People like to talk about their “Family Tree,” meaning, a distant man and women (pluralize as needed) and their many saplings, sprouts, roots, and buds off a distant “Ma & Pa.”  That “Ma” just might have conceived by rape, or consent when Wife wasn’t looking.  It gets real interesting.

We are at a time in history when the U.S. family law system is evicting certain kinds of biological mothers {like, the feisty ones!] from their children’s lives, altering the subsequent generations, and doing this in the name of “family.”

I am more interested in the FAMILY LAW GENEALOGY & TREE.  Clearly, I noticed after a few visits, this is indeed a different species of “law” & procedures than I’d ever heard of before.  For example, we got to a mediator, whose main job (I later find out) is — by federal facilitating grant system — to cooperate with the Head of the Department of Health & Human Services, i.e., its Secretary — in doing research and demonstration reports on (us fools), as well as to shift more and more parenting time to the current NONcustodial parent — until that parent becomes a female NOncustodial parent, at which point, the job is done.

In our area, it’s typical for couples to go to mediation (separately, if domestic violence has occurred) and then not get the mediator’s report til IN the courtroom, the morning of the hearing (if even by then), at which time one gets to experience serious shock and disbelief in a courtroom, with witnesses, shortly before one’s 20 minutes of glory trying to frame some sort of response to the ridiculous assertions.  What this has to do with “mediation,” beats me!

And many more oddities keep showing up, like the concept while “a rose is a rose is a rose,” a crime is not a crime, is not a crime, depending on what court it landed up in.  To add to the fun, mothers are not told this.  They get to figure it out by trial (if they’re lucky enough to get one) and error, mostly the latter.

CENTERS FOR CHILDREN & FAMILIES IN THE COURTS*

* notice, no individual exists in this phrase.  Nor do many individual rights, in these halls….

So as families become more and more fragmented, someone in the courts grafted in a new concept, so we can all worship “family” the RIGHT way, and hence there are things called the Centers for Children & Families in the Courts.  What a great idea — since these families ARE going to be in some kind of court action til the kids hit 18, the word “IN” the courts really applies.

Hence, it’s necessary to train up new generations of law students that their role is less law than THERAPEUTIC JURISPRUDENCE, a.k.a. SOCIAL SCIENCE, a.k.a., HUMAN ECOLOGY and so forth.  This great field of study is funded by the public (probably without their full knowledge) and promoted at university levels, in private conferences of various associations that hang round the courts like flies around outdated warm meat, and like body scanners around airports.  Somebody has to provide the “services,” right?

A BRIEF introduction shows that at least Baltimore and California are real big on this one:

UNIVERSITY OF BALTIMORE, SCHOOL of LAW (?):

OK — the courts must be CHANGED.  They are not to be “courts” but centers of learning where people come in not to get their legal needs adjudicated (fairly!), and back on to live but where they hit the radar of Therapists and Human Development Ecologists.  Perhaps this explains why so many of us become battle weary, get parts of our lives amputated, and walk around shell-shocked and riddled with perplexing situations and conditions that just won’t leave.  Why?  We — AND our kids — are being used for target practice for these theorists!

it gets even better — Click on the THERAPEUTIC JURISPRUDENCE, and learn:

Therapeutic Jurisprudence and the Ecology of Human Development**

Therapeutic Jurisprudence

A central tenet of CFCC’s work is therapeutic jurisprudence (TJ), which aims explicitly to improve the lives of families and children in court.  A critical role of judges and lawyers is to help resolve the family’s legal problems and to strengthen the emotional and psychological well-being of families and children.

This must be why judges are not only so highly overpaid, and require slush funds to help them maintain the lifestyle, and endless EXTRA trainings to refine their skills — because whereas many judges may have obtained the position for, say, power, influence, fame, the paycheck, or political connections (not exactly the most altruistic of motives, i.e.) — here they have to learn to be sensitive, compassionate, and care about the EMOTIONAL WELL-BEING of families – – kind of the other side of the coin, as to temperaments.

It has not helped my emotional well-being to approach for law, and receive instead an attempt to “therapize” me, a Mom, into believing that what happened, didn’t — or, if it did — we should all just “forget it’ for the sake of the family….

Ecology of Human Development

This holistic, social science approach explores the many different systems affecting the lives of families and children.  These include families, children, schools, faith-based institutions, the workplace and community activities.

