A common theme underlying nearly all the problems in the family courts is the sloppy float away from the "rule of law" to "rule of man". The "rule of man" describes such things as dictatorships, decision-making by whim, discretion without oversight, vague standards that cannot predictably be anticipated or applied, faux-expert recommendation-making and opining such as with mental health professional parenting evaluations, and the panoply of therapeutic jurisprudence interventions such as parenting coordination and special mastering. All of these abrogate due process, and the fundamental principles on which our system of jurisprudence was founded. The ideas have been pushed by the mental health lobbies and by individuals who either don't understand or don't care about some higher priorities.
"Rule of man" is a concept that we ditched with the formation of this country in favor of "rule of law".
Our founding fathers recognized that there is no way to regulate or oversee individuals given too much discretion or dictatorial authority. With regard to the family courts, I keep hearing and reading what are essentially inane pleas to fix the various misguided ADR programs via "guidelines" (aspirational only, and with immunity from sanction for misfeasance), and for "trainings", and for getting rid of those who are "incompetent" -- all of which suggestions exhibit an astonishing lack of appreciation for the stupidity inherent in these extra-judicial ideas -- ideas which Thomas Paine and our founding fathers would have abhorred (see, e.g. Common Sense).
Dictatorship cannot be permitted not because there couldn't (theoretically) be some wise and beneficent dictators who would be better and more efficient than the messy system of due process and checks and balances we idealize, but because under that dictatorial system we inevitably and primarily will suffer the fools, the tyrants, and the corrupt. And that's without addressing the panoply of other constitutional defects. Besides, no scientifically sound research actually establishes "harm" from the adversarial system -- or benefit to families' well-being from applied therapeutic jurisprudence.
These ideas were invented in mental health trade promotion groups as lobbying talking points. (If you doubt this, feel free to contact me for more information.) Yikes. What are we doing. To the extent we've been sold a bill of goods, swampland, snake oil and the voo doo of "expertise" by the mental health professions, at least until relatively recently, the stuff wasn't harming our legal system. Now it is. Wake up, and wise up.
What we do need are some realistic changes in the substantive laws addressing divorce and child custody.
What we don't need is a revolution in procedural rules and the overthrowing of individuals' constitutional rights.
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