PTSD PUTS CHILD CUSTODY IN JEOPARDY

I’m a lawyer in Carlsbad, California.  A large part of my practice is family law, and many of my clients  are Marines from Camp Pendleton.  Once a service member has been diagnosed with PTSD, the diagnosis sticks like glue, having seriously adverse effects when there is a conflict regarding custody of small children.  Judges and minor’s counsel are disposed to believe all service members with PTSD are sooner or later bound to “snap” and hurt their kids. Convincing anyone otherwise is a tall order.  If anyone is aware of any studies regarding the correlation of unpredictable personal violence with  a diagnosis of PTSD, I would be much obliged for a citation.

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Stan Prowse

Military Families in Crisis

Military families in crisis have a choice between military and civil protective orders.

 

Military protective orders can be obtained quickly and easily by an abused spouse by going to the other spouse’s command. The drawback is that they are usually all encompassing, preventing any contact at all between the offending spouse on one hand and the abused spouse and any minor children on the other.  A civil protective order, on the other hand, can be tailored to fit the particular situation.  For example, where there are minor children the offending spouse will usually be allowed to have  and to communicate with the abused spouse about the children, although often by email only.  If the situation is salvagable, a civil protective order is like to be the better alternative.

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Stan Prowse

PTSD and Child Custody

PTSD is a major obstacle in child custody disputes.

 

PTSD characterized in part by sudden aggressive outbursts or sudden violence will be a major obstacle to a current or former service member’s chances of obtaining unsupervised visitation with his minor children, much less joint physical custody.  The courts, as well as minor’s counsel, will put the children’s safety and freedom from emotional trauma ahead of all other considerations if they believe there is a risk that the member will “snap.”  Once there has been a diagnosis of PTSD, the member must accept the diagnosis, however unfair it may seem, rather than go into denial.  The way forward is to undergo all available psychotherapy and drug therapy, so that a solid mass of professional evidence is available that treatment has been willingly sought and successful.  In short, any member with PTSD in his record must be prepared to prove to a skeptical judge that he or she is not going to harm children or anyone else.

 

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Stan Prowse

Restraining Order Anarchy

California’s restraining order laws threaten to drive us into a state of anarchy, or as Thomas Hobbes called it in Leviathan, the war of all against all.  So far our legislators have devised six of these things.  Best known to the general public are the two laws providing for restraining orders to prevent civil harassment and domestic violence. Mostly unknown to the general public are the other five, for restraining orders to prevent elder abuse, workplace violence, private postsecondary school violence, and transitional housing misconduct.

There’s a mandatory set of do it yourself forms for each of these, including instructions.  You can get a temporary restraining order (the “TRO”) without notice to the bad guy, a noticed hearing (a mini-trial) has to occur within 15 days, and at the hearing you can get a three year “permanent” injunction against the bad guy with “no contact” and “stay away” orders and other goodies.  For civil harassment and domestic violence there’s no filing fee, and you don’t have to post a bond to get the TRO (if you lose at the hearing, to pay the defendant his costs and any fees he incurs). Everyone and anyone can play.

As usual, good intentions started the ball rolling.  For decades you’ve been able to sue somebody for intentional infliction of severe emotional distress.  In theory you could get a temporary restraining order and a preliminary injunuction pending the trial, but it could take months to do it, as well as lawyers, a pile of custom paperwork, a bond, and lots of money.  Then after more months, there was a full dress trial.  This was injustice.  What was needed was a quicker, cheaper way to get an injunction stopping the infliction and thus the distress.

Domestice violence posed a similar problem.  The cops could arrest the offending spouse, but he or she would be out on bail and back home in a couple of days, throwing plates, punches, or worse.  Again, a quick, easy, and cheap way was needed for the battered spouse to get “no contact” and “stay orders” preventing future injuries.

These days the problem is two-fold.  First, too many people exaggerate if not lie about the harassment or the violence.  For example, if you’re holding a grudge aginst some one for some real or imagined slight, it’s easy to make up a story with all the required ingredients for legal harassment. Because most of the stories judges hear in these matters are “he said, she said,” TRO’s are seldom refused, and three year injunctions are the norm.  For a spouse contemplating divorce, an allegation of domestic violence is a particularly tempting way to get the upper hand, particularly if child custody will be an issue.

