In a nutshell, here’s what most disturbs writer and psychologist Robert E. Emery about a perceived irrationality he sees in family law.
On the one hand, and regarding a given issue (say, for purposes of discussion, child rearing), a judge will assume a role of passivity and refuse to invoke judicial power. He or she feels restrained from acting because a couple is married and the court thus deems the matter an internal family concern, respecting the special province of marriage and the authority of parents. The court will refrain from exercising power in all but the most extreme circumstances, such as imminent fear of violence in the household.
On the other hand, though, that judge might acknowledge no limitation on judicial prerogative over similar subject matter if the parents are divorced, and sometimes even in instances where they generally agree on a child-related course of action.
That is, judicial action or inaction is purely a function of the couple’s marital status.
Emery finds that illogical and in need of change. In fact, he says that, “This makes no sense.”
Some people would of course disagree, saying that a judge frequently needs to step in and exercise power in family law matters. Emery is not totally disagreeing with that. Rather, what he is saying is that, where divorced parents act in concert, even if there seem to be some outstanding issues, and especially where they have a parenting agreement, the courts should back off.
Again, they sometimes do — and sometimes don’t. In Emery’s view, the former should far more often be the case, which would result in a closer and more logical aligning with how courts typically respond — that is, in hands-off fashion — to child-related family law disputes between still betrothed partners.
Source: The New York Times, “How divorced parents lose their rights,” Robert E. Emery, Sept. 6, 2014