Thursday, May 23, 2013

I’m not the Best Person in the Room to Make That Decision

Marriage dissolution cases – divorces – are some of the most difficult cases for judges to decide.  Two people, once in love, now are not.  So, in addition to dividing up the property, etc., the parties very often deal with raw emotions that cloud their judgment.

New techniques for intervening early in the process, in an attempt to reach the parties before their positions have hardened show much promise in lowering the acrimony and making the process easier.

When there are children involved, the situation can become much more problematic.  Sometimes, the parents become so angry with the partner and so eager to “win” that they lose sight of the most important part of the case:  the best interests of their children.

I have made it a policy, whenever custody and parenting time of children is an issue, to let the parties and attorneys know up front that I will bifurcate the trial – try it in two parts.  The most important part goes first – the custody and parenting time of the children.  The least important part, dividing up the property and determining child support and maintenance (formerly called alimony) comes last. 

I never pass up an opportunity to remind the parties what is truly important.  I’ll tell them something like this:

I’m not the best person in this room to make the important decision of how your children should be raised.  I’ll do the best job I can, but I will certainly not make the best decision possible and I very likely may make a decision that is not in your child’s best interest.  It’s not necessarily that I’m a poor judge, but I don’t know your situation.  I don’t know your children.  I couldn’t possibly love your children as much as you do.  I am paid to make these kinds of decisions when people cannot decide for themselves and I will do that in this case, if you make me.  I will guarantee, however, that if the two of you, working with your attorneys, can put your very real feelings aside as much as possible, and concentrate on what’s best for your child, you will reach a decision far, far better than any I will make. 

Often one or both parents may tear up when I’m talking.  At least then I know they have heard what I have said.  These folks want to do the right thing.  Sometimes, it just takes a judge to remind them.

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Next week:  Child Custody Cases