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