Divorce In The Digital Age Part II

baby biting ipad

The Attorney – Client Digital Relationship

It is important for the attorney and client in a family law matter to establish the means of communication between lawyer and client. Are e-mails permitted at all hours? When will they be reviewed and responded to? With e-mail communication, it is imperative not to “send” too quickly. One must not only watch for auto-correct which changes words but also incorrect e-mail addresses, e-mails being sent to unintended parties, or a string of e-mails being erroneously sent because it is attached to a line of e-mail communication. Group e-mails can be particularly problematic in mediated or family cases. Pressing “reply all” may include the other spouse in the case, or all professionals that the original e-mail included. It is unethical and can have dangerous repercussions in a divorce case for one spouse to send his or her lawyer, the digital communication and attachments that were exchanged between the spouse and that other spouse’s attorney. Such information is confidential. The lawyer receiving such information may have a duty to notify the other spouse’s counsel and/or the court. The lawyer may seek to recuse him or herself from representing a client who obtained and sent such communications. If a family law attorney utilizes such attorney-client information, he/she may be sued, and face disciplinary action. Although face-to-face consultations and a personal referral may be best to find a lawyer, obtaining information concerning the legal process of divorce has changed. The internet has a vast amount of lawyer and legal websites, attorney reviews, blogs, e-books, apps, and videos. An office of court administration, bar associations and non-profit organizations also provide online information. There are apps that calculate child support and maintenance amounts, interactive worksheets and instant lawyers/matrimonial professionals that appear on a screen or respond digitally within minutes to your immediate questions. There are online support groups and chat rooms concerning divorce. Software has been developed and is available that assists parents and children post-divorce concerning communication, calendars, scheduling, coordination between two households, and the paying of children’s expenses. Of course, internet dating sites and apps for divorcees presents its own subculture of advantages and dangers.

Family cases involving divorce and custody contain sensitive and personal information. Whereas e-filing is permitted in most cases, New York State and other jurisdictions do not permit e-filing in matrimonial and family cases. The exchange of documents between lawyers and obtaining documents from clients is being done by flash-drives, dropbox, and attachments to e-mail. Hopefully the days of carting box loads of paper and killing trees are dwindling in matrimonial matters. Many judges are accepting parenting plans, briefs, and other submissions by e-mail even when there is no e-filing through the court system. It is also important to ascertain if a matrimonial law firm will be storing private client files in the cloud, and the level of security.

The Forensic Computer Expert

The divorce process has become most effective as a team approach. The original members of the team included the spouses and the attorneys. Thereafter, mediators, mental health professionals, accountants/financial planners, and vocational experts were added to address conflict resolution, psychological, tax, retirement and employment issues. The forensic computer expert is the newest member of the team. Computer forensics is a branch of digital forensic science concerning legal evidence found in computers or other digital storage media. The discipline involves similar techniques and principles to data recovery, but with additional guidelines and practices designed to create a legal audit trail. A computer forensic expert preserves, identifies, extracts, documents, and interprets computer data so that it can be used in a legal case.

Preservation of computer files concerning finances is usually required in a divorce case. During preservation, data identified as potentially relevant is placed in a legal hold. This ensures that data cannot be destroyed. Once documents have been preserved, collection is the transfer of data from a person or business to legal counsel and possibly a judge or mediator who will determine what computer files are relevant and not protected as attorney-client privileged material or attorney work product. The data will be provided to a spouse’s attorney if it is relevant and not protected. If a computer is considered a “family” computer, it is not considered private. One’s spouse will be permitted to obtain access to the files stored in that computer. The rational is that a home computer is similar to a file cabinet. In matrimonial cases there usually is full disclosure provided concerning finances. If financial information was inappropriately obtained by computer hacking the court might still permit the financial information to be a part of the case if such information was supposed to be exchanged.

The Futuristic Divorce

Custody disputes over pets has emerged, will pet robots be next? Will information from the family robot or computer chips appear in forensic psychological reports? How about space travel terms in parenting plans? Will mediators, judges, collaborative attorneys, and financial accountants be able to obtain financial records, research and legal documents with a “ blink of an eye” due to the internet and computer files appearing on contact lenses? We already have Google glasses, and Oculus glasses for virtual vacations. Hardware may become a dinosaur. With chips implanted in our walls, roads, and medicine cabinets, voice-activated information and images could appear anywhere. Gadgets are on the market, which provide access to the internet, digital information, and monitor health in watches, jewelry, clothes, and wristbands. Driverless cars and electromagnetic transportation may change the way we spend time with our children.

I remember twenty years ago fierce conflicts between spouses over who gets the family photos. With digital photography, such disputes are relics of the past. With 3D printers, programmable matter, and nanotechnology, exact replicas and new customized consumer items may be produced easily. Will the nature of marriage and relationships change personal bonding and the development of intimacy by an increasingly virtual connection?

Legal contracts concerning assisted reproductive technology and frozen embryos already exist. Will mental illness and special needs children lessen due to advanced genetic screening, neuroscience and use of stem cells and gene therapy? Will parents have to make decisions whether to utilize genetic and robotic enhancements to their children, which will increase intelligence, talent or physical ability? Currently, one is sometimes permitted to appear for a mediation conference, court appearance, collaborative session or deposition in a matrimonial matter by video conferencing. Perhaps in the future, holographic images of ourselves will be present. One thing is certain, science and technological advances will continue to impact family life and law.

