4.07.2021

No Fundamental Right to Demand That Police Protect You—but That Might Be Changing

 


This guest post is from Dana DiDomenico, Regent Family Law student:

On June 22, 1999, Jessica Gonzalez’s life took a dramatic turn. See Town of Castle Rock, 545 U.S. 748, 755 (2005). On that day, her estranged ex-husband made the choice to violate the express terms of a restraining order which expressly prohibited him from making contact with Ms. Gonzalez or their three daughters, who were all under the age of ten. Id. at 752. Simon Gonzalez kidnapped the three girls from the front lawn of Ms. Gonzalez’s home. Id. Like any mother, she was terrified for the lives of her children. She called the police, who, upon arrival, explained that because the children were with their father, there was no need for any police intervention, restraining order notwithstanding. Id. at 753.

Ms. Gonzalez made eleven attempts to get the police to look for her children. Ms. Gonzalez called the police nine times and went directly to the police station twice. After eleven attempts to get the police to look for her children, the police still did nothing. Id. at 753–54.

Around 3:00 AM the morning of June 23, 1999, Simon Gonzalez arrived at the Castle Rock Police Station and opened fire with a gun he had just purchased the night before. Police shot and killed him. Ms. Gonzalez’s three daughters were already dead, murdered in the back seat of Simon Gonzalez’s truck. Id. at 754.

Ms. Gonzalez filed a complaint against the Castle Rock Police Department for their gross negligence in failing to enforce her restraining order. Id. After several appeals, the Colorado Supreme Court held that the Police department had acted grossly negligent and that Ms. Gonzalez had a fundamental right under the Due Process Clause to enforcement of her restraining order. More fundamentally, the court explained that individuals have a right to protection, that this is what due process, in its most basic sense, means. Indeed, the right includes protection of “life, liberty, and property.” U.S. Const. amend. 4. To the Colorado Supreme Court, this is exactly what the Castle Rock Police Department failed to do for Ms. Gonzalez and her three little girls. Id. at 754–55.

The case was appealed to the highest court in the land: The United States Supreme Court. Id. at 755. There, Justice Scalia explained that due process does not require the police to enforce restraining orders, nor does it require the police to protect individuals like Ms. Gonzalez. Id. at 762. To add insult to injury, the police officers involved were protected by qualified immunity—meaning no lawsuit could be brought against the individual officers responsible for dismissing her. Id. at 754 n.3.

Ms. Gonzalez appealed this decision in the international courts, where the International community formally rebuked the United States for human rights violations. See IACHR report No. 80/11 case 12.626 merits Jessica Lenahan (Gonzales) et al. United States.

Because of this case and others like it, however, the law in Colorado is changing. In 2020, the Colorado General Assembly passed a string of police reforms, including eliminating qualified immunity for police officers in certain, delineated circumstances. The 2020 Bill Text CO S.B. 217 is called the Law Enforcement Integrity and Accountability Act. If it had been enacted in 1999, Jessica Gonzalez might have had recourse against the officers who ignored her cries for help, and the Gonzalez girls might still be alive.

4.05.2021

The COVID-19 Pandemic and the Fundamental Right to Marry

   


This guest post is from Sarah Stefaniak, current Regent Family Law student:

Engagement is an exciting time. A time of many phone calls of good news to family and friends, and the overwhelming joy in knowing you are marrying your best friend. However, after the initial celebration, the time becomes increasingly stressful as the wedding planning process begins. Most couples face the stress of finding available venues and vendors, working on a budget, attending wedding preparation counseling, all while trying to enjoy the time as an engaged couple. With the current COVID-19 pandemic, however, the stress has doubled. Many couples from 2020 who postponed their wedding due to COVID-19 concerns are now rescheduling into this new year, taking over 2021 options, making it an incredibly busy year for weddings. Both 2020 and 2021 engaged couples are hoping to tie the knot this year as restrictions begin to lift and the virus is contained. But what about those couples who were forced to postpone their wedding due to government restrictions?

 

Under the Fourteenth Amendment, there is a fundamental right to marry. Is that right affected at all when early on in the pandemic, churches and wedding venues were closed to help contain the spread of the virus? What about those couples who held their wedding ceremonies over Zoom in lieu of an actual venue because of restrictions?  Might any of those weddings and marriages negatively affected by COVID ever see any legal or equitable relief for their losses?

