Wednesday, October 29, 2014

FYI: The 10 things about family law a lawyer must know to survive Street Law

A lawyer needs to understand the first law of thermonuclear dynamics – energy can neither be created nor destroyed; it is merely transferred or converted from one object to another.
That’s what emotions are like. My presentation won’t be technical; it’s about surviving Street Law with family law questions. And the first thing you have to do is recognize the emotions and stay calm. You must exude serenity. Don’t make any sudden movements; keep a state of calmness around you. You do not want to absorb the emotions radiating off this person.
There’s a reason we don’t like family law. It’s because of the emotions.
First: stay calm
You will not follow the first rule of thermonuclear dynamics – you have a shield around you that cannot be penetrated by what is coming at you.

We went to law school and we understand elements, foundation, evidence, rule of perpetuities, we know these things. But I don’t remember one class about counseling, one class about therapy, or one class about emotions. No explanation was given for handling client emotions, opposing counsel emotions (often worse than the client’s) the court’s emotions (that can be horrible as well) none of that was taught to us. Yet, that is the root of the issue you are dealing with in family law.

So I will give you some help with that.

The most important job we do is to counsel our clients. And if we can do that, we have helped them. But to do that, you need to stay calm and not have an emotional reaction to what you are hearing.

I had a nightmare that led to an epiphany.

I was in the filthiest bathroom you can imagine, and I was supposed to clean it. So I’m on my hands and knees in urine, feces, and vomit, and suddenly, Commissioner Marty Gross comes running in, and she says, “What are you doing?! Your client’s kid is down at the bottom of the swimming pool, you need to do something!” And I wake up and I realized I had not only absorbed some of the emotional stuff going on in my cases, but I also felt it was my job to clean it up. It’s not.

I also felt it was my responsibility for what happened to these children, and it’s not. Trust parents to be parents. You need people who have problems to take responsibility for their problems.

One of my favorite questions I always ask someone in a consultation, at the end of the long description of what went wrong in their relationship, is “So what are you responsible for?” If you carefully analyze this with them, they have to take responsibility for what led them to this spot.
Second: Identify the Problem
Be specific about who is having the problem. Why is it the grandma who is pushing for more visitation with grandchildren on behalf of her child?  Why is it that the ex-wife displeased about the new girlfriend?  If you can stay calm, identify the problem, and identify who is having the problem, you are 90% there.
Third: Identify the Emotion
When people are trying to transfer their emotion to you, one way to avoid internalizing it is to figure out that emotion, nail it down, put it on the table to be looked at and dissected. If you can do that then;
1) the emotion doesn’t transfer;
2) the emotion dissolves and goes away.
We are horrible at this, as attorneys. They did not teach us this. This is why we like the law – because we don’t want to be therapists. We don’t want to be psychologists. We like rationality, we like logic, rules, procedures, we like objectivity.

But emotions drive every issue in every family law case. Figure out what the emotion is that is driving the case.

What you will find out rather quickly is that we are not good at identifying emotions. So I want to give you a hint about how to identify emotions. And I want you to practice it, with your family, children, co-workers, clients, opposing counsel, and get better at it.

When someone tells you about a problem they are having, you need to engage in active listening to identify their emotions. What you are saying to them is, “I’m hearing what you are saying to me. In fact, I’m hearing what you are saying to me when you are not even talking.”

By body language, body posture, tell this person you are watching them and are engaged. You are creating trust with them.

When talking with a client at first, I try to name the emotion they are feeling. You will know when you’ve nailed it on the head. It’s like a light switch goes on. The client sees you understand them, because you have nailed that emotion that sometimes they can’t even identify themselves.

So if you figure out the problem, figure out who is having the problem, and then figure out the emotional basis for the problem, you really can’t screw up from there. You have connected with them, you have helped them with the struggle they are having internally, that brought them to this spot.

That’s the key to surviving Street Law. Help recognize the emotion that drove the person to Street Law, and work past that. and don’t be afraid of the tears that might follow, that’s just an emotional reaction, and not all tears are bad, not all tears are wrong, it’s just how we process our feelings physically.

Question: Are there any books or materials you have found to help parse this out more?
Answer: Sign up for mediation and collaborative law training.  When I went to mediation and collaborative law training, we practiced a lot, and we received diagrams and lists of emotions. I remember thinking it was silly, especially the play acting part, but it works phenomenally, especially in your personal life. Seriously, knowing these tricks is a great way to diffuse a drunken holiday argument between relatives!

