Recent Blog Posts in 2010

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. 

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. 

At a party on May 8, 2010, I began chatting with a woman who told me the sordid details of her ongoing custody problems after she learned that I was a family law attorney.  Among other things, she informed me that the Court had ordered that her ex-husband submit to random drug testing after she convinced the Court of his history of drug usage and its impact on his fitness as a parent.  The Court also ordered that he not consume recreational drugs or alcohol within a certain period of time before and during his custodial time with their son.  She then explained to me that her ex-husband consistently failed to show up for his random drug testing.  She expressed to me her frustration with the system because when she would learn that her ex-husband failed to show up for his random drug testing, she would file the appropriate motion with the Court to advise the Judge of the situation.  She told me that she works in the drug rehabilitation field and that a failure to show up is considered the same as having received a dirty test because otherwise, the person would have shown up for the test. 

When she would go before the Court, the Judge refused to consider her ex-husband's failure to show up for the random drug test to be the same as a dirty test.  Her ex-husband never appeared for any of his random drug tests and the Court ultimately removed that portion of the Order because her ex-husband never received a dirty test. 

She then explained to me that her son's performance in school had declined significantly because he was not getting his homework done and would get to school late while in his father's custody.  She said that her ex-husband was unable to take their son to school on time because he would oversleep as a result of his substance abuse.  She had spent a great deal of money obtaining an Order which the Judge would not enforce and ultimately eliminated.  At this point, she was completely frustrated with the entire system and expressed to me that her son would suffer in the long run because of his poor performance in school and for other reasons associated with his father's substance abuse and the fact that the Court seemed completely unconcerned.  She did not want to report the matter to the Department of Children and Family Services (DCFS) for all of the reasons set forth in my Blog of May 17, 2010 entitled, "The Real Problem with the Department of Children and Family Services."  All that I was able to do for her was to express empathy for her situation, which I tended to believe based upon my experiences with such matters.

Section 3041.5(a) of the California Family Code provides in pertinent part as follows:

"In any custody or visitation proceeding brought under this part, as described in Section 3021, or any guardianship proceeding brought under the Probate Code, the court may order any person who is seeking custody of, or visitation with, a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship…. A positive test result, even if challenged and upheld, shall not, by itself, constitute grounds for an adverse custody or guardianship decision. Determining the best interests of the child requires weighing all relevant factors...."

The studies also show that when drug testing is ordered, parents generally comply with the order.  In fact, according to judicial officers, only 13% of the parents sometimes comply, 2% of the parents rarely comply and 0% of the parents never comply.  The factors that influence the rate of noncompliance are as follows:  (1) cost; (2) availability of testing facilities; (3) awareness of consequences/clarity of court order; (4) disputes about notice; and (5) concern by the parent that they would have tested positive had they submitted to the test.  Since there are numerous reasons for noncompliance, the consequences vary according to the facts of the case.

I was recently involved in a case in which the initial judge assigned had ordered that the "father to prove off medical marijuana, enroll in and complete after care program.  Neither parent shall use illegal drugs."  The case was then transferred to a different judge.  We had two hearings in the ten months following that order.  Meanwhile, the father had never proven that he was off medical marijuana or that he had enrolled in and completed an after care program.  At each of those hearings, I advised the judge of the father's failure to comply with the court's orders.  In fact, I requested that the court order the father to submit to random drug testing because of his noncompliance with the court order.  The judge refused to order the father to submit to random drug testing and removed from the order the requirement that he "prove off medical marijuana, enroll in and complete after care program.  Neither parent shall use illegal drugs." 

It is not an easy task to obtain an order that a parent undergo drug testing.  When such orders are made, it is in good part because the judge found that "the substance use posed a danger to the safety or health of the child."  Under the circumstances, it might be a good idea if judges were to actually enforce those orders.  In my case, the judge removed the order rather than enforcing it.  If the order was made because it was in the best interest of the child, how is it in the child's best interest for a judge either ignore the order or remove it?

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.