That word “holistic” is a real buzzer I’ve noticed buzzing around many of the justifications for programs like Batterers INtervention, Supervised Visitation, and such.  Someone is taking a “holistic” approach to telling someone else that the term “straighten up and fly right” doesn’t apply to him, or her.

THERAPY implies something needs treatment (an obvious perspective if you’re a therapist…), and Ecology of Human Development implies that you are the slab of humanity being sliced and diced for inspection, labeling, and commentary, at which point in time, that therapy might come in handy because the slicing & dicing part tends to slow down “Human Development,” particularly, in the jobs department!  I mean, it takes time away from work to come in and be examinued, routinely, regularly.

Now let’s look at the UNIFIED FAMILY COURT theory (same source — U. Baltimore School of Law):

CFCC and Unified Family Courts

CFCC works to create, implement, improve and evaluate Unified Family Courts (UFCs). This court model addresses the legal issues in family law cases, such as divorce, custody, child support and domestic violence, and the non-legal issues, such as substance abuse, mental health problems and poverty. CFCC aims to solve real-world problems with lasting solutions through using appropriate legal theory and doctrine.

Instrumental in UFC development in Maryland and throughout the nation, CFCC provides educational programs, technical assistance,evaluations and training to jurisdictions, judges, attorneys, court personnel and community leaders.

OK, the main part there is to note that when Family Law picks up topic of “domestic violence” it has a whole different atmosphere than say, an arrest record on its own, which is in the Criminal arena.  A criminal — even the worst creep — gets a public defender.  A mother being targeted for repeated ridicule and hearsy from her ex (and/or the attorney) does NOT get any public defender — because it’s not “real crimes” in this family arena but only — I guess, “social science” or “human development” crimes, like, say, protesting some injustice.

The CFCCs are a great resource if you have a particular theory (PAS, anyone?) to promote, for example, if your name is Warshak:

June 24, 2010

Dr. Warshak was invited to participate in the Families Matter Symposium, co-sponsored by the American Bar Association Family Law Section and the University of Baltimore School of Law Center for Families, Children and the Courts. A select group of leaders in the field were invited to develop recommendations for family law process reform to make the system less destructive to families. The two-day symposium will be held at the University of Baltimore.

Which brings me to the NEXT heading ….

CFCC, AFCC, ACFC, etc.

June 3, 2010

Dr. Warshak will participate in a plenary panel at the annual conference of the Association of Family and Conciliation Courts (AFCC), Denver, Colorado. The topic of the panel is: “Helping Families with Children Who Reject Parents: Consensus, Controversies and Future Directions.”

Also at AFCC, Dr. Warshak and his colleagues will present a 1.5 hour workshop on “Family Bridges: Principles, Procedures, and Ethical Considerations In Reconnecting Severely Alienated Children With Their Parents.”

AFCC is an interdisciplinary, international association of professionals dedicated to improving the lives of children and families through the resolution of family conflict.** Watch this site for information about registering for this conference.

**coincidentally, this includes when one parent is stalking another, has assaulted another, has molested mutual children, has kidnapped mutual children, and in general may have done something to provoke the other one to say, “i have IRRECONCILIABLE DIFFERENCES” — which in many states IS a grounds and a legal one, for divorce.

In a typically bright manner, then, here come these Centers, and declare that well, we must just “Reconcile” for ever that once a family, always a family — or there’s the deprogramming “Reunification Therapy” that can be applied to someone to reconsider that attitude.  These two approaches ARE “irreconciliable” which is why it’s GREAT business for therapists…

For who is AFCC — see my “READ THIS FIRST” page to right.  Or, figure it out yourself — don’t just read one point of view; they have a corporate and organizational history also.

CFCCs (throughout the land — in the courts AND in the law schools) appears to have been the brainchild of several members of AFCC to keep business coming.  ACFC (funny coincidence, the similarity of acronyms, don’t you think?) represents the Fathers point of view….

At any rate, the concept that the courts should be doing Mom n Pop style psychology and therapy — instead of law — appears to be here to stay, even though, like transfats — it doesn’t always go down too well.  Kind of like some religious nuts that won’t give up on the idea that — for your OWN good — you should also forget that Congress is NOT to make any law establishing a religion — and genuine conversation just won’t happen til you give in and convert (or pretend to have) …

Here’s a good (and older) protest of this whole theme.  Of course, it’s been ignored, but it’s still true:

AGAINST THERAPEUTIC JURISPRUDENCE.