Posted in Uncategorized | Leave a comment

Divorce In The Digital Age Part I

baby biting ipad

Social Media Can Be Harmful In Custody And Parenting Disputes

Photos and postings on Facebook, Twitter, Instagram and other social media sites can be used by your spouse, attorneys, and other matrimonial professionals to collect information, demonstrate irresponsible parenting, and instability. Disparaging remarks on the internet about the child’s other parent can show a failure to cooperate with the other parent. Failure to foster the child’s relationship with his or her other parent is a key factor in damaging children or losing custody. E-mails and text messages between parents, spouses, or significant others need to be done with care. They are often quoted or attached as exhibits in court documents or shown to mental health professionals in a family law matter. It may be best to be brief, informative, amicable, and firm in digital interactions with a difficult, explosive, or passive-aggressive person. A parent coordinator that monitors the e-mails and communication between parents is highly effective to reduce conflict. Many family lawyers/divorce professionals will advise people to stop social media during a custody or divorce situation so as not to inflame or compromise the already delicate and fragile family dynamics. It should be noted that in New York State and other states it is unethical for an attorney to anonymously “friend” their client’s spouse/other parent in a divorce or family matter.

One of the best uses of technology is to enhance the relationship between a geographically distant parent and child. Regular skype, facetime and other methods of video chatting has connected and sometimes cemented a child’s relationship with a parent, extended family and other people who are important to a child. We are a mobile society. Relocating or traveling for work or education is quite common. Real time video communication, seeing each other’s faces, or sharing a child’s favorite book is priceless when there is no other way to be physically together.

Cyber Abuse Is A Form Of Domestic Violence

Cyber attacks are not just against corporations like Sony. One may be a victim of cyber abuse from a spouse or intimate partner. One in four stalking victims have been cyber-stalked. Cyber abuse includes but is not limited to threats, name-calling, and derogatory remarks in text messages, e-mails, and on social media sites. Incessant digital/electronic communication, including numerous hang-up calls, or persistent voicemails and text messages can be considered harassment by a family or criminal court. Stalking can occur by GPS devices placed on automobiles to trace one’s movement and by cellphone transmissions. It is not uncommon for a spouse in a divorce case to not only intercept telephone numbers and phone records of incoming and outgoing calls, but also voice messages and text messages. Abuse can also be accomplished through “caller-id spoofing”. A person can falsely identify him/herself by attaining different phone numbers and then implicate a spouse or significant other in criminal activity. Connection of a cordless phone can be monitored and cell phones are used as listening devices. Spy phones can be set up to read one’s call logs and e-mails.

Computer hacking permits one to gain access to private computer files. Spyware allow one to take snapshots of another’s computer through remote access. Creating false profiles, changing passwords to delete critical e-mails, sending fraudulent e-mails, interception of e-mails, distributing photos, videos, personal information, and damaging one’s public image, or employment through the internet occur in vindictive matrimonial matters. There are a number of social networking sites, including “Formspring”, “Intellius”, and “MySocial 24×7” that are used for GPS and camera surveillance. It is essential not only to improve cyber security but also to seek orders of protection against a perpetrator of cyber abuse.

The Child’s Voice, Technically Speaking

Most children and teenagers of today have grown up with the internet and smart-phones. They receive homework assignments by e-mail, research on-line, and utilize texting and social media sites like Facebook and Instagram to stay connected with friends and relatives. Skilled computer science kids and their websites have enhanced creative and artistic expression. The “nerd” has many times become the new rock star. Children of divorce may be more prone to feelings of stress, sadness, and loneliness due to the changes and conflicts in their families. Children of divorce may experience the loss of contact with a parent or be alone more often, physically and emotionally because their parents are preoccupied with the divorce or organizing their new lives. The children might isolate themselves in a virtual world rather than “IRL” (in real life). They may be more vulnerable to cyber bullying. They may become exposed to extreme sex on the internet, making it difficult for them to have healthy personal relationships. Sexting with strangers, on-line relationships, and creating virtual personalities that show oneself in destructive behavior can cause physical and psychological damage; can lead to legal/criminal problems and harm educational and career opportunities. It is the parents’ obligation to reach out to their children in a way so they don’t shut down and to get themselves and their children the psychological help to navigate the family through the divorce process. Parents need to monitor and participate in their children’s virtual world without interfering with their healthy peer friendships. Parents need to encourage children to participate in high “touch” not just high-tech. Affection, sports, meals and cultural activities with family and friends are essential. Parents should be a role model (which is hard during divorce) and not use their children’s computer or social media sites or any computer that the kids may obtain access to for romance, pornography or communications they wouldn’t want their children to see. The computer savvy children of today can and will find digital information quite easily about you or what you are watching on-line.

Posted in Uncategorized | Leave a comment

The Benefits of Prenuptial Agreements And How To Do Them Right

http://www.divorcedmoms.com/articles/the-benefits-of-prenuptial-agreements-and-how-to-do-them-right

Posted in Uncategorized | Leave a comment

NYSBA Family Law Review | Spring 2014 | Vol. 46 | No. 1

Determining “Custody” of Beloved Companion Pets in Matrimonial Actions

By Sherri Donovan

Trisha Murray and Shannon Travis had a short marriage—marrying in 2012, filing for divorce in 2013. They had no children, few assets and their sole dispute was over who would keep Joey, their miniature dachshund. In Travis v. Murray, (1) Justice Matthew Cooper issued a 19-page decision, which ordered the parties to appear for a one-day hearing to determine which party would win possession of the dog. The judge would apply a “best
for all concerned” standard following the hearing, thus departing from strict property analysis traditionally used for possessory disputes over animals, yet falling short of engaging in a full-fledged child custody analysis.

In 2011, a year before their marriage, Ms. Travis purchased Joey at a pet store and brought him home to the couple’s shared apartment. When Ms. Murray moved out in 2013 while Ms. Travis was away on a business trip, she took with her a few pieces of furniture, some personal possessions and Joey. When Ms. Travis asked for Joey’s return, Ms. Murray claimed she had lost him in Central Park.

