“If anybody else wants to come with me, this moment will be the beginning of something real, and fun, and inspiring in this God forsaken business — and we will do it together!”—Attorney Michelle MacDonald
Feeling Like Jerry Maguire …
THE THINGS WE LAWYERS THINK AND DO NOT SAY
The Future of Our Business
Family Lawyer Dreams of Abolishing Family Court
“ Are you coming with me?”
Hello. It’s attorney Michelle L. MacDonald. This year marks the 25th anniversary of my family law practice, my 50 years of being alive, and the 15th anniversary of the movie, Jerry Maguire. Oh, and I became a grandmother.
In January, inspired by my clients, my grandson, Jerry Maguire and Pope John Paul II, I wrote a Miracle Mission Statement:
Abolish Family Court (as we know it)
Keeping Broken Families Out of the Adversary Process
I invite you to come on this miracle mission with me.
“That’s how you become great, man. Hanging your balls out there” — printer to Jerry Maguire
For a quarter century, I earned my living by pursuing my client’s rights in family court. I had an epiphany when Benedictus, a single father, and his son, Costas, suffered an incredible injustice. One ordinary day, this dad went to his son’s bus stop, and his son wasn’t there. Panicked, he called the school, and was told of a family court order depriving him of all custodial rights.
As his attorney, I learned that with no notice, no court jurisdiction, and no child abuse (even alleged), Benedictus’ son was instantly taken from him by a relative, her attorney, and an inattentive Judge who all opined that it was in his “best interest. ”
Stranger yet, the boy’s mother had died, so there was no other parent to fight with. And since the simple third party custody order did not specify dad’s parenting time— he didn’t get any.
“Who had I become? Just another shark in a suit?” — Jerry Maguire
My legal success in getting the custody order extinguished, the case dismissed, and the Judge removed —and $50,596.00 in unpaid legal fees — could not repair the damage caused by the instant disruption to this father and son with court authority.
Immersed in the family court for years, until meeting Benedictus, I did not comprehend family court jurisdiction, or its absence.
And because this good father was reluctant to abruptly remove his son from his environment (unlike the original perpetrators), and with no cooperation with reunification therapy, possession of his son remained with the relative, without any custody order.
“I had so much to say and no one to listen” — Jerry Maguire
I petitioned the Supreme Court to have my attorney fees paid by the offending attorney for misconduct. To defend against the fees, the relative’s attorney referenced the custody order that was vacated, asserted her custody motion was filed in “good faith”, and a Judge’s broad discretion to determine a child’s “best interest.”
I was blown away by the appellate court decision stating that even though the relative’s custody case was dismissed, because this father showed up in court to contest the custody order, there was family court jurisdiction.
Now this father required court intervention for the delicate return of his son, with no money for therapy, or his lawyer.
“I began writing what is called a mission statement. You know, a suggestion for the future of our company” -Jerry Maguire
With my failure to understand why the government’s judicial branch signed this custody order, I silently came to the radical belief that family courts should be abolished, and wrote a Mission Statement.
After recalling “dicta” (another word for irrelevant), where appellate court judges discussed removing the family court from the adversary process, I took a more diplomatic approach, and started a mission to keep broken families out of the adversary process one case at a time.
“I hated my place in the world. I had so much to say and no one to listen” — Jerry Maguire
I read a 286 page report by a Joint-Physical-Child-Custody-Presumption-Study Group detailing the pros and cons of joint custody.
Why could I now boil these pages down to one sentence?:
You are 100% your child’s parent, even when you break up.
Okay, I’m lawyer, two sentences:
You are 100% your child’s parent, even when you break up. Children are stuck with their knucklehead parents.
Sorry, it’s the lawyer in me… One more sentence:
Judges and lawyers are not in the business of rearranging nature.
“I had lost the ability to bullshit. It was the me I always wanted to be” — Jerry Maguire
In a custody case, appealed twice, with 50 court motions, the parents ultimately settled for joint physical custody with parenting time revolving around their work and social schedules.
