Welcome to the National Congress for Fathers and Children

The following essay, by Maine Superior Court Justice Donald Alexander, was a major factor in Maine's decision to require mediation for divorcing couples. The essay contains a lot of important commentary on the family court system and excerpts from this essay could be used in many contexts when lobbying for father's rights. We encourage people in all states to become familiar with this document and to make use of it where applicable. We have written permission to post this essay, but ask that people link to it rather than redistribute it because Justice Alexander was so kind as to make this essay available to us.

You'll probably notice that the formatting of this essay is a bit inconsistent; this was a long document and it had to be converted to HTML automatically rather than by hand.

When the question of child custody, or child care responsibility, comes into dispute, many conflicting needs and emotions are brought to bear. Each case must be examined and decided based on its individual and almost inevitably unique circumstances. However, as child custody matters are addressed, four goals would appear preeminent:

The current court and litigation focused system for addressing child custody disputes is often antagonistic to all of these goals. It frequently serves to antagonize and polarize already difficult relationships between the parents. Further, the litigation process almost necessarily results in a long period of uncertainty, change, and financial instability for the child after the decision to sever the marriage has become inevitable.

If the current system could be improved simply by changing the way that judges, lawyers and other participants address child custody questions, then that would be the easiest solution. But restraining and increasing sensitivity to child custody issues is not going to change some of the basic attributes of the litigation system which are necessarily antagonistic to placing the child’s interests first and assuring that each parent retains a meaningful relationship with the child and a communicative relationship with each other regarding the child.

Our current litigation system developed from the middle ages as a humane alternative to trial by battle. It is frequently called the adversary process, and with good reason. Its basic premise is that truth and justice will be developed from trial in an impartial forum where each party or “adversary” aggressively promotes their own interest and “confronts” the other with aggressive cross-examination.^² The system’s active practitioners, judges and lawyers, are ethically obligated to protect and promote the basic

Note: Since some notes are lengthy, they are placed at the end to avoid disrupting the flow of the text. However, the notes contain supporting materials and observations that should be considered along with the principal text.

elements of this “adversary” system by providing “due process” – a constitutionally mandated concept^³ which has been construed to require (a) aggressive advocacy of individual client interests, (b) sufficient time for preparation and discovery of the other side’s position, (c) presentation of witnesses favorable to one’s position, (d) full and free “confrontation” or cross-examination of “hostile witnesses, and (e) decision by an impartial and relatively passive fact-finder.^⁴

While the point is debated, for the purposes of this paper, it is assumed that these practice work well in assuring that the State meets its heavy burden of proof in criminal cases, or determining who was negligent and what are the damages after an automobile accident, or, administratively, in deciding if a factory qualifies for a water quality license.

But a process that calls itself “adversary”, promotes “confrontation”, labels the other party a “hostile” witness and ultimately produces a “winner” and a “loser”, could not be worse for resolving how two separating parents will continue to have the best possible relationship with their child –and the necessary continuing communication with each other that the child requires.^⁵

Adding a few new presumptions or procedural requirements are not going to correct the basic flaws of the adversary system in addressing child custody issues.

1. Lawyer’s training and obligations: Under present practices, the machinery for divorce usually begins when one or both of the parents, having already decided that separation is inevitable, contact a lawyer. That lawyer’s oath, ethical obligations, and the traditions of the legal profession, require that the lawyer aggressively promote the interests of the client, even to the exclusion of interests of others who may be affected by his/her actions in achieving the client’s individual goals. The lawyer risks bar disciplinary action and malpractice suits if he/she fails to aggressively promote the client’s interests.^⁶ In fact, one of the few legal malpractice cases to reach the Maine Supreme Judicial Court, Schneider v. Richardson, 411 A.2d 656 (Me. 1979) involved a claim four years after a divorce that a lawyer had compromised the divorce too easily and had not been sufficiently aggressive in investigating and promoting his client’s individual interests. The Law Court’s holding in the case indicated that this claim should be allowed to proceed to determination by a citizen jury. It serves as a signal to all lawyers of the professional risks which may be associated with less than fully aggressive promotion of the client’s interest in divorce cases.

