Therapeutically (Un)Just Interactions in Family Court Proceedings

The Court Setting

In 1994, the North Carolina Commission for the Future of Justice was established. For over 2 years, the commission met about once per month and in 1996 recommended implementation of unified family courts across the state. The commission members concluded that these specialized family courts should handle all intrafamilial disputes and suggested employing judges and other personnel with specialized training in family law and family-related psychosocial factors who would encourage timely, alternative dispute resolution and access to services (Medlin, 1996).

The court that is the subject of this research was established in 2008 and is located in a midsized county in North Carolina. North Carolina district courts presided over nearly 100,000 cases in 2013 and about 45% of those involved disputes between family members. In 2016, the court handled over 1,200 domestic cases.

The court is considered comprehensive, meaning that it holds subject jurisdiction over all family and juvenile cases. Judges are typically assigned to the court for 2 to 3 years. The judges and trial court administrator are required to attend trainings on substantive family law issues as well as topics related to sociology, child development, social work, and psychology of families. According to the court’s Best Practices and Guidelines (Unified Family Courts, 2009), at least 24 of the required biennial 30 hours of continuing judicial education (CJE) must be designed explicitly for family court with about 5 hours addressing substantive law, about 9 hours addressing leadership and team building, and approximately 10 hours in social, psychological, and developmental areas. In cases involving custody, the court offers parent education services prior to mediation. These courses inform parents about the psychological and emotional impact of custody disputes and/or divorce on children. Court personnel are also expected to be knowledgeable about the availability of local and statewide resources in case litigants need referrals for additional assistance.

Seeking to provide continuity, the court employs a “one judge, one family” method. The judge presiding over the initial scheduling conference is assigned the family and becomes the presiding judge on all subsequent matters involving the family. Extant research suggests that this model benefits families and courts through a familiarity and knowledge about the family members and their particular circumstances, which increase court efficiency and fairness in reaching a resolution (e.g., Babb, 2008; Summers & Shdaimah, 2013).

Case management practices involve the court early and often. The court holds weekly status hearings to ensure consistent case processing. At these status hearings, the presiding judge requests the status of each case. These status reports are brief but inclusive. If the judge deems that insufficient progress is being made on the case, he or she specifically and directly inquires about resolution. Because these status hearings are held weekly, the judge often recalls information from prior status updates and asks litigants or their legal counsel specific questions about case events.

The mission statement for this family court posits that the court should afford a fair process by which to resolve legal disputes in a context that both promotes the best interests of the family and helps families arrange their own solutions. In its Best Practices and Guidelines (Unified Family Courts, 2009) and other written goals, the court specifically promotes the following:

These goals significantly align with the three therapeutic jurisprudence components noted above. For example, the first goal highlights the court’s desire for respectful, nonadversarial interactions; the second goal arguably encourages self-expression of standpoint to ensure that each party’s position and perspective is heard; and the third goal likely results in transparent judicial decision making.

Data Collection

Because the goal of the project is to examine the presence (or lack) of therapeutically just interactions in family court, the project relies on collecting theoretically guided observational data. Observational research is used when the primary goal of research is to describe and explore an understanding of routine activities in their natural setting. In other words, this form of research methodology best answers questions of “what” and “how” as it provides a more holistic picture of multifaceted social processes as they unfold. Sometimes referred to as naturalistic inquiry, researchers attend and observe “in the field” to ensure that the persons and activities being studied are not deviating from their ordinary practices (Lincoln & Guba, 1985).

I employ a closed case study design. Generally speaking, case studies allow for an in-depth analysis of a phenomenon or certain processes in its real-life context. This deep focus is the primary advantage of the case study method (Gerring, 2004). While case studies may be understood as a comprehensive research strategy that examines a single or multiple unit(s), closed case studies systematically collect data from one case or unit. Thus, closed case studies are empirical inquiries that assess a single case to answer descriptive questions (see Yin, 2013). Such methodological approaches rely largely on the interpretation of language and other forms of communication. In the present analysis, I use a closed case study design of observational data to describe and assess if and how the organization of and routine interactions within a unified family court conform to a therapeutic jurisprudence framework.

