My colleague, Peter Wall, and I have been working together on a number of family law cases involved with litigation over the last few weeks. As we rush to get a legal document filed, or brainstorm over legal theories, we often take a moment to reflect at just what a crap shoot family law litigation is at times. We were not troubled in our navigations of the code or case law, but troubled at the thought that even though we were citing current law and applying proper legal analysis to the statutes, the final outcome of the dispute would be controlled by an unwritten rule.
Family law is a very different animal compared to the other areas of law because of one very special yet dominating factor -- discretion. Yes, "discretion" it is. In family law, there are statutes and case law that sometimes control the outcome of a legal dispute. However, many times, a dispute's outcome is controlled by the judge's power to exercise his or her discretion. What exactly does discretion mean? Merriam-Webster's Dictionary defines discretion as "individual choice or judgment." Considering that many of a family law judge's decisions about children, custody, visitation, who gets to stay in the family home, or if a parent's rights are to be terminated boil down to the judge's "individual choice or judgment." In a typical family law court appearance, the judge must make a decision. The attorneys lay out their client's version of the facts, and sometimes provide the judge with statutory and case law that should control the outcome. The judge may also use the recommendation of a family court mediator (who is basing that decision on THEIR own discretion). Once the judge takes all of that in, and if he or she still isn't sure what the final outcome should be, the judge will use his or her discretion.
This seems logical since families are live, breathing human entities and not a simple contract to fight over. A human touch could ideally finesse a decision that could normally be crude and impractical. If only that were the case. What I see is that there are so many different judges with so many diverse backgrounds, beliefs, religions, temperaments, ideologies and moods that the application of the "discretion" factor is almost never the same from one day to the next. Rulings for one family are not the same for another similar one. One judge is liberal, another may be conservative. Each judge brings to the bench his or her life experiences that will ultimately affect yours. Don't get me wrong, I think our family law judges are brilliant, hardworking, accomplished people who are indispensable. Society could not avoid chaos without them. But not everyone needs to litigate and go to court. Court should be reserved for the most severe cases.
Collaborative Practice is the alternative to traditional divorce litigation that leaves the ultimate decision-making power up to you. You and your spouse use YOUR own discretion, background, beliefs, and ideologies to make decisions that will affect your home, your children and your future. Do I need to go further? If you are like me -- one who has a strong internal locus of control, the option is a no-brainer. Collaborative law provides families with the ability to control their own outcome in a peaceful, respectful and controlled way. Just thinking about it brings my heart rate down! One day, I hope to never step another foot in the courthouse. I can't separate myself from the pain of my clients -- I am still human (thank God!) I don't know how long I can stand the stress and the personal angst I feel as I watch what happens in our family court system. There is an option for you or someone you love.
For more information on collaborative practice, please visit our website.