How are children represented in courts in Oregon

Conduct of lawyers in the event of contentious parental custody


Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough. [Abraham Lincoln, Attorney and 16th President of the United States (1860-65), Notes for a Law Lecture, July 1, 1850]

Parental care is primarily a question of parental responsibility and love, rather than a question of justice. Most parents are willing to do far more for their children than what can be regulated by law, even after a separation or divorce. The legislature can only enact minimum requirements with regard to parental responsibility, to which the child then has a legal claim and which the state community ensures compliance with, according to Article 6 of the Basic Law. Consequently, in disputes about the care and upbringing of a child, a "Child's advocate"In cooperation with the court, both parents are obliged to continue to meet their joint parental responsibility. In individual cases, it may certainly be necessary to relieve one parent, or even both, of parental custody and contact due to child welfare endangerment (§1666 BGB) to be excluded (temporarily) with the child, although this route should be used very restrictively and usually requires a very difficult consideration.

Unfortunately, what we have described so far often does not correspond to what we experience as reality. This is certainly also largely due to the fact that we usually do not learn anything about the many cases in which parents solve their problems in raising and caring for their children together, even after a separation or divorce, and thus continue to fulfill their joint parenting responsibility. If you can't solve this problem yourself, you can choose one of the many public, nonprofit, or private ones Advice offers take advantage of. Going to the lawyer and court is then usually the wrong way, especially since lawyers and family judges have no educational / psychological training if they have not trained themselves accordingly. Such an interdisciplinary qualification is even for Specialist lawyers for family law (pdf file) are not required and family judges only need to have general qualifications for judicial office and be at least in the second year of their appointment (on probation), cf. for example Stefan Heilmann, Kindliches Zeitempfinden (1998), p. 12ff, who deals with this has dealt extensively with a very lamentable shortcoming. Going to a lawyer and court is only absolutely inevitable when it comes to a divorce. Then there are always questions of property law, such as profit, pension adjustment, etc. to be resolved, which, however, quite unlike parental care and handling, are entirely within the framework of the normal legal system. (The fact that this does not apply to child law, as part of family law, seems to be one reason for the comparatively low ranking of family law on the legal popularity scale. Another reason is certainly also that the workload on custody / access rights issues is usually high , the "Amount in dispute"On the other hand, low compared to most property disputes.)

In the case of an amicable divorce, that is also possible, possibly after a previous one Mediation, or another alternative conflict resolution, how they z. B. is already practiced in Canada and the USA (we will report on this later), a single lawyer would be enough to go to court. The problems we are talking about here arise when both parents are represented by a lawyer and parental custody is also disputed. This dispute was practically inevitable until the reform of the child rights law in 1998, because the court had to decide on parental custody in every case, even after it became possible to maintain joint custody. Little use was made of this, however. It was only after the reform of 1998, with which a decision on parental custody can only be decided upon application, that common custody increased considerably. However, the dispute has shifted to the right of access. Although it is no longer absolutely necessary for the court to decide who is the "better parent" to whom custody is granted, and who, as the "loser", has to be content with the right of access, it is still a matter of deciding on the right of access. To make an agreement between the parents, as long as they do not share the child's stay in roughly equal proportions. This changeover model, which, however, often does not require comparable childcare options, but can certainly also cause other problems for the child, is still largely opposed to it in Germany, while in France, since the reform of 2002, it has even been against the will of a parent can be ordered if this corresponds best to the best interests of the child, and it has been very widespread in the USA for many years (joint physical custody, in addition to joint legal custody).

It is therefore not too surprising that after the German child law form from 1998, common custody is retained more often, but the dispute shifts with undiminished severity to the law of access. Of course, this applies all the more to the increasing number of illegitimate parents, with whom fathers, quite uniquely, are known to still not even be able to sue for custody in Germany, but only from the mother, whose "natural right" it is, since 1998 participation to be able to get custody granted.

