|4 entries found. Viewing page 1 of 1.
|December 26, 2010 |
| MEDIATION Is a BETTER ALTERNATIVE To FAMILY COURT For Some |
|Posted By Thurman Arnold, CFLS|
Family Court May Be The Common Denominator For Many Families When Relationship
Conflicts Require Intervention, But It Should Always Be Recognized As
The Forum Of Last Resort!
California Family Courts render unique and invaluable services to people
locked in end-of-relationship struggles. Family law Judges and Commissioners
are extremely dedicated and highly trained professionals who make great
personal sacrifices when they agree to take the bench. It is hard to imagine
more challenging work. For significant portions of the population, the
only place where people can go to achieve physical and emotional safety
or win some economic equality is the local courthouse. Children in particular
benefit hugely from the protections that the system aspires to provide.
Besides judges, our county courts offer child custody recommending counselors,
family law facilitators, probation officers and many others including
courtroom staff, often at little or no direct cost to the parties beyond
filing fees (which are ever-increasing). The commitment and availability
of these workers is an example of how local governments can successfully
improve the quality of our private lives.
But the family court legal system has significant organic, practical and
fiscal limitations. Many people don't recognize, or forget, that it
is the remedy of last resort - if it is considered to be the point of
beginning, vast opportunities for self-determination are lost. The court
experience can take on a life of its own, and so be self-perpetuating.
First and foremost the system is predicated upon an adversary model for
answering disputes. The parties express and argue opposing views or stories
about themselves and the other within the framework of complex rules of
procedure and evidence that are designed in theory to encourage respect,
truth-finding, fairness and uniformity within the process. Most judges
do an outstanding job in maintaining civility and dignity during the proceedings.
Substantive laws according to statutes and appellate decisions then determine
who gets what. But whatever the outcome, it is imposed upon the parties
from outside the family itself, and it will not have taken into consideration
much beyond legalistic interpretations. It is susceptible to being swayed
by inflammatory sound-bytes, not to mention fatigue and burn-out. The
outcome is likely to be disappointing and what people say and do within
the adversarial process may gouge new wounds or keep the old ones from healing.
Second, because a judicial officer sits as the "trier of fact"
he or she is always the most important person in the room (and sometimes
a ghost in the parties' homes). A judge's job includes making
decisions in favor of the party who has met their burden of proof - that
is, the person who has established to the court's satisfaction that
one position is more likely to be the truer one (by one percent or more).
Judges do the best they can to render unbiased and carefully thought out
judgments, but they have conscious and unconscious biases like everyone
else. The lack of resources, not to mention the often difficult behavior
of the parties (and sometimes their attorneys), constricts any luxury
Several important consequences flow from these practical realities. Judicial
involvement implicitly presumes that peacemaking alternatives to adversary
litigation have failed. Sometimes that is true, but more often all that
has really happened is that Party One has said "I want it my way"
and Party Two has said "No, I want it my way." These two people
alone could not save the marriage or domestic partnership, and it is equally
unlikely that they can now agree on how to manage the delicate financial
and parenting issues without outside assistance. The fact is that when
people are ready to seek outside intervention, the first place they look
to is adversarial lawyers or the family court, not noticing they've
short-circuited alternative dispute resolution options. One or both hires
a divorce attorney (few lawyers describe mediation or collaborative options
before undertaking cases, although they are ethically required to do so)
or files a proceeding on their own; three weeks later the family's
lives are dropped like a ball of snakes into a judge's lap for untangling.
Unfortunately, while all judges promote settlement and joint decision-making
if it is safe for the litigants and for their children, they are not hired
on and paid to be mediators. They are decision-makers who are trained
to call balls and strikes, and they don't have the time to hold the
hands of people who might benefit from a little guidance.
Third, there are policy and fiscal limitations to what county governments,
and hence judges, can do. In terms of policy restrictions, few local county
courts have developed or make available any kind of mediation programs
beyond custody related matters. The budgetary crisis is begining to change
that, out of fiscal necessity. Custody mediations generally do not allow
for at most more than an hour of a custody counselor's time to read
the file, assess the parties, and then report to the court. Possibly those
individuals have had 30 minutes to interact with the parties to learn
the competing and complicated concerns. No matter how dedicated, smart,
and professional they are this is likewise a challenging task within the
Settlement and mediation programs are non-existent in some middle sized
and most smaller counties. When I originally wrote this Blog, the Indio
Branch of the Riverside County Superior Court had no non-custody family
law mediation program in place. This was odd since Riverside is possibly
the largest county in California. Because of financial restrictions, throughout
southern California when mediation programs exist they often rely entirely
upon the generosity of retired bench officers or volunteer attorneys.
