Supreme Court Finds No Automatic Right to Counsel in Child Support Contempt Proceedings

Posted on June 30, 2011 by Michelle O'Neil

The U.S. Supreme Court has found no automatic right to counsel for indigent civil defendants facing jail time, though it ruled on behalf of a father who served a year in prison for failing to pay child support.

The father, Michael Turner, was deprived of his 14th Amendment right to due process, the Supreme Court ruled in a 5-4 decision.

Free lawyers aren't required in such situations, but states must have procedural safeguards in place to help determine whether the parent is able to comply with the support order, according to the majority opinion (PDF) by Justice Stephen G. Breyer.

Turner had told the trial judge who sentenced him to prison that he was unable to pay because “dope had a hold to me” until he broke his back and was laid up for two months. “And, now I’m off the dope and everything,” he told the court. “I just hope that you give me a chance.”

The judge sentenced Turner to a year in jail without making an express finding about his ability to pay. Turner's appeal, brought with the help of a pro bono lawyer, argued he had the right to counsel at his contempt hearing.

Breyer's opinion found that Turner did not get due process in his case, but said a lawyer was not an automatic requirement.

The 14th Amendment’s due process clause allows a state to provide fewer procedural protections to civil contempt defendants than in a criminal case, which is governed by the Sixth Amendment, Breyer said. He noted that both parties in a child support case are often unrepresented by lawyers, and providing a lawyer to just the noncustodial parent “could create an asymmetry of representation” altering significantly the nature of the proceeding.

He also noted the argument of the Solicitor General that alternate procedural safeguards can help reduce the risk of wrongful incarceration. They include: notice that ability to pay is a critical issue, the use of a form to elicit financial information, an opportunity for the defendant to answer questions about his financial status, and an express finding by the court on ability to pay.

Breyer said his opinion does not address a situation where child support is owed to the state, possibly as reimbursement of welfare payments to the parent with custody. Nor does the opinion address the due-process requirement for counsel in a particularly complex case.

Four dissenting justices agreed there is no right to appointed counsel for indigent defendants facing incarceration in civil contempt proceedings. They would not have reached the issue of the need for alternative procedural safeguards.

The ABA had argued in an amicus brief that poor people should have the right to a lawyer in civil contempt proceedings carrying a threat of jail time. The case is Turner v. Rogers.

 

Hat tip to Debra Cassens Weiss for this June 20, 2011 post to the ABA Journal

 

Tags: , , ,

Who's Getting Divorced?

Posted on June 27, 2011 by Michelle O'Neil

That's the question the Census Bureau answered in its May 2011 report, "Number, Timing and Duration of Marriages and Divorces: 2009." The Census Bureau collected histories from some 39,000 households and identified certain characteristics of persons who were divorced. The findings contain few surprises:

  • When it comes to race, the divorce rate is fairly similar for Caucasian (10.8 percent), Black (11.5 percent) and Native American (12.6 percent) couples.
  • Men tend to be divorced at a later age than women (35-to-44 as compared to 25-to-34), which is likely due to the fact that men tend to marry women who are younger than themselves.
  • Men and women who attended college but did not achieve a 4-year degree were 16 to 20 percent more likely to be divorced. While one may suspect this is due to lower income, that can't be the only factor since those with only a high school education tend to earn less than those with some college education and yet high school graduates were less likely to be divorced. Economists have suggested that a failure to finish college could occur for financial reasons or from a personal lack of drive, both of which may lead to less marital success.
  • Female respondents who worked full time were 46 percent more likely to be divorced. Men's full-time employment was somewhat less indicative of their marital status (employed men were 35 percent more likely to be divorced than those employed part-time or less).
  • The rate of marriage is the same for all income levels, but marriages of low-income people are much less stable. Survey respondents who were below the poverty level were far more likely to say they were divorced. And women who were divorced were far more likely to be receiving cash assistance from the government than men who were divorced.

            Source: 24/7 Wall Street.com, "The Six Demographic Characteristics of Divorce."

Hat tip to Scott D. Stewart for his post on June 10, 2011

Tags: , ,

Sexting is Considered Being Unfaithful, But Not Grounds for Divorce, Say Legal Experts

Posted on June 20, 2011 by Michelle O'Neil

New York Democratic Rep. Anthony Weiner's scandalous online dalliances with a string of women – including a porn star he coached to lie – not only places him in hot water with his congressional colleagues, but his history of sexting and phone sex could at least be a contributing factor in a divorce proceeding, if not the primary reason itself, legal experts say.

While most states have a "no-fault" divorce policy -- meaning that a person wanting a divorce does not have to establish fault – legal experts say they’re seeing an increase in social media issues cited in divorce cases.

If Huma Abedin, Weiner's wife and top political aide to Secretary of State Hillary Clinton, were to give the sexting lawmaker the heave-ho, legal experts say it would certainly help her case.