The role of lawyers was not changed by the child law reform, except perhaps the introduction of a "child's lawyer". This does not have to be a lawyer, according to the legal text, §50 FGG, he is also called a nurse and his appointment should even do not take place if the interests of the child are adequately represented by a lawyer or another suitable party to the proceedings. (Section 50 FGG, Paragraph 3). In practice this still means that it is assumed that the child’s interests, aside from the youth welfare office, are automatically involved in the proceedings (Section 49a FGG), and that this is mainly represented by the lawyer of the parent or the resident. current custodian. Unfortunately, these assumptions do not apply, and probably mostly, if there is a heated argument between the parents about custody or access rights. Not because the parents expect their lawyers to enforce their point of view energetically, as in the case of purely factual decisions, even though it is becoming increasingly clear that purely factual issues can often be resolved much better through arbitration proceedings. In many cases, they are already provided on a private law basis (e.g. in the case of crafts, doctors, etc.), or even prescribed as an attempted atonement in private lawsuits according to §380 StPO. Only in the case of parent and child law has this not been considered necessary in Germany so far, even if, in addition to the previous reference to the advice options provided by the youth welfare office and independent institutions, the child law reform of 1998 also allows the court to mediate in contact disputes upon request (§ 52a FGG). Unfortunately, we do not know how often and how successfully this option is used. In any case, the very provision in this law that the court can refuse this mediation, if a mediation procedure or a subsequent out-of-court consultation has already been unsuccessful, at least assume that this offer, especially by the "owner" of the child, can be torpedoed just as easily as the counseling offers of the youth welfare office and other agencies. Even the few, extremely hesitant attempts in Germany with court-related, but still purely voluntary mediation (Regensburg model) have shown that even parents do not, as is often the case, on the long-standing extensive experience abroad who were initially negative or at least skeptical of this mediation, found it predominantly positive.

It is therefore not at all surprising that even after the reform of the child law reform and the new opportunities it has created, the dispute over the child can just as cheerfully go on and the interests of the child, most often but vaguely described with the term child welfare, completely outside stay ahead. Unfortunately, it cannot be denied that some lawyers play a very inglorious role in this and continue to live up to their previous bad reputation as "warmongers", the custody or contact procedures only escalate costly. There are still enough proceedings in which not only demands that are detrimental to the child's welfare are raised, but also the worst possible accusations, including the "ultimate weapon" of sexual abuse allegations, are brought into the proceedings, which are then almost always not confirmed to let. As a result, proceedings are not infrequently carried out until they are "dealt with", from a purely legal point of view, when the child comes of age. Very vague, so-called virtual allegations, such as Cartright (1993) increasingly observed in connection with allegations of sexual abuse and then described, which certainly applies not only to these, are popular and unfortunately mostly successful in escalating and extending proceedings. A very simple, but not ineffective, possibility of containing very serious accusations, which then often turn out to be false, would probably be to require affidavits from clients. The lawyer himself, unlike the court (§12 FGG), is not obliged to conduct his own investigations.

It is at least extremely difficult to imagine that any party involved in the proceedings, apart from parents who actually urgently need psychotherapy (which, however, cannot be ordered by the family court in Germany), will not realize what, usually permanent, damage is being done to the child . Behind this escalation, there are always lawyers as representatives of the "interests" of their clients, although some of them no longer take their real interests into account when they instrumentalize their children in a dispute with their former partner, and not "just" out of injury, to satisfy feelings of revenge, or even just an alleged need for protection for the child, but not infrequently also for the enforcement of purely material interests. Cf. also a critical, but sometimes humorous speech by a judge at the Ontario Superior Court, Mary Lou Benotto, Ethics in Family Law: Is Family Law Advocacy a Contradiction in Terms? (1995).

What Uwe Jopt, in his book, On behalf of the child, Pages 231-235: IF THE FIRE DEPARTMENT EXTINGUISHES WITH OIL: LAWYERS, wrote about it in 1992, unfortunately still fully applies, just like a corresponding article byBurkhard Schade andAnita Schmidt,Position and conduct of lawyers in contentious custody proceedings, FamRZ 1991, Pages 649-652. However, it is very easy to add further, far more unbelievable formulations to the unobjective formulations and unsubstituted statements in legal documents cited there. (Perhaps we should bring an up-to-date collection of such quotes to make this problem even clearer.) Of course, there are "black sheep" not only among lawyers, but, as usual in life, occasionally among the crowd of those who practice their profession want to exercise to the best of their ability and are rightly proud of their work. In child-related matters, this applies in the same way to other parties involved in the proceedings, such as experts, youth welfare offices and judges, about whom we have often reported, unfortunately mostly only about problematic proceedings, because we naturally rarely find out anything about those that are carried out without any problems.

