Much has been written in the last few years about the pressing need for family law reform. Most attention has correctly been focused on the need to protect children from inadequate parenting time with either parent. However, we also need to protect children and the public from bad lawyers.
There is an emerging trend nationally to punish lawyers who use abusive tactics in family law cases. As the California Court of Appeals said in a recent case, "zealous advocacy does not equate with 'attack dog' or 'scorched earth'; nor does it mean lack of civility." In this case, the court found that "uncivil, rude, aggressive, and unprofessional conduct (by the wife’s attorney) marred this case from the very beginning," and upheld $400,000 in monetary sanctions for a litany of abusive tactics.
In an unrelated case, the California Court of Appeals upheld an attorney fee award of $552,153 for false allegations of domestic violence and other misconduct. It also awarded $15,000 for filing a frivolous appeal and sanctioned two lawyers $5,000 each for their involvement in the frivolous appeal. In a recent New Jersey case, an appeals court upheld an attorney fee award of over $1.5 million and an additional $300,000 in expert witness fees for a variety of abusive tactics in a custody dispute, including false allegations of domestic violence.
Courts have also recently awarded monetary sanctions in New York ($50,000) and Tennessee ($61,000) for abusive tactics in family law cases.
Nebraska lags behind other states in policing abusive family court tactics. Perhaps as a result, 10 respected attorneys recently asked the Nebraska Supreme Court to amend our legal ethics rules to prohibit lawyers from engaging in one of the most abusive tactics -- using children as leverage in financial disputes. As these attorneys pointed out:
“While not often discussed publicly, the use of children to gain leverage in financial disputes is a recognized tactic in Nebraska family law cases. This often is reflected in negotiations around parenting time and child support, in which an attorney may condition parenting time on the payment of additional child support. In extreme cases, an attorney may actively participate in a child abduction in which a parent denies the other parent access to the child until the other parent agrees to financial concessions.”
To illustrate this latter point, the attorneys attached a letter in which a Nebraska lawyer actively participated in a child abduction and demanded money for the return of the children. The lawyer had counseled the wife to leave the marital home with the children and then demanded an extraordinary five-figure upfront fee from the father in exchange for letting the father see his children.
While abusive litigation tactics are not limited to using children as negotiating leverage, this tactic is one of the most harmful because it places the children in the middle of their parents’ conflict, which is harmful to children. It damages children’s relationships with their parents and makes them more vulnerable to even typical childhood stresses. Interfering with a parent’s ability to see his or her children also increases the magnitude of the parents’ conflict, which further increases the risk of harm to the children. Using children as negotiating leverage can be indicative of child abuse and parental unfitness.
What can be done? First, our courts should follow the lead of courts in other states and enforce existing rules that restrict the use of abusive tactics.
Second, we should amend our legal ethics rules to prohibit lawyers from using children as leverage in financial disputes and give bar discipline authorities the ability to prohibit attorneys who violate these rules from handling child custody cases.
Third, the legal ethics rules should provide that lawyers who are involved in child custody matters owe duties both to their client and to the minor children. Legal ethics rules already provide that criminal prosecutors have a higher duty than just to win, they must also protect the rights of the accused. The new rule would provide that family law attorneys also have a higher duty than just to win, they must also protect the best interests of the minor children (who are not their clients).
Fourth, the legal ethics rules should require special training for lawyers who handle child custody cases. This training should include information on optimal parenting time outcomes, how to minimize conflict, how to insulate children from the conflict that does occur, ethics, and child abuse and domestic violence including male victims and false allegations.