What’s up with these people who are so crazed about airport body scanners? Brian Sodergren, the guy who’s leading the pack, says he cannot stand the thought of the TSA taking images of his eight and ten year old daughters. Don’t let the government intrude in precious family life! (Even, apparently, if the price of non-intrusion is a greater likelihood that his daughters could be blown up by terrorists.)
It’s all part of the Tea Party anti-government, populist/libertarian rant: don’t tell me what to do, I’m a mama grizzly who can take care of my family, don’t tax me, and certainly don’t tell me I have to get health insurance. What’s so strange about the emergence of this growing chorus of “get-the-government-out-of-private-life” streaming live from the right, is that it coincides so perfectly with the era of nothing at all being private. Boundaries between public and private have melted away. It’s all out there on Facebook for the world to see. And hear, in public cell phone conversations. (My personal favorite: woman standing literally two feet behind me in line for the ATM one morning, on the phone to her doctor’s office: “Hi, this is so-and-so. I’m calling because I had unprotected sex last night. Can you write me a prescription for the morning after pill?” No kidding.)
Mr. Sodergren is a young guy; he’s part of the reality TV, tell it all to Maury Povich generation. And it’s this same generation who doesn’t hesitate for a moment to run to the government – embodied in the person of a family court judge – to decide not only where their kids should live, but to manage the nitty gritty details of their personal lives after divorce, e.g., who gets to spend Thanksgiving with the kids on odd numbered years, whether custodial exchanges should take place on Sundays at 6 or 6:30 p.m., and if it’s okay to sign the seven-year-old up for karate.
I am always amazed at how many people (not my clients of course, but their unreasonable exes!) are perfectly willing to involve the government in the micro-management of their children in this way. How does that compare on the intrusiveness scale to an anonymous body scan performed for the purpose of thwarting murder? I just don’t get it.
I just finished a big trial. Big because it lasted for three days and big because the issues involved are new. New for me, new for opposing counsel, new for the court. What’s involved is the break-up of a same sex relationship of 22 years, and a claim for financial compensation. If we were dealing with a married couple, this would be a no brainer. Our divorce laws are based on a social consensus that couples who commit to one another and live together and acquire assets and income during that period of commitment should share those assets and income when the marriage ends. This is the framework of the modern divorce code. So what if you can’t get married? What if you live together for 22 years and think of yourselves as an economic partnership and then the partner with the money/job/real estate/investments/pension ends the relationship? Does the partner without all that have any legal recourse?
The answer is a resounding maybe, as it’s fairly uncharted territory in Pennsylvania. In addition to same sex couples not having the protection of the divorce code, we have no civil union or domestic partnership laws either. So what we’re left with is the common law – those basic legal principles we brought with us from England. The common law cause of action which fits these circumstances is breach of contract. Not a written contract, but what’s called an “implied-in-fact” contract – a contract which can be determined from the parties’ words and conduct. Our job in representing the plaintiff in this case was to prove that a contract existed – that a promise was made, that the promise was broken, and that our client suffered damages as a result.
Because we were proceeding under a breach of contract theory, the case was not tried in family court. We were in regular civil court, where all non-family civil cases are heard, like car accidents and commercial disputes. But this was no car accident case. The emotion ran high in the courtroom as family and friends stepped up to the witness stand; there was testimony about sex, household chores, love and betrayal; there were tears and recrimination and anger. In other words, it was just like family court.
There was also discussion during the trial of a wide ranging body of law from states all over the country, including the famous 1976 California Supreme Court case of Marvin v. Marvin – remember “palimony?” Not surprisingly, California was in the vanguard in fashioning a common law breach of contract remedy for the very unmarried Michelle Marvin. Quite surprisingly, the Pennsylvania courts have been receptive to the reasoning of the Marvin case in the past. But in our case? Who knows.
No decision yet from the judge. We’re on pins and needles. Will report back.
Office Field Trip
Some law firms go on summer outings to the Phillies. Some have barbecues or picnics. We closed the office early yesterday and took a field trip to the movies. We went to see The Kids Are All Right – a fabulous and funny drama about married lesbian moms, their two teenage kids, and the introduction of the man who was their sperm donor into their lives. Fun you might say? This was work! We should have gotten Continuing Legal Education credits for the afternoon! And when Julianne Moore stood in front of her family at the end and made a speech about what hard work marriage is – which made most if not all of us tear up – we should be posting that on our website!
