Relationship with opposing attorneys—should it be adversarial or cooperative?
Author’s note: Litigation sometimes results in difficult relationships between attorneys. This article is a reminder to myself as much as it is a message to other attorneys and litigants.
Clients involved in litigation want to be sure that their attorneys are representing their best interests and have no conflicting loyalties. Thus clients are understandably uneasy if their attorney and opposing counsel are too friendly. Clients have an image—reinforced by television and movies–of attorneys as a part of a “good old boys and girls” club—socializing together and swapping stories about clients. An attorney is obligated to have absolute loyalty to his or her client, and clients are often understandably anxious that friendship with opposing counsel might get in the way of that unequivocal obligation. Yet it is in clients’ best interest that opposing counsel maintain a relationship of trust. Without trust between attorneys, litigation becomes more contentious, time consuming and costly. During litigation there are countless issues that could be disputed or agreed upon—some that are important to the outcome of a case, but most that are not. For example, if an attorney asks for a postponement of a status conference because of a conflict with his or her schedule, opposing counsel should be able to trust the other attorney’s representation about the scheduling conflict, and consent to the postponement. Otherwise, time—and attorneys fees–will be spent objecting to the postponement, which will likely be granted anyway. Personal animosity toward another attorney, no matter how much it may seem justified, never helps the client or the client’s case. For example, if an attorney is obstructionist every step of the way in litigation, it does little good to be obstructionist in response. Objections from opposing counsel to requests for postponements, for example, should not be met with an attorney’s own objections to their requests for postponements, unless the objections are fully justified. The temptation is often great to respond in kind, but attorneys have a greater loyalty to a client’s best interest, which includes minimizing litigation costs and unnecessary disputes. Moreover, judges have little tolerance for disputes between attorneys. It does not help a client’s case if the judge perceives there is a personal conflict between attorneys. And, as much as an attorney would wish a judge would reprimand opposing counsel for bad behavior, it will rarely, if ever, happen. Judges consider such claims as unnecessary distractions, and often assume that either the accuser is, or at best, both attorneys are, at fault when there is a issue brought up before the court about another attorney’s misconduct. Thus lawyers who litigate must not only set aside personal animosities towards opposing counsel, but also actively attempt to be cordial and accommodating. That does not conflict with an attorney’s zealous representation of his or her client; it is in harmony with representing a client’s best interest.
Joint Legal parental rights and responsibilities—A good Idea?
In Vermont, parental rights and responsibilities are divided into two separate categories: physical parental rights and responsibilities, and legal parental rights and responsibilities.
15 V.S.A. Section 664 defines legal parental rights and responsibilities as follows:
“ ’Legal responsibility’ means the rights and responsibilities to determine and control various matters affecting a child’s welfare and upbringing, other than routine daily care and control of the child. These matters include but are not limited to education, medical and dental care, religion and travel arrangements.”
This statue went into effect in 1985. Prior to that, one parent or the other was awarded sole “custody” with no distinction between legal and physical parental rights. So when the provision was first put into the Vermont statutes, parties often agreed that one parent would have sole physical parental rights and responsibilities, and the parties would enjoy joint legal parental rights and responsibilities. It seemed like a good way for parents to feel as if they had a say in their children’s lives, and the agreement of the parent who had sole physical parenatal rights to share legal responsibilities often resulted in settlement of contested custody cases.
Joint legal parental rights and responsibilities has proven to be problematic, however if the parents disagree regarding any legal issues involving their children. If a parent has sole legal rights and responsibilities, that parent can make any decision about his or her children’s school, medical care, or religion without input from the other parent. While this can cause friction, it does not result in court intervention, because the noncustodial parent has no legal rights in this area.
On the other hand, parents who enjoy joint legal parental rights and responsibilities and who disagree about a legal issue involving their children have no recourse except to go to court. Moreover, the rules require mediation prior to filing any motions with the court, which often delays decisions on vital legal issues. In the most common example, parents who disagree as to where their children should go to school often are delayed for months while they go through a mediation process, and then have to wait for a court hearing date, then a decision from the court after the hearing is concluded. This process often results in no decision until after the school year starts, resulting in a chaotic and stressful situation for the family.
Children with special needs or talents are often the victims of this system, as parents disagree on whether and what kind of special schooling should be put in place to meet the children’s needs. And the agreement to share legal rights and responsibilities is often made without much thought about issues like this which may arise in the future.
In my experience, some of the most contentious court hearings have been between parents who share legal parental rights and responsibilities, and are disputing how a child is educated.
Finally, disagreeing about a legal issue involving children is often not considered by the courts to meet the “ substantial unanticipated material change in circumstances” that would allow the court to modify joint legal parental rights and order sole legal parental rights to one parent. The court must find that the disagreement between the parties is a “substantial unanticipated” change in the way the parents have historically interacted with each other, and if their disagreement over schooling is merely a continuation of ongoing disputes the parents have had, then the court will likely conclude that there is not a change in circumstances. In addtion, if the parties are continuing to agree in other aspects of their children’s lives, then the court will likely conclude that there is no need for change in joint legal parental rights and responsibilities.
So, if parents agree to joint legal parental rights and responsibilities, then they will likely have to live with that decision during their children’s minority, and risk having the court making major decisions about their children’s education, medical care, and other legal issues.
