For centuries, physicians bled their patients and called it medicine. The patients got weaker; the doctors, confident in their training, prescribed more bleeding. Medicine now has a name for harm caused by the treatment itself: iatrogenesis.
Family law has its own version, and like the physicians, it doesn’t recognize the harm because the harm comes wrapped in professional confidence. Our bloodletting travels under respectable names: due process, case management, therapeutic intervention, zealous advocacy, and—the most respectable of all—”getting more information.”
Family law’s failures usually get discussed as resource problems: not enough judges, clerks, evaluators, or legal aid. Some of that is true. None of it is the heart of the problem.
And the core of the problem is that family law often mistakes itself for the remedy when it is, too often, part of the injury. Families in crisis need the law—sometimes desperately. They need it to restrain violence, parental alienation, fraud, coercion, and concealment. But needing the protection of law is not the same as needing prolonged exposure to the family law system. The first is essential. The second is often destructive.
Three failures drive the destruction, and they need different cures.
First Failure: A Machine that Manufactures Conflict
The standard opening move in a contested divorce is a motion for temporary orders cataloging the other spouse’s worst alleged moments. The client feels vindicated. The lawyer feels useful. And the case gets worse, because that motion starts a predictable escalation: one side strikes first, the other retaliates, and the first-strike lawyer points to the retaliation as proof the original aggression was necessary. The legal process handed the litigants weapons. This is not a problem of bad people or bad lawyers; it is a problem of almost irresistible incentives for bad behavior.
And the incentives run deeper than litigation tactics. Nearly everyone paid to work on a contested case is paid more the longer the contest lasts. Lawyers, custody evaluators, private guardians ad litem (PGALs), and reunification therapists are paid by the engagement, and the engagement pays better the longer it runs. None of this requires accusing anyone of bad faith—that is precisely the point. A system in which no professional’s compensation improves when the case ends sooner should not be surprised when cases don’t end sooner. The physicians who bled their patients billed by the bleeding, too. They were not frauds. They were worse than frauds: they were sincere.
The system’s reflex when a case gets hard compounds the problem. The reflex is to add: another professional (a PGAL, a custody evaluator, a reunification therapist), another hearing, another evaluation, another report. Each addition is justified as “getting more information.” But more information is only valuable if it is 1) reliable, 2) actually used in the decision, and 3) worth its cost in money and—more importantly—in time. A custody evaluation that takes nine to twelve months and costs the parties five figures fails all three tests most cases, and courts almost never ask afterward whether the marginal report changed the outcome. “More information” is not a diagnosis. It is a deferral dressed as diligence.
Behind the deferral sits an honest epistemic problem that deserves an honest answer. Courts cannot know the full truth of a family. No number of evaluations, interviews, or reports will produce it. The honest response to that limit is to decide what must be decided on the best evidence obtainable within a timeframe that does not itself distort the answer—not to keep gathering evidence in the hope that certainty will eventually arrive. It won’t. Pursuing certainty past the point of diminishing returns is not rigor; it is the same pathology in more respectable dress. Our law already contains the tool for deciding without certainty—the burden of proof—and how courts have quietly stopped using it is a subject that deserves its own post. It will get one.
Alternative dispute resolution has suffered a similar institutionalization. Mediation serves parties who genuinely wish to avoid further conflict, but by making it mandatory the system treats cooperation as something that can be compelled. Forcing unwilling litigants into the process often transforms negotiation into attrition, where settlement is achieved primarily by exhausting the financial or emotional stamina of the less resilient party.
The default has drifted toward sprawl, and sprawl spreads responsibility until no one has to own a decision. Meanwhile, the family is broke, exhausted, and still not free.
Second Failure: Deciding Big Questions on Thin Evidence—by Design
The most consequential orders in a divorce or child custody dispute—who lives in the house, who has the children and when—are routinely entered at the temporary orders stage, on proffers and dueling declarations, in hearings measured in minutes, often before a domestic relations commissioner whose recommendation becomes an order unless timely challenged. There is no live testimony, no cross-examination, no meaningful opportunity to test credibility. The information is thin not by accident but by design: calendars are crowded, and the proffer system exists to move cases, not to find facts.
Thin evidence would be tolerable if the resulting orders were treated as what they are—provisional guesses. They are not. Here is the mechanism that connects everything in this post, and it deserves to be stated plainly: the system creates the very status quo it later treats as evidence. A temporary order entered early, on incomplete (and often false) information, becomes the child’s routine. The routine becomes “stability.” Stability becomes the reason not to disturb the order. By the time a party gets an evidentiary hearing or trial—often a year or more later—the question is no longer “what does the evidence show?” but “why upset an arrangement the child has adjusted to?” Delay is never neutral. It changes children, bargaining power, and outcomes, and it systematically rewards whoever won the opening skirmish, regardless of whether that party deserved to win it.
