writing sample law school

Family Law Theory and PolicyJamie Kurylo McMahon

A Call for Divorce, Custody and Support Reform in Philadelphia County

The notion that ordinary people want black-robed judges, well-dressed lawyers and fine-paneled courtrooms as the setting to resolve their disputes isn’t correct. People with problems, like people with pains, want relief and they want it as quickly and inexpensively as possible.

Chief Justice Warren Burger1

Adversarial litigation has increasingly been viewed as an overly expensive, complicated,

painstakingly slow dispute resolution process that exacerbates interfamily conflict and is

detrimental to children.2 Alternatives to adversarial litigation have been suggested in order to

improve the process of divorce for families by shifting the focus to their emotional and educational

needs as opposed to solely on their legal rights and responsibilities.

A divorcing family should be provided with multiple interest-based and cost-effective

dispute resolution methods in order to ensure the most appropriate method is selected.3 For

example, it has been argued victims of domestic violence and couples with an extreme power

imbalance are unfit candidates for mediation.4 Mediation is a confidential procedure conducted by a

neutral professional where the parties are responsible for determining their own outcome.5 Thus, in

mediation it is necessary to encourage both parties to feel as though they are able to advocate for

themselves and adequately express their own interests without fear of retribution.6 Victims of

domestic violence often exhibit feelings of powerlessness and intimidation, which could lead to an

1 Address by Chief Justice Burger at the ABA Conference on the Resolution of Minor Disputes (May 27, 1977), quoted in Wall St. J., Oct. 27, 1978, at 48, cols. 5-6.2 See Thomas E. Carbonneau, A Consideration of Alternatives to Divorce Litigation, 1986 U. ILL. L. REV. 1119, 1119-23 (1986). 3 Gregory Firestone and Janet Weinstein, In the Best Interests of Children: A Proposal to Transform the Adversarial System, 42 FAM. CT. REV. 203, 208-209 (2004).4 See generally Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545, 1600-1607 (1991)(discussing the dangers of mandatory mediation for those suffering from physical or mental abuse and noting that this danger falls disproportionately on women).5 John Lande and Gregg Herman, Fitting the Forum to the Family Fuss, 42 FAM. CT. REV. 280, 282 (2004).6 See generally id.

1


unbalanced agreement.7 The dispute resolution process chosen should best fit the needs of all

involved parties.8

In an effort to decrease the detrimental impact of litigation on divorcing families and make

divorce more efficient, many jurisdictions have found it beneficial to provide parties with less

contentious alternative dispute resolution programs. For example, some jurisdictions have

implemented triage systems,9 mandated mediation,10 created education programs to inform parents

of the dispute resolution processes available,11 and provided social services such as individual

counseling.12 These approaches have helped to provide families with their emotional and

educational needs in addition to decreasing the amount of unnecessary and improper litigation when

the dispute is no more than an unaddressed emotional issue.13 In addition, many of these programs

have been able to implement an effective screen for families with a domestic violence concern.14

However, Philadelphia County is not one of these jurisdictions. When a divorce is filed in

Philadelphia, the couple is not advised of alternative dispute resolution options or directed towards a

mandatory mediation program. The couple is not educated on the legal processes available or

instructed how to help their families cope and adapt during this time of transition. Instead,

Philadelphia County provides a two page online only brochure with information regarding fault and

no fault divorce, alimony, property distribution, filing location, and cost of the filing fee.15 A phone

7 Id.8 Firestone, supra note 3, at 209-210.9 Peter Salem, Debra Kulak, and Robin M. Deutsch, Triaging Family Court Services: The Connecticut Judicial Branch’s Family Civil Intake System, 27 PACE L. REV. 741, 746 (2007). 10 See e.g. Yelena Ayrapetova, HB 004: Mandatory Divorce Mediation Program Passed in Utah, 7 J.L. & FAM. STUD. 417, 417-419 (2005); H.B. 4, 2005 LEG., 56TH SESS. (Ut. 2005), available at http://tax.utah.gov/adr/handouts/2005-03-09-04.pdf. 11 Susan L. Pollet and Melissa Lombreglia, A Nationwide Survey of Mandatory Parent Education, 46 FAM. CT. REV. 375, 377 (2008). However, Pollet states that cooperative parenting should not be encouraged when domestic violence is an issue. Id. 12 Alicia M. Homrich, Michelle Muenzenmeyer, and Alice Blackwell White, The Court Care Center for Divorcing Families, 42 FAM. CT. REV. 141, 141 (January, 2004). 13 Homrich, supra note 12, at 141-142. 14 Salem, supra note 9, at 746; See e.g. Ayrapetova, supra note 10, at 417-419; H.B. 4, 2005 Leg., 56th Sess. 15 Divorce in Philadelphia County, (March, 2007) available at http://fjd.phila.gov/pdf/brochures/dr/divorce-brochure.pdf.