 

It is doubtful that a court would consider any loss of rights or damages when the shutdown forced couples to cut most of the invitees out of the wedding to comply with government orders of public gatherings as a violation of that fundamental right. The right to marry does not mean the right to a lavish wedding with 200+ guests who travel from around the country to celebrate a couple’s nuptials. However, is that right infringed when a couple is forced to postpone after their venue closes from the governmental restrictions?

 

The COVID-19 pandemic is unprecedented.  Out of these circumstances arise issues in constitutional family law. Having a wedding during the pandemic was a hard decision that many couples made, opting to start their life together as they planned, without family there to witness and celebrate the event. But some couples were forced to postpone after venues and vendors cancelled under the restrictions. Have those couples with wedding ceremonies affected by the COVID-19 pandemic been denied their fundamental right to marry?

 

While these couples may have lost the opportunity for a big celebration, the government can never take away their right to marry, regardless of extenuating circumstances such as the COVID-19 pandemic. Family restoration is essential, even in the midst of government restriction.




4.02.2021

"I AM the Resurrection and the Life" and the Restorer of Families

 


The key to family restoration begins with a personal relationship with Jesus Christ. He restores life, and He restores families. These modern miracles are only possible because he has had victory over sin and death with His death for us by crucifixion, and His Resurrection, which many around the globe celebrate as Easter.  This painting by Ron DiCianni captures the very moment of the Resurrection of Jesus Christ.


You can experience this new hope and restoration in your own life, and in your own family. Simply click on Would you like to know God personally? and learn how to begin that personal relationship with God that can restore your life, and your family.  What better time to surrender your life to Christ than during this Holy Weekend?

This Easter be reminded that the Victor over life and death Himself is able, ready and willing to meet you and restore your family.

3.31.2021

An Amicable Divorce: Should a Divorce Attorney Represent Both Spouses?

 This guest post is offered by Allison Strayer, current Regent Family Law and Professional Responsibility student:


Sometimes things just don’t work out. Spouses realize that they are better off as friends—or at least not married—and decide together that they should get a divorce. They can even go as far as creating a list of assets and decide who will take what (cue Rick Logan’s “Who Gets the Family Bible”). Is that enough to retain a single lawyer to represent them both in a no-fault/uncontested divorce? The simple answer is the Model Rules of Professional Responsibility do not disallow it. As long as the lawyer can provide “competent and diligent representation to each affected client,” he or she can represent both parties. But can a lawyer really provide competent and diligent representation to both husband and wife in a divorce proceeding?

Model Rule 1.7 states that a lawyer cannot represent a client when there is a conflict of interest, specifically when the clients are adverse. (1.7(a)(1)). Even if there is no conflict, a lawyer can only represent multiple clients if he believes he can provide “competent and diligent representation to each affected client.” (1.7(b)(3)). Divorcing spouses are considered adverse, even when they desire to file an uncontested divorce and agree on everything. The level of competent and diligent representation cannot be achieved with two clients that are essentially adverse, regardless of their level of amicability.

The adverseness of divorcing spouses is reinforced by case law that holds that couples who sign prenuptial agreements are considered adverse, even though they are getting married. Similar to divorces, “the nature of prenuptial agreements is such that the parties’ interests are fundamentally antagonistic to one another.” Ware v. Ware, 687 S.E.2d 382 (W. Va. 2009). There is no case law disputing this issue in Virginia because the Commonwealth prohibits dual representation in divorces within their Model Rules. It states, “a lawyer can never adequately provide joint representation in certain matters relating to divorce…” Va. Rules of Prof’l. Conduct r. 1.7, cmt. 8 (Va. Bar Ass’n 2021).

Even if other states do not specifically disallow dual representation in divorce proceedings like Virginia, the bottom line is Model Rule 1.3: can a lawyer really be a zealous advocate for both? If there is any disparity during the divorce, the attorney would be nothing more than a mediator, allowing the parties to figure out the solution themselves without any actual zealous representation behind either of them. Virginia Rules of Professional Conduct 2.10-2.11 set guidelines for how a Third Party Neutral (Mediator) will act with both parties compared to a lawyer.

There is one more option. If the parties are truly amicable and desire to save money by not retaining separate counsel, one could retain a lawyer while the other could continue unrepresented. Virginia Rule of Professional Conduct 4.3 allows this and cautions the attorney that he is not to give legal advice to the unrepresented spouse other than the advice to secure his own counsel. Often, it is best to provide a written letter to the unrepresented spouse explaining that the attorney is not his counsel, is instead working in the best interest of the represented spouse, and any communication to this unrepresented spouse will be considered negotiation on behalf of the represented spouse. Despite it being allowed, it is highly discouraged for anyone to be unrepresented in any type of legal procedure, even an “amicable” divorce.

