Since at least the 1960’s courts and legislatures have struggled to form rules to deal with an evolution of what Americans consider “family”.  For instance, at one time fathers were presumed to not be a child’s best parent after a divorce.  Fathers would often lose contact with their children after divorce during this era, which could not possibly be in anyone’s best interest, all other things being equal.  Now, of course, courts focus on what parenting arrangement would serve the child’s best interests regardless of gender or domestic role.  

Marriage itself, once viewed as THE gateway to family relationships, is no longer the only acceptable way to procreate and rear children. At one time in the U.S. being divorced meant a smudge on one’s social resume, an indication that something is not quite right.  Now, a Washington State divorcee is more likely seen as independent than flawed, as full of moxie more than suspect morals. 

By taking a wide angle view of the matter, it is fair to say that as intimate relationships have exceeded the narrow definition of “marriage”, our conception of who has the right to be a parent has not changed all that much.  Biological and adoptive parents are true parents, replete with all powers to make decisions regarding the child as against the whole world.  Until a biological or adoptive parent is found by a court to be unfit in some way, courts do not even have the ability to limit a parent’s right to decide with whom a child shall spend time, no matter how deeply rooted a child’s relationship with a non-parent may be.  In Washington, courts could not do so until the Washington State Supreme Court decided In Re: Parentage of L.B., a case that created a third kind of legal parent: the De Facto parent.

L.B. involved a set of circumstances not previously considered among the new varieties of family relations.  A lesbian couple decided that one party would become pregnant through artificial insemination and that the two of them would raise the child as a family.  When the couple split up, the biological mother would not allow the other mother any contact with the child.  Because Washington’s third party visitation statutes were declared unconstitutional by the U.S. Supreme Court [1] and because the “other” mother was neither a biological nor adoptive parent, there was nothing she could do to see her child.  The court recognized this inequitable situation and created a remedy.  Thereafter, a person can be a child’s parent, a De Facto parent, (1) if the child’s legal parent consented to and fostered a parent-like relationship between the De Facto parent and child; (2) the De Facto parent and child lived together in the same household; (3) the De Facto parent carried out parental duties without expectation of compensation; and (4) the relation between the child and the De Facto parent was sufficiently long to have established a bonded, parent-like relationship. 

Aside from basic prejudices against non-traditional family formation, how many parents can a child possibly have?  With this ruling, a parent might go from relationship to relationship during a child’s young life, and with each new relationship a new parent is formed.  Now, instead of just two parents which form the foundation of authority for a child, a myriad of step-parents and paramours might be legally called “parent”.  Where would this end?

One response might be that the list of parents ends with the list of people who take a parent-like, loving, responsible, and committed relationship with a child.  What’s wrong with calling a person who fits the narrow definition of parent a parent?  Furthermore, if a biological parent introduces a child into various close relationships, isn’t it better that the child be able to receive the parental benefit of financial and emotional support from those people?  Can a child really be scarred by having more than two parents?

With our changing ideas about love, marriage, and what comprises the moral fabric of our society changing, doesn’t it also make sense to change the way we think about parenting too?

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[1] Apparently, it does not always take a village.  In that case, Troxel v. Granville, the high Court held that Washington’s statutes which allow a non-parent to petition the court for visitation with a child whose parents are breaking up violates an otherwise fit parent’s constitutional rights by forcing that parent to allow visitation despite that parent’s best judgment.

When a couple dissolves their marriage, domestic partnership, or committed intimate relationship, the court has before it all the community and separate property owned by the parties.  Washington’s community property law generally provides that all property acquired during the marriage is community property and property acquired before cohabitation or after separation is separate property (there are other ways for property to be characterized as separate).  However, most people do not realize the scope of what community property covers.  One area of confusion is employment benefits in general and stock options in particular.

Stock options are easily mistaken by the uninformed as the separate property of the person who owns them.  After all, stock options are most often granted as a reward or incentive to good employees, and they therefore seem to belong to the rewarded.  Furthermore, stock options don’t seem to be “property” in the traditional sense because they are merely the option of acquiring property.  In fact, stock options are property before the court in any dissolution, and Washington courts have devised rules for dealing with the admittedly confusing problems with characterizing them.

