Advanced Directives: Are Attorneys Actually Serving Their Clients and their Families?

 

This guest post is from Regent Family Law student Harold Boatwright:

         The drafting of an advance directive can be a serious decision for many, but for others nothing more than signing a document along with a dozen more at an attorney's office, or even at the hospital. While everyone hopes that this document will never need to be used, the reality is that with advances in medical science people can be kept alive long after serious injuries. A first-year law student could see a problem with any ambiguity in this type of document but are advance directives being properly drafted to avoid these dangers?

States differ on whether they supply a form for people to sign or leave individuals to draft language themselves regarding their end-of-life decisions. Many will choose to have an attorney draft these documents but without a level of medical care specified, is there any real meaning from the words on the page? One phrase that has been used in thousands of directives to refuse further treatment is “When I can no longer carry on a meaningful life.” The origin of the phrase is a form published by the American Bar Association in 1989 and has since lingered in form directories of firms all over the country. This wording is commonly accompanied by phrases like “reasonable quality of life,” “extraordinary measures,” and “heroic measures.” This type of language can bring about more confusion than clarity when a decision needs to be made.

The burden of the solution relies not only on the attorney but also on the client. To save their families from hard decisions and painful litigation clients need to take the time to be specific with their goals. Similarly, if attorneys are charging clients for drafting these documents they need to be detailed in their work and ask potentially difficult questions to truly serve their clients.

Advanced directives can be an effective tool when tragedy strikes a family by saving the surviving members from having to make hard decisions but only when specific instructions are given. Attorneys and clients both should take the time to work together to create an effective document instead of using generic language that invites litigation and makes a difficult situation much worse.

Breaking Generational Trauma: Understanding & Advising Clients and Families

 

This guest post is courtesy of Autumn Miller, Regent Family Law student:

          Every client, even yourself, is a byproduct of hundreds and thousands of years’ worth of experience, history, and even trauma. Anything your ancestors may have done may still affect you (and your clients) today! This is called intergenerational trauma, more commonly known as generational trauma. Generational trauma is defined as “[t]he transmission of trauma or its legacy, in the form of a psychological consequence of an injury or attack, poverty, and so forth, from the generation experiencing the trauma to subsequent generations.” (APA Dictionary of Psychology) While traumas from the past include famine, war, and mass migrations, the traumas from Generation Z (1997-2012) and Alpha (2012-2024) could consist of 9/11, mass school shootings, polarized politics, and Covid-19. As an attorney, it is vital to understand the deep history every client comes to you with.

Understanding their trauma will allow you to advise them in a way that can help them heal and/or find a remedy for their problem that best fits them. The best way to illustrate generational trauma is the age-old story about how a family cuts off the wing tips of a turkey before putting it in the oven for Thanksgiving. The family has done this for decades until they finally ask the matriarch why she cut off the wing tips. Great-Grandma responds, “To make the turkey fit, my oven was tiny.” This story illustrates that the phenomenon affects not only the actions of a subsequent generation but can also affect an individual medically.

          Encouraging a client to consider family mediation or therapy to identify the weak points in their history is a helpful course of action. Once they can identify those points, the client can work within the family unit to solve the problem. Sometimes, generational trauma is not as terrible as surviving the Holocaust or the Potato Plague. It could even come in the form of corporal punishment parents inflicted on young children. Even adding family mediation to an attorney’s practice to help families break the bonds of generational trauma could be a step in the right direction.

 Your clients are people created in the image of God who have histories and experiences worthy of understanding. History teaches us to “step into” the shoes of an author of a historical document. This allows historians to understand the thoughts and decisions of the author best without passing judgment on them for those things. In many ways, the practice of law may benefit from this technique to help our clients. 

Take your client’s deep-rooted and often uncovered trauma and use it to heal a family in family mediation or advise a client executing a parent’s estate on dealing with their siblings. Everyone has trauma, and if they cannot break the cycle, they too, will doom the next generation with the same fate.

How the Irish Might be Saving the Family

 

Historian Thomas Cahill’s New York Times bestselling book, “How the Irish Saved Civilization” revealed the key role the Irish people have played in preserving the rich human history from fallen Rome. By saving the parchments of antiquity and copying and recopying these language fragments, essential elements of civilization, and even beautiful masterpieces (such as the Book of Kells) remain today.

