Friday, June 17, 2011

A place to be heard

“Be prepared for deep anger, high emotion, blunt accusations, unashamed finger-pointing and heavy language. Let them go and let them get the pus out. That is how they will come to grips with the kaupapa. You will be surprised how often bitter enmity is brought out, debated and then buried to be supplanted by the catharsis of an emotional reunion of the whanau. The Mediation Conference does not allow for this process to take place.” John Te Manihera Chadwick "Acting as Counsel for the Child in Difficult Cases - He Mea Taka I Te Raruraru: The Intractable Case" (paper presented to New Zealand Law Society Family Law Conference, Welington, October 1995)

This quote is about the hui, which at its basic means nothing more than a gathering at a Maori Marae, a Maori meeting house.  The kaupapa means topic, and whanau means extended family. Essentially the author is saying there is great benefit in providing people a place where they can gather and lay out their emotions, a place that has certain rules, but provides the unloading that can finally lead to catharsis.

To a Westerner, this is almost blasphemous. We talk about the Golden Rule and turning the other cheek. For the record, I believe these are great ways to live, but they fail to answer our deepest need – our need to be heard. What would happen if we gave people this opportunity to be heard?

My work on children’s right to a lawyer in day-to-day care or custody cases has, over the years, left me with many reasons that children should have a lawyer in these cases, but none is more important than the fact that children have a right to be heard. Children do not necessarily need to have their wants and needs carry the day; they need to know that someone listened to them. There may be a shortage of research on the topic, but all, and I mean all, of the research that has occurred shows that the overwhelming majority of children just want someone to hear them. The outcome matters less, for some, it does not matter at all.

Why do we think it is different for adults?

I know it is not novel to suggest that the courtroom, especially the adversarial courtroom, is nothing more than a stage for people to vent, to make themselves heard, a place where their version gets just as much time as the ex-spouse’s version. Professionals talk about ways to stop this, making “relevance” objections and trying to get people to work it out in mediation. We remind parents that the past no longer matters, and ask them to focus on their children as they move forward.

The problem is that these parents, these parties, these litigants, never get to tell their story. Instead it becomes legally irrelevant to those who claim to be helping them navigate the most emotional process of their lives. I am not a psychologist; I leave that to others in the family. I am, however, a long-time yogi, and now a yoga teacher. Perhaps the greatest teaching I have obtained from yoga is that we can hold this stuff inside for years, but eventually it is going to come out, and when it does, it is not always pretty, but getting it out allows the healing to begin. Are we willing to give people a place to let this out? What would that look like?

I once attended a presentation by a lawyer/mediator who once allowed her client to scream at her as though she were his soon-to-be ex-wife for exactly 1 minute. He got out his anger, and then he was able to go back into the room and continue the mediation. The case settled. Is the hui example a better one? Place everyone in a room and let them go at it? What rules would we impose? How are we willing to ensure that people can speak their mind, speak their story, voice their need to be heard?

I do not normally advocate for screaming matches, but there is a fundamental problem with a system that says X while the parties need Y. We are not comparing apples and oranges; we are comparing apples and outer space. I know there are family law lawyers who will not represent a client who is not seeing a psychologist. I know there are family law lawyers who will listen to their clients espouse their hatred for the other party – at their full hourly fee. But that does not seem to be enough. The courtroom remains a place where people go just to have a stage to tell their story.

What if we gave the parties a safe place to have their story heard? What if we actually provided them 5 or 10 minutes to say what they need to say? What if the system allowed the catharsis to begin? Might we see a different situation in the courtroom? Might we never have to see the courtroom?

A hui has particular rules that must be followed. It is not a place where the parenting plan will be decided. It is not a place where the parties will decide who gets to keep the autographed World Series baseball. It is, however, a place where the issues that make those decisions so difficult can be addressed. Provide a forum for someone to be heard, truly listen, and then move on. Let the pain come out . . . but outside the courtroom. Then, when we tell them that their facts are “irrelevant” they will know we do not mean the fact that they have these emotions is irrelevant, but rather that those were heard in a separate setting, and what matters to the case is about moving forward.

