Wednesday, November 23, 2011

What the System Creates

I recently attended the New Zealand Family Law Conference. As an outsider, I noticed a few things. First, I know nothing about New Zealand trust law, but the presentation about Family Trusts was still interesting. Second, and this really came as no surprise, family law is the same whether it happens in New Zealand, the United States, or anywhere that allows divorce fairly easily and especially in places that are, at their core, adversarial.

It came as no surprise, therefore, that the final presentation of the conference was about dealing with difficult people, specifically about recognizing and responding to people with diagnosable personality disorders. It was humorous as the presenter showed video clips depicting characters who fit each stereotypical diagnosis. But we all know that dealing with people who have personality disorders is rarely funny and sometimes downright frightening.

A few days after the conference I read an article called “Why I Feel Bad for the Pepper-Spraying Policeman, Lt. John Pike.” For those of you who do not know who Lt. John Pike is, he is a police officer at the University of California Davis (or he might be a Davis City Police Officer) who pepper-sprayed student Occupy protestors while they were sitting down and already handcuffed. There is a photo in the article. Since the incident, there have been cries for his termination, and people have called for the UC Davis Chancellor to resign as well. As the article says, he “has become the new face of evil among people following the Occupy protests around the country.”

But the article presents a different scenario. Lt. John Pike is a byproduct of a system that has gotten completely out of control. More importantly, the article suggests that while being pepper sprayed is awful, what happens to a normal guy like Lt. John Pike to turn him into someone capable of nonchalantly pepper spraying restrained students is possibly much worse.

And no, I am not suggesting Lt. John Pike has a diagnosable personality disorder. I am, however, suggesting that we look to the system as part of the cause of the personality disordered clients we see in the family law system. These people come to the system with certain propensities, have been harmed by other systems all their lives, and then are asked to be rational and non-emotional during one of the most difficult and emotionally intense times of their lives. Do we really expect to get different results?

The system fails these people. Lawyers, who are often the front line of the public’s interaction with the family law system, are never trained to understand these people. Lawyers are part of a system that asks us to rip emotion and humanity out of the case in order to focus on “relevant facts.” While many, and probably most, family law professionals take up the work is because they care deeply about people, the system ensures we take a “healthy” distance from that caring.

And so we are left with a system attempting to get people with personality disorders, often resulting from incomplete emotional attachment as children, to emotionally detach and combining them with lawyers forced to detach from the human side of the case to focus on the legal side. We stir these groups together with a system that is overburdened and has no time or resources to respond to the people involved.

What do we expect to happen?

We should be asking a different question. How can we learn to respond to these issues? How can we create a system that is more responsive? How can we have more interdisciplinary understanding? How can we provide the space for clients to feel heard and understood? There is no question that dealing with people with diagnosable personality disorders is difficult, extremely difficult. But how much of how they act is a direct result of the system in which we force them to operate?

What do you think we could do to improve it?

© Rebecca Stahl 2011, all rights reserved.

Wednesday, September 14, 2011

Good intentions gone awry

I am going to make a wild prediction. Everyone reading this thinks that child sexual abuse is disgusting, and we should do everything in our power to ensure it does not happen to children, and if it does, everything in our power to ensure it does not happen again by the same perpetrator. I may be wrong, but I cannot remember ever meeting anyone who thinks sexual abuse is something positive for those involved (and yes, that includes the perpetrators as well, but that is a different post topic).

Based on this grandiose and general statement, it should come as no surprise, therefore, that the legal profession, and the child welfare profession have teamed up to ensure that children know about the dangers of physical and sexual abuse. We have entire teams of police, social workers, lawyers, etc. working together in forensic centers designed to interview children safely and effectively. As adults, we want to do everything we can to protect children from being harmed and help those who have already been harmed. We take the problem seriously . . . and we should.

But what happens when all those good intentions blind us to our own fallibility as humans, and the system breaks down?

That is when you get the situation expressed in a New Zealand book about the largest child sexual abuse case in New Zealand history. The book is called A City Possessed, and the convicted child molester is Peter Ellis. This is a book everyone working in the family or juvenile court system should read. It is now a decade old, and parts of the story are unique to the New Zealand situation, but the overall lesson is one we should all heed. We cannot let our good intentions blind us.

As someone who grew up with discussions about family law around the dinner table, who represents abused and neglected children, and who believes that courts do far more good than harm, this was a hard book to read. The book paints a grim picture of those involved in the Peter Ellis case; it discussed parents asking leading questions of their children and sharing information amongst themselves, repeated “forensic” interviews lasting an hour + at a time with many leading questions throughout, and evidence of these interviews denied to the jury except where the children allegedly disclosed abuse. That would have been bad enough, but the cover-up and inability to say, “the system made a mistake” went all the way up to the Minister of Justice at the time.

I could go on and on about this case and the book, but instead I urge you to either read it, or remember times in your own life where you may have gotten momentarily (or longer) blinded by your own beliefs, or your own gut reactions of, “child abuse is so gross!” that you failed to see that the accused may have done nothing. There is no question that we want to protect children, and there is little debate that we should do all we can to ensure that they are protected. The problem is when that belief stops us from being rational.

We work in an emotionally-charged area of the law, and it is important to recognize those emotions and use them. It is important to allow them out. But it is also important to remember that they cannot drive our every action. We must be willing to be wrong. We must be willing to see the entire picture. I know that the problems articulated in this book have been remedied across the world in many ways. I know that most of us do our best to ensure that innocent people are not wrongly convicted. I know that most people in the family and juvenile courts have good intentions.

None of that means, however, that we never make mistakes. None of that means that we never lose sight of the notion that people are innocent until proven guilty. Of course the book mentions other cases of misguided abuse allegations, including the McMartin case in the United States. So, we know that even though these facts might be unique to New Zealand, the problem is universal. This book was a reminder to me, a difficult reminder for sure, but I think a necessary one, that we must be vigilant and careful about our own ability to jump to conclusions.

Do you have other books and stories you would like to share? Please put them in the comments. I think this is one of the most important topics we face as a profession, and we should not be fearful of acknowledging that mistakes can be made.

Thank you!

© 2011 Rebecca Stahl, all rights reserved

Wednesday, August 3, 2011

A "Divorce Pill"? Really?

Family law is different than other areas of the law for many reasons, not the least of which is that it simply does not “fit” into the idea of laws, per se. But perhaps more importantly, family law enters the mainstream more than any other kind of law. Everyone knows someone who has had a bad experience in family court. Everyone has an opinion about “divorce attorneys.” Everyone has an opinion about families. In short, family law shows up in the court of public opinion more than any other kind of law.

I should not be surprised, therefore, that I saw a link to this website on the Our Family Wizard LinkedIn page. The link is to a company that makes a Divorce Pill. Tag line: “get past your past.” Shocked yet? Sadly, I am not. But I am concerned.

