The daily digest of Twin Cities culture | Secrets of the City

Todd Strand is in a world of hurt. It’s called Hennepin County Family Court, where he’s spent the last three chilly midsummer days in divorce trial proceedings, after almost three years of legal warfare. His personal tab—not including his wife’s legal fees—has already pushed past the $100,000 mark. Seven thousand dollars of that went to cover his half of the cost of a private custody evaluation that spanned from last summer to this one. His trial didn’t conclude, so he’ll be headed back to court in two or three weeks. If things get backlogged, it could be as late as October. After hearing this deflating news, he’s not sure he’s got it in him to keep his commitment to this interview with a writer who wants him to discuss—yet again—the complicated details of his personal life. Plus, this story will be in readers’ hands long before his case is decided, which could be as far off as January 2004, depending on how long the trial drags on. It makes Todd edgy. “I don’t want to make this any worse,” he sighs into his cell phone, saying that even if we change his name, which we have, certain details might be specific enough to stick out and identify him. “Look,” he concedes, “I’m standing in line waiting to buy a burrito. I’m starved. Give me two minutes, and I’ll talk to you.”

So despite his reservations, despite his understanding that this story is not going to be strictly the one he’d like to tell about how “men are discriminated against” in family court, despite his exhaustion and stress, despite all of it, this forty-three-year-old father of two school-aged children still wants to talk. In fact, he can’t stop talking—the words just spew out involuntarily. “I’m exhausted, but I don’t mind telling about this, because when it comes down to it, this whole system is just a tragedy, and if there is anything I can do to help anybody else, it’s worth it. There has got to be a better way.”

No matter how you look at it, modern American divorce is a costly spectacle. With about a million new marital dissolutions each year, divorce is a twenty-billion-dollar-a-year industry, and the average admission price these days is fifteen to thirty thousand dollars per spouse (a figure that’s even higher in many urban areas or for complex and highly conflicted cases, such as Todd’s). Attorneys take the biggest piece of the pie, with meters running at $150 to $450 an hour to handle the legal documents. And then there is the best interest of the children to consider—a process that’s become unfathomably expensive, financially and emotionally, in a growing number of divorce cases.

For Todd, the custody dispute has gone poorly. “They want you to say every horrible thing you can come up with about the other person, and I haven’t done that. I’ve stayed on the high road the whole time, and as a result I’m losing big.” Todd wants joint legal and physical custody; his wife wants sole legal and physical custody. In Minnesota, almost all divorcing couples have joint legal custody, which means major decisions will be shared regarding the children’s education, religion, and health care. Minnesota law presumes joint legal custody except in extreme cases, such as documented abuse. Physical custody, though, pertains specifically to the everyday care and residence of the child, and while joint physical custody has gained popularity in recent decades, the majority of divorcing Minnesota mothers still retain sole physical custody (usually by agreement of the divorcing couple).

Despite these legal presumptions and precedents, Todd’s evaluator, a private professional whose work was paid for by Todd and his ex-wife, recommended sole legal and physical custody for the mother. Todd told me he didn’t feel comfortable with the evaluator from the start. “It’s crazy. What I keep coming back to is that the punishment doesn’t fit the crime. Not that I committed any crimes,” he insisted. “I haven’t. But the bottom line is they want full legal, and they want to prove I’m such a crappy dad, but it’s not true. You can just see that the custody evaluator is very biased.”

About one million American children experience their parents’ divorce each year, and nearly half of all children born today will go through some sort of custody dispute in their lifetime, because today’s divorcing parents don’t readily agree on the care and custody of their kids. Neither do the laws that govern our family courts, nor the people who practice there. Getting the issue of custody decided in court via the prevailing “best interest” standard has become a quagmire. Family court judges and referees frequently order a child custody evaluation to be conducted, and they base their decisions on the report submitted by the evaluator after the assessment has been completed, which usually takes several months. Custody evaluators can be employed by the county or by the divorcees themselves, in the former case being almost free to parents in Minnesota, and in the latter costing anywhere from two thousand to twenty-five thousand dollars.

