Rethinking the Role of Courts in Resolving Family Conflicts

Abstract

Family courts have been a central focus of the national problem-solving courts movement over the last three decades. These courts have sought to replace the law and process oriented adversary model with a more collaborative and interdisciplinary regime that de-emphasizes legal norms and focuses on therapeutic goals. While the new paradigm may be an improvement over its more adversary predecessor, it presents significant risks for many who appear in these courts. A growing consensus is emerging among scholars, policy makers and family law practitioners that the focus for much of family dispute resolution should shift from courts to the community.

This Essay begins by situating family courts in the world of problem-solving courts. Part 2 summarizes the critique of the adversary system’s approach to family conflicts, particularly to resolve child access disputes. It discusses the ways in which the problem-solving family courts seek to respond to this critique, providing a context to understand the current popularity of such courts. Part 3 explores a number of concerns scholars and practitioners have raised about problem-solving courts and raises specific concerns about the way family courts have implemented the core principles. For both demographic and doctrinal reasons, the impact has been felt most directly by low-income families. Finally, this Essay concludes with a recommendation designed to reap the benefits of the problem-solving model while limiting the risks identified in this Essay.

Keywords: family courts, family law, conflict resolution, adversary system

JEL Classification: K36