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In a recent appeals court decision in Minnesota, the Court decided that the State’s telephone stalking statute was unconstitutional, because it was “facially overbroad”, i.e. because in addition to penalizing conduct which could appropriately be labelled as criminal, it could be read as also penalizing 1st Amendment free speech, protected by the U.S. Constitution.

The particular case before the Minnesota Court involved a parent yelling and cursing or being threatening, during telephone calls and voicemail messages for child protection workers and other county employees.

The First Amendment issues are of course important – they are relevant also regarding what kinds of things you can post online about businesses or other people, but the issue I wanted to raise here is the importance of not reacting immediately to emotions in a family law case.

It’s a fairly old adage, to not react when you’re angry or upset, and that can be important in a family law case. There can be serious consequences – family law no-contact orders, domestic violence injunctions; sanctions and attorneys’ fees orders if conduct causes extra litigation; criminal prosecution; and conduct a Judge can consider when making decisions about child custody. Conduct a Judge looks at as “bad behavior” can affect his or her view of a party, and potentially affect how the Judge sees the person for all issues in a case – Judges have a wide range of discretion for many issues in a family law case.

It is important for there to be consequences and remedies for stalking, violence or abusive behavior; and there is also a range of actions which fall below this criminal or domestic violence threshold which it is important to address as well. Not necessarily by thinking of ways to penalize the conduct, but rather by looking at approaches for handling family law cases which can help to decrease conflict between parents or spouse, or at least not make it worse. Often it is the parties in litigation that are driving the dispute, but it is not uncommon for attorneys in a litigated divorce to be driving more of the conflict than the parties; and in my opinion there are many situations where clients, if offered options to avoid litigation, rather than encouraged to go that route, would choose alternatives.

In these blog posts and when I talk with clients, I discuss alternatives to litigation such as mediation, co-mediation and collaborative divorce. I believe for most cases those are better options, but an attorney has an ethical obligation to discuss the alternatives with a client, and the advantages, disadvantages, risks and potential benefits of each – both litigation and alternative options for dispute resolution.

When parties choose an alternative dispute resolution process like Collaborative Divorce, often not reacting immediately based solely on your emotions remains important, for both the spouses or parents, and also the professionals involved. In the heat of the moments clients, and also the professionals on the team, can react out of anger or irritation, make comments in a way that indicates that the other person is at fault; and often this results in a corresponding, similar response from the other person. Interpersonal psychologists or family therapists talk about relationships and interactions as being a recursive process, with each person’s actions affecting the other. From a more common-sense perspective, usually it’s better to “bite your tongue”, and think of ways to move things forward to a resolution, versus adding to the conflict.


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