72-Hour Holds Misused?
December 2, 2009
Police Detention Powers in Minnesota – By A Family Attorney
By , Attorney Jennifer Moore Jennifer.Moore@moorefamilylawMN.com
The Police Authority to Detain Individuals
In Minnesota, police have the authority to detain an individual for 72 hours if they are believed to be a threat to themselves or others. Hospitals comply with these administrative holds, because they bring in significant revenue.
Children, Teenagers, and the Handicapped
These holds are often used in cases of domestic violence involving unstable adults or teenagers, but can also be imposed upon disabled children and adults. As the step-mother of a child with disabilities, it has sometimes been difficult to orchestrate the placement of services in a way that protect caregivers as well as my step-son’s freedoms.
As a Family Law Attorney…
As a family law attorney, I have seen 72-hour holds used in cases of domestic violence. The consequences of such a hold is fairly dramatic. Jobs can be lost, relationships with children interrupted, and the “patient” put on a path of treatment and therapy that may preclude the family from a timely resolution of their separation and/or divorce. Sometimes, the danger to the family is obvious; sometimes not. It would be nice to think that authorities would not abuse this process.
Read more in the Star Tribune article, Paramedic: Cops abuse law to detain people.
The law in Minnesota and bugs and dinosaurs
November 30, 2009
The law in MN and bugs and dinosaurs
The Hennepin County Bar Association here in Minnesota is, obviously, an organization of, by, and for lawyers. I’m no lawyer, I just work for one (or two, or… But that’s a different story!).
Some lessons from a depression era attorney
Anyway, I was recently reading the October 2009 issue of Inside Hennepin Lawyer, the magazine of the Hennepin County Bar Association ( www.hcba.org ) and I found an entry entitled: “Of Bugs, Brontosauruses, and Daniel Boone.” Quite a title, but what really caught my eye is that the two articles here are reprints from 1933. They were written in the depth of the great depression by Mr. Ben Palmer
Old fashioned thinking and the law
The first article is “Daniel Boone on Broadway,” In it Mr. Palmer points out that “Daniel Boon on Broadway is no more of an anachronism than the individual who carries the psychology of the frontier into the cooperative life of today.” We sometimes see this phenomenon in our family law and probate law practices, where someone seems blind to the reality that a divorce involves not just the plaintiff and the respondent but also, any and all children from their union. Their case also involves not just property but also the standard of living of the two sides – and that of the children. I think a law firm should strive to be the most reasonable party in the room – it should defend you, the client, but it should also bear in mind that others – especially the children – also have rights and that the adults have obligations. I think Mr. Palmer is making an important point for all of us
Rugged individualism is not an asset in a lawsuit
In the second article, “The Bug on the Brontosaurus,” Mr. Palmer refers to a nation of “streams of force – economical, social, political, religious – converging on certain focal points… The most romantic libertarian… can only act effectively through those organizations whose general goal coincides with his own heart’s desire. There is no such thing as splendid isolation.” Again, excellent point! In a divorce, child support dispute, child custody lawsuit, as well as in an alimony or probate case, these organizations that can be used for the outcome you seek include the law, the courts, your own attorney, and the opposing party’s lawyer. Otherwise, your case and the outcome you seek, will pass away to become as extinct as the once-mighty brontosaurus.
Read the article! I think you’ll find this wisdom, and much more, in it.
Mr. Palmer concludes that “There is no such thing as splendid isolation… It is adaptability, and not merely strength, that counts.” Again, read the article! Mr. Palmer makes his point with much more grace, and brings to bear much more experience, than can I.
Thank you for your attention.
Thomas Moore
Office Manager
Moore Family Law, PA
Marriage Counseling and Couples Retreats – in Minnesota and Elsewhere
November 24, 2009
By Jennifer Moore, Attorney.
I ran across a review for the movie Couples Retreat. The review makes it sound like the movie might not be worth the price of a matinee, but I wholly endorse the concept of marriage counseling.
There really are couples retreats out there that might help a marriage stay together. For example, there is a retreat in Vermont called “Marriage Quest“, and in Sedona, there’s a couples’ retreat called “Sedona Soul Adventures – a place I’d certainly like to go some day!
You don’t need a vacation therapy retreat, though. Marriage counseling with a licensed professional may be just as effective. You can obtain a referral from your family physician or therapist. One local therapist here in Minnesota who offers marriage counseling is Janet Schlegel, located in the northwestern suburbs of Minneapolis and St. Paul.
