The Hollywood gossip this week revolves around an Order issued in California in the custody dispute between actors Brad Pitt and Angelina Jolie. That Order outlined a summer custody schedule for the six children while maintaining primary custody with Jolie. But the Court issued stern warning to the Mother stating that: “If the minor children remain closed down to their Father….it may result in a reduction of the time they spend with {Mother} and may result in the Court ordering primary physical custody to {Father}.

The children range in age from 9-16. These can be tempestuous times for even the best of intact families as it is when children really develop their own expressed personalities. In a divorce setting it is also common for one or more to ally with one parent and reject the other as unworthy of any respect, love or attention.

Sometimes that enmity is earned. Growing children can be quick to “judge” a parent’s conduct and expose any inconsistency.  Not all parents are exemplary characters and people are not at their best when a marriage is dissolving. But then there are instances where dislike for another parent is given a little nudge if not a firm push by the “favored” parent of the day.  It often begins at separation with the gentle suggestion that “Mommy left us.” or “Daddy likes another family better.”

Parental Alienation Syndrome is a term coined by a New York psychiatrist, Richard Gardener in the early 1980’s.  He termed it a “disorder”  manifested by a campaign to denigrate the other parent. The action can be deliberate or unconscious.  It can range from subtle hints about the other parent’s inadequacies or rise to suggestions to a child that his/her parent may have physically abused the child.

The psychological community has never embraced this condition as a disorder although that subject is much debated.  In its mildest form, the child is resistant to talk on the phone or visit with the bad parent. The child will often freely opine on the bad parent’s character or conduct.  A tip off that the views are not independently formed by the child is that the language expressed by the affected child is not typical for someone that age  (“Mommy drinks too much alcohol”) or contains conclusions that young children cannot evaluate (“Daddy passed out” in contrast to “went to sleep”).

A common method of teasing out this kind of alienation is to interview the child about what he or she likes and dislikes about the parents.  An alienated child is often hard pressed to describe any meritorious conduct on the part of the parent from whom he is alienated.  Or, the child will dismiss it with a platitude (“I know he loves me” without more). An alienating parent often is described by the same child as faultless.

Although not an accepted disorder, anyone who has been in the presence of a child who is fully alienated from a parent knows how challenging those interactions can be. Typically, the child is sullen, argumentative or silent. They will recoil from physical contact, even when it is intended to express warmth and kindness. These children often will not permit anyone to try to persuade them that all parents have merits and deficits. One parent is good, the other is not.

The remedies for this condition are limited and extreme.  Most courts will order the child into therapy to make certain that the enmity is not fact based, but once that hurdle is passed the therapist has a daunting task.  The child does not want to view the alienated parent as having merit.  And, the therapist has but 45 minutes to work on correcting the matter while the parent promoting alienation has the rest of the week to reinforce negative thoughts.  Note again that some parents don’t even appreciate the toxicity of their conduct.  When confronted with the problems associated with using phrases like “Daddy left us” a mother may respond that the phrase is not one of judgment, but of fact.  We live in an age when people think it is appropriate to be “brutally honest” even though children don’t have coping mechanisms to address the brutality.  “My father is a bad man so the judge sent him to prison.”  “My mother likes to sleep around.”  A 16 year old child is old enough to understand infidelity.  Nine year olds would assume that mom must have a job that requires overnight travel.

In the Jolie-Pitt matter, the signals are clear. This judge is quite concerned that mother is over regulating conduct with father and insisting on unrestricted phone access. That, too, is easier said than done as parents can often send very strong ques that a call needs to end or be avoided.  In this case, the Court is also signaling that unless these children are able to form a more positive relationship with Mr. Pitt, the judge may go so far as to award primary custody of the children to their father. This is the nuclear option and Courts are chary to employ it because there is always concern that (a) the alienated parent is now in exclusive control should there be something bad going on, and, (b) the child might run away permanently.

There is no easy solution and this case is further complicated by the fact that the Children will be with one parent in California and another in England.  Physical distance makes it all the more difficult to break down or at least slowly dismantle studied antipathy toward a parent.

