Words of Wisdom

"Having been divorced doesn't make you a family law attorney or mediator any more than having been in a car accident makes you a trauma surgeon." ~ Matthew M. House, J.D.

Georgia’s Immigration Bill Needs a New Deal

Matthew M. House, J.D.

With the philosophical rants and heated rhetoric over Georgia’s anti-illegal immigration bill that won Gov. Nathan Deal’s approval May 13, can compassion, common sense, and rule of law be bedfellows?

Former President Jimmy Carter, who governed Georgia, now campaigns globally for the integration of those ideals. A prominent Georgia official loyal to the opposite political party once lauded Carter because the former president “worked to make the Federal Government more competent and compassionate and more responsive to the American people.”

The Georgia politician volunteering that praise was Nathan Deal. Last Friday, the same man signed the nation’s harshest anti-immigration bill into law.

You do not have to condone unlawful immigration – and I certainly do not – to support financial prudence: more taxpayers and fewer depending on social services. You need not excuse lawbreaking adults to be compassionate to the young people who, as toddlers, were carried through fields and across rivers, unable to object.

Make no mistake about it: I oppose illegal immigration and support all humane and lawful border patrol and immigration laws. We cannot afford additional illegal immigrants. The United States finds itself struggling even to meet the needs of citizens and legal residents. Build a fence if the public so wishes. Deport those who came illegally as adults. If it’s cost-effective and sensible, do it today.

But America protects the vulnerable. Under Georgia criminal law, parents commit first-degree cruelty to children by willfully depriving them of “necessary sustenance to the extent that the child's health or well-being is jeopardized.” Through their parents’ intentionally unlawful actions, undocumented children lack the legal status to survive in the United States and have no real ties elsewhere, a fate far crueler than most that the drafters of the child abuse statutes probably envisioned.

Even if teenagers who arrived as children later recognized that their presence violated the law, they could not leave the United States without written consent from the same parents who brought them here illegally. Children gain the right to correct that wrongdoing only after their families have no further obligation to them. Therefore, allowing undocumented teens and young adults to work and attend college so as not to suffer because of their mothers’ and fathers’ actions is compassionate and wise, for their benefit and ours.

The employed pay for the unemployed, whether they are citizens or aliens. It is inhumane to deport, let starve, or make homeless those powerless to overrule their parents’ choices. The best alternative is to let those children work and get an education. When more pay taxes, fewer dip into the public purse.

I agree with many provisions of the Georgia bill, as long as they are amended to apply only to those who came as adults. Their children had no legal capacity to agree to enter the United States and now have no connections to the native land they left nearly a lifetime ago.

Georgians who back the recent bill should remember that a majority of Americans chided President Gerald Ford in 1974 for pardoning former President Richard Nixon, though voters today generally agree with Ford’s decision. As Vice President Dick Cheney generously eulogized Ford 32 years later, “It is far from the worst fate for a man to be remembered for his capacity to forgive.”

Governor Deal, please tell the Georgia Legislature to do for the state government what Carter did for the federal government. Revamp the bill to make it more compassionate, competent, and responsive to Georgians’ needs. Be a brave visionary whom your constituents will hail when they one day eulogize you.


Matthew M. House, J.D. is a divorce and family mediator in private practice in Portland, Oregon. Mr. House frequently provides commentary related to family and juvenile law for television, radio, and print media throughout the United States and is currently a recurring contributor to several. He holds a Bachelor of Arts degree, magna cum laude, from the University of Oregon, and a Juris Doctor degree from the University of Idaho College of Law.

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The Hypocrisy of the Willie Bernstine Case

As a family law mediator and as a citizen, I wear many hats: teen advocate, legal scholar, frugal taxpayer, and, above all, safety seeker. Trying Willie Bernstine as a juvenile for the Jan. 27 shooting that wounded a two-year-old girl will respect all those values.

At the risk of being excoriated by those who decry juvenile court as soft on crime, my training and experience compels me to advocate for teens like Bernstine, not only for his personal interests. Tremendous public good comes from the vastly safer and more cost-effective juvenile justice system that actually achieves results rather than mere illusions.

Adult trials, and the decades-long sentences that follow, betray any regard for public funds, legal history, and societal safety.

Have Contra Costa County (California) prosecutors shortsightedly discounted or failed to familiarize themselves with widely-accepted research and history? Helping youth also helps adults, as citizens and taxpayers. While authorities may purport to share my goals of protecting teens, history, society, and public funds, trying Bernstine as an adult scorns every single one of those objectives.

My years in the legal field make the Bernstine case intrigue and disturb me. Bernstine and the public are poised to join the wounded toddler as additional victims of this tragedy.

As 500,000 youths in the United States enter detention annually, trying juveniles as adults should not exist as a concept. Not for Willie Bernstine. Not for any juvenile.

How many more like Bernstine will be pitted against prosecutors who flout the founding principles of juvenile court? Observers of Bernstine’ case, whether motivated by compassion, concern for public safety, or fiscal responsibility, will find those priorities achieved by treating this juvenile as a juvenile.

Communities benefit from results, not vengeance masquerading as justice. Society is not more secure just because a shackled juvenile is photographed en route to prison. Those who oppose crime should want it to diminish. Rehabilitating juveniles supports that ideal.

Louisiana’s juvenile recidivism rate, for example, was five times lower upon implementing alternatives to confinement. Nationally, two-thirds of inmates incarcerated in adult systems are later rearrested. Half are imprisoned again.

The Juvenile Detention Alternatives Initiative, a public-private partnership, advocates detention only as a last resort. In jurisdictions adopting its protocol, detention center populations declined 52%, and juvenile arrests dropped 45%.

The juvenile system’s financial advantages should impress even those requiring more proof than the vastly reduced recidivism rates. Every dollar spent on rehabilitative alternatives reduces taxpayers’ costs by $8, compared with only $2 saved per dollar spent on incarceration.

Those who would try teens as adults seek results that come only from rehabilitation, not the incarceration they are championing. My experiences with rehabilitating wayward adolescents validate that future-focused approach.

When I mentored juveniles as a law student at the University of Idaho, I witnessed sparks of hope in them. Those youths’ rap sheets ran the gamut from truancy to attempted murder, yet a caring adult’s individual attention redirected them, no matter how entrenched they once were.

At that courthouse, I met a boy whose writing skills I soon discovered. Once I praised his talent, he would bring me new pieces weekly, buoyed that his life had a purpose.

At no taxpayer expense, he developed confidence that he could never have cultivated in confinement, compared to the hundreds of dollars his incarceration would have sapped the public purse daily.

Teens like Willie Bernstine are at a similar crossroads. With expensive adult incarceration that research conclusively deems ineffective, will they burden society and reoffend? Or will they receive cost-effective rehabilitation that produces positive results even 111 years after Chicago founded the nation’s first juvenile court?

Juvenile Injustice: The Peter Montenegro Case

San Jose is only hours from Chicago by air but seemingly light-years away from Chicago’s 1899 juvenile court, the first in the nation.

15-year-old Peter Montenegro’s future, and that of kids like him, hinges on a choice: punishing them as adult criminals or rehabilitating them to honor the original caretaking function of the juvenile court.

Police have alleged that Montenegro shot and seriously wounded an ice cream truck driver in Vallejo, California on February 3.

Despite that he was initially housed at Alameda County Juvenile Hall after his arrest, Montenegro will stand trial as an adult on charges of attempted murder and attempted robbery.

In the rush to hold someone responsible for this tragedy, Peter Montenegro would sit at the top of many people’s villain lists.

Few can imagine something more heinous than shooting Amarjit Kaur, an immigrant with limited English, at close range and making off with her entire day’s earnings.

To be sure, these crimes would be just as reprehensible whether the perpetrator was 15 or 50. But even if a court finds Peter Montenegro guilty of these charges, he is also a victim, and so is the public at large.

As I have devoted my career to the law and its history, I know that any criticism of Peter Montenegro and juveniles like him must walk in lockstep with a rebuke of the juvenile justice system that has also failed.

Juvenile courts have a responsibility to protect and rehabilitate children. Early juvenile courts in Chicago and Denver used that anti-incarceration model because it worked then, and it still does.

Louisiana’s juvenile recidivism rate, for example, was five times lower upon implementing alternatives to confinement. Nationally, two-thirds of inmates incarcerated in adult systems are rearrested after their release, and half are imprisoned again.

The Juvenile Detention Alternatives Initiative, a public-private partnership, advocates detention only as a last resort. In jurisdictions adopting its protocol, detention center populations declined 52% and juvenile arrests dropped 45%.

Montenegro’s case is a matter of fidelity to the bedrock principles that underpin juvenile courts. Trying him as an adult pays no homage to the founding principles of juvenile court.

My years as a family and divorce mediator, and the training that prepared me for my career, have given me a front-row seat to observe myriad approaches to juvenile justice—the ways that thrive and the ones that fail.

As an intern at Latah County Youth Services while I was a law student at the University of Idaho, I saw the sad faces of kids convinced that their small mistakes would trap them for life within the box of delinquency.

I staffed a homework room for juvenile probationers every afternoon. That volunteer job placed me in the path of many seemingly obnoxious and indifferent teens who appeared not to care about their school work or their future.

The thought would occasionally sprint through my head, “Why don’t we just lock these kids up and throw away the keys?”

But you never quite know who your message is reaching. I worked with Autumn and Jenny, among eight other juveniles whose charges ran the spectrum from truancy to attempted murder.

