Tug of War: A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court
200
Tug of War: A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court
200eBook
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Overview
Tug of War is the first book of its kind. Written by a sitting family court judge in layman’s language, it demystifies complex family law concepts and procedures, clearly explains how family court works, and gives parents essential alternatives to resolve their own custody battles and keep their kids out of the often damaging court system.
Breakup rates in North America are skyrocketing. Recent statistics say 45% of marriages end in divorce, and at the centre are countless children, thrust by their families into a complex and seemingly impermeable family court system. Tug of War explains the role of lawyers and judges in the family justice system, and examines the parents’ own responsibilities to ensure that post-separation conflicts are resolved with minimal damage to the children stuck in the middle of parental disputes.
Justice Harvey Brownstone explores themes that apply to all families and parents in conflict. He draws on fourteen years sitting on the family court bench to provide clear case examples with inclusive and accessible language. Tug of War describes alternatives to litigation and exposes the myth that parents can represent themselves without a lawyer in family court. Justice Brownstone discloses the inner struggles of parents, judges and lawyers in the maelstrom of marital conflict.
This book is a must-read for couples involved in or contemplating separation, family law judges, lawyers, mediators, parenting coaches, psychologists, family counselors, social workers, students and professors of family law at law schools. It is endorsed by judges currently sitting in Ontario and New York State.
Product Details
| ISBN-13: | 9781554903467 |
|---|---|
| Publisher: | ECW Press |
| Publication date: | 03/01/2009 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 200 |
| File size: | 2 MB |
About the Author
Mr. Justice Harvey Brownstone currently presides at the North Toronto Family Court. He was appointed a provincial judge in 1995, after serving as Director of the Support and Custody Enforcement Program of the Ministry of the Attorney General (now the Family Responsibility Office). He received his LL.B. from Queen’s University in 1980, and after working as a full-time Legal Aid duty counsel in the criminal courts, he joined the Legal Aid research facility, focusing primarily on Family Law.
Read an Excerpt
Tug of War
A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court
By Harvey Brownstone
ECW PRESS
Copyright © 2009 Harvey BrownstoneAll rights reserved.
ISBN: 978-1-55490-346-7
CHAPTER 1
DO YOU KNOW WHAT 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 make crucial 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 community resources, 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. Moreover, divorce statistics do not take into account couples who lived in common-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 family court 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 is almost 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. Imagine how difficult it is for a judge to make the best possible decision regarding a child's living arrangements when faced with parents who seem unable or unwilling to focus on their children. Sometimes I have had to involve a child protection agency and place the children in foster care to insulate them from the parental conflict (see Chapter 11). On more than one occasion I have been told by a parent that he/she would rather have his/her children living in foster care than with the other parent. On one even more appalling occasion, I was told by a parent that it would be better for the children to be dead than to live with the other parent! This is the tragic reality of family court.
Everyone who works in family law, including judges, agrees on two things: family court is not good for families, and litigation is not good for children. The emotional carnage resulting from family litigation, and its impact on the unfortunate children of warring parents, cannot be overstated. And yet, family courts everywhere are jammed with couples asking judges to decide who gets custody of their children, how often the children will see the noncustodial parent, how the matrimonial property is to be divided, and how much spousal and/or child support must be paid. More surprisingly, an alarmingly high number of people appear in court without a lawyer and try to navigate the court process on their own, without any idea of their rights and obligations, the procedural requirements, the rules of evidence, or the types of orders a court can and cannot make. As you might expect, the results for these people are often extremely frustrating at best and disastrous at worst.
Ask anyone who has ever appeared in family court as a litigant — even if they had a lawyer — and they are almost certain to describe their experience as unsatisfactory. Why? What can be done to help people so that their family court experience is more predictable, more positive and constructive, less time-consuming, and consequently more beneficial to themselves and their children? An even more important question is, What can be done to help people avoid going to court in the first place? That is what I am going to explain in this book.
