THE BREAKDOWN OF AN AMERICAN SYSTEM: Why Family Law Has Failed Our Children
A System in Ill-Repair
With the creation and development of our family law system, undoubtedly the brightest minds put forth their best efforts to create a system that would do right by our children. What we have been left with today, however, is a system that significantly struggles with achieving its goal of acting in the best interest of the child. How have we reached this point and what can we do to correct it?
Over the last century, family law has undergone tremendous transformation, as the concept of "family" has changed, as roles within the family unit adapted to changes in culture and as the court system started to recognize the individual rights of the mothers, fathers and child.
Our legal system was born out of old English law, which has been slow to change its major flaws. In old English law, the father's rights were only recognized by the court. The mother was essentially a womb through which her husband produced preferably male heirs. Children were viewed as members of the family workforce. Should the union between man and wife dissolve, whether that be the woman at fault by way of infidelity, or it was the man's doing or decision, the father kept the children and the mother was expelled and banned from the family, and often from the entire village.
Although the majority of old English law has since been rightfully modified within the U.S., many of the base philosophies still influence today's modem system. According to a nationwide study conducted by the New England Law Review in 1990, if fathers ask for physical and legal custody of the children, they are so awarded over 70% of the time. Other studies indicate that not much has changed in the last 15 years, in fact, the percentage of paternal custody wins has continued to increase. Many studies even note that during the eighties, there was a brief trend where mothers were assumed to majorly win custody and fathers rarely fought for their rights. As a result, when fathers did start contesting maternal custody, a trend was born within the court designed to counter this bias and in turn allow fathers more rights. The result was that the pendulum swung very heavily to the other side and unfair treatment and disregard for mothers' rights to be in the lives of their children was established. That's where we are now. We have just about come full circle, where the father wins custody the vast majority of the time.
The Gender Winner
Currently, the favoritism toward the divorcing father is also solidified by other factors. Four out of five men who divorce end up remarrying within the first year, where only one out of five women remarry within the first five years. This is thought to be because men are more accustomed to having necessary domestic tasks handled by the wife, where women are used to their roles and responsibilities in both the home as well as the workplace. Men remarry, for one very important reason, among others, to ensure their domestic life is properly taken care of. This is especially true if they have children. Couple that with the fact that after divorce, a woman's household expenditures increase while her income typically decreases. With a man it's the opposite. Divorce seems to favor him financially as well.
The court tends to award the children to the parent with two specific conditions: a two parent home, which as noted is almost always the father, and to the household with the largest income, also majorly the father. Although it is against the law for the court to favor one parent over the other because of income, it is still widely done. Even if the decision is not made by the judge directly as a result of his assessment of each parent's finances, the parent who has the greatest income will invariably hire the strongest family law attorney, which in itself has a huge impact on who wins. And those who go pro per, (a Latin Term for too poor to afford an attorney) are asking to be annihilated. Family court is like a tennis match. Showing up with a mediocre attorney or no attorney is equivalent to showing up to a tennis match with either a mediocre partner or no partner at all against a player teamed with a pro. You might as well not show up at all and avoid the humiliation. You must though, because you are playing for the highest stakes in existence: the right to be in your children's lives.
Good Intentions
What are the things that actually work within our system? Mediation is supposed to. This is the process in which a trained social worker specializing in family and child psychology meets with each parent both separately and together, and if the kids are old enough, say over five or six, interviews them as well. Then based on his or her findings, attempts to help the parents come up with a compromise they both can agree on for custody and visitation. If no compromise can be reached, he makes a recommendation to the court outlining what he thinks the custody arrangement should be.
Unfortunately this process is very subjective and often boils down to which parent can influence, sway or impress the mediator the most. This is especially dangerous because most often the parent who is the most sinister, manipulative and who has his or her own agenda, separate from that which is truly in the best interest of the child, is also the one who is best at persuasion, manipulation and influence. In most courts there is still a safety gap, the judge, who will examine the facts of the case separate from the mediator's opinion and make his judgment based on his own assessment, merely weighing in the mediator's recommendation. But in a few courts, specifically ones in California, it is a mediator driven system, which means that the mediator's recommendation is adopted regardless of any other facts or conditions of the case about 98% of the time. In these cases, a manipulated or misinformed mediator has the power to remove the more suited, well balanced parent, the one who is actually focused on the children and not just seeking revenge, from the children's lives. And because the courts move at such a excruciatingly slow pace, it is not only possible but likely that the losing parent will be stuck waiting years to be back in the fast flying, rapidly changing lives of their youngsters.
Truth or Fiction?
The courts are too busy to verify statements put down as "facts" in court documents. For instance, a parent may repeatedly accuse the other parent of having a drug addiction. Although the accused parent has never had a drug problem, has never been arrested, never hurt the children in any way and instead has been a stable, contributing part of society, the accusing parent has thrown so many false statements in writing and verbally at the court that before long, the accused parent gets stripped of all parental rights. This means they are not allowed to see their children at all and have no say in the kids' education, religious upbringing or even health decisions,
Could or does this actually happen in our country? It does. Conversely, parents who have arrest records and drug convictions longer than their arms end up with custody. The system is dangerously broken, routinely sacrificing the most vulnerable and undeserving victims of all: our innocent children.
What to Do...What to Do
The horror stories born out of our family law system are way too many to cover in several books, much less an article. But what can we do about it? There are a few things, but it would just be a humble beginning to solving a monumental problem.
First, the courts need to figure out a way to lighten the load by hiring more judges and hiring only ones that also have extensive training in human psychology and preferably deceit detection. They should hire fact checkers and have them verify with neighbors, teachers or other surrounding, unbiased sources any and all serious accusations put in the declarations to the court. It should be known and practiced that if you lie about the other parent in any significant way, you will be doing jail time.
