Colorado Divorce Law Feedback And Analysis

My post on Improving Colorado Divorce Law last Saturday has received nine comments as I write this post, corroborating my first two sentences in that post that:

Probably no area of Colorado law produces more dissatisfaction with the judicial process than domestic relations law. A large share of active online critics of judges and the courts have had unhappy family law experiences.

One pitched products on how to tell your children above divorce. The other eight share in common a profound rage at participants in the process (and not just, or mostly the ex-spouse), a deep sense of having been wronged by the system, and a profound sense that the system is unfair, to them and to others similarly situated.

Almost all of these critics, and they are typical of the far more that I have heard from over the years, have personalized their grievances with the system by attributing it to unethical conduct by individuals involved in the process. As Dale Kim Thorup summed up the point of many who are fervently unhappy with the current system, "it's the other 98% that ruin it for the 2% of honest lawyers, magistrates, and judges in Colorado and across the Country."

Parenting disputes are the focus of these complaints, although concerns about biases in financial matters (particularly maintenance awards) and concerns about how the contempt power is used in these cases also draws concerns.

It is, indeed, easy to personalize these grievances. While divorce isn't the heart of my practice, over the years, I've represented clients in divorce courts before many of the judges who handle divorces in the state (first, on the Western Slope, and later on the Front Range). Many judges in domestic cases do approach their cases with a demeanor that can be interpreted as biased or lacking respect for due process. There is a meaningful gap between how it seems as if the system should work in the statute books, and how it plays out in courts. Few judges are really good at handling domestic cases.

Nonetheless, my focus is on process and not on personnel. Part of this focus is practical. Removing a judge in Colorado is a difficult thing. It happens. Often, it happens quietly with no formal assignment of blame, as a judge retires before retirement age while facing institutional pressure to do so. In rare cases, a judge is removed from office. But, the vast majority of district court judges in Colorado, who hold the power in this area of law, are lifetime appointees for all intents and purposes. Even a substantial increase in the rigor in which judicial retention evaluations are conducted is unlikely to more than marginally change this fact.

The other part of this focus comes from the fact that concerns about the professionalism by the officials who make or influence decisions in the divorce process, expressed almost uniformly by a very vocal minority about a large share of the professional officials involved, and heartfelt by a large number of people who keep silent, are so widespread. Outside of the domestic relations context, it is rare for people to have so strong feelings about so many judges and judicial officials.

For example, consider U.S. District Court for the District of Colorado Judge Nottingham, who is well known for his unconventional approach to handling his docket, with strict standards of litigants, and hearings at inconvenient times used to punish litigants who seem to be acting unreasonably for instance. Before he gained national notoriety for alleged indiscretions in his personal life, it was certainly widely known among court watchers that he handled his courtroom in an unusual way. But, while some litigants have felt aggrieved by this approach, at least as many have greatly respected him for running a tight ship.

In contrast, it isn't uncommon for beneficiaries of the rulings of judges whom some litigants criticize for being biased to be almost embarrassed at their good fortune. Certainly, often, litigants in domestic relations cases who receive favorable rulings sometimes feel elated, vindicated and protected. But, even then, the feelings are often personalized to the judge, rather than being attributed to the system. The strong tendency to personalize, in both positive and negative ways in domestic relations cases isn't limited to unrepresented people (who make up an unusually large share of domestic relations litigants), either.

Ordinary criminal cases, and non-domestic civil cases, particularly those that don't involve civil rights, rarely elicit such strong personal reactions to the judge presiding. Sure, incarcerated individuals do make up the lion's share of people making formal grievance complaints about judges and seeking extraordinary review of court rulings against them. But, being incarcerated, they often have extraordinary amounts of time on their hands, face extreme boredom if they don't find some purpose for themselves, and have nothing to lose.

Trial court judges in Colorado, at least in urban areas, typically have rotating dockets. They spend a year or so at a time handling a certain kind of cases. A judge typically spends a year or two handling domestic cases, then the next year or two may handle civil cases or criminal cases instead. The fact that the very same judges who elicit only modest complaint about their professionalism when in civil or criminal assignments often are targets of immense outpourings of vitriol on domestic dockets, suggests something about the nature of the problem.

Even if a significant number of domestic relations judges do indeed, on occasion, act in ways that create an appearance of bias or disregard for due process, these judges don't start out that way. And, the problem isn't limited to judges. Child and family investigators, who often act in a quasi-judicial role with regard to parenting issues, are targets of the same concerns. The current structure of the system sets up decision makers to be in bad positions that open them up to this kind of criticism, or pressure/tempt them into acting in ways that can be perceived badly.

