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Diversity issues affect family law

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While family law cases can be complicated – especially if children are involved and a case has ended up in front of a judge after the parties couldn’t come to an agreement on their own through mediation – the issues only get more complicated when fundamental differences exist between the parties.

Those differences can be religious, cultural, or involve so-called non-traditional families.

These issues were addressed at the 2010 Indiana State Bar Association annual meeting in October as part of the seminar “Diversity: The Missing Piece in Family Law.”

One of the major issues panelists discussed was the difference in religious practices of divorced parents.

Panelist Hamilton Superior Judge William J. Hughes said this was in large part because when parents divorce, some tend to become more religious as a way of dealing with the divorce. He said religion is also not typically addressed in the initial agreement, so the issue of parents with different religions usually comes up in later arguments.
 

dubovich-debra-mug Dubovich

Family law attorney Debra Lynch Dubovich of Levy & Dubovich in Highland wasn’t at the ISBA seminar but said she has seen this many times with parties she has represented.

One example of a conflict she gave was the case Gonzalez v. Gonzalez, 893 N.E.2d 333 (Ind. Ct. App. 2008), in which she represented the father.

In that case, the parents and their six children attended a Baptist church. The father was excommunicated from the church shortly before the mother filed a petition for dissolution of marriage in March 2005. Because the father had been excommunicated, members of that church, including the mother and children, were expected to shun him.

The trial court found that the mother should have control over the children’s medical needs, and the father should have control over the children’s educational and religious training. The Court of Appeals affirmed that decision in 2008.


bays-donna-mug Bays

Family law attorney Donna Bays of Indianapolis said she has had similar cases. For instance, one case involved a parent who didn’t believe in celebrating holidays while the other parent did.

As a result of mediation in that case, the children were allowed to celebrate holidays at one house, but they weren’t allowed to celebrate or take their presents to the other house. In that situation, she said, it was obvious that neither party was happy with the arrangement, something she said was fairly common when families must come up with compromises when religious beliefs differ.

Bays and Dubovich also agreed that not only are divorcing parties more likely to turn to faith communities, they are also likely to reconnect with the cultures and families they may have been estranged from while married.

Dubovich said it’s unlikely that families today would argue about a marriage between individuals who are Polish and Italian, which would likely have been the case even 50 years ago. However, she has observed that the issue of cultural differences comes up between parents who are white and African-American, with African-American family members cautious about whether the children would lose touch with their cultural background if physical custody was granted to the white parent.

Bays added she has also seen cases involving socio-economically challenged Hispanic families.

“They don’t fight within the legal system,” she said, “but they might fight outside of the legal system.”

The issue of cultural differences can also mean there is a language barrier.

“To service the full population, we need more bilingual people in the court system,” she said. This was also mentioned during the ISBA panel discussion.

Panelist and attorney Kathryn Hillebrands Burroughs of Cross Woolsey & Glazier in Indianapolis said this is particularly difficult when a parent speaks English as a second language and doesn’t accurately say what she means.

For instance, Burroughs said she had a client who said, in English, “my daughter is too fat,” when she was trying to convey concern about her daughter’s weight problem.

The English translation wouldn’t give the best impression of her parenting skills to a judge, she explained, even though she was concerned.

Judge Hughes and other panelists suggested in this and most situations with parties who speak English as a second language that attorneys should try to have interpreters present.

Dubovich agreed. “You want clients to be able to express themselves clearly and confidently.” She added attorneys can also consider the option of utilizing interpreters via phone.

She also said that while judges might prefer children to grow up in a situation where they’ll be able to speak English, “I’ve never heard of a case where a court mandated that a child shouldn’t learn a second language. Most courts feel that’s an advantage – a gift a parent could give a child.”

Other than cultural and religious differences, issues regarding non-traditional families tend to come up from time to time.

Dubovich said she doesn’t think there are necessarily more non-traditional families now than in the past, but there is more of a necessity for non-traditional families to be approved by the legal system. She included situations where grandparents or other relatives are raising a child and stepparents are raising stepchildren.

Before, she said, if a child needed someone to raise him or her, a neighbor or relative would do it. But unlike today, there would likely have been a local doctor who didn’t need to worry about Health Insurance Portability and Accountability Act, which didn’t pass until 1996. Plus, the local school would have let a child enroll even if she wasn’t living with her biological parents.

“The school knew what was going on – it didn’t need guardianship established. … But now as society has become more formalized, the informal relationships, out of necessity, have to invoke the power of the government and the courts. Even in amicable types of situations,” she said.

Bays, who has represented clients in a number of cases involving same-sex relationships, said that in the courts where she practices in central Indiana, “judges don’t rely on the stance of their political parties regarding the issue of gay marriage.” Instead, she’s observed that judges take in the totality of the situation and what’s best for the children.

Lake Superior Judge Elizabeth Tavitas, who sees custody cases of divorced parties, said she hasn’t seen many issues when it comes to religious or cultural differences.

The only thing she has seen on the religious side is if the religions of the divorcing parents were fairly similar, they have an arrangement in place where on the mother’s weekend she takes the children to her church and on the father’s weekend he takes the children to his church.

However, she said, that is likely because either the married parties came from similar religions or cultures, or because those issues were resolved before the parties arrived in her court.

She pointed out that the local rules require parties appearing in her court to try to resolve their issues before they file a pleading with the court.

Because she isn’t seeing significant conflict of this kind in her court, she believes “it means parents are working it out themselves or with their attorneys, … which is the way it’s supposed to work.”•

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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