From that rescue western civilization was not lost, but preserved, even from Viking invaders and marauders. Saving the written language and its values amounted to saving western civilization.

Last month the Irish just might have saved it again, when the people of the Republic of Ireland rejected the constitutional family amendment which would have offered replacement language for “mothers” and some chosen roles “in the home,” as well as a replacement of the term “family” with “durable relationships.” With 67% voting “no,” the outcome was resounding. While some argued that the amendment failed because it was poorly worded, Irish citizens and their families were firm in their rejection.

Read the entire op-ed in The Washington Times at https://highergroundtimes.com/higher-ground/2024/apr/12/how-irish-may-be-saving-civilization-and-true-defi/.

In a separate fight over language, last week Scotland enacted a law that makes it a years-long imprisonable offense to “incite hatred on the basis of race, religion, transgender identity, sexual orientation, age or disability.” Because this law essentially makes it a hate crime to misgender someone without knowing one may be doing so, a Scotland grade-school teacher shared her very real concerns with me. Because she already struggles to learn the names of her 300 or so students, she is concerned that she may not know each student’s preferred pronouns, noting as well that those preferences tend to change on a weekly basis for numerous students.

Her fears may be realistic; inthe first week of the new legislation, 4,000 investigable complaints were made to police, amounting to 60 complaints per hour. Not only did these keep the police from policing other criminal activity, but it was quite a revelation that of those first 4,000 complaints, 3,000 related to language used by Scottish First Minister Humza Yousaf —a major and humiliating blow. The irony is astonishing.

Also last week, Connecticut Democrats were fighting over another language issue, so to speak, in determining if the addition of “expectant mothers” could be added to the descriptor “pregnant persons,” a term intended to avert prejudice and discrimination. The argument was that the latter is the more inclusive term.

Subscribe to have The Washington Times’ Higher Ground. 

Rep. Robyn Porter, a New Haven, Connecticut Democrat who is a member of the legislature’s Black and Puerto Rican Caucus (BPRC), was the amender of the bill referencing “pregnant persons” to also include the phrase “expectant mothers.” When challenged by open hostility she offered her systematic thinking: “We want to talk about discrimination? Well, I’m here to tell you that Black people in America know that very well. …  We were mothers first. Yes, times are changing, and I’m fine with that because that’s life. … But you don’t get to grow, and you don’t get to talk about diversity, equity, and inclusion and exclude me and the other women like me who identify as mothers. You don’t get to do that.”

With biology asserting itself like this from Dublin to Connecticut, incarceration for unmet pronoun preferences in a Scottish grade school seems more than problematic – it feels chaotic, even in a free Scotland. So instead, maybe, as the Romans had to in the first centuries, we might begin to look to the Irish again as rescuers of sorts.

As commentator Patrick Luciani stated, “The Irish referendum wasn’t only about rights, tolerance, or one’s right to choose a preferred gender identity but about the nature of language. When the Irish were asked to vote, they knew intrinsically that words matter, and changing the constitution by abandoning the phrase ‘mother’ or ‘woman’ to satisfy the political trends of progressive gender advocates would have a deep and lasting effect on their culture and identity. That was a step the Irish weren’t willing to take.”

When language of gender inclusivity and reproductive freedom is used to limit women, and their families, that language tends to be a tool to acquire power, particularly in the law. People can see right through it. Saving the language and its values amounts to saving society.

So when the Irish people voted “no” they might have been saving civilization all over again. 

Harmony in Disarray: Collaborative Law as An Alternative to Family Law Litigation

 

            This guest post is courtesy of Ben Sacaciu, Regent Law Family Law student: 

In family law disputes, where emotions often run high and relationships are deeply intertwined, the traditional adversarial approach of litigation can exacerbate tensions and lead to prolonged, costly battles. Collaborative law emerges as a beacon of hope, offering families a more amicable alternative to resolve disputes. Unlike the confrontational nature of litigation, collaborative law fosters open communication and cooperation between parties, allowing them to actively participate in crafting mutually beneficial solutions. The collaborative law process also involves assistance from a mental healthcare professional, as well as a financial professional. Utilizing such neutral experts helps provide for the emotional and financial needs of the parties.