In my parallel life, I am a yogi. Less publicly, though if you talk to me in person, I am a natural food, natural health, etc. proponent. To be perfectly honest, I spend an inordinate amount of time reading about health, wellness, wellbeing, herbal/holistic remedies, and natural food. With that background, I am not at all surprised by the ingredients in this “magic pill.” They are: St. John’s Wart, 5-HTP (actually I am not familiar with that), Korean Ginseng, Valerian Root, and Passion Flower. If I were to make a stress-reducing, anxiety-reducing herbal concoction, these ingredients would be there, perhaps not exactly in this concoction, but there is nothing unusual about them.

So why am I troubled? Should I not be excited that herbal remedies are being promoted as the magic answer rather than Xanax? 

I am troubled by the notion that divorce is something that should be “gotten over.” I am troubled by the quick-fix mentality. I am troubled that we, as family law professionals, have at times bought into the mentality that those going through the system should get over it as quickly as possible. We have tried to speed up the court process, which is always done with good intentions of helping the litigants, but it also forces them to make decisions when they are at their most unstable points emotionally.

Where is the balance? Where is the sense that we are dealing with people and emotions rather than rational minds a pill can “fix”? Where is the humanity?

Those who work within the family law system should, I think, encourage the parties involved to find ways to help themselves. Exercise, yoga, friends, travel, etc. are on that list. Herbs, acupuncture, and perhaps even short-term pharmaceuticals may also be on that list. But there is no one-size-fits-all answer. Each person is different, and that means that we, as professionals, have to adjust to those differences.

Apparently it also means that we have to explain that all the information in the media, all the blogs, websites, and now pills, are other peoples’ perceptions. We have an obligation to encourage people to seek what works for them. I am troubled by this pill for so many reasons I have not put here, but as someone who works in the system, I see its ills being how we respond to it.

What do you think? Does a “Divorce Pill” affect us as professionals?

Your thoughts, as always, are welcome. 

© 2011 Rebecca Stahl, all rights reserved

Wednesday, July 13, 2011

What if they are telling the "truth?"

Over on my other blog, Is Yoga Legal, we have been discussing memory, specifically its fallibility. This post is a modification of the third post focused on what to do with the knowledge that our memory is fallible. 

Memories define our stories about our lives; they define who we are. Unfortunately, they are notoriously unreliableThe legal profession is one of stories. And when it comes to stories, family law is at the top of the list.  Everyone has their own story in family law, and usually the two parties have stories that drastically differ. Both sides tell their story. Most of the time, each side assumes the other one is lying, and the neutral people (evaluators, judges, child’s representative) assume they are both lying.

But what if both sides are telling the “truth,” albeit their own truth? If we can implant false memories in others, surely we can implant them in ourselves to strengthen our case when our emotions are flared. What if their memories are exactly what they are telling the court? How are we, as professionals, including neutrals and advocates, able to discern these stories and find a way forward in the case? Is the system as it is currently set up, in an adversarial fashion, able to understand this?

We are told from our first moments in law school (or in forensic training of any type) in places where the adversarial system predominates, that the adversarial model's greatest strength is its ability to get at truth. We keep out evidence that we deem unreliable, we allow both sides to present their story and question the other side’s story, and we ask a neutral observer (or observers in the case of a jury) to determine who is telling the truth and who should win. But the entire system relies on a belief that truth can be discerned. Moreover, it assumes people lie. That second assumption does not bode well for people who want a feeling of justice being served when they believe they are telling the truth.

More and more brain science is discovering that people do not necessarily lie; people are deluded by their brains. So, if we do not believe them, it does not mean they understand and move on. It means that they feel that justice was not done, and according to their own memories, they are right, even if external circumstances may not support their internal memories.

Thus, as professionals, do we have an obligation to inform one party that the other party may not be lying? Do lawyers have an obligation to question their own client’s views of the truth? Does that border on unethical? Should we be concerned about what our ethical rules require if it does? Do judicial rulings need to focus less on which side is telling the truth, which side is more believable, and focus more on ensuring that both parties feel heard and believed? As we discussed before, parties often just want to be heard, and they want a place to vent their emotions. Is our attempt to find truth among these varied accounts in vain?

Perhaps we cannot change the system overnight, but we can change how we as professionals respond to the growing scientific evidence that memories are fallible. As advocacy professionals, we can understand that getting caught up in our own client’s story as though it were gospel may not be the best way to handle a case. As neutral professionals, we can recognize that just because the stories do not synthesize, it may not be true that either side is lying, at least not intentionally so. As colleagues working to resolve these difficult cases, we can discuss cases and situations with more perspective, understanding that there may be more to the story than we first perceive. Most importantly, we must be willing to let go of our own version of the family law story. We must be willing to look at moving forward in an entirely new light.

It would be great if we could help the parties recognize that they might not be each trying to harm the other, but might just remember facts differently. But sometimes, the stories are too ingrained. (Here is a link to a great article on the topic). But the shift is coming. In the past, this information was mostly held by the psychological community, but today, it is in our headline stories. People may be more willing to hear it as a critical mass begins to understand just how malleable our brains really are. 

Of course, we still have to resolve these cases, and that means that we have to find some semblance of truth in what really happened in the past. But more importantly, we have to determine what is going to happen going forward. The fact that parties are before a court means they are in a period of transition. This is an opportunity to create new memories and new stories. If we as professionals model the compassion and understanding that everyone remembers the world in their own way, we can ensure that the parties are heard, have an opportunity to vent, but also have an opportunity to heal and move forward. 

© 2011 Rebecca Stahl, all rights reserved

Friday, June 17, 2011

A place to be heard

“Be prepared for deep anger, high emotion, blunt accusations, unashamed finger-pointing and heavy language. Let them go and let them get the pus out. That is how they will come to grips with the kaupapa. You will be surprised how often bitter enmity is brought out, debated and then buried to be supplanted by the catharsis of an emotional reunion of the whanau. The Mediation Conference does not allow for this process to take place.” John Te Manihera Chadwick "Acting as Counsel for the Child in Difficult Cases - He Mea Taka I Te Raruraru: The Intractable Case" (paper presented to New Zealand Law Society Family Law Conference, Welington, October 1995)

This quote is about the hui, which at its basic means nothing more than a gathering at a Maori Marae, a Maori meeting house.  The kaupapa means topic, and whanau means extended family. Essentially the author is saying there is great benefit in providing people a place where they can gather and lay out their emotions, a place that has certain rules, but provides the unloading that can finally lead to catharsis.

To a Westerner, this is almost blasphemous. We talk about the Golden Rule and turning the other cheek. For the record, I believe these are great ways to live, but they fail to answer our deepest need – our need to be heard. What would happen if we gave people this opportunity to be heard?