Whn I left the building on my last day, Autumn and Jenny sought me out to tell me I was the only tutor who had ever bothered to help them. That result didn’t come from taking those girls at face value.

Surely the only underestimated juvenile probationers were not hiding in small-town Idaho. That buried potential likely also resides within Peter Montenegro and thousands of other teens.

We will not know unless we look.

The Hypocrisy of the Robert Barnes Case

As a family law mediator and as a citizen, I wear many hats: teen advocate, legal scholar, frugal taxpayer, and, above all, safety seeker. Trying Robert Barnes of Virginia as a juvenile would have respected all those values.

At the risk of being excoriated by those who decry juvenile court as soft on crime, my training and experience compels me to advocate for teens like Barnes, not only for his personal interests. Tremendous public good comes from the vastly safer and more cost-effective juvenile justice system that actually achieves results rather than mere illusions.

Adult trials, and the decades-long sentences that follow, betray any regard for public funds, legal history, and societal safety.

Has Commonwealth’s Attorney Earle Mobley shortsightedly discounted or failed to familiarize himself with widely-accepted research and history? Helping youth also helps adults, as citizens and taxpayers. Mobley, while purporting the same objectives I prize, has scorned every single one.

My years in the legal field make the Barnes case intrigue and disturb me. Barnes and the public have now joined Meghan Landowski as additional victims of this tragedy.

As 500,000 youths in the United States enter detention annually, trying juveniles as adults should not exist as a concept. Not for Robert Barnes. Not for any juvenile.

How many more like Robert will be pitted against prosecutors who flout the founding principles of juvenile court? Observers of Barnes’ case, whether motivated by compassion, concern for public safety, or fiscal responsibility, would have found those priorities achieved by treating this juvenile as a juvenile.

Communities benefit from actual results, not vengeance masquerading as justice. Society is not more secure just because a shackled juvenile is photographed en route to prison.

Those who identify themselves as anti-crime should want criminal behavior to diminish. Rehabilitating juveniles supports that ideal.

Louisiana’s juvenile recidivism rate, for example, was five times lower upon implementing alternatives to confinement. Nationally, two-thirds of inmates incarcerated in adult systems are rearrested after their release, and half are imprisoned again.

The Juvenile Detention Alternatives Initiative, a public-private partnership, advocates detention only as a last resort. In jurisdictions adopting its protocol, detention center populations declined 52% and juvenile arrests dropped 45%.

The juvenile system’s financial advantages should impress even those requiring more proof than the vastly reduced recidivism rates. Every dollar spent on rehabilitative alternatives reduces taxpayers’ costs by $8, compared with only $2 saved per dollar spent on incarceration.

Those who would try teens as adults seek results that come only from rehabilitation, not the incarceration they are championing. My experiences with rehabilitating wayward adolescents validate that future-focused approach.

When I mentored juveniles as a law student at the University of Idaho, I witnessed sparks of hope in them. Those youths’ rap sheets ran the gamut from truancy to attempted murder, yet a caring adult’s individual attention redirected them, no matter how entrenched they once were.

At that courthouse, I met a boy who I soon discovered was a gifted writer. Week after week, once I praised his talent, he would bring me new pieces. Buoyed that his life had a purpose, that teenager completed a new poem or short story between each mentoring session.

At no taxpayer expense, he developed confidence that he could never have cultivated in confinement, compared to the hundreds of dollars his incarceration would have sapped the public purse daily.

Teens like Robert Barnes are at a similar crossroad. With expensive adult incarceration that research conclusively deems ineffective, will they burden society and reoffend? Or will they receive cost-effective rehabilitation that produces positive results even 111 years after Chicago founded the nation’s first juvenile court?

Start with the ones who have the most potential: Making juvenile justice a priority

I recently heard in-flight instructions by a flight attendant who joked that passengers putting on oxygen masks should “start with the child who has the most potential.”

That tongue-in-cheek comment amused me, but it also reminded me of the brokenness of the juvenile court. The judicial system does not prioritize its resources to those who need the most and will benefit most greatly, either.

As someone who has spent years watching juveniles endure neglect from adults who lack the foresight to understand the consequences of their seemingly harmless actions, little things mean a lot. Bonner County’s loss of certification of its juvenile detention facility puts Idaho’s stamp on what is par for the course nationwide.

The state gives juveniles what is left at the bottom of the resource barrel, starkly repudiating every rehabilitative concept of the original juvenile courts. Then, to add insult to injury, after putting incarceration ahead of treatment, authorities cannot even make its dilapidated facilities meet the minimum requirements to house the youth.

While I was a law student at the University of Idaho, I worked with juvenile delinquents for three years. The Youth Services office was a tiny suite within the county courthouse that had cramped hallways with tattered carpet. The probation counselors’ offices were too small to accommodate more than one guest chair.

In my hometown, the two smallest courtrooms – out of more than 20 – are in the juvenile courthouse. I observed 11 hearings in the same juvenile case for more than a year in one of those cramped courtrooms.

The microphone system did not work properly. No one could hear the speakerphone without being within three feet of it. One of the juvenile court judges did not even sit at an elevated bench. It looked more like an elementary school classroom than a courtroom.

Is it any wonder that the juvenile court waiting area – far larger than either of the two courtrooms – was always packed to the gills with up to 40 teens, lined up as if they were waiting for Jonas Brothers tickets? Even making sure that the facility is adequately furnished and maintained to look and function like a courtroom goes a long way toward modeling to adolescents that they should respect a society that takes them seriously.

These days, many juvenile courthouses are run-down and most dockets are hopelessly clogged. Bonner County is one example among many of juveniles getting the leftovers after adults have fed to their hearts’ content at the public trough. Rehabilitating kids requires the resources of the juvenile court, completely unavailable in the higher-priority adult courts that get first dibs on public funds.

Louisiana’s juvenile recidivism rate, for example, was five times lower upon implementing alternatives to confinement. Nationally, two-thirds of inmates incarcerated in adult systems are rearrested after their release, and half are imprisoned again.

The Juvenile Detention Alternatives Initiative, a public-private partnership, advocates detention only as a last resort. In jurisdictions adopting its protocol, detention center populations declined 52% and juvenile arrests dropped 45%.

The juvenile system’s financial advantages should impress even those requiring more proof than the vastly reduced recidivism rates. Every dollar spent on rehabilitative alternatives reduces taxpayers’ costs by $8, compared with only $2 saved per dollar spent on incarceration.

Ensuring the quality of juvenile facilities, and juvenile offenders’ access to resources and court time within them, achieves more and costs less.

Perhaps the Bonner County facility’s plight can raise awareness that will buck the trend of giving the least to those who have the most potential.

Juvenile Injustice: The Jacen Pearson Case

Amid the tragedy of Todd Peek’s death in Iowa, allegedly at the hands of his stepson, Jacen Pearson, Peek’s family members seem to believe that the justice system that traditionally aims to serve the broader interests of society is also available at their personal beck and call to pounce on a pre-adolescent who needs more treatment than condemnation.

I am loath to criticize victims, but Peek’s relatives’ bloodthirstiness will not achieve the satisfaction they seek. Worse yet, the detriment their crusade may wreak on Jacen could add him to the list of victims.

Two weeks ago, the Peek family, seemingly blinded by a kneejerk desire for vengeance, wrote an emotionally-charged letter to the Des Moines Register. That diatribe read like a victim impact statement laced with inflammatory rhetoric.

However, reasonable people are entitled to their own opinions but not their own facts.

When the Peek family excludes Jacen from the list of victims of that heartbreaking incident, they misunderstand the whole point of juvenile court. Fact.

One family, blinded by the prejudice of its own pain, however justifiably so, still does not have the right to deny this child the rehabilitative approach that decades of research developed and a more than a century of practice has validated. Fact.

Communities benefit from results, not vengeance masquerading as justice. Society is not more secure just because a shackled juvenile is photographed en route to prison. Those who oppose crime should want it to diminish. Rehabilitating juveniles supports that ideal.

Louisiana’s juvenile recidivism rate, for example, was five times lower upon implementing alternatives to confinement. Nationally, two-thirds of inmates incarcerated in adult systems are rearrested after their release, and half are imprisoned again.

The Juvenile Detention Alternatives Initiative, a public-private partnership, advocates detention only as a last resort. In jurisdictions adopting its protocol, detention center populations declined 52% and juvenile arrests dropped 45%.

The juvenile system’s financial advantages should impress even those requiring more proof than the vastly reduced recidivism rates. Every dollar spent on rehabilitative alternatives reduces taxpayers’ costs by $8, compared with only $2 saved per dollar spent on incarceration.

Ensuring the quality of juvenile facilities, and juvenile offenders’ access to resources and court time within them, achieves more and costs less.

Those who would try teens as adults seek results that come only from rehabilitation, not the incarceration they are championing. My experiences with rehabilitating wayward adolescents validate that future-focused approach.

When I mentored juveniles as a law student at the University of Idaho, I witnessed sparks of hope in them. Those youths’ rap sheets ran the gamut from truancy to attempted murder, yet a caring adult’s individual attention redirected them, no matter how entrenched they once were.

At that courthouse, I met a boy whose writing skills I soon discovered. Once I praised his talent, he would bring me new pieces weekly, buoyed that his life had a purpose.

At no taxpayer expense, he developed confidence that he could never have cultivated in confinement, compared to the hundreds of dollars his incarceration would have sapped the public purse daily.

Accused teens, and even pre-teens such as Jacen Pearson, are at a similar crossroads. With expensive adult incarceration that research conclusively deems ineffective, will they burden society and reoffend? Or will they receive cost-effective rehabilitation that produces positive results even 111 years after Chicago founded the nation’s first juvenile court?