The first question a Washington court asks regarding stock options is whether the options are vested.  Unconditionally vested options are acquired when granted.  This means that if during the marriage one party acquired an option to buy company stock and can do so from the moment the option is granted, that option is community property.

However, if the options were not vested when granted, the court engages in a different analysis to determine their separate or community character.  Unvested options must be classified into three categories: those granted for past services, those granted for present services, and those granted for future services.  The theory here is that stock options are granted either to reward past behavior, to motivate present behavior, or to give employees an incentive to stay with a company in the future.

Options granted prior to marriage or partnership for present or past services are acquired when they were granted.  Options granted during the relationship for present services are also acquired when granted.  However, options granted for future employment services are acquired over time as the stock options vest.  In the case of future options, courts employ a complicated “time rule” to determine how much of the future value of an option exists in the present relationship, and can be characterized as community property.  While this time rule is too complex to completely cover here, the idea is that even if an employee is unable to exercise a stock option until after the relationship is dissolved, some of the value of that option properly belongs to the community because the behavior worthy of the option occurred, at least in part, during the relationship.

The practice of law is more an art than a science.  Because family law is a court of equity, “fairness” is always a point to be argued by creative thinkers.

After 32 years of marriage the last thing that my father dreamed he would be doing was trying to determine what my mother would have him do with her remains.  The thoughts of days past in Germany sharing coffee at a side street café or walking through the small alleyways searching for their newest treasures were long gone and provided little comfort during this trying time.  My father looked to me for support and for the first time I had no answer for him.

My mother passed away on April 18, 2001 during finals week of my 2^nd year of law school.  We had one day to prepare knowing that she would not make it through the night.  She spent the majority of her life painfully struggling with renal disease and finally lost her battle.  The family was at a complete loss; however, at that moment we had to make the biggest decisions.  We had already spent the last two days deciding whether life-prolonging medical treatment would be appropriate and whether my mother would have wanted it.  Although a Living Will had not been memorialized by my mother, conversations with her throughout the last few years of her life ensured us that she would not want the treatment; however, even with that it was not 100% uncertain.  We also needed to decide what did my mother want done with her remains.

As I walked the corridors of the nursing home I searched for the answer.  My father found me and looked into my eyes and told me in his broken English “When your mother and I were young we talked about death and we agreed that we would be both cremated.  But, that was when we were young without children.”  He then walked away as if to leave me to make the decision with a little snapshot of what he remembered of my mother some twenty years prior.

The rest of my mother’s family insisted that she have a burial.  One of my mother’s closest friends came to me, took me aside and said, “You may not know this now, but when you have children, you will want a place to take them and tell them that grandma is here.  You will want a place to bring them to remember her.”  As did my father, she also walked away and left me alone in cold stillness.

What did my mother want?  That answer will never be known.  As I played the pros and cons of each possibility in my head, I settled on what I thought would be right.  As I made my way back to my mother’s room where her lifeless body lay, I realized that for the past 4 hours I was anguishing over a decision that could have been determined with the right planning.  I wasted the past 4 hours and did not have time to actually grieve over her death.

I cannot express how essential estate planning is in life plans, especially when you have children.  There are many aspects of estate planning that go beyond a typical Last Will and Testament.  Essential estate planning documents include Heath Care Directives and Powers of Attorney.  Each document has its own purpose and importance. The primary purpose of these documents is not only to ensure that your desires are being met long after you have passed, but they are mechanisms to protect your family as well.  You never want to leave your family guessing as to what your ultimate wishes would be.  The following is a brief summation of the different estate planning documents that every person should have prepared:

Last Will and Testament
The Last Will and Testament sets forth the disposition of property upon death.  A Personal Representative is established who will be in charge of administering your estate according to the provisions of the Will.

General Durable Power of Attorney
With this document an “Attorney-in-Fact,” will be designated who will be responsible for your financial affairs in the case of incapacity.  This is different from a standard Power of Attorney.  The authority under a durable power of attorney is invoked only in the event of incompetency. The Attorney-in-Fact will likely be designated to make financial decisions including the payment and maintenance of bills or the handling of funds in bank accounts and/or investment accounts.  In many cases an alternative Attorney-in-Fact may need to be designated in the case the primary Attorney-in-Fact is unable to fulfill the role.