One month later, Ms. Travis proceeded to file for divorce. Two months later, she brought a motion seeking an account of Joey’s whereabouts and an order directing that he be returned to her “care and custody” and that she be granted “sole residential custody of her dog.” Ms. Murray revealed that Joey was not in fact lost, but rather living with her mother in Maine.

In her papers, Ms. Travis argued that Joey was her property because she had purchased him with her own funds prior to the marriage. Further, she stated that she was the party who had provided primary financial support for Joey. Ms. Murray replied that Joey was her property, as Ms. Travis had purchased him as a gift for her as consolation after she had given away her cat at Ms. Travis’s insistence. Ms. Murray also stated that she, too, had contributed financially to Joey’s care.

While Ms. Travis asserted that she was the party
who had cared for Joey on a primary basis, Ms. Murray countered that Joey slept on her side of the bed and that she was the one who “attended to all of Joey’s emotional, practical and logistical needs.” Ms. Murray concluded that it was in Joey’s “best interests” to be with her mother in Maine, where she could visit him regularly and where he is “healthy, safe and happy,” adding that Ms. Travis traveled often for work.

In his November 29, 2013 decision, Justice Cooper noted that both parties invoked two distinct approaches in determining which one should be awarded Joey: tradi- tional property analysis, i.e., ownership stemming from purchase or gift, and child custody analysis, whereby core custody concepts such as primary caretaking and best interests were called into play.

The judge engaged in a thorough analysis, referencing cultural articles in New York magazine and the New York Times that discuss the “humanification” of our pets and the important role that dogs play in our emotional lives (2) and citing research detailing the ever increasing amount of time, money and attention that household pets receive in the United States. (3)

Following a review of New York case law, Judge Cooper noted that while the New York magazine and New York Times articles prove that New Yorkers consider their pets as far more than mere property, prevailing New York law continues to treat a dog as just that—specifically, as “chattel.” (4)

In most non-matrimonial actions regarding ownership and possession of dogs, unless a dog is a pure-bred show dog, the most an owner can expect to recover for negligent care of or failure to return a dog is the animal’s fair mar- ket value. The aggrieved owner would pursue an action for “replevin,” where the standard is defined as superior possessory right in the chattel, thus based solely upon the property rights of the litigants, rather than their respective abilities to care for the pet or emotional ties. (5) Cooper notes only one New York case where temporary possession of a dog was granted to a wife in a matrimonial action, which decision was based solely upon the fact that the dog was an interspousal gift to her. (6)

Yet a few New York cases showed that courts were willing to acknowledge the importance of pets beyond that of ordinary, inanimate property. In Corso v. Crawford Dog and Cat Hospital, Inc., (7) the plaintiff recovered damages beyond the market value of the dog whose remains were wrongly disposed of by a veterinarian, holding that “a pet is not just a thing but occupies a special place somewhere in between a person and a personal piece of property.” In Feger v. Warwick Animal Shelter, (8) the court observed that “companion animals are treated differently from other forms of property. Recognizing companion animals as a special category of property is consistent with the laws of the State.”

Justice Cooper then engaged in a nationwide survey of the analyses utilized in pet-related disputes, finding that while there were a small number of cases that actually used the term “custody” when making an award of a dog to a spouse, (9) the majority of cases from other jurisdictions have declined to extend full-fledged child custody precepts to pet-related disputes, such as the “best interests” standard. (10)

Finally, Justice Cooper turned to the most relevant New York case, Raymond v. Lachmann, (11) to inform his decision, a case involving a dispute over the ownership and possession of an elderly cat named Lovey. The First Department wrote:

Cognizant of the cherished status ac- corded to pets in our society, the strong emotions engendered by disputes of
this nature, and the limited ability of the courts to resolve them satisfactorily, on the record presented, we think it best for all concerned that, given his limited life expectancy, Lovey, who is now almost ten years old, remain where he has lived, prospered, loved and been loved for the past four years.

From here Justice Cooper finds the standard he would apply to the Travis v. Murray matter: “best for all concerned.” He notes that the concept of a household pet being treated as mere property is outmoded and that the court in Raymond offered a perspective for determining possession of a pet that differs radically from traditional property analysis. Yet, while the factors in the decision included concern for the animal’s well-being and the relationship that existed between the cat and the person with whom he lived, the court stopped short of applying a traditional “best interests” child custody standard. The judge states that it is impossible to truly determine what is in a dog’s best interests and that the subjective factors that are key to a best interests analysis—particularly those concerning a child’s feelings or perceptions—are unascertainable when the subject is an animal.

Judicial resources are also cited as a major concern in limiting the scope of the standard applied in pet-related disputes. A court needs a tremendous amount of information in child custody disputes, often necessitating the appointment of an attorney for the child and a forensic psychologist, collateral interviews, testimony, and possibly in camera proceedings with the children themselves. Justice Cooper notes that our court system is already overwhelmed with child custody cases and to allow full- blown “dog custody” cases in which the same “best interests” analysis is applied would further burden the courts to the detriment of children.

Cooper also recognizes the reality that significant judicial resources are already devoted to matters such
as who gets a luxury car or second home, and therefore room should rightly be made in order to give real consideration to a case involving a treasured pet.

Accordingly, Justice Cooper granted the parties a
full one-day hearing, where he would apply a “best for all concerned” standard. Each side would have the opportunity to prove why she would benefit from having the dog and why the dog would have a better chance of living, prospering, loving and being loved in her care. The judge advised the parties to address questions such as: Who bore the major responsibility for meeting Joey’s needs (feeding, walking, grooming, trips to the veterinarian)? Who spent more time with Joey on a regular basis? Why did Ms. Travis leave Joey with Ms. Murray at the time of separation? Why did Ms. Murray send Joey to live in Maine with her mother rather than have him stay with her or Ms. Travis in New York?