2

http://tax.utah.gov/adr/handouts/2005-03-09-04.pdf

http://tax.utah.gov/adr/handouts/2005-03-09-04.pdf


number is provided for the Philadelphia Bar Association’s Lawyer Referral and Information Service

on the last page.16 In addition, Philadelphia County provides a two page online only brochure

regarding custody mediation stating more information will be provided when you arrive for your

first hearing.17

Even if a divorcing couple does take the initiative to conduct online research and does call to

obtain information, it is not enough to direct the majority of divorcing families away from

adversarial litigation. In order to reduce the negative effects of litigation on divorcing families in

Philadelphia, make divorce a more efficient process, reduce the cost of obtaining a divorce, and

increase awareness of alternative dispute resolution processes available, Philadelphia County should

implement a new comprehensive, court-annexed dispute resolution program focusing on the

emotional and educational needs of divorcing families and increasing the efficiency of the divorce

process.

Part I of this article will discuss the problems associated with the litigation process in

Philadelphia, focusing on the harmful effects of litigation on the divorcing family, the expense of

litigation, the time-consuming nature of the process, and the fact that there is a lack of awareness

regarding alternative dispute options. Next, Part II will analyze the attempts of other jurisdictions to

solve these problems through the implementation of triage systems, mandatory mediation, and

parent education courses. In Part III, this article will then propose how Philadelphia County should

implement divorce reform focusing on the emotional and educational needs of divorcing families

and increasing the efficiency of the divorce process.

I. The Problem

Adversarial litigation has been criticized as an improper dispute resolution method for the

majority of families going through divorce. The main criticisms of adversarial litigation in 16 Id. at 2.17 Consider Mediation, available at http://fjd.phila.gov/pdf/brochures/dr/Mediation-Brochure.pdf (stating, “Mediation will not delay you case”).

3

http://fjd.phila.gov/pdf/brochures/dr/Mediation-Brochure.pdf


Philadelphia County are that it is extremely detrimental to divorcing families, in particular children,

excessively expensive, overly time-consuming and that families going through the process are

unaware of the availability of alternative dispute resolution options that are less harmful, less

expensive, and take less time to complete.

A. Harmful Effects on the Divorcing Family

The impact of a high-conflict divorce on families, in particular children, is extremely

detrimental and long-term. Obtaining a divorce through traditional litigation has been labeled

painful and inefficient18 and blamed for the escalation and exacerbation of conflict and trauma.19 It

has been suggested that a high-conflict divorce causes emotional trauma second to the death of a

spouse and involves a grief and recovery process that is similar to the stages of recovery from the

death of a loved one.20 The system forces the decision of which party is “legally correct,”21

polarizing the couple and driving them further apart. 22 This causes a long-term adverse affect on all

parties involved and increases the likelihood for re-litigation.23

Divorcing couples often become disempowered in litigation because they are no longer able

to make decisions for themselves regarding their children and their property. 24 Instead of

expressing their feelings and telling their side of the story, they are forced to make the facts fit into

legal categories and often advised what they feel is relevant is actually irrelevant in court. 25 Because

lawyers take an oath to zealously represent their clients, they must advocate for the best possible

18 Patrick Foran, Adoption of the Uniform Collaborative Act in Oregon: The Right Time and the Right Reasons, 13 LEWIS & CLARK L. REV. 787, 788 (Fall, 2009).19 Steven C. Bowman, Idaho’s Decision on Divorce Mediation, 26 IDAHO L. REV. 547, 548 (1989/1990).20 Pauline H. Tesler, Collaborative Family Law, 4 PEPP. DISP. RESOL. L.J. 317, 321 (2004). 21 Id. at 549.22 Carol J. King, Burdening Access to Justice: The Cost of Divorce Mediation on the Cheap, 73 ST. JOHN'S L. REV. 375, 376 (1999).23 Andrew Schouten, Breaking Up is No Longer Hard to Do: The Collaborative Family Law Act, 38 MCGEORGE L. REV. 125, 549 (2007).24 Firestone, supra note 3, at 204.25 Id..

4


property division, custody, and support arrangement for their client only.26 An attorney’s request

for relief is often supported by upsetting allegations producing permanent wounds.27

In addition, litigation focuses on legal issues and ignores the emotional and informational

needs that accompany family members going through a divorce.28 As divorcing families shift

family roles and reevaluate family identities, they require financial and psychological support,

information, and new skills.29 A divorce decree and custody orders handed down in court do not

assist in helping dysfunctional families to function better nor do they improve family dynamics.30

The court does not focus on repairing and preserving relationships even though ongoing healthy

relationships are central to custody cases.31

Children are tremendously impacted by a high-conflict divorce as well as by a high level of

post divorce inter-parental conflict by creating anxiety and stress.32 When a parental relationship is

broken, the effect on children is devastating.33 Studies have shown that approximately one quarter

of divorcing couples report high degrees of hostility and discord over the daily care of their children

many years after the separation.”34 Moreover, children require extra attention during the divorce

process; however, this attention is not typically received due to the distraction of the time-

consuming litigation process, the demands of divorce, and family restructuring.35 Negative

emotional reactions are intensified resulting in “ineffective co-parenting strategies, reduced

parenting, disrupted parent-child relationships, and inability to use proactive coping strategies.”36

26 Bowman, supra note 19, at 550.27 Tesler, supra note 20, at 323-324.28 Id. at 549.29 Homrich, supra note 12, at 141.30 Firestone, supra note 3, at 203.31 Id. at 204.32 Foran, supra note 18, at 792.33 Firestone, supra note 3, at 203.34 Homrich, supra note 12, at 142 (quoting Janet R. Johnston, Building Multidisciplinary Professional Partnerships with the Court on Behalf of High-conflict Divorcing Families and their Children: Who Needs What Kind of Help?, 22 U. ARK. LITTLE ROCK L. REV. 453, 453-479 (2000)).35 Tesler, supra note 20, at 322.36 Homrich, supra note 12, at 141.