The data are taken from 12 months of direct observation of family court proceedings. During this time, I observed 108 hearings, including eight trials, presided over by five judges. By maintaining a consistent presence in the court, my attendance became normative, thus minimizing any observational influence on data collection. ³ In addition, the extended time in the court ensured that observations were typical court procedures and behavioral patterns of legal actors and litigants. It also demonstrated a commitment to understanding the court and its procedures.

Although court proceedings are publicly open, I made connections with family court personnel prior to beginning data collection. Making this initial contact helped establish a degree of esteem and trust with court personnel. Because the present project explores a scarcely researched area, I did not rely on a structured observation guide. Rather, I conducted “unstructured” observations, which allow for a degree of focal flexibility and encourage attention to relevant issues as they unfold (Emerson, Fretz, & Shaw, 1995). Thus, even though my observations were guided by my interest in how therapeutic jurisprudence may be practiced in family court, I did not construct a checklist of expected actions or behaviors; I remained open to observing various interpersonal dynamics. All persons in the courtroom were methodically observed, but observations and field notes centered largely on the exchanges between judges, plaintiffs, defendants, and their respective attorneys.

I recorded relatively brief on-site field notes of “raw behavior” to maximize the capacity to watch and listen to interactions (see Lofland, 1971). Notes included data on verbal and gesturing expressions and reactions to provide meaning and insights about social relational contexts as they related to therapeutic jurisprudence principles during court proceedings (i.e., Emerson, 1988; Spradley, 1980). In addition to notes regarding the interactions between the court personnel and parties involved, I recorded pertinent case information, including the type of matter(s) being heard, the gender and number of parties involved, the presiding judge, and the presence of legal counsel. Following Lofland (1971; Lofland & Lofland, 1984), when I recorded verbatim quotes, I used double quotation marks in the field notes. I marked paraphrasing using single quotation marks. Notes capturing the general substance of interactions and communications were not punctuated. In line with the recommendations by the General Accounting Office (1990), I expanded jotted field notes to include greater detail once leaving the field. These more thorough notes were developed immediately following each court session while still at the courthouse, usually sitting in a car or conference room. Once leaving the field, I typed expanded field notes and added analytical reflections about the patterns and conceptual categories (i.e., Lofland, 1971). The typed notes are contained in a single electronic file, with each hearing separated by date and a case identification number, so the file was modified to add observational data from each court visit throughout the data collection process.

Once observational data were added to the master file, I read through the notes and reflections multiple times. The initial reading was done without an attempt to make additional notes but to gather a general sense of data collected. During the second reading, done immediately after the first, I made additional notes of observational patterns and divergences. The third and subsequent readings included a review of observational data in its entirety. This broader reading of the data encouraged attention to overarching issues over the course of data collection, including the identification of specific thematic encounters, patterns of consistencies across themes, and/or irregularities or unique points in the data.

I color coded the data file to categorize particular instances of thematic content. A color was assigned for each of the three therapeutic jurisprudence principles, and the typed document was highlighted to identify when particular themes occurred. I highlighted interactions suggesting therapeutic jurisprudence through respectful interaction in yellow, interactions indicating therapeutic jurisprudence through standpoint expression in green, and interactions evidencing therapeutic jurisprudence through transparent decision making in blue. I used red highlighting to designate antitherapeutic or damaging encounters. During the third or subsequent readings, I would highlight particular observations in orange if I interpreted them as potentially significant but not clearly relevant to therapeutic jurisprudence. In these instances, I returned to the data at a later time to reconsider if the observation was consistent with an existing theme. If it was, I highlighted it accordingly and made a marginal note regarding the recoding decision. If it was not, the note remained highlighted in orange, deeming it interactionally interesting but not directly relevant to the present research. ⁴ Once data collection concluded, I compiled all color coded instances of (anti)therapeutic jurisprudence into a spreadsheet, separated by theme to visually inspect the number of times each theme was present as well as the specific content of the interactions. The findings below report on this information.

