Click Below to View Articles

No Justice in Family Court

Judicious Intervention

Save the Court

FLCourts-A Better Way

When people with children think about divorce, what do they fear most?  Custody.  

Custody.  What an ugly word.  Does it mean ownership?  Does it mean possession?  “The suspect was taken into custody.”

The courts make orders for “custody and visitation.”  They name a “custodial parent.”

“Visitation.”  How insulting can it be that you are “awarded” “visitation” with your own children?

Two words go with custody: win and lose.  No, three words: win, lose and battle.  Custody battle.

There it is, right on your petition for dissolution of marriage: custody.  You have to choose what variety of “custody” to ask for, waving that battle flag at the spouse who will be served that petition.

It really doesn’t have to be that way.  A number of states have abolished “custody” and replaced that word with the realistic expression, “parenting plan.”  

Those cowboys in Montana, going through divorce, work out parenting plans.  Those effete Easterners in Massachusetts work out parenting plans.  Those ranchers in Colorado have court forms that say Parenting Plans to define “Parental Responsibilities.”  Those gazers upon Russia in Alaska, divorced, have parenting plans, you betcha!  Don’t mess with Texas, ‘cuz they have parenting plans. Those rugged North Dakotans, too.  Florida.  Georgia.  New Hampshire.  New Jersey. Tennessee.  West Virginia.  California?  No.

An attempt was made in 1989 to eliminate those inflammatory and possessory words, custody and visitation, from the California Family Code.  There was Senate Bill 1306 and Assembly Bill 1612.  Jay Folberg, professor emeritus and former dean of the University of San Francisco School of Law, wrote SB 1306.  

Professor Folberg, contacted by email, said that …

(He never answered.  I got no information from California Senate or Assembly judiciary committees.)

Divorce is becoming single again.  It is the dissolving of a financial partnership and, if you have children, the arrangement of a parenting plan and financial support for them.  And you can’t get a divorce in this state without a judge’s signature on a piece of paper.  That paper is a judgment, so you need to give the court a judgment that tells how the financial partnership is divided and how the children will be parented and supported, in addition to stating your date of becoming single again.  Maybe one spouse needs support also.

Sixty-four per cent of people who file a petition to ask for a divorce in California do so without benefit of counsel.  That is, they do it without lawyers.  This statistic was stated at the April 2009 Family Dispute Resolution Statewide Educational Institute sponsored by the Center for Families, Children and Courts, Administrative Office of the Courts, of the California Judicial Council.  More startling was the statistic that by the end of their case, 80% are without lawyers.

However, in 1995, Judge  James D. Garbolino, member of the Judicial Council Subcommittee on Family Law, reported that in 80% of family law cases, neither person had a lawyer; in 10 to 12 percent of the cases, one spouse had a lawyer; and in only 11 to 14 percent of family law cases were both parties represented by lawyers.   In 1996, the Family Court 2000 committee said only 15% of litigants going through the divorce process had lawyers.

What are these people doing?  Why are they avoiding lawyers?  I believe it is not just the cost.  They do not want to get caught up in legal games for two years or more.  They do not want to lose control of their lives.  They do not want to grow to hate each other.  

Many people are muddling through the legal system as “pro pers,” dreaded and scorned by courts and lawyers. 

Other people are opting for a sensible method of guided divorce with trained, professional mediators.  Done properly, no one has to go to court to get that judge’s signature.

Meantime, those other people are hiring lawyers to do their worst against a former lover, possibly the parent of their children.  We taxpayers are subsidizing and enabling that vicious behavior, so damaging to children.

We are paying judges, court clerks, filing clerks and bailiffs, and providing filing space and buildings with security and air conditioning and furniture and meeting rooms for lawyers, all to be used for the purpose of one spouse trying to destroy the other while paying their lawyers $350 to $600 an hour.

It is time to stop funding, to stop enabling those family tragedies.

Attorneys and their fees are one of the most problematic areas facing families going to Court.  The following story captures one spouse’s “nightmare” vividly:

“You are so right regarding lawyer fees. My husband’s attorney was argumentative from the beginning and refused to negotiate. We ended up in a 7 day bifurcated trial on date of separation, which I lost 10 years of my marriage due to lawyer and husband lying on the stand and so much more…  it was a circus.

“Then, I lost again on the assets due to my husband being a good liar and the old judge believing him. I lost everything and i owed in excess of $350,000. I lost my home, no spousal support after a long term marriage. I don’t even have money to arbitrate the lawyer fees, $5,000!

“My prior attorney even bullied me into allowing her to put a lawyer’s lien on my home and then, she dropped me saying she couldn’t handle the opposing counsel’s nastiness.  Now I don’t know what to do or how to get out of this mess.

“My husband is sitting pretty keeping bulk of our retirement, he makes $400,00 a year to my $78,000 a year as a teacher and I got fired! So, no job, no home and no job and I am  55 year s old. We had four sons together.

“What a nightmare it’s been.”

In 1993 I assisted a deputy sheriff with custody of his small son.  He and the mother had not been married.  He had been telephoned by the boy’s maternal grandmother that her daughter was living with the child in a house with drug users, drug parties, and the daughter was stoned most of the time and the little boy, she felt, was at risk of abuse from the men in the house.  The grandmother said if the father didn’t come take charge of the boy, she would file for a guardianship.

We filed an action to establish parental relationship.  Mother responded, and I negotiated an appropriate parenting plan between her and the father of the little boy, with the child’s residence with father and his wife.  The mother had become more sober.  She was getting her life back together.  A month after she signed the parenting agreement, the grandmother hired a lawyer who filed for custody, saying that now that she had more time with the child, she should have custody.

The court ordered a psychological report.  The psychologist  over the three months of the evaluation process caused such stress with my client and his wife that they nearly divorced.  The psychologist used invalid tests, wrote 53 pages, and charged $4,800.  I hired another psychologist for $1,000 to rebut the first.  I had a dynamite trial brief I had worked and re-worked to perfection.

In court at last for a hearing, the judge–not the one who had ordered the psychological report, did not want to hear testimony of any expert.  He did not read the 53 page report.  He did not read the brilliant trial brief.  Instead, he addressed each parent, questioning them as to their interests in their child and in parenting.  

“Tell me, Mother, you love your child, right?  ” “Tell me, Dad…”  Back and forth, he narrowed the problems, brought insight to both parents.   In 20 minutes, he had their mutual agreement to a parenting plan.

I drove back to my office with visions of the climactic scene from “The Bridge Over the River Kwai,” the scene where after  British prisoners of war sweat blood, toil, tears and life for months in the hot sun to build a bridge for the Japanese army, American commandoes blow it up as the first train is crossing.

All that time, all that stress, all that money – for what?!   The judge blew up the whole construction.  What that judge did in my custody case, I reasoned, should have been done as a  first step, not the last step.  

I thought of similar cases – people fighting for custody not to get custody but to bargain the children for a better property settlement; filing for custody when the other parent asks for an increase in child support; refusing reasonable settlement to run up fees for the other party when you have rich parents to pay on your side; and most commonly, hostility created between people by aggressive lawyers.  

Attorney fees mounting to $100,000 for nothing but two children, a house and a pension!  Children’s college funds gone.  A five-volume court file for a three year marriage with no children, no pensions and only one house.

What was needed, I came to think, was a gatekeeper, a guide, a process to review the problems between the parents or divorcing couple.  A guide.  A triage to determine the best dispute resolution process for this particular couple.  And a disinterested decision as to whether an issue warranted an evidentiary, adversary hearing.

Thus was born The Safe and Sane Divorce Project.