In general, Maine has a highly competent and highly ethical bar in family law as in other areas. However, the problem in child custody matters develops because of the inconsistencies between aggressive promotion of the interests of each client -- which is the lawyer’s ethical obligation – and promotion of the best interests of the child including, among other things, continued and responsible communication between the parents.^⁷

2. The “due process tradition”: As already discussed, the American judicial system and its litigation processes are premised on basic rights associated with what is considered “due process”. In all areas of litigation these rights are generally aimed towards a full and free disclosure of the facts promoted by the parties to the litigation, before an impartial fact-finder with the goal of achieving a winner and a loser. The system is premised on the assumption that the parties involved cannot or will not resolve the disputes among themselves, and it does not really concern itself with the thought that parties may have to maintain a continuing communicative relationship after the Court acts. The parties appear, they prepare for battle trying to maximize their advantage and make the other side’s case look as bad as possible, they do battle before the fact-finder, and a winner is declared. Then the parties depart, in most instances never to have contact again. There is no need, for example, to assure that the errant driver from Caribou preserves a continuing responsible relationship with the injured pedestrian from Kittery.

The due process tradition has several elements which are significant in considering its incompatibility with child custody actions.

At trial, each party must aggressively promote their interests, trying either personally or through counsel to make themselves look as good as possible and to make the other party look as bad as possible. Often, in this process, minor domestic incidents are blown all out of proportion. A person who has had a few drinks on a few occasions over the past year is portrayed as an alcoholic, a woman who has met a male friend a couple evenings for dinner during this stressful time is labeled a whore, and a man who “incorrectly” answers a very few questions on a five hundred question psychological test developed in the late 40’s, with late 40’s social morels in mind, is called a homosexual.

Instead, the judge must be detached, with each party making their presentation in order; plaintiff first, with cross-examination by the defendant, then the defendant’s case with cross-examination by the plaintiff, then arguments.

After this is completed, the Court renders a decision. Sometimes that decision may be rendered from the bench at the end of all the evidence. Sometimes that decision may take as much as six months if the parties wish to file briefs and the Court engages in an extensive review of the evidence before rendering a written decision. The result, almost inevitably, that one party is perceived as a “winner” and one party is perceived as a “loser”. There is another delay of 30 days before the decision can become final,^¹¹ and it may not become final for a considerably longer period if the decision is subject to appeal.

All of this has been conducted correctly according to the current procedures, traditions, constitutional requirements of the Court and the ethical obligations of the lawyers and the judge. But that same process, conducted correctly, inevitably has a terrible detrimental impact on children who are subjects of the process but not participants in it.

First, the process necessarily promotes a considerable period of instablility in the children’s lives, not knowing what the custody or financial arrangements will be, not knowing where they may live, not knowing which friends they will continue to see.

Second, the children are aware that their parents have had a fight, that considerable acrimony has developed between them, and that they, the children, have been a subject of that fight. This promotes considerable guilt feelings and lowered self-esteem in the children themselves. Their guilt feelings in turn may lead to anxiety and behavioral problems.^¹²

Third, at the end of the process, communications of the parents are inevitably very, very strained. People who have been calling each other whores and homosexuals one day are unlikely to be able to communicate responsibly regarding a critical education problem of their child the next day or even the next year.

Even the prospect of going through this “due process” may have a significant impact. One suspects that a number of parents who wish to preserve a meaningful relationship with their children – most often fathers – forego the litigation process and give up the opportunity for a meaningful relationship with their child to save themselves and the child from this essentially divisive activity. In fact, one may suspect that parents who are more sensitive to their children’s needs may forego efforts to preserve a full and significant relationship simply to avoid the pain to themselves and their children that this process entails. If so, that is indeed unfortunate, but it is an inevitable result of our current system, since the alternative, the type of litigation discussed above, is frequently even more detrimental to child-parent and parent-parent relationships.

