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


  1. Sounds like s a great plan.

    It may sound simple, but let's sunset all family law statutes in the US and require new re-writes that focus on 3 things:

    1) the needs and rights of children are first and foremost in everything we do - including the need for extended family and "social capital" in a child's life

    2) Getting rid of custody and visitation in our laws - (FL has already done that very well) and focus on parenting rights and responsibilities, and

    3) recognize that, in general, the best parent is both parents. Except by new technology, it takes 2 adults to make a baby and children benefit when 2 adults raise that baby. It's all about peace and sharing.

    That leads to a fourth change, i.e., an ongoing focus on helping people learn the need to share. It's what we learned in kindergarten (or so I'd hope) and what these divorced / separated parents want their children to learn. The concept of sharing must be in the statutes and laws and hearts / minds of everyone involved.

    At the risk of being criticized, I'd also say let's call out the attorneys who don't "get it". We can't allow those who make life difficult for families to continue doing the work they do.

    Finally, we must make room for understanding adults and personality difficulties. Let's remember that family law litigants are often "good people on their worst behavior" and others may have significant personality or emotional or substance abuse or violence issues that need addressing. Even with that, however, it should be about what is best for children, not about what is punishment to them. Concepts of therapeutic jurisprudence come to mind here.

    Okay Rebecca, now it's your turn. I hope that by the time you are my age, you've helped shape many changes that are child-focused and for the better.

  2. Sunseting all family law statutes is a great way to begin to change a paradigm that is not working.

    "You never change things by fighting the existing reality. To change something, build a new model that makes the exisitng model obsolete." Buckminster Fuller

    We need to develop a new vision of what will best serve children and families. In my view it needs to be a fully interdisciplinary vision which may be only tangentialy related to the law and courts.

    I know there are a lot of "yes buts" involved but we need to think big and outside of ourselves and our own personal and monetary interests to what is best for families and children and what is best ultimately for society. I know that's not a place many of us go anymore but it is what will make this world a better place for all of us.

  3. Phil and Mike, thank you! You are both absolutely correct. I was just saying to someone that I much prefer to change systems from the inside rather than be a revolutionary, but I really do believe it is time to step out of this old box that the law has created. The more I understand about what "the law" is, the more I am convinced that it simply is untenable for families. Interdisciplinary steps are, by far, the most important, especially as first steps. That will ensure we focus on truly caring for children, not just saying that we do.

    The word custody should be banned from ever being spoken again, and I actually mean that (except perhaps in a criminal context, but I will let others argue that). Here in New Zealand, the word no longer exists. Instead, they absolutely do speak of parents' responsibilities and duties along with their rights. These are important and vital steps to take. Mike, I know that many people do not want to give up their lives in this profession as it is, but we absolutely must think big and think of society as a whole. We will all benefit when we do that.

    Thank you both for your comments and your passion for the topic.

  4. Rebecca, Phil and Mike -- Now we are four. We might not be enough in numbers, but we are a good start. I agree that we need to ditch the old system altogether and start the messy business of reconstruction.

    We know that many in the legal profession are heavily invested in perpetuating litigation because it’s their business model. Yes, Phil, they should be called out. One way to manage that is to ensure that our best lawyers, judges, and mental health providers get educated in collaborative practices so that when one of our own acts out, we can (as a group) refuse to participate and when a client requests "junk yard dog" services, we can easily refuse to engage.

    As for the interdisciplinary model, it's already here in the form of collaborative practice and it dovetails well with a unified court; however, I think the whole notion of families interacting with a "court" is a bad idea. One of my favorite things to tell clients is "never litigate against someone you've slept with." I would extend that to "someone you've lived with" because, as our society ages, we are going to see more family-type partnerships of people living together for community, economics, and safety.

    Rebecca -- this topic inspired me to write an article and I'm including a link to this blog. We MUST begin serious discussions about how to extract family relationships from the legal landscape if we are going to change the way children and families are (dys)functioning.

    To quote Paul McCartney and John Lennon:
    "You say you want a revolution
    Well, you know
    We all want to change the world
    You tell me that it's evolution
    Well, you know
    We all want to change the world
    But when you talk about destruction
    Don't you know that you can count me out ..."

    Let's start a revolution!

  5. Thank, you Pamela. As always, you are right on! Thanks for the input and for sharing this link. Hopefully we can start sharing ideas across the globe and with our friends right next door.