What it feels like to lose a family court relocation case

“I was forced to raise my kids in Texas for 14 years” (NY Post) is an interesting piece regarding how it feels to come out of a garden-variety U.S. family court lawsuit.

The husband and wife both want to get rid of each other, but are trying to be strategic about it (and certainly neither of them seems to care about the kids!). The wife is unwise enough to agree to move to Texas where divorce is not a terrifying prospect for the loser parent. Child support is capped and, by statute, the loser parent can take care of the kids up to 43 percent time, including a 30-day summer vacation. Alimony is capped and generally disfavored. The husband figures this out and sues her in Texas before they end up in some jurisdiction that is less favorable to the “breadwinner parent”.

The mom/author becomes the winner parent, but experiences the win as a loss because the husband won’t agree to let her move with her winnings (the kids) to New York or Boston (the author doesn’t mention it, but if she had moved and the husband ever moved out of Texas, she might have been able to collect 5-10X as much in child support cash; see “Relocation and Venue Litigation”).

The author forgives herself for her role in breaking up the kids’ home:

I was afraid to tell my daughters about the divorce, and I delayed the conversation. Finally, one day when they were playing catch, I told them that sometimes parents live in two different houses and that is what we would be doing and everything else would be the same. They said OK and asked if they could go back to playing catch. I realized at that moment that if I could, in fact, keep everything else the same, or close to it, their lives would be as good as any other kid’s.

This perspective is not supported by the research psychology literature, but Americans have convinced themselves of it. (some references) The “single parent” believes that she will be a role model for the girls:

In Texas, I raised my children and myself, I like to say. Being stuck first in a bad lonely marriage and then held by law in a bad lonely place turned me to steel. For 14 years, I believed that I could withstand any assault and resist weakness of any kind. I could do anything, say anything, fight for anything. I was independence personified, a show of strength that my daughters could rely upon and emulate.

This is true, statistically and anecdotally. The researchers say that children of single parents are more likely to become single parents. The lawyers say that daughters of moms who collect child support are more likely to become child support plaintiffs.

The kids’ inheritance and college funds are diverted to the lawyers:

Although our divorce was finalized in 2003, for a stretch of years after that, there were additional lawsuits over custody and visitation rights, one after another.

Not having read the Nurture Assumption, she believes that her 14 years of litigation and living where she didn’t want to live have influenced how the kids turned out:

[the now-adult daughters] are remarkable people, something I knew from the start and fought to preserve. I am proud of the fight.

Maybe this article will inspire married folks to talk to a divorce litigator at the proposed destination before they move to a new state?


Philip Greenspun’s Weblog

Window into the costs of family court litigation

“Mel Gibson’s ex sued for $ 108K over child support fight” (Page Six) provides an interesting window into just how much Americans spend on transaction costs in family court:

Court documents obtained by The Blast reveal the forensic accounting firm that Grigorieva, 47, hired to investigate baby daddy Mel Gibson’s finances in her child support fight, is suing the singer for $ 108,000 for unpaid fees.

Grigorieva hired White, Zuckerman, Warsavsky, Luna & Hunt following her 2015 bankruptcy filing, and the company claims they aided Grigorieva in getting her child support payments increased to $ 22,500 per month for daughter Lucia.

In their filing, the firm noted that Gibson, 61, paid the bulk of their charges with the exception of the unpaid balance of $ 108,887.24.

I.e., the accounting fees were in excess of $ 218,000 for this child support modification action (Gibson paid at least 50 percent if it was “the bulk of the charges”). Just imagine the legal fees!

Note that, despite the fees, litigation should have been a rational strategy for the plaintiff. Her daughter is now yielding tax-free revenue of $ 270,000 per year. That’s nearly $ 5 million over the 18 years during which a child can yield a profit under California family law. Legal and expert fees might be pretty close to the $ 5 million number, but her defendant will pay most of them.

[The defendant in this case is famous, which is why the lawsuit is in the news, but this scale of fees is consistent with what is spent when ordinary high-income Americans are sued.]

Young readers: Remember that going to accounting school doesn’t mean being stuck filing 1040 returns!


Philip Greenspun’s Weblog

Eventually a society comes to resemble its family court?

