Continuing Education for Lawyers

“Should Lawyers Be Required to Take Continuing Education Courses on Human Mental Processes?”
Should Lawyers Be Required to Take Continuing Education Courses on… huffingtonpost.com

Discussion on Linked In Association of Family and Conciliation Courts, October 2013

Mark B. Baer:

I really think that everything is a matter of perspective. I am licensed to practice law in California and have always lived here. “California has one of the lowest MCLE hour requirements in the country. Only Alaska and Hawaii, which require three hours a year, are lower,” (http://www.calbarjournal.com/August2013/TopHeadlines/TH3.aspx ). It has been found that the decrease in MCLE requirements as a result of lawyer lobbying was detrimental to everyone. Thus, the Bar has decided to increase the requirement to the level that existed before lawyers successfully had it reduced. Live and learn!

Herbert Buetow:

In Illinois attorneys who practice family mediation are first required to take a one-week course before becoming certified by the respective counties. As an attorney and former psychiatric social worker/family therapist, I believe the course to be very educating and most helpful. However, It is only a beginning and any responsible professional needs to continue to educate themselves in their area of practice.

Philip Marcus: 

While I accept that imposing requirements for continuing education courses on lawyers may be seen as restricting their autonomy, they have become accepted practice in many jurisdictions, The reason is usually dissatisfaction with the level of functioning of lawyers in a particular field.

But I think that the point Mark and others make is valid: lawyers (and judges) dealing with family matters are duty-bound to keep themselves up to date with the social and behavioural sciences, in the same way as family therapists or developmental psychologists, for example, should know about the legal framework in which they practice. This does not mean that we should each be experts in all the relevant fields, but in does ensure that a lawyer will not think that a person with borderline personality disorder lives near the frontier between the US and Mexico, or that a mental health professional will think that a motion is connected with the lower digestive tract.

One warning, however: the mental health and therapy fields are notorious for the manifold schools of thought and often contradictory ideas. Thus anyone putting on a training course or lecture, or anyone who wants to inform himself, should make sure that the material studied is close to the mainstream,

Claims for Equal Time

In your opinion, how young is too young for week-about access?

Question posted by Gary Direnfeld, Social Worker, Guest Expert – Radio/TV (family life, marriage, divorce), Media Personality, Writer/Author, Columnist

Discussion on LinkedIn Family Law Professionals, August – September 2013

Linda Hammerschmid:
Not sure what you mean by week-about access, but in my humble opinion, unless contra-indicated, children are NEVER too young! Why? Because intact couples take their newborns out, in numerous cases, the day after the birth—visiting family and sundry. If it is OK then it’s OK anytime for either parent to take THEIR child out and about. The child belongs to NEITHER one of them exclusively.

Philip Marcus:
The answer, of course, is: It depends.
The starting point is the concept of Parental Responsibilities – see my article: Parental Responsibilities: Formulating the New Paradigm for Parent-Child Relationships 

There has to be an assessment of the needs of the individual child, and also of the ability and availability of each parent to supply each of those needs. I agree with Linda, that neither parent has exclusivity, and a few years ago there were some articles in Family Court Review, including one by Richard Warshak, about Blanket Restrictions.

Farley Tolpen
As a mediator and family lawyer, my understanding of an infant is that the infant has no understanding of time. Therefore, the infant should spend the majority of the time with the primary carer and have lots of quality time (4-5 visits/week for 1-3 hours). The reason is that there will be a loss of contact with the primary care-taking parent as well as a loss of a familiar and comfortable environment. Overnights are not recommended with the non-primary carer. After that or around 2-2-1/2, you can start introducing overnights and build to shared care around 4-5 years old. That is the way the Australian law is generally applied with a presumption of shared care with certain requirements. I do not believe shared care works or should be applied for infants and studies at least in Australia shows negative results if tried

Susan Cook:
So here’s the question I’m left with, what do we do about all of the parents who are living together intact and trading nights of work to save on daycare costs. If parents can share custody and get along and be appropriate, what is the difference, or are we telling parents who shuffled their time that they are damaging their children? do we ban intact parents from shuffling their work hours to accommodate the financial savings?

