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Family Court is Not a Family-Friendly Place
by Lisa Marie Macci, Esq.

It can cost a hundred thousand dollars (yes, you have read correctly -- $100,000) to get a fairly ordinary contested divorce to trial these days if you have issues involving property and children. Most would say that I shouldn't complain since I am a divorce attorney; however, unfortunately, I was also a divorce litigant (and obviously a glutton for punishment who has since learned my lesson) who went through two life-changing divorces through trial in the Palm Beach family courts. I can promise you that both were devastating, not only for me, but for my children as well. What was I asking for? I can tell you that I wanted to keep custody of my children, and obtain child support and equitable distribution as the law provides -- or so I thought.

The Child-Centered Divorce What is a repeated occurrence these days for parents in family court is that when wives seek equitable distribution, i.e., their share of the marital assets, as well as alimony or child support in accordance with the guidelines as set forth by the Florida Legislature, they likely will face a challenge from their husband for "custody" (now called "time share", infra) of the children, even if he only rarely has contributed in the past to caregiving of the children or the home (other than, perhaps, financial contributions).

Parenting Coordination Twenty or thirty years ago, the scenario in family court was rather different. A mother was presumed to get custody of the child(ren) during the divorce unless there were some extreme circumstance such as drug addiction. Alimony was considered to be an economic equalizer for a wife's or mother's contributions to the child rearing, household duties, and the husband's career. Equitable distribution did not presume an equal division of property, but there was more of a focus on the dependent spouse's actual needs, as established by the marital lifestyle of the parties. Judges dealt less with the soft issues of child custody and family life, and concentrated more on the quantitative property issues and the equities of the parties' respective finances and needs.

Dealing with forensic psychologists and discovery of test data in court Today, if the child(ren) stay with the mother, they may experience a far declined standard of living because of the replacement of realistic spousal support awards with amounts established pursuant to the child support guidelines. In other cases, application of child support guidelines may cause inequities for payors. The divorce laws first largely eliminated fault considerations in divorce remedies, but then effectively tied child support to who has custody of the children, with the combined effect of placing many parents into a position of feeling that they have no choice but to fight for extensive time share for their own financial protection.

The changes in child custody law have exacerbated divorce litigation by turning the children into financial assets. This often leaves both parties, as well as the children, unnecessarily wounded.

A. Elimination of Tender Years' Doctrine

What had been known as the "Tender Years' Doctrine", a doctrine existing in family law for many decades, was eliminated in Florida, and in most of the rest of the country, approximately 25 years ago as the result of a movement toward "gender neutrality." The Tender Years' Doctrine presumed that young children would best be kept in the custody of their mother following divorce or in a paternity action. Today, the pretext is that both parents equally work outside the home as well as within it. These changes to the family laws, which many welcomed, have been dramatic, and also have had numerous unintended ill effects. Most families don't live in gender-neutral marriages in a gender-neutral world.

Even when mothers work outside of the home, they usually earn less money than their husbands. Nothing has changed with the biological procedure for childbirth. It is still the woman alone whose life is risked and whose body is forever changed during her pregnancy and childbirth. Women are still the only sex capable of breast feeding their young child.

Data prepared by the March of Dimes based upon US Census Bureau March 2009 Current population Survey Annual Social and Economic Supplement reports Florida as having the second highest rating of uninsured children under 19 at 18.8% (second only to Texas). According to the same report, Florida also ranks third in the area of uninsured women of childbearing age at 27%.

Sadly, the interests of the children have taken a back seat to a formal presumption of gender neutrality. In numerous cases in family court involving infant children, judges have ordered mothers to pump their breast milk to provide to the father during his timesharingwith the infant -- frequently days and overnights with the newborn, and sometimes involving hours of commuting time.

B. Best Interests of the Child becomes the Standard

The "best interests" of the child is now the so-called "gender neutral" standard adopted by courts for cases of child custody. While this lofty ideal sounds lovely on its face, it is meaningless in legal terms. Chapter 61 of the Florida Statutes provides a non-exclusive list of items for the judges to utilize in determining "best interests" of the child for custody purposes, without specifying what weight should be given to the factors and otherwise lacking much guidance.

The "best interest" standard has turned each family court judge into the "800 pound gorilla." The test set forth by the Florida Supreme Court in Canakaris v.Canakaris, 382 So. 2d 1197 (Fla. 1980) for an appellate court to overturn a judge's decision is an "abuse of discretion" standard, explained therein as

"Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court." (emphasis added)
In this regard, an appellate court will defer to the decision of the trial judge, making a life changing (and possibly a life-ruining) decision virtually unreviewable in the appellate arena.