Our media is full of reports of who was victimized by whom, e.g., through being touched in some way or because X had sex with Y without informing Z (see Jurvetson). These kinds of reports were previously easy to find by walking down to the local family court and looking at the files or sitting in on a hearing or trial. Claims of abuse are pretty much standard in any kind of divorce litigation despite the apparent irrelevance to the subject matter (who will have to pay how much to whom).

A friend sent me this story about Roy Moore representing a grandmother in a 1991 custody lawsuit against a mother. The mom who was on the losing end of the lawsuit has now come forward to allege that her butt was grabbed by Moore. Thus we the public are now asked to evaluate the kind of claim that formerly only family court judges had to hear.

I’m wondering if a society will come to resemble its family court, maybe with a 20- or 30-year lag. The European countries generally have low cash stakes in their family courts (e.g., having sex with a dermatologist will not yield the spending power of a dermatologist). Are Europeans less interested in hearing about X grabbing Y’s butt 25 years ago?

Philip Greenspun’s Weblog

Instead of fighting in court about parental quality, run training to improve it?

Professor Irwin Sandler of Arizona State University spoke at the International Conference on Shared Parenting 2017. He was introduced as “an expert on children in high stress situations, including divorce.”

Sandler said that research psychologists had put a lot of effort into figuring out how badly damaged children were by divorce, by living primarily with one parent, and by low-quality parenting. He has been experimenting instead with training parents to do a better job. He and his colleagues run training programs for both mothers and fathers and then interview children. Based on the data from children, Sandler says that the training has been effective for both mothers and fathers and that it works best for adults who exhibited “poor parenting to begin with.”

(By “poor parenting” he wasn’t talking about the stuff that the $ 600/hour litigators throw around, e.g., one parent lets the kid stay up late. This program is run in cooperation with the local court system so the participants sounded as though they were struggling low-income types.)

What I found most interesting about the talk was that we run a family court litigation system that, compared to a European-style system, shrinks our GDP by about $ 500 billion per year (source). Most of this expenditure is ostensibly for the welfare of our children. Yet, assuming Sander’s data are correct, if we put $ 500 billion of time and effort into training parents, both together and separated, our society’s children would be vastly better off. Since we aren’t trying this, must we infer that most Americans don’t actually care about how well the next generation turns out? (obviously they do profess to care, especially on Facebook!)

Philip Greenspun’s Weblog

Trump agreeing with four Supreme Court justices is evidence of how unhinged he is?

Donald Trump tweeted about prohibiting burning the American flag. This lit up my Facebook friends:

There is something really really wrong with trump. Why aren’t moderate republicans speaking out in this type of thing?????

It is truly unbelievable !! This guy is really sick

(former MIT professor) Flag tweet, like so many others, is pure misdirection. But it’s also true: Trump is clueless on the Constitution.

Yet in relatively recent memory four Supreme Court justices took a fairly similar position, albeit not tweeted nor expressed as succinctly. See Texas v. Johnson and United States v. Eichman. Was Sandra Day O’Connor, for example, sick and “clueless on the Constitution”?

Philip Greenspun’s Weblog

California Supreme Court rules in favor of government workers (tenured teachers)

Vergara v. California has run its course, with the California Supreme Court today deciding not to examine an appeals court decision. It seems that the right of a government worker (schoolteacher) to continue collecting a paycheck is superior to the right of a child to an education. Not exactly news, but certainly heartening for anyone considering a career as a government worker.


Philip Greenspun’s Weblog

Supreme Court orders full employment for university administrators

The Supreme Court’s ruling in Fisher v. University of Texas contains some inspiration for those who want to be university bureaucrats:

That does not diminish, however, the University’s continuing
obligation to satisfy the burden of strict scrutiny
in light of changing circumstances. The University engages
in periodic reassessment of the constitutionality, and
efficacy, of its [race-based] admissions program. See Supp. App. 32a;
App. 448a. Going forward, that assessment must be undertaken
in light of the experience the school has accumulated
and the data it has gathered since the adoption of its
admissions plan.
As the University examines this data, it should remain
mindful that diversity takes many forms. Formalistic
racial classifications may sometimes fail to capture diversity
in all of its dimensions and, when used in a divisive
manner, could undermine the educational benefits the

University values. Through regular evaluation of data
and consideration of student experience, the University
must tailor its approach in light of changing circumstances,
ensuring that race plays no greater role than is necessary
to meet its compelling interest. The University’s
examination of the data it has acquired in the years since
petitioner’s application, for these reasons, must proceed
with full respect for the constraints imposed by the Equal
Protection Clause. The type of data collected, and the
manner in which it is considered, will have a significant
bearing on how the University must shape its admissions
policy to satisfy strict scrutiny in the years to come. 

