The Adversarial System And Family Court

The adversarial system is based on the assumption that the truth of any given situation can be determined only if the parties are adversaries (synonyms: hostile opponent or competitor, antagonist, opposer, disputant). One who subscribes to this belief system, believes the only path to justice is through appositional adversaries – building and defending their position while attacking, tearing apart, and wrecking havoc on the other party.

This assumption is built upon a presumption: Only when both sides present opposing versions of any given situation can an impartial third person (judge) or group of persons (jury) determine the truth. And, only by determining the real truth can one party be declared the “winner” (not guilty) and the other party declared the “loser” (guilty).

Here come the attorneys. Attorneys are advocates. Attorneys are educated and trained to “win.” Attorneys are not inherently prepared to cooperate, collaborate, mediate, negotiate, compromise, or agree. This “winning at all cost” mentality begs a few questions:

1. If one attorney is a stronger more experienced advocate will it affect the outcome?

2. If one person has more money to spend on their advocate, do they have a better chance of winning?

3. Is it possible that innocent people may be found “guilty” (lose) because the state has more money to spend on a case than the average person?

4. Do the answers to those two (2) questions have anything to do with truth, justice, honesty, fairness, or equality?

In the real world, determining “truth” under an adversarial system requires equally balanced advocates (equally balanced representation). In the real world, the “truth” discovered is usually slanted towards the party with the stronger more experienced advocate, the party that has the money to put together a “dream team.” Do not worry about truth, justice, honesty, fairness, and equality, they are all overrated anyway.

Find the above hard to believe? Go to your nearest courthouse and watch the proceedings. You can also watch the news or read the paper. Each year more and more cases are being reported where someone who had been incarcerated for many years has now been exonerated due to a DNA analysis. As DNA technology has proven, the adversarial system is full of flaws, inequities, and inaccuracies. Ironically, the adversarial system continues to be the “model” for all civilized countries. This indisputable fact begs the question: In a 21st century democracy, is pitting two parties against each other really the best we can come up with in our search for justice?

Bottom Line
The sole purpose of the adversarial system is to declare a winner and a loser.

This is the system, the adversarial system, into which “they” decided to drop family court. Have you ever wondered who “they” are? Just who is it that makes up these rules? Is it attorneys (the only ones who really win anything in the adversarial family court system)? It is the legislature? Oh, I forgot, legislators (local, state, and federal) are almost always attorneys. Interesting notion to ponder though, huh? Moving forward….

Family Court
Family courts are governed individually by each state, with each state having its own set of laws, precedent setting cases, and rules. However, one common thread is no-fault divorce, now the law in one form or another in almost all 50 states.

No-fault divorce simply means one party is not required to prove of some type of misconduct (such as adultery or abuse) by the other party as justification to file for a divorce. Generally with no-fault all a person has to say is they believe their marriage is irretrievably broken due to irreconcilable differences and they can get a divorce. No-fault divorce has also been called “unilateral divorce” because no-fault allows either party to obtain a divorce, at any time, and for any reason (or no reason at all).

In family court, the “must win” attitude of the adversarial process serves to perpetuate and exacerbate any parental conflicts. When an attorney prepares the stage to “win” for their client, they are simultaneously appealing to their client’s sense of justice and fairness. The client, seeking vindication for perceived past wrongs and validation that they are doing what is right, sees their attorney as their gladiator, their protector. As we discussed above, in the adversarial system the only path to winning is through building and defending your position while attacking, tearing apart, and wrecking havoc on the other party’s position. In the adversarial family court process, parents learn real quick that “winning” in family court mean attacking, tearing apart, and wrecking havoc on the other parent.

The “winning” obsession provides the justification needed to attack the other parent through false allegations of physical or sexual abuse, alcoholism, drug addition, or some other form of dysfunction or addiction. The fact that the parent being unfairly and unjustly attacked is the only other parent of the children involved is totally lost in the emotionally packed adversarial process of “winning at all cost.”

The actual or factual “truth” of any given situation is rarely discovered in family court. Generally, the only thing “discovered” in the adversarial family court process is which parent chose the better advocate. Sadly, this simplified overview makes the following crystal clear:

Family court may be labeled no-fault,
But if you want to be a winner,
Family court is all about fault.