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


  1. Bright lines are for my artwork whether drawing, painting or visualizing. The art of family law comes, it seems to me, from the depth and breadth of those who practice it from as deep a pool of wisdom as they can delve/develop.