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