The judge made it clear that the hearing would result in only one party retaining sole possession of the dog and that he would not entertain any kind of joint custody or visitation arrangements, which would result in both par- ties remaining involved in the dog’s life, thus inviting post-judgment litigation. Again, Justice Cooper voiced his concern that judicial resources in cases of pet disputes be limited, stating that “while children are important enough to merit endless litigation, as unfortunate as that may be, dogs, as wonderful as they are, simply do not rise to that level of importance.”

Shortly after receiving the decision, Ms. Travis and Ms. Murray settled privately with the aid of their attor- neys. Rhonda Panken, Esq. represented Ms. Travis and
I represented Ms. Murray. While the hearing was ulti- mately unnecessary, Justice Cooper has indeed crafted a thoughtful and thorough analysis that should help both courts and practitioners deal more successfully with dis- putes over beloved pets in the wake of a divorce.

Endnotes

  1. 42 Misc 3d 447 (Sup Ct NY Co 2013).
  2. John Homans, The Rise of Dog Identity Politics, New York, Feb. 1, 2010; Gregory Berns, Dogs Are People, Too, New York Times, Oct. 6, 2013; Alexandra Zissu, After the Breakup, Here Comes the Joint- Custody Pet, New York Times, Aug. 22, 1999.
  3. Ann Hartwell Britton, Bones of Contention: Custody of Family Pets, 20 J. Am. Acad. Matrim. Law 1 (2006); Derek Thompson, TheAtlantic. com, These 4 Charts Explain Exactly How Americans Spend $52 Billion on Our Pets in a Year, http://www.theatlantic.com/business/ archive/2013/02/these-4-charts-explain-exactly-how-americans- spend-52-billion-on-our-pets-in-a-year/273446/(Feb. 23, 2013).
  4. See Mullaly v. People, 86 NY 365 [1881]; Schrage v. Hatzlacha Cab Corp., 13 AD3d 150 (1st Dept 2004); Rowan v. Sussdorff, 147 App Div 673 (2d Dept 1911); ATM One, LLC v. Albano, 2001 NY Slip Op 50103[U] [Nassau Dist Ct 2001].
  5. See, e.g., Jason v. Parks, 224 AD2d 494 (2d Dept 1996); Mercurio v. Weber, 2003 NY Slip Op 51036[U] (Nassau Dis Ct 2003); Merriam v. Johnson, 116 App Div 336 (1st Dept 1906); LeConte v. Lee, 35 Misc 3d 286 (Civ Ct, NY County 2011); Webb v. Papaspiridakos, 23 Misc 3d 1136[A], 2009 NY Slip Op 51152[U] (Sup Ct, Queens County 2009); Saunders v. Reeger, 50 Misc 2d 850 (Suffolk Dist Ct 1966).
  6. C.R.S. v. T.K.S., 192 Misc 2d 547 (Sup Ct, NY County 2002).
  7. 97 Misc 2d 530 (Civ Ct, Queens County 1979).
  8. 59 AD3d 68 (2d Dept 2008).
  9. See e.g., Juelfs v. Gough, 41 P3d 593 (Alaska 2002) (granting “sole custody” of a dog to ex-husband); Van Arsdale v. Van Arsdale, 2013 WL 1365358, *4 (2013), 2013 Conn Super LEXIS 574 (granting “joint legal custody” of dogs, with “principal place of residence” to plaintiff); Placey v. Placey, 51 So3d 374 (Ala Ct Civ App 2010) (awarding dog to one party, expressly referring to the “best interests” of the dog).
  10. See e.g., Desanctis v. Pritchard, 803 A2d 230, 232 (Pa Super Ct 2002) (declining to award “shared custody” of a dog because he is “personal property,” such as a table or lamp); Clark v. McGinnis, 298 P3d 1137 (Kan Ct App 2013) (declining to award custody of a dog, holding that the “argument that child custody laws should be applied to dogs is a flawed argument”).
  11. 264 AD2d 340 (1st Dept 1999).

NYSBA Family Law Review | Spring 2014 | Vol. 46 | No. 1

Posted in Uncategorized | 2 Comments

HOW TO DIVORCE A MISSING OR ABSENT SPOUSE

How do you get divorced when you have no idea where your spouse is and cannot contact him? While it may be require some additional steps, it can still be done: 

  1. The first step is to attempt to serve your spouse with a divorce Summons and Complaint, thereby initiating the action and providing notice, at his or her last known address(es). 

  2. Send a letter to all branches of the Armed Forces, Election Boards, Department of Motor Vehicles and Post Offices where your spouse was last known to reside. These letters may require a small fee, generally ranging from $3 to $5 each. 

  3. Search the internet in an effort to locate your missing spouse.

  4. If you receive no response and still have no information as to your spouse’s whereabouts, your attorney will need to prepare an Order for Publication for the court, which should be submitted to the courthouse’s ex parte office for a judge’s review and signature.

  5. The Order should include documentary proof of your search attempts, an affidavit signed by you wherein you explain why you cannot locate your spouse, and an affirmation signed by your attorney. The Order should also include the name of a local newspaper where your Summons for Divorce can be published for notice.

  6. Once the judge signs the Order, the Summons for Divorce will be submitted to the local newspaper for publication as directed by the court, typically for three consecutive days.

  7. Following publication, the newspaper will provide you with an affidavit attesting to its publication of your Summons for Divorce. You can then file uncontested divorce papers with the court and proceed with the divorce.

