Arbitration: Another Alternative Dispute Resolution Method to Consider in Family Law Cases

These days, many couples are searching for what they hope is an easier, cheaper approach to divorce (and resolution of other disputes too). Different practitioners each tout their own preferred methodology.

One such available methodology that gets less attention than some others is arbitration. Arbitration is an alternative dispute resolution option, in that it aims to avoid lengthy family court litigation (paper motions and multiple legal and/or evidentiary hearings) that culminates in a divorce court trial before a family court judge in a family court courtroom.

Compared to mediation, another alternative dispute resolution methodology, arbitration is still fairly trial-like. So what is arbitration, and why would someone consider using arbitration?

In a nutshell, arbitration is generally faster, more private, less expensive and less formal than conventional litigation.

An arbitrator, a privately engaged professional, often a former judge, presides over proceedings as an ultimate decision-maker, much like a judge. But in arbitration, the parties get to choose their arbitrator for themselves.

An arbitrator hears testimony and also considers other, nontestimonial evidence in arriving at an award, much like a judge.

Typically, an arbitrator’s decision in a binding arbitration is final (although there are certain narrow exceptions).

The arbitration process is generally leaner and more streamlined than typical family court proceedings. Most hearings before the ultimate hearing are eliminated, and development of evidence from the opponent and third parties is normally reduced. This saves parties money as well as time.

And the “main event” is not held in a public courtroom.

Of course, like almost anything else, arbitration can be misused and abused so as to erode its good features and advantages.

Arbitration has not gained great traction in Florida family law yet, but it is finding favor in Canada and other countries already.

Read more in this appellate opinion and this American Bar Association Litigation News Article: Protecting the Natural Cost Advantages of Arbitration

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Warning: Chinese Adoptees May Be Victims of Government Seizure … Because Their Birth Parents Violated Restrictions on Reproduction and Can’t Afford the Overpopulation Fine

According to an article that appeared in the New York Times last month, certain Chinese provincial governments seize babies from their parents, who cannot afford their fines for violating restrictions on reproduction, and then they sell the seized babies on the black market, into adoption.

For American parents of adopted Chinese babies, such reports are a disturbing revelation. Fueling nagging questions about their children’s origins, and the circumstances leading to their adoption.

But the subject is largely taboo among adoptive parent communities, who have ample reason to fear that questions will only slam the door to adoption in the questioners’ faces.

Some sixty four thousand Chinese babies were adopted in the US from 1999 through 2010.

And, unlike several other countries, China has long been perceived as the most ethical adoption system, which is a source of adoptable babies, that can be found overseas.

Read more in this New York Times article: For Adoptive Parents, Questions Without Answers.

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Family Court Modification of Another State’s Family Court Order By Expanding Grandparents’ Visitation and Timesharing is Upheld on Appeal

Louisiana Husband and Wife have a preschool-aged Daughter together.

Wife dies.

Wife’s parents, Grandparents, seek visitation and timesharing with Daughter.

Husband and Grandparents reach an agreement granting Grandparents substantial visitation with Daughter. The agreement recognizes that the timesharing schedule will have to be adjusted when Daughter begins school.

The agreement is adopted in a Louisiana family court order. The family court also approves of Husband and Daughter relocating to Mississippi.

After Husband and Daughter relocate, Husband registers the Louisiana family court order in Mississipi. This permits enforcement of the Louisiana family court order in the Mississippi family court.

Grandparents ask the Mississippi family court to hold Husband in contempt and enforce the Louisiana family court visitation and timesharing order.

Husband does not dispute his noncompliance with the Louisiana family court order.

He does, however, ask the Mississipi family court to modify the Louisiana family court order by dramatically reducing Grandparents’ visitation and timesharing with Daughter based upon her reaching school age and certain conduct by Grandparents that he objects to, such as allegedly not adhering strictly to Daughter’s special diet and calling Daughter by her first name instead of her middle name, which is the same as Wife’s.

The Mississippi family court changes Grandparents’ visitation and timesharing schedule, but does not reduce their visitation. In fact, the Mississippi family court increases their timesharing a bit.

Husband appeals as to the modification only, objecting that his due process rights were violated by a perceived rejection of his objections to Grandparents’ conduct and arguing that Grandparents did not ask for more visitation, so the family court does not have authority to award it.

On appeal, the Mississippi appellate court upholds the Mississippi family court’s modification and expansion of Grandparents’ visitation and timesharing schedule with Daughter, underscoring that the original Louisiana agreement and court order affording Grandparents visitation and timesharing were not challenged when made in Louisiana and are not subject to review on this appeal.

As for the changes made by the Mississippi family court, the appellate court finds that both parties asserted that Grandparents’ current timesharing schedule no longer works for them and Husband specifically sought modification of the schedule in his pleadings. Grandparents’ objections to the schedule was tantamount to a request by Grandparents for modification.

And the Mississippi family court found at trial that it was in Daughter’s best interests to increase timesharing with Grandparents, and that finding was within its discretion.

The appellate court also confirms that the Mississippi family court has jurisdiction to modify the Louisiana court order under Mississippi’s Uniform Child Custody Jurisdiction and Enforcement Act.

