his personal views with the world, let's use that issue as a case-in-point. In his statement, President Obama gave us his "why" for supporting same-sex marriage. "Opinion changes are the result of a reasoned consideration of opposing points of views." In fact, President Obama described how is opinion was formed as a result of his talking to "friends and family and neighbors." His explanation for his change of opinion is consistent with the research on "deliberative capacity and opinion change." This is very different from someone who refuses to share their opinion, or whose opinion changes like the wind because their "opinion" is not really their opinion; rather, it is political rhetoric. For example, Dick Cheney said he supported same-sex marriage in 2009, only after leaving office. Dick Cheney also happens to have a lesbian daughter. While in office, was Dick Cheney's "opinion" on the issue of same-sex marriage his opinion or political rhetoric? Isn't it interesting that Dick Cheney expressed his support for same-sex marriage only after leaving political office? Barack Obama, on the other hand, shared his person view on the issue of same-sex marriage while still in political office. Moreover, he did so while running for a second term as President. Considering the controversial nature of the issue, could his decision to share his support for same-sex marriage have been politically motivated? For those who believe it was, I suggest that you exercise your curiosity by trying to understand how doing so could benefit him in an election year. Unless I am missing something, he stood more to lose than to gain by stating his support for same-sex marriage. The "why" for my opinion is that same-sex marriage is a divisive issue and one which does not have the support of the majority of the citizens of this country. Therefore, why would President Obama believe that he would benefit by sharing his opinion with us?

The next "why" to ask is why President Obama declared "War on Marriage" by virtue of sharing his support for same-sex marriage. Did President Obama state that he was declaring "War on Marriage"? Why is support for same-sex marriage a "War on Marriage"?

"Same-sex marriage is legally recognized nationwide in Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain, and Sweden. In the United States, same-sex marriages are not recognized federally, though same-sex couples can marry in six of the fifty states and one district. In Mexico, same-sex marriages are only performed in Mexico City, but these marriages are recognized by all Mexican states and by the Mexican federal government. Israel does not recognize same-sex marriages performed on its territory, but recognizes same-sex marriages performed in foreign jurisdictions. In Brazil, the state of Alagoas performs same-sex marriages. Also, in other states, a same-sex couple may convert their civil union into marriage with the approval of a state judge. If approved, that marriage is recognized in all the national territory."

Considering that same-sex marriage is already legally recognized in so many places around the world, how can President Obama's support of same-sex marriage be viewed as a "War on Marriage"? Has the institution of marriage been damaged by virtue of the fact that same-sex marriage is already legally recognized in so many places around the world? If not, how does President Obama's support of same-sex marriage damage the institution of marriage? If so, how does President Obama's support of same-sex marriage further damage the institution of marriage? Are any of the places around the world that recognize same-sex marriage going to cease recognizing such marriages because of President Obama's personal opinion?

Furthermore, have churches and other religious institutions been sued for refusing to perform same-sex marriages in those countries and states in which such marriages are recognized? The answer: "No."

It is time that people in this country and elsewhere take advantage of the fact that we live in the "Age of Information" and exercise their innate curiosity by "trying to find answers to the whys that we've asked and continue to ask."

If you have an issue regarding family law, divorce, child custody, child support, spousal support, restraining orders, paternity actions, or domestic partnerships, please contact Mark B. Baer, Esq., a Pasadena Family Law attorney at Mark B. Baer, Inc. a Professional Law Corporation.

Why I Am Determined to Help People Embrace a More Family Oriented Approach to Divorce and Family Law in General

Pasadena Family Law Attorney — Tue, 17 Apr 2012 02:18:00 GMT

Litigators have been destroying families for decades, including mine. I was a child of divorce. My parents divorced in 1984 and hired VERY WELL-REGARDED BEVERLY HILLS FAMILY LAW ATTORNEYS (well-regarded back then and still well-regarded to this day). For what, I have absolutely no idea. Other than being exceptional at the use of the adversarial system to create permanent damage to families, I see no benefit they have done for society -- quite the contrary.

The litigation system is a mess. Destroying the mediation process is not the answer. I am sure that the brilliant litigators who have managed to create such destruction in our society are perfectly capable of figuring out a way to get around the "problem" caused by the Cassell case. In fact, such a suggestion is set forth in the Mediation Advisory by Rutan & Tucker. As far as I am concerned, litigators have become much more effective at taking advantage of the shortcomings of the system than they have at making sure that justice prevails. Thus, I have no doubt that these "evil geniuses" who have used their knowledge and skills for evil and not good are more than capable of figuring out a way to get around the "problem" short of damaging the mediation process -- a process they don't like because they don't understand it and are threatened by it.

I don't only base my views on the utter chaos that those brilliant family law attorneys in Beverly Hills who represented by my mother, my father and then my mother and step-father in VERY destructive divorces that permanently destroyed our entire family. As my esteemed colleague, Pauline Tessler told me, “the most significant variable affecting whether a divorce will be managed well or whether it will slide into high conflict litigation is who the parties select as their lawyers. Lawyers who understand the nature of human conflict and who aim to help people resolve it, right from the start, handle their cases entirely differently from lawyers who may have reasonably positive views of mediation, but who treat it as just another way of getting to a legal-template deal and who see their job as preparing for maximum measurable gain at trial. Family law clients are going to be distressed, angry, fearful, subject to spasms of vengeful intention and other dysfunctions. Their lives are coming unglued. Therefore, choosing the right attorney is one of the most important decisions a person can make. The lawyer needs to be able to hold up for the client an alternate possibility of working from hope rather than fear. You can lead a lawyer to consensual dispute resolution, but you can't make him or her into a facilitator of deep resolution without changing the lawyers' understanding of what it means to be a divorce lawyer, venturing into the sacred space of primary pair bonds unraveling.”

I also base those views on the fact that anyone who knows me knows that I believe in fundamental fairness. After my mother died, Kenneth G. Petrulis took advantage of the flaws in the legal system in order to obtain a successful outcome for his client. I do not mean to imply that Ken Petrulis ever did anything in our case that was unethical. He zealously represented his client, as he should have as his attorney. The case was before Judge Aviva Bobb. Judge Bobb was obviously an intelligent and knowledgeable judge. She presided over the family law courts at one point in her career. However, in my mother’s case, she made some dispositive evidentiary rulings that in my opinion revealed that in our case she held a fundamental misunderstanding of some of the material issues at play in the case. As a result, my mother's ex-husband of ten years won a judgment of a million dollars against her estate. That was the final blow to my family. I have handled many cases in my 21 years as a lawyer and I do not make such statements lightly. I have seen such bad behavior time and time again.

It’s true that what happened in my mother’s case ignited my research into the effect of family court litigation on families. And it’s also true that reliving some aspects of that case, which tore apart my own family, triggers emotional reactions in me even though I feel that I’m past it.

Although my advocacy concerning lifting family law cases out of the trenches of litigation was launched by my own case, however, it has now moved far beyond that. Our case is over. Final. I am now determined to ensure that the irreversible damage that litigating family law and probate matters has caused to my family as well as countless others comes to an end. Zealous advocacy works in criminal law and in certain other areas of law. It does not work in family law and probate where families are involved.

I have become very outspoken about the fact that the 'default' system for Family Law needs to change from litigation, as the first choice, to mediation or some other form of consensual dispute resolution. I believe the same is true for probate related matters for the same reasons -- family. Litigation and family do not mix.

After witnessing the destruction caused to my own family (let alone those of my clients), since 1984, I was so disgusted at the miscarriage of justice and lack of concern for family in the United States that I seriously entertained the idea of permanently leaving the United States and giving up on the practice of law. After what occurred in my mother's probate case, I actually traveled to Australia and New Zealand for five (5) weeks in late 2007 and early 2008 with the intention of moving there. Instead, I returned to the United States with a mission. I am determined to be an integral part in bringing about these much needed changes so that others will not suffer the tremendous amount of pain, grief and destruction that the litigation system here has caused me personally. It seems to me that I am making amazing progress on my mission because I am certainly receiving a great deal of attention for my efforts. I would say that my being asked to be the Keynote Speaker for the opening night of The Divorce Expo in Detroit is some indication of the visibility I have been receiving, especially since I am only licensed to practice law in California.

I am what Carl Jung referred to as a wounded healer.

Almost all divorces occur because of some level of conflict between the spouses. The adversarial system certainly does not reduce that conflict. If there are children of the relationship, we should be attempting to reduce the conflict. That certainly cannot occur in an adversarial system. The amount of damage that the adversarial system causes families is a matter of degree - some more than others.

The key issue is training. Lawyers in the United States are trained to represent their clients through the adversarial forum of a court-room. Research indicates that the process of litigation increases the conflict and trauma for separating parties. This impacts the children of the relationship, and even extended family members. It is the role of the lawyer, once litigation has commenced, to "fight" for the interests of their clients.

As a colleague of mine in Ireland who has been involved in family law research over the past three years recently commented, "while legal training I believe should be a pre-requisite for anyone dealing with substantive issues in mediation, it is the suitable 'personality' test that distinguishes competent mediators from great mediators. 'Great' meaning effective problem solvers and defusers of conflict. My experience of the 'interest' that brings people to practice mediation is invariably a personal experience of the break-down of a family, I believe that this is a strength not a weakness, and greatly informs the empathy that a mediator ought to have to truly connect with their clients. This does not mean that mediators who have have had negative experiences as a child better understand the dynamics of mediation, it just means that they have a greater 'interest' in a peaceful outcome, informed by their own experiences." Roisin O' Shea Dip, BA Hns (Law), Certified Mediator, PhD candidate at Waterford Institute of Technology, Ireland.

Unless I am missing something, the same thing holds true for family law attorneys as well as judges and other judicial officers.

The most important take away I can give everyone is the following: Attorneys who practice in the field of family law must understand the nature of human conflict. They must also aim to help people resolve that conflict right from the start. Choosing the right attorney is one of the most important decisions a person can make.

An intelligent man on a mission, who has become known as a truly gifted writer who is educating the public about the flaws with the way in which family law (and later probate) is handled in the United States is very dangerous to those who want to maintain the status quo.”

Mark Baer's Keynote Speech Given at The Divorce Expo in Detroit, Michigan on March 23, 2012

Pasadena Family Law Attorney — Sat, 24 Mar 2012 15:20:00 GMT

Like it or not, if there are children of the relationship (regardless of their age), the family still exists after the relationship ends. The manner in which you end a relationship determines whether your family will be functional or dysfunctional from that day forward.

Abraham Lincoln’s Notes for a Law Lecture dated July 1, 1850, provide in pertinent part as follows: “Discourage 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…. A moral tone ought to be infused into the profession which should drive such men out of it….” I would like to point out that, among other things, Abraham Lincoln specialized in family law.

In 1984, Warren Berger, then Chief Justice of the United States Supreme Court, while speaking about the American legal system to members of the American Bar Association, said, “Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people. To rely on the adversary process as the principal means of resolving conflicting claims is a mistake that must be corrected…. The obligation of our profession is, or has long been thought to be, to serve as healers of human conflicts.”

More recently, Supreme Court Justice Sandra Day O’Connor made the following statement: “The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.”

On November 25, 2011, David B. Saxe, an Associate Justice of the New York Supreme Court wrote, “If matrimonial lawyers focus on the larger picture, they might recognize they stand to gain more in the long run from the good will and recommendations of satisfied clients following successful mediation, than from the backlash of dissatisfaction in the wake of a typical unpleasant divorce.”

A "Stress Assessment" based upon the Homes and Rahe Life Change score established in the late 1960s or early 1970s is still validated by most mental health experts. The death of a spouse or child is the highest level of stress that one can experience. It has been found that approximately 75 percent of couples who lose a child to death ultimately divorce because of the way in which they handle the stress. When someone loses a spouse to death, they are unable to act out against that spouse for leaving the marriage because the spouse is dead. It is important to note that almost all experts agree that one should avoid making any major decisions within the first year following the death of a spouse. The stress of a divorce comes second only to the death of a spouse. Moreover, when it comes to divorce, certain aspects of loss become slightly magnified. In other words, the manner in which people process and manage the stress and loss caused by a divorce is more destructive to themselves and others because they are able to act out against the other person who was involved in that relationship. As an aside, I would like to point out that marital separation falls just below divorce in the stress assessment. What is disappointing to me is that nothing has been done to alter the way in which people are encouraged to handle the grief resulting from the death of a marriage (or a non-marital relationship involving children).

How often does a friend or family member refer a person going through a divorce to a support group or to a mental health care professional to help the person cope with the loss and grief caused by the death of their marriage? Instead, we encourage people going through such losses to handle their loss and grief in destructive ways by going to war with each other in the courtroom (the family law court).

The assumption that because a client is an adult, that he or he is thinking clearly and wants what they say they want or think they want is a very big assumption. We all need to be aware of our personal prejudices, biases, values, beliefs and assumptions that we bring to every interview with a client.

Studies over the past 30 year or more have found that I.Q. levels can decrease by 20 percent from low stress to high stress and this applies to everyone from children to corporate leaders. When a person’s stress level is sufficiently elevated, their ability to fully and effectively use their cognitive ability and emotional intelligence in tandem to make timely and effective decisions is significantly impaired. If the elevated stress becomes high enough for a long enough period of time, however, deleterious effects will follow regarding the “higher” level thinking processes, e.g., logic, analysis, decision making, etc.—a significant portion of the IQ. Too much stress results in a drop in cognitive ability (including IQ) and an oversensitive heightened state of emotion. A person loses a significant amount of ability to “control” their emotions, thus becoming temporarily less emotionally intelligent! Stress reduces a person’s ability to fully access their IQ and emotional intelligence abilities. This results in displays of some or all of a characteristic set of deleterious behaviors, such as: not listening; over-analyzing; stops making decisions; makes “emotional” decisions; “flip-flops”; makes reactive, short-term, fear-based or anger-facilitated decisions; acting in such a way as to satisfy the minimum requirements for achieving a particular result; hedonistic; or the failure to notice something in plain sight.

Earlier, I pointed out that “almost all experts agree that one should avoid making any major decisions within the first year following the death of a spouse.” The reason for this advice is that the temporary decrease in one’s IQ level lasts for approximately one year when the person has suffered such a great loss. In a divorce, the temporary decease in one’s IQ level lasts until approximately 1 ½ years after the divorce has been finalized.

If our client's "effective decisions" are "significantly impaired”, are we acting responsibly when we make statements such as this: "I consider my adult clients to be independent adult moral actors, and I do NOT consider it to be my job to substitute my moral judgment, or my personal views as to the "savability" of their relationships, for theirs."? Do we have an obligation to our clients to make sure that they really want what they are telling us they want? As family law attorneys, we are in a different position than our colleagues in other fields of law because the stress that our clients are under is greater than the stress that clients our colleagues deal with are under. Thus, the "effective decisions" our clients make may very well be "significantly impaired." This is true whether the "effective decision" is to divorce or the manner in which our clients decide to proceed with the divorce (in terms of the process and the constructive or destructive nature of the proceeding). Therefore, do we as family law practitioners have a higher ethical duty than attorneys in any and all other fields of law? Should our ethical obligation be to ensure that our clients really want what they say that they want? Do we as family law attorneys respect the importance of relationships and family or are we just interested in our clients as a means of making our mortgage payments?

I am by no means advocating for the elimination of no-fault divorce. While divorce rates did rise as a result of no-fault divorce, domestic violence rates fell by approximately 20 to 30 percent and wives’ suicide rate fell by 8 to 13 percent.

However, if the attorney does not inquire about the reasons the client is seeking a divorce, how will the attorney know if the client really wants a divorce and/or whether the marriage can be saved? Remember that marital separation falls just below divorce in the stress assessment.

I recently took part in a discussion of family law on the Los Angeles County Bar Association’s Listserv. After one lawyer pointed out that “the code of ethics requires attorneys to advise their clients about mediation possibilities,” a number of others chimed in with reason after reason for opposing the use of mediation in family law cases. Eventually I spoke up. “Why is it that mediation and collaborative divorce is very successful in other countries (such as the UK), and in some states in the US, but the family law litigation community here seems to have a completely different impression? Is it that people in Los Angeles somehow differ from people everywhere else?” Disappointingly--but not surprisingly--no one even acknowledged my question.

Within the past year, I had the pleasure of hearing Tobias Desjardins, the Director & Founder of the International Center for Peaceful Shared Custody, speak. During his talk, he mentioned that families are frequently referred to him by judicial officers when a child becomes suicidal as a result of their parents protracted custody battle. He told us that by the time he sees these families, both parents have worked with several different attorneys and that they have consistently told him that the first time they learned about mediation or collaborative divorce was through him. This reality is not only indicative of unethical conduct by family law attorneys, but it is just plain tragic.