Posted in Uncategorized | Leave a comment

PARENTING IN THE 21ST CENTURY: TERMINOLOGY & MULTIPLE PARENTING

Parenting in the 21st Century: Terminology & Multiple Parenting

             The traditional key terms regarding the care of children in family law — “custody” and “visitation” — seem increasingly outdated and in fact detrimental to positive outcomes. These terms imply competition, winning and losing, ownership and possession, and a diminished, stigmatized parental status, tending to exacerbate the threats to fragile egos and psyches during a period of divorce or separation. 

            The child’s needs should be the beginning and end point in any dispute between co-parents. Defining terms that imply collaboration may help keep the focus on the issues rather than inspiring parents to fight and enter into unnecessarily bitter and damaging custody battles so as not to feel like he or she is losing “custody” of the child. Use of a parenting plan that sets out a schedule without use of the term “visitation” normalizes the concept of a child sharing time with each parent, living and spending time with each parent at certain times. This is as opposed to one parent being deemed the “custodial parent” with the other being permitted “visitation” of the child, which gives rise to a painful feeling that one parent’s status has been devalued. 

            Use of a wheel or spheres may also be helpful, setting out categories or types of decisions that parents will need to make as joint caretakers. Focus again stays with the issues, tasks and roles involved with the care of the child, rather than on which parent wins the title of legal custodian. If parents are unable to engage in true joint and collaborative decision-making, one option is to grant each parent certain spheres for which he or she is primarily responsible. One parent may be granted primary decision-making over issues relating to extra-curricular activities and education, while the other is in charge of health care decisions and religion.   

In each case, the child’s particular needs remain paramount and the terminology utilized reinforces the concept that each parent remains responsible for the child even though the child is now dividing his time between households. 

The child’s particular needs and situation should be taken into account when creating a tailored parenting plan.  The parenting schedule and assigned roles and tasks can be revisited on an annual basis, with the aid of a parenting coordinator or other neutral professional if need be. 

Another increasingly outdated concept is that a child cannot have more than two parents. Traditional state law recognizes individuals as parents based on biology, marriage or adoption—bright line rules intended to promote stability. As a result of complicated and often unfortunate real life situations, but also advances in assisted reproduction technology, many states are faced with situations where the bright line rules that may not serve the child’s actual needs. 

Many people are arranging to have children with a third party via assisted reproduction technology. The parties may or may not be married, there may be a surrogate or donors, and donors may or may not be known.  While some couples seek a traditional “nuclear family” model of two parents, with the egg or sperm donor having no parental rights, some couples may intentionally seek out a known donor who will play a regular role in the child’s life. The donor may also have a partner who is involved with the child. 

How does a court decide if it should recognize a social parent (e.g., a lesbian mother’s partner) or a biological parent (e.g., a sperm donor)? 

A 2011 California case (In re M.C., 195 Cal. App. 4th 197 [2011]) involving a biological mother, her same-sex partner and a known biological father who had an affair with the biological mother led to an appeals court ruling that a child could not have three parents — even though both the biological mother and her same-sex partner were not immediately capable of caring for the child and she was placed in foster care. The ruling was followed by legislation, signed by California governor Jerry Brown in early October 2013, which allows children to have more than two parents. 

California Senate Bill 274 authorizes a court to recognize more than two parents if not doing so would be “detrimental” to the child. The measure applies to families with more than two people who fulfill California’s definition of “parent”, not to other caretakers or relatives. Some have expressed concern that the bill would make it possible for children to have too many parents—four, six, even eight—potentially creating impossibly complicated legal and emotional ramifications. However Sen. Mark Leno and other supporters of the bill stressed that that the law was to be used only when a child could be at risk of having too few parents and thus unnecessarily entering the foster care system. 

For many years, Louisiana has provided by statute and case law that a child may have two fathers and a mother where the mother’s husband is not the biological father. (La. Civ. Code, Art. 134; Smith v. Cole, 553 So. 2d 847 [La. 1989]). 

            Courts in Pennsylvania and Maine have also recognized that a child can have more than two people with all the rights and responsibilities of parentage. In Pennsylvania, a court upheld an award of primary custody to a biological mother’s same-sex partner, with partial custody to the biological mother and sperm donor, who had been involved as a parent since infancy. The court also found that all three parents had an obligation to support the child (Jacob v. Shultz-Jacob, 2007 PA Super 118, 923 A2d 473 [2007]). In Maine, a court found that a non-biological parent could have all the rights and responsibilities of parentage in addition to two legally-recognized biological parents (C.E.W. v. D.E.W., 2004 ME 43, 845 A2d 1146, 1149-51 [Me. 2004]). 

            As in California, Delaware and the District of Columbia allow a child to have more than two people with all the rights and responsibilities of parentage by statute. (Del. Code Ann. Tit. 13, Secs. 8-201; D.C. Code Sec. 16-831.01, et seq.) In D.C., people are allowed to sue for child custody if they can show they had acted as “de facto parents”. In Delaware, state courts have the ability to designate a non-parent as a “de facto” parent if the biological parent of the child fosters a “parent-like” relationship between the non-parent and the child and the de facto parent acted like a parent and bonded with the child in a way that is “parental in nature.” 

            Again, in navigating this increasingly complicated terrain, it is important that the child’s needs remain the beginning and end point in any disputes. While it is already challenging for courts to help two parents agree how to raise their child following a divorce, the law must also recognize a court’s need to recognize the real bonds and roles that have developed in a child’s life, even when non-traditional, especially when the child’s wellbeing is at risk.

Posted in Uncategorized | Leave a comment

GROUND BREAKING CASE FOR PETS RIGHTS IN DIVORCE!!!

Travis -against- Murray…..Pets now have rights in family law disputes for the first time!!!

