One of the striking aspects of the practice of family law is the manner in which some cases never end. Most lawsuits (other than asbestos litigation or other odd areas of law) are over within a year or two. Some drag on for more than that. But family law cases can literally go on for year after year after year. Why? Because the families have CHILDREN who are still living with one, or both parents, and until that child turns 18, there is the potential for conflict. Courts have continuing jurisdiction to hear child custody matters and child support matters. Is that a bad thing? It can be, but it completely makes sense that the court needs the flexibility to make appropriate orders as things change.
One of the more extraordinary aspects of family law litigation is the enormity of the files which can appear in any given case. A “high-conflict case” can have between ten and twenty volumes. In such a case, there can be multiple Judges and multiple attorneys who have found their way in and out of this case. Judicial officers facing such a case cannot and will not read ten volumes to get an idea of what happened. Like all judges, they will use “short cuts” to make decisions. This is nice when it works in your favor, and bad when it does not. I have been on both sides of the coin.
One short cut Judges will use is simply examining the findings of another judge and then making future rulings on that basis. This works great when the previous judge got it right. It does not work at all if the other party has created a false narrative about what has transpired and that narrative has been adopted by the court, whether due to an honest mistake (as is usually the case) or bias against the individual client which makes the false narrative easier to accept.
If one of the parents suffers from a personality disorder (such as narcissistic personality disorder) then the court process becomes about controlling the other parent (usually an ex-spouse) and using the court to impose his or her will upon that person. The parent can steal money from the other parent, or challenge custody and use the child as a weapon, in order to fulfill their need to dominate. When the parent who is the target of such action fights back, the false narrative starts to develop: the parent who has been robbed of their assets attempts to obtain evidence of this fact. The parent who stole the money tells the court there isn’t any money. Meanwhile, their $350 an hour attorney keeps showing up in court, year after year, to help this ‘poor’ individual.
Attorneys engage in a process called “discovery”. The word is a misnomer, because literally one-half the time the idea is to make sure nothing ever gets “discovered”. Intentional stonewalling, misinformation, evasive responses can drag the process out year after year to the point where a case can be in front of a fourth or fifth judge. By that time, the fake narrative propounded is “I have given (x) everything he/she has asked for and we are still in court”. Of course, it is rarely true, and a Judge sitting their looking at ten files isn’t inclined to say “yes, let’s keep this going”. The party with the money is waging a war of attrition. The party without the money gets to the point where, cut off from the funding an unable to obtain a fee award to create parity, simply dries up and blows away.
The accumulation and investigation of documentation is key to fighting this, along with immediate presentation upon discovery, involving cross-examination of the guilty party. There is no substitute for this, and in a business where mostly everything gets decided by written declarations and attorney arguments (where some attorneys will literally say and do anything to win, without punishment) this fake narrative can become the truth. This is also called the “big lie”.
A big lie (German: Große Lüge) is a propaganda technique. The expression was coined by Adolf Hitler, when he dictated his 1925 book Mein Kampf, about the use of a lie so “colossal” that no one would believe that someone “could have the impudence to distort the truth so infamously.” Hitler asserted the technique was used by Jews to unfairly blame Germany’s loss in World War I on German Army officer Erich Ludendorff.
How this plays it, quite often, is that the court labels the party seeking justice (and not giving up) as the party causing trouble. The party who has successfully delayed the process, delayed justice, and created a false story about how the case has dragged on, then gets to play the victim. Because there are so many volumes in the case, the court has absolutely no idea who to believe and must rely upon a determination of “credibility” which courts often get totally wrong. Of course there are terrible, corrupt judges out there. But frankly, most of them are decent, honest people trying to do their job, and it is not as easy as people think it is. This, of course, is small consolation to the mother who loses custody to a child abuser or gets sanctioned by the court after losing her house, her car, and every single penny she ever saved to an unscrupulous spouse, or a father who winds up in jail for wanting to see his kids.