Friday, January 9, 2009

You Don’t Know What You Don’t Know: Welcome to Family Court

You don’t know what you don’t know. Let me repeat that. You don’t know what you don’t know. At first glance, this would appear to be a truism, or an obvious statement. However, while it is obviously true, it far from obvious. In fact, as we move through the minutes and hours of our days, we encounter countless ambiguous or unclear situations and circumstances. In an effort to understand the many ambiguous piles around us, we sort them and stack them into orderly piles by making specific assumptions about their meanings, so as to make them sensible to us. This is an automatic cognitive reflex for us humans and we do it thousands of times daily. In the process of doing this, the assumptions that we use become the building blocks of the edifices that we construct that then forms our reality. We use these assumptions to bridge the spaces that we do not know, thereby creating a level of greater comfort for ourselves. We do this so quickly and seamlessly that it is mostly beyond our own notice. It makes us feel better, perhaps more in control.

For example, if one assumes that the court system, by its design and operation, has a way of revealing the truth of a given situation, this assumption would orient how one goes into court. One would go into court with the belief that simply being candid and honest is sufficient to the revealing of the truth. This assumption, after all, is very much supported by taking the oath to tell the truth, the rules of evidence, and other judicial inventions. The machinery of this is, after all, supposed to grind out the truth. Perhaps the reader, by virtue of having found and read this, has a reaction to this position at this moment.

However, if the assumption that the court system, and its operation is supposed to operate in this fashion, but that it, in fact does not, then one would approach the courtroom with a very different orientation. One would be much more cautious and vigilant to understand exactly how it did work, as opposed to how it is supposed to work. Under this circumstance, one might well look to one’s lawyer to be a guide to explain just how it does work. This certainly sounds reasonable. However, such a position would be based on the assumption that the lawyer actually did understand the true workings of the court, was willing to share them with you, and actually did so. These are all things that you simply do not know.

The late, brilliant and albeit eccentric British psychiatrist, R.D. Laing wrote, “The range of what we think and do is limited by what we fail to notice. And because we fail to notice that we fail to notice, there is little we can do to change until we notice how failing to notice shapes our thoughts and deeds.” By this, he meant that it is only when we truly realize and accept that we cannot actually know what we cannot see, that we can begin to remove the blinders that this creates. This paradox of embracing the blindness in order to gain sight, is of crucial importance. Yet this insight comes with a price. It is characterized by tireless skepticism and testing. It is themed by such questions as, “what do you base that on?”, and “why?” This state of mind is uncomfortable, difficult to maintain and exhausting, especially in times of stress, like during a divorce. Due to all of this difficulty we humans are therefore easily seduced by untested assumptions that promise a wealth of certainty, yet may well end up being the next Ponzi scheme. We are suckers for this. We are human.

But enough of Philosophy 101. What does this have to do with Family Court, parental alienation, and looking to the court intervene to return your child to you? Everything. The Family Court System is a very specific environment whose true rules of operation are unstated and are, in fact, quite contrary to those which are stated. For example, one often hears the remark that you can or cannot “prove” parental alienation in court, as if this question was critical to being successful in court with parental alienation. In actual fact, the ability or inability to “prove” the presence of parental alienation in a specific family case is very much secondary to the issue of getting the court to “believe” that parental alienation is present. What we very often find is that what one can or cannot prove in family court is quite different than what one can get a very human Judge to “believe.” The rules of evidence and the evidence code do more or less rule the issue of proof, but the subjective impact of causing the audience (the Judge) to believe your story is more the province of emotion, presentation, and even theater. These are, in fact, the principles – emotion, presentation, and theatrics - that predict outcome in Family Law cases where parental alienation is present. Not the law.

Perhaps surprisingly, competent Family Law attorneys very often do not understand this. They believe that outcome is predicted by the “rules” and the application of the law to the facts of the case. If this, in fact, should be so in a given case, it is due to the fact that the legal case happened to agree with the emotional presentation that successfully made the Judge “a believer.” We see over and over that when these two levels disagree – that is when the legalistic level disagrees with the emotionally related “story” - that the subjective emotional level trumps the legal one. Family Law cases involving parental alienation provide abundant example of this. Oddly, the lawyers are often as surprised by unwanted outcome as are their clients. Sadly familiar examples abound. Visitation between parent and child are regularly interrupted when doing so is completely at variance with the conditions that are to be met by the law. Orders of Protection are routinely given when there is no evidence of threat or event a hint at one. Custody is often changed when the burden of “change of circumstance” has been in no way met or even addressed. Visitation Orders are ignored by the very court that issued them for no legal reason whatsoever. False abuse allegations are rarely if ever prosecuted in spite of statutory language that requires prosecution. The list goes on.

The significant fact here is that these anomalies are not anomalies at all. They are the predictable outcome of a “sub- logic” that exists beneath the level of the law, has nothing to do with the law, and is often at odds with the law. Welcome to Family Court.