Many parents (I’d say even most parents) enter family court hoping someone will fix everything. Believing that:
- the judge will see through the lies.
- the custody evaluator will identify the real problems.
- the therapist will repair the damaged relationship.
- the guardian ad litem will advocate competently for the child.
- the parenting coordinator will stop the conflict.
- the court will create a parenting plan so detailed and comprehensive that future disputes become all but impossible.
It is a hope as understandable as it is unrealistic.
Family courts possess substantial legal authority. They can decide child custody disputes. They can establish parent-time schedules. They can allocate decision-making authority. They can order support. They can impose consequences for misconduct. They cannot order trust, affection, respect, or healthy relationships. Legal authority is substantial, but its ability to control human behavior and emotions has real limits.
What family courts cannot do is engineer a family. Yet in the modern day they often behave as though they can.
The Seduction of Social Engineering
Most every family court judge wants children to thrive. The problem arises when courts begin to believe they can design outcomes instead of resolving disputes in the context of, at the level of, and within the limitations of judicial power.
Presented with conflict, courts often respond by layering intervention upon intervention:
- Therapy (individual, family, and reunification)
- Co-parenting classes and parenting coordinators
- Guardians ad Litem and custody evaluators
- Endless review hearings and status conferences
- Detailed behavioral directives and highly structured parenting plans
The underlying assumption is easy to understand: if enough professionals become involved and enough rules are imposed, the family can be guided toward a healthier future. Sometimes that works. More often it does not.
The future stubbornly refuses to cooperate with anyone’s plans. Children inevitably change, and change in ways we cannot fully predict. Parents change too. Circumstances change. Relationships improve, and relationships deteriorate.
The family that exists two years after entry of a decree is rarely the family the court imagined when the decree was entered.
The assumption that judges, evaluators, therapists, and lawyers can successfully map out a child’s future is one of the least examined assumptions in modern family law.
Therapy and Counseling Are Not A Universal Solution
Therapy or counseling can help. Sometimes it helps enormously. But family courts increasingly treat therapy as though it were the answer to nearly every problem that arises in a child custody dispute.[1]
- A child resists parent-time? Therapy.
- The parents communicate poorly? Counseling.
- A teenager is angry? Therapy.
- A parent believes the other parent is influencing the child? Counseling.
More therapy. Then family therapy. Then reunification therapy. Then another therapist.
At some point, someone should ask whether the family is actually becoming healthier or merely becoming more involved with professionals. Why are therapy and counseling ordered so often? Because they allow the court to transfer much of the burden of dealing with the problem to someone else. The conflict becomes, at least in part, the therapist’s or counselor’s problem instead of the court’s. Whether that actually solves the problem is a different question.
This is not an argument against therapy or counseling; many therapists and counselors do excellent work. The problem is the growing tendency to use therapy and counseling as a way of managing family conflict that courts are unwilling or unable to resolve themselves. The problem arises when therapy/counseling becomes a means of transferring responsibility for a family’s problems from the court to a growing cast of professionals.
Therapy is not a substitute for parenting, accountability, evidence, or personal responsibility. Not every family problem is a mental-health problem, and not every child custody dispute can be solved by sending another family member to another therapist or counselor. Courts can decide cases. Therapists can provide treatment. Neither can make otherwise normal people behave responsibly at all times or in the manner a court might prefer. At some point, repeated referrals to counseling stop looking like solutions and start looking like either an effort to transfer responsibility for an unsolved problem from the courtroom to the therapist’s office or a refusal to accept the limits of judicial authority over the private thoughts, feelings, relationships, and choices of autonomous human beings.
When Childhood Becomes A Project
The heaviest burden of this approach is often borne by the children themselves. Adults tend to assume that more intervention necessarily means more help. That is not always true.
Children in high-conflict family court cases can find themselves living under constant professional observation. They meet with therapists, evaluators, and guardians ad litem. They participate in reunification sessions and attend family therapy. They are interviewed, evaluated, assessed, and analyzed.
Everyone involved may sincerely believe they are helping. But at some point a reasonable question arises: Is this child being helped, or has this child become the project?
- Not every upset child is psychologically damaged.
- Not every strained parent-child relationship requires clinical intervention.
- Not every family disagreement requires a team of professionals.
