Poor Journalism: Wife’s Divorce Petition Dismissed before Abuse Incident

The following headline appeared on the Times of Israel website, attributed to JTA:

“Jerusalem rabbinical court says spousal abuse not grounds for divorce”

The article stated that the wife had applied to the Attorney General, because the Bet Din had rejected her claim for divorce, despite the fact that the husband had admitted assaulting her and had been imprisoned for 75 days.  There were quotes from lobbying organizations, alleging that the wife is an aguna, that the Bet Din paid lip service to the fight against family violence, and that the decision was reminiscent of the attitudes in surrounding countries towards wife beating and blaming the victim.

As often happens, the press report and the comments by the lobbyists reveal that none of them fully understood the material.

I have read the judgment of the Jerusalem Area Bet Din. The decision about which the complaint is made states as follows:

The Jerusalem Bet Din denied the wife’s petition for divorce on 4 July 2016 for lack of grounds, after two years of proceedings. On appeal to the Rabbinical High Court, the wife brought evidence that the husband had been found guilty, on his own admission, on 13 November 2016, of assaulting the wife on 19 August 2016 – six weeks after dismissal of the first petition. The appeal court saw fit to refer the matter back to the Jerusalem Bet Din.

The Jerusalem Bet Din decided that it was not possible to change the judgment dismissing the original petition on the basis of an event that occurred after the judgment was given. I am sure that almost all competent judges would agree that it is not possible to amend a claim after judgment has been given. Of course, the wife may file a new claim on the basis of the new evidence, or appeal the Jerusalem Bet Din decision, but the press report does not indicate if she has done so.

The comments of the Jerusalem Bet Din are also justified. The wife did not, it seems, allege violence in her original petition; there was evidence before the court which heard the criminal proceedings that the husband was suffering from psychological problems brought about by two years of divorce proceedings; the husband apologized for his “mistake”; and the Bet Din emphasized the seriousness with which it regards any violence.

However, it is not unusual for a court, in any jurisdiction, hearing divorce proceedings, to send the parties for counseling if there has been a single incident of violence and expression of regret, which may have been situational and not systematic and repeated violence, so the assumption that the Bet Din would have immediately granted the wife’s petition if she had brought proof of violence before the end of the proceedings is not necessarily correct.

I am not aware of any legal basis for the involvement of the Attorney-General in divorce proceedings. But the statement in the Times of Israel article, that the original petition was dismissed merely because of the husband’s objection, is unfounded.

The use of the term “Aguna” is also inaccurate. An Aguna is a woman, and an Agun is a man, whose spouse has disappeared, or refuses to give or receive a Get, a bill of divorce, despite a decision of the Bet Din that he or she must do so. In such a case, the court can impose severe sanctions. In a case reported last week, the Bet Din suspended a lawyer’s practicing certificate because he refused to give his wife a Get despite the order of the Bet Din. In the case under consideration, there was no such decision.

I have no interest in the case, nor do I know any of the parties. But the record should be set straight.

 

California Bill Allowing Child Witnesses – Some Thoughts

CA bill to require courts to allow  10 year old children to testify on custody

I have looked at SB 170, Section 3042 and Rule 5.250; on the face of it, the child is protected, but I understand that in California the reality is somewhat different.

There are serious concerns about the involvement of children in the court process. But in my judicial experience (over 17 years I saw hundreds of children in my chambers but NEVER in open court, and never subjected them to cross examination) I can say that in the vast majority of cases the child and the court were helped by the experience.

In Israel, family cases are heard only by a specialist court and by specialist judges, who are selected on the basis of their experience in Family Law, and commitment to sit in Family Court for several years.

Against this background the voice of the child is heard in Israeli courts in a sensitive fashion. It is exceptionally rare for a child interview to be used for fact-finding; apart from getting to know the child, and obtaining his views by open questioning and discussion, an important part of the meeting with the judge is showing the child that a real human being is handling the case, and telling the child that while his views are important, the judge, and not the child, has to decide the case. Many children are relieved to know this, and are more inclined to open up.