Custody evaluations involve a full workup of “research,” including home visits, parenting observations, parent interviews, child interviews, questionnaires, psychological testing, intelligence testing, chemical dependency assessments, and interviews with friends, neighbors, teachers, doctors, dentists, babysitters, and so on. One cottage industry begets another: On the web, there are dozens of sites that describe the ins and outs of winning custody by impressing evaluators, passing psychological tests, and showcasing your ex-spouse’s parenting deficiencies without staining your own hands. There’s a tidy profit to be made from the panic and helplessness that strike when parents are being scrutinized and graded by a random stranger.

These issues and the systems governing them are so complex and variable across states and counties that to ponder them makes your head spin. Yet Sarah Ramsey does it every day. Ramsey is a law professor at Syracuse University, where she specializes in family law. She coauthored the popular casebook Children and the Law: Doctrine, Policy, and Practice. “Children aren’t so harmed by divorce, per se, but by a high level of conflict, whether it accompanies divorce or is part of the ongoing marriage,” she told me. “It would seem logical that conflict over custody would be even worse for children than conflict over something else. It is very important for parents to put their kids first and keep them out of their conflicts.”

To determine the total number of cases in which custody is disputed is to count grains of sand on a windy day, because, contrary to Todd’s experience, the overwhelming majority of disputed cases do not go to trial, even when they involve expert custody evaluators. Instead, roughly ninety-five percent of divorce cases—even the most vicious—are settled out of court without a trial. But the term “settled” is misleading in its civility, because most of these settlements occur on the courthouse steps, after a year or more of damaging accusations, affidavits, court hearings, evaluations, tests, home studies, motions, countermotions, and endless other machinations of the adversarial family-court system, including the paralyzing stress and financial strain of it all.

Still, the number of contested custody cases has increased over the last three decades. According to Canadian psychologist Tana Dineen, “This area of practice is a tremendous source of income for psychology ‘experts.’ In the mid-1970s it was estimated that in the U.S. the yearly price tag for all the custody evaluations done was $24 million.” Today, courtroom psychology is a billion-dollar industry, and custody evaluations account for a substantial slice of that revenue, probably at least $100 million.“It’s a huge chunk of the industry,” said Dineen, who has dedicated much of her career to exploring and exposing the limitations of her profession. By 1993, after more than twenty years in the field of psychiatry, Dineen had become so disillusioned that she closed her practice and began work on her contrarian book, Manufacturing Victims: What the Psychology Industry Is Doing to People. “My focus on the shortcomings of the psychology industry is much broader than custody, but when my book came out, by far the majority of the responses I got to it were about custody.” Dineen criticizes the psychology industry for selling answers it doesn’t have. “There’s a mythology that psychologists have tools and ways of assessing which parent is the better parent, and that’s a very prevalent mythology within the court system itself. It basically lets judges off the hook, frees them up from owning their decisions,” she told me. “And yes, these are very hard decisions to make. There is just no way to say that this parent is better than that parent. So you hire someone to say who is better. But there’s no reason to believe that the hired opinion is accurate, true, or helpful in any way.”

“These people are so powerful,” said Todd. “They are way too powerful.” A year ago, when his custody evaluation had just begun, Todd took his children for a bike ride to a nearby park. “It’s a short ride, maybe ten minutes at the most,” he recalled. “So we get there and the kids are playing, the park is full of other people, parents and kids. Everything is fine. Then I realize I forgot the snorkeling gear, and this is a real disappointment, because when you’re a dad, and you get three hours at a time with your kids, every single minute counts. So I know my son is going to be very disappointed. And yet to go back to the townhouse is going to take awhile, because my son had just learned to ride his bike, and there are hills to climb on the way back. I just don’t think there’s time to do this. So I ask the mother I’ve been chatting with for an hour now, I ask her if she would mind keeping an eye on my son while my daughter and I go back to get the snorkeling stuff. We’ll be back in ten, fifteen minutes. No problem.”

For a married or already-single parent, maybe it would have been no problem. But for the divorcing parent involved in a custody dispute, virtually everything is a problem. Todd’s decision to leave his six-year-old son under the supervision of a relative stranger at the park was brought into the custody evaluation, and the evaluator recommended that Todd be put on supervised visitation and enroll in parenting classes.

