The American legal system is an adversarial system. By its nature it pits two sides against each other in a competition to determine the truth. The judge or magistrate is a passive figure. They don’t decide who the witnesses will be, nor do they ask many of the questions. These roles are delegated to the parties, and the one to best advocate for their view wins. The two sides compete in story-telling, and whoever best sways the judge to believe their side of the story, achieves the outcome they want.
Our adversarial system, as applied in family courts, has the effect of harming families. Family courts pit parents against each other in a fight to achieve short-term goals. However, this process harms the long-term health of the family system.
The adversarial process, by its very name, pits people against each other. The parties are adversaries. Cases are captioned Plaintiff versus Defendant. Spouse versus Spouse. Parent versus Parent. From the beginning the parties are put in a position of having to view the other as their enemy.
The process of family court litigation is a dehumanizing process. The end goal is to be the parent with the power, with the control. In order to win control, the parent must prove that they are somehow superior to the other (or that their theory of parenting is somehow superior). Each parent, each litigant, each adversary, must put on a case where they highlight the negative traits and behaviors of the other parent, and discount their own faults. The more each side develops their theory of the case, the more rigid their thinking about the other becomes. The family court process promotes black-and-white thinking. The parties are not just Parent versus Parent anymore, they are Good versus Evil. Family court litigation promotes scapegoating wherein each side views the other as the source of the problem.
Achieving the short-term goal of winning the present litigation rewards parents for seeing each other as enemies. Once parents see each other as enemies, it is difficult to change that perception. What happens instead is that the conflict between the parents continues on, and often intensifies.
In order to prevent this type of long-lasting damage to families, our family court system should be focused on helping parents find effective ways to work together.
If you would like to avoid the adversarial nature of family court litigation, consider utilizing the collaborative law process or mediation prior to filing in court.
For more on Dehumanization and Enemy Images:
Maiese, Michelle. “Dehumanization.” Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: July 2003 <https://www.beyondintractability.org/essay/dehumanization>.
Burgess, Heidi. “Enemy Images.” Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: October 2003 <http://www.beyondintractability.org/essay/enemy-image>.