Revitalizing the Adversary System in Family Law

Abstract

The way in which families resolve disputes has undergone dramatic change over the last decade. Scholars have focused much attention on a number of substantive law changes that have contributed to this transformation. These include the changing definitions of marriage, parenthood, and families. But less attention has been paid to the enormous changes that have taken place in the processes surrounding family dispute resolution. These changes have been even more comprehensive and have fundamentally altered the way in which disputing families interact with the legal system. Both the methods and goals of legal intervention for families in conflict have changed, altering the roles of judges and lawyers and moving much of dispute resolution out of the courtroom. These developments have profound implications for the family justice system. They also reflect a broader jurisprudential shift away from the traditional values of the adversary system in both the civil and, to a lesser extent, the criminal justice system. The impact of this shift in this context has not been fully explored, particularly the direct and harmful impact of such changes on low income litigants. Part One of this Article describes the changes that have contributed to this paradigm shift. Part Two explores the fundamental ways in which the shift alters the traditional adversary system and the risks presented by these shifts. Finally, the Article offers proposals to assist in weighing the relative benefits of the therapeutic and adversarial approaches. Countering the trend in recent reform efforts, the Article argues for a reinvestment in the adversary system to design a justice system that serves all families.