My particular reason that any theory consisting of two four-syllable words ought to be tossed out as ridiculous.

Here’s Liz Kates’ version, and well-written:

Why Therapeutic Jurisprudence Must Be Eliminated From Our Family Courts,

by E. Kates

downloadable doc file Why Therapeutic Jurisprudence Must Be Eliminated From Our Family Courts, an article about family lawyer ethics problems, published in 13 Dom. Violence Report 65 (2008)

Prefatory note: The phrase “therapeutic jurisprudence” is used in this article to mean “a mental health approach to the law.” The term originally was coined in 1987 by Professors David Wexler of the University of Arizona and Bruce Winick of the University of Miami School of Law to mean the study of the therapeutic or anti-therapeutic effects of law and legal procedures. It also has come to be more widely used to mean therapeutic applications in the law, as well as the influx of mental health therapeutic and forensic practitioners into the courts, both of which somewhat predate the coinage. The growth of these ideas in family law, however, has been exponential over the past two decades. Much of the therapeutic jurisprudence currently being applied in family courts around the country, as well as the laws furthering these practices can be traced to trade promotion ideas conceived and lobbied for by various psychological and multidisciplinary trade organizations.

The Unacknowledged Problem

There are many problems with therapeutic jurisprudence in the family courts, which now runs the gamet from all manner of alternate dispute resolution procedures, to excessive guardian ad litem practices, to various court-ordered therapies, to extensive psychological opining and forensic evaluation in court cases. One of the problems with the rise of therapeutic jurisprudence and the placement of non-legal systems and non-legal professionals into the courts has been the subtle denigration of long-established precepts of lawyer independence and due process. One of the many ways this happens in the family courts has been, ironically, through the introduction of subtle and often unrecognized conflicts of interest afflicting lawyers’ representations of their clients, created through the common development of multidisciplinary collegial relationships and business referrals, both informally and through the very multidisciplinary organizations which are promoting therapeutic jurisprudence ideas.

The conflicts of interest arise because most lawyers represent different kinds of clients on ideologically oppositional sides in different cases. The typical family lawyer sometimes represents the wife, sometimes the husband, sometimes the “good guy”, and sometimes the “bad guy”. If a lawyer coming into a case runs up against an expert with whom he has a referral or employment relationship in other cases, and that expert takes a position adverse to the lawyer’s client in the new case, the lawyer will have a very difficult time adequately representing his client. Appropriate representation may require the lawyer to strenuously object to the expert’s testimony — or even the expert himself. But if the lawyer needs the good will and cooperation of that same expert in connection with the lawyer’s other clients’ pending cases, he cannot do that because he may put those other cases at risk.

The legal community, even in urban areas, is limited and often close-knit. Lawyers in the same area of practice regularly encounter each other in different cases. The pool of forensic experts and guardians ad litem (GALs) tends to be even smaller. The repeated association time and again of these specialists in cases means that at any time and from time-to-time any given one of them may show up on the “wrong side” of a lawyer’s case — and simultaneously also be on the “right side” of other of the lawyer’s cases, whether as a hired expert or a court-appointed expert. This creates many of the same dilemmas that ordinary client conflict-of-interest issues do.

How the Conflicts of Interest Affect the Lawyers and Their Clients’ Cases

Lawyers in these positions will be tempted to rationalize to themselves, as well as maintain the posture in the community at large, that the expert’s opinions, even when they are adverse to his client, are scientifically valid — even when they may not be, even if they are deeply flawed or completely specious. These lawyers may rationalize to themselves that the validity of the science itself is not their responsibility because, after all, lawyers are not “scientists”. The lawyer who naively or purposefully steps down the path of multidisciplinary practice, regularly exchanging referrals and engaging in other close associations with nonlawyer case participants simply cannot avoid encountering this problem.

Lawyers and these other participants in the system have very different roles. When lawyers directly hire paralegals, experts, and others to assist them, there is not as much of a potential conflicts problem, even when these individuals are independent contractors. First, their work is covered by attorney work product unless and until they testify. Second, because they were hired by the lawyer, they are subject to the same conflict of interest rules as is the hiring lawyer, as far as their involvement in other cases and with other people. This is not true, however, in the case of “independent” experts, such as custody evaluators and guardians ad litem. These individuals who render opinions “for the court” as so-called “court-appointed experts” are a very different matter.

