Wednesday, November 23, 2011

What the System Creates

I recently attended the New Zealand Family Law Conference. As an outsider, I noticed a few things. First, I know nothing about New Zealand trust law, but the presentation about Family Trusts was still interesting. Second, and this really came as no surprise, family law is the same whether it happens in New Zealand, the United States, or anywhere that allows divorce fairly easily and especially in places that are, at their core, adversarial.

It came as no surprise, therefore, that the final presentation of the conference was about dealing with difficult people, specifically about recognizing and responding to people with diagnosable personality disorders. It was humorous as the presenter showed video clips depicting characters who fit each stereotypical diagnosis. But we all know that dealing with people who have personality disorders is rarely funny and sometimes downright frightening.

A few days after the conference I read an article called “Why I Feel Bad for the Pepper-Spraying Policeman, Lt. John Pike.” For those of you who do not know who Lt. John Pike is, he is a police officer at the University of California Davis (or he might be a Davis City Police Officer) who pepper-sprayed student Occupy protestors while they were sitting down and already handcuffed. There is a photo in the article. Since the incident, there have been cries for his termination, and people have called for the UC Davis Chancellor to resign as well. As the article says, he “has become the new face of evil among people following the Occupy protests around the country.”

But the article presents a different scenario. Lt. John Pike is a byproduct of a system that has gotten completely out of control. More importantly, the article suggests that while being pepper sprayed is awful, what happens to a normal guy like Lt. John Pike to turn him into someone capable of nonchalantly pepper spraying restrained students is possibly much worse.

And no, I am not suggesting Lt. John Pike has a diagnosable personality disorder. I am, however, suggesting that we look to the system as part of the cause of the personality disordered clients we see in the family law system. These people come to the system with certain propensities, have been harmed by other systems all their lives, and then are asked to be rational and non-emotional during one of the most difficult and emotionally intense times of their lives. Do we really expect to get different results?

The system fails these people. Lawyers, who are often the front line of the public’s interaction with the family law system, are never trained to understand these people. Lawyers are part of a system that asks us to rip emotion and humanity out of the case in order to focus on “relevant facts.” While many, and probably most, family law professionals take up the work is because they care deeply about people, the system ensures we take a “healthy” distance from that caring.

And so we are left with a system attempting to get people with personality disorders, often resulting from incomplete emotional attachment as children, to emotionally detach and combining them with lawyers forced to detach from the human side of the case to focus on the legal side. We stir these groups together with a system that is overburdened and has no time or resources to respond to the people involved.

What do we expect to happen?

We should be asking a different question. How can we learn to respond to these issues? How can we create a system that is more responsive? How can we have more interdisciplinary understanding? How can we provide the space for clients to feel heard and understood? There is no question that dealing with people with diagnosable personality disorders is difficult, extremely difficult. But how much of how they act is a direct result of the system in which we force them to operate?

What do you think we could do to improve it?

© Rebecca Stahl 2011, all rights reserved.

Wednesday, September 14, 2011

Good intentions gone awry

I am going to make a wild prediction. Everyone reading this thinks that child sexual abuse is disgusting, and we should do everything in our power to ensure it does not happen to children, and if it does, everything in our power to ensure it does not happen again by the same perpetrator. I may be wrong, but I cannot remember ever meeting anyone who thinks sexual abuse is something positive for those involved (and yes, that includes the perpetrators as well, but that is a different post topic).

Based on this grandiose and general statement, it should come as no surprise, therefore, that the legal profession, and the child welfare profession have teamed up to ensure that children know about the dangers of physical and sexual abuse. We have entire teams of police, social workers, lawyers, etc. working together in forensic centers designed to interview children safely and effectively. As adults, we want to do everything we can to protect children from being harmed and help those who have already been harmed. We take the problem seriously . . . and we should.

But what happens when all those good intentions blind us to our own fallibility as humans, and the system breaks down?

That is when you get the situation expressed in a New Zealand book about the largest child sexual abuse case in New Zealand history. The book is called A City Possessed, and the convicted child molester is Peter Ellis. This is a book everyone working in the family or juvenile court system should read. It is now a decade old, and parts of the story are unique to the New Zealand situation, but the overall lesson is one we should all heed. We cannot let our good intentions blind us.

As someone who grew up with discussions about family law around the dinner table, who represents abused and neglected children, and who believes that courts do far more good than harm, this was a hard book to read. The book paints a grim picture of those involved in the Peter Ellis case; it discussed parents asking leading questions of their children and sharing information amongst themselves, repeated “forensic” interviews lasting an hour + at a time with many leading questions throughout, and evidence of these interviews denied to the jury except where the children allegedly disclosed abuse. That would have been bad enough, but the cover-up and inability to say, “the system made a mistake” went all the way up to the Minister of Justice at the time.