The late Supreme Court Justice Potter Stewart is credited with saying that while obscenity could not be defined: “I know it when I see it.”  This is equally true for parental alienation. The scientific and medical communities have not accepted it because, unlike depression or bipolar disorder, it escapes definition.  But, almost any judicial person deciding custody cases will confess that they know it exists because they have heard it from the lips of parents and children.  When people separate, they want their children to like them “better”.   It is only natural.  But it is far less clear whether a child’s dislike of a parent is fact based or the product of undue influence.

Pennsylvania uses the standard “the best interests of the child” when determining custody issues. What happens if the best interest of the child breaks the law? Such is the case in Georgia where parents of a 15 year old boy suffering from epilepsy resorted to marijuana to treat his seizures. Their argument is compelling: their son suffers from debilitating seizures that have not responded to traditional treatment and medical help is forty-five minutes away from them. They feared his seizures would eventually kill him.

Having seemingly exhausted their medical options (including a legal form of marijuana oil in a capsule), they began having their son smoke marijuana. His seizures stopped. However, the state of Georgia’s child welfare agency, acting on a tip, investigated the family and removed the young man from his parents’ care in April. Having gone nearly 70 days without a seizure, on the day he was removed from his home he was hospitalized for a severe seizure. He is in a group home and reports did not mention whether he continued to have seizures, but presumably he has and those facts will emerge later this month when a hearing is held.

Pennsylvania passed medical marijuana legislation in 2016, including provisions that address the use by minors as administrated by designated caregivers. That said, marijuana is still a Schedule I drug under the Controlled Substances Act with state and federal criminal ramifications. The Georgia case highlights a possibility that still exists in Pennsylvania where conflicting state and federal laws can result in criminal charges.

How would the court react to the “legal use” of marijuana by a custodial parent or an objection by a parent to the use by a minor child? Pennsylvania updated their Health and Safety Statute (§10231.2013) to include a prohibition against including medical marijuana as a consideration in a custody proceeding, but nothing was done to amend the custody code to make a similar restriction under the custody factors.

Most likely, the courts of Pennsylvania will continue to apply the custody factors to medical marijuana in a manner comparable to prescribed pain medication with an emphasis as to whether it is being abused or affecting the custodial parent’s ability to care for the child. The use by a child would be dictated by legal custody considerations and medical necessity not unlike any other treatment. Despite evolving laws in this area, there will continue to be a tension between state application and federal law. While that may not change any time soon, addressing those disparities at the state level should improve as time passes.

More information on cannabis, especially the business side, can be found at Fox Rothschild’s blog “In the Weeds.”

It happens every day throughout the Commonwealth.  It is support contempt court and the crowd is large and anxious.

On Valentine’s Day, 2017 a contempt hearing was scheduled with the petitioner being the grandmother of two young children, and the respondent, her daughter.  The daughter was supposed to pay $108 in support and $30 on arrears.

As often occurs at these contempt hearings, a deal was struck and placed in writing.  The agreement was admitted contempt but no incarceration provided that all payments were made on a timely basis.  If that condition was breached, the contemnor would be incarcerated for six months.

Appellant then appealed from her own agreed order contending that the remedy she agreed to was not one that conformed to Pa.R.C.P. 1910.25-5(a)-(c).  Many lawyers would agree with this author that you can’t appeal an agreed order.  But, we would be wrong.  In an opinion published May 8, 2018 a panel of the Superior Court vacated the order because it did not conform to 23 Pa. C.S. 4345 and sent the case back for a new hearing.  Parties cannot agree to an illegal sentence. Com. v. Gentry, 101 A.3d 813, 819 (Pa. Super. 2014)

Writing for the Court, Judge Shogan borrows from criminal law in stating that a suspended sentence is “illegal” Com. v. Joseph, 848 A. 2d 934, 941 (Pa. Super, 2004).  Contempt is not about future payments.  It is focused on the present ability to pay.  If the Respondent has it, incarceration is a remedy but it must be administered with a purge condition that the Court finds can be met.  The agreed order did not specify a purge amount and failed to outline a mechanism by which a determination could be made about the future ability to pay.  In other words, each time the keys to jail are brandished in contempt court, the court needs to assess what the Respondent can pay then; not at some unspecified later time.