These same kinds of conflicts also do not arise when lawyers engage in professional relationships with other lawyers who regularly are on the opposing sides of cases, because unlike the lawyer colleagues, the practitioners of therapeutic jurisprudence are actually case participants — witnesses and even parties. Although ostensibly working “for the court”, they are not akin to neutral judges or magistrates, bailiffs or other courthouse personnel. None of these truly neutral courthouse persons advocates for a position in a case, testifies as a witness, or participates as a party proper as do some GALs. Contrary to the rhetoric, court-appointed evaluators and opining GALs are not neutral participants in the system. Even if they initially were hired under that rubric, once their reports are rendered, and their opinions formed and ready to be given, they have become advocates for one or the other side or issue in a case. Thus, at a point, they are, just as any party would be, pointedly in favor of certain outcomes, and adverse to others.

The routine broad involvement of these expert witnesses thus must be recognized by the legal profession as the egregious misjudgment it is, fostering legal ethical violations that must be addressed by state bar ethics rules.

Ironically, the problem is worse for lawyers who are not ideologues, because these lawyers are more likely to advocate for different client perspectives. Such a lawyer confronts an unresolvable dilemma when an expert the lawyer is relying on in one case takes a similar position, including one that may lack scientific merit, against another of the same lawyer’s clients in a different case. Because the expert and the lawyer have been, are currently, or will be in cahoots in these other cases, the lawyer is placed into a conflict, unable zealously to discredit the expert when that is necessary to protect his current client. Bar ethics rules must address this.

The legal profession actually does recognize that the experts themselves have the same temptation to manipulate their opinions to please those lawyers with whom they have ongoing relationships and receive referrals. This undoubtedly contributes to yet more corruption of the judicial system, and even has led to calls to banish these third parties (see e.g. Margaret Hagen’s Whores of the Court, Regan Books, 1997). Nevertheless, lawyers have not, as a group, either recognized or acknowledged how these practices have affected their own ethics and practices.

Why Has No One Said Anything Before?

One possible reason that multidisciplinary ideas have taken such hold in the area of family law and (except for the drug court idea where they are also increasing), otherwise kept in check in other areas of legal practice, is that unlike lawyers who practice in many other substantive areas, and who may retain their clients for years, family lawyers typically need a steady stream of new one-shot clients. Also, family lawyers tend to work in smaller firms, where they are not cross-referring the same clients among different lawyers in different practice areas of the same firm. So family lawyers value those who send them business. As a result, it appears that too many family lawyers, perhaps without recognizing or acknowledging the conflicts of interest that have caused their discomfort and unwillingness adequately to represent some of their clients in some of their cases, in fact have sacrificed these clients on the altar of maintaining their professional relationships, associations, and referral sources.

Some busy family lawyers do admit to feeling “burnout”. Some have rationalized that their unwillingness to zealously advocate for their clients, as well as their vague discomfort with some clients and positions, stems from the frequent “high conflict” created by unreasonable clients, or the high emotional toll their cases are taking on them. Others have retained their enthusiasm by becoming ideologues, including proponents of bad science favored by their own favorite therapeutic jurisprudence colleagues. These lawyers take only those cases in which they will not feel conflicted or simply suspend their judgment and integrity in the interests of churning cases and making money. For example, this is seen among lawyers who assert in case after case with very different facts that their clients have been the victims of “parental alienation”. The fathers’ rights advocates also would lay this charge on the domestic violence practitioners. Whether the ideological lawyer is taking cases which do involve only one kind of client position, or whether the lawyer just “sees” the same things in different cases is not the issue. The issue is that the lawyer has resolved his cognitive dissonance by committing to propositions outside of law and outside of the lawyer’s academic expertise, and — maintaining a deliberate self-serving ignorance — is carrying both good and bad ideas into the media of the legal field. This alone explains the constant propagation in family law of bad science, and the seemingly endless “controversies” over bad psychological ideas that are pervasive in the justice system but which do not get resolved by any amount of publication of “good science”.

Some lawyers caught in this vortex have justified their lack of vigorous representation, and the coerced settlements they’ve foisted on some clients, as hailing from a pretextual concern for “the best interests of the [nonclient] children”, or as taking the reasonable compromise position, or the high road, or “just helping people to get along”. These lawyers have attempted to redefine their jobs, paternalistically, as dictators who must “control” their clients, instead of being agents at law for them. And again, therapeutic jurisprudence explains why this problem has become so much more pervasive in family law than in other areas of law.

