In praise of modest decision making in family court

Posted Sunday, February 1st, 2015 by Gregory Forman
Filed under Jurisprudence, Law and Culture, Not South Carolina Specific, Of Interest to Family Law Attorneys

With a new family court judge for Charleston County due to be elected this week, the issue of the candidates’ attributes, and the bigger question of what makes a good family court judge, has been a frequent topic of conversation. A common complaint about some family court judges are that they are “indecisive.” I believe my colleagues confuse being indecisive with being judicially modest.

A judge who deliberately avoids making necessary decisions–which basically requires a different judge, in a subsequent proceeding, to make the decision–is a waste of legal resources and public funds. However there is a distinction between judge who avoids making necessary decisions and a judge who makes the smallest decision necessary.

To the extent that judges are like a baseball umpire, an indecisive judge is like an umpire who will not call balls or strikes. However judges are unlike umpires in that they are required to exercise judgment and consider the consequences of their actions. An umpire who is overly cautious about calling a ball on a three-ball count or a strike on a two-strike count harms the integrity of the game. In contrast, a judge who exercises similar caution is insuring that the adverse consequences of an incorrect decision are minimized. Given the tremendous equitable powers invested in family court judges, such judicial modesty is not a vice but a virtue.

This is especially true in the context of temporary hearings, in which the rules of due process–the right to confront adverse witnesses; the right to discover and counter the other side’s evidence–are routinely ignored as though such constitutional violations were normal and acceptable.

This claim of indecisiveness is sometimes directed at a LowCountry family court judge who I believe is merely judicially modest. This “indecisive” judge is known for frequently not deciding custody at temporary hearings but, instead, issuing an interim order, appointing a guardian ad litem, and setting the matter for review in 30-60 days. If only every family court judge were so “indecisive.” A temporary order sets custody in place for a year or more, and can drastically alter the children’s relationship with one or both parents. Making such decisions without having a trained neutral (the guardian) investigate, and without giving the parties an opportunity to counter the other party’s evidence is often, frankly, reckless. My experience is that the custody decisions rendered at these review hearings are much more likely to provide families stability than are temporary custody decisions rendered on one-sided affidavits, with no neutral investigator, and fifteen minutes of argument.

For many family court judges the default position after finding a party in civil contempt will be to incarcerate that party until he or she fully complies with the order, including paying the full amount of the other side’s attorney’s fees. A judicially modest judge rarely does that, and will instead try to give the contemptuous party the ability to avoid incarceration by giving that party the opportunity to come into compliance over time. The “incarcerate now” position has some appeal because that party–more often that party’s friends and family–will sometimes come up with funds to quickly end the incarceration. One assumes such judges see this strategy as a success. However, this is true only if one believes that forcing a litigant’s family and friends to come to that litigant’s aid is somehow just, and only if one ignores the numerous parties who languish in our jails unable to comply with the civil contempt order. What others might consider to be decisive judicial decision making might instead be thought of as a deprivation of constitutional rights.

Sometimes family court judges make sweeping decisions and I do not get the sense that the judge has truly considered how the losing party might comply with the judge’s decision. When a party is set up for failure by a family court judge’s order it can set in motion that party’s ruin. Often the inability to comply with the order will lead to contempt charges being pursued. Contempt charges can lead to more financial burden (attorney’s fees to defend the contempt and the other party’s attorney’s fees if the court finds contempt) and potential incarceration. Financial instability or incarceration can lead to the loss of job or stable housing. Sometimes, due to incarceration or to fleeing the state to avoid incarceration for civil contempt, these parties lose their relationship with their children. The consequences of overly aggressive decision making can be devastating.

I have never had to seek supersedeas and rarely had to appeal or defend an appeal of this modest judge–not because this judge has always ruled the way I might have ruled had I been the judge, but because this judge’s decisions rarely leave either party in such an intolerable legal position that an appeal was necessary. The possibility that one may be wrong, coupled with the tremendous equitable powers a family court judge has, should compel family judges towards modest decisions. Confusing a modest judge for an indecisive judge does a disservice to the modest judge.