As I pointed out in my previous post, one of the reasons that decision makers appear biased is because they are forced to be biased. Many of the legal standards that the law demands that they apply, particularly those relevant to parenting and to maintenance, are inherently subjective. When one applies a subjective legal standard, one must by definition express a point of view on that subjective question which reveals a personal bias in favor of one view of the meaning of the relevant legal standard, and against another view of that standard's meaning. The considerable discretion afforded judges in these cases moreover keeps appellate courts from meaningfully intervening in resolving differences between judges regarding how these subjective legal standards are applied.

The only area of the law where a judge, acting alone, has comparable unfettered and ill guided discretion is state court criminal sentencing, and even there, sentence grading by offense, wider consensus on what constitute aggravating and mitigating factors, prosecutorial recommendations, presentence reports, and norms that favor middle range sentences in ordinary cases, leave judges with options that appear more impartial in most cases.

In contrast, the "best interests of the child" has a very different meaning as applied, on a consistent basis, before different judges and CFIs. To a great extent, the differences arise from the personal views of those individuals about what is in the best interests of children. The layman's way to describe those differences is to say that the individual involved is biased. Yet, judges and CFIs have an imperative to make decisions when the parties can't agree. And, litigants, naturally enough, are very unhappy when they end up having their cases handled by an official whose views make an unfavorable result for that litigant more likely than it would be before some other official in the same job.

Also, when judges and CFIs have little clear binding legal authority with which to justify their application of a vacuous legal standard like the "best interests of the child" to a particular set of facts, respect for their decision tends to be undermined. The very, very best judges and CFIs can craft such a convincing statement of the facts in some clear cases, that the facts do seem to compel a particular outcome, but in the mill run of more ordinary cases, these rulings can have a ipse dixit flavor.

The French, who have never had a civil jury system, have a saying that a single judge is an unjust judge. There, serious civil matters are generally tried to a panel of judges, just as appellate cases are in the United States.

Historically, in the U.S., most serious litigated cases were resolved by a jury, with the judge simply serving as an umpire over the proceedings. So the concerns about having individual judges as sole decision makers in important matters isn't so deep rooted in American jurisprudence. But, domestic relations law, which has been one of the fastest growing parts of the court docket over the last generation, has dramatically expanded the scope of cases where no jury is available and a single judge makes key decisions unilaterally. So, unlike other areas of the law where there is wide decision with few guiding principles, like the award of non-economic damages in tort cases, in domestic cases there is both wide discretion and decision making by a single, repeat player, decision maker.

Moreover, typically, in U.S. practice, a judge stays with a case permanently. Even if an appellate court reverses a trial court's decision for an abuse of discretion in a case, and even if a divorce is concluded and the matter returns to court years later in a post-decree dispute, the judge is extremely likely to be the same, barring retirement of the judge in the ordinary course. This rule make a certain amount of sense (although, I have my doubts about it), in civil or criminal cases arising out of a single set of facts.

Keeping the same judge on the same case forever makes less sense in domestic relations cases, which typically involve not only the facts present when the divorce or initial parenting decision is made, but also a decade or so of new litigations based upon new facts, in post-decree litigation that arises when parties can't agree on how to handle changing circumstances as children grow up. This amplifies the impact of having a single decision maker with broad discretion at any given point in the case, considerably, which provides a continuous slow burn of fury to a litigant who feels that the decision maker is a bad one.

In contrast, two parties who have repeated civil disputed arising from separate incidents, or individuals who face multiple criminal charges over a period of years, can usually except to have a different random draw of judges for each incident, minimizing the risks associated with any one decision maker in one of those incidents being biased against a party.

To the extent that it is impossible to remove broad discretion from an issue like parenting, the solutions, it seems, may be, in addition to favoring an inquisitorial process and a move away from finality in decision making, that I discussed in my previous post, to also:

(1) favor group decision making, perhaps by a panel of three judges in non-emergency cases, with one serving as a primary investigator on a case, but the concurrence of a majority required to render judgment, rather than having these serious matters decided by lone individuals,

(2) allow litigants more of a say in choosing a decision maker (perhaps with a single peremptory challenge of a judge, present in some states, similar to the peremptory challenges of jurors available in every state),

(3) consider having non-judicial groups such some sort of a "family council" made up of relatives and/or family friends or community members respected by all parties, serve in appropriate cases as a supervisory body over the care of wards of the court, as they do in some civil law jurisdictions for minors and protected persons in certain cases, rather than repeat players who are judicial system officials make all decisions, and

(4) make it the norm to remove decision makers who are found to have abused their discretion in a particular case from that case in further proceedings.