John C. Mayoue practices in family law matters, specializing in complex and difficult cases.



JohnMayoue.Com

Family Law Prof Blog




The Schiavo Case: One Year Later

No Married Couples Need Apply

A Good Relationship Equals Good Health

The Rich Are Just Like Us - When it Comes to Divorce

Vindictive Spouse Prefers Jail Over Sharing Assets with Ex

Second-Guessing of Judges is a Dangerous Trend

Family Law Stays Rooted in the Reality-Based Community

Grandparents Win as Ohio Court Ruling Upheld

Michael Jackson's Custody Case Back to Square One

Public trials vs. private records



February 2006

March 2006






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Wednesday, March 29, 2006

The Schiavo Case: One Year Later

It hardly seems possible, but Friday, March 31, will be the first anniversary of the death of Terri Schiavo. Her husband, Michael, who waged an epic battle against his inlaws and conservative activists to carry out what he interpreted to be her wish to die with dignity, has written a book about the experience called Terri: The Truth; it was released earlier this week.

I have always considered Michael Schiavo a saint. Most other young men, in similar circumstances, would, I am convinced, found some way to walk away from such a tragic situation. Schiavo didn't. He displayed a rare and inspiring courage in upholding his moral and legal obligations to Terri, and in the face of some of the most stressful conditions imaginable.

According to him:

A religious zealot offered $250,000 to anyone who would kill me. My two babies were threatened with death. I was condemned by the president, the majority leaders of the House and Senate, the governor of Florida, the pope, and the right-wing media, all because I was doing what Terri - the woman I loved - wanted.
Michael Schiavo met Terri in 1983 when they were both in college. Like any couple they had their ups and downs, even their arguments. Yet when he discovered that she had collapsed in their home in February 1990, Schiavo was certain that she would recover.

But as the days stretched into weeks, then months, it became more and more certain that Terri would never return. In fact, it became more and more clear that the essence of what made Terri, her mind, had ceased to exist. That left Schiavo to deal first with his own grief, then to take up the challenge of acting in his wife's interests.

Schiavo, who knew his wife, knew that she would not want to live as she was. Because she could not ask that her life support be withheld, he would have to act for her. And, by virtue of his being married to Terri, he was the only person with the legal authority to ensure that those wishes would be carried out.

Terri's parents and family did not agree. They clung to the reflexive sounds and movements Terri's body was able to make and did not see, as Michael did, the lack of consciousness behind the eyes that tracked birthday balloons. They believed those sounds and movements meant some part of Terri could yet be called back.

And so a private struggle between a husband and inlaws became more and more public, until - this time last year - the entire nation was focused on the drama going on in a Florida hospice.

Through it all, Schiavo stuck by his wife, did the right thing and did not bow to the pressure of outsiders. It would have been so easy for him to divorce his wife - after all, toward the end, he was involved with another woman and had children with her. Had he divorced Terri, it would have taken him out of a national spotlight in which conservative commentators felt free to call him a murderer for wanting Terri to die with dignity.

But here's the thing: he didn't. Because the only thing that he had to ensure that Terri's wishes would be honored was the legal fact of his marriage. The woman he had married no longer existed but the marriage was a legal entity unto itself, and the marriage gave him the legal authority to act for Terri.

To give up the marriage would mean that Terri's destiny would be controlled by her loving, but misguided parents. It would mean that Terri would continue to live a meaningless life - not meaningless, perhaps, to her parents; but meaningless to Terri, to whom the life belonged. For Terri's sake, he could not divorce her.

Of course, one of the most vexing aspects of this whole matter was how this private tragedy was hijacked by outsiders with a political agenda. It was one of the first examples we have had of how far the conservative moralizers inside and outside government are willing to interfere with an individual's private lives if they disagree with that individual.

As I told the Associated Press a year ago, it was ironic that conservatives - who then, as now, issue public appeals to save and preserve "the family" - were so intent on tearing down the foundation of that which they said needed protection. The rite of marriage conveys certain rights of law to both spouses; those special rights, which include the right to legally act for the other when the other cannot act for herself, is a fundamental to both our family law system and society itself.

Watching some of the things the Bush Administration and the Republican Congress has done in the year since Terri Schiavo died, I am still struck by the irony, if not the hypocrisy, of their positions. Not only do our leaders seem disposed toward a big, intrusive government - a far cry from what Conservatives used to stand for - they also seem to favor a Big Brother with the power to substitute his judgments for our own.