While family restoration may sometimes involve an amicable divorce, legal counsel is always recommended.

3.29.2021

Fostering the Future in Virginia

 


This guest post is offered by Ryan Kotrch, current Regent Family Law student:

Foster families provide a temporary family for a child who needs one, but when that child reaches adulthood the transition is often quite challenging.

In 2016, the Fostering Futures program was created to help the nearly 5,400 children currently in the Virginia Foster Care System with housing support, education/vocation assistance, and independent living needs after they have turned 18 while in foster care and until they turn 21. This time of transition can make all the difference.

To participate in the program the young adult would create a specialized plan with their foster care worker to achieve financial stability since they do not have a stable family they can rely on for help with financial assistance while in college or adjusting to adult life.

Once a plan has been made, the Juvenile and Domestic Relations Court will determine whether to approve the case plan. In doing so, the court shall determine whether remaining in the care and placement responsibility of the local department of social services is in the program participant’s best interests and if the program participant’s case plan is sufficient to achieve the goal of independence (Va. Code. § 16.1-283.3). If approved, it is expected that the program participant will continue to maintain eligibility in the program by executing their plan and continuing to work with their foster care worker. Program participants are then given $500/month to help cover housing, food, clothing, supplies, education, and job training assistance. In 2017 there were about 200 people in the Fostering Future program.

The Fostering Futures program increases the likelihood of a successful transition for young adults who age out of the foster care system – a very helpful piece toward family restoration in Virginia.



3.24.2021

What Parents Should Know about Gender Transitioning

 


As detailed previously in this blog, Abigail Shrier's Irreversible Damage, and Dr. Debra Soh’s The End of Gender are the most comprehensive resources for parents on the issue of gender transitioning.  Effectively summarized in this podcast, parents are highly encouraged to get up to speed on the issues and controversies involved in the current cultural debate over children transitioning from one gender to another.


New concerns surround the delivery of these services to young women and girls through various Planned Parenthood clinics.  To learn more about how the lucrative aspect of child health care in gender transitioning is provided, see Inside Planned Parenthood’s Gender Factory.  A closer picture of one clinic located in a small town of roughly 30,000 revealed that while abortions were the clinic’s “bread and butter … trans identifying kids are cash cows, and they are kept on the hook for the foreseeable future in terms of follow-up appointments, bloodwork, meetings, etc., whereas abortions are (hopefully) a one-and-done situation.”  While abortion is disturbing for anyone who endures it, this trend toward gender transitioning health care should also be particularly alarming to parents of teens struggling with anxiety, depression, or other serious emotional issues which may underlie the desire to gender transition.  The damage done to a child could be devastating as the article details.  


Moreover, ideology may very well be driving these decisions, and parents should be aware of these facts. Furthermore, the current Equality Act largely works to promote these ideologies with the force of law.  See Abigail Schrier's Senate testimony on this concern, particularly regarding women's sports.


Family restoration requires involved and caring parents who are informed enough to protect their children's medical treatments.

3.22.2021

ART and the Military


This guest post is from Mary Claire Taylor, Regent Family Law student:

One of the newest fields of family law revolves around artificial reproductive technology (ART), a method to help build families. Lawyers, clients, and courts are being forced to address controversial questions that meddle with rights of parents, marital property, and even contract law. A prominent arena where this is being played out is within the United States Military. Recently, the Army and Air Force created cause for celebration for sisters-in-arms with a change in dress and appearance standards – a new era of pony tails, earrings, and lipstick. After addressing the appearance of female members, will the military be able to address a female’s reproductive nature as well?

ART is being used more frequently than ever before to help women who struggle to conceive. Generally, ART encompasses different procedures with the end goal being to help give an infertile woman a child by joining an egg and sperm together. The military, through TRICARE regulations, uses the term Assisted Reproductive Services. By that definition, TRICARE will cover diagnostic services for infertility. However, TRICARE will not cover the technological processes that help a woman conceive, unless infertility was caused by an illness or injury while on active duty, which can be difficult to prove a direct causation. Even with that small exception, full coverage is not guaranteed. However, TRICARE does cover male and female sterilizations.

To cover or not to cover? The debate against TRICARE covering ART creates controversy. Economically, if the military considers ART to be an elective procedure, then there is opposition to using tax dollars to pay for unnecessary medical procedures. Morally, objectors to ART do not want frozen embryos to be destroyed – a possibility for those undergoing In Vitro Fertilization (IVF) where an egg is fertilized outside the woman’s body. Additionally, if a couple uses IVF and later divorce, it may not be clear how the leftover embryos are treated – are they subject to marital property or contract law or both? Another moral objection may come from those who oppose same-sex couples to use ART procedures when conception cannot happen naturally.

