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Divorced from Reality

Divorced from Reality: Rethinking Family Dispute Resolution

Jane C. Murphy
Jana B. Singer
Copyright Date: 2015
Published by: NYU Press
Pages: 240
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  • Book Info
    Divorced from Reality
    Book Description:

    Over the past thirty years, there has been a dramatic shift in the way the legal system approaches and resolves family disputes. Traditionally, family law dispute resolution was based on an "adversary" system: two parties and their advocates stood before a judge who determined which party was at fault in a divorce and who would be awarded the rights in a custody dispute. Now, many family courts are opting for a "problem-solving" model in which courts attempt to resolve both legal and non-legal issues.

    At the same time, American families have changed dramatically. Divorce rates have leveled off and begun to drop, while the number of children born and raised outside of marriage has increased sharply. Fathers are more likely to seek an active role in their children's lives. While this enhanced paternal involvement benefits children, it also increases the likelihood of disputes between parents. As a result, the families who seek legal dispute resolution have become more diverse and their legal situations more complex.

    InDivorced from Reality, Jane C. Murphy and Jana B. Singer argue that the current "problem solving" model fails to address the realities of today's families. The authors suggest that while today's dispute resolution regime may represent an improvement over its more adversary predecessor, it is built largely around the model of a divorcing nuclear family with lawyers representing all parties-a model that fits poorly with the realities of today's disputing families. To serve the families it is meant to help, the legal system must adapt and reshape itself.

    eISBN: 978-0-8147-0894-1
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
    (pp. vii-viii)
  4. Introduction
    (pp. 1-4)

    Over the past three decades, there has been a profound shift in the way the legal system approaches and resolves parenting disputes. This shift has replaced the law-oriented and judge-focused adversary model with a more collaborative and interdisciplinary regime that deemphasizes legal norms and discourages third- party decision-making. Although the paradigm shift has focused largely on divorce-related parenting disputes, it has both borrowed from and influenced other areas of family law, including juvenile justice and child welfare proceedings.

    Over this same thirty-year period, the structure and composition of American families has changed dramatically. Divorce rates have leveled off and even...

  5. 1 Historical Overview
    (pp. 5-25)

    The paradigm shift that we describe in this book is principally a contemporary phenomenon, but it has a number of historical antecedents. These precursors include important doctrinal developments in both the nineteenth and twentieth centuries, which expanded and transformed the judicial role in divorce and custody disputes, ultimately making courts the primary guardians of children’s welfare in the face of family breakdown. In addition, the therapeutic underpinnings of progressive-era juvenile justice reform migrated in the mid-twentieth century from the delinquency to the divorce and custody context. Although these therapeutic principles initially foundered on the shoals of no-fault divorce, their migration...

  6. 2 The Critique of the Adversary System and the New Paradigm as a Response
    (pp. 26-36)

    Today’s family dispute resolution regime rests on a sharp and successful critique of adversary family justice. That critique highlighted the detrimental impact of adversary processes on children and on disputing families. It also emphasized the burdens that the adversary regime imposed on the judicial system and the negative impact of adversary practice on family lawyers and on the legal profession more generally. The paradigm shift in family dispute resolution developed largely as a response to this critique. This chapter examines the late twentiethcentury critique of adversary family justice and explains how it has shaped today’s dispute resolution regime.

    Critics argued...

  7. 3 Expanded Courts with Diminished Legal Norms
    (pp. 37-59)

    At the heart of the paradigm shift in family dispute resolution is a striking juxtaposition. The new paradigm expands the vision and role of family courts at the same time as it reduces the primacy and relevance of legal norms. The result is a more powerful court system that is less constrained by legal limitations than its more traditional predecessor. While such an untethered court system may benefit families and children in need of services, it also poses substantial risks, both to the individuals and families it serves and to the larger legal system.

    A core element of the new...

  8. 4 The New Vision Meets the New Family
    (pp. 60-82)

    The composition and structure of the families who appear in family court has changed dramatically in recent decades. As one commentator describes it, “a turnover in our intimate partnerships is creating complex families on a scale we’ve not seen before.”¹ In addition to resolving conflicts between divorcing parents, family courts now deal routinely with child-related disputes involving unmarried parents, stepfamilies, gay and lesbian families, and third-party caregivers. Moreover, both the number and the percentage of family litigants who lack legal representation have skyrocketed. In this chapter, we explore these changes in family structure and circumstances, and analyze their implications for...

  9. 5 From Gladiators and Umpires to Problem-Solvers and Managers
    (pp. 83-109)

    The shifts in family dispute resolution described in the preceding chapters have important implications for lawyers and judges. In particular, these changes challenge the traditional understanding of lawyers as zealous client advocates and the traditional role of judges as passive and impartial umpires. While lawyers continue to represent clients in the new paradigm, they are called on to do so in different or expanded ways. In addition, the current regime invites lawyers to assume new roles as facilitators and dispute resolution neutrals. Similarly, while judges continue to adjudicate the small percentage of family cases that go to trial, they have...

  10. 6 The Influence of Comparative and International Family Law
    (pp. 110-127)

    The United States is not the only country to have experienced a “velvet revolution” in family dispute resolution.¹ Similar changes have taken place in countries throughout the industrialized world, particularly in western Europe and the British Commonwealth. Moreover, the growing importance of international law norms regarding children’s participation in legal proceedings has influenced the shape of family court reform in a number of jurisdictions outside the United States. American judges, court reformers, and academics have been exposed to these developments through collegial exchanges, journal articles, and professional and scholarly conferences.² In this chapter, we describe these international and comparative law...

  11. 7 Creating a Twenty-First-Century Family Dispute Resolution System
    (pp. 128-156)

    The late twentieth-century paradigm shift that we have analyzed was designed primarily to address the shortcomings of the adversary system as a means of resolving divorce-related parenting disputes. As such, it focused primarily on developing court-based processes and services designed to reduce parental conflict and to promote positive co- parenting relationships between partners who had raised children together. Courts also saw dissatisfaction with adversary justice as an opportunity to develop dispute resolution alternatives that could move cases more quickly and inexpensively through the judicial system. While these remain worthy goals, they are not sufficient to create a just and effective...

  12. NOTES
    (pp. 157-208)
  13. INDEX
    (pp. 209-218)
    (pp. 219-219)