Oppressive Family Law Courts
Oppressive Family Law Courts
A Critical Inquiry Into Oppressive Forces in Family Law Courts
I will write about my involvement in the family law court, since this is an area of particular interest to me personally, and how family violence is handled in family courts is an area that I have struggled with for the past thirteen years. This is such an important social issue because it directly affects what happens to families, and also the amount of time both parents are allowed to spend with their children. If not handled properly, domestic violence cases that come through the family courts will lead to injury and death of family members who were not protected by the courts. Economic hardship, emotional injury, the effects of physical and sexual assault, the loss of friends and family, the loss of personal belongings, loss of self-esteem, inability to trust causing problems in intimacy, relocation, loss of employment are all commonly experienced by the victims of domestic violence.
Family violence is so commonly found in our society, causing a need for battered women shelters, crisis lines, and doctors to learn to spot injuries due to domestic violence. Since domestic violence is not a well-understood dynamic, funding is not available to help victims feel safe, heal, and rebuild their lives. It hasn’t been that long ago that family violence was seen as a private matter, not for police or the courts to interfere with. In our patriarchal society, women and children have traditionally been seen as second-class citizens, part of a man’s “property”.
Not only are TRO’s (temporary restraining orders) not affective against an angry, out-of-control perpetrator, but police response time and knowledge about family violence is not always reliable. Safe-houses for victims are often full, and overall are only capable of allowing victims to stay a limited amount of time before the victim must move out. Funding is not enough to cover more long-term, comprehensive programs to educate the victims who often return to their batterers an average of seven times before they finally realize that the violence will not stop. The possibility of long-term therapy is generally not affordable by victims, and extended family members often have no clue about the dynamics involved in domestic violence.
So not only do we have victims, extended families and police who are not knowledgeable about family violence, but family courts and even mediators are often negligent and unconcerned about family violence.
Power Differentials Affect the Courts
Critical theory addresses oppression and injustice in our society and highlights the layers of power differential that affect our family law courts. After years of personal experience, talking with lay-people and lawyers, and studying the law and other information about family law, I have become convinced that much could be learned from case studies and personal experiences.
Because of my directly being so negatively impacted by the justice system that I fully expected to protect me, I have acquired a passion for the subject of an oppressive and even dangerous family court system that needs serious attention. Passion is seen as being non-objective, but has given me the energy and caring, and a powerful drive even, to pursue answers, truth, and help in changing the system.
Many overcoming such oppressive and unjust forces find it in ourselves to follow a warrior-like drive of the heart to preserve what is precious to human life; things such as love, freedom, and protecting vulnerable persons such as our children and our ability to parent them.
The family law court is a frightening place serving the system rather than the people. Commissioners, judges, and lawyers, in their daily business of “representing” persons, project the attitude of performing their daily grind, with crass unconcern of how children’s relationships with the loving parent who is victimized by the opposing parent is destroyed, as well as the battered parent themselves. It isn’t a matter of coming before a judge who is trained in recognizing the victim; it is more a matter of whether the perpetrator sits quietly in his seat, letting his attorney speak for him, and the judge deciding who’s personality they like better, or giving preferential treatment to the person who has a lawyer to represent them. Appearing before a judge with an attorney wins favor, but representing yourself in court will often get you little or no help. I have heard this same scenario from lower-income people for years, as I healed and then worked up the courage to come back to court to represent myself a second time. Many of the people I met with this same, sad story of having to share their children with their batterers or who have lost custody of their children, were homeless at the time like me. Women told me about how their husbands had been represented by an attorney and had either won custody of their children through lying, or won shared custody, but continued to harass their ex-wives. I have also corresponded online with many women who have been re-victimized by the court system who has awarded their children to their abusers. Contact with their children is denied or severely restricted, as in my case.
I want to mention, in the interest of fairness, that men get battered also. Our society is not as accepting of men being battered by the woman in their lives and this affects their believability in court. Men often do not call the police when being physically abused, so their are no police records to bring as proof to the court.
Closed and Mysterious Courts
A lawyer friend of the family once told me that courtrooms are set up deliberately to be intimidating places so that people would be less inclined to lie. The judge sits in a black robe, higher than anyone else in the courtroom; the witness box is closed in and the jury sits to the side altogether in a group that will “judge” whether the person is guilty or not.