For that reason, and because of the inherent problems of the system, efforts to simply tinker with the system adding new presumptions regarding child custody, or otherwise imposing new procedural hurdles to clear or facts to find will not be very productive in achieving the goals discussed above. It may simply promote more litigation and acrimony by adding more issues to dispute in an already complicated situation. Instead, a new system is needed to assess and resolve differences relating to child care responsibilities among separating parents.

A special childcare determination agency should be created. This agency could be an entirely independent entity not connected to the courts or any existing state agency. Alternatively, it could be an office associated with the courts but independent from it.

This office would have exclusive jurisdiction to determine all issues involved in cases of separating parents who have children. In effect, it would become the divorce agency in cases where children are involved. Ability to resolve all issues is essential, since questions of possession of the marital home, allocation of the marital assets, and amount of and responsibility for child support cannot be determined absent determination of child care responsibilities.

The agency procedures would be designed to achieve several goals which are incompatible with the litigation – due process – system:

Instead of filing a complaint, the first step in initiating the procedures of this office would be for one or the other separating parent – or preferable both – to appear at the office and meet with a counselor. The counselor would be a person with significant training in dispute resolution and background skills in law and child psychology.

The counselor who met with the parties initially would become responsible for determination of the child custody issue and the other issues inherent in termination of the marriage. This would result in the counselor gaining a much greater knowledge of the parties than any judge could possible achieve.

The counselor’s responsibility would be to attempt to determine and place top priority on the best interests of the children and to accomplish the four goals initially listed. After meeting with one party the counselor would then schedule a meeting with the other party, or both parties if deemed appropriate. From this the counselor would develop a plan for resolution of the issues and final determination of the disputed points. This plan would necessarily be different depending on the needs of each case. If parties were in general agreement, the matter might proceed to final determination quickly. No 60 day limit or other artificial time period could delay implementation of an agreement.

If there was dispute regarding the physical location of the child, appropriate psychological evaluations and other studies might be ordered. If the disputes were limited to economic issues, a plan would be developed to assure that the facts regarding the economic issues came before the fact-finder. Each case would be different. But the goal, in all cases, would be to resolve this dispute in ways which promote the four basic goals and others that might be set for particular cases.^¹³

The proposed system would have significant differences from present litigation oriented procedures:

1. The dispute resolver would be involved directly with the parties from the inception of the action, and the course of the action itself would be determined by the unique circumstances of the case.
2. Informal discussion and resolution of matters by agreement directly between the parties, with the dispute resolver present, would be promoted rather than deterred.
3. The dispute resolver’s responsibility would be to promote the best interests of the child and to become actively involved in achieving the goals discussed above. That person’s role would be very different than the passive and impartial role required of a judge.

Because of the less formal procedures, efforts would be made to assure final determination of unresolved questions more quickly than can occur in litigation. The result also hopefully would be a situation where the dispute process had less adverse impact on the children and created a greater likelihood that the parents could maintain a serious communicative relationship despite the breakup of their marriage.

Further, the dispute resolver would remain available to deal with difficulties as they arose after the separation.

Because the functions would be performed by an administrative agency, compliance with the strict formalities of court rules and due process could be avoided. Administrative agencies have always been accorder greater procedural flexibility in fulfilling their mission. Hale v. Petit, 438 A.2d 226 (Me. 1981); In re Maine Clean Fuels, Inc., 310 A.2d 736, 746-48 (Me. 1973).

There would be rights of appeal to the courts, but that appeal would be limited in scope in the same manner as one appeals from other administrative agencies, Cf. 5 M.R.S.A. S 11007-4-C. In essence, court interference could only occur where there are errors of law or where abuse of discretion is found.