What is the difference between the couples who settle their disputes privately and those couples who require a judge to make the decisions? Do the parents in the first group dislike each other any less than those in the second group? Does the first group have access to resources unavailable to the second group? Do the two groups come from separate and distinct socio-economic or cultural groups? Not in my experience. In my opinion, the major difference between couples who resolve their disputes privately and those who turn to a judge has to do with one overriding characteristic: maturity. We who work in family court know that a person's maturity level has nothing to do with economic circumstances, education, culture, race, religion, or sexual orientation. We see rich people and poor people in our courtrooms, and we see people from all walks of life and from every racial, cultural, ethnic, and religious background, and from every lifestyle and orientation imaginable. Trust me: judges see it all. What we don't see very often in our clientele is maturity.
In the context of a relationship breakdown, being mature means loving your children more than you dislike your ex-partner. Being mature means caring enough about your children that you will force yourself to deal in a civilized way with someone you may hate. Being mature means thinking twice and measuring your words carefully before you shoot your mouth off when you're upset with your ex-partner, especially in front of the children. It means always insulating your children from parental conflict so they know your breakup has nothing to do with them. It means doing what is necessary to make the transition in your children's lives as easy for them as possible. Being mature means putting your children's needs ahead of your own. It means truly understanding and accepting that your children are entitled to love and be loved by both of their parents. It means giving your children emotional permission to express and receive that love, even though you and the other parent dislike each other. Being mature means being willing and able to reach compromises so that your children can have peace rather than be caught in a tug of war and conflict of loyalties. Being mature means recognizing that you can be an ex-partner but you are never going to be an ex-parent. True maturity requires parents to appreciate that children need both parents in their lives, working co-operatively to make the best possible decisions for their upbringing.
In my experience, mature people fully understand that even though they no longer love each other, they are the most qualified people to make important decisions for their children. After all, parents know their children best. Children deserve to have parents working together as a team in all matters affecting their welfare. Mature people do not give up their parental decision-making responsibilities to a total stranger, even if that stranger wears a robe and is called "Your Honour."
The purpose of this book is to help separated and divorced parents, as well as parents who never lived together, conduct themselves with the maturity their children need and deserve, so they can resolve parenting conflicts in a civilized and proactive way, hopefully without court involvement. I believe that maturity of perspective and behaviour can be taught and that sufficiently motivated people can learn to adapt to their circumstances and alter their way of approaching difficult situations. I have found that most parents love their children enough to become motivated to adopt a mature course of conduct in dealing with ex-partners. The motivation comes once they understand the impact of their immature behaviour on their children's well-being. I know this is true because every day my colleagues and I help couples to shift their perspectives and take a child-focused approach to the resolution of family disputes. In the vast majority of cases, we see positive results, and parents emerge from the process with a mutually agreeable parenting plan, although it is fair to say that most ex-partners emerge from the court process emotionally bruised and not very happy with each other, and often not very happy with the judge!
It has always bothered me that family court judges don't get the opportunity to offer this help until far too much damage has already been done. We don't see parents until they and their lawyers are seated in our courtrooms geared up for the battle of their lives. The task of the family court judge is difficult at that stage, because instead of looking forward, parents mostly want to look back. We should be trying to construct a co-operative, co-parenting regime that is in the children's best interests. Instead, we spend a great deal of time trying to de-escalate the hostilities and refocus the parties away from their litany of complaints against each other. Separated couples seem to relish the prospect of rehashing every bad thing that each party did to the other throughout the entire course of the relationship. Many people apparently need to hear the judge validate their perceived victimization. While this may have a therapeutic effect for the parents (and that is questionable, as judges are not trained therapists), it mostly serves to reopen old wounds and create new ones. Most importantly, it does not help the judge decide what is best for the children.