A very hopeful and gratifying exception are the reports on the so-called "Cochem practice", which is now known nationwide. It shows that even strictly within the framework of the existing child law, with all its deficits, the family court can still intervene effectively. It alone has the power to exert more or less gentle pressure on the parents to fulfill their ongoing parenting responsibility. However, this only works if all professional separation / divorce facilitators jointly proceed from the interests of the child instead of the contrary of the parents, and parents must also expect that any threatened sanctions by the court would actually take place if necessary. The parents are thus faced with a unified front and are therefore forced to come to an agreement in the interests of the child's best interests. That is exactly the starting point of the "Cochem practice", which works with really resounding success. It is very worthwhile to have a look at the statements of the individual professions involved in the separation / divorce on the website of the Cochem working group. In particular, attorney Bernhard Theisen shows that the procedure in the "Cochem model" also has practical advantages for attorneys, because the workload for a less lucrative activity compared to property law questions is reduced anyway. However, this statement alone already shows (those of the other professions are similarly informative) that the functioning of this model requires a very good interaction of all professions involved, and this under the leadership of the court. However, these findings are not new, and not even in Germany. (On the necessity of such close cooperation, especially in highly controversial cases, cf. e.g. Johnston & Roseby, In the Name of the Child. A Developmental Approach to Understanding and Helping Children of Conflicted and Violent Divorce, The Free Press, New York (1997). Cape. 8 deals specifically with the handling of PAS, where Ward & Harvey in "Family Wars - the Alienation of Children" [as a German translation], ZfJ 6/1998, very clearly emphasize the need for such coordination.).
The quote from the work by Schade & Schmidt: “In any case, a corresponding change in the fee schedule for lawyers is essential in order to avoid financial losses when lawyers endeavor to reach an understanding between parents in custody proceedings. Finally, a clear establishment of the cooperation between the lawyers, the expert and the counseling center is necessary Youth Welfare Office. The "Stuttgart Model" formulated as early as 1981 is based on similar considerations. ", confirms not only this thesis, but also what the judge involved in the "Cochem model", Jürgen Rudolph, recently emphasized (3sat, 13.12.2004, Kulturzeit), namely that this way of working would be possible everywhere and within the framework of the existing legal situation, will be but only enforce nationwide if there are corresponding legal regulations that prescribe this procedure. Unfortunately, they are not in sight.

To this end, we have looked at the latest version of the professional code of conduct (BORA), which is binding for lawyers, from November 1, 2004. According to §6 n. F. of the Teledienstegesetz (TDG) lawyers must point out that they work in accordance with these professional regulations, the Federal Lawyers' Act (BRAO) and the Federal Lawyers' Fees (BRAGO), or the new Lawyers' Remuneration Act -RVG- of 5.5.2004. In addition to the already mentioned specialist lawyer regulations, there are also professional rules for lawyers in the European Community. All regulations can be viewed on the website of the Federal Bar Association. We have so far looked in vain in Germany for a special professional code for lawyers working in child law, which would have to deal with special obligations oriented towards the long-term welfare of the child, instead of unilateral representation of the interests or expectations of the parent who commissioned the child, including the voluntary representation of the interests of many lawyers, the German Lawyers' Association.

On the other hand, we found what we were looking for long before that, again alone abroad. In particular, at the American Bar Association (ABA), which, as the largest voluntary bar association with over 400,000 members, could be seen as the counterpart of the German Bar Association, you can find an almost endless wealth of activities and information on the subject of professional, ethical behavior by lawyers, including the disciplinary measures, without which the most beautiful appeals, of course, are of no use to the "black sheep". Of course, this also includes precise instructions for the clients, as legal laypersons, how they can effectively bring forward complaints and how the entire process remains transparent. Obviously, decades ago it was recognized very clearly that this not only protects consumers, but also the vast majority of members of their own profession who conscientiously pursue their work and can rightly claim to be proud of it. Those in the working groups (in Center for Professional Responsibility) the ABA The guidelines developed are not legally binding, but are largely adopted by the statutory bar associations and the supreme courts of the individual states, which are responsible for disciplinary measures. These professional duties and the corresponding disciplinary measures apply, like the corresponding provisions in Germany, in general, to all areas of law.