In 1996, the Australian government reformed its family law system in an effort to make it “more responsive to families in need and by making it simpler to negotiate appropriate outcomes. It accomplished this by shifting "the focus from litigation as the first choice for the resolution of family law disputes." Since then, mediation has become the "primary dispute resolution in family law." The Australian government recognized that "litigation is usually slow, expensive and by its nature, adversarial.” The government found that "in family law matters, such behavior may make it difficult for the child to maintain an ongoing relationship with both parents and for parents to maintain their ongoing responsibilities.” But when people are able to settle matters for themselves, the arrangements they make are far more likely to suit all parties, they will have been reached more quickly and will cost less than if they are determined in Court.”

Australia has transplanted troubled families away from courts and into 65 Family Responsibility Centres in cities across the country. Parents or spouses who visit the centre sit first with an adviser, who hears their story, and then directs them to the services needed – mediation, collaborative divorce, addiction treatment, financial advice or parenting support. I would like to point out that the kind of mediation offered there seems to be family systems and service based, meaning that there are value-added inputs being offered to the families, not merely brokering of deals.

Since its initial reform, the Australian government has continued making improvements to the family law system. Currently, whether the case involves parenting issues, financial issues or both, "each prospective party to a case in the Family Court of Australia is required to make a genuine effort to resolve the dispute before starting a case." Moreover, "unless there are good reasons for not doing so, all parties are expected to have followed these pre‑action procedures before filing an application to start a case" and "there may be serious consequences, including costs penalties, for non‑compliance with these requirements."

On April 6, 2011, England and Wales followed Australia's lead by making similar reforms to their family law systems. “Divorcing couples are “referred to mediation [for child custody and/or financial issues] to sort out most disputes before they are allowed to use the courts.” The British government announced that its aim was to “radically reform the system and encourage people to take advantage of the most appropriate sources of help, advice or routes to resolution - which will not always involve the expense of lawyers or courts." The Justice Minister said, mediation was "a quicker, cheaper and more amicable alternative" to the over-worked family courts.... He also said that "Nearly every time I ask someone if their stressful divorce battle through the courts was worth it, their answer is 'no'.... It gives people the opportunity to take their own futures in their own hands." According to the Justice Minister, "programme statistics suggested that more than two-thirds of couples who took up mediation were 'satisfied with the results.'"

Mediation is the presumptive first step for almost all couples in Quebec.

Several jurisdictions in the United States now have a “triage” judge who screens cases and diverts them away from the court. In Connecticut, for instance, a triage system doesn’t simply hive off cases that don’t need a court hearing – couples are directed to financial counseling or parenting courses.

In North Carolina, a “statute mandates the courts to establish a ‘system of settlement events’ for family law matters. North Carolina is the first state to have a comprehensive domestic relations arbitration act, a collaborative divorce statute, and mandatory mediation rules.

The Utah Legislature passed a mandatory mediation statute effective May 1, 2005. The case statistics available to date indicate two thirds full settlements and 12-14% partial settlements for an 80% total. Court caseloads have been reduced, the stress levels of litigants and lawyers have been reduced, the fees for divorce have been significantly reduced, and the satisfaction level of the parties is higher than for litigation.”

On November 23, 2011, British Columbia passed The New Family Law Act. Overall, the New Act structures the law so that court is not the implied starting point to resolve family disputes. Parents will be encouraged to work together to resolve their differences and use family mediation or other assistance where appropriate, taking into account their circumstances and whether there is family violence. In other words, it changes the default process. It seeks to ensure that parents have tried, through mediation, to rectify their differences. The government acknowledged that a marriage break down is often a very emotional time and sometimes an adversarial process that can even lead to domestic violence. It was stated, “I do not think anyone can argue or dispute the massive amount of destruction to assets and children that has occurred in our adversarial system. The courts have been needlessly backlogged with mindless arguments and position bargaining about issues that simply do not belong in front of our Judges. Couples using our expensive courtroom resources to fight their personal battles must come to an end. If we can save one child from the tragic outcome created because of our system and if we can start to empower children of divorce to move through their parents’ divorce without emotional harm – then we can start to change the way divorce happens.” The New Family Law Act is centered on the best interests of the child. It expressly states that, when making decisions involving the child, the best interests of the child should be the only consideration. The Act describes parents’ roles and responsibilities in less adversarial terms. Instead of referring to the ill-defined terms of custody and access, the act refers to guardianship, which is described in terms of parental responsibilities that allow for a more customized parenting arrangement. Parents who have lived together after their child was born will be the child’s guardians until they agree or the court orders otherwise. Under the Act, both parents retain guardianship of their children after separation unless they agree, or the court orders, differently. In other words, there is a presumption of equal parenting at the outset. The court may make contact orders to allocate time with a child to a non-guardian, such as a grandparent, where it is appropriate.

The parties to a family law dispute must comply with the requirements set out in the regulations respecting mandatory family dispute resolution and prescribed procedures.

On October 23, 2011, I wrote an article titled “What Triggers Violence in Custody Battles in the United States.” In that article, I explained that stress is a pain and a pressure that seeks relief, and sometimes, tragically, release from the pressure is expressed in violence. The American Bar Association acknowledges, for example, that in child custody battles, reports of domestic violence are common, and by some estimates as many as 50% of child custody disputes involve domestic violence. In one month alone, this past October, three tragic incidents made headlines:

In Dallas, after a court awarded a father sole custody of his 7 year old boy, the mother shot her son and herself, even as her estranged husband waited outside with police.

In New York state, a successful attorney who was reportedly distraught at the prospect of losing custody of his children in an up-coming trial, killed his wife and his children before turning his gun on himself.

In Seal Beach, California, Scott Dekraai--a despondent husband who had just faced a court imposed delay in his bid to obtain full custody of his son, blasted into the work place of his estranged wife, killing her and seven others.

While it is facile to argue that such instances can be attributed to the essentially unbalanced state of the individuals, this argument avoids dealing with the fact that the legal system aggravates the possibility that fragile people under enormous stress will lose control. For example, in the Seal Beach situation, Dekraai had just come from a hearing that would have forced him to wait an additional two months for a ruling. Continuances and other delays are typically considered “benign”--but are they, really? Forcing suffering people to endure frustrated expectations and prolonged ambiguity, as the family law system routinely does, is unquestionably--if passively--malignant, and can be a real trigger for violent behavior.

Unfortunately, in the United States, this reality is considered merely my opinion. Yet, in British Columbia, it was a factor taken into account in enacting the New Family Law Act.

In her book titled “The Good Karma Divorce”, Judge Michele Lowrance, a domestic relations judge in the Circuit Court of Illinois, wrote “The court system was not built to house these emotions, and attorneys are not trained to reduce this kind of suffering. Divorcing people expect relief far beyond what the legal realm can provide from their attorneys and the courts, and they often end up feeling like members of a powerless, unprotected class.”

Last year, I had the pleasure of hearing Judge Michele Lowrance speak. During her plenary speech, Judge Lowrance mentioned that mediation addresses many of the flaws caused by litigating family law matters. However, what it does not address is the emotional suffering that the couple is experiencing. She said that Collaborative Divorce seems to be the best solution because it picks up where mediation leaves off and it is a very good and holistic approach.

Regardless, unless and until the default process for handling divorce and other family law matters is changed from litigation to some form or forms of consensual dispute resolution, it only takes one person to sink the ship and thus destroy the family. Parents who end up in court are forced into an adversary system that knows little about child development and less about the best interests of children or the family unit. In sum, the adversary system destroys families. No one can expect a couple to effectively parent after being exposed to the court process.

Outcomes are often determined by the way in which the "game" is designed. For example, there are some countries in which 98-100% of the citizens are organ donors, other countries that are the reverse, and there is a large void between these two extremes. Most people believe that this is the result of cultural and value differences. WRONG!

In those countries in which 98-100% of the citizens are organ donors, the "default" is that all citizens are organ donors. They are then sent an "opt out" letter. If they bother to read the letter, check the box stating otherwise and return it, they will not be organ donors. In those countries where almost none of the citizens are organ donors, the "default" is that none of the citizens are organ donors unless they bother to read the letter, check the box stating otherwise and return it.

In the United States, the "default" in the legal system is litigation and court. In order to avoid the default mechanism, both spouses must agree to handle their matter outside the legal system -- through mediation, collaborative divorce, or some other form of consensual dispute resolution. They must also agree on the particular process and the professionals involved. Moreover, they must both actually remain in some sort of consensual dispute resolution process until their issues have been resolved. Otherwise, they revert to the default mechanism, which is litigation and court. Please note that while litigation is more costly and destructive than handling matters through some form of consensual dispute resolution process, it is much easier. All the parties need to do is throw their money at the lawyers and the “gun for hire experts” they employ and ultimately allow a judge to decide their fate and that of their family. It is much more difficult for individuals in conflict or high conflict to jointly resolve their issues, even with the help of professionals. As they say, “when the going gets tough the tough get going.” What I mean is that unless the default is changed, as it has been in Australia, England, Wales, British Columbia and elsewhere, someone may likely abandon the consensual dispute resolution process as soon as it becomes too difficult for them. This decision to take the easy way out creates a massive amount of destruction to assets and children and destroys families. We must therefore do what other countries have already done and change the default. One member of the family should not have this much power and ability to cause so much destruction to their spouse and the other members of their family. If the default were mediation (except in those cases in which there are certain levels of domestic violence or child safety issues), I would bet that most people would successfully resolve their matter through mediation or collaborative divorce. Many things in life are determined by the way in which the "game" is designed.

In California, pre-hearing custody mediation has been mandatory for many decades now. However, by the time people get to court-annexed mediation, they are already in the court system. The mediation takes place only after a party has filed an Order to Show Cause for Child Custody/Visitation. Most of those documents and the Responses contain character assassinations. While the parties may ultimately resolve the custody matter through court-ordered mediation or otherwise without the need for a judicial officer to make a decision, the damage has been done. It takes an enlightened person to forgive their ex (the other parent) for the character assassination. Even if the parents are able to eventually forgive each other, they would have to suffer from dementia to forget what was said about them. In other words, the mediation should occur BEFORE any such motions are filed with the court. The "'system' did not create people's problems", but it requires things to be said that need not be said. As they say, "Some things are better left unsaid." Another saying is “If You Don't Have Anything Nice to Say About Someone, Don't Say Anything At All.” These quotes make sense and our client’s declarations do just the opposite. Once this is done, a court can order the parents to “Parenting without Conflict”Co-Parenting courses or the like until the Cow Jumps over the Moon and it will make no difference.

Does anyone here really believe that the damage to families is eliminated by merely changing the default for child custody and visitation issues? Does anyone think that a couple will be able to co-parent well even though they resolved their custody and visitation issues through mediation, if they litigated the support and/or property division issues? Does anyone believe that the win/lose dynamic and destructive nature of the litigation on those issues will not impact the relationship between the parents and their ability to co-parent?

Unfortunately, as Joan Kelly demonstrated so vividly in her page-long footnote listing different mediation models in an article reviewing mediation research reports, we really don't know what we mean when we simply use the word "mediation," as it covers so many divergent models. The difference in mediation models is not just between facilitative, evaluative, and transformative, but also pre or post filing, mandatory or free choice, caucusing or not caucusing, short term vs. open-ended, lawyers present or not present, etc. She concluded that any generalization one could make about mediation was likely to be false, because the only constant one could rely on was (at least) one unaligned professional in the room. The differences far outweigh the similarities, she suggested.

Most lawyers and judicial officers believe that mediation is evaluative and are unfamiliar with other forms of mediation. The following quote from a family law colleague exemplifies that fact: “My commitment to the appropriate use of mediation and ADR tools can be discerned from twenty-five years of regular service to the courts as a volunteer family law mediator and settlement officer, my paid neutral work over the same period , and my resolution of matters for my clients over the last 25+ years with mediators, private settlement conference officers, and plain old negotiation, in addition to adversary litigation.” This attorney might be very effective at evaluative mediation and for the same reasons would probably make a very good judicial officer. However, there is a great controversy within the mediation world as to whether evaluative mediation is really mediation.

There is no requirement that family law attorneys have any training in Alternative Dispute Resolution. In fact, family law specialists, Certified by the California State Bar and most everywhere else, are not required to have any educational hours or training in Alternative Dispute Resolution. Mediation is unregulated in most places, including California. Thus, a person can practice as a “mediator” without ever having received any formal training.

A person claiming to be a mediator even though they had no formal mediation training is the same as a parent saying that they can teach parenting skills because they happened to have raised children of their own. The fact that someone raised their own children does not mean that they had good parenting skills and that they should be teaching others how to parent.

In evaluative mediation, matters are resolved by virtue of having a "neutral" evaluate legal positions and point out the strengths and weaknesses of each side's case. In essence, the "mediator" is putting on a Judge's robe because the "mediator" is helping the parties to resolve the case by pointing out what they believe will happen if the matter were to proceed to court. Thus, it creates winners and losers, just as occurs in matters that proceed to court. The win/lose dynamic is not the only problem with evaluative mediation. Another problem is that a particular judge’s credibility determinations, factual findings and exercise of discretion may very well differ from those of the mediator. It is virtually impossible to have credibility determinations, factual findings or decisions made within the realm of judicial discretion in Family Court overturned on appeal. Outcomes will vary from judge to judge and from one court to the next -- even within the same courthouse -- based upon a particular judicial officer's credibility findings, factual findings, and judicial discretion. The mediator is not the judicial officer who will be hearing the matter and making the decision if the case proceeds to court. Most certainly the mediator and the judicial officer came from different backgrounds and had different life experiences. As a result, they each have different personal beliefs, values, assumptions, and biases. This, in turn, may very well cause the mediator to make credibility determinations, factual findings, and apply their discretion differently than would the judicial officer. Therefore, how can a mediator predict the outcome that would otherwise occur in court? The evaluation of the outcome is really nothing more than a prediction of what would happen in court. No amount of bias elimination training will make a mediator or judicial officer forget about their life experiences, assumptions, personal beliefs, and values.

During Abraham Lincoln’s lifetime, the concept of “No-Fault Divorce” did not exist anywhere. Today, however, we have “No-Fault Divorce” in every State in this Country. Therefore, unless the case involves issues pertaining to domestic violence or the safety of a child, fault and liability are generally not factors in family law. If a judge got divorced and had to pay what they determined to be excessive child support to an ex-spouse, it would be very difficult to be unbiased when dealing with this situation for others in their courtroom. Similarly, if a judge has a child who they feel did not receive enough child support or spousal support to meet their financial needs, they might be overly generous in making such awards -- to the extent possible under the law. As a judicial officer noted, "Judges are trained to be sensitive to problems of bias; regardless, one does not undergo an instantaneous transformation from whatever one may have thought or believed as an attorney just by being sworn in as a judge or commissioner." What makes a mediator’s evaluation any more accurate? The fact of the matter is that the crystal ball broke years ago and before it broke, it never really worked. Let me be very clear – evaluative mediation is NOT mediation, especially in family law matters.

Both litigation and evaluative mediation are concerned with positions and legal constructs that define rights and obligations. As with the Rules of Professional Conduct, laws are merely a baseline and there is nothing preventing us from exceeding those “minimum requirements.” The underlying reasons (consciously or unconsciously known) for the parties’ positions are basically irrelevant. In both litigation and evaluative mediation, we are forgetting that the only reason anyone ever contacts an attorney is that they have a problem that they need solved. In other words, the ability to problem solve is the hallmark of a good lawyer. Family law is not a war to be won, but a problem to be solved and court is the last place a family should find itself.

Mediation is a voluntary settlement negotiation facilitated by a neutral third party who has no decision-making power. The hallmark of mediation is its focus on the interests, needs, values and goals of the parties, as opposed to their positions. A key step in any mediation is the selection of a mediator. As there are no universally recognized certification processes for mediators, selection must be based on each individual’s particular training, experience and references. The mediator will usually assist in developing ideas for resolution but refrain from controlling the process, because the parties involved in the dispute are more capable of recognizing the essential elements of a workable, long-lasting agreement. A mediator will not usually arm-twist, or lean on one party, or suggest that a party is being unreasonable and should compromise. He or she will, however, encourage settlement and see that the merits of any proposal are tested. The mediator will also push the parties to consider the alternatives to a negotiated agreement, so that they know the full consequences of walking away from a possible settlement.

