It’s Time For An Independent Family Court

As the lawyers and judges of Maryland prepare to pack their bags for the trip to Ocean City to participate in the “Joint Bench Bar Conference” in mid June, they will no doubt make important personal and professional choices about what to pack and plan.  In addition to which set of golf clubs and/or tennis racket to take, the choice of which CLE to attend for two days is a decision that will no doubt produce “intense” reflection as well as scrutiny of the Program Descriptions in the Joint Conference/Meeting Announcement Book.

If you contemplate that carefully prepared document, plus the recent announcement of the creation of two new sections of the Maryland State Bar Association, as well as observe the evolving professional world around you, a perceptive lawyer cannot help but notice the increasing specialization of the Bar and more grudgingly, the Bench, in this state and nation. Indeed, in the last decade in Maryland we have seen the ideas and in some cases, the development of “Family Divisions”, “Drug Courts”, “Mental Health Courts”, and “The Business and Technology Case Management Programs”. We have also seen proposals for “Auto Theft Courts”, “Specialized Domestic Violence Court Systems”, and Health Courts”.  At least two of these are subjects of Programs in Ocean City.

One Program, entitled “A Cure for the Courts: Are Health Courts the RX for Maryland?”, will be the topic of the column which follows this one two weeks from now.  The subject for this week’s column is “Maryland’s Family Divisions After Nine Years”, also the title of a program in Ocean City.

HB425, passed as Chapter 198 of the Laws of Maryland (1993), directed that “the Chief Judge of the Court of Appeals and the Circuit Courts shall take the necessary steps to create a Family Division in each circuit court where the creation of a Family Division is feasible”.  In doing so, the legislature cited as its reasons for mandating that the Judiciary reorganize itself internally to create “Family Divisions” the criticisms of the then “present systems” found in the “Governor’s Task Force on Family Law” and the Attorney General’s Advisory Council on Family Law Legal Needs of Low Income Persons” (on which this writer served). Specifically, the reports cited as serious deficiencies of the “present system in 1993”:

  • Lack of access to information regarding legal rights, procedures and remedies.
  • Lack of training in the clerk’s office and/or community organizations in providing information on domestic legal rights and remedies.
  • Lack of access to legal representation and services.
  • Lack of information of practice and procedure among jurisdictions.
  • Long delays in the disposition of domestic cases.

There is not much question and therefore little debate that “Maryland’s Family Divisions After Nine Years” have successfully and systematically addressed each of these deficiencies in a marked and measurable way.  Each deficiency has been specifically addressed and corrected to the extent that available resources to do so have been provided by federal, state and local government as well as the private Bar.  There are some trade offs in the form of new issues resulting from solving these problems that are more apparent now than they were nine years ago which will be discussed later.  But the specific deficiencies in the way the courts addressed “family” disputes which were cited by the Maryland General Assembly have been corrected except for one.

The Governor’s Task Force in 1993 found that the “current legal system employs judges in roles they find unattractive and are often ill-equipped to handle and that the system does not provide them with adequate support”.

The latter part of this criticism is no longer true.  The Judiciary has dramatically increased the level of support to Family Division judges, litigants and lawyers.  That support is apparent from the very visible increase in the member of staff positions and personnel allocated to the Family Division particularly when compared to the other areas of the Circuit Court’s jurisdiction.  In addition, substantial resources and time are dedicated to the training of Family Division Judges, professional, para-professional and clerical staff.  That being said, there still remain in many Circuits in Maryland a significant number of Judges who are what I have described as “involuntarily specialized” as Family Division Judges when they don’t want that assignment and are therefore, in the words of the Governor’s Task Force in 1993, “ill-equipped” to handle that role.

These Judges are “ill-equipped” or “uncomfortable” which is probably the reason they are “ill-equipped” because of the evolution of the mission of the Family Divisions of the Circuit Courts of our state.  Our Family Divisions have become what the literature of Court Administration describes as “Problem-Solving Courts”.

That problem-solving mission requires a judge to function in a radically different role from the traditional judicial role that many individuals in an earlier era and some even now sought when they applied for and were appointed as judges of the Circuit Court.  This, coupled with the institutionalized increased access to the Courts which has been accomplished by the easy and cost-free distribution of form-pleadings, has not only encouraged litigants with family law cases to represent themselves, but has also increased these self-represented litigants’ expectations of what they can accomplish without counsel and what services not only the court clerks and staff should provide to them, but also the Judges themselves.

Needless to say, there are judges, some of whom are assigned to Circuit Court Family Divisions because there are not enough judges who volunteer for that assignment who stiffly and sternly resist the mission and the role they must play to carry it out.  Their actions, decisions and temperament in and out of the courtroom reflect their resistance to this role as well as the culture and the protocol dictated by their assignment which they did not want and only reluctantly accepted

No amount of technical or even motivational training and education, as well as staff and clerical support, will persuade these judges to accept a role as a “Problem-Solver” for the parties in a law suit in lieu of the traditional and more limited function as a dispute resolution officer.  Nor will these judges wish to assume additional duties as a supervisor of programs and services historically provided by the Executive Branch of government or as a provider of legal services including witness examination in the courtroom for voluntarily self-represented litigants.

The Legislation which mandates the creation of Family Divisions in the Circuit Courts of this state mandated the following:

“The Judges of the Family Divisions shall have special experience or training in family law or juvenile causes and an understanding of the problems of families and children likely to come before the Family Division.



“A Judge assigned to the Family Division shall have the temperament necessary to deal properly with the cases and families likely to come before the Family Division”.

The later provision of the statute can not be complied with by Legislative or even Administrative Judicial Fiat.  The current system judicial selection does not create incentives for individuals who wish to make a career out of judging on a Family Law problem-solving court of to apply for judicial office.  Even if such a person does apply successfully and gets appointed, there is no efficient way to guarantee that they will be assigned that role.  There are clearly not a sufficient number of individuals qualified by the requisite experience and temperament who accept the enhanced mission of the Family Divisions on the Circuit Court Bench at the present time to adequately staff the number of Judges needed in our Family Divisions.

So, what is the solution?  First it is to recognize that the debate over what the mission of the Family Divisions should be is over notwithstanding the desire of some to continue it.  The Family Divisions will function as “Problem-Solving Courts” because the leadership of the Judiciary has accepted the theory that they can work and is in the business of funding and implementing it.  That having been decreed we should, while fully recognizing the substantial costs and tradeoffs in other areas, establish an Independent Family Court with not only staff who are committed to its mission, culture and success, but also judges whose enthusiasm equals that of their staff because they have voluntarily specialized and been appointed because of their interest and commitment to the Family Court mission.

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