But there are also special guidelines for family law, especially for dealing with underage children. This also deals with the, albeit much smaller, American Academy of Matrimonial Lawyers with very interesting, top-class contributions. Special rules of conduct for lawyers working in family law, in addition to the generally binding professional regulations, as issued by the individual legal chambers of lawyers, mostly based on the guidelines developed by the ABA, can be found e.g. B. commented in great detail in BOUNDS OF ADVOCACY, American Academy of Matrimonial Lawyers Standards of Conduct, or with the Los Angeles County Bar Association asProfessionalism Guidelines for Family Law Practitioners (1996).Also the report commissioned by the Chief Judge of New York and still widely quotedReport of the Committee on the Profession and the Courts(1995, 88 pages) deals with the reputation of attorneys and the requirements for an activity in family law.
There is also an extensive one from Great Britain Code of Practice for lawyers working in family law.

We will certainly soon quote further (exemplary) from the abundance of information available here and elsewhere, including the statutes of individual American states (see e.g. the overview of Professionalism Codes) and other states. But of course we are primarily interested in the situation in Germany and how it could possibly be improved after a look abroad, for example. So far, at least, there isn't too much to report on this. Of course, the German Professional Code (BORA) and the Federal Lawyers' Act (BRAGO) describe not only obligations towards the profession and its professional representation, but also the obligations of lawyers towards clients and appeals to their ethical behavior, including here particularly relevant :.

 ,to protect his clients from legal losses, to support them in shaping the law, avoiding conflicts and mediating disputes, to protect them from wrong decisions by courts and authorities and to secure them against unconstitutional interference and state transgression of power. " (BORA, § 1, Paragraph 3)

and  “The lawyer must not behave in an unobjective manner in the exercise of his profession. Behavior that is consciously disseminating untruths or disparaging statements that other parties or the course of the proceedings has not given rise to is particularly irrelevant. "(BRAO, §43a, Paragraph 3)

Obviously, however, these two provisions are not sufficient to effectively combat the abuses described above, especially in custody or access law proceedings, especially since most mandates, as lay people, do not even know that there are also opportunities for them to complain against the behavior of lawyers, and Lawyers are required by the professional code not to express themselves about colleagues, cf. § 25 BORA [complaints to colleagues]  "If a lawyer wants to point out to another lawyer that he is violating professional duties, this may only be done in confidence, unless the interests of the client or his own interests require a reaction in another way."

In the Federal Lawyers' Act (BRAO) the function of Lawyers' Disciplinary Court detailed, and what sanctions it can impose in the event of violations of the professional code: warning, reprimand, fine, partial prohibition of activity, exclusion from the legal profession (§114 BRAO).

Quite different from the USA, for example, where detailed official information and even its own, e.g. For example, if there are complaint forms and instructions for affected clients that can be accessed on the Internet, we cannot find any of them. In our experience, the complainant does not find out from us in detail which measures have been taken, nor is he involved in the proceedings. Rather, the complainant is initially only informed that his complaint has been forwarded to the lawyer concerned for comment. It is then checked by the responsible department of the Chamber Board and, if it has been at least partially approved, you receive a rather succinct message, such as,"The measures required by law have been taken", or sometimes in more detail:

“The measures required under professional law have been taken. Unfortunately, we cannot provide you with any further information, in particular about the nature of the treatment and the content of the measures taken, because there is no legal basis for such disclosures.

The supervisory procedure at hand was initiated on the basis of your submission. However, you are not a "party" within the meaning of the administrative procedure.

The general obligation of confidentiality of §76 BRAO [our note: relates solely to the confidentiality obligation of the chamber board members about their activities] and the Data Protection Act (cf. also the "census ruling" of the Federal Constitutional Court of December 15, 1983) prohibit the board of the XX Bar Association from passing on details of the supervisory procedure to you.

We ask you to understand this. "

Nevertheless, such complaints are worthwhile, of course only if they are fully justified. We would like to expressly encourage this. In this way, at least temporarily, you usually achieve noticeable restraint on the part of the (opposing) lawyer. Indeed"Take off your robe as quickly as possible", as a nationally very respected lawyer spontaneously escaped (but then immediately apologized for this "unprofessional" statement) when he saw a comparatively harmless pleading, in a case known to us the lawyer in question was not, although one and the same complainant in the course In a few years he had successfully enforced three complaints against this "judicial authority" (§1 BRAO) (and finally also filed criminal charges).

