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LETTER TO THE EDITOR OF THE FLORIDA BAR JOURNAL - PUBLISHED FEBRUARY 2009 EDITION
Children and Custody
I read "The End of Custody in Florida: Finally Parents Are Just Parents" (November 2008) about the new custody law adopted last October. The author states that now finally parents will be called parents. I also detected a self-congratulatory, smug tone in the article of a job well done by the Bar's Family Law Section and its 2008 Legislative Committee. I could not disagree more.
The latest modification of the custody law does not amount to more than rearranging the chairs on the Titanic's deck. When are we lawyers going to learn that lawyers are the worst people to deal with children's issues? This is nothing but a case of the fox guarding the henhouse. We delude ourselves that this time we are going to make a difference.
What we conveniently forget is that the legal adversary system is inherently flawed to deal with children in the difficult situation of ending relationships. Instead of five-day custody trials, now we are going to have five-day trials about who is going to take one child to the ballet. Of course, it is in our interest to continue this senseless litigation at the expense of the children.
But, hey, we have to make a buck, right? The immediate effect of this new law is at least, at first glance, more work for attorneys. Therefore, clients will have to pay more. Therefore, it is not just a law that won't work, but the clients will pay more. This is what happens when the fox is guarding the henhouse.
We need to stop being so arrogant and leave this where it belongs: outside the judicial system. The matter of child psychology needs to be addressed in a psychology oriented system where there are no advocates who tear each other apart and in the process destroy the lives of children.
Perhaps there should be judges, but they should not be lawyers, but mental health professionals whose only concern is the best interest of the children, as opposed to now, where every lawyer and client pay lip service to that concept at the expense of the children. Every client or opponent that I had who I have ever asked whether they are acting in the best interest of the children invariably said yes, and this in highly contested situations.
Clearly, this situation begs for a system where the decision about the children must be taken out of their hands.
We have to come to grips with the fact that the family law system, at least as it concerns disputed children's issues, is an utter failure.
The adversarial system is not designed to deal with psychological issues. When I am in need of a guardian ad litem, I always try to get a mental health professional, as I believe lawyers are too immersed in the adversarial system to make the best decision for the children.
As someone else said, children are either the center of your life or they are not; everything else is commentary. The new family law is not about children, but it is about lawyers maintaining a monopoly on a matter in which they do not belong. So please do not tell me you have done such a great job when all you have done is rearrange the chairs on the Titanic's deck and charge more for doing so.
As a lawyer, I am grateful to you, but my conscience and anybody's conscience is to protect the children and on that we have failed them miserably.
LETTER TO THE EDITOR OF THE FLORIDA BAR NEWS - PUBLISHED ON JANUARY 1, 2001 EDITION
Family Law
In response to a letter in the October 15 News taking to task the proposed Family Law Model Court plan, the writer's arguments strike me as "real politick." "Things are what they are and we better accept it. Since we cannot do anything about it, then at least let us not do something to make matters worse." I disagree with this approach in several respects.
Just because things are in bad shape does not mean that we cannot aspire to improve them. Of course, we have to make sure that the cure is not worse than the disease.
I have been a legal aid attorney for 10 years specializing in family law, and I strongly oppose the current system. It is my experience that those who are the oppressed do not have attorneys. They normally cannot afford them.
In other words, people who have money get legal representation. On the other hand, having more money has nothing to do with working toward the best solution for everybody concerned. In fact having more money is directly related with having power. Therefore, the people who are more successful in attaining power apply this concept to the family law realm with disastrous results.
In othe words, this party wants to win. Of course, he may win in a custody case with the aid of an attorney whose incentive is getting paid. The more litigation, the more income the attorney earns. However, in family law matters, losing is many times winning.
Yes, this person may get custody, but at the expense of the child's happiness and well being and, I would argue, that of the instigator himself. I do not think you can be content by destroying the other party - especially in a family law matter.
I am not the only one who says this. There are judges who believe that our system as it is makes the situation worse. Removing the incentive for "winning" would go a long way toward working for the best interest of everybody involved. Of course, big attorney's fees would be affected.
I agree with the writer that the juvenile dependency system is defective. As I understand, the foster care system is overwhelmed. Children are taken from their parents sometimes for relatively minor concerns, only to be sexually abused in foster care homes.
It seems to me that the reason why we fail in solving social problems is because there is no money to be made. After all, we live in a capitalistic society. Only when the importance of caring for our children or our poor will be as important as our quest for money will any solutions seem to me be effective.
For example, I will probably have to leave my position of defending the poor and the disadvantaged at least in part because of inadequate renumeration. The laws in the books as they are now may be appropriate, but it is in dedicating the necessary resources and interest in enforcing the laws where we fall short.