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

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