Government and Politics Personal

The Family Court System in the United States

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The 2014 documentary entitled Divorce Corp. is an eye-opening exposé on the family court system in the United States.

The documentary makes the case that the family court system is a "battleground" designed to create conflict between litigants and generate money for lawyers. According to the documentary, the family court system in the United States is a $50 billion "industry" that generates more money than all other types of U.S. courts combined.

Family courts in the United States are called "courts of equity", which means the cases are decided by the discretion of a judge rather than by rule of law. There are no juries, litigants have no rights to an attorney (if they can't afford to hire one, none will be appointed and they must defend themselves), and the family law civil rules and codes are complicated. Lawyers in family court are exempt from "excessive litigation" claims and they can be unscrupulous when questioning litigants.

When children are involved, although both parents have a constitutional right to their children, in family court the concept of "Best Interest of the Child" is employed. That concept has no "hard and fast" legal definition which gives judges considerable leeway in deciding custody and child support. Sometimes, in addition to a mental health professional, a Child Custody Evaluator is assigned - a job which, according to the documentary, requires few qualifications and can be very costly to litigants. The family court judge can even assign a lawyer (amicus attorney) to represent children.

Family court judges can retire, then go to work for a law firm, and then go back and judge again, which can create a conflict of interest if, for example, one or both of the lawyers on a case work for the same firm the judge previously worked for (and which the judge may work for again some time in the future).

The "Administrative Office of the Courts" (AOC), which is supposed to supervise and oversee judges and court proceedings to ensure that ethics are followed and fair trials are administered, has been ineffective in family court. The "Judicial Council" is where litigants can file a complaint against a judge, but according to the documentary very few if any complaints result in action taken against a judge.

Regarding alimony and child support, the documentary notes that existing family courts use a provider/dependent model from the 1950's which entitles the dependent litigant (usually the woman) and the children to continue the lifestyle of the non-custodial parent (usually the man). The model does not necessarily take into account the fact that nowadays women are much more prevalent in the workplace and can earn as much or even more than a man.

In family court, alimony and child support is based on the income level of the non-custodial parent, not need. The greater percentage of custody a parent gets the more money that parent receives in child support, so there is a financial incentive to try and get the most custody time possible. Because of the financial incentive, often times false accusations are made by litigants to try and get more custody time (and more money) - accusations that are often hard to prove as true or false. Since there is no jury, it's up to the judge to determine the veracity of accusations. In some cases a judge may deem an accusation false, when in reality a litigant might in fact be a victim of domestic violence and be in real danger.

The overall message of the documentary is that divorce and family court in the U.S. has become a money-making "corporation" for divorce lawyers, judges, and others appointed by judges, that judges have way too much power in determining the outcomes of divorce hearings, that litigants are often required to pay exorbitant fees and are sometimes required to sell assets to pay fees, that the appeal process is highly ineffective, that there is sometimes collusion between lawyers, judges, and family court appointees, and finally, that family court decisions often create fatherless families which have a long-term impact not only on the children but on society as a whole.

The documentary includes candid interviews with seven different people who are divorced, some with children, who have experienced first-hand some of the unscrupulous practices, unfair decisions, and vindictive behavior of family courts and judges. The seven people are Mark Byron, Elena Haskins, Deborah Singer, Ulf Carlsson, Danielle Malmquist, Dan Brewington, and Wendy Archer.

The documentary also contrasts and compares divorce in the United States with divorce in Scandinavia. In Scandinavia, there are no family courts, lawyers are rarely needed, and the parties involved talk to friends, priests, and other people to help resolve their differences. All that's required to get a divorce is to file paperwork then go through a six-month waiting period to make sure both parties still want to file. Husbands and wives are treated as equals, and each party pays their own legal fees. Alimony is capped at $1,000 per month, is paid only for 6-12 months after the divorce is final, and child support is set to a fixed amount and can't be changed. The Scandinavian system gives both parties less reason to litigate because the amounts of money involved are preset and much more modest than the amount of money involved in cases in the United States.

Source:

"Divorce Corp.". Divorce Corp.. Retrieved 2015-12-06.

"Court of equity". Wikipedia. Retrieved 2015-12-06.

The case of Dan Brewington

In Dan's case, an unlicensed psychologist submitted a child custody evaluation report. The psychologist himself stated that the report contained "numerous errors and oversights". When Dan asked to see the case file from the evaluation he was denied access.

Dan created a blog and told his story online. The judge in the case, James D. Humphrey, ordered Dan to remove his blog content or risk losing the right to see his kids. Dan refused to remove the content and the judge rescinded Dan's right to see his kids. When Dan continued to criticize the judge and the Indiana court system, he was arrested, convicted of "felony intimidation" for his criticism of Judge Humphrey, and imprisoned for two-and-a-half years.

Throughout his proceedings Dan maintained that he is an outstanding father. He also argued that the First Amendment grants him the right to speak freely about the judge and his case, but the Indiana Supreme Court upheld the lower court ruling.

In October of 2014, Dan petitioned the U.S. Supreme Court to hear his case, but the petition was denied.

Dan still maintains his blog which you can access here.

More on Dan's case:

The case of Ulf Carlsson

During family court proceedings in 2004, Sacramento, California County Superior Court Judge Peter J. McBrien took it upon himself to do some research on Ulf's real-estate investments. Shortly thereafter, McBrien abruptly declared the trial was over, before Ulf had been allowed to present his case, and rendered a decision highly favorable to his ex-wife.

Then, instead of being allowed to pay the Fair Political Practices Commission (apparently, for a fine based on a very confusing regulation relating to his real estate investments), Ulf was fired from his six-figure state of California job, making it very difficult to pay his court-ordered child support. Ulf filed an appeal, which in the vast majority of family court cases falls on deaf ears, but in 2006 the 3rd District Court of Appeals reversed McBrien's decision.

More on Ulf's case:

The case of Mark Byron

Disgruntled by his divorce proceedings, in November of 2011 Mark vented against his wife and the way his case was being handled on his personal Facebook page. The Domestic Relations Magistrate in the case, Paul Meyers, found Mark Byron in contempt of court and was ordered to post an apology to his wife on his Facebook page or go to jail for 60 days. Mark was also ordered to pay $1,156 in back child support and his wife's lawyers' fees. To avoid jail, Mark chose to post the apology

This case brings up the question of the First Amendment right of free speech, not only of venting your thoughts and feelings online, but also of being ordered to say or write something as an apology for something else you said or wrote.

More on Mark's case:

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