By the Honorable Gail L. Perlman, Retired
Families in the midst of a divorce, separation, or post-divorce legal process don’t usually thrive in a hostile, polarized, legalistic environment as they carve out a pathway to the new lives they’ve chosen. In its focus on “you versus me,” the adversarial atmosphere very often poisons any chance for the parents to achieve a collaborative coparenting relationship. It does not offer them the opportunity to learn the communication skills so crucial to their children’s well-being. Nor does it re-direct their tense adult relationship to focus on the ever-changing needs of their children. The children, though they almost never set foot in the courthouse, often feel the tensions built up by the polarity between their parents and can be severely emotionally harmed by the process and its aftermath. But our law requires that parents, married and unmarried, use the legal system to obtain their divorce, separation, or post-judgment remedies.
How does a court—a long-established model of adversarial problem-solving—transform itself in order to do no harm to the parents and children it serves? Enter The Family Resolutions Specialty Court (FRSC).
The Hampshire Division of the Massachusetts Probate and Family Court, under the leadership of First Justice, Linda S. Fidnick, has developed a new model for addressing the legal conflicts of families with children. Inspired by similar programs attempted in Australia and Denver, Colorado, FRSC maintains a strong focus on the wellbeing of the children by offering the following elements of an entirely re-designed process:
- The program is purely voluntary. The parents may opt into FRSC and a
parent may stop the process by opting out. If someone opts out, the family returns to the traditional court model with a different judge.
- The Family Consultant (FC), a mental health professional based in the
court, assists the parents in each case to assess the needs of each family member and to obtain help for any family member who needs it (a financial adviser, an adult or child or couples therapist, etc.). The FC meets with the parents together and with each parent alone near the beginning of the process to assess the family’s strengths and challenges. She continues to meet with the parents in additional meetings for as long as necessary to work out the best solutions to the identified family needs and to coach the parents on best parenting practices in light of the particular needs of each child.
- For every family, an attorney is appointed for the children. The child’s
attorney ensures that the child’s voice is brought into the process in a way that is appropriate for that child.
- A mediator is assigned to each family. The parents voluntarily agree to
mediation as a part of the Consent Agreement they sign when they enter FRSC. From early in the process, the family works with the mediator toward solution of the unresolved issues. The early mediation intervenes to reduce or end the lengthy period of anger, anxiety, and hardening of positions that often characterize the bulk of the traditional process.
- A Probation Officer (PO) is assigned to each family for several purposes: The PO conducts an initial screening to check whether there is any history of domestic violence in the family and to look for other issues of capacity that might inhibit or preclude successful participation in the process. The PO helps the parents to carry out the requisite exchange of financial and property information so that each can participate knowledgeably in planning the family’s financial future (child support, division of marital property, alimony if applicable, etc.). The PO also troubleshoots crises if they arise during the process, guiding the parents to the FC or the mediator or even conducting a Dispute Intervention in an emergency.
- The FC, the mediator, the child’s attorney, the parents’ attorneys (if any), the PO and the parents themselves form a collaborative team to guide the family through the process. Any member of the team can request a meeting at any time. A meeting might deal with an immediate issue in dispute (like holiday parenting time) or be organized around helping the parents understand and create a plan for addressing a particular emotional, social, or educational need of a child. Meetings are also held to prepare for Court Conferences.
- Lawyers for the parents are encouraged to act more as counselors than as advocates in the FRSC process, teaching the parents their rights under the law, supporting them in learning to speak for themselves in the process, helping to identify the issues that need to be solved, ensuring the complete disclosure of relevant information, and demonstrating respect and concern for every member of the family—including the other parent.
- The team meets with the assigned judge from time to time in Court Conferences, which are informal meetings held in the courtroom and are on the record. The Judge conducts the Court Conference by sitting with the team around a table. Commenting on pictures of each child that the parents have brought with them, the judge explores with the parents their hopes for themselves, for their children, and, importantly, for the other parent. The judge listens primarily to the parents directly, but also obtains updates from each of the professionals on the team. The Judge, in the first Court Conference, learns about the issues the parents are working on and helps with questions and makes suggestions to urge the matter toward whatever next steps make sense for the family at that time. The judge makes Temporary Orders after each Court Conference, which set out any agreements already reached and describes the agreed-upon tasks to be accomplished and established by the next Court Conference date. The Judge enters a Judgment at the conclusion of the last Court Conference. During the entire FRSC process, the Rules of Evidence are suspended unless an attorney requests (or the Judge observes) that some greater formality is needed for one or more issues being addressed. At no time are formal motions filed; at no time is a formal trial held.
An Advisory Board, made up of a wide variety of professionals from the community, guides FRSC and has been generous in its advice and availability to the project. The involvement of the Advisory Board has generated a link between the Court and the community that strengthens the community’s awareness of the Court’s functions and its ability to adjust the traditional process to meet the needs of families in conflict.
One unanticipated result of the FRSC process is that cases are resolving much more quickly than is common in the traditional track—sometimes even in half the time. This efficiency occurs even with, or perhaps because of, the intensive personal attention given to each family by the FRSC team.
Here are some comments from parents who have completed the process:
“I now have much more contact with my children than when we began. . . . We have been able to agree on many issues that we did not agree on before.”
“FRSC helped ensure my child was enrolled in a high-quality pre-[kindergarten] program which has transformed our entire family’s quality of life and gave our child a strong foundation at a time when he was most vulnerable to instability.”
“This process was very beneficial to myself as a parent and was minimally stressful. . . . It helped me to learn to never speak poorly of her dad in front of her . . . We fight almost never now and seem to be more understanding towards each other. . . . I would STRONGLY recommend this process to anyone getting divorced who have children. I hope this becomes the standard.”
“I have learned a tremendous amount through the programs associated with FRSC both as a parent and individual. . . . [FRSC] has helped to make me the best father I can possibly be. . . . We still have a long way to go but I am hopeful that in eliminating much of the negativity that typically surrounds divorce, it will allow us to become great co-parents. Truly life changing. I hope this continues and that all divorces with children can be done in this manner.”
To date, parents and many members of the team have expressed widespread satisfaction with the FRSC model. The highlights have been the centrality of the parents’ voices, the attention to the voice of the child, the collaborative work of the team members, the lawyers’ commitment to the counseling rather than the adversarial aspect of their expertise, the emphasis on the emotional needs of the family members and on best parenting practices, and the informality, but thoroughness of the process.
FRSC has served families of a wide variety of socio-economic, religious, gender identified, and educational backgrounds. For the families of Hampshire County, it would be highly beneficial if the model became the default method of obtaining divorce and post-divorce court services, with the traditional method being reserved only for the few cases for which it may be more appropriate. With a strong commitment from statewide leaders of the court, adequate funding and a commitment to extensive training, the model could even become the default system for all family courts in the Commonwealth of Massachusetts. If we truly mean to diminish the severe negative effects on adults and children of the adversarial divorce process and promote effective co-parenting, we will support the adoption of the FRSC model throughout the family law system.