The burdens in contempt shift more often than the tides.  The Petitioner has the burden to prove notice and noncompliance with the order.  Present inability to comply is a defense where the burden falls on the Respondent.  Barrett v. Barrett, 368 A>2d 616 (Pa. 1977).  But, if incarceration is the remedy, the Court must find beyond a reasonable doubt that the contemnor has the present ability to comply. Id., Muraco v. Pitulski, 368 A.2d 624 (Pa.S. 1977); Kramer v. Kelly, 401 A.2d 799 (Pa.S. 1979)

Thompson v. Thompson, 2018 Pa. Super. 122 (5/8/18)

In a published decision reported on March 15, 2018, the Superior Court has addressed what it takes, at least in a criminal setting, to tie a Facebook posting to a defendant charged with a serious crime.

Tyler Mangel and Matthew Craft were charged with assault in Erie County.  In the course of the prosecution, the Commonwealth filed to secure Facebook subscriber information.  That motion was granted and at trial, the prosecution filed a motion to introduce information obtained from Facebook, which it saw as probative of guilt.  The evidence consisted of screenshots and mobile device “chats.”

When the police officer testifying about the investigation was asked what clues found in the chats could be traced to Defendant Mangel’s Facebook account, the defense counsel objected. The Trial Judge then posed this question to the witness asking whether the officer, with a reasonable degree of certainty could testify that the Defendant published these electronic statements.  When the witness testified that the account was registered in the Defendant’s name, the Court sustained the objection on the basis that ownership of a social media account could not be equated with responsibility for all publications made on that account.  The Commonwealth appealed.

Defense counsel ably created “issues” for the prosecution.  The investigating officer did not secure an IP address for the account she was testifying about.  This would have provided background about the computer, network and location of the computer at the time of the post.

Mangel is not the first foray into this evidentiary minefield.  Instant messages and cell phone text communications were the subject of In the Interest of F.P. a minor, 878 A.2d 91,96 (Pa. Super. 2005).  In October 2011, we wrote about Com. v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011) aff’d 39 A.3d 705(Pa. 2014).  In 2016, the Third Circuit ruled that Facebook authentication required a preponderance of evidence.  United States v. Browne, 834 F.3d 403 (3d Cir. 2016).

Judge Stevens sum up the problems of authentication as the same with all electronic media; “anybody with the right password” can become someone they are not and send messages pretending to be the account holder. The proponent of social media has the burden to corroborate the message with the alleged messenger, by either direct admission or contextual clues confirming the identity of the sender.  In support of this need for “supporting evidence” aside from mere ownership of the account, the Court referred to U.S. v. Vayner, 769 F.3d 125,131 (2nd Cir. 2014); U.S. v. Jackson 208 F.3d 633,636 (7th Cir. 2000); Griffin v. State 19 A.3d 415,423 (Md. 2011); Com. v. Purdy, 945 N.E.2d 372, 381 (Mass. 2011); Smith v. State, 136 So. 3d 424, 434 (Miss. 2014); and, Deering v. State, 465 S.W. 3d 668, 672 (Tex 2015).

In this case, the defendant did not admit the Facebook account was his or admit to making the posts.  The fact that the name, hometown, school district and photos posted seemed to correspond to the Defendant was insufficient.  The fact that there was another Facebook account for “Tyler Mangel” in the Defendant’s hometown only added to the certainty of keeping the electronic evidence away from the jury and showed that the police were wrong in offering that there was only one person with such an account in the Defendant’s hometown.  The timing of the postings was also missing from the record.  Moreover, there was nothing distinctive about the posts, which would suggest the “signature” of Mr. Mangel, the Defendant.

This is a criminal case and one may argue that a civil case might be decided differently.  But the Rules of Evidence governing authentication do not vary from criminal to civil, meaning that electronic evidence needs to be considered more carefully than trial lawyers might otherwise want to think.