“When I got placed on supervised visitation, things really started unraveling,” said Todd. “It sucked. It’s virtually impossible to do supervised visitation, it’s a huge hassle, and it made it very difficult. My point is that we all as parents make mistakes. Some are more serious than others. We’re not perfect human beings. Now I agree I shouldn’t have left my son with the lady even though he was comfortable with her, even though there were other adults there, even though my son knows what to do if he were to be abducted by a stranger. But I realize there are differing opinions on this. Some people I ask say they think it was fine, others say no, they would not have done what I did. But still I say the punishment doesn’t fit the crime.”

Undoubtedly Todd’s ex-wife and the evaluator would tell the story differently. But Dineen and Mason have both filled their books with example after head-shaking example from the annals of case law and psychology of the profoundly stupid, deceitful, hurtful, and, in the worst cases, fatal applications of forensic psychology in both child custody evaluations and the broader child welfare system. They document cases in which children are torn from loving parents and handed over to known abusers and criminals; they describe how results are presented for studies that never actually took place of populations that do not exist, and they identify how syndromes that are the brainchild of a sole practitioner with an ax to grind can be accepted by experts and judges across the country as valid with little or no scrutiny.

Carla’s story certainly raises similar questions, from the opposite side of the gender gap, and with more serious ramifications. “When it comes to family court,” she told me, “there is no judgment. There are decisions, but no judgment.” Carla (not her real name) and her ex-husband divorced in 1995 and agreed at the time to share joint physical custody of their son and daughter, then five and nine years old. Both parents were past substance abusers who’d been clean for years, or so Carla thought. But in 1999, Carla’s ex-husband overdosed on heroin in his bathroom while the two children were in his care. Paramedics carted him out of the house on a stretcher and took him to an emergency room, where he was treated for the overdose. Carla moved the court to modify their divorce decree by awarding her sole physical custody and placing her ex-husband on supervised visitation. The court ordered both of these modifications on a temporary basis, until an evaluation could be conducted.

“The whole ordeal took about two years and cost me about seventeen thousand dollars in legal fees,” she said. “And although he was the one who overdosed—the one who was the criminal, if you want to put it that way—I had to undergo all of the same things that he did. If he had to have a psychological test, so did I. If he had to have a drug assessment, so did I. Even my current husband was required to take tests.”

Seven months after the overdose, the two county professionals involved in the process—an evaluator and a guardian ad litem—submitted reports to the court that recommended the temporary order be reversed and the couples’ original every-other-week joint custody arrangement be restored until final judgment was ordered. The court’s final judgment to uphold joint custody came in August 2001 and has remained in effect since, despite Carla’s growing concern over her son’s reports that his father is drinking again. The court order calls for the father’s custody to be conditioned upon his continued sobriety, and states that “in order to insure continued sobriety, the Respondent shall undergo random urinalysis or other testing as requested from time to time by the guardian ad litem or by Hennepin County Family Court Services.” To date, there have been no calls for any testing since the original order.

“But when people say I should go back to court, I say there’s no way I can afford to do that. I can’t put another nickel into this system. It’s a simple matter of who has more money and who has the bigger gun,” Carla said. “The fact is, their father is a highly paid white man and has the money and clout to get what he wants out of the system.”

Despite the shortcomings of the current custody-evaluation model, probably most people working in the field are dedicated, altruistic, and knowledgeable professionals doing their best to help in situations that are often impossible to decipher. The question is whether these mere humans, with clunky tools and very limited information, can set all biases aside and provide genuine help based on credible science.“These evaluators are hired guns. They operate out of factories—report factories—where they churn out reports,” said Dineen. “There is no way they could be unbiased; there is a credibility gap, in my mind. You have experts battling one against the other, and you have to ask, Where is the expertise? If there were truth as the basis, all psychologists should then be operating from the same knowledge base, not battling one against the other.”

Sarah Ramsey, however, draws a sharp line between hired guns chosen and paid for by one parent and the more neutral, shared-cost private or court-appointed evaluators, and maintains that the latter serve a useful role in the system and can be very helpful in a variety of ways, including motivating parents to settle.

