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Confessions of a Family Court Judge

By January 6, 2022February 7th, 2022Family Law

Interesting insights from a family law judge from New Zealand. A lot of the principals she talks about apply in spirit to family court policy in California, in trying to help families get through the difficult transition of divorce, property division and child custody arrangements.

Parenting is tough. So too are relationships. Add to that financial strain, sickness and myriad things that can go wrong, and relationships founder on the rocks of good intentions.

And so they end up in court, arguing over everything from ‘he gives them too much fast food’ to ‘she lets them stay up late’. The Family Court sees it all. At the heart of most disputes is an inability to work together as adults when the love has gone.

He doesn’t provide clean clothes. She drops the children off late. He sends snaky texts. She put him down in front of the children. Minor matters? Not worthy of court intervention? If the problem doesn’t get aired and resolved, the losers are the children who will grow up with a tendency to depression, unable to form intimate relationships, vulnerable to drug and alcohol addiction. No, not minor.

One of the most telling aspects of my work in the Family Court is the interview with children, often just before the court case begins. I conduct them in my chambers with the child and their lawyer present. Time and time again, a child will tell me they want what is fair for both Mum and Dad. They want to do the right thing. They are sick of the arguing. If possible, they want their parents together again; if not, they want peace.

Sometimes they demonstrate a clear knowledge of the dispute, to such an extent that I know they have been shown affidavits written by their parents. Although they have been wrongly drawn into the custody tussle, they still retain some semblance of even-handedness.

But their warring parents are hell-bent on proving a point, making the other pay. I occasionally remind them there was a time when they loved each other. Clearly hell will freeze over before that scenario is repeated. They have hate down to a fine art.

If a compromise is possible, so is a solution. I have always taken a fairly hands-on approach in such mediations, endeavouring to get the parties talking as much as possible but also offering my view on a best outcome, so they know what the judge thinks. I’ve seen time and time again how two people walk into court, barely able to look at each other. An hour later after listening, really listening to the other, they can divest those old attitudes and soften their hearts.

It’s also not unusual now for the custody dispute to involve blended families. In one rather complicated matter, the parties married, had two children and then separated. Then (or maybe before, who knows?) he had a relationship with her sister and, in what looked slightly tit for tat to me, she took up with his brother. Everyone had children, so sorting out contact arrangements was a bit complicated, made more problematic by the tension between all the adults.

Children become the unwitting pawns in custody tussles. One of the saddest kinds of disputes involves the child becoming alienated from the other parent, and so they parrot the distasteful things about Mum or Dad to such an extent that the parent–child relationship can be irretrievably destroyed. That occurred in a UK case, in which the judge apologised to the father who had spent eight years in an ultimately losing case. The judge made a scathing attack on the mother, pointing out the children would suffer long-term harm as a result of her bitter actions.

A sad little girl once told me she didn’t want to live with either parent and asked if she could stay with me instead. She wanted to bring her pet rat. I dearly wanted to gather her up in my arms, take her home and show her a life free from conflict and discord. After all, it’s the very least every child deserves.

Those who represent themselves in a custody matter are at a distinct disadvantage. Even when they read up the law in advance, they are still giving weight to that old adage that a little learning is a dangerous thing.

There is a greater handicap, however. At the hearing, where a number of parties might be cross-examined, a self-represented litigant inevitably encounters problems. If they are questioning their ex-partner, it tends to deteriorate into a rant rather than properly put questions. There is a skill in cross-examination that takes a lawyer years of experience to develop and refine. Time and again, I’ve had to pull back a questioner from either irrelevant or abusive lines of question. “Your mother never liked me, did she?” “Your second cousin is a paedophile, correct?”

I’ve often pondered what happens to those children whose parents spend years in court — and that does happen. In one memorable case, the parents were fighting from the time they separated when the child was three until he reached 11.

Admittedly, the dispute was punctuated by some periods of truce, but they were fleeting. At times, I’ve wondered whether the child would be better off in state care and went so far as to voice that in one matter.

While that was enough to drag the parents back to reality in that case, the thought remains. Let’s raise children who won’t have to recover from their childhood. Or as Frederick Douglass, the American escaped slave and statesman, put it: it is easier to build strong children than to repair broken men.

Taken from To Be Fair: Confessions of a District Court Judge by Rosemary Riddell (Upstart Press, $39.99).

This article “Inside the hell of Family Court” was first published by Newsroom.

Arlene D. Kock

Author Arlene D. Kock

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