My work on children’s right to a lawyer in day-to-day care or custody cases has, over the years, left me with many reasons that children should have a lawyer in these cases, but none is more important than the fact that children have a right to be heard. Children do not necessarily need to have their wants and needs carry the day; they need to know that someone listened to them. There may be a shortage of research on the topic, but all, and I mean all, of the research that has occurred shows that the overwhelming majority of children just want someone to hear them. The outcome matters less, for some, it does not matter at all.

Why do we think it is different for adults?

I know it is not novel to suggest that the courtroom, especially the adversarial courtroom, is nothing more than a stage for people to vent, to make themselves heard, a place where their version gets just as much time as the ex-spouse’s version. Professionals talk about ways to stop this, making “relevance” objections and trying to get people to work it out in mediation. We remind parents that the past no longer matters, and ask them to focus on their children as they move forward.

The problem is that these parents, these parties, these litigants, never get to tell their story. Instead it becomes legally irrelevant to those who claim to be helping them navigate the most emotional process of their lives. I am not a psychologist; I leave that to others in the family. I am, however, a long-time yogi, and now a yoga teacher. Perhaps the greatest teaching I have obtained from yoga is that we can hold this stuff inside for years, but eventually it is going to come out, and when it does, it is not always pretty, but getting it out allows the healing to begin. Are we willing to give people a place to let this out? What would that look like?

I once attended a presentation by a lawyer/mediator who once allowed her client to scream at her as though she were his soon-to-be ex-wife for exactly 1 minute. He got out his anger, and then he was able to go back into the room and continue the mediation. The case settled. Is the hui example a better one? Place everyone in a room and let them go at it? What rules would we impose? How are we willing to ensure that people can speak their mind, speak their story, voice their need to be heard?

I do not normally advocate for screaming matches, but there is a fundamental problem with a system that says X while the parties need Y. We are not comparing apples and oranges; we are comparing apples and outer space. I know there are family law lawyers who will not represent a client who is not seeing a psychologist. I know there are family law lawyers who will listen to their clients espouse their hatred for the other party – at their full hourly fee. But that does not seem to be enough. The courtroom remains a place where people go just to have a stage to tell their story.

What if we gave the parties a safe place to have their story heard? What if we actually provided them 5 or 10 minutes to say what they need to say? What if the system allowed the catharsis to begin? Might we see a different situation in the courtroom? Might we never have to see the courtroom?

A hui has particular rules that must be followed. It is not a place where the parenting plan will be decided. It is not a place where the parties will decide who gets to keep the autographed World Series baseball. It is, however, a place where the issues that make those decisions so difficult can be addressed. Provide a forum for someone to be heard, truly listen, and then move on. Let the pain come out . . . but outside the courtroom. Then, when we tell them that their facts are “irrelevant” they will know we do not mean the fact that they have these emotions is irrelevant, but rather that those were heard in a separate setting, and what matters to the case is about moving forward.

I do not mean to say that this is an absolute fix to a broken system, but it is something to ponder. The first post on this blog asked, what type of system would you create for these families moving apart if you had never heard of the adversarial process in the first place? Would your vision have a place to vent emotions? If so, how would you do it? I am asking because I think, in theory, it is a great idea. In practice, however, I do not know how it could work.  

What do you think? Is there a place in the system to allow the parties to vent? Do you see a better way to do it?

© 2011 Rebecca Stahl, all rights reserved

Tuesday, June 7, 2011

Family Law: Definitely Not A Bright Line

It is all too easy - and it is understandable - where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation.” – Judge Hardie Boys, M v Y, [1994] New Zealand Law Reports 527, 533.

Although I do not want this blog to focus exclusively on Parental Alienation Syndrome, it seems to continue popping up in front of me, and it is an important topic. If for no other reason, it exemplifies many of the inherent problems in the current family law system. The quote above is a perfect example of the problems it can engender – when we focus on alienation as a defined “thing” for lack of a better word, we lose focus on the welfare and best interests of the child. When we focus on the behaviors, issues, and complications that arise in a family where alienating behaviors are occurring, that is where we begin to focus on the individual child’s welfare and best interests.

So how did we get here? How did we get to a system that strives to define and label rather than work with and understand?

The problem, as I see it, is two fold. First, the system began long ago as a system of divorce, and in order to get a divorce, one party had to prove the fault of the other party. Fault-based divorce had many problems, and honestly, I am not the best person to be discussing them; most fault-based divorce schemes went out of fashion around the time I was learning to speak. By making divorce “no-fault,” people were able to divorce when they could prove irreconcilable differences, which meant no more mud slinging, right?

Sadly, emotions do not just disappear, and instead of the mud-slinging being about one party’s adulterous behavior, it was squeezed into another realm – this time into who makes a better parent. Just because the law no longer requires one party to be at fault for the divorce, however, does not mean that human beings do not like to think that someone is at fault. So the conversation has moved into a realm of “proving” that one parent is bad. Custody cases become about whether a parent spends too much time playing Farmville on facebook and not about the child. In other words, “divorce court” remains a place where adults get to play out their unhappiness with each other all under a guise of arguing about their child’s best interests.

We as professionals get caught up in this partly because the issues being discussed, at some level, do matter to the child’s welfare and best interests. The problem is that we get more focused on whether the allegation is true than the fact that making the allegation is, itself, sometimes harmful to children. This is not to say that these issues should be ignored. It means we need to fully understand their ramifications before just assuming that the truth of the allegation = bad parent. 

And this brings us to the second reason we get too caught up in labels and definitions. They are simple. The law likes bright lines. Just ask Justice Antonin Scalia. Unfortunately, families and emotions cannot be placed into neat little boxes. The bright-line rules that work to tell us whether a contract was breached cannot answer the question of whether a parent who might have been distant to a spouse is going to continue being distant to a child in the future. We cannot compare those apples to those oranges.

But the nice thing about bright-line rules is that they are simple. They do not require us to get our hands dirty. They do not require us to take the time to understand peoples’ actions. Instead, we can say, “if you play Farmville more than 2 hours per day, you are a ‘bad’ parent.” Does this work for any situation we face? Certainly, parental alienation syndrome, along with abuse and true neglect, are much bigger issues than whether a parent spends too much time on facebook, but the point is the same – the results of the behavior are what matter, not whether the behavior is simply “true.” We may never know the truth, but we must take the time to understand the people in front of us in order to understand what the real issues are.

We cannot let the parties define them for us, based upon definitions we have created that may or may not explain their situation. The biggest problem with bright-line tests is that they have no place for nuance, and if there is one definition to which I am happy to subscribe it is that family law = nuance. There is no such thing as bright lines in family law.