Completely different from ours in the US, one sees the requirements for the transparency of complaint procedures and disciplinary measures against lawyers, again based on their own interests, such as the American Bar Association (ABA), not least because of the well-understood self-interest of the overwhelming majority of their members. This is z. B. presented in great detail in the report Lawyer Regulation for A New Century. Report of the Commission on Evaluation of Disciplinary Enforcement (1989-1992). See in particular the chapterl INCREASING PUBLIC CONFIDENCE IN THE DISCIPLINARY SYSTEM.Here is a translation of the introduction:

 The Commission believes that secrecy in disciplinary proceedings remains the single largest source of public suspicion in the disciplinary systems of lawyers. The public's expectation of government, and in particular legal processes, is that they are open to the public, publicly documented, and that the public and the press are able to freely comment on these processes. The public does not accept the profession's claim that the reputation of lawyers is so fragile that it must be protected from false accusations through secret trials. The irony that lawyers are protected by secret processes while making their income in an open justice system has not escaped the public eye. On the contrary, it is a source of great aversion to the profession.

 However, as early as 1992, according to this report, disciplinary proceedings were public in more than half of the states as soon as a preliminary examination revealed that there was reasonable suspicion of misconduct on the part of the lawyer, and not only after a conviction by the highest court of the respective state. In Oregon, for 15 years, they had had good experience with a completely open disciplinary process from the moment the complaint was received. The proposals for disciplinary proceedings were further developed by the American Bar Association, cf. Model Rules for Lawyer Disciplinary Enforcement (2002). The disciplinary procedures in the individual states still differ in details, cf. Directory of Lawyer Disciplinary Agencies, and are still subject to change. So z. For example, a new ordinance came into force in Texas on January 1, 2005, which is intended to accelerate the handling of unfounded complaints, but the complainant can still object to such a decision of unfoundedness and rejected complaints are also submitted to a voluntary mediation process in order to to achieve a problem solution that is as amicable as possible.
Complainants are informed about the progress of proceedings and are often directly involved, again depending on the state in detail. B. the statement of the lawyer concerned is forwarded to their complaint, they are then asked to make further statements, or are called as witnesses, cf. B. the aforementioned state of Oregon.

Disciplinary measures taken (in some cases even suspended proceedings) are recorded in special databases of the respective judicial districts or states, which can be used to obtain information about a particular lawyer. In order to facilitate access nationwide, the American Bar Association also had, as early as 1968, with the voluntary establishment of a central database,National Lawyer Regulatory Data Bank, which not only enables inquiries about a specific lawyer, but also provides statistics (see ABA Survey on Lawyer Discipline Systems). With these databases one wants to protect the public, also by trying to prevent the admission of already suspended lawyers elsewhere.

Of course, it is also possible to file a criminal complaint if there is a well-founded reason and there is good evidence. With the ones mentioned above and often usedvirtual allegations However, one will have to wait until the "mistake" is made of raising sufficiently concrete false accusations. Furthermore, it should be noted that according to the German criminal law false suspicion (§164 StGB) and also defamation (§187 StGB) require the very difficult proof that the allegations "against better judgment" and, on the other hand, insults (§§ 185-187 StGB) are complaint offenses in which one is likely to be referred to the path of private action (§ 374 StPO). In the case of a private lawsuit, however, the plaintiff (injured party) bears the full cost risk, even for the opposing party (Section 379 of the Code of Criminal Procedure), and the public prosecutor is not obliged to cooperate (Section 377 of the Code of Criminal Procedure). So unfortunately you need time, energy, money and probably a very good lawyer (who must also be prepared to take action against a "colleague") to successfully take action against such allegations if they are not prosecuted by the state. Very high hurdles must also be overcome if the public prosecutor's office should discontinue the proceedings (e.g. according to Section 170 (2) StPO) and after unsuccessful complaints to the public prosecutor's office you want to force a complaint to the higher regional court. Most lawsuit enforcement proceedings fail for formal reasons.
Criminal charges, however, inhibit the disciplinary proceedings before the Bar Association until the criminal proceedings have been concluded or ceased. Even the latter, like the disciplinary complaint, can contribute to a (temporary) calming down of the disputes in the actual proceedings.

We strongly advise against anonymous complaints. You do not bring anything. One should also always keep in mind that excessive personal concern often leads to complaints, which means that even with well-founded complaints, the chances of enforcement are likely to decrease considerably. In this context, one should also appreciate it when one's own lawyer tries with all his might to enforce justified and also essential demands, but nevertheless has a moderating effect on the tone of the dispute.

We will soon continue to report on the topics discussed here.

We would like to thank RA Dr. We would like to thank Peter Koeppel for his constant, stimulating interest in the subject of the "Code of Conduct in Family Law".

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