This system would not be inexpensive. Top level, well-trained, and carefully selected people would of necessity be required to fill the dispute resolver positions. Further, other support staff would be needed. There might be some direct initial savings from this system, for example, the necessity for more judges, particularly at the District Court level, may be avoided. The greatest savings would be long-term, however, if the adverse impacts of marriage breakups upon children were avoided or reduced.^¹⁴

There is ample precedent for treating divorce cases differently and separately from traditional adult litigation where the interests of children are principally involved. In criminal law an entirely separate, less formal, and less punitive system has been established for addressing crimes committed by children, Cf. State v. Gleason, 404 A.2d 573 (Me. 1979(; In re Gault, 387 U.s. 1; 87 S.Ct. 1428; 18 L.Ed.2d 527 (1967); Shone v. State, 237 A.2d 417 (Me. 1968). There the precise procedural requirements of the adult system may be varied, subject only to the overall goal of promoting “fundamental fairness” for the child. State v. Gleason, supra at 580. The same changes can, and must, be made in current procedures for dealing with divorce to promote fundamental fairness to the child’s interest and that of both parents in the child.

1 The importance of placing the child’s interests first once that child’s placement or custody becomes a subject of legal controversy is emphasized in one of the most important texts on the subject: Goldstein, Freud and Solnit, “Beyond the Best Interests of the Child” (1973 ed.) “(T)he child’s interest should be the paramount consideration once, but not before, a child’s placement becomes the subject of official controversy.” Id. At 105. In a later and related book, the same authors again emphasized the importance of placing the child’s interests first once controversy begins and also urge that one of the goals of the process must be “to assure for each child and his parents an opportunity to maintain, establish, or reestablish psychological ties to each other free of further interruption by the state.” Goldstein, Freud, and Solnit, “Before the Best Interests of the Child,” Free Press ed. 1979 at 5 (emphasis added).

The first book established and the second book reiterated three guidelines for making child placement decisions once placement has become the subject of legal action:

“Placement decisions should safeguard the child’s need for continuity of

relationships.

Placement decisions should reflect the child’s, not the adults, sense of time.

Placement decisions must take into account the laws incapacity to

Supervise interpersonal relationships and the limits of knowledge to make

Long-range predictions.”

“Before the Best Interests of the Child”, supra at 6.

Both books were dedicated to a general discussion of all instances when child placement becomes a matter of official controversy – abuse and divorce or separation of parents, but the overall goals appear equally applicable in all cases.

5 A superb commentary on the realities of the adversary system has been provided by the late Justice Jerome Frank of the United States Court of Appeals for the Second Circuit in his somewhat iconoclastic book, “Courts on Trial: Myths and Realty in American Justice” (Princeton Ed. 1973). There the system is discussed most particularly in Chapter VI “The ‘Fight” Theory versus the ‘Truth’ Theory”, review of the entire chapter is recommended. A few summary paragraphs are quoted here:

When we say that present-day trial methods are “rational,” presumably we mean this: The men who compose our trial courts, judges and juries, in each law-suit conduct an intelligent inquiry into all the practically available evidence, in order to ascertain, as near as may be, the truth about the facts of that suit. That might be called the “investigatory” or “truth” method of trying cases. Such method can yield no more than a guess, nevertheless an educated guess.

The success of such a method is conditioned by at least these two factors1) The judicial inquirers, trial judges or juries, may not obtain all the important evidence. (2) The judicial inquirers may not be competent to conduct such an inquiry. Let us, for the time being, assume that the second condition is met-i.e., that we have competent inquirers –and ask whether we so conduct trials as to satisfy the first condition, i.e., the procuring of all the practically available important evidence

The answer to that question casts doubt on whether our trial courts do use the “investigatory” or “truth” method. Our mode of trials is commonly known as “contentious” or “adversary.” It is based on what I would call the “fight” theory, a theory which derives from the origin of trials as substitutes for private out-of-court brawls.

Many lawyers maintain that the “fight” theory and the “truth” theory coincide. They think that the best way for a court to discover the facts in a suit is to have each side strive as hard as it can, in a keenly partisan spirit, to bring to the court’s attention the evidence favorable to that side. Macaulay said that we obtain the fairest decision “when two men argue, as unfairly as possible, on opposite sides,” for then “it is certain that no important consideration will altogether escape notice.”

