A More Humane Family Court
July 24, 2018 § 4 Comments
Sue Cochrane served for 18 years as a Family Court Judge in Minnesota, until she was diagnosed with terminal cancer. She left the bench to concentrate on her health, and she blogs at The Movement of Healing, the focus of which, she says, is “on positive, uplifting and inspiring people, ideas and stories.”
The Fetzer Institute Blog did a post on Judge Cochrane’s ideas about a more humane approach to family law:
Sue Cochrane, JD, served 18 years on the family court bench. Her goal as a judicial officer: to bring family law into closer alignment with its mission to serve the needs of the public … and to do it with kindness. Quickly she learned the power of working with families as equals, without judgment. Through the years she has worked to empower families to create their own solutions through collaboration and to find ways to bring a vibrant and beating heart to the body of family court. This reflection is excerpted from her article “Putting a Heart into the Body of Family Law,” which first appeared in The Collaborative Review, a publication of the International Academy of Collaborative Professionals. The image that accompanies this post was done in a true spirit of collaboration between mother (Sue Cochrane) and her son Tom Cochrane-Cole, who begins art school this fall.
Envisioning a Family Court of the Future
The law is well known for being logical and dispassionate—linear and analytic thinking prevail in our courts. But in the admirable pursuit of truth and justice, the court can inadvertently deny the humanity of the very people it exists to serve.
When families are in conflict or in crisis, logic is insufficient to heal their pain and trauma. Human beings are not abstract legal concepts, after all. In family court, it is as much a matter of the heart as the head, but our deepest values, like empathy, care, and compassion are often treated as irrelevant in such a system. This is why many people—judges and lawyers included—find the legal profession unsatisfying, ineffective, and potentially harmful, especially in the realm of family conflict.
We’ve made huge strides in criminal courts by focusing on issues and needs: DWI court, drug court, mental health court, veterans court, homeless court, juvenile court, and more. They acknowledge the limitations of the traditional courts and bring in a holistic collaboration of services that respond swiftly and effectively to complex needs. We have barely scratched the surface of what we can do in family courts if we open up to innovation and collaboration from many angles and disciplines.
We can put a “heart” into the “body” of law known as family court, with five basic changes:
1. Put People First
Families in crisis need a place that welcomes them, all aspects of them, including their emotions. They need and deserve to be respected, heard, and included. Creating a system committed to meeting their needs above all other agendas is first.
2. Listen, Be Kind and Compassionate
I learned most clearly during my time on the bench that ultimately it was my listening skills that were most needed. People need to have their story heard, all of it. To me, this is the essence of a “court hearing.”
I found that people need to be accepted, with dignity, with their mistakes, their anger, their stress, and their pain.
This opening allows people to choose a path congruent with their deepest values. Not once did they need to be judged.
3. Allow People a Voice
At the most basic level, access to justice means allowing people to have a voice. Family courts should not judge the families who come for help. Instead, courts should empower people to solve their own problems with respect and care. If people received this from the moment they walked in, judges would rarely be needed.
4. Create a Space for Healing
The physical space of family court should be redesigned to focus on the needs of those who use it. As an example, the cost of incorporating art and design that calms people and heals trauma will be more than offset by the benefits received by families in pain, not to mention those who work there every day.
5. Shift Resources
Less than 5% of all family court cases go to trial. So why do courts insist that everyone file papers, receive a case number, pay hundreds of dollars for a filing fee, get a court date to see a judge, and then wait? Why are the 95% of those who will settle without a trial penalized unnecessarily?
Courts no longer need a full complement of trial judges and staff “at the top” when only 5% of families go to trial. Significant resources should be shifted to the point of first contact for families who arrive there, with or without lawyers. Collaborations with professionals at the entry level could provide helpful and responsive service immediately, cutting through all those untimely and unnecessary bureaucratic steps to get right to the heart of their problem.
When trying to work with or change systems, I am inspired by the Dalai Lama’s invocation:
Be kind whenever possible.
It is always possible.
The Better Chancery Practice Blog 
It is not necessary or desirable for a judge to be without sympathy and understanding in a family or any other court, but I’d rather have my case heard by a seasoned lawyer who follows rules which have been developed over time than be turned over to a batch of social workers or other laymen who typically don’t know much about either human nature or legal principles and may not have enough knowledge or IQ to obtain a law license – which is already too easy to do. The law doesn’t do a good job trying to regulate human conduct, but it is the best thing we have. If I were a chancellor, I’d have trouble sleeping at night, worrying over whether I had done the right thing. It’s not a job for everybody. But most chancellors try to do right, and our system settles disputes so the parties can go on. Some people can agree, and for them, mediation works; others simply require being told what they must do.
There’s nothing like a cancer diagnosis to put everything into persepective.
It seems that Chancery, which is not a court of law but of equity, has become more rigid than a court of law, and less humane, with all of the factors that have to be considered in a myriad of cases. Just my take.
Equity used to have much more flexibility. There simply are not enough former chancellors on our appellate courts. Chancellors are not represented in proportion to chancery cases. As a result, there are more appellate judges who do not grasp the nuances of equity, and it is reflected in their opinions. As one retiring chancellor put it recently, chancellors are reduced to “checking the boxes,” and if we don’t, we are reversed.