What if parents headed for family court could hear from the judge before they got there? What if they knew what to expect (and equally importantly, what not to expect) from the court process, and also what the court expects from them? What if they knew the alternatives to court litigation so they could choose the dispute resolution process that best suits their needs and circumstances? I believe that informed parents make better decisions than uninformed parents. This book is intended to provide separated parents with much-needed information and insights, so they can make the most informed and best decisions before they decide to "tell it to the judge" — or better yet, so they won't ever have to surrender their joint decision-making powers to a judge. If you apply the principles set out in this book, it is my hope you will never need to go to family court. Even if you do find yourself facing the prospect of a family court case, the suggestions in this book will help you, your ex-partner, and your respective lawyers to maximize your chances for a child-focused and mutually beneficial resolution to your parental dispute.
I am often asked how the maturity rule would apply in extremely difficult situations. How would it work for couples who have experienced domestic violence or when a parent has a mental health problem or a substance abuse problem? What if a parent's conduct has exposed a child to a risk of harm, neglect, or abuse? What if one parent is refusing to provide the other with full details of his/her finances so that property and support issues can't be settled? The answer, quite simply, is that conducting yourself in a mature fashion when dealing with the other parent does not necessarily mean that the other parent gets everything he/she wants. Where you can prove with credible evidence that one of the above circumstances exists, you may need to go to court. The court can make a restraining order(sometimes called a protection order), or an order for a psychiatric assessment, drug testing, or to obtain financial disclosure, or to have certain restrictions and limitations imposed on a parent's contact with a child. The court can certainly be a necessary and useful resource in difficult cases, but going to court does not relieve a parent of the obligation to act maturely.
You must keep in mind that all court cases — even the extremely difficult ones — eventually come to an end. It is important to understand and accept that in all but the most severe cases of abuse, most parents will still have to deal with each other regarding custody and access of their children. The parent-child relationship will continue, even if in a limited way. Even if your ex-partner is hospitalized, in a drug rehabilitation facility, in jail, or on probation with a no-contact condition (see Chapter 10), he/she will almost certainly be looking to re-establish contact with the child when these circumstances change. Whether you like it or not, this will necessitate at least some form of contact with you. So I believe that the maturity rule still applies in these cases — perhaps even more so, given the special challenges that come with having an ex-partner with special needs.
You and your ex-partner are the only biological or adoptive parents your children will ever have, and you are their role models. It is important to their well-being that you develop and maintain the best possible relationship with your ex-partner. You must do all you can to bring out the best you and your ex-partner have to offer your children, not the worst. You, your ex-partner, and your children can only benefit from your taking a calm, reasonable, and child-focused approach to your parenting issues, even if the other parent is not behaving that way. The court will always be more favourably impressed with maturity than with immaturity, regardless of how the other parent is conducting himself or herself.
Judges have traditionally refrained from making themselves available to the public other than in the courtroom. It is generally felt that judges should remain outside the fray of public debate on social and political issues, so as to maintain their impartiality. Many judges believe they should express themselves only through their court decisions and written judgments and not by way of letters to the editor, media interviews, public-speaking engagements, and books, at least not until they have retired from the judiciary. I definitely agree that judges must be cautious to avoid controversial or political issues and should never comment on specific ongoing cases or offer legal advice.
With those parameters in mind, however, I strongly believe that judges have a public role to play outside the courtroom. I believe we have a social obligation to be educators as well as adjudicators. We have a unique role in society that offers us a golden opportunity to enlighten the public on many aspects of the justice system and, where appropriate, to advocate for improvements to the accessibility of justice for all. I believe that this social obligation is particularly applicable to family court judges, given the widespread family breakdown in society and its devastating impact on parents and children, and given the equally widespread dissatisfaction experienced by family court litigants. Family court work is the most important work that judges do, because it deals with the best interests of children, who are society's most precious resource. And so, after more than fourteen years of presiding in family court and thinking about how best to help separated parents and their children before they embark on a potentially destructive "voyage of no return" through the court system, I decided to write this book. If you and your children benefit, even in a small way, from the heartfelt suggestions I have made, I will have accomplished something worthwhile.
