Divorce Cases, Lacking A Right Or Wrong,
Toughest For Judges
Guest Author, Anne Kass, - a retired District Judge of Albuquerque, New Mexico
I was talking with a judge from South Carolina a few weeks go about an interstate custody problem. When I told him that I hear only family law cases, he said: "How in the world do you stand it? I find after hearing a few divorce cases, I need to hear a friendly first degree murder case or two to regain my sanity." A number of judges have told me they'd sooner preside over grisly criminal cases than divorce or custody suits.
I think the reason so many judges don't like to decide divorce cases (and the reason so many lawyers won't even accept divorce cases) is the fact that in so many divorce and custody cases, both sides are absolutely right.
Lawyers and judges are trained to concentrate on the past and to think in terms of right and wrong. An automobile collision occurred--whose fault was it? A contract has not been honored --who's to blame? A crime has been committed--who should be punished?
Non-lawyers, too, tend to assume that if there is a disagreement, one side must be right, the other wrong. And, in our litigious society, all manner of disagreements are taken to lawyers, who enhance the supposition that there is a right and a wrong.
What gives judges and lawyers such a hard time is the fact their right/wrong training and analyses are rarely applicable to or useful in divorce and custody suits.
How can it be wrong for each parent to want custody of their children? It seems absolutely right for both mother and father to want to spend as much time with the children as possible.
In almost all cases I see, if one parent says "I need more money," they are absolutely right--they do. And the parent who says, "I can't afford to pay more money," is undeniably right--they can't.
When one parent wants to move from New Mexico and take the children along, they usually have good, sensible reasons. They want to move back to where their families are; they want to move to accept a better-paying job. They're right. And the parent who is left behind says: "I want to see the children often, and I can't if they live in another state. I need to spend time with the children and they need to spend time with me." And they're right.
Many divorcing people leave the court system feeling that the system is unfair or that the Judge was biased or stupid or just didn't listen. Their feelings stem from the fact that what they asked for was fair or needed or logical--it was right. They reason that if what one requests is "right", how can a fair court system fail to say "you win". They fail to recognize that the problems stem from the fact that the other side was right too.
I believe it is essential for our legal system to educate the judges, the lawyers and the public that a disagreement does not necessarily mean one side is right, the other wrong. Right/Wrong law suits are easy to resolve. It's the right/right disputes that are hard--hard for lawyers to present, and hard for judges to decide, and harder yet for the parties to accept.
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