Thursday, November 20, 2014

Family court consent means nothing

A reader writes:
I really hate when I hear that most child custody is decided by mutual consent. Mine will be on that list. I have a choice to go to trial and spend money that I don't have and have the GAL tell the judge that I should have no time with my kids or accept what she is offering. Since I can't really afford to go to trial, and knowing I will lose, I have to go with take the offer. This is like agreeing to eat a pile of dog crap of my own volition, knowing that if I don't I am going to be forced to eat the pile of cow crap over there and be shot in the head when I am done. Everyone can say I chose to eat the dog crap, but the truth is I had very little choice in the matter.
Yes, that's right. Lawyers like to brag that they got a settlement with the agreement of all parties, as if everyone is happy.

One of the dirty little secrets of the court is that the judge can usually get his way with consent of the parties, and claim that he never ordered anything against anyone's agreement. In criminal court, for example, most cases are settled by plea bargain, where everyone is formally in agreement on the guilty plea and sentence.

Of course the defendant is only pleading guilty because he has been convinced that a trial will have a much worse outcome. But none of that is on the official record.

In family court, you have formally agreed to terms unless you exhaust all possible legal options. That means all motions, trials, appeals, etc. If you decide not to appeal a trial outcome, for example, then you are considered to have agreed to it, because you chose not to use your legal right to challenge it.

Most of those legal options are just a fruitless waste of time and money. I have heard family court judges tell parents that they better accept an evaluator's recommendations, else he will make them both miserable.

Unless you have a 6-figure legal budget, it is nearly impossible to exhaust your legal options. Even if you do, and you hire a mad-dog lawyer to take the case to trial, he nearly always chickens out in the end. He might burn $50k on pre-trial motions and witness, but when it gets to trial, he will nearly always work out a deal with the opposing lawyer, and then try to convince you that it is the best deal you can get, and the trial is too risky. In the view of the judge, you just spent a lot of time and money negotiating, and then consented to a settlement.

So nearly 100% of child custody cases are decided by mutual consent. Does that mean that the custody law is irrelevant? No.

I once heard an idiot propose that the checkmate was irrelevant to chess. Nearly all high-level games end in a draw or resignation, and checkmates are very rare in the official logs. So we don't need them, he argued, because the players can recognize who has won.

I hope that you can see the flaw in his argument.

People make the exact same logical mistake when they argue that parents do not need any statutory rights to their kids because most child custody disputes end in a mutual consent settlement.

Okay, I will spell it out. Chess players resign when they see no way to avoid being checkmated. Parents agree to different settlements based on whether or not they expect the court to uphold their rights. Lots of people sign off on evaluation recommendations because they have little or no practical choice about it.

If signing off on a coerced deal is consent, then a rapist could argue, "I put a knife to her throat and start to rape her, but she asked me to put a condom on and I did, so she consented to it." No, she did not consent. She just chose the better of a couple of poor options.


Miles said...

Seems to me the only way to resolve what your commenter describes is to have shared parenting. If a negotiatee starts off with no choices then it probably won't get better with the negotiations.

George said...

That is right. Sometimes feminists or lawyers will say, "you can still get shared parenting, you just have to negotiate it." But if the law does not have a right to shared parenting, then it can be impossible to negotiate.

HeligKo said...

We started off with shared parenting. It has gradually over the last three years been taken away. The law in my state has a very soft push towards shared parenting. There isn't any teeth in it. The legislature keeps holding conferences with judges telling them this is the future, but with no legal recourse or penalties to help enforce it, it hasn't gone anywhere. I was told very early, that if she didn't want shared parenting, then the judge wasn't going to order it. Sadly its time to throw in the towel. I would love to see a fathers advocacy group start working on funding and training lawyers to step in and start winning a few of these cases. Part of the problem is none of these lawyers want to offend judges and experts, because they will be back with 5 other cases that week with each of them.

Doty said...

George, you tell it like no other blogger I've read. This is so true. Family court is bizarre. A-hole psychologists seem to run the show. My ex put me through hell, because he could. To this day I am more angry at the system than him. Like the phrase goes, I " hate the game, not the playa".
I hope you are happy today George. Give us an update.
And never stop Blogging!!!

Anonymous said...

It's pathetic to read again and again how again and again one fit parent is denied access to their children due to family law abuses of fundamental rights, and to hear how these parents need lawyers to help them; the same lawyers who fill their own rice bowls from such violations.

How pathetic is it when a parent would not take time to learn the law themselves and stand up for their children's rights and their own. The law doesn't deny you your rights - you forfeit them by cowering or submitting to your own fears. Grow a pair and go Pro Se!