The inclusion of mental health professionals is a key feature of the collaborative law process because such experts can provide the parents with invaluable information about the best interests of the children. Recognizing that children can be the most vulnerable parties in a divorce separation, collaborative law endeavors to create a supportive environment that prioritizes their well-being. By encouraging parents to work together rather than against each other, this approach helps cultivate healthier co-parenting relationships. Child custody and visitation arrangements are meticulously crafted with the child’s emotional and developmental needs at the forefront, ensuring that the resulting agreements promote stability and consistency for the child.

 

Unlike the often adversarial and unpredictable nature of litigation, collaborative law empowers families to find solutions that work for everyone involved. By fostering open dialogue, preserving relationships, and prioritizing the best interest of the child, collaborative law stands as a progressive and compassionate alternative in the complex landscape of family law. As individuals seek a more humane and constructive way to navigate the challenges of divorce and separation, collaborative law shines as a pathway towards resolutions that prioritize healing and the well-being of all family members.

Is Montana the Wild West in Divorce Policy?

Blog host note: Having two Montana students in my Family Law course this spring semester has been extremely helpful for me to learn more about that state's views on families and their interactions with the law. As the last post considered issues surrounding the value of life in Montana, this post considers Montana's public policies on marriage. Both students, as you will read, have shown that a Christian attorney can make a tremendous difference in his or her state to help to bring about stronger families. That's what a legal education at Regent is all about.                                                                                                                                      -Lynne Marie Kohm

This guest post is from Regent Law Family Law student Esther Lines:

As a student from Montana in Family Law this semester, I was excited to get into the nitty gritty of Montana's laws. Montana citizens care deeply about family, freedom, hard work, agriculture, and the outdoors, which are values that I share. Montana is a predominantly conservative state, though interesting population dynamics in a select few larger towns have recently turned the state blue in certain elections. The tension between liberal and conservative parties has risen as more people out of state move to these more popular towns and begin to change the dynamics and values of the local people. This interesting mix of the local and the foreign, the old and the new ways, is a new challenge facing the citizens of this state. However, there is still a unifying conservative nature across the state. With this basic understanding of the conservative nature of Montana, I was expecting my deep dive into Montana law to reveal strong laws that bound husbands and wives and worked to protect the family unit. 

In 2019, however, these new dynamics changed our Family Law code and all of our reconciliation laws were repealed. See §40-3-101 through 127, Montana Code Annotated.  

Montana law has seemingly thrown up its hands and embraced the attitude of the "wild west" in its divorce policy. Montana is a no-fault divorce state, with bare minimum grounds for proving the marriage is "irretrievably broken." The burden of proof is light, as the Montana Code Annotated states in §40-4-104, only a showing that either the parties have lived separately for more than 180 days or a showing of "marital discord that adversely affects the attitude of one of the parties toward the marriage" is enough. Seriously? My state legislature really thinks the best thing for its citizens is to allow for divorce when only one of the parties does not have a good attitude toward the marriage anymore? My first reaction was deep disappointment, thinking Montana had given up its familial values and morals. But then, with the help of friends around me, I began to realize that maybe Montana's concern for the complete freedom of its citizens to do as they please is not such a bad thing and actually benefits lawyers who wish to promote genuine familial love and commitment. And here's why: you cannot legislate morality, and less regulation promotes honest  representation and Christian responsibility among attorneys. 

The decision to be committed to one's spouse must come from within, and no amount of legislation can force a person to love the Lord's instruction and the other party to the marriage more than themselves and their own desires. When these values cannot be enforced by legislation in the first place, the potential cons of strong government regulation against divorce can potentially outweigh the pros. When two parties have decided to dissolve the marriage, human nature tends to show that they will get what they want. This landscape encourages family law attorneys to argue for the dissolution of the marriage, whether or not the marital discord really meets the standards for divorce the law requires. When you combine stringent regulation of marriage with stubborn human nature, the incentive and likelihood that lawyers will engage in illusory arguments to satisfy the requirements for divorce rise. However, by leaving the door open for citizens to leave a marriage when they have decided they are going to, the lawyers representing them can now satisfy the law's requirements without doing argumentative gymnastics to meet the standards of more strict divorce jurisdictions. 

Additionally, Montana's easy divorce paradigm has created the opportunity for Christian attorneys to "cowboy up" and actively encourage clients to consider alternatives to divorce, knowing the law is no deterrent. There is a need for gospel witness in this arena, and Christians need to step up and counsel their clients in the instruction of the Lord where appropriate. Montana divorce law is no threat to marriages so long as we have true Christian attorneys willing to engage with their clients about the harms of divorce and the beauty of selfless, committed love. 

