Saturday, February 27, 2010

Comments on mediation op-ed

I commented before on a NY Times op-ed favoring divorce mediation. It generated a flurry of letters of varying quality. First the most idiotic letter:
Mediation in such cases typically leads to a perpetuation of the unequal dynamic that caused toxicity in the relationship in the first place.

What is needed is adequate financing for the judiciary and the required training of judges, whose mandate would be to provide prompt and thorough review of child-related issues on the motion of one parent or both.

Mediation, which lacks the “teeth” of enforceable judicial orders, is unlikely to have any meaningful effect. Unless parents can get prompt judicial rulings by properly trained and sensitive judges, the circumstances that led to the divorce are likely to persist.
What is this lawyer talking about? Does he really think that more money for judges is going to somehow enable them to solve "circumstances that led to the divorce"? That is crazy.

I believe that more training for family court judges would make them worse. Some of them are so bad, and issue orders that are so contrary to common sense, that it is hard to believe that they got that stupid by themselves. They have the kind of stupidity that comes with training.

At the other extreme is this brilliant letter from Steven Vogl:
Much of the conflict in divorces results from courts’ attempting to micromanage postdivorce families in ways that would clearly be unconstitutional if attempted with other families.

State legislatures and the courts need to recognize the privacy and due process rights of divorcing families to manage their own personal affairs. They should pass legislation that would establish a few models of equal parenting rights and responsibilities, for cases in which the parties cannot fashion one of their own.

Absent a substantial state interest, such as a finding of abuse or neglect, courts should not be dictating private parental choices.
He is 100% correct. We need judges to stop micromanaging, not to give them money to do more micromanaging.

The author Vogl is identified as a "former lawyer and mediator who handled divorce and family law". He probably realized that most of what divorce lawyers do is destructive, and had the good morals to quit. Not many divorce lawyers are willing to admit that.

The legislature could adopt a couple of simple boilerplate parenting plans, such as alternating child custody every a couple days, or every week, or every six months. Rear the kid would be each parent's responsibility when he or she has custody. The parents could negotiate their own plan, or if they do not agree, let the court assign a boilerplate plan. Decisions about school, diet, clothes, activities, etc. would not be the concern of the court. This change might put some court personnel out of work, but parents and kids would be a lot better off.


Anonymous said...

You dislike those micromanaging judges, but how successful were your own attempts at mediation? Is your ex in the least bit interested?

The reason judges end up micromanaging is that there is usually one, and only one, unreasonable party that pushes the boundaries, so that the other party has no recourse but to force a completely matter-of-fact issue (e.g. childrens' bedtime) through an adversarial process.

No, I think it is family law that should enforce boundaries from the get-go. Imagine that 50-50 custody is the norm, except for extreme unfitness. Then there no more of that endless tweaking and bickering about who is the better parent, or what time share, or whatever. Child support and everything else are also unnecessarily complicated, so that attorney fees end up eating most everything, usually, again, because one, and only one party, doesn't care. The worst is when one party forces the other to pay attorney fees.

Dan Brewington said...

-Reply to Anonymous

Setting boundaries is great, but how do you define boundaries? That's the problem. A responsible parent who doesn't attack the other parent is at a loss when the "boundaries" are being fenced out. Many times the passive parent is also the "bad parent." When someone chooses not to turn mean in a divorce/custody case, they are often left occupying their court time defending themselves. Everyone knows that the best legal strategy in a divorce is to throw as much mud against the wall and see what sticks. I didn't do that and I got burned.

The Court should have no say in what time the children go to bed unless there is evidence that bedtime has a detrimental impact on a child's life. What's worse; a parent who lets their children stay up until 10:30 on a school night or the parent who takes the issue to court? A good way to fix mediation is to allow the terms of the mediation or settlement offers to be admitted as evidence in court. My ex proposed a settlement offer to avoid going to trial. Her offer would have let me go for three weeks at a time without an overnight with the girls due to her work schedule. When I refused it, she requested supervised visitation and got really mean. I'm not allowed to say "She only started requesting supervised visitation when I didn't agree with her parenting schedule." The beauty of it is, the person making all of the demands, can turn around and say that the other parent doesn't cooperate.

The best training a judge can get is training to end stereotyping. An unemployed mother is a stay at home mom. An unemployed father is a deadbeat. How often is the term "deadbeat mom" used? If a woman drives her children into a lake, people try to find out what mental disease she suffered from. If a male does the same thing, it's an indicator that more fathers may do the same.