Informative Articles
The Adversarial System In General
The
adversarial system is based on the assumption that the truth of any given
situation can be determined (and therefore bring “justice”) only if the parties
are adversaries, rather than cooperative participants. This assumption is based on the presumption
that if both sides are allowed to present their version of any given situation,
an impartial third person (judge) or group of persons (jury) can somehow
determine the “real truth” of that situation.
Determining the “real truth”
then allows the
judge or jury
to declare one party the “winner” (not guilty) and the
other party the “loser” (guilty).
Therefore, the sole purpose of the adversarial system is to declare a
winner and a loser.
Again, the assumption [assuming the truth of any given situation can be determined (and therefore bring “justice” ) only if the parties are adversaries rather than cooperative participants] ... is based upon a presumption [that if each side presents their version of any given situation, then an impartial third person (judge) or group of persons (jury) will somehow be able to determine the real truth].
The assumption that the truth of any given situation can be determined only if the parties are adversaries, based upon the presumption that if both sides are allowed to present their version of any given situation, then an impartial court can determine the “real truth” of the situation, are notions that require both sides to take very strong advocacy positions when presenting their stories - regardless of the “facts” and in spite of the “truth.”
In come the attorneys. Attorneys are trained to take a strong advocacy position for their client. They are trained to “win.” They are not inherently prepared to mediate, negotiate and agree. So, if both attorneys are strong advocates for their positions, who “wins?”
As you can probably tell from the “assumption based upon a presumption” as outlined above, determining the “truth” of any given situation under the adversarial system would require equally balanced representation [meaning equally balanced advocates (attorneys)]. However, if one attorney is a stronger advocate than the other, or if one party has more money to spend on their advocate (with many attorneys their level of advocacy is directly proportionate to the amount of money they are paid), then obviously the “truth” will be slanted towards the party with the stronger advocate.
Find this hard to believe? Then don’t. Every month or so you will hear about a story about someone who had been wrongly incarcerated for many years, to only recently having been found “factually” innocent based on the fairly new DNA technology.
Many people have been cleared of wrongdoing due to DNA technology. If not for this technology, many innocent people would still be imprisoned for life (or worse, given death sentences). The reason many of these innocent people were found guilty is because the state has a lot more money to spend than does the average person on the street. As DNA technology has proven, the adversarial system is full of flaws, inequities, inaccuracies and outright deceptions - yet the adversarial system continues to be the “model” for all civilized countries.
And this is the system into which they dropped family court.
Again, the assumption [assuming the truth of any given situation can be determined (and therefore bring “justice” ) only if the parties are adversaries rather than cooperative participants] ... is based upon a presumption [that if each side presents their version of any given situation, then an impartial third person (judge) or group of persons (jury) will somehow be able to determine the real truth].
The assumption that the truth of any given situation can be determined only if the parties are adversaries, based upon the presumption that if both sides are allowed to present their version of any given situation, then an impartial court can determine the “real truth” of the situation, are notions that require both sides to take very strong advocacy positions when presenting their stories - regardless of the “facts” and in spite of the “truth.”
In come the attorneys. Attorneys are trained to take a strong advocacy position for their client. They are trained to “win.” They are not inherently prepared to mediate, negotiate and agree. So, if both attorneys are strong advocates for their positions, who “wins?”
As you can probably tell from the “assumption based upon a presumption” as outlined above, determining the “truth” of any given situation under the adversarial system would require equally balanced representation [meaning equally balanced advocates (attorneys)]. However, if one attorney is a stronger advocate than the other, or if one party has more money to spend on their advocate (with many attorneys their level of advocacy is directly proportionate to the amount of money they are paid), then obviously the “truth” will be slanted towards the party with the stronger advocate.
Find this hard to believe? Then don’t. Every month or so you will hear about a story about someone who had been wrongly incarcerated for many years, to only recently having been found “factually” innocent based on the fairly new DNA technology.
Many people have been cleared of wrongdoing due to DNA technology. If not for this technology, many innocent people would still be imprisoned for life (or worse, given death sentences). The reason many of these innocent people were found guilty is because the state has a lot more money to spend than does the average person on the street. As DNA technology has proven, the adversarial system is full of flaws, inequities, inaccuracies and outright deceptions - yet the adversarial system continues to be the “model” for all civilized countries.
