Is there a crisis in the courthouse?  Have backlogs, delays, deferrals and/or the downright refusal to actually decide things created a lack of confidence in the judicial system?  Is it possible to get a “real” trial date when you really need one?  Has the system turned in to one of costly busy work, trials and/or decisions don’t come?  If you do get a trial date – as elusive and mystical as Big Foot – will you get another one in the same season, much less week or month?  If you actually complete a trial, will anyone remember what it was about when the decision comes, 6 months, a year or longer, after the trial was completed.  More importantly, is there anything left to fight about by then? Troublesome, if not scary things are going on out there.

  • We have a case that has been going on for more than 4 years and has been touched by no less than 6 or 7 judges.  Numerous “fake” trial dates had been scheduled but none in months.  In fact, we recently got an Early Settlement Panel notice 4 years into the case and have been ordered to get the custody evaluations updated which will delay the case by a year.  In fact, it has gone on so long that 2 of the children have already aged out of the custody dispute.
  • Because a case is going to eventually be scheduled for a settlement conference with the trial judge, the motion judge decided to neither really substantively decide a motion or refer the matter to DCPP as she said was appropriate.
  • A temporary suppport motion filed in June and argued in August still not decided by December, such that a second motion had to be filed in which the first request for relief was to decide the first motion (all the while, the wife was getting no support.
  • While a motion was pending, before anyone read it to determine if it was ripe for mediation (and most of it was not because it was enforcement), it was referred to mediation that was doomed to failure.
  • On a motion to determine the validity and enforceability of a marital settlement agreement that the parties had lived under for several years, a referal to mediation because the agreement had a mediation clause (begging the ultimate question – don’t you have to find the agreement enforceable before your can enforce the mediation clause?
  • Rampant referrals to parent coordinators for things that cannot go to them (enforcement) or cases that cannot be there (because of domestic violence restraining orders).
  • The refusal to decide enforcement motions, instead appointing experts, or GALs, or parenting coordinators, to investigate and make recommendations – delaying adjudication, and in some cases, parenting time, for months and months.
  • Rampant delay in both the hearing and/or the deciding of motions.
  • Being forced to come to court for multiple ESPs and/or intensive settlement conferences, or blue ribbon panels.  In fact, I was recently a blue ribbon panelist for a case that had been to several ESPs, Blue Ribbon panels and at least 2 mediations.  I asked why/how, my opinion (possibly close to the 10th they had received) could be any more helpful than the prior nine. Was this justice or a war of attrition?
  • The refusal to actually enforce Orders or impose sanctions, especially with custody and parenting time violations, even where the facts are largely not in dispute.
  • An attitude that both litigants should be punished, or unhappy with a decision, because someone felt they had to bring the issue to the court.  A pox on both your houses, so to speak.

These are just a few examples.  I could go on and on as can my fellow familly law attorneys. The  problems have become so pervasive that they created a cottage industry for retired family court judges.  While 7-8 years ago, there seemed to be only a handful of them out there, most having gone off into the sunset of retirement, now they are plentiful and extremely busy – so much so – that it is not always the quick fix that it had become. Any way you slice it, these things cause litigants to lose faith in the system.  That is an untenable result.

Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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4 Responses to Have Litigants Lost Confidence in the System?

Eric, thank you for being brave enough to post this. Yes, as you say, many of your fellow family law attorneys share this concern. You didn’t mention the one I was dealing with recently: When attorneys spend a lot of time writing something, sweating every sentence to make it persuasive and legally sound, going back and forth with a client to ensure the points are made as strongly as possible… and then to have it 100% apparent that a judge never even read it, either via an overt, obnoxious insistence that an issue or case be settled when it just needs to be decided or via giving a decision from another planet. It’s not only the litigants who are losing faith in the system. For those of us (like you and like me) who care about more than just billable hours but in doing the best job possible for our clients, it’s … well, frustrating isn’t the word.

Of course, as with anything in our court system, it’s far, far easier to tear down and criticize (see the “Divorce Corp” movie) than it is to come up with realistic suggestions for how to make it better. It’s pathetically easy for people to rip into the system, but these same (sometime self-righteous…see the “Divorce Corp” movie) people who are so free to point out what’s wrong will cowardly slink away when the topic turns to “okay – so what we do”?

It’s an issue I would love to see our brethren (and “sisthen”) really take on. Judicial accountability would be one place to start. You know those “review” sheets we get occasionally for untenured judges? How about if we got more of those, and for both tenured and untenured judges? How about if they were read by someone who had the ability to do something about it? At a minimum, lazy judges should not be in Family or criminal – they should be somewhere where the worst damage they can do to someone is financial only (civil / special civil). At a maximum, our State constitution says the judges serve “during good behavior” but never defines that term. I say that being a judge should be the same as any other job – if you show (via attorney surveys, having an astronomical reversal rate for stupid errors) you can’t hack it, then your employment ends, just like any other job.

And what’s most frustrating is that the Bar Association sections seem far happier to kowtow and sing the praises of our judiciary instead of calling a spade a spade and taking action to really create the kind of system that we can be consistently proud of. Yes, there are great judges, who work hard, who care, who read the papers, who balance things… But, to use an analogy, no one would be asked to drive a car that “only has a 5% chance” of suddenly losing its steering and crashing.

