Thursday, February 18, 2016


As members of the "divorce bar" are fond of saying when divorce and custody judgements are questioned by a "consumer", "Somebody has to win, and somebody has to lose." To which we would ask: "…but what if the dice are loaded?" Winning and losing a parent are very sad decisions to give a child, who needs both parents. Should divorce be played by the divorce bar as a "zero sum" courtroom gamble over children? In the "win or lose" dynamic are children well served, or is it a "championship game" for the divorce bar? Who gets the gold medal? Certainly not the children. Isn't the adversarial model inappropriate in a divorce where children are involved? What is "justice" for such children? What is justice for the parent who loses? Why does the bar never push for reform of this barbaric "win or lose" mode?

Herewith are a few topic headings viewed from a consumer's perspective that are about "broken family court structures" that load the dice against many who use family courts and in favor of those with expertise in "gaming" these courts. Individual divorce and custody cases get ground up for hamburger meat in this game. Our topic list aims to describe the broken family court "grinder". These structural topics (when filled in with cases) ought to explain the need for a legislative audit of family courts or "investigative reporting" by a courageous newspaper. Or both.

1. OUT OF DATE MANAGEMENT: There is no higher level management of the judges, GALs and lawyers who populate family courts, and there no systemic data for a manager to work with for "big picture" oversight of the family court  system. This information lack hides patterns of hard, recurrent data about courts/judges/lawyer/GALs who may present consistent problems to the public. It hides judge/lawyer relationships, and judge/lawyer patterns of outcomes that might suggest coziness, it hides averages for court time for divorce trials (billable hours) and masks  the practices of lawyers who might be considered "frequent flyers" or "contention profiteers".   

2. BROKEN: "Corrective Mechanisms" that don't correct. Protocols for complaints about GALs, lawyer, Judges and appeals challenge the 'pro se' complainant in the extreme.  These take hours to put together, they then go through screening procedures that "screen out" complaints said to be unworthy. But even after screening out "bad" complaints, few actual complaints yield "corrective action" of any kind. How to interpret this? A sign of perfection, or protection? Look at the micro (or non-existent)  numbers of corrective actions in each of these categories. There is also the awkward question: how does one correct a bad Supreme Court decision - or do they never make a bad decision? Guess not.  Get over it!

3. NO REAL MANAGERIAL OVERSIGHT: Oversight, such as it may be, relies entirely on non-lawyer "consumers'" cobbling together a quasi legal complaint and defending it; not professional surveillance of professionals by management. The only way those higher in the Judicial Branch know there is a problem is as a result of a successful complaint from the public. Almost no complaints filter through the various tight screens. Higher ups remain in blissful ignorance of malfunctioning. There is no modern management of defective functioning in this system. Bad practices can fly under the radar and continue to malpractice.   

4. OPACITY OF REGULATORY DEVELOPMENT: Regulations for the family court judicial system are developed "in the closet" of the Judicial Center behind closed doors with no public observation. Unlike legislative deliberative sessions and hearings,there is no transparency of the deliberative process- or of who deliberates (same old, same old committee members?). Why this "opacity"? Secrecy in deliberations will tend to promote 'status quo' conservatism, legal protectionism, rampant legal self-interest and nothing really changes. This is not in the public interest and hard to justify. Regulation development is treated like "top secret" activities.

5. DEFECTIVE VETTING OF JUDGES FOR APPOINTMENT/RE-APPOINTMENT: Every step in this process is opaque and leaves out the public, until near the ceremonial end. It is largely a popularity contest for political elements of the bar. Is a judge liked by small segments of the bar, who work at this task? Why is there no standard, formal testing and grading of a judge's knowledge of the law, knowledge of new laws, new regulations? The legislative reviews are an act of faith, rubber-stamping the bar committee's, (as is the Governor's). They simply sign-off on the bar's "judge- friendly vetting" decisions. The public would be better served if judges were obliged to take a certifying/re-certifying exam that tested their knowledge of the law and regulation, with results made public.  Otherwise, how do we know, how does the legislature know, how does the governor know? In plain English, they don't.

6. ABSENT PROFESSIONAL DISTANCE: The judiciary promotes friendly bench/bar relations,  But how friendly? Cozy lawyer/judge relationships are suggested by certain lawyers always scoring a win with certain judges in family courts. There are reports we hear of local bar members ganging up on a judge who dares to disfavor the more political members. Re-appointment is not in their "interest". There is a need for open statistical data That would show judges, lawyers, outcomes. A legislative audit would sample a few courts where anecdotal data suggest high frequency Judge/lawyer results.

7. INTIMIDATION: Intimidation of lawyers who fight too hard for their clients. A common client observation: "My lawyer is a lion in the office, but acts like a mouse in front of the Judge." Why? Lawyers who advocate too strongly for a client learn to beware of 'sua sponte' complaints of unprofessional behavior or claims of "contempt" (shown by brusqueness?). Maybe you don't fit in family law?  What about a career in bill collecting? What is contempt of court and how does it play-out when a judge is contemptible by any normal standards?   

8. ABUSE OF ABUSE ALLEGATIONS: The child abuse conundrum Lawyers' claims of abuse vs Children's Protective. Claims of child/spousal/other abuse are extremely common in divorce and custody cases, and such claims are used for "winning" decisions and money and generating billable hours. Referrals of abuse claims to Children's Protective are not favored.  They stop billable hours for the divorce bar. Follow the money. The billable hours stop when a referral is made to CP. The preference is to use "court consultants", who are "frequent flyers" with certain judges and certain lawyers.

9. ABSENT ACCESS TO JUSTICE: The 75% access to Justice failure is the core situation that is transforming Family Courts into a broken, unpredictable system in which self-representing people struggle for justice. This is approximately 17,062 people for 2015, using Judicial Branch numbers to calculate 75% of the total. It is the population of 'pro se' users, a "time bomb" that will in the end destroy family courts - with or without reform. 'Pro se' numerical dominance is "the new normal" for family courts, which are struggling to maintain "an old normal" in which lawyers were the interface for the pubic with justice. No more. Judges are at a loss about managing the 75% majority of self-representing litigants. Self-representing parties are just plain lost. It cries for answers. The absence of the old structure leads judges to perform in more high-handed, totalitarian, arbitrary ways and leads to huge problems of badly crafted outcomes. It cries for in-depth study.

MeGAL is working to bring about Guardian ad litem and Family Court reform. There are additional points to "The Dice Are Loaded" which may be found [HERE]. We encourage you to become involved and can do so by contacting us at as well as your state representative. 

1 comment:

  1. The court systems are broken and will remain so until the public is fed up with the way things work. I love the points and can relate to many of them.