My last Blog entitled, "Emotions Play an Integral Role in Divorce Proceedings and Therefore Must be Understood by the Attorney" explained that "the emotional impact of a divorce is as severe as that of a death in the immediate family" and that "most of the literature on the psychology of divorce treats divorce as the death of a relationship."  At the conclusion of that Blog, I stated, "It is horrific that 'both our court system and our culture at large' encourage people to make the most important decisions relating to the dissolution of their marriage, including but not limited to selecting an attorney to represent them, at a time when they are most vulnerable to making major decisions that they will later regret.  Yet, when people are grief stricken following the death of a spouse, they are advised to 'try and avoid making major decisions at least for the first year following the loss.'"

After I released that Blog, a family law colleague of mine in New York advised me of information he had learned at Continuing Education Course entitled, "Stress and Sanity in Everyday Practice."  A "Stress Assessment" was provided by a psychiatrist and based upon the Homes and Rahe Life Change score.  Although it was established in the 1960's/70's, that Life Change score is still validated by most mental health experts.  The "Top 10 List" for adults is as follows: 

10. Retirement (45)
9. Marital Reconciliation (45)
8. Fired at Work (47)
7. Marriage (50)
6. Personal injury or illness (53)
5. Death of a close family member 63)
4. Jail term (63)
3. Marital separation (65)
2. Divorce (73) [the score is 90 for non-adults]
1. Death of a spouse (100)

As can be plainly seen, the stress of a divorce comes second only to the death of a spouse.  Moreover, as mentioned in my last Blog, "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.  The following are some examples "of the losses that are part of a divorce:  loss of companionship, loss of financial security, loss of a sexual relationship, loss of time with children, loss of an extended family, loss of status as a married person, loss of self-esteem, loss of friends, etc." 

The way in which individuals respond to loss is influenced by personality, family, culture, and spiritual and religious beliefs and practices.  The difference in the way society treats the grief from the death of a close family member and from divorce is exemplified by the fact that the United States Department of Health and Human Services - Substance Abuse and Mental Health Services Administration's website refers to grief as something that occurs "after a death or loss" and all of the organizations it lists which provide "information and support for coping with grief"  deal with grief stemming from the death of a close family member. 

If interested, a person can easily find a support group to help cope with the loss and grief caused by the death of a loved one.  Such groups can be found in local newspapers, through friends and family, mental health care professionals, funeral directors and through an internet search.  What is disappointing  to me is not the fact that the Homes and Rahe Life Change score has been around and accepted since the 1960's/70's, but 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 parents). 

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). 

Due to the holiday and my birthday celebrations, I did not write a Blog article for this week.  Instead, I began the following discussion on the Discussion section of my Facebook Fan Page: "Should the way in which a religious leader conducts his/her personal life impact his/her career itself?" This is the first Discussion I commenced and I would appreciate as many people as possible participating in this controversial discussion.  If you are not already a Fan of my Fan Page, you must become a Fan in order to participate. The Page can be found at the following site: http://www.facebook.com/MarkBBaerEsq

My last Blog entitled, "Empathetic Family Law Attorneys" explained the unfortunate reality that while lawyers tend to "lack sensitivity to human, emotional and interpersonal concerns," in the field of divorce/family law , such attorneys cause a great deal of damage to families.

In an article entitled, "Divorce and Your Emotional Needs:  What You Should Know to Survive Your Divorce", Dr. Deborah Hecker states, "Most of the literature on the psychology of divorce treats divorce as the death of a relationship...."  In fact, in "The Emotional Stages of Divorce", Pauline H. Tesler, M.A., J.D. and Peggy Thompson, Ph.D. mention that, "[t]he emotional impact of a divorce is as severe as that of a death in the immediate family...,” including "the loss of a spouse through death."  As expressed by Ellie Wymard, Ph.D. in "Men & Divorce", "Anyone who has mourned the death of a spouse may not appreciate the comparison, but death and divorce share similarities....  According to bereavement experts, when a man's wife dies, the mourning husband will come to the other side, and ultimately say, 'She is dead and is not coming back.'  But when it comes to divorce, certain aspects of loss become slightly magnified.  Cathleen Fanslow Brunjes, Bereavement Coordinator' for Hospice Care of Long Island, New York, made the distinction by saying, 'Bear in mind that with divorce there's not a body to mourn.  It's disenfranchised grief.'" 