What do you think? 

© 2011 Rebecca Stahl, all rights reserved

Tuesday, May 31, 2011

A Community to Inspire

I feel incredibly privileged and lucky to be spending a year in New Zealand having no job but to learn new ways to make the family law system work for children and families. While my thesis is about the role of the lawyer for the child in what much of the world still calls custody cases, I started this blog because I keep coming across ideas that I want to share, and I hope that people will use this space to share their ideas, and together we can create a place to brainstorm and learn the best practices being utilized around the world.

In other words, I want this to be a community. I want it to be a community that reignites the passion and energy that brought so many of us to family law in the first place. I want it to be a community to learn what someone is doing down the street . . . or across a vast ocean. Together, we can make the system work. In my other blog, I talk a lot about community. My favorite post about community occurred just about a year ago, and today is the day to share that sense of community on this blog.

The post last year was a reflection on the Association of Family and Conciliation Courts Conference. I have been lucky enough to have grown up in AFCC; my father has been a member my entire life. But last year, for the first time, I felt like my own person there, and the community building, from teaching yoga in the morning, to hanging out in the hospitality suite at night, taught me that community is what makes change. Community is what inspires.

For anyone who has attended an AFCC conference, or perhaps another professional conference, you know that the energy they inspire is energy that translates to your practice back home. The discussions with colleagues old and new is a chance to learn about ideas and learn how other people deal with the stress that being a family law professional can create. It was at last year’s conference that I met a researcher here in New Zealand who helped me launch my survey to the lawyers for children. It was at last year’s conference that I first taught yoga to a group of people not during my teacher training.

In other words, community is about growth. It is about pushing our limits and finding out that we have support when we think it might be lacking.

I do not think there is any substitution for a real, in-person conference. Sure, we can get our continuing education credits online, and my hope is that this blog creates some sense of that same community, but it is not the same. The hope is that this blog can help continue the discussions that begin in person. I know that post was a year ago because this year's conference is this week - always the Wednesday - Saturday following Memorial Day. Although I am sad to be missing the conference this year, I know that it will be a source of inspiration to all who attend.

Come back here and share your inspiration with the rest of us. Only together can we ensure that the system we build is one that truly works for families, children, and our own sanity. 

What is your favorite way to engage with community, professionally or otherwise? Do you find that it helps you do your work better? What inspiration do you find in community?

© 2011 Rebecca Stahl, all rights reserved

Tuesday, May 24, 2011

Parental Alienation Syndrome - The Starting Point

In the last post, I responded to Dahlia Lithwick’s article in Slate regarding Parental Alienation Syndrome indicating that the major problem with her article was its one-sidedness. Today, I would like to address the substance of parental alienation and give a slightly more nuanced view of the situation that has given rise to the current discussion. There is absolutely no way to explain this issue fully in a blog post, but the point is that the debate surrounding parental alienation syndrome is much broader, and not quite as scientific vs. disillusioned that Lithwick implies.

The catalyst, I believe, for Lithwick’s article is the fact that there has been serious discussion about including Parental Alienation Syndrome in the Diagnostic and Statistical Manual (“DSM”) V. As I mentioned, the Association of Family and Conciliation Courts had a plenary about this topic at its annual conference last year in Denver – a conference that focused significantly on the issues surrounding alienation. Attendance at that session left me with two main takeaways: 1) Including PAS in the DSM V is problematic because a) it forces us to label the child as having a psychiatric disorder, and b) there is no need to have a labeled syndrome to address the issues, and 2) the behaviors that often give rise to the label of PAS are real, and we must deal with them on their merits, regardless of any label we give those behaviors.

The entire conference left me with the broader impression that these issues are not macro; each case is different, and each case needs to be considered with respect to how and why children and parents are behaving in particular ways. There is nothing black and white about individual families, especially when dealing with issues of alignment, estrangement, possible abuse, memory, and “truth.”

The first problem is that there is no single definition for PAS; instead, we can say it usually entails a child rejecting one parent as a result of the other parent making false allegations against the rejected parent; the child begins to believe these false allegations, thus leading to rejection of the alienated parent. Richard Gardner, the man who coined the phrase Parental Alienation Syndrome, believes that in extreme cases, the child should be forced to live with the alienated parent in order to heal the relationship (and perhaps punish the alienating parent). Those absolutely opposed to the notion of PAS say that the rejected parent is usually an abuser, and the child and aligned parent reject with good cause. This labeling between PAS and abuse leave little room for debate. More importantly, it leaves no place for individual interventions in individual families.

There is no question that alienation is an issue in family courts across the world. The arguments transcend borders, and allegations abound – one side arguing that abuse has occurred and the other arguing that alienation has occurred. In other words, the ultimate zero-sum situation. Studies have shown that there are numerous reasons that a child may reject a parent, and while there are times when alienation is the reason, there are times when normal development affects how a child aligns with his or her parents, and there are times when abuse is real. By labeling all estranged behavior as alienation, we ignore that there can be any number of explanations, each of them as likely as another on the macro level.

There are levels of estrangement and alienation, from mild to severe. A mild case might be one parent making off-hand comments about the other parent and the child feeling put in the middle enough to begin to think less highly of the parent being maligned. This can happen even with a parent who does not intentionally try to influence the child’s feelings towards the other parent. Severe alienation occurs when a parent makes a child believe that the other parent has been abusive and therefore the child absolutely rejects seeing the alienated parent even if that parent never really did the things of which that parent has been accused.

The situation is difficult to assess because the child may actually believe something that never happened. The more we learn about memory, the more we learn how unreliable it is – especially in children. But that does not change the fact that a child may believe that a parent was abusive and thus reject that parent. Memory is subjectively real, even if objectively the act being remembered never occurred. Thus, determining truth in any particular case is difficult, and sometimes impossible because each person has his or her own subjective truth.

Thus, on the macro level, there can be no solutions; we cannot name it as a syndrome, put it in the DSM-V and assume that this will solve the problem. Instead, the professionals involved must evaluate all the facts – everyone’s facts. But we must also move forward from those facts. We may never know the objective truth in these cases; each person has his or her subjective truth, and that is something we must accept. The point is that each subjective truth may be that alienation and/or abuse has occurred. From there, we have to find a way to ensure that children are harmed as little as possible.

So, is it a syndrome? That may never be determined. What we do know is that the problem is real, and children are caught in the middle. Rejecting it outright under the assumption that it is pseudo-science only harms the children who are caught in the mess of their parents’ controversy. Recognizing that the behaviors exist and that each case must be evaluated on its own merits means that the macro argument of right vs. wrong is over, and forces us to get our hands dirty and try to understand how to move forward. Arguing about the past debate surrounding the name of a disorder is not going to help the individual children and families harmed by professionals arguing about whether it should be a label.