General Case Descriptions

As indicated in the appendix, the majority of hearings (and all of the trials) I observed involved issues of custody and visitation, but cases of alimony, child support, equitable distribution, postseparation support, divorce, and other miscellaneous matters, which included motions to withdraw as counsel, motions related to rules of civil procedure, motions to obtain child protective records, and motions for civil contempt or enforcement, were also observed. Although the family court studied herein advocates a nonadversarial approach and encourages parties to handle their own cases, most cases involved attorney representation. In fact, only four of the cases involved pro se representation of both parties. The other 104 cases involved at least one of the parties being represented by a hired attorney. In the majority of these cases, both parties were legally represented in cases; however, some cases involved one party being legally represented and the other being self-represented.

Nearly every case involved a male and female spouse or parent. No cases involved “same-sex” couples and the substantial majority involved couples of the same (White) race. Only two cases involved interracial couples and only one case involved an African American family. Three cases involved parents and grandparents as opposing litigants in child custody conflicts. The initial complainant varied somewhat across sex-gender. Sixty-three cases were initiated by women plaintiffs, 42 cases were initiated by men plaintiffs, and three cases involved both men and women plaintiffs. These latter cases involved grandparent plaintiffs who were seeking custody of a child(ren) from biological parents.

The findings below are organized around the three criteria of therapeutic jurisprudence. Although the principles often overlap in practice, I present the findings separately to aid in clarity. ⁵ The findings conclude by discussing observations that appear to challenge the practice of therapeutic jurisprudence.

Respectful Interaction Between Legal Actors and Litigants

Court personnel commonly treated the parties with dignity and respect. For example, judges directly communicated with the litigants even when the parties are represented. In fact, two judges observed never concluded a hearing without asking the litigant directly if there were any questions that the judge could answer. When the litigant had questions, the judge would answer them, although the answers were sometimes brief and a simple restatement of earlier court exchanges. Still, by speaking directly to the parties, who may be unfamiliar with or intimidated by court proceedings, the judge actively involved the litigants in an interpersonal exchange.

Relatedly, judges commonly forego the use of formalities, including legal jargon, opting to use “natural” language. ⁶ Upon entering the courtroom, one judge greeted every person in the courtroom, including litigants, attending counsel, myself, and any others who were sitting in the public viewing area. The greetings were transitory but contextually relevant to the person to whom he spoke. For example, when seeing me in the courtroom, the judge would say “Hello, Dr. Dollar. I hope your research is going well.” Moving to the next person, who was a litigant, he said “Good morning [name], it’s good to see you again,” before responding to the representing attorney “[Attorney name], I hope you have some good news for me today.” This same judge closed nearly every hearing by making purposeful eye contact with each party and thanking them for their attendance. All judges used this colloquial manner when explaining the court’s mandates to the litigants. For example, after custody court orders were signed, one judge would routinely state the following and listen for affirmative answers, “I see that you have signed this document at the bottom. Do you understand that when I sign this document you are agreeing to let your child remain with [other party]?”

In establishing temporary custody and visitation agreements, which were common, I noted multiple judges engaging in the following routine questions: “Do you understand that this agreement is temporary, and you will have an opportunity to come back to the court on [date] to arrange a different custody arrangement?” Following, judges consistently asked each litigant to make a public declaration that he or she would comply with court order (i.e., “Do you both agree that you will follow the rules that we have agreed to today?” or “I need each of you to tell me that you know what you’ve signed here because this document is really important. Do you know what you’ve signed here and said you will do?”). In one instance, following a relatively argumentative hearing, the judge stated to the defendant,

“I feel like I need to say this, but don’t read anything else into it. Do you know that failure to comply with this [points to the document] means that she [points to plaintiff] will win, really by default, because you will be incarcerated? And you can’t have custody if you’re wearing an orange jumpsuit.”

After the parties affirmed understanding, judges commonly followed with a statement of the consequences of not following the order. For example, two judges would regularly state, “Do each of you understand that after I sign this paper, if you don’t do what you say you will do, you could lose custody of your child?” This type of informal questioning acknowledges the consequences of legal documents, which are often lengthy and contain potentially confusing words. In this way, it conveys respect and arguably demonstrates a degree of sympathy to the litigants who may be unfamiliar with the legalese in these life-altering agreements. This style of informal communication is also likely to minimize confusion and the potential for noncompliance (Wexler & Winick, 1991).

