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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

February 23rd, 2012 by Robert Franklin, Esq.
Should judges decide who gets custody of children?  I’ve suggested several times that it might be time to remove “family law” from the ambit of law altogether.  After all, the overwhelming majority of divorce cases involve no real legal questions.  Think about it.  Of what do divorce cases consist?  If there are children of the marriage, they involve child custody, visitation and support.  Whether or not there are children they involve the division of property and possibly spousal support.

The fact is that, in the vast majority of cases, none of those issues is of such legal difficulty that it requires a judge to decide it.  So why involve lawyers and judges at all?  It makes the entire process more expensive and more confrontational than it need be, and than it would be, I believe, if we just took the whole process out of the legal system. 

Of course there is the rare case that does contain a thorny legal issue.  When those issues are identified, they should be referred to a judge for a decision on them.  But for the other 99+% of cases, why not just refer all matters to a mediator who would work out an agreement for the judge’s signature?  It would be quicker, easier, cheaper and less acrimonious; only the lawyers would suffer, and who’s going to argue with that?

Here’s an article about one lawyer who’s arguing the same thing and for similar – and different –  reasons (Wall Street Journal, 2/22/12). 

Family Law matters, such as divorce and child custody, should not be decided in a courtroom, according to Family Law Attorney and Mediator Mark Baer. Instead, he says mediation and other forms of consensual dispute resolution should be the first choice in family law disputes.

As an attorney who’s experienced in family cases, Baer sees rampant bias on the part of judges.

When you have a judge deciding the fate and the outcome of child custody, spousal support, or any other family law issues, there is always a chance of a person’s bias tainting how they choose to apply the law. Despite how skilled a judge is and how dedicated they are to the legal process, when a final decision is made, much of what happens comes down to that person’s life experiences, values, and biases…

However, a judicial officer notes that, “Judges are trained to be sensitive to problems of bias; regardless, one does not undergo an instantaneous transformation from whatever one may have thought or believed as an attorney just by being sworn in as a judge or commissioner.”

…Knowing this, he points out that attorneys routinely try to determine in advance whether the judge assigned their case is biased for or against their particular client. “In Family Law matters, they select custody evaluators whom they hope are biased in favor of their clients,” says Attorney Baer. “This bias will impact a judge’s findings, which in turn, will impact how they opt to apply the law.”

He says this opportunity for bias exists in no other area of law to the extent that it does in Family Law and notes that no amount of bias elimination training will make a judge forget about their life experiences, assumptions, personal beliefs, and values.

Given the essential defects in the litigation system, Attorney Baer cautions those who use the court system for Family Law matters to explore litigation alternatives such as mediation or collaborative divorce, which do not rely on the decision-making process of a single person whose opinions and experiences can and do impact families’ lives.

Of course the bias of the family court system tends to go one way – against fathers and their children.  We see it time and time again in case after case and study after study. 

The problem with the concept of mediation as the cure-all for family courts is that it can’t be any better than the underlying realities of that system.  Parents who go into mediation knowing to a virutal certainty that Mom’s going to get primary custody from the judge and Dad’s going to be relegated to every other weekend plus Wednesday nights aren’t going to miraculously decide on something else.  Dad may want more, but he know’s he’s not going to get it, so he makes the sensible financial decision to accept the inevitable and keep his attorney’s fees to a minimum.

Yes, that’s probably less acrimonious than a trial, but the results are the same.  Mediation alone, without a change in the underlying statutes, won’t get rid of judicial bias, it’ll simply get parents to agree to it.

That said, I’m all for taking as much of the divorce process out of the realm of judges and lawyers as possible.  They tend to make matters worse, not better.

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