Unfortunately, mediation is unregulated in most jurisdictions. Since I do not believe in reinventing the wheel, I am now going to quote from the Australian National Mediator Accreditation System Report because the concerns apply equally well in the United States and elsewhere for that matter. “There is no uniform, comprehensive system of credentialing practitioners, enforcing standards or developing quality improvement strategies. There is currently no requirement that mediators have a level of competency that would satisfy the reasonable expectation of the parties. We must develop an accreditation system for family dispute resolution practitioners to ensure the provision of high quality dispute resolution services, and to recognize the professionalism of the sector. We must develop minimum standards of education, training and experience to satisfy the requirements for accreditation. Core concepts of consistency, quality and public protection are central to the development of standards. As one analyst has noted, “The absence of any structure of procedural or substantive rules, in a process conducted without direct public scrutiny, presents the real danger of harm from inept or unethical practitioners…. [I]n mediation much more than in any other dispute resolution process, the quality of the process depends heavily on the quality of the practitioner.” "An ounce of prevention is worth more than a pound of cure" means it is better to try to avoid problems in the first place, rather than trying to fix them once they arise. If we do not implement an accreditation system and otherwise regulate mediators, we are just replacing one problem with another. Don’t families deserve more?

Collaborative Divorce is a process within which to resolve family law issues in a fair and respectful manner, without going to court. It is much like a mediation wherein the spouses each have separate legal representatives, but without the mediator. The reason that the parties do not require a mediator is that the attorneys involved have been trained both in mediation and in the collaborative process. In collaborative divorce, a team is assembled of experienced family law attorneys, mental health, and financial professionals who are specially trained in collaborative practice, mediation, and conflict resolution. The attorneys guide the clients through the legal process to reach a negotiated settlement. The coaches assist them in managing their anxiety, creating a parenting plan. The child specialist is a neutral third party whose job is to understand the situation from the perspective of the child(ren) and to advocate for their interests. The financial professionals help to educate the clients regarding the best ways to divide their assets, and to plan for the financing of two households. The result is that we are able to support them through their transition in a knowledgeable, compassionate and non-adversarial way so that they are able to make the best decisions for their family. The attorneys pledge to not litigate the matter or threaten to litigate the matter. The reason for this pledge is that litigation and judicial involvement is one way of solving a problem. If that means of problem solving is available to Collaborative Practitioners, they will be more likely to resort to that option rather than assisting the parties in developing more creative, constructive and effective alternatives for the clients and their family. If the case cannot be settled, and the process of collaboration fails, the same attorneys cannot be involved in any future litigation because otherwise, litigation would be more likely used as a problem solving mechanism. For those individuals who are afraid of the cost of a collaborative divorce because of the number of professionals involved, please keep in mind that of all professionals involved in the collaborative process, the attorney's rate is generally the highest. Therefore, when the attorney takes more of a "back seat" in the process and leave emotional issues and custody matters to the mental health professionals and the financial issues to the financial analyst, the total cost is estimated to be one-half (1/2) to two-thirds (2/3) the cost of a litigated divorce.

In order to demonstrate the importance of involving mental health care professionals in family law proceedings, let me briefly discuss something that occurred in a recent Collaborative Divorce case of mine. The couple had been married for 28 years. The husband earned significantly more income than did his wife. His elderly parents lived in a separate apartment at the family residence, as did their adult disabled child. Both parties hoped that the husband could afford to keep the house in the divorce because otherwise his parents would end up in an assisted living facility and they would need to find somewhere for their disabled adult child to reside. The wife knew that if she “broke the bank”, that her husband would not be able to afford to remain in the house. The wife’s attorney believed that if the case were litigated, that the wife could receive spousal support in the amount of $4,000.00 per month indefinitely. I believed that the figure was closer to $3,500.00 per month, but otherwise agreed with the wife’s attorney. Wife understood that by the time her husband bought her out of her interest in the family residence, he would not be able to afford to keep the house if he had to pay her spousal support in the amount of $3,500.00 per month or more. Through the Collaborative Process, the parties ultimately agreed that wife would receive spousal support in the sum of $2,500.00 per month for the first year and that it would decrease by $500.00 per month each subsequent year, until it went to $0.00 in year six. The parties did agree that the court would retain jurisdiction over the issue of support in the event that there was a change of circumstances for wife. However, this would have been true even if the matter were litigated and she had received at least $3,500.00 per month in support. The parties agreed that they would each receive 50% of the community property assets and that husband would buy-out wife’s interest in the family residence by taking out some equity by refinancing the property. The parties also agreed that they would each pay for their own respective attorney’s fees and 50% of the fees of the other professionals involved in the proceeding.

The following day, guess which party tried to break the deal that had not yet been formalized in writing? Answer: Husband. I tried to explain to him that if the matter were litigated, that his wife would still receive 50% of the community property, she would receive at least $3,500.00 per month in spousal support, that he would most likely end up paying a contributive share of her attorneys fees and costs and that both of them would incur significantly greater attorney’s fees and costs. In other words, I explained to him that he stood to gain nothing by breaking the deal and that he would certainly end up worse off. He still wanted to call off the deal. I then put my analysis in writing and emailed it to him, but to no avail. Fortunately, the matter was in the Collaborative Divorce process and we were therefore able to send the couple back to the coach (it was a one-coach model). She was able to get the deal back on track because his issues were emotional and the coach was a psychologist and therefore had special training to deal with human behavior and interpersonal dynamics. Had this case been handled in any other process not involving a mental health care professional, the settlement would have fallen apart and the parties underlying needs, interests, values and goals would not have been satisfied. Unfortunately, perfectly reasonable and even beneficial settlement options are rejected all the time only because people’s emotions get in the way and they are not thinking clearly.

Rarely is a legal problem purely legal, especially in family law. Almost all disputes involve emotional and interpersonal dynamics. Successfully resolving those disputes requires skills beyond those traditionally taught in law schools. Collaborative Divorce incorporates all of the skills needed to increase the likelihood of a successful outcome for the client through its interdisciplinary team approach to divorce.

As with any team, a Collaborative Team is only as strong as its weakest member. It is therefore important that you select team members who are both very skilled in their respective discipline and who work well with the other members of the team. Also, be sure to draft members onto this team only if you have enough confidence in their credentials and abilities to follow their advice, even if the advice is not something you want to hear.

As Collaborative Divorce continues to gain momentum, we need "quality control" for the practitioners because not everyone is appropriately suited for the process and therefore do more damage than good. This is true for these entering the field merely because it is a growing market, those who are not self-aware that they are not collaborative, and those who mean well but do not hone their skills. We therefore need to have systems in place to address these problems.

As my esteemed colleague, Pauline Tessler told me, “the most significant variable affecting whether a divorce will be managed well or whether it will slide into high conflict litigation is who the parties select as their lawyers. Lawyers who understand the nature of human conflict and who aim to help people resolve it, right from the start, handle their cases entirely differently from lawyers who may have reasonably positive views of mediation, but who treat it as just another way of getting to a legal-template deal and who see their job as preparing for maximum measurable gain at trial. Family law clients are going to be distressed, angry, fearful, subject to spasms of vengeful intention and other dysfunctions. Their lives are coming unglued. Therefore, choosing the right attorney is one of the most important decisions a person can make. The lawyer needs to be able to hold up for the client an alternate possibility of working from hope rather than fear. You can lead a lawyer to consensual dispute resolution, but you can't make him or her into a facilitator of deep resolution without changing the lawyers' understanding of what it means to be a divorce lawyer, venturing into the sacred space of primary pair bonds unraveling.”

For those of you who have never read any of my articles, they tend to be about problems with the way in which family law matters are handled. Isn't it interesting that the Press Releases for my articles tend to get picked up by so many financial sites, such as Market Watch, the Wall Street Journal, and Finance.Yahoo. Maybe it is because the way in which families resolve their conflict impacts their financial health, which in turn impacts the economy at large.

Family law reform in many jurisdictions has focused on the health of the family, and providing more than legal assistance or conflict resolution.

The definition of insanity is doing the same thing over and over again and expecting different results. Doesn’t that apply to litigating divorces? Divorce and having children outside of marriage were slowly losing their stigma in the 1960’s. The results from the way in which divorce and family law has been handled since that time are available and quite clear. If people continue litigating divorces, they will continue creating dysfunctional families. To think differently is the definition of insanity.

Winston Churchill once said, “The Americans will always do the right thing… After they’ve exhausted all the alternatives.” I, for one, believe that we have exhausted all the alternatives and that the time has come for us to do the right thing and change the way in which we handle family law matters in the United States.

Judicial Bias - A Variable That Is Often Overlooked in Family Law Litigation

Pasadena Family Law Attorney — Sat, 14 Jan 2012 15:46:00 GMT

“It is generally agreed that a litigant is entitled to have her case decided by a judge who can approach the facts in a detached and objective manner; indeed, the protection of the integrity and dignity of the judicial process from judicial bias has been hailed as ‘the palladium of our judicial system.’” In fact, California Code of Judicial Ethics provides in part as follows: "A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status." In an effort to accomplish such a result, "judges are trained to be sensitive to problems of bias." This is a quote from a Judicial Officer in California in response to a Discussion on LinkedIn entitled, "IS THERE GENDER BIAS IN OUR FAMILY LAW COURTS?" That same Judicial Officer also stated, "I can say that one does not undergo an instantaneous transformation from whatever one may have thought or believed as an attorney just by being sworn in as a judge or commissioner."

In his book "Mediating Dangerously - The Frontiers of Conflict Resolution", Kenneth Cloke made the following statement regarding bias: "[T]here is no such thing as genuine neutrality when it comes to conflict. Everyone has had conflict experiences that have shifted his or her perceptions, attitudes, and expectations, and it is precisely these experiences that give us the ability to empathize with the experiences of others. Nor are there any genuine neutrals in courts, including judges, CEO's, managers, and human resources representatives, all of whom have biases and points of view, including the bias of wanting to protect the organization from being disrupted by conflict. Judges have the most intractable bias of all: the bias of believing they are without bias." [emphasis added]

After a recent experience in court wherein the Judge’s ruling was either based upon her lack of experience in family law or her personal biases, I started the following Discussion in various groups on LinkedIn: “DOES ANYONE REALLY BELIEVE THAT IT IS POSSIBLE FOR A FAMILY LAW JUDGE TO BE UNBIASED?”

In order to encourage discussion, I commented as follows: “With the divorce rate what it is, everyone has been touched in some way by divorce and/or custody and support issues. We may have been impacted by our own family law matter, our parents' family law matter or our child's family law matter. It is pretty well established that with few exceptions, everyone feels as if they paid too much, received too little, obtained a custody/visitation result that was "unfair" to them, etc.

EVERY judicial officer has their own personal biases in the family law court. We therefore try to determine whether the judge assigned to a particular case is biased for or against our client. We select custody evaluators that are hopefully biased in favor of our particular client. The same exact case would have incredibly different results from one court to the next. The bias impacts the judge's factual findings, the great discretion they are given and how they opt to apply the law. This bias exists in no other area of law to this degree. No amount of bias elimination training can educate a judge to forget about their life experiences, assumptions, personal beliefs/views and biases.

This issue alone makes family law litigation very unfair and inequitable. In reality, the only unbiased family law judges are those who have never been personally impacted by family law. This is very unlikely and becomes increasingly more unlikely over time.”

With very few exceptions everyone who commented was of the opinion that judicial bias in family law litigation is a serious concern. However, what I found most interesting was how people's responses tended to vary based upon their involvement in the legal system.

Three forensic accountants who testify as expert witnesses in on financial matters family law court in various parts of the country made the following comments.

"Mark - This is a great post, which highlights a variable that is often overlooked in family law litigation." [emphasis added] In a subsequent phone conversation, he told me that on a Monday, he can be testifying on behalf of a husband before a judge who is known to be biased against husbands and he will notice that the judge pays very little attention to his testimony (because the judge was going to rule in favor of the wife regardless of his testimony). He can return to the exact same courtroom on the following Wednesday (only two days later) on a completely different case and notice that the same judge will pay very close attention to his testimony because he happens to be the expert for the wife in that case (and the judge needs to grasp the testimony that will allow him/her to rule in favor of the wife).

"I have noticed judicial bias come into play." [emphasis added]

"It is ironic in a way. In most litigation, one of the great unknowns (and therefore great concerns) is the jury. You must distill complex legal, commercial or scientific issues to a basic enough level for the least common denominator of a, largely, inexperienced group of people to follow in a short time frame. In family law (and these days some commercial matters in jurisdictions following the Delaware model), we eliminate that concern by putting the matter before a, presumably, intelligent, experienced jurist. What gets lost is the balance that comes from decisions reached through consensus of multiple points of view.” [emphasis added]

Two mental health care professionals who stopped doing custody evaluations for family law court had the following comments.

“That was my experience in NJ 15 years ago. Ex Parte communication, churning cases, corruption among expert witnesses, etc. I simply stopped practicing in the family courts and never looked back…. I recall when I complained to my attorney that something was "not fair" he said, "What make's you think the system is fair?" As a trained cognitive-behavior psychotherapist, it would have been better of me to have known that.” [emphasis added]

“I have to agree with you. As a former custody evaluator AND as a father who got his parental rights constructively terminated (4 hours with my daughter twice a month, 3000 miles away) because the judge didn't like me, I speak from experience.

I think the real problem is that family law judges, at least in California, have far too much discretion. They can basically do nearly anything they like, and very few people have the money to file and pursue an appeal. Removing much of that discretion would serve to control the bias to some extent.

There is no way you are going to find unbiased judges or teach judges to be unbiased.

I stopped doing custody evaluations when I realized that the judges didn't care one bit what my opinion was, and no matter what it was, it always made one of the parties VERY angry.

Mental Health custody evaluators are at extremely high risk for malpractice lawsuits, medical board complaints, and bodily injury.

I can make money in many other less risky ways.” [emphasis added]

A therapist made the following remark: “I know for fact that here in NM the corruption is so wide spread that even when the judge is related to someone appearing before them, the judge does not recuse him or herself in order to provide an unbiased judgement. After all, they are just lawyers. What do they know? We have really screwed up as a culture to allow a specific segment of professionals think that they are the Solomon of our society. Not only are judges not accountable for their bone head decisions but the poser that they feel is incredibly ludicrous. We have to change this system quickly.” [emphasis added]

A psychotherapist commented as follows: “Of course judges cannot be unbiased. They are human beings and lawyers who are biased by training and practice. they may be able to assist in deciphering information to degree that decisions might be fair, but let's be realistic.” [emphasis added]

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]

A family law consultant commented as follows: “All human beings are born with bias and we often do not recognize it even when it is obvious to others around us.” [emphasis added]

Those family law attorneys were very forthright about the problem with judicial bias in the family law courts made the following comments:

“Makes a lot of sense to me.” [emphasis added]

“Even when the trial lawyer has done a good exposition of the case, there are judges that are so traumatized with their own issues, they cannot be unbiased. Some judges are so clearly biased that you can basically read their minds and know the outcome before it is rendered.” [emphasis added]

“[T]here are those [judges] who think they already know what 'these people' [the parties testifying] are really like, so they don't bother with listening to them." [emphasis added]

“Judges are biased. Custody evaluators are biased. Lawyers are biased. Teachers are biased. Friends and family certainly are biased. And the parents themselves are biased. While they know their children best, in the emotional turmoil of a divorce, it is difficult for many to separate their own needs and desires from what is the best thing from the children's perspective (which is often to have the parents deal with their marital issues and stay together).

There is previous little empirical evidence telling us what parenting plans will work for any given family. There are simply too many variables. About the only robust research findings there are suggest that kids don't do well when their parents remain bitterly conflicted, and that kids do best when their parents are mature, loving, consistent presences in their lives. But that says nothing about what parenting time should look like. I do believe that a lot of the 50-50 custody time share orders are an easy cop out done more to be "fair" to the parents.

I am a custody lawyer who does NOT try to get custody evaluators who are biased in favor of my adult clients. I am clear to my clients that I will refer them only to people who are trying to figure out what plan will best serve the child, maximizing each parent's strengths and minimizing their weaknesses as they look for the best fit with these children's specific needs.

