Wednesday, May 29, 2013

Cohabitation Provisions Do Not Make Sense

The piecemeal, state-by-state nature of same-sex marriage often causes problems. The Associated Press describes one such problem succinctly:

A judge has ruled that a North Texas lesbian couple can't live together because of a morality clause in one of the women's divorce papers. The clause is common in divorce cases in Texas and other states. It prevents a divorced parent from having a romantic partner spend the night while children are in the home. If the couple marries, they can get out from under the legal provision — but that is not an option for gay couples in Texas, where such marriages aren't recognized.

I often see cohabitation provisions in custody orders, but they are less common than they used to be. The rationale behind cohabitation provisions is to protect children from their parent being distracted by a new lover, or from a succession of sketchy characters drifting in and out of their lives. Nevertheless, I believe that cohabitation provisions are poor tools. It would make more sense to evaluate mommy or daddy's new friend based upon his or her particular character. Cohabitation provisions are blanket restrictions on a parent's right of association without discerning the good from the bad.

Apparently, this county's local rules include a "standard" divorce order that includes a cohabitation provision. Is that order mandatory, or is it just a suggested example? If the cohabitation provision is not actually mandatory, did the mother have counsel at the time of the divorce? Did the mother's counsel try to strike the provision? If the provision is mandatory, would it have been possible to file the divorce in a different county? The best practice for lawyers might be to look at example orders with a critical eye, rather than unthinkingly copying them.

Going forward, I wonder if this mother could file a motion to modify the order to strike the cohabitation provision.

This cohabitation provision adversely impacts same-sex couples in Texas. It is true, as the judge and the father's attorney disingenously point out, that the provision is gender-neutral. However, in Texas, cohabitating opposite-sex couples can comply with the cohabitation provision by getting married. Same-sex couples cannot get married in Texas, nor will Texas recognize their out-of-state marriage. Same-sex couples are left without a remedy that opposite-sex couples have.

The tragedy in this case is that, by enforcing the cohabitation provision, the judge is creating a certainty of harm to the children by disrupting their home.

Thursday, May 23, 2013

What is Equality? Part 1

Attorneys see some fact situations with predictable regularity. What seems to be a novelty to the general public is, to us, an old, familiar song.

The New York Times reports that, in Florida, an eighteen-year-old girl is being prosecuted for a sexual relationship with a fourteen-year-old girl. In many ways, this story is unfolding just like any opposite-sex statutory rape case.

When interviewed by the police, Kaitlyn, the eighteen-year-old, allegedly admitted to the sexual encounters. As a criminal defense attorney, I always marvel, why do people talk to the police? Why do they admit to the essence of the crime?

Kaitlyn also stated that “she did not think about it [being wrong] because” the girl “acted older.” How many times have we heard older men utter those same words when caught with underage girls?

The state attorney has offered a plea bargain under which Kaitlyn would avoid jail time, and, more important, avoid sex offender registration. Kaitlyn's parents are against taking the plea bargain, but I hope that they will reconsider. If Kaitlyn has already admitted to the sex, then she has no defense to present at trial. Avoiding sex offender registration is a huge consideration. Most criminal defendants would snap up such a plea bargain immediately; unfortunately, they seem to be offered rarely.

Kaitlyn's parents criticize Kaitlyn's prosecution because, they say, she is being prosecuted solely because it is a same-sex relationship. I take that to mean that they are alleging selective prosecution: that a neutral law is being applied in a discriminatory fashion. Discussing the difficulties of such a challenge are beyond the scope of a simple blog post. More important, I doubt that they could factually prove selective prosecution. In my experience, prosecutors are just as eager to prosecute opposite-sex statutory rape cases, if not actually moreso.

One could argue for a change to the Florida law on the age of consent. I hope that any change would be gender-neutral. However, that change will not come (and should not come) from a trial-court judge.

Gays and lesbians are fighting for equality, and this is not a case that implicates equality. Equality means that, if something is illegal when straight people do it, then it is likewise illegal when gay people do it. If Kaitlyn were Kyle instead, an eighteen-year-old boy who had sex with a fourteen-year-old girl, then that situation would still be illegal under Florida law.

The problem with equality, however, is that there never seems to be enough of it to go around. Often, it seems that gays and lesbians are treated equally by the majority when there is punishment to be meted out, such as here. But when there are benefits to be conferred, gays and lesbians do not get in on equality there. Florida is a perfect example: It does not treat gays and lesbians equally when issuing marriage licenses, or adoption decrees.

I look forward to a day when the State of Florida treats its gay and lesbian citizens equally in every respect.