The XX Factor

Believe Family Court Reform When You See It

Photograph courtesy of Comstock.

Must be Friday, because someone has just noticed, again, that our family court system is a soul-crushing, pocket-emptying, child-destroying disgrace. A piece on the Huffington Post alerted me that yet another high-powered group, of mostly lawyers, has formed yet another commission to mop up the mess that is our divorce courts. And again, they’re promising the kind of reform almost certain to provide the panel’s sixty members with media exposure, high-level networking opportunities, and dream university/government jobs. Anything else will be a bonus.

This isn’t cynical. It’s correct, mostly because those who make their living by the hour (attorneys and the mental health crowd) will prevent meaningful reform from arriving before they retire; no one knows better than they how to pointlessly, and profitably, drag out crucial endeavors indefinitely. But the real reason not to hold one’s breath about this latest reform attempt is the composition of the brain trust tackling it. Reform may eventually come, but it will, by design, work much better for some of the players than for others.

The plan is this, writes one of the initiative members, Dr. Richard Warshak: “To transform a system of justice widely viewed as unjust (a ‘psychological meat grinder’ according to one victim), the American Bar Association Section on Family Law, partnering with the University of Baltimore School of Law Center for Families, Children and the Courts, last summer inaugurated a massive initiative that is now poised to bring family law into the 21st century.” I follow family court news obsessively and this is the first I’ve heard of this year-old initiative; it doesn’t even have a website. Meetings are not open to the public and its only charter is to promulgate “recommendations” in two years’ time. Recommendations.

To generate these recommendations, the project, called Families Matter, will bring together “sixty top family law experts—[e.g.] judges, law professors, and practicing attorneys along with about five mental health professionals.” Notice who’s not considered an “expert”? Litigants. Parents. Kids. How you gonna dismantle a “psychological meat grinder” without listening to the sausage? That’s like doctors trying to improve their bedside manner by consulting only other MDs and shrinks. Why such a glaring oversight?

Several immediate suspicions arise.

There’s the arrogant elitism of the professions comprising the panela largely unaccountable group with impressive credentials and absolute power over family court litigants, a cohort of which society disapproves. It wouldn’t be surprising if no one ever even seriously suggested including the victims of the meat grinder. Hard as they might try, many of the experts subconsciously believe litigants incapable of good judgment; you don’t have to be a litigant long to figure that out. There is likely also a distaste for unmediated contact with the unpredictable “great unwashed,” if they were finally allowed to speak freely. These experts would be idiots if they didn’t harbor a very rational fear of the anger, despair, and unvarnished truths they’d have to hear from “petitioners” and “respondents” reconstituted as citizens for a day. (Never doubt that the one thing you don’t feel like in family court is a citizen.) Imagine volunteering to be confronted by those who’ve spent years sitting mute while you experts vilified them. While therapists pronounce their exes the better parents after spending only a single session with them. While people they don’t respect decide how much money is enough for them to live on and how often they’ll be seeing their kids. Oh, no. There was little chance that family court’s victims—the meat in the grinder—were ever going to get a real day in court. Talk about taxation without representation.

The only prayer this latest attempt has is that judges have become unworkably overburdened by their caseloads; in Maryland for example, there are more family cases than all others types combined, criminal included. So what’s likely to happen is that, many years from now, the system will be made more efficient, but remain equally remunerative for the players paid by the hour, like attorneys and shrinks. Benefit to the litigants will be real, but pure “trickle down”; all they can do is hope for the best, tongues still bitten, checkbooks still at the ready. But here’s a tiny way to acknowledge those who pay the price for a broken system. The first recommendation should be that every court session should begin with this recitation by anyone who sits in judgment of litigants: “They’re not silent because they’re in awe of my wisdom. They’re silent because they fear me.”