Yesterday I attended the funeral of Judge Brent Burg, the Associate Judge of the 312th Judicial District Court of Harris County, Texas. The funeral home was packed with people. All of the seats were filled and people were standing six-deep in the rear of the chapel. I looked around and saw almost all of the Houston family bar – all of us deeply grieved at the loss of a friend and the kind of judge everyone wishes sat in every court in every county in the state. Brent had all of the attributes of a perfect judge: patience, wisdom, good humor, empathy, and most of all kindness. Everyone who appeared before him felt that they had been heard and that the decision made by the judge was fair and unbiased. Who could ask for more?
In all fairness, being a family court judge is a difficult job. The dockets are overcrowded, the work days are long, the attorneys are often rude and combative, and the stories of the litigants can be a litany of anger, fear and pain. It is no wonder that many judges are exhausted and impatient and lose their tempers on occasion. Which makes it even more remarkable to find a judge like Brent Burg who never seemed to tire of the job or lose his patience. He will be missed by all of us.
In early June, I heard a report from the Harris County District Clerk, Loren Jackson, that 77,000 new family law cases were filed in Harris County in 2009, to be handled by 9 Family District Courts and a 10th court dedicated to family violence cases. This compared with only 46,000 cases filed in the 39 civil district courts. To say that the family district courts are overwhelmed with the volume is to understate the problem. The result of this huge volume of cases and the limited number of courts available to hear them is that couples who need to have their cases heard often wait months and sometimes years to reach a resolution to their family matter.
What many couples may not be aware of is that they do not have to rely on the litigation route to get their divorce or other family matter resolved. If they are willing to put their anger and fear aside, there are other routes to resolution available to them. One of them is early intervention mediation. Mediators are neutrals, trained to assist people in reaching agreements. If resolution is reached with a mediator, a family attorney can be hired to do all of the paperwork necessary to finalize their case legally.
In the event that the parties are unable to settle in mediation, they can then hired trained collaborative lawyers to assist them in reaching a resolution. Collaborative law is conducted out-of-court, in the privacy of the lawyer’s offices. Collaborative lawyers have special training in teaching couples to reach agreements on their own, without having to resort to the courts. If needed, communication facilitators and financial professionals can be part of a collaborative team to guide the couple through the process. National statistics on collaborative law show that between 90-95% of all collaborative law cases end in settlement.
Given the backlogs at the courthouse, litigation should be seen as a last resort in most cases. When looking for a lawyer, you should ask if the lawyer you are seeing has been trained in collaborative law. They can then tell you if that approach is appropriate in your case. There will always be cases that need the assistance of a judge or jury to get resolved. Those should be the ones at the courthouse. Not the ones that could be resolved by the parties with the help and guidance of trained mediators or collaborative lawyers.
At a recent meeting of a family law organization, a speaker reported on a recent case that was heard by the Beaumont Court of Appeals. It involved a lesbian couple and their fight over visitation with six year old twins. The biological mother won the legal fight and the non-biological mother was denied contact with the children, who she had co-parented for the six years that the couple were together.
Later I learned that the story was even more complicated because the non-biological mother had also had a child, and the twins and her child had been living as siblings before the couple split up. The Court of Appeals decision was based on legal technicalities, and from a legal standpoint might be correct. But what about the children? What will be the effect on the twins of suddenly being separated from a person who acted as their parent all of their lives? And what will be the psychological effect on all three children of suddently losing the love and companionship of lifelong siblings? One can only speculate, but I would assume it would be devastating.
Lesbian and gay couples in Texas contemplating sharing parenting roles must understand that Texas law, and the law in most states, probably will not be available to assist them if their relationships break down. I don’t know the statistics, but I would assume that homosexual couples are no different than heterosexual couples whose marriages have a 50% chance of failing. In my experience, collaborative law offers an excellent vehicle for Lesbian and gay couples to reach contractual agreements regarding their coparenting relationships before they commit to having children and, if they have children and their relationship is ending, reaching coparenting agreements after separation. Collaborative family lawyers are trained to assist couples in focusing on the children, and often enlist the assistance of child specialists who can assist them in devising arrangements that work best for them and the children.
Dick Price recently posted an interesting comment on the power of apology.
In it he says, “As you may know, divorces are often very emotional experiences. It is also true that while generally both parties are at fault for the breakup of the marriage, often only one of the parties recognizes his or her underlying mistakes that led to the breakup. In many ways, it would probably be beneficial to the emotional health of the parties, and the bottom line financially, if one or both of the parties could and would apologize for at least some of the wrongs inflicted on the other party during the marriage.”
This reminded me of a fascinating lecture I heard given by Lee Taft, a former certified trial specialist and graduate of the Harvard Divinity School, at the 2010 Collaborative Law Course sponsored by the State Bar of Texas and the Collaborative Law Institute of Texas. In his lecture, Taft differentiated between “partial” and “full” apologies. In a “partial” apology, he writes, the offending party expresses sympathy for the wronged party, but does not accept responsibility for the event that caused the injury or wrong. He goes on to say that a “full” apology includes the expression of sympathy contained in the partial apology but, importantly, adds an acknowledgment of responsibility. He cites Richard Nixon’s resignation statement as what he calls a “botched” apology — i.e., one that not only fails to communicate the offender’s remorse but creates further harm that can strain relationships and fuel vengence.
Accepting full responsibility may not be enough if the person apologizing is hoping for reconciliation. For that there must be forgiveness by the wounded party, which Taft suggests is only possible when there is what Taft calls “authentically performed repentance”.
When collaborative professionals represent clients who want to repair their marriages or, at least, pave the way for a cooperative relationship after divorce, they need to explore with them whether they are willing to take responsibility for the problems in the marriage and whether they are willing to demonstrate that willingness in making changes that recognize what needed repair in the relationship. If there is any divorce process that offers an opportunity for a healing apology, it is collaborative law, which brings couples together in a dialogue that would be discouraged in the litigation model.
Alexander Nirenstein of the Arizona Divorce & Family Law Blog reports on an Illinois judge’s ruling that a man may take his 3-year-old daughter to Mass even though her mother is raising her Jewish.
The article goes on to say: “Ilinois Judge Renee Goldfarb said this week that Joseph Reyes may take his daughter to “church services during his visitation time if he so chooses” and that he have visitation rights every Christmas and Easter. Likewise, the order stipulated that Rebecca Reyes always have their daughter on Rosh Hashana, Yom Kippur and Passover.
“Goldfarb refused to bar Reyes from taking his daughter to church as long as no evidence exists that it would harm the child. Although Rebecca Reyes said that contrary religious teachings could confuse the preschooler, Goldfarb avoided doctrinal questions, saying it was not the court’s place “to focus on or attempt to interpret or judge official religious doctrines.”
If the parties had persued a collaborative divorce, they could have enlisted the assistance of a child specialist to advise them on the best approach to handling the child’s religious upbringing. Courts will always throw up their hands when asked to address conflicting interests regarding the exposure of children to religious influences. Collaborative law offers parents the opportunity to view these issues in a neutral and non-adversarial atmosphere, focusing on the best interest of the children of the marriage.
