Introduction. In thinking about preventive law, analogies from medicine and public health come immediately to mind. While much has been written about preventive medicine, including early screening, detection, and intervention for disease, only recently have judges, lawyers, academicians and the public begun to address preventive law and its philosophical cousins, therapeutic justice and restorative justice. It is my view that by thinking about and sharpening these concepts, then applying them to a unified family court system, we will help save lives, reduce injury, and provide needed services to the many children and families who appear daily in our nation’s courts.
There has been substantial public and academic debate over the years about how deeply government should intrude into a family’s life, particularly a family in legal and social distress. Issues of family autonomy and privacy compete with a desire to protect vulnerable children and spouses and provide needed services. Most people would agree that government has an obligation of some sort to intervene in the life of a family who finds itself faced with problems such as domestic violence, child abuse or child custody. While these philosophical questions have engaged and bedeviled academics, legislators, judges and attorneys over the years, I would suggest that when society chooses to intervene, it must be done well and with some measure of public accountability. By supporting a unified family court for families and children that is not only fair and effective, but therapeutic, restorative, preventive and mission driven, society begins to hold itself accountable for the well being of these families and children in distress.
I have attached a case scenario to this article outlining a typical family who might appear in any of the family and juvenile courts of this country. This family faces multiple legal problems including divorce, paternity, juvenile delinquency, child abuse and neglect, and domestic violence (both civil and criminal). In addressing this family’s problems, a system that is not unified or closely coordinated and has no commitment to preventive, therapeutic or restorative justice could inadvertently increase the party litigants’ risk of injury or death and could certainly cause unfair results. This could occur by ignoring key risk factors found in other court pleadings or by allowing multiple courts and judges to resolve their problems with conflicting, duplicative, or boilerplate orders.
Jurigenic harm: In medicine an inadvertent harm (including death and injury) caused by medical care or intervention is termed an “iatrogenic effect.” Such harms are generally avoidable and attributed to a flaw in the system and not purely the result of human error. There has been widespread media and academic discussion over the years about iatrogenic effects. Unlike medicine, there has been very little discussion of the inadvertent harms caused by the justice system which result in death or injury. The unfortunate failure to chronicle and correct such errors has only recently been addressed.
Some years ago I coined the term “jurigenic effect” to include those unanticipated harms caused by the justice system. Such harms might include the granting of child custody to a violent caretaker in a divorce case thereby endangering the children; allowing excessive attorneys fees in a small divorce case virtually bankrupting the parties; or requiring child victims to undergo unnecessary interviews and hearings in child protective cases resulting in repeated emotional trauma for the children. While these harms may be unintended and the result of system failings, they are as real as any anticipated consequences and must be recognized and candidly discussed. It is my view the topic of jurigenic effects is ripe for greater legal scholarship. Certainly the media and some legislative forums have addressed and documented these systemic failings over the years.
Therapeutic and Restorative Justice. In my view therapeutic justice requires bringing an ethic of care to the law through the efforts of the attorneys, judges and staff, just as doctors and nurses would in caring for a patient in a medical setting. This ethic of care requires the families and children who come before the court to be treated with great civility, dignity and patience. Efforts must be made to develop a rich source of information about their problems so that a variety of disciplines and areas of expertise such as social work, family dynamics, child development, psychology, and medicine are brought to bear on the family’s problems. The family intervention should include prompt, front end loaded, well-documented and case specific services, rather than a bureaucratic, one size fits all (or one size fits none) case plan. Consistent with due process every effort should be made to minimize the impact of adversary court hearings so the family may continue on its way without emotional and financial devastation. This commitment to therapeutic justice may require early settlement conferences, family group conferencing, mediation and other less adversarial forms of dispute resolution. Every effort should be made to be collegial, user friendly, and prompt. And when a contested hearing is needed, it should be conducted in a civil and productive manner. Does this sound like your typical judicial system? If not, care should be taken to figure out why the system cannot accommodate this ethic of care.
Restorative justice complements therapeutic justice in that it involves the community and all parties, including offenders, victims, their families and even their neighborhoods and communities in a process that tries to make everyone as whole as humanly possible. This could include an apology, restitution, community service, or accountability by way of probation, jail or prison. It attempts to restore key relationships between offender, victim and community, rather than pursue the false dichotomy of punishment or rehabilitation. Such a philosophy has been implemented with great success in a variety of cases involving children, youthful offenders and adult offenders. It has applications in all types of law especially family law. By combining therapeutic justice with restorative justice, litigants and their families will be less likely to emerge frustrated, angry, and ashamed from the process. Hopefully they will find a greater sense of resolution, closure and respect for each other and the justice system. This is not only salutary but truly preventive in nature, particularly where the relationships are improved or repaired where possible. Based on my judicial experience of over twenty years, it is also quite rewarding to the attorneys, judges and staff involved which is no small feat.
