Conflict, not the courts, is the culprit in custody cases

Counterpoint

I have spent a good deal of time since graduating from law school nearly eight years ago pondering an existential question: Why have I chosen to practice family law?

It is difficult. It is emotional. It is messy. Is it true that all I am doing is rending asunder a sacred vow for my own personal monetary gain? Why do I do this work?

My existential angst was further exacerbated by Gail Rosenblum's March 8 column ("Rare consensus is behind bill to enforce balance in custody cases").

It pointed out that the common perception, apparently widely held across the political spectrum, is that the family court system in Minnesota is broken, and that unscrupulous attorneys like me are profiteering by fomenting conflict between parents in custody cases.

Fortunately, we have the white knight of the Legislature to march in to impose a custody presumption, thereby preventing us ne'er-do-wells from manufacturing conflict.

I wish that I could believe a physical custody presumption presented a panacea, but I view blaming the court system and the attorneys as tantamount to blaming the chemotherapy for killing the patient.

In the vast majority of divorce cases, under existing laws, parents are able to use alternative dispute resolution tools to come to an agreement in the best interests of the children. To believe that forcing "shared parenting" in the rare cases in which the parents are not able to agree upon what is best for the kids is going to somehow prevent conflict, I find to be an incredible proposition.

Suppose children are forced to spend equal time with their acrimonious, high-conflict parents. Which school or day care will the children attend? Which church will they go to? Will the child participate in the arts program mom wants or the hockey program that dad wants? What happens when one parent moves to Wisconsin? Will the child be shuttled back and forth from state to state every other day?

If one parent works long hours, will the child be left in the care of a baby sitter or nanny instead of a parent? How will time be allocated if one parent works overnights? Does it count if mom's half of the time with the child is when he is asleep and dad's half is when he is awake? What if mom wants every weekend and holiday as her half?

Having practiced in this area of the law, I can state with certainty that there is much more to fight over than simply one's percentage of time with a child.

As an attorney, perhaps I should embrace this proposed custody presumption for the world of new conflict it will open. If this presumption becomes law, there will be a huge rush of custody modification requests.

My clients will have to pay me to draft legal arguments about what the presumption means and how it is overcome. Perhaps I should be enthusiastic about this potential cash cow, but I am not.

Money is not my exclusive motivation.

Most of my colleagues in practice and on the bench are men and women of compassion and integrity who truly want to minimize conflict and to help families. If vilifying us is politically expedient to push this proposed presumption, I suppose there is nothing to be done.

Just do not be surprised when children continue to be subject to conflict between parents even after this cure is administered.

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