No Married Couples Need Apply

Well, this is interesting. There's a lawyer in California (I always cringe when a lawyer does something like this) who is suing the popular online dating service eHarmony. He says eHarmony is discriminating against him. Not because of his gender, his race, his culture, or even because he is a lawyer. They are discriminating against him, he says, because he is married.

Yes, that's right. A married man wants to be fixed up for a date with another woman - or several - and eHarmony won’t let him do it. The company has a strict “unmarried only” policy, which means that it will not arrange introductions between people who are married. Our plaintiff says that's against California law, which proscribes discrimination against people on the basis of marital status. He wants the company to go ahead and fix him up and let the women decide whether they want to wait out the finalization of his divorce or give him a pass.

Someone, perhaps one of his old law professors, should remind this litigator that when parties are separated, whether by legal separation or on a do-it-yourself basis, they retain their marital status. In short, he and his wife are married, whetherhe thinks so or not.

Granted, it has been controversial that some states require different and varying periods of separation before a divorce is final. But there is such a thing, after all, as a decent waiting period. Suppose instead of a divorce we were talking here about the death of the man's wife: what would we think of him if he started chatting up some of the single women mourners at his wife's funeral?

I see absolutely no problem with any dating service declining the 'hook up' people who are still married to others. And I can't imagine that the state's discrimination laws would protect someone from doing something all of us agree he shouldn't do: namely, a married man dating other women.





A Good Relationship Equals Good Health

A study funded by the National Institute on Aging lends support to something I have believed for a long time: a bad marriage can be detrimental to your health.

According to the study, marital strain is a key source of stress, which can affect one's immune system. But unhappiness also affects people's opinion of how healthy they are.

The researchers questioned 1,049 married people and asked them to rate, on a five-point scale, various aspects of their married life, such as how satisfied they were with their marriage, how often they argued and whether their spouse was willing to listen to their problems. The scientists then compared those answers to other responses in which the couples described aspects of their health.

The answers were compared with the participants' responses reflecting how they describe their health.

The conclusion:

The married do exhibit better health than the unmarried but it is not the case that any marriage is better than no marriage at all when it comes to health benefits. The quality of relationships is also linked to health.

So, are you risking your health if you remain in a bad marriage? Not necessarily. After all, marriage is, overall, beneficial to people, helping them to live longer and more prosperous lives, etc. Instead of seeking a divorce, the study’s authors suggest that couples who are in bad marriages try to identify their difficulties and improve their relationships.

From my own personal experience in dealing with couples, I'm convinced that there is a direct relationship between both physical and mental health and someone's relationships, married or not. Even if marriage has benefits, it would be too broad an endorsement of marriage to suggest it is married people alone who are healthier.

In my experience it is the quality of the relationship which is important. Any couple in a positive relationship, married or not, can expect to be healthier.



Thursday, March 23, 2006

The Rich Are Just Like Us - When it Comes to Divorce

New York Magazine has an interesting article on just what happens when two high-powered people - in this case billionaire Ronald Perelman and the actress Ellen Barkin - get married. What happens, the magazine says, is "Contracts get signed and the drama begins."

The article focuses on the titanic war that erupted between the couple as their marriage collapsed; a war made all the more spectacular by virtue of the egos and financial fortunes that fueled the discord. And while we may believe that such wars are only fought by celebrities, the magazine reminds us that, despite what we have heard, the rich are not all that different from you or me:

Divorces are intensely personal and often contentious affairs. Spouses fight. Anger grows. Accusations are traded back and forth. It can be impossible to know with certainty what goes on inside a marriage, or what causes one to end (divorce agreements are confidential, and people loyal to ex-husbands and ex-wives invariably color events in the ways that reflect best on their family members and friends). But when two such well-known figures as Ron Perelman and Ellen Barkin divorce, the relationship inevitably becomes a matter of public discussion.

What is most interesting about this article to me, however, is the detail it provides into the pre nuptial agreement between Perelman and Ms. Barkin:

Perelman and Barkin's prenup was another issue. In the months leading up to the wedding, Barkin had told a friend, she and her lawyers had raised concerns about certain clauses of the agreement (a Perelman friend denies Barkin raised such concerns). Barkin signed the contract the day before the wedding. "I would never use the word naive with Ellen Barkin in the same line," one of her friends says. "But she really loved him. She had heard all the other stories about his other wives. She thought this one would be different somehow."

