Time, perhaps, to get courts out of divorce

  • Article by: BRUCE PETERSON
  • Updated: July 12, 2012 - 8:08 PM

The current system of family law may be beyond improvement.

Gov. Mark Dayton has "pocket-vetoed" the watered-down version of the joint child custody legislation promoted for the last decade and has urged the adversaries to collaborate on a bill for next year.

The opposing statements that followed on this page ("Kids in the balance," June 1, and "Child-custody bill was problematic," June 13) didn't sound especially collaborative. We may have to accept that there is no good solution within the current system of family law.

Joint-custody advocates seek to restrict judges' discretion because they understandably fear unfair treatment of fathers by judges applying stereotypes. But any categorical restrictions on judicial discretion will also inherently cause some children to wind up in the wrong place.

The current system suffers from other inherent limitations. The legal system strives for finality; to prevent endless bickering and court hearings, judges try to decide a case once and for all, and the law makes changing custody difficult. Yet the parenting arrangements that work well for a 3-year-old are not necessarily the best at age 12.

The law also seeks a comprehensive solution that adjudicates all issues. I have issued 30-page divorce decrees that decided 20 separate issues, from parenting arrangements to who gets the family DVDs. It is amazing to me that the American public has put up with government officials dictating the most intimate details of their personal lives.

The worst feature of the current system is the conflict it generates. We call it an adversary system, but a better term would be a coercion system. The parties bash each other in order to persuade the judge to coerce the other person to do something they don't want to do.

A wise friend of mine, a psychologist, once told me that the normal response of a healthy adult when faced with coercion is to resist. Sensing impending coercion, people often come to court defensive, anxious, with their heels dug in. Despite thoughtful, creative strides by Minnesota courts to reduce conflict, the specter of coercion still haunts divorce cases and promotes conflict. And it is conflict that hurts children, regardless of the custody label.

Albert Einstein said, "It is impossible to solve a problem at the same level of consciousness that created it."

"Suing for divorce" made sense when divorce required proving fault. But with no-fault divorce, there is no need for courts to control divorces. After watching this process for years, I have come to the conclusion that the time has come to consider taking divorce out of the hands of lawyers and judges and putting it in the hands of the parties and whatever advisers they choose.

Here is one possible scenario: Allow a person who wants a divorce to sign for one at a court clerk's office, maybe with a reasonable waiting period. This would immediately end the fantasy that "getting a divorce" is an accomplishment that will somehow solve a problem.

Instead of the premier source of guidance for hurting spouses being divorce lawyers, who are often drawn reluctantly into being gladiators, let our creative private-enterprise system develop more healing processes.

I picture family resource centers offering a full spectrum of services, from counseling and mediation, to remedial separations while a specific problem like an addiction is addressed, to guided discernment about the decision to divorce, to peaceful divorces.

For specific, pressing matters that parties can't work out on their own, or where one of the parties refuses to disengage in good faith, they might need access to a simple, expedited court procedure, like our current "order for protection" process.

Such a laissez-faire approach may sound radical, but it would avoid the limitations of the current system. Parties would not have to rely on the flawed discretion of some outsider. They could adapt their parenting arrangements to their children's changing needs. And they would not be put in the unnatural position of resolving their problems with another person all at once. They might follow a more gradual, organic approach.

A large percentage of our population now undergoes divorce. We can create a more healing process.

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Bruce Peterson is a Hennepin County district judge.

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