Wednesday, October 24, 2007

My Comment On: New York Judge Threatens Parents in Custody Dispute

LINK: - Judge Blasts Parents for Using Court to Attack, Demean Each Other

A family court judge has threatened to deal "harshly" with the mudslinging parents in a custody/visitation dispute if they do not stop attacking each other in court. These parents are calling each other pathological liars, among other things. This threat is coming from Judge Singer, from New York, but it could just as well be coming from any number of other family court judges in Massachusetts, or probably many judges from any other state, I suspect. The judge is angry, and therefore, both parties must settle their dispute "out of court" lest they be punished for further mudslinging.

The theory is that the parents are putting their children in the middle and are thus hurting the children by attacking each other in this way. They should get along, for the sake of the kids, at least in order to reach some kind of reasonable parenting agreement. Otherwise, they are guilty of using their kids as pawns in their own personal battle.

The problem with this thinking, so prevalent in the family law community, as expressed by the frustrated judge quoted here (and some of the other quotes in this article demonstrate the prevalence of this thinking), is that it leads the family court, a forum designed for adversarial confrontation that is supposed to help the judge find the truth, to shirk from its own duty. This approach instead forces the litigants, who are in court because they can't stand each other and can't agree on anything, nonetheless to reach some kind of agreement out of fear that the angry judge would otherwise punish them if they actually were to continue to litigate.

But would not the children also be punished, indirectly, by such an angry decision of the judge? Then, would it not be the judge, rather than the angry litigants - one of whom is likely to be more in the right than the other, and might be vindicated if the facts could come out - who would then prove most irresponsible? The parents are being threatened not to continue with their litigation in court because the judge is frustrated, and is disgusted with the protacted conflict which he does not want to have to resolve himself. So he expects the angry parents (both of whom are upset as they are fighting over their own children and are going through a most stressful divorce) to be more reasonable than the supposedly reasoned, dispassionate judge is, and to agree on something so that the judge won't have to decide for them.

Maybe, the judge's threats and coercion will lead to the best result in this case. I don't know. This news report gives us some of the alleged facts in this case, but the court will probably never know what the facts really are, as the angry litigants have been forced to settle their issues out of court.

I don't know what the solution is in cases like this. But I don't accept the conventional wisdom quoted throughout this article that somehow the adversarial system is not good for children, so it should not be used. The children are not actually themselves in court, and can and should be shielded from the actual dispute. That doesn't mean, however, that the dispute should not be aired in an adversarial proceeding. The court is actually there for people like these. What other system would work for them? We can't just have them ordered to talk to Dr. Phil and then expect everything to be all right.

Certainly judicial threats and coercion will work if all we want is for the parents to reach an agreement, and we don't really care if the terms of that agreement would be in the best interests of the children. But if we do care, the litigation often needs to be allowed to run its course, and the court must have the courage actually to do what it was designed to do: find the facts in an adversarial, evidentiary hearing, so the best interests of the children can be determined.

Sorry to be such a contrarian, Judge Singer. Let's just hope the decision these parents will be forced to reach will be a good one for their kids.....and they won't end up in court again anyway.

No comments: