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


  1. Rebecca, Wonderful idea for a blog. In commenting here, I would hope that this would also serve as a sort of clearing house of "new" ideas for family law, where other practicioners can post there own ideas on creating a more effective and efficient process. Then we can have a conversation about these things through your blog.

    So let me be the first.

    First is that I do believe there is a different "jurisprudence" associated with family law as opposed to tradtional legal models. The basic reason is that in almost all other aspects of the legal profession the focus of the law and process is on restitution, recompense, renumeration and responsibility for past, finite human acts. Its focus is seemingly finite in scope oriented towards the past.

    With family law, while consideration is paid to the past, its primary focus is directed toward the future; i.e. asset ownership, debt responsibility, parenting children and support, spousal or child. It is an unknown quantity. We use the past as a "predicter" but the role of the past in determination is much different than determining liability on a personal injury, responsibility for criminal behavior or the terms of a contract.

    In that family law is focused on the unknown, that quantity is also dynamic in nature, always changing, not a static concept of what "has happened", "was written" or "did act". Those traditional forms of jurisprudence focus on static concepts. Again, the past does not change, the future does on a regular basis.

    So it is my belief that family law jurisprudence doesn't find its place with a retribution, compensatory or punitive model. So what do you call it? "Predictive" jurisprudence? Not quite convincing. "Behavioral" jurisprudence? Doesn't seem right. "Therapeutic" jurisprundence as some others have speculated? Maybe. But whatever you call it does not fit in the traditional model of jurisprudence that we as lawyers, or the judicial system have forced it into.

    Thanks for the forum.

    Larry V. Swall
    Liberty, MO

  2. Larry, thank you! This is exactly what I am hoping this blog will create - a discussion among interdisciplinary professionals where we can share ideas, thoughts, and hopes for the future, with the past as a predictor of what will work for the profession.

    And I wholeheartedly agree with you about the fundamental problem. Family "law" is only law because the act of marriage and raising children is a legal construct (it can be other things as well, but in this setting, it is legal). The law, in this sense, grew out of things like contract and property disputes, not families. It grew out of ideas of "wrongs" not families. Thus, the construct does not fit the situation.

    So I agree that we need to find a new jurisprudential model. What that is, I am not positive, but I hope this becomes a forum where we can discuss such ideas.