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A Powerful New Case

This powerful new case creates a presumption in favor of the parent who protects the children from racial bias in the home. It does not matter that the children were not present when the remarks were made. That is a big step. Click on the italicized text below to read the full court document.

The Welfare and Institutions Code* section 300 petition was filed on January 27, 2009. The petition contained allegations of: serious bodily harm; failure to protect; serious emotional damage; and sibling abuse. (§ 300, subds. (a)-(c), (j).) After several continuances, the adjudication hearing was held on March 19, 24 and 27 and April 2, 2009. The twins were declared to be dependents pursuant to section 300, subdivisions (b) and (j). The juvenile court found the father: used inappropriate discipline; G.G. “has exhibited explosive, aggressive, uncontrollable behavior requiring therapeutic, psychiatric intervention, and the father failed to obtain timely, necessary therapeutic, psychiatric intervention for the child despite numerous recommendations for treatment”; and “has provided a chaotic home environment including regular and consistent confrontational behavior with the children‘s school and in the community . . . .”

At the conclusion of the adjudication hearing, the disposition hearing was held. The juvenile court ordered: the twins be placed in foster care; individual counseling for the twins and the father; visitation by the father three times per week including on the weekends; one hour of the visitation was to be unmonitored; the father participate in a fatherhood class; and the father‘s individual counseling address his use of sexist and racist language. In connection with this latter requirement, the juvenile court minute order states, “Father to be in individual counseling to address issues with a male therapist regarding father‘s racist and sexist views.” The father filed a timely notice of appeal.

*All further statutory references are to the Welfare and Institutions Code except where otherwise noted.

Juvenile court found that they did not abuse discretion in ordering that father undergo counseling regarding his repeated angry use of racial, ethnic and gender epithets; the requirement was a reasonable response to father’s repeated use of such invective in dealing with school and social services personnel, together with other evidence of his temper, suggesting that he was creating an unhealthy environment for the children, regardless of whether he used such language in their presence.

In re G.G. – filed June 29, 2010, Second District, Div. Five
Cite as B215471
Full text http://www.metnews.com/sos.cgi?0710%2FB215471

A theory that changed laws

During his period in the appellate court, Justice Donald King was probably the most prolific family law judge in California. He’d been a superior court judge in San Francisco and he wrote scores of family law opinions. And he did something else that was quite extraordinary: Every summer while the appellate court was closed, he would  volunteer to sit pro tem* in the San Francisco Superior Court. Then, he did something even stranger. He told the supervising judge, “I want the worst cases you have. Give me all the cases that no one else wants.” So he started getting all these terrible, highly emotional contested divorce cases.

Justice King had been a superior court judge and so he had a theory about family law. He believed that people generally have more divorce than they have money and when they run out of money they still have lots of divorce left.  At the end of the case, the client hasn’t paid the bill, so the lawyer sues the client for unpaid fees. Now, clients can always think of something the lawyer could have done, should’ve done, failed to do, forgot to do, so the clients respond with a lawsuit for malpractice and suddenly you have all these lawyers and clients litigating. As a result you wind up with lawyers who are so fearful of a lawsuit against them for malpractice, they file every subpoena, serve every document, go through interrogatories and requests for admissions and they build their cases on the basis of “I don’t want to ever be guilty of any kind of malpractice. I’ll do everything I possibly can.”  Thus you have the California Divorce Industry.

When Justice King was a superior court judge, he saw all these lawyers coming in two or three years into a case, with boxes and boxes of receipts and cancelled checks, records and documents, and all this stuff. He began to wonder, what would happen if I could get into the case at the front end, before the lawyers have spent all these hundreds of thousands of dollars on discovery? He started bringing the lawyers in at the beginning of cases and he would say, “Counsel, tell me about your case. What are the facts as you understand them to be? What is your approach? What are you going to demand, what are you going to need, what will help you solve all the problems that you’re facing?”  And he would turn to the other lawyer and he would begin a conversation. Then he’d say, “You know what, let’s just use one accountant. We’ll use a neutral account. Can we pick an accountant that we both know and trust? Why don’t we just use one appraiser?” In this way he started limiting the discovery, managing the discovery, and he was so successful he was settling 70-80% of his cases and having happy clients and happy lawyers as a result.

In the mid-nineties the California Bar Journal published an article about Justice King’s case management theory and that led to the birth of statute 2450. Family Law Code Section 2450 gives fourteen new powers to judges that they don’t otherwise have.  Under 2450 a judge can have short-cause hearings by telephone, they can appoint mediators, it’s just remarkable.  How does it work? Your lawyer files a Case Management Stipulation, a 2450 Stip, and then you agree to see the judge when he’s got some time on his schedule.  Then you get in front of the judge, in private, and you use the judge as a sounding board. It’s almost like a mini trial for free.  I’m a big advocate for 2450 and I believe it needs to be used more.  I’ve talked to all the new judges about it, as well as the guys who’ve been hearing family law cases for years, and they are all in favor of it. They really like the approach.  Click here to read more about family code section 2450.

*pro tem = pro tempore, a latin phrase meaning “for the time being”

The Seven Options for Divorce: Number Four

The fourth option for divorce is Arbitration, which is quite different from our first three options.  The Kitchen Table Divorce is casual, creative, quick and inexpensive.  Mediation is a cooperative effort between individuals to reach a mutual agreement based on consensus and compromise.  Collaborative Divorce provides you with a team of professionals that rally and support you, ensuring that all your needs are met.  Though Arbitration is similar to mediation, it is more like litigation in that the parties present their respective positions, evidence, testimony and witnesses to a trial of fact.

Arbitration is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides.  The arbitrator may be a retired judge, an experienced trial lawyer, or some other professional selected from a panel of competent arbitrators, such as the American Arbitration Association.  Arbitration can be either voluntary or mandatory and can be either binding or non-binding.  The principal distinction between mediation and arbitration is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability.

Arbitration is most commonly used for the resolution of commercial disputes, but it is desirable in divorce cases when agreement cannot be reached but the parties still wish to save the costs and expenses of litigating through the usual judicial system, which has built-in delays and attendant increased costs.  The Los Angeles County Superior Court sponsors an arbitration program and a “Rent-A-Judge program wherein retired Superior Court judges are available as arbitrators, or will sit as judges on a private basis.  But we’ll talk more about Rent-A-Judge in a later post.

Option 1:  The Kitchen Table
Option 2:  Mediation
Option 3:  Collaborative Divorce
Option 4:  Arbitration
Option 5:  Negotiation in the Shadow of Litigation
Option 6:  Rent-A-Judge
Option 7: Litigation