New Chief Justice Carey outlines her priorities at Family Law conference

Issue November 2007 By Roberta Holland

Serving the best interests of children was the recurring theme at the 17th Annual Family Law Conference, held Sept. 28 and 29 in the Berkshires.

About 160 lawyers and judges attended the conference, held at the Cranwell Resort, Spa & Golf Club in the Lenox. Conference organizers said they tried to tie all the panels together with a common thread, which was proving and planning for the best interests of children entangled in family law cases. Panel topics included how to present expert testimony in custody cases and financial planning for special needs children, as well as a spirited judicial forum on parenting plans.

“It’s clear to all of us here in Probate and Family Court, we deal with the most intense conflicts and the highest emotional levels,” Judge Elizabeth O’Neill LaStaiti said. “It’s been my experience on the bench that it’s very important we do whatever we can to reduce the conflict between parents.”

Less conflict ultimately helps the children involved, LaStaiti said. Some simple ways to ease the tension include getting rid of divisive labels like “custody” and “visitation.” Instead, parenting plans should reflect the reality that parents share custodial responsibility, and that neither parent “should ever be a visitor in the life of a child,” LaStaiti said.

By getting parents involved in creating the parenting plan, it will cause them to work together and hopefully get them to buy into the plan, LaStaiti said. A task force is working to create model parenting plans, which would be made available online and be an optional tool aimed at self-represented litigants.

LaStaiti and other judges ran through a series of hypothetical cases, pointing out different ways to handle sticky situations like separating siblings, allowing one parent to relocate and arranging for custody between unmarried parents. But MBA Past President Edward P. Ryan Jr. pointed out that in all but two instances, the judges sided with the mother in the hypothetical situations, even after a presentation on the importance of the father in a child’s development.

None of that information “seemed to transcend into the practical realities of these hypotheticals,” Ryan said.

Newly sworn in Probate and Family Court Chief Justice Paula M. Carey told attendees that it takes a special kind of person to practice family law.

“The work we do in Probate and Family Court, perhaps more than any other court, requires patience, compassion and an unwillingness to give up on some of the difficult families that appear before us,” Carey told the audience.

Carey noted that the Probate and Family Court is challenged on a daily basis to deal with cutting-edge issues like the evolving definition of family.

“The emotional difficulties of the litigants who appear in probate court often transcend all, and while the application of law must occur, that application must be done with compassion and an appreciation for the emotional turmoil of all of the parties,” Carey said.

Carey said she hopes to build on the work of her predecessor, Sean M. Dunphy, who served as chief justice for 10 years. She credited Dunphy for bringing the court into the modern age and laying the groundwork for MassCourts.

Carey said she intends to focus on several areas as chief justice.

“First and foremost, we need to focus on the judicial vacancies,” Carey said. “We’re at a crisis level right now for our court. If you take me out of the mix, we’re down 10 percent. That’s significant for a court our size.”

But Carey praised Gov. Deval Patrick’s commitment to filling the vacancies, adding that he understands the acute need faced by the court.

Carey announced the formation of a task force that will study the way in which the court schedules cases. She added that while she is uncertain what changes could be implemented, she was willing to open up a dialogue about how to do things better. The task force will include lawyers as well as probation officers and registry staff.

There are a number of things the court can do to ease the pressure put on it by so many unrepresented litigants, Carey said. She added that next to the Housing Court, Probate and Family Court has the highest percentage of unrepresented litigants come through its doors. The limited representation program is still too new to gauge whether it’s working, but she said from a judge’s perspective, they would rather have a lawyer present some of the time than none of the time. Carey added that it is often very difficult to decipher what a litigant is seeking in their pleadings because they are so unclear. “All of those cases clog up the system and make it more difficult for you folks to get heard with your cases.”

Instilling a better image for the court system and those who work in it was another goal cited by Carey, who said she is baffled when the courts and lawyers are vilified by the public. Carey also wants to institute day-care programs in the courts to handle times when litigants are unable to obtain child care. While Carey lauded Chief Justice for Administration and Management Robert A. Mulligan’s vision to include day care centers in each new building, she said to wait until those new buildings are constructed “is unacceptable to me.” The need is more acute in urban courts, she said.
Carey said she plans to make guardian ad litem monitoring standard throughout the court so GALs can spend their time doing their evaluations and investigations rather than getting drawn into motions to clarify. She also said she wants to modernize 209A forms, and come up with a protocol for where cases such as abuse prevention orders should be heard.

“What I promise you as chief is zealous advocacy for our court, enthusiasm, energy and a willingness to talk about ways to improve how we deliver justice in our court,” Carey said. “I promise you a passionate belief in what we do in our court ― we help families.”

Other judges urged lawyers to show some restraint with guardians ad litem. Judge Randy J. Kaplan said she doesn’t always allow GAL investigations because she does not want children to get dragged into the middle of their parents’ divorce case.

“As judges, we never meet these children. We don’t see them, but I think that it’s our job to protect them,” Kaplan said. “So we think about them a lot.”