Court Fees

Everyone has equal access to the courts, that is, IF you have money.  I have often been troubled by the fact that many hesitate to use the legal system because they can't afford all the fees and costs associated with it.

For example, imagine a mother who has some concerns about the safety of her children while they have placement with their father.  Maybe the children are returning with bruises.  Maybe the children return starving and dirty.  Maybe the mother has recently learned that the father has been seen doing drugs while his children are there.  The mother may report these things to the police and/or child protective services.  But what if this isn't quite enough for child protective services to step in and do something?

In Washington County, before even being allowed to file a motion to modify placement, the mother would have to request mediation (which has a fee).  After mediation fails, she would be able to file a motion (which has fees) and before even having a hearing the court almost always appoints a guardian ad litem (which requires a $1000 deposit which the party initiating the action pays).  And depending on the case and the guardian ad litem, the parties would likely be ordered to pay additional money for the guardian ad litem.  Then often a home custody study is ordered (which has a substantial fee).

If a fee waiver is approved, the filing fee and part of the mediation fee can be waived.  Even the guardian ad litem deposit can be waived.  But regardless of ability to pay at the end of the case, the parties are typically ordered to pay back guardian ad litem fees and home custody study fees.

Now, imagine that the mother recently separated from an abusive partner who is also the father of her children. Her abusive partner likely did not allow her to work and did not give her access to the money.  She is likely struggling to keep a roof over her and her children's heads.  How would she pay back the court for these fees?

Why does he do that?

I am in the middle of reading the book Why Does He Do That? by Lundy Bancroft. He does an incredible job of explaining the dynamics of domestic violence and attempting to explain why abusive men are abusive.

Chapter 10 is a great chapter title "Abusive Men as Parents." At one point he discusses the mixed messages that society sends mothers who are victims of domestic violence and he said something that really struck me. He talks about how when mothers choose to stay with their abusive partners, child protection officials threaten to take their children away and claim that they are failing to protect their children. But then when a mother leaves her abusive partner and goes to the court regarding custody and physical placement, the court tells her that she can't keep the children away from their father. Washington County goes even further and says that 50/50 placement is in the best interests of the child. So it is not OK to stay and let her children be exposed to the violence but once you leave, you have no choice but to allow your children be exposed to the violence. How does that make any sense?

Charging Conferences

Washington County does things differently than many other counties in Wisconsin.  One difference that I appreciate is charging conferences.  After every arrest related to domestic violence, a charging conference is held (typically within one business day).  At the charging conference, the victim has the chance to meet with the a victim/witness advocate at the DA's office to give their input, tell their story, and know before they leave whether their perpetrator will be charged, given a citation, or warned.

Asking for a petitioner's address in an injunction case

I recently had a discerning experience during a domestic abuse injunction hearing in which I was providing service representation to the petitioner.  After the petitioner took the stand, the Commissioner asked her what her address was.  This was on the record with the respondent sitting in the room.  Fortunately, this client was together enough to respectfully evade a real answer even after the Commissioner pushed her but not all clients will be in a state of mind to do that.

So after I got back to the office and had some time to process it, I pulled out the statutes to see if the statutes prohibit the court from asking for that information beyond the confidential address form that is filed with the clerk and sealed.  813.12(5M) addresses the confidentiality of the petitioner's address in that it can not be on any court orders or the petition but makes no comment about asking for it during the hearing.  I believe the intent of the law was to keep the petitioner's address confidential completely but unfortunately that is not how it is written.  And I spoke with an attorney that represents petitioners in injunction hearings all the time who after reading the statute confirmed that nothing prohibits the court from asking for the petitioner's address.

So I have been trying to think of the best way to educate this commissioner on the importance of keeping a DV victim's address confidential.  If anyone has some thoughts, I would love to hear them.

Limited English Proficient

Click on the title of this post for a link to the letter written by Assistant Attorney General Thomas E. Perez of the U.S. Department of Justice. In this letter Attorney Perez outlines the federal requirements of courts when working with individuals who are limited English proficient.

Although, Milwaukee County does provide court certified interpreters for hearings, I have found that they still have a ways to go. Several Judges have a tendency to hold lengthy conversations off the record and do not provide interpreters for anything that is not on the record. Additionally, our attorneys have encountered gal's who include in their fees, their costs for using an interpreter.

And for some reason lately, court commissioners are asking individuals like me (who are not certified) to interpret when an injunction hearing is going to be adjourned for no service or when the opposing party does not show up even though he/she has been served. Their calendars are booked and they don't want to wait until the court interpreter shows up and there is often a very long wait for the interpreter who has to be in many places at once. But these individuals deserve a qualified, trained interpreter to ensure that they completely understand their case and have access to the courts.

Issues affecting non-English speakers

I attended a hearing with a Spanish-speaking client today (my first client where I have been the translator). We lost unfortunately. Although all of the attorneys that I work with lost in front of this Commissioner this week in cases where we should have won. So I'm not sure what was up this week.

But what I was most frustrated with was the disadvantages non-English speaking clients face in our court system. In addition to the issues associated with having a translator that I spoke about in this post, today the translator didn't keep up with the translation and left out pieces, sometimes critical pieces, when translating into English. Usually this is a very good translator so it surprised me a bit. But then I realized that the Commissioner was fluent in Spanish so for the purpose of today's hearing, it really didn't matter how much the translator translated. But as we discussed the de novo review process with our client afterwards, I realized that the transcript of today's hearing would not very accurately reflect what the petitioner and respondent had actually said, which could be a huge hindrance to a fair de novo review.

Meshing cultural beliefs and traditions with the legal system

December 8, 2009 the Milwaukee Journal Sentinel published an article titled "Man found guilty in spousal rape case." This article discussed a case where a Hmong man kidnapped, raped, and then forced a 12 year old to marry him with the permission of the girl's parents.

Here is the Milwaukee Journal Sentinel article

Richard Wanglue writes an article defending Hmong tradition and asking courts to try and understand the Hmong culture.

One Hmong's perspective

Mr. Wanglue brings up a good point about how culture plays an important role in the actions of people and as a country of immigrants we should be open to many different perspectives. And honestly, he may have a very good case in regard to the dowry money asked of the groom's family. But I feel that he misses the importance of also following state and federal laws. And in the case of forcing a 12 year old to have sex and keeping her against her will, it is a very clear violation of state and federal laws.

So although I really don't think the courts lacked an understanding of the Hmong culture in making this decision, I do think it is important we don't forget that perspectives can be very different in different cultures.

Supreme Court Takes Texting Case

Click on the title of this post to read the story in the New York Times, "Supreme Court Takes Texting Case" that deals with privacy in regard to work provided electronic devices. It will be interesting to see how the Supreme Court rules. And I predict that as a result we will see clearer technology use policies in many companies.