Comparing Philosophies and Practices of Family Law between the United States and Other Nations: The Flintstones vs. The Jetsons

16 Pages Posted: 11 Nov 2015

See all articles by Marsha Freeman

Marsha Freeman

Barry University - Dwayne O. Andreas School of Law

Date Written: 2010

Abstract

Legal pundits, practitioners, judges, psychiatrists, psychologists, social workers and virtually anyone who has dealt with families in distress due to divorce or related issues have agreed for years that the family law legal system is broken. Parties remain angry years after the initial hurt, relationships crack under stress, and most difficult of all, children are unable to maintain meaningful and positive associations with their family members. While everyone involved in litigious family law proceedings, most especially the parents, likely believe, or at least convince themselves, that they are acting in the children's best interests, the reality is that this system creates unnecessary turmoil in everyone, particularly the children, separate and apart from the difficulties inherent in the initial breakup itself. In recent years, there has been a trend in a number of states towards using non-litigious methods for resolving family matters, including negotiation, mediation, and, more recently, collaboration.

The ideals of collaborative law, better known and used in other areas of law, have been promoted by practitioners and commentators alike. Collaborative law, according to them, creates a new and, many believe, better methodology for dealing with family matters, especially dissolution and its integrated issues. This is especially true when collaborative law moves from a merely behavior-controlling paradigm, to one encompassing the precepts of therapeutic jurisprudence. Therapeutic jurisprudence recognizes the need not only to address specific conduct, but the underlying issues that have led to it. Yet, for all the agreement among legal practitioners, the Bench, and mental health experts that such processes are far better for family members, particularly children, there remains reluctance in many states, and even great fluctuations within states, against requiring a switch to such methods. While there are legitimate concerns among those involved in family law matters, relating to the specifics of the collaborative method, the overriding opinion among most legal and virtually all mental health professionals is that such methods, especially since they encompass the philosophies of therapeutic jurisprudence, are so superior to the litigation system in resolving the original issues and in allowing all parties to proceed forward in a healthier manner that they must be promoted and adopted on a widespread basis.

Keywords: collaborative law, therapeutic jurisprudence, controlling paradigm, psychiatrists, psychologists, practitioners, family law, mental health experts, children, family, divorce, families in distress, philosophies, practices

Suggested Citation

Freeman, Marsha, Comparing Philosophies and Practices of Family Law between the United States and Other Nations: The Flintstones vs. The Jetsons (2010). Chapman Law Review, Vol. 13, No. 2, 2010, Available at SSRN: https://ssrn.com/abstract=2688745

Marsha Freeman (Contact Author)

Barry University - Dwayne O. Andreas School of Law ( email )

6441 East Colonial Drive
Orlando, FL 32807
United States

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