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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