5


Studies have also shown this conflict results in poorer emotional and psychological

adjustment of involved children. 37 Girls exposed to parental anger and high-conflict show

increased withdrawal and boys tend to demonstrate increased aggressiveness.38

San Francisco Superior Court Judge Donna Hitchens states, “[W]e all know that litigation

only escalates [domestic relations] disputes rather than resolving them. . . . It's a totally negative

approach, and children suffer the most. If you care at all about kids, you've got to hate this

system.”39 Children in high-conflict custody cases often testify in court and are forced to take sides

against one or both parents.40 A child’s opinion may be misunderstood after expressed through his

or her attorney or guardian or not considered in court at all.41

Exposure to conflict also has the potential to increase physical violence among parents.

Professor Andrew Schepard explains that because anger, a common emotion in arguments between

divorcing couples, increases blood flow to the hands, the individual experiencing this emotion is

more likely to strike out or use a weapon.42 Anger also increases adrenaline and heart rate,

increasing the potential for a “vigorous responsive action.” 43 Children that are exposed to parental

hostility and aggression demonstrate depression, disruptive behavior, and maladjustment in

adulthood.44

B. Excessive Cost

37 King, supra note 23, at 377.38 Charles B. Bauer and Kit Furey, Bench/Bar Committee Recommends Practical Ways to Reduce Impact of High-Conflict Divorce on Children, 39 JUN. ADVOCATE (IDAHO) 13, 13 (June, 1996).39 Foran, supra note 18, at 788-789 (quoting Pauline H. Tesler, Donna J. Hitchens: Family Law Judge for the Twenty-First Century, 2 COLLABORATIVE Q. 1, 3 (2000)).40 Firestone, supra note 3, at 206.41 Id. at 206-207.42 Andrew Schepard, Parental Conflict Prevention Programs and the Unified Family Court: A Public Health Perspective, 32 FAM. L. Q. 95, 104 (1998).43 Id. at 104.44 Pollet, supra note 11, at 376.

6


The potential cost of a divorce through traditional litigation is extremely high. Statistics

provided in 2008 by the Boston Law Collaborative in evaluating 199 recent cases demonstrate that

on average divorce litigation costs $77,746, while on average divorce mediation costs $6,613 and

collaborative divorce costs $19,723.45 If one party is the sole provider for the household, it is likely

he or she will pay the attorney fees for both parties.

Pennsylvania family law practitioner, Jonathan Hoffman maintained that the cost of a

litigated divorce varies greatly on factors such as the attorney’s billable hours and the complexity of

the case.46 In his experience, he has observed cases where a client was billed $120,000 per month

and cases where the total cost of the divorce was $10,000.47 Another Pennsylvania family law

practitioner, Julie Ganz maintained she most often she sees divorces that range between $15,000

and $50,000.48 However, she stated that if custody or support become an issue, the case becomes

much more expensive and time consuming.49

One mediation service in California determined that an average, low-conflict divorce with

an uncontested final judgment where some negotiation took place with attorneys charging $375 per

hour costs the couple a total of $40,000.00.50 Three sessions of mediation lasting three hours each

would amount to an approximate total of $8,500 including all paperwork and consultations with

independent attorneys.51 Six sessions of mediation lasting three hours each would amount to

approximately $21,000 including all paperwork and consultations with independent attorneys.52 An

average fully contested case involving custody and financial issues including child custody

45 David A. Hoffman, Colliding Worlds of Dispute Resolution: Towards a Unified Field Theory of ADR, 2008 J. DISP. RESOL. 11, 30-31 (2008).46 Interview with Jonathan Hoffman, Associate of Weber Gallagher, via phone on December 2, 2009. Notes available upon request.47 Id. 48 Interview with Julie E. Ganz, Associate of Fox Rothschild, through email on December 16, 2009. Notes available upon request.49 Id. 50 PeaceTalks, Compare the Costs, http://www.peace-talks.com/compare.php (last visited December 16, 2009).51 Id. 52 Id.

7

http://www.peace-talks.com/compare.php


evaluators and forensic valuation experts for business and pension distribution costs the couple a

total of $350,000.53 Eight mediation sessions lasting three hours each would amount to

approximately $25,000 including all paperwork and consultations with independent attorneys.54

C. Inefficient Timing

The amount of cases before the courts in addition to the fact that burdensome procedural

matters are focused on with a great amount of detail produces significant delays and increases the

length of the proceedings.55 The high divorce rate also contributes to this issue.56 Statistics

provided in 2008 by the Boston Law Collaborative demonstrate that parties spent the greatest

amount of time obtaining a divorce in traditional litigation, while mediation, collaborative divorce,

and cooperative divorce tied for taking the least amount of time.57

Pennsylvania family law attorney, Bonnie Raynes claims that one of the greatest problems

in the judicial system is that divorcing families are not educated on what a divorce or custody case

53 Id. 54 Id. 55 See Carbonneau, supra note 2, at 1119-23.56 Bowman, supra note 19, at 548.57 Hoffman, supra note 51, at 31.