The juvenile justice system’s dual responsibilities are to protect the entire community and treat the individual offender. Neither is accomplished by indulging one family’s grief-tinged spite at the expense of a misguided 12-year-old who needs help more than the Peeks need revenge.

“Shynerra’s Law”: The First Step, but Not the Last Step in Reforming Juvenile Violence

Now that Ohio Gov. Ted Strickland has signed “Shynerra’s Law,” juveniles needing protection from other juveniles in that state can obtain restraining orders that might have prevented Antonio Rogers from murdering Shynerra Grant in 2005. Judges now have another means of safeguarding the most vulnerable. Shynerra’s Law demonstrates progress: legislators have recognized that threatened adolescents deserve at least as much care from the court as threatened adults already get.

However, even with this monumental leap forward, a restraining order is just a piece of paper. Someone determined to violate it will do so. A judge’s signature and possible jail time will not deter those resolving to harm others. While Shynerra’s Law adds a preventative tool where none existed before, it cannot be the last word.

As a legal scholar and divorce mediator for eight years and a juvenile mentor for 13, I know the rich history of juvenile court—what it was, and what it still is. Juvenile court gives judges a unique opportunity to intervene before a teen ventures too far down the wrong path. Shynerra’s Law aims to stop violence, and, if used properly, the juvenile court has the muscle to protect potential victims even more.

When the Chicago juvenile court began in 1899 and similar courts were established in Denver and other cities, they weren’t much of a court at all by today’s standards. The judge didn’t sit on an elevated bench. He usually didn’t wear a robe. No lawyers stood next to their jumpsuit-clad clients.

The original juvenile courts grew out of the idea that children needed rehabilitation and treatment to become productive citizens. The judges were, in essence, counselors and teachers in a parental role. Many of those early courts had nearly non-existent recidivism rates, precisely because they focused on the best interests of the child, rather than locking him up for a certain term with no preparation for reentering society.

Here’s my question: What if a judge could, upon issuing a juvenile restraining order, also assign that teen to receive the same social services that an adolescent on probation would be getting? Why wait for a crime to be committed when the juvenile court has the authority to act parentally and could avert a tragedy instead of just reacting after someone is maimed or killed?

Criminal court judges cannot usually mandate many conditions for adults before a crime has been committed, but juvenile court judges can. Judges in adult court are not meant to be caretakers. Juvenile judges must, in the words of U.S. Supreme Court Justice Abe Fortas, ask, “What is [the juvenile offender], how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career?” Fortas got it right. Rehabilitating teenagers before their problems escalate benefits all of society, not just the adolescents themselves.

Shynerra’s Law is a good start, but if Rogers ignored a no-contact order, he likely would have disregarded a restraining order also, even if one had been available to Grant. We need to take the law a step further and use the unique authority of the juvenile court proactively to prevent the harm that a mere piece of paper cannot stop.

The Intensive “Don’t Care” Unit: The Lincoln County detention center escapee as a poster child for juvenile justice reform

When Mary-Lou Lawnacki urged, “There is no one you can’t love once you know their story,” she might as well have been writing about the two teen boys who escaped from the Cyndi Taylor Krier Juvenile Correctional Treatment Facility in San Antonio on Feb. 24.

Despite the challenges of acknowledging juveniles’ wrongdoing without making a beeline toward vengeance, rehabilitating them benefits adults and society at least as much as it serves the needs of the offenders. The adolescents who escaped represent children in the juvenile justice system in every city and state, reflecting the crumbling of once-noble goals.

In 1899, the nation’s first juvenile court recognized that, rather than punishment for adults’ failure to endow them with values, juveniles needed treatment and support. 111 years later, schools and courts have abandoned what decades of planning deemed sound.

As Lawnacki observed, understanding people’s stories makes it harder to condemn them. When 30 other juveniles stand in what more resembles a cattle auction than a courtroom, the truth doesn’t meet the same eyes as the stereotypes.

As a divorce mediator and teen advocate, I’ve seen lots of teens like the ones who made news this week. I wonder whether a judge knew that one of my clients’ fathers was high every night. Did another judge consider that the curfew he imposed without reading a kid’s file would ensure doomed homework in the chaos of that so-called home?

What about the logic of forcing a teen to visit a college as a consequence for doing the same thing that had earned a community service sanction the week before? Now, college is punitive drudgery. Nice going, judge.

How about the probation officer who denied one of my teens a visit with me because I challenged her? She jerked that kid away from the first place he got his homework done, prepared for college, and studied for the SAT.

My office is often where teens first tell their stories. Probation officers and judges would love them, too, if they knew those stories. But not if those adolescents fear telling them because of the critical response to every other constructive step they’ve attempted.

Judge Ben Lindsey of Denver, who revolutionized juvenile justice a century ago, counseled adolescents rather than punishing them. Another early reformer, Judge Julian Mack, sought “what had best be done in children’s interests and in the interest of the state to save them from a downward career.”

Where is that foresight at present? Today’s juvenile courts have fewer judges like Mack and Lindsey and more who are unprepared for the awesome responsibility of directing a life at a crossroads.

The ideals of Mack and Lindsey are languishing in the Intensive “Don’t Care” Unit. Appreciating the brokenness of the juvenile court requires not a law degree, but a dictionary. Justice means fairness. It is not fair to deny vulnerable teens the protection they need and deserve.

However misguided the two escapees may appear, they have a story. That story will determine how best to help them and, yes, to improve society, rather than a one-size-fits-all response that deceives the public into thinking the problem has been solved.

Julian Mack and Ben Lindsey were not merely well-intentioned men who tried hard. If their legacy matters, today’s juvenile courts must pay homage to that child-centered philosophy. They are the real heroes of juvenile court. By rehabilitating teenagers like the recent escapees, cultivating optimism, and showing them a purpose, those pioneering judges honored parental compassion over kneejerk vengeance.

Who, Mary-Lou Lawnacki might ask, can’t love those stories?

The Real Repeat Offenders

By Mediator Matthew House, J.D.

When I read on February 1 that Joe Alvin Hix and Fred Gentle had escaped from juvenile detention, my first thought was that the justice system had not provided those boys the resources they needed. Two days later, now recaptured, these boys still do not have access to the rehabilitation that has been a juvenile court mandate since 1899. Surely, certain adults now owe an even heavier price for what has become a repeated failure to honor the juvenile court creed of treatment over punishment.

Where will Joe and Fred learn what they need to know? They didn’t learn it at home. They didn’t learn it on the run. Will they learn it at the detention center? I doubt it. Just the same, I challenge the Charlotte County juvenile authorities to show Joe and Fred why they looked or them and why they brought them back.

If the purpose is to punish them, how well did that work the first time? If the objective is to rehabilitate them, why wasn’t that happening before? If Charlotte County knows what is in its best interests, the good men and women who run the juvenile services will realize that treating rather than punishing Joe and Fred will not only honor the founding function of the juvenile court but will also promote the citizens’ safety and protect their finances.

I wonder how much it cost to search for those boys. I gather it ran into the thousands of dollars. What about the cost of juvenile detention in the first place, somewhere around an eye-popping $210,000 per year per youth. For that price, how much rehabilitation are those kids—and, by association, society—getting for that $575 daily cost when they’re locked in a cell for most of the day anyway?

There is a better way, and I have witnessed it. I volunteered at Latah County Youth Services for three years while I was a law student at the University of Idaho. At our daily study table, I saw grades spike and pride resurface as those teens realized the benefit of diligence. They were never shackled and, in groups of no more than four, were supervised by an attentive adult. That care for the individual kept those adolescents on the right track. I never had one of my kids reoffend and go to detention. We used rehabilitation and support because they work.

The false satisfaction of knowing juvenile offenders are behind bars gives the appearance of preserving public safety. To be sure, no one who is a danger to society should walk the streets. But the focus should not be on punishment but instead on the dual protection of the community and the offender who probably has a lot of hurts that no one would want as a bio.

Incarcerating kids for an arbitrary period is like staying home from work for the number of days it typically takes to recover from the flu. What happens in that span, not the time itself, determines whether the illness goes away. When juvenile judges lock up teens in facilities where rehabilitation is not the sole (not just primary, but sole) function, merely being in detention accomplishes nothing except further hardening those adolescents toward a society they have already decided has neglected their needs.

Charlotte County needs a gigantic wake-up call. If the authorities don’t tune in that they have failed even to try to support and treat Joe, Fred, and countless others like them proactively, this will not be the last time they must spring into reactive panic mode to chase down an inadequately rehabilitated teen.


Matthew M. House, J.D. is a divorce mediator and teen advocate in Portland, Oregon. He is a frequent divorce and family law expert guest on television and radio nationwide.

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Miles Ahead, Light-Years Away

By Mediator Matthew House, J.D.

Connecticut’s experiment with opening some juvenile proceedings to public view is the second-best solution to fix a broken system, but that’s no more noteworthy than the second-most-common hair color in China. The gap between best and second-best is almost ridiculously vast, because the far better approach would involve extending to juveniles the same constitutional rights that adults have in criminal proceedings.

Not observing standard evidentiary rules and procedures is fine if the juvenile proceeding is noticeably different from adult court. When juvenile courts began around the turn of the last century, first in Chicago, then in Denver, eventually extending to every jurisdiction in the United States, they were more therapeutic and less punitive. Now, adolescents face judgment in courts that bear every characteristic of adult court except the name.

