Kramer vs. Kramer Revisited: A Comment on the Miller Commission Report and the Obligation of Divorce Lawyers for Parents to Discuss Alternative Dispute Resolution with Their Clients

The 2006 Report of New York State\u27s Matrimonial Commission to Chief Judge Kaye (commonly know as the Miller Commission Report) recommended that New York begin to incorporate alternative dispute resolution into the State\u27s fragmented and adversarial divorce system. This Comment argues that it should have more strongly recommended that divorce lawyers be mandated to discuss alternative dispute resolution, particularly mediation, with parent-clients before filing suit. The Comment begins by describing the advice given to a parent client in the movie Kramer vs. Kramer and argues that that advice constitutes zealous advocacy as famously described by Henry Lord Brougham in Queen Caroline\u27s Case. While the advice given the parent client in Kramer v. Kramer is consistent with current notions of professional responsibility for lawyers, it does not serve the best interests of children in that it did not incorporate advice about the general importance of reducing conflict between parents to the best interests of children or discuss methods for doing so. The Comment contrasts zealous advocacy as portrayed in Kramer v. Kramer with problem solving advocacy as described by Lincoln, Gandhi and the Bounds of Advocacy of the American Academy of Matrimonial Lawyers. It argues that empirical research has demonstrated that judicial and legislative mandates that lawyers discuss alternative dispute resolution with clients are in the best interests of children, promote problem solving advocacy, and are generally appreciated by divorcing parent clients. Finally, this Comment briefly explores whether divorce lawyers should have a mandatory ethical responsibility to children of parents, and concludes that for the present, that duty should be aspirational only

Parental Conflict Prevention Programs and the Unified Family Court: A Public Health Perspective

The thesis of this article is that every unified family court should develop a prevention plan to help parents reduce conflict arising out of divorce and separation. A coherent prevention strategy should become a fundamental criteria for distinguishing high-quality family courts from those that do not serve their publics as well. Models of useful pro-grams already exist and can be incorporated into a court\u27s prevention plan. Judges, legislators, lawyers, mental health professionals, and child advocates should insist that they are. Section Two of this article describes the problems facing courts, parents, and children resulting from divorce and separation in terms of a public health rather than a caseload model. Then, this article details the epidemic-like crisis facing family courts because of increased case-loads and troubled parents and children. The fourth section describes already existing preventive education programs that family courts can draw on and briefly summarizes the available research on their effectiveness. The fifth section describes the comprehensive prevention approach designed by Oregon\u27s interdisciplinary Task Force on Family Law. Finally, this article discusses how a unified family court can incorporate a prevention strategy into its mission

The Model Standards of Practice for Family and Divorce Mediation

This chapter has a modest aim: introduce the Model Standards to those not familiar with them. It provides an overview of the standards, the process of developing the documents, and their most important themes. Family and divorce mediation is a complex and evolving field, this comparatively brief article thus cannot touch on all of the issues and problems addressed by the Model Standards. Many of the other chapters in this volume elaborate on the subjects mentioned here in more detail and nuance

Sex Discrimination and Equal Protection: Do We Need a Constitutional Amendment?

Most people would probably agree that many sex-distinguishing statutes should be eliminated. There are, for example, some statutes whose only apparent purpose is to raise ancient chivalric notions to the level of state protection; in some jurisdictions it is a criminal offense for a male to use obscene language in the presence of a female, but not an offense for a female to do so in the presence of a male. Other statutes may simply codify a double standard as to the relative freedom of males and females to depart from conventional morals; in some jurisdictions, for example, a statutory defense is available to the husband who murders his wife\u27s paramour but not to the wife who kills her husband\u27s mistress. Still other sex distinctions are vestiges of the old common law doctrine of coverture, which treated husband and wife as a single legal entity; thus, a married woman\u27s domicile, with all its legal ramifications, is generally determined by her husband\u27s, even though they may live miles apart.\u2

An Introduction to the Model Standards of Practice for Family and Divorce Mediation

The Model Standards redefine the nature of family and divorce mediation practice and result from a Symposium on Standards of Practice convened by the American Bar Association\u27s Family Law and Dispute Resolution Section, AFCC, the ABA\u27s Commission on Domestic Violence and other major family law and family mediation groups. The Symposium developed the Model Standards over a five year period. They were approved by the American Bar Association in February, 2001. I served as reporter for the Model Standards. The article describes the process of drafting the Model Standards and key issues they address. It also contains the text of the Standards

Kramer vs. Kramer Revisited: A Comment on The Miller Commission Report and the Obligation of Divorce Lawyers for Parents to Discuss Alternative Dispute Resolution With Their Clients