New York, NY, November 29, 2013:  Pets are now considered family members with rights in divorce cases.  This case involves Joey, a miniature dachshund, who found himself in a tug-of-war, between two divorcing lesbian spouses in a short and childless marriage.

Sherri Donovan, Esq., family and matrimonial lawyer representing Ms. Murray states “that the recent decision by Judge Cooper sets a new standard for pets to be treated with respect in divorce cases, not just a piece of furniture.”

Ms. Donovan further states that, “this case points out that animals have emotions, attachments and have a special status in divorce cases.  They are considered more than property but not quite as extensive as children.  The new standard for determining with who and where a pet will reside after  spouses split will be what is best for all concerned including where the pet is best taken care of and who attended to the pet’s needs.”

Ms. Donovan also mentions “that the Court determined that there are no visitation rights or financial support.  It is all or nothing.”

Judge Matthew F. Cooper, “…. Although Joey the miniature dachshund is not a human being and cannot be treated as such, he is decidedly more than a piece of property, marital or otherwise.” 

Posted in Uncategorized | Leave a comment

LMD: Love, Marriage, Divorce, by Gary Ahlskog, Ph.d

LOVE

The saying, “Love makes the world go around,” is probably true, but this doesn’t mean we know what it is.  Poets have tried to capture it, most people think they’ve experienced it, but no one can define it.  Besides introducing you to the Family Team at http://sherridonovan.com/family-center.html, this section discusses 2 insights that come from realizing why romantic love can’t be defined. 

Insight #1:  Love is based on a wonderful, exciting, and rejuvenating illusion, the illusion that we found the loved person, instead of realizing that we created them by investing in them our own capacities to love.  Our investing in this other person is a good thing.  Without it our species would go extinct.  As wonderful as it is, we don’t recognize this illusion while it’s going on.  We think we discovered a special person, not that we created them in our own mind. 

Here’s minor proof:  Ever wonder why your special person happened to be  sitting around available and unnoticed by everyone else?  Ever wonder why your friends and relatives were politely supportive, but not gushing?  I’m in favor of the most important phrase in human history, “I love you,” but to be clinically accurate, we should say, “I choose you to be the person I’m going to love.”

Love isn’t phony.  It’s exciting and it’s universal, but understanding it is still elusive.  While you were choosing to invest your loving capacities in her, her tendency to smear her makeup seemed so spontaneous and endearing.  When you withdrew your loving investment, smearing her makeup seemed careless and inept.  Obviously, she was putting on her makeup the same way all along.  Likewise when it comes to his chewing tobacco.  You were the one who felt it was deliciously rebellious and anti-urban, but when you withdrew your investment, his tobacco chewing just seemed gross.  We are aware of the negative moment when we inwardly say, “I don’t choose you any more,” which underscores how unaware we were of our original choosing. 

Insight #2:  Love can’t be defined because our primary template for love is individual and idiosyncratic. What’s common and universal is the intensity of our emotional pulse.  Whatever brought us to that pulse is as varied as there are people on the planet.  Some women like facial hair, others like baldness; some men like legs, others like breasts. Do you prefer wealthy or creative?  Adjusted or spontaneous?  Intellectual or savvy? Aggressive or compassionate? Family-oriented or rebellious? Open-minded or tough-minded?  There is no end to this list.  Each of us experiences love according to our personal template, which explains why poets shouldn’t be expected to define love for any of us.

            Our personal template began in our early years with the first persons we invested in, persons we depended on, usually our parents (whether they were actually loving or not). We cultivated variations influenced by siblings, aunts, uncles, cousins, teachers, friends, and so forth.  Then one day, seemingly out of the blue, we met someone in the hallway, cafeteria, committee meeting, or jam session, who captured our hearts.  We fell in love with a love that’s intense and sincere.  We don’t recognize our own template, and even if we thought we did, templates are multi-dimensional, containing positive and negative factors.   

            Example #1: If a young man’s mother was depressed, he may not notice that the woman he finds most attractive is slightly needy.  He’s not aware that her enjoyment of him allows him to feel like he’s fixing or curing the early template of his mother’s depression.  Because this couple is happy at first, he truly believes he has found the opposite of his early maternal template.   Complexities will show in the long run.

            Example #2: If a young woman’s father was generous but critical, she may find she’s not much attracted to men who respect her.  She may have difficulty cultivating independence and self-reliance, feeling that these make her less loveable. The more a future husband may be successful, the less self-worth she may feel.  Ironically, the more supportive her husband is,  the worse she may feel as she has to supply her own inner critical voice.  Complexities will show in the long run.

            Romantic love doesn’t really “wear out,” it’s just that eventually the complexity of our templates shows up.  Ask an old married couple about their journey together and they’ll tell you that they didn’t really have a “relationship.”  They’ve had 3 or 4 different relationships with each other as they resolved different facets of their templates.  Transitions between templates are usually rocky, but help is available to get you through successfully to the other side.  Helping you preserve and increase the love in your life during rocky times is a reason the Family Team was created.  Contact them athttp://sherridonovan.com/family-center.html

 

MARRIAGE

Marriage is the best thing in the world!  Nothing compares to that exquisite commitment of mind, body, and spirit when we realize that life has taken on special energy and purpose. Approaching life as a pair gives each decision, dream, and dinner new vitality and meaning.  Sex is new.  Holding hands is new.  It’s the best thing in the world!

Marriage is more than a “committed relationship.” 

            Marriage is unique because we pledge emotionally, financially, and legally, in the presence of our relatives and friends, to live life as a pair.

            Marriage is how we create joy in a universe that often seems to offer only randomness.

            Marriage is fun.

            Marriage makes us whole and stops the search for something else.