Translation: Decades of job security for academic administrators who figure out how to sort applicants by skin color. Certainly better than being an adjunct…


Philip Greenspun’s Weblog

How about a non-lawyer for the Supreme Court?

The media is full of articles about the mechanics of replacing the late Justice Scalia on the Supreme Court. I haven’t seen any discussion of the kind of person that should be appointed, however, beyond “liberal lawyer/judge” or “conservative lawyer/judge.”

I wonder if the right answer isn’t “not a lawyer or judge.” The Court already has eight lawyers, all of whom were previously judges (list of past justices who were not). That gives rise to the potential for groupthink on issues such as “should we encourage people to come down to the courthouse and litigate this kind of thing?” (if you’re a lawyer, generally litigation seems like a productive activity!)

A lot of the Supreme Court cases that have recently been in the news aren’t technical questions of law. Should parts of the government, e.g., state universities, treat people with different skin color differently? Should states be required to offer two men or two women a civil marriage?

Why not a philosopher to replace Scalia, for example? He or she can still have plenty of clerks with law school degrees.

Readers: What kind of person would you like to see on the Supreme Court?

Philip Greenspun’s Weblog

The Rightwing Supreme Court Justices’ Fair-Weather “State Sovereignty” Canard

Two days ago, Dan posted an entry by run75441 titled “SCOTUS Chastises Congress and the Executive Branch.”  The post’s title wasn’t quite accurate; run’s post was about Chief Justice John Roberts’ annual state-of-the-judicial-branch report, in which he was writing in his capacity as administrative head of that branch, not in his actual judicial capacity, and not for the other justices.  

Run (who didn’t title the post; Dan did) deeply criticized Roberts for bragging about the austerity of the federal courts in recent years, including his own court, which, he also bragged, had decided on 64 cases in its last term.  That was down from, I think, 70 the term before, and the main reason for that reduction was that the ACA case consumed a full week of oral-argument slots– the full week at issue normally consisting of arguments in six–count ‘em, six!–cases; some full weeks consist of four arguments, leaving the justices slightly less exhausted than they are after the six-argument work weeks.  

Roberts implied–he did not say so, expressly, but he did imply–that Congress and the White House take a cue from the justices and force the federal government to make do with less money.  To which I suggest that the justices really lead by example, and get rid of their four-justices-apiece law clerks, who do most of their work for them and start doing their legally-mandated jobs themselves.  After all, the federal government at least doesn’t pay salaries to congressional lobbyists–the equivalent of Supreme Court law clerks.

Anyway, I posted a comment to run’s post, and then asked Dan to add it as an update to run’s post, which he did.  My comment said:

The Supreme Court is rarely in session.  It’s seasonal, part-time work.  They usually hear argument in 10 cases a month, seven months a year.  In December, they didn’t hear even that many.

There’s really sooo much that can, and should, be said about the issue of (virtually universal lack of) access to the Supreme Court, and its repercussions.  Roberts’ bizarre, cutesy annual report is … oh … I don’t know …characteristically hubristic?

Run responded to my comment, and I then responded to his, writing:

What’s especially outrageous is the type of situation you’re talking about [a federal habeas corpus case challenging the constitutionality of aspects of the proceedings in a state-court criminal case]: The Supreme Court almost never agrees to hear cases on “direct appeal” (a legal term of art) from state supreme courts, in criminal or civil cases, with the major exception that they do often agree to do so in criminal cases when it is the state (i.e., the prosecution) that is asking them to hear hear the case in order to overrule a (rare) state supreme court ruling in favor of the criminal defendant. In state-court criminal cases, when it is the defendant who is asking the Supreme Court to hear the case in order to overturn a conviction, on constitutional grounds, the Supreme Court seems to figure that the criminal defendant can file a habeas corpus petition in a lower federal court.

Which they can, but the Supreme court has made that right an all-but-empty one–just a shell game, really–by interpreting a 1996 “jurisdictional” statute in a way that bars the lower federal courts from throwing out the state-court conviction on constitutional grounds in almost every case. With each passing Supreme Court term, the right to federal habeas review becomes even narrower, a seeming impossibility until it happens. In the last two years, the Supreme Court has treated that right as all but nonexistent. So the almost-total lack of access to the Supreme Court on direct appeal by state-court criminal defendants effectively removes access to constitutional review in federal court.