Surprisingly enough, this is an all-too-familiar situation and certainly not one in which only celebrities find themselves. Many couples these days sign pre nuptial agreements and for good reason: such agreements protect the assets each spouse has amassed; assets that otherwise might be combined into the marital estate after marriage. Under state laws that govern how marital estates can be divided in any number of situations, especially those excluding divorce, and that puts each spouse at risk of losing their personal property.

Now when someone who is extraordinarily rich, like Ron Perelman, marries someone who is only ordinarily rich (or not-at-all rich) like Miss Barkin, there is cause for concern. Pre-nups must be fair. They cannot leave one spouse in a financially worse position than they would have been had they not married the other person. Pre nuptial agreements must take into account that whatever financial gains the richer spouse realized during the course of the marriage must be shared with the other spouse. In this case, however, Miss Barkin did have the advice of attorneys - and went against their advice.

I'll leave it to the reader to digest the rest of the magazine article, but suffice it to say that essentially the same kind of problems that can occur in other relationships - jealously, unwillingness to compromise, etc. - soon arose in the Perelman-Barkin marriage; problems that eventually came to a head and led to their divorce. And while the problems experienced by billionaires and movie stars may not have precisely the same analogue to those we experience, but I think we can all relate to the essence of them.

As to the fairness of the pre-nup, described in the article, I will also let the reader decide. What's important to note, however, is that the couple did have a pre-nup, that it was negotiated by lawyers and that each spouse was obliged to abide by its terms once they had each freely decided to sign it.

That much is true of all pre-nups and of all spouses. The end result is that this article presents a good objective lesson in how these things work, both in the lives of celebrities and those of us who watch celebrities. It's a lesson we can all profit by.





Vindictive Spouse Prefers Jail Over Sharing Assets with Ex

Just how contentious can a divorce get? How about if one of the spouses is willing to go to jail for 10 years just to spite the other?

That's exactly what's going on in Philadelphia, in which a man has been jailed for more than a decade for confounding all efforts to trace financial assets that his ex-wife says should be shared with her. It is believed to be the longest time anyone has ever been jailed for contempt of court.

H. Beatty Chadwick, 68, has long maintained that $2.5 million that was supposed to be divided in 1992 with his ex-wife, Barbara Jean Crowther Chadwick, was lost in a business investment. If the money still exists, the account would now be worth some $8 million.

But that's the issue: does the money still exist? Mrs. Chadwick's attorneys certainly think it does, even though all efforts to find it - even efforts by Delaware County courts - have come to naught. Mr. Chadwick, a one-time corporate lawyer, has been serving time in the county prison since 1995.

He isn't likely to breathe free air any time soon. In February an appeals court ruled that he had failed to give full power of attorney to investigators trying to trace the assets to an offshore bank account. "Defendant Chadwick's lack of cooperation undermined the entire investigation, invalidating any conclusions or recommendations," the judges wrote.

It never ceases to amaze me at how contentious people can be during divorces; the emotional turmoil really brings out the worst in people. But money can make a bad situation worse. Some spouses just can't stand the idea of turning over "their" cash to a wife or husband who has hurt them emotionally - and they will go to extremes to prevent them from having it.

So much of the turmoil of divorce is driven by money, and in this case money has driven the husband into jail, where he remains an inmate at an age most corporate attorneys would be enjoying their retirement on the golf course. And of course Mr. Chadwick will never benefit from these funds. If they exist, he must continue to hide them, for if he tries to access them they will likely be seized by the court and awarded to his former wife as the price for his concealment.



Friday, March 17, 2006

Second-Guessing of Judges is a Dangerous Trend

Criticism of the courts, and of judges in particular, is nothing new; Abraham Lincoln, after all, considered Chief Justice Roger Taney a hindrance to how he waged the Civil War. But as the events surrounding the Terry Schiavo case demonstrated last summer, there has been an increasing - and disturbing - trend developing of late, a more virulent form of judicial criticism and second-guessing, created by a political movement targeting the independence of our nation's judges.

The latest front in this ideological war on the judiciary has opened up in South Dakota where a group calling itself "J.A.I.L. 4 Judges" has completed a petition drive to put a constitutional amendment before voters in November. If approved, a special grand jury would be created with the power to review judicial decisions and penalize those judges who issue what it considers "wrongly decided" rulings.

