Nobody needs to explain to litigants in a family law case how high the stakes are. The one thing each person who comes to court understands is that losing is not an option. Except when it is. At the end of the day, if you put the court in a situation where they have to make a decision, and that decision can hurt you, you can’t be surprised if it does not go your way. Court is a fight. Family courts are not places people go because they get along so well with each other. It’s an adversarial process, poorly designed to solve these problems and a crude tool for conflict resolution.
That is why there is a veneer of civility throughout the process. The court wants you to talk to the other side. Attorneys act like they are here to work things out. The therapists try to make everyone feel heard and understood. You want your lawyer to blow the other person up, but instead they seem to be avoiding saying bad things about the other parent. It’s fair to ask why.
The simple reason why is because this dials down the conflict and keeps it from getting worse. The best way to resolve a conflict is not by destroying the father of your children or your former spouse. The saying goes “When seeking vengeance, first dig two graves.”
Injecting more emotion into something wrought with emotion is the worst thing you can do. Thus the “angle of repose” in which most cases sit needs to be one where the parties are directed toward resolution rather than conflict.
In an ideal world, this is what we all want. But what happens when someone is determined to prevail no matter what, and each and every interaction is simply another venue to litigate? I have often found that there is a reticence on the part of courts to admit that this sits at the core of a very significant number of cases. When the facts show someone has no intention of obeying court orders, operating in good faith, and cooperating at all, and a record has been created where this is quite obviously true, it is frustrating for me to come in front of courts and to be treated as though I am part of the problem. There are times when my clients are simply victims in the process, and unfortunately it is custom and practice to treat all litigants as perpetrators and victims, no matter what the facts are.
I appreciate and admire judges who hold off on using their power. Constraint in the face of uncertainty is a good thing. But I also think there are times when the evidence is sufficiently damning that action is required.
When I am asking that a child be removed from the care of a parent, I do not do it lightly. I do not do it without reservation. I request such relief because the facts call for it. Out of all the things that bother me the most, the worst of them is when someone is pretending to be part of the solution and they are in fact are part of the problem.