I believe that the courts are kept deliberately closed and intimidating so that it is kept a closed system for lawyers build a lucrative career. Lawyer’s may mislead and intimidate people, taking advantage of people’s lack of experience and knowledge in the courtrooms. When the system is kept closed, less is known about proper procedures.
When a person doesn’t understand the system they are brought into, there is less of a chance of the person knowing what unethical actions might have been done against him or her. They also have a harder time because they are not educated in the legal system and can face a lawyer on the opposing side who’s job it is to understand the system to get positive results for their side. The person representing themselves is left at the mercy of his or her own lawyer, who may collude with the opposing side, such as in my case, or at the mercy of a judge who frowns on a person representing themselves because they are not paying into the system.
Self-representation means that the person must learn some of the laws and court procedures, and this means “outsiders” infiltrating the system. The more that the person witnesses in the system, the more the system has to keep itself accountable. This, or the system learns to hide questionable actions. The legal profession draws many people who want to earn a healthy income, and outsiders who don’t go to law school may be more resented by those who have spent years learning to become lawyers. If the system were changed so that most people could represent themselves, there would be less reason for attorneys.
The way the system is set up now, people stand in line to see a family court facilitator who, being a lawyer, can give legal advice. The family court facilitator’s services are free, but he or she cannot represent the person in court. He or she can inform the client of what forms to use, and answer their questions about what goes on in court.
This is a great improvement over earlier years when no family court facilitator was available, and people took their chances on their own, or had to come up with large retainer fees to pay for legal representation. The system has opened up some, but family court facilitator services resemble welfare lines where the poor line up and wait perhaps hours before they can see someone. This creates an identified group of “low achievers” who for whatever reason do not hire attorneys; most often because they cannot afford them. My experience in such lines proves this out to me. These “low achievers”, (for lack of a better term), like those who have waited in welfare lines, are not seen as very worthy people, but are seen as dregs on society by needing free legal services. I would imagine that the American taxpayers have a part in paying for such services. As such, they are not given top-notch attention, as you might expect such as those who use medi-cal to pay for medical services. For a medi-cal user, some medical services will not be available, and finding a doctor who takes medi-cal is often difficult. Pro Bono services are also pretty much non-existent. Low-cost legal representation is unheard of, so those who cannot afford to pay a lawyer are left struggling with “second rate” resources, in that they must rely on themselves for most of the work. The time and energy it takes to learn enough to make some kind of decent attempt at self-representation is a job that is often above and beyond the person’s regular work-week, instead of as in the case of lawyers who are already doing their regular jobs, and getting paid for it also, unlike the person representing themselves. The emotional issues involved in family law also drain the person who is so close to the issues, unlike the attorneys. To be given fair representation, much is needed in the way of offering a client-friendly courthouse so that clients are treated according to the law and justly, instead of facing the bias’ of judges who would rather work with lawyers, who are their own kind and who understand the language and proceedings.
My complaint is that the law is not “reachable” by everyone, and our justice system is not just. And since so many of our lives depend on what a family court says, our family life and our very being are profoundly affected by this unjust system. Our values, family relationships and emotional health are affected and at the mercy of what the judge or commissioner decides. The layperson is at a severe disadvantage of gaining justice when they have so little resources and emotional energy to endure such court cases.
Stand Alone System
Family courts also are usually the end-roads of family court cases. The courts do not have enough contact with other resources and professionals to gain new information about problems in families, such as chemical dependency, and how this affects families. The court does not recognize behaviors associated with the addict or other family members, or the emotional, financial and social effects this has on the non-addicted parent. Consider the term “dry drunk” and that this has meaning as understood by chemical dependency treatment centers. A judge who cannot recognize “dry drunk behavior” (i.e.: manipulation, lying, superficial socializing) does not help when he or she cannot see how such behavior can have detrimental effects on the children and the other parent. To see such a court client sit quietly and let his lawyer talk for him masks the destruction taken out on family members by the court client. The client is then treated by the judge as being “normal” and is given rights to custody of children that the client may have abused in the past, and continue to abuse in the future.
