Family Lawyer: Adversarial Process Doesn’t Promote Best Interests of Children

November 11, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

All things considered, this isn’t a bad article (Huffington Post, 11/10/15). It’s by a family law attorney named Mark Baer and its purpose is to inform parents about the pitfalls for children of custody battles in court. Perhaps ironically, it’s a pretty good brief for getting attorneys, judges and courts out of the child custody system.

Baer points out the obvious that many of us have been saying for years — that the adversary process tends to exacerbate conflict between parents. That conflict inevitably hurts kids.

[Attorney Frank Cervone] said, "In the adversarial construct, an attorney’s job is to advance their client’s position – not advance what is in the best interest of the child, which is the role of the judge." Mind you, the exact same thing can be said for those parents who opt to represent themselves….

[W]hen parents act in such a manner, the only person involved in the case responsible for assessing what’s in the child’s best interest is the judge. Furthermore, the judge has such limited knowledge of the family that their subjective determination may or may not actually be in the best interest of the child.

Not only do judges handle a great many cases and therefore not have the ability to develop a clear understanding of any given family, but their decisions are only based upon the "legally relevant and admissible evidence" submitted to the court.

To sum up, the legal system provides three people to a custody battle, an attorney for Mom, an attorney for Dad and a judge. The first two aren’t interested in the child’s best interests and the third doesn’t know enough to act in support of same. At that point, Baer might have mentioned that the legal system proclaims loudly and long that, in custody cases, it invariably acts in the best interests of the child. Baer gives the lie to that notion.

I’ve said it before and I’ll say it again: the adversarial process is the very worst way to decide custody of a child. It takes a situation that’s already fraught with conflict and bad feelings and makes both immeasurably worse. To say that it does this in order to promote the best interests of children is both notionally and scientifically absurd. But that is what the legal system does every day, many times a day.

We should do whatever’s necessary to remove lawyers and judges from the process of deciding child custody. A system that’s built for deciding criminal cases and auto accident cases has no business deciding the future of children.

We’re a long way from taking child custody cases away from lawyers, so, in the meantime, the next best thing would be to educate judges about what post-divorce parenting arrangement is actually in children’s best interests. I refer of course to equal parenting, a topic Baer takes on.

Generally speaking, shared parenting has been found to be in the best interest of children. Since people seem to have trouble with terminology, I would like to be extremely clear that shared parenting is not the same as Equal Parenting. There is absolutely no evidence to suggest that Equal Parenting is in the best interest of the children. Shared parenting is not less than a 33% timeshare. This is not to say that shared parenting cannot be an equal timeshare for both parents. Let’s just not confuse the fact that 33% or more by no means necessarily equals 50%.

Now, when Baer says there’s no evidence that equal parenting is in children’s interests, he’s just flat wrong. There is in fact a good deal of such evidence as anyone who’s read Dr. Edward Kruk’s book, “The Equal Parenting Presumption,” would know. But for the most part, Baer’s just parsing words. He’s right that the benefit of shared parenting tends to kick in when one parent has not less than 33% of the parenting time. For many who study the matter, that’s what “equal” parenting means — any ratio of time closer to 50/50 than 33/67. So yes, equal parenting is best for kids, given a somewhat broad definition of “equal.” No equal parenting proponent I’ve ever heard or read claims we should cling slavishly to a strict 50/50 arrangement.

Meanwhile, Baer recommends a movie I’d never heard of until I read his article.

Connecticut attorney and filmmaker Larry Sarezky has produced an award winning film about custody battles titled "Talk to Strangers." This amazing film, which I first saw on March 13, 2014, shows the impact on children of the custody evaluation process, from the children’s perspective.

I would like to point out some of the highlights of the film:

First, children involved in family law litigation tend to believe that their parents care more about fighting with each other than caring for them.

Second, the film gives insight into "why" any given child wants a particular parenting plan or to live with a particular parent. Is it because one parent bribed them, as occurred to me and my siblings? Is it because of "facts" the children learned from one or both parents? I think everyone should know why I placed "facts" in quotes. Is it because they feel that one parent needs them more than another? If so, is it because they somehow believe that they must now parent their own parents? It is always fascinating to learn the "why."

Third, is what is "fair" to the mother, father and children the same? If not, who wins when it comes to "fairness" and whose sense of it is ignored? How does that play out?

Fourth, parents believe that their children are "amazingly resilient." Think again! Doesn’t that depend upon what it is that is thrust upon them?

Fifth, parents believe that they insulate their children from the "process." Really? Are parents completely clueless in all aspects of their lives, or only when it comes to this issue?

Sixth, parents don’t believe that their children are embarrassed by their behavior. Really? Think again!

Sounds like one worth taking in.

A problem I had with Baer’s article, though, is that he nowhere addresses why parents often are at each others’ throats when it comes to child custody. Yes, attorneys and the adversarial system are much to blame, but judicial bias is too. As I’ve said before, a half dozen surveys of family court judges and family lawyers make abundantly clear the pro-mom/anti-dad leanings of legal professionals. In case anyone misses the point, 20 years of data on who gets custody make it clear — the system prefers mothers over fathers.

So when Baer says (and rightly, too) that parents should be the ones to put their children first because no one else will, he ignores what both parents see long before they ever hire a lawyer or set foot in a courtroom. They see that, all things being equal, Mom will get custody.

Does that encourage Mom to accept less than primary custody? It does not. Does it encourage Dad to fight tooth and nail to wring as much parenting time as possible from a recalcitrant legal system? It does. Ergo, conflict. That lawyers are adept at playing on their clients’ hopes and fears and in so doing, making matters worse, is unquestionably true, but it’s not the whole story.

Educating judges about what’s truly in children’s interests is necessary. Do that and judicial bias will fade and, along with it, much of the inter-parental conflict that seems endemic in the system. As long as fathers must assume the need to fight a system that’s against them, a fight there will surely be.


National Parents Organization is a Shared Parenting Organization

National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

#childcustody, #familycourt, #anti-fatherbias, #bestinterestsofchildren

One reply on “Family Lawyer: Adversarial Process Doesn’t Promote Best Interests of Children”

Let me try this again. NPO and Mr. Franklin continue to beat around the bush. No one here seems to want to bring up, let alone tackle, the REAL problem.

That is, of course, moms’ insatiable greed for control of both the children and the father of her children and the money. Until someone is willing to call out the last couple generations of greedy gatekeepers nothing will be solved.

Ladies, stop ruining the lives of your children and the men in your life. You, and you alone, have the power to do what is right for your children and let fathers into their lives. I mean, how important is the so-called “child” support, really? You really want it that bad? How about letting dad into your kids’ lives and get a job like all adults should be expected to do.

Let’s stop blaming lawyers and judges for the utter depravity of what mothers have wrought.

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