Perhaps Connecticut’s pilot program in Middletown will allow some who are observing juvenile courts for the first time to see that the system cannot have it both ways. If juveniles undergo a trial that anyone would assume was an adult proceeding except for the age of the defendant, they deserve the same legal protections that an adult would have in his or her arsenal to combat the charges and level the playing field. Without those rights, criminal courts give the most vulnerable defendants even fewer advantages than a fully-grown adult who could thoroughly appreciate the quality of his or her actions.

The alternative is to revert to the caretaking role of the juvenile court, a protective realm in which criminal codes and rules of evidence do not apply to the cardinal goal of rehabilitating the young boy or girl in need of support. The purpose of private juvenile proceedings makes sense if they resemble counseling, which itself is confidential. But it seems a Petri dish for corruption if, already stripped of adult rights, juveniles—in what is nothing short of a criminal trial—lose their last check and balance, the public watchdog.

As a divorce mediator and juvenile advocate, I have learned what works. Three years as a mentor for juvenile offenders at Latah County Youth Services while I was a law student at the University of Idaho reinforced to me that juvenile offenders who have stumbled off the proper path deserve help, not embarrassment.

Connecticut needs to expand its already commendable efforts. First, the state should extend to juveniles any provisions of the state and federal Constitutions that do not already apply to them, even though the United States Supreme Court has not yet done so nationally. After all, state protections can be greater than the federal ones; they just cannot be less.

Second, incarceration must be a last resort and used only to protect the community while the juvenile is being counseled and retrained to reenter society, not to punish the adolescent. Juvenile detention as a general policy costs too much—about $210,000 per year per youth—and has far greater recidivism rates than treatment and rehabilitation.

The private system would not need to step out into the sunshine if it were already working. The Middletown program reflects a flawed system that is even worse in most other states. Connecticut laudably chose to make a questionable process public instead of leaving it private. The far better option is to create a system so trustworthy and fair as not to require piercing the privacy that has veiled what used to be a child-centered, treatment-based institution.

The privacy that shrouds juvenile court for sound reasons should not be used to enable prosecutors and judges—driven by efficiency or ambition instead of justice—to trample juveniles’ rights because they face no scrutiny.

The Intensive “Don’t Care” Unit: Christopher Beverage and Nicolas Bismuke as poster children for juvenile justice reform

When Mary-Lou Lawnacki urged, “There is no one you can’t love once you know their story,” she might as well have been writing about Christopher Beverage and Nicolas Bismuke, who escaped from the overcrowded Jack Jones Juvenile Justice Center in Pine Bluff, Arkansas and were recaptured on January 31 and February 1. Christopher and Nicolas represent a decline in the commitment to children everywhere as they reflect the crumbling of once-noble goals.

In 1899, the nation’s first juvenile court recognized that, rather than punishment for adults’ failure to endow them with values, juveniles needed treatment and support. 111 years later, schools and courts have baselessly abandoned the approach that decades of planning deemed sound.

As Lawnacki observed, understanding people’s stories makes it harder to condemn them. When a scraggly-haired kid with ripped jeans stands with 30 other juveniles at what more resembles a cattle auction than a courtroom, the truth doesn’t meet the same eyes as the stereotypes.

As a divorce mediator and teen advocate, I’ve seen lots of kids who missed the holistic treatment that I hope these adolescents will get. The judge for one of the teens I met probably did not know that the kid’s father was high every night. Did the judge consider that the curfew he imposed would ensure doomed homework in the chaos of that so-called home?

What about forcing a kid to visit a college for the same offense that had earned him community service before? Now, college is punitive. Nice going, judge.

My office is often where teens first tell their stories. Probation officers and judges would love them, too, if they knew those stories. But not if those adolescents fear telling them because of the critical response to every other constructive step they’ve attempted. Let’s hope these boys will not think they are a mistake just because they made a mistake.

Judge Ben Lindsey of Denver, who revolutionized juvenile justice a century ago, counseled adolescents rather than punishing them. Another reformer, Judge Julian Mack, sought “what had best be done in children’s interests and in the interest of the state to save them from a downward career.” Why is that foresight generally so absent today?

Instead of a judge unprepared to direct a life at a crossroads, if my teens had appeared before Judge Lindsey, Judge Mack, or, let’s hope, the judge for this week’s detention escape, they would have told their stories. One kid’s dad got in fistfights with the teen’s friends and was too drugged-out later to remember. Another would have described a family with rampant addiction and a father who became enraged when others suggested the young man could succeed.

The ideals of Judge Mack and Judge Lindsey are languishing in the Intensive “Don’t Care” Unit. Appreciating the brokenness of the juvenile court requires not a law degree, but a dictionary. Justice means fairness. It is only fair to ensure vulnerable teens the care they need.

However misguided these teenagers may appear, they have a story. That story will determine how best to help them and, yes, how best to help society, rather than a one-size-fits-all response that deceives the public into thinking the problem has been solved.

Julian Mack and Ben Lindsey were not merely well-intentioned men who tried hard. If their legacy matters, today’s juvenile courts must pay homage to that child-centered philosophy. By rehabilitating teenagers like these young men, cultivating optimism, and showing them a purpose, those pioneering judges -- as the judge in the current case should -- honored parental compassion over knee-jerk vengeance.

Who, Mary-Lou Lawnacki might ask, can’t love those stories?

Holidays are child-focused, not parent-focused

One of my high school classmates posted something on her Facebook status tonight that fueled my desire to speak directly to divorced parents. She said, “People can choose to do what is right....or what they can get away with. Hurting others is not a consideration in the latter. People who are selfish will remain that way.” I can totally relate to her sentiments, especially at this time of year when giving generally abounds, except for many divorced parents, for whom selfishness spreads faster than germs in a Kindergarten classroom.

Whether as a religious event or a cultural tradition, somewhere north of 90% of Americans will celebrate Christmas in three days. Christmas is about giving. It is about putting others’ needs ahead of your own. This time of year reminds all of us to make a special effort to be generous and selfless. But parents have that obligation every minute of every day of the year. Being selfish is a choice in general, as my friend suggests, but it should not be among the options that parents consider. Parents must hold themselves to a higher standard. If parents are not generous and selfless toward their children, who else can be expected to do so?

Although parents must often tell their children what to do on matters such as nutrition, study habits, or bedtime, how to celebrate holidays is nothing of the sort. However, speaking of routines, most children seek to preserve their longstanding traditions anyway. It seems consistent for parents who have insisted on many other predictable routines would also adhere to longtime customs at the holiday time also.

Except for one thing: divorced parents are often spiteful. They change the routine suddenly and disregard their children’s needs and preferences because they desperately crave their own comfort and stoke their bitterness toward the other parent. If you are going to consider your children’s opinions, and any child-focused parent should, you need to be open to it. When you hear a preference, even if you don’t share that opinion, it’s the holidays. Do what your kid wants to do, especially if it’s what your family has always done, unless there is a compelling reason not. Not just any reason. A compelling one. And in case you aren’t sure whether it’s compelling, ask another adult you trust. Judge that person’s immediate body language and reaction. You’ll have a pretty good idea whether you’re off-base or not.

Divorce seldom results in both parents living in or even taking turns living in the same house. If finances and geography allow, as they usually do, one parent can remain in the family home with the children. That is the home where the kids have spent their most recent years—and possibly their entire lives. It is furnished with the beds, sofas, and toys they’ve always used. Their friends live within walking or biking distance. The second residence is likely a smaller apartment or rented house, and it is definitely a place that is not as familiar to the kids as their home. Traditions have been made in the first home, not in the second home, and as long as one of the parents still has the family home, it makes sense both practically and emotionally to carry on the traditions in the home where they’ve long taken place.

Parents have to trust the other parent to handle new roles. “I’ve always done the Christmas routine, and my kids’ Christmas will be ruined if I don’t do it” is not an acceptable answer. There is always a division of labor in a home, and the fact that one parent has been the one to perform a particular task in the intact home does not compel the conclusion that the other parent is incapable of doing it. I’m sure the other parent would find it to be the height of condescension to be told by his or her ex that only the ex had the capacity to do something, especially a simple responsibility.

I’ve had clients tell me something similar in the past, especially around preserving the holiday traditions. So I call their bluff: “OK, if you don’t think he can get adequate presents for the kids so that they have a memorable Christmas morning, you go bring some of your extras over to his house, and then the kids will have them, if this is really about them.” Of course, of the three or four clients with whom I’ve tried that tactic, none has ever taken me up on the proposal. Why? Because I called them on the carpet for their obvious attempt to manipulate the circumstances to their advantage. If it were really about the children, the other parent would go the extra mile and not seek the credit for it. Suffering the pain of a divorce does not license a parent to cause more pain to his or her children.

Divorce does not make kids traumatize their parents, but parents in divorce can easily and deeply traumatize their children. Do not ask the kids their preferences outside the presence of the other parent, if you ask at all. Enlist the help of a third party to seek the opinions of your children gently and inform you confidentially. Children WILL NOT give both parents the same answer, or an honest answer, to contentious or sensitive questions. Do not make the children face the unenviable choice of siding with a parent or upsetting one. When you do consult a third party, that person has no interest in the outcome and no reason to take sides. What he or she is telling you is most likely the unvarnished truth, like it or not.

