CCDM

Presented at CCDM's conference "Challenging Our Assumptions About Children and Families of Divorce" at Quinnipiac University School of Law, Hamden, May 17, 2002

The buzz saw snarled and rattled in the yard
And made dust and dropped stove length sticks of wood
Sweet-scented stuff when the breeze drew across it.
And from there those that lifted eyes could count
Five mountain ranges one behind the other
Under the sunset far into Vermont.
And the saw snarled and rattled, snarled and rattled,
As it ran light, or had to bear a load.
And nothing happened: day was all but done.
Call it a day, I wish they might have said
To please the boy by giving him the half hour
That a boy counts so much when saved from work.
His sister stood beside them in her apron
To tell them “Supper.” At the word, the saw
As if to prove that all saws knew what supper meant,
Leaped out of the boy’s hand, or seemed to leap –
He must have given the hand. However it was
Neither refused the meeting. But the hand!
The boy’s first outcry was a rueful laugh,
As he swung toward them holding up the hand,
Half in appeal, but half as if to keep
The life from spilling. Then the boy saw all –
Since he was old enough to know, big boy
Doing a man’s work, though a child at heart –
He saw all spoiled. “Don’t let him cut my hand off –
The doctor, when he comes. Don’t let him, sister!”
So. But the hand was gone already.
The doctor put him in the dark of ether.
He lay and puffed his lips out with his breath.
And then – the watcher at his pulse took fright.
Little – less – nothing! – and that ended it.
No more to build on there. And they, since they
Were not the one dead, turned to their affairs.

That poem was written by Robert Frost nearly a hundred years ago. The trauma it reveals is sudden, brutal, and harsh. It is not easy to read or to listen to. But for me its teaching is in the end: “And they, since they were not the one dead, turned to their affairs.” Powerful stuff. Because they, who were not the one whose parent moved out, and they, who were not the one whose family lost their house, and we, who are not the ones whose families and fortunes have splintered, too often turn to our affairs. I begin every case with a reminder that it is about people, people whose lives -- for whatever reason and by whoever’s fault -- are not what they set out to make them. Let me talk about why I do that.

THE LAW

It is a pleasure and an honor to be here today with this distinguished panel of psychologists, psychiatrists, and lawyers who widely respected, in some cases on a national level, and who are committed to making life better than it currently can be for children whose parents are divorcing.

Myself, I went to law school. I worked hard, as everyone does who goes to law school, and I learned a lot. I studied for the bar for three difficult weeks, and learned more. I practiced for fourteen years, learning even more about the law in that layer by layer, day by day incremental process which is part of improving legal knowledge. And I became a judge, which gave me the opportunity to learn even more from the skilled attorneys who appeared before me. I know enough about the law to know that what I am about to say is true.

The law as a discipline doesn’t know much about children. If you look in Black’s Law Dictionary, you will find a definition that says that a child is a person under fourteen. If you look in the Words and Phrases volume of the Connecticut Digest, you will find a few cases that discuss children in relation to inheritances, and one in relation to underinsured motorist protection. If you went to law school, you took cases on the Uniform Commercial Code and evidence, on criminal procedure and property, and on my personal favorite, contracts. You didn’t take a course on children. Even family law as I remember pretty much omitted children.
The law, as a discipline, doesn’t know that children have dirt under their fingernails and behind their ears, that they argue with and torment others, that they are always hungry and rarely want to do their homework, that they like the forbidden and seek adventure. The law, as a discipline, doesn’t know that children want discipline, security, and peace, that they want to have friends and to be invited to play, that they dream big dreams and fear big hurts. The law as a discipline doesn’t know that children suffer from developmental delays, disease, and anxiety like everyone else, and that sometimes they’re just tired or sad. The law as a discipline doesn’t know that children need success and a sense of accomplishment, that learning and living are often difficult for them. The law as a discipline doesn’t know that children go through different stages of moral, cognitive, linguistic, and physical growth. The law as a discipline doesn’t know that children need their parents, need their parents to act like parents, need their families and communities and homes to become complete.