Power of Attorney for Health Care Decisions
With this document an “Attorney-in-Fact” will be designated to make healthcare related decisions in the case of incapacity.  Many times healthcare decisions are emergency, thus the Attorney-in-Fact will need to be a person that may be readily available and willing.  Again, an alternative Attorney-in-Fact may need to be designated in the case the primary Attorney-in-Fact is unable to fulfill the role. The primary concern regarding this designation is to ensure the Attorney-in-Fact is one that can be trusted to follow through with the decedent’s desires and not promote their own moral or ethical viewpoints.

Health Care Directive
With a Health Care Directive, which is also referred to as a Living Will, allows the decedent to memorialize their desires as it relates to medial treatment which would artificially maintain life.  The document would be referred to in the event that an injury or condition is present which prohibits that person from communicating their wishes.  Without this document many emotional issues may arise such as those issues publically scrutinized under the Terri Shiavo case.  Terri Shiavo was a woman who had suffered brain damage and became dependent on a feeding tube.  Her husband petitioned to have her feeding tube removed; however Terri’s parents opposed the petition arguing she was still conscious.  On March 18, 2005 the court’s decision which determined that Terri would not with to continue life-prolonging medical attention was carried out.  The issue arising from this case can be prevented with correct estate planning documents.

Memorial Instructions
Statutory authority allows a person to instruct the disposition of his/her remains via a valid written document expressly memorializing their wishes and method of disposition. Like most estate planning documents the document must be signed and witnesses by a 3^rd party.

Juliana Wong

Lucy has golden brown eyes and glossy black fur. She is a black Labrador Retriever mix and she is a “rescue dog”. We adopted her from no-kill shelter that picked her up from a local pound where she was slated to be put down. When we brought her home, she was emaciated and her fur was rough and dull looking. When we first took her for walks we got some strange looks because she looked so awful.  But Lucy filled in fairly quickly and her fur became soft and shiny. However, it didn’t take long to discover that the physical neglect was just the tip of the iceberg.

A sudden movement of a hand or gesture with an object in hand caused Lucy to cringe or hide. She was shy around strangers. Any loud noise sent her running to hide in a corner. And strangest of all, the sight of a digital camera terrified her. Lucy’s behavior, combined with her sad physical condition, indicated to us that she had come from an abusive home.

Lucy has been with us for almost four (4) years. She has gotten over some of her shyness and is far more social that when we first adopted her.  But she does not the have the outgoing and friendly personality that Labs are known for. She has learned how to play, which was a big step, and now delights in games of tug-a-war with her Jack Russell terrier cohort. A wave of hand no longer causes her anxiety.  But she remains terrified of loud noises and her fear of digital cameras has not abated. (We have few pictures of Lucy!)

When I see the ongoing effects that neglect and abuse has created for Lucy, who is a dog, I wonder how children, with their much more complex and impressionable minds, recover from abuse. Studies have shown that child abuse not only has a lasting affect on the abused individuals but also has a profound effect on our entire society.

It is important to recognize that there different kinds of abuse. Neglect is a form of abuse that is often overlooked, yet it is the most common type of child abuse and accounts for more than one-half (50%) of reported abuse. Neglect is generally defined as a pattern of not providing for a child’s needs and can take the form of physical, emotional, or educational neglect. Abuse can also be sexual abuse, physical abuse or emotional abuse. Children who witness abuse or are exposed to domestic violence are also at risk. Surprisingly, emotional neglect can be more damaging than abuse.

Rather than talk about the underlying causes abuse, the focus of this article is to point out that opportunities for healing and treatment for abuse are available. The first step is to recognize the problem either within yourself or your loved ones or children. The next step is to seek the appropriate therapy. Being honest and being patient are probably the two most difficult aspects of the healing and treatment process. Progress takes time and each individual will proceed at a different rate.

Lucy has overcome some of the obstacles from her abusive background and we hope that she will continue to make more improvement. Healing is always possible.

