Best Interests of Children

The only people in a courtroom who are in a position to know what might be in the best interests of a child are his parents.  And even they often disagree.  Judges are required by statute to base their decisions on the best interests of the children whose lives are in their hands.  But the legal system puts so many obstacles in the way of judges that it is really only by chance that they ever stumble on a ruling that is actually best for a child. 

The fundamental problem for children and their parents is that the legal systems in the United States are adversarial.  Conflict is largely all we know.  When you walk into the courtroom, the bailiff hands each parent a hammer, and when the judge says, "Let's hear your evidence," what he really means is, start swinging.  We start with the assumption that the winner of this fight will be the party who deserves to win.  That much may be strictly true, in the same sense in which might does, in fact, make right.  But the point is that deserving to win in the legal system often means only that you're better than the other party at story-telling and self-promotion and battering the other parent.  It does not mean that you have won "on the merits," as lawyers and judges often say.  And it certainly does not mean that a child is better off as a result of your winning.

These are real problems, but they are not hopeless.  They are caused primarily by legislatures who make laws that judges and lawyers must live by.  These laws more or less guarantee that a child's interests will be obscured by the legal system that implements the laws.  So one solution is to work to change these laws.

Another solution is in the hands of parents.  Know in advance that if you fight in court over your children they will suffer as a result.  Know that if you put their fate in the hands of lawyers and judges, they will be injured by the legal process.  And know that you do not have to submit to this process.  Find a way to settle your own differences so that you can both parent your children.  They need both of you.  Accept that the other parent is not like you and parents differently from you.  Accept that you might have to pick up the slack when you think the other parent is not doing enough for the children.  And above all else, find a way to stay out of court.

Rules of Evidence

Courts are not concerned with "truth," so much as they are concerned with following the rules of evidence.  These rules serve primarily to keep out evidence.  Lawyers work hard to keep out evidence that harms their clients, and to get evidence admitted that helps them.  What is left at the end of a trial is a collection of evidence, a patchwork that looks only vaguely like the world outside the courtroom.  To make matters worse, according to one retired federal judge, even after all the evidence is presented, judges simply don't know which facts are true and which are not.

Lawyers get used to this.  It's a form of dishonesty if you speak in strict terms, this fighting over evidence, and yet you get used to it.  I can't recall how many times I've explained this to a client preparing to testify.  It's one of the reasons lawyers sometimes get a bad reputation.  They learn to deal with evidence and not, strictly speaking, with truth.  This is not merely a matter of semantics.  There are so many ways to present the same set of facts that the notion that there is an objective "truth" starts to disintegrate whenever you look closely at it.  Scientists in the hard sciences are especially hard-headed about the truth.  They are the hardest to convince that the truth per se is not all there is to a legal trial.

An illustration: A civil engineer is injured when another driver runs a red light and crashes into him.  The other driver is clearly at fault.  The engineer hires a lawyer, who sues for damages, including, among other things, medical expenses, lost income, pain and suffering.  The engineer's shoulder is shattered.  One doctor compared the injury to a porcelain vase shattering.  It will never fully recover.  But the engineer is tough, both mentally and physically.  He refuses the prescription pain medication; pushes through the rehab in record time; misses only a few days' work.  And at trial he is more committed to the truth than he is to winning his case.  When asked about his physical therapy, he stands up from the witness chair and starts making a very animated motion as if he is starting a lawnmower.  And even though he now has a very limited range of motion, for a moment he looks like nothing is really wrong with him.  When asked about his pain, he tells the jury that it's nothing he can't handle.  And this is the truth.  The other lawyer highlights the fact that the engineer did not take pain pills, that he missed only a few days' work, and that he is able to stand up in a courtroom and look so vigorous.  For the engineer, this is honesty: He refused to be defeated, even by a very serious injury.  For the jury, it is proof that his injuries were not nearly as severe as his lawyers were claiming.