There are some ways to mitigate the risks of disagreements between parents who enjoy joint legal parental rights. First, the parties can agree that legal rights be apportioned to one parent or the other. For example, one parent may retain sole legal rights to determine their children’s education, but the parties may agree to joint legal rights to all other issues concerning their children. Parties can agree to even more detailed detailed decisionmaking scenarios, such as one parent having sole decisions over certain school activities, or agreeing to certain travel restrictions. Second, parents may enjoy joint legal responsibilties, but if there is a disagreement, one parent would make the final decision–either about all legal decisions, or about one in particular, such as education. This suggestion was made recently during mediation by mediator and Attorney Brice Simon, of Breton & Simon . Hats off to Brice for the creative solution.
Mediation can also be helpful, if the parties have a skilled mediator, and both are willing to work out a solution. Mediation should be set up as early as possible, however, since many of these decisions, such as schooling, are time sensitive, and parents should not be rushed into making a hasty decision. In addition, the parents should be prepared to present at mediation all the facts about their proposal, including information about the proposed school, medical or mental health treatment, or travel arrangements. It is respectful to the other parent if you have factual information to present, and that in turn will facilitate agreement.
In conclusion, joint legal parental rights and responsibilities can work if parents can work together to resolve their differences. However, parents should be thinking carefully about the risks of sharing legal parental rights, and carefully fashion an agreement that will reduce the risk of court involvement if the parties disagree, while retaining as much joint decisionmaking as possible.
Parental Rights and Responsibilities in Vermont in the Age of Facebook
In a contested hearing held in Vermont Family Court, Mother and Father each request sole parental rights and responsibilities of their minor children.
Mother brings with her pictures of Father partying, drinking, and in compromising poses with the opposite sex, along with comments about how much he enjoys his night life, all posted on Facebook.
Father is appalled, first because he doesn’t know how Mother got those pictures, and second because he is afraid that they will negatively impact his case for custody of his children. He had never “friended” Mother on Facebook; so he thought he was safe.
This scenario is being played out more and more in the courts. Facebook has taken on an important role in many disputes, and lawyers have found Facebook postings can contain information that is useful in a court proceeding.
For those of you involved in divorce or parentage proceedings regarding parental rights, you can be rest assured that your mutual friends and your relatives—many of whom are your “friends” on Facebook, have taken sides, and some will inevitably take the other parent’s side in any custody dispute.
In addition, those “friends” who have taken the other parent’s side will be eager to let the other parent know about your postings on Facebook, especially the ones that make you look like a bad parent.
The first lesson is, then, for any litigant: imagine the item you are posting being presented as an exhibit in court—because if it is online, it will likely be easily accessible by your courtroom opponent. If you would be embarrassed to have a judge see what you are about to put online, do not click “post”.
Father’s second concern—the impact of the Facebook pictures and commentary on his case—turned out to be groundless. Why? Because under Vermont law, what your nightlife is like is not admissible in evidence unless it impacts your children.
Title 15, section 667 (a) provides as follows:
” Evidence of conduct of a parent not related to the [parental rights and responsibilities] factors in section 665 of this title shall only be admissible for the purposes of determining parental rights and responsibilities if it is shown that the conduct affects the parent’s relationship with the child.”
Thus if a parent goes out partying, that evidence will only be admissible if it can be shown that the children are neglected or otherwise adversely impacted as a result.
Facebook and other online social networks can be dangerous for any litigant. However, if the information is only about a person’s social life not related to the care of their children, the information will not be admissible in any custody action in Vermont.
Attorney John H.W. Cole is now a contributing author to Law Matters
We are excited to announce that we have a new author for the Law Matters Blog
John H. W. Cole is an attorney licensed to practice in Vermont, Florida, the District of Columbia New York and Virginia. He is also admitted to practice in the U.S. Tax Court and U.S. Court of Claims. His office is located in South Burlington, Vermont
He formerly practiced as an attorney in the Chief Counsel’s Office of the Internal Revenue Service (1970-1973), and since then has been in private practice. He is a member Vermont Bar Association; The Florida Bar; Virginia State Bar; District of Columbia Bar and American Society of Pension Actuaries
He practices in the areas of design and implementation of Cash Balance Pension Plans, Profit Sharing Plans, and 401(k) Plans. He also advises clients on Plan Administration including reporting and disclosure; Employee Benefits Consulting; ERISA Litigation; Tax Litigation; Tax Planning; Formation of Business Entities; Estate Planning for Plan Distributions.
John will be writing articles on those topics.
He is editor of the 401k Advisor and contributor to Pension Plan Administrator. He has been a speaker at AICPA Employee Benefit Conferences; Accountant’s Satellite Television Network; Vermont Tax Institute; Florida and Virginia Bar Associations, and CPA Institutes in Florida, Virginia, and Maryland.
Attorneys, actuaries, accountants, HR managers and business owners will benefit from the information John will be providing in his upcoming articles.
If you have any issues or concerns in the areas of law in which John concentrates, here is his contact information:
John H.W. Cole, P.C. 3 Worcester Street South Burlington VT 05403-7235 Phone: 802-660-0148; 800-443-0264 Facsimile: 802-657-3957 Email: Jcole@erisajd.com