Family court mediators do not always see the dysfunction and threat of “dry drunk behavior” to family members and does not spend enough time with the family to uncover the family dynamics. The family court mediator may side with the abuser. Repressed children and women, feeling fearful of the abusive male, or in the case of children alienated from the mother, cannot always be readily seen in the office visit to the mediator. Even in family counseling, such issues may not be recognized, or seen as the important forces that they are on family members. In my case, the family court mediator took offense to my description of my abuser as “not being sober” in A.A. terms. She argued with me that since he was not actively drinking, that he was indeed “sober”. I tried to explain that he was not sober, that he was “dry”. Since she identified with him (after stating that she had helped to start A.A. in another county), she was very angry with me, and I definitely got the impression that she was not going to accept what I had to say. In fact, she ordered me to have a psyche eval. This is in the face of my working as a full-time social worker, in graduate school studying psychology full-time, and his history of battering two wives. I think she did not want me to be an “expert” of any kind and felt threatened that I was knowledgeable about family and alcohol issues. She had to be the one in control, and my pointing out the difference in one term upset her, so I was treated unfavorably.
With my history of being a battered wife, I did indeed obtain counseling, and so this played into her decision, but was not a current issue so was inappropriate on her part. Again, with family court mediation, there is one person making decisions that have a powerful effect on the relationship between a parent and their child(ren). The judge or commissioner, then, takes the advice of the family mediator into consideration, and not what the parents have to say about behaviors of the other. A parent’s voice and the knowledge they have gets set aside by the powers that be. This is more of a reason
to consider jury trials in family court, or some other group work to form a well-thought out plan and decision for each family, taking into consideration the clues and complaints each family member has as well as the expert opinion of more people involved. More long-term interaction with the family would be ideal to learn what hidden abuses are used against mothers and children especially.
What could be more important in our society than protecting abused family members and preserving the integrity of children growing up in safe, nurturing environments, with healthy caretakers who live free of abuse by angry, manipulative parents? If raising families were more of a masculine domain, more importance would be placed upon how families are treated in family courts. A better system would involve taking the time to work with the families, and when abuse was found in its various forms, then those abuses could be heard in court and judgments could then be rendered. This way the innocent victims would be spared the emotional battle and fear-based strategy used by the abusers to win either the children, or to lessen the will of the abused to fight for child support, and also to press charges against their abuser.
Family “Counseling” -- A Misnomer
It becomes suddenly that the family roles and relationships are under the control of unknowledgeable or uncaring people. People are torn down emotionally, financially and socially by they court because their relationships with others become so affected by the decisions of the system. Families become torn apart when extended family members have alliances with ex-inlaws, couples who used to be friends with the couple in court may take sides about who is the better parent, and each parent’s finances are affected by ordered child support. People’s whole lives are taken hostage by the court system that makes poor judgment calls and doesn’t understand the issues well enough. The law books may have well-intentioned people writing them, but they are not looked at. In domestic violence cases, for example, custody of children are not to go to the batterer, but in many cases in real life, children are awarded to the batterer, or the batterer may have contact with children or the other parent that continues to be abusive. Even when a parent explains the abuse that has gone on by the abusive parent, this is often not treated as important information.
When families are ordered to family counseling, the truth about the family relationships is not allowed to be discussed, “for the sake of the children”. The battering behavior is not allowed to be talked about, as in my case, where we were supposed to “build trust” by attending counseling. I needed the abuse to stop and to re-build a relationship with my daughter, not to be in the same room sharing my lifes’ details with my abuser. This so-called “counseling” is not condusive to building trust by any means when the batterer enjoys seeing his victim upset at having to go through the motions of presenting herself (or himself) as being perfectly fine in front of their child, in the hopes that this will present a safe family atmosphere for the sake of the child’s well-being. This in fact causes more stress and emotional abuse for the victim of the abuser who should not have such insult heaped upon her (or him). The abuser, in fact, is the one who should be treated, or get treatment in jail, and not going along as if he (or she) has not abused the other parent, and even the child at some point. This is a ridiculous situation to put the victim of ongoing abuse in, and is certainly not “family counseling”. And to make the victim have to pay for half of the cost of this “family counseling” adds further insult.
