Stress and grief can make it hard to reach sensible decisions."
The Issue of Arbitration in Family Law
Family Law frequently involves the lives of children, and includes requirements that continue after the case decision is made. It often requires ongoing contact between parties. In addition, "marital and family law takes place in this heightened emotion atmosphere that is not present in other litigation," West notes. "The Family Law Section's 'Bounds of Advocacy' handbook is proving to be a legal best-seller in Florida, albeit a free one," the Florida Bar New Reports. Richard West, immediate past chair of the section, states, "The general thrust of it is that marital and family law is different from other forms of litigation, and it needs to be handled differently."
West contributed to assembling the handbook and works regularly to distribute it. The handbook West distributes consists of a recognition that minimum standards of ethical conduct in Florida Bar rules are not sufficient for many family law cases. In family law, West admits, it is possible: "for a litigant to win the legal battle, but lose the emotional and financial war."
As this paper addresses the issue of arbitration in the family law sphere, it purports to determine when and how arbitration should be used in the family law scheme. It also considers whether it is advisable to utilize arbitration in family law scenarios.
Family law is that branch of the law of consisting of the substantive and procedural rules that regulate the creation, ongoing relations, termination and post-termination consequence of family relationships, and the legal rights, privileges, and restructurings pertaining to such relationships. Direct regulation of family relations (e.g., rules governing marriage, paternity, adoption, child abuse and neglect, divorce, custody, support, etc.) are the major focus of law school courses and of most families fall practice. However, indirect family regulations arise in virtually all other subjects in the law school curriculum also. The addition of the "family factor" to otherwise normal problems of property, evidence, tort law, etc., often create a new, hybrid dilemma in which the family policy issue may overshadow the issue tort, evidence, or property law, etc. Historically, the primary focus of state family law of regulation has been (and still is) upon the nuclear family, through the regulation of relations between persons in analogous relationships such as the extended, quasi-, and alternative-families are increasingly being discussed in the literature and a rising in the cases.
In family laws in the United States, no such thing as "THE family law of the United States of America," exist. Instead, two [state; Federal or 52, depending on a person's perspective] sets and systems of family law in the United States. These sets and systems greatly differ from each other in substance, procedures and structures. "No state law entirely independently." Currently, in regard to arbitration in the family law sphere, the following family law matters may be custody, support, divorce, alimony, property division.
What the American Family Needs?
After investing10 years into a study, however, the American Law Institute determined the modern American family "needs a more modern divorce law."
The American Law Institute issued recommendations that cover concerns such as child custody, child support, alimony, legal rights of gay couples, and parents who choose not to marry.
On November 15, 2007, in another report compiled by Dr. Carol Coulter, a journalist, cites cases before the family law courts and revealed that "domestic violence accounts for almost half of all cases dealt with by the Family Law courts." During the course of this study, approximately 10,000 domestic violence cases were heard in court in one year. "Another quarter of the 20,000 family law cases last year involved custody battles over children. On some days, a judge anonymously stated in the report, due to the high caseload, "as many as 70 different family law cases could be listed in a single court for the same day. This, "the judge states, "often means that cases have to be adjourned and many are not given adequate time."
As the judge stressed: "This is not a satisfactory service where the organization of people's lives and the welfare of their children is at stake."
Other points noted by a report called Family Law Matters, released by the Courts Service, include:
Almost 10,000 domestic violence cases were heard in total.
20,900 family law applications in the district courts in 2006.
Of these, some 5,027 were for custody and access to children, of which 3,453 were granted. Another 1,417 were struck out or withdrawn, while just 157 were refused.
Of 1,742 applications for guardianship from unmarried fathers, 1,268 were granted, 432 struck out and just 42 refused. There were 9,924 applications under the Domestic Violence Act.
These included 605 barring order applications, of which 544 were granted.
In one custody case, a woman in a relationship with a man listed as ar egistered sex offender and regarded as a paedophile by gardai, resulted in the woman's estranged husband and her parents receiving joint custody of the woman's son. "The grandparents had to give an undertaking not to have any contact with their daughter or her current partner." In another case, a man's ex-wife, who left the country with another man, was ordered to pay the father of their children E300 a week for the maintenance of the children. In yet another case, a woman in her mid-70s obtained a barring order against her husband, who was reportedly violent and mentally ill.
In case after case in family law, raw emotions erupt in overcrowded courtrooms. Lynn Bodi, an attorney, notes that the definition of "family law" is currently expanding to match the peculiar composition and actions of families. Bodi als notes that in the past, family law did not focus on children as much as it currently does. Bodi refers to "family law" as "un-family law," noting this it is heavily involved with divorce, restraining orders, abuse, and alimony. Bodi cites the following family law scenarios for considerations.
A couple fights for visitation rights after the parents of their grandchild divorce. Brothers are placed into foster care, after accusing their adoptive parents of abuse. The love of a foster mother and special needs child clash with a tribal court's desire to have the child grow up in an Indian home.
A father refuses to relinquish parental rights, even though he's not involved in his child's life.
Before a baby girl dies of injuries from a beating, her liver is donated to save another child. No parent is present to give consent.
A woman seeks custody of her grandson. A lesbian seeks visitation rights to her ex-lover's daughter. An infertile couple seeks a surrogate to carry and deliver a child.
Bodi and her four colleagues, who operate the Law Center for Children & Families, focus of bringing families together, as well as helping components part more peacefully. They note the definition of "family" is expanding, which can complicate work in family law.
Custody and Support
In binding arbitration, one type of alternative dispute resolution (ADR), "a neutral third party resolves the issues in the case and the parties agreed to be bound by that decision. Binding arbitration is commonly conducted and other types of civil cases, however, because a court has an independent duty to determine what is in the best interest of a child, and arbitration award can not be binding in a case involving custody, visitation, or support."
Divorce Even though only a court can grant a divorce degree, a number of couples who are separating and/or divorcing prefer to keep their dispute out of court as much as possible. Consequently, "because arbitration is more private and confidential than court, parties often feel more comfortable using the arbitration process to settle their marital disputes rather than airing them in open court."
Generally, a family law case is handled by one arbitrator. However, if the arbitration will involve particularly complicated issues, the parties might want to have three arbitrators rather than just one. Although having more arbitrators increases the cost of the arbitration, the parties might benefit from having arbitrators with different backgrounds. For example, if the financial issues in a divorce or separation include complex real estate or business issues, a panel of arbitrators might be made up of a family law attorney, a real estate or business expert, and a lay person. Such a make up would give the panel the expertise that might be necessary to understand specific complicated issues while at the same time allow for a balance of viewpoints.
The fact each arbitration can be structured to accommodate each case's issues also makes it preferable to court for some individuals.
After an arbitrator makes his decision, he/she issues a written decision "that will make findings of fact and decisions, based on those facts. In Colorado, even when the parties have agreed to arbitrate their…