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Brian Burke: About Your Divorce (Column 161) — Should Family Court Judge be Divorce Veteran?

Regardless of whether she has or lacks other qualifications, family court judges must know from their own experience what it means to suffer great loss, to grieve and to survive.

Coming of age as a Baby Boomer, I recall being puzzled by the fact that all the obstetricians I knew were men. Why was it even allowed when men have no direct experience having a baby?

Today, medical school classes include equal numbers of men and women. Among my classmates at a small high school, a dozen, perhaps two dozen, had physician fathers; both of Brad Lee’s parents were doctors.

The scarcity of female physicians was such a deeply imbedded part of the status quo that decades passed before it occurred to me as the probable answer.

In the meantime, there is a more interesting answer. Because it is impossible for a man to have a baby, he will not make the mistake of presuming pregnancy and childbirth as experienced by his patients is the same as his own experience.

Should a family court judge be a veteran of divorce?

Divorce is grief. A judge who has not suffered from personal loss can be extremely competent presiding over complex civil litigation or death penalty criminal trial, but he is likely to do more harm than good in the family court.

Grief involves a progression of intense, unfamiliar emotional states; when it is first encountered, previously learned responses are inadequate.

Fortunately, the order of these states is predictable. Each is finite, and while it takes longer than most expect, the whole process has a beginning, middle and end. Grief is transformative. There is no closure. It doesn’t allow anyone to remain unchanged.

A judge who is grieving can perform almost all judicial duties except those required in family court. The grief that disqualifies the judge while it takes place also satisfies this most essential qualification once it has been completed.

Grief, or perhaps the pain associated with it, teaches any number of lessons.

Yalom claims that to become whole it is necessary to come to terms with four existential issues (aloneness, death, meaning and freedom or attitude); grief involves confrontation with at least one and possibly all of them.

The inadequacy of existing ideas (factual assumptions) and beliefs (values) compels reconsideration of the old and consideration of the new; deep learning becomes possible. Humility is a byproduct.

Anyone who has grieved realizes he is not as strong, not as smart and not as competent as he thought he was. He is different than he once was, which makes him disinclined to assume your experience is like his or his solutions will work for you.

Should a family court judge have children of her own?

Because there are so many ways to raise a child, the argument favoring male obstetricians might be stronger when applied to family court judges. They might make better decisions involving children if not influenced by decisions they’ve made with respect to their own children.

For a judicial system to function well, the people it serves must be inclined to accept the wisdom of its judgments.

To the litigants, the appearance of a youthful family court judge could be unseemly if they wonder: What does she know about anything?

That attitude could make it impossible for the customers of the court to appreciate wisdom, the court’s finest product, even if the young judge could produce it.

How much age?

One answer comes from the convergence of two factors. A very free interpretation and application of Jungian insight suggests that personal integration and fulfillment comes only in the second of two parts of life.

The first part is spent creating an identity; the challenges made to that identity lead to a wholeness and knowledge of self.

A friend in his late 40s once told me, I spent the first half of my life working hard to get my act together. I can see that I’m going to have to spend the second half working even harder to get rid of it.

Someone who takes seriously the imperative: Know thyself. That’s who we want in family court.

Back to the question: Should the judge have children or will the effect of her own experience be too great on her decisions affecting other people’s children?

Most parents feel an enormous responsibility for their minor children. They want to do the right thing, and in one way or another they figure out what that means. Thereafter, they are confident they are getting it right.

A conclusion based on how one parent raised one child and how that child turned out is rightfully diminished or dismissed as anecdotal.

The unique interaction between a parent and child for their first 18 years involves so much data, so many contingencies and so much complexity that no one should conclude that: This was the way I did it. It worked. It’s the way you should do it.

The antecedent for it defies description. If we could adequately describe the parenting moves made in 18 years, the correlation between one parent’s moves and the child’s success doesn’t imply the practice caused success or failure.

Most important is the question: What does it mean for a child to be a "success?” Who decides? Where is the consensus? At what age should a person be judged a success or failure?

Whether the age is 13, 16, 18, 21, 27 or 30, once a person reaches the status of “adult child,” it seems to me parents become increasingly uncertain about what they did right or wrong.

When the adult-child is living his life on his own terms, parents realize how silly it is to think in terms of success and failure.

For the family court judge’s qualifications, I think this means: She may have some objectivity if she has not raised a child.

If she has raised a child, she and that child are old enough for her to have lost the need to articulate and defend any particular child-raising practices. Her child is old enough to be living his own life on his own terms and the judge appreciates the futility of judging her child as a success or failure.

If the judge has a grandchild, she probably has learned that her child has accepted some — but not all — of her ideas about parenting, and that his spouse has some ideas of her own which might conflict with the judge’s.

It doesn’t take long to learn that constructive criticism of the way your child raises his child will: (a) not be well received; (b) not benefit the grandchild; and (c) diminish the ability of the extended family to function in a way that has a positive effect on all its members.

It’s a good thing for the family court judge to have grandchildren.

(Digression: I like this story that shows how silly it is to judge a child’s “success:"

A woman who'd been the CEO of three successful Silicon Valley start-ups said her parents were computer scientists before there were a lot of computers. They were fellows at the Institute for Advanced Study at Princeton, so she and her two brothers grew-up in the company of Nobel laureates.

She followed in her parents’ footsteps and was bright enough to be accepted to her choice of college, graduate school and post-doctoral programs — and it didn’t hurt that they were all headed by someone she grew up calling “uncle.”

Of her two brothers, one had chosen a career similar to hers, and he had enjoyed even greater success. Her other brother, just the chief-of-surgery at a major teaching hospital, was her parents “biggest disappointment.”)

After a lot of thought, it appears to me there are only two essential personal experiences a family court judge should have.

The first is whatever happens by the time children, if there are children, are grown. The other to is suffer through to completion the transformative process of grief naturally associated with a major loss such as death or divorce.

The next column will offer reflections on the personal qualities, temperaments and styles likely to serve a family court judge well.

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail [email protected]. Click here to read previous columns. The opinions expressed are his own.

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