But the harshest critics of courtroom psychology flatly disagree. Margaret Hagen, a professor at Boston University, earned her Ph.D. in developmental psychology at the University of Minnesota. After her brother was sued in 1993 for $3.4 million in a case alleging psychological injury (he eventually won after a defense costing more than ninety thousand dollars), she wrote a scathing criticism of forensic psychology in her 1997 book, Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice. Hagen echoes Dineen’s skepticism of the credibility of most psychological syndromes and diagnoses, and she insists that the reason “psychoexperts” are tolerated in court is that they relieve judges from the responsibility of deciding the impossible and buffer them from reversal on appeal. And despite the American Psychological Association’s statement that “the psychologist should be impartial regardless of whether he or she is retained by the court or by a party to the proceedings,” Hagen sharply dismisses the possibility of impartiality from a hired evaluator. “Well, that is a good thought,” she writes, “but … after half the attorneys who hired me lose their cases because of my highly judgmental and prejudicial reports and testimony, whom do you think will be hired for the next disputed custody case? Me? The loose cannon who can be counted on to shoot his own client in the foot half the time?”

But maybe the essential question about evaluators is not one of impartiality or credibility, or even proven accuracy. The question might be much more fundamental. I went to see Minneapolis attorney Judith Johnson, who put it this way: “When ever in our lives is it a good idea to hand over complete control of the most important issues—issues of an entirely personal and intimate nature—to absolute strangers?”

Two hundred years ago, fathers had “chattel” rights, entitling them to all property and earnings, including their children, under any marital separation. But the shift from a colonial household economy to an urban economy sent fathers out of the home into a more removed workplace, and solidified the mother’s role as primary child raiser. Chattel rights gave way to what eventually became known as “the tender years doctrine,” which presumed that it was best for mothers to have custody of young children. This standard held sway in the courts for more than a century, until the 1970s.

According to Mary Ann Mason, a professor of law and social welfare at Berkeley, children prior to the 1970s were not held hostage by their parents’ divorces in the same way they are today. In The Custody Wars, she writes, “Under the ‘tender years’ doctrine, the presumption was that small children needed the nurture and stability of a primary parent. … The child then was assigned a single primary residence and a single primary parent—nearly always the mother. While this rule undoubtedly caused some unfairness, it did focus on the child’s need for nurture and stability rather than on the parents’ rights to access. It also discouraged dispute, since society’s attitudes were aligned with the law’s judgment about what was best for children.”

Today we are no longer homogeneous as a society when it comes to our beliefs about what’s good for children, and a return to the tender years doctrine—or chattel rights, for that matter—is nowhere on the horizon. Modern custody disputes, which parents may believe are personal battles over their emotional attachments to their children, have become another stage upon which the gender wars are being played out. Although laws governing custody disputes have changed again and again over the past three decades, those changes have been pushed more by the winds of gender politics than credible research findings about what’s best for children. And what is best for children? Most married parents don’t entirely agree on child rearing or on what’s best for their children. Today’s eminent child psychologists and parenting experts don’t agree on what’s best for children. Nor do the fifty states agree on which common standards ought to be considered in determining a child’s best interests. Therefore it’s not terrifically surprising that the best-interest standard has been difficult to apply.

The American Law Institute, an independent association of lawyers and judges that has wielded extraordinary influence over American legal practices since its founding in 1923, spent ten years evaluating family law before publishing a two-thousand-page report last year with recommendations for reform. The report, “The Principles of the Law of Family Dissolution: Analysis and Recommendations,” caused a lot of hubbub in the press because it proposed to extend marital and custodial rights to gay and unmarried couples. The report was immediately decried by conservatives as an assault on marriage, and the ensuing debate took center stage in the popular press. Meanwhile, the report’s less sensational recommendations for changes to existing custody and child support laws got buried or glossed over. Nonetheless, the report has been cited already in hundreds of scholarly articles, and its recommendations could substantially reform family law in the years to come.

The authors of the ALI report advocate for a predictable way to allocate parenting time and responsibility post-divorce by looking at a couple’s parenting history and using that first and foremost as the determining factor. “It’s called the approximation rule,” said Ramsey. “It’s much less ambiguous than the ‘best interest’ standard and it has the potential to eliminate the need for experts, because laypeople can testify as to who did what and how often for the kids. It’s not a psychological assessment—you don’t have to say what’s best, just who did what.”

