I first posted this entry on another site on October 19, 2006.
Family Court Reform
Having been divorced 3 times one of my passions has become reforming our family courts. Since retainer fees for attorneys are so expensive I’ve been forced to represent myself all 3 times and argued the cases in 2 different states.
Statistically, the majority of Americans will be subjected to this version of our court system for divorce or child custody. Since it is more likely to have an impact on our family than any other version of our courts its unfortunate that we get the least amount of information about it. We see different versions of Law & Order and CSI on television every night, but not one single television series is dedicated to familiarizing us with our family courts.
From my experiences with the family courts our legal system is broken. Drastic measures are needed to restore our family courts to a functional entity. Instances of perjury, false allegations of abuse and jurisdiction shopping are commonplace. To make matters worse, judges often aren’t familiar with the state code or case law governing family law. As if that weren’t enough family law has traditionally been reserved to each state. However, our federal government has seen fit to institute such standards as the Violence Against Women Act of 1994 (VAWA I), the Violence Against Women Act of 2005 (VAWA II), the Parental Kidnapping Prevention Act (PKPA), the Uniform Child Custody Jurisdiction Act (UCCJA), the Uniform Child Custody & Enforcement Act (UCCJEA).
Enough is enough! These and many other issues neutralize the purpose of the courts and instead of having the Wisdom of Solomon ruling the family courts we are forced to settle for near incompetence.
There are several problems with our Family Court judges. The biggest problem is that some of them aren’t qualified to hear family law cases. Family Law is considered civil law. Can you imagine having a judge hear your family law case who specialized in business or criminal law? That logic makes as much sense as having brain surgery done by your dentist. In Utah the same judge hears criminal law, family law, other civil cases, etc. In California, newly appointed judges no matter what their specialty are assigned to the family court to pay their dues before they’re assigned to another court.
Another problem with our judges is that they recognize their lack of expertise in Family Law so they refer the litigants to “specialists”. Unlike a court these specialists aren’t required to inform the other party of allegations made or potential evidence submitted against them. This secrecy prevents the other party from rebutting allegations and evidence. These specialists make recommendations to the court. By the time the judge actually hears the case and views any evidence the specialists have already established a direction for the judge to decide. This can be done without one party ever being aware of false allegations or faulty evidence and thereby depriving them of the opportunity to refute any of it.
Another problem is that Family Law is a version of civil law. As such, it doesn’t require guilt beyond a reasonable doubt. Instead, it only requires “a preponderance of evidence”. This means that no evidence is even required. In this situation the judge could decide the case on who is more convincing or something as trivial as who is more likeable. Civil law also does not provide an attorney for you if you can’t afford one for yourself. In this situation you are stuck representing yourself.
Attorneys are a huge problem with our family courts. Personally, I have a problem with anybody that seeks to profit from the destruction of families and the misery of children. The longer a case goes on the more an attorney charges. It’s in the best interest of the attorneys to drag out the case as long as possible. This injects more animosity into what is already the most stressful situation most Americans are likely to face. This animosity prolongs an already painful process. The attorney is a hired gun who is paid to win your case by any means necessary. The easiest way for the attorney to guarantee your victory is to destroy the reputation of your spouse and to have the court recognize them as unfit. When the attorney is done he’s off to his office to work on his next case.
Anybody who has ever dealt with our government has been exposed to the bureaucracy. The family courts are no different. In some states psychological evaluations are mandatory for both parents during a custody evaluation. This bureaucracy can include psychiatrists, psychologists, social workers and custody evaluators. These are the “specialists” that the judge will rely upon in determining custody. These people make their recommendations based on interviews, the recommendations of each other and sometimes by contacting outside agencies such as your private therapist. The custody evaluators are the ones who will make the final recommendation to the judge. Some of these custody evaluators aren’t even certified!
Another problem with the family courts is that it’s an adversarial system. Consider that if you’re in a child custody fight it’s unlikely to stay cordial for long. In court it’s beneficial to your case to tear down your spouse or the other parent of your child. That is until the case is over and you have to work together to finish raising that child such as coordinating visitation, child support, school functions, vacations, etc.