One resulting irony is that the family court dockets become overcrowded
with many cases that are otherwise amenable to settlement, and this further
taxes the system and makes less money available for mediation or other
needs. Similarly, there is no option for high-conflict families other
than to force them to litigate at great cost to all, especially since
they tend to re-litigate endlessly, taking up a disproportionate share
of court resources and pressuring the time available for other families.
With the leadership of Judge L. Jackson Lucky in downtown Riverside, this
has shifted a bit since I first wrote this.
Following Judge Lucky's lead, and with the support of Indio Superior
Judge Dale Wells, we now have a simple mediation program in place in Riverside and Indio. Much more is needed.
The failure of cooperation between the judiciary and non-public lawyers
has several causes that are each difficult to overcome. First, court administrative
decision-makers seem distrustful of sharing these tasks outside the system.
Second, when it is solicited lawyers are not reimbursed for their contributions
of time. Their involvement is an unappreciated public service without
economic benefit to them, and indeed such service takes time away from
their existing caseloads (read: anxious paying litigation clients). Third,
while we sincerely proclaim that settlement is in every way preferable,
and acknowledge that it de-congests clogged courtrooms and frees up public
resources, some governmental officials still seem to consider it as if
it were a luxury item. This tracks the views of larger society, which
hasn't recognized that mediation is a core asset rather than a stop
gap, and this is true of both public and private mediation. Consequently,
private mediators are not asked to mediate for the public and receive
no systemic support. Lacking support or encouragement many potential mediators
don't take developing mediation skills seriously, especially if they
cannot also develop a private mediation practice that justifies the investment
of time and money that accumulating mediation skills quite assuredly requires.
Despite all the obvious benefits to individuals, families, fiscal conservatives
and society in general when mediation works
(written about extensively in this site but also at Desert Family Mediation Services), judicial officers and court administrators continue to resist it. This
is understandable given that mediation is a latecomer to the litigation
party, but otherwise it makes no sense. Yet there are many reasons why
mediation in any form is usually a superior alternative to government
Today it is only the sophisticated legal consumers that recognize its
potential value for themselves, largely because they are dissatisfied
with their earlier litigation experiences or hope to avoid the experiences
of others that they've observed. Some of the very ones who have the
money to fund battles between lawyers, in and out of court, see that mediation
is a much cheaper alternative or at least come to the recognition after
some great expense. This is a secret that most litigating family lawyers
know well - once the adversarial experience grinds people down sufficiently,
they are ready to begin to think about settlement. That is a good time
to bring in the mediators.
By the way, one of the powers of the Internet includes making limited demographic
or any individual tracking techniques), Google provides metrics that do
tell me what word combinations people are 'goggling' and something
about their gender, age, if they have children and their years of education.
People seeking information about mediation are uniformly over 45, more
than half are male, and most have attended graduate school.
I need to be clear that I am not blaming the courts or the lawyers as being
in some form of conspiracy to increase the costs of divorce. Government
always reflects the values of the constituency, sooner or later. Dissolution
lawyers don't so much market a product as they provide a service to
consumers who already have an expectation of what their needs are, even
if it is skewed in the sense that it comes from a place of emotional reactivity
and fear over losing money, property and kids. Until people who require
the services of lawyers become aware of non-court alternatives, they will
continue to expect the norm.
We seem to be stuck, but the good news is there is movement occurring.
My fantasies include the one about how simply having this chat will help
in a small way to shift our thinking. I hope to take mediation directly to those whose lives are the essence
of what drives the family court system. My aim is to bypass outdated and
bureaucratic thinking, and to popularize mediation as a preferred method
of dispute resolution that potential litigants know to investigate at
the outset to test whether it might be appropriate for their situation.
One way to do this is to give you an experienced lawyer's inside view
of the shortcomings of our legal system as it intersects with relationship
transitions. Another is to remind lawyers that standards of practice and
ethics require them to describe the possible benefits of mediation before
they are retained, because some do not. And another is to encourage government
decision-makers to increasingly embrace mediation within the court related
These changes are coming anyway, and for very good reasons.
Drive Your Own Divorce!