As for child support, the report’s authors say it should be calculated based on income and parenting time, and that when the custodial parent has less income than the noncustodial parent, the child support would be greater than under most current laws. The report was drafted with the intent to set guidelines for individual judges and state legislatures so that laws from state to state could become more consistent. As it is, people feel a sense of injustice when judicial decisions are a matter of luck or who the judge is. The report’s authors also acknowledged that if judicial decisions are more predictable, more couples will settle out of court—and perhaps with less warfare.

“An indeterminate standard for custody decisions, such as ‘the best interests of the child,’ can be an inadvertent invitation for litigation and employing experts to help decide what is ‘best,’” said Ramsey. In other words, ambiguity in our current cultural and legal assumptions helps to fuel dispute and litigation at the individual level. And with this ambiguity comes the use of expert testimony or forensic psychology as a means of illuminating decisions for the unenviable judges and referees of family court who, in the words of one Ramsey County referee, are in custody cases doing what amounts to “performing brain surgery with a chainsaw.”Another contributing factor in custody litigation is the success the fathers’ rights movement had in the eighties lobbying for legislation favoring joint physical custody over older laws that favored the assignment of a primary custodian and a single residence for the child. Many states adopted joint physical custody presumptions, and California even determined that the courts should favor joint physical custody whether or not the parents did. Fathers went on to win child support concessions based on a concept of joint custody.

Certainly many fathers are fighting custodial battles because they sincerely believe they are acting in the best interests of their children. Others may not actually want custody, but instead, Mason points out, they use their newly gained rights to influence their support obligations. By “influence,” Mason means lessen. It works like this: With joint physical custody—sometimes referred to as shared custody—child-support obligations are determined not by income guidelines, but rather by careful calculations based on the percentage of time the child ostensibly spends with each parent. Critics call it “Rent a Child” and draw attention to the fact that women and children still experience a dramatic drop in their economic standard of living after divorce (while men do not), and supporters say it’s the overdue answer to archaic child-support guidelines that unfairly strap fathers. Either way, it’s become a factor in the custody wars. Mason’s book cites one California attorney who represents mostly men, and who admitted that “about sixty percent of my male clients ask for joint custody now, but only ten percent really want it. It’s a good bargaining position.”

“I have been very disappointed in most manifestations of ‘father’s rights,’” said Sarah Ramsey. She referred to the gaggle of organizations, many of them with powerful lobbies and the word “children” in their names, who are directly or tangentially tied to the creators and signatories of something called the Father’s Manifesto. The Manifesto, easily accessed on the web, is a kooky but frightening document that demands, among many other outrageous things, a return to chattel rights for fathers and the repeal of women’s right to vote. The problem is that you won’t find the Manifesto reprinted on the myriad fathers’ rights websites that are covertly associated with it. So the average dad facing an emotional divorce and looking for a quick tutorial on the Internet to help him demystify the process is bound to stumble into the dens of several fathers’ rights groups telling him in every possible way that if he doesn’t sue for custody he’s a pantywaist and a failure.

Obviously, not all fathers’ groups support the Manifesto, and many provide valuable services to fathers and families. They’re easy to distinguish from the anti-mother lobby groups, as soon as you begin to read their published material. The Resource Center for Fathers and Families is an excellent local example. Its vision is “children with both fathers and mothers active in their lives as parents and as partners in parenting,” and its mission is “to provide resources that will help men become better parents and better parenting partners regardless of marital status, and to provide the model that all children deserve.” The agency “believes strongly that win/win in the parenting partnership is the only way that children and their entire family, no matter its form, can thrive.”

In contrast, a sampling from any smattering of general fathers’ rights pages on the web will reveal red flags ranging from overt mother bashing to the sale of various kits and pamphlets on how to avoid child support and beat allegations of domestic abuse.

“Too often these groups seem to be populated by angry, controlling men,” said Ramsey. “They’re upset about having to pay child support and they expect their ex-wives to conform to their expectations with regard to location, new husband, type of visitation, and so on.” That fathers are important to children and should be a part of their lives is obvious and well acknowledged throughout the system. “But their emphasis should be on parental responsibility and the well-being of children,” said Ramsey, “not their ‘rights’ as fathers.”

