Honoring Families In and Out of Court: A Role for Courts and Communities in Separation and Divorce

The Honoring Families Initiative has released a white paper on the role of courts and communities in separation and divorce. Designed to spark national conversation and encourage collaboration between different disciplines, Courts and Communities Helping Families in Transition Arising from Separation or Divorce sets the stage for our work in the years to come.

Central to the premise of the paper is that the needs of children and families effected by divorce or separation have changed drastically over the last few decades:

• The divorce rate is increasing, and, with it, the domestic relations caseload;
• More self-represented litigants are proceeding through a system largely intended to be navigated by lawyers; and
• It is now well-established that the process of divorce and separation, and the accompanying conflict, can negatively impact children, adults, and business productivity.

In spite of this changing landscape, the system for divorce and separation has not been able to keep pace, and the needs of children and families are increasingly not being met.

At the root of these needs are enforcement and protection, which the court system is uniquely positioned to provide. The reality, however, is that not all families proceeding through the system require these core functions. Some families would simply benefit from problem-solving services such as mediation, education, counseling, and financial planning, while others need only the court's administrative function of entry of divorce decree. In an economic climate in which courts are largely unable to provide all services to all families within a reasonable time frame or budget, it becomes necessary to explore the role—and responsibility—of the community in supplementing our courts with future-focused, problem-solving services for families.

It is our view in the Honoring Families Initiative that nonprofit organizations, higher education institutions, and the private sector have a responsibility to supplement our courts and provide such services to families who need them, as “[t]he welfare of the entire community—especially its children—is impacted by how the members of the reorganized family relate to each other.” There are possibilities for interdisciplinary collaboration between law, psychology, social work, dispute resolution, and financial planning that communities should explore when courts are unable to create the solutions that families need.

Similarly, courts have a responsibility for ensuring that families in need of fact finding, enforcement, and protection can access these critical functions. Given the often very serious resource constraints under which today's courts operate, efforts must be made to identify—as early as possible—those families who need court involvement the most. Likewise, identifying those families who require little judicial intervention enables the court to quickly transition them to appropriate problem-solving services, where they can be empowered to reach agreement themselves—freeing court time and resources for families who need it.

Recognizing, therefore, a role for both courts and communities in assisting children and families through separation and divorce, the question becomes how to balance these roles and develop a service-providing partnership between courts and communities that truly serves reorganizing families. As the Honoring Families Initiative explores how to best develop this partnership, we offer a number of discussion points, designed to frame an action plan for future conversation and collaboration on how best to honor families in these most difficult situations:

• Judicial resources need to be promptly and consistently available to those most in need of the court's core functions of fact finding, protection, and enforcement.
• Families most in need of judicial involvement also require additional services and assessments, and systems should be designed to identify these high-needs cases as early as possible.
• Those cases and families not in need of judicial involvement require access to future-focused problem-solving services, which do not necessarily need to be provided through the courts. With these families, the emphasis should be on empowering them to reach their own decisions, by providing the necessary tools with which to do so.

All those interested in the welfare of children and families have a stake in this conversation. We hope that you will engage in this dialogue with us. Together, we can develop workable solutions that honor families.