Family Law Advisor®
The Divorce, Alimony, and Custody Reporter
Volume 6 Issue 2
August 2002
Virtual Visitation
A recent Massachusetts divorce case, Cleri v. Cleri, resulted
in Judge Chouteau Merrill allowing Mrs. Cleri to move from Massachusetts
to Long Island, New York. What captures the imagination and interest
of many court observers is the virtual visitation she ordered between
Mr. Cleri and the three children, a five year old and two year old twins.
The virtual visits supposedly give father and children a chance to share
bedtime stories and homework assignments. While virtual visits could
be viable for older children, it seems like a dull and unfulfilling
activity for young children or anyone else used to spending lots of
time together as a family. The court also ordered traditional in-person
visitation on alternating weekends and vacations.
The case will be appealed, according to Mr. Cleri's lawyer.
Military families are ahead of the curve using webcams between children
and absent parents. Based on their experience, virtual visitation isn't
a replacement for in-person interaction.
Gadgets are useful, but not a quick fix for the age-old problem of maintaining
a child's relationship with a noncustodial parent after divorce.
Massachusetts isn't the only state incorporating virtual visits into
divorce decrees. Prediction: webcams will become as commonplace as telephone
calls between parents and children, but will never supplant in-person
contact and activities.
Predicting a Judge's Ruling
Everyone wants to know what the future holds, especially if they've
got a court case. U.S. Supreme Court Justice Oliver Wendell Holmes wrote
that the best lawyers were those who accurately predicted what a judge
will do.
Experience, of course, increases the odds your lawyer will know what
the judge will do. But even experienced lawyers need a little help and
in Massachusetts, they turn to "The Probate and Family Court Speaks,
2002", published by the Massachusetts Continuing Legal Education, Inc.
(www.mcle.org).
The paperback is made up of seventeen sections covering children's
testimony, financial statements, child support guidelines and more.
The format consists of a series of questions followed by responses of
individual judges.
For example, thirty-four judges responded to the question, "Do you
permit children in the courtroom?" Judges typically responded "No" or
"Never", except for Judge Steinberg who wrote: "If they are under the
age of 18 I do not allow the children to remain in the courtroom. If
they are over the age of 18 I try to get them to agree to leave…" Judge
Wilson added a final note: [I] "am usually not impressed by the judgment
of those who have brought [the children] to court."
When asked if the judges make pro se litigants (parties representing
themselves) follow court rules, almost all of the judges responded in
the affirmative, with Judge Sacks adding that " 'Yes' is both an accurate
and incomplete answer. There is a degree of flexibility, common sense
and balance always at play…"
Parental Alienation
Divorce lawyers usually advise their clients not to tap a spouse's
telephone line because that would be a violation of law and because
the tainted evidence might not be admissible in divorce court. Wiretapping
and eavesdropping are still crimes that could lead to five years imprisonment
but a recent Massachusetts case that used tainted evidence to get a
conviction makes us rethink that advice.
In Commonwealth v. Barboza (Mass., 2002), the Appeals Court
ruled that a secret recording of a telephone conversation between a
16 year old boy and the defendant, a 57 year old man, was admissible
in the criminal trial on four counts of statutory rape and two counts
of indecent assault. The defendant was convicted, and while that may
have been the right result, lawyers are concerned about the huge amount
of discretion given to the court in deciding when to admit tainted evidence.
One lawyer recently opined that courts now presume the illegally obtained
evidence is admissible. An the one hand the wiretapper is threatened
with imprisonment and on the other, is rewarded by being allowed to
use the recordings.
Tip: do not risk five years in jail. You can usually find other means
of proving bad conduct on the part of your spouse, such as eye witness
accounts, including yours, and documents. Also, most courts are not
interested in a long list of spousal misconduct in the first place.
While courts do not like immoral behavior like adultery, they do not
hand out economic punishments and rewards because of sexual misconduct.
DNA Testing: Trends in the Law
As DNA tests becomes more accurate and widespread, men are seeking
new laws around the country to terminate support obligations in cases
where DNA clearly shows a man is not a child's biological parent.
If those laws sweep the country, it will change the judicial tide that
makes a man responsible for the support of a child, even if he is not
the biological parent, if the he acted like a parent, was married to
the mother when the child was conceived or born, lived with the child,
helped rear the child, and perhaps even paid support.
Confidentiality and Mediation
The Massachusetts Appeals Court recently ruled that a mediators could
be forced to answers questions at a deposition about the existence of
a settlement in spite of a state law that says a mediator's "work
product and communications cannot be disclosed in any proceedings"
(Leary v. Geoghan, et al, Suffolk Superior Court No. 99-0371).
Although the Leary case is not a divorce case, it has clear implications
for family law mediation. It could lead to mediators testifying at divorce
trials about matters disclosed by the parties during mediation. If that
happens, parties should be warned beforehand that anything they say
could be used against them.
If you decide to use a mediator, find out if your communications are
confidential by statute. Get a written agreement affirming confidentiality,
but keep an eye on the news for further developments.
Alimony and UIFSA
A recent Massachusetts case handed down by the Appeals Court states
that the state Department of Revenue (DOR) must collect alimony from
a non-resident by using the interstate tools available under the Uniform
Interstate Family Support Act (UIFSA). DOR tried to argue that the Department
only had the time and resources to handle child support cases. Alpert
v. Alpert, Norfolk Probate and Family Court, No. 86D0006-DV1.
If you're owed alimony from an out-of-state spouse, call DOR for help
if you can't afford a private attorney, but expect delays.
A Few of Our Favorite Things
The June 2002 issue of "Self-help from Bibliotherapy.com"
focuses on divorce, including:
- "What to Avoid When Selecting a Divorce Attorney" :
Don't restrict your choice to male attorneys.
- "After Divorce, Be a Parent, Not a Friend!" :
Be responsible; set limits.
- "You Punish Yourself If You Don't Forgive after Divorce":
It's a revenge fantasy to think other people will feel sorry for you
and reject your spouse.
- "Divorce Tips and Pointers":
Divorce is not an event, it's a process that takes time.
Produced by Impact Publishers, Inc., the newsletter contains adaptations
from books available from the publisher. For an on-line version, see
www.bibliotherapy.com.
***
One picture and a great caption are worth a thousand words:
One man saying to another over drinks at a bar, "To really get to
know someone, you've got to divorce them." Cartoon at page 57 of
the July 1, 2002 issue of "The New Yorker."
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