Philip Marcus:
The Norgrove Final Report (at para. 4.40) was very clear that: “Government should find means of strengthening the importance of a good understanding of parental responsibility in information it gives to parents. No legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents”. So I am worried that if the provision in the recommendation is left out of the legislation, Judges will have a hard time fending off claims for equal time.

As I point out in my paper Parental Responsibilities: Formulating the New Paradigm for Parent-Child Relationships  there is no room for formulae which appear to release the parents and the court from a full investigation of the needs of the individual child and the abilities and availability of each parent. Shortcuts, including the assumption that shared parenting means equal time regardless of quality, and the approximation rule, which tries to copy the pre-parental split time divisions, may be attractive to lawyers and busy judges. But they subvert the duty to decide, on the basis of the facts of the individual case, including, as I have pointed out, the personality and sensitivities of the individual child, in the best interests of the child.

So legislation and court judgments must be drafted with great care.

Respect for a Child’s Welfare After Parents Separate

A vegetarian mother who stopped her five year-old son from seeing his father because she feared he might feed him meat must let him see the child or lose custody, a judge ruled.
Source: Vegetarian mother stopped father seeing son in case he fed him meat – Telegraph telegraph.co.uk

Discussion on LinkedIn Family Law Jurisdictional Comparisons, September 2013

Diego Horton:
It’s amazing to see how she got away with it for so long (more than a year). Impeding parental contact in Argentina is a criminal offence, apart from the unrepairable damage caused both to the child and his father.

Philip Marcus:
I like the title Hazel gives to this post. The central issue is the child’s needs, and the obligations and responsibilities of on both parents is to comply with the order of the court relating to those needs when they have not been able to reach agreement.

This does indeed boil down to respect for the child’s welfare.

Bill Eddy’s work seems to indicate that many of the perpetrators in this area have personality disorders, and in my experience, only tough action by the courts will bring them into line.

Diego – is it possible to get a translation into English of the relevant provisions of Argentinian law, and some idea of the penalties usually imposed?

In Israel the matter is sometimes dealt with by imposing a fine, to be paid to the parent whose visit is denied (although where the denying parent is not wealthy, the child may lose out), or imprisonment under the Contempt of Court Ordinance. The threat of imprisonment is in many cases sufficient to ensure compliance.

Justice James R. Williams of the Supreme Court of Nova Scotia, Canada, spoke about his method – on the day following a scheduled visit, the parents are ordered to appear in court at 8:30 a.m., and the denying parent is warned to come with all his/her needs for a week in prison, if the visit did not take place.

I also agree that a year is a long time for a child to be out of contact, and that “flipping”custody needs careful preparation and follow up by mental health professionals, not least so that the parent responsible will not be viewed by the child as a martyr, or, on the other hand, rejected entirely

Impact of Affairs on Children

Knowing how minor children may feel when one of their parents cheats on the other, shouldn’t such things be taken into consideration when parents, their professionals, or judges design parenting plans?
Mark Baer, Lessons I Learned From My Parents: Part II huffingtonpost.com

Discussion on Linked In, August 9, 2013

Philip Marcus:
In my article on Parental Responsibilities, I devote considerable space to what I see as the duty of parents and courts to have children express their views and to give proper weight to them, according to the child’s maturity. Of course, this needs to be done with great care and sensitivity, but Article 12 of the Convention on the Rights of the Child mandates this.
Parental Responsibilities: Formulating the New Paradigm for Parent-Child Relationships

In Israel we have a chapter of the Civil Procedure Rules which provides how the voice of the child is brought before the court. I will be happy to provide an English translation and explanations on request.

Mark B. Baer:
Thank you so much for sharing your wonderful article with us. Many of the concepts I have written about as separate articles are tied together in this one cohesive and thoughtful article.