 What is the number one emotion that people are going through in a family law case? Answer: grief and loss. When someone is going through a separation or a divorce, the only thing similar to this emotional process is a death. So you need to recognize that is the predominant process a person is going through when they come to see you.

There are the 5 stages of grief – 
  • denial, 
  • anger, 
  • bargaining, 
  • depression, and 
  • acceptance.
 You will see clients moving back and forth through these emotions, especially anger, and it’s OK. Just recognize these are the emotions you will deal with.

Clients are there to talk about it.  Our culture and society works by text and email, so we cannot pick up on the emotional reaction that a person is having. We can’t see those signs, we don’t know if we have identified their emotional reaction. So getting used to doing that, and doing that, makes all the difference in the world.

People will say, “I feel so much better after talking to you.” It’s funny because I haven’t helped them legally; mostly in Street Law there’s nothing I can do to help them. But it’s because we had a moment where we addressed an emotional experience they are going through, that they feel better.

So work at it – it’s not something they teach you in law school, and they should. It improved my practice, it improved my ability to communicate with clients, with other attorneys, and it stopped some of those nightmares where I was absorbing people’s emotional stuff.
Four: you can do this!
For Street Law, you might say “I’m not a family law attorney, I can’t do this.” Just remember, you went to law school, you took an evidence class, a procedure class, and those rules remain the same regardless of practice area. It’s still civil procedure and you still need evidence.  You file a motion in a civil case just as you do in a family law case. There’s nothing magical or different about it.

The number one question that came up when I was both doing Street Law and also with my family law clients is about Jurisdictional issues. In typical civil cases, we think about whether there is a Jurisdictional issue here.  In personal injury, we think about where does the defendant  live, and we think about whether we can get Jurisdiction under the long arm statute.

 In family law, there are multiple layers of Jurisdictional issues. We have the UCCJA, which is the Uniform Child Custody Jurisdictional Act. This was developed so parents would not run state to state with their kids and file different orders in different states. So there are particular questions about children and Jurisdiction.

Also, there are particular questions about child support modification, filing child support orders, the Jurisdiction there is the UIFSA Jurisdictional Act, and so, again, there are particular rules for Jurisdiction.

If a person comes to see you in Street Law and they have what appears to be a Jurisdictional question, it is worthwhile for them to call an attorney. A lot of family law attorneys can figure out the Jurisdictional issue pretty quickly. If a person comes to see you and they have an order from another state, most states retain their Jurisdiction over children, so you need to be cognizant of that and know that the Jurisdiction will stay with that state, for instance if they’ve issued a custody order or something like that you are stuck in the state that issued the order. So there can be trickiness with Jurisdiction that you may not be used to if you only practice civil law.

One last thing about evidence. In family law cases, this often gets forgotten, but evidence is extremely important to a case. If you think a person makes a certain amount of money, you need to show a paycheck. If you have been receiving harrassing phone calls, you need to show your phone, text, or email logs. A lot of things can be proved in ways other than just by a straight declaration. And it can be just as powerful, so think of ways to help that person get that information properly before the court that proves their case not just a Declaration that sets up a he said she said scenario.

So don’t forget your rules of evidence, don’t forget this is still civil procedure.
Five: Parenting Plans
I will talk about what I think most people fixate on regarding parenting plans when they come to see you at Street Law and the issues they want to talk about.

You can get all legal forms from the Washington State government website.
(For other states, here is a great starting Point>> )

Many people who go to Street Law are holding a parenting plan in their hand. They have just printed it off and have brought it in to discuss. And working with them with this document goes a long ways in helping them. Many of the issues people want to discuss are related to the parenting plan.

 Please, remember, even though it says in the title on the first page, parenting PLAN, it’s all about WHEN, not HOW. It’s about the time and the days; it’s not about HOW you parent. Be really clear about that.

Remember also that a court is only good at two things. They only do two things really well:
1) They make people pay money;
2) They put people in jail.

The court is not so good at regulating relationships. And if you think that’s going to happen in court, I need to disabuse you of that notion. Because the fact is, in the court system, many judges and commissioners in a family law case will say that if people leave the courtroom equally unhappy, they have done their job.  They don’t want to appear biased, they don’t want to appear preferential.

I’ve never heard a judge say, “Oh, I’m so glad you left him, you were so right!” They also don’t say, “You made the right decision, she was a whore.”  They don’t do that. It’s a no-fault state, they don’t care why you broke up, they don’t care what brought you to this moment. 