Other lawyers profess to themselves and each other and everyone else around a great affinity for mediation and therapy and collaborative resolution, and all manner of alternate dispute resolution (therapeutic jurisprudence) as being superior to traditional justice system litigation and negotiation practices, and in the interests of everyone, because they have been encouraged to think this way by a steady drip of literature emanating from the mental health trade organizations — as well as new referral retainers. Little in the way of objective research substantiates these opinions, or the resulting negative impact many of them have on formal justice system procedures and due process. This kind of thing again is just not as pervasive in other areas of the law, no matter how heated the conflicts get, and it is one substantial reason the public has such a generally dim view of the family courts and family lawyers. “Therapeutic jurisprudence” is a primary reason the family courts are seen as not working, unjust, and broken.

How Are We Going To Fix This

Given that clients are entitled to their choice of attorneys, and are entitled to independent, unconflicted agents at law who are committed to furthering their interests and goals (as the client, not the attorney, has defined them), one immediately viable solution would be a rule of disqualification of any GAL or forensic expert who previously was associated in any prior case with either of the lawyers in a current case, and the striking and nullification of all testimony and reports of that expert, no matter at what stage the lawyer may have entered the case.

Court appointed witnesses and parties in other people’s private civil cases are interlopers in the justice system and must be excised. The very integrity of the justice system is at stake. To the extent well-meaning individuals promoting these ideas did not fathom the repercussions of them, and were swayed by sweet-sounding “solutions” that simply do not work well in practice, it’s time for an honest reappraisal.

In addition, the loss to the justice system, if any, would be slight. It does not actually take an “expert” to do a home study or to investigate readily observable facts. The proof of this is in how often court-hired opiners are not specialists at all, but lawyers and laypersons, and in how often cases in which funds are unavailable to engage so-called mental health experts manage to be reasonably adjudicated WITHOUT THEM. The perception of need for psychological expertise in most family law cases is especially misguided too, because, unlike scientific and technical experts in other fields, the field of applied psychology is overrun with political machinations, nonsensical theories, and outright misrepresentations (see generally, Robyn Dawes, House of Cards, The Free Press, 1994, and other criticisms of applied psychology). Too often what is posited as within the realm of a psychologist’s or other mental health practitioner’s expertise is not close to research-based or experiential technical knowledge. Much of the time, it is more akin to an expertise in astrology, or theology: there is high familiarity with complicated ideas and methods of calculating answers, and the body of literature that discusses all of that, but the professional output otherwise is somewhere between unhelpful and misleading when it comes to ascertaining the facts and guiding reasonable decision-making.

It is time to start substantially limiting, and even eliminating the use of forensic experts, GALs, and other therapeutic ideas in family court. In the vast majority of cases, custody evaluators and mental health practitioners have no actual expertise to offer. When this is objectively understood, and then considered in light of the problems their presence creates, the solution is no longer arguable.

Alas, if one eliminates these players and that concept from the family law system, it would probably cease to exist! A correct understanding of the origins of the main profession IN it (AFCC, current terminology) shows that the mental health component was there from the start.

Another reason — a friend of mine relates (again) recently, it’s not exactly breaking news — but it’s earthshaking if it would actually stay OUT in the public eye — is that certain fathers’ rights groups, from the start, obtained federal grants funding to keep the projects mainstreamed — and the funding coming, coming, coming.  Mothers don’t stand a chance — this amount of funding is NOT available for them once “domestic violence” becomes a “family issue” — they and their cases are dropped like a hot potato.  Here’s how it goes — and this has little to do with helping anyone, but individuals who become main contractors for services the courts provide, making sure that the outcome gets the custody to the father, the child support arrears reduced (too bad for kids, eh?) and sometimes, punishing the mother with wage garnishments, too.

This is coming up on the NEXT post — too important to go to the bottom of this one.

Meanwhile, understand that the common sense of Liz Kates, above — has been ignored.  Why not go ahead and ignore it — it’s great business deceiving the public that the court overload is due to too many people with problems as opposed to the truth — problemmatic programs that encourage and solicit this business, and set up cases so as to generate the most possible frivolous litigation.  If the child was given to the more appropriate parent, and KEPT there til they grew up, poor family law system would have to find more subject matter, and there’d be less cause to ask for more, and more, and more, and more grants money to study “the problems” in the courts.