Many children simply need time, stability, consistency, and the freedom to be normal children. Family courts should be careful not to pathologize ordinary childhood reactions to extraordinary family stress.
The Problem With Complexity
Many judges understandably believe that detailed orders will reduce future conflict, and sometimes they do. Most of the time, they do not. Complexity carries massive costs.
Parents who genuinely want peace usually do not need a fifty-page parenting plan. Parents who want conflict can create conflict under any plan. A delayed response to a message, a scheduling disagreement, a missed appointment, or a simple misunderstanding—under a micro-managed order, every single one becomes an actionable issue.
- Every additional rule creates another opportunity for disagreement.
- Every additional requirement creates another potential allegation of noncompliance.
- Every additional professional creates another source of competing opinions.
The order that was intended to reduce conflict becomes a continuing source of it. In some cases, complexity functions less as a solution than as renewable litigation fuel. Simple orders are often easier to understand, easier to follow, and easier to enforce. More complexity does not necessarily produce better outcomes.
The Accountability Problem
Judges appoint evaluators.
Evaluators rely upon therapists.
Therapists make recommendations.
Guardians ad Litem make recommendations.
Parenting coordinators make recommendations.
The number of opinions increases.
The cost increases.
The complexity increases while accountability dilutes.
Parents are frequently left wondering who is actually making the decisions. The judge points to the evaluator; the evaluator points to the therapist; the therapist points to the family dynamics. Meanwhile, the family remains stuck.
Ultimately, custody decisions are judicial decisions. Courts should be cautious about delegating those decisions—formally or informally—to an expanding network of professionals.
The Incentive To Do More for More’s Sake
There is another reason family courts often gravitate toward increasingly elaborate interventions. Judges are human. Like everyone else, they would prefer to avoid preventable disasters.
Suppose a judge orders therapy, appoints a guardian ad litem, appoints a custody evaluator, orders co-parenting classes, and imposes a detailed therapeutic parenting plan. If the case later goes poorly, few people will criticize the judge for having done too much. After all, the judge “tried everything.”
But suppose a judge declines many of those interventions and instead enters a relatively straightforward custody and parent-time order. If the case later deteriorates, the criticism is predictable: Why didn’t the court do more?
That dynamic creates a powerful institutional incentive toward intervention. It functions exactly like defensive medicine. Doing more often appears safer than doing less. Additional interventions are imposed not because anyone knows they will work, but because no one wants to be accused of failing to try them.
The difficulty is that every intervention carries costs. Every appointment consumes time. Every professional costs money. And every layer of complexity makes it harder for families to simply live their lives. More intervention is not always better intervention. Indeed, excess intervention is at best a waste of time, money, and effort. At worst, it can do more harm than good.
The Limits Of Judicial Power
Family courts possess substantial legal authority. But legal authority is not the same thing as actual control.
- A judge can order parent-time; a judge cannot create trust.
- A judge can order therapy; a judge cannot create affection.
- A judge can order communication; a judge cannot create respect.
A judge can issue directives, but a judge cannot manufacture healthy family relationships. The law can try to regulate conduct in the child custody and parent-time sphere, but it cannot guarantee or even effectively regulate outcomes. Many custody orders fail because they attempt to command results that no court has the power to create. That is not a criticism of judges. It is simply reality. Courts need to acknowledge and conform to reality more.
What Courts Can Do
Recognizing the limits of judicial power is not cynicism. It is wisdom. Family courts cannot save every family. No institution can.
What courts can do is something both more modest and more important. They can:
- Resolve disputes fairly.
- Insist upon evidence rather than speculation.
- Hold parents accountable for misconduct.
- Enter clear and enforceable orders.
- Treat parents and children with dignity.
Above all, they can resist the temptation to believe that they possess the ability to design and control a family’s future. That may not sound ambitious. But it is the most any court can realistically accomplish. And it is enough.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] Why? Because ordering therapy and counseling is often the lowest-risk option for the court. Sometimes it genuinely helps. But family courts increasingly treat therapy and counseling as though they were the answer to nearly every problem that arises in a child custody and parent-time dispute. In part, that is because ordering therapy is often easier and less risky than making difficult factual findings, imposing consequences, deciding contested issues on an incomplete record, or acknowledging that family courts possess broad legal authority on paper, but frequently have far less practical power to control the behavior of parents and children than many people assume.