Family court judges commonly used the litigants’ first and last name rather than the impersonal “plaintiff” and “defendant.” This type of naming was not only used when directly communicating with the parties but also when judges read court documents aloud. In other words, the judge spontaneously inserted the name of the litigant even if court documents noted them as “plaintiff” or “defendant.” Using the litigants’ names displays a degree of respect for a variety of reasons. It indicates the judge’s effort to honor the individual as a person and helps the individuals maintain their personal identity in what is often a difficult and perhaps hostile process. Because the court uses the “one judge, one family” rule, it is likely that the judge has some personal knowledge of the litigants, which could make the use of names even more salient (Braithwaite, 1989, 2004).

While direct verbal communication between the judge and litigants was commonplace, the judges also signified respect using nonverbal forms of communication. As mentioned above, one judge would thank parties for attending while making purposeful eye contact with each of them. All judges regularly displayed sensitivity toward family conflict using body language or gesturing to display that he or she was listening. For instance, although it is not uncommon for the judge to spend a large majority of time during hearings reviewing documents and writing with her or his head down, when a litigant spoke, the judge would regularly glance at the litigant and affirmatively nod her or his head. This form of gesturing suggests respect for the litigants and may also induce respect for the judge who is the primary representative of the court.

Finally, in nearly every trial, the litigants were not asked to sit in the witness stand while testifying. Instead, they sat at the counsel table (beside their lawyer if they were represented). Such positioning is notable for a few reasons. First, this spatial arrangement decreases adversarial overtones of the court proceeding. The testifying litigant is arguably in an emotionally safer position, not sitting alone alongside a robed judge facing the “opposing” litigant. It is likely, then, that this arrangement allows parties to feel more supported. Even if not represented, remaining at the counsel table means that the testifying litigant did not have to walk through the front of the courtroom while others remained seated. Thus, the witness may feel less separated or singled out. In addition, testifying at the counsel table indicates a court style that is unique to traditional court practices. Even for those litigants who have no experience in participating in other courts, it is likely that they would note this style of court behavior as different from that depicted in media accounts. ⁷

Allowing Parties to Express and Explain Their Standpoint

The family court consistently provided space for parties to express and explain their standpoint. Indeed, the data indicated that judges not only allowed, but encouraged, parties to express their standpoint. This encouragement took a variety of forms. In some cases, the judge solicited information about family history, including past patterns of parent-specific resource allocation, which often led to conversations about what social and financial support was needed to provide adequate means to parent. For example, in one hearing involving a dispute over the amount of child support payments, the judge asked the plaintiff to detail the monthly costs needed to support the child she shared with the defendant. While an itemized spreadsheet of monthly child-related costs was completed and contained in the case file, the judge informed the plaintiff that this was her opportunity to more fully explain the costs being claimed. Allowing the plaintiff to contextualize amount of child care costs, recreational costs, and school and clothing costs meant that she could explain how these costs were relevant to the plaintiff’s work schedule, the lack of nearby family to assist in child care, school-mandated clothing, and the vast income difference between the plaintiff and defendant. It also allowed her to voice how economic-based child support was handled throughout the marriage. Once the plaintiff finished speaking, the judge asked the defendant if he would like to respond. The defendant took a brief opportunity to speak about his willingness to assist in economic contributions to the child and did not contest any of the information detailed by the plaintiff though he asked for some reduction in payment. In this specific example, both parties were represented, yet the judge directly encouraged each party to express his or her standpoint even though the itemized financial information was already contained in the filed case documents. While explaining his decision, the judge reiterated the plaintiff’s testimony, arguing that the child support payment he was ordering would assist the child in being able to retain many of the routine activities that she had prior to the litigants’ marital separation. He also referred to the vast income difference identified by both litigants during their verbal testimony. In doing so, the judge addressed concerns about how court systems can protect relatively vulnerable parties (e.g., Garrison, 1994), and he also demonstrated listening and validation of the litigants’ standpoint. ⁸