Women who need ART to conceive, however, are left to face costly procedures. The average cost of an IVF cycle – the most common form of ART – is $23,000. The reality is that most couples need multiple cycles bringing the cost close to $50,000. TRICARE and money aside, the climate of the military has not yet gotten up to speed with how to approach this medical and emotional endeavor. Misunderstandings compound an already challenging procedure for women.

Infertility is not easily diagnosed, and there are many factors which contribute such as age, stress, and hormone imbalances. Private issues of family planning may become public and uncomfortable. A member may have to explain to superiors the reasons for requesting leave or coming in late, but not actually know “why” she is having infertility problems. Women have started to speak up about how the military can make an already difficult treatment feel impossible. High stress jobs, maintaining weight and fitness standards while using fertility medication, involving Chain of Command in an emotional process, having to use leave in order to attend treatments, and as discussed above, the high cost of treatments. Not only do these factors impede infertility treatment, but they also can contribute to infertility.

Finally, the regulations within each branch are likely not up-to-date on addressing ART. Specifically, the Air Force Instructions (AFIs) address pregnancy and post-partum. These include exceptions to maintaining weight and fitness standards, getting temporary job assignments for safety measures, and physical training (PT) exemptions.

The Air Force is just now getting used to females wearing ponytails in uniform. It may be a while until the service branches are ready to fully address reproductive issues for women to help them build their families.  

3.16.2021

The Sufficiency of God’s Grace for Families of Divorcing or Divorced Parents

 This guest post is offered by Regent Law student Terima Clark:

 Just Imagine 

Imagine a family where the father works hard to cover the needs and desires of the family. He picks the children up from school most days and spends quality time talking to and listening to the children. Imagine a mother who is supported, encouraged, and celebrated in her educational and career pursuits by the father. Imagine a great friendship and bond between the two. Picture the camaraderie that the mother and father have as they work together to counsel, support, and encourage even the adult children— they’re a team.  Picture the image of a father coming into the family home, daily, giving hugs to the mother as a show of encouragement. He asks her about her day as the pair engage before he does the same with the children. Imagine family vacations once a year, exploring the world or just taking local excursions during the summer—something like roasting smores while having a family-day at the beach.  Imagine the father purchasing a newly built home for the mother because it has always been her dream to move into a brand-new house, all her own, where she holds the deed.  Imagine a mother who does laundry for the father to show appreciation for how hard he works to provide for and to give generously to his family. Imagine family birthday celebrations and holidays always spent together.  Can you see it?  Can you imagine a mother who covers the father and children in prayer each day and asks for strength so that she may always be available to comfort and support the father if he ever faces an illness or a traumatic life event?  Envision a father who provides for the mother in the event of his death by designating her as the beneficiary on his employer life insurance policy and retirement accounts. Imagine a mother who is appreciated and acknowledged by the father for how she cares for the children and grandchildren. Consider a family where the mother’s role allows the father to go into the world each day and be the best version of himself because of what she contributes to his life and to the family. Then imagine that he does the same for her. Imagine two authentic but flawed human beings showing honor, respect, and kindness toward the personhood of the other although they failed in their marriage and hurt each other deeply. Imagine that this couple has been separated for nearly six years and divorced for almost three. This is my divorce experience, but it’s not the complete experience.

          The pain and healing associated with the betrayal and brokenness that’s caused by disrespect, dishonor and infidelity is very real.  Consider the torment of wife’s imagination and the frustration of a husband who feels dishonored and disrespected during a marriage. Imagine the dissolution and heartbreak of the wife feeling that husband and God have let her down by allowing all of this. Imagine the husband’s regrets. Imagine the feelings of unforgiveness and loneliness carried by husband and wife though they push through those feelings each day to love. Imagine them not letting their “feelings” dictate their actions and or rule over their experience. Imagine them not having any examples of divorce on either side of their families as far back as their great-great-grandparents and them being the “trailblazers” in both their families for such a shameful outcome. Imagine the shame of being divorced.  Imagine having had to forgive seventy times seven. This is my experience.