Custody decisions will always be more art than science, and given the unique circumstances of every family, no legislation or protocol or standardized test will ever be able to arrive at the optimal parenting plan. So we are left with a bunch of flawed adults making decisions about kids' lives. The best we all can do is to try to keep the entire process (whether in litigation, mediation, evaluation, or collaborative process) as child-oriented as possible and to return as often as we can to objective criteria. If the parents can do that themselves, terrific. If they can't we can just do the best we can. But awareness of our own biases is an important first step.” [emphasis added]

“While we may see it (personal bias) most in family law cases, the same is true about every area of the law. People need to remember that people are people and the fact that he or she is a judge doesn't change that. Stressing the "pot luck" nature of going to court is important as soon as possible to have would be litigants get a reality check, IMHO..." [emphasis added]

“The bias of judicial officers certainly extends to attorneys in their courtroom. Early in my career, I was arguing a motion in Ventura. The opposing counsel had done something really unethical, which would prejudice our client. I filed a motion explaining the situation in detail; opposing counsel filed a reply with a one-line declaration denying all. At the hearing, the judge denied my motion, saying, "I've known Mr. X for many years, and simply don't believe he would do that." He wouldn't be dissuaded, and thereafter became the presiding judge. In LASC Central, an otherwise well-respected judge often took an immediate dislike to a client, and his rulings reflected it. In each case, complaints would have been meaningless, given the stature of the judges.” [emphasis added]

“Here in New Jersey family Judges frequently have no family law experience whatever. It is rare to get a judge who actually practiced family law before being appointed to the bench. There is an attitude among legislators and judicial administrators that any fool can be a family judge. That coupled with the biases that new judges bring from their personal lives frequently reeks havoc with client's lives.... I don't have any great answers, but the system is a disaster. I'm equally cynical about guidelines. It is a tribute to the lack of fairness in the system, that we have to use a chart to restrain the bad, biased often irrational decisions you would otherwise get. I wonder if you lessened the discretion that the family judge has if you might get a better quality of decision in general.” [emphasis added]

“These are great points by everyone. Mark, thank you for posting this. You're right. We've all seen the judges and lawyers where you just groan knowing you have to deal with this person. First, my bias, I have a close friend who is a judge in Germany and I know how hard she works and how much she believes in justice, understands its history, and wants to do her best. And she has a really tough job. My personal opinion is that the judicial system is like any other. It's a system that depends on people to make it work. That includes the judges and the lawyers and the higher the quality of both, the better it is for everyone. With that being said, the quality of both run the gamut. I don't know that there's anyone who doesn't have preconceived notions of the judicial system, lawyers or people in general (some are just more aware of it than others). As an example, a judge could be raised a certain way or have a childhood experience that colors their view of certain kinds of people (eg., blondes). This is my example because it's relatively tame. They see a scenario unfold in a courtroom, we'll assume here well prepared, and their preconceived notions still affect their decisions in ways they don't understand. I hope that this isn't too wordy and clear to everyone. My point is, even the best judges and lawyers can really only do their best. My personal opinion is that's a good start.” [emphasis added]

Other family law attorneys acknowledge judicial bias, but tried to minimize the problem by commenting as follows:

“I recall a talk that District Judge Willers of the now defunct Hitchin County Court once gave to the Hertfordshire Family Law Association some years ago. She told the audience that what went on in her private life inevitably impacted on and informed her judgments. Although she managed in the vast majority of cases to reach her judgment based on the facts before her, the fact is that occasionally her own life experiences impacted on the judgments she handed down.

That said, surely the job of an effective advocate is to overcome these biases, to enable the tribunal to refocus or reframe their preception and opinion of the case.

As has already been said, mediation and the collaborative process put the parties in the driving seat and hopefully give them the resources to arrive at arrangements for them and their children that work best for their family.” [emphasis added]

“Everyone has their own prejudices based upon background and life experiences. Judges are no different, although their job is to try and put that aside and deal with what is appropriate in each specific case. A good attorney is aware of this and will find a way to present things to this judge to get an appropriate result for his/her client.” [emphasis added]

“I'm not sure I totally agree, Mark. Yes nearly everyone has been impacted in some way by someone's divorce. I think, though, that the observations gleaned from those situations can sometimes diminish bias that would otherwise exist -IF the judge is able to take a step back and take a broader perspective (not all cases are like what they've seen, there's more here than meets the eye, etc.) Unless we get enough experience or somehow get to know a particular judge, however, we don't know if a particular judge is biased and if so, how.” [emphasis added]

“This discussion is a difficult one. I have been in the domestic relations court since 1992. I have practiced in ten different counties in Ohio during my career. I believe what you are discussing is judicial realism. It is not possible for a judicial officer to shed all of his or her life experiences. However, good judges, and yes Mark I actually have been in front of good judges, are able to acknowledge their personal biases and keep them in check. They actually work with other judicial collegues to discuss wether these personal experiences re interfereing with his or her ability to fairly judge a situation. Additionally, I have practiced in front of inept judicial officers that do not even know they have a personal bias. With all of my interest based training, I find it extremely frustrating to take a family through a traditional litigation, meaning there is never any interest based discussion during the case. It is hard because the outcome is not designed specifically for the facts of the family that is divorcing.” [emphasis added]

“I don't believe that there are ANY people, much less judges, who don't have biases. However, judges pledge to, and I believe in the vast majority of cases, actually do set aside their own personal experiences and biases, and they apply the law to the evidence actually admitted before them. I think problems arise in the perception of the fairness of the judgments because the ACTUAL EVIDENCE is often different from what one party says or thinks were the facts. When we hear about what sound like lop-sided family law judgments, I sincerely believe it is, most often, because we don't hear and see the ACTUAL EVIDENCE presented by BOTH SIDES in court. The parties who are telling what happened are the most biased participants of all!

That said, however, I do agree that in mediation and collaborative divorce, the parties have much more ability to control the outcome; they can take into consideration things that courts cannot; and they can agree to things that courts cannot order (e.g. paying for college expenses - not allowed under Florida law unless the parties agree).” [emphasis added]

“I don't think family law judges are any more biased than judges in other areas of the law. You can't expect family law judges to have a blank mind when they take the bench. Most judges are "hired" (elected) we like to hope, for their experience in family law. Most attorneys I know have represented both petitioners and respondents in family court matters. Additionally, in NY, as far as child support, the award is usually right where it should be, at 17% of income. There is little discretion. The only bias is if a judge has some actual conflict in which case he/she should recuse him/herself.” [emphasis added]

I replied to this last comment as follows:

"In California the judges are not 'hired' (elected) for their experience in family law. In fact, I received an email from a retired judicial officer on just this issue: 'We don't provide enough training for family law judges, and we certainly don't require that training before undertaking a family law judicial assignment. Most judges still don't want to do family law. Most judges have no family law experience, for openers. And a family law assignment is a lot more work than most judicial assignments. A lot more. And many judges aren't comfortable with the different way that emotions play out in family law cases than in, say, civil cases--though my own experience was that civil litigants and their lawyers were often just as angry as family law litigants....'

It is true that we can find judicial officers who do know family law and who care about families. However, that does not eliminate the "bias" issue.

I would like to give you an example of what I mean by judicial 'bias.' In California, the DissoMaster program is designed in such a way that it determines "guideline" child support. Assuming that everyone who uses DissoMaster imputes that same data in the same categories of the program, we will all come up with the identical "guideline" child support. The big assumption is that we are all imputing the same data and in the same categories of the program. In other words, as with any other program, DissoMaster is only as good as the end user -- it is all relative.

Let's discuss the discretion the judges have in California. For example, the Court has the discretion not to apply the guideline child support calculation if the parent paying the support is an extraordinarily high income earner. However, what constitutes an extraordinarily high income earner varies significantly from courtroom to courtroom. When I researched this issue for a case many years ago, I found that the definition varied from a starting annual income of $500,000.00 to $1,500,000.00 (AT THE SAME COURTHOUSE IN LOS ANGELES). Thus, the same exact person will obtain a very different result, depending upon which judicial officer were to hear such a case. Another example has to do with imputation of income. Judges have a great deal of discretion in this regard - at least in California. Here, the only time a judge would not have significant discretion is when both parties work full-time as W-2 income earners and not for a business that is owned by the party or their family. Furthermore, the parties would have to both have approximately the same amount of investment income, otherwise the judge's discretion might impact someone differently from courtroom to courtroom. Another factor here is the manner in which the timeshare is calculated. The judges can compute timeshare in many different ways. Since guideline child support is based in part on the timeshare, the judges can alter that figure for their particular "bias" by merely playing with the percentage timeshare (how they calculate that percentage)." [emphasis added]

Some non-family law attorneys also participated in the discussion and made the following comments:

“The fact that judges, like all human beings, have opinions makes it improbable that they wouldn't have biases. The difference between a great judge and one who is not so great is that the great judge doesn't act on his or her personal biases - either for or against a particular client or for or against a particular attorney...." [emphasis added]

“I think this argument proves too much. Every judge is, over time, likely to be in an automobile accident or have a family member involved in one. Therefore, it's a bad idea to have judges decide auto accident cases? I don't believe that this bias occurs any more in family law cases than in any other. Certainly, as an advocate we want to get an expert who is likely to do well for our client. I do think there's some advantage in family law court to have neutral experts appointed by the court. Obviously, collaborative law with neutral experts presents the same advantages as court-appointed neutrals…. Clearly, a process that gives the parties more control, and somewhat unpredictable and hard to understand judicial officers less control, is better in the long run for the parties involved. We both agree on that point.” [emphasis added]

“While I agree with what you are saying Mark, the same is true of civil litigation, estate litigation, elder law issues, etc.. It's hard to imaging a judge who has not bought a house and not had some issues (real property lit), or has an elderly parent or spouse whose been unfairly or mis-treated, or has been through some form of estate planning himself or been on the receiving end of some type of benefit from a will or trust.

For the most part, I feel that the trials I've been through that the judges have for the most part been able to set their biases down. On the other hand, there have been one or two where I definitely think they didn't either. That's one of the many things that makes all of us valuable to our clients (I hope) ;)” [emphasis added]

In response to the comparison between family law and other areas of law, I commented as follows: "I respectfully disagree with your comparison of family law and other fields of law. In other areas of practice, there are issues of liability -- causation and physical damage, etc.. Family law is no-fault in every state at this point. Therefore, the fact that the "bias" of the judicial officer impacts the results is completely different." [emphasis added]

The reality as I see it is that good lawyering in Family Law (at least in California) is not what people think. For obvious reasons, the results in court are very much determined by the "experts" used in the case. Great effort is spent by lawyers in trying to find an "expert" who will be biased in his/her client's favor. That "expert" might be a child custody evaluator, an "appraiser" (who is nothing less than a "gun for hire" - retained on the condition that they do anything necessary to make the value as high or as low as possible - depending upon the needs of the situation), or any other "expert" required in the case. If you happen to have the case before a judicial officer who is "biased" in your client's favor, the outcome is almost certain before going to trial. It would take an inept attorney to botch up such a "well prepared" case. In other words, the most effective family law litigators are those who are best able to take advantage of the inherent flaws in the system for the benefit of their clients. Anywhere outside of the legal arena, people who do what these lawyers do would be considered con artists.

People have the right to opt to resolve their family law matter through mediation or collaborative divorce. If they cannot agree to what is considered "alternative dispute resolution" in the United States, then I am afraid they get the default - which is the litigation (court) system. If the "general public" wants to continue subjecting themselves and their families to the litigation (court) process, then I say "buyer beware."

What Triggers Violence in Custody Battles in the United States?

Pasadena Family Law Attorney — Mon, 24 Oct 2011 05:32:00 GMT

"While violence arising from custody battles in the United States has been a constant presence, the American Bar Association (ABA) Commission on Domestic Violence has long recognized the potential for escalation in such disputes." In fact, "studies show that 25-50% of disputed custody cases involve domestic violence."

Three of the most recent incidents involving shooting deaths related to custody battles in the United States occurred in the ten (10) days between October 12, 2011 and October 21, 2011.

On October 21, 2011, "a mother in suburban Dallas fatally shot her 7-year-old son and then killed herself... as police waited outside with her estranged husband, who was there to pick up the child after receiving court-ordered custody.... The father had been given sole custody of the boy after an acrimonious and drawn-out divorce."

A week before his divorce trial was to begin, on October 18, 2011, "Samuel Friedlander, by appearances a successful lawyer [in Westchester, New York]... killed his wife and children before shooting himself.... As the trial grew closer, acquaintances told investigators, Mr. Friedlander's behavior became erratic.... Michael Borg, 47, who went to law school with Mr. Friedlander, said his friend had complained that his wife was controlling and emotionally abusive. 'He was depressed,' Mr. Borg said. 'He was beaten, and his big fear was that she was going to take the kids away.'"

On October 12, 2011, a shooting left nine people dead in Seal Beach, California. A "bitter father [Dekraai] [was] charged with gunning down his ex-wife [Fournier] and eight others at a beauty salon" in Seal Beach, California. Although the marriage ended in December 2006 when they separated, they were involved in an ongoing bitter custody battle over their son. The day before the shooting, a court hearing had taken place wherein Dekraai had refused to accept a court-ordered report "which recommended a near-equal custody arrangement for the couple's 8-year-old son." Dekraai had sought full custody of his son and insisted on a trial, which was set for December. Fournier's attorney described the October 11, 2011 hearing as "'benign', merely a scheduling meeting." "Police say, a bitter custody battle over his 8-year-old son triggered his spasm of violence." In addition to those killed, the shooting "shattered the lives of many others and impacted the sense of security enjoyed by many of the 24,000 residents of the Orange County, California community...." Dekraai had previously been diagnosed as bipolar and suffered from post-traumatic stress disorder.

What is 'benign' about an additional two month delay in a determination in a bitter custody battle? Nothing is not nothing! How can lawyers and judicial officers who work in the field of family law not realize that "the waiting game" itself is stressful? Continuances and delays are not "benign."

Whenever one such incident occurs, people seem to question what might have triggered such violence. For example, people seem to think that Dekraai went on a shooting rampage in Seal Beach as a result of his bipolar disorder and the fact that he suffered from post-traumatic stress disorder. In fact, the "D.A. expects an insanity defense in the Seal Beach shootings case."

I dare say that sometimes the right answer is the most obvious answer. That answer is the family law system in the United States. Emotions play an integral role in family law proceedings! As Judge Michele Lowrance, a domestic relations judge in the Circuit Court of Illinois, wrote in her book titled "The Good Karma Divorce", "The court system was not built to house these emotions, and attorneys are not trained to reduce this kind of suffering. Divorcing people expect relief far beyond what the legal realm can provide from their attorneys and the courts, and they often end up feeling like members of a powerless, unprotected class." Moreover, "psychologists note in child custody cases, when a parent doesn't get what he or she wants, they often feel their parenting is being attacked. This can bring on a deep, different kind of rage. And in these cases, parents dueling for custody become so adversarial they forget what's best for the child."

"The stress of a divorce comes second only to the death of a spouse. Moreover, "when it comes to divorce, certain aspects of loss become slightly magnified." In other words, the manner in which people process and manage the stress/loss caused by a divorce is more destructive to themselves and others because they are able to act out against the other person who was involved in that relationship."

It is fascinating that when more civilized, enlightened and less barbaric countries [Australia, England, Wales, and Ontario, Canada] are plagued with the same problems with their family law systems, they embrace mediation and other forms of consentual dispute resolution because they address most, if not all, of the problems with litigation and courts in family law situations. In those countries, litigation and courts are now referred to as Alternative Dispute Resolution and mediation and other forms of consentual dispute resolution have become the Primary Dispute Resolution or Family Dispute Resolution. Yet, in the United States, litigation and courts are the still the "first choice for the resolution of family law disputes." Mediation, Collaborative Divorce and the like are referred to as "alternative dispute resolution (ADR) or more recently as "consentual dispute resolution" (CDR). The name change may more accurately reflect the manner in which the disputes are resolved, but it does not change the fact that it is still not the "first choice for the resolution of family law disputes."

On July 20, 2011, The Los Angeles Times reported that "Californians will soon face longer lines in courthouses, delays in finalizing divorces, prolonged custody battles and extended waits for lawsuits to go to trial as a result of deep budget cuts approved by state lawmakers." In response, lawyers who are members of the family law section of the Los Angeles Bar Association began commenting with each other on the family law listserve. One attorney pointed out that the "Code of ethics requires attorneys to advise their clients of ADR." Another attorney stated, "Mediation sounds so fair, so reasonable. But in my experience, it works if there are three factors present: (1) Both parties know what assets and obligations they have ( read: nobody is playing hide-the-ball); (2) Both parties have a good understanding of what they're entitled to (read: they have realistic expectations); (3) Both parties can effectively advocate their own interests; (read: no threats or bullying that silences one of the participants); Honestly, how many of our clients meet that description? And it helps if the cost is shared so that the mediator does not become an advocate for the person paying." In response, another attorney stated, "There is a fourth factor to a mediation to wit, both parties must desire the divorce to the same extent, otherwise, the victim spouse will sabotage the settlement process." Another then commented that, "If both parties had the ability to recognize and understand these issues then there would probably not be the need for mediation." Finally, an attorney expressed that "if the parties had the good sense to understand the issues not only would they not need mediation, they might not even need a divorce." I then asked, "Why is it that mediation and collaborative divorce is very successful in other countries and in some states in the U.S., but the family law litigation community here seems to have a completely different impression? Is it that people in Los Angeles somehow differ from people everywhere else or might there be other explanations?" Nobody even acknowledged my questions.

