Section Review

Comments from the Family Law Section chair

The MBA Family Law Section Council has been busy addressing many issues of concern to domestic relations practitioners and planning educational programs.

 

1. MBA Submits Comments on Time Standards

The Probate and Family Court time standards adopted in 2004 are under review. The Probate and Family Court and the CJAM should be commended for holding public hearings across the state and providing ample opportunities for feedback from the bar about the standards. Judge David Sacks and Judge Paula Carey held a public hearing on the standards at the MBA Annual Family Law Conference. Judge Sacks also participated in a lively discussion about the standards at a recent MBA House of Delegates meeting. The MBA thanks both judges for their time and efforts related to the creation and revision of the standards.

 

Case conferences and tracking order time lines. The MBA recommended that the clock for time standards should only begin to tick after service of process is completed. This will avoid premature scheduling of tracking order related events when it is difficult to serve a defendant or service of process is otherwise delayed. We also recommended changes to the case management conference process. Revisions are needed to avoid the scheduling of case conferences too close to the time of entry of a temporary order, before Rule 410 discovery is completed, and scheduling of unnecessary case conferences. We also recommended a more simplified and expedited procedure to extend tracking order deadlines. The reasons justifying extension of tracking orders are often predictable in family law matters. Thus, a form could be created with check-off boxes, which could be jointly filed by the parties to obtain an extension, in most cases without the necessity of appearing in court or the filing of now required motions and supporting affidavits. Rather than requiring affidavits, the form could include the same type of attorney and party certification used on financial statements.

 

Divorce tracking orders. The MBA recommended that the present track for divorce cases should be expanded to 18 months given the unique nature of family law cases. Divorce is not easy for many parties. Forcing a speedy divorce when neither party wants to be divorced is not something that sits well with most attorneys or clients. Mental health professionals have long recognized that the end of a relationship involves a period of grieving and adjustment for both parties. Parties may have second thoughts about getting divorced or permanently separating after they file a court case for a variety of personal, cultural or religious reasons. They may decide that couples' counseling, a trial separation, substance abuse treatment or other counseling should be attempted before they get divorced. Parties may be able to settle their cases if they have sufficient time to "try out" a temporary order before the case is scheduled for trial. Rushing to trial when both parties want the case "on hold" is ill-advised. Contested trials may involve public airing of negative information that may exacerbate existing tensions or generate ill will and conflict for years to come. It may serve those involved and the system to let time pass so that emotions calm down and the case can then be viewed by all in a more fact-driven way. In cases involving domestic violence, safety planning is also a consideration at every step of a case and moving the case too quickly may endanger victims in some instances.

 

Time standards and judicial performance. The MBA noted in its recommendations that the desire to move cases efficiently through our judicial system must co-exist with the commonwealth's public policies promoting the well-being of children and their families. Assembly-line justice is not something for which we should strive, and producing a high volume of judgments does not, by itself, equate with good judicial performance. We recommended that the standards should be amended to clearly state that judges should not be evaluated primarily upon the number of cases they bring to judgment. There will never be computer software that evaluates cases in the same way as an experienced judge. Particularly in domestic relations cases, a personalized approach must always remain a major component in our system of justice.

 

2. Efforts to Promote Civility and Respect for Our
Profession

In recent years, lawyers and judges have increasingly expressed concern about the decline of civility in the legal profession. The council is working to develop a draft of civility guidelines for family law attorneys to be dedicated to Richard Packenham, a model of civility and a well-respected attorney who passed away in the fall. We also are attempting to promote collegiality and civility through our educational programs. Beginning with our "divorce basics" seminars, we plan to stress that civility is as important as knowing the nuances of the law.

 

3. Upcoming Continuing Legal Educational Programs

Annual Conference. Our Annual Family Law Conferences are popular and our last conference held at Cranwell Inn in September was a huge success with a record-breaking turnout. We hope to repeat that success and are beginning to plan our next conference, which will be held Oct. 13-14, 2006 at the Chatham Bars Inn - a wonderful oceanside resort on Cape Cod.

 

CLEs. A "divorce basics" program was held recently in Southeastern Massachusetts and we intend to repeat this program in other parts of the state. On Jan. 19, 2006, Lisa Cukier chaired a program entitled "Family by Contract" that examined an array of contracts in the family law context, including but not limited to parenting agreements, sperm donor or family planning agreements, and medical and financial decision making by an agent. Other programs are being planned on college education, paternity and prenuptial agreements.

4. Webcasts of Family Law Cases in the SJC

Thanks to modern technology, Supreme Judicial Court oral arguments can now be watched as they occur or at a later time at your office and at home. Some interesting family law cases presently in the pipeline are listed below.

Cote-Whitacre v. Department of Public Health (SJC-09436 argued Oct. 6, 2005). This case involves a challenge to the 1913 Massachusetts statute forbidding issuance of a marriage license to nonresident, same-sex couples whose home state may not recognize same-sex marriages. The MBA filed an amicus brief supporting the right of such plaintiffs to marry.

 

Austin v. Austin (SJC-09436 argued Oct. 6, 2005). This case concerns the validity of an antenuptial agreement waiving rights to alimony. The husband appealed the Appeals Court ruling

(Duffly, J.) that the wife was not bound by the prenuptial agreement waiving all alimony. See Austin v. Austin, 62 Mass. App. Ct. 719 (2004).

 

The link on the SJC Web site for webcasts is: http://www.mass.gov/courts/courtsandjudges/courts/supremejudicialcourt/

 

5. Rule and Standing Order Changes

Important Rule Changes for Appellate Briefs. Rule 16 of the Massachusetts Rules of Appellate Procedure was amended effective July 1, 2005. The most significant change is that parties are required to include a certification at the end of the brief that the brief complies with applicable rules governing appellate briefs, including but not limited to the form of the brief, appendices, page limits, references to the record, inclusion of findings and the decision below, and reproduction of statutes or rules. A brief that does not include a certification may be struck by the court or a single justice. There is also a new requirement that a brief with 24 or more pages must include a "suitably paragraphed" summary of the argument with corresponding page numbers for the subject matter that appears later in the brief.

 

GAL Investigator Standards. The Probate and Family Court Category F (investigator) guardian ad litem standards for appointments pursuant to G.L. c. 215, section 56A and G.L. c. 208, section 16, have been incorporated into a standing order of the court. Prior to adoption of the standards, guardian ad litem practice was almost completely unregulated, except for statutes and rules providing for appointment of a guardian ad litem and compensation. The standards provide useful information and guidance to a guardian ad litem (GAL) in many important areas, including, but not limited to, the role of the investigator, compensation, conflicts of interest, investigative methods and sources of factual data as well as report writing. The stated purpose of the standards is to:

•  Provide accountability related to guardian ad litem investigations;

•  Improve custody, visitation and other outcomes for children;

•  Promote uniformity and consistency in guardian ad litem investigations; and

•  Promote respect for the rights of parties and their children, including their safety.

Probate and Family Court Standing Order 1-05. These standards will likely serve as a national model because they are the most comprehensive standards issued by a court governing guardian ad litem practice in the country. Thus, the standards are an important new tool that practitioners should become familiar with whenever a GAL is appointed in a case.

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