Montana may be the wild west, but that does not mean Montana is not ripe for the growth of Christian attorneys who can counsel their clients with the influences of goodness, truth, and beauty through divorce decisions. That will restore families.

Montana: Right to Privacy More Important Than Life?

 

This guest post is from Alexis Maddy, Regent Law Family Law student:

Many states' laws surrounding abortion were drastically affected by the Dobbs decision. As a result, more pro-life-friendly laws were passed than ever before. Unfortunately, Montana was not one of those states. Armstrong v. State (1999) was the landmark decision that governs abortion laws in Montana today. There, the court held that the Montana Constitution's right of privacy "guarantees each individual the right to make medical judgments affecting her or his bodily integrity and health in partnership with a chosen healthcare provider free from the interference of the government.” (Armstrong v. State, 296 Mont. 361, 1999 MT 261, 989 P.2d 364 (Mont. 1999).) This includes abortions and medical decisions. Dobbs, unfortunately, drove the abortion rate up in Montana as people from more restrictive states fled there to take advantage of the lower thresholds.

Montana citizens are actively advocating for the protection of the unborn by proposing bills to the pro-life Governor, Greg Gianforte, to effect change. Just before the Dobbs decision in 2021, several House bills were introduced with the aim of safeguarding life. These bills sought to sway the court to reconsider Armstrong and amend the current abortion laws in Montana. House Bill 136 would have prohibited the abortion of an unborn child capable of feeling pain starting at 20 weeks. House Bill 140 would have required that women be afforded the opportunity to view an ultrasound and listen to the fetal heart tone. House Bill 171 would have restricted certain abortion medications prescribed by telehealth. These three bills were signed into law by Governor Gianforte in 2021, but on February 29, 2024, District Court Judge Krueger, using Armstrong reasoning, ruled these as too restrictive, saying, “It is not up to legislators to substitute their personal values and beliefs for the collective professional judgment and expertise of properly licensed medical providers.” He found them unconstitutional and struck them down.

 

While the Dobbs decision was a massive win for most pro-life organizations and states, Armstrong v. State continues to impact Montana legislation as the controlling law that prioritizes privacy rights over the right to life for the unborn. But there is hope. With the rejection of these three bills, the State can now appeal this decision to the Supreme Court of Montana and revisit the Armstrong decision in light of Roe v. Wade being overturned. Family restoration is possible.

 

Mother Presumption in Custody Cases?

 

                  This guest post is from Regent Law student Daniella LaRosa:

The idea of splitting up a family with a divorce or separation is unhappily too common in this era. The sad and daunting thought is often, what will happen to the kids? Usually, a significant custody battle ends with the mother having sole or primary custody, and the father having visitation. There are situations where this is appropriate and in the child's best interest, as posted and discussed earlier in this blog. The law requires, however, that both parents are equally entitled to parental rights if they are fit parents, and furthermore, the child has a liberty interest in having both parents involved in his or her life.

Many people are aware of pro-mom or pro-dad situations, in which one parent over another seems to have a presumption of primary custody. Upon initial research, all states claim no presumption for one parent exists, but rather all afford equal custody rights to both parents, but this seems different from what is played out in an actual courtroom. The map above breaks down the average custody percentages awarded to a father according to the case outcomes in each state. Based on the amount of hours in a day, days in a week, and days in a year, this map reveals that most states award over 70% of custody time to mothers. States have different definitions of what qualifies as “a full day or half day.” All these times are added and computed in the state's software based on their state law to calculate the total time spent with the child. This determines who has primary custody, financial obligations, and legal decision-making.

There are concerns with a presumption that would favor mothers. Historically, mothers were awarded primary custody under the tender years doctrine. Or people generally may have an inherent bias towards the mother in general, which is impactful regardless of a child’s age. The tender years doctrine is the notion that a newborn until the age of 2 or 3, depending on the jurisdiction, should be primarily with the mother based on the child’s needs. The tender years presumption has been ruled unconstitutional as it is a violation of equal protection to favor mothers’ rights over fathers’ rights. The law today in every state uses instead a primary caretaker presumption.  A judge’s mind, however, may still carry an inherent bias in favor of mothers. In the mind of a judge there may be a presumption that women are better parental figures, or that children need their mother more. This thinking makes a custody hearing much more challenging for a dad. These concerns impact fair custody decisions and distributions and can essentially require a father to have to fight in court to be granted more time with his children.

