Most people never have their day in court. They have no need. They commit no crimes. They avoid lawsuits. And they never testify at a trial. Most of us never even serve on a jury, despite being summoned every few years.
The closest most people come to a courtroom is watching "Law & Order," unless they get divorced or have ringside seats to the breakup of the marriage of a relative or friend. Then they sink into the quagmire known as our family law system. Nearly everyone who enters this system gives it low marks. The so-called "winners" and the "losers." Everyone agrees. The polite way to say it: the system is deeply flawed. Privately, attorneys, judges, and litigants bemoan: the system sucks.
Alec Baldwin speaks for those victimized by a system that too easily places itself in the service of a parent's vindictive wish to erase the other parent from the child's life. Advocates for victims of domestic violence believe the system fails to adequately protect abused spouses and their children. Fathers' rights advocates are convinced that courts remain mired in the early 20th century model that relegates fathers to the role of material provider while leaving child-rearing to mothers. Libertarian feminists want to break down the influence of gender role bias. Mother's rights advocates worry that courts view fathers as saints if they spend a little extra time with their children, and fear that mothers with high-powered careers enter a custody dispute with two strikes against them.
In the face of massive dissatisfaction on so many fronts, it is gratifying to know that help is on the way. And from a source that may surprise you: the people who created this system and earn their living from it.
We have a love-hate relationship with the legal profession. Books, films, and television serve up lawyers as heroes ("To Kill a Mockingbird") and as devils (Al Pacino in "The Devil's Advocate"). When involved in a divorce, you probably think of your spouse's lawyer as evil incarnate. But, when you hire your own lawyers, they become your gladiators.
Some of these gladiators have come to realize that the adversary system, designed to establish guilt or innocence, does violence to families embroiled in child custody disputes. To transform a system of justice widely viewed as unjust (a "psychological meat grinder" according to one victim), the American Bar Association Section on Family Law, partnering with the University of Baltimore School of Law Center for Families, Children and the Courts, last summer inaugurated a massive initiative that is now poised to bring family law into the 21st century.
Bringing together sixty top family law experts -- judges, law professors, and practicing attorneys along with about five mental health professionals (disclaimer: I am one of the non-lawyers privileged to participate in this initiative) -- the group's mission, under the banner "Families Matter," is to generate proposals for radical reform that rectify the destructive impact of the family law legal process.
The project will take several years. But early signs point to a key reform: rather than treat each case with a one-size-fits-all approach, family courts need to adopt a lesson from medical emergency rooms: triage. Essential to efficient use of limited resources is early identification and fast-tracking intervention with families most at risk for violence and severed parent-child relationships. These are the cases that take up residence in the system, clogging the courts with repeated visits to the courthouse, each parent desperately trying to protect children from the harm perceived as the handiwork of the other parent. It is no exaggeration to say that getting to these cases sooner will prevent many tragedies. Fewer parents on the edge will take the law into their own hands. Fewer children will languish unprotected against violence. Fewer children will succumb to manipulations aimed at drafting them into paying allegiance to one parent at the expense of their relationship with the other. Losing a parent is a price children should not have to pay for their parents' breakup.
Change is coming. To help the next generation avoid blood-letting in family courts, it is not a moment too soon.
Dr. Richard Warshak is the author of Divorce Poison: How To Protect Your Family From Bad-mouthing and Brainwashing (HarperCollins), the classic and best-selling parental alienation resource in the world, and co-author of Welcome Back, Pluto: Understanding, Preventing, and Overcoming Parental Alienation , the leading resource for families whose children struggle to stay out of the middle of parental conflicts. You may find him at www.warshak.com and his blog, Plutoverse.
Follow Richard Warshak on Twitter: www.twitter.com/RichardWarshak
Andrew Feldstein: Managing Custody and Access Over the Holidays
William Fabricius, "Listening to Children of Divorce: New Findings That Diverge From Wallerstein, Lewis, and Blakeslee", Family Relations, Volume 52, Issue 4, pages 385–396, October 2003;
http://onlinelibrary.wiley.com/doi/10.1111/j.1741-3729.2003.00385.x/abstract
Instead, far too much ends up in the pockets of lawyers and experts. This is because of the perverse financial incentives to turn divorce into a "winning the lottery" jackpot for the non or lesser-earning ex-spouse. The higher-earning ex-spouse can be robbed forever of both money and children.
Lifetime or long-term alimony gives the lesser-earning ex-spouse a once-in-a-lifetime opportunity to strike-it-rich with awards that, over time, amount to two to three times the dollar value of the total marital estate at the time of the divorce. Of course both parties will spend much too much money to try and get or try to avoid this daunting and looming financial liability. Since when should staying married and earning a living put you at risk for "punitive damages" as high as everything you have earned, are earning and will earn? This must be reformed for ex-couples to have any money left over to rebuild with after the divorce.
Divorce should be the dissolution of a marriage -- period. A division of assets and debts.
