Child Custody: What do we want from the legal system?

I ran across the following article on the Massachusetts Family Law Blog, My Comment On: New York Judge Threatens Parents in Custody Dispute, and the following got me to thinking:

"Certainly judicial threats and coercion will work if all we want is for the parents to reach an agreement, and we don't really care if the terms of that agreement would be in the best interests of the children. But if we do care, the litigation often needs to be allowed to run its course, and the court must have the courage actually to do what it was designed to do: find the facts in an adversarial, evidentiary hearing, so the best interests of the children can be determined."

A few things come to mind, such as I am not so sure that an adversarial hearing is always in the children's best interests. I seldom see a quick hearing on custody here in Indiana. The problem arises because of the court calendars. Commissioners hear most family law cases and in most counties they do not have schedules supporting full day hearings. Where judges hear family law cases, the family law cases compete with other cases - criminal, civil, juvenile. So add to all the other stressors, the stress of waiting. These stresses affect the clients and their children.

Clients may think that a trial is the purpose of courts and lawyers. They think that the truth will out in a courtroom. Most do not know that the rules of evidence exist to keep information out of the courtroom. I assume that the judges take all evidence by the parties as biased and for me the question of presentation becomes paramount. The party that presents itself as being more reasonable has, I think, a better chance with a judge. My idea of reasonableness includes the presentation of evidence. Other lawyers disagree and perform a scorched earth assault (see my article from today: orce: A Good Post on Collaborative Divorce). Money for litigation becomes the problem for the client.

If the courts became more involved, there might be less battle for the sake of battle. More court involvement changes the system from a less adversarial process. Which then brings into the question of taxes. Tax money run the courts. Even if we find courts willing to bring in neutral experts for custody evaluations, will there be the backbone for spending tax dollars on these experts?

That last question needs to be put to our politicians by the people. We, the members of the Bar, need to educate our clients about the limits of our family law systems.

One other point about that quote above: it does show the differences between the states. Indiana requires that any settlement of custody be in the best interests of the children. An appeal lies waiting for a judge who accepts a settlement where evidence exists that the agreement does not serve the children's best interests. I would also say a judge that bullied a settlement would be looking at disciplinary problems.