Can Divorcing Parents Share the Nest?

Creative parenting arrangements can take many forms, one of which is nesting. In a nesting arrangement, the children are the ones who “keep the house” while the parents take turns living there. For many families, nesting allows for the least possible disruption at a time when so much is changing in their lives.  But it’s not for everyone.
(Discussion started by Eileen L. Coen, J.D., Mediator, author of divorcethatworks.wordpress.com)

Discussion on LinkedIn Family Law Professionals, June 2013

Philip Marcus:
As a Judge hearing applications for exclusion orders, I sometimes used this technique, which does indeed protect the children from the feeling that one of the parents is all bad and one all good, and from having to move overnight to unsatisfactory temporary accommodation.It also persuades the parties and the children that it is better for the parents to separate. But there need to be clear arrangements so that:

  • the party at home does all home centred care arrangements, or gets someone reliable to do them, including laundry, etc.; this may include use of the family car for transporting the children, and if so the tank should be full on transfer;
  • locked cabinets for private documents, clothing and other non-joint property, and undertakings not to pry (including to pass on letters unopened) and to answer phone calls neutrally -“X is not here right now, you can call on this number….”;
  • the adults do not meet at the changeover, to avoid arguments;
  • that the party leaving has to clean up;etc

It is best to limit such arrangements to a short time, to encourage the parties to work promptly towards a more permanent arrangement.

AJ Johnston:

While it is a good interim solution, children need a stable, permanent solution.

Custody of Children & Sharia Law

When Should the U.S. Return A Child to a Country In Which Sharia Law Might Be Applied?

Discussion on LinkedIn Family Law Professionals Group, June 2013

The Federal Court of Appeals for New York weighs in on whether a U.S. court must order a child returned to a “country of habitual residence” when that country is a signer, with the U.S. of the Hague Convention on child abduction, but which might possibly apply Sharia law to the adjudication of the custody dispute. Thanks and the usual hat tip to Prof.Volokh.
From familylawguy.blogspot.com

Bonnie Riley:
Is there a country governed by Sharia law that is also a party to the Hague Convention? Last time I looked, there wasn’t.

Richard Gould-Saltman:That’s exactly the issue in this case. Singapore is indeed a Hague signator (see p. 9, footnote 4 of the opinion) AND, to my surprise, there is at least some application of “Syariah” (Shariah) law in the family law context in Singapore, though how certain that is, absent consent of both parties, is unclear.See also http://www.law.emory.edu/ifl/legal/singapore.htm

Philip Marcus:
There are many countries (including Israel) where Sharia courts have at least parallel jurisdiction in custody matters.

The scheme of the Hague Convention assumes comity, and therefore the section 13(b) defence is, as the Appeal Court found, inappropriate. It is no part of the courts of one country to criticize in general the proper law in another country.

This said, where in a specific case, the court of the requesting country has made, for example, a custody decision without due process, e.g. not giving a party notice of the proceedings or a hearing, or has determined the matter without obtaining information as to the welfare of the child, it may be that the court should refuse relief on the basis of breaches of the Convention on the Rights of the Child or overarching due process considerations; but these will not fall under article 13 (b).

In my view, and that of many judges around the world, it is the move itself (and not the possible result of legal proceedings) that has to constitute the danger. There is a discussion whether the likelihood of harm being caused to the child by the petitioner parent constitutes a 13 (b) defence; but where suitable orders (mirror orders) can be obtained for protection of the child (and the abducting parent, where necessary), the defence is often rejected.

NIMH withdraws support for DSM-5

The National Institute for Mental Health has withdrawn support for DSM-5

With many mental health organizations questioning the validity of the DSM-5, can it be relied upon in child custody matters? It seems the validity of the DSM has been in question for years.

