THE BLOG

Is the Adversary Model Appropriate or Suitable for Family Law Matters?

06/12/2013 10:04 am ET | Updated Aug 09, 2013

Divorce doesn't impact children, especially if they are adults, does it? When families are "ripped apart by divorce," it has no consequences, right?

"The deranged California man who gunned down four people and unleashed the violence on the streets of Santa Monica did so because he was angry over his parents' recent divorce." By the way, the family had apparently been "ripped apart by the divorce." Let me be very clear -- ripping families apart just because the marriages are over has severe and lasting consequences to the former spouses, their children, the family, future generations of that family and society as a whole.

Like it or not, if there are children of the relationship (regardless of their age), the family still exists after the relationship ends. The manner in which you end a relationship determines whether your family will be functional or dysfunctional from that day forward.

While there may be disagreement regarding whether or not divorce in and of itself is damaging to children, no reasonable person can disagree that they way in which people divorce plays a significant role. I am by no means encouraging divorce. However, all the top researchers in the field have come to the conclusion that it is the way in which people divorce (including what they do or don't tell their children) and the parental conflict that damages children. "Children are harmed from the following things: (1) Powerlessness/Helplessness; (2) Lack of Predictability (stability and predictability are not the same thing); (3) Parental Conflict (a major cause of helplessness and unpredictability); (4) Poor Parenting (caused in part from parental conflict, which happens to be increased by the adversarial process); and (5) Poverty (which increases all of the other factors)," says Ruth Bettelheim, PhD. According to Ursula Kodjoe, MA, "Children of highly conflict-ridden families feel helpless with regard to the loss of important relations. Such children experience some of the following consequences: (1) Twice the risk of developing a problematic behavior; (2) Low self-love and self-esteem; (3) Development of externalized symptoms such as aggressive acts of violence; (4) Development of internalized symptoms such as sadness and depression: (5) Psychosomatic symptoms such as asthma; (6) Problems of adaption; and (7) Loss of respect for adults." Adult children of divorce who have participated on divorce panel discussions have repeatedly confirmed this. The outcome from the child(ren)'s perspective has nothing to do with the particular parenting plan (assuming there was one ), but with how the parents acted.

Parents need to understand that what they do, say, and how they act toward the other parent has long-term consequences. The things people do with or without the assistance of their attorneys, have consequences that will last for generations to come. Since divorce is a fact of life, all we can do is to make it a less destructive process. According to Joan Kelly, Ph.D., 80-85% of family law matters can be resolved without litigation. Since you cannot unring the bell, should all cases be litigated just because 15-20 percent of cases (1 in 5-6 cases) may ultimately be litigated? "When you start a court case, you are starting a war," says Justice Harvey Brownstone.

"Is the adversary model the appropriate model for dealing with family law matters? No! Judicial officers should view the fiscal crisis as an opportunity to reengineer the family law system. We have problem-solving courts for mental health matters, substance abuse, domestic violence, and many other matters. Why don't we have problem-solving courts for family matters?," says Paul J. De Muniz, Distinguished Jurist in Residence, Willamette University College of Law and Former Chief Justice, Oregon Supreme Court.

"Who has the right to declare parents to be enemies? Litigation feeds paranoia. Mutual respect and renewed confidence leads to solutions. In Germany, they no longer have adversarial trials when it comes to issues pertaining to children. Judges in Germany no longer tolerate lawyers who try to delay hearings and resolution of issues because continuances are not 'benign.' The time of uncertainty is itself stressful and leads to destructive behavior. The role of attorneys in Germany is now deescalating conflict. The results seem far superior then when they used to escalate conflict," says Ursula Kodjoe, MA.

Do lawyers elsewhere escalate or deescalate conflict? Think about it! According to Justice De Muniz, "We need law schools to start to train lawyers who are able to effectively meet the public's needs. This is not occurring anywhere yet. The public wants psychologically-minded lawyers."