Our lawyers and non-lawyer staff alike love this stuff. That’s why we practice family law. We have lots of LGBT clients. We believe in the power of families – all kinds. What this film illustrates is how all families are fundamentally the same, even ones formed in non-traditional ways. In the film, the teenage children contact their biological father – their sperm donor – who ends up quickly forming relationships with the kids and the moms, in ways both positive and negative. This is a big issue for kids conceived by donor insemination, very similar to kids who are adopted: who is the person who genetically created them? Do they want to meet that person? Will it hurt the feelings of the parents who raised them if they do? Will they be disappointed? Will the donor view them as sons and daughters or as something less than that? Most fundamentally: who are their parents?
I recently drafted a sperm donor contract for a lesbian couple who are planning to have a child with a donor they know – a relative of the woman who is not going to be the biological mother of the child. That way, the child will have a genetic relationship to both moms. This has both great advantages and great risks. The point of the contract was to spell out everyone’s expectations clearly: that the non-biological mom would adopt the child so the two women would be the legal parents, that the donor was not going have any custody rights or any support obligations. What about disclosure to the kid? Should they tell him his mom’s relative is his bio dad? Who should get to make that decision? Who should get to veto it? There were many issues to think through and discuss. The law in Pennsylvania is uncertain so there is no guaranteed protection for the donor from being hit up for child support or for the moms from being made to share custody. But this may change – as a policy matter, there are many reasons some lesbian couples prefer a known donor. They want to know medical history, they want to actually know the person who is contributing half their child’s DNA, and, in some cases, they want that man to be more than a sperm donor, they want him to play a role in the child’s life, which they see as a positive addition to the family they are creating, not a threat to it.
Families are changing fast and our job as family lawyers is to stay ahead of the curve. It’s great to have Hollywood helping us.
Summer is in full humid sticky lazy force. Traffic is light on the way to work. The evenings are long and social. Court dates are continued due to vacation schedules. Opposing counsel will get back to you a week from Tuesday instead of tomorrow. In the world of civil litigation, the pace of work slows down. Not necessarily so for the family lawyer. Summertime brings a set of predictable crises which occur year after year.
One is vacation. One parent has a trip planned and the other does or doesn’t do something which interferes with the ability to take the trip. Dad doesn’t sign the consent form to get the passports. Mom is now hedging on the informal agreement to switch the schedule in the court order so that Dad can take the kids to his family reunion. Or one parent actually opposes the trip itself: the country is too dangerous to travel to. I have had two hearings in the past few years where the other parent tried to prevent my client from taking their kids to Israel – one time the judge let the kids go, another time not. Tensions run high as people worry that long planned vacations will be derailed.
Another is school choice. September looms and summer is showdown time for parents who don’t agree where their children should attend school in the fall. If they can’t come to some resolution, a court may have to decide, so negotiations amp up, and petitions get filed. School registrars get pulled into the fray.
What should be times of happiness and relaxation for families become anything but. This can take its toll on lawyers, too, who want to kick back and enjoy their own families. Since my kids left home I find that I work more (which is probably a good thing, given the cost of two college tuitions) and my clients’ lives and problems become more front and center, as I don’t have the welcome distraction of my own kids to attend to when I go home. I don’t think that’s such a good thing; I know that I’m better at my job when I have more of a balance in my life.
So this summer, to counteract that trend and center me back to home and hearth, I decided we should get a puppy. My college student daughter who is living at home this summer thought this was a great idea too; my husband, not so much, but he came around in a big way. The puppy – named Zakumi, after the South African mascot for the World Cup – is now three months old, adorable, and providing exactly the sort of balance I was looking for. I work hard, worry about my clients when I’m at work, then come home and we hang out in the back yard eating, drinking and playing tug of war with Kumi. Friends and neighbors stop by to meet the newest addition to the family. Kumi flops down in the heat and I do too, thinking lazily about how he’s trashed my flower beds but finding that I really don’t care.