Sharon Friedrich

I remember the first time I came across domestic violence. I was in college and worked as a supervisor at a national mortgage company’s headquarters. One day an employee of mine came to work late. She was clearly upset and was hiding her face. I took her into a conference room and was shocked when she took off her sunglasses to show me an enormous black eye. When I asked what happened she told me how her new husband, a police officer, was beating and raping her. We contacted a domestic violence hotline together and found a safe place for her. This in and of itself wasn’t shocking. What horrified me was when I told the other supervisor at work, a woman in her mid-40s, about the abuse. She told me that I was too young to understand but that sometimes it’s okay to get hit. This woman explained to me that my employee probably did something to make her husband mad and that’s what happens. She said you don’t break up with someone just because they get angry sometimes. She explained that you have to look at the whole relationship and take the bad with the good. This cavalier attitude seared into my brain. I knew then that it was absolutely wrong, but it showed me that domestic violence was a lot more prevalent than I ever knew. Even worse, I realized that many people are conditioned to accept the unacceptable.

Despite years of campaigns to raise public awareness, domestic violence continues to be an insidious part of our society. Hidden behind our neighbors’ and friends’ front doors, women and men are victimized by those closest to them. Recent surveys indicate that approximately one-quarter of adult American women report being physically assaulted by an intimate partner at some point in their lives. Men are victimized, too; although violence against men is vastly underreported, it is estimated that there are more than 3.2 million assaults per year against men by their intimate partners.

Domestic violence is present in all walks of life. It affects the upper class, the middle class, and the working class. It affects every race, religion, and sexual orientation. Victims need to know that there IS a way out.

Although the definition of domestic violence varies from state to state, in Washington it is defined as: “Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members; (b) sexual assault of one family or household member by another; or (c) stalking of one family or household member by another family or household member.”

Family or household members are members of the same family (including parents, step-relatives, half-relatives, adopted relatives, etc.), spouses/former spouses, roommates (past or present), and anyone who you have had a dating relationship with, past or present.

If you are a victim of domestic violence, the courts can help protect you from your abuser. Getting away from the person hurting you requires careful planning. Given that domestic violence victims are often controlled so much that it’s difficult for them to even make a phone call, planning your escape may take extra effort. Here are some things to keep in mind.

If possible, plan your escape in advance. Call the Washington State Domestic Violence Hotline at (800) 562-6025; they’ll be able to help you plan a safe way to get away from your abuser. Sometimes, though, you won’t be able to plan anything. If you are being physically or sexually abused by someone, get away as soon as possible. Call 911 if you can. If not, run to safety as quickly as you are able.

There are many agencies who want to help you stay safe. If you live in Seattle, for example, the City of Seattle offers many programs under the umbrella of their Domestic Violence and Sexual Assault Prevention Program 206-233-2774. These programs include emergency and transitional housing, counseling, and other desperately needed help.

In addition to whatever actions the police may or may not take to arrest and prosecute your abuser, you have the ability to petition the court for an order barring your abuser from coming near you or harassing you in any way. This is much different than a restraining order. A domestic violence protection order is stronger and has more serious consequences if violated.

The procedure for obtaining these types of orders can be very confusing. If you do not follow all the rules then your petition will be denied. Furthermore, being granted such an order is not automatic even if you correctly follow all the steps involved. You must prove your case in a full hearing by a “preponderance of the evidence,” meaning that the domestic violence must be proven “more likely than not” to the judge or court commissioner’s satisfaction. Your abuser has the right to be present, put on his or her own case, and even to question you in court. He or she may also counter-petition for an order against you.

As you can see, this system may be extremely difficult, especially when you’re suffering from the after-effects of an abusive relationship. If at all possible, it is crucial to have an attorney who routinely handles domestic violence matters to help guide you through the process and to present the evidence in the light most favorable to you. These orders can be incredibly helpful; sometimes they could mean the difference between life and death. If your abuser violates a domestic violence protection order then he or she may be arrested and charged with a very serious crime.

No one has the right to hurt us. There are never any circumstances to justify committing domestic violence against our loved ones. This behavior is incredibly damaging to everyone involved, not just physically but emotionally, too. Victims often get sucked into repeated dangerous relationships with different abusers despite their best intentions to escape from the cycle. Even worse, our children see this behavior and end up becoming victims or abusers themselves as they become hopelessly caught up in that same cycle of abuse.

If you are a victim of domestic violence, speak up. I cannot urge you strongly enough to get away from your abuser and to get the help that you need and deserve. Once you’ve done so, retain an attorney who has experience and training in domestic violence and family law matters. We can help protect you from further harm so that you, too, can break the cycle of abuse.