There should be a reform of the system that limits what a parent can pay a divorce attorney. There should also be a system in place allowing a parent to make payments to their attorney and not be required to come up with outrageous, unattainable retainers just to get an attorney to step foot in court on their behalf. The attorneys should be held accountable too. They should be disbarred if it is proven that they presented to the court as fact something influential that they did not verify or had reason to believe wasn't an accurate truth.
Mediators should not have the final word, and there should always be a second mediator from a different courthouse available to look over the case should that recommendation be one that would show any degree of bias toward one parent.
A children's advocate, an attorney specifically for the child, which does exist but is rarely used, should be a part of every controversial case. Furthermore, there should be a child psychologist not on staff but contracted out and separate from other court employees' influence ready and able to interview the children to find out what's really going on, and include their input in influencing the judge's final decision.
The 730 Down and Dirty
Currently there is a process called the 730 Evaluation that is conducted by a highly specialized psychologist who does actually interview, spend time with, psychologically test and ultimately evaluate both parents, the children and the dynamic relationships between them, as well as other parties close to the parents and children, such as significant others, grandparents, babysitters and sometimes even teachers and other professionals.
This type of evaluation is designed to detect major issues, such as drug or alcohol addiction, mental disorders like bi-polar disorder or schizophrenia, as well as personality disorders like sociopathic personality, extreme narcissism and character flaws such as an obsession with vengeance, excessive self absorption and any other variations from societal norm that may be causing or ultimately cause harm to the children. The goal is to determine if both, or if not, which parent is most likely to rear a psychologically and physically healthy child. As great as it sounds, and it can be effective, this system is not without its own flaws.
The biggest downside to this process is the fact that the psychologist gets his business from referrals through the court and in the community. These referrals are often from the attorneys themselves, therefore to ensure future business from all sources, the evaluator must maintain a reputation of not being too negative toward either side. If he or she slams one of the parents, however it may be deserved, that side's attorney will not only have a better chance of getting the entire opinion discredited because of bias, (even if that bias was warranted) but it will also set a negative precedent with that attorney, his or her office, colleagues and business acquaintances. A couple of repeats like this and an evaluator's reputation could be destroyed.
So what happens unless there is obvious, blatant harm coming from one parent is that the report becomes more of a balancing act, pointing out flaws and benefits of both sides, typically resulting in some sort of shared custody formula. Also, the testing itself is pretty easy to manipulate, especially for a fairly smart parent. For instance, one would know not to answer the question, "I hear voices from people that aren't there," in the affirmative even if they do, and not answer yes to, "I sometimes enjoy using drugs recreationally," even if they smoked a joint for breakfast. The psychologist himself attempts to gain the trust of each parent in a buddy buddy sort of manner, but the astute parent would know not to let their guard down and admit they fantasize regularly about killing the other parent, even if it is a constant theme in their thoughts.
Not Wealthy? Not the Game for You
The 730 evaluation comes with a hefty price tag as well, ranging from as low as $3,000, or $1,500 a piece upwards to as much as $20,000, depending on the complexity of the case, the length of its history in the courts and how many multiple stacks of lengthy, complicated documents the attorneys provide for review. Again. it does center around money. If a feuding couple doesn't have it, they may be stuck in court for years at the mercy of an evaluator who may often be biased and is basing his or her decision on a few minutes a couple of times a year spent with the parents. Or it could be a judge who decides based falsified, unverified accusations and statements. Or it may come down to who can ultimately afford the most effective, well liked attorney.
Suffer the Children
Many well formed, extensive studies have been done on children who are subjected to the suffering of feuding parents. All agree on two facts: children who grow up aware of the fact that one or both parents hate the other, and realize they are pawns in a vicious war, almost always grow up with two major problems. First, they are likely to suffer from depression. Second, they often times develop an attachment disorder in their adult relationships. In other words, they find it more difficult or even impossible to form deep, intimate, emotional bonds with those they become attracted to.
There really is no clean, simple solution to stop what we are doing to our children. Education would certainly help, as would closer monitoring of the court process and harsher punishment for those deceiving the court. A limit to how much can be spent on the hired guns would balance the scales as well, and making the 730 Evaluation more financially accessible to the masses would be great too. However doing this would also lower the quality of the psychologists doing the eval's, because less money in that field would mean more mediocre psychologists from unimpressive schools would dominate. Unfortunate as well is the fact that the courts are almost always in budget cutbacks. Society as a whole is not willing to sink more tax dollars into our court system when there are hospitals in disrepair, roads with annoying potholes, schools cutting programs and underpaid teachers.
Could Knowledge Fix a Flawed System?
Perhaps going to the source of the problem by insisting that parents are educated on what their hatred of each other and fighting are actually doing to their kids might help. Children don't come with an operating manual and neither does marriage. If the courts could become better versed in utilizing established psychological guidelines for determining the actual mental health of the feuding parents as well as placing a stopgap to prevent mediator bias and favoritism with certain attorneys who get utilized by the wealthier parent, our children might actually someday stand a chance at being placed with the healthier parent the majority of the time while not losing the chance to know both. No outcome in family court is ever ideal, but our current system definitely needs a more in depth approach to determining the true best interest of our children.
About the Author
As a very dedicated, passionate mom to two incredible, sweet boys, now 10 and 11, Elisa Christensen has been embroiled in a high-conflict custody battle since 2010.
As a result of a few major mistakes she made in the beginning, combined with a definite financial disadvantage, she lost all custody and visitation of her sons in 2012.
Steadfast and singularly focused on becoming a regular part of her sons' lives once again, she has forged ahead, despite little progress, unbearable expense and debilitating heartbreak.
As of February 2017, she is only being permitted an hour of visitation with her sons about once a month, as well as ten minute phone calls with them about twice a month.
