Q: You have been quoted as saying that the family law court system was not designed to handle divorce cases, what did you mean by that?

 A: Actually, I said that the family law courts were not designed to handle child custody cases.  Most legal matters involve a dispute over an event in the past, for example, did somebody commit a crime, did somebody breach a contract, did somebody do somebody wrong?  These questions the legal system is asked to answer by making a determination about what happened in the past and attaching consequences to that determination.  Child custody cases ask the judicial system to look into the future and determine what is the best intimate arrangement to serve a family going through divorce.  Law schools do not prepare people for that type of challenge.

Q: Why is there so much divorce?

A: Human relationships are inherently complex.  The idealism and romanticism that fires a relationship in the early stages eventually collides with the harsh realities of day-to-day life.  People then find out whether this “partnership” is sustainable or not.  Of course, it’s more complicated than just that, but for a short answer that will do.

 Q: Do you believe that “no fault” divorce is the cause for so many divorces?

A: No.  I’ve heard the argument that by getting rid of “no fault” divorce would prevent more divorces and I think the evidence belies that notion.  Being in the trenches of dealing with divorcing couples for more than 25 years I can state with some degree of confidence that “no fault” divorce is not the main culprit  It is my experience that most lay people are not that familiar with the concept of “no fault” divorce and most people do not take divorce lightly even considering the legal ramifications of a “no fault” system.  Also, “fault” divorce systems are laden with an equal, if not greater, bundle of problems for society.

Q: What problems are you referring to with “fault” divorce systems?

A: Well, the essence of a “fault” system is that you have to find something “legally wrong” with the other party.  When there are children involved that practically eliminates an amicable situation for the children as each parent scrambles to show how bad the other one is in order to satisfy the “fault” requirement.

Q: What are the most difficult divorce cases?

A: The most difficult cases where children are involved are the ones where there is an allegation of molestation or abuse.  Such cases present the biggest challenge to our family law courts. 

 Q: Why is that?

A: It is very difficult to prove whether such an allegation is true or not. This leads to many injustices as people in the system seem compelled to assume the allegations are true until proven otherwise which is very difficult to do.  Such cases are heart-rending because the children are either the victims of an actual molester or the victims of someone making false allegations resulting in them losing a parent.  It’s very sad.

Q: What do you think of “joint custody?”

A: First, my answer depends on what you mean by that term.  It’s a term with many different meanings.  It could be joint legal custody meaning the parents have equal access to the children’s records and certain decision affecting the children, it could mean a physical time-sharing of the children of 50-50 or some other sharing arrangement.  “Joint custody” doesn’t have a single definition.

Q: Okay, what about 50-50 time-sharing?

A: There is no way to answer that question without knowing the specifics of the situation.  For example, if the parents live in different states, a 50-50 time-share will not work.  I don’t believe in blindly imposing any schedule on a family because it is necessary to look at the work schedules of the parents and the needs of the children, but I am not opposed to 50-50 in general.

Q: Doesn’t a 50-50 time-share cause more problems for the children?

 A: No.  It’s not the time-share that causes problems for the children, it’s exposure to parental conflict that causes problems for the children.  A traditional alternate weekend time-share can cause problems for the children if they are constantly exposed to parental conflict.

Q: What can be done to correct the family law system?

A: I wish I had the answer to your question.  There are some things that are being done already that simply need broader implementation.  Parent education classes are important and very valuable for parents going through a divorce.  People who know better, do better.  Also, more mediation resources will help cut down on some of the litigated cases. 

 Q: What about financial issues?

A: That is another core problem which relates to the old adage, “the power to tax is the power to destroy.”  Family court judges are invested with tremendous power to “tax” divorcing couples in ways that married or unmarried couples couldn’t imagine.  Some courts impose a financial obligation on a parent to pay for college expenses for an adult child – an order that could not be made to parents who remain married.  Child support orders can be confiscatory or inadequate.  Monetary orders of different natures give family courts a power to invade the economic life of divorcing couples in a dramatic and often stunning fashion.  This is true whether the process begins with a “no fault” or “fault” trigger.  I have seen some younger people shy away from marriage precisely because of the fear of giving such economic power to a stranger who wears a black dress for a living. 

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