While I was disappointed to read these remarks from fellow family law attorneys, I was unfortunately not surprised. Shortly before these family law attorneys shared their views of mediation, collaborative divorce and other forms of consentual dispute resolution (CDR), I had the pleasure of hearing Tobias Desjardins speak at a meeting for the Collaborative Divorce Professionals Of The Inland Empire. Tobias is the Director & Founder at International Center for Peaceful Shared Custody, a Director at Prevention Network, Therapist, Mediator and Author. During his talk, he mentioned that families are frequently referred to him by judicial officers when a child becomes suicidal as a result of their parents protracted custody battle. He told us that by the time he sees these families, both parents have worked with several different attorneys and that they have consistently told him that the first time they learned about mediation or collaborative divorce was through him. This reality is not only indicative of unethical conduct by family law attorneys, but it is just plain tragic.

The Eggshell Skull Rule is a "doctrine of American tort and personal injury law that a tort-feasor or wrongdoer takes his victim as he finds him. This means a tort victim's compensation or damages are not discounted because of any pre-existing vulnerability."

Everyone going through a divorce and/or a custody battle suffers from a great deal of stress and is therefore not thinking clearly. We know that the family law system in the United States is emotionally destructive. Yet, "the legal system is resistant to change even when we know that there are cheaper, simpler and less stressful alternatives. It is easier to stay in the adversary system 'rut' than to pave a new modern road. Some lawyers will undoubtedly object since they will earn less than they do now from contested divorces. Unfortunately, one of the main sources for resistance to legal reform comes from lawyers with a vested interest in a complicated system that forces litigants to need their navigational and advocacy skills. That is not a sound reason. The legal system exists for the benefit of the public and not for the financial benefit of a few lawyers who make money from the marital conflicts of the litigants." It seems to me that those responsible for the family law system's resistance to change are ultimately responsible for the injuries and deaths that occur as a result of the violence that arises from custody battles in the United States. After all, isn't everyone going through a divorce or custody battle suffering from "temporary insanity", especially when current system does nothing but exacerbate the emotions involved?

Things to Consider in Order to Select an Attorney Who is a Problem Solver and Not a Conflict Creator

Pasadena Family Law Attorney — Sun, 11 Sep 2011 09:40:00 GMT

Problem-solving is a hallmark of a good lawyer. It involves a creative attempt to discover a result that may be outside the specific provisions of law, ruling, or statute, but that will represent the best reasonable outcome for all of the parties involved. Since law schools, historically, have not taught problem-solving skills, the American Bar Association (ABA) advises lawyers-to-be that they must enter law school with a reasonably well developed set of analytic and problem-solving abilities, in order to become a competent lawyer.

However, unlike medical schools, law schools do not require that incoming students major in any given field of study. Furthermore, very few college majors are of the problem-solving variety, also known as quantitative fields. The following are examples of such college majors: mathematics, physics, economics, engineering, business administration, biology, chemistry and computer science. One need not develop skills in problem-solving in order to successfully complete a course of study in majors such as English, political science, sociology or history, which are thought of as representing primarily verbal fields.

The ten most popular majors for pre-law students are as follows: (1) Political Science; (2) Business; (3) International Relations; (4) English; (5) Psychology; (6) Communications; (7) History; (8) Music; (9) Sociology; and (10) Economics. I want to point out that the only qualitative majors from that list are Business and Economics. It is also important to note that "college students who are contemplating the field of patent law as a career choice should major in engineering, physics or the natural sciences (such as chemistry and biochemistry). In order to eventually practice in this field, an aptitude and liking for science and technology is an absolute must." Thus, lawyers with undergraduate degrees in those areas often practice patent law and are therefore not practicing in other areas of law.

This then raises the question: "Why do law schools assume that their incoming students have a reasonably well developed set of analytic and problem-solving abilities?" If the law schools do not teach such skills because they assume the students have developed those skills before entering law school and if the law schools do not require incoming students to have graduated from college with a problem-solving type of major, how do the students acquire the skills that are needed to become good lawyers? According to the ABA, if the law students did not learn such skills while in college, they may have developed those attributes through extra-curricular and life experiences.

I contend that problem-solving has become a lost art in the practice of law. I don't mean to imply that all lawyers are lacking in such skills. Unfortunately, since it is not mandated that anyone learn problem-solving skills to receive a law degree, most lawyers do not learn such skills. By teaching lawyers to identify problems, but not training them to solve problems, the practice of law has shifted from resolving conflict between parties to creating it. This is particularly detrimental in cases dealing with children and families as heightening conflict causes wounds that often last a lifetime.

It is therefore incumbent upon the client to carefully interview an attorney before making a hiring decision. Although nothing in life is certain, we can all exercise due diligence in an effort to make reliable intelligent choices when it comes to selecting a lawyer. There are certainly many factors that must be considered before making such an important decision, but let's focus on the problem-solving component, since that is so important.

The easiest and probably most accurate way of making such a determination is by asking the lawyer about his/her undergraduate field of study. If the attorney obtained a degree in a problem-solving/quantitative field, the client can be comfortable that the attorney's skills in that regard are well developed, unless those abilities faded over time from lack of use.

If the attorney's undergraduate degree was not of that variety, the client would need to inquire about the lawyer's extra-curricular or life experiences in an effort to learn whether the ability to problem-solve was acquired through some other means. People learn problem-solving through extra-curricular activities in the arts because one must think creatively to successfully perform music, or act in a play. Some sports can also teach problem-solving skills. The activities that encourage natural curiosity and interest tend to produce the best results. Therefore, a client might ask the attorney whether they ever played in a band or orchestra, performed in a play, or played quarterback on any football team. I want to make clear that not everyone who plays a musical instrument or acts has developed quantitative reasoning skills. However, a musician who regularly performs live with a band or orchestra must have developed those skills because problems or mistakes will occur during or in preparation of the performance and the musicians must be able to problem solve in order to resolve and/or mask those problems/mistakes. The same is true for actors who perform in the theater.

Since quantitative reasoning skills are so essential to the competency of an attorney and since so many entering law students lack such skills, "some law schools are throwing out decades of tradition by replacing textbook courses with classes that teach more practical skills." While this is certainly a step in the right direction, it is insufficient if the intention is for the graduates to have a well developed set of such skills. If law schools really want to train competent lawyers, they must limit admittance to those students whose undergraduate degrees are in a quantitative field of study.

Many attorneys obtain outside problem-solving training through mediation programs, or through other means. However, please note that mediation is unregulated in most places, including California. Thus, a person can practice as a "mediator" without ever having received any formal training. Therefore, a client should inquire as to the mediation training the attorney received. Basic mediation training is a 40-hour course. Is it realistic to assume that a person who graduated from law school without a well developed set of problem solving skills will acquire them through basic mediation training? They may acquire some such skills, but never to the extent of those who developed those skills in order to obtain their undergraduate degree.

Thus, if a client wants to find a problem-solving attorney, he/she should attempt to learn how the attorney developed problem-solving skills without asking that question directly. If the lawyer realizes that a client is trying to find a solutions-oriented attorney, they can always formulate an answer they think would satisfy the client. Obviously, the client could ask the attorney to give an example of a case which they resolved through creative problem solving. Again, the lawyer may respond by telling the client about a situation that did not even involve them and make it their own because they want to be retained. Before retaining an attorney, the consumer would be wise to do some independent research on the particular attorney and to request references and/or testimonial letters from former clients.

In my twenty years of practicing law, I have found that clients focus on the wrong things when interviewing an attorney. They often want to know about the law on a particular issue. Bear in mind that any attorney who practices law in that particular field should be able to answer that question. Therefore, it is not a question that should be asked when interviewing an attorney; rather, it is the type of thing a client should ask after retaining the attorney. Clients also tend to get into the specifics of their case because they want they attorney to tell them the most likely outcome. What the clients need to realize is that cases either resolve through the consentual agreement of the parties involved or because a judicial officer decided the matter. We cannot possibly know whether or not the parties will ultimately reach an agreement or the terms of any such agreement. By the same token, we lose control over the outcome when we allow the matter to be decided by a judicial officer. Judges or juries are responsible for deciding factual issues and then judges are expected to properly apply the law. At a great expense, a person can successfully appeal a judical ruling if he/she is able to establish that the judicial officer failed to apply the law properly. However, judges are given a great deal of discretion and "factual findings are not reversable by the appellate court." Unless the facts are undisputed and the law is very clear on the issue, how likely is it that an attorney can accurrately assess the outcome of a case? Research shows that lawyers are "overconfident in their predictions, and calibration did not increase with years of legal experience."

"It is a mistake to ignore the fact that judges attended the exact same law schools as those lawyers who argue before them, and are therefore in the same deficient situation when it comes to problem-solving skills."

It should also be noted that "countless politicians have pursued law degrees prior to starting their career in politics." The fact that our government is broken is old news. The ability to solve difficult problems "requires a spirit of compromise and bipartisanship." Unfortunately, what would our politicians know of problem-solving, when they received no such training. Rather, they were trained to create more problems.

The failure of law schools to limit admissions to those students who obtained degrees in quantitative reasoning fields is negatively impacting every aspect of our society. In order to reverse this trend, law schools must change their admission policies.

Why Law Schools Are Producing Badly Trained Lawyers

Pasadena Family Law Attorney — Sun, 17 Jul 2011 16:21:00 GMT

My last Blog, titled "The Misconception that Collaborative Attorneys Fail to Protect Their Clients" was edited for publication in the July/August 2011 edition "Analyze This", the San Gabriel Valley Psychological Assocatiation's Newsletter. On the day that the newletter was delivered to my office through the mail I received an email from Manny Burgess, Ph.D, that stated in pertinent part as follows: "Just wanted to say that your article in Analyze This was an important idea to write about. You did a good job. Thanks." When I mentioned this to Suzanne Lake, Psy.D., the editor of the newsletter, she stated, "This is terrific. The general rule is, when one person writes about it, a much greater number THOUGHT about it! I knew it! I suggest you expand more on this topic!"

Thus, I decided that my next Blog would explain why the problem solving skills used by collaboratively trained attorneys are not utilized by attorneys who have not received such training.

When I took the LSAT in 1986, for admission to law school, part of the test involved problem solving. Such a section is still part of the Bar examination and had been part of the examination long before I took the test. "This section is included in LSAT test structure because problem solving is basic to the legal profession."

Once in law school, we are taught to separate emotions from the issues, the law, and to analyze whether or not a particular case or statute applies to a specific set of circumstances. Unfortunately, we are not taught to problem solve. In fact, on May 5, 2010, Larry Kramer, The Dean of Stanford Law School stated, "If you think of traditional legal education as teaching people how to spot problems, how to identify what the problems are, what we never did anything about was teaching them how to solve the problems." (emphasis added) In fact, the American Bar Association suggests the following in preparing for law school: "There are important skills and values, and significant bodies of knowledge that you can acquire prior to law school and that will provide a sound foundation for a legal education. These include analytic and problem-solving skills , critical reading abilities, writing skills, oral communication and listening abilities, general research skills, task organization and management skills, and the values of serving faithfully the interests of others while also promoting justice. If you wish to prepare adequately for a legal education, and for a career in law or for other professional service that involves the use of lawyering skills, you should seek educational, extra-curricular and life experiences that will assist you in developing those attributes." Since those skills are not taught in law school, the American Bar Association states: "Your law school experience will develop and refine those crucial skills, but you must enter law school with a reasonably well developed set of analytic and problem solving abilities." (emphasis added)

"Problem solving negotiation means that the parties can do better than they might otherwise do, especially if they are employing AN UNNECESSARILY UNPRODUCTIVE ADVERSARIAL APPROACH." (emphasis added) The "culture of adversarilism" too often leads to behaviors "with an emphasis on argument, debate, threats, hidden information, deception, lies, persuasion, declarations, and toughness. These behaviors, in turn, often escalate and lead to the most common results of adversarial bargaining -- stalemate or mindless mid-point compromise. Even a 'win' will be a loss if the other side is so beaten down or regretful that it will resist complying with a negotiated agreement.... Effective legal problem solvers must learn to think differently before they can learn to act differently. This is the science and art of negotiation."

IN THE PRACTICE OF LAW (THE LITIGATION SYSTEM), PROBLEM SOLVING HAS BECOME A LOST ART. RATHER, LAWYERS PRACTICE WHAT THEY LEARNED IN LAW SCHOOL, WHICH DOES NOT INCLUDE PROBLEM SOLVING. BY TEACHING LAWYERS TO IDENTIFY PROBLEMS AND NOT TRAINING THEM TO SOLVE THE PROBLEMS, THE PRACTICE OF LAW HAS SHIFTED FROM RESOLVING CONFLICT TO CREATING IT.

In fact, as Larry Kramer said, "good lawyers" "solve problems." The Dean of Stanford Law School's statement that law students be taught to "solve the problems" is considered "revolutionary" because he calls it "Stanford's Law School Revolution." Stanford is not the only law school that has begun teaching students "practical skills that lawyers will need." As mentioned in an article from the July 11, 2011 edition of the Wall Street Journal titled "Law Schools Get Practical", "some law schools are throwing out decades of tradition by replacing textbook courses with classes that teach more practical skills. For example Northwestern Law School now offers a program for first-year and LLM students called "Lawyer as Problem Solver."

The good news is that lawyers who opted to to be trained in mediation and collaborative law were taught such skills. However, please note that mediation is unregulated in most places, including California. Thus, a person can practice mediation even though they never even received any formal training. Yet, collaborative law organizations typically have requirements for membership, which tend to include training in "collaborative divorce, mediation, and conflict resolution." Thus, when selecting professionals from such organizations, a person can be assured that the members have received at least the minimum level of training required for membership.

"A good problem solver 'collaborates' or 'coordinates' with the other side -- testing information he or she already has in order to find out what the parties need and want, learning whether the other side can be trusted to collaborate, and then exercising the creativity that is so seldom taught and learned in lawyering."

The Misconception that Collaborative Attorneys Fail to Protect Their Clients

Pasadena Family Law Attorney — Wed, 25 May 2011 23:11:00 GMT

I attended the Sixth Annual Statewide Conference for Collaborative Practice California in San Diego from April 29 - May 1, 2011. The Conference was held at a terrific venue, the speakers were amazing and I met other collaborative divorce professionals. On the last day of the Conference, I met a psychologist who was not a collaborative divorce professional, but who attended the event out of curiosity and because her closest friend is a collaborative law practitioner. During a table discussion, she commented that while Collaborative Divorce and other forms of consentual dispute resolution seem like terrific options to a litigated divorce, she refers her patients to hard core litigators because she wants to make sure that their "rights are protected." She felt that the only way for a person going through a divorce to be protected is with the assistance of a " pit bull attorney."

I was troubled by this belief because a similar comment was made by fellow collaborative law practitioners at the last meeting I attended for the Consentual Dispute Resolution Standing Committee of the State Bar-Family Law Section (Southern California), an organization that drafts and reviews proposed legislation as it pertains to Family Law. The comment made at that meeting was that mental health professionals tend to refer their patients to "pit bull attorneys."

My only explanation is that people, like the psychologist I met at the Conference, believe that only a hard core litigator can "protect their rights." In order to reach this conclusion, people are making the erroneous assumption that collaborative attorneys are somehow "weak" or "afraid to litigate" in court or otherwise "advocate" for their client. I certainly cannot speak on behalf of all collaborative attorneys. However, I know a number of very aggressive litigators who happen to also be collaborative law practitioners. Moreover, just yesterday, I had a consultation with someone who was referred to me by an attorney I litigated against several years ago and who told him that I had been a very formidable opponent. She was unable to assist him in defending against a domestic violence restraining order because she was unavailable on the date of the hearing and the client did not want a continuance on the matter.

