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."

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.

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, "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."

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." As Pamela Edwards-Swift stated in her article entitled, "Family Law Attorneys Can Make Or Break Your Case," "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."

The failure of our society to recognize the similarity between the emotional vulnerability following the death of a spouse and that following the death of a marriage causes people to hire attorneys who are unwilling, unable, or incapable of properly managing their emotions.

As mentioned in the article by Pauline H. Tesler, M.A., J.D. and Peggy Thompson, Ph.D., "The resulting 'bad divorces' harm everyone and serve no one well. They are very costly; they fail to plan intelligently for the future; and they inflict psychological scars on both the adults and the children."

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

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."

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.