This holiday season is not about you. You had 18 years of childhood holidays. Presumably, they were happy. If so, you owe your children the same. If yours were not joyous, you owe your children better than what you had. Bottom line: your children should not pay the bill for your emotional debts. It is not your children’s job to fill the holes that divorce has left in your life. It is your job to clean up the carnage that the fractured family has caused in theirs. It is unfair to ask your children to be your friend or your shoulder to cry on. Let your kids be kids, and make sure they see you acting as a mature adult would. If you would not choose to expand your horizons by making friends with other 10-year-olds, as no healthy adult would, don’t leave your own ten-year-old with the burden of being your friend, confidant, and protector.

Mediator Matthew’s New Year’s Resolutions: 10 strategies divorced parents don’t know

FOR IMMEDIATE RELEASE
Office of Mediator Matthew House, J.D.
(503) 643-5284
matthew@mediatormatthew.com
www.mediatormatthew.com


Mediator Matthew’s New Year’s Resolutions: 10 strategies divorced parents don’t know

Portland, Ore. --- Mediator Matthew House, J.D., divorce mediator and teen advocate, will release his annual “Top Ten New Year’s Resolutions for Divorced Parents” on his website, www.mediatormatthew.com, on January 11, 2010 at 11:00 a.m. PST. He is available to the media from December 22, 2009 to January 10, 2010 in person, by telephone, or via satellite to discuss the strategies in advance in his trademark “tell-it-as-it-is” style—humorous and frank.

Mr. House’s recommendations are especially pertinent in view of the number of divorced parents who do not presently adhere to those practices. Over 80% of divorced parents in the United States do not presently adhere to Mr. House’s Resolution #6: “Name an alternate guardian for your kids in case of your death.” Nearly 85% of divorced parents do not observe Mr. House’s Resolution #10: “Reevaluate budgets and support each year for new circumstances.” Mr. House is presenting these strategies at the precise time of year when many parenting plans and other elements of divorce agreements are typically reevaluated and redrafted.

Mr. House developed the New Year’s Resolutions for Divorced Parents after several clients in the last year said, “Tell us some simple things that will go the farthest toward making our children’s lives as smooth as possible.” As that request is common to millions of divorced parents, the Resolutions have grown out of Mr. House’s credo, “If I can’t stop divorces, I can stop messy and contentious divorces.”

Every child of divorce deserves that his parents have the wisdom and awareness that Mr. House’s child-focused strategies provide. The Resolutions, consistent with the outspoken approach Mr. House takes to divorce mediation, challenge and entertain the audience while also moving them to action.


About Mediator Matthew House, J.D.: Mediator Matthew House, J.D. holds a Bachelor of Arts degree, magna cum laude, from the University of Oregon and a Juris Doctor from the University of Idaho College of Law. He practices family and divorce mediation in Portland, Oregon. He has appeared on over 20 television and radio programs nationwide, including multiple appearances on several programs, discuss¬ing current issues related to family and divorce and providing guidance to audiences with his hopeful yet direct approach.


Press kit of photographs, biography, testimonials, and credentials is available upon request

Holiday Strategies for Divorced Parents

Over one million Americans—the vast majority parents of minor children—will have divorced in 2009. Millions of children will experience their first post-divorce holidays, and millions more will endure another painful year of fading traditions and fractured relationships.

As a divorce mediator, I know that while the potential for conflict-ridden holidays looms ominously, keeping in mind five key strategies will allow divorced parents to say “Happy Holidays” and mean it.

1. Divorce ends a marriage but not a family. Families do not have to disintegrate and pretend the other members don’t exist just because Mom and Dad decided not to be spouses. Don’t turn one sad event into two ongoing sad events. If you are confident you can be civil, celebrate the holidays together. Have the traditional meals. Spend time in each other’s homes with the children. The only caveat is not to get so chummy with each other that your kids start to ask “So, why are you divorced?”

2. Parents must preserve their children’s routines as much as reasonably possible. The family structure has changed, as has at least one parent’s residence. The holiday traditions should not be the next rock of stability yanked away. If Mom’s extended family has done the same thing every year on the same date, so what if it’s Dad’s date to have the kids this year? The kids come before the parents’ desire to even the score. A child-focused holiday schedule means doing right by the children, not making sure the parents have equal-down-to-the-minute parenting time.

3. Avoid the “deck of cards versus home theater system” one-upmanship. Both parents should agree on a gift budget so that the kids are not receiving disparate gifts. The concept of buying the kids’ affection is no fable. Consistency is important. The reasons a frugal parent does not want to compete with a spendthrift are obvious. However, kids also hold extravagant purchases against the spender if that parent seems to enjoy financial abundance while the other parent lives like a pauper. “Mom, thanks for the board game” should never be paired with “Dad, are we going to pick up the new pony before the Hawaiian cruise or after we get back?”

4. Children have no exes. Parents need to be adults, and if you’ve had the same in-laws for years, surely you can stand to be around them for a couple of hours for the celebration your kids have remembered every year since they were born. Ending a marriage severs your relationship to your in-laws, not your kids’ relationship to their grandparents, aunts, uncles, and cousins. If you’re happy to be rid of your ex’s family, be glad you don’t have to see them day in and day out, but any adult can be civil for one evening.

5. Don’t let Family #2 make you forget about Family #1. Celebrating holidays together, even if it works initially, can get sticky when new partners, spouses, and children. The degree of sensitivity to the children and their other parent determines whether that transition is smooth or rocky. If possible, parents should wait at least two holiday cycles before involving a new partner in holiday celebrations, so that the kids’ routine can remain intact without the adjustment to new people right away.

There are no divorced children; there are only divorced parents. Divorced parents can focus on celebrations. Throw a party instead of throwing a fit. Celebrate so your children know without a doubt that they mattered enough to be more important than your problems with their other parent.

Matthew M. House, J.D. is a divorce and family law mediator in private practice in Portland, Oregon.

Dawayne Patterson: Poster Child for a Broken Juvenile Justice System

Kansas City is about eight hours from Chicago by car, but its approach to juvenile justice seems light years away from the principles of Chicago’s first-in-the-nation juvenile court in 1899. 16-year-old Dawayne Patterson’s future, and society’s attitude toward kids like him, depends on whether we would prefer to do right by children or to be politically expedient.

Jackson County prosecutors have charged Patterson with second-degree murder, armed criminal action, and illegal discharge of a firearm. He was initially charged as a juvenile but was later certified to stand trial as an adult.

Certified? I’ve always thought my English was pretty good, but I still looked up that word, “certify.” The dictionary says it means “to attest as certain” or “to guarantee.” I am beyond curious as to how the county did that with Patterson, especially given how clear the juvenile court principles are. We’ve gotten away from the child-centered approach as politicians running for office and bureaucrats looking to advance within their agencies cannot do what is right for kids because it may make them look soft on crime from the perspective of equally-ignorant voters and supervisors.

The establishment of the juvenile court in 1899 recognized that children and youths were different from adults. It was not just to treat them the same as adults then, and it isn’t today, either, but we do it anyway because kids cannot vote and cannot contribute to political campaigns. Those who do vote and finance campaigns want a world that is tough on crime without recognizing the far greater benefit to society that would come from building up the very youth who now are intentionally held down.

The Chicago court in 1899 saw children as immature, less capable of criminal intent, prone to various violations typical of growing up. The court saw its function as intervening to prevent children from becoming delinquents and to prevent delinquents from becoming adult criminals.

Here’s my question: What inquiry did the police and prosecutors conduct that led them to attest as certain and to guarantee that this child was mature? What allowed them to attest as certain and to guarantee that Patterson was as capable of criminal intent as any adult? How did they probe his background, life experiences, intelligence, upbringing, and psychological health to attest as certain and to guarantee that he was somehow immune to the problems, stumbles, and transgressions that any other teenager would experience? How did Patterson pass the stringent yet specific test that the Chicago court set forth in 1899?

What will this trial and possible sentence upon conviction do to prevent him from being an adult criminal? The overarching reason for waiving juveniles into adult court is to afford the opportunity for a harsher sentence. If convicted, the State of Missouri will not have to address Patterson’s problems as soon as if he were handled through the juvenile system—far more punitive than the founders of the original juvenile court had intended, but still the only avenue for treatment and rehabilitation compared to the adult system that provides next to none.

It is time for society as a whole to examine why we try harder to rehabilitate empty soda cans and old newspapers than we do to rehabilitate kids like Dawayne Patterson.

When Parents Aren't Responsible, Let Them Off the Hook: The American Way

Davenport, Iowa has recently enacted a parental responsibility ordinance that holds parents responsible when their children commit various offenses by imposing penalties that begin at a warning letter and escalate to a required parenting skills class and ultimately a fine of up to $750. This ordinance should be a model for the rest of the country so that juvenile justice can get back to its original purpose.

Davenport’s ordinance should be heralded as an example for the entire United States for several reasons:

First, it holds parents responsible for their own failings. Children should not be victims of their parents’ stupidity. Everything we learn comes from others. Most of what young people learn comes from older people, particularly their parents. If your teacher is inept, uninterested, or just ignorant, you won’t learn no matter how old you get. Kids are not responsible for acquiring the knowledge their parents refuse to give them.

Second, it focuses on getting children the help they need. Children deserve to know that adults will not give up on them. Ever. We are telling kids, “I’m going to fail you by ignoring you and not teaching you what you need to know, and then when you’re in big trouble because I failed you, I’m going to fail you again.

The American Civil Liberties Union took up the cause of a woman who had run afoul of the ordinance when her son was in trouble with the law. Grasping at straws, her ACLU attorney, Michael McCarthy, alleged that “the sin of this law is that it can seriously handicap parents who are doing all the right things even though their child has engaged in some misbehavior.” Judge Gary D. McKenrick was persuaded to overturn the ordinance even though McCarthy’s argument was merely speculative.