If the divorcing household includes children, once there has been a preliminary determination that each parent is suitably fit (if no good-faith/evidence-based claim of fundamental unfitness can be presented), in the initial decree of divorce child custody/placement should be set at 50/50-equal for the first two or three years.
If a divorced parent believes that custody/placement should change after that time, then that parent will need to base her or his case on credible evidence that has been collected in that time. No evidence, no change.
The presentation of false information should be heavily punished.
No evaluator in a divorce has the ability to predict what will happen to the children of the divorcing household -- except to say that the children will be hurt if the divorce is contested/litigated.
There is no social science to support the notion that the so-called "best interests of the child" can be determined by evaluators.
What is perfectly clear is that no child of divorce benefits by having tens of thousands of dollars of funds from the divorcing household moved to the households of the divorce lawyers (which benefits the children of the divorce lawyers, not the children of the divorce).
No one in this country ever voted on no-fault divorce, particularly in cases involving children. No one in this country ever voted for the custodial/non-custodial model of parenting post divorce. The legal community asked for it 40+ years ago and the state legislatures, loaded with attorneys in elected office, gave it to them. It's now a structurally corrupt safe haven for liars, overwhelmed by parents who are there to take advantage of laws that drive their spouse out of the children's lives. This group of 60 is not going to throw out this model; they're not going to change state statutes.
We could mandate that an FOAH be written within say 14 days, this way treacherous attorneys could not hold out a court order for months while they devise a way to beat it, or keep their client from having to share custody of the child or make crucial support payments because there is no order for the police to enforce; because he or she hasn't written it yet. Heres another one, take away the mediator recomendation method in every county, judges go along with the recomendation of the mediator and they both have plausible deniability. The Judge says "the mediator recommended it" and mediator says " well the judge makes the decision" and so it becomes a rubber ball that bounces back and forth and it can't be litigated because no one can say where the decision came from or who to fight.
Committees and long winded reform discussions got us where we are now, just listen and change whats wrong; it is quite simple.
Look up "racket" in the dictionary and you'll see a description of the "Family Law" system.
Lawyers who encourage adversarial divorce and judges who allow it to go on need to be held accountable by the American Bar Association and state Judicial Committees.
It is about the violation of legal and judicial ethics and that is a problem that could be taken care of quickly and not years down the road.
"Without a sound legal basis, the notion of maximal involvement of both parents relies on the good will of mothers and each court’s insights about the benefits of continued co-parenting. Obviously these prerequisites have not been in evidence for millions of Ohio children throughout the past several decades."
Mediation is good when the parents are generally reasonable but can't agree here or there. Not when you are dealing with one or both parents who are not reasonable.
I would also add that high conflict situations are often long complicated stories, proof that an accusation is false might be a length paper trail and people who are highly conflictual are often believed by those who don't have a long history with them because of their highly emotional states.
Instead of recognizing that it is a high conflict situation and quickly releasing the folks from mediation, mediators bring them back over and over again to try and work it out, when reality it, they never will.
You can't reason with the unreasonable.
Arbitrators, evaluative and often facilitative mediators do not see high compliance to agreements, and those they mediate leave feeling unsatisfied with the process.
That's not the type of mediator I suggest be asked to the table.
You said this very well:
'Mediation is good when the parents are generally reasonable but can't agree here or there. Not when you are dealing with one or both parents who are not reasonable."
I totally agree.
Also, if the needed expertise is not among the initial Families Matter symposium attendees, I am confident that the group will seek input from other authorities.
I have spent a great deal of time pondering how the system could be better. Every court system is different. State rules and regs can be ignored, you might get one answer from one court and another from another court in the next county. Here you don't keep the same judge from filing to trial, judges that know the case aren't likely to be kept on the case. And, break after break after break is given to the misbehaving parent. A lot of decisions are made without testimony, evidence, or, even with the parties in the room, just the judge and the lawyers. It's frustrating.
I sit here and type this knowing that at any point in time another motion to change can be filed, even though the only thing that change is the date. It's expensive. It's exhausting. And, it's got to stop. But, the other parent is legally entitled to file when and on whatever they want to as long as they can file it.
I think the only thing that would work in our situation is constant oversight and with the ability to swiftly levy fines or other punitive actions for bad behavior. We had that for a year and now it's gone, it took less than a month ... we're right back to square one on behaviors. What a shock!
My husband and his ex have been in court at least every year since they separated 6 years ago. It's not likely to end until the kid ages out of the system. I could low ball it and say that they have entered the court house at least 28 times on custodial issues in the last 6 years.
That alone says there is something wrong here ... what is it? Are they both to blame? If not, is one a pervasive blamer? Does one think in rigid, black and white terms? Does one constantly bring up old arguments? And, if so, is it possible that one is suffering from a mental illness or personality disorder?
Pretty simple question for the courts to consider, IMHO.
This is true BUT only if it is an ethical judge. How will this "reform" tackle the issue of judges and attorneys who have a slippery relationship with ethics?