Unfortunately, I saw this firsthand in California, watching a father fight for custody. Sadly, in his case, after four years of fighting, he still only saw his children two full days every other week. This is not an uncommon court-ordered parenting plan. Conversely in Nevada, a court case close to my family ended with joint custody, even with intentional efforts to encourage primary custody. That state favored joint custody unless an opposing parent posed a proven danger. In California and many other “pro-mother” states, even with the claim that it is a 50-50 custody state or when a case carries a preponderance of the evidence stating otherwise, the mother often receives primary custody.

The initial reasoning for the mother custody presumption had much to do with women and men in the workforce. Most fathers who got divorced, whether remarried or not, typically were still the primary income earners. Most women were homemakers and, even after divorce, remained this way until the children were much older. Given this situation and understanding, it makes sense to give women primary custody. However, this is not the case anymore. The majority of families are dual-income. After divorce, 66% of women and 69% of men are in the workforce. Given these statistics, maintaining this presumption is no longer in the child's best interest and encourages the perception of single-mother households. When the father is competent and entitled to be involved in his child’s life, the law must reflect what it purports.

The common concerns with claiming joint custody being a reality are the judge's bias, the father’s perception of his rights, and the cultural acceptance of this parenting schedule. The states that, regardless of any initial presumption, by the close of the court case typically order joint custody among the parents are Alaska, Arizona, Idaho, Iowa, Louisiana, Minnesota, and South Dakota. That essentially means that out of the fifty states that purport to enlist a joint parenting structure, only seven statistically have those outcomes. If a father wants to see his child more than twice a month, he might consider moving to one of these states.

This is concerning for many reasons, but this post simply aims to point out this discrepancy. Fathers should not allow a previous significant other or society to railroad them into believing they have no rights and should be grateful for whatever time they get with their children. As with many common fallacies and injustices, without education or knowledge of these rights many fathers lose out on a good deal of the lives of their children. The law and an excellent lawyer can help advocate for the rights of a father. Mothers also need to encourage fathers to exercise their parental rights because it’s best for children to have a dad involved in their lives.

Mothers and fathers are the first defense in trying to adjust this presumption. If everyone works to make it fair and keeps the children as the priority, we all can make great strides to change the lives of children from broken homes.

FDA v. Doctors Protecting Women from Chemical Abortion

 

On March 26th the Supreme Court of the United States will take up the issue of abortion pills and the risk they pose to women. 

Available since 2000, with no clinical trials whatsoever, the Food and Drug Administration (FDA) and, more recently, the Biden Administration, have loosened access to these abortion pills over the years in ways that do not protect women, but rather harm us in reckless ways.

 

Originally, abortion pills (mifepristone which inhibits implantation and stops embryo growth, and misoprostol which causes cramping and bleeding to evacuate the uterus) could only be administered by a doctor during an in-person visit to determine the gestational age of the baby and the health of the mother. This is a chemical form of abortion. In order to safeguard a woman’s health through the medical abortion, the regimen required a second visit 3 days later and a final examination 14 days after that. These visits guarded against too much bleeding, sepsis, or other consequences of the pills. Since 2016 the FDA has been eliminating these safeguards.

 

In 2016, the FDA eliminated the requirement that doctors provide follow-up visits on the 3rd and 14th days. They also eliminated the requirement that only doctors could prescribe abortion pills.

 

In 2021, the FDA used COVID to justify radical changes to these rules again. They removed all in-person examination requirements, permitting abortion pills to be mailed to patients regardless of what state they lived in and what their state laws said about the legality of abortion.

 

All of these changes have put women’s health at greater risk than ever, and simultaneously further empower sex abusers and sex traffickers by allowing them to cover up the consequences of their crimes – consequences that are compounded for their victims through chemical abortions they experience alone and often with great trauma.

 

The High Court will examine these concerns in the lawsuit brought by doctors challenging the FDA rules, represented by Alliance Defending Freedom, and argued by Regent Law’s own faculty member, Erin Hawley. Chemical abortion through the mail is detrimental to women, child, and family restoration.