Even if McCarthy’s contentions made sense, and even if they were based on a desire to help children succeed instead of holding adults responsible for adult behavior, they affect only a tiny percentage of the cases under the ordinance.

Most of the parents whose kids violate the law ARE derelict. Most of the parents whose kids violate the law DO need to take parenting classes. Most of the parents whose kids violate the law DO impose a financial burden on society that ought to be recouped via fines when possible.

As we live in a society that neglects children left and right and is not serious about taking care of them, it is not surprising that the ACLU would challenge, with a judge’s blessing and indulgence, an effort on the part of the community to give children what their parents would not or could not.

Too expensive to divorce?

We're just about a year into this financial crisis. Are we seeing the light at the end of the tunnel? I'm not sure. It remains to be seen. But nowhere is the financial crisis more apparent than in the divorce arena. Financial stress always visits problems upon a family, and these scarcely-seen fiscal calamities make things even worse.

Rediff.com has published an article today that examines the reduction in divorce filings that has resulted as the financial crisis has set in during the past year. Some may examine this trend and believe it is a positive development. I disagree.

Here's why: It's not as if I believe that divorce should be encouraged. I'm all for strengthening families and reducing divorce. As a divorce and family mediator, I do exactly that every day in my practice. But some marriages end no matter what I try to do to save them. They sometimes end frivolously, but often they end because they truly need to.

The problem I have is that I do not believe that people should decide not to divorce (even if they need to and should) just because of finances. Think about this -- would you divorce your spouse just because you COULD afford to live wtihout his or her income? Surely not. Divorce isn't something to do just because you have the money. Likewise, staying married isn't something to do just because you don't have the money to get divorced.

Almost all counties have reduced fees or no fees for people who need to file a divorce petition but don't have the funds to pay the filing fee. Many free and low-cost legal clinics and even some private attorneys provide affordable services.

People shouldn't marry because of money, and they shouldn't divorce because of money, either.

Minimum age for marriage?

I read a story today about that little Florida girl, Haleigh Cummings, who is still missing and probably dead. I also realized for the first time today that her father married his current wife not long ago. And here's the kicker: she's only 17 years old.

She's not old enough to smoke. She can't buy a beer or go to a casino. But she can get married. Is that a big deal? I say yes, as aa divorce mediator. My clients have so many important things to understand, from taxes to assets to parenting. Even fully-grown clients are often overwhelmed. It's too much to expect a minor to enter into such a monumental legal contract when she's still at an age at which the law doesn't allow her yo enter mist other legal agreements. Something as serious as marriage shouldn't be the exception to that rule.

Interstate same-sex divorces

On October 1, District Judge Tena Callahan of Dallas, Texas granted a divorce to a same-sex couple who had been married in Massachusetts and sought a divorce in Texas. This case presents a number of interesting legal issues regardless of whether one supports or opposes same-sex unions.

1. Does a state have to recognize a marriage from another state if the current state's laws do not provide for the same definition of marriage? The concept of full faith and credit requires that states enforce other states' laws and contracts to the extent that they apply to former residents of those states.

2. Was more than just philosophy and ideology at play here? I think so. There's a practical element here, and I think it's the desire not to open the floodgates. Most family court systems are clogged beyond belief already. The filing fee, usually a few hundred dollars, nowhere near covers the time for to produce the forms, have the staff explain how they're filled out, have the court clerks answer questions for sometimes hours, take them down to a judge, have the judge spend his or her time reading the papers, have one or more court hearings involving the paid services of a judge and at least one staff person, and so on and so on. My state, Oregon, could never spare even a moment of its court time. Someone I know was involved in an adoption case in the family courts here for 14 months with over a dozen hearings, all of which were squeezed into the last possible window. Putting politics aside, the court system in many states may not be eager to take on the legal ramifications of a marital relationship that is available in only a few states.

3. Isn't a same-sex divorce a win for opponents of same-sex marriage? (Please at the outset note that I am answering this question objectively, and any one-sidedness in one aspect or another in this question should be balanced by other comments I make, and does not reflect my personal views on this topic or any other). You'd think so at first glance, but not really. People who oppose same-sex marriage believe that marriage as a legal relationship should exist only between one man and one woman. If you're not married, you don't have any legal relationship that needs to be dissolved. Only marriages need to be dissolved by the courts. If I had to guess, I would suppose that opponents of same-sex marriage are just as opposed to same-sex divorce because the very fact of needing a divorce through the courts means that what is being dissolved was a legal relationship to begin with. Same-sex marriage opponents strongly believe that same-sex marriages should not have that legal status.

Dividing Pensions

Examiner.com has posted an article by a Virginia attorney that rightly criticizes the Virginia family court system for its inconsistent and sometimes downright unjust treatment of family law litigants in general, but particularly military personnel. Without addressing the accuracy of his specific claims, because I have no way to verify his allegations, I wish to comment on the family law concepts that the article brings to light.

1) The author claims that Virginia forces military personnel to split their pensions with their spouses even after the end of a short-term marriage. In Oregon and other equitable distribution states, of which Virginia is one, a short-term marriage of less than 10 years’ time would compel a court to award each party what he or she brought into the marriage plus an equal share of what was accumulated by both parties during the marriage. Those calculi are not absolute, but they represent general principles. The degree to which people have become financially intertwined, and thus one is more dependent on the other than he or she otherwise would be, determines the amount of the more well-off spouse’s assets, if any, that the court may tap in equity to meet the self-sufficiency needs of the receiving spouse.

2) The author goes on to allege that Virginia courts order the pensioner to surrender half of his or her pension at the earliest possible retirement date, even if the pensioner does not retire. I would propose several alternatives, and I encourage these approaches in my mediation office. One option is to divide the pension as of the date of the dissolution, with the payoff beginning at age 62 or 65, with interest that has accrued between the dissolution and the age at which the Husband and the Wife have agreed. The second option is to do the above but to divide the pension as of the date of the pensioner’s retirement, which avoids the untenable circumstance of the pensioner being required to make monthly payments that their military salary cannot support.

Family Time with Your Kids and Your Ex

In a May 22, 2009 article, actress Denise Richards is interviewed about the dinner she recently had with her ex-husband, Charlie Sheen, their two daughters, Sheen’s new wife, Brooke Mueller, and the twin boys of Sheen and Mueller. It had seemed to many observers that Sheen and Richards could not stand the sight of each other and could not bear to be within earshot of each other.

However, Richards visit with Sheen demonstrates several healthy principles of co-parenting after divorce. It allowed their children to see that they still got along and could be civil to each other. Children are the link that binds a husband and wife together, even after they have divorced. Parents may not always be spouses, but they will always be parents if they have children in common. Spouses can be divorced from each other, but parents are never divorced from their children. My mom has always been able to tell my sister and me with a straight face that she will always love my dad because he gave her the two things most precious to her.

The only drawback to a visit such as the one Sheen and Richards had is one that can easily be managed and avoided. After you’ve gone through a divorce, particularly one as contentious as the one Sheen and Richards endured several years ago, you don’t want to send your kids the conflicting messages of “we’re divorced” and “we hang out together.” You need to make sure it’s clear that you are divorced and will stay that way, but that you can also do things as a family from time to time. If the kids were a little other than Sheen’s and Richards’ kids were at the time of the divorce, they might wonder, “Why did you put us through the trauma of a divorce if you don’t have any trouble getting along?” Obviously, that’s an oversimplification in adult terms, but it may be exactly what’s running through a kid’s mind.

All in all, I’m a huge proponent of children getting to spend family time with both parents as often as it makes sense, so I think it was very big of Sheen and Richards to put their children’s happiness ahead of whatever animosity they still harbor against each other.

Arranged Marriages Aren't Necessarily Happy

As we approach Memorial Day, a reminder of the struggles of our troops to secure the cause of freedom, it is especially relevant to contemplate how many countries around the world do not have the liberties that we take for granted in the United States of America.

I just read an article from the Tehran (Iran) Times Women’s Desk. Putting aside the possible oxymorons (concern for women + Iran) and (Iran + free press), I want to address the logic-deprived argument in an article from May 25, 2009.

The article claimed that 90 percent of “love marriages” in Iran end in divorce, compared with only 15% of arranged marriages. I have a few problems with these premises, and maybe I’m the only one who doesn’t understand this stuff, but I doubt it.

1) I thought a “love marriage” was a “marriage.” Yes, certain people enter into marriage without the loving bond that they should have, or with some ulterior motive. But in general, marriages are predicated on love. For a country to differentiate between marriages of love and marriages not based on the love between the two spouses – and then to condemn the ones based on love – is beyond me.

2) The article tries to imply that arranged marriages are a better idea because they fail less often. That’s like saying marriages were stronger in the 1950s because not as many people got divorced. Nonsense. There were crappy marriages in the 1950s also, but there was less of an ability to get out of them because of fault-based divorce (no-fault divorce had not yet arrived and would not arrive for several more decades) and there was a stronger societal pressure to remain married.

Just because there are far fewer divorcees among those whose families have arranged their marriages, it doesn’t show me that they have stronger unions. Instead, it suggests to me that they are more submissive to the will of their family members, as they allowed their family members to choose their spouses in the first place. The desire not to disappoint the family, or the intent not to incite backlash, seems the driving factor in the continuity of those marriages, rather than the thorough harmony of the husband and the wife.