(Continues...)
Excerpted from Tug of War by Harvey Brownstone. Copyright © 2009 Harvey Brownstone. Excerpted by permission of ECW PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Table of Contents
Contents
Acknowledgements,Foreword by Chief Judge Tedford G. Andrews,
Foreword by Justice James D. Karswick,
Foreword by Judge Paula J. Hepner,
CHAPTER ONE Do you know what you're getting into?,
CHAPTER TWO Why family court should be the last resort,
CHAPTER SIX Custody and access disputes: "the best interests of the child",
CHAPTER SEVEN Joint custody: if parents are equal, why do so few have it?,
CHAPTER EIGHT Paternity and child support,
CHAPTER NINE The "connection" between access and child support,
CHAPTER TEN Parallel cases in criminal and family court,
CHAPTER ELEVEN When private disputes become a public concern: calling in the child protection authorities,
CHAPTER TWELVE So now what? After your dispute is resolved,
Suggested reading,
Index,
What People are Saying About This
"Provides a rare glimpse of what a sitting judge thinks about the good, the bad and the ugly realities of the family law court system . . . [and] provide[s] better guidance to clients, especially the final chapter that is full of heartfelt and wise advice." —The Lawyers Weekly
"Every lawyer should provide clients with a copy of Tug of War and encourage them to read it before proceeding with their case." —Anu Osborne, The Canadian Bar Association
Reading Group Guide
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 make crucial 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 community resources, 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.1 Moreover, divorce statistics do not take into account couples who lived in common-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 family court 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 is almost 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. Imagine how difficult it is for a judge to make the best possible decision regarding a child’s living arrangements when faced with parents who seem unable or unwilling to focus on their children. Sometimes I have had to involve a child protection agency and place the children in foster care to insulate them from the parental conflict (see Chapter 11). On more than one occasion I have been told by a parent that he/she would rather have his/her children living in foster care than with the other parent. On one even more appalling occasion, I was told by a parent that it would be better for the children to be dead than to live with the other parent! This is the tragic reality of family court. Everyone who works in family law, including judges, agrees on two things: family court is not good for families, and litigation is not good for children. The emotional carnage resulting from family litigation, and its impact on the unfortunate children of warring parents, cannot be overstated. And yet, family courts everywhere are jammed with couples asking judges to decide who gets custody of their children, how often the children will see the noncustodial parent, how the matrimonial property is to be divided, and how much spousal and/or child support must be paid. More surprisingly, an alarmingly high number of people appear in court without a lawyer and try to navigate the court process on their own, without any idea of their rights and obligations, the procedural requirements, the rules of evidence, or the types of orders a court can and cannot make. As you might expect, the results for these people are often extremely frustrating at best and disastrous at worst. Ask anyone who has ever appeared in family court as a litigant — even if they had a lawyer — and they are almost certain to describe their experience as unsatisfactory. Why? What can be done to help people so that their family court experience is more predictable, more positive and constructive, less time-consuming, and consequently more beneficial to themselves and their children? An even more important question is, What can be done to help people avoid going to court in the first place? That is what I am going to explain in this book. What is the difference between the couples who settle their disputes privately and those couples who require a judge to make the decisions? Do the parents in the first group dislike each other any less than those in the second group? Does the first group have access to resources unavailable to the second group? Do the two groups come from separate and distinct socio-economic or cultural groups? Not in my experience. In my opinion, the major difference between couples who resolve their disputes privately and those who turn to a judge has to do with one overriding characteristic: maturity. We who work in family court know that a person’s maturity level has nothing to do with economic circumstances, education, culture, race, religion, or sexual orientation. We see rich people and poor people in our courtrooms, and we see people from all walks of life and from every racial, cultural, ethnic, and religious background, and from every lifestyle and orientation imaginable. Trust me: judges see it all. What we don’t see very often in our clientele is maturity.