The 2006 Report of New York State\u27s Matrimonial Commission to Chief Judge Kaye (commonly know as the Miller Commission Report) recommended that New York begin to incorporate alternative dispute resolution into the State\u27s fragmented and adversarial divorce system. This Comment argues that it should have more strongly recommended that divorce lawyers be mandated to discuss alternative dispute resolution, particularly mediation, with parent-clients before filing suit. The Comment begins by describing the advice given to a parent client in the movie Kramer vs. Kramer and argues that that advice constitutes zealous advocacy as famously described by Henry Lord Brougham in Queen Caroline\u27s Case. While the advice given the parent client in Kramer v. Kramer is consistent with current notions of professional responsibility for lawyers, it does not serve the best interests of children in that it did not incorporate advice about the general importance of reducing conflict between parents to the best interests of children or discuss methods for doing so. The Comment contrasts zealous advocacy as portrayed in Kramer v. Kramer with problem solving advocacy as described by Lincoln, Gandhi and the Bounds of Advocacy of the American Academy of Matrimonial Lawyers. It argues that empirical research has demonstrated that judicial and legislative mandates that lawyers discuss alternative dispute resolution with clients are in the best interests of children, promote problem solving advocacy, and are generally appreciated by divorcing parent clients. Finally, this Comment briefly explores whether divorce lawyers should have a mandatory ethical responsibility to children of parents, and concludes that for the present, that duty should be aspirational only

Taking Children Seriously: Promoting Cooperative Custody After Divorce

A divorce-related custody dispute often causes more damage to the affected child than if lawyers and judges had never become involved. Contested custody disputes often drag on for years without resolution, leaving the child trapped between battling parents, adversarial lawyers, and overburdened courts applying uncertain substantive standards through procedures that increase parental conflict and expense. This Article tries to resolve this identity crisis by describing and defending a new model for the custody dispute resolution system-one whose overriding aim is to better serve the needs of the child affected by divorce by promoting cooperation between divorced parents. The Article has four themes

The Adolescent Mental Health Crisis: A Case Study in Family Court Planning

The article focuses on addressing the adolescent mental health crisis within the framework of family court planning, particularly in the context of parental separation and divorce. It emphasizes the need for comprehensive planning processes within family courts to integrate Family Dispute Resolution (FDR) as a central strategy for tackling this crisis effectively. It seeks to enhance mental health services for adolescents involved in family court proceedings

Divorce, Interspousal Torts, and Res Judicata

Some fear that requiring litigation of interspousal torts in a divorce action may undermine the policy premises of no-fault divorce. Fear of res judicata may encourage divorce litigants to scrape the bottom of the barrel and assert every conceivable tort claim that arose during the marriage. Divorce litigation will thus become more bitter and hostile than it already is. Others fear that divorce litigation will become unmanageable as tort claims and third parties are added to joined tort/divorce litigation. The thesis of this article is that, despite these concerns, as a general rule, spouses should be required to litigate tort claims against each other that arose during the marriage relationship in the divorce action, or lose them. This proposed rule flows from the general thrust of both modern procedural and divorce reform, which encourage resolution of all grievances between a divorcing couple in a single proceeding. While claims for tort and divorce serve different social purposes, the facts establishing both claims and relief the plaintiff receives are inextricably intertwined. Modern rules of procedure generally compel parties to join such interconnected claims. The problems that the opponents of mandatory joinder foresee can be solved in a modern procedural system; careful judicial administration can prevent loss of jury trial rights and inequitable application or undue complication of the divorce action. Modern courts are capable of dealing with claims based on different legal theories arising out of a single factual base in one litigation

The Evolving Judicial Role in Child Custody Disputes: From Fault Finder to Conflict Manager to Differential Case Management

The judiciary\u27s role in divorce related child custody disputes has been transformed in the latter half of the twentieth century in response to the changing characteristics of American families, changing perceptions of the needs of children, and an overwhelming case load increase. The transformation occurred in two distinct phases, and a third is currently in process. In Phase I, from the late 1960s (the beginning of widespread no fault divorce) to 1980, the child custody court was a fault finder functioning through adversary procedure. The court\u27s job was to identify a single custodial parent and assign that parent primary legal rights to the child after a trial about which parent was a better custodian for the child. Phase I courts conceived of a custody dispute much like a will contest. The parents\u27 marriage, like the decedent, was dead. Parents, like the heirs, were in dispute about the distribution of one of the assets of the estate--their children. The Phase I court\u27s role was, after trial, to determine which heir/parent was more morally or psychologically worthy to control the children. The goal of the proceeding was a one time determination of custody rights which created stability for the future management of the asset. The winner was, however, largely predetermined by gender biased substantive standards that eliminated the seeming indeterminancy of the best interests test. Once the court distributed custody rights, its role in facilitating the ongoing process of reorganizing the child\u27s relationships with both parents was over, except for the enforcement or modification of its initial award, tasks also accomplished through adversary process