Since neither Daughter, either of her parents or any one “acting as a parent” to Daughter still lives in Louisiana, and Daughter and Husband have been living in Mississippi for two years, Mississippi is now Daughter’s “home state”. Grandparents’ access rights do not bring them within the statutory definition of someone “acting as a parent”. Indeed, Husband has “sole legal custody” of Daughter.

As to Husband’s objections to certain specific conduct by Grandparents, the Mississippi family court instructed Grandparents in regard to those matters. Thereby accommodating Husband’s due process concerns and upholding his fundamental parental rights.

Read more in this Mississippi appellate opinion.

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Mother Performs Do It Yourself Circumcision on Her Baby … With a Box-Cutter

Oregon Mother has three month old Baby.

Mother reads the Old Testament and decides that she wants Baby to be circumcised.

But Mother fears Baby is too old for a doctor to agree to perform the circumcision.

So Mother watches YouTube videos on circumcision.

And decides to perform the circumcision on Baby herself.

Using a box-cutter.

Only Baby bleeds excessively and suffers great pain during the circumcision.

So Mother dials 911 for assistance.

Mother is arrested for harming Baby.

Mother pleads guilty to criminal mistreatment.

Mother is sentenced to five years’ probation…

And ordered to undergo a psychiatric evaluation.

The Court finds that she loves Baby and had no intent to hurt him.

Baby has since recovered and lives with his three siblings … in the child welfare system. Mother has supervised visits with Baby and his siblings.

Read more in this New York Daily News article: Mom who used box-cutter to circumcise 3-month-old baby gets five years probation.

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Discourage – and Don’t Heed – Divorce Advice from Amateurs and Victims with Axes to Grind

Just about everyone has either been divorced themselves or gone through it, vicariously, with a close friend or loved one.

That’s probably why just about everyone has an opinion on just about every aspect of divorce … and fancies themselves the expert to be giving you advice.

Regardless of whether the divorce they are familiar with occurred in the same state, subject to the same laws as yours, or of whether the circumstances of that case are even remotely similar to yours.

They all mean well, of course. But they generally just overwhelm you with input, breed confusion, anxiety and doubt, cost you extra legal fees for explanations of why your case or the applicable state law is different from their case and the law that applied to it and, worst of all, undermine your legal position and steer you into the proverbial doghouse with your judge.

(Take the example of one of my client’s buddy-advisors: “You don’t have to follow that court order. It’s unconstitutional. I saw that on the internet.” The it in question refers to child support. And the principled good buddy won’t be the one headed off to the pokey.)

In most cases, it’s really best not to discuss the details of your divorce with others. Not unless you want to see them in court … testifying under subpoena from your spouse – about the “private” information you leaked to them. Yeah. Oops.

And you don’t want to spill your guts on social media either. Those leaks don’t even require subpoenaing your buddy to testify.

If you can afford to hire divorce professionals, let them do their jobs for you. If you can’t, then do your best to learn and follow the rules and law yourself. Then rely on your own judgment. Don’t poll the universe about the specifics of your case.

And it’s not just women that get into trouble with this. In my experience, in general, men are just as prone as women to gossiping about their marriage and their divorce, and, in general, even more prone to leaking and polling.

Be the exception. In the end, you’ll be glad you were.

Read more in this Forbes piece: Warning: Don’t Let Friends, Family or Non-Divorce Professionals Give You Divorce Advice.

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Family Court Ignores Wounded Active Duty Soldier’s Substantial Efforts to Invoke The Protections of The Service Member’s Civil Relief Act, and Tramples Over His Rights to Defend in A Child Support Modification Case in Family Court

Kentucky Husband, who has been serving in the US army, and Wife have two Children together.

Husband and Wife divorce. Husband is ordered to pay child support.

Several years later, Wife seeks to modify child support.

Husband, representing himself, writes a letter to the Kentucky family court explaining that he has no attorney and asking the family court to accommodate his request that any hearings be coordinated so that he can attend by telephone, because he is out of state and has military obligations.

The family court coordinates a hearing and makes arrangements for Husband to participate by telephone. But, as so often happens, the docket gets backed up and Husband’s case is not actually heard until two hours later than was expected.

Husband is unable to participate then.

The family court proceeds without Husband, utilizing public records culled from the internet. The family court enters an order retroactive to the first of the month of the hearing.

Wife later files to have Husband held in contempt for not complying with the family court’s modified child support order.

Again, Husband, representing himself, faxes the court a motion to postpone the hearing Wife has scheduled. In his paperwork, he sometimes uses the word “stay”. Husband’s response to Wife’s papers states again that he is in the army and that he was ordered not to go to Kentucky, and explicitly invokes the Service Member’s Civil Relief Act.

Husband also sends a letter from his Commander and his Nurse Case Manager, both indicating that Husband is being treated for significant physical injuries, and is also receiving mental health services and should not have contact with Wife.

Husband also requests sanctions and a protective order against Wife and requests that his child support be reduced.

