WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Wednesday, October 19, 2016

Do you want an Attorney who FIGHTS for their Clients?

I am Attorney [INSERT NAME HERE] and I FIGHT for my clients!

This is a common description on an attorney's website.  They want you to know that they would be your champion!  If you hire them you won't have to worry about your problem anymore.  They'll take that monkey off your back.

But is that true?  Is it realistic?  Is it really what you want?

While the job of an attorney is often described as zealous advocacy, to equate that with fighting is to misunderstand the work of an effective attorney.  Zealous advocacy means that your attorney is working hard to accomplish your goals.  Unless your goal is to create conflict and start an expensive legal battle, then "fighting" is probably the last thing you want your attorney to start with.

Consider these two examples:

Example 1 - The Stolen Website Copy: You find out that one of your competitors has stolen copyrighted material from your website and reprinted it on their website.  You call your attorney.  Do you want an attorney whose first reaction is to:

A. File a lawsuit;

B. Write an angry cease and desist letter; or

C. Call the competitor and ask them to take down the content?

If your goal is to pay your attorney a lot of money for a fight then option A is probably your best bet.  If your goal is to look tough and make sure the other side starts on the defensive then option B is probably your best bet.  However, if your goal is to have the material taken down, then option C is the best way to start.  Just because you start with a phone call doesn't mean that you can't move to option B or A if necessary, but Hanlon's Razor suggests that you usually benefit by assuming incompetence before malice, and acting accordingly.

Often a phone call is enough, especially if they were unaware that their web designer has been lazy and bad at their job and just copied content from another site.  In many cases a phone call is enough for the competitor to take down the material (and hopefully hire a new web designer).

Example 2 - The Custody "Fight": You just found out your spouse wants a divorce and they want you to move out!  You don't really want to see them right now, but you are not going to give up time with your kids just because they want to get divorced.  You call your attorney.  Do you want an attorney whose first reaction is to:

A.  File a Complaint for Divorce and schedule a hearing date requesting that the Court give you Custody;

B.  Write a Letter telling your spouse that they've been hired and invite them to respond by a certain date or they will be served with a Complaint for Divorce; or

C.  Discuss all your options, which includes helping you decide if there is any opportunity for reconciliation, whether mediation or a collaborative setting could result in a better co-parenting relationship, or whether court is necessary for protection due to an issue that truly threatens the safety of you or the children.
Again, if your goal is to pay your attorney a lot of money for a fight then option A is probably your best bet.  If your goal is to have attorneys involved every time you and your spouse have a parenting disagreement in the future then option B is probably your best bet.  However, if your goal is to make sure that your children are okay and not hurt by your divorce, that both parents stay involved in their life, or that your voice is respected and heard throughout, then option C is the clear preference.  Court is the best process for some, but it should be a last resort for most, and the choice of process should be one that you make after being informed of all options.

In both examples, Option A and B are much more lucrative for the attorney so you should ask yourself why an attorney whose preference is "to fight first" has that preference?  Is it because it's best for you or because it's best for them?

You should also ask why an attorney would draft their advertising in a way that promotes their ability to "FIGHT"?  Is it because they approach every problem in that way?  Is that how you approach every problem, or do you try to resolve conflict before it turns into a fight?  Do you want to pay for a "fighter" or a "problem solver?"  Think about that when you read an attorney's website and choose wisely!

Tuesday, October 4, 2016

Who is a Legal Parent? Redux Edition - Partanen v. Gallagher

About a year ago we posted a series entitled Who is a Legal Parent? and addressed the many ways in which a parent (someone who takes care of a child) can also be considered a legal parent (someone who the court recognizes has rights and obligations relating to the care of a child).   In the Venn Diagram to the left you can see that these two categories overlap but not everyone who is a legal parent acts like a parent, and not everyone who acts like a parent is recognized as a legal parent.