A recent case published by the Superior Court gives us some insight into one issue which has thus far evaded appellate review and affirms in principle that alimony remains a secondary remedy and one which is awarded based upon need.

Core facts are:

Husband: 61

Wife: 56

Both employed in health care industry.

Husband’s net: $16,000

Wife’s net: $10,400

(60/40)

25 year marriage

Wife received support $2,200 in support since 2012.

Court awarded 55/45 split in favor of Wife.  The gross estate is $7,000,000+ pensions.

Wife asserted that Husband had dissipated $4.4 million of property on an extramarital relationship.  She appealed claiming the award did not give sufficient consideration to that fact.  The Trial Court opinion acknowledged expenditures outside the purposes of the marriage but concluded, “It is not the role of the Court to recoup expenditures made during the marriage by one party that the other party does not know about or does not agree with or to make a party whole again.”  It then added that in effecting an equitable distribution “considerable consideration” to contributions to creation of and dissipation of assets.

It appears that the Trial Court made its distribution with a blanket statement that it had “reviewed all the factors.”  The Superior Court concludes that the Trial Court carefully examined the distribution factors and that Wife’s lack of specificity on this issue was dismissed as waived.

On the $4.4 million dissipation issue, Wife presented a list of purchases and expenditures which she considered a dissipation as the month was spent for the benefit of an adulterous relationship.  As noted, the Court found that its role is not recoupment of dissipated assets but distribution of what remained.  It was sufficient that the Trial Court “considered” monies used by husband during the course of the marriage.  Hopefully this meant the monies “misused” during the marriage but that is not the word employed.

Another issue was that of whether alimony was appropriate.  The Trial Court had denied it stating that the expenses presented were not reasonable and, even if credited, did not exceed Wife’s income supplemented by the equitable distribution award.  The Superior Court, quoting Teodorski v. Teodorski noted that, “Alimony is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage as well as the Payor’s ability to pay.  Moreover, alimony following divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of appropriate employable skill.”

The alimony language is interesting to see in a day when alimony appears to be more guideline than needs driven.  The language about the merit of preparing and presenting a dissipation case must be disheartening to many.  It appears that while there was a lot of “evidence” presented about dissipation, the Trial Court skated by stating that it heard and considered that evidence but had no responsibility to keep score or formally evaluate the dissipation claim in an economic sense.  Those who come to attorneys with stacks of evidence of funds spent on non-marital relationships will need to be warned that such a presentation will be certain in cost but not in outcome.  We don’t know how much of the $4.4 million in dissipation claims were solidly established.  What we do know is that in a 25 year marriage where the parties depart with husband having a 3:2 advantage in net income, the equitable distribution advantage to wife was roughly $350,000.

In February 2018 we wrote about a recent New York appellate case making clear that those who post information about themselves on Facebook are going to have a difficult time asserting that the posting is private and not subject to scrutiny in subsequent judicial proceedings. This is especially true where the content of the posting can be tied to the litigation. In that case, a Facebook posting was found to be discoverable in a personal injury case.

That was New York in February and the law of New York does not necessarily apply in its sister state of Pennsylvania.  But, just as the highest court in New York was grappling with Facebook postings, a trial court judge in Monroe County, Pennsylvania (think Poconos) was deciding a very similar kind of case.

Kelter v. Flanagan is a personal injury case arising out of an auto collision.  In pre-trial discovery, the defendant made a demand upon the Plaintiff to preserve and produce communications the plaintiff had on Instagram after the collision occurred.

In a deposition, the plaintiff professed not to have social media accounts.  The defendant’s counsel was instantly able to show that fact to be untrue as the attorney possessed postings published by plaintiff on a public Instagram account.  Instagram has both public and private access options.  When the defendant pressed for access to private messages, the plaintiff sought protection from that stating that she had produced all of her public access messages.  Alas, the court found that Instagram allows its customers to toggle between public and private and that one cannot use a change of account status as a defense to production of this information.