8


entails, how expensive and time consuming both may become, and what other options are available

to them such as collaborative law58, cooperative law59, mediation60 and arbitration61.62

Some jurisdictions such as Maricopa County, Arizona require parties to watch videotapes

discussing mediation including vignettes demonstrating how the process works.63 Some courts

require parties attend mediation sessions or education sessions discussing the availability of

alternative dispute resolution processes.64 However, Philadelphia allows a couple to file for divorce,

custody, and support and litigate their entire case without educating them on their available options.

While mediation is available inside Philadelphia County’s family court, parties are not advised of its

availability until they are waiting for their first court hearing.

II. Comparative Analysis of the Attempts of Other Jurisdictions to Create a Solution

Many jurisdictions have attempted to decrease the detrimental impact of litigation on

divorcing families and make divorce more efficient by providing parties with new approaches to

dispute resolution.

A. Implementation of a Triage System

58 In collaborative law, both parties obtain a separate lawyer and sign a “disqualification agreement” which mandates that the lawyers and parties commit to avoid litigation. Lande, supra note 5, at 281. If they should change their mind or threaten litigation, the lawyers are disqualified from representing the parties and must withdraw. Id. Both parties agree to full disclosure and are allowed to express their feelings so long as they do not disrupt the process. Id. at 283. Collaborative attorneys have the ability to strongly advocate for their clients and provide legal advice. Id. However, they are committed to a problem-solving, respectful approach. Id. 59 In cooperative law, the parties do not sign a disqualification agreement. Lande, supra note 5, at 281. While the parties and attorneys commit themselves to a problem-solving approach, if either party decides they would like to litigate their attorney is not forced to withdraw. Id. 60 Mediation is a confidential process presided over by a neutral professional who is unable to give legal advice. Lande, supra note 5, at 282. Self-determination is encouraged and the parties have input in determining how their dispute should be resolved. Id.61 Arbitration is an extremely flexible process and the parties have the ability to determine the rules and procedures that will govern the procedure. Andre R. Imbrogno, Arbitration as an Alternative to Divorce Litigation: Redefining the Judicial Role, 31 Cap. U. L. Rev. 413, 413-415. (2003). For example, parties can determine whether the rules of evidence should be applied, whether the outcome should be binding or non-binding, and whether the procedure will be public or private. Id. Depending on the terms chosen by the parties, arbitration can be quick, private, inexpensive and unappealable. Id. While courts have been reluctant to enforce a nonbinding arbitration agreement, they are obliged to enforce an agreement determined in binding arbitration. Id. 62 Interview with Bonnie Raynes, in person on September 22, 2009. Notes available upon request.63 King, supra note 23, at 380.64 Id.

9


Scholars have suggested that a triage system would create a more efficient approach to

divorce and custody litigation, reducing the detrimental impact of litigation on families.65 For

example, Professor Jeffrey W. Stempel suggests a modified multidoor courthouse would increase

party satisfaction and reduce conflict by directing parties to dispute resolution processes that best fit

their needs.66 This system would begin with a discussion between the divorcing couple and a

judicial officer regarding which dispute resolution processes are available and which would be most

beneficial for them.67 The parties would then have an opportunity to decide whether they would

like to select an alternative dispute resolution process or go forth with litigation.68 If the parties

choose an alternative dispute resolution process, the presiding officers should have the ability to

exercise discretion and resolve matters creatively as opposed to being confined in their specific

roles as an arbitrator or mediator.69

Scholars Gregory Firestone and Janet Weinstein propose the implementation of a new

comprehensive dispute resolution program based on the multidoor courthouse model that reduces

the detrimental effect of divorce on families by providing a more humane and cost-effective

solution.70 This model is based on an understanding of the psychological and social needs of parties

and encourages collaborative, interest-based problem solving.71 It provides multiple dispute

resolution options, focuses on future-oriented strategies, encourages professional collaboration,

empowers parents, and allows for special cultural considerations.72 In this model, parties would be

greeted by a Dispute Resolution Coordinator who would screen the parties for domestic violence

65 See e.g. Jeffrey W. Stempel, Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?, 11 OHIO ST. J. ON DISP. RESOL. 297, 361-365 (1996). 66 Id.67 Id. at 371.68 Id. at 371.69 Id. at 379-380.70 Firestone, supra note 3, at 212.71 Id. at 212.72 Id. at 207-212.