I was talking to a cousin of mine at a family gathering over Memorial Day weekend, and the conversation turned to her adoption, as a girl, by her step-father. My cousin’s father had died when she was very young and her mother remarried a man who adopted her. Sounds good, right? The problem is that the marriage ultimately failed and he effectively ditched my cousin along with the divorce – she’s now in her forties and hasn’t seen him since she was 15.
My cousin said the thing she didn’t know, that she wished had been explained to her at the time, was that as a result of the adoption she would get a new birth certificate with her adoptive father’s name on it. The reality of her biological father was effectively wiped out – she had lost him to a tragic illness before she could ever know him and then his very existence as her father on the day she was born was erased and replaced by a guy who apparently considered her part of the package of a marriage that didn’t last, rather than a lifetime commitment.
People at the dinner table were astonished to learn that birth certificates are changed as part of adoptions. I share their astonishment. I was shocked by this practice the first time I handled an adoption. It seems so odd and so completely not legalistic: the intentional creation, by judicial decree, of a false document. It is not called an “adoption certificate;” it is called a “birth certificate” and it is a back dated, official “birth” record, which contains the name of two parents, at least one of whom was not in fact the parent at the time of the child’s birth.
Who are we kidding? What interests do we serve by issuing these phony documents? You can get prosecuted for using a fake ID at a bar when you’re 19, but somehow courts can wipe out one identity and replace it with a new one with total impunity. Same goes for a name change – the end result is a new birth certificate. And if you are transgendered and change your name to match your new gender, you get a new birth certificate which creates the fiction that you were born with both the name and the gender you became later in life.
I guess it’s all based on the intense privacy and secrecy surrounding adoption (and, certainly, changes of gender), the idea that these are dark secrets that must be protected from disclosure. But how did we end up getting the state in the business of literally rewriting history? Of obliterating identity? Why can’t we accept change – you were born with one set of parents, now you have another; you used to be a man, now you’re a woman. Life histories, in all their variety, deserve accurate recording. We can handle it.
When I was a baby lawyer, judges were the embodiment of authority: unapproachable white men at least two generations older than me who probably didn’t even have first names. Today, I often walk into court and someone who looks just like the girlfriend I had drinks with the night before is sitting on the bench wearing a black robe. What happened? I did get older, sure, but judges as a group – at least in the courts where I practice – have gotten younger, more female, and less white.
I remember distinctly the first time I realized a judge could be just like me. I was at a potluck dinner with parents from my younger daughter’s middle school. The mother of a good friend of my daughter’s had just been elected judge. She was fielding congratulations from the group. I asked her about her court schedule, and she described it, including how often she had chambers weeks, which are weeks when judges get a break from hearing cases so that they have time to do research and write opinions. Another mother asked what a chambers week was. The new judge – an African American single mom – said, without missing a beat, “that’s when you do your laundry.”
Having judges as peers has made me understand the extent to which the courtroom is a theater and each person in it, including the judge, is playing a part. When the guy on the bench seemed to be from a different, more powerful world than me, I didn’t think that hard about why I had to call him “Your Honor” and stand up every time I addressed him and be politely deferential even when he was ruling against my client, because it seemed the natural order of things – he was older, more powerful, often intimidating, and I was really still a young girl masquerading as a lawyer.
Now I know that the masquerade goes both ways. The elaborate rules of courtroom conduct and decorum do not reflect a natural order; they help maintain a socially constructed one. We’re all playing roles including those old guys I appeared before 25 years ago and who did, in fact, have first names.
Suppose your four year old tells you something very bad about their other parent. Suppose you completely believe what your child has told you. Suppose your child will not repeat what he told you to anyone else. Can you tell a judge what your child said? In general, no. Hearsay – meaning a statement made out of court by a person not a party to the litigation – generally cannot be admitted as evidence. So if I ask my client “what did your daughter tell you?” opposing counsel will respond, properly, “objection – calls for hearsay” and the judge will very likely sustain the objection. Meaning that my client will not be able to answer my question and the judge will never hear about the terrible things her child confided in her.