In her article, Ellie Wymard, Ph.D., states, "Any experience of loss, regardless of what it is, carries with it similar issues that need to be resolved."  The following are some examples "of the losses that are part of a divorce:  loss of companionship, loss of financial security, loss of a sexual relationship, loss of time with children, loss of an extended family, loss of status as a married person, loss of self-esteem, loss of friends, etc."  As expressed by Pauline H. Tesler, M.A., J.D. and Peggy Thompson, Ph.D. in their article, "Although it's painful, grief is a healthy emotional response to the loss of an important relationship."

In "The Impact of Loss and Grief on Effective Co-Parenting," the authors point out that "There are five stages to the grieving process.  These stages are denial, bargaining, anger, depression, and acceptance.  These stages are extremely applicable to divorcing and divorced parents, divorcing persons in general, and to those parents who were never married and experienced a dissolved relationship." 

As stated in "The Emotional Stages of Divorce," "Experiencing guilt and shame is also a normal reaction to the end of a marriage....  We know that for many individuals, guilt and shame can be so painful that they change very quickly into other, more tolerable feelings, such as anger or depression -- often without the person's even knowing that the guilt and shame are there.  This is why it is common in divorce for each partner to blame the other and why it can be so difficult for divorcing partners to accept responsibility for their own part in a failed marriage....  Guilt can cause spouses to feel they have no right to ask for what they need in a divorce, causing them to negotiate unbalanced, unrealistic settlements they later regret....  Similarly, shame often transforms into blame, anger, or rage directed at the spouse."

In their article, Pauline H. Tesler, M.A., J.D. and Peggy Thompson, Ph.D. note, "The wide array of emotional states that many people experience during the early stages of the divorce process can diminish their capacity to think clearly, impair their judgment, and make rational decision making difficult or impossible...."  "Grief is like a storm that can sweep you off your feet leaving the person lonely, confused, and dazed."

Due to the grief caused by the death of a spouse, it is generally recommended that "In this state of vulnerability this is not a time to be making major decisions that you may regret later. Try to avoid making major decisions at least for the first year after the loss."  Although the grief experienced as a result of a divorce is similar to that caused by a death of a spouse, "both our court system and our culture at large encourage us to take action in divorces based on how we feel when we are at the bottom of the emotional roller coaster, when we are most gripped by anxiety, fear, grief, guilt, and shame.  After all, that's when most people are moved to make the first call to a divorce lawyer.  As a result, people are encouraged to make shortsighted choices based on emotional reactions that do not take into account anyone's long-term best interests."

As I stated in my article entitled, "'Pit Bull' Attorneys and Family Law", "Many people hold the unfortunate belief that when they become involved in a lawsuit – including divorce - they need to find a lawyer who is a "fighter," or "pit bull" (i.e., like the dog bred specifically to fight other dogs). Since legal disputes are adversarial by nature, the logic seems to be that an aggressive attorney will more successfully advance one's interests in court.  By logical extension, a lawyer who is not ruthlessly aggressive would be a suboptimal choice.  However, I would like to point out that strong, proactive, and even aggressive representation does not necessarily equate with the "pit bull model." Attorneys classified as pit bulls often tend to be belligerent, argumentative, and eager to fight. What the public does not realize is that highly contentious individuals (attorneys included) usually place self-interest above all else. It should be obvious that always looking for more points to fight over, and even taking unreasonable positions on behalf of their clients, generates significantly more money in fees for the lawyer who charges on an hourly basis. Moreover, such attorneys tend to derive a great deal of pleasure from the fight in and of itself.   In fact, many attorneys enter the field precisely because they enjoy argumentative confrontation, and tend to be disagreeable and difficult people in general.  '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....  Such attorneys are focused on 'winning,' no matter what the cost, irrespective of right and wrong, and in total disregard of equity."

My last blog entitled, "The Cause and Effect of the Historical Shift in the Role of Attorneys" explained that a lawyer's role in peacefully resolving disputes ended in the 1960's, when individuals began pursuing the practice of law seeking wealth and power rather than to address social issues and to help people.  The personality characteristics of those entering the field of law changed in accordance with that shift. 