10


and fraud, educate them on the available methods of dispute resolution and assist them in making

their decision.73 If one method cannot be agreed upon, the Coordinator may mediate the issue.74

Jurisdictions such as Connecticut have adopted this triage model with the objective of

developing an efficient approach to divorce and custody and reducing the detrimental effect of a

high-conflict divorce on families.75 Prior to implementing this program, Connecticut was receiving

an increasingly growing and complex caseload during a time when court resources were

diminishing.76 In addition, Connecticut judges, lawyers, mediators and custody evaluators reported

a significant increase in “intractable disputes.”77 To combat these problems, Connecticut combined

six independent agencies into one Judicial Branch agency entitled Court Support Services Division

(CSSD). 78 CSSD’s goal is to develop and implement an intake and assessment process, which

would identify the level of interfamily conflict and the complexity of issues and in order to

determine the most appropriate intervention for each family.79 CSSD offers a multitude of

alternative dispute resolution programs such as group mediation processes for high conflict families,

mediation-evaluation hybrid processes, and conflict resolution conferences.80

The new approach CSSD has taken includes a comprehensive, detailed intake and

assessment program, which allows professionals to determine which program is right for each

individual family. 81 This program is administered in a face-to-face session where counselors have

the ability to screen for domestic violence, gather basic information about the family, observe the

parties’ nonverbal and verbal communication skills, and assess the complexity of the issues.82

73 Id. at 208, 210. Fireston and Weinstein suggest that parties could be required to submit financial affidavits to ensure all financial information provided is correct. Id. at 210.74 Id. at 211.75 Salem, supra note 9, at 746. 76 Id. at 767. 77 Id. at 746.78 Id. at 752.79 Salem, supra note 9, at 749.80 Id. at 752.81 Id. 82 Id. at 758-760.

11


These observations help determine which process best fits the needs of the family. For example, if

a low level of conflict exists or the parents have good communication skills and are able to

cooperate with each other, the parties are likely referred to mediation.83

An evaluation of Connecticut’s new approach shows that the program has succeeded in

increasing efficiency by reducing the amount of time parties spend in resolving their dispute.84 In

addition, the rate of agreement in mediation increased by thirteen percent and the rate of agreement

in comprehensive custody evaluations increased by sixteen percent.85 Long-term benefits of the

project have not yet been provided, but are currently being assessed.86

B. Mandatory Mediation

Some jurisdictions have instituted a mandatory mediation program in order to mitigate the

increasing amount of divorce and custody litigants and implement a dispute resolution program that

is less expensive and less time consuming. 87 Mediation reduces the amount of antagonism and

trauma for divorcing families by providing a forum with open communication where compromise

and negotiation are encouraged. 88 In addition, mediation encourages self-determination and the

parties have input in determining how their dispute should be resolved, increasing the possibility for

practical post-divorce relationships.89 As a result, parties are more likely to comply with mediation

settlements and less likely to relitigate.90

For example, Utah instituted a mandatory mediation program in order to reduce the court’s

docket, reduce the demand on court resources, accelerate the rate of case resolution, reduce the cost

of resolving conflicts, increase the litigants’ satisfaction with the court system, and improve

83 Salem, supra note 9, at 764.84 Id. at 767.85 Id. 86 Id.87 See e.g., Ayrapetova, supra note 10, at 417-419; H.B. 4, 2005 LEG., 56TH SESS. 88 Id. at 418-419.89 Ayrapetova, supra note 10, at 418-419.90 Id.

12


relationships between disputing parties.91 Advocators for the program argued its long-term benefits

would outweigh all costs because the need for more mediators reduces the need for additional

judges and mediators will accelerate the speed in which disputes are resolved.92

Utah requires good faith participation in at least one session of mediation after a divorce

complaint is filed if any contested issues remain.93 The parties are required to use a mediator

qualified according to Utah’s Judicial Council and equally split this cost.94 However, Utah did

recognize that mediation is unsuccessful when parties are unable to bargain freely and created a

“good cause” exception.95

It has also been suggested that mediation increases the likelihood of party satisfaction. In

Ohio, a study was done of divorce mediation models in three county courts: Lucas County in

Toledo, Franklin County in Columbus, and Hamilton County in Cincinnati.96 In each county,

mediation was implemented in a different manner with varying costs. A survey of participants

demonstrated that parties were more satisfied with mediation results than results of attorney-

negotiated settlements.97 However, this satisfaction is decreased when the parties are forced to pay

for the service themselves. Parties were less likely to participate in voluntary mediation when they

were expected to hire mediators without assistance and were less satisfied when they were expected

to pay for both the mediator and an attorney.98 Nevertheless, the study determined that the rate of

settlement was similar between Lucas County where parties were provided with a free service and

Franklin County where parties paid for the service themselves.99 91 Id. at 418 (quoting Alison E. Gerencser, Family Mediation: Screening for Domestic Abuse, 23 FLA. ST. U. L. REV. 43, 49 (1995)).92 Id. at 424 (quoting Amy Joi Bryson, Expansion Urged for Divorce Mediation, Deseret Morning News, Oct. 21, 2004, at B04).93 Id.94 Id. at 418; H.B. 4, 2005 LEG., 56TH SESS. 95 Id. “Good cause” has not been defined, but it has been suggested that domestic violence is considered to be within this definition. Id. at 418.96 King, supra note 23, at 426.97 King, supra note 23, at 440-441.98 Id. at 451, 45399 Id. at 454.