Thurman W. Arnold III, CFLS
HAPPY NEW YEAR!
|Continue reading "MEDIATION Is a BETTER ALTERNATIVE To FAMILY COURT For Some" »|
|December 18, 2010 |
| Ontario, Canada Trial Court Finds PARENTAL ALIENATION - An Example of How Not To Behave! |
|Posted By Thurman Arnold|
A Cautionary Tale:
How Not to Run Your Separation and Custody Battle
Los Angeles Family Law Mediator Forrest S. Mosten recently shared this
newsworthy trial court opinion with me, and it is making the rounds among
listservs for Collaborative Lawyers who have an abiding desire to help
others avoid exactly the sorts of behavior that certain high-conflict
families generate, as are illustrated here to such a degree that a father
has lost all contact with his daughter. I find that Christmas for some
folks becomes a battling holiday, and I urge you to undertake a different
path beginning today for your sake and those who depend upon you. This
is a wonderful example of what to avoid at all costs.
On November 29, 2010, Judge J.W. Quinn issued a thoughtful and stinging
rebuke of two parents behaving abominably in their dissolution and custody
battle. This unfortunate family's case is entitled McQuat vs. McQuat.
The court's ruling begins:
"Paging Dr. Freud. Paging Dr. Freud.
* * * This is yet another case that reveals the ineffectiveness of Family
Court in a bitter custody/access dispute, where the parties require therapeutic
intervention rather than legal attention. Here, a husband and wife have
been marinating in a mutual hatred so intense as to surely amount to a
personality disorder requiring treatment....
... [I]t is not surprising that Larry and Catherine are having problems,
serious problems, regarding the custody of, and access to, their children.
The source of the difficulties is hatred: a hardened, harmful, high-octane
hatred. Larry and Catherine hate each other, as do Larry and Sam. This
hatred has raged unabated since the date of separation. Consequently,
the likelihood of an amicable resolution is laughable (hatred devours
reason); and, a satisfactory legal solution is impossible (hatred has
no legal remedy)."
The decision details allegations of multiple death threats between the
parents, between the parents' relatives and the other parent, between
the new spouses and the other parent, changed locks on the residence,
assault by Van, interferences with visitation, interrogation of children
about the other parent, threats of jail, and a stream of abusive texts
and phone calls, arguments that the children should be separated and divided
between the parents, alienating behaviors even after court mandated counseling
sessions, and more.
The court found the mother's behavior to be the more problematic of
the two - "Had [mother] fulfilled her dual parental duty to foster
and encourage access between [dad] and [the child] and not to speak disparagingly
of him in the presence of [the child], I am confident that this case would
have unfolded differently." By the time of the trial the 13 year
old daughter was so alienated from her father that the Court felt helpless
to devise any remedy to repair the damage. It made the following findings:
"(1) The alienation was not present before Larry and Catherine separated;
(2) This is not a case where Taylor [13 year old daughter] has weighed
the good and bad attributes of her father and found him, on balance, to
be parentally deficient: she sees Larry as all bad - there is no ambivalence
to her feelings; she is not disguising her true feelings; (3) Larry, although
well-intentioned, is an inept father, who has not taken steps to identify,
and fix, his shortcomings as a parent; nevertheless, the utter rejection
of him by Taylor is disproportionate, unfair and unwarranted; (4) . .
. Taylor has aligned herself with Catherine whose hate for Larry is palpable;
the battle lines are clearly drawn and Taylor knows the side that she
wants to be on; (5) I am unable to think of anything that Larry can do
to quickly repair the damage in his relationship with Taylor; and, if
I could, I have doubts that he has the skill-sets to pull it off; (6)
I did not hear evidence of a single instance of Taylor, since separation,
expressing love or affection for Larry; (7) Although children are often
required by their parents to do things that they do not want to do, obligating
Taylor to visit her father or to engage in counseling is considerably
more complicated than insisting that she do her homework or go to the
dentist; (8) The history of the parties is such that there is no reason
to think they would meaningfully take part in, or benefit from, therapy
or counseling; (9) While it is Catherine's duty to encourage and support
a relationship between Taylor and Larry, that duty has been breached too
severely to be remedied by the court; (10) It is not realistic to expect
that the parties have the incentive and finances to engage in the extensive
therapy and counseling that are needed; (11) Depriving Catherine of custody
(sometimes an appropriate way of dealing with an alienating parent) would
not benefit Taylor at this point.
It is my view, sadly, that the alienation here is so severe that it is
in the best interests of Taylor not to order or enforce access by Larry.
If access happens, fine.
Without professional help, Larry is incapable of addressing the breakdown
in his relationship with Taylor. Although, as I have said, well-intentioned,
he is an ineffective parent and, without counseling and other assistance,
he will remain ineffective. While Catherine, aided and abetted by Sam,
initiated the alienation of father and daughter, Larry has not improved
the situation. But, I emphasize the fundamental fact that Catherine's
conduct is the sine qua non of the alienation.
