Can Therapeutic Judging be applied in mainstream  Family/Child Protection Courts?

Does TJ require a specialized court, with all its accoutrements?  Or can it be deployed in even the most overburdened and under resourced of traditional courts?  

Guest blogger Vicki Lens, JD, Ph.D., Columbia University writes about her recent study…

Over the last few decades, specialized problem solving courts have proliferated, with TJ exemplifying some of these courts’ best practices. But for most people, justice is still dispensed-or-not- through traditional courts. TJ has much to offer these courts, especially traditional Family Courts where claims of child maltreatment are adjudicated, and where the focus is less on the legal, and more on the psychological and the social.

The tenets of TJ, including its emphasis on respectful, supportive courtroom interactions, is a natural fit for a court whose stated mission is to rehabilitate families.

But most traditional Family Courts do not operate on a TJ model. To the contrary, they have been criticized for lacking many of its virtues, including judges insufficiently attuned to the social and psychological complexity of family strife.

Although tasked with fixing some of society’s most intractable problems, Family Courts often subsist on scant resources. In such an environment, is a TJ approach even possible?

The answer to this question is yes, based on a study I conducted in a traditional urban Family Court located in a part of the city where nearly half of the children are living in poverty, and where less than a dozen judges handle more than three thousand cases of child abuse or neglect annually. The study, which relied on ethnographic observations, found that despite these and other obstacles, some judges were able to transform non-therapeutic courtrooms into therapeutic ones.

Other than perhaps in criminal court, it is hard to find a group of people more vilified than mothers accused of harming their children. Thus I was not surprised to witness episodes of shaming and stigma, and to see parents huddled passively in their chairs, not even bothering to shed their heavy coats, while a bevy of professionals buzzed around them, talking for, about and over them.

I was surprised, though, how quickly the more therapeutic judges created an inclusive and respectful environment, and how little time and effort it took.

Despite the same obstacles faced by many of their colleagues, including too many cases and too little time and resources, these judges radiated compassion, benevolence, and respect.

They did this in ways large and small. Seemingly minor adjustments in courtroom rituals and routines had large social payoffs.

Parents who are often addressed generically as “Ma’am” or referred to as “the mother” or the “father” were addressed by their formal name, a sign of respect afforded to the other actors in the room.

The swearing-in ritual, which can be unnerving to ordinary people, was accompanied by more welcoming social gestures.

In contrast to less therapeutic court rooms, parents were asked their preference for a return date, thus signaling that their time and preferences were valued.

Therapeutic judges also found ways to harmonize the rules of the adversarial process with the principles of TJ.  They did not insist that all dialogue flow through the attorneys, and engaged parents in discussions about their progress, their needs, and their children.

Their default mode was praise and support, rather than condemnation.

They seized upon evidence of rehabilitation, emphasizing strengths rather than weaknesses.

They did all this without sacrificing efficiency. Indeed their approach saved time because it was less likely to trigger time-consuming and disruptive emotional outbursts.

In one proceeding I observed, the judge took a mere seven minutes to put a mother at ease, solicit her progress in drug treatment, applaud her for her sobriety, and talk to her about her son. In a gesture rare in Family Court, the mother thanked the judge as she left the courtroom.

Such judges prove the viability of using TJ in any courtroom, no matter how under-resourced and overburdened.

It highlights the singular power of judges, who set the tone and tenor of their courtrooms. The study’s findings show that TJ does not require a specialized court, but, in essence, a specialized judge, one versed in therapeutic techniques and willing to use them.

This suggests that Family Court judges be selected based on judicial temperament and style, and ability to implement therapeutic techniques.

TJ is too potent a tool to be confined to specialized courts. It must also become the province of traditional courts, especially those courts- like Family Court- where legal transgressions are inextricably intertwined with participants’ social and psychological well-being.

The full study can be accessed here

Vicki Lens, JD, Ph.D. 

Columbia University

For more resources on TJ and family law check out our resources page here 

 

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