Monday, March 28, 2011

International Society of Family Law

We've recently returned from nearly a week in Nassau, Bahamas, where we attended a conference of the International Society of Family Law, of which we are members.

The Conference concerned "The Legal and Social Consequences of the Disintegration and Reconstitution of Families."  We spent several days listening to the presentation of papers from distinguished jurists, professors, practitioners and social service providers on this subject.

Since the Conference was held in the Caribbean, far and away the largest group of attendees and presenters came from Caribbean nations.  Other attendees and presenters came from as far away as Sweden and Serbia.  Britain was particularly well represented.

We learned much, mingled much and ate much.  We met many, many new people in our larger community.  We were graced by the distinctly different accents from the many Caribbean islands.  We were treated to high state dinners and exquisite sun sets while the Defense Forces Band played on into the night.

If you would like to peruse the Programme you can find it here:

I'll write much more about this Conference in the weeks to come, but tonight I want to sum it all up in little more than a thought.  What we learned, first and foremost is that families and family issues are the same everywhere.  And I do mean everywhere.  The Judges in Trinidad are dealing with the exact same issues as the Judges in Fulton County.  The approaches to family issues of the Judges in Serbia and London are the same as the Judges in Cobb County.  The remedies employed by the Judges in Grenada are the same as the remedies employed by the Judges in Gwinnett County.

Bottom line: people are people and families are families no matter where you go.  It was a wonderful confirmation of a guiding principle in our practice.

Michael Manely

Wednesday, March 9, 2011

Termination of Parental Rights: love them or lose them.

Children.  Yours.  Do you love them?  Do you want them?  Do you take care of them?

Almost every one of you answered, "Yes, of course!" As if that were a silly series of questions.

But people are made differently.  Some people have stronger parenting genes or drives than others. Some folks obsess about their kids.  Some folks don't give them a second thought.  In my practice I see the gamut.  This blog post is about those who want to have their cake and eat it too.

Regular readers of this blog know that I posit neither gender as having exclusive title to parent of the year.  But when it comes to private termination of parental rights, I run into this issue besetting fathers far more than mothers.  

The issue arises some time after the mother has remarried, long after moving on from the father of the children.  The new couple have been raising the children together, far more as though they were the children's mother and father, rather than mother and step-father.  The couple consult with me to discuss the possibility of the step-father adopting the children.  However, before the step-father can adopt the children, the biological father's parental rights have to be terminated.

From a legal and practical standpoint, there are three issues to address to terminate a biological father's parental rights.  Two of them must be true.  The third is a nice icing on the cake.

One, has the biological father provided no support for the children for a protracted period of time?  A year is good.  Three years is better.

Two, has the biological father failed to contact the children for a protracted period of time?  Again, a year is good.  Three is better.  And the complete absence of contact is better than the occasional Christmas or Birthday card and present.

Three, is there something particularly bad about the biological father?  Is he in jail?  Has he done time for violent crimes or significant drug violations?  Did the mother and biological father separate because of domestic violence?  Did the biological father abuse the children?

If all three apply, the odds are exceptionally strong that the judge who decides the children's fate will choose to terminate the biological father's parental rights.

But so often in these cases when the couple petitions the court to terminate the biological father's parental rights, the biological dad gets a sudden case of "my babies" and wants to swoop in to express his undying affection, affinity and affiliation with his long estranged children.

Here's where the discretion of the trial judge comes in.  The good trial judge will take a Sergeant Friday approach seeking, "just the facts, m'am."  The drama takes a back seat to the reality on the ground.  But some judges get caught up in the draconian aspect of the death sentence of termination of parental rights and give that biological dad just one more chance.

So, if you are a biological dad and your ex has moved on to a real swell who is sweeping your children off of their feet, get busy.  Show your children you love them.  Show them that you are constantly thinking about them.  Pay support.  Don't miss visitation.  And if you can't keep up that schedule, if you can't foot the bill the State of Georgia decided was necessary to raise healthy children into responsible adulthood, seriously consider where you're coming from and what is in the children's long term best interest.

In a perfect world, the children's divorced daddy is very much an integral part of their lives, just as much as the divorced mommy.   The kids continue to be loved and protected by both parents.  But if one parent is voluntarily absent, let the children fill that void with someone blessed with a stronger parenting gene.