In particular, Family Court judges know, from in-service training and exposure to other material  and discussions with the social services support unit staff, about the various influences on the child, and how to balance the child’s views against the other material in the case.

Judges are alert to the possibility that a child has been drilled or brainwashed as to what to say. It is usually clear that a child has been prepped; and the fact that one of the parents has prepped the child usually counts against that parent in the final analysis, and may lead to specific orders as to how that parent should behave).

For anyone who wants it, I have prepared a translation of the part of the Civil Procedure Rules dealing with the meetings between the child and the court social services support unit and the judge. Contact me via this website.

February 2017

UN Security Council Resolution 2334 & Understanding Orientalism

In response to the December 23 anti-Israel UN Security Council Resolution 2334 and the Obama Administration’s decision not to use the US veto to defeat the resolution, Philip Marcus writes:

The abstention was indeed shameful and spiteful. But it is not only Obama who has been adopting an attitude against Israel and all it stands for.

From its very foundation, the UN, and many other transnational organizations (such as the EU and ICC) were based on the hubris of the Western powers, that their way of human rights and liberal democracy was the only way. Their way aimed for world peace, but assumed that all the nations of the world would agree, despite the fact that, for many religions and cultures, autocratic rule and world domination by any means, including war and terrorism, are deeply embedded, and world peace is the goal which can be achieved.

This mistaken idea has enabled the other nations cynically to exploit the Western powers, using slogans such as imperialism and colonialism to cow them into feelings of guilt, and give  excuses for, and thereby render them impotent against, terrorism and bloodshed.

This requires a fuller treatment – if I ever have time I will write an essay – but I recommend this article in the Middle East Quarterly: “Celebrating Orientalism” by Richard Landes. It describes well how Edward Said played into this hubris and cowardice, and carried with him the vast majority of academics and policy makers. He had, of course, a willing audience in the Arabists of the State Department, the British Foreign Office, and the Quai d’Orsay. Kerry and Obama swallowed it whole.

But the disgusting resolution has passed and, like everything, it is in G-d’s hands. At this time we celebrate the survival of authentic Judaism, and through it the Jewish people, despite the efforts of nations and empires innumerable. It’s sometimes tough – very tough – but no matter how hard they try, we are still here. Am Yisrael Chai – the People of Israel Live!

The Abolition of Legal Aid in Family Cases in the UK

I read with dismay about the abolition of Legal Aid for most matrimonial cases in the UK.

After my admission as a solicitor in late 1995, and until my departure for Israel in summer 1978, I represented litigants in scores of cases, civil and criminal, under the legal aid scheme. I was among the founder members of the Tottenham Magistrates Court Duty Solicitor scheme, under which solicitors saw defendants who were appearing for first remand hearings, under the Green Form (which allowed us to take instruction as to the means of the defendant and do up to 25 pounds worth of work if satisfied that legal aid was justified, without referring to the law society for approval).

But much of the work was matrimonial. (If my memory of the history serves, legal aid was founded to assist in divorce proceeding for soldiers returning after service abroad in World War II, and only later expanded to cover other areas and replace the dock brief in criminal cases).

Israel has a legal aid scheme, means tested of course, and throughout my career as a lawyer I represented clients under this scheme in hundreds of cases, at all levels, including the Supreme Court. But what I have to say here also reflects my work as a judge of the Family Court, dealing with those comparatively few cases where one or both of the parties were unrepresented.

Legal Aid, if properly administered, has two great advantages in matrimonial proceedings, above and beyond representation in and of itself:

The first is that it enables young lawyers, at the start of their careers, to get valuable experience in interviewing clients and preparing pleadings, and appearing in preliminary applications, and even trials at the County Court and Domestic Proceedings Court and Magistrates Court. For myself, I can say that I learned many lessons in advocacy as a young lawyer, which I would not have learned were it not for the opportunities afforded by legal aid.

But more importantly, it saves court time, at two levels: that of the court secretariat, and that of the judicial officer.

The secretariat is relieved of the need to inspect each document filed for compliance with procedural rules and basic comprehensibility, and to explain basic principles to litigants in person.