And this is the system into which they dropped family court.
Family Court Within the Adversarial System
Family
courts are governed individually by each state, with each state having its own
peculiar laws, precedent setting cases and local rules. However, one common thread is no-fault
divorce, now the law in one form or another in almost all 50 states.
No-fault divorce simply means one party is not required to prove fault (guilty of some type of misconduct such as adultery or abuse) on the part of the other party in order to justify filing for divorce. Generally, all a person has to say is something like they believe their marriage is irretrievably broken due to irreconcilable differences and a divorce will be granted. Maybe more accurately, no-fault divorce has also been called unilateral divorce because no-fault allows either party, at any time, for any reason (or for no reason at all) to obtain a divorce.
In family court, the "must win" attitude of the adversarial process serves to perpetuate and exacerbate the parental conflict. When the attorney prepares the stage to “win” for their client, they are simultaneously appealing to their client’s sense of justice, vindication and validation. In this adversarial process, parents learn (or are taught by their attorneys) that in order to “win” in family court, they must cast the other parent in a significant bad light.
This “must win” attitude then provides the justification needed for one parent to verbally tear the other parent apart through false allegations of physical or sexual abuse, alcoholism, drug addition or some other form of dysfunction. The fact the party being unfairly and unjustly torn apart is the mother or father of the children involved is totally lost in the emotionally packed adversarial process of “winning at all cost.”
Therefore, in family court, the “truth” of any given situation is rarely discovered.
Generally, the only thing “discovered” in the adversarial family court process is which parent chose the better advocate. Hopefully the above simplified overview makes the following crystal clear:
Although family court is “no fault”
If you want to be a “winner”
Family court is nothing but fault.
No-fault divorce simply means one party is not required to prove fault (guilty of some type of misconduct such as adultery or abuse) on the part of the other party in order to justify filing for divorce. Generally, all a person has to say is something like they believe their marriage is irretrievably broken due to irreconcilable differences and a divorce will be granted. Maybe more accurately, no-fault divorce has also been called unilateral divorce because no-fault allows either party, at any time, for any reason (or for no reason at all) to obtain a divorce.
In family court, the "must win" attitude of the adversarial process serves to perpetuate and exacerbate the parental conflict. When the attorney prepares the stage to “win” for their client, they are simultaneously appealing to their client’s sense of justice, vindication and validation. In this adversarial process, parents learn (or are taught by their attorneys) that in order to “win” in family court, they must cast the other parent in a significant bad light.
This “must win” attitude then provides the justification needed for one parent to verbally tear the other parent apart through false allegations of physical or sexual abuse, alcoholism, drug addition or some other form of dysfunction. The fact the party being unfairly and unjustly torn apart is the mother or father of the children involved is totally lost in the emotionally packed adversarial process of “winning at all cost.”
Therefore, in family court, the “truth” of any given situation is rarely discovered.
Generally, the only thing “discovered” in the adversarial family court process is which parent chose the better advocate. Hopefully the above simplified overview makes the following crystal clear:
Although family court is “no fault”
If you want to be a “winner”
Family court is nothing but fault.
Helping Your Children With the Family Reorganization
Numerous
studies have shown the number one way to help your children cope with the
reorganization of your family is to assure them they will be able to have a
conflict-free relationship with the other parent.
A conflict-free relationship will also minimize the stress and pressure on your children. Working cooperatively with the other parent will lessen the danger of long-term problems for your children. Although assuring your children of a conflict-free relationship with the other parent is the number one way to help your children, it is not the only way.
Another major factor is the way you cope with the family reorganization. The way you cope with the family reorganization will have a major impact on how your children cope with it. Your behavior will have a great influence on the emotional adjustment of your children. In other words, the way you feel about yourself will affect the way your children will feel about themselves.
If you are have a positive outlook and are moving on, they will be influenced to be positive as well. If you are discouraged and depressed, they have a greater chance of also being discouraged and depressed. If you are angry and frustrated, they will have a role model of how to stay angry and frustrated as well. Therefore, if you want to give your children the best fighting chance to successfully survive the family reorganization, assure them of a conflict-free relationship with the other parent and provide them with a healthy role model by maintaining good coping skills and behaviors.