On my website are testimonial letters from former clients that demonstrate my comfort and skill in court. In one such letter, the client states, " I would highly recommend Mark Baer to anyone in need of an attorney. Mark is extremely knowledgeable in the field of family law and knows how to deal with complex issues which can arise in a court setting. In the courtroom, Mark seems very comfortable and is well respected by his peers. Mark is very meticulous and detail oriented and completes all paperwork completely and accurately leaving little room for disputes from other attorneys.... Thanks to Mark Baer, my case turned out positive for me. I would never use another attorney and have recommended Mark to my friends at work (L.A. County Sheriff Dept.) who were in need of a family law attorney. I have received positive feedback from my friends who used Mark and they would also recommend him."

Another client I represented in a heavily litigated divorce gave me a testimonial letter in which she stated, "Amazingly, in less than a year, Mr. Baer has dramatically moved this case along and improved my position immensely. Before Mr. Baer took on this case, it seemed to be a never ending saga, causing me headaches and heartaches, not to mention, money. Obviously, Mark Baer's professional demeanor highlights his persona and character. He is not only very skillful in the way in which he practices family law, but he clearly cares about his clients.... I am convinced that my case would be one of the 'normal' divorce cases if I had seen Mark Baer at the very beginning." These are testimonials from only two of my former clients and do not show me as being "weak", "afraid to litigate", or "unskillful in court."

My experiences are not unique. In fact, in April of 2010, I was involved in a discussion on LinkedIn entitled, "Is Collaborative Divorce more cost efficient and is it providing more dignity for the divorcing couple?" Rhonda Rosenthal, a family law attorney in Chicago, stated the following: "As to Mr. Baer's comment about the difficulty of two litigation attorneys resolving the matter economically and in a dignified fashion, I would agree it is not usual, but it does happen. One of the best litigators I know is also a collab attorney. Different skills for different needs." For those interested in viewing the entire discussion, it can be found in the LinkedIn Group called, "American Divorce Lawyers."

An example of the difference in the way in which a collaboratively trained attorney and a litigator never trained in mediation might handle a situation is exemplified in the actual situations described below.

I recently handled a case wherein I learned from my client that the father owns a gun, which he leaves unloaded in an unlocked location in his home. I was also informed that he keeps the ammunition for the gun in a different unsecured location. My client informed me that she had repeatedly requested that her husband place these items in a secured location that cannot be accessed by their minor child and that he repeatedly refused to do so because he found nothing wrong with the manner in which he stored these items. I told my client that children are very good at putting puzzles together and that if their child happened to find the gun and the ammunition, that it would not be difficult for the child to figure out how to load the gun. Obviously, if that were to occur, the potential consequences could be dire and irreversible. I explained to her that unless we could get her husband to recognize the potential danger involved and to store the gun in a secured location, we needed to file a motion with the court requesting that his visitation with the child be monitored. This would result in his visitation being significantly restricted and he could not have overnight visitation.

Using my mediation training (problem solving skills), I suggested that my client try and get her husband to go to a joint session with a mental health care professional wherein they could discuss several issues, including the manner in which the gun is stored. In California, neither parents nor attorneys are mandated reporters of child abuse and neglect. However, mental health care professionals are mandated reporters of such issues. I explained that if we sought monitored visitation, it would damage the father/child relationship, which in turn would impact her relationship with both her husband and the child. Furthermore, I advised her that it was unlikely that her husband would accept monitored visitation without a fight and that it would be a very costly proposition. Also, if the report to the authorities were made by the mental health professional and not by herself or her attorney, her husband would be less likely to hold her accountable for the ultimate consequences. Moreover, the mental health care professional would likely get her husband to recognize the danger and alter his behavior, which would be the best possible result.

Rather than her incurring substantial legal fees and costs to obtain a less than optimal resolution, my client was able to get her husband to agree to go to a session with the mental health professional and the problem was resolved. My client got the best possible outcome at the lowest possible cost. Few, if any, other family law attorneys would have considered such an option. I dare say that the way in which I chose to resolve the problem protected my client, the child and her husband better than any other possible alternative. Is "problem solving" rather than "fighting" a sign of "weakness" or "inability to protect" the client?

In another recent case, the couple had a son (age 10) and a daughter (age 8). The family residence was located in a city which is reputed for having an excellent public school system. The parties agreed that the wife would have primary physical custody of the children and she wanted the family residence in the divorce. My client, the husband, was insistent that the house be sold. He told me that it was too big for his wife and their two children.

When I asked him if the children attended public or private school, he told me that they moved to that city because of the school district and that the children were in public school. I then mentioned that if he were successful in forcing the sale of the house, that it was possible that his wife would move to a different city. I then asked whether the children would attend public or private school if she moved to a city with a less well-regarded school district. He replied that he wanted the children to continue attending school in the same school district. I then suggested that he determine what it would cost his wife to rent a 3 bedroom house or apartment in that city and compare it to the after-tax cost of her continuing to live in the family residence. The reason I wanted him to look at 3 bedroom places was because of the age of the children and the fact that they were of different genders.

A couple of weeks later, my client advised me that if his wife could afford to keep the house in the divorce, she could have it. Of course, he will receive something of equal value in the divorce. I realize that I never argued over this issue with his wife's attorney or through the court system. Does the manner in which I handled this situation indicate that I am "weak", "afraid to litigate", or "unable to protect my client"? I may be biased, but I think that the manner in which I handled this situation protected my client far more than if I followed his lead and argued over whether or not the house get sold.

On May 19, 2011, I had the pleasure to become acquainted with a young attorney who insisted on taking me to lunch to learn more about Collaborative Divorce. During our conversation, she mentioned to me that before opening her own firm and focusing on divorce mediation, she worked for a law firm that specialized in handling family law matters. She explained that she became disenchanted because the owners of the firm would reprimand her anytime she settled a case "too soon." According to this attorney, "too soon" meant before the firm had an opportunity to bill enough time on the case. In fact, she told me that the clients whose matters she settled have kept in touch with her to this date because they were so pleased with the way in which she handled the matter and the ultimate resolution. After learning this, I told her about a recent discussion I had on LinkedIn, wherein another young attorney mentioned a similar experience.

She was intrigued and I took her back to my office and located that discussion. The comment was made in response to an article I had posted entitled, "Family Law in the United States -- An Uncivilized, Unenlightened and Barbaric System." Michael Apicella, a Family Law attorney and mediator in the San Francisco area said, "In my experience, it's not a "few," but a majority of family law lawyers that are motivated by their fee, rather than a client's and that client's family's best interests. I.e., the lawyer puts their financial interests ahead of their client's interests of resolving the case as time/cost efficiently as possible. Bottom line.. conflict creates revenue. I was told by two prior employers (prominent firms with lawyers that were highly regarded in the community) that I settled cases too quickly. Helping families reach compromise that benefited all but the lawyers was a not good practice, at least according to these prior employers... and many other lawyers I have witnessed over the last decade. This is one of the primary reasons I started my own practice.. so I'm not beholden to some billable hour requirement that is contrary to client's interests." For those interested in viewing the entire discussion, it can be found in the LinkedIn Group called, "California Family Law: Divorce and Child Custody Issues."

I agree that litigation is necessary on occasion. However, people are very mistaken when they believe that the only attorneys able to adequately protect them are "pit bull attorneys." Moreover, this widespread belief has contributed to the breakdown of families, negatively impacted the parties and their children, and has adversely affected society as a whole.

If you have an issue regarding family law, divorce, child custody, child support, spousal support, restraining orders, paternity actions, or domestic partnerships, please contact Pasadena Family Law attorney Mark B. Baer, Esq. at Mark B. Baer, Inc. a Professional Law Corporation.

Family Law in the United States -- An Uncivilized, Unenlightened and Barbaric System

Pasadena Family Law Attorney — Tue, 22 Mar 2011 21:55:00 GMT

In 1996, the Australian government reformed its family law system in an effort to make it "more responsive to families in need, by making it simpler to negotiate appropriate outcomes." It accomplished this by shifting "the focus from litigation as the first choice for the resolution of family law disputes." Since then, mediation has become the "primary dispute resolution (PDR) in family law." The Australian government recognized that " litigation is usually slow, expensive and by its nature, adversarial." The government found that " in family law matters, such behaviour may make it difficult for the child to maintain an ongoing relationship with both parents and for parents to maintain their ongoing responsibilities." " But when people are able to settle matters for themselves, the arrangements they make are far more likely to suit all parties, they will have been reached more quickly and will cost less than if they are determined in Court."

Since its initial reform, the Australian government has continued making improvements to the family law system. Currently, whether the case involves parenting issues, financial issues or both, "each prospective party to a case in the Family Court of Australia is required to make a genuine effort to resolve the dispute before starting a case." Moreover, "unless there are good reasons for not doing so, all parties are expected to have followed these pre‑action procedures before filing an application to start a case" and "there may be serious consequences, including costs penalties, for non‑compliance with these requirements." This process is no longer known as "primary dispute resolution (PDR)", but is now referred to as " family dispute resolution (FDR)." " FDR is the legal term for services (such as mediation) that help couples affected by separation and divorce to sort out family disputes.... You can only apply to a family law court for a parenting order when you have a certificate from an accredited FDR practitioner which states that you have made a genuine effort to resolve your dispute through FDR."

In 2004, the Family Law Court in association with the Federal Magistrates Court published a book entitled, "The Family Law Book" which is about the "realities of the family law system as it works in the Courts in Australia today." According to that book, "the Courts aim to help families resolve their disputes without the need of going to a trial before a judge or federal magistrate. The Courts encourage separated couples to attend mediation before starting court action, and in the case of the Family Court pre-action mediation is a requirement in many situations.... Experience shows that mediation can help when you are having difficulty communicating with your former partner, which is something that often happens around the time of the separation, when many adjustments have to be made to your relationship. Mediation provides professional help that may assist you to come to terms with separation and divorce, including making the best arrangements for your children and the fair distribution of property. It does so by providing an independent third party and a neutral location to discuss and resolve issues that might allow each of you and your children to reorganize your lives."

England and Wales are following Australia's lead and are making similar reforms to their family law system. On February 23, 2011, the British government announced that effective April 6, 2011, "divorcing couples will be referred to mediation [for child custody and/or financial issues] to sort out most disputes before they are allowed to use the courts." Justice Minister Jonathan Djanogly stated, "our proposals aim to radically reform the system and encourage people to take advantage of the most appropriate sources of help, advice or routes to resolution - which will not always involve the expense of lawyers or courts." The Justice Minister said, mediation was "a quicker, cheaper and more amicable alternative" to the over-worked family courts.... "Nearly every time I ask someone if their stressful divorce battle through the courts was worth it, their answer is 'no'.... It gives people the opportunity to take their own futures in their own hands." According to the minister, "programme statistics suggested that more than two-thirds of couples who took up mediation were 'satisfied with the results.'"

"Family law in the United States is a state matter.... Power is decentralized in the United States; and this is more than a matter of structure, it is also a matter of culture. Structure, however, does matter.... The United States is fragmented, decentralized." Many states have a mandatory divorce mediation requirement. However, with few exceptions, the mandatory "mediation" is limited to child custody and visitation matters. California is one such state. The "mediator" will assist the parents in reaching a parenting agreement. However, each county enforces the mandatory "mediation" requirement in its own unique way.

Nevertheless, the “mediator’s” job is to get the parents to reach a custody agreement. These “mediators” use their position to strong-arm parents into entering into such an agreement (without the involvement of legal counsel) and while parents are often extremely vulnerable emotionally. For example, a parent who was denied access to their child by the other parent for a few months before the "mediation" appointment may very well agree to any custody/visitation arrangement that allows them to finally see their child. Once the agreement is reached, the custody/visitation matter is no longer before the Court at the upcoming hearing, unless the agreement is rejected as provided for below.

Some counties have recommending "mediators", who make recommendations regarding child custody and visitation to the court based upon what the "mediator" learns in the course of the "mediation." In accordance with recent legislation, courts have until January 1, 2012 to change the title of such "mediators" to "child custody recommending counselors." The reason for this change is because a recommending "mediator" cannot be a "mediator" because "the Legislature has broadly provided for the confidentiality of things spoken or written in connection with a mediation proceeding.... 'All communications, negotiations, or settlement discussions by and between participants in the course of a mediation . . . shall remain confidential.' We [The California Supreme Court] have repeatedly said that these confidentiality provisions are clear and absolute. Except in rare circumstances, they must be strictly applied and do not permit judicially crafted exceptions or limitations, even where competing public policies may be affected." Nevertheless, recommending counties may still permit recommending "mediators", just called by a different name.

Other counties, such as Los Angeles County, are non-recommending counties. If the couple is unable to reach an agreement during the course of the "mediation", the mediator merely advises the court in writing that the parties were unable to reach an agreement. " Mediation has been used by the Los Angeles Superior Court as a means of resolving child custody disputes since its inception in 1955. If the parties are involved in a child custody dispute, mediation is required. In fact, a court will not make orders related to custody unless the parties have attempted to resolve their custody dispute through mediation. Court employees trained in resolving such disputes work with the parents in an effort to reach a custody agreement. This form of mediation is known as Conciliation Court. Attorneys are not permitted to participate in this process and the "mediators" advise the parties that they have the opportunity to reject any agreement entered into within 10 days or the morning before the Court hearing, whichever first occurs. What the "mediators" and many attorneys fail to explain to the parties is that if they timely reject the Conciliation Court Agreement, the judge will often inquire as to the reasons for the rejection of that agreement. Unless the rejection is based upon a significant incident that occurred since entering into the agreement, many judges will make a custody order that basically reinstates the terms of the original agreement, regardless of the rejection."

In North Carolina, a "statute mandates the courts to establish a 'system of settlement events' for family law matters. North Carolina is the first state to have a comprehensive domestic relations arbitration act, a collaborative divorce statute, and mandatory mediation rules.

The Utah Legislature passed a mandatory divorce mediation statute effective May 1, 2005. The case statistics available to date indicate two thirds full settlements and 12-14% partial settlements for an 80% total. The newer models have been invented, tested, and implemented in other courts. The results so far have been quite positive in several ways. Court caseloads have been reduced, the stress levels of litigants and lawyers have been reduced, the fees for divorce have been significantly reduced, and the satisfaction levels of the parties is higher than for litigation."

In California, the legislature made major changes to the family law system in 2011. In essence, the changes are expected to make litigating family law matters take longer than before, more costly and more adversarial. In fact, at the Pasadena Bar Association's Family Law Section Luncheon on January 26, 2011, Judge Thomas Trent Lewis commented that "as couples watch their $1,000,000.00 estate reduce to $200,000.00 after the cost of litigation people might begin behaving differently." That is assuming that people learn from the mistakes of others, which is inconsistent with the history of mankind. Moreover, each couple that wastes its savings and assets will never recoup that loss.

It is fascinating that when more civilized, enlightened and less barbaric countries are plagued with the same problems with their family law systems, they embrace mediation and other forms of consentual dispute resolution because they address most, if not all, of the problems with litigation and courts in family law situations. In those countries, litigation and courts are now referred to as Alternative Dispute Resolution and mediation and other forms of consentual dispute resolution have become the Primary Dispute Resolution or Family Dispute Resolution. Yet, in the United States, litigation and courts are the still the "first choice for the resolution of family law disputes." Mediation, Collaborative Divorce and the like are referred to as "alternative dispute resolution (ADR) or more recently as "consentual dispute resolution" (CDR). The name change may more accurately reflect the manner in which the disputes are resolved, but it does not change the fact that it is still not the "first choice for the resolution of family law disputes."

"So why aren't we doing mandatory mediation? Simple inertia. The legal system is resistant to change even when we know that there are cheaper, simpler and less stressful alternatives. It is easier to stay in the adversary system 'rut' than to pave a new modern road. Some lawyers will undoubtedly object since they will earn less than they do now from contested divorces. Unfortunately, one of the main sources of resistance to legal reform comes from lawyers with a vested financial interest in a complicated system that forces litigants to need their navigational and advocacy skills. That is not a sound reason. The legal system exists for the benefit of the public and not for the financial benefit of a few lawyers who make money from the martial conflicts of the litigants."

If you have an issue regarding family law, divorce, child custody, child support, spousal support, restraining orders, paternity actions, or domestic partnerships, please contact Pasadena Family Law attorney Mark B. Baer, Esq. at Mark B. Baer, Inc. a Professional Law Corporation.

