Family Courts are Here to Stay, So Let's Improve Them

• Author: Barbara A. Babb
• Published date: 01 October 2014
• DOI: http://doi.org/10.1111/fcre.12115
• Date: 01 October 2014

COMMENTARIES

FAMILY COURTS ARE HERE TO STAY, SO LET’S IMPROVE THEM

Barbara A. Babb

[W]hile the challenges of a contemporary . . . family court docket may be fierce, we can unquestionably

find ways to meet them and do better.I am simply unwilling to adopt a despairing and defeatist attitude the

“nothing works” or—put another way—“everything stinks,” but don’t change a thing.1

INTRODUCTION

This article is an invited response to the White Paper of the Institute for the Advancement of the

American Legal System’s Honoring Families Initiative on the court and separating and divorcing

families.2While the White Paper explores many topics, including family court functions, the limita-

tions of the adversary process, the effects of divorce and separation on children and parents, and court

and community collaborations, among others, this article focuses on the family court itself—its

mission, its function, and its structure. Given the increasing numbers of people using the courts to

resolve their family legal disputes, this perspective is important.3For example, in Maryland during

fiscal year 2013, forty-four percent of the total trial court filings involved family and juvenile cases,

exceeding the portion devoted to either criminal or other civil cases.4In fact, as the White Paperpoints

out, “[t]he family courts have, in effect, become an emergency room for family problems when

separating and divorcing parents have nowhere else to turn for help in addressing their problems with

each other and their children.”5Withthat in mind, family courts likely are not going to disappear.Thus,

they are worthy of our efforts to structure or restructure them so that they are as helpful to children

and families as possible.

THE NEED FOR AN UNDERLYING THEORETICAL FOUNDATION TO GUIDE THE

FAMILY COURT PROCESS

Because of the complex and intimate nature of family law cases, and because of the unique and

powerful impact courts have by intervening explicitly in families’ and children’s lives, the legal

process must operate effectively. The White Paper authors suggest employing processes that are “more

accessible and more responsive to children, parents, and families.”6For nearly two decades, I have

advocated that family courts adopt both a therapeutic and a holistic approach to court structure and

processes, as well as to family law decision making.7I have suggested the application of therapeutic

jurisprudence and the ecology of human development as a means to accomplish this more responsive

approach.

THERAPEUTIC JURISPRUDENCE

Professor David Wexler, one of the co-founders with the late Professor Bruce Winick of the concept of

therapeutic jurisprudence, defines it as follows:

Correspondence: bbabb@ubalt.edu

FAMILY COURT REVIEW, Vol. 52 No. 4, October 2014 642–647

© 2014 Association of Familyand Conciliation Cour ts