One Person Has All Power
A lawyer pointed out to me that in family law courts, a judge or commissioner holds the deciding power of the results of a case. Depending on the bias’ of the judge or commissioner, and on their skills and education on family matters, the decisions made may be extremely detrimental to the other parent, as well as the children. The lawyer I spoke to explained that there is no jury trial of six or twelve persons deciding cases as in criminal trials, so all decisions fall to the one judge or commissioner. This makes families of less importance than criminals, who are given more of a fair chance in that they cannot have total power to decide cases according to their personal bias’ or views. There is more of a chance that the group, in their decision-making process, will discuss the issues going on in the family, along with any input they might have heard from a professional family expert. Although such experts are often swayed by the side that pays them to appear in court, there is more information digested by more people on the jury that may make the case more fair.
This lawyer I spoke to also pointed out that in criminal cases, the person is assigned a public defender that is part of his or her court process. In family court, no lawyer is assigned.
Whether the public is aware of these differences in how criminal and family law cases are handled, this does not mean that family law cases should be any less important than criminal cases. A judge should not be given total power over such a case. The court system is not immune to our patriarchal society, and involves more men acting as judges than women. Breaking up the “old boy network” mentality in our patriarchal society is an ongoing job, as well as overcoming racism that effects court clients. More judges are white with white social values and understanding. White male judges who have more of a say in our court system do not have the experience of being women and mothers who are battered by their husbands. Such lack of experience and understanding often does not translate into compassion and caring causing such matters to be important enough to become experts about.
The old boy network is a political arena of power and rank in our societal hierarchy that many do not want to give up. Decisions about how cases are handled are often a reflection of how the old boy network has run the justice system. Values of stodgy, older white male judges who are connected in their closed society and used to being held in high esteem (i.e.: The Honorable Judge) may often tend to see the family in more traditional ways. With our society’s patriarchal influence, this means that women and children are not seen as important as men, as reflected in our cultural, Judeo-Christian-based model of society.
Jaggar (1989) writes that emotions are social constructs and explains that women are more inclined to express their emotions than men and are more often the emotional nurturers of children. This explains why so many more women have more sophisticated emotional responses and knowledge than white men who historically have been taught to repress their emotions. She points out that we need emotion as part of our human existence because emotions play an important part in our values. She writes that our values presuppose our emotions, and also that our emotions presuppose our values. As a society, when emotions are repressed and men are taught that emotions are “feminine” and disallowed as a part of being male in our society, our society’s values are not developed, and this may lead to “moral rigidity or insensitivity”. She writes that life without emotion would be life without meaning.
Jaggar (1989) also explains that emotions contribute to knowledge and that emotions should not be disregarded in our judgments. This should be carefully considered in family court cases. She goes on to point out another stereotype about women being “more emotional” and therefore irrational than men:
“Although there is no reason to suppose that the thoughts and actions of women are any more influenced by emotions than the thoughts and actions of men, the stereotypes of cool men and emotional women continue to flourish because they are confirmed by an uncritical daily experience. In these circumstances, where there is a differential assignment of reason and emotion, it is easy to see the ideological function of the myth of the dispassionate investigator. It functions, obviously, to bolster the epistemic authority of the currently dominant groups, composed largely of white men, and to discredit the observations and claims of many people of color and women. the more forcefully and vehemently the latter groups express their observations and claims, the more emotional they appear and so the more easily they are discredited. The alleged epistemic authority of the dominant groups then justifies their political authority” (p. 158).
Because men in our society are typically are less in touch with their feelings and emotions, and may be less sensitive because of this and their training to be “unemotional”, it is more difficult for men to understand forms of oppression and the toll it takes upon non-white men. Justice is intricately tied to societal values, and the family courts, being dominated historically by white men, is less knowledgeable about the damages of oppression to women and persons of color. The inadequate understanding of their own human emotion does not allow a compassionate or caring view of some of the judgments ruled upon female citizens who are often misjudged as being “overly emotional” and “not reasonable”. White men have not been in the position of being the oppressed, or of learning that “they are just as emotional as women but less adept at identifying their own or others emotions” (p. 158). Mens’ emotions have been enculturated out of their experience.