Cases involving non-represented litigants are a colossal drain on judge time. The judicial officer is faced with claims which, if  a solicitor had been consulted, would not have been have been filed, as being contrary to the established principles of law, and defences which are clearly untenable.

But even if the case is viable, a judicial officer will have to spend much time and energy explaining each procedural stage and each evidentiary issue (some of them somewhat hard to understand even to an experienced lawyer) to the litigants, and worse than that, to assist in the presentation of the case without knowing all the facts which might have assisted one of the parties if  they had been pleaded, or about potential witnesses. In this regard, the almost impossible task of remaining impartial is exacerbated where one of the parties is represented: the unrepresented party needs even more assistance, particularly if the lawyer is less than scrupulous.

The inevitable result of removal of legal aid is a substantial increase in the workload at the administrative and the judicial level, which results in increased delays in the completion of cases; unresolved cases, especially in the matrimonial field, bring about more interlocutory application and injunction proceedings, and more stress on the minor children, who suffer most from the uncertainty and the preoccupation of the parents with the litigation. This in its train may lead to increased involvement by welfare services, with the costs that this involves. The alternative is the need for substantially increased staffing, with the associated costs. Both of these are undesirable, and increase costs to the state.

All credit is due to the judges, and especially the President of the Family Division, who have done all in their power to mitigate the effects of the cuts.

Legal aid should not be regarded as a welfare benefit that can be granted or removed according to budgetary constraints, especially where, as I point out, the saving in the cost of representation are far outweighed by the increase in cost to the state of expansion of court staffing and/or the excessive delays in finishing cases.

The state has the responsibility to provide a judicial system which answers the needs of the public. This includes representation of those who cannot afford it.

In Israel, Legal Aid is expanding its scope, specifically in the Family Law field. In the past couple of years a decision was taken to give legal aid to minors whose matters are being dealt with in the Family Court. According to set criteria the lawyer appointed decides to act as lawyer for the child (mainly older children) or to represent the child’s best interests. A manager has been appointed to deal with these cases in each district legal aid office.

Just last month, in the course of parliamentary law committee debates which led to a reform of the law regarding guardianship of disabled persons (inter alia requiring more involvement of the individual concerned and restricting the guardianship to the least injury to his autonomy), the legal aid regulations were amended to grant legal aid to these individuals.

The Israel government took these steps in recognition of their necessity in ensuring proper court action in these cases, and of the savings of court time, especially as the lawyer appointed can apply his knowledge and experience to mediation and ADR in these disputes and make of defend applications promptly and professionally.

Democracy in Turkey?

Sir

The article by Turkey’s charge d’affaires (Strength and resilience of Turkish democracy, 3 August) is based on a common misunderstanding – that democracy consists only of the holding of elections.

Many totalitarian regimes hold elections, but where the candidates are pre-selected by the existing regime, or only one party is permitted to run, or voters are intimidated by violence or the threat of it, only the most cynical would call this democracy.

Democracy requires three more elements, all of which should be safeguarded by constitutional provisions: freedom of association, including the liberty to form political parties; freedom of expression, including a free press; and above all, an independent judiciary, whose powers should include supervision of elections.

The independence of judges requires a process of selection of judges on the basis of their legal acumen and personal integrity alone, and without regard for their politics, together with tenure and a constitutionally protected ban on removal of judges (subject only to dismissal after due process, by a tribunal within the judicial system, for disciplinary infractions).

Any regime which closes newspapers and television stations, because they oppose the government, and which arrests or dismisses judges for political reasons only, has no business calling itself democratic.

 

Philip Marcus

Why are American Jews and Israel Drifting Apart?

In response to a recent article in Mosaic magazine, entitled “If American Jews and Israel are Drifting Apart, What’s the Reason?“, I wrote the following contribution:

The distinguished participants in this debate propose similar reasons for the divide between Israel and what is now, unfortunately, a majority of American Jews. They point to the extent to which Jews in America now identify more with their Americanism than with their Judaism, resulting in an attenuation of Jewish self-esteem, leading to a loss of Jewish identity, manifested both by intermarriage and by a lack of understanding of what Israel means as a Jewish state.