For the record, Todd told me that in his case child support was never an issue. He and his wife jointly owned a small business that’s done very well over the years, and Todd has no problem with guideline child support. It’s the sixteen thousand dollars a month in permanent spousal maintenance he objects to, and the accusations against him of negligence and poor parenting that he claims are false and unfair. He didn’t sound angry, he sounded defeated. He’s spent the last three years of his life fighting in a system he calls “hideous,” waiting for his future to be ordered by the court. The verdict is still out, but it’s not looking good. And for the most part, it’s out of his hands.

“That’s exactly what our kids feared the most,” said Chloe (not her real name), a forty-four-year-old mother of three, freshly divorced in June. “The idea that some judge could interfere with our lives and tell them when they could or couldn’t see us. That really scared them.”

Chloe agreed to meet me in a sunny coffee shop blaring with upbeat Latin music during the after-church rush because she feels a responsibility to tell people that there’s a better way, a radically better way.

She and her ex-husband completed their divorce collaboratively, which is not the same thing as “cooperatively,” or “civilly.” It’s a distinct, specialized legal process wherein each spouse is represented by his or her own collaborative attorney, and both attorneys and spouses sign a contract at the beginning that promises to keep the matter out of court, period.

“I don’t think it’s very widely known at all,” she said. “I wouldn’t have known about it if it weren’t for the fact that Ron Ousky [Chloe’s collaborative attorney] was a neighbor of ours, and I spent some time chatting with him at a book group a couple of years back about what he did for a living. It caught my interest, because even though we weren’t exactly on the brink of divorce at the time, it was a discussion we were having on and off.”

Ron Ousky is a Minneapolis family law attorney whose practice includes both collaborative and traditional casework. He is president of the Minnesota Collaborative Law Institute, an umbrella organization with fifty-six attorneys on the member roster. His enthusiasm for the collaborative model is infectious. “Sometimes when I speak to groups, I think of the custody battles I’ve handled as a traditional matrimonial attorney, and I pick those people who stand out as the ‘biggest winners,’ the ones who got everything they wanted, and every single time those people, five years after the fact, are less happy than those who settle their divorces collaboratively.” That’s not hard to picture. Where there are big winners there are big losers, and the losing side is often so damaged by the process that they cannot stop trying to punish the other person, which can often mean being dragged back to court over visitation and parenting disputes. The fight can go on forever. Children caught in the middle of this unending parental conflict don’t fare well. Ousky has watched over the years as the least fortunate finally try to escape by running away or committing suicide. “That’s not viewed as success by anyone,” he said. But once the court holds the keys, it’s hard to stop wrestling to get them back.

When the marital counseling that Chloe and her ex-husband were doing reached a dead end, her ex-husband spoke to an attorney, and Chloe called Ousky. The couple attended an informational meeting with Ousky, and they were both sold on the idea of a process that would keep their kids at the center, keep them out of court and away from the control of the judge, and keep their savings intact. Chloe’s ex-husband dropped his attorney and retained Stuart Webb, one of two Minneapolis attorneys who practices collaborative law exclusively and the man who is known as the founder of the collaborative movement.

In 1990, Stuart Webb had been slugging away for two decades as a divorce lawyer, helping people like Todd and his ex-wife spend their savings on tearing each other apart, with kids running for cover in the crossfire. “I felt like I was living in a siege mentality; it was a crisis practice,” he said. “In litigation-style family law, there is always something horrible coming up.” Finally one morning he woke up and said, “I quit.”

At that point, Webb was so fed up he just wanted out of family law altogether. But then he had an idea. “I thought, if I’m willing to get out of the practice anyway, then maybe there’s a way that I could do this outrageously, way out of the box.” Webb, a longtime practicing Buddhist, had a vision of a radically new way to practice family law, where court was simply not an option, and attorneys on both sides would sign a contract at the outset that prevented them from litigating the divorce. Instead, all parties involved would sit around a table and work out a settlement with full disclosure and no threat of ending up in a trial. That’s when it all clicked, and collaborative family law was born.