Jaggar (1989) points out that the norms of a hierarchical society are the norms and values of the dominant group. To hear emotions expressed in court may be seen as an “outburst of emotion” that should be suppressed and “kept under control”. Emotions are judged as meaningless and not a part of our human experience. The judges and commissioners who are groomed with patriarchal norms when making their judgments about families in court cases are ill-equipped at understanding and putting importance on oppression, domestic violence and other manipulations that perpetrator’s inflict on their victims. Such dynamics are oftentimes overlooked, or judged as not being important enough to take into consideration, especially when children’s well-being are involved.
As in year’s past when domestic violence was treated as a “family affair” and law enforcement didn’t want to get involved, the archaic family courts do not involve themselves in the various forms of oppression in families. It is time that our society’s male-dominant values are scrutinized when judges make decisions. That some situations go without the interest of a judge or of law enforcement limits our capacity of outrage to hideous behaviors of so many men to women in families. Oppressed people who express strong emotions about their domination is entirely appropriate. White males in the court system will not have the understanding of the subjugation that women face in our society. We are taught by the courts to repress the knowledge of immorality and indecency. There are no limits to the destruction that can be legally inflicted upon vulnerable family members as long as the courts remain dispassionate about the damage of angry and out-of-control men. For perpetrators to gain the protection of lawyers and all who take part in the justice system perpetuates this indifference and subjugation of women and children to our patriarchal system.
It is not hard to understand why the civil right’s movement and the women’s movement have been a necessary force in our society. Breaking such bias’ of traditional views takes time and continues to take its toll on women, people of color and children. Jaggar (1989) suggests that we can reeducate our emotions, but that this will take time in our society. She writes:
“Instead, we must recognize that our efforts to reinterpret and refine our emotions are necessary to our theoretical investigation, just as our efforts to reeducated our emotions are necessary to our political activity. Critical reflection on emotions is not a self-indulgent substitute for political analysis and political action. It is itself a kind of political theory and political practice, indispensable for an adequate social theory and social transformation” (p. 164).
When so many in the courts tend to behave unemotionally themselves and are conditioned to refrain from expressing emotion, their judgment reflects a more inhumane, unfeeling set of norms that enforces the dispassionate values of classist, racist and “masculinist myth” (p. 158). This unemotional view of human lives ignores people’s sense of freedom and emotional expression that is a part of humanity. Laws written must reflect a human beings right to freely express themselves without being relegated to second-rate human beings because they express emotion. The issues that bring clients to family courts are painful, and paying huge lawyer fees or trying to understand how best to represent themselves only adds to their frustration and emotional damage.
Education on the part of judges, lawyer and all professionals involved in the family court system is needed in regard to abuse, manipulation and lying. A task-force to reform family courts would involve these professionals as well as family advocates, interested citizens, social scientists, social psychologists, economists, members of multi-races, feminists and mental health professionals, as well as school teachers, child-care workers and any other persons who would have regular, meaningful contact with family members. Past clients could also speak at hearings about their experiences in family courts. Legislation could be written to reflect the needs of family courts to make them a more humane and affordable place for families to deal with these painful issues where all family members could be protected from abusive behaviors. A follow-up program to check that family members are following their court orders would ideally help to ensure that all abuse has stopped.
A community reflecting all kinds of people (i.e.: all races, cultures, socio-economic groups, level of education, religious, spiritual, gender, sexual orientations, ages, political, professions, non-professionals) should have a say in how family courts are run and have a important influence on what laws are written and enacted. An emphasis on safe families must be a priority so that the our society raises our children in a free and reasonable society where girls, women and person’s of color are treated fairly and equally. This would have a positive impact on diminishing our society’s patriarchal heritage so that all people have a greater chance of reaching their potential, as well as our society.
Jaggar, A. (1989). Love and knowledge: Emotion
in feminist epistemology. In A. Jaggar & S. Bordo (Eds.), Gender/body/knowldege: Feminist
reconstructions of being and knowing (pp.
145-171). New Brunswick, N.J.: Rutgers University Press.