INTERNATIONAL NETWORK ON THERAPEUTIC JURISPRUDENCE

David Wexler and Florida Coastal School of Law

This would obviously be a “pro” site — and demonstrates how to get certain concepts up and running — a website, conferences, involve a college or university if possible, get a publication going, and get a Forum going, all of which are noted below.  Actually being a professor helps also, which Mr. Wexler, here, is, or has been:

Education

New York University, J.D. (1964) graduated cum laude; Note Editor, New York University Law Review; Order of the Coif; John Norton Pomeroy Scholar

Harpur College, State University of New York at Binghamton, B.A. (1961)

Personal Work Experience

Distinguished Research Professor of Law, Rogers College of Law, 2007 – present

John D. Lyons Professor of Law and Professor of Psychology, University of Arizona College of Law, 1985 – 2007

Professor of Law and Director, International Network on Therapeutic Jurisprudence, University of Puerto Rico, 1994 – present

Professor of Law, University of Arizona College of Law, 1967 – 1985

Attorney, Washington, D.C., U.S. Department of Justice, Criminal Division

Note that the professional life seems to have been heavy on the Professor part, and the reference to working as an attorney — only once (in red), at the U.S. DOJ.  He is encouraging people to look at the processes of law and their impact on therapy, positive of negative.  This is not quite the same as the CFCC s who are simply positioning themselves — as if divinely qualified to do so, or any more qualified than the parents coming through — to dispense “therapy” meaning, change your attitude to match mine/ours, and defining “sick/healthy” from somewhere OUTSIDE the language embodied in the legal codes.

As here, from the same site::

Therapeutic Jurisprudence concentrates on the law’s impact on emotional life and psychological well-being. It is a perspective that regards the law (rules of law, legal procedures, and roles of legal actors) itself as a social force that often produces therapeutic or anti-therapeutic consequences. It does not suggest that therapeutic concerns are more important than other consequences or factors, but it does suggest that the law’s role as a potential therapeutic agent should be recognized and systematically studied. For an overview of Therapeutic Jurisprudence click here.

The International Network on Therapeutic Jurisprudence is designed to stimulate thought in the area of therapeutic jurisprudence. It serves internationally as a clearing house and resource center regarding therapeutic jurisprudence developments.

The network will maintain this web page, will sponsor conferences, and, in cooperation with the Florida Coastal School of Law, will publish theTherapeutic Jurisprudence Review as a regular part of the Florida Coastal Law Review. In addition, in cooperation with the University of Puerto Rico’s Revista Juridica, it will on occasion publish, in English or in Spanish, the Therapeutic Jurisprudence Forum. It will also, through the web page, call attention to recent or upcoming activities and publications of interest, and will provide links to related internet resources. If you have anything you would like added to the site please email our webmaster at jessica@scrye.com

If you would like to belong to the international and interdiscipliany LISTSERVE where members can post and read messages relating to TJ join here. If you would only like to receive periodic announcements regarding important therapeutic jurisprudence developments and notices of important updates of this webpage, then join the INTJ MAILING LIST by clicking here.

Some of the articles accessible on this webpage require Adobe Acrobat. A free version of the reader can be downloaded from the Adobe website.

 

From the overview of Therapeutic Jurisprudence LINK, above, an excerpt re: in custody:

An example of a legal procedure looked at through the lens of therapeutic jurisprudence is an article by Professor Janet Weinstein regarding child custody disputes. ⁽²⁹⁾ Weinstein wrote about how the adversary process in a child custody context can be both traumatic for the child and damaging to the relationship of the parents who may, despite their divorce, need to have some kind of relationship in the future merely for the sake of the child. ⁽³⁰⁾

Weinstein’s analysis is very interesting because it exposes how the adversary process encourages us to find the worst thing about the other party, to bring it out, and to talk about just how terrible that other parent is. ⁽³¹⁾ This is traumatic to children and, of course, damaging to the relationship of the parents. ⁽³²⁾ Can there be other, less damaging ways of resolving these issues, such as through mediation or new mechanisms such as collaborative divorce. Therapeutic jurisprudence focuses on these creative explorations. ⁽³³⁾

“Mediation” (sic) is objectionable when the relationship has already been adversarial and combative, especially when serious violence and threat has entered.  Then, the correct priority is to acknowledge and HANDLE the threat/violence first, and not force mediation until it’s been handled — or, possibly, never.  The courts tend to take the opposite approach — mandatory mediation (many places) and insist that IT takes priority over the genuine safety issues.

