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Confidentiality

by Gregg Herman on 07/30/15

An Oklahoma judge recently had to defend his decision to seal the divorce file of country music stars Blake Shelton and Miranda Lambert.  According to the newpaper story, the judge said:

"If the pleadings in this case were made public, it would significantly compromise the personal and financial privacy of the parties," the judge said:

"There is no legitimate public interest in the personal and financial matters of these parties' dissolution. These parties are entertainers and are not guardians of the public trust.  There is likely to be significant publicity regarding these parties greatly in excess of that of most other parties.  Because the matters contained in this case are likely to be of significant media interest, but are private in nature and not matters which are of a legitimate public interest, there is a compelling privacy interest which outweighs the public's interest in the record."

In Wisconsin, a court is allowed to "impound" a family law file "for good cause shown".  In my practice, I have had this request granted on occasion - and denied.  For example, when I represented a judge recently, the court had no trouble finding "good cause".  However, a short time later in a case where one party was a partner in a major law firm, the court denied the joint request of the parties.

The issue pits the interests of the parties who would like to keep their affairs private from the public interest in the openness of our legal system.  In representing my clients, my preference is for the former.  However,  it is nice to have a legal system which is open and public. 

Which gets me to the most recent attempt in Wisconsin to restrict access to court files which are on-line in the CCAP system.  This time, the attempt failed, but there will be new efforts.  Absent on-line access, only those "in the know" will have access to the files, meaning those who know where the files are physically kept and how to get them.  In other words, lawyers. 

The argument on the other side is that the public may not understand or use the information appropriately, especially regarding criminal cases which are brought, but later dismissed.  While this is a legitimate concern, in my opinion, "public" should  mean exactly that - not "public" for lawyers only.  The exceptions should be rare and far between - and not include singers, no matter how famous they may be.


Pet prenup?

by Gregg Herman on 07/17/15

With the lack of anything more important to discuss this week (wait?  Is there anything more important than pets?), there is an article this week advising couples to get a prenup regarding their pets in the event of a divorce.

In addition to my previous stated ambivalence regarding prenups in general, a prenup regarding pets seems to me to be particularly silly.  Prenups (at least in Wisconsin) are enforceable not only if they are fair at the time of signing, but also if they are fair at the time of implementation.  Given the changes which can occur during a marriage, predicting what each party will want and what would be good for a pet at an unknown time in the future seems to be unlikely.  As Yogi Berra (supposedly) said:  "Predictions are very difficult to make, especially about the future."

That being said, pet issues can be very difficult as courts - reluctant to hear any family law issue - are particularly reluctant to decide about pets.  I do know of one way not to resolve this issue.  In my files is a letter which an associate of mine received from an opposing lawyer who suggested that since the parties could not agree about their dogs, they be euthanized to avoid fighting over them.  He was quite serious.  Yeah, we can't agree, so let's just kill them!

The right way to decide this issue is via mediation.  Fortunately, I know a social worker who will do mediation on pet issues.  More should - especially for childless couples, it can be a highly important issue.  And, this way it would be decided when the parties split and their future circumstances are better known.

So pet prenups make for an interesting headline.  But in most cases, I don't think it makes for good policy.

Judge jailing children

by Gregg Herman on 07/10/15

The headline is rather shocking:

Judge jails kids for refusing lunch with dad

The story in USA Today relates to a case where children, aged 9, 10 and 15 [Note:  The article says that the oldest is 14, but the transcript of the hearing reflects that he is actually 15]refuse to see their dad.  The judge blames the mother for alienating the children so he places the children in a juvenile detention center for disobeying her orders to "have a healthy relationship with your father."

Parental alienation does occur (I have no idea whether this mother is guilty of it or not), but this judge has it wrong.  Our courts cannot enforce an order to have "a healthy relationship" with anyone else.  All a court can do is to force contact.  It cannot make the contact - or relationship - a positive one.

Most troubling, here is a portion of the transcript regarding what the 15 year old boy said to the judge:

MR.________:    Okay, so I -- I do apologize if I -- I didn't understand that the rules of the -- like the -- with -- with -- like apologize to whatever I did to you, but I do not apologize for -- for not talking to him because I have a reason for that and that's because he's violent and he -- I saw him hit my mom and I'm not gonna talk to him.

If this boy did, in fact, see the father hit his mother, not talking to him may very well be an appropriate reaction.

More troubling, here is the judge's comment to one of the children:

THE COURT:  I've never seen anything like this. One day you can watch this video and realize that ...you two have been brainwashed.   Your dad is a good man. Your dad is a good man who loves you.  You have been brainwashed.   You are brainwashed.   This is not normal behavior.  Only -- no adult in this courtroom, except one, thinks this is normal.  Every single adult in this courtroom thinks you have been brainwashed.   Your dad is a good man.  And wipe that smirk off your face.

Telling a child that s/he has been brainwashed is troubling.  The child's reaction is not "Oh, gee, I better get un-brainwashed."  It is more likely that the child will find the accusation to be demeaning and a challenge.

Wisconsin does not have a specific age when children can choose between parents (other than the age of majority).  We also do not allow children to have advocacy counsel.  Most GALs do a good job of differentiating between those children too young to make these decisions and those who are old enough to make them - the best example being a 16 year old with a driver's license and access to a car.

In the latter event, in my experience, the child ends up getting his or her way, whether that is healthy or not.  Forcing a teenage to see a parent whom the child does not want to see does no favors for either the child or the parent.  In these rare cases, the child makes the visit so unpleasant that the parent eventually gives up.

The problem with forced placement is that it focuses on the rights of the parent, rather than the best interests of the child.  If the child is doing perfectly well with Mom - going to school, getting decent grades, etc. - why is putting the child in detention is his or her best interest?

Again, while I am unaware of all of the circumstances involved in this case, it is very troubling and highly unlikely to help anyone, including the parent.



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