Domestic Law Standards

First, one must understand that marriage (from a purely legal standpoint) is a "contract." Therefore, divorce is nothing more than dissolving a contract (though I personally believe marriage to be a deeply religious covenant between two people). The interesting thing is that most civil contracts, i.e. business contracts, contemplate an end right from the start, whereas the contract of marriage does not - as well it shouldn't. Therefore, there are many more nuances in dissolving a marital contract - particularly when the psychological and emotional well-being of children are involved.

Within the last few decades, our culture has re-defined "normal" in terms of American family life. Some statistics, show - at least in certain parts of the country - that there are more children in school who live in a non-traditional (i.e. father and mother) home than do a traditional, nuclear, intact family. So, by definition, the paradigm has shifted to "normal" being a single parent home or a blended family. The law, moving at the speed of government, has not kept up with the rapidity by which the needs of those it serves have changed. Again, the Oklahoma Legislature has done a laudable job in the last five years in drafting and implementing legislation that will address the new and changing needs of our culture. But there are still a few are was where our Legislature lags behind.

One area of great consternation is not legislative but judicial, and driven in large part by the core of practicing family law attorneys. Many simply do not know the law ... not just the recent changes, but even the legal staples of procedure that have been in place for decades upon decades to ensure "fairness" and "equity." For instance, the Oklahoma Evidence Code has but one central purpose - to ensure evidence being introduced has a basis and is trustworthy as information. Many times, however, those rules are "relaxed" in domestic cases. I don't know why ... there is no legal authority anywhere that states the rules of evidence are "relaxed" in domestic cases (perhaps in juvenile court), but not domestic cases. Nonetheless, lawyers attempt to take evidentiary shortcuts all the time by introducing evidence that does not meet even the most basic standards of the Oklahoma Evidence Code. More surprising is that when called on the issue, very few members of the bench and bar actually know the correct answer .... actually know the applicable law as to what is admissible and why.

Hearsay seems to be the biggest problem. Hearsay is defined as: 1) An out of court statement (which just means it was not made under oath); that is being offered to prove the truth of the matter therein (i.e. offering a speeding ticket to show someone was speeding as opposed to showing that person was in Texas when he/she received the speeding ticket and, therefore, could not have been in Oklahoma visiting with the child or threatening the other spouse). Surprisingly, many family law practitioners and some judges do not even understand the most basic definition of hearsay. As a result, evidence is entered (and considered by the domestic judge as the sole trier of fact - without 11 other jurors to help him/her) that has no legal basis.

Astonishingly, the result is that when dealing with the most basic right humanity, access to one's child, the evidence ruled upon is often not even caused to be put through the most rudimentary test for reliability - which is the whole purpose of the Evidence Code. Yes, it is trie, that there are many emotions in a domestic case. Yet only by actually following the rules - rules established by the legislature to ensure a "fair" trial and that evidence which is either not relevant, not reliable or more prejudicial then probabative (and enflaming the passions of one jurist as opposed to 12 jurrors makes it even more critical in domestic case) is not considered.

Then, and only then, can we hope to get rulings consistenly in the best interest of the children/families involved in the disputes. Sure, it is presumed by the appellate courts that a judge setting as the sole trier of fact (one without a jury) can dichotomize in his/her head the difference between admissible and inadmissible evidence, but if the law requires its exclusion, why let it in and increase a chance of error that can never really be corrected because often times the standard of review on appeal is "abuse of discretion." In other words, did the trial court "abuse its discretion" in making the finding ... because most domestic cases are fact specific rather than legally based. In short, there is no authority - ANYWHERE - that "relaxes" the evidence code in domestic cases. If the evidence code is not followed - as intended by the legislature - then the domestic judge has an exponentially increased his/her opportunity for error because the genisis on which the decision is being made has not been tested for reliability. All of this will have to do with what I will write more on later -- DOMESTIC LAW REFORM

DVA, VPO...What does it all mean?

Domestic violence has literally become a pandemic in our community, if not our society as a whole. The Victim Protection Order "VPO" process is one tool by which victims may seek relief. However, the victim must always remember: it is only a piece of paper. Unfortunately, it cannot stop bullets, knives or fists. In the past, one could bring a VPO against almost anyone - even a neighbor for a petty dispute that unnecessarily usurped judicial resources desperately needed to deal with serious cases of domestic violence. More recent changes in Oklahoma law require a specific relationship, i.e. married, formerly married, biological parents of the same child, dating, formerly dating, living together, formerly living together, biologically related etc.) before a VPO can be sought. There are a couple of exceptions - one of which is stalking, but it requires more than a single incident and requires a police report.

