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Divorced From Reality

A Colorado Supreme Court commission says this state's justice system could do more to help families -- starting with the parents.

Despite their feuding, the Lelands agree on one thing: The judge's treatment of them was the worst part of the divorce. Although Leisa felt his rulings were reasonable, she says the amount of time he took to issue his final decision was unacceptable.

"If you're in private business and you're over-committed with your time, you make adjustments; the same should happen in government," she says. "It's unreasonable to wait seven months on top of the two years I'd already been waiting. These divorces don't affect the judges, so they don't think about the human aspects of the case. If judges were more sensitive, people wouldn't have to go through all of this."

"What's unfair about it is that the judge doesn't have anyone to answer to," Bill adds. "The judge has the ability to make whatever decision he wants, and he's literally the last word."

Leisa and Cyndee both say that a court facilitator or special advocate -- an impartial person who would have overseen their cases and acted as a liaison between the parties and the judicial officer -- would have helped. But if they'd had a more compassionate judge or magistrate to begin with, they add, an advocate wouldn't have been necessary.

"Divorce is bound to be adversarial, but it takes someone who's not callous to make it less adversarial," Cyndee says. "All I wanted was to be heard."


At their public hearings, commission members heard so many complaints about unsympathetic judicial officers that they decided to do something about it. The criticism wasn't aimed at just divorce-court judges, but at judges presiding over all kinds of family-related cases.

As a result, more than a third of the commission's report, which is still being finalized, will deal with the role, selection, evaluation and training of judges and magistrates.

Although instances of good bench etiquette probably outweigh bad, "the feedback has been significant enough to prompt a close review of the selection and evaluation elements within the judicial system," the report states.

"While some reports have been stated generally as judicial-officer 'horror stories,' others have been very specific examples of judicial officers not treating people in the courtroom with civility, or of judges literally falling asleep on the bench."

"Even though family issues make up more than 50 percent of all the work our courts do, families get short shrift," says Bill Hunnicutt, a family-law attorney and commission member. "There's this perception out there that family cases aren't as important because they aren't as high-profile. Criminal cases, big deal; business litigation, big deal; a huge personal-injury suit, big deal. But family law? Not a big deal.

"Some judges don't want to deal with family issues because they're emotionally draining and complex," he adds. "So a lot of our recommendations have to do with how we can improve family law in the eyes of the public and make it more important to our judges."

In order to do so, commission members hope to provide judges with more training on family legal matters; they also want to reward family-law judges and magistrates who are doing well and reassign those who are burned out.

The commission is suggesting that stringent screening criteria be applied to incoming judicial officers who wish to hear family cases, and that more thorough evaluations be conducted for existing judges and magistrates. Judges should possess "empathy, good common sense, patience, an ability not to 'talk down' nor 'talk above' the heads of the parties," its members say.

They want to "develop a system of lay (and perhaps peer) volunteers with some knowledge and appreciation of family law to randomly 'sit in' on family-law proceedings and offer observations regarding the judicial officer's performance," according to the report. And they're recommending that judges and magistrates who are assigned to hear family cases remain in their positions for at least two years before rotating to a different court.

Some commission recommendations deal specifically with simplified dissolution, which many divorce attorneys have criticized because they feel that due-process rights are often sacrificed for the sake of efficiency. "Sometimes lawyers want to be able to hire an extra expert or to take a deposition when they think the husband or wife is lying, cheating or stealing," Hunnicutt says. When he has a simplified-dissolution case, he adds, "The first thing I ask the judge is if he'll hold us to one expert. So far that hasn't happened, but I've instructed my firm that if a judge does hold us to one expert, we opt out."

Other attorneys applaud the divorce-court reform, however. "I was a special advocate in two simplified-dissolution cases, and in both of those, the parties were able to reach agreement," says Jeff Koy, a guardian ad litem who represents children in all kinds of court cases. "Simplified dissolution does limit what the parties could traditionally do, but from the kids' side, it works in their favor because it doesn't allow the negativity to build between parents. The quicker it's taken care of, the better it is for kids."

Divorce attorney Dave Heckenbach considers himself a big fan of the new process but says the method used to handle a divorce case -- be it simplified dissolution, mediation or court -- doesn't have much bearing on the outcome or on how adversarial the case becomes. "Either people will settle their divorces, or the emotions and circumstances will be such that they'll have to litigate," he says. "I'm not sure the process really cuts down on the amount of litigation that occurs; simplified dissolution just gives people a greater chance to settle earlier on.

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