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1 The family justice system
What it is, how it works, and an ideal unified family court model
Introduction
[W]hile the challenges of a contemporary . . . family court docket may be fierce, we can unquestionably find ways to meet them and do better. I am simply unwilling to adopt a despairing and defeatist attitude that “nothing works” or—put another way—“everything stinks,” but don’t change a thing.1
[W]orking to devise a system that will better serve the needs of the public need not affect a court’s ability to judge the merits of an individual case fairly. . . . [T]he goal is to improve outcomes within the framework of the rule of law . . . .2
Many societies assert that families, however variously defined, are their foundation, without which the societies would not exist.3 “The family is one of the most important social and political institutions.”4 “Parents who raise happy, healthy, and successful children create an especially important public good. Children themselves are not the only beneficiaries. Employers profit from productive workers. The elderly benefit from Social Security taxes paid by the younger generation . . . . Fellow citizens gain from having productive and law-abiding neighbors.”5
We expect families to support and care for their members, including children. When families need help with intrafamilial issues, one of the many places to which they turn is the justice system. “Society’s problems inevitably find their way into the courts . . . ,”6 many as family legal issues. But do a family’s problems matter to anyone other than the family members? Jill Hasday summarizes the vast significance of family law:
Family law shapes social organization, economic status, intergenerational relationships, intimacy, childhood, maturity, and everyday experience. It reflects and influences how . . . [we] think about gender, race, class, sexual orientation, and other divides and helps determine how those categories will impact people’s opportunities, choices, rights, and constraints. Family law helps structure both the details of daily existence and the overarching features of society.7
John Eekelaar and Mavis MacLean contribute to the conversation about the importance of family law. “At its heart, family justice is about how far the community believes it should become involved in problems people encounter in their personal lives.”8 Pauline Tesler argues that the community is, in fact, “an invisible stakeholder in every divorce,”9 as divorce “generates consequences that affect public health, community engagement, the workplace and the economy, and the raising of a healthy next generation . . . . ”10
Families routinely request courts to undertake many tasks, including dissolving state-created marriages, determining parentage, deciding where children shall live, protecting family members from abusive behavior, determining property use and possession, creating and enforcing spousal and child support awards, terminating parental rights, sanctioning adoptions, granting name changes, and ordering withholding or withdrawal of life-sustaining medical procedures, among other tasks.11 Pauline Tesler describes the complicated nature of family law proceedings.
Family restructuring involves a complex multiplicity of financial and relational issues, driven by powerful emotions of traumatic dimensions that often overwhelm parties’ thinking and coping capacities as well as their physical and mental health. It often requires ongoing parenting of children after judgment, calling for nuanced recalibration of solutions as children grow up, parents relocate, and blended postdivorce families form and come apart again. Moreover, divorce and family restructuring implicate interests that go far beyond the individual spouses, affecting not only children, but also extended family and friendship networks as well as significant relationships in the community and workplace.12
Families are coming to courts for assistance in increasing numbers.13 In fact, “[t]he family courts have, in effect, become an emergency room for family problems when separating or divorcing parents have nowhere else to turn for help in addressing their problems with each other and their children.”14 The problems that bring families into court “lie at the heart of what we hold most dear, our privacy, our homes, our spouses or partners, and our children.”15 Andrew Schepard, in discussing child custody in particular, also frames the issue using a medical analogy. “In the same way they go to the emergency room, parents go to the child custody [family] court when the symptoms of conflict become acute and need immediate treatment.”16 Does society have an obligation, then, like an emergency room, to dispense care to families in court?
An examination of family justice across the United States, England, Wales, and Australia demonstrates that there is a trend to reduce the significance of courts and lawyers by implementing private or government-funded resources that displace or diminish the role of the court system.17 Nonetheless, the study concludes that the benefits derived from these innovations may be outweighed by their limitations. The authors conclude that “despite the move to privatized forms of dispute resolution, family justice still demands a sound judicial structure.”18
That some involvement [by the state] can be justified can hardly be in doubt. The state surely owes duties over those with respect to whom it claims legal and political jurisdiction. It owes duties to the children who will constitute its future members; it owes duties to the vulnerable and must surely be under an obligation of some kind to endeavor to promote a just society in accordance with the values it claims to uphold.19
Further support for the continuing significance of courts comes from the National Center for State Courts.
Courts exist in our system of government for several critical reasons. First, it is through courts that those seeking justice can obtain it, regardless of wealth or power. Courts exist to ensure that asymmetries of power do not dictate the outcome of disputes. Second, in our common-law system, a public record of court decisions is essential for establishing and updating our legal system. When disputes are resolved in private venues, information is denied to the public and to those seeking to ensure appropriate regulation of social and economic life. And third, the judiciary plays a key role in ensuring checks and balances on the power and actions of the executive and legislative branches.20
Judicial authority is another important characteristic that only courts can provide. “Litigants will often respond better to guidance, encouragement, and reprimand when it emanates from the bench as opposed to from other sectors within the . . . civil justice systems.”21 Judicial oversight also helps ensure fair and equitable results, particularly where parties differ in their levels of education and understanding of the issues.22 “[A] judicial proceeding could, in effect, protect the parties from their own ignorance of the law.”23
Family law in particular “must continue to be an active part of the greater court. . . . Families are not well served if family law either intentionally or inattentively distances itself fr...