Discussion on LinkedIn Family Law Professionals group, June 2013

Just two weeks before DSM-5 is due to appear, the National Institute of Mental Health, the world’s largest funding agency for research into mental health, has indicated that it is withdrawing support for the manual. The latest development is a humiliating blow to the APA.
Read the full story: The NIMH Withdraws Support for DSM-5 psychologytoday.com

Susan Cook:
I, for one, am ecstatic that the “bible” is being taken in to question by an authority. I use to do mental health assessments for criminal court and case management for a national mental health association. It was incredibly frustrating to see people with diagnoses that just didn’t make sense but fit the 5 criteria (sometimes very loosely). Active children or children going through troubles at home being labeled ADHD, clients receiving government benefits simply because they knew what symptoms to relate to the doctor. It has gotten out of hand and needs to be reined in some how.

AJ Johnston:
I also am happy that the DSN is being put into question simply because it is important that folks leave their minds open and not accept it as THE ANSWER. Mental Health has so many components. Economics, locale, culture, social moraes (sp?), law are just a few components to name. Jungian, Freudian, etc., are just schools of thought. Emotions are complex. Layer medicine and drugs on too and it is getting to sound like scrambled eggs..

Philip Marcus:
Eitan Schwartz posted this here a few days ago, so it seems that the NIMH and the APA have buried the hatchet, unless I am sorely mistaken.

A good definition of modern psychiatry
The Voice of the American Psychiatric Association and the Psychiatric Community, Lieberman, Insel Issue Joint Statement About DSM-5 and RDoC
“APA President-elect Jeffrey Lieberman, M.D., and National Institute of Mental Health (NIMH) Director Thomas Insel, M.D., issued a joint statement today about DSM-5 and NIMH’s Research Domain Criteria (RDoC) project. In the statement, they acknowledged that along with the International Classification of Diseases, DSM “represents the best information currently available for clinical diagnosis of mental disorders” and that the two publications “remain the contemporary consensus standard to how mental disorders are diagnosed and treated.”

“Yet, what may be realistically feasible today for practitioners is no longer sufficient for researchers,” they said. “Looking forward, laying the groundwork for a future diagnostic system that more directly reflects modern brain science will require openness to rethinking traditional categories. It is increasingly evident that mental illness will be best understood as disorders of brain structure and function that implicate specific domains of cognition, emotion, and behavior,” which is the focus of the RDoC initiative.

“All medical disciplines advance through research progress in characterizing diseases and disorders. DSM-5 and RDoC represent complementary, not competing, frameworks for this goal,” they said. “DSM-5, which will be released May 18, reflects the scientific progress seen since the manual’s last edition was published in 1994. RDoC is a new, comprehensive effort to redefine the research agenda for mental illness. As research findings begin to emerge from the RDoC effort, these findings may be incorporated into future DSM revisions and clinical practice guidelines. But this is a long-term undertaking. It will take years to fulfill the promise that this research effort represents for transforming the diagnosis and treatment of mental disorders.” Lieberman and Insel concluded the statement by saying APA and NIMH “are committed to improving the outcomes for people with some of the most disabling disorders in all of medicine.”

In my experience as a Judge in Family Court, DSM-IV was useful to understand what mental health professionals were talking about when they used certain terms, but the entries in DSM were only part of the story, and had to be combined with all the other evidence in the case and the parties’ submissions and the law, before giving judgment.

One Judge Preferable in Family Law Cases

Discussion on LinkedIn Family Law Professionals, April 2013

The family law system is changing drastically and is in need of a process where matters are handled by a single judge trying to bring about a cost effective and efficient resolution, says Toronto family law lawyer  Shelly Kalra on Advocate Daily (link no longer available)

Mark Finn, Senior Lawyer at McKean Park, Melbourne:
This does occur in the federal Magistrate’s Court in Australia where on a first hearing date the case is docketed to that Judge who deals with each stage of the case from beginning to end. This process provides consistency and continuity.