The policy behind the hearsay rule makes sense. Think about it from the other perspective. Suppose you’re a dad whose child supposedly (allegedly, in lawyer language) told his mother that you did something very bad to him. You know that you never did any such thing and your ex is just out to get you. If the mother is allowed to testify in court what your son said to her – but to no one else, including the judge – how could the judge possibly rely on that to rule that you abused your child? That would be so unfair.
But wait – go back to the first scenario. Your child is very young and he couldn’t possibly have made up what he told you, but he won’t tell anyone else because he’s shy and doesn’t talk to strangers, including the judge. And there’s no other evidence that the abuse occurred – no one else saw it, there is no medical evidence. Under these circumstances, the judge will likely be compelled to conclude that nothing happened and your child will go right back into a situation you are convinced is dangerous for him, i.e, back to an abusive parent.
I’ve been involved in these types of cases a lot recently. When I was a law student studying the rules of evidence a zillion years ago, I had no clue about the real life repercussions of the hearsay rule. They’re huge.
Client vs. Friend
Recently, a client I like a lot invited me to a party celebrating the one year anniversary of her divorce. That was a first for me, but I went and had a great time. It made me think about the issue of friendship with clients. When I represent a client in a divorce, I get to know the person really well in a certain way. I accompany them through an incredibly stressful time, and in the process I learn essential things about their character and personality: Is she strong or is she fragile? Is he honest? How does she prioritize money vs. conflict? I also, of course, learn a tremendous amount about the details of the person’s life, including things I don’t know about some of my closest friends. I know how much money is earned and how much debt incurred; I know about affairs, addictions, sexual problems, mental health issues.
Over the course of my years in practice, there have been a number of people I have come to respect and enjoy so much as clients that I find myself hoping we can be friends when their case is over, and I have successfully made that delicate transition a number of times. It’s kind of odd. Inevitably, we start out the friendship with what seems like a very uneven playing field because I know so much about them and they know so little about me. (Which I make a point of – I am super conscious of not making more than passing references to my husband and children when talking to my clients, first of all because it’s inappropriate for me to speak about anything other than their case when I’m billing them by the tenth of the hour for my time, and second of all because I figure the last thing someone getting divorced wants to hear about is someone else’s happy family life.) So there’s lots of catching up to do in that regard.
But in another sense, there’s not. We have been through an intimate and life changing time together where I have served as counselor and advocate, in and out of court, and they have seen me do what, hopefully, I do best; they have an understanding of and appreciation for the professional side of my life that my other friends and family do not. So we each have a connection to the other that we don’t have with other friends.
One of my best friends, Laurie, was a client. As we began to get close after her divorce was over, she called me up and asked if it was okay if she and her new husband bought the house across the street from me or if I would feel like she was stalking me. She was joking, of course (because I think she really knew I’d be thrilled), but she was acknowledging that even though the boundaries which exist between lawyer and client had changed, she wanted to take my temperature as to how much. That was quite a while back, and now we’re old friends. We have watched each other’s houses, kids and dogs, we trade advice, food, tools and we even have joint custody of a roasting pan. Just like any other close friend and neighbor, except I think the bond is a little deeper between us because of what we experienced during that difficult time in her life those many years ago.
The New Year’s Resolution
Okay, so it’s a little late, but here I am, inaugurating a blog about family law as I live and breathe it. My resolution for 2010 is to share stories from the trenches and ideas from the tower about the practice of family law in Philadelphia at this particular time on earth. It’s so endlessly interesting – the complexities of relationships between parents and children; the strategic approaches lawyers need to take with different judges; the ever expanding definition of what constitutes a family; even the lousy day in court – what happened? Why? And then there’s Joe Hoeffel running on a pro-gay marriage platform for governor of Pennsylvania – mind boggling. There’s so much to talk about.
And why did it take me so long to act on my New Year’s resolution? Because of all of your New Year’s resolutions! Every year, starting at 9 a.m. on January 2nd, multitudes of people call our office – new clients or clients who met with us long ago but put everything on hold until the holidays are over. Or those who made the decision during those long holidays that Never Again would they be spent with this particular spouse. Getting divorced must surely be the second most common New Year’s resolution after going to the gym. So I have been very very busy helping these clients move their New Year’s resolutions forward and I am just getting the breathing space to pay attention to mine.
Happy New Year and welcome to familylawunraveled!