Saturday, June 21, 2008

Confidentiality -- Can You Keep a Secret?

In the field of family law, many people have "situations" they would like to keep secret: embarrassing, inappropriate and sometimes illegal behavior. Unfortunately, confidentiality doesn't necessarily cover things just because they are embarrassing, inappropriate or illegal. In fact, those activities are often ones that draw the most interest in family law cases. It is usually pretty easy to establish the relevance to the case. For example, if there are kids and the matter relates to parenting somehow, it will probably be relevant to the case and may be admissible. If fault is being argued to justify an unequal division of the community estate, the bad activities may be part of the proof of fault, and therefore admissible.

Here are some quick thoughts about confidentiality.
  • You should always assume that everyone will see, hear and read everything. Be careful what you do and say and write. It will likely be used against you in court. If you make threats, verbally or in writing, someone may have a video image (with a cell phone, everyone has a video camera now) or a document. Think, before you speak or act. Assume that whatever you do or say will be seen or reported in court.

  • There is still attorney-client confidentiality, but not if you bring in a 3rd party (friend, parent, sister, etc.) to the conversation. You can also give up the confidentiality if you disclose the information to someone else. There is also no confidentiality for plans to commit future criminal offenses.

  • It is a good idea to tell your attorney, in advance, the bad facts of your case. You may feel better just getting it off your chest, and the attorney has probably heard a whole lot worse stuff anyway. It takes a lot to shock an experienced attorney.

  • Another advantage of telling the attorney is that s/he will have time to prepare a response for when it comes up in court. Actually, it is often a good strategy for your attorney to bring out your bad facts (in a controlled manner) to minimize the damage.

  • Don't expect the husband-wife privilege to help you keep out bad statements in a divorce.

  • Although it is relatively easy to do electronic snooping on a computer, by planting microphones or by hiding cameras, that does not make it legal. There are legal ways to search a computer (with a court order), but you should not try it on your own. Hiding microphone or cameras can get you into trouble for violating wiretapping and privacy laws, among other things.

  • If you suspect you are being spied upon, you should immediately tell your attorney and then have an expert check it out. While you are in litigation, you should assume that whatever you say, do or write could show up in court, so be careful.

  • If you are really concerned about privacy, you should consider using the Collaborative Law process because it provides a great deal of privacy. You can talk to your attorney at the outset about that option.

If you get involved in a litigated family law case, there will be very little privacy and limited confidentiality. You should be prudent in how you interact with others since whatever you do could easily show up in court.

Saturday, June 14, 2008

What to Expect in the Tarrant County Family Law Courts

The Tarrant County Family Law Courts are a frequent subject for internet searches. That makes perfect sense when people face the prospect of having a judge make fundamental decisions about their lives. Everyone wants to know what to expect. This post is to give a brief overview of the Tarrant County divorce courts. Each person about to go to court should consult with his or her own attorney to specifically find out about the judges who will be involved in the case.

The Tarrant County Family Law Courts are in the Tarrant County Family Law Center which is located at 200 E. Weatherford Street in downtown Fort Worth, Texas. There is a parking garage located in the next block east of the courthouse and there are parking meters all around the area. Even with all that parking, there are many mornings when the parking garage fills early and it seems that all convenient parking meters are taken. The lesson to be learned: Get there early!

When you enter the Family Law Center, be prepared to go though metal detectors. It's not quite as bad as an airport, but the deputies are pretty thorough. Be prepared to take off your shoes, belts and jewelry. Pocket knives are not allowed. Briefcases, purses and other items will be x-rayed. It's a hassle, but there were several shootings at the courthouse before the metal detectors were set up.

First Floor
The 1st floor of the courthouse has two "IV D" (four D) courts. They are set up to collect child support and for paternity cases. Cases initiated by the Texas Attorney General are usually handled in those two courts. There is also a room with vending machines next to one of the IV D court waiting rooms.

Second Floor
The 2nd floor has the Domestic Relations Office. Family Court Service is on one side of the hall. They conduct social studies in custody cases and they also handle Access Facilitation matters (resolving visitation/possession issues). In addition, they supervise some visitations, manage drug testing, mediate some cases and do about anything else a judge wants them to do. On the other side of the hall is the child support office where payments can be made, child support probationers report and where a child support payment history can be obtained.

Third Floor
On the 3rd floor, the District Clerk has a file desk, a closed records section and an area with clerks for each court who manage the active court files. Pleadings are filed there and the clerks are responsible to maintaining the court files. Copies of court documents can be obtained there.

Fourth Floor
The 4th floor has the even-numbered courts: 322nd, 324th and 360th District Courts. Next to each of those courts is the Associate Judge's court for that court. The Associate Judges hear temporary matters, contempt or enforcement motions and a variety of other preliminary matters. They can hear final trials if both parties and the court agree. The District Court Judges normally hear final trials and some appeals from the Associate Courts, as well as some other preliminary matters.

Fifth Floor
The 5th floor has the odd-numbered courts: 231st, 233rd and the 325th District Courts. Associate Judges' courts are next the the District Courts on that floor as well. In addition, on both floors, each court has a Court Coordinator for the District and Associate Courts. The Coordinator schedules matters in each court.

Conference Rooms
Each court on both floors has two conference rooms right outside each courtroom and there are other conference rooms at other locations on both floors. Generally, more time is spent negotiating (and waiting) than is spent in actual court hearings, so the conference rooms are heavily used. Most matters are resolved at the courthouse through negotiations.

