The Law Office of Luis Basagoitia, P.A.

LETTER TO THE EDITOR OF THE FLORIDA BAR JOURNAL - PUBLISHED ON THE FEBRUARY 2009 ISSUE

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-congratulory, 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 pays 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 were acting in the best interest of the children invariably said yes, and this is 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, as 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 as far as protecting children says we have failed them miserably.