Philosophy and the Law

Pasadena Family Law Attorney — Sat, 05 Feb 2011 17:08:00 GMT

Almost a quarter of a century ago, as a first year law student, I was required to take a course on Philosophy and the Law. I absolutely hated that class, did not understand its importance, and found the subject matter very frustrating and difficult to comprehend. I recall the Professor calling upon me to answer questions relating to the material and being completely incapable of responding intelligently. To my surprise, I now regularly find myself involved in discussions relating to Philosophy and the Law as a result of my writings and people's frustrations with regard to the legal system and family law attorneys. I am proud to say that I have evolved since taking that course and have come to develop a rather fond appreciation for philosophy.

The most recent such discussion occurred on Facebook on January 30, 2011, after I posted the following statement, "The brother of a friend of mine, took his life on Wednesday, after losing his business, home, family and dignity as a result of false allegations of domestic violence by his wife in a divorce proceeding…. I wish people would realize the consequences of their actions."

In response, some people commented that, "equal parenting is needed to solve this perverse problem." Others opined that the system is somehow corrupt or that it was the result of "purposefully fueling the flames of hatred between a father and a mother to keep them perpetually tied up in court until there's nothing left for them OR the children...." A great deal of disdain toward lawyers was conveyed to me during the discussion. In fact, people were commenting about "attorney assisted false allegation instruction… and perjury," both topics about which I have previously written.

As I mentioned in those articles, " it is estimated that as high as 80% of allegations of domestic violence and child abuse are completely false…. It is widely recognized that false claims of domestic violence are often made in divorce and paternity actions in order to gain a legal advantage. " Nevertheless, " Judges almost never refer a case to the District Attorney's office for a perjury prosecution" and "persons who knowingly make such accusations are almost never subject to legal sanctions" because otherwise everyone who testified in court "would go to jail." My article on perjury also explained the California State Bar's position that "since communications between the attorney and his client are confidential, we will not be able to learn what representations by the client the attorney relied upon in presenting the client's claims."

As a participant in the Facebook discussion, I commented as follows: "I do not disagree with the statement that family law attorneys tend to 'stir the pot' and encourage or assist their clients in making false allegations. I was involved in a case where my client's wife continuously made such allegations and... made the case much more difficult and expensive than necessary. After the case was over, the then ex-wife wanted to sue her attorney for having encouraged her to make false allegations in her declaration. She was not able to pursue such a thing because it would have meant her admission that she committed perjury."

In response, someone said that attorneys "guide divorcees thru the process of annihilating the opposition, with every tactic available, and that includes very dishonest means. Attorneys are essentially giving the means to break the law, assisting in doing so, AND GETTING AWAY WITH IT." Interestingly enough, I addressed that issue in my article entitled, "Family Law and Attorneys Fees."

I responded as follows: "A courtroom/lawsuit is the wrong forum/manner for handling marital discord. The fact that attorneys (judges were attorneys first) have been found in general not to care about interpersonal relations only makes it worse. Let's not ignore the fact that emotions are so high that people going through a divorce are suffering from 'temporary insanity.'"

Someone then commented that when people are suffering from such "temporary insanity," it is the perfect opportunity for family law attorneys to "milk them" by fanning "the flames" in order to "line their pockets."

In response, I stated that, "I am merely acknowledging that the system is flawed, but that nothing is perfect. It is easy to find fault. The challenge is to find a real solution."

Someone then remarked, "The legal system's performance speaks loudly about its lack of compassion, just as loudly as it does about its lack of justice." Another person was adamant that equal parenting (50/50 timeshare) was the answer.

My new found appreciation for philosophy came out in my final remark that "The reality is that procreation proves nothing about one's ability to parent. You are imagining a world in which everyone is a good parent. I guess that the legal system and society should turn a blind eye to the fact that parents commit child abuse, child neglect and that children are permanently scarred or worse as a result of the actions of their parents. While I admit that the system is not perfect and while I believe that the adversarial system destroys families, I am not ignoring the fact that children are innocent victims of the actions of their parents. They are the collateral damage of their parents' behavior. As much as you want to blame the legal system and the lawyers, the truth of the matter is that if people did not seek out "pit bull" attorneys to go for the jugular of their spouse/the other parent, those types of attorneys would fail to earn a living and things would change. The reality is that people deliberately seek out destructive attorneys to accomplish their dirty work and then play the blame game. I was an economics/business major in college. If there is no demand for such despicable and anti-social attorneys, the supply would diminish. On the other hand, when the demand is great, so is the supply. Which came first? Did the lawyers create the problem or did the society's demand for such lawyers create the problem. I believe that society's demand for such lawyers created the problem and that the only way to improve things is for society in general to take responsibility for its role in creating the problem and change the reality. I may detest anti-social lawyers (the majority who do not consider the consequences of their actions and do not care about interpersonal relations), but I do not ignore the reality that they are also the most successful lawyers because they are in great demand by our society."

If you have an issue regarding family law, divorce, child custody, child support, spousal support, restraining orders, paternity actions, or domestic partnerships, please contact Pasadena Family Law attorney Mark B. Baer, Esq. at Mark B. Baer, Inc. a Professional Law Corporation.

Will Divorce Financing Cause a Change in Behavior?

Pasadena Family Law Attorney — Mon, 06 Dec 2010 18:30:00 GMT

On December 4, 2010, the New York Times published an article entitled, "Taking Sides in a Divorce, Chasing Profit." The article profiles a growing industry that seeks to "profit from the often contentious and emotional process of ending a marriage" by investing in those cases "in exchange for a share of the winnings." According to the article, the need for such financing exists because "state laws uniformly require" parties in a divorce "to pay lawyers upfront, rather than promising them a contingency fee, or a share of any winnings, as is common in other civil cases." The American Academy of Matrimonial Lawyers supports the concept of such divorce financing because "it furthers the concept of putting both spouses on an equal playing field." Balance Point Divorce Funding, a fairly new addition to the divorce financing industry, finds that its "customers fall into a pattern. They are women. They generally do not have jobs. They often are raising small children. And their husbands run their own businesses, making it tough to obtain financial information."

It is an unfortunate reality that the need exists for such companies to profit from divorce, considering that the legislature has enacted statutes (at least in California), the express purpose of which "is to level the playing field for the spouses and/or parents with children from non-marital relationships." In fact, on September 6, 2010, I published a Blog article entitled, "Family Law and Attorneys Fees," which described how "Judges (intentionally or unintentionally) play into the hands of "Pit Bull Attorneys" in bankrupting a party through guerrilla warfare tactics." Such attorneys "are not concerned with resolving a case in a fair and equitable manner, despite the fact that the family law court is considered a court of equity, or fairness. Instead, these attorneys take advantage of the flaws and imperfections in the legal system to make the case for the other side so costly that they either cannot or will not continue to fight for that to which they are otherwise legally entitled. Such attorneys are focused on 'winning," no matter what the cost, irrespective of right and wrong, and in total disregard of equity."

In my Blog article entitled "Family Law and Attorneys Fees", I concluded that "California has a broken process that produces extended and contentious litigation, poisons feelings between the parties and harms the interests of those persons -- too often women -- who do not have sufficient financial wherewithal to protect their legal rights." After reading that article, a member of the Elkins Family Law Task Force in California commented, "Excellent Blog on the topic and appreciate the difficulties with sanctions orders for attorney fees. As a continuing member of the Elkins Family Law Task Force in California,our Task Force is now in the implementation phase of our recommendations that we unanimously adopted by the Judicial Council this April. The Elkins Task force recognized that early needs- based fee awards are critical to address disparity in access and lack of parity in representation. The Elkins Task force will also addressing the need for sanctions to include restitution or fines and not only attorneys fees. We are also assessing mechanisms to handle perjury and whether there are adequate civil remedies." In other words, this growing industry, which profits as a result of financing the costs of divorce, only exists because of the Judiciary's interference with implementation of legislation specifically enacted to level the playing field in divorce cases.

I am hopeful that by leveling the playing field through divorce financing, individuals who previously retained "Pit Bull Attorneys" in an effort to " cause the other party to spend down their limited resources until they outspend them and then go for the kill" will think twice now that their spouse's resources may not be quite so limited. After all, the financing "offers to cover the cost of breaking up - paying a lawyer, searching for hidden assets, maintaining a lifestyle - in exchange for a share of the winnings." This money must ultimately come from somewhere and the company financing the divorce does so in exchange for a "share of the winnings." I want to point out that the "winnings" the "underdog" receives in a divorce are what was rightfully theirs under the law. The only reason that they would not otherwise receive a fair resolution was because the system, the Judges and the lawyers involved have systematically protected the spouse controlling the assets. They have done so by promoting, protecting and otherwise encouraging the use of "Pit Bull Attorneys" by a spouse in control of the assets. After all, "money, then, is power either if the amount: is overwhelming and, the holder is ruthless in its use, or if the recipient accepts the exercise of this power."

As soon as spouses in control of the money begin to realize that they no longer have the power to act in a ruthless manner by manipulating a broken legal system because of the advent of divorce financing, maybe they will learn to act like mature adults and negotiate fair settlements. Until then, such financing will allow "Pit Bull Attorneys" on both sides to line their pockets with the transfer of wealth that will ensue. Too bad for the families involved that "a disinterest in emotions and in interpersonal concerns" is common among such attorneys.

An article entitled, "Family Law Par Excellence" in the November/December 2010 edition of the Beverly Hills Bar Association's Newsletter stated, "Because Baer recognizes the importance of diffusing emotions in family law matters and often involves mental health care professionals to assist in that regard, he joined the San Gabriel Valley Psychological Association as an affiliate member. Since September of 2008, he has been a regular columnist for their newsletter. Baer makes it a point to always remind his clients that if there are children, the family still exists even after the relationship ends. Mark, who was trained in mediation by Forrest 'Woody' Mosten, is a mediator and collaborative law practitioner who is also an experienced litigator." What would I know about the destruction that "Pit Bull Attorneys" cause when they are used in the family law arena?

Ultimately, I expect that by "leveling the playing field" through divorce financing or otherwise, people will no longer be able to "cause the other party to spend down their limited resources until they outspend them and then go for the kill" and willtherefore increasingly seek out attorneys for mediation or collaborative divorce. After all, the manner in which you end a relationship will determine whether your family will be functional or dysfunctional from that day forward.

Meanwhile, for those of you interested in obtaining divorce financing, Balance Point Divorce Funding "wants to focus on people with marital assets between $2 million and $15 million" because "investing in smaller disputes was not worthwhile."

If you have an issue regarding family law, divorce, child custody, child support, spousal support, restraining orders, paternity actions, or domestic partnerships, please contact Pasadena Family Law attorney Mark B. Baer, Esq. at Mark B. Baer, Inc. a Professional Law Corporation.

Is Divorce Insurance a Good Idea?

Pasadena Family Law Attorney — Mon, 11 Oct 2010 16:30:00 GMT

Much has been written about divorce insurance, since the August 5, 2010 launch of WedLockDivorceInsurance.com. This is the first time that insurance of this type has ever been available. “The product is sold as individual policies. You buy it in units of coverage. Each unit is valued at $1250 at a cost of $15.99 per unit. For instance, if you bought 10 units of Divorce Insurance; it would cost you $159 a month.... Policy holders can buy up to 200 units of divorce insurance which is $250,000 in coverage.” “Then, if you get divorced and your policy has matured (see below for the maturation rules), you would send WedLock proof of your divorce. In return, you’d receive a lump sum of cash equivalent to the amount of coverage you had purchased.”

"So how does the company prevent people who know they are going to get a divorce from signing up? To prevent that kind of adverse selection, the policies don’t mature until 48 months after their effective date (though people can purchase additional riders to reduce that maturity period to 36 months and to get their premiums back if they happen to divorce before the policy matures)." "That will hike your monthly premium to $30 per unit.”

Unless you purchase the additional riders and your marriage ends less than 48 months after you purchase the policy, you lose whatever premiums you paid for the insurance. At $30 per month, the return on the "investment" if the marriage ends within 48 months of obtaining the insurance policy is relatively low. Therefore, it makes little sense to purchase such riders. However, without such riders, if you divorce before the waiting period is over, the premiums are lost. For a standard policy, "if a policyholder who bought 10 units got divorced after 10 years, he or she would have handed over $19,188 and would receive a payout of $27,500.” If the math does not add up, that is because “after the required 4 year waiting period is over, the policy goes up in value every year by $250.00 per unit." However, bear in mind that policy holders who never divorce, lose whatever premiums they paid for the insurance.

All in all, the insurance does not seem very cost effective. "It seems that people would be better served by self-insuring, i.e. putting $15.99 per month into a savings account and earning interest, rather than paying for such coverage and then possibly never getting divorced. Plus, some divorces are relatively amicable and may not cost tens of thousands of dollars. In response to this notion, Mr. Logan (the CEO and Founder of Wedlock Divorce Insurance) said that while people could end up with more money that way, there’s always the chance that money would be squandered by a soon-to-be ex spouse. 'There is nothing to stop your spouse from raiding those investments and taking it all.... And then with all the money gone, you’re left with all the legal bills,' said Mr. Logan, who said the idea for the product came from his own experience with a financially painful divorce." "He also argues that the $250 per-year appreciation per unit is much more than the miniscule returns available today on savings accounts.... In addition, the company’s Web site makes the argument that most people don’t have the discipline to save consistently.”

If a person has the discipline to make a monthly premium payment for such insurance, I would hope that they would also have the discipline to place those funds into a savings account. It may be that the return on such an investment is miniscule, but at least the investor is guaranteed a return on their "investment." Furthermore, if a person is not bothered paying for such insurance, what would prevent that same person from placing those monies into an account which is not accessible to their spouse? Any concern that a spouse would “raid those investments” is therefore easily addressed and at no cost.

"Depending on whose statistics you use, somewhere between 40 to 50 percent of first marriages ultimately end in divorce. (Click here for a breakdown of divorce statistics.)” Therefore, between 50 to 60 percent of those who purchase divorce insurance will never see a return of any sort on their investment. In fact, they will have “lost” all the monies they paid in premiums for the insurance. For those who do receive a payout because their marriage failed, the payout is insufficient based upon the odds. Also, please take note that “the policies aren't backed by any state insurance or other government fund, only by Prime Insurance, Safeguard's underwriters."

Of even greater concern to me is the fact that the premium is being paid throughout the course of the marriage. This is not comparable to a premarital agreement, which is something a couple enters into before marriage. In fact, many couples will not marry without a premarital agreement. There are many valid reasons for entering into such an agreement, but those reasons are not true for divorce insurance. I understand that a large percentage of marriages end in divorce. However, I would strongly suggest that someone re-evaluate entering into or remaining married to someone who would be inclined to purchase divorce insurance and pay the premiums while happily married. There is also the potential for fraud, in that couples in need of the money may divorce just to obtain the insurance payout and still remain a couple and possible remarry. "You'll have to celebrate at least your fourth anniversary with your sweetie in order to cash in, because that's when the policies mature." I do not believe that a four year waiting period is something that will discourage insurance fraud by divorcing in order to recapture monies thrown away in unnecessary insurance premiums.

What Mr. Logan also fails to explain is that the payout from the divorce insurance is taxable to the extent it exceeds the total amount of premiums paid for the policy. He also neglected to explain that if the premium is paid with community property money, the payout from the divorce insurance would be deemed community property. Moreover, if the payout is not deemed community property, it would be viewed as income for purposes of calculating child support, spousal support and attorneys fees contributions. As if that were not bad enough, I suspect that people would spend even more money litigating their divorces and destroying their families, knowing that they will be "reimbursed" for such expenses through their divorce insurance.

It seems to me that Mr. Logan has figured out a way in which to recoup the financial losses he suffered as a result of his divorce. While Mr. Logan may benefit financially from divorce insurance, that is only because he owns the company. I am not sure that the policy holders stand to benefit from carrying such insurance.

If you have an issue regarding family law, divorce, child custody, child support, spousal support, restraining orders, paternity actions, or domestic partnerships, please contact Pasadena Family Law attorney Mark B. Baer, Esq. at Mark B. Baer, Inc. a Professional Law Corporation.

Family Law and Attorneys Fees

Pasadena Family Law Attorney — Mon, 06 Sep 2010 18:04:00 GMT

In California, laws are in place to ensure that, to the extent practical in actions involving family law, "each party has access to legal representation to preserve each party's rights...." This is accomplished when one party is ordered to pay attorney's fees and costs for another party. Such orders are based upon "the respective incomes and needs of the parties" and "any factors affecting the parties' respective abilities to pay." California Family Code section 2030 applies to proceedings for "dissolution of marriage, nullity of marriage, or legal separation of the parties...." Similar laws are in place with regard to proceedings "to establish physical or legal custody of a child or a visitation order," pursuant to California Family Code section 7605. The express purpose of these statutes is to level the playing field for the spouses and/or parents with children from non-marital relationships.