Absent counseling, matters will worsen, not improve. No practical purpose
would be served if the court were to decree a schedule of counseling for
the parties and the children. The hate and psychological damage that now
prevail would require years of comprehensive counseling to undo. The legal
system does not have the resources to monitor a schedule of counseling
(nor should it do so). The function of Family Court is not to change people,
but to dispose of their disputes at a given point in time. I preside over
a court, not a church.
Larry might consider some common-sense steps, such as cards, letters or
gifts, to show that he is receptive to a relationship with Taylor should
she have a change of heart. However, he would be wise to have those steps
independently vetted by a responsible person (preferably, a professional
in the child-psychology or family-counseling field)."
I often write about divorce insanity, and how reactivity and anger when
relationships end sometimes disintegrates into a form of mutual trance
that is humiliating to the parties and harmful to their children. It takes
on a life of its own, and at its worse seems impossible to stop until
it collides with the minimal standards that courts and governments impose
upon families; even then that collision at best results in a court imposed
outcome where much decision-making is stripped from the parents, and of
course government cannot follow the parties home once they leave the courthouse.
The conflict becomes a matter of public record, visible for all to see
including strangers like us.
This case is a strong argument in favor of mediation or collaborative
divorce, although the McQuats evidently were not likely candidates for
such processes (ironically, they had a settlement agreement that called
for mediation and yet both chose to ignore that promise).
I say "evidently" because I wonder whether their journey might
have been redirected had they or someone intervened early on - their mediation
provision offered that opportunity (although the husband challenged the
entire agreement and the Court was first required to decide whether to
set it aside before addressing whether mediation was enforceable). Judge
Quinn pointedly found that "[t]he alienation was not present before
Larry and Catherine separated." I see this is a clear statement that
the parties' circumstances by the time of trial was a consequence
of the post-separation and litigation experience, and not something that
was otherwise inevitable had anyone considered de-escalating early on.
Their case is on the far end of the spectrum of dysfunction. Possibly
you will read something here that will help you dial back similar conduct
or impulses that the hurt part of you is considering, and to ring a bell
for you that might cause you to consider an alternate route before your
divorce begins to escalate. Perhaps you know someone in acute divorce
crisis, and this cautionary tale will help motivate you to support them
by encouraging them to behave differently than what their emotional upset
drives them to do. Sadly for the McQuats, it appears their family members
only served as boosters for their bad behavior. This family looks to be
irretrievably broken, and while it is never too late there is a mountain
to climb that was once merely a hill.
Thurman Arnold, CFLS
December 18, 2010
|Continue reading "Ontario, Canada Trial Court Finds PARENTAL ALIENATION - An Example of How Not To Behave!" »|
|May 26, 2010 |
| Announcing the Opening of DESERT FAMILY MEDIATION SERVICES! |
|Posted By Thurman Arnold|
To our honored visitors:
We are excited to give you advance notice that the first family law mediation
center in the Coachella Valley is opening its offices in Palm Springs
on June 15, 2010. Our hope and expectation is that we will be providing
much needed peacemaking and reconciliation services to couples involved
in relationship difficulties who live within the inland desert cities'
empire, including all of Riverside and San Bernardino counties. We invite
diversity in our clientèle in all sizes, shapes, colors, and combinations!
Desert Family Mediation Services is the joint passion of the Honorable Gretchen W. Taylor, Retired Family
Court Judge and Thurman W. Arnold, Attorney.
Former Judge Taylor was admitted to the Bar in California in 1979. She
has practiced family law almost exclusively in the 31 years since. She
is a Certified Family Law Specialist. Her practice was devoted to divorce
and families in Beverly Hills until she became a Commissioner of the Indio
Superior Court in Indio, California, in 1997. While in Indio she was one
of two family court judges for the eastern Riverside County communities
In 2003 Judge Taylor's assignment changed to the downtown Los Angeles
Superior Court. She served as a family court commissioner in Los Angeles
until 2009, when she retired and so left the bench. She has developed
a particular expertise with high-conflict, high-asset dissolutions, domestic
partnership breakups, but she cares deeply about all manner of relationship
difficulties, small and large.
Since retiring in 2009 she has served privately as a family court referee,
special master, private judge, and mediator for families residing in Los
Angeles County, Orange County, Riverside County, and neighboring cities.
She resides primarily in the Coachella Valley.