Justin M. Sedell

Approximately one month ago, Japan’s Justice Ministry made the unexpected announcement that Japan intends to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction as early as 2010. Japan has long been criticized as a safe haven for international child abductors of Japanese decent. Despite more than 17,000 international divorces involving Japanese citizens and foreign nationals occurring each a year, there are no documented government-assisted repatriations of children to their home countries after their abduction into Japan. That’s right. Not one. Currently, former spouses are often unable to even determine the general whereabouts of their abducted children once abducted into Japan. And even when the abductor can be found, the Japanese courts will almost always refuse to recognize a foreign custody order.

Should Japan actually sign the Hague Convention, it will be welcome news indeed. Japan will be obligated to create a “central authority” within their government. That central authority will in turn be obligated to locate children in Japan who are alleged to have been abducted, take measures to prevent those children from being moved again prior to any legal proceedings, and support international family law legal procedures for returning children to their rightful parents. Those legal procedures are supposed to take no longer than 6 weeks from start to finish.

Many struggles will no doubt remain, however, for years to come. International family law is a new concept in Japan, and one of the main problems we often run up against is enforcement of family law decisions. Currently, a Japanese family court’s decision is essentially advisory in nature. Meaning, the family court really has no way of enforcing its orders. In the U.S. and elsewhere, the family courts have contempt powers and their civil determinations can even ultimately lead to criminal charges against an offending parent. There is, today, no similar mechanism in Japan.

David Starks

This post is a reproduction of an article written for the American Academy of Matrimonial Lawyers.

Cooperative Law, an alternative dispute resolution method, is designed to be a middle ground between the absolutes of Litigation and Collaborative Law.

John Lande, of the University of Missouri-Columbia School of Law, defines Cooperative Law as, “an explicit agreement by lawyers and parties setting out a negotiation process. These agreements vary and may include terms providing for extensive participation by the parties, confidentiality, sharing of all relevant information, negotiation in good faith, and use of an interest-based approach to negotiation. The process generally begins before the parties file a lawsuit or perhaps soon after. The participation agreement may provide for a “cooling off” period before engaging in contested litigation. It may also state that if the parties do litigate, the lawyers would focus solely on the merits of the issues and avoid tactics that would unnecessarily aggravate the conflict.” Cooperative Law, which originated in Wisconsin in 2003, has had success in other states such as Massachusetts.

Cooperative Law, like Collaborative Law, is based upon a simple premise. It exists to allow clients an opportunity to work within a framework of cooperation rather than divisive struggle. The problem with Collaborative Law is that its strictures are so tight that it does not, and cannot, apply to most Family Law matters. Unfortunately, as there has been no other formally defined choice available in Washington State, some clients find this out the hard way and have to absorb a huge toll in time, money, and energy to move from a Collaborative approach to traditional practice in the resolution of their cases.

The polar opposition of the Collaborative method and Litigation does not allow clients an opportunity to attempt to resolve their issues in a cooperative fashion without taking on huge risk to themselves. This is the fundamental difference between Collaborative Law and Cooperative Law. If negotiations don’t work - in Collaborative Law you must fire your attorney, hire a new attorney who will go to court, and start your case over from the very beginning. In addition, all other jointly retained experts, agents, or accountants must be similarly dismissed at this point. In Cooperative Law, your case continues with your attorney, the work done up to the point of failed negotiations is preserved, and the court or arbitrator decides unresolved issues.

Too often, Collaborative Law is pitched to potential clients as a near magical solution to their problems. It is not. The devotion of attorneys to this practice method does not, and cannot, change the nature of the deeply ingrained struggles many of our clients face. Cooperative law exists to allow clients a chance to resolve their disputes in a cooperative fashion – without overextended commitments. Cooperative Law is designed for attorneys who wish to represent their clients’ best interests, be that in a cooperative process or through a more traditional method.

The Washington Family Law Council, a recently formed not-for-profit organization, is devising a model for Cooperative Law practice in Washington State. This model will be available in the summer of 2008.

Jennifer Payseno

Hello, welcome to the home of the McKinley Irvin blog. We will begin posting on Family Law topics, from divorce to domestic partnership, soon. Make sure to check back.