According to a June, 1997 article from the American University Law Review entitled, "Lawyer, Knowing Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism", "Lawyers' relationships with their clients and with the public likely suffer as a result of lawyers' preference for introversion, thinking, and objective analysis, compounded by a lack of sensitivity to human, emotional, interpersonal concerns. Lawyers' preference for introversion suggests an indifference to their outer world, including other people, and their preference for thinking implies a cool, impersonal attitude, both of which suggest that they may not relate well to other people, including their clients. There is recent evidence that lawyers are actually more like engineers than they are like nurses or teachers, being logical and unemotional, yet unlike engineers, in that their work is inextricably involved in interpersonal conflicts and issues.  These lawyer attributes, although they may be adaptive for the practice of law because they allow the lawyer to avoid feeling unduly emotional about his or her clients' cases, may be maladaptive in the client counseling part of legal practice.  One might conclude that lawyers should become more emotional, partial, compassionate, and interpersonally sensitive.  However, there is evidence that humanistic, people-oriented individuals are the least satisfied lawyers."

The article refers to a suggestion by Leonard H. Churmir, Ph.D. "that law schools, large law firms, and judicial appointments committees might consider motivation testing in order to place or direct law students, new lawyers, and politically appointed judges, respectively, and ensure that they will be 'good fits for the position.'"  I found this suggestion of great interest because recently and prior to learning of that suggestion, I had a conversation with a colleague wherein we discussed "the mental state of the attorneys and how their own personalities can interfere with resolving cases."  I told her that "an attorney's own personality was pivotal in potentially having a negative effect on the people they serve" and that before being granted a license to practice law, applicants should be required to undergo some sort of motivation testing.  I recognize and appreciate the fact that the United States is a free country and that the possibility of requiring such motivational testing is unlikely.  However, my area of practice is family law and the potential negative effect that lawyers with a "lack of sensitivity to human, emotional, interpersonal concerns" cause a great deal of damage to families and the children of those families are innocent victims.  That damage is sometimes irreversible and otherwise can take a great deal of therapy to reverse.   

In an article entitled, "Divorce and the Client's Emotional Needs: What Every Divorce Attorney Should Know", Dr. Deborah Hecker states, "Although divorce lawyers do not need to be trained psychotherapists to represent their clients successfully, they need to do what they can to reduce conflict and promote a divorce environment that helps their client remain focused, calm, and goal-directed. An empathetic divorce attorney can see through the anger, greed, and grief and not allow it to impede a successful legal resolution....  A divorce attorney who understands the psychological stages the client is experiencing can better promote adult behavior and provide quality legal resolution."

In 2002, the Section of Litigation of the American Bar Association prepared a report entitled, "Public Perceptions of Lawyers Consumer Research Findings". Among other things, that report found that "some consumers feel that lawyers do more harm than good.  This is particularly true of people going through a divorce.  They say that divorce lawyers can exacerbate an already difficult situation....  This idea does not just come from the media.  Personal experiences bear it out." 

After the discussion I had with my colleague wherein we discussed the mental state of attorneys, she published an article entitled, "Family Law Attorneys Can Make Or Break Your Case".  In that article, she references our discussion states, "My colleague made a great point. The more I do this, the more convinced I am that choosing the right attorney is one of the most important decisions you can make."

Historically, a lawyer's role was peacefully resolving disputes, not creating them.  A reversal of that role seems to have occurred as a result of a change in the type of individuals entering law school.  According to a June, 1997 article from the American University Law Review entitled, "Lawyer, Knowing Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism", since around the 1960's, "individuals who chose to enter law school have a low interest in emotions or others' feelings."  In 1984, in response to this change, 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."  Chief Justice Berger also stated that "The obligation of our profession is, or has long been thought to be, to serve as healers of human conflicts."  When he made those remarks, Chief Justice Berger was approximately 76 years old and had personally witnessed the change in the legal profession. 

