To Serve All People - New Forums

New Forums

Divisions of district courts devoted to family law should put special emphasis on alternative means of confronting problems.

All portions of the judicial system should regard themselves as problem-solvers, but the portion that fits that description most directly is the one that deals with citizens' personal lives.
It is not impossible ? indeed, it is not even rare ? for the problems of one family to show up in three different courts within a short period of time. Domestic relations, domestic violence, child support, criminal actions, drug abuse and juvenile problems are treated as separate issues, even though no one in the system believes that they are.
In that context, we come back to the recommendation made earlier that there be a separate division of the unified district courts devoted to the many aspects of family life that intersect with the law.
In some cases, that division would provide review authority for some of the non-adversarial actions we listed earlier: uncontested cases of adoption, divorce, custody, and the like.
Other subjects are extensions of that category, in which judicial oversight is more direct, but without requiring a pro-and-con setting. Guardianships, declarations of incompetency, matters of health/ethics, perhaps even estates might fall into this category.

Family Mediation

No division of district court would make greater use of mediation than the family law division.
Many of the issues that enter the court as contested matters should be resolved well short of the courtroom.
Additional areas for direct involvement would be family matters that are closer to the adversarial court model, but that could benefit from involvement of other agencies. Child abuse and neglect, orders of protection, contested custody and child support are in this category.
Beyond that, the court would also include many of the issues now covered in juvenile courts. Disruptive and unruly behavior could be treated for what it is.
In fact, in such a setting it would be unwise to retain jurisdiction over youths when they are considered genuinely criminal. For actions that might lead to incarceration in a youth correctional facility, a young person should be transferred to a criminal division of district court. There, the youth could be tried under the rules now governing youth offenders, ensuring due process, but not fully certified as an adult unless circumstances warrant.

External collaboration

Family divisions should bring related cases together and collaborate with related social-service institutions.
There are limits on that concept, and it will have to follow other changes. A judge cannot refer a defendant to drug treatment where none is available.
This is not simply a matter of more social services, although there are clearly areas in which more are needed. And it is surely not a matter of just government social services.
And while it is easy to be pessimistic about future resources, there are some encouraging signs. For instance, many local United Ways and private foundations are moving into a stronger emphasis on coordination and collaboration among the agencies they fund. The judicial system should be part of that linkage.
This requires a different attitude than has often been present, although juvenile courts have sometimes shown leanings toward it.
A judge in family division, and the other judicial personnel in that area, will sometimes have to resolve disputes in traditional ways. But they also have the chance to emphasize the court's role as a problem solver.
Win-lose frameworks carry substantial costs even in commercial disputes, but within families the costs can be permanent and inflicted on children. Family law divisions should be looking for ways to help families, not to pick winners and losers within them.
Judges are not social workers, but judges can invoke social workers more than may happen now. The same concept applies to all sorts of external support, and consolidating the many aspects of family law in one division would make that coordination possible.

Internal coordination

Whatever the structure of the judicial system, technology should be used to enhance coordination of related cases and collaboration with community resources.
The vision of moving many cases out of the traditional court resolution still requires linkage to the courts, of course. The court has a natural interest in the progress of a defendant's drug rehabilitation program. For the first time in modern, urbanized times, the technology for that kind of coordination will be possible.
Likewise within the court system itself. Whether there is a formal family division of district court or not, it will be possible to achieve much of the information flow that is now so frustratingly absent. Child-support cases that now manifest themselves in up to three court settings at once could be focused rather than dispersed. Families at risk could be spotted through data base management rather than merely added to it when their problems become severe enough. Children of convicted criminals could be targeted for help rather than ignored until they follow their parent's career.
All this would require sophisticated case management, but the technology for that can be accomplished in the foreseeable future. That is just one reason court technology should be compatible not just within the judicial system, but externally as well.

Diversion elsewhere

Some judicial forums may do best if they divert cases away from the judicial system.
Experiments with so-called drug courts in this state and elsewhere show promising support for a court that directs problems to real problem solvers, such as drug rehabilitation programs, rather than pretending to resolve problems, such as by imposing prison sentences.
Every judge knows that resolving a case is not the same as resolving a problem, and that the courts are ill-suited to resolve many problems.
There have to be adequate, accountable resources at the other end. Sleeping through drivers' education classes doesn't make for safer drivers.
But we believe the judicial system should remain open to the creation of more such diversions. If courts are meant to solve problems, yet are unable to do so themselves, they should at least look for ways that someone else might solve them.

Other alternatives

Likewise, many of the best forums may not be judicial forums.
From time to time in its deliberations, the commission has approached the idea of neighborhood justice centers. They remain a vision that is more unfocused than we would like, but that quality may be appropriate to the nature of them.
We imagine something more basic than the old justice of the peace courts or other small-claims venues. Those are still judicial offices, despite their limits. They are subject to being used against the very people they are meant to assist. Landlords and repossessors, for instance, become experts at turning them to their advantage.
There are strong benefits in a centralized system of courts. Uniform rules and the guidance of precedent are high among them. But a vertically organized judicial system needs a horizontally organized structure of alternatives to complement it.
That alternative structure should offer dispute resolution that is not bound up so much in rules and statutes, but in pragmatism and community.
Whether the alternative is found in a church, among respected elders, through extended families, or in newly created institutions (similar, say, to some new ventures in neighborhood health clinics), the key elements would be flexibility and individuality, precisely the weak spots of the traditional and codified justice system.
We find some hope for such ventures in the many new experiments being tried at neighborhood and other community levels. Community-based dispute resolution could become the primary dispute resolution, with the judicial system as its supplement. This would reinforce the notion that courts should be a last resort, not the first one.

Goto Next Section
Return to Table of Contents