To quote from Slate magazine:

A special grand jury - essentially a fourth branch of government - would be created to indict judges for a string of bizarre offenses that include "deliberate disregard of material facts," "judicial acts without jurisdiction," and "blocking of a lawful conclusion of a case," along with judicial failure to impanel a jury for infractions as minor as a dog-license violation. After three such "convictions," the judge would be fired and docked half of his or her retirement benefits for good measure.
This would be a dangerous enough idea if it were adopted solely in South Dakota. But Slate reports that there are certain groups who are watching this proposal with great interest. If it does well - that is, passes - these groups intend to introduce similar voter initiatives in other states.

Imagine the implications of such an intrusion on the independence of family law courts and judges. The issues that are taken up in family courts are among the most emotional cases that vex the human heart: the dissolution of marriages, the custody of children, etc.

In the family law realm, the public NEVER knows all of the facts of a divorce or custody case. Husbands and wives going through the process frequently feel that they are always right; maybe that's why they couldn't stay married in the first place. It is extremely common for litigants to give very self-serving versions of how they "got taken to the cleaners' in a family law case and even more common for them to characterize any ruling against their position as proof the judge is "biased" or even "corrupt."

I can think of many examples of a litigant in family law who, after losing in court, has tried to take his case to the public at large, claiming injustice was done to him. They try to get media coverage of their case, or to enlist the public in a campaign to either have the court reconsider, or to have an appellate court rule in their favor.

This is fine, up to a point, because sometimes judges do exhibit bias and cases should be reviewed. But we already have a system to do just that, with appeals and judicial commissions that now oversee judicial (mis)conduct.

But imagine that there is a legal body outside the judicial system empowered to take up and review such emotion-laden cases. How would such a thing work - how would "trials" of judges be conducted? Would the judges be allowed to present evidence in their own defense? Would the review of the judge's action necessarily open the disputed case to public scrutiny? Would sensitive information, including personal data about the litigants' finances and spending habits be made public?

Not very long ago here in the South, individuals who had complaints about how the judicial system could always find a vigilante group, like the Ku Klux Klan, to supersede the courts and deal out the "justice" they felt had been denied them. There is very little difference between such vigilantes and a "jury" of laypersons set up to second-guess judges to appease a mob's sense of justice.

This is, to my mind, the very essence of the current ideological war on judges; a vigilante movement to eliminate not only judicial independence, but also to eliminate judicial review of legislative action, which is an integral part of our system of checks and balances. All to obtain what a majority believes to be justice; a codification into law of the tyranny of the majority.

The reason the judiciary is independent in the first place is to avoid this 'second guessing' by persons with agendas. If we empanel these special grand juries we might as well do away with the judiciary - and go back to trials by fire (if your feet don't burn, you must not be guilty!).

We seem to be walking on the brink of a precipice in which ideologues are using increasingly emotional appeals to the electorate to endorse their plan to revolutionize - that is, destroy - the independence of the judiciary. And the more passionate these forces become, the more they stir the emotions of people whose passions turn to "vigilante justice."

Not long ago, both Associate Justice Ruth Bader Ginsberg and former Justice Sandra Day O'Connor revealed that they had been the targets of death threats from the "irrational fringe" of society, people apparently spurred by Republican criticism of the high court.

Should the movement now afoot in South Dakota gain traction, we will be far along a road that takes us away from our Anglo-Saxon traditions of jurisprudence. Making a judge's rulings, especially those made in family court, subject to what the majority thinks strikes at the very heart of a Republic such as ours.



Monday, March 13, 2006

Family Law Stays Rooted in the Reality-Based Community

Dahlia Lithwick, a commentator on legal issues, has an interesting post in today's Slate online magazine, in which she discusses how family courts in our country are dealing with the issue of child custody in same-sex relationships - even while those relationships are attacked by conservatives.

Her launching point is a ruling last week by the Delaware Supreme Court that a lesbian may retain joint custody of triplets whom she helped the biological mother, her one-time partner, to raise. In ruling as it did, however, the court did not set a precedent; the justices simply endorsed the custody ruling which had been made by a lower court and took the case to resolve a side issue in the dispute between the former lesbian couple.

However, by upholding the vistation and custody order, the Delaware court's ruling in this case does show how family law is evolving and adapting to our changing social climate - despite the objections of social conservatives.