The defendant’s goal in this case is to secure evidence of activities which belie the claim of injury or mitigate the extent of it. As Judge David Williamson aptly notes, pre-trial discovery is intended to allow the parties to explore any evidence that makes the existence of a fact more or less probable.   Pa. Rule of Evidence 401.  Communication on any social media platform is a statement, and, if that statement helps a court to assess what caused an event or what impact the event had upon the person experiencing it, chances are strong that claims of privacy will yield to a judicially sponsored search for truth.

In this case, the remedy was quite broad.  The Plaintiff was directed to provide her log-in information.  Lord knows, what will be behind that door.  Under the rules of evidence only relevant facts are to be brought to the courtroom, but under this ruling the counsel for the defendant may get to see a lot of personal material the plaintiff never dreamed would be available to strangers.  Attorneys viewing these communications could themselves be liable for unnecessary publication of private information in an invasion of privacy action if they circulated embarrassing data not directly relevant to the case.  But, no doubt, rulings like this may produce some scandalous material and some testy arguments over whether embarrassing information is relevant to the action before the court.

This is a personal injury case, but the ruling, while not precedential, has merit in a family law setting as well.  So beware of what you write or post because unlike oral communication, Instagram might be forever, or just long enough to expose you.

 

My colleague, Mark Ashton, was recently quoted in Mr. Ken Belson’s New York Times article addressing a Pittsburgh custody case grappling with whether a child should play football after having had three concussions before his 16th birthday. As Mark points out in the article, custody officers are unwilling to touch an issue such as contact sport participation because no one wants to be the one who provides the opportunity for a child to be hurt. I think another reason why custody officers are unwilling to deal with such an issue is a little more esoteric: how does one gauge whether one sport is better for a child than another?

Mark also wrote a blog post last July raising the issue of football as the new battleground for legal custody issues. Parents seem to be increasingly concerned about the injury potential of concussions suffered in football and the “time value” of football compared to other sports. Having played over ten years of football, I disagree with using the time value analysis to consider the benefits of football. Football is notoriously known as only being “played” for a sliver of time relative to the game clock. The “conditioning affect” of football cannot be measured that way and it leaves out the intangible aspects the sport develops such as leadership, perseverance, physical and mental discipline, and playing a team sport which relies on each individual to perform their role to the best of their ability every single play. It is an amazing sport. It is an evolving sport. As this Pittsburgh case shows, even for those who love the sport, it is not for everyone.

Which brings us back to the Times article and what some might consider a “war” on football. The concerns and raised awareness about concussions in children is no more an attack on the sport than seat belts are an attack on driving. This issue is fundamentally a health issue, with concussions serving as the context, but which could easily replaced by concerns about a torn ACL or broken leg. Olympic downhill skier Lindsey Vonn has an injury history (including a concussion) that would make an NFL linebacker cringe, but I suspect if skiing replaced football as the activity in question no one would be paying attention to this case.

The quantitative difficulty is that a concussion does not show up the same way a broken bone or torn ligament does on an MRI. If a doctor clears a child to play any sport or activity after they clear a concussion protocol, then seemingly the child is fit to play. There is no evidence to the contrary, nor is there evidence to predict how the next concussion will occur, if at all. Left out of the article are details about the second and third concussions. I would be curious to know whether they were from direct hits or glancing blows. This child’s first concussion was from being hit in the head with an aluminum baseball bat. I wonder whether the second and third were routine plays which might not have otherwise injured him. Concussions affect everyone differently and they can be progressive such that it takes less of an impact to be concussed than it did the previous time(s).

This situation becomes a legal custody issue because it has a direct consequence to the health of the child. The mother’s argument is that football represents a “status quo,” but the father’s counsel argued that the status quo changed once the second and third concussion occurred from football. A temporary ban on the child paying football was overturned and he played his junior year without any injury. The father is now prepared to go to trial for a final order on the issue.

From a legal standpoint, this situation highlights the difficulty of developing bright-line rules for some legal custody issues and why there is little precedential case law on some of these unique issues. This situation is so fact specific that permitting (or barring) participation in football in this case will likely be irrelevant to another case. Nevertheless, it will be interesting to see what the trial court decides and their rationale behind their decision. Though perhaps not binding on other cases, it can be instructive as to whether the court considers the sport or the injury as the critical factor.