There is certainly a bigger discussion to be had, but this is a very simple beginning – a move away from labels and macro thinking to individuals and understanding that truth is subjective, especially with these emotionally-charged issues. What we do with this will have a huge impact on our ability to serve children and families struggling to find their place in a system that promotes accusations because of the need to have someone win and someone lose.

© 2011 Rebecca Stahl, all rights reserved

Sunday, May 22, 2011

A Response to Dahlia Lithwick on Parental Alienation Syndrome

The other day, Dahlia Lithwick, wrote an article in Slate about Parental Alienation Syndrome called, “Mommy Hates Daddy, and You Should Too: The extraordinary fight over ‘parental alienation syndrome’ and what it means for divorce cases.” A friend shared it with me, and it made me fairly angry, so I took some of my own advice and waited to respond rather than react. But I think the existence of this article says a lot about what we need to do as a profession in terms of changing the rules . . . for ourselves and the families we serve.

First, why was I angry? Personally, I have a lot of respect for Dahlia Lithwick. Other than family law, the class I loved most in law school was constitutional law, and Lithwick used to write the Supreme Court articles for the New York Times. She was great at seeing all sides of an issue. In fact, the same friend who share this post with me shared her other one – a post about how we might need to think judicial review. That is a radical idea, and one with which she admitted she was uncomfortable, but she wrote about it anyway because it is an important issue to consider.

Thus, I was most upset by the fact that her article is so one-sided on a topic that has layers and layers and layers of complexity. The article is about the impending decision on whether to include Parental Alienation Syndrome (“PAS”) in the Diagnostic and Statistical Manual V (“DSM”). The Association of Family and Conciliation Courts conference had a plenary on this last year in Denver (and their conference in Orlando is coming up next week). This is an important issue, and it requires more than a single post on Slate to discuss, perhaps most because of something Lithwick points out herself, “The most worrisome aspect of the legal fight over parental alienation syndrome may be that it divides supporters and opponents along strict gender lines: As a rule, this is classed as a women's sickness alleged by men.” What this means is that it is an emotional issue for many people, and it forces people to take sides. The debate keeps people from hearing the other side. Each side has its experts and supporters, and if left to this status quo, the discussion could stay there. There are many willing to have the discussion, but when the loudest people are the ones fortifying the divide, their voices are silenced.

Lithwick then takes the big picture approach and chooses one side, so much so that she denies those opposed to her viewpoint any ability to think rationally in her worldview. She says, “There are a lot of websites, experts, and emotion invested in this debate. But there aren't two empirical sides. There is science, and then there is passionate non-science.” She bases this statement on the fact that many well-respected organizations in the United States have recognized that the theory underpinning PAS is invalid, including the American Psychiatric Association, the American Medical Association, and the National Council of Juvenile and Family Court Judges.

Lithwick gets close to the real issue when she discusses the people who talk about PAS not as a syndrome, but as a set of behaviors. It was there that my anger almost dissipated . . . until she failed to continue down that path. She did what the system tends to do so often, and what harms the families who enter it so much – she paid short shrift to the real issue, to the difficult discussion, to the nitty gritty, instead focusing on words and symptoms that have broad meaning and little meaning to individual people. She used her platform to silence the gray areas, and she fortified the black and white positions.

Thus, the biggest danger I see with Lithwick’s article is the fact that it is in Slate, and she is so well respected. People have reason to believe it tells a fair story. But what it does is exactly what the system often forces people to do – it pits one side against the other with no space for gray. It says that one side is supported by science and the other side only by passion. Even the title of the piece hits this dichotomy – it only refers to divorce, as though divorce is the only time that the issues surrounding alienation can occur. It is not.

The truth is much grayer, and the one thing for which I am most grateful to Lithwick is that she inspired me to go down the path of PAS so soon. Therefore, the next post will focus on this gray area, on the debate's substance. But the point for this post is that we can have our discussions as professionals, and we can discuss best practices and how to help children and families, but one of the most important things we can do is educate – educate our clients, educate the public, and even educate the media. We can educate that life need not be so black and white even in an adversarial system (which hopefully will change as well).

We need to move into the gray. We need to have the truly difficult discussions without thinking that one side is fully supported by science and the other side only by passion, as though being driven by emotion is a problem. Families are about emotion. They are also about science. But most importantly they are individualistic, and when we start thinking too globally we lose sight of the very people standing right in front of us.

I think the world of Dahlia Lithwick, and I hope that she joins this discussion with all of its nuance. I think she has a platform from which she can spread great information. But it needs to be fully engaged. In the next post, we will discuss more of the gray that surrounds PAS or the behaviors that have led people to believe that a syndrome is gospel.

What did you think when you read her article?

© 2011 Rebecca Stahl, all rights reserved

Wednesday, May 18, 2011

Learning from the Outside

As I mentioned in the last two posts (here and here), this post is going to focus on an interdisciplinary model, specifically one promoted by Professor Barbara Babb at the University of Baltimore, where she directs the Center for Families, Children & the Courts (“CFCC”).

The CFCC operates with two main objectives: to promote therapeutic jurisprudence and to promote the ecology of human development. Both of these are ideas that will be more fully developed in later posts, but what is important for right now is how we learn to utilize these approaches in family law. It requires looking outside of our traditional ideas of who we should invite to the table.

First and foremost, we must begin to engage social scientists more broadly. As Babb mentions in her article, An Interdisciplinary Approach to Family Law Jurisprudence: Application of an Ecological and Therapeutic Perspective, 72 Ind. L.J. 775 (1997), “Oliver Wendell Holmes argued in the late nineteenth century that a better understanding of the social world must inform our knowledge of legal rules in order to effectuate rational justice.” In other words, we must understand the people we serve in order to create a system that works for them. There is more to social research than child development (though that is very, very important, it is not the end-all, be-all of social importance to families).

So what are we failing to see? After all, psychologists are deeply imbedded in the family law system. We often call upon them to explain child development and to write custody evaluations for particular cases. And while I generally think it is much more useful to families to take an individualistic approach to their situation and evaluate each case on its merits, here we are talking about the system as a whole and what it needs to recognize. 

A broader evaluation of the social sciences has shown us that a family is not defined by a mother, father, and children. Instead, the influences are immense – from extended family to religious groups, to neighbors, and beyond. A family does not exist in a vacuum, and when we fail to account for these influences, we fail to serve families. Instead of keeping people out of the courtroom, we can invite more people into it. Judges should ask to hear from people who support the family. Some already do. But does the system require it? Is the system designed to take these issues into account? Unfortunately not.