13


C. Implementation of Parent Education Programs and Social Services

Studies have shown that children are not always negatively impacted by the divorce of their

parents and in some situations can actually benefit from their separation provided their family has

an adequate income and the children maintain positive relationships with both parents.100 In order to

promote this outcome and reduce interfamily conflict, some jurisdictions have implemented parent

education programs, which inform parents of the legal process, increase parental sensitivity to their

children’s needs, reduce conflicts, improve parenting skills and promote more cooperative

approaches to parenting.101 Orange County, Florida took this idea one step further and created a

comprehensive, multi-level approach where divorcing families are provided with education and

social services after an intake assessment.102

In addition, parent education classes have decreased the amount of religitation. Parents who

participated in Ohio’s program entitled, “Children in the Middle” relitigated less than half as often

as those who did not attend.103 Parents who attended Illinois’ class entitled, “Children First” also

showed lower rates of relitigation than parents who did not.104 As of 2008, at least forty-six states

have implemented parent education programs with the majority mandating attendance.105

Surveys show that interparental conflict is the most thoroughly covered subject.106 This

topic is covered by demonstrating how conflict negatively affects children by subjecting them to the

risk of increased adjustment issues, educating parents in problem-solving approaches, and teaching

communication skills.107 Motivating videos are also often showed, which demonstrate what

children see in a high-conflict divorce and inspire parents to prevent the occurrence of destructive 100 Id. at 376.101 Pollet, supra note 11, at 377. However, Pollet states that cooperative parenting should not be encouraged when domestic violence is an issue. Id. 102 Homrich, supra note 12, at 141.103 Homrich, supra note 12, at 379-380.104 Id. at 380.105 Id. at 375.106 Id. at 377 (citing Matthew Goodman et al., Parent Psycho educational Programs and Reducing the Negative Effects of Interparental Conflict Following Divorce, 42 FAM. CT. REV. 263, 268-69 (2004)).107 Id. at 377.

14


behavior towards their children.108 In addition, programs assist parents in managing their anger

around their children, family and friends.109

Some programs provide parents with information regarding divorce, custody and support,

alternative dispute resolution processes, and available social services. For example, the Children in

the Middle Program of Ohio provides parents with a list of different legal services and outlines not

only the legal costs and benefits of these approaches but also the cost and benefit to the parents and

children.110 The PEACE program of New York advises parents of the legal process and how

disputes are resolved.111

Overall, participating parents have claimed the programs resulted in decreased interfamily

conflict and improved parenting skills. A voluntary parent education program in Maryland

demonstrated that six months after the class the parents’ adjustment to their divorce had improved

and they noticed an improvement in their communication skills with their children.112 Parents

recommended that the class become mandatory and, less than one year later, Maryland followed

this recommendation.113 Participating parents in Rochester, New York’s ACT program stated the

program helped them understand their children’s feelings related to the divorce, led to a decrease in

conflict between parents especially on child-related issues, decreased their desire or need to litigate,

increased effective parenting practices, and improved their children’s adjustment to divorce.114

A study of parent education programs in Arizona, New Jersey, Connecticut, Oklahoma and

Michigan also demonstrated a high rate of party satisfaction and success.115 The majority of 108 Matthew Goodman, Darya Bonds, Irwin Sandler, and Sanford Braver, Parent Psychoeducational Programs and Reducing the Negative Effects of Interparental Conflict Following Divorce, 42 FAM. CT. REV. 263, 269 (2004).109 Id. 110 Id. 111 Id.

112 Goodman, supra note 118, at 380. The program in Maryland was entitled, “Making it Work.” It first began as a voluntary program in 1992 and became mandatory in 1993.113 Id.114 Id. at 381. 115 Id. (citing Nancy Thoennes & Jessica Pearson, Parent Education in the Domestic Relations Court: A Multisite Assessment, 37 FAM. & CONCILIATION CTS. REV. 195, 215 (1999).

15


participating parents suggested the programs become mandatory and noted that since the program’s

completion, they have fought less over decisions regarding their children.116 Approximately seventy

percent of participating parents claimed the program assisted them in becoming more sensitive to

the children’s needs, helped their children cope with the divorce, and assisted them in making

visitations less hostile.117

However, it has been suggested that the findings do not conclusively show that education

programs promote better child and parent adjustment or reduce conflict and litigation.118 In

addition, it has not been determined whether or not to continue to mandate attendance if domestic

violence is a factor. Ten states mandate that both parents attend the session despite a domestic

violence issue, while thirteen states provide an “opt-out” for domestic violence victims.119

Advocates for mandating attendance for both parents claim parent education programs may benefit

the victim by improving his or her communication skills.120 Arguments against mandatory

attendance are that it is dangerous to encourage communication and cooperation if these behaviors

lead to a greater amount of abusive interactions and may serve to increase domestic violence.121

Orange County, Florida recognized that divorcing families are not only going through a

legal process, but are also changing family roles, renegotiating parenting responsibilities, and

redefining their family identities.122 To assist in providing families with emotional support,

information and skill-building opportunities, Orange County implemented the Court Care Center for

Divorcing Families (CCCDF) to make divorce work more effectively by decreasing conflict,

promoting emotional stability, offering timely interventions that will teach parents skills and

116 Id. 117 Id. 118 Janet R. Johnston, Building Multidisciplinary Professional Partnerships with the Court on Behalf of High-conflict Divorcing Families and their Children: Who Needs What Kind of Help?, 22 U. ARK. LITTLE ROCK L. REV. 453, 468 (2000).119 Id. at 383.120 Id. 121 Id. 122 Homrich, supra note 12, at 141.