Now, consider all of the “specialists” within the bureaucracy, attorney’s fees and the court costs. Who do you think pays for all of that? You do! After all of the fighting and emotional upheaval you are likely to be financially destroyed. It’s not unusual for one or both parties to file for bankruptcy soon after their experience in the Family Courts.
One more problem that I’ve identified is the lack of a national database for the filings in Family Court. The same case can be filed simultaneously in two different states and neither court would be aware of the other filing.
I’m not pointing out the deficiencies of our Family courts just to bitch. Oh no! I have potential solutions.
The first solution is to have a dedicated facility for Family Court. In San Jose, California there is a special facility devoted to Family Court cases. The facility houses several courtrooms and Family Court Services, which employ social workers and custody evaluators. In Utah the same judge and courtroom is used to hear all types of cases including family law, other civil law, small claims and criminal law cases. Utah doesn’t have a dedicated facility for hearing Family Law cases.
In Utah, I’ve witnessed a child custody case recessed for lunch so that the Sheriff’s Department could escort its prisoner’s to enter a plea in criminal proceedings to the very same judge. San Jose is a little better than Utah in this regard, but only a little. At least the Family Court judges in California only have to familiarize themselves with one type of law.
Unfortunately, the California court system’s improvements end there. When somebody is appointed to be a judge their first assignment is in the Family Court no matter what version of law their expertise. The California Family Court is considered a stepping-stone and new judges are assigned there to pay their dues before being reassigned to another court. As a result a judge who was accustomed to criminal law may not be aware of the differences between his area of expertise and the family law he is charged with enforcing. Family Court judges need to be selected based on a specialty in Family Law.
To resolve the problem of attorneys in the Family Courts there should be a flat fee for divorce and custody cases. This flat fee should be a nationwide requirement. The fee should be set low enough so that all families could afford it. This would discourage attorneys from prolonging a case for their own financial gain. For instance, if an attorney could only charge $300 for a divorce then he would have to increase his caseload in order to see the same revenue he currently sees. In turn, the attorney would need to settle more cases in order to handle more cases. Attorneys would encourage clients to settle their own disputes.
Some solutions to reduce the bureaucracy are a flat fee, certifying custody evaluators and only requiring psychological evaluations when there is a history or allegation of mental illness. The flat fee would have a similar impact as it would with attorneys. Both parties should be encouraged to settle their case at every stage prior to trial. Certifying custody evaluators is simple common sense. Remember, this is the person who makes the recommendation to the judge who may or may not be qualified in family law. It’s inconceivable that somebody with the authority to make a final recommendation to a judge over a child custody case wouldn’t be qualified! Finally, what is the purpose of psychological evaluations when there is no history or mental illness or been alleged? It’s a useless step in the bureaucracy. Eliminate this mandatory requirement and save the family some time, money and aggravation.
Change the family court system to a non-adversarial system. The courts should encourage the participants to negotiate. If they can negotiate their own settlement then they are more likely to work together after the court decision. This is certainly complies with “the best interests of the child” standard that family courts are to use when determining custody.
Finally, there should be a central database to track family law filings. This would help prevent duplicate filings or a process known as “jurisdiction hunting”. Jurisdiction hunting is the process of filing legal proceedings in another jurisdiction for reasons such as a history of higher child support, favorable towards one gender over the other, making the other party travel for court appearances and thereby incurring financial hardship, etc. The central database would alert jurisdictions to a case that has already been filed elsewhere.
All of these solutions would reduce the financial hardships on families who are already going through a traumatic experience. The experience is only made worse by a trial. If your attorney is successful in destroying your spouse and former best friend whom will you celebrate your victory with? Your children will be depressed over the result no matter who wins. You’ll be lucky to get a hug from your attorney. He just wants his money. In addition, by settling their cases prior to trial the parties might even remain friends. I’ve remained friends with 2 of my ex-wives. It’s no coincidence that they are the ones who I was able to settle my cases with. The only one I’m a not friend with now is the only one I had to go to trial against and we haven’t spoken outside of court in 10 years. I’ve been told that divorce is the emotional equivalent to being widowed. It doesn’t need to be the financial equivalent as well.