One judge, who presided over the majority of cases, always asked litigants if they wanted to speak even if they were legally represented. If the litigant did speak, the judge would allow the litigant to speak without interruption; however, she rarely asked probing questions following the litigant’s statement. In fact, once the litigant finished his or her statement, the judge would normally give an affirmative gesture or verbal response, indicating that the information had been previously voiced but would thank the litigant for reminding her. Although the lack of further engagement could be perceived as dismissive, the acknowledgment of the information being previously detailed indicated that the judge was listening and had noted information that the litigant wanted to repeat or emphasize.

Litigants did not always demonstrate an interest in speaking even when judges would encourage them to do so. In cases where a litigant indicated that he or she had nothing further to add, the judges would often remind him or her that once they ruled, the case was going to be “done,” thus signaling that the litigant’s perspective would be considered. It was not uncommon after the judge made such a remark for the litigant to speak although it generally was a restatement of previous arguments.

To keep “a clean record” of each proceeding, one judge thoroughly restated the evidence presented and considered before ruling or taking the case under advisement even though this restatement often took 10 to 20 minutes. As a part of the judge’s reiteration, the case content and the litigants’ emotional responses to the content were read into the court record. For example, in one case involving a temporary custody dispute due to the incarceration of the defendant, the judge reiterated the evidence presented at the hearing before ruling. She stated,

“I confirmed that the defendant has no attorney. She did ask about getting one, but I explained that this is not criminal court so there is no right to a court appointed attorney. The defendant expressed concern about what happens when the plaintiff gets custody, but we have all come to an agreement with the plaintiff’s attorney. They have agreed to try to arrange visitation with the kid until the defendant is released from incarceration, and I am ordering that agreement into effect.”

The judge then turned to the defendant and said,

“Do you understand that? You’ll be able to see your kid while you are jailed when [plaintiff’s name] can get him there, but when you’re released, you’ll come back to this courtroom, and we’ll figure something else out?”

This review of testimony, which identified the defendant’s concern about legal representation and the temporary custody agreement, indicates careful listening and validation of the litigant’s perspective. Winick (2002) has identified the use of this type of empathic judicial response as important in therapeutic jurisprudence as it illustrates the judge’s attention to the party’s verbal and emotional displays. In fact, the defendant appeared to appreciate the judge’s attention as her physical posture and demeanor changed drastically following the judge’s reiteration. When the hearing first began, the defendant presented in a fixed upright stance, was decisively vocal and crying, often interrupting the judge and other parties. At the conclusion of the hearing, the defendant’s posture appeared more relaxed. She seated herself, and her crying had diminished although she remained teary.

Transparent Judicial Decision Making

As stated earlier, it is not uncommon for presiding judges to directly communicate with litigants even when they are represented. After asking litigants a direct question, judges often followed with “…and the reason I am asking you is [explanation of legal relevance].” This elaboration gives the litigants’ context about why certain issues are important and implies understanding that questions may seem overly personal or superfluous. It also indicates that the judge is willing to share information, which likely helps build some degree of trust. It is plausible that knowing why certain questions are asked allows litigants to comprehend how the judge came to her or his decisions.

Nontherapeutic Encounters

Despite the therapeutically just interactions described above, some instances of antitherapeutic or damaging encounter were observed. Some of these exchanges were due to revealing upsetting, personal information about the litigants and their relationships. Like traditional court, family court proceedings are open to the public, so litigants’ discussions of familial conflict and tension occur in open court. One of the most apparent instances of damaging interactions took place during a custody hearing involving a female defendant and male plaintiff where the plaintiff was requesting to spend more time with their children. During her testimony, the defendant’s attorney asked the defendant to disclose information about the plaintiff’s history of violence, requesting “some examples” of how this occurred. While the defendant recounted violent events, including a rape, by the plaintiff, the plaintiff began laughing. Although the judge told the plaintiff to “stay quiet,” the defendant began sobbing and had a difficult time continuing her account. Because hearings are often scheduled simultaneously or back-to-back, several persons were in the courtroom during this testimony. Thus, the defendant relived and verbally publicized this information in front of others who were unrelated to this particular legal matter. During this same hearing, the defendant’s attorney also revealed that the plaintiff had a history of substance abuse, had been diagnosed with severe mental health disorders, and was currently being investigated for child maltreatment; yet, the attorney did not provide any documentation of these actions.