In an older post, we discussed how there can never be too many people to love a child. The same holds true for an entire family. Society requires people that are going through a divorce or unable to determine parental rights and responsibilities, to enter the court system. Instead of getting a full picture of these families, however, the system tries to take a snapshot. When was the last time the photo lived up to your memory of the event? Our eyes can take in so much more than technology, and our system needs to be able to take in more than specified factors relating to wishes and some information on child development than the brief snapshot allows.

Are we ready to trust others to teach us what we are missing? Are we ready to ask what else matters to families? Are we ready to truly understand families? Or are we going to continue to base our system on an adversarial model limited to two parties where we determine that some evidence is relevant while that which truly forces people to act remains hidden by our lack of understanding? Certainly it is easier to stick to the status quo; after all, rules of evidence tell us what is relevant to the legal issues. It also takes less time and fewer resources. But how many resources do we waste when people have to come back because we missed the boat the first time? The more we recognize that families are not defined by statutes but are actually defined by the people and communities in which they find themselves, the more we will be able to help them navigate the system well . . . the first time.

What research have you seen that challenged what you thought of families? How have you, as a professional, attempted to bring these issues to the forefront? Have you been successful?

© 2011 Rebecca Stahl, all rights reserved

Wednesday, May 11, 2011

What does everyone do in this system anyway?

As I mentioned in the last post, today we are going to focus on an interdisciplinary model. While I wanted this post to highlight that model, I thought that it would be more prudent to go up the abstraction ladder and talk about the lack of communication between the various professionals in the system. 

I am a lawyer. Thus, the profession I understand best is lawyers. My father, however, is a psychologist, and discussions about custody evaluations permeated dinner conversations of my childhood. Lawyers, judges, mediators and psychologists are the professionals we most often think about in a family law case. If we add in the dependency system (and I think we should), all of a sudden the number of professionals involved increases exponentially to include social workers, therapists / counselors, those who work with addictions, childhood behavioral specialists, etc.

In the United States specifically, but also around the world, professionals are specialists. We are trained to do what we do, and we are not expected to understand what other professionals do. I cannot recall how many times I have heard the phrase, “we are lawyers, not social workers” uttered by lawyers not wanting to get too involved with the family, and instead to keep the fictional distance between themselves and their clients. In other words, we like to keep our professional boundaries, both between us and our clients, but also between us and other professions.

It is always a breath of fresh air to me to talk to someone who has a dual degree, or who was in one profession for many years, and then decided to go back to school and learn about another profession. The wealth of information and experience that they bring to discussions, and their ability to see outside the professional box created in our training is eye-opening.

Sadly, they are not the norm, and we are stuck specializing in a system that defies any specialty. Family law is just that; it is legal, a set of standards created by the State and imposed on people who are unable to make their own decisions, either about their marriages or how to raise their children safely. But families are not legal. Families are emotional. They are the center of what makes us human. And this is why so many different people get involved in a family law system. It is why we cannot force specialization on families. 

But we are left with a dilemma. Lawyers are trained to be lawyers, and psychologists are trained to be psychologists. Lawyers cannot understand why a psychologist “refuses to answer the questions asked,” and psychologists cannot understand why lawyers only see the world in black and white. As my law school clinic supervisor reminded us, everyone in the system has an agenda. 

But if we are going to create a system that works for children and families, we must begin by understanding the different people that are involved in the system. We must accept that generally, people involved are doing their best by the families. We must begin by asking questions and trying to understand the goals of other professions and professionals. I currently know of only one truly interdisciplinary organization – the Association of Family and Conciliation Courts. It is at AFCC conferences where I have the opportunity to ask these questions, where I can learn what drives others in the system. But outside of AFCC, I work with lawyers. I talk to lawyers. I am a lawyer.

So, our first step is to reach across the aisle and begin to understand, to make our agenda not only that which we were taught in our specialties, but creating a different system. From there, we can begin to work together to change the system to one that works for families and children. No profession has all the answers, but as we learn to understand each other, we may be able to find the answers together.

Please use the comments to share one thing you wish other professions understood about yours or one thing you simply do not understand about others. Try to be kind. Let us begin the discussion and move forward together. 

© 2011 Rebecca Stahl, all rights reserved

Sunday, May 1, 2011

Stuck in Hate?

My LLM research got a little tangential to the actual topic, but it has led me to read some wonderful articles. While these articles may not be in the LLM, they are definitely worth sharing and discussing here. I hope to continue to feed this blog with articles I encounter along my research. The first one is an article by Clare Huntington, a professor at the University of Colorado law school. The article, entitled “Repairing Family Law” is available at 57 Duke Law Review 1245 (2008).

The article discusses several issues, but I want to focus on its main point. Huntington takes us through a cycle of family emotions made famous by Melanie Klein; it includes four stages: love, hate, guilt, and the drive to repair. In short, the notion is that love often leads to a breakdown called hate (a term of art here referring to both the emotion and the rupture without repair), which leads to a feeling of guilt, and eventually to a drive to repair the relationship, often in a different form. In this sense, guilt is a feeling of remorse for the hate and the destruction of that which used to be loved, which then leads to the drive to repair. In her introduction, Huntington states, “Through its substance, process, and practice, family law reifies hate, in both the symbolic and real sense, freezing relationships at the moment of breakdown.”

This cycle seems a bit simplistic to me, especially coming from a yoga perspective (more on that connection to family law in another post), but it definitely provides a nice setting for Huntington to discuss the inherent problem she sees in family law – that it freezes in time the moment of hate without allowing people to continue through the cycle. Whether you accept Klein’s cycle or believe that it misses the mark, there is little doubt that the current family law system is about that moment of severance more than it is about repairing the future relationships.

Family law, especially custody matters, force people to stay in the zone of hate. If a case goes to trial, parents are “rewarded” for bringing up the worst facts about an ex by having more parenting time with their children. The dredging through old emotions and fault was supposed to go away when we went to a no-fault system, but instead it just moved to a new dimension – the one that most involves the children.

Many family law practitioners and judges talk about the need to create a “clean break” when a relationship breaks down, and we try to get families through the system as quickly as possible believing that spending too much time in limbo is detrimental to families. As I mentioned in the last post, however, family law is about more than divorce – it is about families. And unlike that moment of a clean break in a contract, families simply do not work that way. Instead, these families are going to have to stay connected through children, even as those children grow into adults. Focusing our work on a specific moment in time is one of the first ways we fail families and children as a system.

So what could we do differently?  The first step is to understand this dynamic and discuss it with the parents and families we encounter. We need to give them the space and the time to be open to new ways of thinking. Huntington calls this the Reparative Model, one that focuses on repairing these relationships by ensuring that the professionals in the system fully understand what is at stake and how it affects families. In turn, this will ensure that we are preparing these families to reorganize around a new way of being. While we have moved from divorce to dissolution, we have never picked up the next step – solution.

