AFTER MORE THAN FOURTEEN YEARS OF PRESIDING IN FAMILY COURT, ONE QUESTION HAS NEVER CEASED TO AMAZE ME: how can two parents who love their child allow a total stranger to make crucial decisions about their child’s living arrangements, health, education, extracurricular activities, vacation time, and degree of contact with each parent? This question becomes even more mind–boggling when one considers that the stranger making the decisions is a judge, whose formal training is in the law, not in family relations, child development, social work, or psychology. Now add the fact that, because of heavy caseloads and crowded dockets, most judges have to make numerous child custody, access, matrimonial property, and support decisions every day on the basis of incomplete, subjective, and highly emotional written evidence (called affidavits), with virtually no time to get to know the parents and no opportunity to meet the child whose life is being so profoundly affected. What person in their right mind would advocate for this method of resolving parental conflicts flowing from family breakdown? These are some of the questions that family court judges agonize over. Some say the answers are complicated and have much to do with social conditioning, economic class, levels of education, sophistication, familiarity with community resources, and even culture. I say the answers are simple.
The institution of marriage has not been a great success in North America. The United States has the highest divorce rate in the western world, followed by the United Kingdom and Canada.1 Moreover, divorce statistics do not take into account couples who lived in common–law (unmarried) relationships and broke up. There is no reliable way to track the breakup rate for those couples, but you can be sure that it is at least as high as the divorce rate. There are also many thousands of couples who never lived together, but had a casual relationship resulting in the birth of a child. Family courts are heavily populated with such couples, but we have no way of knowing their numbers in society at large.
We do know that the vast majority of couples who break up manage to settle their affairs, including the custody and access arrangements for their children, without ever setting foot in a courtroom. The most common way to achieve this is by separation agreement or some other form of domestic contract (see Chapter 12). However, for the many couples unable to reach agreements, the family court becomes the place of first and last resort.
What we judges see in family court is beyond belief and certainly more dramatic and gut–wrenching than any television show or movie. If you don’t believe me, visit any family courtroom in any town and chances are you’ll see real–life examples of what I will describe in this book. As any family law lawyer, judge, or litigant will tell you, family court litigation is expensive, time–consuming, unpredictable, and highly stressful. The level of hostility and anger between parents involved in high–conflict custody disputes is often so toxic that it is almost palpable. I have dealt with thousands of couples whose bitterness toward each other coloured every aspect of the proceedings and completely diverted the focus away from the children and their needs. Frequently, I get the impression that such parents are in a struggle over power and control or are on a quest for vengeance and self–validation that has nothing to do with their children. Imagine how difficult it is for a judge to make the best possible decision regarding a child’s living arrangements when faced with parents who seem unable or unwilling to focus on their children. Sometimes I have had to involve a child protection agency and place the children in foster care to insulate them from the parental conflict (see Chapter 11). On more than one occasion I have been told by a parent that he/she would rather have his/her children living in foster care than with the other parent. On one even more appalling occasion, I was told by a parent that it would be better for the children to be dead than to live with the other parent! This is the tragic reality of family court.
Everyone who works in family law, including judges, agrees on two things: family court is not good for families, and litigation is not good for children. The emotional carnage resulting from family litigation, and its impact on the unfortunate children of warring parents, cannot be overstated. And yet, family courts everywhere are jammed with couples asking judges to decide who gets custody of their children, how often the children will see the noncustodial parent, how the matrimonial property is to be divided, and how much spousal and/or child support must be paid. More surprisingly, an alarmingly high number of people appear in court without a lawyer and try to navigate the court process on their own, without any idea of their rights and obligations, the procedural requirements, the rules of evidence, or the types of orders a court can and cannot make. As you might expect, the results for these people are often extremely frustrating at best and disastrous at worst.
Ask anyone who has ever appeared in family court as a litigant — even if they had a lawyer — and they are almost certain to describe their experience as unsatisfactory. Why? What can be done to help people so that their family court experience is more predictable, more positive and constructive, less time–consuming, and consequently more beneficial to themselves and their children? An even more important question is, What can be done to help people avoid going to court in the first place? That is what I am going to explain in this book.
What is the difference between the couples who settle their disputes privately and those couples who require a judge to make the decisions? Do the parents in the first group dislike each other any less than those in the second group? Does the first group have access to resources unavailable to the second group? Do the two groups come from separate and distinct socio–economic or cultural groups? Not in my experience. In my opinion, the major difference between couples who resolve their disputes privately and those who turn to a judge has to do with one overriding characteristic: maturity. We who work in family court know that a person’s maturity level has nothing to do with economic circumstances, education, culture, race, religion, or sexual orientation. We see rich people and poor people in our courtrooms, and we see people from all walks of life and from every racial, cultural, ethnic, and religious background, and from every lifestyle and orientation imaginable. Trust me: judges see it all. What we don’t see very often in our clientele is maturity.