Financial Considerations During Divorce
November 23, 2009
By Jennifer Moore, attorney.
The New York Times has compiled a list of big-picture financial considerations you should make during your divorce. Our experience suggests that these are mostly good suggestions, although we do believe that the best way to proceed is with the advice of a lawyer or an attorney, who will be experienced in structuring financial settlements with these concerns in mind.
Government Hands in the Marital Pot
November 17, 2009
When you owe a debt to the government, they may intervene in your divorce to collect. Consider the case of Walter and Caren Forbes, who were married 27 years. Walter was the former chairman of Cendant Corporation, who was sentenced to 12-1/2 years in prison for the largest financial fraud of the 1990’s. When his wife Caren filed for divorce earlier this year, the federal government intervened in the divorce to collect money owed pursuant to an Order of restitution against Walter. The divorce may result in the receipt of billions of dollars in restitution.
Read more in the full article in the Star Tribune.
Who Should Pay for the Lawyer in Family Law Child Protection Cases?
October 30, 2009
The Minnesota Supreme Court has agreed to hear a case that could have major implications for poor parents who are sued in child protection cases (See The Star Tribune). The question, interestingly enough, isn’t whether parents parents who can’t afford an attorney in a child protection case are entitled to representation. They are. Instead, the question is whether the Court has the authority to require a county to pay for a private attorney or whether representation must be by a public defender. Public defenders are paid for out of the judiciary budget. In the case to be decided by the state supreme court, a Rice County judge appointed a private attorney to represent the indigent parents in a child protection case, ordering the county to pay for it out of their budget.
Private Attorney v. Public Defender
I cannot say enough about the quality of public defenders we have here in Minnesota. However, it is likely that most people would choose a private attorney over a public defender. I did read an interesting article in The Concurring Opinion that theorized that the experience obtained by public defenders make them a better choice for most defendants than a private lawyer. Another problem is that the pay rate for private attorneys performing public defender services can be very low. In Wisconsin, for example, a private attorney who takes a public defender appointment will earn $40 an hour, when the average hourly pay for attorneys in Wisconsin is $188 an hour. (From All Business.) In fact, that $40 an hour is only $5 an hour higher than was paid for public defender appointments in 1978, when the public defender statute was passed.
Public Defender Overload
With the current economic situation, there is a serious problem with overload in the public defender’s office, especially in out-state Minnesota. (See The LaCrosse Tribune and The Star Tribune). Hiring private attorneys to help with the backlog in time-sensitive child protection cases must be a serious temptation to judges balancing their own overcrowded dockets against the welfare of abused and neglected children.
Of course, if the Courts expect private attorneys to accept appointments to represent indigent clients, there needs to be a mechanism to pay the attorney for their time. The attorney who was appointed in the Rice County case has not yet been paid.
What Your Attorney Does for You: A Minnesota Judge’s View
October 5, 2009
By Thomas Moore, Office Manager
Minnesota Judge Jay Quam speaks frankly, and to those of us who are not attorneys in the article: Judging Without Lawyers: Not Knowing Makes for Nightmares. I recommend you read Judge Quam’s article in full, but I’ve included excerpts below.
Judge Quam: “Judges want more than anything to make the right decision in the case before them but can’t be comfortable with their decision unless they can be confident they have all relevant information. Here’s where lawyers’ contribution to justice proves invaluable…
“Every judge want to do the right thing… the law is permissive enough for the judge to rule for either party depending on what the facts are. So, in the very large majority of cases, the facts are what the judge needs to guide him or her to the right decision.”
What Attorneys Do For You
Judge Quam points out that your lawyer provides him, the judge, with two essential functions. Attorneys are “professional story gatherers, and professional story tellers.” The judge is more comfortable knowing the underlying facts have been fully developed by trained professionals. This is the story gathering function. He continues:
“The story-telling part is equally valuable. For starters, the lawyers know the important courtroom rules that the clients don’t know, but which are critical to the judge’s decision. The lawyers’ knowledge of the rules of the courtroom keeps the proceeding from becoming akin to an episode of ‘“Jerry Springer.’ The list of critical things that lawyers know, but others don’t, is a really long list…” It includes:
- The law;
- The rules of evidence;
- The protocol for presenting evidence;
- When to speak;
- When not to speak;
- What is relevant, and what is not; and
- What is persuasive, and what is not.
