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21 Concil. Cts. Rev. iii (1983)

handle is hein.journals/fmlcr21 and id is 1 raw text is: EDITORIAL FAMILY SELF-DETERMINATION IN DIVORCE: IN THE BEST INTERESTS OF THE FAMILY Although the concept of self-determination is a key concept in the mental health profes- sions, in divorce law, self-determination is a revolutionary idea. Since the law, throughout the ages, tells people what to do and literally hands down court orders, one can anticipate that the legal practitioners of divorce law will initially have some difficulty in feeling comfortable with and accepting a principle that is so opposite traditional legal thinking and practice. Fortunately there is already evidence that an increasing number of judges and lawyers are encouraging divorcing families to exercise self-determination in planning the parameters and parental responsibilities of their post-divorce families. Where this is done, in a sense, the family, relying on its own internal authority, is writing its own orders which are reviewed by an attorney(s) and a judge whose responsibility is to ensure that the plans are just and fair for all concerned. In these cases, when the judge makes his order the difference here, in relation to tradition, is that he is not imposing his will on the family but is supporting the family and respecting their right to determine what they feel is best for them in order to cope with their divorce crises as parents and as a family. There is a recognition of human dignity not usually present in the adversary process. A few definitions of various forms of self-determination are in order, as follows: Se/f-determination in divorce means making one's own decisions about one's own life in accordance with one's own needs, values, perceptions, limitations and strengths. It is a process that encourages personal uniqueness to express itself. It is a concept of responsibility-to one's self and others, as well as an action-oriented concept. It rests on the essence of Being which is to Do. It can be a stepping stone to personal growth, particularly in crises. Self- determination dignifies the divorce process. Family self-determination in divorce means family members making decisions about their own family for the benefit of each individual in it and for the family as a whole and recognizes that parents and families are forever. Guided family self-determination in divorce means that the family voluntarily chooses to relate itself to a third, neutral party, in a confidential relationship, as it strives to reach its own decisions about its own family. Family divorce mediation is an example of this process. When advocating change for the purpose of setting aside inappropriate traditions and practices, such as the ones found in the adversary process in divorce, the advocate for constructive change must be prepared to offer assumptions which underpin advocacy for reform. And so it is for advocating family self-determination as an integral part of the divorce process. These assumptions, to be further tested through experience and research, now follow: * The family, better than anyone, knows what is best for it. This principle connotes respect and trust for the family. * Parents who were unable to agree while married can often agree during and after divorce, particularly where the health, education and welfare of the children are involved. We already know that most of the conflicts in marriages are not about the children. * In divorce, basically most persons fear conflict and are desirous of settling their dif- ferences with the least pain and in a non-adversarial way. * People in crisis can change. An entire body of crisis theory and practice supports this assumption. Positive change is more likely when people make their own decisions. iii CONCILIATION COURTS REVIEW/VOLUME 21, NUMBER 1/JUNE 1983

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