A good friend of mine is tied down in never-ending litigation in family court. He’s trying to get back into the lives of his children. He’s never been accused of abusing them. He pays his child support dutifully. He’s never neglected them. But he’s still been locked out of their lives for a couple years now.
So I gave him some legal advice the other day.
“Walk away and don’t fight to try to get back into their lives. They will come back to you in time.”
That sounds counter-intuitive to most of you, I am sure. Shouldn’t he fight to get back into his kids lives?
It is sometimes said that possession is nine-tenths of the law. This is nowhere so true, or so evident, as in the family courts. Once parents separate or divorce, the parent who has the children under his or her roof has power. Once a non-custodial parent loses regular contact with his or her children, it is difficult to repair the relationship. The courts cannot repair these fractured relationships.
Divorce is cruel. It is part murder and part suicide. There’s no easy death for love. Too often children are made into the pawns of grieving parents. When that happens, the courts are called upon to make decisions about who sees the children and when.
Woe betide the parents forced into family court seeking to resolve issues involving their children. These courts are financial and emotional wastelands.
I’ve tried all sorts of cases before judges and juries. Murder cases are far less violent and traumatic than a child custody case. In fact, in New Haven, the courthouse marshals often joke that they worry more about their safety on the third floor, where divorces are tried, than on the sixth floor, where serious criminal cases are handled.
Consider what happens in far too many cases. Two parents can’t agree about how to raise a child. One files a motion in court. If the case can’t be resolved, then there are hearings. If the conflict is severe enough, a guardian ad litem might be appointed. This person serves as an adult voice for the child.
Then an attorney might be appointed to represent the child. Mom will have a lawyer. Dad will be lawyered up, too. They’ll be sent to mediation, and then, perhaps, to expert psychologists for evaluations.
Soon half a dozen or more highly paid professionals are all on the clock. Professional fees mount. The parents are now spending all the money they can to win a war for the hearts and minds of their children. And the court system encourages that tawdry game.
In Connecticut, a person must take a course sponsored by the Judicial Branch to became a guardian ad litem or an attorney for minor children. The course is taught, in part, by the very experts who offer their consulting services, for a fee, to the litigants in family cases. It’s all very chummy, very clubby. The family courts are a close-knit clique.
These courts mean to do well by children. Indeed, the courts aim to do more than well, they aim to do the best they can for kids. Hence, the legal standard used in deciding what to do with children when their parents can’t agree — the best interests of the children.
The problem with this standard is that most of us fail to meet it far more often than we admit or even know. My parents were far from perfect, and, as my children know, I failed them often enough in significant ways. But love holds most families together most of the time.
In family law conflicts, the best interest of the child standard becomes the benchmark of warring professionals. Each party lawyers up. The parties retain experts each supporting different visions of the best. Then everyone heads to court. Sit in a courtroom sometime as mom’s lawyer, dad’s lawyer, the kids’ lawyer, the guardian ad litem, and the psychologists try to decide what’s best. It will make you weep.
Years ago, I thought the woman who taught my family law course was unhinged. She had us read science fiction. I was offended. What I wanted to learn was what justice required. What legal doctrines led to the right result when a family dissolved because the parents decided no longer to live together?
It wasn’t until I wandered into the family courts as a litigator that I realized how wise the professor was: Nothing prepares you for the sorrow, the rage, and the heartache of family law.
So I told my friend to walk away from his conflict. “Leave now,” I said, “while you still have your self-respect. Leave before you enrich the lawyers and the professionals, all of whom will bill you by the hour to pretend to know what is best for your child.”
Custody battles aren’t decided by juries in Connecticut. That’s a mistake. We say the issues are too complex for juries, and entrust them to judges. But my hunch is that communities are far wiser than even the most astute individual. Why not let a jury of 12 decide what to do with a child when the parents can’t agree?
Plato once wrote that the rearing of children was too important a task to be left to individual parents. He counseled having all children raised by the state, a view he abandoned in his later writings.
But I wonder.
When two parents can’t agree about how to raise their child something serious has gone wrong. Turning to the courts for a decision involves the community.
I think often of King Solomon when I see families headed for court. When asked to decide to whom to give a baby as between two women claiming to be the child’s mother, Solomon proposed cutting the baby in two. One woman agreed; the other objected. He gave the baby to the mother who would not see her child harmed. He let love decide.
Why not a presumption in courts that parents who cannot agree to raise their child should have the child sent to foster care? I suspect most parents would learn to agree before that happened. And for those who would not, let a jury decide the case once and for all while the child is in temporary custody.
Then give the child to those who can love him or her without condition.
The family courts are cruel, costly and too often sadistic. We ought to shut them down and start over. My friend should run while he can — before strangers suck him dry.