They don’t recognize the emotional place that brought you into that courtroom, and people get frustrated because their feelings are not being addressed. And they won’t be. Ever. So that’s the disconnect with taking these issues to court.

Family law cases are an ongoing train wreck. Every day is a disaster. I used to hate my phone and my email every Monday morning. I charged extra if you called over the weekend  because there was always something.

So, a pet peeve about the parenting plan. Make sure the case number is on it! It’s no good to help them with a parenting plan if the number never ends up on the front .
When people look at these parenting plans, especially pro se people, their first instinct is to say, “How many boxes can I check?” The instructions even say, “Check as many as apply.” 

So they have an urge to check all of the boxes. Yes, there will be circumstances where more than one box will apply, but don’t try to fit in every category.

You can see on the parenting plan that it is a proposed/temporary/final document, meaning it is the same document for all stages. Just check the box that applies for the circumstance.
In this next part, page 2, about the restrictions, this really kills the parents coming to Street Law. They REALLY want to check all the boxes here. And this is when identifying the problem and identifying the emotion really come into play. Restrictions can restrict the other parent’s time with the child.

But they are governed by statutes. There are definitions for what is abuse, what is neglect. It is not:
  • Too much sugar;
  • letting your child have exposure to the internet;
  • letting the child play on a Gameboy or Playstation all night.
You really have to make sure when you’re listening to someone that you’re able to distinguish what I call “parenting conduct” from actual statutorily defined bad conduct.

 I don’t even call it “bad parenting.” What I’ve decided over the years is to call it “parenting philosophies.” Everybody has a different parenting philosophy. And sometimes the saddest case you ever see is when 2 people have gotten married, they love each other, they have a great relationship, and then they have a child. They discover that they have opposite parenting philosophies.  They cannot abide by how the other person is parenting. So they divorce. And that child will grow up and move on, and the parents will be apart even though they were originally well-suited.

There really are distinct parenting philosophies.  I would love to tell you that one of them is right. But there is no rhyme or reason. Children grow up – some become doctors, some go to prison. I cannot figure out if one kind of parenting philosophy created a more or less successful child.

So try not to judge people’s parenting philosophies.

 In the restrictions section, show a little restraint, and if someone is talking to you about a violation of this section, they need to have evidence.  If there’s domestic violence or exposure to domestic violence in a relationship, have there been arrests? No contact orders? Just because two people are mean to each other, it doesn’t mean they are bad parents. Just because a person is a profound disappointment to you doesn’t mean they will be a disappointment to their child. And sometimes in a dissolution or break up, those parents just bloom and become outstanding parents.

What is the overriding rule of a parenting plan? 
What is the court’s rule?  
Answer: The best interest of the child.

Whenever you are talking to someone in a family law setting, refocus them on that rule, because that is all the court cares about. Is the child doing OK? Is the child struggling? That is the court’s focus.

Yes, it’s painful for the other parent. But there is a difference between what the parent’s needs are and what the child’s needs are. And you can help a parent change their language to the language that the court must hear. Focus the parents on evidence – how do you know this child is missing you? What are you experiencing that tells you? And it helps the court if an unbiased third party has some insight or information to add, like a school teacher, a neighbor, or someone who witnessed something or saw something.

So put your evidence hat back on, and think about what is the best way to show what the child is experiencing.
On page 6 of the parenting plan now.

If you are ever, ever helping someone work on a parenting plan, the court doesn’t want to look at 10 pages. You can edit it, delete boxes that don’t apply, and shrink it down and remove any empty spaces. It’s a Word document so you can edit easily.
This is the second most-visited section when someone comes to talk to you about a family law issue. People always fight over who has the designation as being the custodial parent, and you can talk until you are blue in the face about how Washington State has parenting plans, we designate no custodian, blah blah blah. And the client will point out that the language is in there. But that is only to meet the requirements of some federal statutes related to food stamps, Social Security benefits, veteran’s benefits, not what most people think when they read that section.  For a long time this section was meaningless as it was interpreted to apply to other states and not Washington.

In December 2013, the Washington State Supreme Court said this designation must mean something. This is an interesting case because it wasn’t a divorce, it wasn’t a parenting plan, it was a parentage order.  The parents had not been married. The parentage order will determine who the father is with blood tests or a paternity affidavit, and ultimately they enter an order of parentage and a child support obligation.

But one sentence in the parentage order says one parent is designated the custodian of the child. The court said this designation had to be meaningful. For many parents, the parentage order designating them the primary caregiver is the only legal document governing their relationship with their children and the other parent. So this case really says that the custodial designation is meaningful and it counts.