Thurman W. Arnold is a Palm Springs' native and was admitted to the
practice of law in 1982. He has been practicing law from his offices in
Palm Springs since that time, and exclusively handles family law and related
matters. He recently passed the California State Bar Certification Examination
and so is eligible to become a Certified Family Law Specialist this year.
He frequently serves as a Judge Pro Tem of the Riverside County Superior
Court in Indio.
Retired Judge Taylor and Attorney Arnold are committed to serving couples
- and their children - and to managing the resolution of your disputes
sensibly and with dignity. Mediation is a far better alternative to adversary
court dispute litigation, and we as seasoned professionals know this fact
Judge Taylor is not a member of the Law Firm of Thurman W. Arnold -
Desert Family Mediation Services is an enterprise completely separate from Mr. Arnold's law practice.
Indeed, former Judge Taylor is not available to represent individual parties
in dissolution cases or in any other family law proceedings.
We are overjoyed to share our expertise in helping couples resolve their
breakups neutrally, economically and safely. In addition to mediations,
we will be available to conduct private settlement conferences and to
assist with parenting plans and parenting coordination.
Please watch for us!
We and other passionate mediators are available for free initial consults.
The website for DFMS launches on June 15, 2010, If you find the information
contained in this website useful, you might share our excitement concerning
what is about to become available to all those who find it!
Our heartfelt desire is to share the wisdom accumulated over many years
in order to spare you and your family from unnecessary suffering.
Desert Family Mediation Services offers a peacemaking alternative to family court.
Thurman W. Arnold III
Hon. Gretchen W. Taylor (Retired)
May 26, 2010
|Continue reading "Announcing the Opening of DESERT FAMILY MEDIATION SERVICES!" »|
|May 21, 2010 |
| What is HEAD OF HOUSEHOLD status for IRS purposes? |
|Posted By Thurman Arnold|
Q. What is the effect of claiming "head of household" status
in a tax return?
A. Head of household does not apply to joint tax returns. If you are divorced,
or if you are married filing separately, you may be entitled to claim
HH status. This is also often referred to as HH/MLA (married living apart).
There are important tax advantages to filing HH/MLA. It is not an exemption,
but a filing status just like filing "married," "married
filing separately," and "single."
To qualify you must be separated from your spouse during the last 6 months
of the calendar year and have at least one child living with you for more
than 50% of the time. You may well pay less taxes to the IRS if you can claim it.
There is an extremely important piece of knowledge here that many attorneys
and most family law judges seem to forget or ignore: In situations where
each parent has exactly 50% custody of the children, neither can file
HH/MLA. 50-50 custody is a common shorthand way to characterize true joint
physical custody arrangements. But to be eligible for this filing status,
the custody cannot be exactly the same for each parent; if you presently
share custody per a equal custody order, you would do well to modify the
order (and even alter slightly your actual custodial timeshare). All you
need do to avoid this problem is give one parent 50.1% custody and the
other 49.9%, particularly in any orders that are drafted and filed with
the Court. Squabbling over these percentages is a waste of time and money
- it will not hurt you to be the 49.9% parent.
If there is more than one child, then parents can modify the parenting
schedule so that each can claim one in order to maximize each party's
tax savings and the support dollars.
Your filing status is important to your spousal and child support rights
Family Code § 4059(a) requires that child support orders be based upon accurate tax filing assumptions,
and the support programs (the Dissomaster, Xspouse) similarly require
a status to be selected before a support number can be rendered.
For a payor spouse, the child support will be less if the filing status
is Single than it will be if the status is HH/MLA, but if you truly file
Single the costs paid to the government will likely exceed any perceived
savings on child support. This is because a person has more net disposable
income after taxes when they are HH/MLA or even MFS than when they are
Single. In the same way, the child support may be less for a parent claiming
HH/MLA depending upon their income but if they have little income the
HH/MLA may have little or relatively little economic value to them.
This is a good example of how
Collaborative Divorce can be used to benefit separating spouses. Money can be saved for both
parties where they structure their dissolution to maximize tax benefits
and minimize tax consequences to each - which nobody typically considers
or does in the midst of a hostile, contested divorce.
The IRS benefits when couples are at war! In a mediated or collaborative dissolution, neutral tax experts can be
consulted and used to design agreements that save the higher earning parent
money while increasing the cash available to the supported spouse and
for children. Would you not rather give money to your kids than to Uncle Sam?
Thurman W. Arnold III
|Continue reading "What is HEAD OF HOUSEHOLD status for IRS purposes?" »|
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