Unquestionably that view contains a core of good sense. The zealously partisan lawyers sometimes do bring into court evidence which, in a dispassionate inquiry, might be overlooked. Apart from the fact in a dispassionate inquiry, might be overlooked. Apart from the fact element of the case, the opposing lawyers also illuminate for the court, niceties of the legal rules which the judge might otherwise not perceive. The “fight” theory, therefore, has invaluable qualities with which we cannot afford to dispense.

But frequently the partisanship of the opposing lawyers blocks the uncovering of vital evidence or leads to a presentation of vital testimony in a way that distorts it. I shall attempt to show you that we have allowed the fighting spirit to become dangerously excessive.

Id. T 80 – 81.

However unpleasant all this may appear, do not blame trial lawyers for using the techniques I have described. If there is to be criticism, it should be directed at the system that virtually compels their use, a system which treats a law-suit as a battle of wits and wiles. As a distinguished lawyer has said, these stratagems are “part of the maneuvering . . .. . to which [lawyers] are obliged to resort to win their cases. Some of them may appear to be tricky; they may seem to be taking undue advantage; but under the present system it is part of a lawyer’s duty to employ them because his opponent is doing the same thing, and if he refrains from doing so, he is violating his duty to his client and giving his opponent an unquestionable advantage. . . “ These tricks of the trade are today the legitimate and accepted corollary of our fight theory.

Id. At 85.

Another distinguished observer of today’s legal system, Professor Geoffrey C. Hazard, Jr. of the Yale Law School offered the following summary analysis of the adversary system in his book “Ethics in the Practice of Law” (1978):

The adversary system is a procedure for trial of civil and criminal cases, and is the characteristic form of trial procedure in common law countries. Its essential feature is that a decision is made by a judge, or judge with jury, who finds the facts and determines the law from submissions made by partisan advocates on behalf of the parties. The system contrasts with what is generally called the inquisitorial system, used in countries of the civil law tradition such as France and Germany. In this system of trial, which might less invidiously be called the interrogative system, the judge determines the law and finds the facts by his own active investigation and inquiries at trial.

There is probably no “pure” form of either system. Even the most passive judge in an adversary system sometimes asks questions and even the most passive litigant in an interrogative system is something of an advocate when he gives his responses. Furthermore, there are different forms of adversary procedures that vary in the contentiousness of their mood, as interrogative procedures also vary in the intensity with which inquiry is pursued. Nevertheless, the adversary system is distinctive for the fact that the parties, through their lawyers, investigate the facts, frame the legal issues, and present the evidence to a passive tribunal that then reaches decision.

The adversary system has deep roots in the Anglo-American legal tradition. Its antecedent is often said to be the Norman trial by battle, wherein issues in doubt were resolved by the outcome of a duel. Perhaps more relevant is the fact that the key elements of the adversary system-the right to present evidence and the right to assistance of counsel-evolved as legal controls on government absolutism in seventeenth-century England. Thus, the adversary system is not only a theory of adjudication but a constituent of our history of political liberty.

The theory of adjudication in the adversary system, as usually stated, has two linked components. One is that party presentation will result in the best presentation, because each party is propelled into maximum effort in investigation and presentation by the prospect of victory; in contrast, a judge-interrogator is only interested in getting through the day and through his caseload. The other component of the theory is more complex and has to do with the psychology of decision making. It runs essentially as follows: Proof through evidence requires hypothesis; hypothesis requires a preliminary mind-set; if an active judge-interrogator develops the proof, his preliminary mind-set too easily can become his final decision; therefore, it is better to have conflicting preliminary hypotheses and supporting proofs presented by the parties so that the judge’s mind can be kept open until all the evidence is at hand.

