Opinion: perhaps too much judicial power in family law matters

On behalf of Stange Law Firm, PC posted in Child Custody on Tuesday, September 9, 2014.

In a recent opinion piece written for The New York Times, psychology professor and author Robert E. Emery notes what he thinks is a hard-line and sometimes irrational dichotomy between how the American legal system treats married parents versus divorced parents, respectively, in matters relating to children.

Emery points to time-honored judicial restraint in most instances when it comes to how-to-raise-the-kids disputes that arise between married spouses. He cites a court ruling — concededly, now dusty and time-worn — from one state noting that, “No end of difficulties would arise should judges try to tell parents how to bring up their children.”

And then he contrasts that generally prevailing sentiment with the close and recurring scrutiny that judges often bring to child custody matters arising between divorced parties. He notes what is, in fact, a truism, namely this: Judges in all states, including in Illinois and Missouri, are often quick to pull the judicial trigger — that is, involve themselves and issue legal rulings — on matters on wide-ranging matters. A court’s opinion on a matter can outweigh what divorced parents have negotiated and ultimately agreed upon, including on matters such as the following:

  • Where a child will go to school
  • How a child will be shunted between parents over holidays
  • Whether a child will be required to observe a particular religious tradition
  • Specified matters relating to a child’s medical care

Those are, as Emery notes, plenary powers that a judge wields pursuant to his or her prerogative to act in a child’s best interest. Emery points out that a judge can weigh in with strong views on even a matter that has already been agreed to by the parents in a parenting agreement.

Emery concedes that, although judges need to command such power, it “makes no sense” to generally use it when divorced parents have already made agreements. Litigation is too often the result.

Emery’s views might be disagreed with by some, especially in cases where parents do not readily agree on issues. He perseveres with them, nonetheless, arguing that a general judicial defaulting to what parents have agreed on should be the norm, in fact, “the primary consideration” in any judicial weighing.

Many people might argue that such is already the case, for the most part. Emery would render it virtually absolute.

Source: The New York Times, “How divorced parents lose their rights,” Robert E. Emery, Sept. 6, 2014

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