While many politicians seek legislation that would prevent homosexuals from adopting children, or even to prevent them from marrying or having the legal equivilent of a marriage, the fact remains that a huge number of children are already being raised and cared for by homosexual couples. In fact, by some estimates that number may be as large as 14 million children.

While conservatives strive to re-create the world and mold it into the way they feel it should be, family law courts must strive to deal with the world as it is and with the reality shaped by the real relationships created by couples and the children produced by those real-world relationships.

As Ms. Lithwick's article points out:
If in fact judges around this country are increasingly inclined to recognize the validity of same-sex parenting arrangements, it's not because they are activists ... Courts that adopt broader visions of "parent" and "family" aren't reading radical new rights into their state constitutions. They are doing precisely what family courts are asked to do: Make a determination about what's in the "best interest of the child." That standard remains the polestar for judicial decision-making in both the adoption and custody contexts. And, as it turns out, most children usually have larger and more urgent concerns than what their parents do in bed.

This is, of course, the same point we were making last week in our discussion of an Ohio case which went to the U.S. Supreme Court, but which was denied cert. Adults who involve themselves in relationships may sometimes see those relationships disintegrate. But the children who are the product of those relationships should not have to participate in the emotional warfare that is going on around them.

Family courts must rule in the interests of the children, even if those interests run counter to social moralists or, sometimes, the interests of the child's own parents. Again, as Ms. Lithwich says:
Categorical rules rooted in sweeping moral judgments don't generally work in family law for the same reason they don't work for families: Kids love and need the parents they have, not necessarily the parents we love.



Thursday, March 09, 2006

Grandparents Win as Ohio Court Ruling Upheld

The U.S. Supreme Court has sided with Ohio's Supeme Court - and grandmas and grandpas across America - in saying that grandparents can legally assert a right to see their grandkids, even if their children or children's ex-spouses object.

That's not only good news for the old folks, it's good news for state courts across the nation which have been struggling to interpret the Supreme Court's murky Troxel v. Granville ruling.

Last week, the court denied cert in Collier v. Harrold, 05-871, a case out of Ohio. At its center was a 7-year-old girl whose unmarried mother had died when the child was two. The daughter's grandparents looked after her until the girl's biological father was awarded custody. Thereafter, the father refused to let the grandparents see the girl, contending they were trying to turn her against him. The case finally made it to the Ohio Supreme Court, whose take on the Troxel case has now been at least tacitly endorsed by the nation's highest court.

For, five years, states have been dealing with the impact of Troxel v. Granville (530 U.S. 57 (2000)). That case, of course, was squarely aimed at Washington state's grandparent visitation law, which had allowed any person to petition for visitation rights if it was in the best interests of the child. The high court struck down that law as unconstitutional, holding that the state should have no reason to intervene in the childrearing decisions of parents unless the parents are found to be unfit.

But what if the parent was no longer alive to make decisions? What about the possibility that otherwise fit parents may nevertheless make decisions that are not in their child's interest? The court was unclear about these real-world questions - the only thing that was clear was that state visitation laws needed to give more deference to parental wishes.

So while state legislatures worked to make visitation laws conform to Troxel's constitutionality standard, state courts wrestled with just what standard Troxel had established. In the meantime some of those courts have made it difficult - in some cases virtually impossible - for grandparents to have visitation over parental objections.

The Collier case was an opportunity for a state appellate court to take a fresh look at Troxel. In Collier, a juvenile court magistrate found that the maternal grandparents had provided an important emotional link to the girl's deceased mother for three years while the child had been in their custody. The magistrate reasoned that maintaining that link was in the girl's best interest - even if the father objected - and so allowed the grandparents' visitation.

The juvenile court, however, ultimately overturned the magistrate's ruling based on its interpretation of Troxel. While the court agreed that the girl's interests in maintaining relations with her grandparents outweighed (emphasis added) the father's wishes for no visitation, Troxel demanded that courts find "overwhelmingly clear circumstances" that support forcing visitation for the benefit of the child over the opposition of the parent. The juvenile court did not find those "circumstances" in this case.

But the Ninth District Court of Appeals did not agree with the juvenile court. More importantly, it did not agree with the Seventh U.S. District Court of Appeals. The Ohio appellate court said that Troxel had focused on the narrow issue of whether Washington State's nonparental visitation law was overbroad. So the question was whether Ohio's applicable state laws were overly broad - and the Ninth District said they were not.

