What Role Should Judges Play In Divorce Disputes?

When parents seeking a divorce are unable to settle on a co-parenting plan, they often end up in front of a judge.
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When parents seeking a divorce are unable to settle on a co-parenting plan, they often end up in front of a judge. In many cases, judges play the role of authoritative decision-maker who resolve the differences between the parents and decide the outcome. However, Noel Semple recently published a report based on interviews with judges and other legal professionals that reminds us that judges play more varied roles in divorce disputes. These roles raise important questions about whether the structure is fair and whether children's interests are sufficiently protected by current practices.

Semple interviewed 10 sitting or recently retired judges and 18 legal professionals (lawyers, mediators, and law professors) in Toronto and New York. He notes that this work was exploratory and that the findings cannot be generalized to all judges in all court settings, but that the findings do provide helpful insights about how judges conduct their work in divorce cases.

Not surprisingly, Semple reports that in general, judges do not see their primary role as the decision-maker for divorcing parents, but rather "they actively seek to bring about consensual settlements in their custody and visitation cases." In other words, when parents come to a mutual agreement about parenting plans, judges view this as success. Based on Semple's interviews and observations of judicial proceedings, he asserts that judges use mediation strategies in pre-trial hearings to coax parents to resolve their own disagreements. He writes that judges often use evaluative mediation techniques in which they tell parents about the possible way that they would rule if a particular position was presented in court. Judges provide feedback to parents about the merits of their positions in order to help them see the weaknesses and/or strengths. In this way, judges help parents get a better understanding of the likely outcome should their case go to trial.

Judges also use strategies that encourage parents to communicate better with each other. For example, judges will emphasize the degree of agreement between the parents and encourage them to work harder at coming to a common agreement. Semple notes that some judges believe that "healthy communication between the parties is as important or more important than the terms of the agreement they reach." These judges also often remind parents about the costs of a court trial and the harm that the court proceedings may do to their children as a way to encourage parents to come to their own agreement.

In reviewing the ways in which judges decide court cases, Semple raises some important questions. In New York and Toronto, there are different judicial structures for handling divorce cases. In New York, there is typically a one-judge model in which the judge who handles the pretrial hearing is the same judge that handles the trial. In Toronto there is a two-judge system in which two different judges handle these aspects of the case. Semple suggests that although the one-judge system may be more efficient, he is concerned about whether the two-judge system would be a more fair system. His primary concern is that in the one-judge system, the judge may have already come to conclusions about the case in the pre-trial phase prior to hearing all the evidence in the trial. He suggests that the system of having independent judges handle the pretrial and trial aspects of the dispute may result in a "fairer" hearing of the case.

Another concern raised by Semple is the degree to which the "best interests of the child" are considered when judges are primarily focused on settlement of divorce disputes. Semple writes, "Parents might hypothetically settle their dispute in a manner that is mutually satisfactory to them, but contrary to the interests of the child." His concern is that when judges overemphasize agreement between the parents, there is a possibility that the children's interest will be overlooked. He also notes that children are less likely to be involved in pretrial proceedings than court proceedings which also may lead to less information about children's views of the coparenting plans.

Although the findings from this study are limited due to the sample, the report does raise important questions about the structure of judicial proceedings and the role the judges' play in divorce disputes. There are good reasons for examining the role of judges in more detail and considering alternative models of handling divorce cases.

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