I could go on and on about this case and the book, but instead I urge you to either read it, or remember times in your own life where you may have gotten momentarily (or longer) blinded by your own beliefs, or your own gut reactions of, “child abuse is so gross!” that you failed to see that the accused may have done nothing. There is no question that we want to protect children, and there is little debate that we should do all we can to ensure that they are protected. The problem is when that belief stops us from being rational.

We work in an emotionally-charged area of the law, and it is important to recognize those emotions and use them. It is important to allow them out. But it is also important to remember that they cannot drive our every action. We must be willing to be wrong. We must be willing to see the entire picture. I know that the problems articulated in this book have been remedied across the world in many ways. I know that most of us do our best to ensure that innocent people are not wrongly convicted. I know that most people in the family and juvenile courts have good intentions.

None of that means, however, that we never make mistakes. None of that means that we never lose sight of the notion that people are innocent until proven guilty. Of course the book mentions other cases of misguided abuse allegations, including the McMartin case in the United States. So, we know that even though these facts might be unique to New Zealand, the problem is universal. This book was a reminder to me, a difficult reminder for sure, but I think a necessary one, that we must be vigilant and careful about our own ability to jump to conclusions.

Do you have other books and stories you would like to share? Please put them in the comments. I think this is one of the most important topics we face as a profession, and we should not be fearful of acknowledging that mistakes can be made.

Thank you!

© 2011 Rebecca Stahl, all rights reserved

Wednesday, August 3, 2011

A "Divorce Pill"? Really?

Family law is different than other areas of the law for many reasons, not the least of which is that it simply does not “fit” into the idea of laws, per se. But perhaps more importantly, family law enters the mainstream more than any other kind of law. Everyone knows someone who has had a bad experience in family court. Everyone has an opinion about “divorce attorneys.” Everyone has an opinion about families. In short, family law shows up in the court of public opinion more than any other kind of law.

I should not be surprised, therefore, that I saw a link to this website on the Our Family Wizard LinkedIn page. The link is to a company that makes a Divorce Pill. Tag line: “get past your past.” Shocked yet? Sadly, I am not. But I am concerned.

In my parallel life, I am a yogi. Less publicly, though if you talk to me in person, I am a natural food, natural health, etc. proponent. To be perfectly honest, I spend an inordinate amount of time reading about health, wellness, wellbeing, herbal/holistic remedies, and natural food. With that background, I am not at all surprised by the ingredients in this “magic pill.” They are: St. John’s Wart, 5-HTP (actually I am not familiar with that), Korean Ginseng, Valerian Root, and Passion Flower. If I were to make a stress-reducing, anxiety-reducing herbal concoction, these ingredients would be there, perhaps not exactly in this concoction, but there is nothing unusual about them.

So why am I troubled? Should I not be excited that herbal remedies are being promoted as the magic answer rather than Xanax? 

I am troubled by the notion that divorce is something that should be “gotten over.” I am troubled by the quick-fix mentality. I am troubled that we, as family law professionals, have at times bought into the mentality that those going through the system should get over it as quickly as possible. We have tried to speed up the court process, which is always done with good intentions of helping the litigants, but it also forces them to make decisions when they are at their most unstable points emotionally.

Where is the balance? Where is the sense that we are dealing with people and emotions rather than rational minds a pill can “fix”? Where is the humanity?

Those who work within the family law system should, I think, encourage the parties involved to find ways to help themselves. Exercise, yoga, friends, travel, etc. are on that list. Herbs, acupuncture, and perhaps even short-term pharmaceuticals may also be on that list. But there is no one-size-fits-all answer. Each person is different, and that means that we, as professionals, have to adjust to those differences.

Apparently it also means that we have to explain that all the information in the media, all the blogs, websites, and now pills, are other peoples’ perceptions. We have an obligation to encourage people to seek what works for them. I am troubled by this pill for so many reasons I have not put here, but as someone who works in the system, I see its ills being how we respond to it.

What do you think? Does a “Divorce Pill” affect us as professionals?

Your thoughts, as always, are welcome. 

© 2011 Rebecca Stahl, all rights reserved

Wednesday, July 13, 2011

What if they are telling the "truth?"

Over on my other blog, Is Yoga Legal, we have been discussing memory, specifically its fallibility. This post is a modification of the third post focused on what to do with the knowledge that our memory is fallible. 

