The inherent issue with our current family law system is its lack of focus on therapeutic resolution for the complex challenges faced by families in today’s society. When marriages break down, issues concerning child custody, financial support for children and spouses, and the behavior of all parties involved are not adequately addressed by the traditional confrontational legal approach.
When clients express concerns about their ex-partner’s behavior and request court intervention, it’s important to explain that courts are not designed to dictate how people should be responsible or nurturing parents. Instead, the court’s powers are limited to imposing penalties like imprisonment or fines, which often fail to address the underlying issues effectively. Furthermore, courts with extensive caseloads do not have the capacity to educate or guide emotionally charged parents on appropriate behavior after their marriage has ended.
An Adversarial Family Law System Traumatizes Divorcing Parties
The divorce process can be particularly traumatic for most individuals as they are already grappling with the emotional toll of their marriage breaking down. Navigating the courts only adds to this distress, especially when facing a black-robed judge, separated from the parties by a high bench, which can be an intimidating and nerve-wracking experience. Even as a seasoned trial attorney, I vividly recall how daunting it was to go through divorce twice.
Many individuals going through divorce perceive the family law system as inherently unfair to specific groups. Some believe that fathers, particularly Black fathers, are treated unfairly in custody disputes, while others think that women are not treated justly in support matters. Consequently, family lawyers often advertise their specialization in representing either fathers/men or mothers/women to attract clients seeking to level the playing field.
The Current Family Law System Requires Radical Reforms
Instead of subjecting individuals to the current family court system, a more effective approach would be to establish a specialized tribunal dedicated solely to divorce, support, and parenting matters. This informal tribunal would focus on collaboration and strive for the best outcomes for all parties involved.
Each case would be overseen by a panel of three professionals: a lawyer, a family counselor, and an accountant, all well-versed in the complexities of family dissolution. These professionals would be paid by the State to ensure impartiality.
For cases involving financial complexities, the panel could refer certain issues to an approved financial analyst, with the cost covered by the parties. The process would assume that higher asset or income cases may require such expertise, particularly for individuals involved in closely held businesses or intricate financial transactions.
The tribunal would convene in an informal setting, such as an office or business conference room. Parties would provide pertinent information through forms to ascertain assets, income, and other relevant details. Presumptive levels of support and asset division, previously determined by attorneys, would be reviewed by the panel. Any exceptions to these presumptions could be discussed during the proceedings.
With experienced professionals on the panel, legal and financial issues could be collaboratively resolved, including mediation if necessary. The objective is to eliminate the “win/lose” climate from the process, ensuring that parties know what to expect and experience less trauma as a result.
Uniform ground rules of behavior would apply to everyone, and both parents would have equal rights to custody, subject to adjustments approved by the panel and the parents. Court-appointed counselors would be available to guide parents and children through this new phase of their lives, fostering a non-combative approach to divorce.
With clear expectations set by the panels, there would be no need for lawyers to represent a specific gender or role. Fathers and mothers would know what to expect, and the focus would shift towards helping parents problem-solve peacefully and respectfully. Mandatory education and parenting classes, as well as financial counseling for non-compliance with panel rulings on support, would be implemented. The goal is to provide assistance rather than impose punitive measures, and in cases of willful non-compliance, the individuals would be assigned to criminal court dockets for more stringent guidance.
Shift the Resolution of Psychological/ Behavioral Issues to Mental Health Professionals
The intention behind this new approach is to encourage greater compliance with expert-driven decisions rather than court decrees from judges who may not fully grasp the complexities of divorce’s impact on a family. Judges are trained to handle trials, not necessarily to address family issues effectively. By providing parties with an opportunity to discuss their concerns with a panel of experts who can understand the broader context, the experience would be more therapeutic and less traumatic.
The primary objective is to shift the resolution of psychological and behavioral problems to those with the expertise to handle them. Unlike the dissolution of a corporation or partnership, the dissolution of a marriage is not merely a legal matter. Attempting to fit this emotionally charged process into a legal framework has often proven unsatisfactory for most divorcing couples.
With the proposed system, individuals with psychological and behavioral issues will receive appropriate help and guidance on how society expects them to behave. Knowing that their concerns will be addressed by knowledgeable and experienced professionals will enable countless families to navigate the divorce process with reduced trauma and seek the necessary support for a smoother transition.