They are your children.  But you have to love them or you will certainly lose them.

Michael Manely

Tuesday, March 8, 2011

A closed mind; a closed heart.

I often write about how you must know as much as possible about the Judge who will decide your fate.  It is important for your attorney to have face time with that Judge.  It is important for your attorney to have a history with that Judge.  But this knowledge doesn't just come from being pro-active and engaged in events close to the judiciary, this knowledge also comes from the school of hard knocks, the school of unfortunate results.  Lessons learned the hard way.  Losses that were unforeseen.

Some time back I tried a case as good as a case can be tried.  My trial team left no effort in the war room; everything was spent on the court room floor.  We had uncovered the opposing party's hidden bank accounts, stolen property, misappropriated business and malicious scheming of the highest order.  We had documents condemning her by her own hand.  We had testimony from those who knew her best and outed her lies in the clearest terms.  We had photographs irrefutably proving her perjury on every level.

The opposition "phoned in" their case.  They conducted no investigation.  They provided little discovery.  They made a paltry effort.  Their case consisted of the most base innuendo, mere suggestions, nothing that would constitute proof in any serious court of law.  Their accusations were easily dis-proven by hard evidence, the veracity of which even they eventually had to concede.

But the trial judge hammered us.  The judge decided the case based upon bias and bias alone.  As I was told from the bench, "These people lie.  It's what they do."  "These people," are originally from another nation.  Theirs is a nation that has a perceptibly high percentage of people who engage in fraud.  But, for example, if you knew that more people per capita from Ukraine sped than from any other nation, a judge should not find a Ukrainian guilty of speeding without some evidence of the crime committed.  "Sir, your countrymen speed, therefore you sped."  That is not allowed.  That is not good judging.  That is not American Justice.

But I learned.  This judge has a bias streak a mile wide and a fathom deep. This judge had a closed mind and a closed heart. Evidence doesn't enter into it.  Don't bring a client from a perceived discredited population before this judge and expect the evidence to control the outcome.  Now I counsel my clients who fit that bill to use another method to resolve their matter if justice is what they seek.

Lesson learned the hard way.  And as you can probably tell, I'm still not over it. I always demand Justice, America style whether the judge will give it to me or not.  And given the reality I learned in that court room, I won't let another client climb that sacrificial alter to judicial bias.

Know your judge, open mind, closed mind or indifferent mind.  It can't help but improve the outcome.

Michael Manely

Monday, March 7, 2011

“The Best Interests of the Children” and the Guardian Ad Litem

Today's blog post is scribed by Jeremy Abernathy.


This oft used phrase refers to the standard the Court must apply in making decisions for cases involving children.  The General Assembly intentionally left the standard vague because there are a sundry of factors that weigh into what is best for a particular child.  Each case has separate facts and circumstances that add a degree of complexity to this standard, and uniqueness as to how the standard is applied.  The Judge does not have the advantage of having a “cookie cutter” formula in making decisions affecting the health and welfare of the child.  

The Judge has to sift through the divorcing parties’ warring viewpoints of case resolution relative to child custodial issues.  Further, the Judge must decipher which allegations are genuine or without merit.  The attorneys are often wrapped up in zealously arguing their clients’ perspective of what is in the children’s best interests.  Everyone’s job is tough, and unfortunately, what can get lost are the children.

The Court, however, has assistance available.  The Court, under Uniform Superior Court Rule 24.9 can appoint a  guardian ad litem.  The guardian ad litem serves as an “extension of the Court’s eyes and ears.”  The guardian can visit the home of the children; interview the teachers of the children; interview a party’s new spouse or mate.  There are limitless ways in which the guardian can assist the trier of fact, so therefore, guardians profoundly affect the case.

Consequently, it is important to be courteous and respectful to the guardian.  The tried and true old adage about kindness applies here: “you catch more bees with honey than vinegar.”  An additional adage equally applies:  “kindness is the first step to cruelty.”  The balance must be struck between respect for the guardian and also, challenging the guardian to be accountable and thorough in their very important function.

In conclusion, there are many factors that weigh into what is in the best interests of a child.  The factors vary from case to case.  A guardian ad litem assists the Court in reaching its decision.  Therefore, guardian should be treated with high regard, but also challenged in a cordial manner to provide the Court a complete picture.

Jeremy Abernathy