So the case said that to change that designation, you need to do a support modification.
If anyone has questions about the relocation of a child, section 3.14 spells it out for you.

In some ways parenting plans are great documents because they are flexible, you can add information to them, but it is not a place for child support to be added, it is not a place for designation of who gets the tax exemption to be added, all the money stuff goes into an order of child support.
Six: Order of Child Support
Just know that two systems are running at the same time; the state administrative system, and the Superior Court system. The Superior Court order will trump the administrative order. 

Administrative orders are great because you need no attorney and are easy to use, but they don’t have the powers of equity.  They do not enter into analysis of excessive wealth or debt, or that one party paid for extra things for the child. Administrative court orders are rigid, and Superior Court orders have a great deal more flexibility and can apply equity.
In Street Law, we also see a lot related to child support modifications and statutes of limitations. It’s a 10-year statute of limitations. Every month when child support is due, that money becomes a judgment, and it has a 10-year expiration date.

One of the most common situations I see in Street Law as far as child support goes, is when people show up and they have collected no child support for many years because they didn’t want to have a fight. They didn’t want to rock the boat, things were going fine, and they knew that it would just create a war over the kids. So they waited, and now the kids are older, and they are ready to collect child support. And they have a right to do that. 

Remember when you see someone come to you for that issue, even though maybe the child support is a small amount, the key is the interest. It is not compounded interest, it is per anum interest. The maximum is 12% per year, which equally 1% per month. So the interest calculation will often be higher than the judgment amount. You want to direct that person to an attorney and let them know there are attorneys who will get these judgments and collect on them. I’ve helped many people I’ve met in Street Law by getting these judgments.

 Those judgments are great to get, and because people don’t know how to do that themselves, it’s worth it, and you can put down your attorney fees, and sooner or later the judgment is paid off, and you get paid.
Seven: Protection Orders and Anti-Harassment Orders
These are common issues people will come see you about, but here’s the thing. The courthouse-assigned counsel will process an application for a protection order. A person needs no attorney to go with them, so just send them over to the third floor to the Office of Assigned Counsel, they can do the application, they get a court date, they either get a temporary restraining order or they don’t, but there’s no fee involved. The Sheriff serves it. The system is in place, and it’s effective.

A question that comes up all the time is: What is the difference between an anti-harassment order and a protection order?

Anti-harassment orders are heard on the 4th floor of the courthouse, but even if a client goes to the third floor to apply for an anti-harassment order, the staff will help facilitate that application and get the client to the 4th floor. There may be a fee associated with an anti-harassment order.

The difference: protection orders are concerned with people living in the same household, people who have been in relationships, people who have children in common.

Anti-harassment orders are more about neighbors fighting, employer/employee fights, those kinds of issues.

The Rules of Evidence do not apply to those hearings, so you need to warn them they need to bring in people that will testify. Those hearings are a little wild, and are free-form.
Eight: Assets and Debts
If they have assets, they will not be at Street Law. If there are assets there, it is worthwhile to have them speak to an attorney who can help collect the asset.

Debts are a huge deal. Sometimes they will need to be referred to a bankruptcy attorney. When people are in a dissolution situation, it is way cheaper to have one bankruptcy rather than two down the road. That’s always a good recommendation and a good way to get rid of a bunch of debts.

There’s a disagreement among attorneys about debts. There’s a certain philosophy where people think that when they get a divorce, they get to wipe everything clean off their credit. Or they want their credit score corrected. So people get very frustrated when they get collections calls on a mortgage or a car payment. If that’s the situation, help them get back in court, and ask the court to help them get relief from debt, especially if the other party was ordered to pay a debt and they didn’t.
Nine: Maintenance and Attorney Fees
Once in a while you see someone whose been kicked out, locked out, and cut off from all money, finances, everything. My rule here, which I learned from Liz Balas, is to go to court fast and get maintenance and attorney fees. The longer you wait, the harder it is to get it. So if someone is sitting in front of you, they need to run to court, file a motion, and get the money.
Ten: Getting Help
At the courthouse there are family law facilitators who meet with people to help them with their paperwork. Send people over there for help, but a cost is associated with their help, but it’s not too much. The websites are good, and if they don’t have access to websites there’s the law library. There’s no reason to buy the forms when you can download them for free.
In my experience, these are the 10 things you need to know to survive a Street Law clinic with a family law case.
Published In: Family Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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