How can we change divorce court to make it easier on the children?

  • Institute a “loser pays the prevailing party’s attorney’s fees” rule.
  • make divorce cases more litigant focused and tailored to meeting their needs and the needs of their family, instead of tailoring the cases for the convenience of the courts and lawyers;
  • focus making divorce cases take less time to work their way through the court system. This reduces anxiety and emotional distress, reduces costs, promotes just and equitable outcomes, and helps prevent other abuses of the legal system caused by delays;
  • require judges to make commendably detailed written findings of fact and conclusions of law to support their rulings on every issue in a divorce case;
    • rather than make the standard a negative one (e., the ruling stands unless it can be shown to be an abuse of discretion) require that they show that their rulings are as equitable as they could reasonably make them for the parties and their children under the circumstances;
  • subject to rigorous, forensic psychological examination and evaluation every litigant in a divorce case in which child custody is an issue and where accusations of any kind of physical, emotional/psychological, sexual, financial, or any other kind of abuse of spouse or children are made.
    • Find out whether the allegations are true
    • Find out if the accusations are sincere or motivated by malevolence and/or intent to defraud the court
    • Why? Because:
      • if you are falsely accused of abuse, it will be the seriousness of the allegations, as opposed to the substance of the evidence, that will determine how your judge rules.
      • far, far too often courts, when confronted with allegations of abuse, take the easy way out and err on the side of caution. What I mean is that the courts will analyze the situation like this: “I don’t want to determine that there is insufficient evidence to support these abuse allegations only to have a child or ex-spouse wind up in the hospital or dead later. If that happens, then it looks like I failed to protect the ex-spouse and/or child, which will look like I failed to do my job competently. I may end up the subject of news reports that humiliate and embarrass me and lays my job as a judge in jeopardy. But if I take a “better safe than sorry” approach, then while I will be violating my oath of office by infringing on the parental rights of a parent who I am not convinced is an abuser (and thus denying the children that parent’s loving and beneficial impact on their lives), that would be nigh onto impossible to prove (and stories like this rarely makes the news anyway), and I so I all but completely avoid the risk of being faulted for failing to protect. That settles it. I will err on the side of caution.” That’s a gross miscarriage of justice, but it’s far too often what judges do in these circumstances.
    • All but mercilessly punish litigants and witnesses who lie to the court. The purpose of our justice system is to get to the truth and then apply the law based upon the facts as best we can know them. “Perjury is considered a serious offense, as it can be used to usurp the power of the courts, resulting in miscarriages of justice.

Utah Family Law, LC | | 801-466-9277

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