Saturday, August 21, 2010

There are no winners in child custody cases

I've noticed that a certain American law firm (who I will not name) has recently been using its blog to announce to the world child custody cases that it has 'won'.

Now, I'm sure that this will impress some people, and may therefore even bring the firm some new clients, but it does not impress me.

For a start, even the worse law firm will from time to time achieve the result that its client is seeking, and to publicise those cases without reference to all of the other cases that the firm handles is meaningless in terms of indicating how good the firm is at its work.

More importantly, however, the idea of 'winning' in child custody work (or, for that matter, in any type of family work) is, I think, repugnant and archaic. We are not talking about money claims here, we are talking about the lives of children. To suggest that these cases are some sort of competition, with custody being the 'prize' that the court hands out is to miss the point entirely. The only thing that matters is what is best for the children. The terminology of 'winners' and 'losers' encourages a confrontational attitude in the parents, which ultimately can only be damaging for the children.

Of course, confrontational parents means more contested cases, and more fees for the lawyers...


  1. John, I tend to agree with you under most circumstances. Most people would. But before you get too rough on us lawyers, let me point you to one of my postings on my blog:

    Sometimes, there can -sort of- be 'winners'. And when the kids go on to healthier, happier lives with one parent, that makes the world a better place.

    Believe me, I speak from experience and from the heart. And for the moms and dads I've represented over the years. Custody cases are grueling for everyone - even the lawyers.

    But I absolutely agree with you that the concept of children as chattel to be won and lost, akin to being bought and sold, is an anathema, as are idle and egomaniacal boasts of a record of 'victories'. Makes me want to cringe...

  2. Hmm. I take your point, but I would still baulk at calling anyone 'winners'. After all, those children could also be said to have 'lost' the non-custodial parent.

  3. Yes, the problem is it is an adversarial process and the truth is so subjective as to be bought. Therefore the matter of what is in the children's interests by some Judge who hasn't a clue what he is talking about from so many smoke and mirrors does result in a winner (usually who has spent the most on lawyers) and the losers, usually the other party and the children. Unless we are talking about rich people, then I don't know. As someone in the UK may be different in the US, but this is what I have seen.

  4. I agree that the adversarial process doesn't help, but obviously an inquisitorial process can come up with exactly the same result. This is not about the process, but about the terminology.

  5. John, Terri, All,

    Point well taken on all counts. But I am leaning more towards the school of thought that we shouldn't think of it in terms of winning and losing where children are concerned. The adults win and lose. The children just lose because nothing will be the same. Now, if they are in fact losing an abusive parent, then it's a good loss. But loss nontheless.

    Good work John. Terri, I see we meet again...over the pond! You're good people. I love those excerpts on Bedroom to Courtroom.

    Jeannie Goldstein

  6. Semantics are tough, In NY, we had 'law guardians', now called 'attorneys for the child'. Now we have 'no-fault' divorce- what is that, anyway? Nobody's fault? Or are both spouses equally responsible for the breakdown of the marriage? 'Equitable distribution' is another good one. (sigh)

    John, you make an excellent point about the 'winning/losing' jargon. But as I look over these comments, I think I'm actually more concerned about the adversarial message that sort of boast sends, apropos the comments of Anonymous.

    Jeannie and John, I think we're also on the same page on this - losing a 'bad' parent is still the child's loss...


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