Family Court: Do Your Clients Know What They're Getting Into?
Family Court: Do Your Clients Know What They're Getting Into?
By Mr. Justice Harvey Brownstone
Ask anyone who has ever appeared in family court as a litigant – even if they had a lawyer – and they are almost certain to describe their experience as unsatisfactory. Why? What can be done to help people so that their family court experience is more predictable, more positive and constructive, less time-consuming, and consequently more beneficial to themselves and their children? An even more important question is, What can be done to help people avoid going to court in the first place? That is what I am going to explain in this book.
What is the difference between the couples who settle their disputes privately and those couples who require a judge to make the decisions? Do the parents in the first group dislike each other any less than those in the second group? Does the first group have access to resources unavailable to the second group? Do the two groups come from separate and distinct socio-economic or cultural groups? Not in my experience.
In my opinion, the major difference between couples who resolve their disputes privately and those who turn to a judge has to do with one overriding characteristic: maturity. We who work in family court know that a person’s maturity level has nothing to do with economic circumstances, education, culture, race, religion, or sexual orientation. We see rich people and poor people in our courtrooms, and we see people from all walks of life and from every racial, cultural, ethnic, and religious background, and from every lifestyle and orientation imaginable. Trust me: judges see it all. What we don’t see very often in our clientele is maturity.
In the context of a relationship breakdown, being mature means loving your children more than you dislike your ex-partner. Being mature means caring enough about your children that you will force yourself to deal in a civilized way with someone you may hate. Being mature means thinking twice and measuring you words carefully before you shoot your mouth off when you're upset with your ex-partner, especially in front of the children. It means always insulating your children from parental conflict so they know your breakup has nothing to do with them. It means doing what is necessary to make the transition in your children’s lives as easy for them as possible.
Being mature means putting your children’s needs ahead of your own. It means truly understanding and accepting that your children are entitled to love and be loved by both of their parents. It means giving your children emotional permission to express and receive that love, even though you and the other parent dislike each other. Being mature means being willing and able to reach compromises so that your children can have peace rather than be caught in a tug of war and conflict of loyalties. Being mature means recognizing that you can be an ex-partner but you are never going to be an ex-parent. True maturity requires parents to appreciate that children need both parents in their lives , working co-operatively to make the best possible decisions for their upbringing.
In my experience, mature people fully understand that even though they no longer love each other, they are the most qualified people to make important decisions for their children. After all, parents know their children best. Children deserve to have parents working together as a team in all matters affecting their welfare. Mature people do not give up their parental decision-making responsibilities to a total stranger, even if that stranger wears a robe and is called “Your Honour.”
From Chapter 7 of Tug of War: A Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court -“Lawyers: why you need one, how to choose one, and how to measure performance.”
“In my opinion, a good litigation lawyer should be practical, child-focused (in custody and access cases), and settlement-orientated. Look for solutions, not problems. Encourage clients to focus on the future rather than rehash the past. Lawyers can be major role models in teaching clients to adopt mature attitudes and behaviour.”
From Chapter 5 - "Joint custody: If parents are equal, why do so few have it?"
“Virtually every parent whose child does not live with them wants joint custody, but in my experience very few actually know what it means or how it would work in their situations. I often get the impression that parents ask for joint custody because they don’t want the other parent to ‘win’ the court case.
The purpose of my book is to help separate and divorce parents, as well as parents who never lived together, conduct themselves with the maturity their children need and deserve, so they can resolve parenting conflicts in a civilized and proactive way, hopefully without court involvement. I believe that maturity of perspective and behaviour can be taught and that sufficiently motivated people can learn to adapt to their circumstances and alter their way of approaching difficult situations. I have found that most parents love their children enough to become motivated and to adopt a mature course of conduct in dealing with ex-partners. The motivation comes once they understand the impact of their immature behaviour on their children’s well-being.
What if parents headed for family court could hear from the judge before they got there? What if they knew what to expect (and equally importantly, what not to expect) from the court process, and also what the court expects from them? What if they knew the alternatives to court litigation so they could choose the dispute resolution process that best suits their needs and circumstances? I believe that informed parents make better decisions than uninformed parents.
I know this is true because every day my colleagues and I help couples to shift their perspectives and take a child-focused approach to the resolution of family disputes. In the vast majority of cases, we see positive results, and parents emerge from the process with a mutually agreeable parenting plan, although it is fair to say that most ex-partners emerge from the court process emotionally bruised and not very happy with each other, and often not very happy with the judge!
It has always bothered me that family court judges don’t get the opportunity to offer this help until far too much damage has already been done. We don’t see parents until they and their lawyers are seated in our courtrooms geared up for the battle of their lives. The task of the family court judge is difficult at this stage, because instead of looking forward, parents mostly want to look back. We should be trying to construct a co-operative, co-parenting regime that is in the children’s best interests. Instead, we spend a great deal of time trying to de-escalate the hostilities and refocus the parties away from their litany of complaints against each other. Separated couples seem to relish the prospect of rehashing every bad thing that each party did to the other through the entire course of the relationship. Many people apparently need to hear the judge validate their perceived victimization.
While this may have a therapeutic effect for the parents (and that is questionable, as judges are not training therapists), it mostly serves to reopen old wounds and create new ones. Most importantly, it does not help the judge decide what is best for the children.
This book is intended to provided separate parents with much-needed information and insights, so they can make the most informed and best decisions before they decided to “tell it to the judge” – or better yet, so they won’t ever have to surrender their joint decision-making powers to a judge. If you apply the principles set out in this book, it is my hope you will never need to go to family court. Even if you do find yourself facing the prospect of a family court case, the suggestions in this book will help you, your ex-partner, and your respective lawyers to maximize your chances for a child-focused and mutually beneficial resolution to your parental dispute.
Mr. Justice Harvey Brownstone was appointed a provincial judge in 1995. He currently presides at the North Toronto Family Court. The above is an excerpt from the first chapter of his book Tug of War: A Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court (ECW Press, March 2009, 182 pp).
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