This was squarely against the federal appeals court ruling in another case (Oliver v. Feldner, 149 Ohio App.3d 114, 2002-Ohio-3209, 776 N.E.2d 499) on the issue of whether Ohio courts must give 'special weight' to parents' wishes.

In resolving this conflict, the Ohio Supreme Court adopted the plurality view in Troxel, as had the Ninth District: that if a fit parent's decision regarding nonparental visitation becomes subject to judicial review, "the court must accord at least some special weight to the parent's own determination." (Court's emphasis.) Then, as the Ninth District had, the Ohio justices examined the two state laws applicable to this case - one for deceased parents and the other for unmarried parents - to determine whether they defined a narrow and compelling interest in the government overriding a parent's choice. In short, the Ohio justices applied a strict scrutiny analysis to the state laws.

The "deceased parent statute" (R.C. 3109.11) provides:

"If either the father or mother of an unmarried minor child is deceased, the court ... may grant the parents or other relatives of the deceased father or mother ... visitation rights ... if the court determines that [it] ... is in the best interest of the child."

The "unmarried parent statute" (R.C. 3109.12) says that if a child is born to an unmarried woman, her parents or relatives may request visitation - and so can the father's relatives, if he has acknowledged the child.

Applying the strict scrutiny standard, the majority of the Ohio court concluded that these statutes were narrowly written, applying only to relatives of the father and mother - and only in cases where a parent is dead or the child is born to an unmarried woman.

In neither case did the laws preclude giving "special weight" to the parent's wishes. So long as there is a showing that a lower court did that - and such were the facts in this case - then there is nothing wrong with a court overruling a parent's choice in the interest of the child.

Now, I certainly agree that parents have a fundamental right to raise their children as they see fit, and that courts should not interfere with their child-rearing decisions. But there must be exceptions. The government must be able to act if those parental decisions are not in the best interest of the child.

Of course, how the government determines those "best interests" is a serious subject. No government definition of "best interest" should override a parent's definition except in extreme circumstances. It is for that reason that courts have overruled parental decisions to withhold medical care for their children in favor of the parents' relgious or ethical beliefs.

While no physical harm would come to a child if he couldn't see his grandparents, the consequences are no less dire - and may well warrant a court's intercession. It is undeniable that in today's blended society, that grandparents are oftentimes a vital resource for children.

Our society has devalued that resource and in many instances our courts have codified that devaluation. I believe that grandparents' rights have been substantially undermined to the detriment of grandchildren who oftentimes have very loving, nurturing and parent-like relationships with grandparents.

This case seems to stand for a common sense approach that favors grandparents with substantial ties to their grandchildren and should be welcomed. The U.S. Supreme Court has, by standing silent on the Ohio court's ruling, greatly helped courts groping to determine childrens' interests in an increasingly complex culture.



Friday, March 03, 2006

Michael Jackson's Custody Case Back to Square One

A California appellate court has ruled that Michael Jackson's ex-wife did not properly relinquish her parental rights over their two children - and that brings the case back to square one.

Deborah Rowe - who married Jackson in 1996 and divorced him in 1999 - had petitioned a judge to reliquish her rights to the couple's two children, son Prince Michael and daughter Paris. This is what she said in her original petition:
"Michael has been a wonderful father to the children and I do not wish to share parenting responsibilities with Michael because he is doing so well without me ... I want to forever give my any and all rights pertaining to the children because I believe that by doing so, it is in the children's best interests."

Of course, it's highly unusual, not to say drastic, that any court would approve a unilateral, albeit voluntary, request from someone to give up their rights to their own children. It most states, the law assumes that children need both parents, so any termination of rights for one of the parents must be called for by extreme circumstances.

Nevertheless, the judge in the case approved Rowe's request - but then realized, apparently, that he had acted improperly by not first requiring an investigation to determine whether the request was in the children's best interest. The judge then voided his own order, prompting Jackson's appeal to the state's 2nd District Court of Appeal.

This past week, that court agreed with the original judge, saying:

"A court cannot enter a judgment terminating parental rights based solely upon the parties' stipulation that the child's mother or father relinquishes those rights."
Rowe has been trying to reassert her parental rights since Jackson was prosecuted on child molestation charges. But that's not the only reason. Rowe, who is Jewish, is concerned about the pop star's current flirtation with the Nation of Islam, which she reckons - with good reason - has a poor attitude towards Jews.

