Problems in Family Court That Fathers Should Prepare For

 by Shane Flait (2010)

Problems with the family court setup include laws that are discriminatory to whoever becomes the non custodial parent – overwhelmingly the father. But as bad these laws are, their administration is worse. Fathers can’t depend on lawyers to defend them effectively in this process.

This article overviews problems in the family court setup which fathers should guard against.

Family court typically awards the mother custody of the children while making the father a noncustodial parent obliged to pay up to a third of his income in ‘child support’ payments. That’s because

• the court asserts that it can decide who will get custody of the children based on the judge’s determination of ‘best interests of the child’ and
• family court judges adhere to views that discriminate against fathers – and for mothers - as parents.

The first point violates of one’s constitutional right to parent. Denying that right requires the court to prove the father is unfit to parent with a jury trial by clear and convincing evidence. Constitutionally, the ‘best interest of the child’ resides in a fit parent, not the state!

The second point violates equal protections of the 14^th Amendment, not to mention invidious discrimination.

But even under family court laws and rules fathers must prepare to protect themselves against court personnel. They often disregard rules they’re supposed to follow.  The main characters in family court are the judge, the parents’ lawyers, and guardians ad litem. Knowing what their job is and where they can go wrong is important.

The judge: his job and where he may go wrong

There is no jury in the family court. So in a divorce trial, the judge decides - according to the record, evidence, and testimony before him - what the ‘true facts (called ‘findings of facts’) are. Then he makes his final judgment (i.e. a set of orders) which should be consistent with these findings of facts.

The trial judge can make mistakes (called errors) when his findings of fact are clearly not consistent with the record or what was proved in the trial. He may also misapply the law to his ‘findings of fact’.

The wife’s lawyer: what he tries to accomplish

Typically the wife's lawyer will make the father out to be bad father, a controlling husband, maybe abusive to wife and/or children, unable to care adequately for children, and making a lot of money - or should be making a lot! That’s because they want to show

• It’s in the best interest of the children to make the father a noncustodial parent, and
• He should pay as high a child support payment as possible

The wife’s lawyer may coach the wife to misrepresent or distort the facts and create unsupported accusations against the husband. He’ll not the let the wife settle without an outrageous settlement in her favor.

He’ll try to force the father into an unreasonable settlement because, unfortunately, the trial judge will probably make a heavy judgment against the father. He may try to force a settlement by bringing the father to court often to run up his lawyer bills and the father may be told to pay both his own and his wife’s lawyers’ fees.

Where does the father's lawyer goes wrong?

The father’s lawyer should prepare well to defend against all accusations. He should require clear evidence for any accusations, be aggressive at defending the father and go after the wife’s character for making such unfounded accusations.

Unfortunately, his lawyer often doesn’t spend the time to create a good defense, effective briefs and supporting citations so he can force the judge to rule more in the father’s favor. It’s too much work. He won't buck the system – where judges are clearly pro-wife or mother - by aggressively objecting, or even appealing.  He’s worried about suffering the anger – unjustified as it may be - of the judge who the lawyer must see all the time in his work. 

Guardian ad litem (called GAL for short): What is his job?

He or she to evaluates your children and their relation to you.

Where do GALs go wrong? They’re appointed by a judge who continually recommends those who find ‘things’ in a way that the judge wants things found. There are really no requirements to be a GAL. Any lawyer can request to be an evaluator of your children and their relation to you.

Where fathers go wrong

Fathers make the mistake of remaining unwitting pawns in this game. Fathers must get ‘in the know’, and take aggressive action to control their case to minimize the damage to themselves. If need be, they should go pro se, if their lawyers are unwilling to effectively fight for the father’s fundamental rights.

Shane Flait is a writer and educator