Try NOT to imagine the pain of healing from such a traumatic tearing away. It may seem an insurmountable grief—but God. With God all things are possible. I’ve learned that He will bear the weight of our grief and bring healing. He will show us ourselves and areas where we needed correction and healing before we even met our spouses. He will show us how we had made an idol out of our marriage and spouses. He will lead us into an intimate relationship with Him and help us to strengthen our relationship with Him. He will draw us close to His bosom that we may know Him.  He will give us peace and joy, help us to walk in forgiveness, and help us to grow in patience. He will lead us in a commitment to forgive. He will make a way for us to make the best of a bad situation and allow us to provide a stable and loving family that our children and grandchildren can count on. As we trust Him to hear our prayers, He will accept our daily invitation to engage with our families and on their behalf throughout each day. Imagine a wife’s testimony of overcoming with the help of the Lord even through a divorce. Imagine the hand of God over her family through all of it.  Imagine her starting law school while separated and her former spouse being one of her biggest supporters, if not the biggest. Imagine her father passing away in her 1L year and her former spouse never leaving her side and providing a much-needed respite after the funeral. Imagine them both having a conviction to not ever expose their family to any extra-familial romantic relationships that aren’t leading to marriage. Imagine the incidental benefit of the mother being able to show her teenaged and adult daughter what it looks like to walk in purity with integrity and honor before the Lord as a single woman—though she has a loving and even sometimes affectionate relationship with their father.  Imagine her trusting God each day to keep her family strong and united and loving each other even through the breakdown of the romantic part of her marriage relationship into an essentially “non-relationship”, legally.

Marriage covenants can surely be broken, and there are legal ramifications to dissolving a marriage in this world, but, I believe, under God’s amazing grace, it is possible for a divorced couple, that has not remarried, to honor their commitment to their family and each other in a non-marriage relationship and without the benefit of a sexual or romantic element, as long as God allows it. I believe that, under grace, God’s provision for, and endorsement of, a marriage transcends what the world can dictate by adjudication.  This would be my philosophy as a Christian attorney faced with counseling a Christian couple who is considering divorce.

So, the questions for me become; “Is God’s grace sufficient to allow this mother and father to remain faithful to their friendship and family in spite of a civil divorce, even until death, AND “What authority does a civil certificate have over a spiritual covenant that includes God?”

 

Navigating in the Natural World

Behold, I send you forth as sheep in the midst of wolves: be ye therefore wise as serpents, and harmless as doves. ---Matthew 10:16 King James

 

Christians have to be able to survive in this world and wisdom requires foresight.  ENTER NEW SPOUSE or romantic relationship— and everything changes.  How far does this commitment to family and this quasi – marital arrangement go when a new love interest is introduced into the equation? As lawyers, we must certainly anticipate and counsel our clients about the legal consequences of what could happen in this case, but as Christians, I believe we should never lose sight that God’s ways are higher than our ways and His thoughts higher than ours.  I guess I’m saying that, in the Kingdom of God, a marriage can survive a civil divorce and, as an attorney, I will counsel TO that possibility in many circumstances because of my own experiences. I will continue to look at marriage through the lens of hope and faith where my clients are concerned, but I will also prepare them for the reality of living in this fallen world and how to best navigate and come to terms with their current circumstances, through forgiveness and faith and also by giving the Lord authority over their emotions and mouths. It is working for me, so I believe it’s my duty as a Christian and as an attorney to, at least, share this strategy with my clients!

My whole life story is extraordinary, so the way my a-typical, post-divorce relationship is panning out falls right in line with my crazy blessed life.  I don’t always understand what God is doing in my life, but I trust Him with it, and I take one day at a time forgiving myself for the part I played in my failed marriage and also forgiving my former spouse his transgressions. It’s not always easy to do, but it’s worth it. I am seeing the fruits of forgiveness, faith, and discipline manifest in my life and it is just amazing.

Unfortunately, for many professing Christians, the notions of forgiveness, faith, and exercising discipline over hurt and offended emotions feel like foreign concepts. In other words, it’s nice to read about when Jesus is doing it, but, when it’s time to apply what we know, it feels foreign to our flesh, uneasy, as if it’s the wrong thing to do. But, like we have learned in law school, it’s not all about knowing the facts or, in this case, the truth, it’s about APPLICATION.  The flesh is rarely, if ever, going to go along with forgiveness, or faith, or discipline over our emotions. That’s just the nature of our flesh and it is contrary to what Jesus teaches, which is best for us. We KNOW better, so, as Christians, we must DO better. Proverbs 3:21 defines wisdom as knowing and doing. Now that I know better, I do better.  I hope to continue to use wisdom in life and in law as a Christian attorney.