Memories define our stories about our lives; they define who we are. Unfortunately, they are notoriously unreliableThe legal profession is one of stories. And when it comes to stories, family law is at the top of the list.  Everyone has their own story in family law, and usually the two parties have stories that drastically differ. Both sides tell their story. Most of the time, each side assumes the other one is lying, and the neutral people (evaluators, judges, child’s representative) assume they are both lying.

But what if both sides are telling the “truth,” albeit their own truth? If we can implant false memories in others, surely we can implant them in ourselves to strengthen our case when our emotions are flared. What if their memories are exactly what they are telling the court? How are we, as professionals, including neutrals and advocates, able to discern these stories and find a way forward in the case? Is the system as it is currently set up, in an adversarial fashion, able to understand this?

We are told from our first moments in law school (or in forensic training of any type) in places where the adversarial system predominates, that the adversarial model's greatest strength is its ability to get at truth. We keep out evidence that we deem unreliable, we allow both sides to present their story and question the other side’s story, and we ask a neutral observer (or observers in the case of a jury) to determine who is telling the truth and who should win. But the entire system relies on a belief that truth can be discerned. Moreover, it assumes people lie. That second assumption does not bode well for people who want a feeling of justice being served when they believe they are telling the truth.

More and more brain science is discovering that people do not necessarily lie; people are deluded by their brains. So, if we do not believe them, it does not mean they understand and move on. It means that they feel that justice was not done, and according to their own memories, they are right, even if external circumstances may not support their internal memories.

Thus, as professionals, do we have an obligation to inform one party that the other party may not be lying? Do lawyers have an obligation to question their own client’s views of the truth? Does that border on unethical? Should we be concerned about what our ethical rules require if it does? Do judicial rulings need to focus less on which side is telling the truth, which side is more believable, and focus more on ensuring that both parties feel heard and believed? As we discussed before, parties often just want to be heard, and they want a place to vent their emotions. Is our attempt to find truth among these varied accounts in vain?

Perhaps we cannot change the system overnight, but we can change how we as professionals respond to the growing scientific evidence that memories are fallible. As advocacy professionals, we can understand that getting caught up in our own client’s story as though it were gospel may not be the best way to handle a case. As neutral professionals, we can recognize that just because the stories do not synthesize, it may not be true that either side is lying, at least not intentionally so. As colleagues working to resolve these difficult cases, we can discuss cases and situations with more perspective, understanding that there may be more to the story than we first perceive. Most importantly, we must be willing to let go of our own version of the family law story. We must be willing to look at moving forward in an entirely new light.

It would be great if we could help the parties recognize that they might not be each trying to harm the other, but might just remember facts differently. But sometimes, the stories are too ingrained. (Here is a link to a great article on the topic). But the shift is coming. In the past, this information was mostly held by the psychological community, but today, it is in our headline stories. People may be more willing to hear it as a critical mass begins to understand just how malleable our brains really are. 

Of course, we still have to resolve these cases, and that means that we have to find some semblance of truth in what really happened in the past. But more importantly, we have to determine what is going to happen going forward. The fact that parties are before a court means they are in a period of transition. This is an opportunity to create new memories and new stories. If we as professionals model the compassion and understanding that everyone remembers the world in their own way, we can ensure that the parties are heard, have an opportunity to vent, but also have an opportunity to heal and move forward. 

© 2011 Rebecca Stahl, all rights reserved

Friday, June 17, 2011

A place to be heard

“Be prepared for deep anger, high emotion, blunt accusations, unashamed finger-pointing and heavy language. Let them go and let them get the pus out. That is how they will come to grips with the kaupapa. You will be surprised how often bitter enmity is brought out, debated and then buried to be supplanted by the catharsis of an emotional reunion of the whanau. The Mediation Conference does not allow for this process to take place.” John Te Manihera Chadwick "Acting as Counsel for the Child in Difficult Cases - He Mea Taka I Te Raruraru: The Intractable Case" (paper presented to New Zealand Law Society Family Law Conference, Welington, October 1995)

This quote is about the hui, which at its basic means nothing more than a gathering at a Maori Marae, a Maori meeting house.  The kaupapa means topic, and whanau means extended family. Essentially the author is saying there is great benefit in providing people a place where they can gather and lay out their emotions, a place that has certain rules, but provides the unloading that can finally lead to catharsis.

To a Westerner, this is almost blasphemous. We talk about the Golden Rule and turning the other cheek. For the record, I believe these are great ways to live, but they fail to answer our deepest need – our need to be heard. What would happen if we gave people this opportunity to be heard?