Second, too many police officers tell people they need to get TRO’s and injunuctions.  Experience indicates that when the police are called to deal with supposed harassment or domestic violence, they often tell the victim he or she must go to court and get a TRO, even if the victim would otherwise not do so.  The days of the Irish cop persuading people to calm down and make up are long gone.  In one domestic violence case, the first words of the first officer entering the house were, “Some one is going to jail tonight.” Despite the girlfriend’s pleas that the argument was over and her boyfriend shouldn’t be arrested, off to jail he went.  At least the police seem to be gender neutral.

In fairness to the judges and the police, there is something to be said for being cautious.  Failure to seek a TRO and an injunction, or a mistaken refusal to issue them, can sometimes lead to results nobody would want.  On the other hand, the existence of these streamlined remedies seems to encourage their unnecessary use, and to discourage people from avoiding situations where they might indeed be necessary.

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Stan Prowse

Divorce and Handsome Princes

A frequent complaint among women seems to be, ‘Where have the men gone?’

I’ve been divorcing people for a long time, and I think I may know part of the answer.  In the vast majority of divorces, husbands are still the high earners.  Therefore, they wind up paying spousal support to their ex-wives for what seems like eternity.  Sometimes it is an eternity – they pay until their ex-wife dies.

To make matters worse, for decades divorce has been no fault.  But wives cheat too, and it generally takes two to tango, but a judge doesn’t care about that when spousal support (aka alimony) is under consideration.  It’s no fault divorce.

Most men are convinced ex-wives get the mine and ex-husbands get the shaft.  Even if the sterotype isn’t true, it’s a discouraging prospect for guys.

Women’s liberation has gone hand in hand with no fault divorce.  Even if the majority of wives are still the low earners, in the public arena women are equal to men, outperform men in school, and are on the verge of dominating at least one profession (the practice of law).  The ideal modern woman is self sufficient.

But despite their elevated status, personal observation indicates that the heart of Cinderella is still beating inside most modern women, in anticipation of finding a Handsome Prince.  Unfortunately, the heart of the Handsome Prince doesn’t seem to be beating inside most modern men.

They don’t seem to want the obligation of taking financial and emotional care of women who are supposedly equal or more equal than they are, particularly when they suspect the financial obligation may survive marriage, and when a would-be princess no longer demands proof of love and loyalty before a roll in the hay.

Whether or not they articulate it clearly, most modern males view the role of the Handsome Prince as a thankless task that’s more trouble than it’s worth.

A potential Handsome Prince now concludes, if women are so superior, so smart, and multitask like magicians, let them take care of themselves, and having reached that conclusion, the potential Handsome Prince renounces the throne.  A would-be Cinderella’s search for a Handsome Prince may be never ending.  With relatively few exceptions, there may only be boys out there, who are content to be commoners instead of royalty.

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Stan Prowse

Government by Fiat

In this blog, fiat means an authoritative or arbitrary order, not fix it again Tony.  Government by fiat would be government by orders issued by prince or a king, not by laws passed by a democratically elected legislature such as Congress.  Government by decree is same thing, although you might think decrees were more likely to be issued by a dictator.

Latin was the language of the Roman Empire.  Fiat comes from a Latin word meaning “to be done.”  Decree comes from a Latin word meaning “to decide.”  Since they’re about the same and both Latin, we’ll call them both decrees.  On the other hand, the word law comes from an Old Norse word, “log,” meaning a binding custom or practice of a community.

No wonder people like laws better than decrees.  Here in the United States, we also flatter ourselves that we are governed by laws rather than by men, the men alternative obviously standing for guys issuing decrees.  Are we really that lucky?  I don’t think so, at least not anymore.

For 80 years or so we’ve had something called administrative law.  It was one of my courses in law school.  Here’s the idea.  When Congress passes a law that’s complicated, it delegates the application of the law to administrators, also known as bureaucrats.  The delegation is right there in the law.  Sometimes it’s called “rule making authority.”

Then the bureaucrats make up specific rules based on the law.  The rules are called regulations.  How far afield the bureaucrats can go in doing this, and what processes they have to use to write and adopt the regulations, is the subject of administrative law.

As far as I can tell, Congress seldom, if ever, reviews regulations to make sure they’re what Congress intended them to be when it passed the laws.  Instead, people file lawsuits claiming that the bureaucrats exceeded their rule making authority.  Whether they did or they didn’t is decided by judges.