            And marriage is complicated…as follows:

            Among the wonderful aspects of committing to our special person is the hope that past pain is over and the future will be better.  It’s plausible and reasonable, but  this “hope” is surprisingly close to our “expectation” that things should get better, which is surprisingly close to the “requirement” that past pain should be fixed, which ends up meaning that the spouse is supposed to do this fixing and make it all better.   Of course, the spouse has no idea about any of this.   Wonderful as marriage is, it can’t rewrite the past.  The wife in Example #1 above didn’t know she was supposed to fix her husband’s distress over his depressed mother and can’t know that he silently experiences her as “failing” him whenever she expresses self-doubt.  The husband in Example #2 could not know he was supposed to fix his wife’s inner self-critical child and can’t know that she silently experiences him as “failing” to understand her whenever he focuses on positive aspects of their life.  So when a couple marries, their hopes also contain the seedbed of a later sense of being let down.  Nobody can see this beforehand. 

Affection is the enemy of Eros.  Every couple growing closer in mutual affection and respect faces the problem of diminishing sexual attraction.  It’s easier to be dirty with someone you just met in a bar than with a spouse you admire, respect, and want to respect you.  You curtail your sexual side as the affection for your spouse grows.  It’s complicated.  For most of us during adolescence, being respected in the eyes of parents, teachers, and priests meant seeming to be non-sexual, or only mildly sexual.  It was a lie, of course; we were all wildly sexual inside.  Our psyche created a false but powerful equation in which being sexual is slightly dishonorable, whereas being non-sexual earns respect.  The erotic foundation of marriage falters as the parties believe, falsely from their adolescent templates, that they will improve their marriage by withholding their dirty wishes, fantasies, and actions.

During the sexual revolution of the ‘60s-‘70s, the institution of marriage underwent major scrutiny.  For a while marriage seemed to be pointless, merely a convention based on society’s need to document who was responsible for the care and feeding of children.  Lots of couples simply lived together in the theory that they’d get to know what they were committing to before marrying.  Today it’s clear that living together before marriage creates a slightly greater chance of divorce.  That’s right, living together doesn’t improve the odds of a successful marriage; rather it adds credibility to the option of quitting when things get difficult. 

            Children are one of marriage’s most wonderful gifts. Couples who forge a long life together talk about how rearing children was their most rewarding fun.  They couldn’t have imagined such joy.  Couples who struggle in their marriage talk about sleep deprivation; sexual frustration; retrieving huggy-bear from under the sofa; cleaning cereal off the wall; losing former enjoyments (e.g., no more theater); and abandoning their own deepest hopes and dreams, as when taking the kids to get vaccinated crowds out auditioning for the orchestra.

            Children are paradoxical:  They are wonderful.  They are fun. They deprive parents of their independent lives and identities.  They offer parents an iron-clad rationale for the meaning and purpose of their marriage, namely rearing the next generation.  Couples who don’t have children have extra finances and flexibility to chart their own own course.  Yet they lack the built-in rationale for marrying (rearing children), so they must invent a definition of what their marriage is all about: Travel?  Business? Sex?  Art?  Never underestimate how difficult it is to create identity and purpose in marriage when the cliché of rearing children isn’t available.

            George Bernard Shaw remarked that the peculiar thing about marriage was how a couple might spend years courting, years of uncertainty, only to arrive at a specially heightened moment during the wedding, wherein they promise to stay in this heightened state forever. Obviously this heightened state collapses, but this need not doom the marriage.  Help is available and effective to correct damaging patterns and allow parents and children to thrive.  This is another reason why the Family Team was created. Contact them at http://sherridonovan.com/family-center.html.

 

DIVORCE

            Whenever a marriage fails, the angels weep.  No one likes divorce, no one thinks it’s fun.  That said, let’s get to work making sure doomed marriages end cleanly.  Let’s minimize damage.  As soon as the word “divorce” is used seriously, you must consult a lawyer.  Even if you reconcile and don’t proceed to divorce, as we and the angels hope, your minimal time and expense from consulting a lawyer will be worthwhile.  Never assume that what you consider logical or reasonable is how the law works in your state.  A matrimonial lawyer will help you avoid causing yourself inadvertent harm.  Whether reconciliation with your spouse is possible or not, you’ve entered an emotionally vulnerable time.  You want your lawyer to be your legal counselor but not your psychological counselor. This is another reason for the Family Team, where lawyers don’t play therapist, and therapists don’t play lawyer.  Check it out at http://sherridonovan.com/family-center.html

            The 2 topics most likely to create lengthy, nasty, and expensive divorces are disputes over (1) children and (2) finances.  If neither of these is a problem in your case, divorce mediation may be a worthwhile avenue.  However, mediation won’t work as a method of soft-soaping disagreements, browbeating a spouse, or sidestepping the law.  It’s not necessarily cheaper.  Since mediators require both parties to hire their own attorneys to approve the final agreement anyway, complex negotiations are often resolved better by skipping mediation and using individual attorneys right from the start.  You can explore this further by contacting the Family Team at http://sherridonovan.com/family-center.html

Divorce prompts irregular spurts of emotion.  Our psyches don’t process “time” very well, so it’s easy to get caught up in indignation that financial inequities aren’t being fixed right away, or despair that a few weeks of lonely nights must mean there will never be new love.  When you actually separate, here are the most common sources of psychological distress:

(1) An early sense of relief may be followed by a sense of dread.  Or vice versa. 

(2) One partner seems conciliatory at first, while the other seems argumentative; then these attitudes switch. 

(3) One party seems to hurt more, but they may recover faster. 

(4)  One spouse went on a sexual spree, the other shut down.  Over time this too may reverse. 