Court structure. Where there is a commitment to preventive, therapeutic and restorative justice, the court structure must support and not frustrate those philosophical values. The history of the unified family court in America demonstrates that those communities with such courts and philosophies are better off for it. There are several suggested components of an effective unified or closely coordinated family and juvenile court. They are:
- Jurisdiction: There must be comprehensive jurisdiction in one court over the myriad legal problems which children and families bring to the court. This would include divorce, paternity, juvenile delinquency, child abuse and neglect, termination of parental rights, adoption, guardianship, domestic violence protective orders, child support, civil commitments for mentally ill persons, and in some states, criminal jurisdiction over domestic violence among intimate partners.
- A Family Court Center: These cases should come to one venue or courthouse where these families can be screened and assessed by competent staff. Often cases can and should be diverted or mediated. Others require a skilled judge to adjudicate their concerns. It may be that the least used room in the courthouse is the courtroom, if proper support services and staff are in place to address the families’ legal and social concerns early on.
- Judges and Staff: In my view there should be one judge/one family or one judicial team/one family so there is some continuity and consistency for the families involved. Further, judges and staff must possess the interest and temperament to deal with families and pro se litigants in distress on a daily basis. They must be exceedingly collegial given the sensitive family issues and the heavy caseload. Such judges and staff must be highly trained and motivated to learn multi-disciplinary skills in such areas as psychology, medicine, social work, science, mediation, and family dynamics. They must be able to administer a varied and often emotional calendar. Of great importance is a desire to serve in a unified family and juvenile court and make a difference in the lives of the families and children who appear in court.
- Access to the court: The unified family and juvenile court is the judicial equivalent of a community hospital including a fully staffed emergency room. Because many family and juvenile court cases involve emergency orders which are matters of life and death (such as domestic violence restraining orders, temporary child custody orders, and emergency mental commitments), there must be prompt and easy access to the court. Litigants and families who are poor and choose to proceed without lawyers must be given a user friendly method of using the court and its services through trained staff and/or pro se manuals or forms including computerized access. Procedures must be in place so that court orders can be promptly and effectively enforced thereby maintaining the authority and integrity of the court. In short, the unified court is a one stop shop or a courthouse of many doors where the community can go for legal and family services.
- Alternative dispute resolution: Every effort must be made to use the least intrusive means of resolving the legal and social problems of the families who appear before the court. This requires an early assessment component and diversion, when appropriate, to alternative and effective methods of solving each family’s legal and social problems. Examples range from a diversion of juvenile delinquency petitions, to presumptive mediation in divorce, paternity, dependency, and juvenile cases, to family group conferences. This is an area where judicial leadership can shape and guide the resolution of family problems while discouraging unnecessary and expensive involvement in the adversarial process.
- Access to a continuum of community and public services: A unified family and juvenile court must provide a broad array of effective services for the families and children over whom the court presides. Such services are usually best delivered in the local community with the cooperation of the public and private agencies. Examples are mediation services, visitation centers, CASA volunteers, a close working relationship with the local bar, child interview centers, substance abuse treatment including a juvenile drug court, domestic violence intervention, divorce education and comprehensive services for juveniles. The very existence of a unified court will encourage such services, as families with very similar problems and needs will appear on the different calendars being heard by the judges. The very same services are often needed regardless of the kind of case before the court. For example a divorcing family in serious distress with acting out children may require the same services as one with a child who commits a serious offense.
Conclusion. A unified family and juvenile court committed to dispensing preventive, therapeutic and restorative justice will result in better services and justice for the children and families who enter the courts of America daily. Such a court must promote and model fairness and effectiveness together with an ethic of care and a restoration of relationships where possible. As a result, future legal and social problems are more likely to be prevented. Public trust and confidence in the judiciary will grow, as will economic and political support. A unified family and juvenile court is one that will save lives and make decisions that truly count for the future of our families, our children, and ultimately our communities.
HYPOTHETICAL CASE EXAMPLE
Marie and Frank have been married 15 years, but separated for the past three years. Marie and Frank’s 14 year old daughter, Danielle, has been living with her mother, Marie, since her parents’ separation. Marie also has a two-year-old son, Sam, by her current male friend, Ben.
Danielle has been allegedly neglected by Marie. Marie regularly stays out late at night (until 2:00 a.m.) leaving Danielle alone with her two-year-old brother, Sam. In addition, runaway and shoplifting charges are pending against Danielle. The question of placement has arisen and child protective services is considering placement of Danielle in Frank’s home.
Sam may be developmentally delayed, possibly due to fetal drug or alcohol exposure.
Ben files a paternity action and seeks custody of Sam. Marie files for divorce and seeks custody of, and support for, both children. Frank cross-claims for divorce and seeks custody of Danielle but denies he is the father of Sam. Marie further requests a restraining order against Frank based on an incident at a visitation pick up and drop off. Frank was arrested and charged with misdemeanor assault on Marie; a charge he vehemently denies. Danielle witnesses the incident and she is subpoenaed for the criminal trial.
How would the divorce, paternity, child protective (or dependency) case, juvenile delinquency (or status offense), civil protective order, and criminal cases proceed in your community? How would these cases proceed in a unified or closely coordinated family court? Would applying a philosophy of preventive, therapeutic and/or restorative justice to this family make any difference?
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married unmarried
Danielle Sam
Age 14 Age 2