In the next post, I will look at another model that focuses on and interdisciplinary approach by Barbara Babb at the University of Baltimore.

What do you do to ensure your clients move through their hate, angst, vengeance phase to a place where they can repair and reconstruct a family for the future?

As always, comments and discussion are welcome and encouraged.

© 2011 Rebecca Stahl, all rights reserved

Tuesday, April 26, 2011

More than divorce, you say?

I am never exactly sure how to tell people what my thesis topic is. It is very simple really, if you understand family law. I am focusing on the role of the lawyer for the child in custody cases. Well, not exactly because New Zealand does not use the word custody anymore, but that is a post for another day. The point is that I am curious how New Zealand lawyers for children do their job in cases where there are presumptively two competent parents who have asked the court for some help in determining how best to reach a parenting plan. 

I get one of two reactions. In New Zealand, the look of shock is quickly replaced by a question – “do you know how poorly New Zealand children are treated?” This reaction is a result of vast attention being paid to child welfare cases in New Zealand, and rightfully so, but it has little to do with my thesis (though a lot to do with this blog and our work in general), and I explain that. Then I get the other reaction, and the one I tend to get from most Americans - a story about the person’s own divorce or a friend’s or even a famous person. In the minds of non-practitioners, family law means divorce.

While this blog is aimed to more than lawyers, for a moment, I am going to talk about what it means to be a family law attorney. To the general public, this means you are a divorce lawyer. And divorce lawyers are all terrible people out to destroy families just to earn a dollar or two, right? And what does this mean for other professionals in the field? You choose to associate with divorce lawyers, so you must be just as evil.

The vast majority of family law practitioners that I know are amazingly wonderful people who put up with this stereotype despite its deleterious effects on their health because they believe the work they do is actually able to help people repair their lives. 

And by the way, family law is about more than divorce. 

Family law is just that – families. Although the United States has not adopted the use of unified courts in the vast majority of jurisdictions, it has begun, and where they exist, these courts work incredibly well. Families include child welfare, paternity, adoption, and yes, divorce, not to mention sometimes probate and other issues. It is about doing more than just trying to "get back" at an ex-spouse. 

Why does it matter what people think family law is? Because part of the problem is that the profession is still stuck in the mindset that divorce is what we do. But as I have said here and here, families are bigger than that traditional notion, and a huge first step to breaking free of the old paradigm is to recognize and promote that families come in all shapes, sizes, colors, patterns, whatever. The issues that occur in families are no longer based upon legal definitions of when people fall into and out of love. The issues that surround families are complex and changing.

We must begin to truly see the profession as something bigger than a moment in time – the moment that one family unit breaks up in the act of divorce or dissolution. Instead, our work permeates lives in a myriad of ways, and our focus must be on all of it, not the occasional case that breaks the divorce mold. As we begin to see our work differently, we can educate people one person at a time that our work is about families of all kinds who need a bit of help navigating the complex structures the law and emotions have created.

Do you find yourself caught up as a divorce practitioner? How do you explain what you do to people who are not in the profession?

As always, comments and discussion are welcome and encouraged.

© 2011 Rebecca Stahl, all rights reserved

Sunday, April 17, 2011

Change from the inside

This blog is a place to discuss the evolving paradigm shifts in family law. It is a place to discuss new ideas, whether they are working or not. It is a place to inspire us to rethink how to “do” family law in such a way that it helps, rather than harms families. But it is best that we start by being honest. This is a tough job to do.

Family law is stuck. There have been massive improvements over the past 10-15 years, including more mediation, the beginnings of unified courts around the world and starting in the United States, concepts of one-judge, one-family, and growing interdisciplinary collaboration. But the underlying prescription remains the same. In most of the Anglophone world, family law is adversarial, time consuming, and children are left to the periphery even when we claim that all decisions are made in the child’s best interests.

Additionally, even as statutes have begun to change the words, we still talk about the custody battle, and judges are deciding the fates of unrepresented children they have never met. Welfare cases involve children taken from their families, with little money and few services to help these families learn to interact better, to help reunify the families. If family law is such a mess, why even try to fix it? It just seems like it might be too hard to do.

I think it is time we turn outside the law for a little inspiration. In this week’s column, Nicolas Kristof (a New York Times columnist) reminded us of the power of “a bunch of irreverent and wise-cracking students” to overthrow an Egyptian dictator and tobacco companies. His main message? Change must come from the inside! Only those with the right “street cred” can influence the system.

There are a lot of lawyers and judges who think that family law should stay the way it is. There are a lot of people who say that some families are just going to have to litigate, that the system works for those families, even if it is not perfect. But families are not contracts or torts or crimes. They do not fit the mold of traditional legal jurisprudence, which relies on retribution and restitution. For my LLM thesis, I am reading a lot about the history of jurisprudence, and over and over again I am struck by how inapplicable it is to family law. If before I felt it in my gut, now I know it officially.

Changing a system is a big task. The force it takes to move a static system is difficult. We know this because many people have been trying to dent the system for years, and it seems to be getting better at a snail’s pace. But Mubarak had been in power for over 30 years, and thousands of people came together to push him out of power. Ex-convicts in the District of Columbia banded together, and there was not another gang killing for 13 years. In other words, overhauling a system can be done, and it can be done quickly and efficiently.

We as the family law practitioners, whether lawyers, judges, psychologists, mediators, counselors, or anyone else in the field, who know that the system is broken have an obligation to come together and do something about it. We have an obligation to make the system work for families and children. At the end of the day, we are the ones who have to make the difference. We are the ones who have to take the plunge.

Together, we can make the changes necessary. Send your ideas, your thoughts, your fears, and your inspiration to me or post them as comments right here. Let us create the largest forum for these ideas and discussion and create the critical mass necessary to finally break through the old barriers quickly so the system has no idea what has hit it.

© 2011 Rebecca Stahl, all rights reserved

Monday, April 11, 2011

The Continuing Importance of Family

As I mentioned in the last post, I think there is a lot we can gain from considering who can see and interact with children based on something other than old legal constructs. The United States certainly recognizes the importance of extended family in certain contexts, especially child welfare and the Indian Child Welfare Act, family law has been slower to join the bandwagon.

Several states have some version of grandparent visitation statutes, the breadth and constitutionality of which have been called into question since Troxel v. Granville. Partly because of Troxel, these statutes often only provide for the possibility of visitation by grandparents and great-grandparents. Several states also have statutes providing for custody by people who have stood in loco parentis to a child, which is one avenue that same-sex partners have requested custody rights to children. In Arizona, however, this statute has a rebuttable presumption that it is in the child’s best interests for the legal parents to have custody – thus the biological (or adoptive) parent in the same-sex partnership.

In other words, the United States remains stuck on the notion that parents and their children exist in a vacuum.