Philip Marcus:
The Israeli Family Court Law of 1995 mandated One Family – One Judge. This means that each new case filed in court is assigned to a specific Judge, and that Judge will continue to deal not only with that case, but also with all other cases, whatever the issue, between members of that family. This means that the Judge gets to know the personalities involved, and saves valuable time since a new (assiduous) Judge would have to read all the papers and have the matters at issue explained to him. Added to this is the wide jurisdiction of the court to deal with all matters between family members, so long as the issue arose from the family relationship. 

For example, I gave judgment in a claim arising out of a cheque given by a man to his brother, ostensibly a regular civil case arising from a Bill of Exchange. However, the plaintiff was known to me in the context of a previous application to appoint a guardian for his elderly mother; he had also sued the defendant and his sister and brother -in-law for assault; another sister had been before me when she applied for an exclusion order against her husband, and thereafter I dealt with her property, maintenance and custody claims; and there had been before me exclusion applications brought against two other brothers, each of whom had alleged assaults against the mother.

Another advantage of assigning a case to a Judge at its inception is that the Judge can assess the urgency of conducting a hearing and get an urgent case sceduled as he sees fit; in addition, he can act as case manager, and deals with all interlocutory applications, such as appointment of experts, interim orders, and the like.

So I can strongly support, on the basis of 17 years of experience as a Family court Judge in Jerusalem, the idea of what is called in England “Judicial Continuity”.

Peter Singer, Family Dispute Resolution Facilitator, Arbitrator:

Sadly though, Philip, judicial continuity here in England (and Wales) seems less and less likely to happen. It has been high on the agenda for years, but (for practical reasons which appear insurmountable) can really be achieved. 

This is one reason why, in relation to the family finance cases in this jurisdiction, arbitration may well prove increasingly attractive. We started our scheme a year ago and, as might have been expected (and was the experience both in relation to mediation and collaborative law) there has as yet been relatively modest take-up. But for parties to be able to choose their own arbitrator to decide for them issues which, for whatever reason, they can neither negotiate nor mediate, is in itself a huge plus: magnified by the fact that they will have “arbitral continuity”, and will not find themselves before a different judge at each hearing along the way.

Those who wish to learn more might care to take a look at the website (in which I have an interest), FamilyArbitrator.com

Philip Marcus

If I am not mistaken, Peter, (and it may well be that I am not sufficiently up to date with how things stand today), the practical reasons for your pessimism about judicial continuity in England and Wales boil down to two matters. 

The first is the three entry courts for family matters, the Domestic Proceedings Courts, at the Magistrates Court level, the County Courts, including the Principal Registry in London, and the High Court, coupled with the ease of transfer from one level to another. I sat in on a case in the Principal Registry a few years ago where the District Judge was the fifth Judicial officer to hear the case in the space of 3 months, the case having been initiated in a County Court outside London, transferred to the High Court, and then transferred to the Registry. (In Israel where one court is found to be without jurisdiction and the case is transferred, the transferee court is debarred from sending it on).

It would seem that this problem can be overcome if, as I understand has been proposed, a case will be allocated to the appropriate level soon after it is opened, and by restricting the grounds for transfer so as to make it possible only in extraordinary circumstances. In this way, a Judge of the appropriate level can take charge. Taking charge by the courts was one of the objectives of the Woolf reforms.

The other issue is that at the High Court level, at least, cases reach a High Court Judge only at the stage when it is ready for trial, coupled with the use of Deputy Judges for specific trials. This is a tougher nut to crack, but it may be possible to know in advance which Judge is going to try the case, and at least allow him some pre-trial involvement.

It may be that judicial continuity will need to be implemented stage by stage, but the principle is, as I said, a good one for all manners of reasons, not the least for economic benefits.

Facebook used to serve court papers in legal first?