New York’s highest court, the Court of Appeals ruled on February 13, 2018 that a Facebook account holder’s designation of a posting as “private” did not preclude a litigant from obtaining copies of those postings where they may be relevant to the litigation.

The ruling comes from a personal injury case where the plaintiff claimed to suffer permanent injury in an equine fall.  The plaintiff’s claims included those typically associated with loss of enjoyment of life. The defendant sought to secure plaintiff’s entire Facebook account. Plaintiff opposed production of any private posting and the intermediate appellate court agreed that privacy protection was available.  Further, appellate review was allowed.

The Court of Appeals reversed the Appellate Division, noting that its ruling would allow a party to effectively “hide” otherwise discover-able material simply by marking it as private or otherwise curating their own social media postings. It permitted the Defendant to review post accident postings in search of evidence to rebut Plaintiff’s claim to have suffered cognitive injuries and loss of life’s enjoyment caused by the accident.

The ruling was not open ended however. The trial court had ordered all pre and post accident photos to be produced without regard to privacy settings except those involving nudity or romantic encounters. It also ordered Facebook to produce records of the frequency and length of the postings so that pre and post accident activity could be compared.  The Court of Appeals upheld those limitations but added that a request for these kinds of materials needs to be reasonably calculated to yield relevant information.

Needless to say, in the world of divorce, the scope of relevancy will be considerably broader than that associated with a claim for physical injuries. But, the ruling is an important one.

Forman v. Henkin  http://caselaw.findlaw.com/ny-court-of-appeals/1889175.html

This is not a political outlet.  So, I will confine my “political” comment to a single set of facts.  17 people killed yesterday. 32 school days so far this year.  Time Magazine reports 18 school shootings.  So a school shooting every other day.

The interviews I heard last night on television provided a haunting reminder of a conversation I had earlier that day with a colleague who treats families going through divorce.  We spoke about a common case.  The child we were discussing was enduring an acrimonious divorce.  The child is caught in the middle and is traumatized by the experience.  The therapist related to me that part of his concern was that the child we were discussing seemed to have no friends; no social connection of any substance.  The kid is in a lot of pain and his parents are so absorbed by their own suffering, they have little empathy to give.  So, the child spends hours of time alone in his home immersed in social media.

Last night I listened to coverage of the 19 year old shooter.  I heard interviews with his classmates.  The child was a loner with no identifiable friends despite efforts on his part to connect with peers directly and via social media.  Children in the high school who knew the shooter before he was expelled described him as strange and his efforts to connect with his fellow students were rejected because he was odd.  So, this child posted some very troubling things online and exercised his right under Florida laws to acquire an AR-15 automatic weapon shortly after attaining 18.  That gun fires more than 700 rounds per minute.

Last year Parkland was named Florida’s safest city.  The mayor described the community as “close knit.”  Like Columbine, Colorado, Sandy Hook, Connecticut and Nickel Mines, Pennsylvania, these are towns where mass shootings are not supposed to happen.  But, let us be plain, we are not a close knit society.  Our kids are more vulnerable to this kind of aberrant conduct than we would like to think.  If you watched the interviews with the affected children, you can tell they don’t even know what they have just lived through.  If anything, they are far too poised for people who have witnessed the death of mentors, classmates and come closer than they can consider, to being among those for whom there will never be another Valentine’s Day.

Eighty nine years ago yesterday, America learned of the brutal murder of seven men in a garage on North Clark Street in Chicago.  The killings became a part of American history.  Three months ago we watched 58 people killed and 851 wounded in Las Vegas.  Cellular phones and computers can make us more connected than we could have ever dreamed possible a generation ago.  But, we are less close knit and more disconnected than ever.  When will we realize that “connectivity” is not just a reality?  It is also a mirage.

President Trump has concluded that the nineteen year old shooter was mentally disturbed.  That should be self evident. But, a child like this lurks in just about every high school in America.  The question is, do we accept school shootings as part of the American way of life or are we going to do something to find these kids and give them help before more children die.

