Family Law Advisor®

The Divorce, Alimony, and Custody Reporter

Volume 6 Issue 3
September 2002

Good divorce judges are predictable and decisive. Judge Edward Ginsburg of the Massachusetts Probate and Family Court invites his colleagues to avoid delay and decide custody cases within 6 to 9 months in an article published in the August 5, 2002 issue of the Massachusetts Lawyers Weekly.

Judge Ginsburg also proposes that custody decisions be based on written guidelines like child support cases to create dependability and predictability amidst the current chaos.

These goals are admirable, but undoubtedly critics will challenge the Judge's notion that there should be a primary residential parent with the noncustodial parent visiting every other weekend and one evening a week. One critic believes that if Judge Ginsburg had his way, mothers would almost always end up with custody. See letter to the editor, Massachusetts Lawyers Weekly, August 26, 2002. Judge Ginsburg opposes placating parents by awarding shared physical custody or even allowing joint decision-making. He contends that leads to on-going conflict after divorce.

The Judge is dismissive of parent coordinators who end up "serving as a parent to the parents". He goes on to argue that courts should take back control of the decision-making process to protect children, the "innocent victims of divorce."

Judge Ginsburg retires in October 2002, so it remains to be seen whether his ideas take root.

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High-Conflict Custody Cases

"High-conflict custody cases are marked by a lack of trust between the parents, a high level of anger and a willingness to engage in repetitive litigation," according to the Report and Action Plan entitled "Reforming the System for Children". The Report is the product of a conference held in September 2000 for a multinational group of lawyers, judges and mental health professionals who met at the Wingspread Conference Center in Wisconsin.

The Report contains numerous recommendations for mental health professionals, lawyers and judges involved in high-conflict cases. See the Family Law Quarterly, Vol. 34, No. 4, Winter 2001.

Mental health professionals are urged to refrain from crossing the line between therapist and evaluator. Somewhat surprisingly, the conference participants also feel the need to remind evaluators to "be neutral".

Lawyers are told to "maintain a civil demeanor and encourage their clients to follow their example."

The Report asks courts to develop a "quick and efficient calendaring system that prioritizes high-conflict cases" and to "work toward constraining costs."

The Report also calls for the establishment of national qualifications and standards for evaluators and special training for judges and lawyers handling high-conflict cases.

At the conclusion, the Report mentions the following books, among others, for parents and children:

1. "The Good Divorce" by Constance Ahrons (Harper Collins, 1994)
   
2. "Dealing with Loss:" A Guidebook for Helping Your Children during and after Divorce by Herman M. Frankel, (2nd ed., 1999)
   
3. "Caught in the Middle" by Carla Garrity and Mitchell A. Barris (Lexington Books, 1972)
   

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Filing Fees Increase as of August 2002

As of August 1, 2002, the Massachusetts Probate and Family Court filing fees have been increased by $40 to $150.00 for divorce complaints and separate support complaints. Other court fees have also been increased. Call the court for other fee increases.

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Confidentiality and Mediation: An Update

Judge Cynthia Cohen, a single justice of the Massachusetts Appeals Court, recently ruled that a Trial Court judge could not compel a mediator to testify about confidential matters discussed by litigants during mediation. See Leary v. Geoghan, et al, Suffolk Superior Court No. 99-0371).

A full panel of the Appeals Court, however, could decide on appeal that mediators must testify. It seems unlikely in light of Judge Cohen's statement that Massachusetts law, Chapter 233, Section 23C, "confers blank confidentiality…including an explicit prohibition on disclosure in judicial proceedings."

The Leary case is not a divorce case, but it has potential significance for divorcing spouses. As more people choose mediation to resolve domestic relations disputes, it becomes increasingly important for lawyers, judges and parties to share a clear understanding on what remains confidential. If a party is dissatisfied with mediation, and the case goes to trial, it would be monumentally prejudicial if the mediator had to tell the judge what the parties discussed for settlement. No competent divorce lawyer would allow a client to mediate, since anything the client says could be held against him or her at trial.

Fortunately, Judge Cohen favors a black and white reading of the law, creating the broadest protection possible, and preventing disclosure of settlement discussions if the parties end up at trial. So, until we hear again from the Appeals Court, it's probably safe to mediate.

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Attorneys Fees in Contempt Cases

In the Fall of 2002 the Massachusetts Supreme Judicial Court plans on hearing arguments in Silverman v. Shapiro, SJC-08819, involving payment by the mother from her separate retirement assets of the father's attorney's fees in connection with a contempt and modification proceeding that changed custody of three minor children to father. The Court is now soliciting amicus briefs and memoranda from interested parties.

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A Few of Our Favorite Things

"Forget about justice. You're fortunate if the judge shows you any mercy." -- Retired divorce lawyer.

Children of divorce feel "like second-class citizens who had lost the freedoms their peers took for granted. They say that as they grew older and craved independence, they had even less say, less control over their schedules and less power to determine when and where they could spend their time - especially precious vacation time." The Unexpected Legacy of Divorce: A 25 Year Landmark Study, by Judith Wallerstein, Julia M. Lewis and Sandra Blakeslee (Hyperion, 2000), at 181-182.

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