Being realistic is also important. Even if you are able to maintain a perfect conflict-free cooperative relationship with the other parents, and even if you are able to demonstrate excellent coping skills and behaviors, there is just no way of getting around the fact the breakup of the family structure will be hard on your children. They may not always show their stress, but they are experiencing it. They may not initially realize what is happening to them or what it will mean for their future, but they will have fears about their future.
Your children will want to know who is going to take care of them now that you and the other parent are not living together anymore. Who is going to feed them? How will the other parent survive. They may experience a deep sense of sadness, loss, anger and frustration because of their separation from one of the two most important adults in their lives.
Because of these feelings and experiences, your children may act younger or differently than they did before you separated. They may start suddenly clinging to you, the other parent, or both. Younger children may feel they have done something wrong and believe the separation is due to something they have done wrong.
Some children even feel some action or secret wish of theirs has caused the trouble between their parents. Older children may start having difficulty at school, they may even start having problems with extended family members and friends.
Some children have very strong and intense feelings that their parents are total opposites of each other on almost all issues. This is true even when parents have going through a very “amicable” divorce. In these cases, the children feel that they need to take care of their parents, rather than their parents taking care of them.
The bottom line is that each child will experience their family reorganization differently. What you will want to do is to take the time to listen, not problem solve and not fix it, just listen to your children’s experiences about the restructuring process. If you truly listen to your children, the you can help them feel less isolated and alone, you can help them see this is a family restructuring and reorganizing process and its not just happening to them, it is happening to all family members.
A conflict-free relationship will also minimize the stress and pressure on your children. Working cooperatively with the other parent will lessen the danger of long-term problems for your children. Although assuring your children of a conflict-free relationship with the other parent is the number one way to help your children, it is not the only way.
Another major factor is the way you cope with the family reorganization. The way you cope with the family reorganization will have a major impact on how your children cope with it. Your behavior will have a great influence on the emotional adjustment of your children. In other words, the way you feel about yourself will affect the way your children will feel about themselves.
If you are have a positive outlook and are moving on, they will be influenced to be positive as well. If you are discouraged and depressed, they have a greater chance of also being discouraged and depressed. If you are angry and frustrated, they will have a role model of how to stay angry and frustrated as well. Therefore, if you want to give your children the best fighting chance to successfully survive the family reorganization, assure them of a conflict-free relationship with the other parent and provide them with a healthy role model by maintaining good coping skills and behaviors.
Being realistic is also important. Even if you are able to maintain a perfect conflict-free cooperative relationship with the other parents, and even if you are able to demonstrate excellent coping skills and behaviors, there is just no way of getting around the fact the breakup of the family structure will be hard on your children. They may not always show their stress, but they are experiencing it. They may not initially realize what is happening to them or what it will mean for their future, but they will have fears about their future.
Your children will want to know who is going to take care of them now that you and the other parent are not living together anymore. Who is going to feed them? How will the other parent survive. They may experience a deep sense of sadness, loss, anger and frustration because of their separation from one of the two most important adults in their lives.
Because of these feelings and experiences, your children may act younger or differently than they did before you separated. They may start suddenly clinging to you, the other parent, or both. Younger children may feel they have done something wrong and believe the separation is due to something they have done wrong.
Some children even feel some action or secret wish of theirs has caused the trouble between their parents. Older children may start having difficulty at school, they may even start having problems with extended family members and friends.
Some children have very strong and intense feelings that their parents are total opposites of each other on almost all issues. This is true even when parents have going through a very “amicable” divorce. In these cases, the children feel that they need to take care of their parents, rather than their parents taking care of them.
The bottom line is that each child will experience their family reorganization differently. What you will want to do is to take the time to listen, not problem solve and not fix it, just listen to your children’s experiences about the restructuring process. If you truly listen to your children, the you can help them feel less isolated and alone, you can help them see this is a family restructuring and reorganizing process and its not just happening to them, it is happening to all family members.
Dealing With Your Feelings Around Children
Recuperating
from the adversarial family court procedures and processes is essential. You will be consumed by concerns for your
future, your children’s future, finances, emotions of anger, rage, hurt and
frustration. One of the paramount
concerns will be your role as protector, you will be unable to protect your
children from the ravages of the adversarial process (which mandates you and
the other parent must destroy the other at all costs). It is during the middle of this war that your
children will need you the most.