Finally, an example of the third category is legal roles. This category examines the behavior of lawyers, judges, and other actors in the legal system.⁽³⁴⁾ For instance, the way the judge behaves at a sentencing hearing can actually, in and of itself, affect how someone who has been given probation complies with the conditions of that probation. ⁽³⁵⁾

Therapeutic jurisprudence grew out of mental health law, the area that has been the main subject of the Thomas M. Cooley Law Review’s Disabilities Law Symposium, from which these remarks are drawn. ⁽³⁸⁾ Therapeutic jurisprudence cut its teeth on civil commitment, the insanity defense, and incompetency to stand trial. ⁽³⁹⁾ It looked at the way in which a system that is designed to help people recover or achieve mental health often backfires and causes just the opposite. ⁽⁴⁰⁾

 

In too many cases of family law, this approach is doing more than just backfiring, it’s resulting in entire families being SHOT, including to death, or otherwise killed.  This has not stemmed the on-rush of the theory in the family court circles.

Therefore, a perspective developed recognizing that the law itself, know it or not, like it or not, sometimes functions as a therapeutic or an antitherapeutic agent. ⁽⁴¹⁾ This is, of course, highly relevant to mental health law. The therapeutic jurisprudence perspective, however, now applies to other legal areas, probably all legal areas. For example, the perspective applies to mental health law, criminal law, juvenile law, family law, and other areas.

Clearly, he is very interested in theory.  He’s a professor — that goes without saying.  And he’s also into psychology.

A little more;

Some judges are very “record oriented.” ⁽⁷⁶⁾ They try to avoid dealing with the defendant because he could “muck up” the record. ⁽⁷⁷⁾ Instead, they look to statements of the prosecutor, the defense counsel, or something in the file that will establish the factual basis for the plea. ⁽⁷⁸⁾ Those courts involve the defendants minimally. ⁽⁷⁹⁾

Other judges have an open colloquy with the defendant, such as: “Okay, you realize this is the offense that you’re pleading to. Please tell me in your own words what happened, when, and so on.” ⁽⁸⁰⁾ The second type of judicial behavior might be a bit better than the first because it takes that first step of confronting denial, minimization, and encouraging an offender to take responsibility. ⁽⁸¹⁾

This is talking about criminal law.  Family law is different.  I still have a lousy transcript from one hearing in which — after all contact had been (by this same court) cut off between me and my daughters, a judge spoke about trying to “re-establish a relationship” after they’d allowed a child-stealing and several other criminal matters to go by uncorrected.  I described the stalking between recent hearings, and how this had affected my ability to pursue court-ordered contact safely.  Then he began to lecture me, in particular, for taking up the court’s time!  The transcript also reveals my countering hearsay testimony by a court-appointed what-not who was somehow claiming that conversations which never even took place, had a certain characteristic.  By this time, my respect had been totally lost for the courts.  A few years later, reading this, it’s very clear the judge saw himself (or WISHED to be seen as) a therapeutic judge.  I’d come to them for justice — any needs for therapy would certainly go to some outfit which actually deserves my respect, not a family law “judge.”  The purpose of a judge is to “judge” or change the title — and do so UP FRONT and on the door to the courtroom, i.e., “This is a court of law, but it is our intent — and as funded by federal grants to states that give us this incentive — to actually therapize the family unit because — and ONLY because — “they” are so incompetent they can’t work it out without us.

No thanks!  Too many cooks spoil the soup!

In the next, brief post, I’m going to show that it’s not at all about therapy in these courts — that’s just talk.  If you are a genuine therapist taking business from the courts, and wondering why those parents are acting so nutty, be prepared to be genuinely INSULTED about what some of your (less honest than you, obviously) colleagues have done to this system that you work in.  Whether you are, or are not, insulted doesn’t bother me — I’ve made up my mind long ago, and our own case never even had a custody evaluator assigned.  But we had enough of a taste to see how it “works,” turning TWO working parents with a reasonably civil separation, children having frequent contact with both parents (especially given the circumstances!) into TWO unemployed parents, from what I can tell, and only ONE parent having contact with HER children — and a lot of the landscape laterally wasted also, other people who got involved.

And they say that’s NOT the adversarial method?