In that case, I asked the Judge to order “Peace”, and he did —- on the record, but would not sign a written Peace Order I sent. When I asked him why, the Judge asked me to “define Peace.”
Over 25 years, orders have evolved from simple custody orders, with reasonable parenting time, to complex dogmas, intended to micromanage the parents relationship with each other, and the child, and to span a child’s minority years, and beyond. Custody orders written by lawyers and judges include details that parents living together refer to as “common sense,” even to the point of prohibiting disparaging remarks.
Breakups, ranging from parents together only to conceive, to married couples, should be about working out a schedule with the child, if a parent wants one. Courts are involved because parents and their attorneys ask, and Judge’s reply.
Judges, with no conception of your family’s definition of “Peace”, should be left out of it.
“That families can expected to live their daily lives within the pages of a court order is a fallacy. The courts set them up to fail.” — Michelle MacDonald
Court orders quickly become obsolete. Parents soon recognize that court orders cannot provide for the endless contingencies. Their compass is off.
Litigants that take court orders seriously, do not deviate; and return to court for changes, or to find the other parent in contempt.
At the other extreme (and the best case scenario), parents abandon the court order altogether, allowing family life to play out. These ideal parents may continue to disagree, but do not involve their lawyers or the court, if only because they ran out of money. As attorneys and judges, we know that courts are not particularly interested in enforcing the details of a final custody order.
No matter which parent you side with, we pretend that possession is not 9/10ths of the law. Parents and their lawyers are allowed to engage in endless criticism of the other parent, without their client ever having been a “witness”, like allegations that the a parent applied the wrong amount of suntan lotion on a child at the beach, or complaints that a parent purchased too many pairs of prescription eye glasses for the child.
But how relevant are these complaints, and would parents be so critical if the court wasn’t watching?
“To say it out loud. To put yourself out there so openly, no nakedly” — Dorothy Boyd
In 2000, the United States Supreme Court ruled that the 14th Amendment to the Constitution provides that fit parents have a constitutional right to make decisions regarding the “care, custody, and control” of their children (citing Troxel v. Granville, 530 U.S. 57, 70 (2000). This means that parents have had a fundamental right to make decisions regarding their child’s upbringing since the year 1868.
Laws, to include court orders that are the law of your family’s case, dilute parental rights. States have third party custody statutes, where non-parents, claiming to be “interested,” can involve parents in contested custody actions, opining that it’s in the child’s best interest to be raised by the them. Under authority of these complex statutes, non-parents file petitions in court to deprive parents of constitutionally protected custody rights by keeping possession of a child. They even convince Judges to redirect to a non-parent medical, housing, food, and other government assistance, including legal aid, social security and child support paid by an absent parent. These actions are filed either with no reports to child protection, or after child protection investigates and finds no maltreatment.
Judges delegate to experts. Lawyers, custody evaluators, psychologists, guardians, parenting time expeditors, parenting consultants, therapists, mediators, all get to weigh in on custody. Even after you are done with your court case, these experts shadow your family. Endless opinions of experts, to include other family members and friends, are allowed to evaluate parents who are breaking up, and with the intent to persuade a Judge, often to the exclusion of the opinions of the parent’s themselves.
Judges avoid a presumption of joint physical custody in dividing parenting time, and avoid custody decisions because Judges, parents, and their lawyers, have all missed the point: Just because you’re breaking up, doesn’t mean you are not 100% your child’s parent. The opinion of fit parents should be the only opinion that counts.
“Just because you’re breaking up, doesn’t mean you are not 100% your child’s parent. The opinion of parents should be the only opinions that counts.” —Michelle MacDonald
I am aware of only one district court Judge, new to family court, who in 2010 denied a request to modify a custody order citing Troxel. The mother went back to court with her lawyer to change a pickup time (agreed to in mediation), to prevent the father from taking his son to work and Alcoholic Anonymous (where there was daycare); to restrain the father from legally giving his son rides on his motorcycle, and prohibiting the father from referring to the child by his father’surname.