“So on January 1, 1990, I declared myself a collaborative lawyer,” he said. “But there were no other collaborative lawyers, so that was a bit of a problem.” He laughed heartily. “But I eventually recruited some willing attorneys, first four or five, then about nine, and then more and more until the whole thing spread across the country.” Collaborative law now exists in thirty-five states and nine Canadian provinces. This spring twenty lawyers in Vienna attended a training conference, and in the fall fifty more will gather in London.

What happens, said Webb, when you take “the court away from the lawyer,” is that these attorneys—who’ve been trained since law school to fight, to be gladiators—have to take a whole different approach, and sit down and help their clients figure out how to solve the situation without bloodshed. Because, as Chloe pointed out, if you have kids, you’re going to be dealing with this other person for the rest of your life anyway, and it’s either going to be hell or not. Once you set off down the adversarial path to court, it probably doesn’t matter if you stop short of the courthouse door—you’re still going to lose some limbs in the process.

Another important advantage of collaborative family law, say its supporters, is the fact that it’s much less expensive. “I’d say it’s about a third of the cost of a traditional divorce,” said Webb. “Because you’re only paying for time you’re actually spending with your attorney—there’s none of the endless back and forth of discovery and motions and affidavits at a couple of hundred dollars an hour.” Even so, attorneys don’t always earn less practicing this way. Ousky said his traditional family law practice is more lucrative, but Webb said he’s making more money as a collaborative attorney than he did before. “There’s this idea in Buddhism about the eightfold path, and one aspect of that is right livelihood,” he explained. “So you could say this is right livelihood for me in every way, including financially. Practicing this way has made my life a joy.”

“The whole thing cost about ten thousand dollars by the time we were done,” said Chloe. “We did a lot of the work on our own, figuring things out. We’re sharing custody, but since Steve works long hours and travels a lot, I have the kids a little more. He pays child support and spousal maintenance so that I can have time to get retrained for work. I have a medical degree but have been home for ten years with the kids.”

Chloe says there were times when other men would say to her ex-husband, “Hey, she’s got a medical degree. She can go to work, why should you pay spousal maintenance?” Spousal maintenance, formerly known as alimony, is entirely separate from child support. It is not directly related to the children or their provision (and can be awarded even when there are no children). When one spouse stays out of the workforce to support the other’s career advancement and/or raise the children, especially for a period of ten years or more, that person can be entitled to temporary or permanent maintenance payments in the eyes of the law. In Chloe’s case, both parents agreed they wanted to minimize the changes for the kids, avoid the introduction of babysitters and other unfamiliar stresses, and make every transition as gradual as possible. So Chloe’s returning to work half time instead of full time and training on the job, while her ex-husband—a cardiologist—will keep doing what he’s been doing for years. “He makes a lot more money than I do or could at this point, and his earning potential is higher. But once our youngest graduates from high school, I’m on my own, and that’s great. This is a temporary arrangement, and it’s really about the kids. Their father says that anger and bitterness corrode the vessel that holds them.” She paused. A crack appeared in her normally composed demeanor, and a faraway look came into her green eyes. “Well,” she said, shaking it off. “In the end you want to look back on the marriage and remember what was good about it, and you want your kids to do the same.”

Sarah Ramsey said she’s hearing some good things about collaborative law, and that it seems to hold some promise, although it’s certainly not widely known. “But there are some criticisms,” she said. “Some people are concerned that it favors the more powerful person in the marriage—traditionally the man—and that it may put women at risk of agreeing to settlements that don’t necessarily meet their needs or the standard of fairness.”

“I don’t really see that as a concern,” said Chloe, “because each of you has your own attorney, who’s really advocating for your interests, even though you’re working as this four-person team.” That’s a distinction that makes collaborative law a whole different animal than mediation, a process that for many couples is just a pit stop on the way to court, because although it’s less expensive by the hour than hiring two attorneys, neither spouse has an advocate right on the spot in the process, unless they pay the mediator and both attorneys, which negates the cost advantage.

“I don’t know where we would have gotten the money to pay any more than we did,” said Chloe. “There’s only so much in the pot, and you figure all you’ve got to divide up is what’s left.” But it’s clear that cost isn’t the critical reason Chloe feels so lucky to have discovered collaborative law for her divorce. “I know a couple right now that’s divorcing, and when they started out, it was with every intention to be friendly,” she said. “Then they hired their attorneys, got started on the paperwork, and within a very short time it’s gotten very unfriendly.”