C. The Advent of "Therapeutic Jurisprudence"

During the past ten or fifteen years, the concept of "therapeutic jurisprudence" has crept its way into our courtrooms. Courts have been less concerned with the statutory guidance, case law and precedent and have attempted to become "healers" of families in order to implement otherwise unworkable joint custody ideas. But judges don't have this capability, and they know it. The legal focus on child custody and family systems instead of divorce's traditional disentangling of legal and financial ties, has resulted in tremendous governmental intrusion into the lives of families merely as the result of a marital breakdown -- intrusion which never would have been permitted otherwise.

Some examples of "therapeutic jurisprudence" invading the family court include the court-ordered appointment of psychologists and other mental health professionals to oversee the parties, the children or the entire family law case. Another example is the appointment of "guardians ad litem" to represent the children instead of either parent. The latest idea is the statute allowing the appointment of a "parenting coordinator." Not only do these involuntarily hired non-legal professionals cost a lot of money, but therapeutic jurisprudence also has stripped parents of fundamental rights in family court.

Retired Utah Judge, Arthur Christean, wrote an article, Therapeutic Jurisprudence: Embracing a Tainted Ideal, January 2002, FOU 02-01, which details how this approach compromises the most basic guarantees and principles of American jurisprudence: separation of powers, due process, judicial impartiality and equal justice under the law.

The three main points of attack by Judge Christean are as follows:

    First, while some of these programs superficially may appear to "work" (e.g., drug court), "defining what works and what doesn't disregards or discounts the basic constitutional doctrine of separation of powers by asking the courts to fashion solutions to social problems rather than waiting for the people to do so through their elected representatives. The line between the branch which interprets the laws and the one which implements them becomes completely blurred when courts become service providers intent on achieving specific outcomes."

    Second, "the judge must act as part of the therapeutic team. When acting as a member of a clinical team bent on achieving certain outcomes, judges cannot avoid unethical ex parte communications, that is, discussion of the case with one party outside the presence of the other party. Ex parte communications are traditionally a serious ethical breach for judges, but such communications form a regular part of the therapeutic process. Further, when judges become the central focus of the entire effort as the enforcer of the treatment team's decisions, rather than an independent adjudicator of the facts and the law, the appearance of bias cannot be avoided."

    Third, the therapeutic process and programs "substitute the judge's subjective judgment for time-honored due process checks, thereby eliminating a vital check on the abuse of governmental powers. Judges cannot effectively act as impartial and detached magistrates to hear and rule on the competing claims of adversaries when they also function as advocates and defenders of the programs and procedures under challenge."

It should be noted that most middle-class employed individuals often are unable to afford their own attorney, so the appointment of these additional non-legal professionals compounds the mounting costs of a family in crisis. These court appointments -- generally doled out to a select few, not necessarily either party's choice -- can range in cost from $150 to $400 per hour. If an individual is unable to pay for their attorney or the cost of an expert, they may default -- which can result in their home or assets being sold by court order to pay these costs, or even loss of contact with their child(ren).

D. 2008 Legislative Changes to Florida's Custody law

In October 2008, legislative changes pushed by the Florida Bar Family Law Section went into effect which took away the terms of "Custody" and "Visitation" in Chapter 61 of the Florida Statutes and replaced them with the concept of "timesharing". Proponents of this change urged that this would reduce the contentiousness of the dissolution of marriage process. That is unlikely to happen for conflicts that are brought into the court system. It exacerbates, rather than addresses, the root of the problems.

The result that this author has observed as a family law litigator has been one of little benefit or change. It appears primarily to have resulted in lucrative financial opportunities for those selling parenting classes, continuing legal education seminars, or parenting plan software for "the new custody law changes."

E. Why should this matter to you?

Some people who have not or are not currently facing a contested divorce with minor children may believe that those who are "made their bed and now can lie in it." But what about the children who didn't choose to be embroiled in litigation and the corresponding financial devastation associated with it?

Some of you reading this article have children or grandchildren who have or someday may face a divorce. I urge everyone who is reading this article to get involved and to pay attention to what is happening in our family court and with our family laws that are being passed in the legislature. Currently, far too often, a workable and equitable end result is an illusion. Bad laws must be changed.

Lisa Macci is a licensed attorney in four jurisdictions, and has been practicing law since 1988. She is a graduate of Penn State and Pepperdine University School of Law. Prior to entering private practice, Lisa worked as outside counsel to the Trump Organization, as a municipal court prosecutor, and as the in-house corporate counsel to Tropicana Casino in Atlantic City. Currently, her practice includes family and constitutional law, litigation and appeals. She also hosts the award-winning Justice Hour radio talk show.

Note from Lisa: For those interested in getting involved in Florida: One way to get involved is through the "Court Watch" program run by the South Palm Beach County National Organization for Women (NOW). Volunteers are needed to help oversee and to improve our family courts for the good of everyone. Free training is available for volunteer opportunities throughout the county. If you are interested, contact Adele at 561/394-3717.


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