New Zealand has taken a different approach to this topic. In 2004, New Zealand passed the Care of Children Act, and provides the following principles underpinning the notion of best interests:

“there should be continuity in arrangements for the child’s care, development, and upbringing, and the child’s relationships with his or her family, family group, whānau, hapu, or iwi, should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents): [and]

relationships between the child and members of his or her family, family group, whānau, hapu, or iwi should be preserved and strengthened, and those members should be encouraged to participate in the child’s care, development, and upbringing.” (Care of Children Act 2004, s 5).

Whānau, hapu, and iwi are Maori for extended family, “clan,” and “tribe” or “people,” respectively. Thus, New Zealand recognizes the importance of these extended notions of family to the upbringing of children. It also recognizes that the most important relationship that the legislation can tackle is the relationship between the child and his or her parents.

Certainly, we cannot allow everyone and anyone to have the right to have access to children; courts would be overburdened and the confusion would be simply overwhelming. Moreover, it would encourage rather than discourage people to partake in the adversarial system. But there can be some push to include more family as well.

Parents considering how to best allocate the day-to-day care of their children are usually in some state of emotional upheaval, and it is hard enough for them to consider the need to allow the other parent time to be with the child, let alone thinking of the other parties’ extended family. A simple reminder that this is something the court is going to consider may be the push that parents need to ask themselves who has helped support the child until now, and how can that continue into the future?

Will this work for the really difficult cases? Probably not. Will this work in all cases? Of course not. But children’s relationships with their extended families do not end simply because their parents separate. Instead, that is the time when children need the support of family the most, and parents’ rights do not dissolve a child’s needs for family.

Are there other ways to encourage extended family to be part of a child’s life? How important do you find it in your practice to encourage children to remain close to their extended family? Is it harder when a parent is absent?  

Thursday, April 7, 2011

You Can Never Have Too Many People Love a Child

I think this is the post that really sparked this blog. That is probably why it is the second post. Someone told me a story several years ago, and ever since then, I have wanted to write a book or an article with this title. But more importantly, I wanted to get the ideas it encompasses out into the world. It forces us to reexamine . . . well, everything.

Without telling the entire story, it is basically a story of an open adoption going well, really well. Everyone gets along, including the birth mother’s parents and the adoptive parents. The birth mother has a relationship with the child. There is no “but.” The second shoe does not drop. In family law, it is what we never see because everyone is getting along beautifully. I told this person how lucky she is, how the law does not recognize open adoption agreements as legally binding. But I also told her how glad I was to hear of a story that worked. We can sometimes forge they do.

Her response was the most profound statement on family law I think I have ever heard: “they [adoptive parents] believe that you can never have too many people love a child.”


Since then, I have thought many times how the world in which we live would look if instead of basing our notions of family on legal constructs built up from when children were property, we based them on people who love the people in the family, the people who want to care for and help nurture the growing family, even if the nuclear family no longer exists.

Instead, we have cases like Troxel v. Granville in which the Court reiterated the fundamental right of parents to raise their children while also leaving others out of their children’s lives. While Troxel may have been a bad test case because the grandparents were not being denied any visitation, it reminds us that the legal construct of the family is what dominates our thinking. In more recent news, there is the case between Janet Jenkins and Lisa Miller, in which the non-biological mother of a child born to a lesbian couple has fought for years to have the right to even see the child she raised. In a “traditional” family, there would be no question that the spouse would have a legal right to custody and visitation.

Certainly taking this to the extreme would become a nightmare similar to too many cooks in the kitchen, and we do have to have limits on who gets to decide how to raise children. But Justice Stevens made the point in his Troxel dissent, “Cases like this do not present a bipolar struggle between the parents and the State over who has final authority to determine what is in a child's best interests. There is at a minimum a third individual, whose interests are implicated in every case to which the statute applies-the child.” Thank you, Justice Stevens.

Children do not see the world through the lens of a legal construct. Children see the world only through a lens of who loves them and who they love. They do not care who stands in loco parentis or whether the law chooses not to recognize two dads or whether their grandparents cannot see them because of 9 people who live 2,000 miles away. At one time, children were considered property, and the law has grown to the point where most of the world recognizes that children have unique rights, expressed in the United Nations Convention on the Rights of the Child.

Are we ready to take the next step? Are we ready to give children the right to love and be loved by anyone? Or are legal constructs of family going to continue to define who can see and care about children?

Wednesday, April 6, 2011

Starting Fresh

Imagine you have never heard of divorce or paternity or custody or parenting time. Imagine you hear about a unit called a family, and that unit is comprised of two parents, children, and other more distant, but important, people. They all care about one another. Then imagine that this unit, for whatever reason, breaks down, and the parents no longer want to live together and raise their children together. What system would you devise to help them sort out what to do and where to go next?

Would it be an adversarial model? Would it be based on a legal model designed for contract disputes? I am willing to wager that the answer is no. I had this conversation with a judge once, and since then I have always thought about this issue through the lens of starting over.

Each day, I find new reasons to question the effectiveness of the adversarial model for family law, and over time, this has sparked me to write this blog.

I currently have the luxury of being in New Zealand on a Fulbright Scholarship. I am an LLM Candidate at the University of Otago, and Fulbright will not allow me to do any paid work. This means that I have one task this year – write a thesis about the role of lawyers for children in custody cases. The research, of course, takes me deep into the heart of what it means to practice family law, and instead of ignoring the issues that arise because they do not relate specifically to my thesis, I am going to discuss them here. I promise I will not cite the blog in my thesis.

So what would the model look like to help our unit up above? I would argue that it needs to begin by not being based on a zero-sum model. The adversarial system breeds a belief that if you win, I lose, and if I win, you lose. There is no grey area. There is no possibility for both sides to win. But that is not how the world operates. It is possible for both sides to win.

There is no question that this is difficult. There is no question that family law is messy. It involves emotions that run deeper than any others and laws that do not fit the rapidly changing definitions of families. It is infused with budget cuts undermining already overburdened courts and professionals. Yes, it would be easy to say that family law is a lost cause. It would be easy to stick to the status quo because that change is always harder. But staying here hurts families. It hurts children.

This blog will focus on changes going on around the world in family law. It will pull together the freshest ideas that are working, or have failed to work, aimed at involving children in the process, making it less adversarial, quicker, and cheaper for families, and overall helping families navigate the world that is pulling their unit apart. Please join the discussion. Please share your thoughts and ideas and inspiration.

I know that with the right inspiration we can do right by children and families. We just need to have the information in front of us. This blog will be the place to find that information. I am honored to have been given the opportunity to study these issues in depth, and this blog will put all ideas on the table that I can find.

Thanks for reading. 

© 2011 Rebecca Stahl, all rights reserved