(5)  Whoever initiated divorce already envisions an alternative scenario.  One partner will seem resolved and clearheaded, while the other seems lost.  One partner has picked out a lover, is going to come out of the closet, is going to move to Canada, etc., while the other is foundering in distress.  The scenario picked out by the “clearheaded” partner is called “transitional,” meaning that it gets them through the night in the short run, but it usually doesn’t work out.  The foundering partner feels lost at first, then catches up and surpasses in forging a new and meaningful life, so the partner who originally seemed so clearheaded was engaging in wishful thinking with no true advantage.

(6)  In the early phases of negotiating, both parties often want to avoid anger, enmity, and expense.  So they feel cooperative and they sound cooperative…for a while.  Nevertheless, this couple has lived many years under the same roof and tried to ignore problems that finally led to today’s break-up.  The longer negotiations go on, the more likely one or both parties will become angrier and less cooperative, as they recover more negative feelings buried in the past.  From this premise come 2 guidelines:

(a) Whatever you can resolve quickly and cleanly, resolve it now, otherwise it will morph into a dispute.

(b) Whenever you think the negotiations have gotten so bad that they couldn’t possibly get worse, take a deep breath and accept that they will get worse, because you are drilling even deeper into buried wounds.           

Larry King was asked how he accounts for his 5 failed marriages?  “What do you mean failures?” he replied, “They were all successful for what they were at the time.”  There are 4 important understandings here:

  1. We change and grow as a fact of life.  If 2 people are connected at 25  but disconnected at 40, this isn’t a “failure.”  Their split eventually will be revealed as gain for both parties. (Women usually feel the gain from separation earlier than men.) 
  2. Recognizing when a marriage can’t be fixed is preferable to pointless plodding.  Marriage therapists know that if one partner in a marriage comes to find the other sexually repulsive, there is no chance of recovery, only divorce.  Endless talking merely postpones the inevitable. 
  3. No meaningful advice can come from a parent, priest, or psychologist, because no one but the couple has lived under the same roof and slept in the same bed.  Only you know your marriage from within.  A good therapist can help you expand your feelings and perspective, but a truly good therapist will never pretend to know what you should do.  If anyone claims to know, don’t listen, get away!
  4. Neither party is to blame.  Assigning blame is not only useless, chances are it’ll be assigned backwards.  When it seemed obvious that she’s to blame for moving out, we can’t know the extent of physical or emotional danger she felt she was risking by staying.  When it seemed obvious that he’s to blame for having an affair, we can’t know how she was manipulating their finances.  Huh?  This doesn’t seem to jibe.  Here’s how it works:  Marriage therapists know full well that one partner provokes the other until the other can’t take it any more and makes a mistake, after which the provocateur gets to seem like the innocent one, the victim of a mistake, even though the truth is that the seemingly “innocent” one was the driving force in creating the divorce all along.  Reread this, it’s complicated.  It happens all the time.

 

Children are always distressed by divorce.  It’s less if they are in their 30s or 40s, instead of being 3 or 4, but it’s there nonetheless.  Even when children agree that divorce is for the best, they inwardly wrestle with feelings of being abandoned and/or defective (the product of a defective marriage).  Younger children are more vulnerable to 3 damaging dynamics:

  1.  Fearing that they must have done something to cause it, or failed to do something to stop it.  This includes a feeling that divorce still might be avoided if they can make themselves the problem instead of the couple, which they try to do by suddenly getting in trouble at school, quitting the team, becoming physically or psychologically ill, and so forth. 
  2. Feeling torn and conflicted because one or both parents mistakenly is involving them in adult details that require them to take sides and/or comfort the adults.
  3.  Being used as the pawn by which one parent tries to hurt, argue or tamper with the other, e.g., causing scheduling problems with play dates and baby sitters so that, by disrupting the child’s life, this misguided parent succeeds in the underlying goal of disrupting the former spouse’s life.

In a fairer world, no child should have to bear the brunt of problems caused by adult parents who are having trouble divorcing cleanly.  No matter how well intentioned, divorce can create emotional pressures leading to long term psychological scars for parents and children alike.  It need not be this way.  Help is available so that the couple can divorce fairly and completely, with minimal extraneous anguish and minimal psychological scars to them and their children. This may be the most important reason the Family Team was created.  Contact them at http://sherridonovan.com/family-center.html

Posted in Uncategorized | Leave a comment

POST DOMA: WHAT IT MEANS TO YOU AND ALL GLBT FAMILIES

https://www.facebook.com/events/618848024828481

Posted in Uncategorized | Leave a comment

COLLABORATIVE DIVORCE

         

           

 

            Collaborative Divorce is a matrimonial dispute resolution process in which both parties and their counsel commit themselves to resolving their differences fairly and equitably without the threat of court.  It is a cost-efficient and respectful way of reaching a successful and effective agreement.

  Collaborative method uses a team approach to identify interests of each spouse and the family in order to maximize options for resolving disputes.  The Team usually includes the spouses, an attorney for each spouse, a neutral divorce coach who is a licensed mental health professional and a neutral financial planner.  Collaborative Divorce is an innovative way of divorcing, developed as more and more couples have sought a respectful, non-adversarial process.  Making the choice to divorce in the Collaborative Process, with the support of the Collaborative team, can have long lasting benefits for the entire family.

            Both spouses and their attorneys sign an agreement that requires the attorneys to withdraw from the case if a settlement cannot be reached and the case goes to court.  This is a basic protection for both parties as any threat to stop the process and choosing to go to court cannot be used as a threat or an ultimatum.  Anything discussed during the collaborative process is confidential to that negotiation and cannot be used should the case go the process of litigation where both parties would have new attorneys in an adversarial process.

 

Posted in Uncategorized | Leave a comment