Thursday, November 30, 2017
SEARCHING FOR THE
OR, FOR JUSTICE IN FAMILY COURT?
DO THEY EXIST AT ALL?
Jonathan D. Gordon, Ph.D., J.D.
© Jonathan D. Gordon, Esq. 2017
Is there such a thing as a “blissful divorce”? It may sound like an oxymoron, but in some rare instances it has been known to happen. For example, I know of a couple who went out for ice cream together when they left court, having just gotten divorced. Just as rare is the concept of justice in Family Court since the issues are not so well-defined, nor is it always clear who did what to whom. The concept of justice is usually more applicable in Criminal Court or perhaps in the Law Division where people sue others for negligence or breach of contract, for example. A thief who goes to jail received justice. A victim of a tortfeasor (someone who caused an injury or loss to another for which money damages can be recovered) can receive justice in court with a money award to assuage their pain and suffering or to restore the previous status quo that existed prior to the loss. But in family court? What is justice and is it applicable?
Often, a client in a divorce or child custody battle (to name a couple examples), thinks that if only the Judge could hear their story, it would be “all over” for their adversary (e.g. spouse or other parent of their child), that the Judge would be mortified, angry and punish the other party. That is rare, however. The issues in Family Court are typically littered with “he-said, she said” allegations, mud-slinging, character assassination, demonization and just plain lies. Simply going before a Judge with a litany of allegations does nothing definitive for that client’s case. There will be counter-allegations and predictable reciprocity in the mud-slinging department. The Judge often has no idea where the truth lies, at least in the beginning since there is so much being alleged by the respective lawyers. Typically, these allegations are verbalized in Court by an attorney. The client has little opportunity to speak directly to the Court, except with permission if an attorney is representing them. And it is usually a bad idea for the client to speak without preparation, without the attorney’s blessing, on an impromptu basis. Things are blurted out, and it often makes things worse. A client should make sure their attorney is on the same page as them, has a passion for the arguments the client wants to be made, and is able to adequately verbalize those arguments.
Allegations of child abuse or neglect need thorough investigation by the child protective service (CPS) of that State. In New Jersey it is called DCP&P (formerly DYFS). False allegations of abuse or neglect against the other parent is an evil thing to do to that parent and to the child. That can be considered emotional abuse or attempted parental alienation. Real allegations and serious concerns of abuse or neglect, however, should be immediately reported and investigated. The state agency will do its work and report to the Court. The Judge will make further determinations when the information is provided to the Court in due course. That information may include written reports generated from mandatory mental health evaluations and substance abuse assessments. It is a slow process but necessary. Who gets justice here? In this scenario, we are talking about protection, health, parenting. Not justice. The best interests of the child are paramount.
An angry party, for whatever reason (e.g. infidelity, rejection, financial losses, etc.) can rarely think objectively. The other person is vilified and there is nothing that other person can do right in the eyes of the angry person. That other party is portrayed as having no redeeming qualities, whether as a person or as a parent. The other person is portrayed as being horrible, a sub-human, or piece of garbage in the eyes of the angry one. Being angry is rarely constructive if it is excessive or chronic. It is actually self-defeating. A chronically or extremely angry person litigating in Family Court often makes things worse. It causes the Judge to take notice of the demeanor of the angry one, and to eventually realize that the allegations are very often false, simply malicious lies being told to the Court. That makes a Judge angry. Judges don’t like being lied to, especially when it effects children and their relationship with either parent.
Honestly, the Judge does not care much about the personal hurts that the parties carry around with them. The Court cannot afford to be distracted by the back-and-forth allegations by the parties, especially when the best interests of children are at stake. The Judge is interested in facts with proof, and then the court applies the facts—once they are ascertained—to the Law. Family Court Judges also have discretion to do what they think is in the best interests of the children, even temporarily, while the facts are being gathered. Looking for justice in Family Court, is a rigid, perhaps moralistic expectation that a person may harbor, expecting “justice” to essentially be punishment of their ex or of the other parent. In essence, getting justice is akin to getting even, if conceptualized this way by the angry party. The Judge does not share your anger or sense of outrage.
Sadly, as we all know, life is not fair. Sometimes people get away with bad behavior. More often than not, the court will prefer to focus on the present than on the past. Your spouse may have been terrible as a spouse, and hurt you and your life in many painful ways. But that is usually why you are getting divorced. Your spouse may have been inattentive, insensitive, selfish, narcissistic, hurtful, insulting, terrible in bed, and had numerous affairs. The Court will not take any of that into consideration unless there was domestic violence, child abuse, or purposeful dissipation of marital assets (for example). The divorce process is a business deal, dividing up marital assets, determining custody, parenting time schedules, alimony and child support. Expecting the court to come down hard on the opposing party because of what you suffered, is unrealistic and expensive. But the court will come down hard on the other party or on you if your child suffers.
It is most important to have a realistic view as to what you are going to court for, what you hope to accomplish, and if they are reasonable goals to have. Attorneys should discuss these issues with you and go through all of the possible scenarios, options, strategies and probabilities of success, costs, etc. Communication with your attorney is crucial, and it is important for the client to keep an open mind in the event that some goals (to give the ex a good beating in court, take them to the cleaners, get sole custody, etc.) are unattainable, unrealistic or self-defeating. The court will always ask itself, “Is it good for the kids?” before making a decision. What you may fantasize about (a “home run” in court) achieving may not be in your children’s best interests and you may not realize it because of the pain and anger you may be experiencing (which clouds judgment). Sometimes a client gets counseling to help get support for what they are going through emotionally. It can help in making better decisions, establishing realistic goals, reducing self-defeating anger, guilt, worry, depression, etc., and making the Family Court experience less acrimonious and perhaps, maybe even “blissful”. Getting through the Family Court cooperatively and civilly with your ex, with lower attorney bills and more money in your pocket, can truly be blissful. But you won’t know unless you try. And yes, it takes two. Sometimes you have no choice but to fight it out in court. But you can at least be the one who goes through the process showing good faith, communicating civilly and respectfully, being cooperative and fair to the other party. You can’t control the other person, but you potentially have control over your part of the process.
Good luck, and please post a comment about your experiences.
Please note: Jonathan D. Gordon, Ph.D., J.D., is a Family Law Attorney in NJ and in NY, representing Family Law clients in Superior Court of NJ. He is also a Licensed Psychologist (NJ #1358, NY #5614, OH #7540) who has, in addition to providing general psychological services, performed forensic child custody evaluations and who has been appointed Guardian ad litem and Parent Coordinator by the NJ Superior Court, Family Division. No special skills or, expertise in either profession is implied by any reference to my being licensed as a Psychologist as well as being a licensed attorney. The two professions are distinct and separate, with differing training and education, and they each have their respective licensing, rules of ethics and codes of professional responsibility. Contracting with Jonathan Gordon in one profession precludes engaging his services in the other profession due to conflict of interest. This web site and blog are solely for general informational purposes and should not be construed otherwise. A professional relationship is not established until a retainer agreement is signed or if a consent for treatment agreement is signed for psychological services.
Please note, since this blog is for information purposes only. It is neither legal nor psychological advice and it does not create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter or issue, you should seek out an attorney or mental health expert to assist you. In an emergency, please call 9-1-1 or visit your closest emergency room.
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