2017 was a remarkable year in many ways.  In late Spring we watched one of America’s favorite entertainers tried for sexual assault.  In October, prominent producer Harvey Weinstein  was accused of sexual assault by more than a dozen women.  The list of prominent men who have fallen from grace since the Weinstein story broke on October 5 would occupy a blog site of its own.  As this is written, a story has broken that a California legislator and leader of the #MeToo movement has found herself charged with sexual harassment by two people; a former staffer and a lobbyist.

While is it always tempting to write about those who are prominent, most of us who live in relative obscurity view them as “different.”   We like to think that perhaps the victims were complicit or at least indifferent to what occurred.   A common refrain I hear, even from women, is that the victim knew what she was getting into.  Others rally to the side of the victims, plainly asserting that the mere assertion of assault is prima facie evidence that it occurred.  I try to stay away from these stories because where wealth and power enter the equation, reality can become distorted.

That is what made my view of Anderson Cooper’s interview of Jennifer Willoughby so compelling.  Willoughby was not a public figure when she summoned the police to intervene in her domestic life in June, 2010.  She was just the bride of a 32 year old Senate staffer.  On paper, Rob Porter was everything a person would want in a spouse.  Harvard.  Mormon missionary work in London.  Harvard Law.  Rhodes Scholar at Oxford just like his father, the professor at Harvard.  But, in 2010 Ms. Willoughby reports that despite his polished and highly effective work in the United States Senate, their domestic life was overtaken by fear for her physical safety.

I would commend every parent with teenage children to make them watch the CNN interview with Willoughby.  The interview can be found at Daily Beast with reference to Jennifer Willoughby.   https://www.thedailybeast.com/rob-porters-ex-wife-warns-hope-hicks-hell-abuse-you-next  As I began to watch it I did so with some lawyerly skepticism, mainly because the story was old as was the divorce of the couple.  Many divorced couples love to dish on each other while millions watch.  Jerry Springer has made that model work for almost three decades.

But Willoughby was different.  She came straight out and explicitly said she had no agenda and wished her former spouse no harm.  I was still skeptical.  Until, in a very unscripted way, she began to ponder how what occurred arose from her choice of Rob Porter as her spouse.  Unlike many victims, she was not transferring blame to herself.  Not at all.  She was exploring how a relationship that once felt so right had traveled to such a bad place.  In 35 years of practicing law on behalf of victims and perpetrators, if I had a wish for all of them, it would be the self-conferred gift of introspection.  Whether knowingly or not, we have the ability to push the emotional buttons of those whom we profess to love. On July 28 Redbook published 50 phrases that we use everyday that push those anger buttons.  On November 21, 2017 Best Life published 20 Things No Husband Wants to Hear.  Most of these phrases would not be welcomed by any partner.  Any jurist who hears domestic violence cases will tell you that it is common to hear “Your honor, he punched me for no reason.”  Only psychotic people punch other humans “for no reason.”

If there was one area in the Willoughby interview where I think she strayed too far, it was her speculation about the woman her former husband is today dating.  Every relationship is different.  Ms. Willoughby may have incited violence without her even knowing how she did it.  She may have incited violence through conduct that even outsiders would not notice.  This is no justification for any violent conduct on the part of her then husband, but, rather than identify patterns of behavior that cause that domestic violence we rush to label people as “bad” or “good”.  What I found most instructive about the Jennifer Willoughby interview was that she made clear Rob Porter was not a “bad” man; he was a man who had issues with controlling his anger.  Thirty years ago, addiction was equated with moral failure.  We know better today and this writer submits that our views of anger and the violence it causes merit the same evolution in thinking that we have witnessed with substance abuse.  People afflicted with anger management problems do not benefit from ostracism; they require help.

Again, I commend every reader to give Jennifer Willoughby 26 minutes of time by listening to her tell her story.  Of course, there are two sides to every story.  But, no matter what the truth, Ms. Willoughby’s story is one every person can learn from.