Reflections on Family Law

Note: I do not reveal any client information in the following paragraphs. This is a fictional episode in its entirety, relating general attitudes of the current middle-class culture.

The middle-aged client, carrying a torrid novel, gasped when I revealed that, in reviewing the trial court's judgment, there was no issue to appeal. "So, they're just going to get away with it?" "Get away with what?" I asked, noting that the child, while having increased behavioral issues when with the other parent, was hardly acting out of the norm, and had not been abused in any way. "Such small changes", I added, "would hardly justify a change in custody or visitation...you need to show something serious to a judge in order to have a custody order change." "Well", came the reply with a sob, "I will just have to keep trying."

This vignette, I suspect, would be familiar to many a practitioner of family law. The sobbing or angry client, dealing with the effects of ordered minimum visitation, angry at the legal system for failing to correct what they see as some form of injustice, especially when they feel controlled or manipulated by the other parent.

I often wonder at the root of these feelings. I suspect that in some part, my clients are affected by the natural sense of disorder resulting from dealing with a divorce or out-of-wedlock birth. That is, the individual has some sense that something is wrong, but lack any faculty to attribute it, so the confusion and anger becomes free floating. Deep down I suspect that most of these people are aware of their own fault in creating the situation, but that is far too difficult to acknowledge, and so it become attributed to the other parent.

In such cases, the law too often becomes a tool which the damaged individuals (for it is often both parents who are psychologically impaired by the former relationship) seek to control or lash out at the other individual. Accusations of relationship rape, adultery, drug use, and domestic violence are legion, and (especially when dealing with a pro se party or a rapacious lawyer), too often discussed on the basis of flimsy evidence - used as "mud flinging". And so protective orders are issued, no-contact orders are entered, custodies are changed, and parties become willing to lie to try and get their way with their children.

Rather interestingly, the possessive pronouns used reveal quite easily how parties feel. A client will refer to what the other is doing to "my son" or "my daughter", when the pronoun "our" would be more correct. What I suspect is at the root of this is the refusal to accept a continued relationship with the other person, a requirement of frank acknowledgement would be to the person who is (knowingly or unknowingly) mourning the end of the time with the other person that produced the child.

I often wonder about the Catholic Church's insistence on the procreative and unitive aspects of sexual relations, and how it plays not not just mystically, but emotionally and physically. As I have mused above, the damaged client often seeks to use the law not just to protect the child or children, but to "get at" the other person in some way. It's almost as if the individual blames the other for their unmarried state with children and all of the additional work and expense involved, which (with the limited exception of rape or true abandonment) is almost always a shared fault.

This affects the lawyer in a few ways. One is that lawyers become jaded about anything reported by a client purporting to cast the other as some sort of monster, as such things may play out to be lies or exaggerations, and lawyers find it much more difficult to believe their clients. Moreover, with the widespread advent of emotionally "venting", the report from the client that  "I saw [insert bad thing here] on Facebook" something about the other becomes an instant red-flag of problems for the lawyer. Another negative effect is that good lawyers, who are aware of their clients' own problems, and aware of the weakness and difficulties of their own cases, are blamed for "not making a strong case", for failing to get the change of custody, or are fired for not being enough of a "bulldog". And so, good lawyers rapidly flee family law, sick of the accusations, the emotional treacle (see here: Death by Treacle) and the inability to get clients to compromise.