Therapeutically (Un)Just Interactions in Family Court Proceedings

• Author: Cindy Brooks Dollar
• Published date: 01 March 2020
• Date: 01 March 2020
• DOI: http://doi.org/10.1177/0887403418812170
• Subject Matter: Articles

https://doi.org/10.1177/0887403418812170

Criminal Justice Policy Review

2020, Vol. 31(2) 262 –286

© The Author(s) 2018

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DOI: 10.1177/0887403418812170

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Article

Therapeutically (Un)Just

Interactions in Family Court

Proceedings

Cindy Brooks Dollar1

Abstract

Court systems have a unique and powerful impact on the lives of persons who enter

into them. In recognition of some of the deleterious effects of traditional court

models, scholars and practitioners advocate for alternative court processes, especially

through the implementation of specialty courts. Family court is a type of specialized

court, which handles legal disputes among family members. The stated mission of

family courts reflects notions of therapeutic jurisprudence; however, scarce research

examines if therapeutic jurisprudence is actually practiced in family court settings.

Using 12 months of observational data of over 100 hearings, the present study

assesses the extent to which principles of therapeutic jurisprudence are apparent in

court proceedings. I find that although therapeutically just interactions are common

in family court, some encounters remain antitherapeutic or damaging. The implication

of family court’s current operation within the broader “justice” system is discussed.

Keywords

therapeutic jurisprudence, family court, specialty court, problem-solving courts

Families are changing. Although cultural conceptions of men as breadwinners remain

pervasive (Cherlin, 2000), over the last several decades women have entered the paid

labor force at substantial numbers; state-sanctioned support for parenthood and child

rearing have become more restrictive, and informal customs regarding relational dis-

solution and child rearing have transformed (Thistle, 2006). Court processes are also

changing, and some argue that these variations are closely linked to new family and

community realities, including escalating legal disputes among family members

1The University of North Carolina at Greensboro, NC, USA

Corresponding Author:

Cindy Brooks Dollar, Department of Sociology, The University of North Carolina at Greensboro, 337

Frank Porter Graham Building, PO Box 26170, Greensboro, NC 27402-6170, USA.

Email: cbdollar@uncg.edu

812170CJPXXX10.1177/0887403418812170Criminal Justice Policy ReviewDollar

research-article2018

Dollar 263

(Babb, 2008; Small & Kimbrough-Melton, 2002). Historically, courts have taken a

hands-off approach when dealing with familial conflict, but recent years have seen an

increased use of the judicial system to resolve domestic issues. Indeed, legal cases

involving families make up a significant portion of jurisdiction caseloads, up to half of

the docket in some states (Babb, 2008).

Research has long demonstrated that family disruption and conflict negatively

influence behavioral and psychological functioning among involved adults (Bloom,

Asher, & White, 1978; Webster-Stratton, 1989) and children (Ayoub, Deutsch, &

Maraganore, 1999; Kelly & Emery, 2003; Yorgason et al., 2014). What is more, the

adversarial proceedings associated with traditional court settings can escalate family

conflict (e.g., Pruett & Jackson, 1999; Reihing, 1999). For example, Arendell (1995)

found that some divorced men reportedly used or threatened to use violence against

their partners partially because of their frustration with court proceedings. Relatedly,

Sinclair (2000) revealed that women reported feeling revictimized and fearful when

asked about their participation in adversarial court proceedings. Taken together, these

studies suggest that traditional court proceedings may allow men an opportunity to

instill fear and women an opportunity to feel unsafe, thus comporting with studies of

women seeking protective orders from abusive partners (Ptacek, 1999). These find-

ings also highlight the social-psychological strain associated with court processing of

family-related matters, which are often unique in that parties maintain contact follow-

ing the legal dispute. Such concerns, coupled with the increase in family-related litiga-

tion and changing expectations of families, have led to a significant growth in courts

that specialize in family matters.

Family courts are one form of specialized court. Specialty courts were developed to

address rising concerns about traditional courts’ emphasis on adversarial proceedings

among specific populations. Since 1990, the growth of specialty courts has been tre-

mendous. There are currently over 3,200 specialty courts operating in the United

States (Nolan, 2011), with family courts operating in 38 states (Babb, 2008).

As discussed below, the official goals of specialized family courts reflect principles

of therapeutic jurisprudence. Therapeutic jurisprudence advocates maximizing the

potential for healing and minimizing the potential for damaging effects (Wexler,

1990). Proponents of therapeutic jurisprudence often cite therapeutically just encoun-

ters as containing three features: respectful interaction between legal actors and liti-

gants, structuring processes to encourage statements of individual perspective and

standpoint, and transparent judicial decision making (e.g., see Winick, 2002).1 Using

12 months of observational data, the present article will discuss the extent to which

therapeutically (un)just encounters occur in a unified family court. Specifically, it

presents data focused on the legal procedures of and communications between legal

actors (judges and attorneys) and litigants (plaintiffs and defendants) in a midsized

family court in North Carolina. Family courts are described in the succeeding section.

Next, the theoretical and empirical literature on therapeutic jurisprudence is reviewed.

Following this, the methods of data collection are discussed, observed cases are sum-

marized, and the results of the analysis are detailed.