16


positively change coping behaviors, providing valuable parenting strategies, and reducing the

inappropriate use of court resources.123

Parties are referred to CCCDF at the discretion of a domestic court judge or other approved

agent. 124 However, this typically occurs when the action is driven by emotional issues, parents are

unwilling or unable to resolve minor issues, parents engage their child in their conflict, and when

alternative dispute resolution has been attempted and failed.125 After the parties are referred to the

Center, a staff counselor conducts a free confidential assessment of each family member to screen

for issues such as substance abuse and domestic violence, determine their level of conflict, and

assess their emotional and educational needs.126

The families are then advised to attend the mandatory parent education program or placed

into one of four programs: Cooperating for Your Kids, Focus on the Children, Crisis Intervention,

and Family Therapy.127 Each program varies in length, goal, and cost. For example, Cooperating

for Your Kids lasts eight weeks and is primarily parents without psychological or personality

disorders that are involved in mild to moderate degrees of conflict and unable to effectively co-

parent.128 The program takes place inside the courthouse after business hours to reduce costs. 129 If

a family is placed in Family Therapy, the Center refers parents to mental health counselors, social

workers, marriage and family therapists, or psychologists130 and requires parents to either pay

themselves or utilize personal insurance.131

The programs have received positive results. Cooperating for Your Kids has demonstrated

an increase in agreement regarding parental responsibility and decreased parental conflict in front of 123 Id. at 147.124 Id. 125 Id. 126 Id. at 147-149.127 All individuals with children who are parties to a divorce in Florida are mandated to attend one education session. Id. at 153.128 Id. at 148, 153.129Id. at 153.130 Homrich, supra note 12, at 153.131Id. at 153.

17


children.132 Focus on the Children increase parental communication, decreased parental conflict,

and improved understanding of each other’s needs and feelings.133 However, CCCDF has been

criticized for only providing services to families that have already gone through high-conflict

litigation. One family stated if they had had the class earlier, years of fighting probably could have

been saved.134

III. The Proposed Solution

In order to decrease the detrimental effect of litigation on divorcing families, reduce the

amount of improperly used judicial resources, decrease the total cost of divorce, and make the

process of divorce more efficient, Philadelphia County should mandate a comprehensive dispute

resolution program. This program should be primarily based off of the multidoor courthouse, 135

Court Support Services Division,136 and the Court Care Center in Florida. 137

Prior to litigation, and as a condition to receiving a court hearing, individuals seeking a

divorce must meet with a sufficiently trained intake counselor similar to that described in the triage

programs. By mandating this occur prior to litigation, unnecessary and improper litigation that may

have been used as an improper outlet for unaddressed emotional issues related to divorce is

prevented and children are protected from involvement in a high conflict situation. This session

should be centered on the schedule of the parties as opposed to around that of the court. For

example, this session may be completed with a counselor online and intake counselors should be

available for weekend appointments.

The intake counselor should first screen the parties for domestic violence issues and execute

a comprehensive assessment of the parties and their family situation. The counselor should then

132 Id. at 157.133 Id. at 158.134 Id. 135 See Stempel, supra note 73, at 361-365.136 See Salem, supra note 9, at at 752.137 See Homrich, supra note 12, at 141.

18


educate the parties on the emerging concepts of collaborative law, cooperative law, mediation and

arbitration as well as discuss the litigation process. This should include an accurate description of

the positive and negative attributes of each procedure in addition to a discussion regarding the

realistic financial and emotional effects of litigation. In addition, parties should be advised of local

firms that practice collaborative and cooperative law as well as how to approach mediation or

arbitration. If children are involved, a discussion should be held regarding their best interests and

how they will be impacted by each procedure.

The intake counselor should recommend which process he or she feels best fits the needs of

the family, but the decision should ultimately be up to the parties. If both parties cannot agree on a

process, the counselor should have the ability to mediate this issue. 138 In addition, divorcing

families should be provided with information regarding support services such as individual and

group counseling, financial counseling, job counseling, job training opportunities, housing

assistance, respite care, and educational programs on subjects such as conflict resolution skills for

parents.139

While a triage program is ideal, other less expensive and less dramatic options are available

that would allow Philadelphia to improve the efficiency of the divorce process and decrease the

detrimental effect of litigation on divorcing families. For example, Philadelphia could implement a

mandatory parent education program for divorcing families.140 This program could educate parents

on divorce, custody, and support litigation and advise parents on the availability of alternative

dispute resolution processes. The program instructor should provide an accurate description of the

positive and negative attributes of each procedure including litigation and supply literature

regarding local firms that practice collaborative and cooperative law, and how to approach

138 See Firestone, supra note 3, at 212.139 Id. at 211-212 (citing Alicia M. Homrich et al., Program Profile: The Court Care Center for Divorcing Families, 42 FAM. CT. REV. 141 (2004)).140 See Homrich, supra note 12, at 146.