Family court advocates for a nonadversarial approach, but I saw instances of adversarial practices, that is, litigants and/or their counsel presenting damning evidence about the other party. This approach seemed more common when both parties were represented by legal counsel, although, to be fair, most cases involved dual attorney representation (see the appendix). For example, in one case involving an alimony dispute, the plaintiff’s attorney submitted text messages sent by the defendant as evidence. Many of these messages contained aggressive, offensive language toward the plaintiff, but no claims of adultery were admitted as evidence (i.e., none were raised during the hearing or apparent in the text messages). The judge, however, implied such behavior when ruling and recounting testimony about the defendant’s increased alcohol consumption. Specifically, the judge said, “These messages seem to be occurring when [defendant’s name] was drinking alcohol and becoming involved in another relationship.” Although it is possible that the judge had some knowledge about an extramarital affair based on prior case information, no such evidence was presented at this hearing, and as this judge consistently and meticulously summarized all relevant case facts into the court record prior to ruling, it is conceivable that the judge erroneously linked the defendant’s drinking and texting behavior to the development of an adulterous relationship.

Another disturbing example involved litigants who were litigating a temporary custody arrangement. While the plaintiff was testifying, the defendant’s attorney began questioning the plaintiff, who was not a native English speaker, about his citizenship. This line of questioning began about 15 minutes into the plaintiff’s testimony and continued for more than 3 hours without the plaintiff getting a break even though two interpreters switched places multiple times to receive breaks. Through testimony, it was established that the plaintiff did not have a license to drive but had driven himself to the court. When the lunch break was impending, a uniformed officer arrived in the courtroom and the defendant’s attorney continued questioning the plaintiff about his citizenship and asked him about his driving without a license to and from the court house. Although the arrival of the officer during this line of questioning could have been coincidental, it was the only time during my observation that I noted a uniformed officer in the courtroom apart from the bailiff or an officer escorting a jailed litigant to a scheduled hearing. Moreover, given the lengthy line of questioning about the plaintiff’s legal residency, which was not directly related to arranging custody, I interpreted the questioning as adversarial, intimidating, and threatening.

In some ways, the structure and organization of the court hinders therapeutic jurisprudence. As mentioned earlier, the family court observed is a unified family court and therefore maintains subject jurisdiction for cases involving juvenile and family matters. Given this, litigants cannot opt out of the court. Winick (2002) argued that a core tenant of therapeutic jurisprudence is voluntary participation, so mandatory participation may be problematic, especially when legal disputes occur in families with a history of abuse or maltreatment. In addition, the court’s case management plan involves weekly status hearings. Each week parties or their counsel must present case status to the presiding judge at which time the judge assesses the progress of the case. This practice reflects the court’s intense concern for “timely” case resolution. In fact, the court tracks “success” by measuring the days between the initial filed complaint and final order (Unified Family Courts, 2009). These demanding case processing strategies coupled with the bureaucratic complexity of court proceedings (i.e., drafting and filing the required documents, appearing at weekly hearings, and otherwise navigating the court procedures) practically necessitate legal counsel to effectively meet the procedural mandates of the court. Nevertheless, as noted above, antitherapeutic encounters occurred more often in cases where both parties were represented by legal counsel. Fay-Ramirez (2015) similarly noted that family court’s therapeutic jurisprudence ideals are often complicated by their operation in the traditional court system. Echoing the observations presented here, Fay-Ramirez (2015) found that courtroom practices and court personnel’s beliefs are consistent with the principles of therapeutic jurisprudence, but the practical caseload pressures and demands can undermine the therapeutic approach. Others have concluded comparable results across various types of specialty courts (e.g., Miethe et al., 2000; Ray & Dollar, 2013).