The family court ignores Husband’s efforts to invoke federal legal protections for service members, as well as Husband’s medical status and efforts to arrange counsel and telephonic participation in the proceedings. Even though Wife’s attorney does bring them to the attention of the family court.

The family court holds Husband in contempt and fines him for failing to comply with the recently modified child support order. Husband is found to be in arrears by approximately $400. The family court also orders Husband to pay Wife’s modest attorney’s fees.

Husband subsequently files to overturn the modified child support order and all the orders entered afterwards, based upon it. Repeatedly indicating that he is in the military and invoking protections under federal law.

The family court denies all of Husband’s requests to appear by phone but allows “reasonable time” for him to arrange to appear in person … or his requests for relief might be stricken or denied without his participation.

The family court then proceeds to deny Husband’s motions based upon his failure to set hearings and attend to press his motions.

Husband appeals.

On appeal, the appellate court overturns all of the child support modification, contempt and related orders entered. The family court failed to consider, as required by law, whether Husband’s inability to participate in the modification hearing would adversely affect his interests.

The Service Member’s Civil Relief Act is supposed to be construed liberally to protect service members called up to active duty to serve their country. Husband substantially complied with the Act.

The family court proceeded to the modification hearing without Husband, despite Husband’s efforts to appear, and denied his later requests to appear by phone or to obtain a continuance due to his service.

The appellate court remands for a new hearing on modification of child support, to be conducted in compliance with the Service Member’s Civil Relief Act.

Read more in this Kentucky Court of Appeals opinion.

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Mother Jailed – Twice – for Not Getting Ten Year Old Special Needs Child Private E-Mail and Cell Phone to Use With Father

Colorado Husband and Wife have been divorced for five years.

They have two Sons together.

Their Younger Son, now ten, has special needs and lives with Wife, a college professor and her second husband.

Their Older Son, now thirteen, lives with Husband.

A relatively unusual, but not unheard of, custody arrangement.

The Colorado family court orders Wife to create a private e-mail account for Younger Son and to get Younger Son a cell phone to use to communicate with Husband.

That was three months ago.

Wife allegedly has yet to comply with the divorce court’s order.

The family court holds Wife in contempt … and sentences Wife to ninety days in jail.

Wife is let out after four days.

Husband challenges Wife’s early release … and Wife is incarcerated for another day and a half.

Wife reportedly fears that her position has been placed in jeopardy by her confinement. She has reportedly mortgaged her home to fund hundreds of thousands of dollars in legal fees in her divorce court case.

It is unclear why Wife did not comply with the family court order and risked being held in contempt and jailed.

Wife contends that she has encouraged communication between Younger Son and Husband, and that Son calls Husband weekly. She reportedly does not comprehend the divorce court’s harsh treatment of her.

Wife also contends that Husband denies her access to Older Son and will be pursuing that in family court.


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Cohabitation Leaves Divorce in the Dust as Chief Cause of Instability for Children

Divorce used to be the enemy of the family cited by family values advocates. No longer.

Cohabitation has since overtaken divorce by a long shot.

Social scientists associated with the University of Virginia report that divorce has returned to dramatically lower pre-1970s levels.

But cohabitation has risen even more dramatically.

Forty percent of American children will now live in a home where at least one of their parents is cohabiting with another adult.

And cohabitating couples are 170% more likely to break up by the time children in the home reach twelve years of age than are married couples.

And those children are more likely than others to use drugs, suffer from depression, be delinquent and drop out of high school.

Those children are also three times more likely to be physically, emotionally or sexually abused than other children are.

Read more in this press release: Cohabitation, Not Divorce, is Now Linked to Rising Rates of Family Instability in America.

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Father Allegedly Decapitates His Disabled Seven Year Old Son

Louisiana Father and Mother have lived together for about ten years. The police have been summoned to their home on more than one occasion, and as recently as about a month ago.

They have a seven year old Son together who is disabled by cerebral palsy.

Mother reportedly leaves much of Son’s care to Father. Father reportedly resents having to care for Son, who is wheelchair bound and requires a feeding tube.

Mother goes out to attend to repairing her car.

Father allegedly murders Son by beheading him with a meat cleaver. Son’s head is left on the road which leads to the family’s home.

The rest of Son’s body is found in a trash bag nearby, the feet and one hand also severed.

Father is arrested for first degree murder and is confined. He faces the death penalty if convicted.

Read more in this New York Daily News article: Jeremiah Lee Wright decapitated own 7-year-old disabled son; chopped up body to spite mom: cops

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International Surrogacy Scheme Shut Down By Socialite Looking to Adopt

Desperate wannabe parents for whom traditional adoption does not work can become easy prey for people looking to take advantage of them.

Recently, one of them, a wealthy Socialite, shelled out $180,000 for a baby carried to term by a surrogate mother in the Ukraine.

Only to discover that her baby and many similar “designer babies” are full siblings.

The Socialite worked with the FBI to catch the people behind these illicit surrogate contracts, including an attorney.

Read more in this New York Post article: Black-market babies may have had same mom and dad and this New York Post article: How socialite brought down black-market baby brokers

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