Interestingly, Jackson is reported ready to build a mosque in Bahrain, where he has been living since his acquittal last June, as the guest of Sheik Abdullah bin Hamad Al Khalifa, the son of Bahrain's king.

What's particularly disturbing about this case is that it is an open secret that neither Rowe or Jackson intended to live together as a married couple. Indeed, the only purpose of their relationship was literally to produce children for the man-child who likes to surround himself with children. As the judge who originally approved Rowe's request to surrender her rights said:
"It was an arranged deal from the beginning. ... This was not mom and dad saying, 'Hey, let's have a family that we're going to raise.'"

I suppose it is commendable that Rowe reversed her decision and I am glad that the court has now, in effect, voided the whole "business transaction" between she and Jackson. Still, it gives me great pause that any person, celebrity or not, could use the system to promote their selfish desires to have children 'of their own.'

In this case, think of what the woman was doing to her own children by giving them up to Michael Jackson ... at least now, however, she is trying to correct a disasterous decision.

Let's just hope she's not too late.



Wednesday, March 01, 2006

Public trials vs. private records

Should someone in a divorce case be able keep certain personal records secret? That's what a California billionaire has been trying to do in his highly contentious divorce case. While the case itself has played out in open court, Ron Burkle has been trying to prevent public scrutiny of his private financial records.

In an effort to do that, he has twice tried to invoke a certain state law - and has been twice rebuffed by appeals courts which have said the law is unconstitutional. But Burkle might just get another bite at the apple. During this year's legislative session, a powerful lawmaker has been trying to restore the teeth in the law that were removed by the appellate courts.

The lawmaker, Sen. Kevin Murray, D-Culver City, has introduced a new bill that would restore those parts of the law that the courts struck down. He says that his effort is to protect personal privacy. I can agree with him to a certain extent - but I can't agree with the politics of his effort.

I generally agree that the public should not have access to private financial information. Yes, court cases are and should be open proceedings. Does that mean, however, that all the evidence evaluated by the court - even the jury in certain cases - should be viewed by people who are only spectators to the case? I don't think it should always be so, especially when we are dealing with complex financial data that can be exploited by these third parties. At the very least, identity theives could have a field day with such data. So, yes, some information should be subject to seal.

But here's the thing: Burkle, a supermarket magnate, is a big contributor to Democrats and Republican Gov. Arnold Schwarzenegger. He is also - and not by coincidence, I think - one of Murray's constituents. Murray's bill is clearly an effort to protect not only a constituent - but also one of his party's contributors. This, to my thinking, is politics at its worst.

The law is not only crude politics, it tends to subvert the sanctity of both the legislative and judicial process. For one thing, it opens the Legislature to charges that it is an instituion literally up for sale; that anyone with enough money can buy legislation for his own personal benefit. It also raises the appearance that there is an effort by Burkle to interfere in the outcome of his own judicial proceeding. Mind you, there is no direct evidence of such a thing in this case - but I have noticed when something is possible, it usually becomes reality under new circumstances.

Last November, I told the New Jersey Law Journal (membership required) that the public's right to know in certain court proceedings should be limited to facts of public interest, and not include any personal finances or personal matters. I said then - and I still agree - that the First Amendment does not allow the public to know the balance on someone's MasterCard.

Instead of a law requiring that judges seal financial information, why not introduce a bill that would grant judges the ability to do so at their own discretion, based on a showing by the parties? I have found that while many courts don't like to seal information in a case, they will find a way to do so if it will protect confidential information.

Of course, in certain cases, news organizations may challenge a judge's ruling to seal certain documents, but I wonder if an appellate court will second-guess an initial trier of fact on this kind of issue.





When Worlds Collide - Anna Nicole and the Supremes

The worlds of celebrity and justice have seldom collided with a more thunderous thud than they did yesterday in the austere environment of the Supreme Court of the United States of America.

In the same courtroom wherein issues of such gravitas as Brown v. Topeka, Times v. Sullivan and Gideon v. Wainwright were argued, the nine justices on Tuesday took up Anna Nicole Smith's dispute against her deceased billionaire husband's family.