In this version of the adversary theory, the role of the advocate is central to adjudication, because the advocate is a necessary orchestrator of the proof to be offered by a party. The prominence of the advocate in the adversary system explains in part why the legal profession as a whole strongly supports it. Here are other interpretations of the adversary system, however, that attach much less significance to the proofs. One of these interpretations emphasizes the importance of party participation, the idea being that a party’s presentation of the case on his behalf gives him a sense of involvement and control in the decision procedure. In this conception of the adversary system, counsel is and should be relegated to the rule of coach rather than protagonist, because if the lawyer is protagonist, his client’s role is secondary and passive. This form of the adversary system appears to have actually existed in English procedure of about the thirteenth century, but it is found today only in cases, such as in small claims court, where the amount involved is too little to justify hiring a lawyer to present them. These days, if litigation is taken to a lawyer, he takes it over.

These observations emphasize the fundamental incompatibility of applying tee adversary system of dispute resolution to achieving the proper goals of child custody determinations in parental separation cases.

7 In the preface to his widely respected text, “Trial Tactics and Methods” (2^nd ed. 1973), Robert E. Keeton, then a professor at the Harvard Law School and now a United States District Judge, offered the following observations on the importance of a lawyer fulfilling his obligations of advocacy within our adversary system:

Though it is unlikely that a trial lawyer would object to the emphasis on tactics in this book, other readers may, on the theory that such emphasis interferes with the goal of having legal controversies decided on the merits. They may fear that discussion of the trial of a lawsuit as a series of tactical problems will degenerate into a study of the techniques of shysterism. To them I offer not an apology but an affirmation. It is true that there is danger that injustice will be done if tactical considerations are placed above all others. But this danger is not created or increased by candid recognition discussion of tactical implications of trial methods. On the contrary, candid discussion should increase appreciation and understanding of the danger that already exists from opportunities to place tactical expediency above ethics of advocacy and above the aim of the whole judicial process-justice. Furthermore, this danger is only part of the total picture. Effective trial tactics also offer a positive contribution toward the aim of justice. In the typical case submitted on judgment of even the most earnest and competent person (juror, judge or lawyer) may be a bad judgment. The “adversary system” of trial is an effort to deal effectively with this problem of the inescapable danger of human error. An essential corollary of this system of striving for justice is that each litigant should have his case presented in the most favorable light. The system works best when both litigants have this done for them. Choosing, within the bounds of ethical limitations, the best method for presenting a case favorably is not merely the trial lawyer’s opportunity; it is his duty.

Id. At xi

13 In most cases one presumes that both parents will love their children and desire to continue custody and contact to the fullest extent possible. Likewise, one presumes that children will love both parents and want to continue meaningful relationships with each. The four goals initially stated, and the general direction of this paper, are based on those presumptions. However, exceptions make the rule, and there are many instances where mutual love and desire for continued substantial contact does not exist between parent (mother or father or both) and child. Salk, “What Every Child Would Like Parents to Know bout Divorce, supra, pp. 45, 93-98. Any system must be prepared to identify and accommodate such differing situations and modify the goals of the custodial arrangement in each case accordingly. A system which, for example, “presumes” that the joint custody should be awarded may force a mother or father, in one of these exceptional cases, to seek to continue a relationship that neither the parent nor the child really wants simply to avoid the stigma of having to directly admit that the relationship has failed in order to go against the grain of the presumption. The past and now widely discredited presumption that young children should be awarded to the mother should serve as enough warning of the havoc that artificial presumption can create when injected into child custody cases.

Despite the belief that such a gender based “presumption” exists or has existed in Maine, Maine law has long prohibited gender based discrimination in child custody matters, (see R.S. 1954 c. 166 $ 16). The current law, 19 M.R.S.A. $ 211 provides:

“The father and mother are the joint natural guardians of their minor children and are jointly entitled to the care, custody, control, services and earnings of such children. Neither parent has any rights paramount to the rights of the other with reference to any matter affecting such children.”

This law was originally enacted to replace the common law rule awarding custody to the father. Inhabitants of Trenton v. City of Brewer, 134 Me. 295 (1936); Shaw v. Small, 111124 Me. 36 (1924). Its history of implementation suggests how little impact statutory presumptions may have in determination of actual contested cases.