My work on children’s right to a lawyer in day-to-day care or custody cases has, over the years, left me with many reasons that children should have a lawyer in these cases, but none is more important than the fact that children have a right to be heard. Children do not necessarily need to have their wants and needs carry the day; they need to know that someone listened to them. There may be a shortage of research on the topic, but all, and I mean all, of the research that has occurred shows that the overwhelming majority of children just want someone to hear them. The outcome matters less, for some, it does not matter at all.

Why do we think it is different for adults?

I know it is not novel to suggest that the courtroom, especially the adversarial courtroom, is nothing more than a stage for people to vent, to make themselves heard, a place where their version gets just as much time as the ex-spouse’s version. Professionals talk about ways to stop this, making “relevance” objections and trying to get people to work it out in mediation. We remind parents that the past no longer matters, and ask them to focus on their children as they move forward.

The problem is that these parents, these parties, these litigants, never get to tell their story. Instead it becomes legally irrelevant to those who claim to be helping them navigate the most emotional process of their lives. I am not a psychologist; I leave that to others in the family. I am, however, a long-time yogi, and now a yoga teacher. Perhaps the greatest teaching I have obtained from yoga is that we can hold this stuff inside for years, but eventually it is going to come out, and when it does, it is not always pretty, but getting it out allows the healing to begin. Are we willing to give people a place to let this out? What would that look like?

I once attended a presentation by a lawyer/mediator who once allowed her client to scream at her as though she were his soon-to-be ex-wife for exactly 1 minute. He got out his anger, and then he was able to go back into the room and continue the mediation. The case settled. Is the hui example a better one? Place everyone in a room and let them go at it? What rules would we impose? How are we willing to ensure that people can speak their mind, speak their story, voice their need to be heard?

I do not normally advocate for screaming matches, but there is a fundamental problem with a system that says X while the parties need Y. We are not comparing apples and oranges; we are comparing apples and outer space. I know there are family law lawyers who will not represent a client who is not seeing a psychologist. I know there are family law lawyers who will listen to their clients espouse their hatred for the other party – at their full hourly fee. But that does not seem to be enough. The courtroom remains a place where people go just to have a stage to tell their story.

What if we gave the parties a safe place to have their story heard? What if we actually provided them 5 or 10 minutes to say what they need to say? What if the system allowed the catharsis to begin? Might we see a different situation in the courtroom? Might we never have to see the courtroom?

A hui has particular rules that must be followed. It is not a place where the parenting plan will be decided. It is not a place where the parties will decide who gets to keep the autographed World Series baseball. It is, however, a place where the issues that make those decisions so difficult can be addressed. Provide a forum for someone to be heard, truly listen, and then move on. Let the pain come out . . . but outside the courtroom. Then, when we tell them that their facts are “irrelevant” they will know we do not mean the fact that they have these emotions is irrelevant, but rather that those were heard in a separate setting, and what matters to the case is about moving forward.

I do not mean to say that this is an absolute fix to a broken system, but it is something to ponder. The first post on this blog asked, what type of system would you create for these families moving apart if you had never heard of the adversarial process in the first place? Would your vision have a place to vent emotions? If so, how would you do it? I am asking because I think, in theory, it is a great idea. In practice, however, I do not know how it could work.  

What do you think? Is there a place in the system to allow the parties to vent? Do you see a better way to do it?

© 2011 Rebecca Stahl, all rights reserved

Tuesday, June 7, 2011

Family Law: Definitely Not A Bright Line

It is all too easy - and it is understandable - where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation.” – Judge Hardie Boys, M v Y, [1994] New Zealand Law Reports 527, 533.

Although I do not want this blog to focus exclusively on Parental Alienation Syndrome, it seems to continue popping up in front of me, and it is an important topic. If for no other reason, it exemplifies many of the inherent problems in the current family law system. The quote above is a perfect example of the problems it can engender – when we focus on alienation as a defined “thing” for lack of a better word, we lose focus on the welfare and best interests of the child. When we focus on the behaviors, issues, and complications that arise in a family where alienating behaviors are occurring, that is where we begin to focus on the individual child’s welfare and best interests.

So how did we get here? How did we get to a system that strives to define and label rather than work with and understand?

The problem, as I see it, is two fold. First, the system began long ago as a system of divorce, and in order to get a divorce, one party had to prove the fault of the other party. Fault-based divorce had many problems, and honestly, I am not the best person to be discussing them; most fault-based divorce schemes went out of fashion around the time I was learning to speak. By making divorce “no-fault,” people were able to divorce when they could prove irreconcilable differences, which meant no more mud slinging, right?