Silvana D. Raso, a New Jersey divorce attorney, says that “most courts will recognize this as a form of being unfaithful through an outside romantic relationship, ” adding that, “most people do set forth why they are getting a divorce and can use this as the reason.”

“Even communications on social media that start out ‘innocently’ and never culminate in a physical relationship can have devastating impacts on a marriage as is evident in the Anthony Weiner case,” she said. “I often deal with spouses who are looking to divorce because the other spouse did not ‘cheat' in the traditional sense but was involved in an emotional affair via social media.”

“This is a prime example of an emotional affair -- an emotional connection established with someone they may never meet -- for example online -- without consummating the relationship, can be seen as being unfaithful,” Raso said.

New York attorney Jonna M. Spilbor agrees. "Sexting, while not technically adultery, is cheating. But she says in New York divorce proceedings cheating "hits you in the heart, more than it hits you in the wallet."

"In other words, divorcing your cheating spouse doesn’t get you a bigger piece of the marital pie. The only way a cheating spouse might get the short end of the stick, when splitting up the marital estate, is if he or she cheated so badly that the non-cheating spouse was completely emotionally scarred and couldn’t live a normal life thereafter. And in this day and age, when cheating is as prevalent as breathing, it simply won’t matter much to a judge."

Attorney Stephen Haller, who represented disgraced former New Jersey Gov. James E. McGreevey in his divorce, has a slightly different take saying, “there’s no specific grounds anywhere that I know of where sexting is listed as grounds for divorce.”

But he does say that text messages and sending racy pictures can be used as evidence constituting irreconcilable differences, but not necessarily adultery.

“Going after other women is irrefutable evidence that constitutes a cause of action -- in this case irreconcilable differences,” Haller said.

Proving adultery is more complicated. Haller says it requires proof that a physical relationship took place at specific times, and that the cheating spouse and the lover were "inclined" to participate in sexual relations.

Haller says Abedin may be less inclined to say the “sexting” was the primary reason for divorce because then the “other woman/women,” legally known as the “co-respondent” would have to be contacted and involved.

Weiner said he repeatedly apologized to Abedin, who was not present at the press conference. He claims that prior to him coming clean publicly, his wife was already aware of some of his indiscretions with other women, although he said that he did not have a physical relationship with any of the women and has never had sex outside his marriage.

Weiner also said he has "no intention of splitting up" with Abedin, but said that she was "not happy" about his actions. 

If his wife does decide to kick him to the curb, the sexting incident could give her powerful evidence for her case.

By Meg Baker, FoxNews.com. Published June 07, 2011

Tags: , , , , ,

Divorce Therapy for Parents: How to help your children

Posted on June 13, 2011 by Michelle O'Neil

Posted by Michelle May O'Neil

It's never too late to do what's in the best interests of your children.

Like many promises, commitments, and agreements, wedding vows often don't seem to be worth the words spoken or the paper they're printed on. However, once a child is brought into the world, that is permanent. And just as "with power comes responsibility," "with children comes moral responsibility" to parent them to have the best chance for a good life and, need I remind you, one which he or she never asked to be born into.

Divorce therapy for divorcing couples with children is quite simple, if parents take the well-being of their children seriously, show their commitment through actions vs. mere words, and can let go of needing to be right in order to do what's right for the child.

It rests on the usual consensus between parents that an 18-year-old entering the world/college/work force with the characteristics of Child A has a much better chance for a good life than Child B as described below.

Child A

Child B

Focused

Scattered

Resilient

Quits

Persistent

Bails

Passionate

Bored

Goal-oriented

No Goals

Handles Disappointment Well

Is Easily Upset

Doesn't Take Self Too Seriously

Hypersensitive

Coachable

Know-it-all

It also rests on a shared belief that a child's personality is built largely upon nature (genetics and temperament) and nurture (parenting in early years, social factors in later years) and that nurture through parenting is much more modifiable than is nature.

Other factors that are pointed out but are not generally known by parents (although usually agreed with when explained) are that a child's well being and sense of security are greatly affected by the cooperative, mutually respectful, and enjoyed relationship between the parents. It is not solely determined by the parents' relationship with the children.

A majority of teenagers, when asked if they had the choice between their parents being nicer to them or more loving towards each other, will pick the latter. The animosity between parents is very painful to their children.

There is ample research from child development studies to support this, not to mention asking each parent the effect that their parents' relationship had on each of them.

Developmental psychologists have gone so far as to say that the cooperative and collaborative relationship between parents has a long-lasting effect on the child's own minds and personality, especially with regard to how his or her emotions and logic work together or fight each other. Some psychologists say that arguing between parents is not as detrimental as arguments that never are clearly and fully resolved. That state of "nothing gets better" or "same old thing again" can cause many children to develop a predisposition to anxiety (that the non-resolution will escalate to something worse) or depression (that mom and dad don't seem to like each other).