You will be very busy trying to keep your job, staying involved in the adversarial court process which will dictate your future, and yet also have time to take care of your children’s emotional needs. Family court will be exhausting for both you and your children. However, it is very important to remember your children still need your guidance, your reassurance, your protection and your support.
Your behavior will have a great influence on the emotional adjustment of your children - the way you feel about yourself will affect the way they feel about themselves. The way you cope with your family’s reorganization will in large part determine how your children cope with it. You will need to be considerate of your children's needs and try to understand the breakup from their perspective. If you do, you will be able to see the most important issue for you to do is to remove your children from the center of any parental conflicts.
I believe the best way to remove your children from the center of any parental conflicts is for YOU to use the experience of the family reorganization as an opportunity for personal growth and understanding - not anger, depression or revenge. By allowing yourself space for personal growth and understanding, you can continue to be effective as a parent and not only meet your child's needs, but your own needs as well.
Your personal growth and understanding, your effective parenting, meeting your children’s needs, and even taking care of your own needs, all of these will accelerate the healing process for both you and your children.
You will be very busy trying to keep your job, staying involved in the adversarial court process which will dictate your future, and yet also have time to take care of your children’s emotional needs. Family court will be exhausting for both you and your children. However, it is very important to remember your children still need your guidance, your reassurance, your protection and your support.
Your behavior will have a great influence on the emotional adjustment of your children - the way you feel about yourself will affect the way they feel about themselves. The way you cope with your family’s reorganization will in large part determine how your children cope with it. You will need to be considerate of your children's needs and try to understand the breakup from their perspective. If you do, you will be able to see the most important issue for you to do is to remove your children from the center of any parental conflicts.
I believe the best way to remove your children from the center of any parental conflicts is for YOU to use the experience of the family reorganization as an opportunity for personal growth and understanding - not anger, depression or revenge. By allowing yourself space for personal growth and understanding, you can continue to be effective as a parent and not only meet your child's needs, but your own needs as well.
Your personal growth and understanding, your effective parenting, meeting your children’s needs, and even taking care of your own needs, all of these will accelerate the healing process for both you and your children.
United Fathers is an IRS 501(c)3 public benefit nonprofit organization.
United Fathers of America was founded in 1975. In 1976, we were determined to be tax exempt by the California Franchise Tax Board and contributions to the organization became deductible by donors as provided by California Revenue and Taxation Code Sections 17214 through 17216.2 and 24357 through 24359. We were approved as a federal tax exempt Internal Revenue Code 501(c)3 nonprofit organization in 1979.
Donations to United Fathers of America are fully tax deductible as allowed by law. See your tax preparer for details.
Since 1976, United Fathers of America has been primarily supported by donations from dedicated dads. All donations go to furthering the mission and primary goal of United Fathers of America.
• State ID: 0800712
• State Charity Registration: 46390
• Tax exempt 501(c)3
• Federal ID: 95-3338538
__________________________________________________________
DISCLAIMER
The information provided on the website is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for legal advice. The information provided is not intended to address every possible situation or issue that may be involved or that may arise. Please be aware that laws, regulations, and technical standards and issues change over time. As a result, it is important for the reader to verify and update any reference or information that is provided on this website.
United Fathers of America was founded in 1975. In 1976, we were determined to be tax exempt by the California Franchise Tax Board and contributions to the organization became deductible by donors as provided by California Revenue and Taxation Code Sections 17214 through 17216.2 and 24357 through 24359. We were approved as a federal tax exempt Internal Revenue Code 501(c)3 nonprofit organization in 1979.
Donations to United Fathers of America are fully tax deductible as allowed by law. See your tax preparer for details.
Since 1976, United Fathers of America has been primarily supported by donations from dedicated dads. All donations go to furthering the mission and primary goal of United Fathers of America.
• State ID: 0800712
• State Charity Registration: 46390
• Tax exempt 501(c)3
• Federal ID: 95-3338538
__________________________________________________________
DISCLAIMER
The information provided on the website is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for legal advice. The information provided is not intended to address every possible situation or issue that may be involved or that may arise. Please be aware that laws, regulations, and technical standards and issues change over time. As a result, it is important for the reader to verify and update any reference or information that is provided on this website.