I do not mean to say that this is an absolute fix to a broken system, but it is something to ponder. The first post on this blog asked, what type of system would you create for these families moving apart if you had never heard of the adversarial process in the first place? Would your vision have a place to vent emotions? If so, how would you do it? I am asking because I think, in theory, it is a great idea. In practice, however, I do not know how it could work.  

What do you think? Is there a place in the system to allow the parties to vent? Do you see a better way to do it?

© 2011 Rebecca Stahl, all rights reserved

Tuesday, June 7, 2011

Family Law: Definitely Not A Bright Line

It is all too easy - and it is understandable - where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation.” – Judge Hardie Boys, M v Y, [1994] New Zealand Law Reports 527, 533.

Although I do not want this blog to focus exclusively on Parental Alienation Syndrome, it seems to continue popping up in front of me, and it is an important topic. If for no other reason, it exemplifies many of the inherent problems in the current family law system. The quote above is a perfect example of the problems it can engender – when we focus on alienation as a defined “thing” for lack of a better word, we lose focus on the welfare and best interests of the child. When we focus on the behaviors, issues, and complications that arise in a family where alienating behaviors are occurring, that is where we begin to focus on the individual child’s welfare and best interests.

So how did we get here? How did we get to a system that strives to define and label rather than work with and understand?

The problem, as I see it, is two fold. First, the system began long ago as a system of divorce, and in order to get a divorce, one party had to prove the fault of the other party. Fault-based divorce had many problems, and honestly, I am not the best person to be discussing them; most fault-based divorce schemes went out of fashion around the time I was learning to speak. By making divorce “no-fault,” people were able to divorce when they could prove irreconcilable differences, which meant no more mud slinging, right?

Sadly, emotions do not just disappear, and instead of the mud-slinging being about one party’s adulterous behavior, it was squeezed into another realm – this time into who makes a better parent. Just because the law no longer requires one party to be at fault for the divorce, however, does not mean that human beings do not like to think that someone is at fault. So the conversation has moved into a realm of “proving” that one parent is bad. Custody cases become about whether a parent spends too much time playing Farmville on facebook and not about the child. In other words, “divorce court” remains a place where adults get to play out their unhappiness with each other all under a guise of arguing about their child’s best interests.

We as professionals get caught up in this partly because the issues being discussed, at some level, do matter to the child’s welfare and best interests. The problem is that we get more focused on whether the allegation is true than the fact that making the allegation is, itself, sometimes harmful to children. This is not to say that these issues should be ignored. It means we need to fully understand their ramifications before just assuming that the truth of the allegation = bad parent. 

And this brings us to the second reason we get too caught up in labels and definitions. They are simple. The law likes bright lines. Just ask Justice Antonin Scalia. Unfortunately, families and emotions cannot be placed into neat little boxes. The bright-line rules that work to tell us whether a contract was breached cannot answer the question of whether a parent who might have been distant to a spouse is going to continue being distant to a child in the future. We cannot compare those apples to those oranges.

But the nice thing about bright-line rules is that they are simple. They do not require us to get our hands dirty. They do not require us to take the time to understand peoples’ actions. Instead, we can say, “if you play Farmville more than 2 hours per day, you are a ‘bad’ parent.” Does this work for any situation we face? Certainly, parental alienation syndrome, along with abuse and true neglect, are much bigger issues than whether a parent spends too much time on facebook, but the point is the same – the results of the behavior are what matter, not whether the behavior is simply “true.” We may never know the truth, but we must take the time to understand the people in front of us in order to understand what the real issues are.

We cannot let the parties define them for us, based upon definitions we have created that may or may not explain their situation. The biggest problem with bright-line tests is that they have no place for nuance, and if there is one definition to which I am happy to subscribe it is that family law = nuance. There is no such thing as bright lines in family law.

What do you think? 

© 2011 Rebecca Stahl, all rights reserved