While the legislative changes are laudable, there are still individuals who seek to use the VPO process to gain tactical advantage in divorce and/or custody proceedings. Domestic judges are left in the precarious position of determining, during a very short hearing and with little concrete evidence, whether the alleged victim is in danger or is a charlatan. When there is actual evidence of domestic abuse, specifically physical violence, judges will grant a VPO - an order requiring the alleged predator to stay away from the victim and not to harass or otherwise interfere with him/her in any way (often times the order will include children - which is why there are some who seek to abuse this legal tool as a means of eliminating an opposing parent's visitation). However, the law allows - indeed specifically provides - a judge the opportunity to require an alleged predator to submit to a Domestic Violence Assessment (DVA) and/or Drug and Alcohol Assessment and report back within a specific time. Regrettably, this option is not used frequently enough - it often seen as more work and clogging the docket. If one is ordered to reappear on a date certain with a DVA, but fails to do so then he/she can be held in "indirect contempt of court" for failure to obey the court's order and thereafter the judge can issue a bench warrant. Once picked up, the insolent individual would then have to post a bond, previously set by the judge when he/she issued the bench warrant, or purge by getting a DVA.

In cases where there is no underlying action, i.e. no pending divorce or paternity proceeding - because in those cases a VPO can be granted and the assigned judge can thereafter manage the action, and in which there is actual evidence of domestic violence, judges should require a DVA and hold those who arrogantly fail to comply in contempt. To do anything less is to turn a predator back out into the community. Even if the predator obeys the VPO - which we all know is not exactly normative in 100% of the cases - unless the predatory behavior is addressed at it's genesis, i.e. getting a DVA and being forced under threat of jail to attend DV training/education, there is an almost complete certainty that the predator will simply turn someone else's daughter or sister into a victim.

The real focus of domestic violence reform needs to be on children - children who are victims have a much higher rate of being adult predators and victims. It is often too late to change in a permanent and meaningful way, the adult predator's conduct. Pains and dysfunctions suffered by that person from childhood through the present are usually the multiple and complex root of their unacceptable conduct. While we should not stop protecting victims or attempting to re-train and educate predators, we must focus significant resources and attention on depriving both victims (who teach, by example, others to be victims) and predators from creating the next generation. Now *THAT* would be a meaningful effort at addressing the domestic violence pandemic insidiously invading our community.

Proper Conduct Orders

Make no mistake, divorce and separations can be horrific events and can create havoc in the minds of our children. As an attorney, I feel it incumbent upon me to do everything within my power to create an environment that is as least painful (though divorce and custody is always painful) as possible. As a judge, I took it even more seriously. Right here in the great state of Oklahoma we seem to accept "proper conduct orders" as standard policy. What that means is a parent cannot have an individual with whom he/she is romantically involved around when the children are visiting during their court-appointed visitations.

I granted those orders when requested during a pending divorce - after all, the parties were still married. But I believed, and stated on the record, that to do so in a paternity matter or post-divorce order was inconsistent with the individual’s First Amendment right of freedom of association. Absent, of course, some showing that the 3rd party was harmful or posed an imminent threat of danger to the children involved. And that did not mean "setting a bad moral example” because in the courtroom, objectivity must reign supreme and the safety of the children paramount. Even if I personally, morally, disagree with a lifestyle choice and would not myself participate in said behavior, it is not the place of the state of Oklahoma, or any other governmental agency/body, to mandate, through judicial fiat, how an individual raises their children. Absent irreparable harm to the child, every parent is permitted to make his/her own mistakes and I challenge you to name just one parent who has not made a mistake – other than the Creator Himself.

As attorneys, as well as jurists on the bench, we must always remember that the law is the law and it was designed to serve the people, not to rule over them with an iron fist, creating fear and loathing. Divorce and custody cases are particularly difficult and are sadly becoming more prevalent and we must remember that the circumstances leading up to our client’s appearing before the court was more than likely very traumatic. It is not our job to make it worse.

Mike

And this is just the beginning

A former judge, a lawyer, a veteran who served in the Middle East in 2003, a devoted husband to my incredible wife, Debra...that's who I am, my friends. Here, you will see some of my commentary on current events as well as legal opinions. You will soon be surprised at just how much needs to be known, but is hidden from the mainstream of Oklahoma.

This will be an exciting ride, so strap in and be prepared.

Life, liberty, the pursuit of justice is what the legal profession is intended to be and that is the model under which I prefer to live out my life.

I look forward to sharing with you many unique insights into the legal profession in Oklahoma, and revealing a few secrets that will either make your skin crawl, or make you jump for joy.

Just to get a taste of a few of my previously published articles, take a look at these:
Sexual Harassment in the New Millennium: Is the Court's Test Effective?
Covenants Not to Compete Could Create Competition in the Courtroom
Will You Marry Me? The Question That Could Make You a Felon