Drivers and Passengers in Divorce

I’ve said all along that there can be a driver and a passenger in a divorce – someone who wants the action and is pressing it, and someone who is being dragged along against his or her will. In most divorces except the most amicable, and even in some of those, there is an instigator and a responder. In fact, the court system makes this distinction between the “petitioner,” the person who initiates the legal proceeding, and the “respondent,” the person who answers the petitioner’s request.

In the Katie Price-Peter Andre debacle (and I think it has reached “debacle” status as this is my fourth posting in the last two weeks and my second in as many days), Ms. Price had initially positioned herself as the driver. It had been her decision to divorce, her choice to hire a pit bull divorce attorney, and her substantial fortune to protect from division. However, in the last day or two, she appears to have had a change of heart, if published reports have any validity. Now, she wants Mr. Andre back, and she will evidently do anything to reconcile with him.

Enter Mr. Andre. Whereas he had once been relegated to the role of the manipulated spouse who had no choice but to jump on the train, lest he get steamrolled by that train, he now assumes the posture of the driver. Before, he had to respond to Ms. Price’s choices whether he agreed with them or not, and initially he did not. Now, however, he is possessed of the power that she had previously held. The ball is in his court. Ms. Price asked for a divorce and Mr. Andre, like any sensible spouse, wisely decided not to stand in her way. How can she blame him now for doing exactly as she asked?

Joint Custody: Pitfalls to Avoid

I read this morning that a Saudi Arabian couple had divorced because they could not agree on the name of their child. That seemed to me to be a silly reason to end a marriage, but it reminded me how complicated it can sometimes be to share joint custody with your ex-spouse. After all, those people were not even exes at the time they had their squabble. Being an equal parent with your former husband or wife is a challenging proposition. I am still very much in favor of joint custody over sole custody, because it gives the children a better chance of having two active parents, and it does not set up one parent as superior to the other. However, it can often be quite complicated to reach agreement on even the most basic decisions. Here are some common decisions that holders of joint custody share when they are divorced:

1) Discipline. Will there be corporal punishment? Will a grounding that one parent imposes in his or her home be enforced in the other parent’s home?

2) Privileges. What about the bedtimes in each home? Cell phones? How much TV may the kids watch?

3) Unsupervised time. How old must the kids be to stay home alone for an hour? Two hours? Four hours? At what age can a kid care for his or her siblings with no other adult present? If you hire a babysitter, how old must he or she be, and how much older than the oldest child under care?

4) School. Will both parents be listed in the school directory? Who will be called first in the event of an emergency? How about parent-teacher conferences – are the parents civil enough to attend the same one, or does the school need to schedule separate ones for each parent?

5) Health and nutrition? Will a vegetarian diet be observed at one home? If so, how about the other? What kind of health care will the children receive – traditional, acupuncture, chiropractic, psychotherapy?

6) Religion. If one parent is religious but the other is not, will the kids attend religious services every week, even during the other parent’s parenting time? If both parents are religious, will the children attend worship services with one, the other, or both?

In sum, joint custody is a wonderfully rewarding approach for most people. However, like almost anything, it carries its potential problems, and the more responsibly they are anticipated at the outset, the less likely they will cause issues down the road.

It Takes a Unanimous Vote to Stay Married

The saga of Katie Price (also known as Jordan) and Peter Andre continues. After separating from Andre, hiring England’s most formidable divorce lawyer, and packaging up Andre’s possessions to be placed in storage, Price has now announced that she wants to take Andre back. This twist in the ever-changing story illustrates at least two salient points:

1) People are often impulsive and irrational as they navigate the challenges of a divorce or separation. Who knows whether Ms. Price was wrong to separate from Mr. Andre, or whether she was right to do so at the time and is now wrong to want to take him back? The reason that most states provide a waiting period (Oregon’s is 90 days) between filing for divorce and finalizing a divorce is that people often do change their minds. The court system does not want people taking up judicial resources to make a impactful life decision haphazardly. If it’s a good idea, it’ll be a good idea in three months, and Ms. Price did not even have to wait nearly that long before she came to the conclusion that it might not be.

2) It takes two people to get into a marriage and one to get out. England, like almost every state in the United States, appears to be a no-fault jurisdiction. Simply deciding you don’t want to be married anymore is enough to get divorced in a no-fault jurisdiction. Nothing stopped Ms. Price from separating from Mr. Andre in the first place, no matter what he wanted. By the same token, now that she wants to be reunited with him, that won’t happen unless he decides that he’s in favor of reconciliation. Nothing in the law forces people to be together; both must want the union or it does not happen.

Do-it-yourself Divorce? Don't.

The tight economy has made people cut unnecessary expenses from their budgets, which is usually a very responsible decision. However, there are certain things that it’s just not wise to skimp on. As a divorce mediator, I have to go on the record to urge the public to strongly consider not using a “do it yourself” divorce kit or service. This is an important enough area that you need to consult with a professional. Even if you fill out some of the paperwork yourself to cut down on your costs, you need a professional mediator or attorney to navigate the process for you.

Do you need a lawyer to fill out paperwork and file it for you? Not necessarily. People make a big deal about the divorce paperwork as if it is something mystical that only a person with a law degree can possibly figure out. That belief is not accurate. Those who want lawyers to handle the documents for them are usually just too overburdened, rather than being too stupid, to do it themselves. The challenge is a logistical one, not an intellectual one.

However, the best reason to hire a lawyer or mediator (preferably the latter) is not because of how to fill out the paperwork, but rather what to put into the paperwork. The questions that the basic state or county forms ask divorcing couples to answer are woefully minimal. They will cover your legal bases, but they won’t help you achieve long-term harmony. To do so, you must delve much more deeply into the specifics of parenting, the precise methods of asset division, and the explanation of the support figures you’ve crafted, among many other areas, so that both of you can be confident that your agreement will still function years down the road.

Peter Andre Seeks Full Custody: Good Idea?

On May 22, 2009, British singer Peter Andre met with his attorneys to discuss custody options among other issues in his divorce battle with his estranged wife, Katie Price, also known as Jordan. The bild.com article insinuates that Andre’s lawyers advised him to seek full custody of his children so that he could have a better chance of betting at least shared custody.

While I am far from an expert on the divorce laws of England, Andre’s strategy would be advisable in some states in the United States but a poor idea in others. Some states, including my home state of Oregon, do not allow joint custody unless both parties agree. In Oregon and states like it, a custody battle before a judge produces a winner and a loser. No compromises. Compromises can be reached outside of court, by private agreement between the parties, but an Oregon judge cannot order joint custody unless both parties agree. Custody cannot start as sole custody for one person and then bargained down to joint custody. Even though custody differs from other realms that might invite compromises, with the parties meeting each other halfway, such an approach does not work in states such as Oregon.

Some states do allow their judges to fashion a joint custody award from the bench, even without the mutual blessing of the parties. In that kind of jurisdiction, and perhaps England is one such jurisdiction, parties can aim high and then settle for something in the middle. However, anytime a custody decision is surrendered to a judge, it becomes a risky crapshoot. Family court judges have wide latitude, and their decisions are rarely overturned, usually only in cases where there has been a clear abuse of discretion. By far the best approach is for the parties to work out their differences so that they can come to an agreement with which each of them can be satisfied, instead of a judge’s ruling that may leave both parties unhappy.

No-Fault Divorce

An article on the Opinion Page of the May 21, 2009 edition of the Buffalo News criticized fault-based divorce. I strongly agree with the author’s position, as no-fault divorce has revolutionized the world of matrimonial law. While no-fault divorce is not without its shortcomings, it is, on balance, the “least bad” option.

Up until the 1970’s, fault was required to obtain a divorce. Abuse, abandonment, adultery, or other enumerated transgressions had to be pled for a divorce to be granted. California, followed within 15 years by all other states except New York, enacted a no-fault divorce statute in 1970.

Opponents of no-fault divorce claim that it makes it too easy to get a divorce. I agree. What exactly does “irreconcilable differences” really mean? Who is to decide whether differences are truly irreconcilable or whether the parties just don’t feel like being married anymore? Does deciding not to reconcile differences make those differences irreconcilable? I don’t know.

But what is the alternative? If I had the choice between making divorce too easy or making it too hard, I’d rather make it easy. Again, as I stated at the outset, it is the choice between two bad options, but I believe it is the “less bad” one. We cannot allow people to manipulate the system by inventing salacious gossip about a spouse, ruining his or her reputation, simply because the petitioning spouse believes it is required to establish the merits of a divorce. However, neither can we force people to remain in a bad and possibly irredeemable marriage.

As a divorce mediator, I promote reconciliation whenever it is possible, and I’ve even persuaded some couples to reconcile even when they were dead-set on divorcing, but we cannot erect roadblocks to a process that may be vital to certain people’s happiness and even their safety.

Marriage does not require much of an application process, and those who have hurdled that ankle-high bar have earned the right to get out of their marriages as easily as they got in.

Vocational Experts

The economic downturn has focused the spotlight on a previously low-profile profession: vocational experts. A vocational expert is a person who assesses the employability of a particular person. In a divorce, there are often disputes about earning capacity. People want to understate their own income or their capacity to earn an income, while overstating the other spouse’s income and that spouse’s potential earnings. Here are some common questions that arise in this area:

1) Can my husband simply decide one day that he doesn’t want to continue his $300,000-a-year job as a bank executive because he would prefer to make pottery? You can’t just decide to make pottery if it would result in your making poverty for your family. A court may, and often will, assess a person’s potential income if it differs from that person’s actual income. Moreover, deflating one’s income specifically to avoid a legal obligation can constitute fraud.