Divorce Therapy Made Simple has three steps. Family law attorneys or the court usually direct the couple to attend therapy together.

Step 1: Both parents agree and accept that at age 18, a child with the characteristics of Child A is in a much better position to have a good life than Child B.

Step 2: Both parents agree that how the child is nurtured/parented/raised and how the parents interact with each other have a significant influence on raising a child to become either Child A or Child B and that they have a moral responsibility to do right by their child.

Step 3: Each parent needs to make a compelling and convincing case for what they're asking for (regarding living arrangements, custody, and co-parenting) and how it will result in a Child A rather than a Child B. If they can't make such a case for a request with regard to the children, it will be dismissed by the therapist as irrelevant.

Out of these meetings, actionable and observable behaviors are agreed upon that will positively affect their children. The results of such meetings, either positive or negative regarding the co-parenting skills of the parents, may be given back to the attorneys or court in the form of a written report and/or verbal testimony or deposition.

Hat tip to Mark Goulston for this article. He is also the bestselling author of four books.
 
For more articles on divorce and therapy, visit http://www.divorcemag.com/articles/Therapy
Tags: , , , ,

Relief for Divorce-Related Stress

Posted on June 6, 2011 by Michelle O'Neil

 

Meditate away your stress

The practice of meditation offers peace, serenity, and calm -- a welcome respite from the turbulent emotions of divorce.
By Diana Shepherd

Posted by Michelle May O'Neil on June 6, 2011

How do you beat divorce-related-stress? Many people try "treat" behaviors: smoking, drinking, taking drugs (prescription or "recreational"), eating a carton of chocolate ice-cream -- whatever gives them feelings of pleasure and well-being. Unfortunately, all of these are band-aid solutions: they temporarily ameliorate some of the symptoms without addressing the root of the problem.

Here's a better solution: consider practicing meditation on a regular basis (daily is best). Anyone can practice meditation; you don't have to be on a path to spiritual enlightenment or have any religious beliefs. "Thinking you're unable to meditate is a little like thinking you are unable to breathe, or to concentrate or relax," notes scientist, writer, and meditation teacher Jon Kabat-Zinn, Ph.D. in Everywhere You Go, There You Are. "Pretty much everybody can breathe easily. And under the right circumstances, pretty much anybody can concentrate, anybody can relax."

There are as many types of meditation as there are colors in a rainbow. You can meditate while seated, standing, lying down, dancing, singing, eyes open or shut, listening to music, brushing your teeth, eating -- the list goes on.

Mindfulness Meditation

"Mindfulness provides a simple but powerful route for getting ourselves unstuck, back in touch with our own wisdom and vitality," claims Kabat-Zinn. "The key to this path...is an appreciation for the present moment." Too often, we ignore our present: immersing ourselves in regrets about the past or fears about the future. This is never more true than while going through a life-changing experience such as divorce. So now more than ever, you need to learn to bring yourself back into the present, to quiet and unclutter your mind.

The following meditation can help you to maintain your balance, offering a calm clarity even in very stressful situations. At first, you'll need a quiet space free from distraction to practice mindfulness meditation. Eventually, as you build these mental muscles, you'll be able to bring yourself back into the present moment and quiet your mind anywhere, anytime.

Sit comfortably, your spine reasonably straight but not ramrod stiff, and close your eyes.

Focus your attention on your breathing.

From time to time, you'll become aware of emotions, thoughts, sounds, smells, or physical sensations that break your concentration. Acknowledge they are there, then let them drift past like a cloud -- without passing judgment or getting emotionally or mentally involved with them. Bring your attention back to your breathing and continue the meditation.

If you're struggling with intrusive thoughts, try counting your breaths. Think: "One inhale, one exhale. Two inhale, two exhale," and so on up to 10 or 20. Then start again at one.

Here's another exercise that can help you beat stress. Dirgha Pranayama is called the "three-part breath" because you're actively breathing into three parts of your abdomen. The first position is the lower belly (between the pubic bone and the belly button), the second is the upper belly (between the belly button and the bottom of the ribcage), and the third is the chest (the ribcage). Here's how to do it:

  • Sit with a straight back, consciously relax your body, and let go of thoughts and worries by focussing on your breathing.
  • Breathe slowly and steadily, in and out through the nose and into the belly.
  • Inhale slowly into the first position, then into the second, then into the third; then exhale in reverse: third, second, first positions. Rest your hands on the first two positions to feel your belly rising and falling.

Guided meditation can also be very helpful, especially when you're just starting out. Consider taking a regular class, or listening to a tape or CD at home. Try Susie Mantell's award-winning relaxation audio, Your Present: A Half-Hour of Peace or one of Dr. Kabat-Zinn's "Mindfulness Meditation Practice" CDs.

For more articles on meditation, visit http://www.divorcemag.com/articles/Meditation

Tags: , , , ,