There are some who think that if the law doesn’t know very much about children, its role in determining custody should be limited. Respectfully, I disagree. The law, the courts of law, and the judges who make decisions must always have a central and vital role in the determination of these disputes. There are reasons for this.
First, by the time a case reaches the point where it needs a trial, there have already been multiple systems failures. There has been a failure in the family unit, and perhaps more broadly in the extended family. There has been a failure in the counsel and sanctions of society, religion, neighborhood or friends. If therapy has been tried, there has been a failure in that. If mediation has been tried, there has been a failure in that. And these failures have evolved over a long period of time. As Emily Dickinson taught us:

If all these systems designed to mitigate conflict have failed, why then would they be the best systems to resolve the dispute? It is important to remember that no court and no judge has ever compelled a party to seek a dissolution or commanded them that they could not resolve it between themselves.

In addition, the law gives people a relatively equal playing field. There are procedures involving discovery, trial, and the ability to compel testimony that are equally available to everyone. There are rules of evidence that apply equally to both parties. There is an effort at fairness for the protection of all parties. The law is the institution we have always used to resolve differences that people are unable to resolve themselves.

The law is administered by judges. They are not perfect, or even perfectible. They have the same flaws, dilemmas, and weaknesses that the litigants bring. Sometimes, these weaknesses enhance their ability, and sometimes they diminish it. But because of how the procedures of the law have evolved over hundreds of years, judges and lawyers have a unique ability. They are trained to recognize untruthfulness, to evaluate competing viewpoints, and to weave a whole fabric from the plaintiff’s woof and the defendant’s warp. They are trained to recognize bias in the lay and professional witnesses who testify and to adjust for it. Bias in the presentation of evidence or opinion is not evil so much as incomplete, and in many cases it is well-meaning. I have heard different accountants give different opinions of value, different appraisers give different opinions of property, and different mental health professionals give different opinions of the psychological condition of the same person. Sometimes these differences are because the professionals were given different or incomplete information, and sometimes because their own training, experience, or background cause them to see things from a different perspective. A psychologist who has studied a hundred cases and found Munchausen’s by proxy syndrome in forty of them may have a bias – and if so, may nevertheless be right in this case. A psychiatrist who has never recommended that a father get custody may have a bias – and if so may nevertheless be right in this case. What the law gives us is a way of finding bias and then evaluating the opinion anyway. And, hopefully, it gives us the ability to see and to govern any biases which we may have in our own thinking.

The law also gives us the ability to make a decision, and in some cases a decision is what is needed. Some problems are not amenable to resolution short of trial. Some problems cannot be resolved between the parties, and some problems should not. Consider a case where a parent seeks to relocate with the children to Oregon or Italy. Consider a case where a party cannot admit his or her actual objective. Consider a case where one or both parties custody or money are all or nothing propositions. Consider a case where a party has a psychological or substance abuse problem that can be resolved, if at all, only after long and disciplined treatment. In these cases, and for the children who live in these cases, a decision is required.

And finally, the law gives us something else that other disciplines do not. You can always appeal.

I do not mean by these comments to suggest that as an institution our justice system has nothing to learn from the other systems that are represented here today. I have repeatedly urged both lawyers and judges involved in cases where children’s lives are being determined to learn about the fundamentals of developmental psychology. You can’t understand what a child is saying to you just by listening to her words. Those words have to be viewed in the context of what developmental psychologists teach us about language acquisition. You can’t understand what a child is thinking by hearing his thoughts. Those thoughts have to be viewed in terms of what developmental psychologists know about cognitive development and perhaps attachment theory. You can’t understand what a child is feeling just by watching or listening to her. Your observations have to be viewed in terms of what clinical psychologists, psychiatrists, and social workers know about mental health. In the fall, time allowing, we will present a program similar to this one to both family and juvenile judges.

But judges are not to be psychologists or psychiatrists or social workers. They are not to impose their views, developed through incomplete learning and inadequate experience in these important fields. Their learning is to assist them in evaluating what they hear in any given case. Ultimately, they have new learning in every case, learning that is presented in open court and subjected to cross examination, so that everyone from the litigants to the appellate court knows the same set of facts and conclusions.
In addition, I do not mean to suggest by these observations that the courts and judges must become the ultimate wisdom in every case. They cannot be. The courts have no business peering into people’s lives or telling them how to lead those lives – unless the people can’t manage those lives themselves. The courts have no business managing families – unless someone in the family causes impermissible disruption. When people can manage their own affairs, when they can successfully get the help they need from a mental health professional, when they can successfully mediate their differences through your good services, then that is their right. Indeed, that is their responsibility.

So ultimately, all I am trying to say is that we of these different disciplines are not in competition. We should not be dismissive of each other. We must learn from each other the wisdom that has grown up in each of our domains, and we should caution each other when that wisdom becomes arrogant. We are partners.