America has been very good for the Jews. The generations who arrived in the late 19th and early 20th centuries found a land of great opportunities, and their offspring benefited from access to higher education and the booming economy, such that there are few areas of life in which American Jews have failed to excel.

But the State of Israel represents the specialness of the Jewish people, which started with the patriarchs and the matriarchs, and has continued through the enslavement in Egypt and the Exodus, the giving of the Torah at Sinai, and the conquest of the Land of Israel, and the Temple service.  Despite millennia of exile from the Land and of antisemitism, Jewish specialness persists to this day. Despite attrition, not only by attempts at genocide, forced conversion but also by assimilation and intermarriage, the Jewish nation has survived and flourished. None of the efforts of nation after nation have succeeded in erasing the underlying identity of the Jews, which is based on the self-esteem of each Jew and the communal self-esteem of the Jewish people.

Throughout the generations and in all the places in which they lived, in the Land of Israel and around the globe, the Jews preserved and continue to preserve their particularity, by means of the use of the Hebrew language for prayer and learning, and, for the last century or so, in Israel, as the vernacular.

Authentic Judaism requires that Jews respect and draw inspiration from the past, that they live in the present and use their abilities for the benefit of mankind, and plan for the future age of the ingathering of all Jews to the Land of Israel and the restoration of the Holy Temple in Jerusalem. In this way they kept their particularistic national identity in all those centuries in which the vast majority of Jews lived outside the Land.

Authentic Judaism requires devotion of time and energy to learning and performing mitzvoth. It also requires Hebrew literacy, stable family life, and an understanding of the links between Jews of the current generation with those of all past generations and their obligations to the future and to the world. Self-esteem is created and preserved by the strong family, communal and national connections, which are ensured by common identification with the Torah. Authentic Judaism rejects postmodernism, with its distrust and deconstruction of any ideology which is clear and lasting.

In the absence of one or other of these features of Jewish identity and self-esteem, the road to assimilation and the disappearance of a connection with the State of Israel and its Jews is wide open.

Modern movements in Judaism base their content on selected ideas which are taken from parts of the Jewish sources (“prophetic Judaism”) and, translated into terms which purport to be universal, appear to be consistent with values which are deemed to be politically correct: equality, human rights, non-discrimination, internationalism and Tikkun Olam (a misrepresentation of a complicated halachic concept, by which the Rabbis of the Talmud preferred certain rabbinical interpretations over others in the light of specific exigencies).

By doing so, the adherents of these movements are deprived of exposure to the texts and ideology of Judaism, in all their depth and breadth, their dynamism and the interrelationship between each part of the Torah (in the broadest sense) and each other part. In this way, these movements deprive Jews of their self-esteem, their distinctiveness, and ultimately their identity.

Those who identify Judaism only as a national liberation movement, with Israel at the center, may become disenchanted with this or that policy of the Israel government, and their Jewish identity reveals itself only in a hubristic attempt to dictate to Israel how it should behave, usually without sufficient knowledge of or regard for the history, geography or the exigencies of daily life in Israel.

Those whose Jewish identity is centered on commemoration of the Holocaust and antisemitism have chosen a negative narrative in which a specific period of Jewish victimhood is central and Jewish self-esteem is absent. The specific antisemitism of the Nazi exterminations is often subsumed into a general universalization of racism, without a specific Jewish context.

Those whose Jewish identity is manifested only by attendance at occasional Barmitzvahs and weddings, and visiting houses of prayer once or twice a year, or eating “jewish” foods, or having a particular sense of humor, or even donating large sums to Jewish institutions, which are at most nostalgic expressions of loyalty to past generations, are unable to pass a love of Judaism and the Jewish people to their children.

Those for whom the history and authentic ethos of the Jews mean nothing will act and think no differently from the gentiles with whom they mingle, and are at risk of becoming indistinguishable from them (except to anti-Semites).

So I agree that the repair of the distancing of American Jewry from Israel requires rigorous rethinking of the relationship between each Jew and his heritage, and between him and his American identity. Reestablishment of Jewish self-esteem is the key to this.