19

http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW9.10&serialnum=0296635787&fn=_top&sv=Split&tc=-1&pbc=308D35F2&ordoc=0297707278&findtype=Y&db=139865&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw



mediation or arbitration. In addition, the instructor should provide information regarding various

support services such as skill development opportunities.141

The instructor should discuss the children’s best interests and how they will be impacted by

each procedure. The program should demonstrate how conflict negatively affects children in order

to increase parental sensitivity to their children’s needs, reduce conflicts, improve parenting skills

and promote more cooperative approaches to parenting.142 Through videos and vignettes, parents

should view interparental conflict from a child’s perspective and learn beneficial conflict resolution

skills.143

Another option would be for Philadelphia to implement a mandatory mediation program and

require all parties filing for divorce, custody, and support to first attend one mediation session.

Philadelphia County, like Utah, could require good faith participation in at least one session of

mediation after a divorce or custody complaint is filed if any contested issues remain.144

Philadelphia should also implement a short screening process prior to mediation in order to make

certain domestic violence is not an issue.145 This program could develop incrementally and begin

with mandating only custody mediation because custody mediation already exists in Philadelphia,

whereas it does not for divorce or support disputes.

It is necessary to determine how each program could be funded. Other jurisdictions have

funded their programs in different ways. Florida requires parties to attend mediation and pay for the

process themselves within a certain fee range, but does allow for some subsidized services for

indigent or insolvent parties.146 Some courts in Pennsylvania partially fund mediation through a

141 See id. at 211-212 (citing Alicia M. Homrich et al., Program Profile: The Court Care Center for Divorcing Families, 42 FAM. CT. REV. 141 (2004)).142 See Pollet, supra note 11, at 377. However, Pollet states that cooperative parenting should not be encouraged when domestic violence is an issue. Id. 143 See id. at 377 (citing Matthew Goodman et al., Parent Psycho educational Programs and Reducing the Negative Effects of Interparental Conflict Following Divorce, 42 Fam. Ct. Rev. 263, 268-69 (2004).144 Ayrapetova, supra note 10, at 424.145 Id. a 418.146 Id. at 395; FLA. STAT. ANN. § 44.102(5)(B)(WEST 1998).

20




filing fee surcharge.147 Other courts fund mediation through a sliding fee scale.148 Oregon charges a

dispute resolution surcharge when parties file a civil action, suit or proceeding including appeals.149

This charge is collected from the plaintiff or petitioner at the time of filing and the defendant or

respondent at the time of appearance.150 In Utah’s mandatory mediation program, the parties are

required to split the cost equally.151

Philadelphia County could train current court employees such as custody evaluators to act as

intake counselors, parent education instructors, or mediators. 152 It is possible to have a successfully

run program with few compensated employees to coordinate training and scheduling issues and a

multitude of volunteers.153 Volunteers from the community could act as intake counselors, parent

education instructors, or mediators. Scholar Carol King states, “The volunteers’ availability and

their positive attitudes tend to lead toward a program just as successful, if not more so, than one in

which mediators are paid.”154

It would be beneficial to have a diverse group of adequately trained volunteers selected

based on their maturity level, life experience, and ability to understand family law.155 Diversity

would be beneficial because it would decrease the likelihood of language and cultural barriers

between volunteers and divorcing families. 156

In conclusion, the problems facing Philadelphia County presented by the current system of

adversarial litigation show no signs of subsiding. Negative attributes associated with adversarial

litigation can be greatly decreased if not completely eliminated by new approaches to dispute 147 23 PA. CONS. STAT. ANN. §§ 3901-3904 (West Supp. 1998)(stating that local courts have discretion to establish mediation programs and that where such programs are adopted, they may be partially funded by filing fees); E.D. PA. LOCAL R. 6.02.53.2 (stating the same information).148 King, supra note 23, at 396.149 OR. REV. STAT. §36.170(1).150 Id.151 Ayrapetova, supra note 10, at 418; H.B. 4, 2005 LEG., 56TH SESS. 152 Id. at 462.153 Id. 154 Id. at 462.155 Id. at 465.156 Id.

21


resolution in the context of divorce, custody and support. By shifting the focus from a family’s

legal rights to their emotional and educational needs, interfamily conflict will decrease and the

detrimental effect of litigation will be reduced. A divorcing family should be provided with

multiple interest-based and cost-effective rights-based dispute resolution methods in order to choose

the method that best fits their needs. Encouraging families to utilize alternative dispute resolution

processes will make divorce more efficient, less expensive, less time consuming than litigation and

less frustrating than litigation. Philadelphia County should follow the lead of many other

jurisdictions and attempt to resolve the problems presented by traditional litigation by implementing

a new comprehensive, court-annexed dispute resolution program focusing on the emotional and

educational needs of divorcing families.

22

writing sample law school

Documents