2) If my wife does not want to work, even though she is capable of doing so and has the education to do so, am I still on the hook for child support and spousal support as if she were not working at all? Usually, people’s potential income is ascribed to them rather than their actual income if there is a conscious decision not to work. The factors that determine potential income include age, education level, work experience, how long ago someone was educated, how long ago someone was last employed, health concerns, childcare responsibilities, and the like.

3) If my ex-spouse is cohabiting with, or married to, a partner who has substantial resources so that my ex does not have to work, is my child support and spousal support figured as if my ex makes no money? Most states, including Oregon, have as part of their child support guidelines a rebuttal worksheet on which the parties can list additional factors that influence the amount of child support that is just. Although future spouses and partners do not generally have a legal obligation to support their partner’s children from a previous relationship, if they have chosen to do so and if the biological parent’s share of the support for the children comes from that person, that person’s resources may be relevant to the determination of child support and spousal support.

4) If my ex wants to work only part-time, does that affect the spousal support or child support that I pay? While the court cannot order a person to work a certain number of hours, if the court determines that a spouse is capable of working more than he or she is, or at a higher rate of pay than he or she has chosen to earn, the court can order child support and spousal support as if the person were working at that higher rate of pay and with a greater number of hours.

5) Can the court order my spouse to get a particular job, or to get any job at all? Not exactly. Courts cannot order a person to work, because that amounts to involuntary servitude, which is prohibited by law. However, a court can fashion support awards based on what a person would earn if that person were working full-time at a job that the person is qualified to do. If a lawyer wants to manage a restaurant instead of practicing law, the lawyer is free to do so, because a person can work or not work as that person chooses. However, a court may very well assess the lawyer’s support payments based on what the lawyer could earn in the legal profession rather than at a restaurant.

Based on Nas and Kelis: Divorce Q and A

The announcement today that musicians Nas and Kelis are embroiled in a bitter divorce battle puts a public face on issues that ordinary divorcing Americans face regularly.

1) Does pregnancy affect spousal support? Yes, it can. Spousal support is meant to ensure the self-sufficiency of each spouse, providing a payment to whichever spouse cannot maintain himself or herself for whatever reason. The duration is often limited to the time it takes each spouse to achieve that self-sufficiency. In the case of pregnancy, it is relevant that Kelis is pregnant because she cannot work due to her condition. As such, she lacks the ability to earn a living, so spousal support from Nas seems appropriate.

2) Does someone have to work if he or she is able? The court will not actually force a person to perform labor, as doing so would amount to involuntary servitude, which is unconstitutional. However, a court can ascribe to a person the wages that he or she would earn if employed full-time at an occupation for which he or she is skilled. An Oregon case involved an anesthesiologist who tried to circumvent spousal support by claiming that he was going to raise llamas instead. The court assessed his support payments based on his doctor salary instead.

3) Nas wants Kelis to pay her own lawyer’s fees. What is typical? People usually pay their own attorney fees out of their share of the marital property. Some couples pay their collective attorney fees from the marital property before dividing the remainder into the husband’s share and the wife’s share. Still others wait for a court to order a payment of a certain amount of money to fund the lower-earning spouse’s attorney fees.

4) Both Nas and Kelis are seeking joint custody of their unborn child. Can they obtain it? Some states allow a court to award joint custody to both parents or sole custody to either parent but do not express a presumption for joint custody or sole custody in their statutes. Other states apply a presumption in favor of one or the other, usually in favor of joint custody in those states that have any presumption at all, but permit a judge to depart from that presumption if it is rebutted by the evidence. Other states, such as Oregon, actually prohibit joint custody unless both parties agree. However, if Nas and Kelis’ case were litigated in Oregon or a similar jurisdiction, the court could order joint custody because both parties to the case have expressed a mutual desire for joint custody.

5) Kelis has filed for divorce based on “irreconcilable differences,” but if rumors of infidelity are true, does the outcome of the divorce change? No. All states except New York have a form of no-fault divorce, which means that the fault of either party is not relevant to whether a person is entitled to a divorce. Neither is it relevant to the determination of property division. Whether someone has been unfaithful or whether a spouse simply does not want to be married any longer, a divorce will be granted in a no-fault state.

Renegotiating Divorce Agreements

The historic economic downturn has caused many people’s long-term commitments to be reevaluated because the circumstances that existed when they undertook those obligations have changed to the point that they cannot honor them. People understand backing away from church pledges and other charitable donations, but one area that receives less attention but is no less open to renegotiation is a divorce agreement.

Many of my clients hesitate to agree to terms in their mediated divorce agreement because they do not want to commit themselves to things that may prove unrealistic later. There may be no money to cash one person out of the house, and yet the person staying in the house cannot commit to a sale date because he or she doesn’t know whether the market will even support a sale at that price in the near future.

Also, monthly support payments can become an issue. The payer’s most common argument is, “I know I’m making this much now, but it’s heading downward.” Or, “I got a bonus last year, but I’m either not getting one this year, or it’ll be much smaller.” Or, “I don’t know what my commissions will be because the industry has fallen flat.”

The recipient’s most common reply is, “I don’t want to lock myself into a lower support structure now just because the economy is bad. We were doing way better financially just a couple years ago, and as soon as the recession is over, he’ll be back to making what he was.”

The way around all that uncertainty is to put a clause in your divorce agreement that spells out how renegotiation will take place. In the case of speculative income, you can index it to a base salary plus a certain percentage of income over and above that amount, up to a certain higher amount but not infinitely higher.

Intercepting E-mail Communication

A Brooklyn judge ruled last week that a woman seeking to prove that her husband had schemed to hide his income could introduce e-mails from his computer as evidence, without violating that state’s law against intercepting an e-mail communication. That episode illustrates several legal and practical concepts in family law.

First, every divorce is predicated on open and honest communication and full disclosure of all relevant financial information, no matter what. Any divorce that does not involve full disclosure, either by mistake or by fraud, is subject to being reopened and reevaluated in light of the new information. For that reason, the woman was well within her rights to do what she did to preserve her right to full disclosure. In so doing, she also probably saved herself time and expense by avoiding the need for a second hearing at a later date to reexamine the things that would have been withheld from the previous hearing.

However, in most of my clients’ divorce agreements, I encourage them to insert a clause stating that they will not do exactly what that woman did. The judge drew a fine line in the Brooklyn case because he differentiated between her reading his existing e-mails on his computer, versus her intercepting his emails before he received them. For that reason, and on those narrow facts alone, her conduct was permissible. However, it’s generally inappropriate to monitor your ex-spouse’s correspondence, regardless of the supposedly noble purpose you have for doing so.

Co-Petitioning: A More Civil Alternative

Congressman Lacy Clay’s wife, Ivie, recently learned through news reports that her husband was planning to divorce her. Although most people aren’t so high-profile as to find the details of their private lives splashed across the headlines, the Clay case nonetheless demonstrates the right ways and the wrong ways to communicate divorce information to the other spouse.

A discussion of how to notify your spouse about a divorce has to begin with acknowledging the truth: someone who wants a divorce can get one. Very little, if anything, that a stubborn or unwilling spouse can do will stop the divorce train if one spouse is determined to be on that train. Therefore, in most cases it is counterproductive to be difficult, because if a divorce is going to happen, it’s probably going to happen anyway, no matter what the other spouse says.

Traditionally, the way to handle divorce paperwork is for one spouse to go down to the county courthouse and complete a petition for divorce (often called Dissolution of Marriage). Then, a deputy or process server brings the papers to the other spouse (either at his or her home or his or her business). That process is somewhat hostile because the spouse is often surprised and could be embarrassed in front of his or her co-workers or children.

The more cooperative way to file for divorce is for both parties to go to the courthouse together to fill out the paperwork. That approach is called co-petitioning. In that method, neither party has to be served at home or at work because both were there to receive the paperwork in the first place. The purpose of serving the papers is to give the other party notice, but if both were there to file them, notice is already achieved.

Even when divorce is bitter, it is still personal. It is a matter between a husband and a wife. The media and the grapevine are not the proper venues to disseminate that sensitive information.

To Cohabit or Not to Cohabit?

The Courier News of Elgin, Illinois observed that “it used to be rare to see couples choose to live in the same home after a divorce. Now, it’s increasingly common. The tight economic circumstances are forcing people into difficult choices. Generally, it’s a bad idea to live together after a divorce. The main detractor is the toxicity of the home that likely exists just as it is. Toxicity between soon-to-be ex-spouses almost always gets worse before it gets better. It is patently stupid to wait for a situation that is already bad to become completely intolerable before you do anything about it.

The other reason it’s a bad idea to cohabit with your estranged spouse is the message it sends to the children. Almost all children view divorce as a form of trauma, as it is, and the more that Mom and Dad continue to occupy the same home, all the while claiming they are getting a divorce, the kids are more likely to wonder, “If you’re getting along well enough to remain in the same home together, why are you putting us through the hardship of a divorce?”

However, cohabiting prior to divorce does serve some noble purposes. First, it conserves the family’s resources by not straining the finances to fund a second residence. Second, it allows the couple to consider whether they truly believe that separation is in their best interests, so that it is a contemplated decision and not a haphazard one.

On balance, nevertheless, I oppose cohabitation once a couple has determined that they need a separation, because they are more likely to gain clarity if they indeed separate physically. Moreover, if they do end up divorcing, the quality and amicability of their divorce discussions and negotiations will likely be far greater because they will not have the pent-up animosity that comes from sharing close quarters with someone with whom they are not on good terms.