The usual defense of all this is that courts face an unavoidable tradeoff: speed versus care, economy versus thoroughness, and the current system represents a reasonable compromise. That defense fails, because the current system is not on the tradeoff curve at all. It delivers neither speed nor accuracy. The temporary orders stage is fast and wrong. The trial stage is slow and wrong anyway, because by the time it arrives the status quo has contaminated the very question the court is answering. A custody evaluation that takes a year is not buying accuracy with time; it is buying delay with money, and the delay itself degrades accuracy by cementing the status quo. Sprawl has the cost profile of thoroughness and the error profile of haste. A system dominated on both axes is not making a hard compromise. It is simply failing—and “tradeoffs are inevitable” is not a defense of failure.
Third Failure: Referees Who Won’t Call Fouls
A referee who refuses to call fouls is not neutral—he or she is rewarding whoever fouls harder. Yet when a party complains that the other side is gaming the system, courts too often relabel the misconduct as mutual “high conflict” and lecture both parties about cooperation. That relabeling is not evenhandedness; it is a subsidy for the aggressor, paid for by the party playing by the rules.
A rule without enforcement is worse than no rule at all, because it teaches litigants that the rules are decorative and/or tools of manipulation. An order that can be violated without prompt and meaningful remedy is not really an order.
The Objection That Deserves an Answer
Before the prescription, the strongest objection: doesn’t “minimum exposure” sound like a gift to abusers? Genuine victims often have no paper trail. A system that moves fast and gets out sounds like a system that misses the mark.
The objection has it backward. Sprawl does not protect victims; it buries them. A court managing a bloated docket of manufactured emergencies has less attention, not more, for the real ones. A system that tolerates inflated allegations makes every honest allegation harder to believe—once a court catches one overstatement, it cannot easily sift honest claims from embellished ones. The victim with no paper trail is the person with the most to lose from a system in which allegations are cheap. Minimum exposure paired with real enforcement is not the alternative to protecting victims. It is the only version of the system that can.
The Prescription: Minimum Exposure, Full Enforcement
The goal is not maximum process. It is the minimum legal exposure consistent with real protection, equal treatment, and reliable enforcement. Concretely:
- Triage at the front of the case. Ask early: What must be protected now? What must be decided now? What conduct, if any, must be stopped now? What information is genuinely relevant and credible, as opposed to merely scary? True triage also means identifying which cases can genuinely negotiate and which require court orders—and abandoning the assumption that mandatory mediation is a universal solution.
- Put temporary orders on a clock. Any temporary custody or parent-time order entered on proffer alone should carry an automatic review—an evidentiary hearing within 90 to 120 days—before inertia converts a guess into the presumed outcome. If the moving party’s evidence cannot survive cross-examination within four months, that fact is itself information the court needs. The predictable objection is resources: crowded calendars cannot absorb more evidentiary hearings. But the review hearing costs less than the evaluation-and-continuance cycle it replaces. Front-loaded rigor is cheaper than back-loaded sprawl. This is a rule change, not a statutory one, and it is within each commissioner’s or judge’s power to adopt tomorrow.
- Make misconduct expensive. Behavior in these cases follows incentives, not lectures, and the tools already exist. Reckless allegations that fail at the evidentiary stage should draw sanctions under Rule 11 and fee awards under Utah Code § 78B-5-825 for claims asserted in bad faith. Parent-time violations should be met with Rule 7B motions to enforce that courts actually grant—with compensatory time, fees, and escalating consequences for repeat violations—rather than continuances and cooperation lectures. None of this requires new law. It requires judges and commissioners willing to use the law they have. How courts should distinguish the baseless filing from the honest claim that simply fails—and why the standard of proof, honestly applied, does most of this work by itself—is the subject of the companion post to this one.
- Confine professionals to their roles—and audit the value of their work. A PGAL who refuses to record (or permit the recording of) what the child actually said, or an evaluator whose report arrives a year late and who makes the parents fight to access the evaluator’s files, is not adding information; he/she is adding delay with a professional letterhead. Before appointing any additional professional, the court should have to articulate what specific question the appointment will answer, by when, and at what cost—and should decline to make appointment when the honest answer is “we’re not sure, but more information can’t hurt.” It can hurt under current practices.
- Design procedure to harness self-interest. The old cake-cutting rule—one person cuts, the other chooses—contains more wisdom than most litigation procedure, because it makes fairness the cutter’s own incentive. Defaults that reward sensible settlement, short decision clocks, and fee-shifting that punishes bad faith can do the same work at scale.
The physicians eventually stopped bleeding their patients—not because they cared less, but because someone finally measured outcomes instead of beliefs and intentions. Family law is overdue for the same reckoning. The legal system doesn’t need to process families more. It needs to serve families more competently: orders that mean something, deadlines that matter, referees with backbone—matching the pace and the tools to the stakes. And then, as quickly as justice allows, it needs to do the one thing the bleeders never did: put down the lancet and leave the patient alone.
Next in this series: The Standard of Proof Is the Immune System of Family Law—and Courts Keep Suppressing It.
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