Time, perhaps, to get courts out of divorce


(Pictured at left: Judge Bruce Peterson…a heart as big as the world)

Gov. Mark Dayton has "pocket-vetoed" the watered-down version of the joint child custody legislation
promoted for the last decade and has urged the adversaries to collaborate on a bill for next year.

The opposing statements that followed on this page ("Kids in the balance," June 1, and
"Child-custody bill was problematic," June 13) didn’t sound especially collaborative. We may have to
accept that there is no good solution within the current system of family law.

Joint-custody advocates seek to restrict judges’ discretion because they understandably fear unfair
treatment of fathers by judges applying stereotypes. But any categorical restrictions on judicial
discretion will also inherently cause some children to wind up in the wrong place.

The current system suffers from other inherent limitations. The legal system strives for finality;
to prevent endless bickering and court hearings, judges try to decide a case once and for all, and
the law makes changing custody difficult. Yet the parenting arrangements that work well for a
3-year-old are not necessarily the best at age 12.

The law also seeks a comprehensive solution that adjudicates all issues. I have issued 30-page
divorce decrees that decided 20 separate issues, from parenting arrangements to who gets the family
DVDs. It is amazing to me that the American public has put up with government officials dictating
the most intimate details of their personal lives.

The worst feature of the current system is the conflict it generates. We call it an adversary
system, but a better term would be a coercion system. The parties bash each other in order to
persuade the judge to coerce the other person to do something they don’t want to do.

A wise friend of mine, a psychologist, once told me that the normal response of a healthy adult when
faced with coercion is to resist. Sensing impending coercion, people often come to court defensive,
anxious, with their heels dug in. Despite thoughtful, creative strides by Minnesota courts to reduce
conflict, the specter of coercion still haunts divorce cases and promotes conflict. And it is
conflict that hurts children, regardless of the custody label.

Albert Einstein said, "It is impossible to solve a problem at the same level of consciousness that
created it."

"Suing for divorce" made sense when divorce required proving fault. But with no-fault divorce, there
is no need for courts to control divorces. After watching this process for years, I have come to the
conclusion that the time has come to consider taking divorce out of the hands of lawyers and judges
and putting it in the hands of the parties and whatever advisers they choose.

Here is one possible scenario: Allow a person who wants a divorce to sign for one at a court clerk’s
office, maybe with a reasonable waiting period. This would immediately end the fantasy that "getting
a divorce" is an accomplishment that will somehow solve a problem.

Instead of the premier source of guidance for hurting spouses being divorce lawyers, who are often
drawn reluctantly into being gladiators, let our creative private-enterprise system develop more
healing processes.

I picture family resource centers offering a full spectrum of services, from counseling and
mediation, to remedial separations while a specific problem like an addiction is addressed, to
guided discernment about the decision to divorce, to peaceful divorces.

For specific, pressing matters that parties can’t work out on their own, or where one of the parties
refuses to disengage in good faith, they might need access to a simple, expedited court procedure,
like our current "order for protection" process.

Such a laissez-faire approach may sound radical, but it would avoid the limitations of the current
system. Parties would not have to rely on the flawed discretion of some outsider. They could adapt
their parenting arrangements to their children’s changing needs. And they would not be put in the
unnatural position of resolving their problems with another person all at once. They might follow a
more gradual, organic approach.

A large percentage of our population now undergoes divorce. We can create a more healing process.


Bruce Peterson is a Hennepin County district judge.

Commentary originally published in the Minneapolis Star Tribune.
This article was reprinted with permission of the author.

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