Today, the Massachusetts SJC expanded the purple section of this diagram, recognizing that a non-biological parent who "jointly with the mother, received the child into their home and openly held out the child as their child" is a legal parent.  In Partanen v Gallagher the SJC read the statutory definition of paternity to include a non-biological same-sex parent.
"In addressing Partanen's claims on direct appellate review, we consider the question whether a person may establish herself as a child's presumptive parent under G. L. c. 209C, § 6 (a) (4), in the absence of a biological relationship with the child. We conclude that she may."
We review this decision below:

The court first reviewed the timeline of the relationship between Partanen and Gallagher, the two mothers in this case:

2001 - Partanen and Gallagher entered into a committed relationship.
2002 - They moved to Florida and purchased a house.
2005 - They decided to start a family; Partanen unsuccessfully underwent fertility treatment.
2007 - Gallagher underwent similar treatment and was successful and gave birth to a daughter.
2011 - Gallagher again underwent a fertility treatment and gave birth to a son.
2012 - They returned to Massachusetts together.
2013 - They separated and Partanen moved out of the family home.

From 2007 to 2013, Partanen participated in raising the children from birth, but did not formally adopt the children.  In February, 2014, Partanen filed an action seeking shared legal custody and parenting time with the children under the "de facto" parenting standard.  In October 2014 she also filed a Petition to establish legal parentage under G. L. c. 209C, § 6 (a) (4) among other laws.  The SJC did not reach her other assertions (under the reproductive technologies statute and under constitutional claims) because they found in her favor under G. L. c. 209C, § 6 (a) (4).

The trial judge dismissed the second complaint but did provide custody and parenting time to Partanen under the "de facto" parent standard, expanding the traditional "de facto" parentage case law to include legal custody and child support.  That issue is under appeal as well, but the issue of legal parentage under 209C reached the SJC first resulting in this decision.

G. L. c. 209C, § 6 (a) (4) states that "a man is presumed to be the father of a child" born out of wedlock if "he, jointly with the mother, received the child into their home and openly held out the child as their child."

Under Hunter v. Rose, the court reads all statutes as if "words of one gender may be construed to include the other gender and the neuter."  Read in gender-neutral terms G. L. c. 209C, § 6 (a) (4) includes all children who were "born to [two people] who are not married to each other" instead of its original language "born to a man and woman who are not married to each other."

Gallagher argued that, regardless of a gender-neutral reading, the provisions of G. L. c. 209C, § 6 (a) were intended only for the purpose of establishing biological parentage and are thus inapplicable to this case where this is no doubt that Partanen is not a biological parent of the children.  However, the court points out that nothing in the statute expressly requires a biological tie.

Further, the court points out that the statute's purpose is described in § 1 as providing "all '[c]hildren born to parents who are not married to each other . . . the same rights and protections of the law as all other children.' G. L. c. 209C, § 1."  Under Hunter v. Rose, if Gallagher and Partanen had been married, the children would have been presumed to have two legal parents.

The court also points out that another portion of G. L. c. 209C has already been extended beyond biological parentage, specifically under § 11 (a) if parentage is established through a written voluntary acknowledgement of parentage then even a non-biological signatory parent would be considered a legal parent with all the attendant rights and obligations.

Ultimately, the court's reading of this case (and the trial court's requirements on remand) are highly dependent on the facts of the case, and more specifically the exact nature of the relationship and decision to have children together:
"Gallagher contends also that allowing Partanen's claim to proceed intrudes on Gallagher's 'right [as] a single woman to give birth to a child into a family framework of her own choosing.' The question in this case, however, is not whether courts may impose a second parent onto a single-parent family, but whether this was, in fact, a single-parent family in the first place.  Partanen's allegation is that, from the beginning, the children had two parents, both of whom were jointly involved in the children's lives.... and  the statute at issue was enacted for the benefit of children born outside the context of marriage..."
The claims that Partanen made in her complaint regarding her involvement with the children were sufficient for the SJC to establish a claim under the "paternity" statute.  Now the decision returns to the trial court where Partanen must prove those claims.  Given her previous establishment of parenting rights under the "de facto" parenting standard it seems likely that she will be able to meet this burden of proof.

Given that this case expands the reading of the "paternity" statute beyond the traditional reading, this case may have far reaching impact on the rights and obligations of non-biological parents who formally may have had very limited rights under the "de facto" standard.  This will create some confusion as different fact patterns are presented to the court, but in the long run should mean the recognition of more parents as "legal parents", something which the SJC clearly believes is in the best interest of children born to unmarried parents.

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