Divorce and Family Court: Judges are People Too
For many, this is the first time you have stepped into a courtroom. You are about to have your first hearing in Family Law Court and it can be a little scary. After all, in a few moments, there will be an elusive stranger in a mysterious black robe who is about to make decisions that will undoubtedly impact you and your family.
And though you believe “right” is on your side it is easy to feel queasy about the all knowing, all powerful OZ who is about to pass judgment with orders from an elevated Bench. Like Dorothy and her band of hopeful vagabonds, it isn’t easy to inch tremulously forward stammering with fear asking for the great and powerful ‘One’ to grant you your heart’s desire; a home, some intelligence, a heart or even the courage to go on.
Let’s pull the curtain back and take a look at this ‘All-powerful Being’; the Judge.
Typically judges were lawyers often with impressive track records, who are considered leaders, experienced and who have been practicing for at least 10 years. Lawyers who qualify are appointed by either the provincial or federal government. Their legal backgrounds are varied and to be honest, most of them did NOT practice in the area of family law prior to their election or appointment to the Bench.
Generally, Judges do not volunteer freely to be assigned to Family Law, in fact, many Judges avoid the Family Law assignment at all cost! Why, you ask? It is one of the most complicated in the Courthouse. There are so many decisions to be determined: tax, custody, contracts, business, resources, support, income, real estate, quasi-criminal, domestic violence, grandparents’ and an endless list of complex issues to be determined by Judges NOT juries. We, Judges like our juries as they are the “Judges of the Facts” and we can be the “Judges of the Law.” In Family court, without a jury, the Judge is responsible for both.
Hard decisions, lots of self-represented litigants, serious allegations, competing needs, loads of emotions and heartaches make for a petri dish of Judicial burnout and turnover. It is really difficult to be a Family Law Judge.
Once assigned to Family Law, Judges are fiercely dedicated to trying to make the best decisions they can especially when children are involved. Most jurisdictions require Judges to make their decisions based on “the Best Interest of the Children” standard. This means Judges based on the admissible information they received from your paperwork and the evidence presented at court decide what is best for the kids, whether you agree with the outcome or not.
Due diligence has been served. Family Law Judges pride themselves on reading everything you file so long as you have complied with local rules. These Judges work after hours, during lunch and on weekends to manage heavy caseloads. Trust they’ve read your file.
Reality check, Judges come to the Bench with their own life experiences including biases that may color the lens through which they see you or your case. They are human, of course, and have a full life off the bench.
Here’s an example. Let’s say a Judge is a working mom with toddlers in daycare and the argument before the Court is, “Your Honor, my children are 4 and 5, too young for me to leave them and go to work.” The Judge has to set aside their personal bias or life experience based on the information provided and determine what is best for YOUR children.
Judges are skilled and educated as to bias awareness but, nonetheless, it is a real issue for your consideration. Instead of just being conclusory in broad statements to a Judge put a little meat or context on the bone for the Judge to chew on ~keeping in mind, the judge is looking through the lens of ‘what is best for the child.’
“Your honor, many moms work while their children are young, however, in our family, the plan was always for me to stay home until the children were old enough to attend full-day school. Our youngest suffers from some social relations anxiety and we both agreed that getting her to her play therapy is an important foundation for her to have healthy interactions in a preschool and beyond.”
Context is a buffer to a Judge’s intrinsic bias. By stating the why in your case you are helping the judge make meaningful orders unique to your case and your family.
Judges want to do their job well. They have worked very hard to become Judges and once they have gained this status, Judges want their reputation to reflect integrity, intelligence, access, and fairness. In particular, Family Judges want to be perceived as compassionate.
They know that what you are going through is really difficult and whether it feels genuine or not I can assure you that Judges do not want to add to your pain. Judges are not out to get you. They want to help you resolve your case amicably and fairly.
The reality is that Judges make rulings on the evidence before them and if you have failed to communicate in accordance with the law adequate facts that support a ruling in your favor then it isn’t the Judges’ fault. The Judge is merely doing their job by following the law.
Knowing this and knowing that Judges are people too should help you prepare for your personal case. It is important to be diligent when giving written context and truthful facts about your case, so the Judge has reviewed all relevant information prior to the hearing.
Be courteous, be prepared and be reasonable in your expectations. Judges want to do the right thing. We pride ourselves on making well-reasoned decisions and meaningful orders. Judges want nothing more than to help your family.
Author: Hon. Sherrill Ellsworth (RET) - Judge Ellsworth was one of the court's most respected and admired bench officers (California). She retired from the bench to focus on having a greater impact on today’s families by making our courts more accessible, effective, and efficient