This is even truer in civil cases [including some that involve incredibly important, truly fundamental rights of the sort protected under international human rights laws, although they have nothing at all to do with, say, prison inmates; really–trust me on this], thanks to a set of perverse, gimmicky Supreme Court-created “jurisdictional” doctrines, which the Supreme Court has stood by and watched metastasize to remove any access to federal court in order to make a constitutional challenge, except for ExxonMobil, which asked the Supreme Court to limit the doctrine at issue, which the Court did, so narrowly as to apply in almost no other case, especially since the other, related doctrine actually bars access in the circumstance in which ExxonMobil was allowed to have it. (Sort of like Bush v. Gore.)

Anthony Kennedy, the leader of this state-courts-have-sovereignty-and-dignity! juggernaut, likes to say this is done in the name of liberty. (Isn’t everything the rightwing wants done in the name of liberty?!) Which reminds me of a political science class I once took on Maoism. [Maoism] included, basically, the routine use of Orwellian language, in which everything is the opposite of what its name or description indicates.

Of course, the current Supreme Court’s goal–the goal of the legal right since the early 1980s–is to turn the law into nothing but circuitous yellow-brick-road procedure: a dead-end labyrinth whose very purpose is its circuitry and fruitlessness. They’ve come incredibly close to succeeding.

There’s a whole lot more about this that can, and should, be said, and I plan to write in more depth about it.  Which will make me the only one writing for public consumption about it; the general news media covers only “substantive” legal issues (“substantive” being another legal term of art; legal issues are either “substantive” or “procedural.”)  And rarely covers even substantive issues that aren’t part of the culture wars debate.  Which is really nice for the legal right, because their justices and judges can, and do, do just about anything they want, completely under the radar.

But for now, I’ll just add that the judicial right, lead on this by Kennedy and Clarence Thomas, conflate state sovereignty with freedom, but, at least regarding those two and their wingy three colleagues and some (but not all of their lower-court compadres), do so only with respect (pun most definitely intended) to state courts.  To them, state legislative- and executive-branch actions (e.g., state statutes) are fair game for constitutional challenges, and they harbor no inhibition whatsoever about impinging upon state “sovereignty” in recognizing the Constitution’s Supremacy Clause when striking down as unconstitutional state statutes that the political right doesn’t care much for; Texas’s colleague-admissions affirmative action law, say.  (Sit tight for the upcoming oral argument there in that case.)  And their summary reversal of the Montana Supreme Court’s ruling late last year upholding the constitutionality of Montana’s long-standing campaign-finance statute is another example that comes (very) quickly to mind.  My mind, anyway.

To be fair to Kennedy, and certainly to his credit, he–and he alone, among the Fab Five–does extend this principle to state statutes that liberals don’t like.  Texas’s criminal anti-sodomy statute is one example, but there are other important ones as well.  

But, in what appears to me to be nothing more than just old-fashioned professional courtesy, Kennedy effectively exempts state judicial branches from Supremacy Clause mandates to honor constitutional rights of individuals.  And state courts violate individual procedural and substantive rights, in criminal cases and in certain types of civil cases, with absolute abandon, comfortable in the knowledge that they can.  The result, far, far more often than not, is the very antithesis of freedom.  Except in the Matter Hatter-esque language that the legal right has found so useful.

So, next time Kennedy or Thomas writes an opinion singing the praises of state sovereignty–by which they almost always just mean state-court sovereignty–as advancing “freedom,” ask them (rhetorically, of course; they won’t actually hear you unless you retain Paul Clement to speak to them for you, which was basically run75441’s point) whether they think that, say, German Jews in the mid- and late 1930s were freer because Germany was a sovereign state.  
I will, anyway.  Or maybe I’ll just ask the Mad Hatter. Orwell lives. These days, though, in this country it’s called “federalism.”


Occasionally, one of my AB posts goes viral (relatively speaking), racking up a couple thousand views on statcounter.  This is one that I hope does.  Actually, I hope it gets a million hits.

Yeah. A million hits would be good.

Is there such a thing as hitting the Supreme Court in effigy?

Angry Bear