The family courts and family legal system are flawed in so many ways. On one hand, who blames the commissioners and judges for handing out life altering judgements in a matter of approximately fifteen minutes after both parties have argued their point? Yet, on the other hand, how can these commissioner and judges make such quick decisions that may change a child’s future without knowing all the details?
High conflict couples that end up in court (which most do) believe this is the place where their story will be heard, the Commissioner/Judge will ‘understand’ their point of view. The reality of this is the Commissioner/Judge has so many cases to hear in such a little amount of time, and must make a decision with the information provided in front of them. If both parties have attorneys, the attorneys argue the main points, and the decision is made before the court. However, there are more cases that go before the Commissioner/Judge where one party has an attorney, and the other party does not have legal representation, and left to navigate through the court system. Unfortunately, this situation is usually set up for disaster because learning the court system, laws, rules, etc. is confusing to say the least, and this is what attorneys go to school for. Many parents cannot afford legal counsel, nor do they meet criteria for ‘free’ services. Therefore, when one party has counsel, and the other party is pro se; the party with representation has an advantage because this party knows the system, and what to say in front of the Commissioner/Judges. Additionally, just filing the paperwork alone is confusing, and most parents representing themselves do not have all the proper paperwork, not sure how to file properly, or fill out the legal forms correctly. The disadvantaged party is left to swim through this large ocean, and navigate through endless motions, court hearings, etc. while decisions are being made in court that may adversely affect the children.
Sometimes, the courts will agree to third party professionals (Guardian Ad Litems, Parenting Evaluators, Reunification Therapists, Parent Coordinators, etc.) to investigate the situation, and provide a report to the courts, does not mean this will hold in court, the professional is not qualified for this high conflict case (hopefully not the case), one party (usually the party with counsel) may not agree with the professional, and select another one to ‘buy time,’ and/or this process takes a long time because of the situation. Parents that are pro se, usually do not have the thousands of dollars these professional services cost, and rely on the other parent to pay for the services rendered. The ideal is for both parties to pay 50/50 for the professional(s), have equal say on who the professional(s) will be, and be able to keep the professional(s) when the party with counsel wants to ‘fire’ the professional(s) because of their own fears of the outcome. Once third party professionals are relieved from the case because one party wanted them removed (usually the party with legal representation), the process begins all over again with a new professional, and the children are the ones that suffer. Parents are too involved in their own emotions; they are unable to see the damage that is being done to their own child(ren). The courts will most likely defer to the professionals before they a decision is made because the courts agreed to the motion for a third party.
Third party professionals can be a great asset to these high conflict families, especially for the parties that do not have legal representation. However, when unequal legal representation is present, this may not stop the party with counsel to continue to file frivolous motions, muddy the paths, and confuse the process before the third party professional(s) even begin their work. The Commissioners/Judges make decisions based on the motions filed, and the end result may make matters worse for the children.
So, what can be done? This is a loaded question, and there are no easy answers to bring an end for high conflict families abusing the family court system. What can the Commissioners/Judges do for these high conflict families when one party has the resources for an attorney, and the other party does not have those resources? How will both parties receive a fair process given the circumstances, and is there a way for family courts to make both parties accountable for how many motions are filed and review how frivolous they are, and review whether these families are abusing the system for their own personal needs? Are the parties clearly involved in the court system to do what is ‘best for the children’ or a way to ‘get back at’ or show how ‘terrible’ the other parent is?
We must remember, children love their parents – both parents, including their extended family members. Yes, there are parents that need help, have substance abuse problems, mental health issues (un-treated), neglectful, abusive, etc., however, majority of these high conflict families that end up in litigation are ‘good enough parents’ and the fight is not about the children (as they proclaim), the fight is about defaming the other parent in the ‘eyes of the courts’ and not doing what is in the ‘best interest of the child.’ The party with the legal representation is more likely to ‘win’ the battle over the unrepresented party, but at what cost? Will the family court system be able to step in, and stop this needless bullying for the sake of the children, or continue to allow the party with money and legal representation to gas light the unrepresented parent where they may potentially lose parenting time, and/or parenting rights? There has to be a way to help these parents that cannot afford an attorney (and children) to receive equality in the family courts.
Written by Rochelle Long, MA, LMHC