 

 

 

 

 

 

Michigan Judge Should Have Ordered Detention of Mother, Not Children

The case in which a Michigan Family Court judge sent three children, aged 9, 10 and 15, to a juvenile detention facility, has attracted much attention.

While it is difficult to criticize a judge without familiarity with all the material relating to the family, after reading a transcript of the hearing which took place on 24 June (the judge ordered the release of the children on 10 July), a number of disturbing matters appear.

The children, whose father is an Israeli engineer now living mainly in Israel, and whose mother is a pediatric ophthalmologist, have been the subject of highly contentious visitation proceedings, mainly before the same judge, for 5.5 years. These proceedings have been accompanied by wide publicity, including the name of the family and pictures of the children.

The judge was, rightly it seems, of the view that the children’s reluctance and refusal to have contact with the father were a result of the mother’s actions and words. All efforts, including attempts at treatment of the children, had failed. But in the face of alienation of the children towards the father, the court embarked on a rising scale of persuasion, and latterly threats, not against the mother but against the children.

The hearing in which the judge found the children to be in contempt of court took place with the presence of lawyers for each of the children; but it appears that they were only appointed immediately before the hearing, and had not had time to take instructions from the children, and were largely passive despite the threat of detention. The father tried to express his objections to the course of action which the judge was proposing, and the mother’s lawyer did not manage to address the judge.

The judge compared the children to Charles Manson’s cult, and described the place to which she was going to send the children as a kind of prison, in which the children would be kept in separate cells, with no contact between them, and would be deprived of elementary privacy, even in the lavatory.

After finding the eldest boy in contempt, the judge ordered the younger children to have lunch with the father, in the presence of court official, in the court cafeteria, and when they appeared to refuse, she found them also to be in contempt, and ordered that all three be removed to a juvenile detention facility.

In the end the judge ordered the children to stay in a facility, within the juvenile detention centre, in which abused and neglected children are housed. She also banned all contact with the mother, and fixed the next hearing for early September.

It is surprising that none of the attorneys involved, for the children or either of the parents, asked to court to defer the removal of the children until an appeal could be heard.

Cases of refusal by children of contact with one of the parents are unfortunately not a rarity, in Israel as in other countries. The reason for refusal is not always because the custodial parent incites them against the other parent, but when this is the case, this should be regarded as abuse of the children by that parent, and constitutes a breach of one of the primary parental responsibilities – to ensure that the children benefit from a healthy relationship with both parents despite their separation. In such a case, the efforts of the court need to be accompanied by sanctions against the alienating parent, and not against the children, who are almost always unwitting soldiers in the litigation battle and many of whom suffer from psychological, and sometimes psychiatric, damage as a result of the catastrophic breakup of the family and the alienation. It seems that children who are in the 8-10 age group are the most vulnerable when parents separate; in the Michigan case, the older boy, who was clearly regarded by his siblings as a leader, was about 9 when the proceedings started. He had reported violence by the father towards the mother and also a disturbance at one of the visits; but it seems that none of these incidents were sufficient to cause a finding by any court against the father.

In any case, the children need therapy; threats and punishments are likely to confirm their refusal of contact, especially where the alienating parent will shift the blame on the other parent, even if that parent opposed punitive action.

In the Michigan case, the judge described the children as brainwashed; but instead of penalizing the mother, who was clearly responsible, she chose a course of intimidation against the children. The children had clearly behaved badly and disrespected the court’s decisions; but punishing them, or even threatening to punish them in the terms she used, when the two younger children were clearly below the age of criminal responsibility, shows that the judge regarded the children as parties to the court proceedings. Her words seem to express frustration and anger, rather than the calm and deliberation that are to expected from a judge even, and perhaps especially, in a difficult and highly charged case.

Cases similar to the one described are dealt with differently in Israel.

As soon as it appears that court determined contact arrangements are not being complied with, it is essential to have an independent expert opinion as to the reasons, as swiftly as possible. Time is of the essence, especially with younger children, since a child will often interpret the lack of contact as indifference on the part of the parent from whom he is separated, even if he is not told by the custodial parent that the other parent is dangerous, or hates the child, etc.