I was recently involved in a case in which I was retained to defend my client against an attempt to obtain a restraining order against him.  The party seeking the order (the "Petitioner") alleged that she was fearful and afraid of my client, who was "bothering" her because he "seemed to feel that [she was] in his debt."  In her moving papers, which she signed under "penalty of perjury ", she stated that my client had given her some money ($25,000.00) and a car as gifts and that she "was never particularly close with" my client. 

In response, my client provided evidence of emails the Petitioner had sent him wherein she had said, "I love you very much", "Love you with all my heart", "My heart is bursting at the thought of seeing you",  and the like.  He also produced emails he had received from Petitioner wherein she stated, "THANK-YOU for rescuing me by lending me the attorney's fees", requesting to "borrow one of the cars", and an email that she had sent to her attorney and forwarded to my client which stated that my client had "financially supported the children and I since February, he has lent me money for legal fees etc as well as providing me with a vehicle."

In the responsive papers, I advised the Court that the case was "frivolous and without merit" and that the Petitioner's attorney had a conflict of interest "because of his apparent knowledge of her perjury and the fact that he may be a witness to that fact."  I requested the following orders:  (1) that the Court deny Petitioner's request for a restraining order; (2) that Petitioner's attorney be relieved as her attorney of record; (3) that Petitioner and/or her attorney be ordered to reimburse my client for all of his attorneys fees and costs; (4) that the Court report Petitioner to the authorities for perjury; and (5) that the Court report Petitioner's attorney to the State Bar of California for having knowingly allowed Petitioner to perjure herself.  Since the crime of perjury can only be reported to the authorities by a judicial officer, I stated, "Unless and until Courts appropriately penalize clients and their attorneys of record for such misconduct, the judicial system will continue to be used inappropriately by unscrupulous individuals and their legal representatives."

The Court denied Petitioner's request for a restraining order and ordered that Petitioner pay my client 100% of his requested attorney's fees, in the sum of $5,000.00.  However, the Court denied my other requests. 

I then took it upon myself to report Petitioner's attorney to the State Bar of California, which after reviewing the evidence advised me that it would not discipline the attorney, stating, "Although you may be correct that his client lied in her declaration prepared by [her attorney] regarding the loan of funds and the car as well as the claim of threats by your client, we would have to prove that the attorney acted in bad faith or presented a claim not warranted under existing law.  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."

Judges almost never refer a case to the District Attorney's office for a perjury prosecution.  "Persons who knowingly make such accusations [false allegations] are almost never subject to legal sanctions.  Casey Gwinn, a San Diego prosecutor and national authority on domestic violence, admits, 'If we prosecuted everybody for perjury that gets on the witness stand and changes their story, everybody would go to jail.'" 

Clearly, the system does nothing to discourage people from committing perjury.  I am of the opinion that unless and until Courts refer cases of perjury to the District Attorney's office for perjury prosecution and the District Attorney's office actually prosecutes such cases, "everyone that gets on the witness stand" will continue to commit perjury.  Since the judicial system is not known for its ability to always fetter out the truth, it might be a good idea if something were done to reduce the incidence of perjury. 

Furthermore, when sworn in as attorneys, we agree to faithfully discharge the duties of an attorney to the best of our knowledge and ability.  Among other things, the duties of an attorney include the following:   (1) "To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense";  (2) "To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law"; and (3) "Not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest."

The system might also improve if the attorneys remembered the oath that they took and if the State Bar actually disciplined those attorneys who fail to "faithfully discharge the duties of an attorney and counselor at law to the best of [their] knowledge and ability."

By the way, that attorney is now representing the Petitioner in an appeal of the $5,000.00 attorney fee order.  I do not handle appeals and will therefore not be involved in that matter.  However, it is my understanding that most appellate attorneys charge approximately $700.00 per hour.  Moreover, the prevailing party on an appeal is not entitled to be reimbursed for their attorneys fees by the other party.  Does anybody really believe that we have the best legal system in the world?  If people are so apt to lie under oath, what makes us think that people bother telling the truth when not under oath?

If you have a child custody issue or questions relating to a domestic violence restraining order, please contact Pasadena Family Law attorney Mark B. Baer, Esq. at Mark B. Baer, Inc. a Professional Law Corporation. 