Discussion on LinkedIn Family Law Forum, December 2012

Venisha Shah, Family Law Partner at The Law House, London, United Kingdom
An article from our morning newsletter news round-up descibes how Clarion has successfully served court papers via Facebook in a legal first! This struck me as very interesting and raised a lot of issues that group members might have some valuable opinions on. Do you see this as a beneficial step or a horrifying missaplication of a social networking site? As family law providers where do we go from here?
(Source: http://www.thebusinessdesk.com/yorkshire/news/393003-facebook-first-for-clarion.html?news_section=54011)

Philip Marcus:
In a way, service by Facebook is likely to be more effective than traditional methods of substituted service. There is no obvious reason to presume that the respondent, or someone who knows him, is going to read a small announcement on an inside page of a specific newspaper on a specific day, or that he or someone close to him is likely to look at a specific notice on a Court noticeboard. At least a person’s Facebook page is directly associated with him.

Malcolm is right – the judge has to be satisfied that substituted service is justified, on the usual basis. As far as confidentiality is concerned, and in particular the risk of identification of children, the practice in Israel (where all Family proceedings are in camera and there is a ban on publicity) when publicising an order for substituted service is to give only the essential information: the name of the Court, the name of the respondent, and a brief description of the process (“Proceedings have been brought against you relating to maintenance/children/property…”) and the address and time limit for filing a response.

 

Protective Orders – Fraudulent & Self-Serving?

Family Law Forum on LinkedIn
Discussion & Survey

Raised by Erik K. Johnson, Principal at Utah Family Law, LC, Greater Salt Lake City Area

Question:  What percent of protective orders (orders of protection, whatever your jurisdiction calls them) in domestic relations cases do you believe are sought fraudulently and/or for self-serving purposes?

  • More than 75% (20%)
  • More than 50% (10%)
  • Less than 33% (10%)
  • Less than 25% (60%)

Philip Marcus:
In Israel, where I served as a Judge of the Family Court and dealt with hundreds – maybe more – of applications for protective orders over a period of 17 years, my impression is that far less than 25% of the applications were totally without merit.

But the Family Courts Law of 1995 provides for two important institutions which help families, including where an application for a protective order is filed.

The first is a Support Unit, staffed by experienced social workers and with access to a psychologist and a psychiatrist, and attached to the Court – usually with offices in the same building. This means that a Judge who receives the application, and thinks the application is incomplete or unconvincing on paper, can call in a social worker to speak to the applicant before the application is heard ex parte, and obtain more information. Also, if an order is made ex parte, the Court must conduct an inter partes hearing within 7 days, and I used to refer the parties in all such cases to the support unit, where in more than 50% of cases the parties reached agreement.

The second institution is One Family One Judge. Where any case is filed it is referred to a specific Judge, and any new applications or claims are filed by the same paries or one of them, they are allocated to the same Judge, who thereby acquires detailed knowledge of the parties, the problems in the family, and the personality of the family members involved.

So it is important to distinguish between a protective order application which is the first action brought before the Court, and an application made when there are other proceedings pending. In a first time case, the Judge relies on the application and the applicant – and the support unit if they are involved; and, of course, on his experience and instinct. But there is an important point that must not be ignored: whether or not the application is well founded, a first application indicates that the family, including children, is in distress, and early involvement of a social worker can help to identify the causes of the distress and refer the parties to treatment and/or Dispute Resolution services.

Where an application is made where there are other cases pending, or even after previous cases have ended, because even in such cases the new case goes to the same judge, it is usually easier to weed out the unjustified applications, since the judge can assess, on the basis of his knowledge of the parties, what are likely to be the ramifications of a protective order for other pending cases and the reasons for the application and its timing.

I hope this is helpful

Eric K. Johnson:
Philip Marcus’s comments are indeed helpful. Thank you so much for sharing your experiences in the jurisdiction of Israel. What a unique perspective.

Philip’s comments underscore the point: protective orders themselves are not (and never have been) the real problem. The problem is how ludicrously easy it has become to get a protective order regardless of MERIT. Jurisdictions with procedures for screening, and which do more than give lip service to those procedures will surely have fewer fraudulently sought and even fewer fraudulently granted protective orders. Would anyone disagree?