If there is no cogent reason for the absence of contact, supervised meetings of the children with the alienated parent should be ordered. If these do not take place, and it is clear that the principal reason is obstruction by the custodial parent, then the obstructive parent should be held in contempt, and punished, by fines in increasing amounts, for each unjustifiable missed meeting of the child with the other parent. Where this is inappropriate, because of lack of means, or ineffective, then it is this parent who should be sentenced to short periods of imprisonment, even of a few days, during which the children will be placed with the other parent (or where this is impossible, with a close relative of the other parent). In a severe case, the court will order that the children be placed in the custody of the other parent; this was the result of a recent case in Israel, and the decision of the Family Court was affirmed on appeal.

Experience shows that this is usually effective, provided that the situation has not been allowed to go on for months or years.

Proceedings in the Family Court in Israel are held under strict prohibition of publicity regarding the names of the parties and any other identifying information, except with the leave of the court.

There are detailed procedures for the views of the children to be brought before the court, and while many judges interview children, this is done in the judge’s chambers in the presence of a social worker; appearance of the child in open court is extremely rare.

Any proceedings regarding contempt of court leading to imprisonment are held with deep respect for due process, and decisions are detailed and recite all the relevant details which led to the decision. Such decisions must be reported by the court to the Attorney-General, who can intervene if he sees fit. And the object of penalties for contempt of court is not to punish the person for past behavior, but to convince him to comply with the court’s instructions in the future.

It is hard to predict what effect the hearing, and the way in which it was conducted, and the stay in the children’s detention facility, will have on these children. But penalizing a child for not having a reasonable relationship with his parent, or even threatening him with dire results if he does not do so, clearly goes against the primary responsibility of the court – to act in the best interests of the child.

Parental Responsibilities

Discussion on LinkedIn Family Law Professionals, October 13, 2013

Marcia Malsack:
You want forthright … ? Why do we believe that there is an inimitable right to procreate at will with no regard as to parenting, feeding, housing, educating, clothing, safety (both emotional and physical)? Certainly we dare not even suggest that some requirements should be met by those choosing to procreate. It is perfectly OK that a male and female coupling results in a pregnancy.

I am not advocating anything in particular beyond that perhaps we should not be so ready to accept free sex and inadvertent pregnancy as so culturally and socially acceptable. Would planned and responsible pregnancies end all the divorce trauma and pain to the children? Of course not, but it would probably result in a lot fewer damaged children. My comment is result of Donna’s comment about selfish parents. In my view, having children without the wherewithal to parent and provide is, in general, the highest form of selfishness.

Mark Roseman, Ph.D., CFLE:
I think the answers all reflect an idealized view of the world, when traditional communities bound social values with societal norms. Rather, the West since WWII and greater prosperity gave rise to challenged family values. We must still recognize that when lovers,.married or not, break up, there remains a huge, widened emotional gap through which much reason falls. Anger and retribution remain which drives both an emotional wedge and often, physical distancing. 

The nature vs. nurture is irrelevant. The 50-50, is also irrelevant. It is that parents need to adjust to their emotional loss. What seems to be an argument for the better parent really is inappropriate. It is inappropriate until we can all, all family professionals working together, to help parents in their devastating loss of relationship. When these parents are happy, then a child’s happiness and positive outcome will be realized. This is the premise of the Toby Center. It is based on twelve years of research and working with families.

Marcia Malsack:
Mark, so well said AND I love the mission of the Toby Center.
I have an issue with irresponsibility in any manner. My biggest issue with the “at will ” procreation is when there is no relationship, no lovers or love, just casual sexual activity. Sadly, there is much with no thought for the consequences. Yes, it certainly is argument about values. And economics. And child caring, and “entitlements”.

Philip Marcus:
Part of the problem is that sexual activity is often seen not as procreational, but as recreational, and not connected with any idea of a permanent relationship between the participants, let alone the possibility of offspring. This is inter alia the result of widespread availability of contraceptives.

So when a pregnancy does arise, the male can say that the baby is nothing to do with him, since he had no intention that the act would be anything more than having a good time; the female may also have the same attitude, (and may not even know who the father is) but because of biology, she is (literally) left holding the baby.

