“Quid rides? Mutato nomine et de te fabula narrator. [Why do you laugh ? Change only the name and this story is about you.]”
Here’s a deeply disturbing but all too frequent scenario in family law:
A father is falsely accused of spousal and/or child abuse–deliberately and strategically by a wife who has been plotting divorce for some time in advance. Husband is arrested and forcibly removed from his home. Wife uses this event as cause for 1) filing for divorce and 2) seeking (and obtaining) a protective order against Husband that keeps him out of the house and awards a) “temporary” possession and occupancy of the house to her and b) “temporary” child custody to her for the duration of the divorce action.
Husband is forced to fight a battle on two fronts now: divorce and criminal charges against him. He hires not one but two attorneys now. Kicked out of his home, he must now rent an apartment. With temporary orders in place, he is ordered to pay child support and spousal support to Wife.
Husband either has “supervised” parent-time for a few hours per week with his children or is reduced to statutory minimum parent-time “out of an abundance of caution.” The children (who were never abused) wonder why Dad isn’t around. The wonder if it’s their fault. They wonder if Dad is upset with them and avoiding them. A wedge forms between Dad and children and just cuts deeper into the relationship as time goes on.
Husband could have taken a plea bargain in the criminal prosecution, but doing so would have meant pleading guilty when he’s innocent and will seriously damage (if not destroy) his child custody and parent-time case.
So Husband refuses the plea bargain and asserts his innocence. He defends himself against the criminal charges all the way to trial. At which point either he wins at trial or the prosecution blinks first and dismisses the charges against him.
But that doesn’t matter to the divorce court. It won’t dismiss the fraudulently obtained protective order if Wife still claims she is afraid of Husband because the court does not want to risk making a mistake (i.e., treating a man accused of domestic violence—but not proven to have committed domestic violence—as no danger of domestic violence if the man commits domestic violence in the future).
A guardian ad litem is appointed ostensibly for the children but does a mediocre job. Not wanting to be blamed for “sending the children into the arms of an abuser,” the guardian ad litem plays it safe with a “better safe than sorry” approach and recommends “maintaining the status quo”.
What reasonable man (or woman, if the plight were reversed), under these circumstances, would not want to fight for his children, his home, and his dignity? Any decent person would expect him (even cheer him on) to do so. But when Husband asserts and defends his rights, when he strives to save his relationship with his children, he is labeled a bully and a vexatious litigator and punished accordingly.
Bankrupt (or nearing it), demeaned, disillusioned and demoralized, Husband sees the handwriting on the wall (some see it sooner than others) and settles just to bring the ordeal to an end.
Therein lies the problem. The ethos of contemporary family law is this: get it over with. Keep the process smooth and easy. Err on the side of caution. Presume him guilty until he is proven innocent. Settle, settle, settle. If the price is accepting inequity and injustice, so be it; the court has no skin in that game.
Administering and enforcing family law impartially is often a difficult job, but it’s the job the judges and domestic relations commissioners signed on for; if they cannot or will not do that job as law and equity prescribe and to the best of their ability, they have no business remaining on the bench.
There is nothing wrong with settlement–when it’s fair and reasonable. But to capitulate to being stripped of one’s rights, good name, and unrestricted association with one’s children for the sake of “conflict resolution” is anything but fair and reasonable. When a family law litigant’s rights are sacrificed on the altar of expediency, our judicial system, and we who are subject to it, are in more trouble than we think.
No man is an Iland, intire of it selfe; every man is a peece of the Continent, a part of the maine; if a Clod bee washed away by the Sea, Europe is the lesse, as well as if a Promontorie were, as well as if a Mannor of thy friends or of thine owne were; any mans death diminishes me, because I am involved in Mankinde; And therefore never send to know for whom the bell tolls; It tolls for thee.
(John Donne – Devotions upon Emergent Occasions)
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