But Troxel was a fight between a parent and a relative. The other parent was dead.
Does the other parent have to die before family courts recognize that each parent possesses this constitutional right?
“We Live In A Cynical World, A Cynical World. We Work In A Business Of Tough Competition” — Jerry Maguire
A parent’s constitutional right to parent, unless they are unfit, begs the argument that the best use of court discretion in family court may be for Judge’s to refrain from exercising court discretion at all. If the family was not braking up, no court has authority to assist them in their battles. Why not let parents just battle?
Like a Judge who refused to order a separation requested by the lawyers of parents still living together, who were arguing about custody, parenting time, money, possession of the home, and that each should pay the other’s attorney fees.
Then there are other extremes. Like the case where all parental rights to the child are terminated, the adoptive parents obtain a harassment no contact order against a biological father, and the court orders access to the child, and a “parenting” time expeditor, requiring the child’s parents to pay all attorney fees.
Or the case of a biological father, who refused to pay court ordered child support after his son was born, and desired to terminate his parental rights. With no legal or physical custody rights, after child protection legitimately declined involvement, he obtains a temporary sole legal and sole physical custody order without notice to a mother who alone had raised their now 7 year old.
And the family court’s disregard of a child’s perspective, goes beyond disputes between the child’s parents, like the case where a child’s regular visits with her grandparent stop, and only start up again when her mother is jailed for contempt of a court order for grandparent visitation.
Separation, “temporary” custody, asking for as much property and money as possible. It’s posturing. Once a case is filed in the family court, the door never shuts. Cases get resolved by court orders, until a parent, the child or their lawyers, have a complaint about the other parent. Then court involvement is initiated all over again.
And why is it necessary that mediated agreements after final orders be incorporated into a new court order? Like the wealthy father, with “joint” physical custody, paying nominal support since his son was a toddler, who paid his lawyer $30,000.00 to take the mother back to court to change the custody label to “sole”, when the mother’s only objection to their teenager’s new living arrangements was that the father insisted their mediated agreement be reflected in court order.
“I think at this age optimism like that is a revolutionary act” — Dorothy Boyd
Parents disappointed in family court can agree. Eventually, other considerate parents, their lawyers, Judges and lawmakers may come to recognize what I grossly failed to recognize all of these years… Family court is not all that necessary.
“Family court is not all that necessary.” — Michelle MacDonald
Getting a divorce and breaking up is not an emergency. Emergencies involve the police, crimes, domestic abuse, and child protection.
Family court emergencies boil down to being evicted from your home, or when access to money or your children is denied by the other parent. Yet these traumatic events are what family courts are designed to facilitate.
“We don’t need to protect children from fit parents, we need to protect fit parents from the system.” —Michelle MacDonald
Family court’s legitimate function is to record vital statistics, like the fact of your divorce. While the event of divorce should be taken as seriously as the birth of a child, a marriage ceremony, an adoption hearing or a death, the divorce decree itself can be as simple as a birth, marriage, adoption or death certificate. Or might I add a criminal record. Family court does not need to protect children from fit parents. Fit parents need to be protected from the system.
“I love you. You complete me” –— Jerry Maguire
A vendor, calling himself “Donald Duck”, came over to fix my well. After I shared my law firm’s mission statement —“keeping broken families out of the adversary system.”— Donald profoundly said:
“Good luck with that one. No offense, but there is nothing worse than having to involve a lawyer.”
“You had me at Hello” – Dorothy Boyd.
This lawyer’s sentiments exactly.
“Hay, I don’t have all the answers in life. To be honest, I failed as much as I’ve succeeded. But I love my wife, I love my life, and I wish you my kind of success” Dicky Fox
My Mission Statement does not merely complain, but calls on its readers to make personal responses.