In order to obtain an order awarding attorneys fees, a party must file an Order to Show Cause requesting such an order in the pending case. A court hearing on the matter is required and the requesting party must file a proper motion with all requisite documents and information to potentially succeed. The legal fees and costs that a party must incur in an effort to obtain such an order is not inexpensive. Unfortunately, it is foolish for an attorney to take on a case without being paid by the client and in reliance upon obtaining such an attorneys fees order.

I made that mistake in or about 1995, when I was retained by a woman to represent her in a paternity matter. She was receiving welfare and thus did not have the means with which to pay for my legal services. However, she told me that the child's father was a physician and earned a good living. I believed her and took the case. I prepared and filed all of the necessary documents and retained a process server to serve the documents on the alleged father, who did not file any responsive documents before the hearing on the matter. However, he appeared at the hearing and testified on his own behalf. Contrary to my client's representations, the father was not a physician. Rather, he was also receiving welfare. The Court made orders regarding custody, visitation and child support. However, the Court was unable to make an attorneys fees order because the father was in no better position than my client to pay my attorneys fees. My client knew that I was never going to obtain an attorneys fees order against the father. She fed me false information in order to obtain free legal representation in her case. Since then, I have refused to take on a case unless the client was able to pay my retainer from savings, loans, credit cards or the assistance of friends and family.

Furthermore, if an unrepresented party seeks an order awarding attorney fees so that they have the ability to retain an attorney, such an award, if any, will be very limited because the Court has no guarantee that the party will actually use those funds to retain counsel.

Moreover, " a motion for attorney fees and costs in a dissolution action is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse, its determination will not be disturbed on appeal. The discretion invoked is that of the trial court, not the reviewing court, and the trial court's order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made."    This same level of discretion applies in proceedings to establish physical or legal custody of a child or a visitation order in non-marital proceedings. In other words, "the court has considerable latitude in fashioning or denying" such an order. If Courts grant an order awarding attorneys fees, they frequently order that the amount be paid in installments over a period of time. It is also not uncommon for a Court to reserve jurisdiction over the issue of attorneys fees and costs, thereby preventing the party seeking such an order from receiving the fees in order to have equal access to legal representation.

"While no particular language is required in an order awarding attorneys fees under sections 2030 and 2032, the record (including, but not limited to, the order itself), must reflect an actual exercise of discretion and a consideration of the statutory factors in the exercise of that discretion." If a party feels that the Court abused its discretion in making its attorneys fees order, bear in mind that the cost of appealing such a decision also costs money. In fact, appellate attorneys typically charge much higher rates than attorneys in other fields of law. A person can expect to pay $700.00 per hour when retaining an appellate attorney. The party with the financial resources may be able to afford such an expense. However, if the party seeking to appeal the order is the one without the financial resources, how can they afford to appeal the decision?

California is not the only state in this country with ineffective legislation in this regard. On August 13, 2010, Governor Paterson of New York signed into law recently passed legislation "that would bring significant reform to New York's outdated divorce laws." One such change creates "a presumption that a less monied spouse in a divorce case is entitled to payment of attorneys' fees. Under current law, a party that cannot afford to secure representation in a divorce proceeding must make an application for fees at the end of the process, which can force a poor individual to proceed without a lawyer, or to surrender on important issues due to lack of means. These bills received strong support from women's groups, advocates for victims of domestic violence and legal aid organizations. 'Finally, New York has brought its divorce laws into the twenty-first century,' Governor Paterson said. 'These bills fix a broken process that produced extended and contentious litigation, poisoned feelings between the parties and harmed the interests of those persons -- too often women -- who did not have sufficient financial wherewithal to protect their legal rights. I commend the sponsors on providing a real and effective legislative solution to a problem that has for too long bedeviled ordinary New Yorkers.'"

Unfortunately, the problems in effectively leveling the playing field for the parties through orders awarding attorneys fees are not the only glitch in the legal system. As I wrote in my article entitled, "Pit Bull" Attorneys and Family Law", "'Pit bull attorneys' are not concerned with resolving a case in a fair and equitable manner, despite the fact that the family law court is considered a court of equity, or fairness. Instead, these attorneys take advantage of the flaws and imperfections in the legal system to make the case for the other side so costly that they either cannot or will not continue to fight for that to which they are otherwise legally entitled. Such attorneys are focused on 'winning," no matter what the cost, irrespective of right and wrong, and in total disregard of equity."

For example, the spouse with more limited financial resources might serve the other spouse with "Form Interrogatories," which are pre-printed and pre-approved by the California Judicial Counsel and are used to obtain information relating to income, debt, community and separate property, alleged agreements, and credit and reimbursement issues. Since the questions in Form Interrogatories are pre-approved, a party cannot generally object to them. Nevertheless, it is not uncommon for a party to object to one or more questions asked in the Form Interrogatories. The asking party must then send the other party a "meet and confer letter," which demonstrates that an effort was made to resolve the dispute outside of court. If the answer given is evasive, incomplete, or the objection is without merit or too general, the asking spouse may then file a motion "for an order compelling a further response." The court shall then "impose a monetary sanction...against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust."

In actuality, the courts almost never impose a sanction equal or even close to the actual attorneys fees and costs incurred in filing such a motion. As a result, "pit bull attorneys" and their clients act in uncooperative ways even though they know that a court will very likely sanction them for such conduct. However, since the amount of the sanction will not equal the cost incurred by the other side in bringing the motion, they in effect cause the other party to spend down their limited resources until they outspend them and then go for the kill. The legal system and the Judges encourage this type of behavior by not adequately sanctioning such behavior. However, Judges also know that if they give more severe sanctions, lawyers will disqualify them from presiding over their cases on the basis that the judge is "prejudiced against the party (or his or her attorney) or the interest of the party (or his or her attorney) so that affiant cannot or believes that he or she cannot have a fair and impartial trial or hearing before the judge." As more and more attorneys disqualify such Judges, their cases are reassigned to the remaining Judges. Problems then develop for those Judge's who have a significantly reduced case load. This is what is call a " catch-22 situation."

It seems that California has a broken process that produces extended and contentious litigation, poisons feelings between the parties and harms the interests of those persons -- too often women -- who do not have sufficient financial wherewithal to protect their legal rights. Maybe it is time for California to bring its divorce laws into the twenty-first century.

If you have an issue regarding family law, divorce, child custody, child support, spousal support, restraining orders, paternity actions, or domestic partnerships, please contact Pasadena Family Law attorney Mark B. Baer, Esq. at Mark B. Baer, Inc. a Professional Law Corporation.

The Cost of Raising Children

Pasadena Family Law Attorney — Tue, 10 Aug 2010 20:55:00 GMT

Since 1960, the governmental department assigned to provide estimates of expenditures on children from birth through the age of 17 has been the United States Department of Agriculture. Those expenditures consist of the following categories: housing, food, transportation, clothing, health care, child care, education, and miscellaneous expenses. I emphasize that the report only covers through the age of 17 because I believe that everyone will agree that parents do not stop supporting their children once they reach the age of 17. In other words, people should expect that children will actually cost them more than what is set forth by the USDA.

According to the report from the USDA entitled Expenditures on Children by Families, 2009, "In 2009, estimated annual average expenses on the younger child in two-child, husband-wife families increased as income level rose. Depending on age of the child, annual expenses ranged from $8,330 to $9,450 for families with a before-tax income less than $56,670, from $11,650 to $13,530 for families with a before-tax income between $56,670 and $98,120, and from $19,380 to $23,180 for families with a before-tax income more than $98,120. On average, households in the lowest income group spent 25 percent of their before-tax income on a child; those in the middle-income group, 16 percent; and those in the highest group, 12 percent. The range regarding these percentages would be narrower if after-tax income were considered." "Compared with expenditures on each child in a two-child, husband-wife family, expenditures by husband-wife households with one child average 25 percent more on the single child and expenditures by households with three or more children average 22 percent less on each child."

Taking inflation into account, it is estimated that to raise a child born in 2009 to age 17 will cost the lowest income group $205,960, the middle income group $286,050, and the highest income group $475,680.00. "For husband-wife families with one child, USDA estimates 27 percent of total family expenditures are spent on the child; for two children, 41 percent; and for three children, 48 percent." "In 1960, average expenditures on a child in a middle-income, husband-wife family amounted to $25,229, or $182,857 in 2009 dollars. By 2009, these estimated expenditures climbed 22 percent in real terms to $222,360 (assuming a family had child care and education expenses on a child)."

"Cross-sectional evidence suggests that family size and income are negatively correlated" in that lower income families tend to have more children than do higher income families. I do not want to get caught up on this inverse correlation and that those having most of the children can least afford it. However, I do want to point out that those in the lowest income group are effectively keeping themselves in that group by having children they can ill afford to support. How does one expect to improve their economic station if they burden themselves with expenses that prevent them from saving money and actually cause them to live beyond their economic means? Rather than taking responsibility for poor financial decisions (having children they cannot afford), people tend to blame others for their circumstances. Research shows that "a household not only chooses how many children to have, but also when to have them." Clearly, this does not apply to all income groups because otherwise there would not be an inverse correlation between family size and income. Nevertheless, for those who are interested in knowing how many children they can afford, if any, the United States Department of Agriculture has developed a "USDA Cost of Raising a Child Calculator".

Parents almost always tell me that their children mean more to them than anything else. Considering the cost of raising a child, I would certainly hope this statement to be true. However, what parents seem to forget when they are divorcing or their relationship is ending is that children are expensive. Since most parents never used the USDA Calculator, they never really thought about the cost of their children. It is only when the relationship comes to an end that the parents have to deal with the issue of child support. Child support is the payment by one parent to the other for the support of the child/children of their relationship. Federal law requires that the amount of child support be determined in accordance with a guideline. Child support calculations take into account the respective gross incomes of the parents, tax deductible expenses and the percentage of time that each parent has the children, among other things.

Reflect upon the following example: (1) father's gross monthly income is $4,500, (2) mother's gross monthly income is $3,500; (3) there are 3 minor children involved, ages 3, 5 and 7; (4) father has the children 25 percent of the time; (5) father files his taxes as single; (6) mother files as her taxes as head of household; and (7) mother spends $600 a month on child care. For this example, no other factors exist for purposes of calculating guideline child support. The father in this case would be ordered to pay the mother guideline child support in the sum of $1,310 per month and he would be left with net spendable income of only $2,019 per month. After taking into account the child support she receives, the mother would have monthly net spendable income of $4,765.

Invariably, father would complain that the laws are unfair and that he cannot afford to pay that amount of child support. He may also be troubled by the fact that the mother is not obligated to account for her use of that money. The father might refuse to purchase clothing and other basic necessities for the children because he is paying child support to the mother. However, what the parents have not considered is that according to the USDA Calculator, the estimated annual cost of those 3 children is $29,492 and he is paying the mother $15,720 per year in child support, which is $13,772 less than the estimated annual cost of raising those children. The child support that he pays to the mother basically equalizes the fact that she has the children 75 percent of the time and therefore incurs 75 percent of their cost. Father still has the children 25 percent of the time and has costs associated with his time with them. Both parents struggle to support the children, one thinking he is paying too much in support and the other that she is receiving too little in support. In reality, the only reason the couple was able to afford the 3 children while still together (assuming that they could afford the 3 children) is because they only had one household to support.

According to the USDA's report, "As a proportion of total child-rearing expenses, housing accounted for the largest share across income groups, comprising 31 to 35 percent of total expenses on a child in a two-child, husband-wife family. For families in the middle-income group, child care/education (for those with the expense) and food were the next largest average expenditures on a child, accounting for 17 and 16 percent of child-rearing expenses, respectively." In determining housing expenses, the USDA takes into account the average cost of additional bedrooms needed to accommodate the children.

Considering the number of marriages that end in divorce, it might be a good idea if more couples considered the financial costs associated with children before actually having them.

If you have a child support issue, please contact Pasadena Family Law attorney Mark B. Baer, Esq. at Mark B. Baer, Inc. a Professional Law Corporation.

Should Parents Be Allowed To Make Custody And Visitation Agreements Without Being Challenged?

Pasadena Family Law Attorney — Tue, 27 Jul 2010 04:57:00 GMT

In theory, it is best when parents with minor children are able to work out a custody and visitation arrangement on their own when they separate and/or divorce. After all, the matter involves their children/family and wouldn't they know what is best for their particular situation? Not always!

I was recently representing a father of three (3) minor children in a divorce case in which he and his wife entered into an Agreement under which he would see his children every other Friday from 7:00 p.m. to Sunday at 4:00 p.m. He entered into this Agreement in Conciliation Court, which is the mediation program that parents are required to attend in Los Angeles County before going into court on a matter relating to child custody and visitation. For those who are unaware, lawyers are not permitted to participate in Conciliation Court.

Before my client 's Conciliation Court appointment, I warned him against entering into a Custody and Parenting Agreement that he would not be able to live with for a long time. As requested, my client contacted me as soon as he left the courthouse. During that conversation, he informed me that he had entered into a Conciliation Court Custody Agreement and Parenting Plan. As soon as he finished describing the terms of the Agreement, I asked him whether or not he realized that he would not see his children for twelve (12) days between each of his alternate weekend visits. I commented that most, if not all, of his children's friends will see their fathers on a more frequent basis, regardless of marital status. I explained to him that his children will most likely assume that he sees them less than other father's see their children because he loves them less and that this would most certainly negatively impact his relationship with them. After our conversation, he agreed with me that his children would most likely perceive their relationship with him in the way in which I had described, especially since he resided in close proximity to them. He then requested that I file an Objection to the Conciliation Court Agreement and Parenting Plan. As discussed in my article from the September/October edition of the San Gabriel Valley Psychological Association Newsletter, I informed him that the Court might refuse to acknowledge the Objection to that Agreement.

I immediately contacted his wife's attorney, who had not yet been informed of the fact that they had reached an Agreement regarding the custody issues. I explained my concerns to him and he immediately acknowledged the problem and validated my concerns. I requested that he see if we could modify the Agreement to include some visitation during the week. He told me that he would discuss the matter with his client. Meanwhile, I filed an Objection to the Conciliation Court Agreement and Parenting Plan. As an additional complication, the hearing on this matter was scheduled for the next Court day and therefore it was virtually impossible to resolve the matter prior to that hearing. As a result, I suggested that everyone arrive at the Courthouse at 7:00 a.m. the following morning (1 ¾ hours before the scheduled hearing) in order to try and resolve the matter without judicial intervention. Everyone agreed to my proposal and we were able to settle the matter outside of Court. With the assistance of their attorneys, the parents were able to work out a parenting plan that suited their particular situation and which was in the best interest of the children.

After entering into that Agreement, which was signed off by the Court and made into an Order, I received a copy of the Conciliation Court Agreement and Parenting Plan which the Court also signed off on, even though we had subsequently resolved the matter differently and I had filed an Objection to that Agreement. Under the circumstances, the fact that the Court signed off on the Conciliation Court Agreement and Parenting Plan in that case is of no significance. However, it is indicative of the fact that courts tend to disregard Objections to such Agreements. Although I knew and had previously written about such concerns, it bothered me that courts sign off on Agreements entered into by parents which most certainly are not in the best interest of the children and will negatively impact the children's relationship with one or both parents.

Over the years, I have come across many situations in which parents enter into Custody and Visitation Agreements which are clearly detrimental to the children. Nevertheless, the courts sign off on such Agreements because they are "Agreements." On several occasions, I have seen parents with multiple children enter into Agreements whereby each parent would have 100% of the time with particular children of the relationship in order to "avoid conflict with the other parent and to protect the children from being exposed to such conflict." In other words, rather than learning to co-parent, the parents decide that it is in the best interest of the children that they have a relationship with only one of the parents and that their relationship with their siblings in the other parent's custody be severed. Such a parenting arrangement is by no means in the best interest of the children. Under such circumstances, the children not only need to deal with their parent's divorce, but also with the loss of one parent and certain of their siblings. Although courts would never make such orders, they do sign off on such Agreements, thereby making them binding Orders of the court.

Thus, while it is best when parents with minor children are able to work out a custody and visitation arrangement on their own when they separate and/or divorce, some parents need assistance in determining what is in the best interest of the children. Without such assistance, parents can do things that are very detrimental to their children, often without even realizing it. Should Judge's just sign off on such Agreements, without even addressing the possible consequences? Who protects the children from such parents?

If you have a child custody issue, please contact Pasadena Family Law attorney Mark B. Baer, Esq. at Mark B. Baer, Inc. a Professional Law Corporation.