The principles of the rule of law require predictable results – people who act in the same way can expect the same treatment by the court – the law shouldn’t be arbitrary. By contrast, individual justice requires judicial discretion – each case is different, and no law can anticipate and address all the peculiarities of the issue it hopes to address – everyone has a unique circumstance.
Although these two concepts appear to conflict with each other, they are both necessary for our system of justice to work. Let’s look at two different couples going through a divorce, the Addams Family which consists of Morticia, Gomez, Wednesday (age 9) and Pugsley (age 11); and the Joneses, which consists of Kate, Steve, Jenn (age 12) and Mick (age 9).
Morticia and Gomez Addams decided to get divorced because Gomez was spending too much time away from home tending to the various gravesites around the country. His job required him to be away from home at least 14 continuous days each month, sometimes more, with very short notice. Wednesday was an introvert who was happy being home alone reading about witchcraft, while Pugsley was active in the neighborhood social club where he swam and played soccer at least 4 days a week. Wednesday took after Morticia’s fascination for Halloween, the most important holiday for her.
Kate and Steve, both had a similar routine with their work schedule, but the marriage ended due to infidelity. Jenn was starting to show concerning behaviors due to her obsession with the Smurf characters. Kate started to take Jenn to counseling twice a week, something Steve did not want to do. And Mick was a gifted child involved in various chess clubs all over the city. Mick loved nothing more than spending July 20thwith his father, on International Chess Day.
Under the principle of predictable results, in Florida, the judge must start with the presumption that each parent will have a 50/50 timesharing schedule. Under the principles of individual justice and judicial discretion, the judge must take into consideration the uniqueness of each family, its needs, and weigh all the factors to determine what is in the best interest of the children.
The latter principle is the one that causes worry and anxiety to litigants, and the questions begin:
How is the judge going to evaluate the factors? Which factor is going to weigh more in the judge’s evaluation? Who is the judge going to believe? What is the judge ultimately going to order?
This latter principle, individual justice and judicial discretion, is also the most challenging for a careful and thoughtful judge.
When I was a judge, understanding and interpreting the law was the easy part. The struggle was to balance factors in a fair and objective manner, and not allow my own personal beliefs affect my judicial discretion. I want to believe most judges work hard to do the same, but we must not forget that judges are human, and as such, bring their own views based on their experiences.
It is for this reason that litigants can control the results of their case and avoid unpredictability through Mediation. As parents negotiate their timesharing, they will have a say in the ultimate decision rather than leaving all the decisions to a stranger who has not lived in their family and could not possibly understand all the intricacies.
Through Mediation, Morticia can be sure to spend every Halloween with Wednesday; Gomez and Morticia can agree to having a flexible schedule that would allow Gomez to spend time with the children when he is not traveling for work; Kate can be fully responsible for Jenn’s counseling needs; and Steve can spend every International Day of Chess with Mick.
