Resolving Family Conflicts

Jane Murphy, Jana Singer

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780754626596
• eBook ISBN: 9781351903820
• Topic: Droit
• Subtopic: Droit de la famille

Over the past two decades, virtually all areas of family law have undergone major doctrinal and theoretical changes - from the definition of marriage, to the financial and parenting consequences of divorce, to the legal construction of parenthood. An equally important set of changes has transformed the resolution of family disputes. This 'paradigm shift' in family conflict resolution has reshaped the practice of family law and has fundamentally altered the way in which disputing families interact with the legal system. Moreover, the changes have important implications for the way that family law is understood and taught. This volume examines the contours of this paradigm shift in family conflict resolution and explores its implications for family law scholarship and practice. The interdisciplinary compilation includes contributions from lawyers, legal academics, social scientists and mental health professionals. As the articles in the volume demonstrate, the transformation in family conflict resolution holds considerable promise for disputing families, but it also raises a number of challenges. These challenges include concerns about the institutional competence of courts, the surrender of fact-finding and decision-making to individuals without legal training, the loss of autonomy and privacy for family members subject to continuing court oversight and the disjunction between problem-solving justice and authoritative legal norms. By exploring both the promise of the new paradigm and its potential pitfalls, this volume engages family law scholars and offers insights to judges, practitioners and policy makers responsible for serving families in conflict.

Part I
Theoretical Foundations

[1]

In the Best Interests of Children: A Proposal to Transform the Adversarial System

Gregory Firestone and Janet Weinstein

In the traditional family law and child protection litigation where the court is asked to make determinations based on the best interests of a minor, the adversarial, rights-based model often fails to serve the interests of children and families and may be more harmful than beneficial to children relative to other possible methods of dispute resolution. This article examines the shortcomings of such an adversarial, rights-based model; briefly highlights the literature on dispute resolution systems design; and then proposes a new approach to better serve the interests of children in family law and child protection cases.

As many others have previously discussed, the adversary system is often unhealthy for children.¹ In the traditional family law litigation process and the child protection system where the court is asked to make determinations based on the best interests of a minor, the adversarial, rights-based model typically fails to serve the interests of children and families and may be more harmful than beneficial to children relative to other possible methods of dispute resolution.

Shortcomings of the Adversary System

Our legal system generally relies on the notion that adversaries in a legal dispute will draw forth all information relevant to the contest in the process of putting forward their best positions, thereby allowing the decision maker to determine the “truth” and to make the best decision. Although the goal of an adversarial, rights-based model is to best serve the interests of children, the current system has a number of shortcomings that undermine the best intentions of the professionals involved.

“Legalization” of human problems. The best interests of children in divorce and child protection cases have become defined as primarily a legal problem; in reality, they are much more complex psychological, social, and legal problems that typically become intertwined into other issues such as child support. Family relationships have become “legalized” in such a way that the system loses sight of the human problems in context and focuses only on addressing answers to the legal issues. The failure to better examine family problems contextually results in little recognition for the ecological perspective of family dynamics. Greater understanding of cultural mores, for example, has no place in a system bound by the act of fitting evidence into the fixed definitions of a statute. The law is not the appropriate forum for assisting dysfunctional families to function better. Resolution of the legal case often does little to improve or resolve the underlying family dynamics.

Disempowerment and dehumanization of the participants. Parents, accustomed to being the decision makers in matters pertaining to their children, typically become disempowered in litigation. In child protection cases where parents allegedly have failed to adequately care for or have abused or neglected their children, not enough effort is made to enable the parents to participate collaboratively with others in determining what services will be provided. In litigation, parents often become frustrated because rules of procedure and evidence may work to distort the facts on which the decision will be made. Parties may not be able to tell their stories, instead having to make the facts fit into the categorized requirements of the law. What seems to be actually relevant to the parties, what they need to say to feel heard, may not be presented to the court and may be seen as irrelevant to the proceeding.

Clearly this is also a dehumanizing experience. Although some attention has been paid to attempting to create a more humane and child-centered courtroom, the process of engaging in a battle with family members is rarely, if ever, a positive experience; certainly it is not for the children who are often placed in the middle of this warfare. Nor is it generally helpful to the parents or to the professionals who are trying to help them mend family relationships.

Rights over interests. Although the focus on the best interests of the child does create some pressure for parents’ attorneys to couch their arguments in terms of what is best for the child, the court in child protection and custody disputes cannot ignore the rights of the parents. Concerns regarding gender equality have further² focused the discourse on parental rights; many believe the end product has been court orders that fail to honor family relationships.³ This focus on the rights of the parents in custody and parenting disputes often occurs without a discussion of the responsibility adults owe to their children.