“…With lawyers involved, the judge knows that trained professionals have sifted through the evidence and presented the judge only that evidence which is truly relevant to the dispute.”
What Happens without an Attorney?
You may decide to represent yourself in court. Here’s what the Judge has to say. “With all that lawyers do, you may, very appropriately, ask: How in the world does our adversary system function when there are not trained advocates in it?
“The answer, I have found, is ‘not very well.’ Given the complexities of our court processes, as well as the difficult skill of advocating effectively for anything that matters, it is not hard to understand why…”
What happens is that, without an attorney to represent you, the judge often sees a number of things that are needed to be done but that he or she, whether constrained by time or by ethics, cannot do. The judge cannot:
- Educate you about the law
- Educate you about procedures
- Teach you how to present yourself properly in court
- Investigate the case
All these functions, however, are precisely what you hire an attorney or lawyer to do.
Child Custody: Japan v. Minnesota
September 29, 2009
CNN recently published Japan Father Abduction, the story of a father from Tennessee who, despite having joint legal custody of his children, was arrested when he sought to recover his children from Japan, where their mother, and the man’s ex-wife, had taken them.
In Japan, custody is given to only one parent in a divorce. This is the opposite of our own country and Minnesota’s legal tradition and precedent that assumes joint legal custody is in the best interest of a child.
Legal Child Custody in Minnesota
The definition of legal custody is set forth in Minn. Stat. § 518.003, subd. 3(a): “the right to determine the child’s upbringing, including education, health care, and religious training.” Compared to physical custody, which is the right to make day to day routine decisions about the child’s welfare, legal custody is about the “big picture” decisions that affect the way the child will learn about and be raised in the world. See Basics on Child Custody and Parenting Time at the Minnesota Courts Self Help Center.
Joint Legal Child Custody
Most of the clients that come into my office seek joint legal custody. Both parents want to continue to have an influence in the major decisions of their child’s life, and most of the time, it is in the child’s best interest to continue to have both parents as actively involved as possible.
The case of the father being arrested in Japan for trying to exert his right of legal custody should be a reminder to us not to take our legal custody rights to be involved in our children’s lives for granted.
Financial Crisis, Divorce, and Your Lawyer
September 7, 2009
By Thomas Moore, Office Manager
First of all, my thanks to attorney Steven H Silton, whose article, Counseling Clients in Financial Distress, in the August 2009 issue of Bench & Bar of Minnesota is the inspiration for this blog. Bench & Bar of Minnesota is published by the Minnesota State Bar Association.
Here’s my personal reaction to what Mr. Silton says in his article.
The financial crisis, and your personal crisis, is really about what you can do.
The global financial crisis is real and can be a rude awakening to someone who does not pay attention to the economy, or who does and who has, until now, enjoyed prosperity. In fact, today’s circumstances can be particularly hard on you if you’re used to hard work, success, and success based upon your hard work. Sometimes it seems that what you’ve done has been for naught. But, understanding your limits, rethinking your life, and taking a holistic approach to life and work, can help — though nothing can guarantee that your investments, or your marriage, or your social position, or anything else for that matter, will keep on an upward curve. We are all subject to market forces, nature, and social forces beyond our control. We have to learn how to learn from failure; and we must learn how to best deal with the psychological and personal aspects of the situation we are in.
You need experts, carefully selected, to work your way through this.
You should work with professionals, experts, to deal with what you cannot handle on your own. There is no shame in this. This could involve an attorney, a financial advisor, a life coach, a realtor, or a therapist. You have to do your life work and engage others in this work as appropriate. Getting depressed can be part of this but we have to learn to work through all the aspects of our situation. To quote Mr. Silton, “Accepting responsibility is one thing, but there is no room for despair in a sinking ship…” We must focus on how to get through the present crisis and how to build a better future. Victories in these necessary struggles, instead of avoiding the struggle, are what build confidence and reduce anxiety.
Stress and strain require you to be careful, ethical, and honorable.
If you are stressed, if those with whom you deal are stressed, you and they are inevitably being pushed in the direction of making distressed, even desperate, decisions. Someone sinking into apparently hopeless debt and bankruptcy will not always make rational decisions about their finances or about anything else, for that matter. Many examples could be cited of a party in a divorce who spends what he does not have on his bar tab, his ‘toys,’ and in other ways to avoid thinking about and dealing with what is inevitable. Be careful in your dealings, guard yourself from those who are not and work at living your life as ethically and as honorably as you can.