Wow!  Regulations seem to look more like decrees than laws, with the custom and practice of the community lost along the way in the mists of the Potomac River and the fog of Foggy Bottom. Now let’s look at something else that might make you feel less lucky.

Along with administrative law we have something called an executive order.  The President issues these orders as the chief executive of the federal government.  As background, remember that the President’s oath of office requires him to uphold the laws of the United States.

During World War II, President Roosevelt uprooted Japanese Americans from their homes and sent them to internment camps by executive order.  That’s still a hot potato.  For years nobody thought federal employees could unionize legally.  Then along came President Kennedy and issued an executive order that they could.  Surprise!

A few days ago President Obama issued an executive order halting deportation of a certain group of illegal aliens, suspending the enforcement of a law passed by Congress requiring their deportation.  Oops, executive orders also look suspiciously like decrees, and some seem to trump laws.

Federal regulations are assembled in the Code of Federal Regulations. In print the Code now takes up yards of library shelves.  More yards are on the way for ObamaCare.  In the meantime, the number and scope of executive orders have also increased considerably.

Myself, I’m not feeling too lucky.  Are we governed by laws rather than guys issuing decrees?  Would you rather be a Viking in your village banging your shield yea or nay, or a Roman in the Colessium hailing the Emporer? Think about it, do some of your own research, and form your own conclusions.

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Stan Prowse

Birthrates and the Future

Birth rates fascinate me.
, as somebody once said.

As prosperity increases, birthrates decline.  This appears to be a universal rule.  It takes roughly 2.2 births per female for both parents to reproduce themselves.  More, and population rises.  Less, and it declines.

The birth rate in the United States is above 2.2, but this exception only proves the rule.  The highest birthrates in the U.S. are among recent immigrants from less prosperous countries.  Among other people, the birthrate is below 2.2.

Italy has the lowest birthrate in Europe, despite the popular image of large families with many beaming bambinos.  If the trend continues, someday statistically there’ll be no Italians.  The Germans are about even.

What about other broader impacts?  Somebody is always predicting the world’s population will overwhelm the food supply.  But if you assume spreading prosperity, won’t the whole world’s population start shrinking someday and keep shrinking until there’s more food than we need?

Then there’s global warming.  If we’re doing it, won’t there be less of it if there are less of us?

The prosperity factor looks like a wild card to me.  I’ve never seen a decent explanation of how prosperity can increase or even continue in the face of population decline.  If it can’t, prosperity’s eventually going down.

Will birthrates go up if prosperity goes down?  I doubt it.  Reliable contraception and women’s liberation aren’t likely to disappear even if prosperity does.

Diehard environmentalists are sometimes accused of hating people.  Fewer people would probably mean more wilderness, so maybe they’re in luck.   I’m not sure about the rest of us.

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Stan Prowse

What’s Normal?

Like most Americans, I’m concerned about the looming loss of our superpower status to China and the challenge of Islam.  Our comfortable normal seems to be changing into an uncomfortable abnormal.  On the other hand, maybe there was nothing normal to begin with about the general dominance of the West, and our superpower status in particular.

Take China.  For something like 3,000 years the Chinese Empire was the world’s most advanced civilization.  The West didn’t truly gain the upper hand over China until it lost the opium wars waged by the British roughly 160 years ago.  But the British Empire is now gone, having lasted only  250 years or so, and China now vies with us for supremacy.

How about Islam?  Well over 1,000 years ago, it swept to power in North Africa, Asia Minor, the Midle East (including the Holy Land), and much of India, then morphed into the Islamic Ottoman Empire.  It conquered  Christian Constantinople in 1469 and renamed it Istanbul in 1469.  After that the Balkans fell to Islam, and in 1688 Vienna narrowly escaped the same fate.

The Ottoman Empire only fell apart roughly 100 years ago, first with Balkan independence and second when it was carved up after World War I by Britain and France.  That didn’t last long, and what was once Islamic is still Islamic.  Not only that, Islam has now peacefully invaded Western Europe proper, where Muslims have high birth rates and the natives are failing to reproduce themselves.