Each court also has a Bailiff who is a Deputy Sheriff. You should do whatever the Bailiff tells you to do. If/when you are in a courtroom, turn off your cell phone. The world won't come to an end if you don't answer a call, but you will be in a world of trouble if the Judge hears your cell phone ringing.

Know What to Expect
This post gives you some idea about how to find your way around the Tarrant County Family Law Center in Fort Worth. If you have a case in the divorce courts, be sure to consult with your attorney before going to court. The courts begin at different times, usually at 8:30 or 9:00 a.m. Your attorney can tell you when to be at court. Each of the 14 judges is different and has a slightly different perspective on cases. It is very beneficial to have an experienced lawyer who knows the personality and point of view of each of the judges. Your lawyer should be able to tell you what to expect, what to emphasize and what to avoid. Experience and preparation are really important if you have to go to court. Choose your attorney carefully and then provide all the information you can so your lawyer can be prepared.

Finally, Expect Negotiations
It is normal for the attorneys for both parties to know each other and even be friends. They will probably also know the judge well. Since most cases settle by negotiation, it is natural and beneficial that the attorneys have a good working relationship. Don't be concerned if you see the attorneys talking with each other and not appearing angry or mean. A friendly, business-like approach is generally the most effective way to negotiate. That means a better result for you.

Saturday, June 7, 2008

I Don't Like My Ex-Spouse's Vacation Plans (With the Kids)!

I recently spent several hours at the courthouse because my client's spouse wanted to control my client's summer vacation with the children. While there may have been mental health issues active in this case, it was not the first time that a parent had tried to prevent or control the other parent's summer vacation plans with the children. As in most cases, it was a futile exercise, wasting time and money for both parties. My client was unhappy about being in court and the other party was very unhappy about the outcome. It all could have been avoided.

Courts in Texas will rarely get involved in parental vacation plans, unless there is a real danger to the children. If a parent has plans to expose the children to a very dangerous situation, a court might act. If a parent just doesn't like the other parent's plans or doesn't like others who will be around the children, most courts won't get involved. Judges can recognize when someone is being controlling or acting as a bully, and they generally won't support such behavior. Generalized fears that a parent may be somewhat irresponsible or that a child will be homesick or that a child won't have a good time are not sufficient to warrant restricting a parent's vacation plans. Complaining that a parent or others will "bad mouth" the other parent will not be sufficient to force a change in plans. There are less drastic ways to deal with all those scenarios.

There are several possible things that could be going on when this issue arises:
  • There could be a legitimate concern, with a factual basis, related to past events. The problem (from that parent's perspective) is that the expected harm must be certain and significant, and that's hard to prove.
  • The child may be telling both parents different things and may have her own agenda in creating conflict.
  • The child may be telling both parents different things and may just be trying to cope with pressure put on the child by one or both parents.
  • One parent may really be afraid that the child will have a good time with the other parent and wants to prevent that.
  • A parent may be selfishly wanting to spend the time with the child and therefore tries to create whatever barriers he can to prevent the child from being away.
  • One parent may be trying to alienate the child from the other parent or the other parent's family or friends, so she tries to interfere with visits.
  • One or both parents could be mentally ill or very immature.
  • A parent may just want to continue past fights with the other parent and is using this as a tool.

What can you do in such a situation?

  • Talk to the other parent. Try to reason with him or her. Be willing to provide lots of information, if that will help.
  • Encourage the other parent to go to a counselor to discuss the problem in advance.
  • Consider going to a mediator. Some therapists are also trained mediators and that can be a helpful combination.
  • In Tarrant County, Texas, you can make an appointment with the Access Facilitator for your court. A trained social worker can often help you and the other parent resolve the matter without attorneys or court, and at no cost!
  • Your last resort should be hiring attorneys. Most experienced attorneys can pretty quickly tell you what the outcome will be if you go to court, and most of the time, the answer is that the judge will not restrict vacation plans, unless there is a serious, immediate danger.

Good luck, and may common sense be with you!

Sunday, June 1, 2008

Marriage Mediation

Sam Hasler, of Sam Hasler's Indiana Divorce & Family Law Blog, always has interesting articles on a variety of subjects. I have just read a recent post of his that has an excellent innovation. He apparently got the information from The Florida Divorce Blog, another good read. Sam's post is reproduced below:

"Here is an interesting idea from The Florida Divorce Blog - A Modern Spin on Marriage Counseling:

'Enter a modern spin on marriage counseling: Marital Mediation. Anyone familiar with the divorce process is likely acquainted with mediation in divorce cases. Well, a Connecticut mediator and social psychologist is applying mediation techniques to marriage counseling. The Marital Mediation process flushes out areas of conflict and fosters communication and negotiation, and facilitates agreements on mutually desirable corrective actions.'

"I know of no one offering this sort of service in Indiana but it seems like something that needs only someone to make the first move."

This seems like a great idea to me. In speaking with prospective new clients, I often have a feeling that there could be a way to save the marriage. Right now, I generally suggest counseling, and there are a number of good counselors in the area. Sometimes, though, an approach with a different orientation might be better, especially for some personalities. Some people, for example, see themselves as problem solvers and they can be uncomfortable in traditional counseling -- they may see it as wishy-washy or too undirected. A good mediator, with a counseling background, on the other hand, might really be able to help the parties in such a relationship.

Such counseling/mediation would be a little similar to a stripped-down version of Collaborative Law. They could start out determining what goals they have in common, then figure out what their issues are about and finally work to create new ways to solve the problems they identify and achieve their goals. It sounds like a great idea and I hope some counselors in this area will become interested in starting up such a practice.