Sorry for the long post, but you touched a nerve with this. As I said, it’s an issue I would love to see our brethren (and “sisthen”) really take on. I hope others will show the courage you have and that we can really move forward to address the problems.

Eric, I concur with David Perry Davis in thanking you for bringing up this controversial topic.

As a litigant in a horrific NJ divorce and having spoken to many litigants in both the alimony reform movement and the parents who are being alienated from their children by corrupt courthouse workers and draconian decisions by family court judges, I can tell you, most of us think there is something seriously wrong with the family court system. The best way I can make the point of what is happening in the family courts is through my own case. I will refrain from listing ALL that has happened as I am in my eighth year of litigation with my ex.

The fact that I am in my eighth year of litigation divorcing my ex is a tragedy in itself and indicative of serious problems in the courts. 8 years is half the length of my marriage and I am no closer to being out of the hallways of the family courts than the day my final judgement of divorce was signed! This is because very few judges want to make rulings so they pass it on to the mediators, who if they can not get agreement, kick it back to the judges. This circular loop continues for a long time, years in some cases as you pointed out in your article.

TRO’s are another area of concern. During my marriage not once were police called for any domestic incidents, nor do I have any background of violence at all. My ex started to file TRO’s against me as a “strategy” to get leverage in the courts, and it worked! While domestic violence is a serious issue and true abusers should be punished there are too many false claims that do very real financial and relationship damage. In my estimation too many men are being denied their rights because of false domestic violence claims and there is no punishment for making false claims. I have never once threatened my ex but to get leverage in the courts she has filed several TRO’s when I have attempted to attend my children’s events. Each time it costs me $5000 -$7000 to defend against a TRO in court even if she has no evidence that any DV has occurred. BTW, my ex dropped every one of the TRO’s she has filed against me. We have to figure out a better system to handle these types of complaints.

Outright fraud in the courthouse. I had run out of money after spending close to $200,000 in legal fee’s fighting my ex. Not because I couldn’t settle it is because she didn’t want to and the litigation kept going until I ran out of money. So I file a motion to reduce my A&C support pro se. My ex’s attorney files a cross motion for parenting time mediation. The judge orders us into mediation in the courthouse. To make a long story short, a courthouse mediator took it upon herself to allege that I was “out of control” in the courthouse, contrary to the videotapes from the courthouse I requested under OPRA. The judge, based on the word of this corrupt mediator suspended my unsupervised parenting time and ordered me into supervised. After the first session where I saw my children, they came in and said they didn’t want to see me anymore. After the thrid session, I said enough, I wasn’t seeing my children and the “supervisor” couldn’t give me a timeframe of when I would be allowed to see my children. It has been two years not seeing my children whom I had a close and loving relationship with prior to the mediator lying to the judge. After all this, I went into a deep depression that now two years later I am finally getting my life back on track and fighting for a relationship with my children, who have now been so brainwashed by my ex and her family, I have no idea if the relationship is repairable, If I even get therapeutic reunification.

As far as I am concerned, the family courts stole my relationship with my children and that is a something I can never forgive. Two years is long time in the life of a child and I have missed out on it, not because I am a bad man but because a corrupt mediator whom I tried to get information on from the court so I could file a complaint, Hide behind “immunity”. I was under the impression only judges had immunity not courthouse social workers. I could go on and on with my horrific experience.

I am ignoring the financial issues as my relationship with my children is paramount. You have a loving father who has never been in trouble with law enforcement forcibly removed from his children’s lives all based on the word of one corrupt mediator in the courthouse. It has now been two years since this disaster started and may not be repairable. This all happened in the family courts.

Where do we go from here? More and more attorneys are realizing there are very real issues in the family courts. More importantly, they are starting to act as most attorneys really want to help their clients and are realizing the courts are a hinderance to that goal. Too many lives of their clients are being irreparably damaged to the point where they have to “give up”.

We need more family lawyers to push the judiciary for transparency and help with reforming the family courts.

Thank you for your insight. Many of us litigants caught in this dysfunctional system thank you for putting your viewpoint out there. We also ask why are more attorneys in the family court staying silent? As frustrated as you obviously are imagine what is like for the children you reference that are growing up without the love of 2 parents? They are the silent and unrepresented victims of this dysfunction. What is the real cost of this?

There was recently an effort to reform alimony, this effort was founded, supported and driven by litigants who have seen their family ripped apart and have been financially ruined by a system set up to promote litigation. A system that also endlessly requires litigants to hire psychologists, parenting coordinators, mediators and others just to take their daughter out for an ice cream cone. This effort was fought at every turn by the NJ Bar Assoc and the NJ Family Law Section currently chaired by Jeralyn Lawrence.

We have all read the horror stories so I will leave that to others if they choose.

I suggest that this is taking a tremendous toll on our children, the socio-economic costs are impossible to calculate and ultimately our society as a whole suffers.

I ask what is the solution? Does the NJ Bar Assoc share your frustration? How many other attorneys are there like you and David that realize how poorly the system operates AND are willing to stand up and be heard? How many judges current and retired are willing to express their views? Again I ask you, other family law attorneys, judges and legislators what is the solution and where do we start? or do we all just accept this as the new normal.

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