Tug of War (eBook)

CHAPTER ONEDO YOU KNOWWHAT YOU'RE GETTING INTO? AFTER MORE THAN FOURTEEN YEARS OF PRESIDING IN FAMILY COURT, ONE QUESTION HAS NEVER CEASED TO AMAZE ME: how can two parents who love their child allow a total stranger to makecrucial decisions about their child's living arrangements, health, education, extracurricular activities, vacation time, and degree of contact with each parent? This question becomes even more mind-boggling when one considers that the stranger making the decisions is a judge, whose formal training is in the law, not in family relations, child development, social work, or psychology. Now add the fact that, because of heavy caseloads and crowded dockets, most judges have to make numerous child custody, access, matrimonial property, and support decisions every day on the basis of incomplete, subjective, and highly emotional written evidence (called affidavits), with virtually no time to get to know the parents and no opportunity to meet the child whose life is being so profoundly affected. What person in their right mind would advocate for this method of resolving parental conflicts flowing from family breakdown? These are some of the questions that family court judges agonize over. Some say the answers are complicated and have much to do with social conditioning, economic class, levels of education, sophistication, familiarity with communityresources, and even culture. I say the answers are simple. The institution of marriage has not been a great success in North America. The United States has the highest divorce rate in the western world, followed by the United Kingdom and Canada.1Moreover, divorce statistics do not take into account couples who lived incommon-law (unmarried) relationships and broke up. There is no reliable way to track the breakup rate for those couples, but you can be sure that it is at least as high as the divorce rate. There are also many thousands of couples who never lived together, but had a casual relationship resulting in the birth of a child. Family courts are heavily populated with such couples, but we have no way of knowing their numbers in society at large. We do know that the vast majority of couples who break up manage to settle their affairs, including the custody and access arrangements for their children, without ever setting foot in a courtroom. The most common way to achieve this is by separation agreement or some other form of domestic contract (see Chapter 12). However, for the many couples unable to reach agreements, the familycourt becomes the place of first and last resort. What we judges see in family court is beyond belief and certainly more dramatic and gut-wrenching than any television show or movie. If you don't believe me, visit any family courtroom in any town and chances are you'll see real-life examples of what I will describe in this book. As any family law lawyer, judge, or litigant will tell you, family court litigation is expensive, time-consuming, unpredictable, and highly stressful. The level of hostility and anger between parents involved in high-conflict custody disputes is often so toxic that it isalmost palpable. I have dealt with thousands of couples whose bitterness toward each other coloured every aspect of the proceedings and completely diverted the focus away from the children and their needs. Frequently, I get the impression that such parents are in a struggle over power and control or are on a quest for vengeance and self-validation that has nothing to do with their children.