“The financial waste is bad enough,” said Judith Johnson, the family attorney I met with at Speeter, Johnson, Hamilton and Wurst in Minneapolis. “But what it does to destroy the working relationship between the parents is a lot harder.” Johnson maintains about half of her practice with collaborative cases, and she tries to encourage all of her clients in that direction. For her, it’s a matter of who maintains control of these important issues and how parents are going to be able to cooperate after the fact.

“It’s a lawsuit, after all—you’ve got a petitioner and a respondent and they’re pitted against each other,” said Webb, who applauds the efforts of the ALI but ultimately shrugs off the report. “So then you don’t have experts testifying but you have parents arguing, ‘I changed the diapers five times a week,’ ‘No, I changed them eight times a week,’ and it goes on and on. In the collaborative model, if the parents get stuck on something, there are a number of ways the clients can agree to resolve it, anything from flipping a coin to arbitration to hiring a private judge. There are a hundred ways to stay out of court.”

Or get out of court once you’re in it. Johnson pointed out that she has handled many litigating couples who ended up with big regrets about having the details of their darkest days as part of the public record. And they decide, “You know what, we’re going to cooperate to go back and get the court file expunged, have a little burning party. It’s never too late to decide that you’re going to have a positive future.”

“That was a big deal for us,” said Chloe. “We told the kids that we’re always going to be a family, just in a different form, and maybe down the road it will include new people, because neither of us want to see the other person be truly lonely. But no matter how the family changes, they’re always going to have a mom and dad working together and backing each other up.” She recalled an evening when she tried to answer her 14-year-old daughter’s questions about the divorce, being honest but careful, and she finally ended with, “Your dad is one of the best people I’ve ever known, and you’re lucky he’s your dad.” She got that look again, and it started to sound to me as if these two should have stayed married. “That’s what my mother says,” Chloe said with a rueful laugh. “That if we can get along so well in all this…well, you know. But to tell you the truth, the collaborative divorce itself really helped us get some of our differences straightened out. I don’t know how it would have turned out if we’d ended up with a traditional divorce in the court system.”

“The fundamental question is whether these family matters belong in court at all,” said Webb. “That’s not a question I can answer, but let me tell you a story,” he said in a gravelly voice, sounding a lot like the grandfather he is. “There’s a community in Canada called Medicine Hat. It’s got a population of about fifty thousand people. It’s about eighty miles north of Montana, and in Medicine Hat there are thirteen family lawyers. Twelve of them have taken collaborative law training and are doing collaborative law exclusively. The court calendar has gone from eighteen or twenty items down to two. One family judge transferred to another location. Collaborative law is really changing the norm there. It’s more or less shutting down the family court.”
Sounds great, but is it realistic outside of Medicine Hat? “I just feel so strongly about this,” said Johnson. “I don’t think that most cases belong in the litigious setting. There are some cases absolutely that do, where there are extremes of mental health problems with one or both spouses, or where there are extreme financial concerns and stresses. Those cases should be given top priority on the crowded court calendar so that they can go to the top as quickly as possible and get immediate attention.”

The influence of the court will inevitably remain profound. The shifting laws that govern family courts affect everyone, because our expectations of the law influence the way any settlement, even a collaborative one, will be reached. And with the divorce rate hovering at about fifty percent, people will continue to be aware of how the choices they make in structuring the roles and responsibilities in their marriages might someday affect the way their lives shake down after a breakup.

As Mary Mason points out repeatedly, custody issues are not likely to become simpler. While technology advances and marriage loses its footing as child rearing’s central institution, greater numbers of unwed fathers and non-biological parents (including stepparents, adopting parents, and grandparents) are fighting for the custody of children they’re raising. Custody is “a central concern for the majority of Americans,” and the framework we develop to deal with the disputes will affect us all. Do we want strangers dividing up our families at their profit and our expense? Marriages are going to keep on dissolving while the institution itself redefines itself. Meanwhile, families are going to go on reshuffling. But until we develop new models for handling divorce and custody disputes, the legal morass will persist.