Zealous advocacy. The lawyer’s ethical obligation to zealously represent his or her client is probably the cornerstone of the adversary system. The zealous advocate protects the rights of the client and cannot, according to principles of professional responsibility, do anything that would diminish the rights of the client. This kind of behavior is inappropriate for matters in which the court is required to determine the best interests of the child. Zealous advocacy of a client’s rights may be counter to the best interests of the child, and such advocacy tends to further escalate existing conflict between the parties and cause greater harm to the child.⁴

Destruction of ongoing relationships. Preservation and healing of relationships between the contestants is not a consideration in this model, even though in cases involving the custody and welfare of a child, relationships are at the heart of the matter. Disputes involving the custody of children, particularly where abuse and/or neglect by one or both of the parents is alleged, tend to be among the most bitterly fought legal battles. It is critical to recognize that one of the most consistently reported findings of divorce research involves the toxic effect on children caught in the middle of ongoing conflict of their parents.⁵ The adversary process makes enemies and exacerbates existing controversy. There is no healing element in the process to help to mend relationships that have been damaged or to promote future healthy interactions. The effects of these broken relationships on children and parents are devastating and long lasting.

Delayed outcomes. Litigation takes too long, especially considering a child’s sense of time.⁶ In fact, in a divorce, the custody issue may never be truly final until the children reach majority age. Until that time, the parents may engage in ongoing battles over the best interests of their children. There is little doubt that the consequences of uncertainty and instability can devastate a child and affect functioning and performance in all areas, particularly the ability to form satisfying relationships as an adult. Although it is important that the process not be steamrollered so as to result in injustice to the parents and child, delays that have no real positive role in the determination of the best outcome for a family and child are not justifiable.

Expense of litigation. The adversarial system is based on the idea that people will be represented by attorneys who will bring forth the best case. In family law cases, the vast majority of parties are unable to afford counsel.⁷ In many jurisdictions, parents are unrepresented in child protection hearings, at least in the preliminary proceedings. Court time is also costly. Judges are paid for their expertise in the law and their skill in managing the trial process. Additionally, attorneys’ fees for litigation involve preparation time and time spent in court waiting for cases to be called. Experts are expensive and, in most states, there are inadequate resources to pay for adequate forensic reports in child protection and family custody cases. The focus on the litigation process drains resources from where they are really needed, in the delivery of services to families who are experiencing transition and disruption. In child protection matters, the cost of attorneys’ fees might be paid from the same budget that pays for services or social workers. In family court cases, parents might have to choose between having legal counsel and some other service, such as mental health or financial counseling.

Limited information for decision making. Special rules governing the relationship between attorney and client are an integral part of our adversary system. Client confidentiality and rules of evidentiary privilege mean that some information may come to the attention of the attorney but not be presented to the finder of fact, regardless of how relevant or material the information is to determining the appropriate outcome of the case. In proceedings where the judge is supposed to assess all the facts and make a determination as to the best interests of the child, barriers to full disclosure are barriers to accomplishing this end.

Past oriented. The adversary system is not dynamic and focuses largely on information about the past. Child protection and custody disputes are about the future welfare of the child. Although past acts may provide some help in thinking about the welfare of the child, they are not determinative. The family is a living entity, dynamic in nature, involving personalities and relationships that will change depending on how the family is reordered. Parenting may change after a divorce, so that an examination of parenting at the time of divorce is not necessarily the best indicator of what will occur later. The traditional legal approach requires a momentary snapshot judgment of the family structure, which does not serve the best interest of the child.

Exclusion of others. The adversary system typically involves a battle between the parties to the proceedings. Although others may participate as witnesses, third-party interests are not relevant to the outcome. Although the law may define the family as consisting of parents and children, others, including relatives, friends, counselors, and neighbors, can play substantial roles in the family. Particularly for cultures within our society in which extended family includes relatives as well as nonrelatives, the legal barriers that exclude these people from participating and contributing to the outcome restrict the ability to understand the family and its needs, and likely limit the number and quality of options for serving the best interests of children.

Polarized role of experts. The adversary system often pushes many helping professionals to become advocates for one position. Therapists, evaluators, teachers, physicians, and others often not trained to be advocates in the legal sense are usually more aware of the dynamic and contextual nature of the family and are uncomfortable taking such one-sided positions. For example, in child protection cases, social workers often become adversaries to the families they are supposed to serve. Similarly, mental health professionals who have testified frequently in best interest cases often adapt to the process with frightening success.⁸ For example, mental health professionals who rely on the adversarial legal system as a source of income may be concerned with more than the threat of being embarrassed by skillful cross-examination. Where more than one mental health expert is involved, the fact that they may be testifying for opposing parties may also tend to draw them into the role of adversaries rather than neutral, objective witnesses and impede their interactions.⁹ Opportunities for collaborative problem solving are foregone in allegiance to the adversarial process, which often only serves to confuse the issues with conflicting testimony.

Compromised use of mental health services. Parties who are in therapy may be more inclined to hide their own shortcomings for fear that any disclosures made in counseling may be later presented to the court. Mental health professionals often find that parties are less inclined to be ope...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I THEORETICAL FOUNDATIONS
• PART II COURT PROCESSES AND STRUCTURE
• PART III  THE ROLE OF LAWYERS AND OTHER PROFESSIONALS
• PART IV PREVENTIVE AND SUPPORTIVE STRATEGIES
• Name Index