Sadly, emotions do not just disappear, and instead of the mud-slinging being about one party’s adulterous behavior, it was squeezed into another realm – this time into who makes a better parent. Just because the law no longer requires one party to be at fault for the divorce, however, does not mean that human beings do not like to think that someone is at fault. So the conversation has moved into a realm of “proving” that one parent is bad. Custody cases become about whether a parent spends too much time playing Farmville on facebook and not about the child. In other words, “divorce court” remains a place where adults get to play out their unhappiness with each other all under a guise of arguing about their child’s best interests.

We as professionals get caught up in this partly because the issues being discussed, at some level, do matter to the child’s welfare and best interests. The problem is that we get more focused on whether the allegation is true than the fact that making the allegation is, itself, sometimes harmful to children. This is not to say that these issues should be ignored. It means we need to fully understand their ramifications before just assuming that the truth of the allegation = bad parent. 

And this brings us to the second reason we get too caught up in labels and definitions. They are simple. The law likes bright lines. Just ask Justice Antonin Scalia. Unfortunately, families and emotions cannot be placed into neat little boxes. The bright-line rules that work to tell us whether a contract was breached cannot answer the question of whether a parent who might have been distant to a spouse is going to continue being distant to a child in the future. We cannot compare those apples to those oranges.

But the nice thing about bright-line rules is that they are simple. They do not require us to get our hands dirty. They do not require us to take the time to understand peoples’ actions. Instead, we can say, “if you play Farmville more than 2 hours per day, you are a ‘bad’ parent.” Does this work for any situation we face? Certainly, parental alienation syndrome, along with abuse and true neglect, are much bigger issues than whether a parent spends too much time on facebook, but the point is the same – the results of the behavior are what matter, not whether the behavior is simply “true.” We may never know the truth, but we must take the time to understand the people in front of us in order to understand what the real issues are.

We cannot let the parties define them for us, based upon definitions we have created that may or may not explain their situation. The biggest problem with bright-line tests is that they have no place for nuance, and if there is one definition to which I am happy to subscribe it is that family law = nuance. There is no such thing as bright lines in family law.

What do you think? 

© 2011 Rebecca Stahl, all rights reserved

Tuesday, May 31, 2011

A Community to Inspire

I feel incredibly privileged and lucky to be spending a year in New Zealand having no job but to learn new ways to make the family law system work for children and families. While my thesis is about the role of the lawyer for the child in what much of the world still calls custody cases, I started this blog because I keep coming across ideas that I want to share, and I hope that people will use this space to share their ideas, and together we can create a place to brainstorm and learn the best practices being utilized around the world.

In other words, I want this to be a community. I want it to be a community that reignites the passion and energy that brought so many of us to family law in the first place. I want it to be a community to learn what someone is doing down the street . . . or across a vast ocean. Together, we can make the system work. In my other blog, I talk a lot about community. My favorite post about community occurred just about a year ago, and today is the day to share that sense of community on this blog.

The post last year was a reflection on the Association of Family and Conciliation Courts Conference. I have been lucky enough to have grown up in AFCC; my father has been a member my entire life. But last year, for the first time, I felt like my own person there, and the community building, from teaching yoga in the morning, to hanging out in the hospitality suite at night, taught me that community is what makes change. Community is what inspires.

For anyone who has attended an AFCC conference, or perhaps another professional conference, you know that the energy they inspire is energy that translates to your practice back home. The discussions with colleagues old and new is a chance to learn about ideas and learn how other people deal with the stress that being a family law professional can create. It was at last year’s conference that I met a researcher here in New Zealand who helped me launch my survey to the lawyers for children. It was at last year’s conference that I first taught yoga to a group of people not during my teacher training.

In other words, community is about growth. It is about pushing our limits and finding out that we have support when we think it might be lacking.

I do not think there is any substitution for a real, in-person conference. Sure, we can get our continuing education credits online, and my hope is that this blog creates some sense of that same community, but it is not the same. The hope is that this blog can help continue the discussions that begin in person. I know that post was a year ago because this year's conference is this week - always the Wednesday - Saturday following Memorial Day. Although I am sad to be missing the conference this year, I know that it will be a source of inspiration to all who attend.

Come back here and share your inspiration with the rest of us. Only together can we ensure that the system we build is one that truly works for families, children, and our own sanity. 

What is your favorite way to engage with community, professionally or otherwise? Do you find that it helps you do your work better? What inspiration do you find in community?

© 2011 Rebecca Stahl, all rights reserved