So what’s normal and what’s abnormal? Taking the long view, the dominance of the West wasn’t normal, it was abnormal.  It seems to have sprung from a temporary and now ending advantage in technology, mainly in weaponry and the ability to project power around the globe.  Depending how you count, Western dominance has lasted only about 300 years.  Our waning superpower status is less than 100 years old.

Is the supremacy of China and Islam actually the normal state of affairs?  Possibly the answer is yes, and the world is only returning to its usual course after a relatiely brief detour. Perhaps that can be of some solace to us and our European friends.  We’ve had a good run for a few hundred years.  And having had a taste of freedom, people around the world may not be willing to see it disappear.

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Stan Prowse

No Trespassing!

Busily micromanaging the residential rental market from Sacramento, our  legislators have made landlord-tenant law in California a minefield for landlords.  Here’s one mine you might not know about, but should if you’re an amateur landlord or thinking of becoming one.  Under what I’ll call the limited entry laws, you have no legal right to enter your property to see what condition it’s in without the tenant’s consent.

There are only three legal exceptions.  The first is entering to deal with a dire emergency, like fire or flood. The second is entering to make repairs.  The third is entering to show the property to prospective tenants.  Naturally no prior notice is required for the first, but prior notice is required for the second and third.  How to give prior notice is not left to chance.  Detailed requirements must be followed.

Now, how is the landlord supposed to know that he should enter legally to make required repairs if the tenant never tells the landlord that any repairs are required?  Apparently assuming that all renters are responsible and reliable, our legislators have failed to answer that question.  So, let’s say there is water leaking under the kitchen sink from the faucet, gradually destroying the cabinetry.  The tenant knows about the leak, but he doesn’t doesn’t care about the cabinetry.  He cares more about the inconvenience of having the landlord, the plumber, and the cabinet guy in the house, and he keeps his marijuana plants on the kitchen window sill.

Besides, the tenant knows his rights.  He’s already refused several requests by the landlord to inspect the place.  The tenant decides not to tell the landlord about the leak.  When he eventually departs, disappearing without a forwarding address, the landlord at long last discovers there were required repairs, but they are now ten times more extensive and costly than they might have been if landlords had a right to inspect and he had exercised it periodically.

We are not sure we can solve this problem legally.  I suggest to my landlord clients that they insert a provision in their leases stating that the landlord has the right to enter, after reasonable notice, to inspect the premises for the purpose of identifying required repairs, and that the tenant’s refusal to allow such inspection constitutes a default entitling the landlord to terminate the lease.  I also suggest a second provision containing a specific waiver by the tenant of any right under the limited entry laws to refuse entry for inspection only.

If you assume such provisions are in a lease and the tenant refuses entry after proper notice, the legality of the provisions would be tested in court.  Unfortunately the landlord  might not prevail. I suspect there is a high probability that the court would treat what I have called the limited entry laws as consumer protection laws.  In many cases, courts have ruled that it is against public policy to allow consumers to waive consumer protection laws intended to protect them.  This may be one of those cases.

To my mind the legislature has once again failed to consider the law of unintended consequences.  Their intention was undoubtedly to help tenants. However, making life more difficult for landlords forces landlords to toughen their standards for acceptable tenants.  Landlords conscious of a tenant’s power to prevent entry for inspection will not want to rent to anyone who looks as if he might exercise that power.  The net result may be to hurt people who need to rent, not to help them.

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Stan Prowse

There Goes the Judge

Dependency Court is the end of the line for dysfunctional families.  It’s where the judge rules that the child is dependent on the State, because the child can no longer depend upon his parents.  We’re talking seriously dysfunctional here – parents who beat or sexually molest their own kids, or abandon them while doing alcohol, drugs or something worse.  The child goes off to foster care, while the parent gets a reunification plan – get clean and sober and stay that way, and demonstrate a commitment to parental responsibility.  If the parent can’t handle the plan, the judge severs the legal relationship between the parent and the child, allowing for adoption by a new parent.  You’d think Dependency Courts would be the last courts to get the budgetary axe.  Think again.  My local Courthouse in Vista now has two Dependency Courts.  One of them will soon be eliminated.  Oh, and the Clerk’s office already has fewer clerks and shorter hours.  Compare what’s been cut to what’s been added (train to nowhere, anyone?), but sit down before you do.  Maybe we need some kind of dependency court to sever the relationship between Sacramento and the rest of us.

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Stan Prowse