For this reason I maintain that parental responsibilities start as soon as the couple agree to have relations – even the use of contraceptives is not foolproof.

Divorce Is A Choice

Choosing constant conflict with your spouse is choosing to stay married!

Discussion on LinkedIn Family Law Professionals, October 2013

Eileen L. Coen, J.D. | Mediation Matters Mediator
The 17-year long divorce proceedings of two law professors in Ohio have been highly publicized in the news recently. While 
their protracted case made headlines, most of us have heard a story or two about a horrible divorce that went on for years – and years!
(Want to Avoid a Long Divorce? divorcethatworks.wordpress.com)

Nancy Zalusky Berg:
Yep – we call it divorce dating – the most expensive way to stay connected!

Philip Marcus:
17 years sounds ridiculous, unless there were final settlements or judgments, and then legitimate applications to vary the provisions, such as a change in child support because of a SUBSTANTIAL change in circumstances, or an application to change custody or visitation because a SUBSTANTIAL change, such as relocation.

But if this was not the case, the judges need to keep in mind not only their duty to try the specific case before them , but also their duty to other litigants, and to allocate resources, including court time, appropriately; in other words, to prevent spurious and wasteful proceedings.

It helps to have specialist Family Court Judges, who are better able to determine what are the real cases and when the pathology of the parties or one of them, and not the genuine need for resolution of a dispute, is driving the litigation. Even better is One family-One judge, where all the claims are dealt with by one judicial officer. (We have both in Israel).

But even without these, in most jurisdictions the court has power to dismiss cases in limine which disclose no warrantable claim, and in many jurisdictions the power to declare a litigant contumacious – that is, one whose claims must be referred to a judicial officer who will determine if the claim is genuine, thereby avoiding troubling the other party with having to file a defence.

In addition, the courts in many jurisdictions (including Israel) have power to award costs to the winning party, and to award costs to be paid to the the State Treasury (and collection enforceable in the same way as a fine) against a litigant (and in rare cases personally against a lawyer) who has wasted court time.

 

 

Civility in the Courtroom and the Role of the Judge

Discussion on LinkedIn Family Law Professionals, October 3, 2013

Eileen Fein:
Does anyone else think that as the lack of reason, civility, truth and ethics in our political discourse escalate that those traits filter into our culture generally and show up more in family court?

Philip Marcus:
The attitude and conduct of the judge is crucial. Not all judges are cut out for the high tension and emotional intensity of family cases, and every effort should be made to select for family court those who have some judicial experience and some knowledge, not only of family law but also of the associated fields – mental health and dispute resolution, as well as the necessary emotional balance. A judge who is unwillingly thrust into family court work may get frustrated and may express this by inappropriate behaviour.

The judge can usually calm things down. In my experience, it is useful for the judge to comment, at the first inappropriate outburst, that the court takes into account the conduct of the parties in the courtroom, and specifically point out that conduct under stressful conditions, in the formal framework of a court hearing, is a possible predictor of that party’s ability to cope with the stresses of parenthood.

As to the lawyer, sometimes it is enough to indicate that in this judge’s courtroom, uncollegial behaviour, shouting and abuse by lawyers will not be tolerated. (I have commented in various places that aggressiveness is not an appropriate attribute for lawyers in family proceedings).

When things get out of hand because of a lawyer’s conduct or that of both lawyers, rather than entering the fray  the judge can adjourn the hearing for a few minutes; if all else fails, inviting the lawyers for a talk in chambers is the setting best adapted for a warning that unprofessional behaviour can be the subject of a report by the judge to the Bar Association or other disciplinary authority.

Underlying all this is the power, which should be used sparingly, to commit to prison for contempt in the face of the court; in the case of a party, the threat is usually enough, and for lawyers, such a committal should always be accompanied by a report to the disciplinary body.

The deterioration of respect and increase in verbal violence is a subject for sociological research, but a wise judge will make it clear that the courtroom is a place (maybe the only place, apart perhaps from houses of worship) where civility and politeness are compulsory, not optional.