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52 U. Miami L. Rev. 79 (1997-1998)
And Never the Twain Shall Meet Again: The Best Interests of Children and the Adversary System

handle is hein.journals/umialr52 and id is 89 raw text is: And Never the Twain Shall Meet: The Best Interests of Children and the Adversary System JANET WEINSTEIN* I. INTRODUCTION .... ..................................................... 80 II. INHERENT CONFLICTS BETWEEN THE ADVERSARIAL PROCESS AND THE BEST INTEREST GOAL .... ................................................... 86 A. The Win/Lose Competition ......................................... 86 B. Focus Is on Parents' Rights Instead of on Child's Welfare ............. 88 C. Zealous Advocacy and Client Confidentiality ......................... 90 1. THE ZEALOUS ADVOCACY REQUIREMENT .......................... 90 2. CLIENT CONFIDENTIALITY AND THE WORK-PRODUCT DOCTRINE ........ 93 D. The Process Is Not Dynamic ....................................... 98 E. The Process Is Not Contextually Oriented ........................... 98 F. The Process Is Not Inclusive ....................................... 100 G. Other Professionals Are Forced into Advocacy Roles .................. 100 m1. CONFLICTS IN PRACTICE ................................................. 101 A. Inconsistent Treatment of the Right to Appointed Counsel .............. 102 B. Lack of Training by Professionals Who Work in the System ............ 104 C. Predominance of Psychosocial Concerns Over Legal Issues ............ 108 D. Best Interests Are Difficult to Determine ............................ 108 1. THE STANDARD IS VAGUE ......................................... 108 2. POOR INVESTIGATIVE RESOURCES ................................ 110 3. INABILITY TO ACCURATELY PREDICT FUTURE BEHAVIOR ............... 111 E. There Is Often No Correct or Just Answer to These Problems, Making Decisions Artificial, Unresponsive and Unfair ................. II1 F. Sequentiality and Risk Aversiveness ................................. 112 G. The Child Rarely Has a Voice in These Disputes ..................... 116 H. Inadequate Resources ............................................. 118 1. HIGH CASELOADS ................................................ 119 2. LIMITED SERVICES ............................................. 121 3. DOCUMENTATION REQUIREMENTS .................................. 121 I. The Public Forum Is Inappropriate for the Resolution of Family Issues .. 122 J. The Adversarial Process Is Not Appropriate for Solving Problems Where the Parties Will Be in Ongoing Relationships ......................... 122 IV. THE EFFECTS OF THE ADVERSARIAL SYSTEM ON THE CHILDREN AND PARENTS . 123 A . Children ........................................................ 123 1. CHILD PROTECTION PROCEEDINGS ................................ 124 * Professor of Law, California Western School of Law; B.A., University of California at Los Angeles, 1968; J.D., University of San Diego, 1974. I would like to express my thanks to my colleagues who have provided helpful feedback in the editing process-Barbara Cox, Al Litrownik, Linda Morton and Jackie Slotkin, and to the Honorable James Milliken, Presiding Judge of the Juvenile Court, San Diego County. I also want to acknowledge my research assistants, Richard Gann, Sherri Karvonen, Elizabeth Maebius, Angie Reddish, and Michelle Rogers, for their diligent work. Finally, I want to express my heartfelt appreciation to my husband, Ricardo Weinstein, Ph.D., whose training and experience in the psychological dimension of these cases has been the starting point for my research. I thank him for the many hours of conversation we have shared regarding these issues, about which we both care so deeply.

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