On May 16, 2010, in a news story entitled, "Many tips on LA's child abuse hotline unresolved", the Los Angeles Times reported on the fact that thousands of tips (more than 18,000) go uninvestigated within the time mandated by the State, even though the deadline for completing such investigations was recently increased from 30 to 60 days.  In response, Troist Ploehn, the Director of the Los Angeles County Department of Children and Family Services (DCFS) blamed the fact that the Department is short staffed and stated, "All of the things that equate with quality do take time." 

There is no doubt that DCFS is understaffed, considering California's $20 billion deficit.  Regardless of the funds available to DCSF, the most appropriate allocation of its funding should be the investigation of allegations of abuse and neglect in those situations in which the children are still at risk.  Unfortunately, this is obviously not where the Department opted to properly apply its resources.  Once the children have been removed from a dangerous environment by DCFS, the immediate risk to the children is alleviated.  Therefore, resources could be cut from those divisions within the Department handling situations involving children already removed from a dangerous situation.  The County of Los Angeles admits that DCFS has approximately 7,000 employees and an annual budget in excess of $1.5 billion.  According to the Los Angeles Times, only 596 of those employees are emergency response unit workers.  Please bear in mind that Los Angeles is just one of 3,141 counties in the United States and is certainly not unique in its troubles.

The government is in no position to increase the DCFS budget in order to solve their purported problem with being understaffed.  Moreover, while DCFS may be short staffed, it is false and misleading to imply that if fully staffed, the Department would produce quality results.  Even if DCFS had all the time in the world and had all of its purported staffing issues resolved, quality would not be a term used to describe its results. 

I recently wrote a Blog entitled "False Allegations and Domestic Violence."  In response, an individual who works with Child Protective Services commented that "many things seem to slip through the cracks… within the Department" and about the lack of criminal prosecution for acts committed against spouses and children.  This particular individual speculated that the problem could just be "plain laziness."  Regardless of the cause, this individual admitted that "lives and families (especially the children) seem to pay the price....  When children are involved with the state, they are the ones to suffer the most."

Family law attorneys are well aware that DCFS is the last place any family wants to find itself.  In fact, many family law attorneys have their clients retain private attorneys who specialize in handling DCFS matters to try and persuade the case managers to close a file before one is ever opened in an effort to keep matters out of DCFS.  This is not being done in an effort to somehow protect these individuals for wrongs that they might have committed.  Instead, the reason for doing such things is because the family law court cannot make rulings on matters with open files in DCFS. With all of the problems in the family law courts, seasoned attorneys still know that the families and children are far better served in the family law court than they would be by DCFS.   

Even in those cases in which DCFS performs thorough investigations, they still manage to get it wrong.  It is luck of the draw whether the investigator assigned to a given case has seniority and is familiar with the ins and outs of the system and the likely outcome with regard to a particular child.  The investigators are not known for properly evaluating situations and could very well worsen a situation by taking a child away from the protective parent and placing the child in the custody of the parent most dangerous to that child.  It is also possible that DCFS could take children away from both parents for no good reason and based upon an improper investigation.  According to the Los Angeles Times, "more than a dozen children had died of abuse or neglect in each of the two previous years after coming to the attention of the department."  Moreover, the Department focuses on family reunification, but without making certain that sufficient safeguards are in place to protect the children. 

We must remember that those employed by DCFS are civil servants and that it is very difficult to be terminated from a civil service job.  I mean no disrespect for those civil servants who take pride in their work.  However, incompetence, inattention to duties, and misconduct are not uncommon terms used to describe some civil servants.  Even if competent, some civil servants are known to work very short days in order to accommodate their private practices and while being paid as full time employees by the government.  Colleagues and supervisors cover for those individuals because many of them are doing the exact same thing.  After all, if you scratch my back, I will scratch your back.  While the American public might keep quiet and accept this type of conduct by certain civil servants, when "lives and families (especially the children) seem to pay the price", that price is just a bit too high for my comfort. 

If you have a child custody issue or questions relating to domestic violence restraining orders, please contact Pasadena Family Law attorney Mark B. Baer, Esq. at Mark B. Baer, Inc. a Professional Law Corporation.