It was a demonstration of what I think is one of the great things about this country: that anyone, and I mean anyone, may petition the highest court in the nation when their rights come into conflict with the constitutional powers of federal and state governments. Even if that person is a former stripper turned Playboy Playmate; even if she is someone whose claim to fame is nothing more than she is famous.

Anna Nicole (or Vickie Lynn, as the court documents call her) was respectful, tastefully dressed and quiet inside the marbled halls of Justice, even if the scrum of paparazzi and cable news reporters outside the court were not. Totally above and oblivious to that external circus-like atmosphere, the justices heard the appellate arguments in Marshall v. Marshall .

Of course, the whole thing might have been prevented if someone had insisted on a pre-nuptial agreement.

Most people know the basics of the case: that, before his death, 89-year-old billionaire oil baron J. Howard Marshall planned to give his 26-year-old wife of two years a trust fund amounting to half of an estate estimated at $1.6 billion-with-a-B. However, in a series of events worthy of an episode of Dallas, Marshall's heir, Pierce Marshall, is alleged to have forged documents, hired detectives to keep Anna Nicole from Marshall's deathbed, and eventuallyeliminated the promised trust fund.

Of course, the Supreme Court does not take on cases involving frivolous celebrities as a publicity stunt. As with all cases that reach this apellate level, the justices took on this case because it wanted to resolve a jurisdictional conflict between state and federal courts.

A Texas probate court had originally determined that Anna Nicole was entitled to nothing except the $6 million in gifts she had received from Marshall during their life together (his will did not mention her and the trust had not been completed at his death.) The case crossed into federal jurisdiction when Anna Nicole declared bankruptcy in California. Anna Nicole didn't challenge the probate; only Pierce Marshall's fraudulent actions. The federal court ruled that because of those actions, Anna Nicole was entitled to $450 million from the trust, plus $25 million in punitive damages. A federal district court reduced the trust award to $88 million. When the case was sent to the 9th US Circuit Court of Appeals, that court said that the federal bankruptcy court should never have involved itself in a ruling by the Texas probate court.

If the Supreme Court rules that the 9th Circuit Court was right, then the immediate effect will be that the probate court's ruling will be upheld and Anna Nicole will get nothing from the trust.

If, however, the Supremes rule with Anna Nicole that the bankruptcy court can expand its jurisdiction beyond the "probate exception," then the effect will erase that 200-year-old exception and could significantly change how courts handle estate issues.

This more-conservative court, with the freshly minted Chief Justice Roberts and Associate Justice Alito, is supposed to disfavor federal courts crossing over into state jurisdictions. But it should be noted that in their questions from the bench, the justices at least seemed sympathetic to Anna Nicole. And the Justice Department argued on Anna Nicole's side; a lawyer for the solicitor general's office said federal courts did have a right to intervene in state probate cases because some estate disputes involve taxation and other federal issues.

So perhaps the days of the "probate exception" are numbered.

Of course, a pre-nuptial agreement between Mr. and Mrs. Marshall could have avoided all this, as the Baltimore Sun reported two weeks ago. As I told columnist Eileen Ambrose for that article, "more people are getting married older and wealthier. And they have more to protect today than ever before."

Well, you certainly can't get much older or wealthier than J. Howard Marshall was when he married Anna Nicole. And while it therefore may not make much sense that he did not insist on a pre-nup, it would not have been extraordinary for his son to have insisted.

As I have discovered in my practice, it is very common for the adult children of one spouse to resent their parent marrying someone younger - specifically someone whose picture you might expect to find in the dictionary beside the word "golddigger." We may feel sympathy for Pierce Howard's feelings when Anna Nicole came interloping in, but that's far different from condoning his subsequent actions to cheat her. Especially since he could have restrained Anna Nicole from any golddigging by insisting that his father sign a prenup.

Of course, Howard Pierce was under no obligation to accede to such a wish, but many parents do agree to execute a prenup or a post-nuptial agreement at their children's insistence - and sometimes at the insistence of other relatives with a stake in a family business.

Oddly enough, the most sympathetic person in this whole drama is Anna Nicole, nee Vicky Lee, an ex-stripper from Mexia, Texas, who just happened to meet an old, lonely and extraordinarily rich man. All she has ever claimed to want is was what he had promised to give her.

If only the unsympathetic Pierce Marshall had insisted his dad get a pre-nup. Anna would have gotten what the old guy had promised; his son could have avoided resorting to fraud and the U.S. Supreme Court would not be poised to fundamentally alter estate law.